International Marine Economy : Law and Policy [1 ed.] 9789004323445, 9789004323438

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International Marine Economy

Center for Oceans Law and Policy Series Editor Myron H. Nordquist John Norton Moore

VOLUME 20

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

International Marine Economy Law and Policy Edited by

Myron H. Nordquist John Norton Moore Ronán Long

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: University of Virginia. Center for Oceans Law and Policy. Conference (39th : 2014 : Shanghai, China) | Nordquist, Myron H., editor. | Moore, John Norton, editor. | Long, Ronán J., editor. Title: International marine economy law and policy / edited by Myron H. Nordquist, John Norton Moore, Ronán Long. Description: Leiden ; Boston : Brill Nijhoff, 2017. | Series: Center for Oceans Law and Policy ; volume 20 | Includes index. Identifiers: LCCN 2017004376 (print) | LCCN 2017004738 (ebook) | ISBN 9789004323438 (hardback : alk. paper) | ISBN 9789004323445 (E-book) Subjects: LCSH: Law of the sea--Economic aspects--Congresses. Classification: LCC KZA1141 .U55 2014 (print) | LCC KZA1141 (ebook) | DDC 341.4/5--dc23 LC record available at https://lccn.loc.gov/2017004376

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1872-7158 isbn 978-90-04-32343-8 (hardback) isbn 978-90-04-32344-5 (e-book) Copyright 2017 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Preface ix Acknowledgements xii

Featured Studies 1 Interpretation of unclos Article 121 and Itu Aba (Taiping) in the South China Sea Arbitration Award 3 Myron H. Nordquist and William G. Phalen 2 Potential Global Economic Impacts of Ocean Acidification 79 Stephen A. Macko, Christina Fantasia and Guifang ( Julia) XUE

part 1 Arctic Shipping and Resources 3 Legal Problems of the Northern Sea Route Exploitation: Brief Analysis of the Legislation of the Russian Federation 101 Tatiana Sorokina and William G. Phalen 4 imo and the Arctic: Developments since Bergen in 2014 121 J. Ashley Roach 5 Arctic Continental Shelf of the Russian Federation beyond 200 Nautical Miles: Initial Prospect of Sustainable Regulation 169 Rustambek M. Nurimbetov

part 2 Arctic Ocean Fisheries 6 The Legal Framework for High Seas Fisheries in the Central Arctic Ocean 179 Tomas Heidar 7 Arctic Ocean Fisheries and Korea 204 Jee Hyun CHOI

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Conservation of Marine Living Resources in the Central Arctic Ocean: Five Arctic Coastal States’ Initiatives 211 Jianye TANG

part 3 Deep Sea-Bed Regime 9

The Forthcoming Breakthrough: China’s Legislation on Activities in the Deep Seabed Area 235 Jiancai JIN and Guobin ZHANG

10

The Due Diligence Obligation of a Sponsoring State: A Framework for Implementation 246 Elana Geddis

part 4 Resources and Maritime Boundary Regimes 11

The Grey Area in the Bay of Bengal Case 271 Jin-Hyun PAIK

12

Separate Lines: Challenges and Opportunities of Differentiated Seabed and Water Column Boundaries 282 Leonardo Bernard and Clive Schofield

13

Particularly Sensitive Sea Areas beyond National Jurisdiction: Time to Chart a New Course? 322 David Freestone and Viva Harris

part 5 Current Ocean Law and Policy Challenges/Opportunities 14

The Antarctic Whaling Case and the International Law on the Regulation of Whaling 365 Dan LIU

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15

Law of the Sea and Ocean Governance in Southeast Asia: Comparative European Lessons on Pragmatism and Principle 388 Ronán Long

16

The Link between Exercise of Control over Foreign Merchant Ships with Lawful Grounds and State Liability for Wrong Assessments 425 Hakan Karan

Index 443

Preface This volume titled International Marine Economy: Law and Policy departs from the usual pattern which normally would be almost exclusively based on papers presented at the Center’s 39th Annual Conference held in Shanghai held 24–26 June, 2015. In this book the editors decided to feature two papers not formally presented in Shanghai. The first is titled Interpretation of unclos Article 121 and Itu Aba (Taiping) in the South China Sea Arbitration Award. This contribution was included in light of the timing of a much anticipated Arbitration award in a maritime dispute between the Philippines and the People’s Republic of China that was issued on July 12, 2016. The co-authors of the Award paper are one of the editors of this volume, Myron H. Nordquist, along with a former marine geologist, William G. Phalen. The co-authors in particular take issue with the definitional distinction made in the Award between an “island” and a “rock” in Article 121(3) of the un Convention on the Law of the Sea (unclos). Itu Aba/Taiping is the largest maritime feature in the Spratly Island Group. Had it been found to be an “island” Itu/Taiping would have been entitled to a 200 nm Exclusive Economic Zone (eez) which would overlap with the eez claims of several other countries, including the Philippines. Pursuant to a 25 August 2006 Chinese Declaration, as provided in unclos 298, these overlapping sea boundary claims would bar the Tribunal from jurisdiction in making the Award. The second featured article, Potential Global Economic Impacts of Ocean Acidification, is co-authored by Stephen A. Macko and Christina Fantasia of the University of Virginia’s Department of Environmental Sciences with ­Guifang (Julia) XUE of KoGuan Law School, Shanghai Jiao Tong University. The article highlights how anthropogenic emissions from fossil fuel use is increasing ocean acidity and posing catastrophic effects on higher organisms of food chains. Part 1 of the book deals with Arctic Shipping and Resources. The first article is directed toward legal problems of the Northern Sea Route Exploitation based on Russian legislation. The co-authors are Tatiana Sorokina of the Russian ­Institute of the Northern (Arctic) Federal University and William G. Phalen, a research fellow at the Center for Oceans Law and Policy. The second article is by J. Ashley Roach who had contributed a paper at the Center’s Bergen Conference in 2014 and provides an update on imo and the Arctic developments up to mid-2016. The third submission in this part is by Rustambek M. Nurimbetov of Far Eastern Federal University in Vladivostok on the topic of Russia’s Arctic continental shelf and its projected use.

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Part 2 is directed to Arctic Ocean Fisheries with the lead article by newly elected itlos Judge Tomas Heidar of Iceland. His discussion is titled The Legal Framework for High Seas Fisheries in the Central Arctic Ocean. Arctic Ocean Fisheries and Korea’s policies are next analyzed by a senior researcher from the Korea Maritime Institute, Jee Hyun CHOI. Jianye TANG of Shanghai Jiao Tong University School of Law follows with a paper titled: Conservation of Marine Living Resources in the Central Arctic Ocean: Five Arctic Coastal States’ Initiatives. Part 3 is addressed to the Deep Sea-Bed regime. Co-authors Jiancai JIN and Guobin ZHANG are both from the Center for Polar and Deep Ocean Development, Shanghai Jiao Tong University. They introduce the background and process of China’s forthcoming deep sea legislation and examine the framework of the law on activities in the area beyond national jurisdiction. The ­second article in this part is by Elana Geddis, a New Zealand barrister. She writes on the Due Diligence Obligation of a Sponsoring State and seeks to provide a framework for a range of regulatory, administrative, institutional and financial ­measures that would be required for the deep seabed regime. Part 4 of the volume concerns resources and maritime boundary regimes. itlos Judge Jin-Hyun PAIK reviews The Grey Area in the Bay of Bengal case for insights on the uncertain legal status of areas when a delimitation line other than an equidistance line crosses the 200 nm eez of one State and continues to reach the 200 nm limit of another State. He cites itlos precedents as well as arbitrations for guidance. The following article by Leonardo Bernard of cil, Singapore, and Clive Schofield, Australian National Centre of Ocean Resources and Security, University of Wollongong, traces the development of continental shelf and eez overlaps. The co-authors conclude that while a single boundary may be easier to achieve, multiple boundaries could be a plausible solution. Co-authors David Freestone of George Washington University Law School and Viva Harris of Santa Clara University School of Law round out this part reflecting on the possibility of a new internationally legally binding agreement regulating the conservation and sustainable use of biological diversity in areas beyond national jurisdiction. They foresee particular activities for the imo. Part 5 has several current policy challenges and opportunities. Dan LIU from Shanghai Jiao Tong University law school begins with an introduction about the factual and procedural background of the Whaling in the Antarctic case. The author then analyzes international regulations for whaling, icj jurisdiction and loopholes in regulations. In the next article, Ronán Long of the National University of Ireland, Galway, examines law of the sea and ocean governance issues in Southeast Asia. He offers comparative lessons from the European Community experience based on pragmatism and principle. The

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­final contribution to the book is by Hakan Karan from the law faculty of Ankara University. He concentrates on the link between the exercise of control over foreign merchant vessels and State liability for wrong assessments. He favors uniform liability rules as they will lead to effective redress for damage and loss from a wrongful operation.

Acknowledgments International Marine Economy: Law and Policy is part of a series of publications on oceans law and policy sponsored by the Center for Oceans Law and Policy, University of Virginia School of Law, in connection with its annual ­conference. This volume is largely based on presentations made 24–26 June, 2015 at the C ­ enter’s 39th conference which was held in Shanghai, People’s Republic of ­China. The principal organizers were the Virginia Center and the China ­Centre for Polar and Deep Ocean Development, Shanghai Jiao Tong University. ­Principal associated sponsors were the Centre for International Law, National University of Singapore; Far Eastern Federal University, Russia; and Korea Maritime Institute, Republic of Korea, with additional sponsorship from the Law of the Sea Institute of Iceland; National University of Ireland, Galway; South China Sea Institute, Xiaman University; and China Institute of Marine Affairs, State Oceanic Administration.

Featured Studies

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chapter 1

Interpretation of unclos Article 121 and Itu Aba (Taiping) in the South China Sea Arbitration Award Myron H. Nordquist and William G. Phalen* Abstract The 12 July 2016 Arbitration Award on the Merits (Award) in the dispute between the Republic of the Philippines (Philippines) and the People’s Republic of China (China) resulted in a pyrrhic victory for the Philippines. The fundamental reason was that the Arbitration Tribunal erred in its interpretation and application of the un Convention on the Law of the Sea (unclos) definition of what is an “island” and what is a “rock” with respect to Itu Aba/Taiping, in the Spratly/Nansha Islands (see Figure 1.1). By holding that Itu Aba/Taiping was a “rock,” the Tribunal determined that the maritime feature was only entitled to a 12 nm territorial sea. Had Itu Aba/Taiping been found to be an “island,” the feature would have been entitled to a 200 nm Exclusive Economic Zone (eez) under unclos. This eez would have overlapped with the eez claims of several other nations including the Philippines. Pursuant to a 25 August 2006 China Declaration, as provided in unclos Article 298, the overlapping sea boundary disputes would bar the Tribunal from taking compulsory jurisdiction in the case. This Study does not analyze all the issues in the 500-page Award, but instead focuses on the crucial aspect of an accurate interpretation of the definitional text of Article 121 and its application to Itu Aba/Taiping. The goal of the Study is to interpret accurately the text in the Convention and to confirm its meaning by its context through a comprehensive review of the relevant legislative history of the term at the Third un Conference on the Law of the Sea (Conference) negotiations. The co-authors offer special qualifications for this effort in that Professor Nordquist was an official delegate to the unclos negotiations and was personally involved when the original text of Article 121 was formulated during the Third Conference negotiations. Mr. Phalen is a former marine geologist who was present as a student at the Rhodes Academy of Oceans Law and Policy in July 2016 when two of the Award Arbitrators orally explained much of the * Myron H. Nordquist is the Associate Director of the Center for Oceans Law and Policy at the University of Virginia School of Law. William G. Phalen is a Research Fellow for the Center for Oceans Law and Policy at the University of Virginia School of Law, J.D. anticipated 2018, M.S. Geology.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_002

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Figure 1.1 Aerial photo of Itu Aba/Taiping Island taken though a glass window of a Taiwanese military plane on March 23, 2016. Source: J.R. Wu & Faith Hung, Taiwan rejects ruling on South China Sea island of Itu Aba, REUTERS (12 July 2016) available at http://www.reuters.com/article/us-southchinasea-rulingtaiwan-idUSKCN0ZS165

Tribunal’s rationale for the Award. The co-authors’ opinions and comments about the Award presented in this study, however, only reflect their personal conclusions. Part i of this study provides what was lacking in the Award: a detailed scrutiny of the background and context for the text of Article 121. Part ii consists of what the coauthors believe is an objective interpretation and application of the Article 121 text for Itu Aba/Taiping. This Study includes two maps (figures 1.3 and 1.4) showing the actual overlap of claims that occurs. Figure 1.4 shows how even if one applies the Tribunal’s determination that the various relevant features were “rocks” only entitled to 12 nm territorial seas, overlaps still exist disqualifying the case from compulsory jurisdiction. In Part iii, the study delves into supplementary sources to confirm its interpretation of Article 121(3) and presents several case studies of unprotested examples in State Practice, which would be adversely affected were the methodology of the Award applied.



Introduction and Executive Summary

The co-authors disagree in particular with the Tribunal’s interpretation of Article 121(3). The entire text of paragraph three reads: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The Tribunal observed in the Award that

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the Convention classifies features on their “natural” condition, which is accurate for paragraph one of Article 121 where the word “naturally” modifies the word “formed”. The Tribunal erred by incorrectly transposing the word “natural” from 121(1) into the meaning of 121(3). As elaborated in this study, the actual Convention text provides that “rocks” are subcategories of “islands” and therefore of course must be “naturally formed”. For the differentiation between rocks and islands in paragraph 3, however, the text is addressed to the human element, not Mother Nature. The plain meaning of the text in paragraph 3 is clear: the reference is to sustaining human habitation and human economic life. This interpretation is substantiated in the legislative history of the Third Conference negotiations. The Tribunal also erred by not identifying the all-important time element inherent in the text of when must a feature be naturally formed or when a feature’s entitlement is determined. The Award relies on spotty, incomplete historical materials to evaluate features without acknowledging that all of its selected historical periods are arbitrary. The co-authors’ opinion is that the only legitimate starting point for determining the time of whether a feature is a “rock” or an “island” in a lawsuit is at the time the case was filed. In the case at hand, this arbitration proceeding was initiated by the Philippines on 22 January 2013. The island issues to be resolved by the Tribunal were the facts and determinations on a remedy available to the Philippines on that date. The Tribunal erred, in part, because it relied on faulty interpretation and application processes. The Tribunal ought to have interpreted the ordinary meaning of the text of Article 121(3) and then sought confirmation for its conclusions about this meaning in a detailed examination of the legislative history of the Third Conference negotiations. This approach would be facilitated in the case at hand as during the negotiations the same text found in the Convention for the regime of islands was before the Conference for review from 1975 to 1982. This exact substantive text was, in fact, carefully scrutinized and reviewed by delegations not only with great expertise in law of the sea treaty making, but by delegates who were also properly empowered by their sovereign States to negotiate the language in the draft Convention. The Tribunal was not empowered under the Convention to rewrite the Convention text. It overstepped its role when it took upon itself to use the legitimate procedural latitude entrusted to it to embark on a wide-ranging historical review of factors with only a marginal relationship to the intended meaning of the Convention text and little relation to the Conference negotiations. The Tribunal, for example, read into the text dependence upon the “objective capacity of a feature, in its natural condition, to sustain either a stable community of people or economic activity that is not dependent on outside resources or purely extractive in nature.” Such discretionary input by the Tribunal has no credible support in the

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text or context of the Convention. In applying self-injected criteria, the Tribunal inaccurately concluded that none of the features considered in the Spratly/ Nansha Group were “islands”. Such a conclusion was procedurally convenient to allow the Tribunal to proceed with jurisdiction in the case since under this holding there was asserted to be no overlapping sea boundaries between the two parties to the arbitration. This Study demonstrates there are in fact two overlapping sea boundary claims between the Philippines and China/Taiwan Authority. The first is illustrated in Figure 1.2 pertaining to the eez overlap between the Parties were Itu Aba/Taiping properly classified as an “island”. The second, demonstrated in Figure 1.3, applies the Tribunal’s determination that Itu Aba/Taiping is a “rock” and still reveals sea boundary overlap with respect to the territorial seas of China/Taiwan Authority (Itu Aba/Taiping) and the Philippines (Loaita Island). Either overlap is sufficient legal grounds pursuant to Article 298 to exempt this case from compulsory jurisdiction by accurately following the text of the Convention. This Study provides a textual interpretation of Article 121 of the 1982 un Convention on the Law of the Sea (unclos) and its relevant application to Itu Aba/ Taiping Island in the context of the July 2016 Arbitration Award in the Philippines/China dispute regarding the Spratly Islands in the South China Sea. This Study is divided into three principal substantive parts. The first Part outlines in detail the legislative history in which the Article 121 text was drafted at the Third United Nations Conference on the Law of the Sea (Third Conference or Conference). The second main Part interprets the ordinary meaning of the text of Article 121 as applied to the specific facts of Itu Aba/Taiping. The third Part of this Study reviews supplementary treaty interpretation sources potentially helpful in confirming the legal status and maritime entitlement implications for Itu Aba/Taiping from the text found in paragraph 3 of Article 121 of unclos. This Study draws significantly different conclusions from those in the 2016 Award with respect to the meaning of Article 121(3) particularly as applied to Itu Aba/Taiping. The main difference is that the authors conclude in this Study that Itu Aba/Taiping is a legal “island” within the meaning of Article 121(3) while the Tribunal in the Award concluded that the feature was a “rock”. The Third Conference was formally held from 1973 to 1982. Many observers have noted that the negotiations for this Conference were not only lengthy, but also highly complex involving many unique negotiating processes, largely designed to save time and to achieve consensus as required by the Conference Rules of Procedure. The ambitious goal in the 1982 Convention was to reach agreement on a comprehensive legal regime governing over 70% of the earth’s surface. The resulting Convention contains 320 articles plus 9 annexes of treaty text. The Convention’s original provisions on the deep seabed mining regime

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proved not to be generally acceptable to the international community, especially to industrialized States, and the objectionable text was modified through an innovative procedural process in 1994 just prior to the Convention’s entry into force. By September 2016, there were 168 Parties to the Convention, including the European Union. With such near universal acceptance, almost all of the provisions in the Convention are generally regarded by international law experts either as customary international law or as persuasive evidence of customary international law. The importance of this point is that conventional law is legally binding on a State only with its express consent while customary international law is binding and enforceable against all States, whether or not they are Parties to the particular convention. The Convention has 17 Parts, many of which contain extensive text, but, in sharp contrast, Part viii consists of only a single article under the heading “Regime of Islands.” Part viii does not deal with artificial islands or installations (for this, see Convention Articles 60, 80 and 147), groups of islands (see Part iv concerning the archipelagic regime), or territories under foreign occupation or colonial dependence (see Final Act, Annex i, Resolution iii). Moreover, Part viii, or indeed unclos as a whole, does not deal with disputes over ­territorial sovereignty or delve into specific maritime delimitation disputes. unclos does provide that to qualify as an “island” under Article 121, the island territory must be naturally formed and be surrounded by water at high tide. With these qualifications, islands are entitled under unclos to the same maritime zones as other land territory. The Convention principles pertaining to islands proper embodied in unclos are widely accepted in customary international law and in State Practice. Article 121(3) of unclos, however, contains a novel exception not rooted in customary international law. The third paragraph of Article 121 reads: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” The interpretation and application of the Article 121(3) text with respect to Itu Aba/Taiping is given in Parts ii and iii of this Study. The first noteworthy source of international law dealing with the regime of islands topic was in a draft text prepared for the 1930 Conference for the Codification of International Law.1 The 1930 draft text reads: “Every island has its own 1 See M. Nordquist (ed.-in-chief), S. Nandan and S. Rosenne (eds.) United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. iii, at 321, fn. 2 (1985). This seven volume series (Virginia Commentary) provides the official sources for text and traces the negotiating history of each article in the 1982 Convention. The Virginia Commentary was a project conceived and completed at the Center for Oceans Law and Policy, University of Virginia School of Law starting in 1982 and substantively completed in 2011 with Volume vii containing an Index

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territorial sea. An island is an area of land, surrounded by water, which is permanently above high-water mark.”2 The “observation” made about this draft text was that the term “island” did not exclude artificial islands, provided that they were true portions of the territory and not merely floating works or the like. The next source worth noting for this Study is found in the International Law Commission’s (ilc) draft articles on the law of the sea, issued in 1956, which included text on islands which reads: “Every island has its own territorial sea. An island is an area of land, surrounded by water, which in normal circumstances is permanently above high-water mark.”3 The ilc comment was that low-tide elevations and technical installations built on the seabed were not considered islands. The First Conference on the Law of the Sea held in 1958 produced a modified version of the 1956 ilc draft text. Article 10 of the 1958 Convention on the Territorial Sea and the Contiguous Zone reads: “An island is a naturally-formed area of land, surrounded by water, which is above water at high-tide. The territorial sea of an island is measured in accordance with the provisions of these articles.”4 The 1958 Convention on the Continental Shelf also contains the term “island” in its definitional article. Article 1(b) plainly provides that the legal continental shelf extends “to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands.”5 While not defined in the Continental Shelf Convention, the term “island” is properly read as used in the contemporaneously negotiated Territorial Sea and Contiguous Zone Convention. An accurate understanding of the meaning of the Article 121 text requires an appreciation of the unique negotiating context in which the article was drafted at the Third Conference. Almost all negotiations relevant to this Study were

2 3 4 5

for the entire series and a consolidated text of the modified convention. An accompanying paperback Document Supplement was published as Volume viii in early 2012. More than 100 scholar/diplomats from throughout the world contributed to the project over its duration of 30 years. The Editors and many contributors were not only recognized scholars but many also had represented their governments in the actual negotiations at the Third Conference. Part of the authoritative value of the Virginia Commentary is that it often fills in the gaps caused because official records were not kept of the numerous informal working group meetings at the Third Conference. While the contributors to the Virginia Commentary concentrated on making objective comments drawn from cited primary sources, they were qualified occasionally to offer informed conjecture or general observations not in the record when the editors or reviewers were confident, based on their personal participation in the negotiations, that their comments were justified by actual events even if not available in formal records. Id. at 479. Id. at 326, fn. 1. Id. at 327. Convention on the Continental Shelf, 29 April 1958, 499 unts 311, 15 ust 471, tias 5578.

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conducted in informal working groups with limited delegate participants present where no official un records were kept. Co-author Nordquist was personally present for many such negotiations at the Conference and believes that the reader ought to be made aware of this personal involvement. Without doubt all of us are influenced by our personal experiences. Personal recollections based on any individual’s experiences at the Third Conference, however, are naturally selective. Thus, the views expressed ought to be taken as “informed conjecture” and of course are not offered as undeniable facts. The reader is therefore advised to judge the author’s opinions in this Study, which cannot be proven from official records, in light of this disclosure of his background that shapes his perspectives. In line with that admonition, a brief further summary is offered of the author’s experience in the negotiations at the Third Conference in general, and with respect to the Article 121 negotiations in particular. Co-author Nordquist followed the law of the sea negotiations starting in 1970 when as a young lawyer he was assigned to the newly formed Ocean Affairs section in the Office of Legal Adviser, United States Department of State. He was personally present at United Nations Headquarters in December of that year when the General Assembly (ga) passed a Principles Resolution that declared that the seabed area beyond national jurisdiction was the Common Heritage of Mankind and voted to convene the Third Law of the Sea Conference in 1973. At the same time, the ga political committee tasked a newly reconstituted deep seabed committee to serve as the preparatory committee for the Third Conference, essentially mandating it to perform the same drafting function that the ilc provided for the First and Second Law of the Sea Conferences. Mandating a large political committee to perform the same task for the Third Conference as a small ilc group of distinguished international law experts performed for the First Conference virtually assured a work product for the drafting process at the Third Conference that would be very different from the First Conference. Predictably, for instance, the Third Conference would take a long time to reach a single draft text. The ga decision did kickoff a thirteen-year negotiating process that resulted in the 1982 Convention on the Law of the Sea. Co-author Nordquist was the Secretary of the us Delegation to the Conference at the time the text of Article 121 was drafted in 1974 and 1975. Moreover, he was specifically assigned as an official us delegate to follow, on a daily basis, the negotiations in the Second Committee at the Conference. In that capacity, he attended the few informal meetings when the regime of islands issues was discussed. To gain a sense of the atmosphere in the negotiations at this stage, it must be noted that there were numerous other negotiations underway competing for attention and the status of islands was not the most pressing or even the most controversial issue being followed by us delegation members, including co-author Nordquist.

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Still, the us delegation was the only one large enough (about 150 total accredited members to the second session in 1974) to send representatives to every meeting to which it was invited. And one of the duties of delegate Nordquist during the 1974, 1975 and 1976 periods most relevant to this Study was to help prepare reports to authorities in Washington, dc on the events that had just transpired during the negotiations. As Secretary of Delegation he thus played a role in preparing the daily delegation reports sent to Washington, dc as well as in helping to write the official Delegation Report submitted to us Government leaders at the end of each session. The regime of islands and related entitlement and offshore delimitation impacts ultimately proved to be as challenging to resolve as any set of problems at the Third Conference. Delegations offered a plethora of oral and written formal and informal proposals on the issues involved in a concerted effort to put forth their national positions while trying to bridge fundamental differences with other states. Emotions sometimes ran high as the island issues involved territory, sovereignty and important resources, which were vital to many countries. For instance, the representatives of Greece and Turkey intervened frequently (almost at every opportunity) expressing contrasting views about island topics. For some States, such as Venezuela and Iran, the regime of islands text raised sensitive nationalistic questions of territorial sovereignty that persist until today. In fact, although there are 168 Parties to the los Convention, Turkey, Venezuela and Iran have yet to accede in large part because of dissatisfaction with the way Article 121 is written. The United States is also not a Party to unclos, but that is a long and complicated story that until the July 2016 Award had little to do with islands. Part i: Background and Context for Article 121 First Conference The First un Conference on the Law of the Sea met in Geneva from 24 February to 27 April 1958 with eighty-six States represented. The Conference decided to establish five main committees to deal with its agenda: First Committee (territorial sea and contiguous zone); Second Committee (high seas: general regime); Third Committee (high seas: fishing and conservation of living resources); Fourth Committee (continental shelf); and Fifth Committee (question of free access to the sea of land-locked countries). The General Assembly had referred the ilc’s final report on the law of the sea to the First Conference containing seventy-three draft articles that had resulted from the Commission’s seven years of preparatory work. The First Conference also had for its

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consideration more than thirty preparatory documents prepared by experts that primarily consisted of specialized studies on particular issues. At the conclusion of the First Conference deliberations, the five main committees each submitted a report to the plenary of the Conference that summarized the results of their work, including draft articles that had been approved at the committee level by a majority vote. By a two-thirds vote, the plenary of the Conference then adopted draft articles, some in amended form, which resulted in four conventions: the Convention on the Territorial Sea and the Contiguous Zone;6 the Convention on the High Seas;7 the Convention on Fishing and Conservation of the Living Resources of the High Seas;8 and the Convention on the Continental Shelf.9 The land-locked States’ issues in the Fifth Committee were not embodied in a separate convention, but were incorporated in Article 14 of the Convention on the Territorial Sea and the Contiguous Zone and in Articles 2, 3, and 4 of the Convention on the High Seas. In addition to the four Conventions, an Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes and nine resolutions were a­ dopted on various subjects, including the issue of convening a second un Conference on the Law of the Sea.10 The Final Act of the Conference was signed on 29 April 1958. On 30 September 1962, the Convention on the High Seas and the Optional Protocol entered into force. The Convention on the Continental Shelf came into force on 10 June 1964; the Convention on the Territorial Sea and the Contiguous Zone on 10 September 1965; and the Convention on Fishing and Conservation of the Living Resources of the High Seas on 20 March 1966. Second Conference On 10 December 1958, the General Assembly passed Resolution 1307 (xiii) requesting the Secretary General to convene a second un Conference on the Law of the Sea. As in prior codification efforts, the First Conference had been unable to reach agreement on the breadth of the territorial sea and the extent of fisheries jurisdiction. Eighty-two States (four fewer than in 1958) attended the Second Conference that was convened expressly to settle these two outstanding 6 7 8 9 10

Convention on the Territorial Sea and Contiguous Zone, 29 April 1958, 516 unts 205, 15 ust 1606, tias 5639. Convention on the High Seas, 29 April 1958, 450 unts 82, 13 ust 2312, tias 5200. Convention on Fishing and Conservation of the Living Resources of the High Seas, 29 April 1958, 599 unts 285, 17 ust 138, tias 5969. Convention on the Continental Shelf, supra note 5. i unclos, Official Records of the United Nations Conference on the Law of the Sea, Geneva, 24 February–27 April 1958, (A/CONF.13/L.58), vol. 2, at 143–145.

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issues. The Second Conference met in Geneva from 16 March to 26 April 1960, but again failed to reach any substantive agreement on either a uniform breadth for the territorial sea or on the extent of fisheries jurisdiction. Assessment of First and Second Conferences In spite of the failure of the Second Conference, the Geneva Conventions from the First Conference in 1958 were landmarks in the progressive codification of international law. This result was facilitated by the fact that many of the provisions were expressions of existing customary international law, particularly those in the Convention on the High Seas. Important new rules, however, were embodied in the Convention on the Continental Shelf, while the territorial sea articles were a mixture of well-established and emerging rules. The fisheries articles were easily the least well received of the four Conventions, although the Optional Protocol on dispute settlement was not only weak on substance, but also on acceptance by the international community. As would be the case at the Third Conference, the outer limit of coastal State jurisdiction over the territorial sea, fisheries and continental shelf as well as the delimitation of boundaries between adjacent and opposite States were the most troublesome issues. These problems were increasing in economic significance as advances in technology allowed offshore petroleum development in deeper waters and distant water fishing on a global scale. Indeed, the gross underestimation of the rapid advances in marine technology at the First and Second Conferences coupled with the rising political and economic aspirations of numerous newly independent coastal States were probably the two most instrumental factors in precipitating the convening of the Third un Conference. u.n. Activity, 1967–69 In November 1967, Ambassador Arvid Pardo of Malta spoke at length in the un General Assembly on the importance of the oceans to the future of mankind and on the need for modernization of the legal regime for ocean space. He also introduced a draft resolution to exclude the seabed beyond national jurisdiction from national appropriation and to establish an international agency to control all seabed activities therein. The financial benefits derived from the exploitation of the deep seabed resources were to be used primarily to aid the poorer countries of the world. Pardo’s ideas won immediate appeal with most developing nations. Consequently, the General Assembly established an Ad Hoc Committee of thirty-five members to study un Activities in the seabed area beyond national jurisdiction and to recommend means to promote cooperation in the use of its resources.11 11

ga Res. 2340 of 18 Dec. 1967.

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After three sessions of discussions ranging over approximately two months, the controversial nature of the deep seabed regime subject matter was evident and the Ad Hoc Committee informed the General Assembly that further study was needed.12 A harbinger of the future processes for the Third Conference arose here in that the Ad Hoc Committee conducted its work on the basis of consensus among its members, although no formal decision was taken to that effect. In December 1968, the General Assembly adopted a resolution to create a standing, forty-two member Committee on the Peaceful Uses of the Sea-Bed and Ocean Floor beyond the Limits of National Jurisdiction (Seabed Com­mittee).13 The elected Chairman of the Ad Hoc Committee, Hamilton Shirley Amerasinghe, was later elected as the first President of the Third Law of the Sea Conference. The Seabed Committee was to study the deep seabed issues and to submit a report to the General Assembly the following year. The Committee held three sessions at un Headquarters in 1969 for a total of eleven meetings. Continuing the Ad Hoc Committee’s organizational framework, the Legal Sub-Committee held twenty-nine meetings and the Economic and Technical Sub-Committee, twenty-five meetings. The Seabed Committee dealt primarily with the legal principles governing the deep seabed and the applicable international machinery. After considering the Committee’s Report, the General Assembly requested the Secretary General to ascertain the views of member States on the desirability of convening, at an early date, a Conference on the Law of the Sea.14 The “package deal” aspect of negotiations at a comprehensive conference emerged early as illustrated in the preamble of the 1969 Resolution, which read, inter alia: Having regard for the fact that the problems relating to the high seas, territorial waters, contiguous zones, the continental shelf, the super-jacent waters, and the sea-bed and ocean floor beyond the limits of national jurisdiction are closely linked together….15 Resolution 2574B tasked the Committee to expedite the preparation of draft principles governing deep seabed mining and to submit a draft declaration in 1970. Resolution 2574C requested an international machinery study and was non-controversial. In contrast, Resolution 2574D caused a political furor in un circles by calling for a moratorium on deep seabed exploitation activities prior 12 13 14 15

See Report of the Ad Hoc Committee, un gaor 23rd Sess., un Doc. A/7230 (1968). ga Res. 2467A of 21 Dec 1968. See Report of the Committee, un gaor 24th Sess., Supp. 22, un Doc. A/7622 (1969). The Ad Hoc Working Groups were simply converted into Sub-Committees. ga Res. 2574A of 15 Dec. 1969.

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to the establishment of an international regime. The operative language of the Moratorium Resolution declared: (a) States and persons, physical or juridical, are bound to refrain from all activities of exploitation of the resources of the area of the sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction; (b) No claim to any part of that area or its resources shall be recognized. The Moratorium Resolution was adopted by sixty-two votes to twenty-eight, with twenty-eight abstentions. The voting pitted numerically superior developing countries in the United Nations against economically advanced d­ eveloped States and clearly identified one of the most controversial issues for the upcoming negotiations at the Third Conference. Principles and Conference Resolutions During 1970, the Seabed Committee worked intensively to prepare a draft declaration of principles for a deep seabed regime. While the Committee was unable to agree on a draft text in the time available, both the formal and informal consultations contributed substantially to an emerging consensus on draft language. The Committee reported to the twenty-fifth session of the General Assembly that progress over the prior two years had been slower than it had hoped. Nonetheless, the progress was viewed as sufficient to maintain confidence in the emergence of a general agreement on an international regime in a future treaty. Such unsubstantiated optimism proved characteristic of the formal un pronouncements about the Third Conference and its progress in drafting agreed treaty text. The twenty-fifth session of the General Assembly in 1970 set several landmarks for the Third Conference. By Resolution 2749, the General Assembly adopted by 108 votes to none, with 14 abstentions, a Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction.16 In the Principles Resolution, the General Assembly declared the deep seabed area and its resources were the “common heritage of mankind.” The area was not to be appropriated and no rights were to be acquired with “respect to the area or its resources incompatible with the international regime to be established and the principles of this Declaration.” The Declaration called for the establishment of an international regime and machinery through “an international treaty of a character, generally agreed upon.” 16

ga Res. 2749 of 17 Dec. 1970.

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Resolution 2750C noted that the responses from States given to the Secretary-General indicated widespread support for holding a comprehensive conference on the law of the sea. The Assembly also noted that the problems of ocean space were closely inter-related and that technological advances had accentuated the need for early and progressive development of the law of the sea. Paragraph 2 of the Conference Resolution read: Decides to convene in 1973, … a conference on the law of the sea which would deal with the establishment of an equitable international regime – including an international machinery – for the area and the resources of the sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction, a precise definition of the area, and a broad range of related issues including those concerning the regimes of the high seas, the continental shelf, the territorial sea (including the question of its breadth and the question of international straits) and contiguous zone, fishing and conservation of the living resources of the high seas (including the question of the preferential rights of coastal States), the preservation of the marine environment (including, inter alia, the prevention of pollution) and scientific research; ….17 The Resolution enlarged the Committee by forty-four members, and instructed it to hold two preparatory sessions in 1971. The Committee was to prepare a comprehensive list of subjects and issues as well as draft articles on such subjects and issues.18 The Committee was to report to the General Assembly on the progress of its preparatory work to determine the precise agenda for the conference, its definitive date, location and duration, and related arrangements. Preparatory Sessions, 1971–73 The first and second preparatory sessions of the Committee were held in the Spring and Summer of 1971. The Committee formed three Sub-Committees of the whole, and allocated subjects and functions to them. Sub-Committee i was to draft treaty articles on the deep seabed regime, Sub-Committee ii was to prepare a comprehensive list of subjects and issues and draft treaty articles on traditional law of the sea topics and Sub-Committee iii was to draft treaty articles on the marine environment and scientific research. Twenty-five Bureau members were elected to the Main Committee and the three Sub-Committees

17 18

ga Res. 2750C of 17 Dec.1970, para. 2. ga Res. 2750C of 17 Dec.1970, para. 6.

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relying on an allocation of positions based on the “principles of equitable geographical distribution.”19 The Committee held a general debate during 1971 and received a series of working papers, draft conventions and draft treaty articles. The report of the Committee for 1971 consisted of sections dealing with the subjects and the issues allocated to each of the three Sub-Committees. A considerable amount of time was given at this stage to examining the relationship between the 1958 Geneva Conventions to which many States were party and the anticipated results of the Third Conference. The general debates at the first and second preparatory sessions clearly demonstrated that the law of the sea was an extraordinarily complex subject upon which almost every State held a variety of different views. On 21 December 1971, the General Assembly increased the Committee to ninety-one member countries, noted “encouraging progress,” and authorized the holding of the third and fourth preparatory meetings in New York and Geneva, respectively, in 1972.20 A pattern of work emerged in the Committee’s deliberations: general debate followed by working group attempts to reconcile and consolidate the documents submitted by delegates into draft articles. The workload was overwhelming, compounded by the fact that many delegates were likely confused by the subject’s complexity. While the scope of common understanding was limited, it was not for want of trying: indeed, some 469 formal and countless informal preparatory meetings were held over 1971, 1972, and 1973. The Committee had continued to labor in 1972 pursuant to an agreed plan of work. Its most noteworthy achievement was the formal adoption of a comprehensive list of subjects and issues.21 The list was to become the de facto agenda for the Third Conference and consequently even its formulation was highly controversial. The General Assembly reaffirmed the mandate of the Seabed Committee at the end of 1972, despite noting only “further progress.”22 In reality, wide differences of opinion on virtually every important substantive issue had now emerged. Nevertheless, the Committee was requested by the General Assembly to hold two further sessions in 1973, the fifth and sixth preparatory sessions, with a view to completing its work. A report and recommendations were to 19

20 21 22

See Report of the Committee, un gaor 26th Sess. Supp., un Doc. A/8412 (1971), 6–7. The fact that such an allocation was agreed upon reflects the view in the United Nations that nationals usually advocate the views of their home States. ga Res. 2881 of 21 Dec. 1971. un Doc. A/8721, Supp. 21, 5–8. The List was adopted by the Committee on August 16, 1972. ga Res. 3029 of 18 Dec. 1972.

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be submitted to the General Assembly at its 28th Session in 1973. Resolution 3029-A also requested the Secretary General to convene the first session of the Third Law of the Sea Conference for a period of two weeks in NovemberDecember, 1973, to deal with organizational matters. A second session of the Conference to deal with substantive work was to be held at Santiago, Chile, for eight weeks in April-May, 1974.23 The General Assembly was to review the progress of the preparatory work at its twenty-eighth session in 1973 and, if necessary, take measures to facilitate the completion of the substantive work of the Conference. The Committee held two more preparatory sessions in 1973, the first in New York, from 5 March to 6 April, and the second in Geneva, from 2 July to 24 ­August. Early in its first session, the Committee affirmed that the Sub-Committees should retain their same terms of reference. Indeed, the Sub-Committees did most of the work accomplished in 1973. The regime of islands issue was dealt with almost exclusively in Sub-Committee ii. Accordingly, a specific focus on the activities of that Sub-Committee during the six preparatory sessions leading up to the start of the Conference will assist in understanding the evolution and emergence of the text and context of what became Article 121. Sub-committee ii Preparatory Work Sub-Committee ii, being a Sub-Committee of the whole, was composed of all the State members of the Committee. In March 1971, officers were elected and Reynaldo Galindo Pohl of El Salvador was elected Chairman. Twenty-three meetings were held in Geneva in March and July-August 1971, and preparations were started on a comprehensive list of subjects and issues relating to the law of the sea. As usual, progress was slower than anticipated and on 23 August, a smaller, eleven-nation Working Group was formed to facilitate negotiations. Draft treaty articles on some of the issues allocated to the Sub-Committee were submitted and comments on those proposals were made in a general debate. The debate centered on topics referred to in General Assembly Resolution 2750 (xxv), namely: …the regimes of the high seas, the continental shelf, the territorial sea (including the question of international straits) and contiguous zone, fishing and conservation of the living resources of the high seas (including the question of the preferential rights of coastal States) and other related matters.24 23 24

The optimistic expectation that the Conference might conclude in 1974 was in the Preamble. un Doc. 8412, Supp. 21, para. 104–110.

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No specific mention was made of the regime of islands issue, which was not seen at this stage as a separate, major issue. The lengthy general debate in the 1971 sessions on the identified major topics was considered an indispensable step in the completion of the tasks assigned to Sub-Committee ii.25 During 1972, Sub-Committee ii held two series of meetings: the first in New York during the month of March and the second in Geneva from 17 July–17 August. Twenty-four formal meetings were convened to consider the questions referred by the General Assembly while a series of informal meetings took place on the preparation of the list of subjects and issues. At the last meeting of Sub-Committee ii in 1972, the list was finally adopted by consensus.26 Several additional draft articles on fisheries, straits and an exclusive economic zone were introduced in 1972 but available time permitted only a preliminary exchange of views on these drafts. Two series of Sub-Committee ii meetings were held in 1973: in New York from 6 March–5 April and in Geneva from 3 July–23 August. These consisted of fifteen meetings in the Spring session and seventeen meetings in the Summer session. On 12 March 1973, a consensus on Sub-Committee mandates was reached and Sub-Committee ii was mandated to deal with all subjects and issues not otherwise allocated. In addition, any Sub-Committee could consider relevant items even if allocated to the Main Committee or another Sub-Committee. Little progress was made in Committee ii toward drawing up draft articles. To help focus on specific texts, a Working Group of the Whole decided to prepare a comparative table and consolidated text of the proposals submitted, and to present “variants” which might form the basis for draft articles. One result of the variant exercise was to stimulate the submission of a plethora of proposals in 1973. Many delegations wanted to ensure that their nation’s position was included in at least one of the variants, which were organized under the most appropriate heading of the list of subjects and issues. Given the obvious differences of opinion among States on fundamental issues, the Seabed Committee did not include recommendations in its report to the twenty-eighth General Assembly. After assessing the final report of the Committee, the General Assembly nevertheless concluded that the Committee had accomplished, “as far as possible, within the limits of its mandate, the work which the General Assembly entrusted to it for the preparation of the Third United Nations Conference on the Law of the Sea.”27 Accordingly the General Assembly decided to inaugurate the Conference immediately with 25 26 27

Id. at para. 111. ga Res. 288, supra note 20, para. 23. ga Res. 3067 of 16 Nov. 1973.

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an organizational session at un Headquarters in New York between 3 and 14 December 1973. The mandate of the Conference was “to adopt a Convention dealing with all matters relating to the law of the sea.”28 The second session of the Conference was to meet in Caracas, Venezuela, rather than in Santiago, Chile, from 20 June through 20 August 1974. In ga Resolution 3067 the Secretary General was asked to prepare draft rules of procedure for the Conference and, lastly, the Seabed Committee was dissolved.29 First Session, 1973 The first official act of the Third Conference was to elect H.S. Amerasinghe of Sri Lanka as its President.30 Amerasinghe had served ably as the Chairman of the Seabed Committee and was widely respected by all regional groups. Thirty-one Vice Presidents were also elected and Kenneth Rattray of Jamaica was selected as Rapporteur General. As special relevance to this Study, Andres Aguilar from Venezuela was elected Chairman of the Second Committee while Satya N. Nandan of Fiji was made its Rapporteur. Both Aguilar and Nandan were to play major leadership roles at the Conference, including key roles on the regime of islands issues that were almost entirely within the mandate of the Second Committee. Chairmen were also elected for the First Committee, the Third Committee, the Drafting Committee and the Credentials Committee. The President of the Conference was to preside over the General Committee. Later the drafting of text on dispute settlement articles was entrusted to the General Committee where Professor Louis Sohn of Harvard, a member of the us Delegation, did most of the detailed drafting. In addition to the election of officers and approval of organizational structure, the Conference considered in 1973 the draft rules of procedures prepared 28 29

30

Id. at para. 3. On 16 November 1973, the General Assembly approved a “gentleman’s agreement” on voting at the Conference. The essence of this procedural agreement was that all efforts at reaching consensus would be exhausted before formal voting would take place at the Conference. This was another unique technique employed at the Third Conference to pressure delegations not to incite disagreement and impede progress. The procedure was intended to more or less honor consensus while moving toward a truly universal convention. The “gentleman’s agreement” held until the very end of the Conference in 1982 when the United States insisted on voting to record its objections to the deep sea-bed text in Part xi. iii unclos, Third United Nations Conference on the Law of the Sea, Volume I, Summary Records of Plenary Meetings of the First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, and of Meetings of the General Committee, Second Session, 4, para. 3 available at http://legal.un.org/diplomaticconferences/ lawofthesea-1982/lawofthesea-1982.html.

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by the Secretary General31 together with amendments submitted by several delegations.32 Not able to reach a consensus, the Conference decided to postpone adoption of the rules of procedure until the second session, thereby allowing time for informal, inter-session consultations in a further attempt to resolve differences. Second Session, 1974 The second session of the Conference opened with great fanfare on 20 June 1974 in Caracas, Venezuela with 138 States sending representatives. From 21 June to 27 June the Conference considered its rules of procedure, adopting them on the exact deadline date set at the first session.33 The Conference allocated subjects and issues to the Plenary and the three Main Committees largely along the lines of the work breakdown that had evolved in the Seabed Committee. During the first six weeks of the Conference, 115 delegations and over a dozen representatives of intergovernmental organizations, specialized agencies and non-governmental organizations spoke. Many delivered general statements in the Plenary of the Conference providing for the first time ever, in most cases, an overview of their government’s positions on the law of the sea. It is worth recalling here that the goal of the Conference was to adopt a comprehensive convention covering traditional law of the sea issues as well as new regimes for the international seabed area, marine pollution, scientific research and dispute settlement. The Conference had been preceded by six preparatory sessions over three years and hundreds of draft proposals had been submitted. Thus, it was not surprising that at the end of an exhaustive ten weeks of intensive negotiations in Caracas, the Conference found it necessary to request the General Assembly to schedule a third session at Geneva in 1975. 31

32

33

un Doc. A/CONF.62/2 and Add. 1–3, incorporated in un Doc. A/CONF. 62/1, iii unclos, Third United Nations Conference on the Law of the Sea, Volume III, Documents of the ­Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 67–80 available at http://legal.un.org/diplomaticconferences/ lawofthesea-1982/lawofthesea-1982.html. A/CONF.62/29 of 2 July 1971, iii unclos, Third United Nations Conference on the Law of the Sea, Volume iii, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 59–61 available at http://legal .un.org/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html iii unclos, Third United Nations Conference on the Law of the Sea, Volume i, Summary Records of Plenary Meetings of the First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, and of Meetings of the General Committee, Second Session, 58, para. 85 available at http://legal.un.org/diplomaticconferences/ lawofthesea-1982/lawofthesea-1982.html.

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Chairman Aguilar at its First Meeting held on 3 July 1974 had described the organization of work in the Second Committee at Caracas as follows: … the items assigned to the Committee should be considered one by one in the order in which they appeared in the list. The idea was to consider each of the items, to identify the principle [sic] trends and reduce them to generally acceptable formulae, and then to “put them on ice” so to speak, without any decision.34 Upon completing the first stage of its work, a second reading (of the draft proposals) was undertaken in the Second Committee in an attempt to reduce the number of alternative formulations in the huge store of working papers. The goal was to consolidate texts and reduce the number of variants organized under the agreed agenda in the List of Subjects and Issues. During the 1974 Caracas session of the Conference, forty-six formal meetings and twenty-three informal meetings were held in the Second Committee. In what was in reality an effort to pressure delegates to compromise, debate was limited. For example, delegations who were not participants in the Seabed Committee or who wished to change their position were encouraged to state their positions. Those delegations whose positions had already been proposed were requested not to repeat what had already been put forward. The work procedure adopted was largely effective although some delegations still felt compelled to restate positions considered vital to their country. This problem especially arose when restatement was deemed necessary to counter statements just made of opposing views. The document produced for the Second Committee at the end of the Caracas Session in 1974 consisted of a series of thirteen informal working papers, which were represented to the delegates as reflecting generally accepted formulations of the “main trends” contained in the proposals before the Committee. At the final formal meeting in Caracas, the Second Committee leaders released a consolidation of the thirteen informal papers as a single working document (Main Trends Document), which was intended to form the basis for the Committee’s future work.35 The Rapporteur for the Second Committee, Nandan, commented: 34

35

iii unclos, Third United Nations Conference on the Law of the Sea, Volume II, Summary Records of Meetings of the First, Second and Third Committees, Second Session (Caracas, 20 June to 29 August 1974) 95 available at http://legal.un.org/diplomaticconferences/ lawofthesea-1982/lawofthesea-1982.html. A/CONF.62/L.8/Rev.1, annex ii, appendix 1, iii unclos, Third United Nations Conference on the Law of the Sea, Volume II, Summary Records of Meetings of the First, Second and

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In systematically considering the items allocated to it and preparing a series of informal working papers reflecting in generally acceptable formulations the main trends on each item, the Committee completed an e­ ssential phase of its work. The completion of this phase represents significant progress in the work of the Committee, bearing in mind the incomplete nature of the preparatory work on the items before the Committee.36 The President of the Conference was also upbeat about the results of the Caracas session for a curiously different reason: There has so far been no agreement on any final text or on any single subject or issue, despite the lengthy deliberations in the Seabed Committee that formed the prelude to our discussions in the Conference itself. We can, however, derive some legislative satisfaction from the thought that most of the issues or most of the key issues have been identified and exhaustively discussed and the extent and depth of divergence and disagreement on them have become manifest.37 Geneva Session, 1975 The third session of the Conference met in Geneva from March 17-May 9, 1975. This session of the Conference was the one most historically important for ascertaining an accurate meaning of the text of Article 121, especially paragraph 3. For the Second Committee as a whole, the 1975 Geneva session was also easily the most productive in terms of generating actual text in the Convention. The reason for this was procedural in that each Chairman of the three Committees was empowered to draft a single negotiating text (snt) on the subjects and issues within his Committee’s mandate. Creating text from committee debate had proved impossible as delegates with opposing positions could not agree publicly. A single intelligence (represented by the respective chairmen) was the only way to come up with a single text. The snt was issued

36

37

Third Committees, Second Session (Caracas, 20 June to 29 August 1974) 107–146 available at http://legal.un.org/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html. iii unclos, Third United Nations Conference on the Law of the Sea, Volume iii, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 106, para. 19 available at http://legal.un.org/­ diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html. United Nations, Office of Public Information, Press Release sea/150, Caracas, Aug. 30, 1974. On 14 December 1974 the General Assembly adopted Resolution 3334 that authorized the third session of the Conference in Geneva and designated Caracas as the site for the signing of the final convention.

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after the end of the third session in Geneva.38 In addition, the chairman of the dispute settlement group submitted a text to the President of the Conference. The snts were portrayed to the delegates and the public as simply an informal procedural device to provide a basis for negotiation and no nation’s position was to be prejudiced by the document. In fact, this was a face-saving fiction designed to satisfy critics (and many delegates as well as home State officials) frustrated with the slow progress at the Conference. At the same time, delegates did not want to be seen as having made concessions on positions considered important to their home government leaders. With respect to the Article 121 text under examination in this Study, the snt text as drafted in 1975 was decisive. The “provisional become permanent” largely due to the unique drafting procedures, consensus requirement and expedited review procedures adopted and subsequently implemented at the Third Conference. During two formal meetings (47th and 48th) and fourteen informal meetings during the third session, a second reading of the Main Trends Document was completed with a view toward reducing the excessive number of “variants.”39 This work process entailed a provision-by-provision review of the Main Trends Document. Even for this stated goal, there was insufficient time in 1975 to complete a second review on the last agenda item, Item 19-The Regime of Islands. The formal review, however, was actually not as important as it might seem for the real negotiations occurred in a series of small, informal consultative groups focused on particular issues. This procedure was adopted in the middle of the 1975 session, on 4 April, when the Second Committee decided to establish informal working groups, including one on islands. The numerous working groups had an overwhelming agenda as can be seen by having to deal with the following subjects and issues: baselines, historic bays and historic waters, contiguous zone, innocent passage, high seas, question of transit (land-locked States), continental shelf, exclusive economic zone, straits, enclosed and semienclosed seas, islands, and delimitation. Islands Working Group Established Two informal working group meetings on islands and delimitation did take place, however, to consider what were summarily described as “relevant substantive issues.”40 Thereafter, pursuant to a Committee decision on 18 April 38 39 40

un Doc. A/CONF. 62/WP.8 of 7 May 1975; A/CONF.62/L.8/Rev.1, supra note 34, at 137. unclos, supra note 33. iii unclos, Third United Nations Conference on the Law of the Sea, Volume iv, Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Third Session (Geneva, 17 March to 9 May 1975) 196,

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1975, the Chairman of the Second Committee had issued its informal single negotiating text. The Chairman stated that in preparing the snt he had taken into account the documents before the Conference and the views expressed during the official and unofficial consultations held during the third session.41 The official record is thus largely inadequate to obtain a proper understanding of what actually took place and to make an accurate interpretation of the text. It is indeed unfortunate for those seeking to interpret the text of Article 121 that no official records exist of any of the discussions during the informal consultations that played such a vital role in the formulation of the exact language that was drafted for the regime of islands text in the snt. A limited number of informal written proposals submitted by delegations are in the records, of course. But the interpreter’s primary option is to analyze the text as it exists and to construe the language as written. There are not only no official records to consult about what transpired in the informal working group consultations, but also there are no commentaries such as the ones provided by the ilc for the draft texts presented to the First and Second Conferences. The misfortune about official records is compounded for scholars or others in the case of Article 121 since the text as drafted in the snt was unchanged in substance from that written in 1975 to its final form in the 1982 Convention, some seven years later. That is not to say that there were no discussions about the Regime of Islands text after the snt was presented in 1975. Indeed, there were strong objections voiced by a few delegations right up to the signing of the Convention in 1982. These objections are discussed below bearing in mind that the focus at this stage in this Study is on the negotiations underway after the substantive text was originally drafted and then reviewed. Objections to the snt Article 121 Some of those present at the Second and Third Sessions of the Conference when the drafting of the snt occurred may have been aware that the text in paragraph (3) in Article 121 was not taken verbatim (as were almost all other snt texts) from any particular proposal submitted to either Committee ii of the Seabed Committee or to the Second Committee at the Third Conference. The Bureau’s drafting was the end product of “behind the scenes” efforts pursuant to the Second Committee’s unusual mandate to produce single text language representing a consensus or at least text that would provoke minimal heated opposition from the Committee as a whole. At this stage of the negotiations,

41

para. 17 available at http://legal.un.org/diplomaticconferences/lawofthesea-1982/ lawofthesea-1982.html. Id. at 153.

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selection of the snt Article 121 text was the formal responsibility of the Chairman of the Second Committee. In fact, however, other persons drafted the actual language for what became Article 121. According to co-author Nordquist, the text draftsman was the Rapporteur of the Second Committee with closely held advice from a few un Secretariat employees assigned to assist the Second Committee. After listening to the debate and looking at all the proposals before the Committee, this small group made a considered collective judgment of what they believed would not be objectionable to the great majority of interested delegates. An effort was made to formulate compromise text giving at least a nod of concession to competing points of view. The typical approach throughout the drafting of the snt was to include language from the 1958 Conventions. This was done for the first two paragraphs of Article 121 since there was general (but not universal) support for the principles in the 1958 rules defining islands and giving islands equal status to land territory for maritime entitlement. A procedural technique often used in the negotiating process at the Third Conference at this stage was to sidetrack highly emotional issues, such as foreign or colonial domination and control over islands. In addition, delegates agreed to sever the link under the Regime of Islands item to the insolvable delimitation issues. These procedural moves left a sparse (but manageable) text under the Regime of Islands item. No effort whatsoever to resolve island sovereignty disputes was ever deemed feasible by any experienced delegate at the Conference. unclos was comprehensive in scope, but not that comprehensive with respect to finding a successful universal definition for “islands”, let alone “rocks”. The Second Committee Bureau players in this behind the scene process in 1975 took account of the political atmosphere, particularly the mounting campaign from the landlocked and geographically disadvantaged group. Primarily under political pressure from this group, the Bureau draftsmen selected bits and pieces of proposal language to draft paragraph 3 as a limitation on eez’s for islands. The overall idea was to draft the snt from proposals that could be said with a more or less straight face to be before the Second Committee. There were influential island proponents and opponents keeping careful track of the text that would emerge for the Regime of Islands item. Supporters wanted no cloud on full 200-mile entitlement for their “islands” even if a few such as “Rockall” had the word “rock” in the name. In the end, paragraph three was included in Article 121 primarily as a necessary negotiating concession to a large number of landlocked and geographically disadvantaged States (led at that time by Tommy Koh). Their group of States believed that the common heritage of mankind would be unreasonably reduced by allowing 200-mile zones, particularly around mid ocean islands. As we shall see, the text selected

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for this limitation purpose can indeed be found more or less in several proposals before the Committee. But certainly the text in 121(3) was not in the exact form and not even really in accord with the intended purpose of the delegates who had proposed the words selected by the Bureau. In Parts ii and iii of this Study, the murky “legislative history” of Article 121 is discussed further keeping in mind Article 121’s application to Itu Aba/Taiping. The point to note here is that the drafting of the third paragraph of the Article 121 text occurred in a unique political context in the Second Committee negotiations in 1975 that must be considered for accurate interpretation of the text. Fourth Session, Spring 1976 The snt as a whole was the focus of intensive informal negotiations during the inter-session period from May 1975 to the beginning of the fourth session that started on 15 March 1976.42 At the first meeting of the fourth session in New York, the President of the Conference indicated that the next phase of work was the preparation by the “Chairman” of the three Committees of a revised single negotiating text (rsnt). In consequence, the rsnt was said to be prepared as the sole responsibility of the various Chairmen acting as officers of the Conference. Delegations were not, however, precluded from moving for amendments or introducing new proposals. In addition, following a general debate, the President of the Conference took responsibility for the presentation of a Part iv dealing with the item “Settlement of Disputes” and gave this subject the same status as other parts of the rsnt. Professor Louis Sohn of the us Delegation (and Harvard Law School) served as the draftsman for the President of the Conference on the dispute settlement provisions.43 On 16 March 1976, the Second Committee held its only formal meeting during the Fourth Session in New York at un Headquarters. The organization of work for the Committee’s article-by-article review of the snt was approved and its review approved to be conducted in informal meetings. The input from this process was intended to provide the Chairman with the necessary confidence to prepare a revised text. The input from delegations, in fact, was quite impressive as during fifty-three informal meetings more than 3,700 interventions were made.44 Most of the 149 delegations at the Conference were in 42 43

44

ga Res. 3483 of 12 Dec. 1975. Professor Louis Sohn’s role was the reason he was asked, with close scrutiny from Ambassador Shabtai Rosenne, to prepare the dispute settlement volume for the Virginia C ­ ommentary (i.e. Part xv). iii unclos, Third United Nations Conference on the Law of the Sea, Volume v, Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Fourth Session (New York, 15 March to 7 May 1976) 125,

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attendance, and most chose to be represented in the Second Committee deliberations. To make progress given the sheer number of delegates and prospective speakers, Chairman Aguilar obtained approval from the Conference to apply another unique procedure. This unique innovation was a pragmatic “rule of silence” for the informal meetings. That is, silence from assembled delegates on the text of an snt article meant support for the article as drafted, while silence on an amendment meant opposition to the amendment. Consequentially, the “rule of silence” procedure created a strong presumption of acceptance for the snt text as drafted in 1975. Also, as would be expected, few amendments in the Second Committee commanded the necessary support to alter the snt text as first drafted. Delegates were getting tired of negotiating. This latter point was especially true for the Regime of Islands item (i.e. Article 121), which was not now seen as containing particularly high profile political issues by many delegates. This was the stage at which the deliberate ambiguity in Article 121(3) served a useful purpose in reaching “consensus” at the Third Conference. Due to these “tacit consent” procedures in the Second Committee, the snt text dealing with the Regime of Islands was deemed “not objectionable” as drafted by the Bureau and presented in 1975. Indeed, for the fifth session of the Conference that also met in New York from 2 August to 17 September 1976, the basis of the work was the Revised Single Negotiating Text (rsnt) that had been issued after the Fourth Session earlier in 1976. The Conference as a whole chose next to halt the time-consuming article by article review which had largely run its course anyway and to proceed with informal negotiations just on “key outstanding issues.” The plan was to avoid repetitious debate, to save time and to advance toward a (consensus) agreed treaty text. This procedure was adopted, in part, because many delegations were being criticized in their capitals for what was often seen as the excessive length of the negotiations in exotic places with high per diem rates. In the Second Committee, the Regime of Islands item was not deemed in 1976 to be a “key outstanding issue” and no further substantive modifications of the snt text of Article 12145 were 153, para. 4 available at http://legal.un.org/diplomaticconferences/lawofthesea-1982/ lawofthesea-1982.html. Galindo Pohl (El Salvador) was responsible as the Chairman in 1975 for the preparation and issuance of the snt. Andreas Aguilar (Venezuela) returned as Chairman on March 15, 1976 and was responsible for the preparation of the Revised snt. Id. at 152, para. 2. 45 A/CONF.62/WP.8/Rev.1/PART ii, para. 4 in Article 128 read exactly as Article 121. iii unclos, Third United Nations Conference on the Law of the Sea, Volume iv, Summary Records, Plenary, General Committee, First, Second and Third Committees, as well as Documents of the Conference, Third Session (Geneva, 17 March to 9 May 1975) 172

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made.46 There were, however, a few States (including Japan) that remained openly dissatisfied with Article 121 probably due to their continuing to see a linkage with delimitation problems or due to the actual text in paragraph (3) imposing a limitation on full entitlement for islands. Since this Study does not deal with delimitation as such, the relevant positions and public statements of States during the 1976–1982 period at the Conference are covered in Part iii below. Part ii: Interpretation and Application of Article 121 Text to Itu Aba/Taiping As noted earlier in this Study, the Regime of Islands is a separate Part out of only seventeen separate Parts in the Convention. The entire text of the single article in Part viii consists of only three sentences, which read in their entirety: Article 121 Regime of Islands 1. An island is a naturally formed area of land, surrounded by water, which is above water at high tide. 2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf of an island are determined in accordance with the provisions of this Convention applicable to other land territory. 3. Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf. To interpret the meaning of the above text accurately, interpreters must apply the international law rules governing treaty interpretation found in the Vienna Convention on the Law of Treaties.47 While the United States, for example, is not a Party to the Vienna Convention, its undisputed policy and the practice also observed by other non-party governments is that the Vienna Convention reflects customary international law so as to be binding on all nations. Thus, all States are obligated by customary international law to apply the treaty

46 47

available at http://legal.un.org/diplomaticconferences/lawofthesea-1982/lawofthesea -1982.html. Id. at 153. See para. 6 for “rule of silence” as being deemed by the Chairman as lack of support for amendments. Vienna Convention on Law of Treaties, 23 May 1969, unts, vol. 1155, p. 331 (2005).

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interpretation rules and guidelines in the Vienna Convention to analyze the text of Article 121. The general rule of interpretation in the Vienna Convention is found in Article 31. Article 31 provides that the ordinary meaning is to be given to the terms of the treaty in their context and in light of the treaty’s object and purpose. In addition to the words in the text, for the purpose of ordinary interpretation, the context includes the preamble, annexes and any agreement or instrument relating to the treaty accepted between all the parties. As we shall see, the preamble, annexes or agreement between the parties are not particularly enlightening matters for the application of Article 121(3) to Itu Aba/Taiping. Together with the context, subsequent agreements by the parties or subsequent practices establishing interpretation of the treaty text are to be taken into account, as are any relevant rules of international law applicable in the relations between the parties. These would include the One China Policy followed by the Philippines. Rules of international law and subsequent practices with respect to Itu Aba/Taiping may be arguably relevant as discussed in Part iii. Overall, then, the steps to interpret treaty articles are: (1) To examine the language of the text to determine the clear intent of the parties; and (2) To validate or confirm the meaning of the language after the date the text was concluded either through more explicit written agreements or by the conduct of the parties bearing in mind relevant rules of international law. The most important principle of international law to interpret a treaty is that the language in the text itself governs as the primary source of interpretation. In the co-authors’ opinion, a fundamental point in this case is that Article 121(1) refers to land, while Article 121(3) refers to people. Article 32 of the Vienna Convention carefully outlines the conditions ­allowing recourse to supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion. But such recourse to secondary sources is allowed only to double check the results from reading the ordinary meaning of the text itself. Highly germane to this Study, is that recourse is also justified to determine the meaning of treaty text when the interpretation according to Article 31: “(a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable.” In the case of Article 121(3), there is virtual consensus that some of the language in the text is ambiguous and arguably even obscure. A few officials or academic experts, however, might be eager for an opportunity to inject their own views on what the text means. They might argue, for instance, that the text of Article 121(3) leads to “manifestly absurd or unreasonable” results in the case of Itu Aba/Taiping. The co-authors of this Study do not share the views of any such “experts” in the case of paragraph (3)’s application to Itu Aba/Taiping’s

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maritime entitlement. The rationale for our position adopted in this Study is elaborated below. Ordinary Meaning of Article 121 First, what is the ordinary meaning of the text in Article 121? Paragraph (1) provides a widely recognized codified definition of an island incorporated into State Practice. By and large the international community has found this definition of what an island is to be useable and it is nearly universally applied and followed in State practice (see Case Studies below). Several points in the text, however, merit note. The island must be “naturally” formed; that is, not manmade or artificially formed. “Naturally” only modifies “formed” in 121(1) and does not appear in 121(3). The naturally formed requirement can be controversial when pushed to extremes. Japan, for instance, is engaged in expensive construction efforts to keep a tiny, isolated seafloor elevation called Okinotori above water so as to claim island status. Perhaps, the Japanese are worried that this small point of rock (about the size of a desk) above the sea at high tide might “naturally” erode away or be lost due to rising sea levels. Japan wants to assert that Okinotori as an island generates not only a 200 nautical mile eez, but also a continental shelf beyond 200 nautical miles. Such assertions are a prime example of where reasonable observers are able to comment with justification that such a reading of the treaty text leads to absurd results. The Japanese position construes the word “natural” to encompass its exact opposite, “artificial” or “man-made” formations. The United States was the delegation at the First Conference that proposed insertion of the word “natural” in the 1958 text that was eventually incorporated into Article 121(1). The us intent was stated to ensure that nations would not be authorized to claim entitlement to offshore resources simply by erecting artificial offshore installations or floating platforms.48 Also note that the language in paragraph (1) of Article 121 requires that the land constituting the island must be above water at high tide. This qualifying condition was adopted to ensure that low tide elevations, shifting sand bars and the like were not deemed to be land. Man-made measures to build up formations not naturally above the high water line are artificially created by man and not naturally formed by nature. The ordinary meaning of the text and its wide application in state practice does not appear to the co-authors to be fraught with ambiguity. In paragraph 504 of the Award, the Tribunal provides the conclusions that it draws from interpreting the text of Article 121(3). Specifically the Tribunal considers the terms “rocks”, “cannot”, “sustain”, “human habitation, “or” and 48

iii Virginia Commentary at 327, fn. 6 (1995).

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“economic life of their own”. With respect to “rocks”, the co-authors agree with the interpretation in the Award that the term encompasses more than just geological composition but this is not an issue of importance for the focus of this Study. In dealing with the term “cannot” the Tribunal first acknowledges in paragraph 483 that “121(3) indicates a concept of capacity”. The Tribunal then errs by injecting the qualifier of “natural form”, a qualifier not found in the Convention. The Tribunal seems to be influenced by the self-serving arguments made by the Philippines that ties Article 121(3)’s word “cannot” to the feature itself as if the Tribunal could know and assess the entire geological history of any rock on Earth. In interpreting the word “sustain” in paragraphs 485–487, the Tribunal slips further down the slope of finding components of its own making not provided in the Convention. The Tribunal without citing any evidence asserts that the term has three components: first the “concept of the support and provision of essentials”, the second a concept of time and the third entailing a minimum “proper standard” for a feature to remain viable. The Tribunal apparently leaves to itself to select when these “components” must exist for all the myriad of features around the world. The co-authors stick to the text in the Convention believing that the term “sustain” requires a Tribunal to assess the feature in question at the time of the filing of the judicial action bringing the judicial decision-making into the dispute. In the case at hand, the facts of the specific case of Itu Aba/Taiping were to be judged properly at the initiation of the arbitration on 22 January 2013. Any other date to assess the feature and its capacity would be totally arbitrary. In the co-authors’ opinion, the Tribunal should consider the status of a feature at that time when a decision is legally required to be objectively evaluated based on presented evidence within the factual knowledge of the decisionmaker. The Tribunal overreaches its legal mandate and true state of factual knowledge by trying to set up universal criteria for “human habitation” for all features for all of time. In paragraph 491, for instance, the Tribunal states that the term habitation “generally implies the habitation of the feature by a group or community of persons” and proceeds to inject notions such as the “need for company”. Where is that notion in the Convention? The co-authors agree that the disjunction “or” is not a conjunction. Either the condition of human habitation or economic life of its own would qualify a feature for island status. Either of these conditions are to be assessed at the time issues for decision were before a judicial decision-maker. Turning to the meaning of the term “economic life of their own” in paragraph 498 of the Award, the Tribunal disqualifies features as “islands” based on its standard that the feature “must have the ability to support an independent economic life, without relying predominantly on the infusion of outside resources

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or serving purely as an object for extractive activities without the involvement of a local population.” Again the Tribunal cites the Philippine brief to support this remarkable qualifier that the economic activity must be “local” and not imported from support from the outside. What island anywhere on earth fits this doctrinal model? Further, the Tribunal’s assertion that “economic activity derived from a possible economic zone or continental shelf must necessarily be excluded” cannot be found in the Convention. In reality, unprotested State Practice as exemplified in the case studies in this Study refutes, indeed completely contradicts, the foregoing assertion. Again, the Tribunal errs by overreaching its legal mandate and denies well-founded facts before it by injecting doctrines not rooted in the Convention or State Practice. In paragraph 505, the Tribunal concludes that the phrase “of their own” excludes certain forms of activity that are entirely dependent on external sources, devoted to using a feature as an object for extractive activities without the involvement of a local population, or which make use solely of the waters adjacent to a feature.”49 In the co-authors’ opinion, the Tribunal attempts to override the compromise in the text and the agreement in the Third Conference negotiations. The Tribunal did not have the authority to re-write the Convention and it errs in expanding its legitimate procedural latitude to exclude islands such as Itu Aba/Taiping and others cited in Part iii of this Study. Turning to the Context of Article 121(3), the Tribunal adopts an approach that allows those favoring the “contextual” approach to recoup the loss of judicial discretion imposed by the discipline of following the text as required by the Vienna Convention on the Law of Treaties. The Tribunal predictably found the text of Article 121 to be sufficiently ambiguous to look to the “context of the treaty in light of its object and purpose.” The Tribunal erroneously asserts, for instance, “Article 121(3) must…be interpreted in conjunction with…Article 13 concerning low-tide elevations” because of a perceived “system of classifying features.”50 As this Study illustrates, Article 121(3) was not drafted, negotiated or amended in conjunction with low-tide elevations under Article 13, but instead as an exception to the first two paragraphs of Article 121. The Tribunal disconcertingly conflates low-tide elevations and islands/rocks without referencing any credible legislative history in support of its approach. As this Study has shown, there was little or no debate surrounding the distinction between low-tide elevations (Article 13) and islands (Article 121). Divorcing paragraph 49 50

So much for the interest of mid ocean Pacific island States and their benefits from tuna resources in their eezs. South China Sea Arbitration (Philippines v. China) [hereinafter scs Award], pca Case Repository, Case No. 2013–19, para. 507.

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(3) from Article 121 and aligning it with “low-tide elevations” from Article 13 appears to be an attempt by the Tribunal to establish “rocks” as a broader independent maritime feature classification rather than as a limited exception from the presumption of an island as evidenced by the text and legislative history of the Third conference negotiations. The Tribunal also alludes to contextual analysis to support its interpretation of the scale of activity required to sustain “human habitation or an economic life of its own.” Instead of focusing on the draft textual proposals to Article 121 and the Regime of Islands, as this Study does, the Tribunal introduces the broader debate surrounding coastal State jurisdiction. The Tribunal contends that the purpose of the Article 121(3) exception is: …a counterpoint to the expanded jurisdiction of the exclusive economic zone, Article 121(3) serves to prevent such expansion from going too far. It serves to disable tiny features from unfairly and inequitably generating enormous entitlements to maritime space that would serve not to benefit the local population, but to award a windfall to the (potentially distant) State to have maintained a claim to such a feature.51 The scs Award continues on to inject the Tribunal’s view of equitable social policy into the broad context of the Conference as a whole. Article 121(3) is acknowledged as originating in the wording of the Single Negotiating Text that came out of the Third Session of the Third un Conference in Geneva in 1975. While the Award describes paragraph (3) as a “compromise,” it emphasizes the rejection of some States’ proposals to delete the paragraph without equally noting the rejection of States’ proposals seeking to further expand the definition of rocks. Both views merit equal treatment. Impact of Article 121 on us Pacific Islands The most significant impact on world maritime space flowing from Article 121 is that islands are entitled, by paragraph (2), to a territorial sea, contiguous zone, eez and continental shelf. One can easily understand why island Nations like Australia or Great Britain, with large island land masses “naturally formed”, rate full entitlement under both conventional and customary international law for their island territory just as continental nations such as China or Brazil do for their land territory. Such assertions were repeatedly made at the Third Conference. Bear in mind, however, that with the advent of the 200-mile zones and extended continental shelves in unclos, isolated 51

scs Award, supra note 50, at para. 516.

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islands such as the us owned Johnston, Wake, Midway, Howland, Baker, Palmyra and Jarvis in the Pacific Ocean are thereby authorized under unclos to generate huge marine resource entitlements (see Table 1.1).52 The below chart explains in large part why the us delegation at the Conference took a low profile approach on supporting this expansive reduction of the Common Heritage Area. The United States prudently was content to watch other delegations such as New Zealand, Western Samoa and Fiji carry the negotiating arguments to the rest of the world on this issue. It is a fact of geography, however, that such “vast” island entitlements are a major reason why the United States gains more ocean area from eez and continental shelf expansion us Islands

Potential Resource Area Lost (nm2)

Howland and Baker Islands Jarvis Island Palmyra Atoll and Kingman Reef Johnston Island Wake Island Western Hawaiian Islands (Kure Atoll to Nihoa) Attu Island Total Table 1.1

52

127,248 90,587 102,215 123,482 120,406 435,467 96,453 1,095,858

A list of us features in the Pacific, which under the Tribunal’s interpretation of Article 121 could be downgraded to Article 121(3) “rocks” as well as the associated resource area (eez and continental shelf ) that would be denied to the United States as a result of the Tribunal’s analysis. The resource area does not include the area diminished with respect to the elimination of extended continental shelf claims. If two features’ eezs overlapped, the features were combined for the above resource area calculation. All of the coordinates for the calculations were downloaded from the National Oceanographic and Atmospheric Association’s Office of Coast Survey available at http://www.nauticalcharts.noaa.gov/csdl/mbound.htm.

Of note to the environmental community, an eminent law of the sea expert, J. Ashley Roach, describes in a forthcoming article four national marine monuments in the Pacific Ocean that could be left unprotected if the above islands lose their maritime zone entitlements (Pacific Remote Islands National Marine Monument, the Northwest Hawaiian Islands National Marine Monument, the Marianas Trench Marine National Monument, and the Rose Atoll Marine National Monument). All together these monuments protect rare and fragile marine ecosystems spanning 556,776 nm2 of ocean, an area larger than the surface area of the East China Sea. See J. Ashley Roach, Rocks vs. Islands: Implications for the Protection of the Environment of the eez, (forthcoming Jan. 2017).

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under the Convention than any other country in the world.53 It is also one of the salient reasons why the United States ought to accede to the Convention. The United States is not the only continental country entitled to make expansive claims under the island provisions in unclos. France owns St. Pierre and Miqquelon near the coast of Canada as well as Clipperton in the mid Pacific. And Mexico, for example, uses several islands in the Pacific Ocean, including Clarion and Isla Socorro, to draw the outer limits of its 200 mile eezs. The combined marine area that resulted from Mexico’s drawing eezs from these two islands reportedly added some 33% to the total area of the Mexican eez in the Pacific.54 Interestingly, outside of the delimitation context, the only mid ocean claim that has been protested by formal diplomatic channels (to the authors’ knowledge) is that of Okinotori which, in the co-authors’ opinion, pushes the definition of island in unclos beyond reason. What is not protested at all is often taken as accepted in State Practice and thus merged into customary international law. States seldom retract claims not protested. To recapitulate the relevant context for the text of Article 121, recall that the wording for Article 121 was proposed in principle early on in the Seabed Committee preparatory negotiations in 1973, but always in a delimitation context.55 Further remember that diverse proposals pertaining to islands were made by various nations containing distinctions based on size, population, location and other objective factors both during the Seabed Committee preparatory sessions and at the Third Conference. The various proposals were supposedly represented in the Main Trends Document issued at the end of 1974 in Caracas. It bears repeating that the most telling point for analyzing the text of Article 121 is the fact that the final wording in unclos is substantively exactly as it was drafted in the snt issued at the end of the Third Session in 1975. Divorced from delimitation the original text survived intact into the text of the Convention despite serious objections and proposed amendments from delegations after 1975. Given that the 1975 text made its way unchanged into the 1982 Convention, international legal rules require interpreting the meaning of the text of Article 121 as drafted in the snt. The reason is that this is the language accepted by delegates empowered by their governments to draft treaty text that survived. Accordingly, experts can most accurately interpret and confirm

53

The United States is an Ocean Nation, noaa, (2011) http://www.gc.noaa.gov/ documents/2011/012711_gcil_maritime_eez_map.pdf. 54 Unpublished sjd dissertation by Jorge A. Vargas, 304–305, on file at the University of Virginia School of Law library. 55 A/AC. 138/53, Article 1 and Article 37, para. 2, reproduced in sbc Report 1971 at 105,114 and 131 (Malta).

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the meaning of the text by what took place in 1975 and thereafter in the formal review of the text in relevant negotiations until the Convention was adopted. This process is described in Part i of this Study. While interesting, proposals that were not accepted or expressly rejected count little in comparison with the actual words adopted in the final treaty. Land Locked and Geographically Disadvantaged State Concerns In reflecting about negotiations at the Conference, recall that the negotiating context in 1975 included rising political pressure from many landlocked and geographically disadvantaged States (ll/gds). The ll/gds States numbered about 50, which was said to constitute a “blocking” one-third of the nations at the Third Conference. Many were well informed on implications of expanded jurisdiction for islands, especially their 200-mile zones. Leaders of the ll/gds group realized that articles granting full entitlements to all islands, especially isolated, mid oceanic ones, could reduce the Common Heritage Area.56 In the mid-1970s, the overwhelming majority of developing countries were swept up in a political tide at the Conference expecting to gain substantial financial benefits from the mineral resources in the seabed area beyond national jurisdiction. The ll/gds group as a whole supported the Common Heritage concept and knew that it had nothing to gain by accepting expansive claims for islands; in fact, it had much to lose. Equally troubling for the success of the overall Conference was the general recognition that island disputes usually generated insolvable bilateral delimitation problems, which were not going to be resolved during a multilateral negotiation. Bilateral problems were not only unsuitable for multilateral solutions; they were impossible to resolve in public airings during multifaceted negotiations involving numerous nations from around the world. This reality, however, did not stop delegations from trying to gain an advantage for their nation in the multilateral negotiations. Indeed, one of the main reasons that the procedures of the Conference moved to informal negotiations 56

The future President of the Conference, Tommy Koh of Singapore, cited the inequity of diminishing the common heritage of mankind when he spoke on 14 August 1974, while the snt was being drafted. He pointedly remarked: “The economic zone of a barren rock would be larger than the land territory of many States and larger than the economic zone of many coastal States.” iii unclos, Third United Nations Conference on the Law of the Sea, Volume II, Summary Records of Meetings of the First, Second and Third Committees, Second Session (Caracas, 20 June to 29 August 1974) 285, para. 72 available at http://legal. un.org/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html. For additional comment see Nordquist and Park, Reports of us Delegation to the Third United Nations Conference on the Law of the Sea, 1974, second session, Caracas, Law of the Sea Institute Occasional Paper No. 33, 105–107 (1983).

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was to reduce the incentive for “rights of reply,” which could enflame emotions, consume a great deal of time and hinder progress towards consensus. A major reason, which can often be “read between the lines” by a careful reading even in the official records, is that paragraph 3 was inserted in Article 121 to accommodate ll/gde pressures in the Second Committee for an exception to the definition of islands by denying 200 nm eezs and continental shelves to “rocks.” Paragraph 3 is clearly a limitation on the entitlement of islands proper, which few ll/gds states have. The Second Committee Chairman and Rapporteur, with the advice of a few un Secretariat staff, came to believe that an exception for certain islands was needed, in part, to accommodate the political aspirations of the ll/gds States wanting to preserve as much of the Common Heritage Area as possible. Another practical aspect to note is that the key draftsman of the snt islands provision was the Rapporteur of the Second Committee, Satya N. Nandan of the mid oceanic island nation of Fiji. His country itself faced island/rock problems. Conway reef (known as Ceva-I-Ra in Fijian) is located 243 nautical miles southeast of Fiji. Conway is uninhabited and is only about 5 acres in size. Nandan also had to deal with Rotuma Island located 250 nautical miles north of Fiji. Rotuma had several thousand inhabitants, living on 44 square kilometers (about 11,000 acres) and was politically incorporated into Fiji, although with a measure of autonomy. Nandan felt obligated as a representative of Fiji to walk a line between full entitlement for Rotuma and Fiji sovereignty recognition for Conway reef. Article 121 as written and plainly interpreted allows a 200-nm eez for Rotuma and a 12-nm territorial sea for Conway reef. Like-minded developing Pacific Island entities, such as the Cook Islands, Western Samoa and the Trust Territories of the Pacific (at that time), were pushing for full entitlement for small islands making the equitable argument that the sea was all they had for resources. Nandan also had to cope with the pressures from the influential delegations such as the uk and France (with a number of colonial island/rock possessions in various oceans) to grant full entitlement to all islands/rocks. At the same time there was vocal opposition from a large number of States that wanted to preserve as much Common Heritage area as possible and in some cases, at least diminish the impact of foreign owned islands off their coasts. Interestingly, the general desire to acquire 200 nm zones for developing coastal States was seldom characterized as diminishing the common heritage area.57

57

The Tribunal in the scs Award, however, acknowledged that common heritage area concerns of disadvantaged states were a driving force behind the exception to “islands” in Article 121(3). scs Award, supra note 50.

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Legislative History Applicable to Article 121(3) This examination of legislative history context, which cannot be directly derived from incomplete official records, brings to the fore the point that the ­Vienna Convention allows Parties to take into account other relevant rules and principles of international law, including canons or guidelines for construction, in interpreting treaty text. One widely accepted canon of construction in treaty interpretation is that exceptions to general rules are strictly construed. In other words, the general rule or principle carries more weight than its exceptions. How does this canon apply with respect to Article 123(3)? As noted above, the general rule for island territory, embodied in the unclos text as well as in the 1958 Conventions, is that islands receive the same maritime zones and entitlements as land territory. Paragraph 3 of Article 121 provides an exception to this general rule in that it specifies that “rocks” are not islands which rate treatment as other land territory for purposes of eezs and continental shelf entitlement. The application of widely accepted guidelines for interpreting treaty text requires scrutiny of the exception and unless clearly not merited, to read the exception restrictively so as not to unnecessarily reduce the entitlement principle in the general rule. Not reading the “rock” exception broadly in this case essentially creates a presumption that what is not clearly a “rock” is an island entitled to the full treatment as land for purposes of maritime entitlement under unclos. The legal rationale for this interpretation is that the conditions disqualifying “rocks” are construed narrowly since paragraph 3 is an exception to the general rule of full entitlement for islands. This interpretation is reinforced in the exact text of paragraph 2 of Article 121 itself, which begins with the phrase: “Except as provided for in paragraph 3….” The undeniable point is that the actual text of Article 121 identifies paragraph (3) as an “exception” to the maritime zonal entitlements otherwise provided in the Convention for islands, which rate equal status with other land territory. In other words, “islands” are not to be presumed to be “rocks” with a lesser maritime entitlement than proper islands. Instead, in cases of doubt, “rocks” are presumed to be “islands” rating full maritime entitlement. The text of Article 121(3) consists of two independent criteria or conditions that must be scrutinized before they can disqualify a “rock” from being an island. The text plainly reads that no eez or continental shelf entitlement arises from rocks that “cannot sustain human habitation” or “economic life of their own”. The word “or” between the two conditions is expressly written as a disjunction and this is significant for treaty interpretation. An accurate textual analysis cannot read “or” as if it were the conjunction, “and”. The Convention reads plainly that “rocks” qualify as islands either because they “can sustain” human habitation or because they “can sustain” an economic life of their own.

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An accurate meaning of these independent conditions is not, however, readily evident in ordinary usage as is analyzed further below.58 Part iii: Supplementary Sources to Interpret Article 121(3) The most complex textual interpretation problem in Article 121 is that the meanings of the two criteria or conditions which distinguish a “rock” from an “island” in paragraph (3) are genuinely “ambiguous or obscure” in the sense of the Vienna Convention. That is, the ordinary meaning of the words read in their context and in light of the other guidance in Article 31 of the Vienna Convention (object, purpose, preamble, annexes, subsequent agreements, subsequent practice and the like) still leaves the meaning of the treaty text unclear. On its face the two conditions in Article 123(3) are at least “ambiguous” in the ordinary usage of the English language in which Article 121 was drafted. Thus, the international law rules in Article 32 of the Vienna Convention are to be applied to further ascertain the meaning of the text in the two qualifying conditions in Article 121(3). Several preliminary notes may be helpful to the interpretation process. The first is that the word “natural” in Article 121(1) modifies only the word “formation”. The text as well as legislative history of the first paragraph text tells us that the words were intended to describe physical geography relating to formation. That is to distinguish maritime features that were “formed” by Mother Nature from those built or created by humans. The time frame for this natural process is not specified in unclos, in part because the complete geologic history of any maritime feature is simply unknowable. Data for any of earth’s features is incomplete for all of time. Thus, any period selected (be it the Western era of early world exploration or the time of “Adam and Eve”) is arbitrary unless the question arises in a legal proceeding. In the case at hand, the Philippines initiated the arbitration proceeding on 22 January 2013. The only logical legal basis for selecting a date for deciding the legal status of Itu Aba/Taiping is at the start of the legal proceedings by the Philippines’ that call for a decision by this Tribunal. This was the date when the Philippines legal actions brought the Tribunal’s adjudication process into existence. The date is also critical for interpreting 58

Note at this stage, however, that no mention is made in the text of Article 121(3) of territorial sea or contiguous zone entitlements for “rocks”. Nevertheless, it is now increasingly accepted by States in practice and by experts alike that under unclos, land territory, including islands and rocks, generates by implication a 12 nautical mile territorial sea and an adjacent 12-mile contiguous zone.

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Article 121(3) as discussed below. The time period for determining the term “sustain” in the case at hand was not the past or future, but the present. Pursuant to the Vienna Convention, a review of the legislative history and context for the text of Article 121 may be used to test the results from analysis of the ambiguous words in the text and, in particular, for clarification of the meaning of the two conditions in paragraph (3). This is not to open the door wide to personal speculation by those with a subjective agenda or by officials trying to justify geographical circumstances for their country. Legislative history, according to the Vienna Convention, can only be used to clarify or confirm the meaning of the words in the text. The background or context has no meaning in and of itself. What diplomats agreed upon was the treaty text, not context. And the opinions of experts or scholars about non-textual aspects while interesting do not equate to text and are not decisive. Conclusions drawn from context such as manipulation of the vague term “purpose,” must still confirm the language in the text itself. If the conclusions drawn from searching the background of the language itself do not support textual clarification, then background or context merits little interpretive weight in providing meaning and is certainly not legally decisive. The Vienna Convention drafters could have placed equal weight on text and extraneous contextual matters but they did not. This Study is not the place, however, to rehash the battle between the academic proponents of the “text” versus the doctrinal school favoring “context”. Text won and like it or not, legal interpreters are to read the text itself as that is what governs legal meaning under both conventional and customary international law. We have not, however, ignored context in this Study. In Part i we traced in considerable detail the available legislative history to accurately set the context from the relevant Conference negotiations for understanding Article 121. We highlighted several of the unique negotiating procedures, which must be appreciated to interpret and apply the meaning of the Article 121 text faithfully and correctly. The following examination of supplementary sources narrowly focuses on the meaning of the key ambiguous words “sustain human habitation or economic life of their own” which appear in Article 123(3) of unclos. The two most authoritative supplementary sources to research the context of Article 121 are “A Legislative History of Part viii (Article 121) of the United Nations Convention on the Law of the Sea” published in 1988 by the un Office for Oceans Affairs and the Law of the Sea59 and “United Nations Convention on the

59

The Law of the Sea, Regime of Islands, Legislative History of Part viii (Article 121) of the United Nations Convention on the Law of the Sea; un sales no. e.87v.ii (1988).

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Law of the Sea 1982, A Commentary” cited earlier, the relevant volume of which was published seven years after the un Study in 1995.60 un Study of Legislative History of Article 121 The 1988 un Study is divided into two parts. The first traces the evolution of the legal regime of islands during the preparations for and negotiations at the First Conference on the Law of the Sea that resulted in the four 1958 Geneva Conventions on the Law of the Sea. The second part of the un study covers the negotiations and development of the islands regime text at the Third un Conference on the Law of the Sea. As established above and confirmed in the un Study, the most salient point is that the primary sources for the text of Article 121 emerged at the second session (first substantive session) of the Conference held in Caracas from 20 June–29 August, 1974. The results of the Second Committee deliberations held the next year, when the regime of islands proposals were supposedly extracted from the second session Main Trends Document, were reflected in Part viii of the snt issued on 7 May 1975.61 As emphasized several times in Part i of this Study, the text of Article 121 when issued in 1975 remained substantively the same all the way into the final text of the 1982 Convention. While the text of what was at first denoted Article 132 was “informal” and was not characterized as a “negotiated” text, the fact is that the language of the two qualifiers differentiating between islands and rocks in 121(3) are substantively just the same as when they originated in the 1975 snt. Why did these identical criteria or conditions survive intact into the final Convention text at the conclusion of the Conference in 1982? The complicated but most accurate answer is that procedural innovations adopted at the Third Conference explain the greater part of the puzzle. The Regime of Islands issues remained highly controversial after 1975 for a limited number of countries, mainly because of island/rock impacts on bilateral maritime delimitation problems. As explained below, there were delegations that were seriously unhappy with the final Regime of Islands text when the Convention was signed in Jamaica in 1982. At the same time, other delegations were pleased with Article 121. The great majority of States, however, accepted the formulation of paragraph (3) because it was already in the text, difficult to discard and most delegations really did not care very much about the precise wording of Article 121. There was scrutiny of the text, however, by proponents and opponents among the States whose interests were especially affected. No more 60 61

Virginia Commentary, Vol. iii, supra note 1, at 321–339. un Doc. A, supra note 37. For detailed discussion of rules of construction, see N. Singer, Sutherland Statutory Construction (7th ed. 2009).

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acceptable text was brought forward to replace the text or terms in the draft. The original text and intent remained as drafted in the snt in 1975. The Third Session in 1975 resulted in the snt that for the first time considered the regime of islands isolated from the delimitation articles and the issues associated with islands under colonial or foreign domination or control.62 It is a fact that some States never accepted that island issues could be disassociated from delimitation issues, but the Regime of Islands part and delimitation remained severed. Delimitation issues were essentially set aside because they were not resolvable at the Third Conference. The procedural move to a different part of the snt took the focus off the delimitation of islands per se. As noted earlier in this Study, delimitation rules are fact specific and given the purposes of the present Study, which is not about delimitation, the developments on these two severed issues are not expressly considered further herein. The focus of this Study is on the snt text for Article 121 that emerged in 1975 and was the basis for the negotiations in the fourth session, which started in 15 March 1976.63 Recall that on 16 March, the Chairman of the Second Committee (now Aguilar again) announced there should be no general debate and the Committee should work informally to revise the snt.64 No formal amendments were to be submitted, but delegations could suggest modifications to the (“working” draft) text. Sub-committees or working groups would be open to all delegations.65 During informal meetings the snt would thus be considered article by article and then the Chairman would prepare a revised snt reflecting the results of the first stage of work. This rsnt issued on 6 May 1976 contained a revised Regime of Islands text that was unchanged in substance from the snt as seen in following edits: (i) In the title, the word “Part” was replaced with the word “Chapter”; (ii) The draft had a new numbering i.e. “article 121”; and (iii) The sub-title “Regime of islands” was new.66 The rsnt was declared to have “no other status than that of serving as a basis for continued negotiations without prejudice to the right of any delegation to move any amendments or to introduce any new proposals.”67 This description was technically true but in reality factually misleading. 62 63 64 65 66 67

Virginia Commentary, Vol. iii, supra note 1, at 321–339. Id. Id. Id. Id. Id.

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During the fifth session held in New York from 2 August–17 September 1976, the Second Committee held no formal meetings. Instead the procedure then adopted was to concentrate on key outstanding issues and the regime of islands was not included in the list of these “priority questions”. At the 78th plenary meeting during the sixth session on 28 June 1977 the decision was made for “the Collegium” (i.e. the Conference President, Committee Chairmen, and Rapporteur General of the Conference) to prepare an informal composite negotiating text (icnt). When the icnt was issued on 15 July 1977, the regime of islands in Part viii contained exactly the same language as in 1976 except, as noted above, in the title, the word “Chapter” was replaced with the word “Part” and the new number assigned in the draft text was “Article 121.”68 The status of the icnt was summarized at the Conference as the same as that of the informal snt and rsnt which was to “serve purely as a procedural device and only provide a basis for negotiation without affecting the right of any delegation to suggest revisions in the search for consensus.”69 At the seventh session in 1978, several delegations did, in fact, suggest amendments to the regime of islands text. Of particular interest to this Study was a proposal by Japan to delete paragraph 3 of Article 121.70 The Chairman of the Second Committee deflected revision of this article by stating that there was not time to “devote the consideration they deserved” to the informal suggestions.71 In the plenary meeting, Iraq, Madagascar, Mauritius, Egypt, Libya, and Algeria complained that Article 121 was being neglected.72 Greece, Malta, and Cyprus more or less supported the text of Article 121 as drafted while Japan and France wanted paragraph 3 deleted.73 Ireland opposed Japan’s deletion but supported Iraq, Turkey and Cyprus in wanting more time for consideration of the Regime of Islands issue.74 The Conference decided to resume the seventh session in the fall of 1978 when five informal meetings were held. During these negotiations, some delegations emphasized the importance of islands in delimitation and felt that the issue ought to be dealt with in Articles 15, 74 and 83 of the icnt.75 At the eighth session in 1979, revision one of the icnt was issued with the note that the regime of islands issue “had not yet received

68 69 70 71 72 73 74 75

Id. Id. Id. Id. Id. Id. Id. Id. This proposal was not adopted. Of special note for this Study, the Award seems contrary to this Conference decision.

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adequate consideration”.76 Ireland during a resumed eighth session submitted an informal proposal on 17 August 1979 to insert the words at the beginning of paragraph 2: “without prejudice to the provisions of Articles 15, 74 and 83 and except as provided for in paragraph 3”. This was clearly an attempt to restrict the entitlement of Rockall in Ireland’s delimitation problem with the United Kingdom. No revision was made, however, in the text of Article 121. During the first part of the ninth session in Spring 1980, several delegations briefly discussed the projected revision of the icnt. Ireland again argued that the substantive connection between the delimitation provisions and Article 121 was “not adequately reflected in the revised negotiating text”.77 Turkey agreed while Greece and Cyprus disagreed; France still wanted paragraph 3 deleted and Iraq argued for more time both for delimitation and “freedom of navigation in international waterways”.78 The Collegium prepared the second revision of the icnt without changing the previous regime of islands text. During the resumed ninth session a general debate was held in August 1980. The representative of Venezuela for the first time in recorded negotiations severely attacked paragraph 3 of Article 121. Venezuela was concerned with a dispute it had with Colombia and its representative asserted that the two criteria for “rocks” were “ambiguous and very relative”.79 Moreover, “his delegation would interpret the text as meaning that the capacity of an island to sustain human habitation referred not only to the abstract possibility of habitation, but also to the practical situation, since the continental or insular territory of a State could be developed to suit the interests of the State concerned”.80 This is one of the few on the record interpretations from the Conference of the ambiguous text in Article 121(3) giving an accurate interpretation to the actual text itself. Iran, Algeria, the United Kingdom, the Dominican Republic, Ethiopia, Cyprus, Dominica, and Turkey also expressed various views on Article 121, most of which had been stated earlier in the negotiations. Of particular note, however, was the intervention by Fiji (since as previously noted herein Nandan from Fiji was the Second Committee Rapporteur and principal draftsman of Article 121). His delegation welcomed the fact that the integrity of the legal regime of islands had been largely maintained for the oceanic islands in the South Pacific region and had not been subordinated to the problems of islands bearing on the delimitation of boundaries.81 Article 121 was plainly characterized by its 76 77 78 79 80 81

Id. Id. Id. Id. Id. Id. He was correct.

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author as a major benefit to island States, especially those like Fiji in the South Pacific Ocean. Again, the Draft Convention on the Law of the Sea (Informal Text) released by the Collegium in 1980 contained exactly the wording of the preceding draft with respect to Article 121. During the tenth and resumed tenth sessions in 1981 as well as in the eleventh session and the resumed eleventh session in 1982, the text became ­increasingly formalized (one might say “fossilized”), but delegations were in principle again afforded an opportunity to state their views in plenary. Venezuela again ardently objected to Article 121, especially paragraph (3). The delegate pointed out that the text would “necessarily lead to drastically different treatment for very similar island formations.”82 Iran, Turkey, Libya, and Algeria more or less agreed with Venezuela while Greece, Cameroon, and Cyprus more or less wanted Article 121 left untouched. Several amendments of interest to this Study were also offered during the final days of the negotiations. Romania and the United Kingdom presented competing views as in the past since the Romanians wanted to discount the maritime entitlement value of Snake Island and the United Kingdom wanted to enhance the entitlement status of Rockall. Singapore somewhat surprisingly called upon the uk to withdraw its proposal to delete paragraph 3 of Article 121.83 This request by Singapore is especially interesting because earlier in the negotiations that delegation had criticized the 200-nm entitlement of small islands as excessively reducing the Common Heritage area. The fact that the President of the Conference was now from Singapore suggests that his focus in 1982 had shifted toward completing the Convention even with imperfections. Also of interest was the intervention by Japan that again walked a fine line in supporting the u.k.’s proposal to delete paragraph 3 while opposing Romania’s proposal to ignore uninhabited islets in the delimitation context. More than twenty other delegations commented on the regime of islands text during these final phases but no clear consensus emerged to warrant changing the substance of the “compromise” text in Article 121. As a result, most proposed amendments relating to islands were withdrawn. On 23 April 1982, the Conference determined that all efforts at reaching a consensus on the Convention as a whole had been exhausted.84 The United States requested a vote on adoption of the Convention, which was then adopted on 30 April 1982, although the United States voted against adoption.85 82 83 84 85

Id. Id. Id. Id. The United States is now in the curious position of having ratified the 1994 Fish Stocks “Implementation” Agreement but not having adopted the 1982 unclos.

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At the final session in Montego Bay, Jamaica, 6–10 December 1982, delegations were given a last opportunity to state their views in plenary before the signing of the Convention. Cyprus, Romania, Turkey, Colombia, France, Netherlands Antilles, and Greece expressed their now familiar or predictable positions on islands. Of particular note for this Study was the interpretation that Iran recorded in its “understanding” as follows: Islets situated in enclosed and semi-enclosed seas which potentially can sustain human habitation or economic life of their own but, due to climatic conditions, resource restriction or other limitations, have not yet been put to development, fall within the provisions of paragraph 2 of Article 121 concerning ‘Regime of Islands’, and have, therefore, full effect in boundary delimitations of various maritime zones of the interested coastal States.86 [Emphasis added.] This understanding comports with the conclusions in this Study, as do the comments of Rapporteur Nandan, the principal draftsman of Article 121(3). The un study traces various proposals and comments by delegations on the regime of islands from the onset of the negotiations in the Seabed Committee, throughout the Third Conference up to and including the final session held in Montego Bay, Jamaica. The publication is useful, but it has an inherent limitation. The constraint is that all un studies must be written in a neutral manner consistent with un report practice. There cannot be any speculations by un officials or, indeed, even inferences encouraged concerning ambiguous text such as are found in the two conditions in Article 121(3). Conclusions in official un documents are therefore cautiously stated and every effort is made to respect the sovereign equality of States. Delegates to the Conference knew, of course, that some States and their proposals were more influential than others and usually it was not difficult to see what States had to be taken seriously and what ones could safely be more or less ignored. But in un diplomacy appearances are important. There were a few instances where the individual personality of the representative reflected influence positively or negatively beyond mere nationality. For example, the Singapore delegation was very small but was very influential and well respected at the Third Conference. This is evidenced by the fact that Tommy Koh of Singapore had been elected President of the Conference after the death of H. Shirley Amerasinghe in December 1980.

86

Id.

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Legislative History of Article 121 in Virginia Commentary The 1995 Virginia Commentary largely traces the same evolution of the negotiating history of the text of Article 121 as was covered in the earlier 1988 un study. The Commentary, however, was written and reviewed by actual negotiators at the Third Conference. The General Editors of the Commentary series were Shabtai Rosenne, a delegate to all three law of the sea conferences and a distinguished international law scholar on international dispute settlement procedures as well as on the substance of the law of the sea. As noted, the other General Editor was Satya N. Nandan, Fiji’s Ambassador to the Third Conference. The latter is particularly relevant to this Study as he was the Rapporteur for the Second Committee and the individual most directly involved in drafting and incorporating the actual text of the snt for the Second Committee in 1975 and 1976. Recall that part of the reason he had that duty is that the Chairman of the Second Committee was in the hospital for crucial weeks in 1975. Nandan closely followed the regime of islands issue as it was an important national interest for his government and was a matter of solidarity with Fiji’s Pacific Island neighbors. It is not a coincidence that the text of Article 121 is consistent with the positions taken by Fiji as an island nation at the Conference. The Chairmen of the Second Committee in 1974, 1975 and 1976 were representatives of the Latin American Group and they exercised great influence on many critical issues. The fact is, however, that the snt was written in English and the Spanish-speaking Chairmen at the time had almost nothing to do with the actual drafting of Article 121, in particular with paragraph (3). The Chairmen were personally preoccupied with highly political issues such as the residual rights status of the eez, the extent of the legal continental shelf, the meaning of innocent passage and the content of transit passage in international straits. Such issues were seen as “conference breakers”. The regime of islands issue was not seen as a conference breaker. No specific guidance worth mentioning was given by Chairman Pohl of El Salvador in 1975 with respect to the wording of the phrase “can sustain human habitation or economic life of its own” in what became the essence of Article 121(3). In 1976, Chairman Aguilar of Venezuela had the mandate to alter the snt during the article-by-article revision process that took place under his renewed Chairmanship of the Second Committee. Not doing so for Article 121 may have been an oversight for his government as the official records cited above show that the Venezuelan Delegation later failed in a last minute attempt made late in 1982 to allow reservations to be made to Article 121(3).87 The background was 87

Venezuela indicated it could not accept Articles 15, 74, 83 and 121(3) as applied to maritime delimitation during the 182nd plenary meeting in 1982. The Law of the Sea, supra note 59, 108, para. F.

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that the Venezuelan Ambassador to the Conference, Andres Aguilar, had been the Chairman of Committee ii during the preparations in the Seabed Committee leading up to the Conference. Then he was not chairman in 1975 of the Second Committee when the regime of islands text was originally drafted, but he resumed his role as the Chairman of the Second Committee during the fourth session in 1976 when the text for Article 121(3) was individually reviewed. An informed speculation is that he might not have recognized the undesired features of Article 121(3) for Venezuela in a timely fashion. It is also plausible that Chairman Aguilar, along with many other delegates, might not have correctly gauged the substantive impact of the tacit consent procedures on subordinate issues such as the definition of islands and rocks. These island issues were located last on the list of subjects and issues for the Second Committee of the Conference. The Conference always ran late and thus the Regime of Islands text was procedurally neglected. In fairness, Aguilar was especially preoccupied in 1976 with the outer limit of the continental shelf, a subject in which his country had great interest and one with which he had much personal expertise as he had been the General Counsel of Venezuela’s state petroleum company. Coastal States were also highly successful in achieving expansive limits to the legal Continental Shelf in Article 76 of the Convention. Article 76 was intended to allocate all petroleum bearing sediment deposits to coastal States thereby depriving the “common heritage” of resource areas many times more valuable than the 200 nm eezs around mid ocean islands. Delegates did not harshly criticize this result. The Conference did resolve the thorny political issues associated early on with islands under foreign or colonial domination or control by eventually moving the subject from the Convention text into the Final Act, Annex i, Resolution iii (see full discussion in volume v of the Virginia Commentary).88 88

Item 19(a) became a lightning rod for attention at the start of the Conference in 1974 when eight separate proposals were submitted and discussed in the 38th to 40th meetings of the Second Committee. Recall that the topic appeared as Provision 240 of the Main Trends Working Paper, with four formulas. At the third session (1975) during the two open-ended consultative working group meetings on islands, the topic was dealt with as a single Article 136 denominated as a Part x. Curiously, the limitation to “islands” was thus expanded without explanation to “territories” creating application to land areas. During the fourth session (1976), Article 136 was roundly criticized during the article-by-article review. Therefore, Chairman Aguilar transferred it from the text to the end of Part ii where it was designated a “Transitional provision”. Procedurally this removed the topic as a further distraction to the Second Committee’s progress by substantively “kicking it upstairs” to the whole convention context. The practical effect was to advance negotiations at a time when the Conference was under pressure to “make progress”. Ultimately,

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In addition, the highly controversial subject of archipelagoes or groups of islands was also carved out of the Regime of Islands discussions and placed in a separate Part iv. The new archipelagic regime was then laboriously negotiated between a few States, such as Indonesia, the Philippines and the Bahamas, that aspired to be recognized as archipelagic States and the major maritime powers such as Great Britain, the Soviet Union and the United States that wanted to preserve freedom of navigation and overflight in the high seas areas within the proposed archipelago. The compromise in Part iv was carefully crafted and was subsequently hailed as a major accomplishment of the Third Conference. This subject is also dealt with in detail in the second volume of the Virginia Commentary. The archipelago negotiations were hard fought and time consuming. The regime of islands issues by comparison were considered by most delegations as of lesser importance, as more “technical” matters for which expenditure of a great deal of political capital was not warranted since the issues were not seen to “make or break” the Conference. The deliberate ambiguity in 121(3) in a sense served a useful purpose at this stage of the negotiations as most delegates were not sure about what was meant by Article 121(3). The extraction of archipelago and colonial domination matters from Item 19 did clear the way for the regime of islands text to remain settled, however imperfectly. From the foregoing review in this Part, it is also evident that more than a few delegations were dissatisfied even in late 1982 with the text of Article 121. That being said, a laborious compromise “deal” had been made on the Convention as a whole and States were doing their best to live with parts that were not ideal from the circumstances of many individual States. That includes Japan that opposed paragraph 3 of Article 121 to the bitter end. In discussing the preparatory meetings undertaken for the Third Conference in 1971, we noted in the introduction of Part i of this Study that Arvid Pardo of Malta first raised the issue of defining islands when he presented his comprehensive draft of an ocean space treaty. He was farsighted enough even at this early stage of the negotiations about what was to became divisive issues at the Third Conference to suggest that the status of islands in determining the sovereignty and jurisdiction of coastal States over ocean space ought to be left for future consideration.89 Much time and heartburn at the Third Conference

89

newly elected Conference President Tommy Koh found a clever procedural solution by relegating the emotional item to a non-binding resolution. As noted in the Virginia Commentary: “In that way, a highly divisive issue, which at one time threatened to wreck the Conference, was settled, probably to the satisfaction of no one.” See v Virginia Commentary at 478 et seq. ga Res. 2340, supra notes 11 and 12.

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would have been saved had the delegates heeded his words of wisdom at the outset of the negotiations and afterwards in State Practice. To recap briefly the overall context for paragraph 3 of Article 121, the Third Conference did not have the benefit of ilc draft texts and commentary for its preparation as had the First and the Second Conferences in 1958 and 1960 respectively. Instead, the un General Assembly in late 1971 (prematurely) convened a comprehensive Third Conference on the Law of the Sea to start in 1973, enlarged the previously authorized Sea-Bed Committee and gave this political committee the mandate to prepare for the Third Conference.90 A protracted and largely unproductive negotiation then ensued over the list of subjects and issues to be taken up by the Third Conference. Essentially the debate was about the agenda for the Conference with delegations vying to gain a substantive advantage by arguing over labels. Islands, especially in the context of maritime delimitation, emerged early on in this process as possibly presenting insolvable problems for a conference trying to negotiate towards a consensus on bilateral boundary disputes that inherently have at least two contending parties. Accordingly, issues pertaining to the regime of islands eventually were listed under several headings in the proposed agenda. The matter was resolved as far as the agenda for the Conference was concerned when the topic “Regime of Islands” was approved at the 1972 un Sea-Bed Committee session as item 19 on the List of Subjects and Issues. Item 19 simply read: “(a) Islands under colonial dependence or foreign domination or control; (b) other related matters.”91 Thus, the broad parameters of the future debate concerning status, maritime entitlement and the legal consequences from islands were already framed by the end of the 1973 session of the Sea-Bed committee. On one side were the positions of those delegations that favored specific, objective criteria to define islands. On another side were those States that supported subjective criteria or no definition at all. Both sides’ views largely reflected perceptions about the physical geography of their national territories. All delegations acknowledged that the 1958 Convention island definition articles were vague but no consensus was found on how to formulate general rules that all delegations could accept as a substitute for the 1975 text given the widely diverse factual situations regarding islands around the world. Article 121 was an attempt to 90 91

ga Res. 2750C, supra note 17. iii unclos, Third United Nations Conference on the Law of the Sea, Volume I, Summary Records of Plenary Meetings of the First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, and of Meetings of the General Committee, Second Session, 4, available at http://legal.un.org/diplomaticconferences/lawofthesea -1982/lawofthesea-1982.html.

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accommodate essentially irreconcilable positions. For the objective definition proponents, the most influential “spokesmen” were members of the Organization of African Unity (oau). The oau delegates advocated the need to define islands, and thereby fix maritime entitlement using objective factors. This group of States recommended that such determinations be based on equitable principles (contrary to the more mechanical median line advocates) considering all relevant factors and special circumstances including: (a) (b) (c) (d) (e)

the size of islands; their population or the absence thereof; their contiguity to the principal territory; their geological configuration; and the special interest of island States and archipelagic States.92

The oau delegates’ approach was also at odds with that of States that preferred the existing law with its imprecise definitions in article 10 of the 1958 Convention on the Territorial Sea and the Contiguous Zone or even with no definition at all as was the case in the text of article one of the Convention on the Continental Shelf. Greece with its many islands near Turkey was the most vocal proponent urging full entitlement for islands without any distinctions being made with respect to other land territory. In addition, many newly independent States, mostly in the Pacific, pointed to the equity or fairness argument raised by their nearly total dependence on the sea for their livelihood. As we have seen, Fiji was strategically positioned behind the scene at the Conference to be the most influential proponent for the latter view but New Zealand was the de facto floor leader of this group. The scs did not directly appear as such on any one’s screen. Recall further that at the Third Conference, the fourteen African States advancing the oau approach countered the “full” island State arguments or “vague definition” supporters early on by introducing an article patterned on an oau declaration that had been submitted to the Sea-Bed Committee. The group urged the use of “equitable” principles for maritime delimitation but 92

Declaration of the Organization of African Unity (A/CONF.62/33) was an attempt to propose objective and equitable rules in opposition to the “exaggerated claims of countries possessing islands” as contained in the 1958 Conventions. Tunisia, 40th meeting, 14 August 1974, paras. 23–24. On August 27, 1974 fourteen African States introduced A/CONF. 62/L.62/Rev. 1 distinguishing between islands, islets, rocks and low tide elevations largely based on size. Virginia Commentary, Vol. III, supra note 1, at, 232–233. Even though this proposal was rejected, the result of the Award seems to endorse this general approach.

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attempted to stay clear of major controversy by not extending this principle to island States or archipelagic States.93 Turkey joined in with the oau coalition whose positions on islands were more or less consistent with Turkey’s vigorous campaign to downgrade the maritime entitlement status of the numerous Greek islands off the Anatolian peninsula. Romania had also introduced a draft island article in 1973 to the Sea-Bed Sub-Committee ii, which was charged with undertaking the preparatory work on traditional law of the sea issues for the upcoming Conference.94 A novel distinction, little noticed at the time, pertaining to the maritime area entitlement of islets and small islands, was contained in this early Romanian draft text. Of particular interest for this Study’s focus on Itu Aba/Taiping was paragraph one in the Romanian proposal which read: “Islets and small islands, uninhabited and without economic life which are situated on the continental shelf of the coast, do not possess any of the shelf or other marine space of the same nature.”95 Even with delimitation in mind, this was the first proposal that more or less referred to habitation and economic life as criteria for distinguishing between islands proper and what came to be called “rocks”. The key word pertaining to a time element – “sustain” – was, however, an original input by the Bureau draftsmen. Nandan was from the outset keenly aware of the needs of mid ocean Pacific islands. As noted above, the text in the Romanian proposed draft article in 1973 was intended to discount the maritime delimitation entitlement of the 50 acre Serpent Island (or Snake Island), then a Soviet possession (now Ukrainian) located near Romania’s northern sea border where the Danube River flows into the Black Sea.96 Romania was to argue thirty-six years later in its 2009 maritime 93

94 95 96

un Doc. A/CONF. 62/C.2/L.53, 12 August 1974, iii unclos, Third United Nations Conference on the Law of the Sea, Volume iii, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 228–229 available at http://legal.un.org/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html. Virginia Commentary, Vol. iii, supra note 1 at 21. Id. Serpent Island or Snake Island is located twenty-two miles from the coast, east of the mouth of the Danube River. The island now has about 100 Ukrainian inhabitants, a helicopter platform, a small pier, a 150-year old lighthouse and other civilian infrastructure, mostly of recent construction. The Soviet Union’s possession of the territory was confirmed in a 1961 treaty with Romania but the Romanian side refused to accept Soviet offers regarding delimitation of the adjacent continental shelf. Ukraine inherited control over the territory in 1991 and in 1997 Romania and Ukraine agreed Serpent Island was Ukrainian territory but provided for a final ruling on offshore delimitation by recourse to the icj. See Wikipedia, http://en.wikipedia.org/wiki/Ostriv_Zmiinyi. Maritime Delimitation

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delimitation dispute with the Ukraine before the icj that Serpent Island was a “rock” incapable of sustaining human habitation or an economic life of its own. Romania specifically pointed to unclos Article 121(3), to urge that Serpent Island did not generate an eez or continental shelf.97 The significance of the 1973 Romanian proposal is that the phrase “uninhabited and without economic life” in its proposed text was used in tandem as a single condition for defining “islets and small islands”. The 1973 Romanian text was intended to describe the existing status of islets and small islands with Serpent Island specifically in mind as its model. There was no intent by the Romanians in the 1973 proposal to define future capacity or the potential of a small maritime feature to “sustain” inhabitants or economic life by enforcement from its sovereign owner. Equally important to note about the 1973 Romanian proposal is that these conditions were meant to apply where such islets and small islands “are situated on the continental shelf of the coast.” The Romanians were thinking almost exclusively about their own domestic maritime delimitation circumstances with the ussr when they proposed their draft article in 1973. This reading of their intent is confirmed in the second paragraph of the Romanian proposal. There, the Romanians conceded that such islets and small islands might rate a territorial sea but the “water thus determined shall not, in any event, affect marine spaces which belong to the State or to neighboring States.”98 The Romanians were attempting to formulate a general article for the text at the Conference to help their country gain an individual advantage in a specific maritime delimitation dispute with what was later, the Ukrainians. The Romanians in all their proposals had in mind the specific facts pertaining to Serpent Island and delimitation consequences. The Romanian intent is relevant but is certainly not determinative in interpreting the meaning of Article 121(3). Strictly speaking, under the Vienna Convention, what counts legally is how the final text reads, not speculations on what the Romanians, or

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in the Black Sea (Rom. v. Ukr.), 2009 i.c.j. 1 (Feb. 3), available at http:www.icj-cij.org/docket/files/132/14987.pdf. In the February 3, 2009 Judgment, the icj held that Serpent Island would have no effect on delimitation, other than generating a 12-nautical mile territorial sea. Both parties were probably satisfied with the resulting delimitation between their respective claims although it is ironic that after many years of focus by the parties on the maritime entitlement generated by Serpent Island, the icj simply side stepped the issue of its legal status for delimitation purposes. Given the flaws in the scs Award, the icj was probably wise not to define 121(3) universally given the limited data relevant in the case before it. Id. Since the icj did not choose to opine on Article 121(3), the issue was simply not decided by the Court.

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anyone else for that matter, intended in their proposed language during the negotiations. Deliberations at Third Conference Recall that the first formal session of the Third Conference held at the un Headquarters in 1973 only dealt with organizational issues as substantive preparations for the Conference had proven more difficult and time-consuming than anticipated. Thus, the formal start of the Conference in 1973 was mainly a face-saving effort by the un General Assembly to hold to a deadline mandated for the Conference to begin in 1973. The preparatory work in the form of a recommended draft text simply did not exist. The second formal session held in Caracas in 1974 marked the actual beginning of substantive Conference negotiations. As previously noted, the commencement in Caracas began with an impressive general debate as, for the first time, upwards of 150 delegations laid out their main positions on law of the sea. As it turned out, with so many participants with so much to say, the general debate in the Plenary took up most of the formal meeting time in Caracas. The Conference therefore got off to a slow start and, frankly speaking, it remained behind schedule for many years. Inadequate preparation was part of the problem but the more fundamental problem was genuine lack of agreement on many hard-core substantive maritime interests of participating States. This reality gave birth to procedural innovations designed to save time, which limited debate and deferred votes on key issues that probably would have wrecked the Conference. The formal opening of the Conference also generated many additional written proposals from delegations. These were to be considered with proposals made during the preparations in the Sea-Bed Committee. Several draft texts were proposed on the issue of defining islands, islets and other similar geographic features. As noted above, Romania, for instance, on 23 July 1974, again proposed in Caracas that only true islands, and not low tide elevations, islets (“of small size, uninhabited and without economic life”) that were located outside the territorial sea, were to have value in delimiting ocean space between neighboring States.99 The oau coalition of States, on 19 July 1974, also formally reiterated its SeaBed Committee position in Caracas on the need for a proper determination of the nature of maritime spaces for islands. As noted above, the oau States proposed size, population, location, geology and special interests of island and archipelagic States as criteria under the Regime of Islands heading.100 The 99

A/CONF.62/C.2/L.18, article 2, para. 2–5, iii unclos iii. 195. Delimitation was foremost in the Romanian thinking but the seeds for Article 121(3) were still taken as present. 100 A/CONF.62/33, Id. at 63.

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proposal for these “objective” features was predictably countered by Greece, which on 9 August 1974, submitted a draft providing that the maritime zones of all islands (left undefined) simply be treated as equivalent to land territory.101 The States urging full entitlement for all islands argued that sovereignty was indivisible and merited by islands just as much as by land territory. Romania responded to the political pressures generated by the oau group versus Greece debate by introducing another “compromise” proposal on 12 August 1974 that defined “islet” as being less than one square kilometer in area and “islands similar to islets” that were larger than one square kilometer but “which is not or cannot be inhabited (permanently) or which does not or cannot have its own economic life”. Such islets and similar islands where situated on the continental shelf or economic zone of another State, were not, in principle, intended to be used to extend the maritime space of the owning State.102 Uruguay had dutifully proposed to the Conference a draft containing the text leaving an undefined extension of maritime zones for islands exactly as was in the texts of the 1958 Conventions.103 On the day before the Caracas session ended, Second Committee Chairman Aguilar explained that the Second Committee had not achieved “all that could be desired” because “the bases necessary for arriving at specific agreements on issues that are both important and complex did not exist.”104 He stated that the officers of the Committee and the un Secretariat had, however, identified the “main trends” in 13 informal working papers more or less following the order in the subjects and issues list allocated to the Second Committee. The Main 101 A/CONF.62/C.2/L.50, Id., 227. Cf. A/Conf.62/C.2/L.30 introduced by Fiji, New Zealand, Tonga and Western Samoa. iii unclos, Third United Nations Conference on the Law of the Sea, Volume iii, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 210–211 available at http://legal .un.org/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html. 102 A/CONF.62/C.2/L.53, Id., 228. Note the disjunctive “or”, not the conjunctive “and” in this proposal. 103 A/CONF.62/C.2/L.75, Id., 23. This proposal was submitted on August 22, 1974. Due to alphabetical seating of delegations, the us delegation sat next to the delegation from Uruguay. Co-author Nordquist was informed one day early in the Caracas session that while Uruguay did not necessarily support all provisions in the 1958 Conventions, its delegation believed that these Conventions embodied widely supported key components of existing international law. Uruguay therefore formally proposed all four 1958 Conventions to the Third Conference to ensure they were formally before the Second Committee for consideration in the negotiating process. This was an intelligent, selfless act that embodied the noble spirit about the negotiations that permeated many delegations as they honestly tried in good faith to bridge national differences in order to create a universal convention. 104 A/Conf.62/C.2/L.86, Id. at 242.

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Trends Document was said to reflect the various proposals submitted by States either in the preparatory work of the Sea-Bed Committee or at the Conference itself.105 The collective work in the trends document was presented as a faithful reflection of the main substantive positions delegations had proposed. The Chairman expected the Main Trends Document to be the point of departure for future work of the Second Committee. He saw that the task ahead was to reduce the number of variants and to engage in an item-by-item review in the Second Committee with the goal of producing a single text for the draft convention.106 Chairman Aguilar emphasized that the Main Trends Document did not purport to reflect the degree of support for any formulation but he added that “the States represented here know perfectly well which are the positions that enjoy support….”107 His overall evaluation included his view on the broad outlines of the Convention and other problems that remained to be studied and resolved. He did not comment upon the regime of islands issues that would later become so important for the Venezuelan delegation that Venezuela did not ratify the Convention. The Regime of Islands item remained at the end of the 1974 Caracas session in the category of unresolved problems.108 Procedural innovations adopted and implemented in 1975 were to change that status. Main Trends in 1974 Item 19 of the Main Trends Document contained provisions 239 through 243. These provisions are not always easily found in public research as they are in appendix i attached to the Report for the un General Assembly on the first two sessions of unclos that was submitted on 17 October 1974 by the RapporteurGeneral Kenneth O. Rattray of Jamaica.109 The Regime of Islands as usual was relegated to the end of the Report, in the last Part xiii. At this stage of the negotiations, Provision 239 is the most relevant focus for the purposes of this Study. The reason is that Provision 240 dealt with islands under c­ olonial dependence, foreign domination or control while Provisions 241, 242 and 243 were procedurally deemed to deal with delimitation. As noted earlier, the highly political issues in Provision 240 were later defused by the clever procedural 105 106 107 108 109

Id. Id. Id. Id. A/CONF. 62/L.18/Rev. 1, iii unclos, Third United Nations Conference on the Law of the Sea, Volume iii, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 93–107 available at http://legal .un.org/diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html.

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device of sidetracking voting on them specifically by including them in the Final Act. The proposed articles on maritime delimitation were also pulled out of the item 19 category for separate treatment where delimitation arose in the territorial sea, eez and continental shelf parts in the Convention. The Third Conference ultimately could not resolve maritime delimitation problems by selecting either the hard and fast median lines approach advocated by about half the delegations or the flexible equitable special circumstances approach favored by the other half. The political situation was that the voting camps were about evenly split in numbers between the two approaches and the two approaches were largely incompatible. The diplomatic drafting technique employed in the Second Committee to deal with delimitation was to reduce the texts on the subject or issues to the highest level of generality that would not be publicly objected to by an overwhelming number of delegates. The eventual formulation of the text in the Convention was to apply delimitation rules in a manner that would achieve an “equitable result” as seen in Articles 15, 74, and 83. Equity is of course a vague standard, mostly found in the eye of the beholder. Regime of Islands Text in Main Trends The three formulations that remained in Provision 239 of the Main Trends Document at the close of the 1974 session at Caracas read: Regime of Islands (item 19) Provision 239 Formula A An island is a vast naturally formed area of land, surrounded by water, which is above water at high tide. Formula B An island is a vast naturally formed area of land, surrounded by water, which is above water at high tide. An islet is a smaller, naturally formed area of land, surrounded by water, which is above water at high tide. A rock is a naturally formed rocky elevation of ground, surrounded by water, which is above water at high tide. A low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide. Formula C An islet is a naturally formed elevation of land (or simply an eminence of the sea-bed) less than one square kilometer in area, surrounded by water, which is above water at high tide. An island similar to an islet is a naturally formed elevation of land (or simply an eminence of the sea-bed) surrounded by water, which is above

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water at high tide, which is more than one square kilometer but less than…square kilometers in area, which is not or cannot be inhabited (permanently) or which does not or cannot have its own economic life.110 Formula A is the verbatim text of Article 1(1) of the 27 August 1974 (recall the Caracas session ended on 29 August) proposal of fourteen African States based on a revision of their 19 July oau Declaration text.111 The revision backed by the oau actually proposed a fundamental change in the definition of islands from that contained in Article 10 of the 1958 Convention on the Territorial Sea and the Contiguous Zone by inserting the word “vast” in the text. The obvious new meaning in ordinary understanding connoted that an island had to be very large in size, perhaps enormous. The definition clearly suggested distinguishing islands by size. The problem was that the text still remained essentially ambiguous as “vast” was not defined and is obviously an imprecise word. For purposes of applying interpretation rules, we must note, however, that objective size criteria for islands were specifically rejected at the Third Conference. Formula B is also a verbatim text taken from paragraphs (1), (2), (3) and (4) of Article 1 of the 27 August 1974 revised oau proposal supported by fourteen African States. Here, textual distinctions are made between the words “island”, “islet”, “rock” and “low-tide elevation”. The reason for proposing definitional distinctions is made evident by Article 2(4) of the oau proposal that read: “A State cannot claim jurisdiction over the marine space by virtue of the sovereignty or control which it exercises over an islet, rock or low-tide elevation….”112 Some would speculate that the intent behind Formula B was to give more precision to the term “vast” by defining islets, rocks and low-tide elevations negatively; that is, as not being “vast” islands. Article 2 of the 27 August oau proposal was administratively deemed to fit in the maritime delimitation category of proposals where it was to be reviewed in the Second Committee at the 1975 (third) session in Geneva. The remarkable aspect about the selection of the textual formulations with the word “vast” modifying islands, islets, rocks and low tide elevations is that both Formula A and Formula B were radical 110 Provision 239, formula C., iii unclos, Third United Nations Conference on the Law of the Sea, Volume iii, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 140 available at http://legal.un.org/ diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html. 111 Provision 239 Formula A, id. 112 A/CONF.62/C.2/L.62/Rev.1, iii unclos, Third United Nations Conference on the Law of the Sea, Volume III, Documents of the Conference, First (New York, 3–15 December 1973) and Second (Caracas, 20 June to 29 August 1974) Sessions, 233 available at http://legal.un.org/ diplomaticconferences/lawofthesea-1982/lawofthesea-1982.html.

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departures from the lack of definitions as provided in the texts of the 1958 Conventions. Bear in mind that the majority of coastal States (about 50 in number) attending the Third Conference were parties to the Territorial Sea and Contiguous Zone and Continental Shelf Conventions. The 1958 Conventions represented the existing law for these nations. As mentioned the full text of both these conventions were formally proposed to the Second Committee. Thus, the 1958 texts were eligible to be considered for inclusion in the Main Trends Document. Yet, both Formula A and B selected for inclusion were drafted to reduce substantially the 1958 “formula” which provided maritime entitlement equivalence of islands with land territory. Formula C is the verbatim text of Article 1 of the draft articles on the definition of and the regime applicable to “islets” and “islands similar to islets” proposed by Romania on 12 August 1974.113 The selection of this proposal, like A and B, also reflected a radical departure from the existing international law in the 1958 Conventions in which there was no definition of an island. Article 2 of the Romanian proposal even attempted to include a size limitation (being careful, however, that Serpent Island would qualify being discounted as too small) providing that islets or islands similar to islets were not to be counted for extending the maritime space of coastal States. The Second Committee had been given, almost as its first document, a submission by the United Kingdom, which proposed the text of Article 10 of the 1958 Territorial Sea and the Contiguous Zone that, as repeatedly noted above, did not define “island” with a size limitation.114 What is puzzling is why Formula A and Formula B were selected by the Bureau in the Caracas session to appear in the Main Trends Document. Were they really main trends? Did the Second Committee Bureau give disproportionate weight to an oau’s proposal? By adding the word “vast” to modify the term “island”, the Bureau was supposed to have determined that these proposals represented a “main trend” at the Conference more so than the word “island” in the 1958 Conventions, which represented the existing law binding for one third of the delegates at the Conference. Perhaps an explanation of why a formula based on the 1958 Convention language was not selected as a “main trend” of the Second Committee on the Regime of Islands item lies in a widely held perception at the Third Conference about where the negotiations stood at the end of Caracas. The Second Committee Bureau did not know in 1974 that Provisions 240, 241, 242 and 243 of the 113 A/CONF.62/C.2/L.53, Id. at 228–229. 114 A/CONF.62/C.2/L.3, 3 July 1974 (United Kingdom), id. at 183. It is worth remembering that the uk and 1958 texts were identical to the first article of the proposal submitted by Fiji et al.

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Main Trends Document were to be procedurally shifted in 1975 for consideration elsewhere in the draft Convention. The net procedural effect was to leave Provision 239 pertaining to islands standing alone. The Romanian proposal defined an “islet” as less than one square kilometer (about 247 acres). The reader has probably gathered already that the co-authors believe that facts of national geography provide a more reliable guide about a State’s maritime positions than does its public rhetoric. The less than one square kilometer size criteria defining an “islet” in the final proposal of Romania in 1974 would, by definition, include Serpent Island, which is only 47 acres, thereby discounting its value in its bilateral delimitation with Ukraine. The second paragraph of Formula C defined an “island similar to an islet” as being larger than one square kilometer but “which is not or cannot be inhabited (permanently) or which does not or cannot have its own economic life.” These disqualifications were directed at delimitation (again bearing very much in mind the case of Serpent Island) and it was a stretch of its discretion in 1975 for the Second Committee Bureau to transfer these particular criteria to all “rocks” and then inject “sustainably” into the text. The term “permanently” contains the seeds of a time element without defining the all-important element of when “time” begins or ends. Significantly, the new language accommodated the aspirations of the small Pacific island States. The conclusion remains that the most credible source in the record is that the “sustaining human habitation or an economic life of its own” language in the snt text was more or less drawn from or patterned after the Romanian proposals. Particularly relevant is its compromise proposal on 12 August 1974 that included the words “uninhabited permanently” and “own economic life”. The Second Committee Bureau thus had a pretext for the proposition that a “source” for a main trend was before the Second Committee. The text in Article 121(3), however, goes far beyond what Romania intended or expressed in the text of its proposal. The text jumps up to insert a time element by injecting the words “can sustain”. This qualification encompasses future potential and depends upon circumstances, not just past or present conditions. Presumably credible evidence of a “rock’s” sustainability for human habitation is demonstrated by the presence of existing inhabitants who are able to survive over a period of time. What better evidence can be given? Likewise, “sustainability” can be demonstrated for an “economic life of its own” by a variety of existing activities during the time periods selected. Historically, uses could, of course, include using the “rock” for a long time as a base for drying fishing nets or even as a site for a satellite transmission or a relay tower. The possible economic uses that might qualify for satisfying the economic condition are really only limited by the imagination and technological or financial resources of those attempting to establish that the “rock” sustains an

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economic life of its own. The sovereign owner holding “title” to the feature will often support this demonstration. But this need not be the case. The criteria are tied to the use of the maritime feature itself and the actual owner at the selected date of evaluation may actually be irrelevant, especially when there is a dispute about sovereign ownership of the feature. The point is that the characteristic is applicable to the maritime feature regardless of ownership or possession. But still ownership is not immaterial to the status of a feature as a “rock” or an “island”. The sovereign whose island or “rock territory” is involved can and often does have an important impact on “sustainability”. Again, when does the time element pertaining to sustain apply? The text and legislative history are silent on this point. But in the context of a particular case the issue legally is presented when a case is filed and the authority to decide is granted to a judicial body by consenting States. Since the words in the 121(3) text admit of different interpretations it is predictable that advocates of various views will be tempted to insert their own values or bias into the meaning of the text. States will also predictably choose to promote pragmatic conditions based on an interpretation of legal rules most favorable for the facts of their national circumstances. In the process of interpreting treaty text, it is a matter of judgment as to the weight to be given to proposals, which were discussed openly and actively and then expressly rejected at the Conference for inclusion in Article 121. This review has shown that the size of islands/rocks, number of inhabitants, location, geological configuration and other so called “objective” factors were heatedly debated in the Second Committee. But none of these objective standards were adopted in the final text of Article 121. They cannot be credibly said to be legally derived from the Convention text or its legislative history. In fact, objective conditions were proposed and, as noted, rejected at the Third Conference. Perhaps the Bureau draftsmen faced an impossible task in attempting to find agreement on more objective criteria given the extreme diversity of opinions and unique factual situations of every island or “rock” around the world. Perhaps by simply resorting to “deliberate ambiguity” in paragraph three, the draftsmen bridged the gap and moved the Regime of Islands toward a single text as far as was possible. The draftsmen gambled that delegates would eventually give up on seeking more precise agreement on a definition of islands at the Conference, which is exactly what happened. Status of Itu/Aba as an Island or Rock under Article 121(3) There are three main international law issues pertaining to the marine entitlement of the feature Itu Aba/Taiping in this Study of the Tribunal’s Award. The

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first is with respect to sovereignty. The second is the interpretation of and/or application of Article 121 to Itu Aba/Taiping itself. The third issue is the effect the maritime entitlement of Itu Aba/Taiping ought to have had on the jurisdiction decision in the Award of the Tribunal. Sovereignty over Itu Aba/Taiping Itu Aba, also known in Chinese as Taiping Island as well as by several other names, is the largest of the naturally occurring Spratly/Nansha Islands in the scs. Today, Itu Aba/Taiping has an area of 46 hectares (110 acres) and is administered by the Taiwan Authority although formally claimed by the Sovereign States of China, the Philippines and Vietnam. The Chinese reportedly first asserted sovereignty in the modern sense over Itu Aba/Taiping when they formally objected to France’s efforts to incorporate the island into French Indochina during the 1884–1885 Sino-French war.115 The 1887 boundary treaty signed between France and the Republic of China placed the Spratly/Nansha Islands under Chinese rule. China and the Taiwan Authority have through various means including maps, consistently claimed the island of Itu Aba/Taiping up to the present day (and the start of the scs Award proceeding). The oldest relics found on Itu Aba/Taiping reportedly were pottery shards made in China during the Han dynasty (206 bc–220 ad), indicating historic China was the earliest scs discoverer. A long and complicated history took place between the earliest evidence of Chinese “discovery” and the present day occupation by the Taiwan Authority. The writers of this Study are not competent to trace this history, which is a task for Chinese history experts with access to Chinese archives. What is relevant and material to the Award to observe here is that the Philippines diplomatically recognized at the start of the scs case that the Taiwan Authority is a province of China as did the Tribunal. Accordingly, the official acts of the Taiwan Authority as a province of China with respect to sovereignty matters concerning Itu Aba/Taiping territory that are accepted by China as being legally done in its name inure as a matter of international law to China through the doctrine of “historic title”. The reason is that China is recognized by the Philippines as well as by the Tribunal as the sole, legitimate government of China. The Taiwan Authority, under the One China doctrine, is not therefore a proper subject of international law. From an international law point of view it is the claim of the sovereign (i.e. China) under international law that matters, not whether the Taiwan Authority agrees with the sovereignty of China over Itu Aba/Taiping.

115 Wu, Shicun, Solving disputes for regional cooperation and development in the south China sea: a Chinese perspective, Chandos Pub., 2013.

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Interpretation and/or Application of Article 121(3) to Itu Aba/Taiping A serious legal error was made with respect to Itu Aba/Taiping in this case. The Philippines argued throughout its presentations before the Tribunal that it was not asking the Tribunal to decide sovereignty over any feature.116 The Philippines had to argue this position because otherwise the Tribunal would not have jurisdiction in the case under Article 298 of unclos. The Philippines also repeatedly asserted in the Arbitration Hearings that it was “only” asking the Tribunal to rule on those features occupied or controlled by China, including Itu Aba/Taiping.117 Another Article 298 limitation to compulsory jurisdiction arises from “historic title.” The co-authors carefully scrutinized the legislative history from the Third Conference. The conclusion of this analysis, inter alia, that China/Taiwan’s claim indisputably “involves historic title” both with respect to China/Taiwan and Itu Aba/Taiping. While this is a critical legal doctrine for assessing the validity of the Award, limitations of space preclude our writing more on “historic title” as an independent bar to the Tribunal’s jurisdiction under Article 298. In analyzing the text of Article 121(3), recall again that there are two independent criteria for distinguishing an “island” from a “rock” in the Convention. Satisfying either “sustaining human habitation” or “economic life of their own” confers island, rather than “rock”, status under international law as expressed explicitly in the 1982 Convention. A salient legal point of interpretation in this regard is to recall that Article 121(3) is a “rock” exception to the general rule that islands are land territory entitled to claim the maritime jurisdictional zones provided for other land territory in the Convention. As an exception, the “rock” language is to be interpreted and construed restrictively so as not to cut against the general principle favoring full maritime entitlement status for islands and the rules of international law equating island entitlement with that of land territory. Importantly, the language in the third paragraph text is not limited to past habitation or economic capacity as applied to Itu Aba/Taiping, but includes its future potential or capability to “sustain human habitation or economic life of its own”. This text as discussed in its legislative history does not read that all future developments are to rely upon Mother Nature, but takes into account improvements to sustainability by humans. This means that even if Itu Aba/Taiping had not in the past or does not even presently “sustain” humans or generate its own economic life, China/Taiwan Authority (or even another 116 pca Hearings, Case No. 2013–19, 7 July 2015, p. 88 where specific reference is made to Itu Aba. See also lead Counsel stating: “The Philippines has not invited the Tribunal directly or indirectly, to adjudicate on China’s claims of sovereignty over any island or rock, or the claims of any other state.” 117 scs Award, Philippines’ Submission No. 5, supra note 50.

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State) has no Convention based prohibition to take measures to meet either of the conditions in Article 121(3). Note again that the legal evaluation of the term “sustain” begins at the time of the case filing as any other time selection in a properly constituted legal case would be completely arbitrary. The Award argues for an interpretation that would have future Tribunals assess a time before “intense modification” by humans without identifying the Convention source for this requirement. The Tribunal also fails to define “intense modification” possibly because differentiating degrees of modification with a coherent universal applicable rule is impossible. Humans have historically modified their habitat at least as far back as the invention of agriculture 23,000 years ago.118 Many places in the world would indeed be inhospitable without some level of human modification, innovation and adaptation.119 Certainly, there is not even a hint in the Convention to prevent the owners of islands from making improvements on their territory. Indeed, this is normal and expected. This interpretation of the text is confirmed in this Study by a detailed examination of the “legislative history” of Article 121(3) based on the records available from the Third Conference. The validity of this interpretation is also confirmed by the recollection of co-author Nordquist who was personally present during the negotiations in 1974, 1975 and 1976 when the Article 121 text was drafted and reviewed in formal and informal groups at the Third Conference. There may be other international scholars who put greater store in proposals that were put forward and then not adopted at the Conference. Certainly the Tribunal in the Award seems inclined toward that view. The coauthors’ judgment is that interpretive weight belongs much more to proposals that were included in the text of the binding agreement. Specifically rejected proposals ought to be accorded even less weight than ones not even considered during the unclos negotiations such as on the Award requirement for drinkable water “naturally arising”. The rules in the Vienna Convention on the Law of Treaties place primary emphasis on the text itself to help fend off subjective and ad hoc interpretations such as finding new meanings in Convention “purposes” or unsubstantiated personal ideas of “reasonableness”. An interpretation that relies on supplementary sources that contradict the text is simply legally invalid. In brief, the interpretation of a text in ordinary language usage primarily controls meaning under international law. Context may be cited to confirm textual meaning not new meanings injected by judicial decisions. The review in this Study reveals that objective criteria such as physical size, number of inhabitants, geographical location and other characteristics were 118 Ainit Snir et al., The Origin of Cultivation and Proto-Weeds, Long Before Neolithic Farming, 10 PLOS ONE 7, (2015). 119 Id.

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proposed, deliberated upon and rejected for inclusion in the text of Article 121(3). No meaningful discussion was held about water, naturally drinkable or not and no reference is made to water in the text of unclos. What was selected and approved in Article 121 is admittedly flawed text in the sense that deliberately ambiguous wording was included. Nevertheless, this deliberately ambiguous compromise text itself is what governs under international law because this was the text language finally agreed upon and adopted by the sovereign States now Party to the 1982 Convention. Recall again that the full text of Article 121(3) reads: “Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.” Regardless of what the Philippines argued at the Tribunal hearings, the Tribunal had an independent judicial duty to ensure for itself that the Philippines’ claim was “well-founded in fact and law” and the claim of the Philippines with respect to the island status of Itu Aba/Taiping was to be judged at the time of filing the case in 2013. Pertinent Characteristics of Itu Aba/Taiping in 2013 The most current and authoritative facts with respect to Itu Aba/Taiping were given on 28 January 2016 after the Head of the Taiwan Authority Ma Ying-jeou visited Itu Aba/Taiping.120 His remarks were given to 180–200 persons on the “island” in military, police, fire department, coast guard, medical services as well as various environmental protection positions located permanently on the island. He reviewed some of the history of Chinese occupation and exercises of authority over the island including the maps published in 1935 and 1947 reaffirming sovereignty over the islands and surrounding waters. While affirming that the island was an “inherent part” of the Chinese territory and waters, his government was said to enjoy such rights “in accordance with international law.”121 Ma outlined a roadmap for his South China Sea Peace Initiative including a “provisional arrangement of a practical nature,” which is a direct quote from the Convention text of Article 74(3) dealing with eez delimitations.122 Itu Aba/Taiping is no longer solely dependent for electricity on generators run by imported diesel fuel and is projected to raise its electrical 120 Remarks by President Ma on Taiping Island, Office of the President: Republic of China, 28 Jan. 2016, available at http://english.president.gov.tw/Default.aspx?tabid=491&itemid=36 616&rmid=2355. A few of the factors reported by Ma in early 2016 might have been slightly altered from the time the case was filed in 2013. 121 Id. at 2. 122 Id. See a detailed blueprint on provisional arrangement for the South China Sea suggested in Beckman, R.C. and Schofield, C.H., Defining eez claims from islands: A potential South China Sea change, Research Outline, 29 Int’l J. Marine and Coastal L. 193 (2014).

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supply to run 40% on an expanded solar power system.123 In December 2015, the renovation of the island’s wharf and the construction of a lighthouse were completed substantially aiding supply replenishment and safety of navigation.124 In November 2015, renovation of the island’s airstrip had been completed, allowing C-130 (and therefore C-47s also) transport planes to land and take off from the island. Data continued to be obtained from marine and meteorological observation stations on Itu Aba/Taiping to monitor and warn of natural disasters.125 Facilities for improved emergency rescues were being enhanced. Ma pointed out that the Taiwan Authority had now occupied the island for nearly 60 unbroken years.126 Ma noted that the Philippines had argued in the Arbitration that Itu Aba/Taiping had no fresh water or arable soil and was incapable of “human habitation”; Ma declared such fabrications were “totally wrong”.127 The hospital on Itu Aba/Taiping was staffed with two physicians, a dentist and three nurses with videoconferencing connections to hospitals in Kaohsiung. There was also a post office and a Guanyin temple on the island.128 Human habitation and economic life were further sustained on Itu Aba/ Taiping by mobile telecommunications, postal services, satellite television, air services, and ship’s services (including wharf, lighthouse, navigation facilities and related administrative services).129 The sustained human habitation on Itu Aba/Taiping as well as the many evidences of sustained economic life on the island substantiated by Ma’s recent visit establishes beyond any doubt that Itu Aba/Taiping is not merely a “rock”.130 While some of the improvements have occurred since the Philippines case was initiated, the developments can only be seen as further proving the “sustainability” of the two criteria in Article 121(3). Itu Aba/Taiping objectively meets all reasonably conceivable requirements for the definition of an “island” both with respect to interpretation and application of Article 121(3) of the Convention. The scs Award is factually flawed in its holding that the island of Itu Aba/Taiping is merely a “rock”. Case Studies and State Practice Kiribati: Kiritimati (Christmas Island) The island of Kiritimati (Christmas Island) is an interesting example of how the Tribunal’s reasoning is in conflict with State Practice and accepted norms 123 124 125 126 127 128 129 130

Id. Id. at 3. Id. Id. at 6. Id. at 7–8. Id. Id. at 8. Id.

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for sustaining human habitation and economic life with respect to islands. At Western discovery, Kiritimati was uninhabited. As early as 400 ad there may have been a small or temporary native population of Polynesian traders and settlers, who would have found the island a useful place of harbor on the long voyages from the Society Islands to Hawaii. However, by 1300 this trade route became less common and any human settlement on Kiritimati was likely abandoned by 1500. Two possible village sites and some stone structures of these early visitors have been located.131 Kiritimati was discovered by Europeans during the Spanish expedition of Hernando de Grijalva in 1537 and named Acea.132 The United States later claimed Kiritimati under the Guano Islands Act of 1856, though little actual mining of guano took place on the remote atoll. In the late 1800s, there were numerous attempts to create and maintain permanent settlements supported by business ventures (e.g. guano mining, brine shrimp culturing, and palm tree plantations), but the atoll’s remoteness and frequent droughts stymied every attempt.133 The United States formally ceded the island to the sovereign State of Kiribati in the Treaty of Tarawa, signed in 1979 and ratified in 1983. Kiritimati remains very susceptible to severe drought, especially in La Niña years. The island is located in an equatorial dry zone and in some years the annual rainfall can be as little as 177 mm (7.0 in). Therefore, the contemporary population of nearly 8,000 people is dependent upon shipments from Kiribati’s capital for potable water and food. The reef system surrounding the island is very productive, however, and supports much of the population’s nutrition.134 However, the Tribunal in its analysis explicitly stated that the only resources that should be considered when determining habitability are those located on the feature, not adjacent to it. Where is this requirement in the Convention? While the island of Kiritimati has nearly all of the limitations for human habitation identified by the Tribunal in its analysis of Itu Aba/Taiping (i.e. minimal freshwater, calcareous soil, zero agricultural potential), before this Award there was consensus in the international community that it was entitled to a 2­ 00-nm eez as demonstrated by uncontested State Practice. For decades, Kiribati has leased fishing rights within Kiritimati’s eez to foreign nations producing 131 Teeb’aki in Scott, Derek A., Republic of Kiribati. A Directory of Wetlands in Oceania, International Waterfowl and Wetlands Research Bureau, 199–228 (1993). 132 Brand, Donald D. The Pacific Basin: A History of its Geographical Explorations, The American Geographical Society, New York, 122 (1967). 133 Formerly Disputed Islands, u.s. Department of the Interior, Office of Insular Affairs. ­Archived from the original on 30 September 2007. 134 Scott, Derek A., Republic of Kiribati: A Directory of Wetlands in Oceania, International Waterfowl and Wetlands Research Bureau 199 (1993).

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an “average total annual catch of foreign purse-seine fleets [that] exceeded 180,000 tonnes between 1999 and 2008, valued at usd 153 million per year.”135 However, under the Tribunal’s interpretation of Article 121, Kiritimati would be a “rock” merely entitled to a 12 nm Territorial Sea and everything beyond 12 nm would be high seas or another nation’s eez. In actuality, this type of economic activity is exactly the los benefit Article 121 was expected to confer by supporters of Article 121 at the Third Conference. Frankly, the co-authors believe this is exactly the benefit Nandan intended in his drafting of Article 121(3). The goal of the Convention, as explained in this Study, was to further codify customary international law, which fundamental principles of international law define as opinio juris combined with State Practice. Even though the natural characteristics of Kiritimati would likely lead to its classification as an Article 121(3) “rock” under the Award’s standards, no nation has recognized any other

Figure 1.2 Map of Kiribati’s territorial holdings and associated eezs. Source: Bell JD et. al., Vulnerability of Tropical Pacific F­ isheries and Aquaculture to Climate Change: Summary for Pacific Island Countries and Territories, Secretariat of the Pacific Community 89, 89 (2011).

135 Bell JD et. al., Vulnerability of Tropical Pacific Fisheries and Aquaculture to Climate Change: Summary for Pacific Island Countries and Territories, Secretariat of the Pacific Community 89, 122 (2011).

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status than as an Article 121 island, before or after the Convention.136 The Tribunal’s interpretation of Article 121 contradicts decades of State Practice in Kiribati waters and unnecessarily calls into question the legitimacy of this small developing island nation’s collection of millions of dollars in fishery leasing agreements. Johnston Island and Atoll The Johnston Atoll was initially discovered by the Western world in 1796, but was not officially named until Captain Charles J. Johnston happened upon the four islands on 14 December 1807. The islands were used sparingly by vessels seeking refuge until the passage of the us Guano Islands Act in 1856, which granted private us citizens the right to seize islands in the name of the United States containing guano deposits. Soon after the Act was passed, American entrepreneurs and the Kingdom of Hawaii began asserting rights over the Atoll. By 1890, nearly all of the guano was mined out of the islands. More importantly for the analysis of the Award in this Study, a joint expedition, sponsored by the Department of Agriculture and the Bishop Museum of Hawaii, visited the island in 1923 to document the physical features of the land and ecology of the Atoll. The survey team included multiple Naval ships and a seaplane capable of performing aerial surveys. The surveyors and biologists spent ten days on Johnston Island, the largest of the four islands, which proved “…too short to completely explore and collect over this interesting atoll.” However, the members of the expedition did find abundant fish and marine life, sea birds, lizards, insects and three species of plants. In addition to the natural biota, the group discovered ruins of frame shacks surmised to have been used by bird poachers. The team did not have time to investigate groundwater storage, but did note that there was no evident source of fresh water. 136 Additionally, the Tribunal places substantial weight in its analysis of “human habitation” on the “natural” state of the island. The Tribunal asserts that the Convention requires “status of a feature be ascertained on the basis of its earlier, natural condition, prior to the onset of significant human modification, taking into account the best available evidence of the previous status of the high-tide features, before intensive modification.” As previously mentioned, the island of Kiritimati has records of human habitation and modification dating back to 400ad. The Convention did not require Tribunals to seek records from such an early date to confirm potential for human habitation. Further, the United States and Europe extensively altered the island through attempts at guano production, Palm Tree plantations and extensive nuclear testing in the 19th and 20th centuries. The Tribunal fails to define “intensive modification” and thus it remains unclear whether any or all of the colonizers’ activities would be sufficient under the Tribunal’s reasoning. In any event, there is no reference to the necessity for historical records either in the Article 121 text or the legislative history of the Convention. A complete “history” is of course unknowable in any event. This is the reason that the phrase “historical rights” is not found anywhere in the text of the Convention.

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The physical characteristics of Johnston Island now unquestionably qualify the island as a high-tide feature and the United States has claimed the eez surrounding the Johnston Atoll without objection since 10 March 1983.137 Under the Tribunal’s unusual interpretation of Article 121, it is unlikely that this Atoll would be considered an island entitled to a 200 nm eez, but would simply be a “rock” with a 12 nm territorial sea. Johnston Island in its “natural condition” does not contain “fresh water, food and living space and materials for human shelter” nearly to the extent as does Itu Aba/Taiping. Further, the only major industry outside of military activities that has occupied the islands has been guano mining, which the Tribunal would undoubtedly classify as a “purely extractive economic activity”138 thus disqualifying the Atoll from the “economic life of its own” exclusion.139 Clipperton Island Clipperton Island, the only atoll in the East Pacific, is seven square kilometers and is located approximately 2,500 kilometers west of Costa Rica. The atoll completely surrounds a stagnant fresh-water lagoon and other than Clipperton Rock, a 29-meter volcanic rock formation, is less than two meters high. Ferdinand Magellan originally discovered Clipperton Island for Europeans in 1521. Later the island was named after the English pirate John Clipperton. In the mid-1800s, Clipperton was rediscovered by an American guano mining company, which took possession of the island for the United States under the Guano Islands Act of 1856. In 1857, the French claimed that Clipperton Island was a part of Tahiti over us objections. However, neither country established permanent settlements leaving the door open for Mexico to establish a military outpost on the island in 1897. In 1906, the British Pacific Island Company annexed the island to begin guano mining, and built a settlement together with the Mexican government. By 1914, almost 100 men and women lived on the island and every two months, a ship from Acapulco delivered food. However, with the start of the Mexican civil war, the atoll was no longer reachable by ship, and the human inhabitants on the island were on their own. As a result, most of the inhabitants had died by the end of 1915, and the remaining were prevented from leaving by the Mexican Military Governor declaring that evacuation was unnecessary. By 1917, most of the men had died and only the lighthouse keeper was living along with 137 Proclamation 5030—Exclusive Economic Zone of the United States of America 48 fr 10605, 3 cfr, 1983. 138 South China Sea Arbitration (Philippines v. China), pca Case Repository, Case No. 2013–19, para. 500. It is unclear where the Tribunal found this condition in the Convention. 139 Johnston Island has been extensively expanded by dredging the surrounding seabed. The first reported land area was less than 50 acres.

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15 women on the island. In July 1917, three women were the only ones alive and they were picked up by the American ship ‘Yorktown’. Since the abandonment by the last Mexican settlers, the island was officially acquired by France and served briefly as a French military outpost. However, since World War ii the island has remained uninhabited and is infrequently visited by the French Navy, scientific researchers and radio enthusiasts. Clipperton Island serves as another glaring example of a maritime feature that has long been recognized by the international community as an Article 121 island entitled to a 200 nm eez and continental shelf. Yet, the island would fail the test in the Award as applied to Itu Aba/Taiping. On 3 February 1978, the French government officially created an eez around Clipperton and subsequently extended it after France’s ratification of unclos.140 The Award’s requirement that the island be capable of sustaining life without “technological advancements” would undoubtedly not meet the Tribunal’s standards based on the recorded history of the early 20th century attempt at settlement. As indicated above, the settlers were only capable of survival so long as the resupply ship returned every two months. Therefore, even though this atoll has a large freshwater lagoon,141 it would likely fall into the “too close to call” caveat into which Itu Aba/Taiping was discarded. Under the Tribunal’s methodology, it would look to its definition of history for the island, which suggests the feature is not capable of independently sustaining human habitation or an economic life of its own. Trindade Island Trindade Island is a ten square kilometer volcanic island approximately halfway between the coast of Brazil and the Mid-Atlantic Ridge. Trindade has a number of peaks, the highest of point which is Pico Desejado, which rises 620 meters above sea level. Up until the mid-18th century, the island was predominated by forest, but after the arrival of approximately 130 families of Portuguese colonists and their livestock, the indigenous trees were rendered extinct. There are competing theories as to what prompted the extinction, including natural causes (i.e. decreased rainfall, volcanic gases) and anthropogenic causes (e.g. overgrazing, logging, fire).142 Regardless of the cause, the island today is almost entirely 140 French Law No 95–1311, 21 December 1995. http://www.crwflags.com/fotw/flags/cp.html. 141 Interestingly, nine sailors were marooned on Clipperton Island in 1963 for 23 days after their ship, the MV Monarch, sank and even though they reported the lagoon water as “drinkable” they chose instead to drink coconut water. See Atoll Research Bulletin No. 94, National Academy of Sciences 8 (15 Dec. 1962). Without explanation, the Tribunal considered only the local availability of fresh water in its analysis of human habitation even though alternative hydration sources, such as coconut milk, are common on many small islands, including Itu Aba/Taiping. 142 Moreira, L., et al., Occurrence of Chelonia mydas on the Island of Trindade, Brazil, Marine Turtle Newsletter 70.2 (1995).

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barren and its primary ecological features are a nesting ground for sea turtles, seabirds and foraging for crabs. Since the failed attempt at colonization, the island was sporadically occupied off and on by various navies due its strategic geographic importance for trade and as a military outpost. After a multitude of military occupations, the island was formally ceded to Brazil by the British and today hosts 32 sailors on a permanent Brazilian Navy base on the northern shore. In the Award, the Tribunal held that habitation by military “humans” somehow did not count toward the “human habitation” condition for island status.143 The current physical characteristics of Trindade would make survival on the feature’s resources without the aid of modern technology extremely difficult if not impossible. All of the fertile soil eroded off the island after the loss of vegetation and the few natural springs have largely dried up. Furthermore, a tribunal would have a very difficult time applying the scs Award’s “intensive modification” analysis to the denuding of the island in the mid-18th century when even experts, after years of study, remain unsure whether the extinction was human induced or natural. In 2004, Brazil officially declared an eez, which included a 200 nm zone surrounding Trindade. Again, there was no objection from the international community.144 Nevertheless, under the Tribunal’s interpretation Trindade would very likely be classified as an Article 121(3) “rock” stripping Brazil of its sovereign rights over all resources beyond 12 nm of Trindade’s baseline. Effect of Itu Aba/Taiping’s Island Status on Jurisdiction The Tribunal asserts that because the Award does not deal with issues of sovereignty the ruling does not implicate Article 298’s exclusion on overlapping eez claims or maritime delimitation. The Award reads, “Nothing in the Convention prevents a Tribunal 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.”145 However, the entitlements of China, had the Tribunal found Itu Aba/ Taiping to be an island, would have gone well beyond any 12 nm territorial sea overlapping claims not just of the Philippines, but also those of Vietnam and Malaysia (see Figure 1.3). The Tribunal, in paragraph 629 of the Award on the Merits, again cites the Philippines’ submission to justify its jurisdiction. The legal status of the features 143 “[T]he 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.” scs Award, supra note 50 at para. 550. 144 Submission in Compliance with the Deposit Obligations Pursuant to the United Nations Law of the Sea (unclos), Brazil, (27 May 2004) available at http://www.un.org/depts/los/ LEGISLATIONANDTREATIES/STATEFILES/BRA.htm. 145 scs Award, supra note 50, at para. 629.

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Figure 1.3 Map depicting the officially declared eezs of Vietnam, Philippines, and Malaysia overlain with the 200 nm eez that Itu Aba/Taiping would generate if properly classified as an Article 121 “island”. Itu Aba/Taiping is one of the features claimed by China/Taiwan Authority within the Spratly Group.146 (Background Map: Google Earth Pro; eez coordinates: Marine Regions available at http:// marineregions.org/). 1

146 Deposit of lists of geographical coordinates as contained in the Declaration on the Baselines of the Territorial Sea of the People’s Republic of China of 15 May 1996. M.Z.N. 7. 1996. LOS of 5 July 1996, http://www.un.org/depts/los/LEGISLATIONANDTREATIES/ STATEFILES/CHN.htm. In its Law on the Territorial Sea and Contiguous Zone of 25 February 1992, China expressly included the Nansha (Spratly) Islands. Article 2, Law on the Territorial Sea and the Contiguous Zone of 25 February 1992 (adopted at the 24th meeting of the Standing Committee of the National People’s Congress on 25 February 1992). In its Exclusive Economic Zone and Continental Shelf Act of 26 June 1998, China’s EEZ was extended from the baselines from which the breadth of its territorial sea was measured. Exclusive Economic Zone and Continental Shelf Act (adopted at the third session of the Standing Committee of the Ninth National People’s Congress, 26 June 1998) National Legislation, DOALOS, United Nations.

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is important due to the maritime zones to which they are entitled. The Tribunal skirted the exemptions in Article 298 by taking the Philippines at its word rather than assessing the real impetus for the proceedings and the State Practice implications of the results. Were the carefully parsed words used by lawyers for the Philippines legally sufficient reasons for initiating the suit against China? The jurisdictional analysis in the Merits Award focuses on the finding that Mischief Reef and Second Thomas Shoal are low-tide elevations without entitlements to territorial seas. The Tribunal was especially keen on determining Mischief Reef and Second Thomas Shoal as low-tide elevations because they unquestionably lie within the Philippines’ declared 200 nm eez. The Award justifies jurisdiction in less than two pages of the 500-page decision: The Tribunal has also now held (see paragraph 626 above) that neither Itu Aba, nor any other high-tide feature in the Spratly Islands, is a fully entitled island for the purposes of Article 121 of the Convention. As such, pursuant to the operation of Article 121(3) of the Convention, these features are legally considered to be “rocks” and to generate no exclusive economic zone or continental shelf. [Emphasis added] The Tribunal also notes that there is no maritime feature that is above water at high tide in its natural condition and that is located within 12 nautical miles of either Mischief Reef or Second Thomas Shoal. From these conclusions, it follows that there exists no legal basis for any entitlement by China to maritime zones in the area of Mischief Reef or Second Thomas Shoal. Accordingly, there is no situation of overlapping entitlements that would call for the application of Articles 15, 74, or 83 to delimit the overlap. Because no delimitation is required—or, indeed, even possible—there is no possible basis for the application of the exception to jurisdiction in Article 298(1)(a)(i).147 The Tribunal fails to recognize, however, that delimitation is required not only for continental shelf and eez entitlements, but also for territorial seas and contiguous zones.148 Had the Tribunal considered all overlapping maritime zones under 147 scs Award, supra note 50, at para. 632–633. 148 Contiguous Zone delimitation is also involved, which is especially important in the context of underwater cultural heritage (i.e. shipwrecks) as Article 303 extends coastal State jurisdiction in the case of objects of “an archeological and historic nature” out to 24 nm. unclos, Art. 303. The island area in question has been fraught with navigational hazards for centuries and there is a real possibility of shipwreck ownership disputes due to overlapping contiguous zones.

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unclos it could not have accepted jurisdiction over the case as the territorial sea of the high-tide features of Loaita Island (Philippines) and Itu Aba/Taiping (China/Taiwan Authority) overlap significantly (see Figure  1.3). Furthermore, even though Itu Aba/Taiping is seaward of the Philippines’ 200 nm eez claim,

Figure 1.4 Territorial seas generated by the claimed high tide features in the Spratly/Nansha Group as well as the eez declared by the Philippines. (Background Map: Google Earth Pro).

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the territorial sea that Itu Aba/Taiping is entitled to even as a “rock” overlaps with that claim. Accordingly, on multiple fronts, even applying the Tribunal’s classification of Itu Aba/Taiping as a “rock”, the maritime zones of the two parties to the dispute (as well as Vietnam) overlap considerably. As a result, this dispute is undoubtedly excepted from compulsory dispute settlement pursuant to Article 298 as it “concern[s] the interpretation or application of articles 15 [(Territorial Sea Delimitation)], 74 [(eez Delimitation)]….” (see Figure 1.4).149 The Tribunal’s admission that the ruling on the merits directly impacts whether the Tribunal had jurisdiction is simultaneously an admission that the dispute “concerned maritime delimitation” and thus should have been exempted from compulsory jurisdiction under Article 298. Indisputable facts clearly demonstrate that the case concerns multiple disputed maritime areas. By not carefully adhering to the text in the Convention the Award undermines the very Convention it sought to strengthen. The Tribunal’s narrow interpretation of Article 298’s compulsory arbitration exemptions, if followed by future arbitral tribunals, would discourage compliance among Member States and seriously impair the possibility of the United States ratifying unclos.150 Conclusion The Award in the South China Sea case falters when it diverts from adherence to the text of the Convention. The Regime of Islands text was carefully scrutinized and reviewed at the Third Conference as detailed in this Study. The text that survived intact as first drafted in 1975 was an imperfect compromise, but a compromise nevertheless ultimately adopted by the Conference. Article 298 was also primarily a political compromise between those States that tended to favor compulsory dispute settlement as a residual rule for virtually all issues and those that would not agree to empower third parties to judge sea boundary disputes, military activities or second guess coastal State enforcement actions in the eez. Another political compromise was served by 121(3) which papered over the differences between the geographically disadvantaged/landlocked States and developing mid ocean island States. The Tribunal in the Award took on these political determinations when it ought to have 149 unclos, Article 298(1)(a)(i). 150 The u.s. Constitution requires approval by a 2/3 vote of the us Senate for the us to accede to the Convention. With the risk of losing 200 nm jurisdiction from many of its mid oceanic island territories in the Pacific (some one million square nautical miles) the prospects of approval may be fatal for us accession to the Convention. The legal and political fallout from the Award will likely be greater than the Tribunal anticipated.

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started with just the imperfect compromise text as written in the Convention. The Tribunal unconsciously may have been trying to recover ground lost during the Third Conference negotiations for the geographically disadvantaged/ landlocked States group, which included Germany, the Netherlands, Poland and Singapore.151 Following years of intense and unsuccessful negotiations, imperfect wording with deliberate ambiguities was included in the final text of the Convention and that is what Article 121 contains. The working premise at the end for largely exhausted delegates at the Third Conference was that imperfect solutions were better than no solutions at all. The reality was the necessity to reach the goal of a consensus agreement. For example, there really was no perfect middle ground between those States that wanted a median line solution for all islands involved in delimitation disputes and those that wanted “special circumstances” to achieve their perceived equitable result. The resolution by the Tribunal in the Award is, unfortunately, no improvement on the actual Convention text adopted by the delegates to the Third Conference. By not adequately assessing State Practice with respect to Article 121(3) the Tribunal misjudges the positive impact the Award would otherwise engender. Confusion not clarity was the general result for Article 121(3). Equally serious, the Award does not comport with the compromise text found in Article 298, which exempts a few highly political categories of disputes from compulsory third party adjudication in exchange for a long listing of residual resort to compulsory dispute settlement for less sensitive matters. One important point to remember, however, is that the Convention text as written still governs while the Tribunal’s decision is directly circumscribed by Article 296(2) which reads: “Any such decision shall have no binding force except between the parties and in respect of that particular dispute.” The Tribunal treated China as a “party” despite its vigorous disclaimers, which made it abundantly clear that China would not accept the Tribunal’s decision. This was a very serious mistake in the Award. It remains to be seen whether even the new Philippine government will accept the decision as such. Political decisions are subject to political changes. What is certain is there will be no enforced compliance of the Award’s interpretation with respect to the regime of islands. When all is said and done, the legal effect of the 500-page Award with respect to islands is likely to be more honored in the breach than in international acceptance. The co-authors believe, for reasons explained in this Study, that it is

151 See Koh and Jayakumar, the Negotiating Process of unclos iii, i Virginia Commentary 72–73 (1985).

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unrealistic to expect widespread repudiation of decades of unprotested State Practice relevant to the regime of islands throughout the world’s oceans. The co-authors’ hope is that in the future the Convention text as found in the Convention will be interpreted and applied in State Practice as intended. In addition, the co-authors hope that future dispute settlement efforts will treat the Article 121 interpretation in the Award as a misguided precedent and that the dispute settlement provisions in the Convention will hereafter be honored as originally agreed. The co-authors believe that future tribunals are likely to interpret Article 121 in accordance with the Convention text where jurisdictional pressures surrounding a dispute do not lead to over-reaching political determinations for procedural reasons. Like it or not, sovereign States do not follow rules with which they fundamentally disagree. We must remember that under the un Charter international enforcement for the Rule of Law in the end is solely entrusted to the Security Council. And its veto is intact. Still, Part xv of the Convention remains a vital mechanism for the peaceful settlement of disputes throughout the world and adherence to the Convention is the best hope for the furtherance of the Rule of Law in the oceans.

chapter 2

Potential Global Economic Impacts of Ocean Acidification Stephen A. Macko, Christina Fantasia1 and Guifang ( Julia) XUE2 Abstract The addition of massive amounts of carbon dioxide to the atmosphere and oceans as a result of anthropogenic emissions from fossil fuel use, is changing the ocean chemistry by increasing acidity while lowering the ocean pH. Acidification influence on calcareous organisms at primary production levels could lead to catastrophic effects on higher organisms of food chains. The ocean influences all activities on Earth, being a source of nutrition and energy while buffering climate. Fisheries, the source of 16% of human nutrition, are already in a state of near collapse for some species owing to overfishing and mismanagement of a sustainable infrastructure. The modification of the pH of this ecosystem will add further stress to the lifecycles of marine organisms and will likely impact the declining fisheries harvests even further. Impacts on larval stages of shellfish, and the reef-building corals add even more to the complexity of the effects of “the other carbon dioxide problem” of acidification. We are only in the initial stages in the evaluation of the potential economic losses resulting from the lower pH, which are likely to include a significant portion of the multi-billion dollar u.s. fishery harvest. Projections for the global economic impacts of ocean acidification (oa) are being attempted by combining economic models with ecosystem ones, and including the observations derived from laboratory experiments, suggest that the global impact may exceed billions of dollars.

1 Dr. Macko is a professor of geosciences and Ms. Fantasia is a doctoral student at the Department of Environmental Sciences, University of Virginia, Charlottesville, va, usa. Ms. Fantasia is partially supported by a grant to the Virginia Coast Reserve – lter from the National Science Foundation. 2 KoGuan Law School, Shanghai Jiao Tong University, Shanghai, China.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_003

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Introduction

Ocean Acidification Arising from Increased Carbon Dioxide Emissions: The “Other Carbon Dioxide Problem” Carbon dioxide levels in the atmosphere have now reached over 400ppm, and did not seasonally adjust to lower than 400ppm in 2016 for the first time in the recent history of the planet. These levels are more than 40% above the preindustrial levels of carbon dioxide and are a direct consequence of the increased levels of carbon dioxide emissions by human activities including the burning of fossil fuels (igbp, ioc, scor, 2013; National Academy of Sciences 2008A; 2008B). With the increased atmospheric concentration of carbon dioxide have come increased levels of dissolved carbon dioxide in the ocean as marine waters scavenge the gas out of the atmosphere thus increasing the amount dissolved in the ocean (Caldeira and Wickett, 2003). Over the past 100 years, the oceans have absorbed about one third of the carbon dioxide emitted by anthropogenic sources. This scavenging of the gaseous carbon dioxide can have great and predictable responses in the ocean water chemistry, affecting carbonate ion concentrations, calcite and aragonite mineral saturation levels and eventually influencing the pH of the ocean water (Figure 2.1). The ocean

Figure 2.1 Chemical processes involved in Ocean Acidification. Figure courtesy of nerc and the uk Ocean Acidification Program.

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carbon cycle involves two forms of carbon: organic carbon and inorganic carbon. The inorganic carbon cycle is particularly relevant when discussing ocean acidification for it includes the many forms of dissolved CO2 (Schubert et al. 2016). When CO2 dissolves, it reacts with water to form ions from the dissolved carbon dioxide: carbonic acid (H2CO3), bicarbonate (HCO3−) and carbonate (CO32−). The relative abundance of these carbon species depends on factors such as seawater temperature and alkalinity (Tyrrell, 2008). Although the natural absorption of CO2 by the World’s oceans has helped mitigate the atmospheric climatic effects of anthropogenic emissions of CO2, it is believed that increased levels in the ocean have caused a decrease in pH of approximately 0.15 units on the pH scale (Doney, 2006), or a 30% increase in acidity since this scale is logarithmic. This increase will likely have negative consequences, primarily for oceanic calcifying organisms (Wittmann et al. 2013). These span the food chain from autotrophs to heterotrophs and include organisms such as coccolithophores, corals, foraminifera, echinoderms, crustaceans and molluscs. The “skeletons” of these organisms are composed of calcite and aragonite (mineral forms of calcium carbonate) and are stable in surface waters since the carbonate ion is at supersaturating concentrations. However, as ocean pH falls farther, so does the concentration of this ion, and when carbonate becomes under-saturated, structures made of calcium carbonate are vulnerable to dissolution (Feely et al. 2004). The ocean is approaching pH levels not seen in millions of years. Increasing ocean acidity will affect a vast majority of marine life (either directly or indirectly), but some of the first to feel the effects are shellfish, such as oysters. The “slight” decrease of 0.1 units of pH has adverse repercussions on calcifiers. Acidification results in the water becoming unstable for calcium carbonate minerals that shellfish produce to make their shells. Without their protective shells, oysters are vulnerable and simply cannot live. Although the corrosion of their defensive shell seems enough to rapidly increase their death rate, the devastation of oysters from acidification goes even further (Waldbusser et al. 2010). An important aspect of this “other carbon dioxide problem” is that, unlike models of climatic warming which are based on complex models of many forcings and feedbacks, heightened acidity, or lower pH of the ocean, it is fairly predictable. The mechanisms for increasing acidity are well-established, physical chemical processes: increasing of carbon dioxide in the atmosphere will increase the amount dissolved in the ocean (Figure 2.2). The pH of the ocean is dependent on the amount of the dissolved CO2. The “unknowns” are simply the levels that atmospheric carbon dioxide will reach, and the rate at which the surface ocean attains equilibrium with that level. As fossil fuels continue to contribute carbon dioxide to the atmosphere, the pH of the ocean will continue to decline.

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Figure 2.2 Correlation between a rising atmospheric concentration of carbon dioxide with an increase in the concentration of carbon dioxide dissolved in seawater. Note seawater pH decreases since it is a negative logarithm function of the increasing carbon dioxide concentration. Figure courtesy of the National Oceanic and Atmospheric Administration.

Most studies have found that coccolithophores, a type of planktonic algae, coralline algae, corals, shellfish, foraminifera, and pteropods all experience reduced calcification or increased dissolution under lower pH or elevated CO2 (Raven et al. 2005). However, a few studies have suggested that with ocean acidification, the direction of the response, enhanced or declining, varies between species. While the full ecological consequences of these changes in calcification are still uncertain, it appears likely that many calcifying species will be adversely affected. Lower pH also appears to negatively impact non-calcifying larvae during planktonic stages, affecting hardening of chitin and resulting in increased mortality. Aside from calcification stress, organisms may suffer other adverse effects, either directly as reproductive or physiological effects, including CO2-induced acidification of body fluids, or indirectly through negative impacts on food resources. With diminished calcifying planktonic organisms, the entire food resource may be disrupted, with a cascading effect up the food chain, should no other primary food source be readily available (Kleypas et al. 2006). A change in any part of the food web may have consequences on the rest of the food

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web, ocean biogeochemistry and the whole ecosystem. Such a modification has already been observed in the Antarctic: in the Southern Ocean globec study with diminishing krill, predators of krill have turned to alternate foods, with associated potential loss of energy from longer food chains or foods not supplying appropriate levels of essential biochemical nutrients. These more acidic conditions would hinder growth of calcium carbonate shells and skeletons by many other marine plants and animals. Ocean acidification (oa) may also force some organisms to reallocate metabolic energy away from feeding and reproduction in order to maintain internal cell pH. It has even been suggested that oa will alter the acoustic properties of seawater, allowing sound to propagate farther, increasing ocean noise and impacting animals that use sound for echolocation or communication. However, as with calcification, as yet there is not a full understanding of these processes in marine organisms or ecosystems. Leaving aside direct biological effects, it is expected that ocean acidification in the future will lead to a significant decrease in the burial of carbonate sediments for several centuries, and even the dissolution of existing carbonate sediments (Ridgewell et al. 2007; Turley 2008; Turley and Boot 2011). Inclusion of biological effects suggests that the ecosystem we know as the World’s Ocean, an environment that provides one sixth of the protein consumed by human, is dramatically changing. Many thousands of species of marine organisms will be affected directly by acidity, others by modification of the food chains on which they depend. At the extreme, large numbers of those species could be lost. Ocean acidification has been seen to destroy ecosystems for marine life and the detrimental impacts are evident when looking at oysters. However, it is still not clear how capable other carbonate organisms will be in responding to the heightened acidity. Some organisms may have a higher resilience against a rise in pH, and therefore, may still thrive at least for a while. Some coral reefs in the Western Pacific suggest that some calcifiers may be able to adapt. On Palau in the Western Pacific there presently exists high acidification, low aragonite saturation and yet, from all appearances, a stable coral reef. Despite low pH, carbonate, and aragonite, coral reefs at Palau show high coral calcification, diversity, and cover. Calcification in different areas of this reef are shown to be comparable to reefs with both high and low calcification rates, demonstrating that even under the stress induced by these conditions, calcification can occur for at least one of the reef building species (Shamberger et al. 2014). Similar studies on the resilience of other reefs around the globe are also being conducted, including studies in the Eastern Tropical Pacific, Hawaii and near volcanic vents. Studies in Eastern Tropical Pacific reefs confirmed

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a general­consensus that there would be reduced resilience of coral reefs in response to increasing carbon dioxide concentration. The Eastern Tropical Pacific reefs are in zones of upwelling with high CO2 and nutrient concentrations. However, research found that there was an abnormally low saturation of carbonate in this ecosystem, and as a result, these reefs would be more susceptible to bioerosion (Manzello et al. 2008). A further consequence of oa will be an impact on humans through declining fish harvests resulting in diminishing captures for nutrition (Future Ocean 2013A; 2013B). Sixteen percent of human nutrition comes from ocean fisheries. Lower revenues can be projected from captures of shellfish or finfish as well as associated habitat losses, including that which results in ecotourism benefits, in areas like coral reefs. A study of us commercial fisheries (Cooley and Doney, 2009) attempted to constrain the economic effects of oa using anticipated increases in atmospheric carbon dioxide. The annual domestic commercial harvest of molluscs alone could ultimately be impacted sufficiently to lower revenues by a billion dollars, while the global impact could reach many times that amount. At the present time, an assessment is underway on the current statistical tools, mathematical models, and experimental designs available for studying ocean acidification and how it may affect future economies and commercially important species. Previously, there were economic models and biological models, but very few bio-economic models (Hilmi et al., 2013). Recently two economic models have been modified to incorporate biological data into a new dual framework: the Social Welfare Analysis (swa) and the Information B model. The swa is for data with monetary values that show how marine ecosystems may best benefit society. Information B is being used for nonmonetary data that may be quantified in a different manner or potentially only qualitatively (Hilmi et al., 2013). Previously, few studies have been available except initial studies regarding single species over shorter time frames, with a large amount of extrapolation (Hilmi et al., 2013). As a result, there is a need to study carbon dynamics within estuaries and coastal systems as well as determining specific impacts on commercially fished species. Additionally, more detailed information is needed on the production and consumption of market and non-market goods that are affected by oa for swa and other future models to increase in accuracy (Hilmi et al., 2013). Currently, the research is only beginning to understand and evaluate the complexities involved; models detailing human activities changing as a result of oa and end-to-end model of oa impacts are also required. Some models have been developed which are bringing out integrating economics and biological principles. Public interest and funding are rising, with calls for more research in nearly every new oa publication. Clearly, newer

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models have more information and data to work with, such as one recent model using the decision theory approach to immediately assist fisheries’ responses to oa (Seijo et al., 2016). The support framework for this model includes data from the recent Intergovernmental Panel on Climate Change (ipcc 2013) pH scenarios and new findings on species’ responses to oa, and economic data regarding various countries’ reliance on fishery revenues. Several pH scenarios have been tested with fish of varying longevity and oa sensitivities, with the results showing significant impacts on economies as well as fish populations going forward to 2100 (Seijo et al., 2016). Although high variance between species was found in their literature review, the findings show that despite this wide margin, negative consequences are predicted for most species. Therefore, fishery management plans should immediately be in place to reduce fishing pressures on stocks to increase their survival and sustainability (Seijo et al., 2016). The value of detailed modeling has not been applied to local environments, leaving that to other studies, while demonstrating that bio-economic models can be highly valuable tools for assessing oa and its ramifications. Recently other research reports have specifically evaluated regional impacts using a variety of methods in places such as the Mediterranean, Europe, the United States and Canada, Australia, and Asia-Pacific.

Local Economic Impacts

Mediterranean: Within this historic region, both aquaculture and capture fisheries are present, with aquaculture concentrated in northern Mediterranean countries and artisanal capture fisheries primarily located in the southern countries. From this one small sea is derived 2% of the world’s economic value from fisheries, with its aquaculture alone quadrupling in the last decade. Aquaculture employs 123,000 individuals, with fisheries employing 250,000, and secondary sectors employ another 210,000 individuals. Pelagic fishes compose 53% of capture fishery landings, with aquaculture primarily harvesting fish and molluscs (Lacoue-Labarthe et al., 2016). Currently pelagic species harvested such as sardines and anchovies have unknown responses to oa. However, other fishes have shown some behavioral and physiological changes (Heuer and Grosell, 2014). Some tropical and temperate fishes were observed to have otolith enlargement with increased carbon dioxide, a universal bone composed of aragonite that is important for orientation and sensing acceleration (Haigh et al., 2015). As a system, the Mediterranean is nutrient poor with wide seasonal variations in acidity. Anthropogenic carbon dioxide absorbing into the sea is much higher than similar latitudes due to specific circulation patterns, temperatures,

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and high alkalinity. Currently the Mediterranean is experiencing warmer water temperatures that has increased mortality in mussels, sponges, corals, and the early life stages of several species (Lacoue-Labarthe et al., 2016). Disease susceptibility is also expected to increase as pathogens generally thrive in warmer waters and species distribution will likely shift. Experts anticipate the combination of oa and warming waters (Lacoue-Labarthe et al., 2016; Weatherdon et al., 2015) will increase the negative impacts of each in the highly valued mollusc and red coral industries, as well as severely affect subsistence fishing. Beyond those direct economic effects, seafood nutritional content may decrease and harmful algal blooms are expected to increase, further reducing mollusc harvests (Lacoue-Labarthe et al., 2016). In addition to being an important ecosystem for fisheries, coral reefs are an important source for jewelry sales, recreation, and tourism within the Mediterranean. Reefs are expected to significantly decline with increased acidity (Weatherdon et al., 2015; Lacoue-Labarthe et al., 2016; Rodrigues et al., 2013). In some areas, over-exploitation is also occurring despite the reefs’ sensitivity to oa and declines are already established. Over-exploitation is only expected to worsen the state of the reefs. Red coral reefs are also important habitat as nurseries for various fish species, further emphasizing their importance in the region. Using a framework utilizing the expected magnitude of oa and the values of current fisheries, recreation/tourism, and red coral extraction, it has been concluded that each of these uses will be strongly affected (Rodrigues et al., 2013). Although each part of the Mediterranean will suffer economic losses in the various market sectors mentioned, the northern region is expected to suffer more. The northern Mediterranean harvests more sensitive fishes that are more susceptible to acidification compared to hardier fishes harvested in the south, such as carp and tilapia (Weatherdon et al., 2015). Europe: Higher latitudinal studies show increased negative consequences for places such as the northern United Kingdom and Norway. In 2015, uk calcifying shellfish harvests were worth £302 million, or 50% of total marine fisheries value, with shellfish aquaculture contributing another £33 million. Pinnegar et al. (2015) used three economic models to determine outcomes from increased acidity to their waters and found that a Net Present Value (npv) approach determined the losses to be over £954 million by 2100 with a high emission scenario. When income changes and market demand are also considered using a Partial Equilibrium model, losses were estimated to be five times higher by 2100. Wales and Northern Ireland rely heavily on shellfish capture fisheries and aquaculture and therefore will be heavily affected, but absolute losses in revenue will be the greatest in the fisheries of Scotland. Annually, npv losses

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were estimated between two extremes: low emissions with low sensitivity­and high emissions with high sensitivity, with losses spanning from £1.4 million to £9.1 million. The study concluded with a General Equilibrium model showing systematic feedbacks throughout the economy, with fishery revenue losses negatively impacting gdp, employment, manufacturing, and services sectors. Although some positive impacts were seen on tax revenue and government expenditure, fishery losses would affect domestic trade balance as well as world trade balances (Pinnegar et al., 2015). In Norway, a case study was made on Norwegian coastal cod (Voss et al., 2015), a fishery with wide distributions, significant commercial importance, and high exploitation that has already experienced some local stock collapses. Most of the region’s fisheries are small-scale with traditional methods, resulting in a system less able to withstand shocks. Other laboratory studies have shown severe tissue damage to early life stages with increased acidity (Frommel et al., 2012), therefore making this species an ideal candidate for use in an ecological-economic model (Voss et al., 2015). This model evaluated management options at present day, medium, and high acidity levels with associated reduced larval recruitment rates. Retaining fish at recent population levels is the first management option (1), with optimized management adjusting to status quo acidity levels the second option (2), or optimal adaptation of management to acidification in the region as the third option (3). The business as usual scenario, or option (1), shows harvest, profits, and spawning stock biomass decrease with increasing oa. By 1800 umol atmospheric CO2, fisheries turn unprofitable and if CO2 levels continue to increase, stock collapses. Using option (2) with present day CO2 levels, stocks may rebuild, harvests will be reduced slightly, but profits could increase to $194 million compared with option (1). When medium CO2 levels are used, stock size, harvest, and profits would decrease slightly. Under high CO2 conditions, the measures are not enough and the stock will collapse. Using the final option (3), stocks are stabilized up to 4200 umol atmospheric CO2, but harvests are small and profits are low (Voss et al., 2015). The authors point out their model is unable to account for all of the feedbacks and variables yet unknown in this stock’s system and explain they cannot make predictions with the model, only give examples of potential scenarios that are very likely for small-scale fisheries. North America: In the Northeast Pacific, upwelling, low alkalinity, and other natural environmental factors create lower than average acidic conditions, with some areas already under-saturated with aragonite, the form of calcite most commonly incorporated into species’ shells. Current seasonal variations further decrease the saturation horizon and reduce acidity during the summer months (Mathis et al., 2015).

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Approximately 50% of the total us fisheries catch is derived from Alaska with a wholesale value of $4.6 billion dollars and employment of around 90,000 full time workers. Sport and personal fishing supports an additional 16,000 jobs and garners $1.4 billion in revenue. Half of Alaska’s tourism industry, $300 million, is from fish tourism, and 17% of its population depend on subsistence fishing. Fishing activities are part of everyday life for 95% of the population and 83% harvest fishes (Mathis et al., 2015). In rural areas such as in the Aleutian islands, most of their nutrition stems from mollusc harvests. These regions are especially susceptible to oa due to anticipated rapid increases in acidity, their reliance on subsistence fishing and harvests, lower incomes, higher food prices, and paucity of job diversity. Other regions of Alaska are also vulnerable to changes in acidity, but southern Alaska ranks highest in a vulnerability scoring (Mathis et al., 2015). One of the largest fisheries in Alaska is the red king crab fishery with $115 million of revenue every year (Punt et al., 2014). Prior research shows their early life stages are negatively impacted by increased acidity (Long et al., 2013), making this species ideal for bio-economic modeling. The model used here, the Model of Intermediate Complexity for Ecosystem assessments (mice) shows that harvest yields and profits for this species are expected to slowly decline with increasing acidity for the next few decades and after 2050 they will decline more sharply. The direct monetary loss per year is anticipated to be tens of millions of dollars, but the indirect losses are expected to be much greater, although this study did not quantify those losses. Further study is required to substantiate their work and to account for other variables in the models (Punt et al., 2014). British Columbia also greatly contributes to its nation’s gdp, with over cand$650 million from their fisheries and aquaculture. Breaking this down, around 50% is from recreational fishing of salmon and Pacific Halibut, 15% from capture fisheries, and 10% from aquaculture. Capture fishery has steadily declined but aquaculture has tripled in size over the past few years (Haigh et al., 2015). Tourism is partially included in those numbers through sport fishing and is primarily considered separately. As a whole, the salmon and mollusc fisheries are expected to decline due to oa, with repercussions on ecotourism and fisheries. No quantitative studies have yet been conducted in the region, but Haigh et al. thoroughly reviewed the literature on each phyla and determined based on individual case studies that wide swaths of species would be negatively impacted in the region, with some of those species commercially important (Haigh et al., 2015). Farther south in the United States, molluscs comprised 19% of the primary value of commercial harvests in 2007, crustaceans yielded 30%, and finfish

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were 50% (Ainsworth et al. 2011). Of those finfish, 24% directly prey on calcifiers (Cooley and Doney, 2009). Cooley and Doney (2009) used the npv model to forecast potential results through 2050 and found that molluscs alone could sustain losses between $1.7–$10 billion between 2009–2050. This is a conservative figure that only focuses on the mollusc industry and does not account for harmful algal blooms that are anticipated to increase due to oa, nor does it account for trophic cascades from population losses in molluscs or other species (Cooley and Doney, 2009). Australia: A qualitative assessment of the prawn and scallop fisheries of Australia found the value of the two industries to equal au$121 million and au$2 million, respectively. Not enough information is available regarding the response of early life stages in prawns, but long-term exposure to acidified conditions with increased temperatures result in reduced growth, survival, and swimming ability for prawns (Richards et al., 2015). There is also little information regarding scallop responses, although earlier studies cited in Richards et al. (2015) show these organisms typically exhibit negative responses and are poor ion regulators, making them more sensitive to changes that result from increasing acidity. It was noted that co-stressors exist such as a strengthening of the East Australian Current and changes in predator-prey interactions due to oa. Some suggest the Queensland prawns show lower sensitivity to oa and have high phenotypic diversity. This should assist in natural adaptation, although there are few studies to date on the prawns. However, the scallop industry is based entirely on one species of limited range that requires certain ocean circulation for larvae distribution and settlement. It has also been suggested moving all life stages to controlled aquaculture environments in order to maintain the industry (Richards et al., 2015). Such a solution would be both expensive and difficult. Caribbean Islands and Asia-Pacific: Coral reef ecosystem services such as shoreline protection are roughly valued at $9 billion total worldwide (Winner, 2013). In countries such as Trinidad and Tobago, reefs line the island and tourism directly stemming from the reefs composed 15% of the gdp in 2006. When indirect income from tourism is included, one-third of the economy of Tobago relies on its reef system (Winner 2013). As corals are known to be seriously affected by the calcifying organisms by oa, such heavy reliance on a fragile ecosystem bodes ill for their economic future. In the Caribbean, Trinidad and Tobago is one of many small island countries to have a tourism based economy that rests on the shoulders of coral reefs. In the Asia-Pacific, pH is expected to decrease by 0.3 units, which is expected to reduce aragonite saturation by 50% (Heenan et al., 2015). These will likely result in shifts with distribution and abundance, forcing fishermen

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to travel to more distant fishing grounds and reducing their net income due to increased travel costs. Losses in production are anticipated to increase malnutrition throughout the region, where 50–90% of dietary animal protein is derived from fish. Using a qualitative Ecosystems Approach to Fisheries Management (eafm), the region is classified as highly sensitive to CO2 emissions with low to moderate adaptive capacity (Heenan et al., 2015). Beyond dietary needs, Polynesia employs thousands of individuals on remote atolls to collect valuable black pearls. With increased oa reducing populations of pearl producing oysters, thousands of people with little employment alternatives will lose a large percentage of their annual income thereby reducing local revenue in those distant localities (Weatherdon et al., 2015).

Global Economic Impacts

Fisheries and shoreline protection from coral reefs cumulate into a worth of approximately $30 billion annually (Winner, 2013). Within this, capture fisheries produce 80–85 million tons/yr and the fastest growing food sector of aquaculture grows at least 8% annually (fao, 2012; iucn, 2015). Of those capture fishes, the top ten are finfish species (fao, 2012; iucn, 2015), with this class of fish showing altered predator-prey interactions and impaired locomotion under acidified conditions (Haigh et al., 2015). This large industry directly supports 120 million people, with 35 million of those classified as fishermen and 96% of the total concentrated in developing countries. Over 90% of those fishermen are in small-scale fisheries, known to absorb fewer shocks than largescale fisheries (iucn, 2015). Without including socioeconomic benefits of subsistence and recreational fishing, commercial fisheries alone produce a global gdp of $274 billion annually. These numbers are despite the fact that over 50% of marine stocks are over-exploited and only include reporting oecn countries (iucn, 2015). Over-exploited stocks may be larger than this, but unfortunately no data were available for all countries. Reduced stock sizes increases the chances for oa impacts. Although there are dozens of case studies showing the plausibility of recuperating depleted stocks, most require government intervention (iucn, 2015), which is often only possible with a strong and wealthy centralized government that may not be equally available to oa susceptible countries. Focusing solely on global mollusc fishery harvests, 16 million metric tons were harvested in 2007 that was worth $15 billion. These were unevenly distributed across the nations, with nutritional dependence clearly linked to culture and geography. Island and Pacific nations derive a significant portion of

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their gdp from mollusc exports. Many of these are poverty stricken nations with a fair amount of their population are already malnourished (Cooley et al., 2012). Using a Vulnerability Assessment Approach (vaa) to evaluate the impacts of oa and human population growth on future per capita mollusc protein availability worldwide shows greatest vulnerability in developing countries. Those most susceptible to harvest declines were Senegal, Madagascar, Gambia, Mozambique, and Haiti. Those vulnerable to import declines were the Solomon Islands, Jamaica, Belize, the Cook Islands, and Sudan (Cooley et al., 2012). Although there are many more factors at play potentially skewing the results of the vaa, general trends show aragonite saturation decreasing the most in the above geographic regions while simultaneously mollusc consumption is increasing yearly by a factor of three. Molluscs are some of the most vulnerable to oa, but increased protein demands in these countries force them to rely more heavily on a delicate organism (Cooley et al., 2012). Expanding the view to encompass capture fisheries as a whole, there is high confidence in the AR5 prediction that calcifiers will be negatively affected and therefore impact their fisheries’ harvests. Trophic cascades are expected as sensitivity affects differing species, with a large proportion of risk in the tropics. The ipcc predicts the Caribbean will start experiencing net revenue losses in 2015 from a combination of oa and temperature increasing (Weatherdon et al., 2015). By 2050, this synergy will likely result in losses of 10% to their net present value in the uk while the Mediterranean loses red corals and sponges. Corrosion from increased acidity will also likely increase maintenance costs for various structures and Arctic Indigenous peoples’ culture will be significantly altered (Weatherdon et al., 2015). Effects on aquaculture are more varied with location, species, and method. Regions expected to have higher vulnerability are Asia, the Caribbean, and Latin America, along with the southern Mediterranean and Polynesia (Weatherdon, et al., 2015). Beyond capture fisheries and aquaculture, the ocean provides less quantifiable benefits related to coastal tourism and protection, biodiversity, recreational benefits, and carbon sequestration, although this last one is plainly a double-edged sword. Although monetary benefits for each of these are sometimes difficult to assess (Brander et al., 2014), their importance is evident within island nations, where coastal tourism, recreation, and other ecosystem services represent a significant proportion of their economy. When oa is combined with sea level rise, warming, and increased storm surges, the cumulative economic effect is anticipated to be momentous (Weatherdon et al., 2015). Carbon sequestration in the oceans will be reduced and coral reef impacts are

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expected to outstrip mollusc fishery losses by 2100, although more data are needed for quantified impacts (Brander et al., 2014; Rodrigues et al., 2013). One high profile ecosystem at risk is coral reefs. Many studies have been conducted on the impacts of oa to this apparently fragile system, with a consensus that increased acidity results in coral death (Andersson et al., 2013). Coral reefs provide shoreline protection, food, and income for approximately 500 million people; depending on which CO2 scenario is used, losses from oa can range from $500–$870 billion (Turley and Gattuso, 2012). A wide variety of species are expected to suffer detrimental effects from oa. Vertebrate early life stages, olfactory, visual and audiological senses, and physiology have all shown negative effects (Branch et al., 2013). Invertebrates have been covered extensively above and also show difficulty adjusting to increased acidity, with calcifiers faring the worst. But beyond harvested species themselves, habitat loss is also expected. Algae turfs may be able to out compete kelp forests, a rich and diverse community that offers copious protection for young fishes from predators. One study shows that sea urchins are able to thrive near CO2 vents, meaning the primary consumer of kelp will increase. Even a small number of urchins may destroy a large section of kelp forest (Branch et al., 2013). Repercussions through the food web must be accounted for as well, as population densities of prey and predator shift in response to habitat loss and oa itself (Branch et al., 2013). Examples from regions as well as worldwide show that although we do not entirely understand the ramifications, the information we have shows potential impacts to be far reaching. Even so, there are management options for mitigating consequences on fishery harvests, habitats, and economies.

Potential Mitigation Options

One of the most readily apparent solutions is to reduce the amount of CO2 currently present in the atmosphere (Pinnegar et al., 2015). As more CO2 is released via fossil fuels and other anthropogenic sources, that which was sequestered in the ground now changes the balance of CO2 in the atmosphere and then changes the balance of dissolved CO2 in the oceans. To correct the current imbalance requires the input of CO2 to be reduced. Although in theory the solution is easily understood and agreed with, actually reducing the input requires policy makers, green energy innovators, and a collective social consciousness of the issue. Intergovernmental panels such as the United Nations may be key for an international agreement (Turley and Gattuso, 2012), but this

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will also require more time than the situation feasibly allows. Therefore it can only be one prong of the maneuver for mitigating oa. The second easiest understood solution is to finance more research funding (Pinnegar et al., 2015; Richards et al., 2015). Most research thus far available has been based on laboratory findings or from observations of CO2 vents in the deep ocean. Unfortunately, although laboratory studies can be good for preliminary results, they are very artificial environments that can only mimic a small fraction of the variables at play in natural environments such as predator-prey interactions, food web cascades, habitat effects, pollution, and many other factors. The CO2 vents are a welcome step above laboratory testing, but even so face their own challenges. As part of the deep ocean, most harvested fishes and their habitats, such as reefs and kelp forests, never come in contact with the vents. Extrapolations may certainly be made, but in such a small habitat any results may be skewed by recruitment. Dives to these areas are few simply because of the expense associated with it. By increasing funding for scientific research into CO2 vents and oa in general, more robust results are achievable. One research topic in particular, phenotypic variability, has yielded some promising results (Hilmi et al., 2013; Parker et al., 2011; Evans and Hofmann, 2012). This research is based on the mechanisms underlying natural adaptation at the molecular level. Some studies have shown that certain oysters are more resilient to increased acidity compared to other populations of the same species (Parker et al., 2011). By utilizing the populations better suited to oa, harvest quotas may be maintained without species’ loss. This phenotypic variability may be used for other molluscs as well (Cooley et al., 2012) in addition to other organisms altogether (Hilmi et al., 2013). One molecular technique includes evaluating gene expression, physiological plasticity, and evaluating the species’ response to the sub-lethal stress of oa (Evans and Hofmann, 2012). One stress response pathway in particular, the Cellular Stress Response (csr), has been shown to be a good indicator of a species’ resilience to the stress of acidification (Evans and Hofmann, 2012). Therefore, part of this research should include searching for underutilized species that contain more phenotypic variability and shift harvests towards those hardier species (Pinnegar et al., 2015). Both CO2 reduction and continuing research are important for developing solutions, but each of these require a substantial amount of time before results are evident. They should still be pursued by politicians, scientists, and economists, but more immediate steps for mitigation are still possible. Management plans for all calcifying organism fisheries should be updated to include oa impacts on that species (Richards et al., 2015). Transitioning toward aquaculture

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for some of the most sensitive species and increasing the flexibility in capture fisheries will also help mitigate stock collapses or economic shocks for small, fishing dependent countries (Richards et al., 2015). Despite the broad and deep consequences of ocean acidification, there is hope. Changes must be enacted to delay, mitigate, and guard the ocean from a continued rise in atmospheric carbon dioxide. Reduction in carbon dioxide released to the atmosphere is easier to implement now when compared to future damage scenarios. This will require collaboration among many arenas and countries. It can be done. For the good of the oceanic ecosystem, its fauna, and the people that enjoy and exploit it as a resource, further research and altered policies involving current management practices need to be accomplished. References

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Frommel A.Y., Manejy R., Lowe D., Malzahn A.M., Geffen A.J., and A. Folkvord, 2012. “Severe tissue damage in Atlantic cod larvae under increasing ocean acidification.” Nature Climate Change, 2, 42–46. Future Ocean. World Ocean Review 1. 2013A. Living with the Ocean Mare, gGmbH. 144 pp. Future Ocean. World Ocean Review 2. 2013B. The Future of Fish- the Fisheries of the Future. Mare, gGmbH. 144 pp. Haigh, R., D. Ianson, C.A. Holt, H.E. Neate, and A.M. Edwards, 2015. “Effects of OA on temperate coastal marine ecosystems and fishers in the Northeast Pacific.” PloS ONE, 10(2), 1–46. Heenan, A., R. Pomeroy, J. Bell, P.L. Munday, W. Cheung, C. Logan, R. Brainard, A.Y. Amri, P. Alino, N. Armada, L. David, R. Rivera-Guieb, S. Green, J. Jompa, T. Leonardo, S. Mamauag, B. Parker, J. Shackeroff, and Z. Yasin, 2015. “A climate-informed, ecosystem approach to fisheries management.” Marine Policy. 57, 182–192. Heuer, R.M., and M. Grosell, 2014. “Physiological impacts of elevated carbon dioxide and ocean acidification on fish.” American Journal of Physiology, 307, R1061–R1084. Hilmi N., D. Allemand, S. Dupont, A. Safa, G. Haraldsson, P.A.L.D. Nunes, C. Moore, C. Hattam, S. Reynaud, J.M. Hall-Spencer, M. Fine, C. Turley, R. Jeffree, J. Orr, P.L. Munday and S.R. Cooley, 2013. “Towards improved socio-economic assessments of ocean acidification’s impacts.” Marine Biology, 160, 1773–1787. IGBP, IOC, SCOR. 2013. Ocean Acidification Summary for Policymakers – Third Symposium on the Ocean in a High-CO2 World. International Geosphere-Biosphere Programme, Stockholm, Sweden. Intergovernmental Panel on Climate Change (2013). Fifth Assessment Report: Climate Change. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. International Union for Conservation of Nature (IUCN), 2015. Bridging the gap between ocean acidification impacts and economic valuation: regional impacts of OA on fisheries and aquaculture: OA impacts on fisheries and aquaculture. Kleypas, J.A., Feely, R.A., Fabry, V.J., Langdon, C., Sabine, C.L. and Robbins, L.L. 2006. Impacts of ocean acidification on coral reefs and other marine calcifiers: A guide for future research. Report of a workshop held 18–20 April 2005, St. Petersburg, FL, sponsored by NSF, NOAA, and the U.S. Geological Survey, 88 pp. Lacoue-Labarthe T., P.A.L.D. Nones, P. Ziveri, M. Cinar, F. Gazeau, J.M. Hall-Spencer, N. Hilmi, P. Moschella, A. Safa, D. Sauzade, and C. Turley, 2016. “Impacts of OA in a warming Mediterranean Sea: an overview.” Regional Studies in Marine Science, 5, 1–11. Long, W.C., K.M. Swiney, and R.J. Foy. 2013. Effects of ocean acidification on the embryos and larvae of red king crab, Paralithodes camtschaticus. Marine Pollution Bulletin, 69, 38–47.

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Manzello, D.P., J.A. Kleypas, D.A. Budd, C.M. Eakin, P.W. Glynn, and C. Langdon. 2008. “Poorly cemented coral reefs of the eastern tropical Pacific: Possible insights into reef development in a high-CO2 world.” Proc. Natl. Acad. Sci. U.S.A., 105: 450–510. Mathis J.T., S.R. Cooley, N. Lucey, S. Colt, J. Ekstrom, T. Hurst, C. Hauri, W. Evans, J.N. Cross, and R.A. Feely, 2015. “Ocean acidification risk assessment for Alaska’s fishery sector.” Progress in Oceanography, 136, 71–91. National Academy of Sciences. 2008A. The ecological impacts of climate change. NAS, Washington, DC, 28p. National Academy of Sciences. 2008B. Understanding climate change. Washington, DC, 26p. Parker L.M., P.M. Ross, W.A. O’Connor, 2011. “Populations of the Sydney rock oyster, Saccostrea glomerata, vary in response to ocean acidification.” Marine Biology, 158, 689–697. Pinnegar J.K., J. Lee, and S. Birchenough, 2015. Economic impacts of OA on shellfish fisheries and aquaculture in the UK. UK Dept. for Environment, Food, and Rural Affairs, ICES CM 2015/H:05. Punt A.E., D. Poljak, M.G. Dalton, R.J. Foy, 2014. “Evaluating the impact of OA on fishery yields and profits: the example of red king crab in Bristol Bay.” Ecological Modelling, 285, 39–53. Raven, J.A. et al. 2005. Ocean acidification due to increasing atmospheric carbon dioxide. Royal Society, London, UK. The Clyvedon Press Ltd. Richards R.G., A.T. Davidon, J.-O. Meynecke, K. Beattie, V. Hernaman, T. Lynam, and I.E. van Putten, 2015. “Effects and mitigations of OA on wild and aquaculture scallop and prawn fisheries in Queensland, Australia.” Fisheries Research, 161, 42–56. Ridgwell, A., Zondervan, I., Hargreaves, J.C., Bijma, J. and Lenton, T.M. 2007. “Assessing the potential long-term increase of oceanic fossil fuel CO2 uptake due to CO2calcification feedback.” Biogeosciences 4: 481–492. Rodrigues L.C., J.C.J.M. van den Bergh, and A. Ghermandi, 2013. “Socioeconomic impacts of ocean acidification in the Mediterranean Sea.” Marine Policy, 38, 447–456. Seijo J.C., R. Villanueva-Poot, A. Charles, 2016. “Bioeconomics of ocean acidification effects on fisheries targeting calcifier species: a decision theory approach.” Fisheries Research, 176, 1–14. Schubert, R., H.J. Schellnhuber, N. Buchmann, R. Griebhammer, M. Kulessa, D. Messner, S. Rahmstorf and J. Schmid.2006. The future Oceans- Warming up, rising high, turning sour. German Advisory Council on Global Change. 110p. Shamberger, K.E.F., A.L. Cohen, Y. Golbuu, D.C. McCorkle, S.J. Lentz, and H.C. Barkley 2014. Diverse coral communities in naturally acidified waters of a Western Pacific reef. Geophysical Research Letters, 41(2): 499–504. Turley, C. 2008. “Impacts of changing ocean chemistry in a high-CO2 world.” Mineralogical Magazine 72(1): 359–362.

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Turley C. and J.-P. Gattuso. 2012. “Future biological and ecosystem impacts of OA and their socioeconomic policy implications.” Current Opinion in Environmental Sustainability, 4, 278–286. Turley, C., and Boot, K., 2011. “The ocean acidification challenges facing science and society.” In Gattuso, J.-P., Hansson, L. (eds.), Ocean Acidification. Oxford University Press, 326 pp. Tyrrell, T. 2008. “Calcium carbonate cycling in future oceans and its influence on future climates.” J. Plankton Res. 30: 141–156. Voss R., M.F. Quaas, J.O. Schmidt, and U. Kapaun, 2015. “Ocean acidification may aggravate social-ecological trade-offs in coastal fisheries.” PloS ONE, 10(3), 1–8. Waldbusser, G.G., H. Bergschneider, R. Newell, E.P. Voigt, and M.A. Green. 2010. Biocalcification in the Eastern Oyster (Crassostrea virginica) in relation to long-term trends in Chesapeake Bay pH. Weatherdon L., A. Rogers, R. Sumaila, A. Magnan, W.W.L. Cheung, 2015. “The Oceans 2015 Initiative, Part II: An updated understanding of the observed and projected impacts of ocean warming and acidification on marine and coastal socioeconomic activities/sectors.” Studies N°03/15, IDDRI, Paris, France, 46 p. Winner C., 2013. “The socioeconomic costs of ocean acidification.” Oceanus, 50(2), 72–75. Wittmann, A.C., Pörtner, H.-O. 2013. “Sensitivities of extant animal taxa to ocean acidification.” Nature Climate Change doi:10.1038/nclimate1982.

Internet

https://www.iaea.org/ocean-acidification/download/OA_spm2-FULL-lorez.pdf. https://www.iaea.org/oceanacidification/download/(Revised)%20Participants%20 booklet%201st%20OAiRUG%20meeting.pdf. https://www.iaea.org/oceanacidification/download/Taking%20action%20 against%20ocean%20acidification_final.pdf. https://www.iaea.org/ocean-acidification/page.php?page=2222.

part 1 Arctic Shipping and Resources

⸪

chapter 3

Legal Problems of the Northern Sea Route Exploitation: Brief Analysis of the Legislation of the Russian Federation Tatiana Sorokina1 and William G. Phalen2 Abstract This work is devoted to analysis of the Russian legislation that regulates the use of the Northern Sea Route (nsr). The strategic documents of the Russian Federation reflect plans and priorities for the development of the nsr. The main innovations of the relevant Russian legislation in the considered sphere are to improve infrastructure in the northern territories to facilitate shipping and mineral extraction. While many of the policies are still being negotiated, there is urgency within the Russian government to get funding and legal frameworks in place before the nsr becomes heavily trafficked. This paper also briefly analyzes the Russian position on domestic control over foreign vessels’ navigation in the nsr waters. The underpinnings of that position are represented in Russia’s most recent submission to the Commission on the Limits of the Continental Shelf (clcs). The relevant aspect of the submission to this paper is the assertion that the territorial claim over the nsr complies with the United Nations Convention on the Law of the Sea. Additional commentary is provided on the potential division of oil and gas rights in the Arctic as well as on the potential role for the Arctic Council in managing development of the region. The unique vulnerability of the region combined with the Arctic States’ ambitious development goals prompted largely by accelerated melting of sea ice poses an unprecedented environmental threat that must be considered during the formation of domestic and international regulations.

Keywords Northern Sea Route – Arctic – Legislation of the Russian Federation – Arctic Zone of the Russian Federation – Strategic documents – Law of the Sea – Arctic Council 1 Associate Professor of the Law Institute of the Northern (Arctic) Federal University named after M.V. Lomonosov. Dr. Sorokina has a PhD in Law. 2 Research Fellow for the Center for Oceans Law and Policy at the University of Virginia School of Law, J.D. anticipated 2018, M.S. Geology. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_004

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1 Introduction The Arctic is warming faster than any other region on earth as a result of global warming and a series of positive feedback loops unique to polar regions.3 The most recent report from the Intergovernmental Panel on Climate Change (ipcc) suggests that the Arctic Ocean will be ice free in summer 2050.4 The extent and thickness of the sea ice has limited the development of the region in the past, but the dwindling ice cover and discovery of vast untapped oil and gas reserves have prompted serious state interest in developing the region.5 However, the Arctic is also home to incredibly diverse and vulnerable marine life.6 The ice that has protected the Arctic from industrial exploitation for hundreds of years has also provided a vital habitat for whales, walrus, ­polar bears, indigenous communities and important commercial fish stocks (e.g. cod, haddock, herring, halibut). There are inherent dangers in developing a particularly sensitive and dynamic region such as the Arctic and the international community has an obligation to conserve and protect these vulnerable resources.

3 Alekseev, G., Ivanov, N., Kharlanenkova, N., Kuzmina, S., Bobylev, L., Gnatiuk, N., and Urazgildeeva, A. (2015, April). “Dynamical amplification of Arctic and global warming,” in egu General Assembly Conference Abstracts (Vol. 17, p. 10111); Graversen, R.G., Mauritsen, T.,  Tjernström, M., Källén, E., and Svensson, G. (2008). “Vertical structure of recent Arctic warming,” Nature, 451, 53–56. 4 Vaughan, D.G., J.C. Comiso, I. Allison, J. Carrasco, G. Kaser, R. Kwok, P. Mote, T. Murray, F. Paul, J. Ren, E. Rignot, O. Solomina, K. Steffen and T. Zhang, “2013: Observations: Cryosphere,” in: Climate Change 2013: The Physical Science Basis. Contribution of Working Group i to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, ny, usa. [hereinafter ipcc Cryosphere], available at http://www.climatechange2013.org/images/ report/WG1AR5_Chapter04_FINAL.pdf. 5 Circum-Arctic resource appraisal: Estimates of undiscovered oil and gas north of the Arctic Circle. us Department of the Interior, us Geological Survey, 2008. [hereinafter usgs Report], available at http://pubs.usgs.gov/fs/2008/3049/fs2008-3049.pdf. 6 Anisimov, O.A., D.G. Vaughan, T.V. Callaghan, C. Furgal, H. Marchant, T.D. Prowse, H. Vilhjálmsson and J.E. Walsh, “2007: Polar regions (Arctic and Antarctic)” in Climate Change 2007: Impacts, Adaptation and Vulnerability. Contribution of Working Group ii to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, M.L. Parry, O.F. Canziani, J.P. Palutikof, P.J. van der Linden and C.E. Hanson, eds., Cambridge University Press, Cambridge, 653–685. [hereinafter ipcc Polar], available at http://www.ipcc.ch/publications _and_data/ar4/wg2/en/ch15.html.

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Nevertheless, the value of the Northern Sea Route (nsr) increases every year as the extent of Arctic sea ice shrinks. The nsr’s future value is primarily tied to estimates of oil and gas resources and its potential as a more efficient global shipping route. Compared to existing routes for Hamburg to Shanghai through the Suez Canal and the Indian Ocean, the nsr saves more than 4,000 nautical miles, a week of a time underway, an average of $650,000 for fuel expenses and nearly eliminates the risk of piracy.7 The keen interest of the world community as well as the Russian Federation in developing the Arctic region and the Northern Sea Route identified a need for modernizing the current legislation governing the use and development of transport infrastructure in the North of Russia. The international and domestic pressure to reap economic benefits from the Arctic has prompted the Russian government to rapidly update its domestic legislation to facilitate high-north development. There are two main narratives that explain the current state of the Russian Arctic region. On one hand, the Russian Arctic has substantial existing infrastructure that supports large industries including large industrial complexes, sea ports, objects of the forest industry, and shipbuilding facilities. Under Soviet rule, most of the necessary infrastructure and logistical support was created for exploitation of the Northern Sea Route. There are large industrial centers in the Russian North, including Norilsk, Arkhangelsk, Murmansk, and Pevek. During the Soviet period, over twelve million tons of freight moved through the Northern Sea Route annually. However, in the 1990s, after the fall of the Soviet Union, the total annual freight fell to less than one million tons. In response, the Russian government has declared increasing freight in the Northern Sea Route its main objective in the region. Not surprisingly, a huge decline of production in the region coincided with the waning of the shipping industry. Many industrial enterprises, including city-creation, were closed. The population of the Russian Arctic region fell dramatically in response to the economic decline and increased unemployment. To combat the migration from the north and revitalize the dilapidated industrial ports, the Russian government has refocused its legislative agenda on the Arctic. The new legislation aims to stabilize the situation by providing incentives for economic growth in the region in an attempt to overcome the deterrent effect of the extreme working conditions any Arctic population must endure. Population growth in the northern port cities is an essential component to any nsr development initiatives as they will all rely on a robust and stable workforce to remain viable. 7 A. Makarov, “The Ice has Broken,” The Authority. No 9, 2013, 37.

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1.1 Status Considerations Russian justification for its territorial claim over the Northern Sea Route exploitation is grounded in three distinct statuses. First, the historical status, which is a set of historically developed traditions and rules of use. Russia, in support of its position, argues the nsr has played an integral role in the social and economic life of the Russian people. Major historical Russian ports are distributed in key positions along the nsr and are ideally suited to support international ship traffic. The route, beginning in the west, connects Murmansk and Arkhangelsk, then Dickson, near the Yenisei Gulf, coming into the Laptev Sea, through Nordvik, then Tiksi (Delta of Lena), Ambarchik (mouth of Kolyma), and also Pevek and the port in Provideniya (see Figure 3.1). The listed objects of navigable infrastructure, which are located at the mouth of the large rivers carry out the function of transit points for cargo vessels. The Northern Sea Route is a highway on which the wood, production of mechanical engineering, coal, building materials, food, and furs are transported. Ports on the Northern Sea Route are adapted for reception of large icebreaking ships.

Figure 3.1 Illustration of the Northern Sea Route (source: Dmitry Tulupov, “Russian Services Have a Price,” Russian International Affairs Council, 21 March 2013, http://russian council.ru/en/inner/?id_4=1577).

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There is also a political status when the Northern Sea Route is perceived as the instrument of political influence. The political status is the result of the state understanding the importance of historically developed models for safety of the country, and its economic and social stability. Throughout the 20th century Russia paid very little attention to development of the Arctic and the Northern Sea Route. However, in recent years, Russia became noticeably more active with respect to the nsr. New laws began to appear, questions of development in the Arctic regions of the Russian Federation have risen on its political agenda. These tendencies are connected with a big historical role of Russia in the Arctic, and aspirations of the state to strengthen its influence in the region. As a result, the Northern Sea Route has gained legal status – a set of the rights and duties of the subjects involved in process of use and development of the Northern Sea Route settled by laws. 2

Strategic Documents

In recent years, the Russian government has drafted and accepted a large number of programmatic and strategic documents aimed at Arctic development. These documents include but are not limited to, “strategies,” “national plans,” “bases of a state policy,” “concepts,” and “doctrines.”8 Some commentators have argued that such documents have no legal character. However, these documents reflect the political will of the state, place priorities, and direct investments towards certain sectors of the Russian economy including science and technology. The strategic documents create a framework for which legislative road maps are developed and the financing for implementation of specific projects is allocated. The documents distribute power between authorities, settle rights and duties of the participants in a projects’ implementation process, and modernize the federal legislation and bylaws. The adoption of the Federal law of 28 June 2014 No 172-FZ “About strategic planning in the Russian Federation”9 allows the existing system of strategic documents to unify in form and content. This piece of legislation is essential as it provides a legal mechanism to translate the aforementioned documents from declarations to actions. Furthermore, the programmatic and strategic documents facilitate corresponding changes to the existing legislation and 8 M.A. Mushinskiy, “Strategies, concepts, doctrines in legal system of the Russian Federation: problems of the legal status, legal technique and ratio with each other,” Journal of Legal Technique, No. 9, 2015, 42. 9 Collection of Legislative Acts of the Russian Federation, No. 26 (Part i), 30.06.2014, Art. 3378.

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create new legal rules. The new rules are intended to order, regulate, and overcome conflict between regulations and public relations in the development of the Northern Sea Route. The current program documents can be divided into two main groups: “general” and “special.” This division is rather conditional, as many of the program documents cannot be fully realized independently. The interrelation and interdependence of the branches of the economy require complete integration of the “general” and “special” programs. 2.1 General Concepts10 “The Concept of Long-Term Social and Economic Development of the Russian Federation for the Period till 2020” establishes the first priority direction of a state policy in the development of the ship-building industry. The policy emphasizes the creation of competitive specialized sea equipment, including ships and offshore platforms needed for development of the continental shelf and the nsr, high-tech medium-tonnage transport vessels (with displacement up to 45 thousand tons), support vessels, high-tech fishery ships, as well as sea and river scientific research and forwarding vessels. One of the highlighted priorities according to this Concept, is the increase of a basic transport network, including realization of the investment projects for the development of the international transport corridors, including the Northern Sea Route.11 This Concept connects the regional development with the development of the Northern Sea Route, which has key value for ensuring activity of the population of northern regions of the country. The role of this concept sharply increases the connection between shipping interests of the nsr and extraction of Arctic natural resources. Transport Strategy of the Russian Federation for the Period till 2030 is focused on creating the necessary infrastructure to support commercial transportation in the Arctic basin.12 Interestingly, this Strategy establishes the volume of transportation of goods by the Northern Sea Route as the formal indicator for 10 11

12

The following group of the “general” concepts, strategies and programs only partially concern questions of development of the Russian Arctic region. Decree of the Government of the Russian Federation “About the Concept of Long-Term Social and Economic Development of the Russian Federation for the period till 2020”, No. 1662-r, 17 November 2008, Collection of Legislative Acts of the Russian Federation, 24 ­November 2008, No. 47, Art. 5489. Decree of the Government of the Russian Federation “About the Transport Strategy of the Russian Federation”, No. 1734-r, 22 November 2008, Collection of Legislative Acts of the Russian Federation, 15 December 2008, No. 50, Art. 5977.

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an assessment of availability, efficiency and quality of cargo transportation on waterways. The Subprogramme “Sea and River Transport” of the Federal Target Program “Development of the Transport System of Russia (2010–2020)” plans to increase the volume of goods transported through the Northern Sea Route to 63.7 million tons by 2020 as well as increase the level of technical equipment for the Northern Sea Route to 40.5% in 2020.13 There are also plans for further developing the largest seaports, including Arkhangelsk and Murmansk. The Marine Doctrine of the Russian Federation for the Period till 2020 proclaims that the fundamentals of Russia’s national sea policy in the Arctic and Pacific region are dictated and formed through the activity of the Russian fleet in Barents, White and other Arctic seas, on the Northern Sea Route, and in northern part of Atlantic Ocean. The doctrine also addresses the strategic long-term importance of establishing a presence in the northwest part of the Pacific Ocean (Japanese, Okhotsky, Bering seas) and in the east part of the Arctic on the Northern Sea Route.14 The Russian Federation recognizes the importance of the Northern Sea Route for foreign partners and the entire international community. According to the Concept of Foreign Policy of the Russian Federation, Russia draws the initiative and constructive line directed on strengthening the international cooperation in the Arctic.15 Consistently realizing national interests, Russia proceeds from sufficiency of the available international conventional and legal base for successful settlement of all questions arising in the region by negotiations, including questions of establishment of the external borders of a continental shelf in the Arctic Ocean. Giving a priority to interaction with the Arctic States, Russia is open to mutually beneficial cooperation with extra regional players. For successful development of the Arctic region, it is essential that the Northern Sea Route be open for international navigation on a mutually advantageous basis. 13

14

15

Order of the Government of the Russian Federation “About the Federal Target Program “Development of the Transport System of Russia (2010–2020)”, No. 848, 05 December 2001, Collection of Legislative Acts of the Russian Federation, 17 December 2001, No. 51, Art. 4895. The Marine Doctrine of the Russian Federation for the period till 2020, approved by the President of the Russian Federation 27 July 2001, available at . The Concept of Foreign Policy of the Russian Federation, approved by the President of the Russian Federation 12 February 2013, available at http://www.kremlin.ru/acts/news/ copy/785.

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Besides the federal program documents there are some strategic documents concerning development of regions of the country, which also provide measures for development of the Northern Sea Route. These are the Strategy of Social and Economic Development of the Northwest Federal District for the Period till 2020;16 Strategy of Social and Economic Development of Ural Federal District till 2020;17 Strategy of Social and Economic Development of Siberia till 2020;18 and Strategy of Social and Economic Development of the Far East and the Baikal Region for the Period till 2025.19 The documents, which directly concern state interest in the Arctic and priority activities of authorities on development of the Arctic region, form a group of “special” concepts, strategies and programs. Also well-known are: The Bases of a State Policy of the Russian Federation in the Arctic for the Period till 2020 and Further Prospective;20 Strategy of Development of the Arctic Zone of the Russian Federation and Ensuring National Security for the Period till 2020;21 and the State Program of the Russian Federation “Social and Economic Development of the Arctic Zone of the Russian Federation for the Period till 2020”.22 16

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20

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Decree of the Government of the Russian Federation “On Approval of the Strategy of Social and Economic Development of the Northwest Federal District for the Period till 2020”, No. 2074-r, 18 November 2011, Collection of Legislative Acts of the Russian Federation, 19 December 2011, No. 50, Art. 7542. Decree of the Government of the Russian Federation “On Approval of the Strategy of Social and Economic Development of the Ural Federal District for the Period till 2020”, No. 1757-r, 06 October 2011, available at http://archive.government.ru/special/gov/results/ 16809/. Decree of the Government of the Russian Federation “On Approval of the Strategy of Social and Economic Development of Siberia till 2020”, No. 1120-r, 05 July 2010, Collection of Legislative Acts of the Russian Federation, 16 August 2010, No. 33, Art. 4444. Decree of the Government of the Russian Federation “On Approval of the Strategy of Social and Economic Development of the Far East and the Baikal Region for the Period till 2025”, No. 2094-r, 28 December 2009, Collection of Legislative Acts of the Russian Federation, 25 January 2010, No. 4, Art.421. The Bases of a State Policy of the Russian Federation in the Arctic for the Period till 2020 and Further Prospective, approved by the President of the Russian Federation, No Pr1969, 18 September 2008, available at . Strategy of Development of the Arctic Zone of the Russian Federation and Ensuring National Security for the Period till 2020, approved by the President of the Russian Federation, available at . Order of the Government of the Russian Federation “Social and Economic Development of the Arctic Zone of the Russian Federation for the Period till 2020”, No. 366, 21 April 2014,

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Federal Legislation

Today Russia is facing the following task: to create a legal regime of navigation which, on the one hand, will meet rules of international law and create safe and economically attractive conditions for realization of international projects, and on the other hand, will be equitable to Russia’s interests in respect of preserving control over the nsr water area. At the level of federal laws, the most anticipated and important in the sphere of regulation of the Northern Sea Route exploitation is the Federal law of 28 July 2012 No. 132-FZ “About modification of separate acts of the Russian Federation regarding state regulation of trade navigation in the water area of the Northern Sea Route” (The Federal law on the Northern Sea Route).23 This law made changes to three statutory acts: The Federal law of 30 April 1999 No. 81-FZ “The code of trade navigation of the Russian Federation”;24 the Federal law of 31 July 1998 No. 155-FZ “About internal sea waters, the territorial sea and contiguous zone of the Russian Federation”;25 the Federal law of 17 August 1995 No. 147-FZ “About natural monopolies”.26 Navigation in the water area of the Northern Sea Route and historically developed national transport communication of the Russian Federation should be carried out according to the conventional principles and rules of international law, international treaties of the Russian Federation, the Federal law on the Northern Sea Route, other federal laws and other regulations issued according to them. The main domestic legislative innovation is found in Article 5.1 of the Code of trade navigation (“Navigation in the Water Area of the Northern Sea Route”). This norm is basic in delimitation of the water area of the Northern Sea Route stating: [t]he water area of the Northern Sea Route is understood as the water space adjacent to the northern coast of the Russian Federation covering internal sea waters, the territorial sea, a contiguous zone and an exclusive economic zone of the Russian Federation and limited from the East to the line of differentiation of sea spaces with the United States of America

23 24 25 26

Collection of Legislative Acts of the Russian Federation, 05 May 2001, No. 18 (Part iv), Art. 2207. Collection of Legislative Acts of the Russian Federation, 30 July 2012, No. 31, Art. 4321. Collection of Legislative Acts of the Russian Federation, 3 May 1999, No. 18, Art. 2207. Collection of Legislative Acts of the Russian Federation, 3 August 1998, No. 31, Art. 3833. Collection of Legislative Acts of the Russian Federation, 21 August 1995, No. 34, Art. 3426.

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and a parallel of Cape Dezhnev in the Bering Strait from the West by a meridian of the cape of Desire to the archipelago Novaya Zemlya, east coastline of the archipelago Novaya Zemlya and the western borders of the Matochkin Shar, Kara Strait Straits, the Yugorsky Strait. The broad delimitation of the Northern Sea Route is justified because there is no fixed route (see Figure 3.2). Keeping its general orientation, the Northern Sea Route shifts latitudinally considerable distances inter-annually. Nevertheless, a considerable portion of the Northern Sea Route remains within the Exclusive Economic Zone of Russia, its territorial sea and even occasionally in the Russian internal waters (spaces falling under the sovereignty or jurisdiction of one country).

Figure 3.2 According to the article 5.1 of the Code of trade navigation the water area of the Northern Sea Route has got concrete borders within which the Rules of navigation apply. To the west of and to the east of these borders other rules of navigation work. Thus, two understandings of the Northern Sea Route were actually created. On the one hand, the route connects the Atlantic Ocean and the Pacific Ocean through the Arctic. On the other hand, there is now a clear boundary of the water area of the Northern Sea Route in which navigation is carried out by rules settled by the Article 5.1 of the mentioned Code (Page 7) and other acts adopted according to it. Source: Federal State Institution: The Northern Sea Route Administration, http://asmp.morflot.ru/en/granici_smp/).

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The Administration of the Northern Sea Route created in the form of a federal state institution is responsible for organizing vessels passing through the northern passage. The main goals of the Institution are to ensure safe navigation and protection of the marine environment from the pollution in the water area of the Northern Sea Route. The Administration carries out the following functions: • Obtaining and considering the submitted applications and issuing the permissions for navigation through the Northern sea route; • Issuing the certificates of the ice conventional pilotage on the Northern sea route; • Researching weather, ice, navigational and other conditions on the Northern sea route; • Coordination of installation of navigational aids and harmonization of regions to carry out hydrographic surveys operations on the Northern sea route; • Assistance in the organization of search and rescue operations in the water area of the Northern sea route; • Assistance in eliminating the consequences of pollution from vessels of harmful substances, sewage or garbage; • Rendering the information services in relation to the water area of the Northern sea route, for example, concerning the organization of navigation, requirements of safe navigation and others; • Making recommendations about development of routes of navigation and using an icebreaking fleet in the water area of the Northern sea route, ice and navigational conditions there; and • Retrieving timely data from the Russian hydrometeorological service about hydrometeorological forecast and ice analysis. The Arctic legislation of Russia includes more than 500 laws and regulations, more than 50 of which were adopted during the Soviet period. These are the acts of constitutional, administrative, civil, environmental, land and other branches of law. The Russian government understands the need to adopt a complex act, which could comprehensively regulate questions of development and exploitation of the Russian Arctic. The Federal Law governing the Arctic Zone of the Russian Federation was proposed in 2013, but as of this writing it has not yet been codified.27 The scope of the pending law still does not r­ egulate 27

Project of the Federal Law “About the Arctic Zone of the Russian Federation”, available at .

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the structure of the Arctic Zone of the Russian Federation and the legal status of subarctic territories of the Russian Federation. Furthermore, the consequences of including the municipalities and territories in the Arctic Zone remain unclear. In this context, a group of researchers of the Northern Arctic Federal University has made some proposals, which include the following spheres: • The status of the Northern Sea Route: the order of its usage as national and transit thoroughfare, the order of access of domestic and foreign carriers to the highway, questions of insurance, environmental payments, the obligation of the Russian Federation for safety provision, etc.; • The obligation of the Russian Federation to protect the environment of the Arctic Zone and of the Northern Sea Route waters. Provisions concerning Arctic tourism and a need of environmental assessment of the economic projects planned to realization in azrf are settled; and • Sustainable development of the Arctic territories; etc. The main message of the proposals is to change the anthropocentric approach of the Russian Arctic legislation to ecocentric and to avoid the militarization of the Russian Arctic.28 At the writing of this paper, the destiny of this project is unknown. In November 2015, the State Duma began working on a new law focused on the Development of the Arctic Zone of the Russian Federation.29 The project has to be submitted for consideration by the Government of the Russian Federation by the end of 2016. The bill will have to contain production, resources, transport, and infrastructure sections. But, most importantly, the law has to define borders (first of all the southern one) of the Russian Arctic zone. 4

International Law and Russian Legislation

In general, analysis of the existing Russian legislation on the Northern Sea Route exploitation shows that Russia intends to have complete control of the navigation of foreign vessels in the nsr. The legislation also recognizes the 28 29

See the summary of NArFU’s proposals to the Federal Law About the Arctic zone, presented to the Council of the Federation . See the suggestion to reconsider borders of the Arctic Zone of the Russian Federation .

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seas where, according to the un Convention on the Law of the Sea of 1982, freedom of navigation has to be provided within a contiguous zone and an Exclusive Economic Zone. The Federal law of 28 July 2012 defines the Northern Sea Route as the “historically developed national transport communication of the Russian Federation” that is open for the navigation of foreign vessels, but they must follow the Rules of navigation in its water area (approved by the order of the Ministry of Transport of Russia on the 17 January 2013). However, most other countries are interested in giving international status to the nsr, effectively withdrawing it from the national jurisdiction of Russia and opening it to free navigation. Russia has argued against international strait status by requiring permission of the Administration of the Northern Sea Route to navigate, icebreak and have pilot maintenance in these waters. Russia refers to the Art. 33 of the unclos (“Contiguous Zone”), which allows the coastal State to exercise the control necessary to “a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or the territorial sea; b) punish infringement of the above laws and regulations committed within its territory or the territorial sea”. Coastal States may, in the exercise of their sovereign rights to explore, exploit, conserve and manage the living resources in the eez, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by Russia (Art. 73 and of the unclos).30 One more fact to be mentioned is that Russian legal doctrine considers the Kara Sea located in the Arctic, the Laptev Sea, the East Siberian Sea, the Chukchi Sea (within the Russian sector) to be the gulfs, and the law of internal sea waters extends to them. There are no international conventions concerning these passages, navigation through them is regulated by national legislation. Therefore, Russia sees no reason to accept free navigation in these water areas. As for innocent passage, setting the Rules of Navigation in the water area of the Northern Sea Route Russia refers to the provisions of Article 21 of unclos. It provides: The coastal State may adopt laws and regulations, in conformity with the provisions of this Convention and other rules of international law, 30

Moreover, the Russian Federation referred to Art. 111 of unclos (“Right to hot pursuit”) during the detention of Greenpeace’s vessel Arctic Sunrise, which illegally entered into the nsr water area for a protest action on a drilling platform “Prirazlomnaya” in the Pechersky sea.

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relating to innocent passage through the territorial sea, in respect of all or any of the following: a) the safety of navigation and the regulation of maritime traffic; b) the protection of navigational aids and facilities and other facilities or installations; c) the protection of cables and pipelines; d) the conservation of the living resources of the sea; e) the prevention of infringement of the fisheries laws and regulations of the coastal State; f) the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof; g) marine scientific research and hydrographic surveys; h) the prevention of infringement of the customs, fiscal, immigration or sanitary laws and regulations of the coastal State. One more argument for Russia’s approach is Article 234 of unclos (“Ice-­ covered areas”) which provides: Coastal States have the right to adopt and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution from vessels in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance. Such laws and regulations shall have due regard to navigation and the protection and preservation of the marine environment based on the best available scientific evidence. From this, it follows that national laws and the rules on “prevention, reduction and control of marine pollution from vessels” can extend to the regulation of sea navigation in coastal areas of the Arctic, as uncontrollable navigation considerably increases the risk of marine pollution. Supporters of this Russian policy appeal to similar actions of other Arctic States, i.e. Canada and Norway. Three groups of arguments define the legitimacy of Russian complete control of navigation through the nsr. The first of them refers to recognition of the nsr as its national communication artery in the Arctic from the historical point of view. This is confirmed by numerous legal acts adopted on various questions regarding use of the Northern Sea Route. Reference is also made to extending jurisdiction of the Russian Empire and the ussr to some Arctic territories. The second focuses on the existence of special legal rights and duties of the Arctic States in this region. The third relies on the practical impossibility

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of a partition of the nsr from its unity as a federal transport artery. Russia is not going to adopt such an approach to regulate Northern Sea Route exploitation.31 In May 2015, the International Maritime Organization (imo) finished work on the Polar Code.32 The imo toughened requirements for vessels operating in the Arctic by prohibiting the dumping of oil and oil products into the sea and restricting other harmful emissions in the surrounding marine environment. These regulations are designed to eventually eliminate the legal collisions in the law of the sea and to improve navigation in the Arctic waters. 5

Arctic Council

The Arctic Council, established in 1996, was the successor to the 1991 Declaration on the Protection of the Arctic Environment and the Arctic Environmental Protection Strategy (aeps).33 Each of these Declarations was signed by the five Nordic states, Canada, the United States and Russia, but serious consideration of the indigenous populations did not occur until the Ottawa Declaration formally established the Arctic Council. This intergovernmental forum aims to “…increase cooperation, coordination and interaction among Arctic States, with the involvement of the Arctic Indigenous communities… in particular issues of sustainable development and environmental protection in the Arctic.” The indigenous communities were given permanent participant status ensuring their input to the policymaking process, but they do not have a vote. Membership to the forum does not impose any binding commitments on the parties, but recent meetings of the forum have established task forces to promote cooperation on important issues. The two most significant task force mandates came out of the 2009 and 2012 meetings when agreements were signed to prepare international instruments to quickly coordinate and react in search and rescue missions as well as oil pollution response.34 Since these 31 32

33

34

V.V. Gavrilov, “Legal Regime of the Northern Sea Route of the Russian Federation,” Journal of the Russian Law, No. 2, 2015, 149. International Code for Ships Operating in Polar Waters (Polar Code), available at . Jenks, A. (1996). Canada-Denmark-Finland-Iceland-Norway-Russian Federation-SwedenUnited States: Joint Communiqué and Declaration on the Establishment of the Arctic Council. International Legal Materials, 1382–1390. See Arctic Council: Agreements, available at http://www.arctic-council.org/index.php/ en/our-work/agreements.

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mandates were created, the international task forces have conducted a number of joint exercises. Beyond the aforementioned task forces, the most important contribution the Arctic Council has made is facilitating the international effort to study and report on all aspects of the Arctic environment. The resulting document, the Arctic Ocean Review, was written by scientists and industry experts from each of the member States and discussed in detail the current state of Arctic biodiversity, oil and gas reserves, indigenous life, marine pollution and ecosystem based management.35 This report will serve as an important baseline and should continue to be updated at regular intervals in order to ascertain the impact the changing climate and rate of development is having on the Arctic over time. The role of the Arctic Council must grow as the Arctic continues to melt. The interests of non-arctic states in the regions of the Arctic not bound by eezs will continue to grow as the area becomes increasingly accessible. China has already finished building an icebreaker and has stated its intentions in the Arctic arguing the area is common heritage.36 The European Union has also stated its desire to get observer status on the Council. It is in the long-term interest for stability in the region and sustainable development to include and regulate all interested states.37 6

Oil and Gas

The u.s. Geological Survey released a Circum-Arctic Resource Appraisal in 2008 detailing the potential energy resources that exist within the Arctic. Of the 33 separate Arctic provinces they prospected for petroleum in 25 that were likely to contain at least 50 million barrels of oil equivalent.38 The report estimates that there is approximately 90 billion barrels of oil, 1,669 trillion cubic feet of natural gas, and 44 billion barrels of natural gas liquid. To put that in perspective, the United States and Russia, the second and third largest oil 35 36 37 38

See Arctic Ocean Review, Protection of the Marine Environment, available at http://www .pame.is/index.php/projects/the-arctic-ocean-review-aor. Elizabeth C. Economy, “Beijing’s Arctic Play: Just the Tip of the Iceberg,” Diplomat (April 5, 2014), http://thediplomat.com/2014/04/beijings-arctic-play-just-the-tip-of-the-iceberg/ Weber, S., and Iulian Romanyshyn, “Breaking the Ice: the European Union and the Arctic,” 66 Int’l J. 66, 849 (2010). Circum-Arctic resource appraisal: Estimates of undiscovered oil and gas north of the Arctic Circle. us Department of the Interior, us Geological Survey, 2008.

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producers in the world, have only 83 billion barrels of oil reserves combined according to the International Energy Agency.39 Even more impressive is that the report estimates the Arctic’s combined natural gas and oil reserves contain approximately one quarter of the world’s undiscovered gas and oil resources.40 However, these resources are not distributed evenly, the largest three provinces account for 65 percent of the total oil and gas resources in the Arctic. Furthermore, the Eurasian side holds most of the natural gas (73%) while the North American side holds the majority of the crude oil (65%). The North American countries’ deposits are also unevenly divided, the us territory or Alaskan Arctic contains 30 billion barrels of oil, the Canadian Arctic holds 10 million and Greenland (Denmark) holds about 9 million. The aforementioned reserves are still only estimates and could increase as the Arctic becomes more accessible when the potential resources will inevitably draw development to the region. In addition to projected reserves, energy companies must also consider the inherent costs of drilling in a harsh, dynamic environment such as the Arctic. All the drilling equipment and operational support must be able to withstand harsh cold winters and sometimes an even more perilous spring/summer thaw. Other costs stem from the difficulty of transporting the extracted oil and gas in specially designed tankers and escort vessels designed to withstand the sea ice. There are many potential environmental costs associated with drilling in the Arctic that also must be considered and prevented where possible.41 Operational discharges from transport vessels and fixed oil rigs can result in millions of barrels of oil pollution annually. The second largest pollution danger associated with gas and oil extraction is catastrophic accidental spills that can occur due to improper equipment, maintenance or human error. The most effective method for reducing the impact of these is to prevent them from occurring by creating and enforcing strict technical standards on all vessels carrying oil as Annex i in marpol does.42 The next best measure is to organize and maintain a well-equipped international response, containment and cleanup team. However, even a well-trained and equipped team will be unable to combat an oil spill in ice-covered seas. Thus the emphasis should be on spill prevention 39 40 41

42

International Energy Agency: Statistics, http://www.iea.org/statistics/statisticssearch/ Id. pame, The Arctic Ocean Review Project, Final Report, (Phase ii 2011–2013), Kiruna May 2013. Protection of the Arctic Marine Environment (pame) Secretariat, Akureyri (2013). [hereinafter Arctic Ocean Review], available at http://www.pame.is/images/126082 _pame_sept-2.pdf. See International Maritime Organization, Conventions: marpol [hereinafter marpol], available at http://www.imo.org/About/Conventions/ListOfConventions/Pages/Interna tional-Convention-for-the-Prevention-of-Pollution-from-Ships-(MARPOL).aspx.

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instead of response.43 Overall, the Arctic while still a formidable environment, is becoming increasingly accommodating to oil and gas extraction and policy must be in place before large-scale development begins. In 2001, Russia became the first country to officially submit a sovereignty claim in the Arctic Ocean to the un Commission on the Limits of the Continental Shelf (clcs) in which it claimed 1.2 million square km of the Arctic Ocean seafloor. The proposed area included nearly half of the Arctic Ocean extending from Russian shores beyond the North Pole. The United States and Norway quickly rebuked the Russian claim stating that the science contained major flaws and Norway went even further declaring a “maritime dispute” with Russia. The Canadian and Danish response was less direct, but they did publically remind the Commission of their duty to evaluate the claim without prejudice.44 The Commission decided in 2002 that Russia must provide further evidence to support its claim, which prompted Russian scientists to embark on a six-week scientific expedition to the North Pole in 2007.45 The results of the expedition, according to Russian government, definitively proved that the Mendeleev and Lomonosov Ridges naturally prolonged the Russian continental shelf beyond the North Pole. However, the international community remained skeptical as the Lomonosov Ridge is an undersea mountain range that stretches between the Russian shelf and the Canadian/Greenland shelf. As a result Canada, Denmark and Russia have all claimed that the ridge is an extension of their own shelves. Russia resubmitted its “Partial Revised Submission” to the clcs in August of 2015.46 The submission included extensive geologic evidence detailing Russia’s claim beyond 200 nautical miles and declared the entire Northern Sea Route as within Russia’s contiguous continental shelf. This declaration, if accepted by the clcs, would grant Russia internationally recognized exclusive rights to all minerals found beneath the Northern Sea Route. In anticipation of the approval Russia has positioned itself, through bilateral agreements with Norway, to lead the Arctic States in offshore oil and gas extraction.47 43 44 45

46 47

Arctic Ocean Review supra note 41. Isted, K. (2008). “Sovereignty in the Arctic: An Analysis of Territorial Disputes and Environmental Policy Considerations,” J. Transnat’l L. & Pol’y, 18, 343. Atle Staalesen, “Putin readies Arctic territorial claims,” Barents Observer (April 07, 2014), [hereinafter Putin Readies Arctic], available at http://barentsobserver.com/en/ arctic/2014/04/putin-readies-arctic-territorial-claims-07-04. http://www.un.org/depts/los/clcs_new/submissions_files/rus01_rev15/2015_08_03_Exec _Summary_English.pdf. See Barents Sea Agreement.

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7 Conclusion The documents referenced in this paper are not the full list of the acts governing the relations in the nsr region. Russian legislation is still developing and soon adoption of new laws regulating questions of use and development of the Northern Sea Route is expected. Thus, standard and legal regulation of development of the Northern Sea Route is in a stage of active formation. At the time of this report, the list of the acts regulating various aspects of development and use of the Northern Sea Route is rather wide. Along with program documents, the regulations establishing volumes and order of financing of the corresponding projects are developed and adopted. The system of public administration is ordered; rules of navigation in the water area of the Northern Sea Route are settled. However, it is too early to say that a sufficient regulatory base has been created. In the next years there will be further growth in the number of normative documents governing public relations on the development and use of the Northern Sea Route. There are many unresolved questions concerning standards and legal bases for regulating the navigation of nsr shipping lanes. This debate should define the appeal of the highway to foreign investors – and not only in the sphere of cargo navigation, but also in adjacent segments including Arctic tourism. There is a huge interest in cruise trips to the North Pole, and Russian companies can become the world’s largest suppliers of tourist services in the region. However, infrastructure modernization of the Russian Arctic will demand considerable financial and labor investments. Legislation must create the governmental institutions responsible for environmental control, improvements in the infrastructure of ports, and development of legal mechanisms to increase the appeal of Arctic territories to tourists. Toughening environmental requirements for the enterprises and the companies which work in the Arctic remains an important issue. The ecosystem of the Arctic is extremely vulnerable, and massive anthropogenic influence can cause irreparable harm. The most significant environmental concerns associated with shipping relate to the safe transportation of dangerous pollutants and the effect vessel emissions could have on local conditions.48 The Arctic Ocean is both relatively uncharted and littered with free-floating sea ice, two conditions that significantly increase the potential for serious shipping accidents.49 48

49

Corbett, J.J., Lack, D.A., Winebrake, J.J., Harder, S., Silberman, J.A., and Gold, M. (2010). “Arctic shipping emissions inventories and future scenarios,” Atmospheric Chemistry and Physics, 10 (19), 9689–9704. See nw Passage.

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Furthermore, the Arctic’s remoteness makes rescue response efforts difficult and costly and clean-up efforts nearly impossible. The environmental harm of even one major shipping accident could be devastating to the fragile marine ecosystem. Another major environmental concern with shipping is that shipboard exhaust systems emit a variety of harmful pollutants including black carbon, aerosols and gaseous emissions such as carbon dioxide and ozone depleting gasses.50 Recent studies modeling the potential effects on the Arctic climate due to increased shipping traffic in the region suggest that black carbon and particulate matter settling on the snow will dramatically reduce the albedo of the sea ice, further exacerbating the warming of the region. The research also indicates that technology standards for ships in the Arctic would diminish only some of the potential harm. Ultimately, the Russian Federation, through its domestic legislative agenda, has demonstrated a strong interest and understanding of the complex issues that must be resolved before the Arctic can be effectively developed. Other Arctic States should be placing similar emphasis on addressing the aforementioned concerns through domestic legislation so that prospective industry has intelligible standards to work under. These Arctic-centric policies will facilitate development and ensure that it is done in a safe, environmentally conscious, and economically viable manner.

50

Granier, C., Niemeier, U., Jungclaus, J.H., Emmons, L., Hess, P., Lamarque, J.F., Walters, S., and Brasseur, G.P. (2006). “Ozone pollution from future ship traffic in the Arctic northern passages,” Geophysical Research Letters, 33(13).

chapter 4

imo and the Arctic: Developments since Bergen in 2014 J. Ashley Roach1 Abstract This paper reports on developments in Arctic navigation since the Virginia conference held June 26–27, 2014 in Bergen, Norway. The paper briefly reviews the developments after Bergen in 2014 reported in the proceedings of the Bergen conference and details the work of the imo and others to the first half of 2016 on the International Code for Ships Operating in Polar Waters (Polar Code). Appendix 1: Resolution mepc.264(68) (adopted on 15 May 2015) International Code for Ships Operating in Polar Waters (Polar Code). Appendix  2: Amended solas to Make Mandatory Part i-A of the Polar Code. Appendix 3: Amendments to marpol 73/78 Annexes i, ii, iv and v to Make Mandatory Environment-related Provisions (Part ii-A) of the Polar Code. Appendix 4: Draft Amendments to stcw, Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (stcw), 1978, as Amended. Appendix 5: Draft Amendments to Part A of stcw Code, Draft Amendments to Part A of the Seafarers’ Training, Certification and Watchkeeping (stcw) Code.

Introduction In 2014 the imo’s Maritime Safety Committee (msc) considered Parts i-A and i-B of the International Code for Ships Operating in Polar Waters (Polar Code).2 msc 94 adopted the safety-related provisions of the Introduction, the 1 Captain, jagc, usn (retired), Office of the Legal Adviser, u.s. Department of State (retired), Visiting Senior Principal Research Fellow, Centre for International Law, National University of Singapore. This paper updates the author’s paper “Arctic Navigation: Recent Developments” included in the proceedings of colp’s 2014 annual conference in Bergen, Norway. The views expressed in this paper are not intended to reflect the position of any government or any of their departments or agencies. The author’s conference PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai-roach.pdf. 2 msc 93, May 14–23, 2014, and msc 94, November 17–21, 2014.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_005

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whole of Parts i-A and i-B of the Polar Code, and a new Chapter xiv to solas to make the Polar Code mandatory as from January 1, 2017.3 In 2014 and 2015 the imo’s Marine Environment Protection Committee (mepc) considered Parts ii-A and ii-B of the Polar Code.4 mepc 68 adopted the pollution prevention provisions (Parts ii-A and ii-B) of the Code.5 These four chapters of the Polar Code will also be mandatory from January 2017, through additions to four of the marpol annexes (i, ii, iv and v).6 As a result of the work in 2015, the msc has developed specific requirements for training and certification standards, and crew qualifications for ships operating in the Arctic or Southern Oceans. However, no action has yet been taken on requirements for the ice navigator.7 The amendments to solas and marpol, and the amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (stcw) and Code, are appended. The full text of the Polar Code is available on the imo website.8

Maritime Safety Committee

The efforts of the Maritime Safety Committee to develop and ultimately adopt the safety provisions of the Polar Code and associated amendments to solas are detailed in the report of the Bergen conference.9 3 imo, Amendments to the solas Convention, Resolution MSC.386(94), msc 94/21/Add.1, Annex 7 (November 27, 2014). 4 mepc 66, April 2014; mepc 67, October 13–17, 2014; and mepc 68, May 1–15, 2015. 5 imo, Report of the mepc on its 68th Session, mepc 68/21, May 29, 2015, at 46 para. 6.21 by mepc resolution MEPC.264(68) and Annex 10. mepc 68 also approved MEPC.1/Circ.856, Guidance for issuing revised certificates, manuals and record books of marpol for compliance with environment-related requirements of the Polar Code. MEPC/68/21, 47 at para. 6.27. 6 Ibid, at 46 paras. 6.22-6.23 by mepc resolutions MEPC.265(68) and Annex 11. 7 Initial efforts to include training provisions in the Polar Code are recounted in J.A. Roach, ‘A Note on Making the Polar Code Mandatory,’ in S. Lalonde and T.L. McDorman (eds.), International Law and Politics of the Arctic Ocean: Essays in Honor of Donat Pharand (Brill/Nijhoff Publishers, 2015) pp. 125, 133–35. 8 http://www.imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR CODE TEXT AS ADOPTED.pdf. 9 J.A. Roach, ‘Arctic Navigation: Recent Developments,’ in M.H. Nordquist, J.J. Moore and R. Long (eds.), Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries (Brill/Nijhoff Publishers, 2016) pp. 204–221, 233–237.

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Marine Environment Protection Committee

Earlier, at mepc 66 in April 2014, it became clear that the texts of the proposed amendments then before the mepc from the first session of the SubCommittee on Ship Design and Construction (sdc 1) lacked legal clarity and certainty. The mepc had before it proposals from four Members, namely the Netherlands and Panama,10 Germany11 and the United States,12 on how best to make the amendments to the annexes mandatory with legal clarity and certainty. No approach received consensus; rather the mepc instructed the correspondence group to prepare draft amendments to the four annexes taking into account portions of each submission.13 The sdc Correspondence Group made insufficient progress in the early summer, so an intersessional meeting was held October 7–9, 2014, just prior to mepc 67.14 The United States submitted legal comments on the draft amendments to the marpol annexes for consideration by mepc 6715 that were considered by the Working Group.16 The revised amendments were approved by mepc 67 for circulation and adoption at mepc 68.17 As noted in the introduction above, the amendments were then adopted by the mepc 68. .



Seafarer Training

The Bergen report by this author noted that no substantive work on providing Polar area seafarer training requirements had been developed by the end

10 11 12 13 14

15 16 17

mepc 66/11/5. mepc 66/11/9. mepc 66/11/14, /15, /16, /17 and /18. imo, Report of the mepc on its 67th Session, mepc 66/21 (April 25, 2014) at 54, para. 11.46. imo, Report of the Polar Code Correspondence Group (Submitted by the United Kingdom), mepc 67/9 (July 10, 2014); imo Circular Letter No. 3465 (June 23, 2014); imo, Report of the Intersessional Working Group, mepc 67/WP.8 (9 October 2014). imo, Legal and Technical comments on Polar Code, Part ii and amendments to marpol (United States), mepc 67/9/5 (August 20, 2014) at paras. 10–19. imo, Report of the Polar Code Working Group, mepc 67/WP.14 (October 15, 2014). imo, Report of the mepc on its 67th Session, mepc 67/20 (October 31, 2014) at para. 9.45. The amendments were circulated by imo Circular Letter No 3495 (October 30, 2014), Annex 1. The texts of the amendments are annexed to mepc 68/6 (January 21, 2015). As noted above at note 5 and accompanying text, the amendments were adopted by mepc 68.

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of 2014.18 A summary is provided below of activity in this regard between 2014 and mid-2016. In 2014 the first meeting of the new Sub-Committee on Human Element, Training and Watchkeeping (htw) (formerly stw)19 formally endorsed the draft Chapter 13 (now 12) of the Polar Code on manning and training familiarity for ships operating in polar waters. htw 1 also progressed work in developing amendments to update certification and training requirements for officers and crew serving onboard ships operating in polar waters in Chapter v of the Annex to the stcw Convention, to reflect the training requirements in the draft chapter.20 As the htw sub-committee meets only once a year, work on the amendments resumed on February 5, 2015 at htw 2. Acting on the proposals of the United States,21 htw 2 endorsed amendments to Chapter v of the Annex to the stcw Convention and Code relating to training requirements for officers and crew on board ships operating in polar waters. htw 2 also invited msc 95 to approve the requirements for circulation and adoption at msc 96 in May 2016, and deemed them to be accepted on July 1, 2017 and enter into force on January 1, 2018 through the tacit acceptance procedure explained in the Bergen proceedings.22 msc 95 approved the draft amendments relating to revised training requirements for masters and deck officers onboard ships operating in polar waters, along with the associated draft msc resolution and stcw Circular for adoption at msc 96.23 However, at msc 96 the Committee noted that some of the proposed amendments were to provisions of the stcw regulations that were not yet in force, which rendered the process legally problematic. Accordingly the Committee agreed to postpone to msc 97 in November 2016 adoption of all the stcw amendments as a package.24 As a result the likely entry into force date of these amendments has been delayed six months, until July 1, 2018. 18 Roach, supra n. 8, at 209–211. 19 February 17–24, 2014. 20 imo, htw Report to the msc, htw 1/21 (March 7, 2014) at para. 11.16, Annex 3. 21 imo, Training Requirements for Officers and Crew on board Ships Operating in Polar Waters, htw 2/9 (October 31, 2014). 22 imo, Report to the Maritime Safety Committee, htw 2/19 (February 6, 2015) at para. 9.10 and Annexes 2 to 4. 23 imo, Report of the Maritime Safety Committee on its 95th Session, msc 95/22 (June 19, 2015), at 18, para. 9.5 and msc 95/22/Add. 2 (June 22, 2015), Annexes 8 to 11. The draft amendments were circulated by imo Circular Letter No. 3556, July 28, 2015. 24 imo, Report of the Maritime Safety Committee on its 96th Session, msc 96/25 (May 31, 2016), at 15–16, paras. 3.52–3.61. The edited proposed amendments were circulated under cover of Circular Letter No. 3641 of May 20, 2016, and annexed to msc 97/3/2 (August 15, 2016) (Secretariat).

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To ameliorate the effect of the delay, the draft msc 97 resolution inter alia: URGES Parties to implement the amendments to regulation I/1.1, regulation I/11 and regulation V/4 at an early stage; [and] INVITES Parties to recognize seafarers’ certificates issued by a Party at an early stage, in accordance with paragraph 4 above, and prior to the entry into force of amendments to regulation V/4[.] In addition, the stcw provisions will include mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on passenger ships on international voyages. This is particularly timely in view of the fact that as this paper is written the first large cruise ship, the Crystal Serenity, is transiting the Northwest Passage from Seward, Alaska, en route New York City with over 1,100 passengers on board. More cruise ships are expected to follow.25 At htw 1 and msc 93, Russia and Canada respectively, sought to include in the chapter on manning and training familiarity a provision authorizing the use of an ice navigator.26 The proposals were rebuffed in both cases.27 This situation has been criticized by experienced ice navigators.28 The effort appears not to have been renewed at htw 2, although Russia expressed similar views that practical experience can only be gained through sea-going practice in polar waters and that adopting a sea service equivalent may result in weaker training requirements for masters and chief mates.29

Tacit Acceptance Procedure

The tacit acceptance procedure is detailed in the report of the Bergen ­conference.30 The following table updates the earlier version in the Bergen ­report31 reflecting developments in 2015 and 2016. 25

http://www.maritime-executive.com/article/video-crystal-serenity-in-the-northwest -passage. 26 htw 1/21, supra note 20, Annex 12, at 1 (statement of Russia); imo, Proposal by Canada, msc 93/11/2 (March 25, 2014) (Canada); imo, Report of the msc on its 93rd Session, msc 93/22/Add.3 (June 9, 2014), Annex 32 at 4–5 (statement by Canada). 27 htw 1/21, supra note 20, at para. 11.16; imo, Report on its 93rd Session, msc 93/22 (May 30, 2014) at 45 para. 10.38. 28 Prior, S., ‘A New Mandatory Code for Shipping in Polar Waters’, Marine Technology Society Journal 48 (September/October 2014), 92, 94. 29 htw 2/19, supra note 22, Annex 9 at 2. 30 Roach, supra n. 8, at 216–222. 31 Id. at 217.

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solas ­Article viii ­Amendments to Regulations except Chapter i marpol Article 16 Amendments to Annexes i, ii, iv, v stcw Article xii Amendments to Annex



Committee meeting

Interval

Committee Interval meeting

Entry into force

msc 93 approved for circulation new Chapter xiv May 2014 mepc 67 ­approved for ­circulation ­October 2014 msc 95 approved for circulation May 2015

Minimum Minimum msc 94 one year 6 months adopted Nov. 2014

Deemed accepted 1 July 2016 eif 1 January 2017

Minimum mepc 68 Minimum 10 months 6 months adopted May 2015

Deemed accepted 1 July 2016 eif 1 January 2017

Minimum Minimum msc 97 6 months adoption one year Nov. 2016

Dates to be set at msc 97 Deemed accepted 1 Jan. 2018 (T) eif 1 July 2018 (T)

Geographic Scope of the Polar Code

The geographic scope of the Polar Code in the Arctic is illustrated below.32

Future Work on the Polar Code

mepc 67 stressed that any future amendments to the Polar Code to introduce additional or new environment-related requirements requires approval by the Committee as a new output in accordance with the Committee’s Guidelines.33,34 The Polar Code has been criticized for focusing more on prevention of pollution than on environmental protection more broadly, perhaps because of the push to finalize the Code quickly.35 32

33 34 35

International Convention for the Safety of Life at Sea, adopted 1 November 1974, 1184 unts 277 (entered into force 25 May 1980) (solas Convention), as amended, Regulation XIV/1.3, imo Circular Letter No 3451 (May 20, 2014), Annex 2. MSC-MEPC.1/Circ.4/Rev.2, June 8, 2012, as amended. mepc 67/20, supra note 17, at 46, para. 9.21. On black carbon, see infra text accompanying notes 53 to 61. imo, Environmental protection in the Polar Code, mepc 68/INF.37 (March 6, 2015) (foei, wwf, csc) and Polar Shipping: A 2014 Recap, The Maritime Executive, reprinted in

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Figure 4.1 Geographic Scope of Polar Code in the Arctic. Source: mepc 68/21/Add.1, Annex 10, p. 9

Application of Polar Code to Classes of Ships solas regulation xiv/2.1 provides that “[u]nless expressly provided otherwise, this chapter applies to ships operating in polar waters, certified in accordance with Chapter i [of solas],” i.e., to ships of 500 gross tonnes and greater. It is understood that the Polar Code applies only to those ships, whether or not they are on international voyages.36 Regulation xiv/2.2 provides that ships constructed before the date of entry into force of the chapter “shall meet the relevant requirements of the Polar Code by the first intermediate or renewal survey, whichever occurs first, after one year after the date of entry into force.” At the 55th session of the Sub-Committee on Design and Equipment (de 55, March 2011), the Sub-Committee had agreed, in principle, that:

36

I­nternational Shipping News, January 12, 2015, http://www.hellenicshippingnews.com/ polar-shipping-a-recap/. imo, Report of the msc on its 93rd Session, msc 93/22 (May 30, 2014) at 40, para.10.20.

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[A] two step approach should be taken, i.e., the Code should initially apply to solas passenger and cargo ships, taking into account the urgent need for relevant mandatory requirements, and later requirements for non-SOLAS ships, such as fishing vessels, may be developed, after consideration by the Organization.37 This agreement was confirmed by de 56, and repeated by New Zealand at de 57 and msc 91.38 In this regard, it should be noted that the applicability limitations in ­s olas Chapter i are each caveated “unless expressly provided otherwise.” If that requirement is met in agreeing for the record, without including it in the text of the regulation, then the Polar Code applies to solas certificated ships not on international voyages, as specified in solas Regulation i (a). If that requirement is not met, Canada and Russia would be free to apply its domestic regulations to their ships on purely domestic voyages in the nwp and nsr, respectively. On the other hand, when work turns to Phase 2, it would be prudent for any amendment to solas Chapter xiv to apply the Polar Code to fishing vessels or vessels below 500 gross tons explicitly to meet this requirement of solas Regulation I/(a). msc 95 noted two documents regarding incidents in polar waters involving non-SOLAS vessels39 and encouraged Member States and international organizations to submit information on incidents in polar waters to assist in assessing the potential scope of the Polar Code to non-Convention vessels operating in polar waters, for consideration at msc 96.40 Three papers on this subject were submitted to msc 96.41 Various views were expressed at msc 96 37 38

39

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imo, de Report to the msc, de 55/22 (April 15, 2011) at 23, para. 12.7.1. imo, de Report to the msc, de 56/25 (February 28, 2012) at 22, para. 10.7; imo, de Report to the msc and mepc, de 57/25 (April 5, 2013) at 23, para. 11.7; imo, Report of the msc on its 91st Session, msc 91/22 (December 17, 2012) at 35, para. 8.5. Request for data on incidents within polar waters, msc 95/21/3 (March 24, 2015) (Iceland, New Zealand and South Africa) and Request for data on incidents within polar waters, msc 95/21/11 (April 14, 2015) (Friends of the Earth International (foei) and Pacific Environment). msc 95/22, supra note 23, at 85, para. 21.24. International Code for Ships Operating in Polar Waters (Polar Code), msc 96/24 (December 14, 2015) (New Zealand) providing data on non-SOLAS vessels operating in polar waters and sar incidents involving non-solas vessels within these waters and the New Zealand non-SOLAS vessels which have operated within Antarctica over the last 10 southern hemisphere summer seasons; International Code for Ships Operating in Polar Waters (Polar

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­regarding Phase 2 work but no consensus was reached. Accordingly msc 96 invited further views to be submitted to msc 97.42 Other Future Work At msc 94, the Committee agreed on the establishment of a correspondence group to prepare draft guidance on a methodology for determining limitations for operation in ice for structural risk assessment, and to exchange information on experience with operations in ice to validate guidance for operations in ice.43 The correspondence group reported to msc 95 that it has made some progress on the development of the guidance but recommended the group be reestablished by msc 95.44 Taking into account the need to make progress in light of the adoption of the Polar Code by msc 94 and mepc 68, msc 95 decided to re-establish the Correspondence Group on the Development of guidance on a methodology for determining limitations for operation in ice, and associated draft msc circular, for structural risk assessment and inclusion in the ship’s documents, based on the documents previously submitted. A report was to be submitted to msc 96.45 The report of the Correspondence Group to msc 96 proposed a draft msc circular on Guidance on methodologies for assessing operational capabilities and limitations in ice, as well as additional information and proposals for modifications of the draft msc circular with regard to the Risk Index of Risk Values (rivs) for ships under ice-breaking escort for parts of the track that have been reduced to brash ice.46 After discussion, the Committee, having concurred

42 43 44 45 46

Code), msc 96/24/3 (March 8, 2016) (Iceland) providing data in relation to non-SOLAS vessels operating in polar waters and sar incidents involving non-SOLAS vessels north of the Arctic Polar Code demarcation line, within the Icelandic search and rescue region (srr), and the Icelandic non-SOLAS vessels which have operated in Arctic polar waters during a two-year period (2014–2015); and the information on the parties responsible for coordinating all maritime and aviation search and rescue activities in the Icelandic srr; Data on vessels and incidents within polar waters in preparation for work on step 2 of the Polar Code, msc 96/24/7 (March 8, 2016) International Code for Ships Operating in Polar Waters (Polar Code) (foei, et al.), informing on incidents involving non-SOLAS vessels operating in polar regions and updating the information previously provided by foei and Pacific Environment in document msc 95/21/11. msc 96/25, supra note 24, 88 at paras 24.2–24.3. imo, Report of the msc on its 94th Session, msc 94/21 (November 26, 2014) at para. 3.62. imo, Report of the Correspondence Group on the Development of guidance on a methodology for determining limitations for operation in ice, msc 95/3/7 (March 6, 2015) (Norway). msc 95/22, supra note 23, at 22, para. 3.91. imo, Report of the Correspondence Group on the Development of guidance on a methodology for determining limitations for operation in ice, msc 96/3/4 (February 9, 2016) (Norway).

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with the view of the Correspondence Group that the Guidance should be reviewed four years after the entry into force of the Polar Code, approved MSC.1/ Circ.1519 on Guidance on methodologies for assessing operational capabilities and limitations in ice. With regard to the future review of the Guidance, which could include discussion on the treatment of brash ice, the Committee agreed that this should be undertaken by the sdc Sub-Committee, without a need for a new output, under the existing output 5.2.1.15 (Consequential work related to the new Code for ships operating in polar waters), in due course.47 At msc 95 the Committee also instructed the third session of the Sub-­ Committee on Ship Systems and Equipment (sse 3), in light of the adoption of the Polar Code, to consider whether additional performance or test standards for fire safety/protection and life-saving appliances and arrangements in relation to the Polar Code are necessary, and advise msc 96 on the best way to proceed.48 In a submission to sse 3, it was recommended that the Sub-Committee advise msc 97 that the International Life-Saving Appliance (lsa) Code should be further reviewed to identify and develop necessary amendments, with a view to meeting the additional demands that the Polar Code put on life-saving appliances and arrangements. The submission emphasized that any amendments would be additional performance and/or test criteria for the equipment and systems on board ships to which a Polar Ship Certificate is issued. For equipment and systems used on ships operating outside polar waters, the test regimes would remain unchanged.49 Following discussion, the Sub-Committee endorsed the view that additional performance and test standards for the equipment and systems on board ships operating in polar waters should be developed. In this connection, the Sub-Committee invited msc 97 to endorse this decision and take action as appropriate. The Sub-Committee also invited interested Member Governments and international organizations to submit comments and proposals pertaining to the scope of work, type of equipment, etc. for consideration at msc 97.50 Areas to be Avoided (atba) ncsr 2 approved the establishment of five recommendatory atbas in the region of the Aleutian Islands, proposed by the United States, and invited msc 47 48 49

50

msc 96/25, supra note 24, 7–18 at paras 3.75–3.78. Ibid. at 23, para. 3.93. imo, Additional performance and/or test standards in support of the implementation of the Polar Code, sse 3/15/4 (December 15, 2015) (Argentina, the Marshall Islands, New Zealand, Norway and Vanuatu). imo, Report of the Sub-Committee on Ship Systems and Equipment on its 3rd session, sse 3/16 (March 24, 2016), 50 at paras 15.15–15.16.

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95 to adopt them.51 msc 95 did adopt these five atbas to be implemented on 1 January 2016.52 Emissions of Black Carbon from International Shipping The imo and the Arctic Council have been considering the impact on the Arctic of emissions of black carbon from international shipping.53 imo Work on Black Carbon The imo has been considering the impact on the Arctic of emissions of Black Carbon from international shipping since 2008. mepc 58 (October 2008), and later sessions, considered documents providing summaries and analyses of various approaches to reduce emissions of climate forcing agents from international shipping, which included information on the impact of Black Carbon. mepc 60 (March 2010) held a debate on whether separate actions were needed to reduce shipping emissions of Black Carbon in the Arctic region and how this should relate to the general work on prevention of air pollution from ships under marpol Annex vi and the Organization’s work on energy efficiency of ships.54 mepc 61 (September 2010) agreed to invite interested delegations and observers to submit concrete proposals with specific measures to the 15th session of the Sub-Committee on Bulk Liquids and Gases (blg 15, February 2011). blg 15, having considered relevant documents, requested the Committee to provide clearer instructions on how the matter of Black Carbon should be addressed.55 mepc 62 (July 2011) agreed to a work plan to consider the impact on the Arctic of Black Carbon emissions from international shipping and instructed 51

52 53

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imo, Establishment of five areas to be avoided in the region of the Aleutian Islands, ncsr 2/3/5 (December 5, 2014 (usa); imo, ncsr 2 Report to the Maritime Safety Committee, ncsr 2/23 (March 26, 2015) at 5 para. 3.13.3 and Annex 1 at 2–3. msc 95/22, supra note 23, at 50, paras. 11.2-11.3 for dissemination by means of SN.1/Circ.331. For information on the impact of black carbon on the Arctic, see Arctic Monitoring and Assessment Program Working Group (amap), ‘The Impact of Black Carbon on Arctic Climate’, amap Technical Report No. 4 (2001), online: http://www.amap.no/documents/doc/ the-impact-of-black-carbon-on-arctic-climate/746 and results of ppr 2 considerations in the Report of the Working Group on Air Pollution from Ships, ppr 2/WP.5 (January 22, 2015) paras. 35–47, and Report to the Martine Environment Protection Committee, ppr 2/21 (February 16, 2015) paras. 8.1-8.7) and the Arctic Council Task Force for Action on Black Carbon and Methane (tfbcm), infra text following note 58. imo, Report of the mepc on its 60th Session, mepc 60/22, April 20, 2010, at 49, para. 5.89. imo, Report of the mepc on its 61st Session, mepc 61/24, October 6, 2010, at 24, paras. ­4.14–4.17; imo, Report of the Sub-Committee on Bulk Liquids and Gas to the msc and the mepc on its 15th session, blg 15/19, March 7, 2011, at 32, paras. 11.47–11.52.

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the Sub-Committee on Bulk Liquids and Gases (now Pollution Prevention and Response) to carry out this work by: developing a definition of Black Carbon; identifying the most appropriate measurement method for international shipping; and investigating appropriate control measures. This work, carried out by the Sub-Committee and successive correspondence groups, identified definition options and a range of applicable measurement methods and technologies, but was unable to achieve a consensus view on those most appropriate for international shipping.56 mepc 67 (October 2014), having considered the outcome of the first session of the Sub-Committee on Pollution Prevention and Response (ppr 1, February 2014) regarding the impact on the Arctic of emissions of Black Carbon from international shipping and related documents, had instructed ppr 2 (January 2015) to further consider the matter, under the same terms of reference as given to ppr 1 (mepc 62/24, paragraph 4.20), and to make a clear recommendation for a single definition of Black Carbon to a future session of the Committee, identifying as part of that recommendation why the Committee should consider the recommended definition, as opposed to any other (mepc 67/20, paragraph 4.8).57 At mepc 68, May 2015, the Committee agreed on a definition of Black Carbon for international shipping and noted the need for Black Carbon measurement studies so as to gain experience with the application of the definition and measurement methods. The Committee agreed on the need for a protocol for any voluntary measurement studies to collect data to identify the most appropriate measurement method(s) of Black Carbon emissions from international shipping. Finally the Committee noted that it was not possible at this stage to consider possible control measures to reduce the impact on the Arctic of emissions of Black Carbon from international shipping.58

Arctic Council Task Force for Action on Black Carbon and Methane (tfbcm) The Arctic Council 2013 Kiruna Declaration provided that the Ministers decided “to establish a Task Force to develop arrangements on actions to achieve enhanced black carbon and methane emission reductions in the Arctic, and to report at the next Ministerial meeting in 2015.”

56

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imo, Report of the mepc on its 62nd Session, mepc 62/24, July 26, 2011, at 24–25, para. 4.20; imo, Report of the Sub-Committee on Bulk Liquids and Gas to the msc and the mepc on its 17th session, blg 17/18, February 8, 2013, at 27–32 paras. 10.2-10.18; imo, Report of the SubCommittee on Pollution Prevention and Response to the mepc on its 1st Session, February 12, 2014, ppr 1/16, at 14–20, Section 8. mepc 68/21, supra note 5, at 19, para. 3.23. mepc 68/21, supra note 5, paras. 3.24-3.30.

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The tfbcm was co-chaired by Canada and Sweden and included representatives from all Arctic States and most Permanent Participants. Arctic Council observers (including China, Germany, Japan, Republic of Korea, the European Union, the United Kingdom and the United Nations Environmental Program) also participated in various meetings of the Task Force, and relevant experts provided guidance, as required. The Task Force’s outcome builds on previous technical work undertaken in the Arctic Council by an earlier Task Force on Short Lived Climate Forcers, the Arctic Monitoring Assessment Program (amap), and the Arctic Contaminants Action Program (acap). The Task Force, during the course of its six meetings, successfully delivered on its mandate and developed an Arctic Council Framework for Action on Enhanced Black Carbon and Methane emissions reductions.59 As short-lived climate pollutants disproportionately impact the Arctic, their reduction will lead to benefits for the climate with important co-benefits for human health and air quality in the Arctic. This Framework represents a high level commitment of Arctic States to take mitigation action, but is not legally binding. It is an action-oriented document and includes work at the national, regional and global levels to reduce emissions of black carbon and methane. The Framework lays out a common vision with enhanced, ambitious, national and collective action to accelerate the decline in overall black carbon emissions and to significantly reduce overall methane emissions. The work of the Task Force also resulted in the creation of an Expert Group with specific terms of reference to support progress on the implementation of the Framework and to continuously drive ambition. It includes a further commitment to provide black carbon inventories starting in 2015 and provides guidance to report on national actions; to establish an aggregate summary of black carbon and methane emissions; and to adopt an ambitious, aspirational and quantitative collective goal on black carbon, and to consider additional goals, by the next Arctic Council Ministerial meeting in 2017. Recognizing that black carbon and methane emitted beyond the borders of Arctic States have a substantial impact on the Arctic, the Framework notes that Arctic States look forward to Arctic Council Observer States taking similar action. The Framework also acknowledges that reducing anthropogenic carbon dioxide emissions remains the most important challenge to address global and Arctic climate change. Arctic States view the Framework as supporting and

59

On the Framework, see Annex 4 to the Iqaluit sao Report to Ministers, online: http:// www.arctic-council.org/index.php/en/document-archive/category/604-declaration-sao -report?download=2737:iqaluit-sao-report-to-ministers-annex-4-enhanced-black-car bon-and-methane-emissions-reductions-an-arctic-council-framework-for-action.

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complementing the goals of the United Nations Framework Convention on Climate Change (unfccc). Russia considers the expert group to be a working organ of the Arctic Council and to be a part of the Arctic Council structure. The participating states submit any national reports related to black carbon and methane emissions on their own initiative and within the framework of their participation in the work of the expert group. These reports are voluntary exchanges of information in accordance with international law and the national legislation of the respective participating State. In this context, “high level political commitments” mean general guidelines for the further cooperation between the states on the issue of the regulation of the black carbon and methane emissions. The document of the Arctic Council “Enhanced Black Carbon and Methane Reductions: An Arctic Council Framework for Action” will be implemented by the Russian Federation in the context of this understanding.60 At the 2015 Arctic Council Ministerial meeting, the Ministers decided to implement the Framework for Action on Enhanced Black Carbon and Methane Emissions Reductions and established an expert group to report on progress to the sao.61 Appendix 1 Resolution MEPC.264(68) (adopted on 15 May 2015) International Code for Ships Operating in Polar Waters (Polar Code) THE MARINE ENVIRONMENT PROTECTION COMMITTEE, RECALLING Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by international conventions for the prevention and control of marine pollution from ships, RECOGNIZING the need to provide a mandatory framework for ships operating in polar waters due to the additional demands for the protection of the 60 Iqaluit sao Report to Ministers, 2015, online: http://www.arctic-council.org/index.php/ en/document-archive/category/604-declaration-sao-report?download=2734:iqaluit -sao-report-to-ministers-unformatted-version. 61 Iqaluit Ministerial Declaration, 24 April 2015, para. 24, online: http://www.arctic-council .org/index.php/en/document-archive/category/604-declaration-sao-report?download =2740:iqaluit-declaration-final-signed-version.

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marine environment, which go beyond the existing requirements contained in the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto as amended by the 1997 Protocol (marpol) and other relevant binding imo instruments, NOTING resolution MEPC.265(68), by which it adopted, inter alia, amendments to marpol Annexes i, ii, iv and v to make use of the environment-­ related provisions of the International Code for Ships Operating in Polar Waters (Polar Code) mandatory, NOTING ALSO that the Maritime Safety Committee, at its ninety-fourth session, adopted, by resolution MSC.385(94), the Introduction, as it relates to safety, and Parts i-A and i-B of the Polar Code and, by resolution MSC.386(94), amendments to the 1974 solas Convention to make use of the safety-related provisions of the Polar Code mandatory, HAVING CONSIDERED, at its sixty-eighth session, the draft International Code for Ships Operating in Polar Waters, 1. 2. 3. 4. 5.

6. 7.

ADOPTS the environment-related provisions of the Introduction, and the whole of Parts ii-A and ii-B of the Polar Code, the text of which is set out in the annex to the present resolution; AGREES that amendments to the Introduction of the Polar Code that address both safety and environmental protection shall be adopted in consultation with the Maritime Safety Committee; INVITES Parties to note that the Polar Code will take effect on 1 January 2017 upon entry into force of the associated amendments to marpol Annexes i, ii, iv and v; INVITES ALSO Parties to consider the voluntary application of the Polar Code, as far as practicable, to ships not covered by the Polar Code and operating in polar waters; REQUESTS the Secretary-General, for the purposes of article 16(2)(e) of marpol, to transmit certified copies of the present resolution and the text of the Polar Code, contained in the annex, to all Parties to marpol; REQUESTS ALSO the Secretary-General to transmit copies of the present resolution and the text of the Polar Code contained in the annex to Members of the Organization which are not Parties to marpol; REQUESTS FURTHER the Secretary-General to prepare a consolidated certified text of the Polar Code.

The text of the Annex (the Polar Code) is omitted as it is available online at http://www.imo.org/en/MediaCentre/HotTopics/polar/Documents/POLAR CODE TEXT AS ADOPTED.pdf

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Appendix 2 Amended solas to Make Mandatory Part i-A of the Polar Code

Chapter xiv Safety Measures for Ships Operating in Polar Waters Regulation 1 – Definitions For the purpose of this chapter: 1

2 3

62

Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, Parts i-A and ii-A and Parts i-B and ii-B, as adopted by resolutions msc.385(94) and of the Marine Environment Protection Committee,62 as may be amended, provided that: 1 amendments to the safety-related provisions of the introduction and Part i-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article viii of the present Convention concerning the amendment procedures applicable to the annex other than Chapter i; and 2 amendments to Part i-B of the Polar Code are adopted by the Maritime Safety Committee in accordance with its Rules of Procedure. Antarctic area means the sea area south of latitude 60° S. Arctic waters means those waters which are located north of a line from the latitude 58°00’.0 N and longitude 042°00’.0 W to latitude 64°37’.0 N, longitude 035°27’.0 W and thence by a rhumb line to latitude 67°03’.9 N, longitude 026°33’.4 W and thence by a rhumb line to the latitude 70°49’.56 N and longitude 008°59’.61 W (Sørkapp, Jan Mayen) and by the southern shore of Jan Mayen to 73°31’.6 N and 019°01’.0 E by the Island of Bjørnøya, and thence by a great circle line to the latitude 68°38’.29 N and longitude 043°23’.08 E (Cap Kanin Nos) and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60° N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60° N and thence eastward along parallel of latitude 60° Refer to the resolution of adoption of the International Code for Ships Operating in Polar Waters, by the Marine Environment Protection Committee.

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N, to longitude 056°37’.1 W and thence to the latitude 58°00’.0 N, longitude 042°00’.0 W. Polar waters means both Arctic waters and/or the Antarctic area. Ship constructed means a ship the keel of which is laid or which is at a similar stage of construction. At a similar stage of construction means the stage at which: 1 construction identifiable with a specific ship begins; and 2 assembly of that ship has commenced comprising at least 50 tonnes or 1% of the estimated mass of all structural material, whichever is less. Regulation 2 – Application Unless expressly provided otherwise, this chapter applies to ships operating in polar waters, certified in accordance with Chapter i. Ships constructed before 1 January 2017 shall meet the relevant requirements of the Polar Code by the first intermediate or renewal survey, whichever occurs first, after 1 January 2018. In applying Part i-A of the Polar Code, consideration should be given to the additional guidance in Part i-B of the Polar Code. This chapter shall not apply to ships owned or operated by a Contracting Government and used, for the time being, only in Government noncommercial service. However, ships owned or operated by a Contracting Government and used, for the time being, only in Government non-­ commercial service are encouraged to act in a manner consistent, so far as reasonable and practicable, with this chapter. Nothing in this chapter shall prejudice the rights or obligations of States under international law. Regulation 3 – Requirements for Ships to Which this Chapter Applies Ships to which this chapter applies shall comply with the requirements of the safety-related provision of the introduction, Part i-A of the Polar Code and shall, in addition to the requirements of regulations I/7, I/8, I/9, and I/10, as applicable, be surveyed and certified, as provided for in that Code. Ships to which this chapter applies holding a certificate issued pursuant to the provisions of paragraph 1 shall be subject to the control established in regulations I/19 and xi-1/4. For this purpose, such certificates shall be treated as a certificate issued under regulation I/12 or I/13.

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Regulation 4 – Alternative Design and Arrangement The goal of this regulation is to provide a methodology for alternative design and arrangements for structure, machinery, and electrical installations, fire safety and life-saving appliances and arrangements. Structural arrangements, machinery and electrical installation, fire safety design and arrangement measures and as well as life-saving appliances and arrangements may deviate from the prescriptive requirements set out in Chapters 3, 6, 7 and 8 of the Polar Code, provided that the alternative design and arrangements meet the intent of the goal and functional requirements concerned and provide an equivalent level of safety to the requirements in those chapters. When alternative designs or arrangements deviate from the prescriptive requirements of Chapters 3, 6, 7 and 8 of the Polar Code, an engineering analysis, evaluation and approval of the design and arrangements shall be carried out based on the Guidelines approved by the Organization.63 Any alternative designs or arrangement deviating from the prescriptive requirements shall be recorded in the Polar Ship Certificate and the ship’s Polar Water Operational Manual, as required by the Polar Code, also defining the technical and operational measures and conditions for the allowed deviation.

Appendix 3 Amendments to marpol 73/78 Annexes i, ii, iv and v to Make Mandatory Environment-related Provisions (Part ii-A) of the Polar Code

Resolution MEPC.265(68) (adopted on May 15, 2015)

63

Amendments to the Annex of the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 Refer to the Guidelines for the approval of alternatives and equivalents as provided for in various imo instruments (MSC.1/Circ. 1455), the Guidelines on alternative design and arrangements for solas Chapters ii-1 and iii (MSC.1/Circ.1212) and the Guidelines on alternative design and arrangements for fire safety (MSC/Circ. 1002), as applicable.

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Amendments to marpol Annexes i, ii, iv and v (Making the Use of the Environment-related Provisions of the Polar Code mandatory)

THE MARINE ENVIRONMENT PROTECTION COMMITTEE, RECALLING Article 38(a) of the Convention on the International Maritime Organization concerning the functions of the Marine Environment Protection Committee conferred upon it by international conventions for the prevention and control of marine pollution from ships, NOTING article 16 of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (marpol), which specifies the amendment procedure and confers upon the appropriate body of the Organization the function of considering and adopting amendments thereto, RECOGNIZING the need to provide a mandatory framework for ships operating in polar waters due to the additional demands on ships, their systems and operation, which go beyond the existing requirements of marpol, and other relevant binding imo instruments, NOTING resolution MEPC.264(68), by which it adopted the International Code for Ships Operating in Polar Waters (Polar Code) with respect to its ­environment-related provisions, NOTING ALSO that the Maritime Safety Committee, at its ninety-fourth session, adopted, by resolution MSC.385(94), the International Code for Ships Operating in Polar Waters with respect to its safety-related provisions, and, by resolution MSC.386(94), amendments to the 1974 solas Convention to make the safety-related provisions of the Polar Code mandatory, HAVING CONSIDERED proposed amendments to marpol Annexes i, ii, iv and v to make the environment-related provisions of the Polar Code mandatory, 1 2

ADOPTS, in accordance with article 16(2)(d) of marpol, amendments to Annexes i, ii, iv and v, the text of which is set out in the annex to the present resolution; DETERMINES, in accordance with article 16(2)(f)(iii) of marpol, that the amendments shall be deemed to have been accepted on 1 July 2016, unless, prior to that date, not less than one third of the Parties or Parties the combined merchant fleets of which constitute not less than 50% of the gross tonnage of the world’s merchant fleet, have communicated to the Organization their objection to the amendments;

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INVITES the Parties to note that, in accordance with article 16(2) (g)(ii) of marpol, the said amendments shall enter into force on 1 January 2017 upon their acceptance in accordance with paragraph 2 above; REQUESTS the Secretary-General, for the purposes of article 16(2)(e) of marpol, to transmit certified copies of the present resolution and the text of the amendments contained in the annex to all Parties to marpol; REQUESTS FURTHER the Secretary-General to transmit copies of the present resolution and its annex to Members of the Organization which are not Parties to marpol.

Annex Amendments to Marpol Annexes i, ii, iv and v Annex i Regulations for the Prevention of Pollution by Oil Chapter 1 General Regulation 3 – Exemptions and Waivers 1 In paragraph 1, the words “or Section 1.2 of Part ii-A of the Polar Code” are inserted between “Chapters 3 and 4 of this Annex” and ‘“relating to construction”. 2 A new paragraph 5.2.2 is added as follows: “.2 voyages within Arctic waters; or” 3 The existing paragraphs 5.2.2 to 5.2.6 are renumbered as paragraphs 5.2.3 to 5.2.7 and the subparagraphs are renumbered accordingly. In the renumbered paragraphs 5.2.5 and 5.2.6, the referenced paragraph numbers “5.2.2” and “5.2.2.2” are replaced by “5.2.3” and “5.2.3.2”, respec­tively. 4 The chapeau of the renumbered paragraph 5.2.3 is replaced with the following: “.3 voyages within 50 nautical miles from the nearest land outside special areas or Arctic waters where the tanker is engaged in:” 5

Regulation 4 – Exceptions The chapeau is replaced with the following: “Regulations 15 and 34 of this Annex and paragraph 1.1.1 of Part ii-A of the Polar Code shall not apply to:”

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Chapter 3 Requirements for machinery spaces of all ships Part B Equipment Regulation 14 – Oil filtering equipment

Paragraph 5.1 is replaced with the following: “.1 any ship engaged exclusively on voyages within special areas or Arctic waters, or” In paragraph 5.3.4, between the words “within special areas” and “or has been accepted”, the words “or Arctic waters” are inserted. Part C Control of Operational Discharges of Oil

Regulation 34 – Control of Discharge of Oil

10

At the end of the title for section A, the words “except in Arctic waters” are added.



Chapter 6 Reception Facilities Regulation 38 – Reception Facilities In paragraph 2.5, the words “and paragraph 1.1.1 of Part ii-A of the Polar Code” are added after the words “regulations 15 and 34 of this Annex”. In paragraph 3.5, the words “and paragraph 1.1.1 of Part ii-A of the Polar Code” are added after the words “regulation 15 of this Annex”.

11 12 13

Chapter 11 International Code for Ships Operating in Polar Waters A new Chapter 11 is added after existing Chapter 10 as follows: “Chapter 11 – International Code for Ships Operating in Polar Waters Regulation 46 – Definitions

For the purpose of this Annex, 1

Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, Parts i-A and ii-A and Parts i-B and ii-B, adopted by resolutions MSC.385(94) and MEPC.264(68), as may be amended, provided that:

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amendments to the environment-related provisions of the introduction and Chapter 1 of Part ii-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and 2 amendments to Part ii-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. Arctic waters means those waters which are located north of a line from the latitude 58°00’.0 N and longitude 042°00’.0 W to latitude 64°37’.0 N, longitude 035°27’.0 W and thence by a rhumb line to latitude 67°03’.9 N, longitude 026°33’.4 W and thence by a rhumb line to the latitude 70°49’.56 N and longitude 008°59’.61 W (Sørkapp, Jan Mayen) and by the southern shore of Jan Mayen to 73°31’.6 N and 019°01’.0 E by the Island of Bjørnøya, and thence by a great circle line to the latitude 68°38’.29 N and longitude 043°23’.08 E (Cap Kanin Nos) and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60° N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60° N and thence eastward along parallel of latitude 60° N, to longitude 056°37’.1 W and thence to the latitude 58°00’.0 N, longitude 042°00’.0 W. Polar waters means Arctic waters and/or the Antarctic area. Regulation 47 – Application and Requirements This chapter applies to all ships operating in polar waters. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with Chapter 1 of Part ii-A of the Polar Code, in addition to any other applicable requirements of this Annex. In applying Chapter 1 of Part ii-A of the Polar Code, consideration should be given to the additional guidance in Part ii-B of the Polar Code.”

Appendix ii Form of iopp Certificate and Supplements Appendix Supplement to the International Oil Pollution Prevention Certificate (iopp Certificate) – Form A

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15

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A new Section 8 is added after existing Section 7 as follows: “8 Compliance with Part ii-A – Chapter 1 of the Polar Code 8.1 The ship is in compliance with additional requirements in the environment-related provisions of the Introduction and Section 1.2 of Chapter 1 of Part ii-A of the Polar Code.” Supplement to the international Oil Pollution Prevention Certificate (iopp Certificate) – Form B A new Section 11 is added after existing Section 10 as follows: “11 Compliance with Part ii-A – Chapter 1 of the Polar Code 11.1 The ship is in compliance with additional requirements in the environment-related provisions of the introduction and Section 1.2 of Chapter i of Part ii-A of the Polar Code.”

Annex ii 1

2



Regulations for the Control of Pollution of Noxious Liquid Substances in Bulk Chapter 1 General Regulation 3 – Exceptions In the chapeau of paragraph 1, between the words “this Annex” and “shall not apply”, the words “and Chapter 2 of Part ii-A of the Polar Code” are inserted. Chapter 6 Measures of Control by Port States Regulation 16 – Measures of Control In paragraph 3, the reference to “regulation 13 and of this regulation” is replaced with “regulation 13 and of this regulation, and Chapter 2 of Part ii-A of the Polar Code when the ship is operating in Arctic waters,” Chapter 10 International Code for Ships Operating in Polar Waters

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A new Chapter 10 is added after existing Chapter 9 as follows:



“Chapter 10 – International Code for International Code for Ships Operating in Polar Waters Regulation 21 – Definitions For the purpose of this Annex, 1

2

3 1

Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, Part i-A and Part ii-A and Parts i-B and ii-B, as adopted by resolutions MSC.385(94) and MEPC.264(68), as may be amended, provided that: 1 amendments to the environment-related provisions of the introduction and Chapter 2 of Part ii-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and 2 amendments to Part ii-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. Arctic waters means those waters which are located north of a line from the latitude 58°00’.0 N and longitude 042°00’.0 W to latitude 64°37’.0 N, longitude 035°27’.0 W and thence by a rhumb line to latitude 67°03’.9 N, longitude 026°33’.4 W and thence by a rhumb line to the latitude 70°49’.56 N and longitude 008°59’.61 W (Sørkapp, Jan Mayen) and by the southern shore of Jan Mayen to 73°31’.6 N and 019°01’.0 E by the Island of Bjørnøya, and thence by a great circle line to the latitude 68°38’.29 N and longitude 043°23’.08 E (Cap Kanin Nos) and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60° N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60° N and thence eastward along parallel of latitude 60° N, to longitude 056°37’.1 W and thence to the latitude 58°00’.0 N, longitude 042°00’.0 W. Polar waters means Arctic waters and/or the Antarctic area. Regulation 22 – Application and requirements This chapter applies to all ships certified to carry noxious liquid substances in bulk, operating in polar waters.

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Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with Chapter 2 of Part ii-A of the Polar Code, in addition to any other applicable requirements of this Annex. In applying Chapter 2 of Part ii-A of the Polar Code, consideration should be given to the additional guidance in Part ii-B of the Polar Code.”

Appendix iv Standard format for the Procedures and Arrangements Manual 4

5

Section 1 – Main Features of marpol Annex ii At the end of paragraph 1.3, the following sentence is added: “In addition, under Chapter 2 of Part ii-A of the Polar Code, more stringent discharge criteria apply in Arctic waters.” Section 4 – Procedures Relating to the Cleaning of Cargo Tanks, the Discharge of Residues, Ballasting and Deballasting In paragraph 4.4.3, the words “Antarctic area (the sea area south of latitude 60° S)” are replaced with the words “polar waters”.

Annex iv Regulations for the Prevention of Pollution by Sewage from Ships Chapter 1 General Regulation 3 – Exceptions 1 The chapeau of paragraph 1 is replaced with the following: “1 Regulation 11 of this Annex and Section 4.2 of Chapter 4 of Part ii-A of the Polar Code, shall not apply to:” 2

Chapter 7 International Code for Ships Operating in Polar Waters A new Chapter 7 is added after existing Chapter 6 as follows:

“Chapter 7 – International Code for Ships Operating in Polar Waters Regulation 17 – Definitions For the purpose of this Annex,

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Polar Code means the International Code for ships operating in polar waters, consisting of an introduction, Part i-A and Part ii-A and Parts i-B and ii-B, as adopted by resolutions MSC.385(94) and MEPC.264(68), as may be amended, provided that: 1 amendments to the environment-related provisions of the introduction and Chapter 4 of Part ii-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and 2 amendments to Part ii-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. Antarctic area means the sea area south of latitude 60° S. Arctic waters means those waters which are located north of a line from the latitude 58°00’.0 N and longitude 042°00’.0 W to latitude 64°37’.0 N, longitude 035°27’.0 W and thence by a rhumb line to latitude 67°03’.9 N, longitude 026°33’.4 W and thence by a rhumb line to the latitude 70°49’.56 N and longitude 008°59’.61 W (Sørkapp, Jan Mayen) and by the southern shore of Jan Mayen to 73°31’.6 N and 019°01’.0 E by the Island of Bjørnøya, and thence by a great circle line to the latitude 68°38’.29 N and longitude 043°23’.08 E (Cap Kanin Nos) and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60° N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60° N and thence eastward along parallel of latitude 60° N, to longitude 056°37’.1 W and thence to the latitude 58°00’.0 N, longitude 042°00’.0 W. Polar waters means Arctic waters and/or the Antarctic area. Regulation 18 – Application and Requirements This chapter applies to all ships certified in accordance with this Annex operating in polar waters. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with Chapter 4 of Part ii-A of the Polar Code, in addition to any other applicable requirements of this Annex.”

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Annex v Regulations for the Prevention of Pollution by Garbage from Ships Chapter 1 General Regulation 3 – General Prohibition on Discharge of Garbage into the Sea 1 In paragraph 1, the reference to “regulation 4, 5, 6 and 7 of this Annex” is replaced with “regulation 4, 5, 6 and 7 of this Annex and Section 5.2 of Part ii-A of the Polar Code, as defined in regulation 13.1 of this Annex.” 2 3

4

5

Regulation 7 – Exceptions The chapeau of paragraph 1 is replaced with the following: “1 Regulations 3, 4, 5 and 6 of this Annex and Section 5.2 of Chapter 5 of Part ii-A of the Polar Code shall not apply to:” Paragraph 2.1 is replaced with the following: “.1 The en route requirements of regulations 4 and 6 of this Annex and Chapter 5 of Part ii-A of the Polar Code shall not apply to the discharge of food wastes where it is clear the retention on board of these food wastes presents an imminent health risk to the people on board.” Regulation 10 – Placards, Garbage Management Plans and Garbage Record Keeping In paragraph 1.1, the words “and Section  5.2 of Part ii-A of the Polar Code” are added after the references to “regulations 3, 4, 5 and 6 of this Annex”. Chapter 3 International Code for Ships Operating in Polar Waters A new Chapter 3 is added as follows:

“Chapter 3 – International Code for Ships Operating in Polar Waters Regulation 13 – Definitions For the purpose of this Annex, 1

Polar Code means the International Code for Ships Operating in Polar Waters, consisting of an introduction, Part i-A and Part ii-A and Parts i-B and ii-B, as adopted by resolutions MSC.385(94) and MEPC.264(68), as may be amended, provided that:

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amendments to the environment-related provisions of the introduction and Chapter 5 of Part ii-A of the Polar Code are adopted, brought into force and take effect in accordance with the provisions of article 16 of the present Convention concerning the amendment procedures applicable to an appendix to an annex; and 2 amendments to Part ii-B of the Polar Code are adopted by the Marine Environment Protection Committee in accordance with its Rules of Procedure. Arctic waters means those waters which are located north of a line from the latitude 58°00’.0 N and longitude 042°00’.0 W to latitude 64°37’.0 N, longitude 035°27’.0 W and thence by a rhumb line to latitude 67°03’.9 N, longitude 026°33’.4 W and thence by a rhumb line to the latitude 70°49’.56 N and longitude 008°59’.61 W (Sørkapp, Jan Mayen) and by the southern shore of Jan Mayen to 73°31’.6 N and 019°01’.0 E by the Island of Bjørnøya, and thence by a great circle line to the latitude 68°38’.29 N and longitude 043°23’.08 E (Cap Kanin Nos) and hence by the northern shore of the Asian Continent eastward to the Bering Strait and thence from the Bering Strait westward to latitude 60° N as far as Il’pyrskiy and following the 60th North parallel eastward as far as and including Etolin Strait and thence by the northern shore of the North American continent as far south as latitude 60° N and thence eastward along parallel of latitude 60° N, to longitude 056°37’.1 W and thence to the latitude 58°00’.0 N, longitude 042°00’.0 W. Polar waters means Arctic waters and/or the Antarctic area. Regulation 14 – Application and Requirements This chapter applies to all ships to which this Annex applies, operating in polar waters. Unless expressly provided otherwise, any ship covered by paragraph 1 of this regulation shall comply with the environment-related provisions of the introduction and with Chapter 5 of Part ii-A of the Polar Code, in addition to any other applicable requirements of this Annex. In applying Chapter 5 of Part ii-A of the Polar Code, consideration should be given to the additional guidance in Part ii-B of the Polar Code.”

Appendix Form of Garbage Record Book 6

The chapeau of Section 4.1.3 is replaced with the following:

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“4.1.3 When garbage is discharged into the sea in accordance with ­regulations 4, 5 or 6 of marpol Annex v or Chapter 5 of Part ii-A of the Polar Code:” *** Appendix 4 Draft Amendments to stcw

Annex Amendments to the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (stcw), 1978, as Amended Chapter i General Provisions 1 In regulation I/1.1, the following new definitions are added: “.42 Polar Code means the International Code for Ships O ­ perating in ­Polar Waters, as defined in solas regulation XIV/1.1. 43 Polar waters means Arctic waters and/or the Antarctic area, as ­defined in solas regulations XIV/1.2 to XIV/1.4.” 2 In regulation I/11, after the existing paragraph 3, the following new paragraph is inserted: “4 Every master or officer shall, for continuing seagoing service on board ships operating in polar waters, meet the requirements of paragraph 1 of this regulation and be required, at intervals not exceeding five years, to establish continued professional competence for ships operating in polar waters in accordance with section A-1/11, paragraph 4 of the stcw Code.” Chapter v Special Training Requirements for Personnel on Certain Types of Ships 3 In Chapter v, the existing regulation V/2 is replaced by the following:

“Regulation V/2

Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on passenger ships

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2 3

4

5

6 7

8

9

This regulation applies to masters, officers, ratings and other personnel serving on board passenger ships engaged on international voyages. Administrations shall determine the applicability of these requirements to personnel serving on passenger ships engaged on domestic voyages. Before being assigned shipboard duties, all persons serving on a passenger ship shall meet the requirements of section A-VI/1, paragraph 1 of the stcw Code. Masters, officers, ratings and other personnel serving on board passenger ships shall complete the training and familiarization required by paragraphs 5 to 9 below, in accordance with their capacity, duties and responsibilities. Masters, officers, ratings and other personnel, who are required to be trained in accordance with paragraphs 7 to 9 below shall, at intervals not exceeding five years, undertake appropriate refresher training or be required to provide evidence of having achieved the required standard of competence within the previous five years. Personnel serving on board passenger ships shall complete passenger ship emergency familiarization appropriate to their capacity, duties and responsibilities as specified in Section A-V/2, paragraph 1 of the stcw Code. Personnel providing direct service to passengers in passenger spaces on board passenger ships shall complete the safety training specified in Section A-V/2, paragraph 2 of the stcw Code. Masters, officers, ratings qualified in accordance with Chapters ii, iii and vii and other personnel designated on the muster list to assist passengers in emergency situations on board passenger ships, shall complete passenger ship crowd management training as specified in Section A-V/2, paragraph 3 of the stcw Code. Masters, chief engineer officers, chief mates, second engineer officers and any person designated on the muster list of having responsibility for the safety of passengers in emergency situations on board passenger ships shall complete approved training in crisis management and human behaviour as specified in Section A-V/2, paragraph 4 of the stcw Code. Masters, chief engineer officers, chief mates, second engineer officers and every person assigned immediate responsibility for ­embarking and disembarking passengers, for loading, d­ ischarging

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or securing cargo, or for closing hull openings on board ro-ro passenger ships, shall complete approved training in passenger safety, cargo safety and hull integrity as specified in Section A-V/2, paragraph 5 of the stcw Code. 10 Administrations shall ensure that documentary evidence of the training which has been completed is issued to every person found qualified in accordance with paragraphs 6 to 9 of this regulation.” In Chapter v, the following new regulation is inserted: “Regulation V/4

Mandatory minimum requirements for the training and qualifications of masters and deck officers on ships operating in polar waters. 1 2

3 4

5

Masters, chief mates and officers in charge of a navigational watch on ships operating in polar waters shall hold a certificate in basic training for ships operating in polar waters, as required by the Polar Code. Every candidate for a certificate in basic training for ships operating in polar waters shall have completed an approved basic training for ships operating in polar waters and meet the standard of competence specified in Section A-V/4, paragraph 1, of the stcw Code. Masters and chief mates on ships operating in polar waters, shall hold a certificate in advanced training for ships operating in polar waters, as required by the Polar Code. Every candidate for a certificate in advanced training for ships operating in polar waters shall: 1 meet the requirements for certification in basic training for ships in polar waters; 2 have at least two (2) months of approved seagoing service in the deck department, at management level or while performing watchkeeping duties at the operational level, within polar waters or other equivalent approved seagoing service; and 3 have completed approved advanced training for ships operating in polar waters and meet the standard of competence specified in Section A-V/4, paragraph 2 of the stcw Code. Administrations shall ensure that a Certificate of Proficiency is issued to seafarers who are qualified in accordance with paragraphs 2 or 4, as appropriate.

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Transitional Provisions Until [entry into force date plus 2 years], seafarers who commenced approved seagoing service in polar waters prior to [the date of entry into force of this section] shall be able to establish that they meet the requirements of paragraph 2 by: 1 having completed approved seagoing service on board a ship operating in polar waters or equivalent approved seagoing service, performing duties in the deck department at the operational or management level, for a period of at least three months in total during the preceding five years; or 2 having successfully completed a training course meeting the training guidance established by the Organization for ships operating in polar waters.64 Until [entry into force date plus 2 years], seafarers who commenced approved seagoing service in polar waters prior to [the date of entry into force of this section] shall be able to establish that they meet the requirements of paragraph 4 by: 1 having completed approved seagoing service on board a ship ­operating in polar waters or equivalent approved seagoing service, ­performing duties in the deck department at management level, for a period of at least three months in total during the preceding five years; or 2 having successfully completed a training course meeting the training guidance established by the Organization for ships operating in polar waters1 and having completed approved seagoing service on board a ship operating in polar waters or equivalent approved seagoing service, performing duties in the deck department at the management level, for a period of at least two months in total during the preceding five years.” ***

Appendix 5 Draft Amendments to Part A of stcw Code 64

Refer to Section B-V/g of the stcw Code.

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Annex Draft Amendments to Part a of the Seafarers’ Training, Certification and Watchkeeping (stcw) Code Chapter i – General Provisions 1 In section A-I/11, Revalidation of Certificates, a new paragraph 4 is added as follows: “4. Continued professional competence for masters and officers on board ships operating in polar waters as required under regulation I/11 shall be established by: 1 approved seagoing service, performing functions appropriate to the certificate held, for a period of at least two months in total during the preceding five years; or 2 having performed functions considered to be equivalent to the ­seagoing service required in paragraph 4.1; or 3 passing an approved test; or 4 successfully completing an approved training course or courses.” 2 In Section A-I/14, after existing paragraph 3, new paragraph 4 is added as follows: “4 Companies shall ensure that masters and officers on board their passenger ships shall have completed familiarization training to attain the abilities that are appropriate to the capacity to be filled and duties and responsibilities to be taken up, taking into account the guidance given in Section B-I/14, paragraph 3 of this Code.” Chapter v – Special Training Requirements for Personnel on Certain Types of Ships 3 In Chapter v, the existing Section A-V/2 is replaced by the following:

“Section A-V/2

Mandatory minimum requirements for the training and qualification of masters, officers, ratings and other personnel on passenger ships 1

Passenger Ship Emergency Familiarization Before being assigned to shipboard duties, all personnel serving on board passenger ships engaged on international voyages shall ensure

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attainment of the abilities that are appropriate to their duties and responsibilities as follows: Contribute to the implementation of emergency plans, instructions and procedures 1

Familiar with: 1.1 general safety features aboard ship; 1.2 location of essential safety and emergency equipment, including life-saving appliances; 1.3 importance of personal conduct during an emergency; and 1.4 restrictions on the use of elevators during emergencies.

Contribute to the effective communication with passengers during an emergency 2

Ability to: 2.1 communicate in the working language of the ship; 2.2 non-verbally communicate safety information; and 2.3 understand one of the languages in which emergency announcements may be broadcast on the ship during an emergency or drill.

2

Safety Training for Personnel Providing Direct Service to Passengers in Passenger Spaces Before being assigned to shipboard duties, the additional safety training required by regulation V/2, paragraph 6, shall at least ensure attainment of the abilities as follows:

Communication 1

Ability to communicate with passengers during an emergency, taking into account: 1.1

the language or languages appropriate to the principal nationalities of passengers carried on the particular route; 1.2 the likelihood that an ability to use an elementary English vocabulary for basic instructions can provide a means of communicating with a passenger in need of assistance whether or not the passenger and crew member share a common language;

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1.3 the possible need to communicate during an emergency by some other means, such as by demonstration, or hand signals, or calling attention to the location of instructions, muster stations, lifesaving devices or evacuation routes, when oral communication is impractical; 1.4 the extent to which complete safety instructions have been provided to passengers in their native language or languages; and 1.5 the languages in which emergency announcements may be broadcast during an emergency or drill to convey critical guidance to passengers and to facilitate crew members in assisting passengers. Life-saving appliances 2

Ability to demonstrate to passengers the use of personal life-saving appliances.

Embarkation procedures 3

3

4

Embarking and disembarking passengers, with special attention to disabled persons and persons needing assistance. Passenger Ship Crowd Management Training Before being assigned to shipboard duties, masters, officers, ratings qualified in accordance with Chapters ii, iii and vii and personnel designated on the muster list to assist passengers in emergency situations shall: 1 have successfully completed the crowd management training required by regulation V/2, paragraph 7, as set out in table A-V/2-1; and 2 be required to provide evidence that the training has been completed in accordance with table A-V/2-1. Crisis Management and Human Behaviour Training Before being assigned to shipboard duties, masters, chief engineer officers, chief mates, second engineer officers and any person designated on the muster list as having responsibility for the safety of passengers in emergency situations shall:

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5

have successfully completed the approved crisis management and human behaviour training required by regulation V/2, paragraph 8, as set out in table A-V/2-2; and be required to provide evidence that the required standard of competence has been achieved in accordance with the methods and the criteria for evaluating competence tabulated in columns 3 and 4 of table A-V/2-2. Passenger Safety, Cargo Safety and Hull Integrity Training

Before being assigned to shipboard duties, the passenger safety, cargo safety and hull integrity training required by regulation V/2, paragraph 9, for masters, chief mates, chief engineer officers, second engineer officers and persons assigned immediate responsibility for embarking and disembarking passengers, for loading, discharging or securing cargo, or for closing hull openings on board ro-ro passenger ships shall at least ensure attainment of the abilities that are appropriate to their duties and responsibilities as follows:

Loading and embarkation procedures 1

Ability to apply properly the procedures established for the ship regarding: 1.1 loading and discharging vehicles, rail cars and other cargo transport units, including related communications; 1.2 lowering and hoisting ramps; 1.3 setting up and stowing retractable vehicle decks; and 1.4 embarking and disembarking passengers, with special attention to disabled persons and persons needing assistance.

Carriage of dangerous goods 2

Ability to apply any special safeguards, procedures and requirements regarding the carriage of dangerous goods on board ro-ro passenger ships.

Securing cargoes

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Ability to: 3.1 apply correctly the provisions of the Code of Safe Practice for C ­ argo Stowage and Securing to the vehicles, rail cars and other cargo transport units carried; and 3.2 use properly the cargo-securing equipment and materials provided, taking into account their limitations.

Stability, trim and stress calculations 4

Ability to: 4.1 make proper use of the stability and stress information provided; 4.2 calculate stability and trim for different conditions of loading, using the stability calculators or computer programs provided; 4.3 calculate load factors for decks; and 4.4 calculate the impact of ballast and fuel transfers on stability, trim and stress.

Opening, closing and securing hull openings 5

Ability to: 5.1 apply properly the procedures established for the ship regarding the opening, closing and securing of bow, stern and side doors and ramps and to correctly operate the associated systems; and 5.2 conduct surveys on proper sealing.

Ro-ro deck atmosphere 6



Ability to: 6.1 use equipment, where carried, to monitor atmosphere in ro-­ro spaces; and 6.2 apply properly the procedures established for the ship for ventilation of ro-ro spaces during loading and discharging of vehicles, while on voyage and in emergencies. Table A-V/2-1

Specification of minimum standard of competence in passenger ship crowd management training [omitted]

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Table A-V/2-2

Specification of minimum standard of competence in passenger ship crisis management and human behavior [omitted] 4

A new Section A-V/4 is added after the existing Section A-V/3 as follows: “Section A-V/4

Mandatory minimum requirements for the training and qualifications of masters and deck officers on ships operating in polar waters 1

2

Standard of Competence Every candidate for certification in basic training for ships operating in polar waters shall be required to: 1 demonstrate the competence to undertake the tasks, duties and responsibilities listed in column 1 of table A-V/4-1; and 2 provide evidence of having achieved: 1 the minimum knowledge, understanding and proficiency listed in column 2 of table A-V/4-1; and 2 the required standard of competence in accordance with the methods for demonstrating competence and the criteria for evaluating competence tabulated in columns 3 and 4 of table A-V/4-1. Every candidate for certification in advanced training for ships operating in polar waters shall be required to: 1 demonstrate the competence to undertake the tasks, duties and responsibilities listed in column 1 of table A-V/4-2; and 2 provide evidence of having achieved: 1 the minimum knowledge, understanding and proficiency listed in column 2 of table A-V/4-2; and 2 the required standard of competence in accordance with the methods for demonstrating competence and the criteria for evaluating competence tabulated in columns 3 and 4 of table A-V/4-2.

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Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrat- Criteria for evaluating ing competence competence

Contribute to safe operation of vessels operating in polar waters

Basic knowledge of ice characteristics and areas where different types of ice can be expected in the area of operation: 1. Ice physics, terms, formation, growth, aging and stage of melt; 2. Ice types and concentrations; 3. Ice pressure and distribution; 4. Friction from snow covered ice; 5. Implications of spray-icing; danger of icing up; precautions to avoid icing up and options during icing up; 6. Ice regimes in different regions. Significant differences between the Arctic and the Antarctic, first year and multiyear ice, sea ice and land ice; 7. Use of ice imagery to recognize consequences of rapid change in ice and weather conditions; 8. Knowledge of ice sky and water blink; 9. Knowledge of differential movement of icebergs and pack ice; 10. Knowledge of tides and currents in ice; 11. Knowledge of effect of wind and current on ice.

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience 3. approved simulator training, where appropriate 4. approved training programme

Identification of ice properties and their characteristics of relevance for safe vessel operation. Information obtained from ice information and publications is interpreted correctly and properly applied. Use of visible and infrared satellite images. Use of egg charts. Coordination of meteorological and oceanographic data with ice data. Measurements and observations of weather and ice conditions are accurate and appropriate for safe passage planning.

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Table A-V/4-1 Specification of minimum standard of competence in basic training for ships operating in polar waters (cont.) Column 1

Column 2

Column 3

Competence

Knowledge, understanding and proficiency

Methods of demonstrat- Criteria for evaluating ing competence competence

Contribute to safe operation of vessels operating in polar waters

Basic knowledge of vessel performance in ice and low air temperature: 1. Vessel characteristics; 2. Vessel types, hull designs; 3. Engineering requirements for operating in ice; 4. Ice strengthening requirements; 5. Limitations of ice-classes; 6. Winterization and preparedness of vessel, including deck and engine; 7. Low-temperature system performance; 8. Equipment and machinery limitation in ice condition and low air temperature; 9. Monitoring of ice pressure on hull; 10. Sea suction, water intake, superstructure insulation and special systems. Contribute to Basic knowledge and ability to safe operation of operate and manoeuvre a vessel vessels operatin ice: ing in polar 1. Safe speed in the presence of waters ice and icebergs; 2. Ballast tank monitoring; 3. Cargo operations in polar waters;

Column 4

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience 3. approved simulator training, where appropriate 4. approved training programme

Identification of vessel characteristics and limitations under different ice conditions and cold environmental impact. Procedures are made for risk assessment before entering ice. Awareness of fresh water ballast freezing in ballast tanks. Actions are carried out in accordance with accepted principles and procedures to prepare the vessel and the crew for operations in ice and low air temperature. Communications are clear, concise and effective at all times in a seamanlike manner.

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience

Use Polar Code and Polar Water Operations Manual to correctly determine the recommended procedures to load/offload cargo/ passengers in low temperatures, monitor ballast water for icing, monitor en

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Column 2

Column 3

Competence

Knowledge, understanding and proficiency

Methods of demonstrat- Criteria for evaluating ing competence competence

4. Awareness of engine loads and cooling problems; 5. Safety procedures during ice transit.

3. approved simulator training, where appropriate 4. approved training programme

Basic knowledge of regulatory considerations: 1. Antarctic Treaty and the Polar Code; 2. Accident reports concerning vessels in polar waters;

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience

Monitor and ensure compliance with legislative requirements

Column 4

gine temperatures, anchor watch concerns in ice, and transit near ice. Interpretation and analysis of information from radar is in accordance with lookout procedures with special caution regarding identification of dangerous ice features. Information obtained from navigational charts, including electronic charts, and publications is relevant, assessed, interpreted correctly and properly applied. The primary method of position fixing is frequent and the most appropriate for the prevailing conditions and routing through ice. Performance checks and tests of navigation and communication systems comply with recommendations for high latitude and low air temperature operation. Locate and apply relevant parts of the Polar Water Operations Manual. Communication is in accordance with local/ regional and international standard procedures.

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Table A-V/4-1 Specification of minimum standard of competence in basic training for ships operating in polar waters (cont.) Column 1

Column 2

Column 3

Competence

Knowledge, understanding and proficiency

Methods of demonstrat- Criteria for evaluating ing competence competence

3. imo standards for operation in 2. approved training remote areas. ship experience 3. approved simulator training, where appropriate 4. approved training programme Apply safe working practices, respond to emergencies

Basic knowledge of crew preparation, working conditions and safety: 1. Recognize limitations of search and rescue readiness and responsibility, including sea area A4 and its sar communication facility limitation; 2. Awareness of contingency planning; 3. How to establish and implement safe working procedures for crew specific to polar environments such as low temperatures, ice-covered surfaces, personal protective equipment, use of buddy system, and working time limitations; 4. Recognize dangers when crews are exposed to low temperatures; 5. Human factors including cold fatigue, medical-first aid aspects, crew welfare;

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience 3. approved simulator training, where appropriate 4. approved training

Column 4

Legislative requirements related to relevant regulations, codes and practices are identified.

Identification and initial actions on becoming aware of hazardous situations for vessel and individual crew members. Actions are carried out in accordance with Polar Water Operations Manual, accepted principles and procedures to ensure safety of operations and to avoid pollution of the marine environment. Safe working practices are observed and appropriate safety and protective equipment is correctly used at all times. Response actions are in accordance with established plans and are appropriate to the situation and nature of the emergency.

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Column 2

Column 3

Competence

Knowledge, understanding and proficiency

Methods of demonstrat- Criteria for evaluating ing competence competence

6. Survival requirements including the use of personal survival equipment and group survival equipment; 7. Awareness of the most common hull and equipment damages and how to avoid these; 8. Superstructure-deck icing, including effect on stability and trim; 9. Prevention and removal of ice including the factors of accretion; 10. Recognize fatigue problems due to noise and vibrations; 11. Identify need for extra resources, such as bunker, food and extra clothing. Ensure compli- Basic knowledge of environmental ance with pollu- factors and regulations: tion- prevention 1. Identify particularly sensitive sea areas regarding discharge; requirements 2. Identify areas where shipand prevent environmental ping is prohibited or should be avoided; hazards 3. Special areas defined in marpol; 4. Recognize limitations of oilspill equipment; 5. Plan for coping with increased volumes of garbage, bilge water, sewage, etc.; 6. Lack of infrastructure; 7. Oil spill and pollution in ice, including consequences.

Column 4

Correctly identifies and applies legislative requirements related to relevant regulations, codes and practices. Appropriate safety and protective equipment is correctly used. Defects and damages are detected and properly reported.

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience 3. approved simulator training, where appropriate 4. approved training programme

Legislative requirements related to relevant regulations, codes and practices are identified. Correctly identify/select the limitations on vessel discharges contained in the Polar Code. Correctly apply Polar Water Operations Manual/ Waste Management Plan to determine limitations on vessel discharges and plans for storing waste. Identify references that provide details of areas to be avoided, such as wildlife refuges, ecological heritage

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Table A-V/4-1 Specification of minimum standard of competence in basic training for ships operating in polar waters (cont.) Column 1

Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrat- Criteria for evaluating ing competence competence parks, migratory pathways, etc. (marpol, Antarctic Treaty, etc.). Identify factors that must be considered to manage waste stream during polar voyages.

Table A-V/4-2 Specification of minimum standard of competence in advance training for ships operating in polar waters Column 1

Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrating competence

Criteria for evaluating competence

Plan and ­conduct a voyage in polar waters

Knowledge of voyage planning and reporting: 1. Information sources; 2. Reporting regimes in polar waters; 3. Development of safe routeing and passage planning to avoid ice where possible; 4. Ability to recognize the limitations of hydrographic information and charts in polar regions and whether the information is suitable for safe navigation; 5. Passage planning deviation and modification for dynamic ice conditions.

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience 3. approved simulator training, where appropriate 4. approved training programme

The equipment, charts and nautical publications required for the voyage are enumerated and appropriate to the safe conduct of the voyage. The reasons for the planned route are supported by facts obtained from relevant sources and publications, statistical data and limitations of communication and navigational systems. Voyage plan correctly identified relevant polar regulatory regimes and need for

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Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrating competence

Criteria for evaluating competence

Knowledge of equipment limitations: 1. Understand and identify hazards associated with limited terrestrial navigational aids in polar regions; 2. Understand and recognize high latitude errors on compasses; 3. Understand and identify limitations in discrimination of radar targets and ice features in ice-clutter; 4. Understand and recognize limitations of electronic positioning systems at high latitude; 5. Understand and recognize limitations in nautical charts and pilot descriptions; 6. Understand and recognize limitations in communication systems. Manage the Knowledge and ability to operate safe operation and manoeuvre a vessel in ice: of vessels oper- 1. Preparation and risk ating in polar ­assessment before approachwaters ing ice, including presence of icebergs, and taking into account wind, darkness, swell, fog and pressure ice; 2. Conduct communications with an icebreaker and other vessels in the area and with Rescue Coordination Centres;

ice-pilotage or/and icebreaker assistance. All potential navigational hazards are accurately identified. Positions, courses, distances and time calculations are correct within accepted accuracy standards for navigational equipment.

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience 3. approved simulator training, where appropriate approved training programme

All decisions concerning navigating in ice are based on a proper assessment of the ship’s manoeuvring and engine characteristics and the forces to be expected while navigating within polar waters. Demonstrate communications skills, request ice routeing, plot and commence voyage through ice.

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Table A-V/4-2 Specification of minimum standard of competence in advance training for ships operating in polar waters (cont.) Column 1

Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrating competence

Criteria for evaluating competence

3. Understand and describe the conditions for the safe entry and exit to and from ice or open water, such as leads or cracks, avoiding icebergs and dangerous ice conditions and maintaining safe distance to icebergs; 4. Understand and describe ice-ramming procedures including double and single ramming passage; 5. Recognize and determine the need for bridge watch team augmentation based upon environmental conditions, vessel equipment and vessel ice class; 6. Recognize the presentations of the various ice conditions as they appear on radar; 7. Understand icebreaker convoy terminology, and communications, and take icebreaker direction and move in convoy; 8. Understand methods to avoid besetment and to free beset vessel, and consequences of besetment; 9. Understand towing and rescue in ice, including risks associated with operation; 10. Handling ship in various ice concentration and coverage,

All potential ice hazards are correctly identified. All decisions concerning berthing anchoring, cargo and ballast operations are based on a proper assessment of the ship’s manoeuvring and engine characteristics and the forces to be expected and in accordance with the Polar Code guidelines and applicable international agreements. Safely demonstrate progression of a vessel through ice, manoeuvring vessel through moderate ice concentration (range of 1/10 to 5/10). Safely demonstrate progression of a vessel through ice, manoeuvring vessel through dense ice concentration (range of 6/10 to 10/10). Operations are planned and carried out in accordance with established rules and procedures to ensure safety of operation and to avoid pollution of the marine environment. Safety of navigation is maintained through navigation

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Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrating competence

Criteria for evaluating competence

including risks associated with navigation in ice, and turningbacking avoidance etc.; 11. Use of different type of propulsion and rudder systems, including limitations to avoid damage when operating in ice; 12. Use of heeling and trim systems, hazards in connection with ballast and trim in relation with ice; 13. Docking and undocking in ice-covered waters, including hazards associated with operation and the various techniques to safely dock and undock in ice-covered waters; 14. Anchoring in ice, including the dangers to anchoring ­system – ice accretion to hawse pipe and ground tackle; 15. Recognize conditions which impact polar visibility and may give indication of local ice and water conditions, including sea smoke, water blink and refraction. Maintain safety Knowledge of safety: 1. Understand the procedures of the ship’s crew and pas- and techniques for abandoning the ship and survival on ice and sengers and the operational in ice-covered waters; 2. Recognize limitations of condition of firefighting systems and lifelife-saving,

strategy and adjustment of ship’s speed and heading through different types of ice. Actions are understood to permit use of anchoring system in cold temperatures. Actions are carried out in accordance with accepted principles and procedures to prepare for icebreaker towing, including notch towing.

Examination and assessment of evidence obtained from one or more of the following: 1. approved in-service experience 2. approved training ship experience

Response measures are in accordance with established plans and procedures, and are appropriate to the situation and nature of the emergency.

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Table A-V/4-2 Specification of minimum standard of competence in advance training for ships operating in polar waters (cont.) Column 1

Column 2

Column 3

Column 4

Competence

Knowledge, understanding and proficiency

Methods of demonstrating competence

Criteria for evaluating competence

firefighting and saving appliances due to low air other safety temperatures; systems 3. Understand unique concerns in conducting emergency drills in ice and low temperatures; 4. Understand unique concerns in conducting emergency response in ice and low air and water temperatures.

DRAFT STCW.6 CIRCULAR [omitted]

3. approved simulator training, where appropriate 4. approved training programme

***

chapter 5

Arctic Continental Shelf of the Russian Federation beyond 200 Nautical Miles: Initial Prospect of Sustainable Regulation Rustambek M. Nurimbetov1 Abstract The question of how the continental shelf is supposed to be used is constituted not only by recognized rules of international law but by a blend of both normative and factual conditions distinctive for a certain geographic area, historic period and different forces purporting this use. Thus, we shall try to approach the Arctic continental shelf of the Russian Federation as a complex issue of legal regulations. This involves mixing the international regime and its domestic implementation along with fundamental policies of the Russian state and major economic interests.

Keywords continental shelf – legal regulation – international law – Russian law – Arctic

There is no doubt that the concept of the continental shelf today appears to be comprehensively recognized by international society, as well as recognized outside of governmental and even academic fields. More than thirty years after the 1982 Convention on the Law of the Sea firmly established a unified understanding of what a continental shelf is and how it should be treated, there are still very significant gaps in this concept’s actual implication. Those challenges are hardly to be answered completely or rapidly enough to satisfy the modern need in international law due to their highly political nature. In this article we address one of the most challenging areas on our planet—the Arctic, and more precisely, its most difficult to reach part—the oceanic seafloor. There are many factors that make the Arctic sea spaces different from other marine areas. For a very long period of time, the Arctic was not an interesting 1 Doctoral candidate, Assistant professor of International public and private law department, Far Eastern Federal University, Vladivostok, Russian Federation. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_006

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place from either economic or social points of view.2 Arctic issues were not taken up for comprehensive regulation during the twentieth century when known crucial branches of international law were often shaped to provide compromise between world powers or to establish a fairer and more equitable legal order.3 But indirectly, that process covered many topical subjects constituting the very essence of what the Arctic actually is. What we are seeing today in that case is undoubtedly the fruit of multipolar cooperation that could be seen at the end of the past century. We can now address the Law of the Sea Convention for guidance in our attempts to understand the mixture of natural phenomena and political interests called the continental shelf in the Arctic.4 The United Nations Convention on the Law of the Sea (unclos) has proven through decades of successful cooperation to be sustainable enough to make fair treatment over world marine areas satisfactory for international order. The complex framework of unclos includes maritime governance in both its normative and judicial forms. This makes it resilient to political influence and offers politically conditioned defences to international legal norms keeping them within the scope of unclos.5 For such purposes there are certain provisions defining the mastering and use of geographic seafloor processes. In the case of the seabed, located wherever it is defined by the coastal State within the limits of twelve nautical miles or within the limits of archipelagic waters for archipelagic States, it is clear that the sovereign power and full jurisdiction of coastal States is applied to the legal status of such territories. While Article 76 of unclos defines the continental shelf as the submarine area that extends beyond the territorial sea, physically speaking the continental shelf may be measured from the coastal base line, which is the low-water line which starts the inner limit of the territorial sea.6 According to scientific definitions 2 Vadim Ponomarov, “To the Arctic!” Expert, № 38 (771), 2011 (available at Russianwatchers.ru/ translation/economic-development-of-the-arctic-and-northern-sea-route). 3 Lesther Antonio Ortega Lemus, Brief Outline of the History and Development of the Law of the Sea available at http://oceanslaw.blogspot.com/2011/05/brief-outline-of-history -development-of.html. 4 James Harrison, Evolution of the law of the sea: developments in law-making in the wake of the 1982 Law of the Sea Convention. PhD dissertation – School of Law, University of Edinburgh, 2007. 5 Clote, Parker, “Implications of Global Warming on State Sovereignty and Arctic Resources under the United Nations Convention on the Law of the Sea: How the Arctic is No Longer Communis Omnium Naturali Jure.” Richmond Journal of Global Law & Business, Vol. 8. (Winter 2008). 6 Geoffry N. Bailey, “New developments in submerged prehistoric archaeology: an overview” in Prehistoric Archaeology on the Continental Shelf, (Amanda M. Evans, Joseph C. Flatman, Nicholas C. Flemming, eds.) 2014.

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rather than legal ones, the continental shelf is the underwater landmass extending from the coast line to a margin of abyssal plain, which includes the continental slope followed by the continental rise. In topography, both the continental slope and the continental rise are considered part of the continental margin for broader interpretation in case of geographic differences. But what is common about all areas of continental shelf is that they are not parts of the ocean basin but are flooded continental margins.7 Due to that topographic concept, part of the seabed located under the territorial sea is continental shelf and also considered in that state legally due to clause 1. Article 76 of unclos clearly was intended to make the extended continental shelf area subject to domestic regulation. Otherwise, the international regime could not be operational.8 There we can observe how the legal concept merges with the scientific one. The continental shelf, as it is in unclos, confers special coastal State jurisdiction rather than the full jurisdiction distinctive of the territorial sea. Thus the previously mentioned seabed under the territorial sea is subject to the full jurisdiction of the coastal State. However, this observation makes little practical difference. The very legal definition of the continental shelf given by unclos states that the continental shelf is the submerged prolongation of the land territory of the coastal State. The seabed and subsoil of submarine areas that extend beyond its territorial sea to the outer edge of the continental margin or to a distance of 200 nautical miles, are also continental margin. But the margin does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.9 That means not only that the nature of international compromise is that all coastal States can get practically an equal amount of seabed for their use, but also that the legal continental shelf of one state has situational comparison with the actual geographic conditions. Rare examples of states that do not enjoy their continental shelf natural prolongation to 200 nautical miles are mostly related to situations where the continental margin is active due to earthquakes and sediments lost to ocean floor. These geographic conditions can make continental margins very limited.10 The Siberian shelf in the Arctic Ocean is known as the largest continental shelf on the entire planet and obviously reaches far beyond 200 nautical miles.11 That creates an immense Russian Federation interest in unclos’s 7 8 9 10 11

George K. Walker, Definitions for the Law of the Sea: Terms not defined by 1982 Convention, 2012. Shigeru Oda, International Control of Sea Resources, 1989. United Nations Convention on the Law of the Sea, Part vi, Article 76. Peter J. Cook, Chris M. Carleton, Continental shelf limits: Scientific and legal interface, 2000. Jing Huang, Alexander Korolev, International Cooperation in the Development of Russia’s Far East and Siberia, 2015.

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framework for extension of the continental shelf. However, the continental shelf treatment established by unclos consists of several parts conceptually different and even seemingly controversial for interpretation. The foundation of the concept is that the coastal State does not need any permission or claim to the continental shelf regardless of whether it is within 200 nautical miles or even beyond, since no authority has the power to grant continental shelf rights to a state from unclos.12 It is also completely irrelevant whether the coastal State makes any claim over the continental shelf or performs any factual or fictitious occupation, as it is still its sovereign right over the continental shelf attached to it.13 There is no international legal mechanism applicable for a single coastal State claim over continental shelf beyond 200 nautical miles. Of course the judiciary system of unclos has to deal with overlapping claims over the continental shelf through the International Tribunal on the Law of the Sea. While the domestic regime applying to the continental shelf within 200 nautical miles is usually clear, the same cannot be said about international regulations with respect to the continental shelf beyond 200 nautical miles. unclos allows coastal States to exercise sovereign rights on the continental shelf out to 200 nautical miles. In case the natural prolongation of land mentioned earlier goes farther, Annex 2 Article 4 provides that the coastal State has to apply for a recommendation from the Commission on the Limits of the Continental Shelf (clcs). In a practical sense this means that approval of the clcs is required to define the precise area of the so-called outer continental shelf, but not to establish it. unclos states that the recommendations given by the clcs are the basis for a final and binding establishment of an outer limit, but that does not mean that recommendations are binding for the outer continental shelf. unclos in Annex 2 mentions the actual establishment of outer limits of continental shelf is supposed to be done in compliance with Article 76, paragraph 8 and in accordance with appropriate national procedures. Literally, the relevant coastal State is the one source which enjoys the reasonable competency to decide how much of the continental shelf shall be subject to its sovereign rights. A responsible approach calls for preservation of the international legal order and compliance with the valid Law of the Sea principle of collaboration. Another specific feature of the clcs which is frequently forgotten is that recommendations made by it have nothing to do with current overlapping claims or international disputes detected over the assumed area. Moreover, 12 13

J. Ashley Roach, Robert W. Smith, Excessive Maritime Claims, 3rd ed., 2012. Bjarni Mar Magnusson, The continental shelf beyond 200 nautical miles: delineation, delimitation and dispute settlement, 2014.

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unclos makes clear that the clcs does not prejudice delimitations or boundaries, which indicates that any disputes will be settled through regular procedures chosen by coastal States.14 For that it is already widely understood in the academic and administrative environment that continental shelf boundary delimitation is a separate process from the establishment of the outer limits of the continental shelf. From that point of view, arrangements of definite boundaries, particularly in the Arctic Ocean, will require not only cooperation within the scope of the Law of the Sea Convention but also within the confines of Arctic governance. This makes reaching compromise easier from the regional point of view, since the Arctic was for decades an area of cooperation and mutual understanding (especially on the local level). At the same time, compromises will be harder from a political point of view since both the Russian Federation and the United States are Arctic States but do not share the same overall political outlook.15 However, the latest resubmission of the Russian Federation’s claim over an extended continental shelf proves that for the proper arrangement of territories, today states seek compliance with the international legal order.16 Nevertheless, in view of the heavy workload of the clcs, claims are anticipated to be studied for at least twelve to twenty years. Meanwhile a severe need for negotiations rises up before the Arctic countries, since even when the clcs rules separate recommendations, disputes on jurisdiction over certain parts of the seabed will emerge.17 In that case, it is expected that the Arctic States will need to hold round table talks. Political issues may impact those supposedly decisive negotiations since Russia’s counteragents may try to convince the United States to apply more pressure on the Russian Federation. This could lead to an impossibility of reaching a compromise for continental shelf boundaries. This

14

15

16 17

Alex G. Oude Elferink, “Causes, consequences and solutions relating to the absence of final and binding outer limits of the continental shelf,” in C.R. Symmons (ed.), Selected Contemporary Issues in the Law of the Sea, pp. 253–272, Leiden: Martinus Nijhoff Publishers, 2011. Betsy Baker, “Polar science in the North and South: Tailoring lessons from Antarctica to Improve Reliability of Legal Access for Marine Scientific Research to the Arctic Ocean,” in Liber Amicorum, Rüdiger Wolfrum, Coexistence, cooperation and solidarity, Holger P. Hestermeyer et al., eds., Vol. 1, 2012. Klaus Dodds, “Flag planting and finger pointing: The Law of the Sea, the Arctic and the political geographies of the outer continental shelf,” Political Geography, vol. 29, 2010. Mel Weber, “Defining the Outer Limits of the Continental Shelf across the Arctic Basin: The Russian Submission, States’ Rights, Boundary Delimitation and Arctic Regional Cooperation,” International Journal of Marine and Coastal Law Vol. 24, 2009.

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could in turn lead to a single hope for an equitable solution by recourse to the International Court of Justice.18 Coming negotiations are not likely to be easy. For example, negotiations between the Soviet Union/Russian Federation and Norway on state border delimitation in the Arctic took forty years before resulting in a binding and stable treaty.19 From the current state of things, the Russian Federation is not going to be in a hurry to make swift arrangements, keeping in mind that Rosneft seemingly abandoned its short-term plans for extracting oil located on the Arctic continental shelf.20 The project “Shtokman” and similar initiatives are postponed for an indefinite period while only one Russian offshore drilling platform stays operative.21 Overall, the world energy market does not provide fertile conditions for the Russian oil industry going offshore in the Arctic since it would take an enormous amount of investment to promote the development and application of offshore drilling technology, while the price of oil products fails to support such an initiative.22 As for the domestic legal conditions presented by the Russian Federation for use of the continental shelf, they are highly unlikely to be inviting to most of either national or transnational corporations since the applicable law is quite restrictive. For example, we find the following with respect to the principle of exclusive property of the Russian Federation over the subsoil itself and the principle of usage by permission within its terms of special purpose. The Russian Federation, through its authorizing body (right now particularly Rosnyedra), may voluntarily deny licensing for development of mineral resources on the continental shelf if the legal entity requesting such license appears to be essentially funded by a foreign investor or established through participation of a foreign investor or if such development would endanger the national security of the Russian Federation.23 Such conditions may not yet be satisfactory for

18 19 20 21 22 23

Nele Matz-Luck, “Planting the Flag in Arctic Waters: Russia’s claim to the North Pole,” Gottingen Journal of International Law, Vol. 1, 2009. T. Henriksen, G. Ulfstein, “Maritime delimitation in the Arctic: the Barents Sea treaty,” Ocean Development and International Law Vol. 42, 2011. “Oil companies put Arctic projects into deep freeze”, Financial Times Limited, February 5, 2015 (See: ft.com). “Shtokman development postponed until 2019”, Arctic-info, February 11, 2013 (See: Arcticinfo.com/news). Ariel Cohen, “Russia in the Arctic: Challenges to u.s. Energy and Geopolitics in the High North,” in Stephen J. Blank, ed., Russia in the Arctic, Strategic Studies Institute, 2011. Overview Russian Oil and Gas Sector regulatory regime//King and Spalding report, 2012 (See: kslaw.com).

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the development of a commercial rivalry, which strongly affects the formation tempo of shelf-produced hydrocarbons. Even more uncertainty is added to the question of working out the legal procedure for the sustainable use of the Arctic continental shelf by the actual state of international law on this question. Specific guidance provided by unclos provides for payments and contributions with respect to the exploitation of the extended continental shelf. However, practical activity has not yet developed a clear and applicable approach as to how exploitation of the extended continental shelf affects the duties of the International Seabed Authority. To conclude, the analysis of conditions existing in Russian law on the subject of the exploitation of the continental shelf must acknowledge that actual regulation has been mostly general and referential in tone.24 Alongside the regulations designed for the use of subsoil there is almost no specific guidance on the level of federal law. Certain provisions, such as the assumed licensing order for the production of mineral resources on the continental shelf and the definition and description of drilling on the continental shelf, are marked in the law “On continental shelf.” The integrity of rules making an actual interplay with functioning of production enterprises, however, is still lacking in the Russian legal system.25 Surprisingly, we do not find this as a crucial flaw of regulation since active practice has not come to reality. There is also no incompatibility with unclos as far as the due diligence obligations of states, which expect the level of applicable law sustainable enough for safety and control over operating enterprises, but do not address extended continental shelf exploitation. What can be said most certainly from the prospective of the legal framework for the use of the Russian continental shelf is that a detailed and comprehensive system of rules is still anticipated. For now, we can only expect the economic pressures over the Russian Federation to accelerate the preparation of legislation towards liberalization of resource management. That kind of speculation, however, has yet to be proved through political processes.

24

25

Information on the Russian Federation’s Regulatory and Administrative Framework and Experience Related to Accident Prevention, Response and Mitigation during Oil and Gas Offshore Exploration, Production and Marine Transportation, Global Marine Environment Protection Initiative report, 2013 (See: g202mep.org). T.R. Eremina, E.V. Stetsko, Legal Provision for Integrated Coastal Zone Management, (available at unesco.org/csi/act/russia/legalpro1.htm).

part 2 Arctic Ocean Fisheries

∵

chapter 6

The Legal Framework for High Seas Fisheries in the Central Arctic Ocean Tomas Heidar* Abstract The Central Arctic Ocean is characterized by a lack of knowledge on fish stocks and ecosystems, which is required for science-based and ecosystem-based fisheries management. There is also scientific uncertainty as to how fish populations will respond to changing water temperatures and ice conditions. Within the coastal State maritime zones in this area, there are currently mainly small-scale subsistence fisheries and no significant commercial fisheries. In 2009, the United States prohibited commercial fishing in the Exclusive Economic Zone off the coast of Alaska in the Arctic Ocean until information improves so that fishing can be conducted sustainably and with due concern to other ecosystem components. Due to the near constant presence of sea ice and limited amount of fish in the area, no fisheries have yet taken place in the high seas portion of the Central Arctic Ocean. However, with the impacts of climate change, ocean warming and ice melting, commercially attractive species may move northward into the area in the near future. In addition, species indigenous to this area may be considered commercially attractive once they become accessible. There are different views on whether, in the short term, abundance of fish stocks in the area will allow for commercially viable fisheries. Nevertheless, it is important that relevant States react to these changing environmental circumstances in good time and regulate potential future fisheries in the area. In February 2014, five States, Canada, Denmark, Norway, the Russian Federation and the United States (the so-called “Arctic Five”), took the view that large-scale, commercially viable fisheries in the high seas area were unlikely to occur in the near future. However, this expectation has not prevented the “Arctic Five” and other States from engaging in multilateral discussions on such fisheries. * Judge of the International Tribunal for the Law of the Sea and Director of the Law of the Sea Institute of Iceland. Former Legal Adviser of the Ministry for Foreign Affairs of Iceland (1996–2014). The views expressed in this article are those of the author. The author’s conference PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai-heidar .pdf. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_007

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Most of the high seas area in question is not covered by any regional fisheries management organization (rfmo) or arrangement (rfma) (rfmo/A). Only a relatively small part of this area, the Atlantic segment north of Greenland and Svalbard, is covered by the North−East Atlantic Fisheries Commission (neafc) Convention (see figure 6.1). This article first addresses very briefly the general legal framework for the Central Arctic Ocean. It then describes the legal framework for high seas fisheries in this area, in particular the relevant provisions of the 1995 un Fish Stocks Agreement and how they relate to this area. Finally, the article addresses the cooperation of relevant States

Figure 6.1 The high seas of the Central Arctic Ocean and the neafc Convention Area. Map courtesy of Arctic Portal.

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regarding fisheries in this area, both the “Arctic Five” and the “Broader Process”, involving other interested states, and offers a few conclusions.

1

The General Legal Framework for the Central Arctic Ocean

Sometimes it is maintained that the Central Arctic Ocean1 is not subject to any legal regime—that there is a legal gap or vacuum in this area. Nothing could be further from the truth.2 This area is subject to the same global legal framework as other ocean areas in the world. The 1982 United Nations Convention on the Law of the Sea (Convention or Law of the Sea Convention) provides the legal framework for all maritime zones and all uses of the oceans, including in the Arctic. The Convention includes many provisions that are of particular importance in the Central Arctic Ocean, for example on fisheries,3 maritime delimitation,4 determination of the outer limits of the continental shelf,5 navigational rights6 and ice-covered areas.7 As regards shipping and protection of the marine environment, the general provisions of the Convention are complemented by specialized agreements, adopted, in particular, by the International Maritime Organization (imo). 1 There are no generally accepted geographical definitions for the terms “Arctic” and “Arctic Ocean”. For the purposes of this article, “Central Arctic Ocean” is defined as the marine waters north of the Bering Strait, Greenland, Svalbard, and Franz Josef Land, excluding the Barents Sea. 2 This incorrect perception has been followed by the incorrect assumption that the vacuum had to be filled by a treaty modeled on the Antarctic Treaty. 3 See Chapter 2 below. 4 Articles 74 and 83, as well as Part xv of the Convention. 5 It is often maintained that there is an uncontrolled “Wild West” race for oil and gas resources on the continental shelf in the Central Arctic Ocean. The fact of the matter is that the determination of the outer limits of the continental shelf in this area, like in any other ocean area, is subject to detailed rules and procedures prescribed in article 76 of the Convention. This article includes different formulae and constraints for determining the outer limits. According to paragraph 8 of that article, a coastal State shall submit information on the limits of the continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf (clcs). The Commission shall make recommendations to the coastal State on matters related to the establishment of the outer limits of its continental shelf. The limits of the shelf established by the coastal State on the basis of these recommendations shall be final and binding. 6 Different provisions of the Convention apply to navigation in individual maritime zones. 7 Article 234 of the Convention.

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Seven of the eight Member States of the Arctic Council (the “Arctic Eight”), Canada, Denmark, Finland, Iceland, Norway, the Russian Federation and Sweden, are Parties to the Convention. The United States has not become a Party to the Convention but recognizes most of its provisions as customary international law. The European Union (eu) and its Member States, China, Japan and South Korea, who have all shown great interest in Arctic issues, are all Parties to the Convention. 2

The Legal Framework for High Seas Fisheries in the Central Arctic Ocean

Although no fisheries have yet taken place in the high seas portion of the Central Arctic Ocean, with the impacts of climate change, species in this area may become accessible in the near future and other species may move northward into the area.8 There are different views on whether, in the short term, abundance of fish stocks in the area will allow for commercially viable fisheries. Nevertheless, it is important that relevant States react to these changing environmental circumstances in good time and regulate potential future fisheries in the area.9 In February 2014, five States, Canada, Denmark, Norway, the Russian Federation and the United States (the so-called “Arctic Five”), took the view that large-scale, commercially viable fisheries in the high seas area were unlikely to occur in the near future.10 However, this expectation has not prevented the “Arctic Five” and other States from engaging in multilateral discussions on such fisheries.11 8

9 10

11

For a brief overview of (potentially) significant commercial fish species currently occurring in the marine Arctic, see Erik J. Molenaar, “International Regulation of Central Arctic Ocean Fisheries”, in Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries, eds. Myron H. Nordquist, John Norton Moore and Ronán Long, Brill/Nijhoff, 2016, pp. 429–463, at p. 431. See Michael Byers, International Law and the Arctic, Cambridge University Press, 2013, p. 178. Meeting on Arctic Fisheries. Nuuk, Greenland, 24–26 February 2014, Chairman’s Statement (2014 Nuuk Meeting; available at ), at p. 1. See also “Summary Report Prepared for the “Devising Seminar on Arctic Fisheries”, hosted by the Program on Negotiation at Harvard Law School, September 18–19, 2014” (available at ), at p. 4 with a similar assessment. See Erik J. Molenaar, supra note 8, p. 431.

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What is the legal framework for such discussions? The Law of the Sea Convention provides the legal framework for fisheries in the Exclusive Economic Zone.12 The Convention also includes general provisions on high seas fisheries,13 including article 116 on the right to fish on the high seas, and on fish stocks that occur both within the Exclusive Economic Zone and on the high seas, i.e. straddling stocks14 and highly migratory species.15 The un Fish Stocks Agreement16 complements the general and rather vague provisions of the Convention on high seas fisheries, strengthens considerably the legal framework for the conservation and management of straddling and highly migratory fish stocks by rfmo/As,17 and limits further the freedom to fish on the high seas. The Agreement designates rfmo/As as the preferred vehicles for the conservation and management of such stocks.18 All eight Member States of the Arctic Council are Parties to the Agreement. The eu and its Member States are also Parties, as well as Japan and South Korea. China has signed the Agreement but has not ratified it. 2.1 Relevant Provisions of the un Fish Stocks Agreement The Agreement contains a number of provisions that are or may become particularly relevant for fisheries in the high seas area of the Central Arctic Ocean, for example regarding the precautionary approach to fisheries management and the establishment and functions of rfmo/As.

12 Part v of the Convention. 13 Part vii, Section 2, of the Convention. 14 Article 63(2) of the Convention. 15 Article 64 of the Convention. 16 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. 17 These two types of fish stocks are the most important fish stocks that occur on the high seas. The un Fish Stocks Agreement does not cover directly so-called discrete high seas fish stocks that only occur on the high seas and not within any exclusive economic zone. See Michael W. Lodge and Satya N. Nandan: “Some Suggestions Toward Better Implementation of the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks of 1995”, The International Journal of Marine and Coastal Law 20 (3–4), 2005, pp. 345–379, at pp. 371–373. However, the Review Conference of the un Fish Stocks Agreement, and subsequently the United Nations General Assembly, recommended that the provisions of the Agreement should be applied, mutatis mutandis, to such fish stocks. 18 See Erik J. Molenaar, supra note 8, p. 435.

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2.1.1 The Objective of the Agreement According to article 2 of the Agreement, its objective is to “ensure the longterm conservation and sustainable use of straddling fish stocks and highly migratory fish stocks through effective implementation of the relevant provisions of the Convention”. The view has been expressed that any fish stocks in the high seas portion of the Central Arctic Ocean should not be exploited but permanently protected. The aforementioned provision, as well as article 119 of the Convention which refers to the “maximum sustainable yield”, would seem to indicate that the resources in question should be conserved and sustainably used, and not protected for other purposes. 2.1.2 The Precautionary Approach Article 6 of and Annex ii to the un Fish Stocks Agreement provide for the precautionary approach to the conservation and management of straddling and highly migratory fish stocks. Accordingly, States shall be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information shall not be used as a reason for postponing or failing to take conservation and management measures.19 For new or exploratory fisheries, States shall adopt as soon as possible cautious conservation and management measures, including, inter alia, catch limits. Such catch limits may be very low, even zero. Such conservation and management measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks, whereupon measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries.20 It should be noted that while most of the provisions of the Agreement only apply to the high seas, article 6 also applies within areas under national jurisdiction.21 In light of the limited scientific knowledge available regarding the high seas area of the Central Arctic Ocean, the precautionary approach is particularly relevant for this area.

19 20 21

Article 6(2) of the Agreement. Article 6(6) of the Agreement. Article 3(1) of the Agreement.

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2.1.3 Compatibility of Conservation and Management Measures Article 7 of the Agreement provides for the compatibility principle. Conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible to ensure conservation and management of straddling 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.22 The compatibility principle is based on the obvious fact that each straddling or highly migratory fish stock is a single biological unit that does not respect boundaries and needs to be managed as a whole. In determining compatible measures, States shall, inter alia, take into account the measures adopted and applied in accordance with article 61 of the Convention 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 the high seas do not undermine the effectiveness of such measures;23 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;24 take into account previously agreed measures established and applied in accordance with the Convention in respect of the same stocks by an rfmo/A;25 and 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.26 Article 7 obviously applies not only to the high seas but also within areas under national jurisdiction.27 Possible restrictions on fishing for straddling or highly migratory fish stocks in the high seas of the Central Arctic Ocean, without similar restrictions on fishing from the same stocks within the adjacent coastal State maritime zones, might not fulfill the requirement of compatibility.

22 23 24 25 26 27

Article 7(2) of the Agreement. Article 7(2)(a) of the Agreement. Article 7(2)(b) of the Agreement. Article 7(2)(c) of the Agreement. Article 7(2)(d) of the Agreement. Article 3(1) of the Agreement.

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2.1.4 Establishment of an rfmo/A According to article 8 of the un Fish Stocks Agreement, where there is no rfmo/A to establish conservation and management measures for particular straddling and highly migratory fish stocks, relevant coastal States and States fishing on the high seas shall cooperate to establish such an rfmo/A to ensure conservation and management of such stocks and shall participate in the work of the rfmo/A.28 The Agreement defines the term “arrangement” (rfma) as “a co-operative mechanism established in accordance with the Convention and this Agreement by two or more States for the purpose, inter alia, of establishing conservation and management measures in a subregion or region for one or more straddling fish stocks or highly migratory fish stocks”.29 This definition is both broad and flexible. The main differences between an rfmo’s constituent instrument and an rfma are that the latter (a) does not establish an international organization, (b) does not have to be legally binding, and (c) can be bilateral.30 States having a “real interest” in the fisheries concerned may become members of / participants in an rfmo/A. The terms of participation in such rfmo/A shall not preclude such States from membership or participation, nor shall they be applied in a manner which discriminates against any State or group of States having a real interest in the fisheries concerned.31 Under normal circumstances, two categories of States would probably be considered to have a “real interest”: 1. coastal States, i.e. States in whose eezs the relevant fish stocks also occur, even if they are currently not fishing for those stocks; and 2. States fishing for the stocks on the high seas. In the special case of the high seas of the Central Arctic Ocean, where no fisheries have taken place and there is great uncertainty as to how fish stocks in the Arctic region will respond to changing environmental circumstances, there are arguments for interpreting the term “real interest” broader and for being inclusive rather than exclusive. This would particularly be the case if an rfmo/A will be established before sufficient scientific information is available. States fishing for a stock on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of / participants 28 29 30

31

Article 8(5) of the Agreement. Article 1(1)(d) of the Agreement. See Erik J. Molenaar, “Arctic Fisheries and International Law: Gaps and Options to Address Them”, 6 Carbon & Climate Law Review 63, 2012, Thomson Reuters 2014, pp. 1–22, at p. 10. Article 8(3) of the Agreement.

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in such an rfmo/A, or by agreeing to apply the conservation and management measures established by such rfmo/A.32 If a State does neither of the two, it shall not have access to the fishery resources to which the measures apply.33 It is, with other words, denied the freedom to fish on the high seas.34 Simply put, it means that only those that play by the rules may fish.35 Articles 9 and 10 of the Agreement describe in more detail the establishment of rfmo/As and their functions. Typical conservation and management measures adopted by rfmo/As include the total allowable catch (tac) for relevant fish stocks and the allocation of quotas between States. Possible conservation and management measures also include the establishment of marine protected areas (mpas). Fisheries-related mpas fall into two categories. Some of them serve as a tool in fisheries management stricto sensu, such as closed areas for the protection of spawning stocks and the establishment of catch or fishing limits for specific areas. As mentioned above, such catch limits may be very low, even zero, for example in the application of the precautionary approach. Others serve to protect marine biodiversity from destructive fishing practices, for example vulnerable marine ecosystems (vmes) from bottom fisheries.36

32 33 34

35

36

Article 8(3) of the Agreement. Article 8(4) of the Agreement. See Moritaka Hayashi, “The Straddling and Highly Migratory Fish Stocks Agreement”, in Developments in International Fisheries Law, ed. E. Hey, Kluwer Law International, 1999, pp. 55–83, at. p. 67. See David A. Balton, “Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks”, Ocean Development & International Law 27, 1996, pp. 125–151, at p. 138. In the so-called bbnj process at the United Nations, some States have maintained that there is a gap in the current legal framework on high seas fisheries as rfmo/As are in their view not authorized to establish fisheries-related mpas on the high seas. However, it has been pointed out that the un Fish Stocks Agreement authorizes States, through rfmo/As, to adopt conservation and management measures to ensure the long-term sustainability of straddling and highly migratory fish stocks and promote the objective of their optimum utilization (articles 5, 8 and 10), and among their obligations is to “protect biodiversity in the marine environment” (article 5(g)). Taking into account article 8(4) of the Agreement, it may be argued that the Agreement authorizes States, through rfmo/As, to establish fisheries related mpas on the high seas that are not only binding for members of the relevant rfmo/A but for all States Parties to the Agreement. Any State Party, which would engage in fishing activities in contravention of such an mpa, would be conducting illegal fishing. See Tomas Heidar, “Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction: A Third Implementing Agreement under

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As mentioned above, a relatively small segment of the high seas area in the Central Arctic Ocean, extending up to the geographical North Pole, is covered by the neafc Convention (see figure 6.1). The current members of neafc are Denmark (in respect of the Faroe Islands and Greenland), the eu, Iceland, Norway and the Russian Federation.37 It is probably not realistic to extend the mandate of neafc to cover the whole high seas area in question38 and the same applies to the Northwest Atlantic Fisheries Organization (nafo).39 Therefore, a new rfmo/A should be established for the uncovered area.40 It would seem appropriate to establish an rfmo prior to the commencement of any commercial fisheries in the area. In the meantime, less formal cooperation between the relevant States can be envisaged. In the view of the need for costeffectiveness, it seems that an rfma could be a more suitable option than a fully fledged rfmo. 2.1.5 Flag State Obligations The Law of the Sea Convention does not indicate the types of measures that a flag State is to adopt for its fishing vessels which are engaged in fishing activities on the high seas. The un Fish Stocks Agreement fills the gap by elaborating on the obligations of the flag State in articles 18 and 19. A State whose vessels fish on the high seas shall take such measures as may be necessary to ensure that vessels flying its flag comply with regional conservation and management measures and that such vessels do not engage in

37 38

39

40

the Law of the Sea Convention?” to be published in Liber Amicorum for Judge Gudmundur Eiriksson in 2017. See further Erik J. Molenaar, supra note 8, pp. 436–438. The European Commission proposed neafc as a suitable mechanism in November 2008 but this did not attract sufficient support among the “Arctic Five”. See Erik J. Molenaar, “Arctic Fisheries Conservation and Management: Initial Steps of Reform of the International Legal Framework”, 1 Yearbook of Polar Law, 2009, pp. 427–463, at pp. 456–458. It should also be noted that the spatial scope of the Joint Norwegian-Russian Fisheries Commission is not explicitly defined in the bilateral 1975 Framework Agreement and not exclusively confined to the maritime zones of the two States, the high seas or the Barents Sea. Fisheries for species whose distributional range extends into the Central Arctic Ocean may therefore possibly fall within the Joint Commission’s mandate. See Erik J. Molenaar, supra note 8, pp. 438–441. There are other examples of such bilateral cooperation, see Erik J. Molenaar, supra note 30, p. 6. It should be noted that the Arctic Council has thus far not explicitly involved itself in fisheries management issues. At the November 2007 Meeting of the Senior Arctic Officials (saos), the Arctic Council decided not to become involved in fisheries management issues. See further Erik J. Molenaar, supra note 30, pp. 6–8.

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any activity which undermines the effectiveness of such measures.41 A State shall authorize the use of vessels flying its flag for fishing on the high seas only where it is able to exercise effectively its responsibilities in respect of such vessels under the Convention and the Agreement.42 Measures to be taken by the flag State include control over fishing activities by means of licenses, authorizations or permits in accordance with regionally or globally agreed procedures.43 The fulfillment of flag State obligations is obviously a key to successful fisheries management in the high seas portion of the Central Arctic Ocean. 2.1.6 Regional Cooperation on Enforcement The Agreement establishes in articles 21 and 22 a unique and far-reaching exception to the principle of exclusive flag State jurisdiction on the high seas. It creates a system of regional cooperation for the enforcement of regionally agreed measures against vessels that are suspected of violating them. A State Party to the Agreement, which is a member of the relevant rfmo/A, has the right to board and inspect fishing vessels of another State Party to the Agreement in order to ensure compliance with conservation and management measures adopted by the rfmo/A, even if the latter State Party is not a member of / participant in the rfmo/A.44 Where, following boarding and inspection, there are clear grounds for believing that a foreign vessel has engaged in any activity contrary to the regional measures, the inspecting State shall secure evidence and notify the flag State of the alleged violation.45 Where there are clear grounds for believing that the vessel has committed a “serious violation”,46 and the flag State has failed to respond or take action, the inspectors may remain on board the vessel for further investigation and where necessary may bring it to the nearest port.47 Notwithstanding the aforementioned provisions, the flag State may, at any time, take action to fulfill its obligations with respect to an alleged violation. 41 42 43

44 45 46 47

Article 18(1) of the Agreement. Article 18(2) of the Agreement. Article 18(2)(a) of the Agreement. See further clarification of flag State obligations, responsibility and liability, in particular with respect to illegal, unreported and unregulated (iuu) fishing activities, in the Advisory Opinion of the International Tribunal for the Law of the Sea on the Request of the Sub-Regional Fisheries Commission, delivered on 2 April 2015. Article 21(1) of the Agreement. Article 21(5) of the Agreement. See definition in article 21(10) of the Agreement. Article 21(8) of the Agreement.

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Where the vessel is under the direction of the inspecting State, that State shall, at the request of the flag State, release the vessel to the flag State along with full information on the progress and outcome of its investigation.48 2.1.7 Port State Measures Article 23 of the un Fish Stocks Agreement includes rather general provisions on port State measures. However, it mentions one specific type of action that the port State may take: it can prohibit landings and transshipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of regional or global conservation and management measures on the high seas. Article 23 provides that it does not affect the exercise by States of their sovereignty over ports in their territory in accordance with international law. States can, in principle, close their ports to foreign fishing vessels, with the force majeure exception of vessels in distress. The 2009 fao Port State Measures Agreement,49 which is the first legally binding instrument adopted with the objective of combating iuu fishing, goes further and provides for minimum standards in this respect. According to that Agreement, port States must, in principle, close their ports to vessels that have engaged in iuu fishing. This does not only include prohibition of landing but also to provide any other services. The Port State Measures Agreement entered into force on 5 June 2016. As at 20 August 2016, 35 States or entities had ratified the Port State Measures Agreement, including, inter alia, the eu, Iceland, Norway, South Korea, and the United States. Port State measures have played a big role in combating iuu fishing in the North East Atlantic and in other areas, and may become a relevant tool in the Central Arctic Ocean in the future as well. 2.1.8 Non-Members and Non-Participants Article 17 of the un Fish Stocks Agreement addresses non-members of rfmos and non-participants in rfmas. States which are members of / participants in an rfmo/A shall exchange information with respect to the activities of fishing vessels flying the flags of States which are non-members / non-participants and which are engaged in fishing operations for the relevant stocks. They shall take measures consistent with the Agreement and international law to deter 48 49

Article 21(12) of the Agreement. Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing.

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activities of such vessels which undermine the effectiveness of regional conservation and management measures.50 Port State measures constitute an example of measures that could be taken to this effect. 3

Cooperation between Relevant States

One of the first intergovernmental discussions on Central Arctic Ocean fisheries took place at a meeting of the Arctic Council’s Senior Arctic Officials (saos) in November 2007. The discussions had been triggered by the United States, in response to its Senate joint resolution No. 17 of 2007, directing the United States “to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean”.51 3.1 Cooperation between the “Arctic Five” It seems that by the end of 2009, or at least by early 2010, the “Arctic Five” agreed that if a new international instrument on high seas fisheries in the Central Arctic Ocean should be developed, its development should be initiated and led by the “Arctic Five” outside the framework of existing mechanisms.52 This seems to exclude mechanisms such as the Arctic Council and neafc. The special role claimed by the five States, Canada, Denmark/Greenland, Norway, the Russian Federation and the United States, appears to be based on their position that they are “Central Arctic Ocean coastal States” as they have all waters under national jurisdiction adjacent to the high seas area of the Central Arctic Ocean. Although the five States should without a doubt have an important role to play given their proximity to the area in question, the aforementioned position is not free of controversy. First, it has been pointed out that the focus area of discussions should be the high seas area not covered by any rfmo/A and that not all five States have national waters adjacent to the area so defined (see figure 6.1). This is of course not to suggest that not all “Arctic Five” should have a seat at the table but rather

50 51

52

Article 17(4) of the Agreement. Passed by the Senate on 4 October 2007. The House of Representatives voted in favour of sj Res. No. 17 in May 2008 and President Bush signed it on 4 June 2008. See Erik J. Molenaar, supra note 8, p. 446. See Erik J. Molenaar, supra note 8, p. 447.

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to show that the definition of “Central Arctic Ocean coastal States” is by no means clear-cut. Second, in the context of high seas fisheries, for example in the un Fish Stocks Agreement, “coastal State” is a relative term and has a different meaning. According to that definition, a State is a “coastal State” with respect to straddling and highly migratory fish stocks if such stocks occur within its national jurisdiction, but is not a “coastal State” with respect to such stocks that do not occur within its national jurisdiction but only on the high seas and within the national jurisdiction of other States. Only time will tell which States will qualify as “coastal States” with respect to high seas fisheries in the Central Arctic Ocean according to this definition. In any event, the “Arctic Five” have since 2010 convened a number of meetings at the senior officials level to discuss Central Arctic Ocean fisheries, alongside a series of science meetings.53 These meetings culminated in the adoption by the “Arctic Five” of the Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean in Oslo on 16 July 2015 (the 2015 Oslo Declaration).54 It is not legally binding but contains political commitments.55 The Declaration acknowledges that, “due to climate change resulting in changes in ice distribution and related environmental phenomena, the marine ecosystems of the Arctic Ocean are evolving and that the effects of these changes are poorly understood”. The parties “are aware that fish stocks in the Arctic Ocean may occur both within areas under the fisheries jurisdiction of the coastal States and in the high seas portion of the central Arctic Ocean, including straddling fish stocks. The parties note further “that the ice cover in

53

The convening of two “Arctic Five” ministerial meetings, in Ilulissat, Greenland, in May 2008, and in Chelsea, Canada, in March 2010, which were of a general nature and not focused on fisheries, was criticized by the Arctic Council’s other three members and its permanent participants for undermining the Arctic Council. At the latter meeting, the United States Secretary of State Clinton expressed doubts and concerns over the appropriateness of ministerial (Foreign Affairs) meetings of the “Arctic Five”, and no such further meetings have since taken place. See Torbjørn Pedersen, “Debates over the Role of the Arctic Council”, 43 Ocean Development & International Law, 2012, pp. 146–156, at p. 152; and Erik J. Molenaar, supra note 8, p. 449. 54 The text of the Declaration as well as its “accompanying text” is available at . 55 Such instruments are frequently referred to as “soft law instruments” or “policy instruments”.

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the Arctic Ocean has been diminishing in recent years, including over some of the high seas portion of the central Arctic Ocean”. The parties recognize that, “based on available scientific information, commercial fishing in the high seas portion of the central Arctic Ocean is unlikely to occur in the near future and, therefore, that there is no need at present to establish any additional regional fisheries management organization for this area. Nevertheless, recalling the obligations of States under international law to cooperate with each other in the conservation and management of living marine resources in high seas areas, including the obligation to apply the precautionary approach”, the parties “share the view that it is desirable to implement appropriate interim measures to deter unregulated fishing in the future in the high seas portion of the central Arctic Ocean”. The parties furthermore “desire to promote scientific research, and to integrate scientific knowledge with traditional and local knowledge, with the aim of improving the understanding of the living marine resources of the Arctic Ocean and the ecosystems in which they occur”. The 2015 Oslo Declaration contains the following four interim measures: • We will authorize our vessels to conduct commercial fishing in this high seas area only pursuant to one or more regional or subregional fisheries management organizations or arrangements that are or may be established to manage such fishing in accordance with recognized international standards. • We will establish a joint program of scientific research with the aim of improving understanding of the ecosystems of this area and promote cooperation with relevant scientific bodies, including but not limited to the International Council for the Exploration of the Sea (ices) and the North Pacific Marine Science Organization (pices). • We will promote compliance with these interim measures and with relevant international law, including by coordinating our monitoring, control and surveillance activities in this area. • We will ensure that any non-commercial fishing in this area does not undermine the purpose of the interim measures, is based on scientific advice and is monitored, and that data obtained through any such fishing is shared. Thus, the Declaration has two main elements: (1) development of interim measures to avoid unregulated fishing in the area in the future, and (2) promotion of scientific research to improve understanding of the living marine resources in the area and their ecosystems.

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The first-mentioned commitment only applies to commercial fishing, thus allowing vessels flying the flag of the “Arctic Five” to engage in other types of fishing, for example for subsistence, scientific or recreational purposes.56 The spatial scope of this commitment is limited to “this high seas area”, i.e. the high seas of the Central Arctic Ocean. Accordingly, it also applies to the Central Arctic Ocean segment of the neafc Convention Area.57 The “Arctic Five’s” exclusive focus on the high seas raises questions concerning the requirement of compatibility between fisheries conservation and management measures relating to the high seas and coastal State maritime zones.58 Two conditions must be fulfilled before the “Arctic Five” can authorize their vessels to engage in commercial fishing in the area in the high seas of the Central Arctic Ocean. Such fishing can only occur (a) pursuant to one or more rfmos or rfmas that (b) “are or may be established to manage such fishing in accordance with recognized international standards”. Accordingly, the “Arctic Five” will not authorize their vessels to engage in commercial fishing in the area in question merely pursuant to their own laws and regulations, and international regulation must be in accordance with “recognized international standards”. The latter phrase is probably intended to comprise key obligations of international fisheries law, such as ecosystem and precautionary approaches, with particular attention to new and exploratory fisheries.59 The wording chosen, “established to manage”, rather than, for example, “established and manage”, means literally that existing and future rfmo/As are merely required to have the mandate to manage fishing in accordance with recognized international standards. Rather than actually managing fishing in accordance with international standards, it would therefore be sufficient for rfmo/As to have the ability to manage fishing in this manner. This is probably not what the “Arctic Five” had in mind.60 Clearly, the commitment to avoid unregulated fishing is a fundamentally different approach than an indefinite ban, moratorium or freeze of fishing effort pursued by some parties. Far from imposing an outright ban or moratorium on the fishing in question, the interim measure actually allows such fishing 56 57 58 59 60

See Erik J. Molenaar, supra note 8, p. 451. See Erik J. Molenaar, supra note 8, p. 451. See Erik J. Molenaar, supra note 8, p. 450. See Erik J. Molenaar, supra note 8, p. 462. See Seamus Ryder, “The Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean”, The jclos Blog, 11 August 2015, available at .

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subject to the aforementioned conditions.61 The failure to attract support for a ban or a moratorium is probably due to one or more of the “Arctic Five” objecting to mechanisms which would give a single State or a minority of States the power to block commencement of high seas fisheries in the Central Arctic Ocean. Opposition to the International Whaling Commission’s so-called moratorium on commercial whaling, which can only be lifted with the support of a three-fourths majority, probably played a role in this respect.62 The Declaration includes various savings clauses, including the following key sentence: “These interim measures will neither undermine nor conflict with the role and mandate of any existing international mechanism relating to fisheries, including the North East Atlantic Fisheries Commission”. Therefore, the “Arctic Five’s” commitment does not preclude commercial fishing by vessels flying the flag of members/participants of neafc or future rfmos or rfmas. The “Arctic Five” seem to have a clear preference for a new rfmo/A for that part of the high seas area that is outside the neafc Convention Area.63 The 2015 Oslo Declaration concludes by addressing the “Broader Process” involving other interested States. The “Arctic Five” state their intention to continue to work together to encourage other States to take measures in respect of vessels entitled to fly their flags that are consistent with the aforementioned interim measures. They “acknowledge the interest of other States in preventing unregulated high seas fisheries in the central Arctic Ocean and look forward to working with them in a broader process to develop measures consistent with this Declaration that would include commitments by all interested States”. The “consistent with” requirement appears to reflect the “Arctic Five’s” intention to significantly shape the substance of the measures to be developed within the “Broader Process”. It raises the question how much flexibility and room for negotiation there will eventually be within that process, and whether the “other interested States” will be precluded from participating in the “Broader Process” in a manner that would be meaningful and consistent with their rights under international law.64 In any event, the 2015 Oslo Declaration marks the conclusion of the “Arctic Five” process on Central Arctic Ocean fisheries, which could be regarded as a preparatory phase of the “Broader Process”.

61 62 63 64

See Seamus Ryder, supra note 60. See Erik J. Molenaar, supra note 8, pp. 454–455 and 462. See Erik J. Molenaar, supra note 8, pp. 453–454. See Erik J. Molenaar, supra note 8, p. 461, who refers to a possible fait accompli.

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3.2 The “Broader Process” The first meeting of the “Broader Process” on high seas fisheries in the Central Arctic Ocean was held in Washington, d.c. from 1–3 December 2015 (2015 Washington Meeting). The meeting was initiated, hosted and chaired by the United States. A Chairman’s Statement on the meeting was released on 3 December.65 Participation in the 2015 Washington Meeting was by invitation of the United States – presumably on behalf of the “Arctic Five” – and consisted of “Fiveplus-Five”, i.e. the “Arctic Five”, China, the eu, Iceland, Japan and South Korea. In line with this, scientists from China, Iceland, Japan and South Korea had participated with their colleagues from the “Arctic Five” in the 3rd Meeting of Scientific Experts on Fish Stocks in the Central Arctic Ocean, held in Seattle in April 2015. The rationale for limiting participation to “Five-plus-Five” seems to be the “Arctic Five” position that only the “Five-plus-Five” have a “real interest” within the meaning of article 8(3) of the un Fish Stocks Agreement. In any event, the additional five parties appear to be those that had expressed a clear interest in the issue. The inclusion of the eu and Iceland ensures representation of all Arctic States, as Finland and Sweden (as well as “mainland” Denmark) are Members of the eu. The significant distant-water interests of China, the eu, Japan and South Korea are likely to have played a role in their invitation. The selection furthermore ensures the inclusion of all Members of the adjacent (and partly overlapping) neafc as well as Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (cbs Convention).66 Although there may be different points of view on various issues, the participation of the four States and the eu reflects their support for the principal purpose of the “Broader Process”, i.e. to prevent unauthorized commercial fishing in the high seas area of the Central Arctic Ocean. All of the ten parties had the same participatory status at the 2015 Washington Meeting and no other participatory category, such as observer, was used. Arctic indigenous peoples were not directly represented by one or more independent delegations but

65 66

“Meeting on High Seas Fisheries in the Central Arctic Ocean: Chairman’s Statement”, 3 December 2015, available at . See Erik J. Molenaar, “The December 2015 Washington Meeting on High Seas Fishing in the Central Arctic Ocean”, The jclos Blog, 5 February 2016, available at .

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delegations from three States included members from the Arctic indigenous communities in those respective States.67 As indicated by the 2015 Oslo Declaration, the geographical scope of the “Broader Process” is limited to the “high seas of the central Arctic Ocean”, at least so far. This implies two things. First, the adjacent national maritime zones are excluded, at least so far, which raises questions of compatibility. Second, the Atlantic segment of the high seas area, which falls within the neafc Convention Area, is included. Given that neafc’s competence in its own Convention Area is recognized, all Members of neafc participate in the “Broader Process”, and neafc and the “Broader Process” are both non species-specific and therefore overlap, the question should be raised why the geographical scope of the “Broader Process” has not been confined to the portion of the high seas area of the Central Arctic Ocean that is outside the neafc Convention Area.68 The provisional agenda of the 2015 Washington Meeting included69 (1) a presentation on Arctic Ocean high seas fisheries discussions so far, (2) opening statements, (3) a presentation on the Arctic fisheries science track so far, (4) a discussion on science issues, (5) a general “discussion of possible approaches for preventing unregulated commercial fishing in the high seas area of the central Arctic Ocean”, (6) introduction of the draft Agreement proposed by the United States, and (7) discussion of this proposal.70 The meeting was exploratory in nature. A number of delegations made clear that they did not at present have a mandate to negotiate any particular instrument relating to the topic.71 Probably, this concerned at any rate the four additional States and the eu. This position could be interpreted as a signal that, notwithstanding their general commitment to prevent unregulated commercial fishing in the high seas of the Central Arctic Ocean, and their willingness to engage in international cooperation to this effect, they will participate in the “Broader Process” on an equal footing with the “Arctic Five”.72 However, given the amount of time reserved for discussion of the draft Agreement proposed by the United States and of a possible agreement text in general, it is clear that the meeting was to a significant extent designed to 67 68 69 70 71 72

See Erik J. Molenaar, supra note 66. See further Erik J. Molenaar, supra note 66. Agenda items as numbered by the author. See Erik J. Molenaar, supra note 66. Chairman’s Statement, supra note 65. See Erik J. Molenaar, supra note 66, who also refers to the rights of these parties to fish on the high seas pursuant to article 116 of the Convention.

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facilitate work towards a legally binding instrument as the preferred outcome of the “Broader Process”. This does not necessarily mean that all “Arctic Five” have a preference for a legally binding instrument.73 The 2015 Washington Meeting considered the key questions of whether and when there might exist a stock or stocks of fish sufficient to support a sustainable commercial fishery in the high seas of the Central Arctic Ocean and the effects of any such fishery on the ecosystems. Norway offered to host a follow-up 4th Meeting of Scientific Experts in September 2016. The meeting also considered several options for organizing future scientific collaboration on this topic.74 The meeting expressed the belief that it is unlikely that there will be a fish stock or stocks in the high seas of the Central Arctic Ocean sufficient to support a sustainable commercial fishery in the near future. However, the meeting also noted that the rapid changes occurring in the Arctic region make such predictions uncertain and therefore recognized the need for a precautionary approach.75 The meeting noted the existence of an applicable international legal framework for fisheries management, as reflected in the Law of the Sea Convention, the un Fish Stocks Agreement and numerous other international instruments. However, the meeting also noted that, at present, there is no international mechanism to regulate commercial fishing in the high seas area of the Central Arctic Ocean, except for the portion of this area that is within the neafc Convention Area. The meeting recognized the interests of Arctic residents, particularly Arctic indigenous peoples, in this topic and expressed the intention to continue to engage with them.76 The 2015 Washington Meeting considered various approaches to prevent unregulated commercial fishing and manage possible future fisheries in the area in question. It was understood that not all of these approaches are mutually exclusive and that a number of them could be combined in a step-by-step or evolutionary fashion. Suggested approaches, which have been characterized as the “roadmap of the Broader Process”,77 included:78

73 74 75 76 77 78

See Erik J. Molenaar, supra note 66. Chairman’s Statement, supra note 65. Chairman’s Statement, supra note 65. Chairman’s Statement, supra note 65. See Erik J. Molenaar, supra note 66. As numbered by the author.

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(1) adjusting the 2015 Oslo Declaration signed by five of the participating States with input from the other participants such that a new, broader non-binding statement could be adopted; (2) negotiating a binding international agreement of the kind proposed by the United States; and (3) negotiating in the foreseeable future an agreement or agreements to establish one or more additional rfmo/As for the area.79 The United States proposal for an international agreement, referred to in approach no. 2 above, would, among other things, commit parties to: • authorize their vessels to conduct commercial fishing in the high seas area only “pursuant to” one or more rfmo/As that are or may be established to manage such fishing in accordance with modern international standards; • establish a joint programme of scientific research with the aim of informing future fisheries management decisions and improving understanding of the ecosystems of the area; and • ensure that any non-commercial fishing in this area follows scientific advice and is well-monitored. Although the United States proposal was not subject to negotiation at the meeting, some delegations provided preliminary reactions to it and suggested ways in which it could be strengthened or clarified. The United States committed to circulate an updated proposal to all participants in advance of the next meeting on this topic.80 Of the three negotiation approaches mentioned above, it appears that only the third will be able to conclude in the authorization of commercial high seas fishing. Choosing one of the first two approaches means that, if authorization of commercial high seas fishing is eventually deemed desirable, the third approach will have to be applied at a later stage.81 The second meeting of the “Broader Process” was held in Washington d.c. from 19–21 April 2016,82 and the third meeting was held in Iqaluit, Nunavut, Canada, from 6–8 July 2016.83 79 80 81 82 83

Chairman’s Statement, supra note 65. Chairman’s Statement, supra note 65. See Erik J. Molenaar, supra note 66. Chairman’s Statement from Arctic High Seas Fisheries Meeting April 2016, available at http://www.state.gov/e/oes/ocns/fish/illegal/256780.htm. Meeting on High Seas Fisheries in the Central Arctic Ocean, Iqaluit, Nunavut, Canada, 6–8 July 2016: Chairman’s Statement, available at http://www.dfo-mpo.gc.ca/international/ media/statement-declaration-eng.htm.

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All delegations have affirmed their commitment to take interim measures to prevent unregulated commercial high seas fishing in the Central Arctic Ocean as well as a commitment to promote the conservation and sustainable use of living marine resources and to safeguard a healthy marine ecosystem in this area. Most delegations view this as part of a stepwise process in advance of possibly establishing one or more additional rfmo/As for this area. It is expected that the ten parties will negotiate an instrument on this topic but it is not yet clear whether or not it will be legally binding. Delegations have made good progress in resolving differences of view on a number of the main issues under discussion and there is a general belief that these discussions have the possibility of concluding successfully in the near future. In addition to the question of the format of the instrument under consideration, some of the key points that remain under discussion for the future include: • the manner in which the instrument addresses exploratory fishing; • the conditions under which a decision might be made to commence negotiations on an agreement to establish one or more additional regional fisheries management organizations or arrangements for the Central Arctic Ocean; and • decision-making procedures. It is expected that the fourth meeting of the “Broader Process” will be hosted by Denmark in the autumn of 2016.84 4

Concluding Remarks

The Law of the Sea Convention provides the global legal framework for all maritime zones and all uses of the oceans, including in the Central Arctic Ocean. The un Fish Stocks Agreement complements the provisions of the Convention on high seas fisheries and strengthens considerably the legal framework for the conservation and management of straddling and highly migratory fish stocks by rfmo/As. The Agreement contains a number of provisions that are or may become particularly relevant for fisheries in the high seas area of the Central Arctic Ocean, for example regarding the precautionary approach to fisheries management and the establishment of rfmo/As. 84

Chairman’s Statement, supra note 83.

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However, at present, there is no international mechanism to regulate commercial fishing in the high seas area of the Central Arctic Ocean, except for the portion of this area that is within the neafc Convention Area. No fisheries have yet taken place in this area but with ocean warming and ice melting, fish stocks may become accessible there in the future. It is important that relevant States react to these changing environmental circumstances in good time and regulate potential future fisheries in the area. There are strong arguments for taking action sooner rather than later as it is often easier to find the political will to conclude an agreement before competing interests arise and public opinion is engaged.85 The so-called “Arctic Five”, Canada, Denmark, Norway, the Russian Federation and the United States, took an initiative on this issue by adopting the 2015 Oslo Declaration concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean. The Declaration has two main elements: (1) development of interim measures to avoid unregulated fishing in the area in the future, and (2) promotion of scientific research to improve understanding of the living marine resources in the area and their ecosystems. The “Arctic Five” invited five other parties, China, the eu, Iceland, Japan and South Korea, (“Five-plus-Five”) to participate in a “Broader Process” on high seas fisheries in the Central Arctic Ocean. At its first meeting, held in Washington, d.c. in December 2015, the “Broader Process” considered various approaches to prevent unregulated commercial fishing and manage possible future fisheries in the area in question that are not mutually exclusive and that could be combined in a step-by-step fashion. This may possibly include negotiating in the foreseeable future an agreement or agreements to establish one or more additional rfmo/As for the area. Two further meetings have been held, good progress has been made in resolving differences of view on a number of the main issues under discussion and there is a general belief that the discussions may conclude successfully in the near future. It is imperative that any instruments adopted by the relevant parties within the “Broader Process” be consistent with the applicable legal framework, in particular the Law of the Sea Convention and the un Fish Stocks Agreement. As has been demonstrated above, the definition of “Central Arctic Ocean coastal States” is by no means clear-cut. Furthermore, there is great uncertainty as to how fish stocks in the Arctic region will respond to changing environmental circumstances and this may affect the aforementioned definition. Taking this into account, it seems reasonable that cooperation between States on possible future fisheries in the high seas of the Central Arctic Ocean be inclusive 85

See Michael Byers, supra note 9, p. 183.

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rather than exclusive and that all parties participate on an equal footing. The convening of the “Broader Process” and its meetings so far appear generally to follow this approach. In the 2015 Oslo Declaration, the “Arctic Five” explicitly referred to the precautionary approach as the rationale and the international legal basis for their efforts on high seas fishing in the Central Arctic Ocean. In light of the limited scientific knowledge available regarding the area, it is appropriate to apply the precautionary approach. Importantly, the inclusion of this key concept in the Chairman’s Statement of the 2015 Washington Meeting86 probably reflects the support of the expanded group of participants for the precautionary approach.87 It is important to ensure balance between conservation and management of fish stocks in the high seas of the Central Arctic Ocean, as in other areas. Therefore, while it is appropriate for the relevant parties to apply the precautionary approach, they should also commit themselves to adopt measures to allow for the gradual development of fisheries in the area if and when data are available demonstrating that fish stocks can indeed sustain commercial utilization. In accordance with the precautionary approach, the focus of the 2015 Oslo Declaration and the “Broader Process” is on the prevention of unregulated fishing in the area and promotion of scientific research. In light of the discussion above on the definition of an “rfma”, it is possible that the outcome of the “Broader Process” will constitute an rfma, even if that outcome would not be legally binding.88 In the view of the need for cost-effectiveness, a fully fledged rfmo should only be established if and when necessary but in any event prior to the commencement of any commercial fisheries in the area. One possible advantage of this two-step approach is that by the time of establishing an rfmo, there could be more clarity on which States qualify as “coastal States” with respect to fisheries in the high seas of the Central Arctic Ocean and as having a “real interest” in the fisheries. Given that neafc’s competence in its own Convention Area is recognized, all Members of neafc participate in the “Broader Process”, and neafc and the “Broader Process” are both non species-specific and therefore overlap, the geographical scope of the “Broader Process” should be confined to the portion of the high seas area of the Central Arctic Ocean that is outside the neafc Convention Area. 86 87 88

Chairman’s Statement, supra note 65. See Erik J. Molenaar, supra note 66. See Erik J. Molenaar, supra note 8, p. 458. This characterization differs from that in the roadmap described in the Chairman’s Statement, supra note 65.

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Finally, the exclusive focus on the high seas raises questions concerning the requirement of compatibility between fisheries conservation and management measures relating to the high seas and coastal State maritime zones. This is relevant since, most likely, large-scale fisheries will become commercially viable within coastal State maritime zones of the Central Arctic Ocean ­earlier than in its high seas area. The more immediate challenge for the relevant coastal States – both for reasons of credibility and in light of the compatibility principle – is thus to ensure that commercial fishing in their own maritime zones is also regulated in accordance with “recognized international standards”.89 89

See Erik J. Molenaar, supra note 8, p. 463.

chapter 7

Arctic Ocean Fisheries and Korea Jee Hyun CHOI 1 Abstract This article provides an overall analysis of Arctic fishery policy concerning Korea: (1) Korea Arctic Fish Capture (2) Korea Arctic Policy Documents (3) Domestic Law of Korea Relating to the Arctic Fishery and Fishing Industry and (4) Governance Relating to Arctic Fisheries (5) Marine Scientific Research and (6) Evaluation.

Prior to considering Arctic fishery issues, we must define what the Arctic Ocean is from the perspective of fisheries. Easily accessible data on fao statistics help but even fao (Food and Agriculture Organization) “Major Fishing Areas for Statistical Purposes” are based on arbitrary areas. The boundaries are determined in consultation with established international fishery agencies based on various considerations, including (i) the boundaries of natural regions and the natural divisions of oceans and seas; (ii) the boundaries of adjacent statistical fisheries bodies already set in inter-governmental conventions and treaties; (iii) existing national practices; (iv) national boundaries; (v) longitude and latitude grid system; (vi) distribution of the aquatic fauna; and (vii) distribution of the resources and the environmental conditions within an area. Still we cannot depend on a definition of the Arctic Ocean for the purposes of this study based solely on the fao Fishing Areas. Part of the reason is that it is not easy to obtain access to fishing statistics, especially in Korea. Thus, this presentation follows the statistics as reported by the division of fishing areas according to the fao standards and analyses not only the fao Fishing area 18, the Arctic Sea, but also areas 21, 27, 61, and 67. 1

Korean Arctic Fish Capture

According to the Korea Overseas Fisheries Association’s Statistical Yearbook of Overseas Fisheries, there is no fish capture production in the Arctic Sea. 1 Senior Researcher, Korea Maritime Institute.

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Korea Arctic Policy Documents

There are several rok policy documents relating to the Arctic that we must consider for this paper. One is the “Comprehensive Policy Plan of Korea toward the Arctic Region”. Another is the “National Strategy Plan of the Arctic Region”. A third is the “Implementation Plan of the Arctic Region”. 2.1 “Comprehensive Policy Plan of Korea toward the Arctic Region” This Policy Plan was initiated by the Ministry of Ocean and Fisheries in cooperation with various other ministries and was adopted by the Korean Government. Its purposes are: (i) establishing an international Arctic partnership with other states, (ii) strengthening scientific research capability to solve common problems for humankind, and (iii) seeking a new business model in the Arctic area. This roadmap came about from the momentum gained from Korea’s accession to the Arctic Council as a permanent observer State. Comprehensive Policy Plan purpose one, establishment of the international Arctic partnership with other States, relates to fishery matters so as to promote the activities within nafo and to facilitate Korea becoming a new Contracting party of neafc. We should note that neafc does not seem to allow much opportunity for a new Contracting party, since a new Contracting party can participate in the allocation of new fish stocks not regulated by the current allocation system. Comprehensive Policy Plan purpose three, seeking a new business model in the Arctic area, relates to fisheries and will first involve an R&D plan to build an icebreaker. The R&D plan will advance according to the operational assessment of araon (Korea Research Icebreaker). araon’s plan includes factors such as the commercial benefit possibilities for Arctic fisheries. This document was pursued as a co-work plan for Marine Scientific Research with Arctic States (Comprehensive Policy Plan purpose two). Various methods are considered, for example, by a bilateral agreement. This document stresses the need to intensify present fishing cooperation with Arctic States. 2.2 “National Basic Plan of the Arctic Region” This document was adopted during December of the same year as the Comprehensive Policy Plan of Korea toward the Arctic Region. This document’s aim was to give shape to the Comprehensive Policy of Korea toward the Arctic (2013.5). This “Basic Plan” includes various basic sub-plans about the Arctic Fishery. First, it has a plan to check the feasibility of accession to the North East Atlantic Fisheries Commission, (neafc) by the end of 2014. It also checked the possibilities and benefit of the fishery for Korea. But until now, according to

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publicly known materials and documents, there have been no signs that Korea tried to accede to the neafc Convention. There is no indication of such an effort in the neafc Meeting Record of 2014. At the 2014 meeting, the eu presented a proposal to add new species to the list of regulated resources in Annex i of the Schedule. neafc decided not to adopt the eu proposal at that time, but rather to request that peccoe (Permanent Committee on Control and Enforcement) first consider this issue. According to the Guidelines for the expectation of future new contracting parties with regard to fishing opportunities in the neafc Regulatory Area, as agreed at the 22nd Annual Meeting of neafc in November 2003, new contracting parties can only participate in future allocation of stocks. As long as no more new species are permitted to be caught,2 new contracting parties cannot obtain a fish stock allocation. In other words, if there is no opportunity for Korea to take part in the fish stock allocations, it would be impossible to expect Korea to accede to neafc. The second sub-plan is the Arctic living resources monitoring program to be implemented with another Arctic State. The Korean Government has a well-equipped vessel and research station designed for the scientific research of Arctic living resources. But there are not yet enough research experiences. Inevitably cooperation with Arctic States is needed. In addition, as far as scientific research of fisheries is concerned, the actual benefactor of this research is the fishing industry. Accordingly, the Government of Korea built a joint research plan together with the fishing industry. 2.3 “Implementation Plan of the Arctic Region” According to the National Basic Plan of the Arctic Region, the rok Government must build an implementation plan each year. The First Implementation Plan was made in May, 2015. The 2015 Implementation plan provides three policy goals: (i) Expanding international cooperation; (ii) Extending Arctic research capability; (iii) Establishing rudimentary business conditions in the Arctic. The third policy goal includes a yearly plan for the Arctic Fishery. ­Under this goal, Korea plans to become a member of the npfc Convention. According to this plan, Korea sets up every step of the way for joining the npfc (North Pacific Fishery Council). Already the Korean National Parliament has given prior consent to the President’s ratification of the Convention establishing the Council. Now only a ratification step is left to do. According to the ­Constitution

2 Annex i of the Scheme of Control and Enforcement listed the fishery caught in the recommendation.

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of the Republic of Korea, its President has the power to ratify such conventions. After becoming a contracting party, Korea can participate in negotiating fishery allocations. 3

Domestic Law of Korea Relating to the Arctic Fishery and Fishing Industry

3.1 Framework Act on Marine Fishery Development This act was made in 2002 for the purpose of making a basic framework for Marine and Maritime Affairs including fisheries, the marine environment, marine resources and hard minerals. Specially, Article 20 in the Act orders a support plan for the installation of a Marine Research Station on both the South Pole and the North Pole Areas. Following this Article, the Enforcement Decree of the Framework Act on Marine Fishery Development, Article 14 articulates four basic elements of a support plan for the marine research stations. Articles 14, 16 and 17 do not mention the Arctic area. But they still provide legal ground for Arctic activities concerning the Preservation of the Arctic Marine Ecosystem (Article 14), the Development of Arctic Marine Resources (Article 16) and the Arctic Scientific Research and Technological Development (Article 17). 3.2 Distant Water Fisheries Development Act This Act was enacted in 2012 to strengthen the fishery industry’s competitiveness through the sustainable development of the ocean and the responsible management of fisheries. Article 12 articulates the conditions for trial fishing activities. According to this Article, after the approval of the Minister of Oceans and Fishery, a person who wants trial fishing in a new area like the Arctic area, can perform trial fishing. Until 2004, the Minister only approved governmentaffiliated research. But since 2005, the Minister has approved commercial vessels’ trial fishing.3 There has been no report however, about the Arctic Area trial fishing. Anyone who wants to conduct trial fishing in the Arctic area must get advance approval from the Minister according to this Act. Pursuant to Article 21 of this Act, surveys of marine resources in international waters, and advancement of research and scientific technologies related to ocean fisheries is limited to four grounds. However, development of new 3 해 양 수 산 부 , 원 양 산 업 과 해 외 어 장 자 원 조 사 사 업 추 진 실 적

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fishing grounds outside of Korea’s maritime jurisdiction can be a ground for this survey. 3.3 Arctic Activities Promotion Act (Draft) The Korean National Parliament continues to deliberate on this Draft. The purpose of this act is to promote Arctic activities by taking part in settling international common concerns in the Arctic areas and by giving support to national development in the Arctic areas. According to this draft, the Minister must establish the Arctic Research Plan every five years. This Research Plan deals with basic analysis, research and development, and scientific surveys concerning Arctic Activities. Arctic Activities are defined to mean research of the Arctic Environment and Resources, exploration and development of Arctic resources, and utilization of the Northern Sea Route. Arctic Resources include energy, minerals, tourism, and living resources. 4

Governance Relating to Arctic Fisheries

The main ministry in charge of Arctic fishery policy is the Ministry of Oceans and Fisheries. This ministry was established as part of a general cabinet organization in 1996. In 2007 it was merged into the Ministry of Construction and Transportation and five years later with the start of a new Korean presidency, it was re-established. The Arctic fishery task is divided into various sub divisions by the Government Organization Act and its lower statute, a decree about the task of the Ministry of Oceans and Fisheries. The Marine Development Division is tasked with scientific research and technical development of the Arctic and Antarctic regions. The International Cooperation Division is charged with the tasks of international negotiations with and within an international organization relating to the two Polar Regions, works relating to unclos and the Fish Stock Agreement within the un system and with fao fishery work. The Distant Water Fishery Division deals with all works relating to distant water fisheries and with negotiations relating to the Korea-Russia fishery agreement. Of course diplomatic business relating to Arctic regions and fishery is done by the Ministry of Foreign Affairs. Looking at the Ministry of Oceans and Fisheries task allocations, we see that Arctic fishery tasks are divided into many sub divisions which overlap one another. This problem can be moderated by proper management by the Minister. When international treaty negotiations relating to Arctic fisheries are involved,

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there could be collisions between the two main central ministries, the Ministry of Oceans and Fisheries and the Ministry of Foreign Affairs. If or when this occurs, both ministries should settle problems by cooperative engagement. 5

Marine Scientific Research (msr)

Arctic scientific research is undertaken by the Korea Polar Research Institution. Korea acceded to the Convention on the Conservation of Antarctic Marine Living Resources (ccamlr) in 1985. In 1988 the first Korean Antarctic Research Program (kaRp) team conducted a survey in the vicinity of King Sejong Station and the Antarctic King Sejong Research Station was inaugurated. In 1987, the Polar Research Laboratory was established as a sub laboratory inside the Korea Ocean Research and Development Institute (kordi, which was later turned into kiost). In 2004, the Polar Sciences Laboratory was expanded to the Korea Polar Research Institute (kopri). kopri has two Antarctic Research Stations. One is the aforementioned King Sejong Station built in 1988. The other is Jang Bogo Station built in 2014. There is one Arctic Station, Dasan Station named after a famous Korean Scholar. This station was established in 2002 at Ny-­Alesund (78° 55’ N, 11° 56’ E), on the high Arctic island of Spitsbergen. The station provides laboratory space with limited equipment: glacier and boating equipment, radios, firearms (training provided), computers, telephone, fax and e-mail. The Dasan Station produces many scientific research surveys, but there is no scientific survey for an Arctic fishery. The station has just conducted research about marine living resources surrounding the periphery of the station. Neither the Korean Government, kopri nor any research institutions have conducted msr on fishing or fisheries in the Arctic Ocean. They have only acquired scientific information through research projects abroad with publicly open resource data or through bilateral/multilateral cooperation arrangements. The Korean Research Icebreaker araon started its normal operation in December 2009. Its mission is to perform the following: (i) Multidisciplinary scientific research in the Polar Regions, (ii) Logistics for the stations in the Polar Regions, and (iii) Support for the construction of the second Antarctic Research Station of Korea (the Jang Bogo Antarctic Research Station). It contains scientific research equipment for fishing such as a Scientific Fish Finder, Low Frequency Omni-Directional Fishery Sonar, and the Long Corer System. By its scientific research activities, Korea expects further developed research regarding Arctic fishing.

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Evaluation: Will Korea Rush into the Arctic Fishery?

Korea expects new fishing grounds in the Arctic area to be induced by climate change and the melting of Arctic ice. Distant water fisheries have historically been a major industry in Korea. Current uncertainty about new fishing grounds in the Arctic area has made Korea hesitate to start full scale fishing there. Also lack of experience in the Arctic fishery is yet another reason why Korea is cautious. Given the uncertainties, the best options for Korea are as follows. First, Korea must participate in international fora concerning Arctic fisheries. This will strengthen its international networks for Arctic fisheries. Korea should commit itself to building a sustainable fishery mechanism in the Arctic area. Many people are concerned about the depletion of fishery resources all over the world. Therefore, it is possible that the sustainable fishery issue would be the overriding consideration in an Arctic fishery. Thus, gaining the world’s trust in the field of fisheries would be the first element to emerge in the next fishery regime for Arctic fisheries. Commercial benefits in an Arctic fishery must not exceed trust from the world. Korea ought to bear in mind that Korea is not an Arctic State. Second, Korea must expand its international cooperation in the field of scientific research for the Arctic region. Korea has limited experience in the Arctic fishery. Korea’s experience can certainly be enhanced through international cooperation. fao fishing areas No. 21 and 27 are of interest to Korea. Data indicates area 61 is already a main target area for Korea as substantial fish captures come from this area. To date, there is no fishing result reported in areas 21 and 27. Korea is also trying to increase fishing cooperation with Iceland, Norway and Denmark. This is the main reason why it is considering acceding to neafc. It is by no means certain that climate change will lead to a “gold rush” in the Arctic area for fisheries. There is, of course, a strong warning on Arctic living resources induced by the rising of carbon dioxide (CO2) and ocean acidification. Thus, the first step in international cooperation with other Arctic States would be to focus on scientific research about living resources and marine ecology in the Arctic area. Third, Korea must prepare detailed master plans for the Arctic fishery. On the basis of scientific surveys and with the results of international cooperation, Korea must set its goals and strategy for the Arctic fishery. This plan ought to comprehend bilateral cooperation, research and development with industry, and improving the Arctic fishery governance system. As Korea expands its Arctic activities in all directions—sea routes, port development, scientific research, environment, and business—it could be highly desirable to make a government sub-division to take charge in Arctic affairs.

chapter 8

Conservation of Marine Living Resources in the Central Arctic Ocean: Five Arctic Coastal States’ Initiatives Jianye TANG* Abstract While global warming provides a potential for future commercial fisheries in the Arctic Ocean, it makes a regional fisheries agreement necessary before fishing takes place. It has been generally agreed that the general rules, reflected in the United Nations Fish Stocks Agreement (unfsa) and the modern governance principles, such as the precautionary approach and the ecosystem approach, should apply. In response, the five Arctic coastal States have adopted an interim measure to deter possible unregulated fishing, proposed a joint program of scientific research and implied uncertainty about the number of subregional or regional organizations or arrangements to be established. It is suggested, however, that an interim measure of this kind be taken by coastal States, together with others during the consultative meetings or the preparation conference. The nature of the proposed scientific research program ought to be clarified further. One regional organization or arrangement is desirable and feasible. Hopefully, the five Arctic coastal States and other relevant states could cooperate with each other in the future to find a well-balanced solution for the high seas fisheries of the Arctic Ocean.

With the retreat of Arctic sea ice and an increase of water temperature caused by global warming, certain fish species have been driven northwards, entering the previously frozen areas within the Arctic Ocean, which makes possible * Post-doctoral Researcher at the Centre for Polar and Deep Sea Development and School of Law, Shanghai Jiao Tong University; Associate Professor at College of Marine Science, Shanghai Ocean University. The author can be contacted at: [email protected]. The viewpoints expressed herein are those of the author, not necessarily those of any institute or government. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai -tang.pdf. Editorial note: This paper was completed in November 2015 and therefore does not reflect developments after that date.

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commercial fisheries in the high seas of the Arctic Ocean.1 In this sense, climate change has had a positive effect on future Arctic fisheries. Though it is estimated that commercial fishing is not possible in the Central Arctic Ocean in the near future,2 some individual groups and countries have initiated measures for conservation and utilization of Arctic fisheries resources, with concerns for the vulnerability and particularity of the Arctic marine environment. On 22 April 2012, more than 2000 scientists signed an open letter calling for developing an international agreement to address fisheries in the central Arctic Ocean and starting with a catch level of zero during the International Polar Year (ipy) Conference in Montréal.3 In February 2014, five Arctic coastal States (the Arctic Five, i.e. usa, Canada, Russia, Norway and Denmark) held a third senior official meeting in Nuuk, and reached a consensus on the prevention of unregulated fishing and on the establishment of a joint scientific research program.4 On 12 March 2014, the European Parliament adopted a resolution on the eu strategy for the Arctic, which states, inter alia, that the eu supports the initiative by the Arctic Five in regard to fisheries in the Arctic high seas and the development of a network of Arctic conservation areas.5 Against this backdrop, this paper is a discussion on the legal aspects of the initiatives of the Arctic Five. After providing some background information on fish stock distribution in the Arctic Seas, commercial fishing activities and the impact of climate change on the migration of some fish stocks, applicable rules and principles for fisheries in the Central Arctic Ocean have been identified. While the initiatives of the Arctic Five are outlined afterwards, detailed 1 acia, Arctic Climate Impact Assessment (Cambridge, Cambridge University Press, 2005), pp.  770, 1042, 2000; William E. Schrank, ‘The acia, climate change and fisheries’, 31 Marine Policy, 2007, 5–18. 2 Harald Loeng, ‘Arctic Fisheries: Present and future perspectives’, The 38th Annual Conference of the Center for Oceans Law and Policy “Challenges of the Changing Arctic: Continental Shelf, Navigation, and Fisheries”, 26–27 June 2014, Bergen, Norway. http://www.virginia.edu/ colp/pdf/bergen-loeng.pdf, accessed December 4, 2014. 3 Pew Environment Group, ‘An Open Letter from International Scientists’, Montréal, www .pewtrusts.org/~/media/legacy/oceans_north_legacy/page_attachments/International -Arctic-scientist-letter-with-sigs-522012.pdf?la=en, accessed December 3, 2014. 4 ‘Coastal States Reach Agreement on Arctic fisheries management’, fis, March 03, 2014. http:// fis.com/fis/worldnews/worldnews.asp?l=e&ndb=1&id=66866, access on 03 March2014. On 16 July 2015, the Arctic Five signed in Oslo, on the basis of the Nuuk meeting, the Declaration Concerning the Prevention of Unregulated High Seas Fishing in the Central Arctic Ocean. There is no significant difference between the Declaration and the Chairman’s Statement of the Nuuk meeting. 5 European Parliament Resolution of 12 March 2014 on the eu strategy for the Arctic, 2013/ 2595(rsp), paragraph 38.

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analyses have been conducted in light of applicable rules and related practices, followed by a conclusion. For the purposes of this paper, the term “Arctic” refers to the “amap area” adopted by the Arctic Monitoring and Assessment Program (amap) of the Arctic Council. The term living resources is limited to fish species, excluding marine mammals and diadromous fish. 1

Fisheries in the Arctic Seas and the Effects of Climate Change

1.1 Fisheries in the Arctic Seas According to “Arctic Biodiversity Assessment: Status and trends in Arctic biodiversity” (2013), there are pro tem 633 known fish species in 106 families in the Arctic Ocean and adjacent Arctic seas (aoas), of which bony fishes account for 92%, and cartilaginous fishes such as sharks and skates 8%. In term of zoogeography, only 10.6% of the bony fishes are considered genuinely Arctic and 72.2% are boreal. 13–87 species are estimated to be in the Arctic Ocean and Arctic shelves, while 385 species are in the Bering Sea, 204 species in the Norwegian Sea and 153 species in the Barents Sea. Therefore, one can conclude that the adjacent seas are the most species-rich regions.6 As far as commercial fisheries are concerned, 59 fish stocks have been recorded in catch, all being bony fishes. Cartilaginous fishes are rare in number, mainly from bycatch and no data have been reported. Among 59 fish stocks, 50 stocks are boreal species, accounting for 85%; 6 stocks Arctic-boreal species, such as capelin, 10%; only 3 stocks are Arctic species, 5%.7 Those Arctic species, such as the polar cod (Boreogadus saida), are mainly harvested by Russian fishermen along the coasts of the Barents Sea, White Sea and Kala Sea.8 In accordance with fao the Status of World Fisheries and Aquaculture (2014), the catch from the North-West Pacific Ocean was 21.46 million tons, the sea area with the highest output in the world; the catch from the North-East Pacific Ocean 2.916 million tons; the North-East Atlantic Ocean 8.103 million tons; the North-West Atlantic Ocean 1.978 million ton. The total catch from both Polar Regions was 178,797 tons.9 The report of the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr) in 2012 showed that the catch 6 Hans Meltofte (ed.), Arctic Biodiversity Assessment: Status and trends in Arctic biodiversity (Akureyri, Conservation of Arctic Flora and Fauna, 2013), pp. 194–195. 7 Id., pp. 218–219. 8 H. Hop and H. Gjøsæter, ‘Polar cod (Boreogadus saida) and capelin (Mallotus villosus) as key species in marine food webs of the Arctic and the Barents Sea’, 9 Marine Biology Research, 2013, 878–894. 9 fao, the Status of World Fisheries and Aquaculture (Rome, fao, 2014), p. 11.

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from the Southern Ocean was 176,798 tons, which means the catch from the Arctic Ocean was 1,999 tons. 1.2 The Effect of Climate Change Climate change will inevitably have a significant effect on the Arctic marine ecosystem. Some fish stocks may migrate northwards from sub-Arctic to higher latitude seas. The shifts in distribution patterns for many targeted fishes will attract modern fishing fleets into hitherto pristine areas. However, the northern movement of species varies, depending on density distribution, temperature, food conditions, and other elements.10 According to a study on the exposure of species to climate change, the sensitivity of species to these changes and the adaptive capacity of each stock or stock groups, some species either from the Atlantic side or from the Pacific side, like polar cod, snow crab, redfish, Bering halibut, Greenland shark, and Arctic ray, have high potential to migrate farther north.11 It is said that Atlantic cod has already migrated into the north as they are found in the Barents Sea, and there have been commercial fishing activities around the Svalbard archipelago.12 On the Pacific side, studies have shown that climate change has positive effects on some commercial fisheries in the Bering Sea, with an increase in primary production and biomass, while there remains considerable uncertainty over the nature of climate-forced ecological change. Since the early 1980s, community-wide distribution has shifted northward about 230 km and “the area formerly covered by the cold pool has seen increases in total biomass, species richness, and average trophic level as subarctic fauna have colonized newly favorable habitats.”13 On the Atlantic side, the spawning stock biomass of Northeast Arctic cod has been steadily increasing with warming sea temperatures since the 1980s, and reached two million tons in 2012. The northward distribution of the species has already reached the shelf break between the Barents Sea and the deep Polar Basin. It is estimated that the species might migrate eastward along the Siberian Shelf as new cod habitats open.14 10 11

12 13 14

Allison L. Perry, Paula J. Low, Jim R. Ellis and John D. Reynolds, ‘Climate change and distribution shifts in marine fishes’, 308 Science, 2005, 1912–1915; Harald Loeng, supra note 2. Anne Babcock Hollowed, Benjamin Planque and Harald Loeng, ‘Potential movement of fish and shellfish stocks from the sub-Arctic to the Arctic Ocean’, 22 Fisheries Oceanography, No. 5, 2013, 355–370. ices, Report of the Arctic Fisheries Working Group (afwg), ices cm 2014/ACOM:05, 2004. Franz J. Mueter and Michael A. Litzow, ‘Sea ice retreat alters the biogeography of the Bering Sea continental shelf’, 18 Ecological Applications, 2008, 318–319. Anne B. Hollowed and Svein Sundby, ‘Change is coming to the northern oceans’, 344 Science, 2014, 1084–1085.

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With the above studies taken into consideration, one could conclude that global warming has driven some Arctic-boreal or boreal species northwards into the areas previously covered by ice and without fisheries. Therefore, it is argued that “Arctic fisheries target and manage boreal stocks and not Arctic species.”15 2

Applicable Rules and Principles

As for conservation and utilization of Arctic fisheries resources, the Protection of Arctic Marine Environment (pame) of the Arctic Council recommends that the Arctic fisheries resources be managed in accordance with the law of the sea.16 In this regard, international rules, reflected in the United Nations Convention on the Law of the Sea (los Convention), the United Nations Fish Stocks Agreement (unfsa), the fao Agreement to Promote Compliance with International Conservation and Management measures, the fao Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, and the fao Code of Conduct for Responsible Fisheries and four international Plan of Actions, are applicable in general. Some regional instruments might be available for specific fish stocks or regions adjacent to the Arctic. These include the International Convention for the Conservation of Atlantic Tunas, the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, the Convention on Conservation of Pollock in Central Bering Sea, the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, and the Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries, etc.17 In addition, there are some trilateral and bilateral instruments applicable to concerned states, including the Agreement between the Government of Iceland, the Government of Norway and the Government of the Russian Federation Concerning Certain Aspects of Co-operation in the Area of Fisheries, 15

16 17

Jørgen S. Christiansen, Catherine W. Mecklenburg and Oleg V. Karamushko, ‘Arctic marine fishes and their fisheries in light of global change’, 20 Global Change Biology, No. 2, 2014, 352. pame, The Arctic Ocean Review Project, Final Report, (Phase ii 2011–2013), Kiruna, May 2013, p. 96. The Convention on the Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean explicitly states in Article 4 that the Convention does not apply to the Bering Sea. Chairman’s suggested draft text dated 30 April 2010 with brackets, however, indicated that the exclusion was made by the United States and the Russian Federation, while Japan and Korea insisted on deleting it. On file with the author.

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the Convention for the Preservation of the Halibut Fishery of the North Pacific Ocean and the Bering Sea, the Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations, and so on. This leaves a loophole in the central Arctic Ocean, which has been heatedly discussed and has attracted great attention of relevant countries. While almost 8% of the Arctic Ocean in the Atlantic portion falls into the mandate of the North East Atlantic Fisheries Commission (neafc), the high seas in the central Arctic Ocean should be regulated as a whole in light of the ecosystem principle. The paper focuses on the interpretation of unfsa and the ecosystem principle for the conservation of fisheries in the high seas of the Arctic Ocean. 2.1 United Nations Fish Stocks Agreement (unfsa) As shown by the above studies, global warming has driven some Arctic-­boreal and boreal fish species northward into the Arctic Ocean and the high seas herein. As a result, these species, in terms of the los Convention, will become straddling species, to which Articles 63, 64 and 116–119 of the los Convention will apply. Although the United States has so far not acceded to the los Convention, all the Arctic Five and three other non-coastal Arctic State members of the Arctic Council have ratified the unfsa. Considering the objective and applicable principles, unfsa has laid emphasis on phrases like “long-term conservation and sustainable use”, “promoting optimum utilization”, “based on best scientific evidence available”, “the precautionary approach”, “the ecosystem approach”, and “conservation of marine biodiversity,” etc.18 Pursuant to the precautionary approach, in the case of new fisheries, ‘States shall adopt as soon as possible cautious conservation and management measures, including, inter alia, catch limits and effort limits. Such measures shall remain in force until there are sufficient data to allow assessment of the impact of the fisheries on the long-term sustainability of the stocks, whereupon conservation and management measures based on that assessment shall be implemented. The latter measures shall, if appropriate, allow for the gradual development of the fisheries.’19 On the obligation of cooperation in conservation and management of fisheries resources, the unfsa requires that relevant States shall cooperate for that purpose either directly or through appropriate subregional or regional organizations or arrangements, taking into account the specific characteristics of the subregion or region. Where there is no subregional or regional organization or 18 19

unfsa, Articles 2 and 5. unfsa, Article 6 (6).

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arrangement, relevant States shall cooperate to establish such an organization or enter into other appropriate arrangements to ensure conservation and management of such stock and shall participate in the work of the organization or arrangement.20 With regard to the elements which should be agreed on by relevant States in establishment of such an organization or arrangement, the unfsa enumerates, inter alia, as follows: the stocks to which conservation and management measures apply, the area of application, the relationship between the work of the new organization or arrangement, and the mechanisms by which the organization or arrangement will obtain scientific advice. To discharge the obligation of cooperation, the related States shall inform and invite other states having a real interest in the work of the proposed organization or arrangement to participate in the process of forming such an organization or arrangement.21 As for the functions of the organization or arrangement to be established, the unfsa stipulates that the organization or arrangement shall, inter alia, formulate and adopt conservation measures and ensure the strict compliance of these measures, make decisions about allocations of fishing opportunities, obtain and evaluate scientific advice, review the status of the stocks, agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks, as well as establish appropriate cooperative mechanisms for effective monitoring, control, surveillance and enforcement.22 It is also required that conservation and management measures adopted by the newly established organization or arrangement shall be compatible with those measures by the coastal States and/or other organizations or arrangements to ensure conservation and management of the straddling stocks in their entirety, by taking account of the biological unity and other biological characteristics of the stocks and the relationships between the distribution of the stocks.23 Bearing these considerations in mind, the Arctic Five and other relevant states shall cooperate with each other for the purpose of the conservation of fisheries resources straddling in the high seas of the Arctic Ocean. Hence, these States shall cooperate to establish such an organization or arrangement to ensure the conservation and management of fish stocks occurring or to be occurring in the high seas of the Arctic Ocean, given the existence of a loophole therein. They are also under the obligation to inform other interested states 20 21 22 23

unfsa, Article 8 (1) and (5). unfsa, Article 9. unfsa, Article 10. unfsa, Article 7.

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about the proposed organization or arrangement and facilitate their participation. Taking conservation and management measures into consideration, the precautionary approach and the ecosystem approach, together with the compatibility between conservation and management measures, should be followed to achieve the objective of long-term conservation and sustainable use. 2.2 The Ecosystem Approach The ecosystem approach has been accepted and reflected both in international and regional treaties and in United Nations resolutions. The los Convention in its preamble provides that “the problems of ocean space are closely interrelated and need to be considered as a whole”. Furthermore, in Article 194, paragraph 5 of the Convention, States are obliged to take necessary measures for “depleted, threatened or endangered species and other forms of marine life”. This paragraph, read in the context of fisheries, implies the need to protect marine ecosystems from the impacts of fishing activities, for instance the impact of bottom fishing on vulnerable marine ecosystems. In addition, the un los Convention in Article 61, paragraphs 2 and 3, requires that coastal States, in adopting conservation measures, shall take into consideration the interdependence of stocks and the effects on species associated with or dependent upon harvested species. These requirements have been overtaken by the critiques about the maximum sustainable yield (msy).24 While unfsa retains these requirements in Article 5, they, together with others, are construed as part of the ecosystem approach. At the regional level, the Convention on the Conservation of Antarctic Marine Living Resources (camlr Convention) could be considered a pioneer in this aspect. Article 2, paragraph 3, of that Convention requires that any harvesting and associated activities shall be conducted in accordance with the principles of conservation, inter alia, for “maintenance of the ecological relationships” and “prevention of changes or minimization of the risk of changes in the marine ecosystem”. Some regional fisheries conventions have been amended to adapt themselves to this modern approach. For instance, the Convention on the Future Multilateral Cooperation in North-East Atlantic Fisheries was amended at the 24th annual meeting of neafc. Before entry into force of the new Convention,25 neafc adopted the Declaration on the 24

25

Rüdiger Wolfrum and Nele Matz, ‘The Interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity’, 4 Max Planck Yearbook of United Nations Law, 2000, 454. The new Convention has been effective since 2013. However, the dispute settlement is not applicable to the Russian Federation. See, neafc, Report of Thirty-second Meeting, 2013, pp. 1–2.

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Interpretation and Implementation of the Convention on the Future Multilateral Cooperation in North-East Atlantic Fisheries (the London Declaration),26 which specifies the use of the ecosystem approach. Paragraph 2 of the London Declaration states that when making recommendations, neafc shall in particular, inter alia, “take due account of the impact of fisheries on other species and marine ecosystems, and in doing so adopt, where necessary, conservation and management measures that address the need to minimize harmful impacts on living marine resources and marine ecosystems”. The same wording has been repeated in Article iii, paragraph (d) of the Convention on Cooperation in the Northwest Atlantic Fisheries. The United Nations has several times encouraged and promoted the ecosystem approach. In 2002, the Plan of Implementation of the World Summit on Sustainable Development encouraged the application by 2010 of the ecosystem approach to achieve the sustainable development of oceans and seas.27 The “Future We Want” committed to applying effectively an ecosystem approach and the precautionary approach in management, in accordance with international law, of activities having an impact on the marine environment.28 The 2006 United Nations General Assembly Resolution on the Ocean and the Law of the Sea invited “States to consider the agreed consensual elements relating to ecosystem approaches”, noted “that ecosystem approaches to ocean management should be focused on managing human activities” and encouraged “States to cooperate and coordinate their efforts and take, individually or jointly, as appropriate, all measures, … to address impacts on marine ecosystems in areas within and beyond national jurisdiction, taking into account the integrity of the ecosystems concerned.”29 These paragraphs were replicated in the 2011 General Assembly Resolution.30 The international fisheries law, reflected in the un los Convention and the unfsa, and the modern principles of fisheries management including the ecosystem and precautionary approaches, together with the best scientific evidence available, have also been recommended by pame of the Arctic Council for the conservation of Arctic fisheries resources.31 26 See, neafc, Report of the Twenty-fourth Meeting, 2005, pp. 33–34. 27 un, Report of the World Summit on Sustainable Development (A/CONF.199/20), 2002, paragraph 30(d). 28 un, Resolution adopted by the General Assembly on the Future We Want, A/RES/66/288, 11 September 2, paragraph 158. 29 un, Resolution adopted by the General Assembly on 20 December 2006 on Oceans and the Law of the Sea, A/RES/61/222, 16 March 2007, paragraph 119. 30 un, Resolution adopted by the General Assembly on 24 December 2011 on Oceans and the Law of the Sea, A/RES/66/231, 5 April 2011, paragraph 157. 31 pame, supra note 16.

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The Arctic Five and Their Initiatives

It is submitted that the conservation of fisheries resources in the high seas of the Arctic Ocean could never work or succeed without the engagement of coastal States. The Arctic Five regard themselves as in a unique position and in a stewardship role in protecting the Arctic Ocean.32 In November 2007, the United States informed the Arctic Council of a resolution by the us Senate on Arctic fisheries conservation. It is reported that “there was strong support for building on and considering this issue within the context of existing mechanisms”.33 This has been interpreted that the Arctic Council is not the right platform for the discussion of conservation and management of fisheries.34 On 3 June 2008, the us House of Representatives approved Senate Joint Resolution 17.35 The Resolution directs the United States to “initiate international discussions and take necessary steps with other Arctic nations to negotiate an agreement or agreements for managing migratory, transboundary, and straddling fish stocks in the Arctic Ocean and establishing a new international fisheries management organization or organizations for the region”. The Arctic Five have to date held three senior official meetings in 2010, 2013 and 2014 respectively and three meetings of scientific experts in 2011, 2013 and 2015, focusing on the conservation of fisheries resources in the central Arctic Ocean. The third senior official meeting, held in Nuuk, Greenland from 24–26 February 2014, discussed scientific matters, interim measures to prevent unregulated fishing, and the way forward.36 On scientific matters, the Arctic Five agreed to “continue to promote scientific research … with the aim of improving understanding of the living marine resources of the Arctic Ocean and the ecosystems; and promote cooperation with relevant scientific bodies, including but not limited to the International Council for the Exploration of the Sea (ices) and the North Pacific Marine Science Organization (pices)”. 32 33 34 35

36

The Ilulissat Declaration, Arctic Ocean Conference, Ilulissat, Greenland, 27–29 May 2008. Arctic Council, Final Report of Meeting of Senior Arctic Officials, 28–29 November 2007, Narvik, Norway, p. 12. Erik J. Molenaar, R. Corell, Arctic Fisheries: Background Paper for the Arctic TRANSFORM project of the European Commission (Berlin: Ecologic, 9 February 2009), p. 26. Joint Resolution Directing the United States to initiate international discussions and take necessary steps with other Nations to negotiate an agreement for managing migratory and transboundary fish stocks in the Arctic Ocean, Public Law 110–243, June 3, 2008, 1569–1571. Chairman’s Statement of Meeting on Arctic Fisheries, Nuuk, Greenland, 24–26 February 2014. www.pewtrusts.org/~/media/Assets/2014/09/ArcticNationsAgreetoWorkonInternational Fisheries-Accord.pdf?la=en, accessed 15 January 2015.

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On the interim measures, the Arctic Five reaffirmed that “commercial fishing in the high seas area of the central Arctic Ocean is unlikely to occur in the near future” and agreed on “the desirability of developing appropriate interim measures to deter unregulated fishing in the future in the high seas area of the central Arctic Ocean”. The proposed interim measures will apply to the single high seas portion of the central Arctic Ocean surrounded by the Arctic Five. By virtue of the interim measures, the Arctic Five committed themselves not to authorize their vessels to conduct commercial fishing in the high seas before one or more regional or subregional organizations or arrangements are established; to establish a joint program of scientific research; to coordinate their mcs activities and encourage other states to be in line with the interim measures. On the way forward, the Arctic Five agreed to develop a Ministerial Declaration, to broaden the process by involving other interested states and to develop a binding international agreement. The third meeting of scientific experts was held in Seattle from 14–16 April 2015. This meeting was a historical one, in that other interested states, China, Japan, Korea and Iceland, were invited for the first time, together with other international organizations such as the International Arctic Science Committee (iasc), the Sustained Arctic Observing Network (saon), as well as ices, pices, and pame. The meeting was divided into three working groups: the inventory of research and monitoring, the status of Arctic research and monitoring, and the joint program of scientific research and monitoring.37 The findings from the working group of inventory of research and monitoring, inter alia, include: “there are many sources of arctic information nonetheless the information available from arctic research and monitoring is highly variable; physical disciplines (ocean and atmosphere) have more information than biological, economic and human dimensions; a timely (regularly updated) and complete inventory of arctic information is essential; it is essential for the parties concerned to develop the means of fostering international coordination and cooperation in the matter of arctic data.” The working group (wg) on the status of Arctic research and monitoring made several suggestions: it was important for research to focus on the waters beyond national jurisdiction of the cao and linkages with surrounding areas of national jurisdiction; the wg has a preference for research and monitoring that focuses on ecosystem structure and processes, although collection of data (stock structure, age/size composition, abundance, growth, diet, natural 37

Dr. Guoping Zhu, from Shanghai Ocean University, attended this meeting as a Chinese scientist. The author is grateful for his provision of some meeting materials which are on file with the author.

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mortality and reproductive potential) necessary to develop single species assessments is essential to fishery management within an ecosystem perspective; it is challenging to do comprehensive monitoring of the whole Arctic; and effective coordination among the A5 and other nations is critical. The working group of the joint program of scientific research and monitoring was to address the following questions: Are there harvestable fish resources in the Central Arctic Ocean at present? If so, can the Central Arctic Ocean fish resources be harvested sustainably with respect to both the target fish stocks and the dependent parts of the ecosystem? What are the key ecological linkages between the fish stocks of the Central Arctic Ocean and adjacent shelf ecosystems? 4

Examination of the Initiatives from the Legal Perspective

By virtue of the Chairman’s Statement of the Nuuk meeting and the report of the Seattle scientific meeting, it can be inferred that the initiatives of the Arctic Five for the conservation of fisheries resources in the high seas of the Arctic Ocean include, but are not limited to: an interim measure to prevent or deter unregulated fishing; a joint program of scientific research aimed to conserve harvestable fish resources; and the potential establishment of one or more regional or subregional organizations or arrangements. These three elements are scrutinized from the legal perspective as follows. 4.1 The Legal Implication of the Interim Measure As discussed above, the unfsa, effective for all the Arctic Five, has set out specific instructions with no regional organization in existence and the situation of new fisheries. Where there is no regional organization in place, relevant States shall cooperate to establish such an organization.38 In the case of new fisheries, states shall, through the competent regional organization, adopt as soon as possible cautious conservation and management measures, setting zero catch limits under an extreme circumstance for instance. Such conservation measures shall be interim in nature and allow for the gradual development of the fisheries.39 Therefore, theoretically speaking, an interim measure for the conservation of fisheries resources in the high seas of the Arctic Ocean shall be taken by coastal States and relevant states during a process to establish a regional organization. 38 39

unfsa, Article 8 (5). unfsa, Article 6 (6).

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The fact that there are no commercial fisheries in the high seas of the Arctic Ocean does render a “high seas fishing State” absent in the case of the Arctic Ocean. This special situation, nevertheless, does not exempt the coastal States from the obligation of informing relevant or interested states. As the Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries applies to the Atlantic portion of the Arctic Ocean, members of neafc should be deemed to be interested states as well. In addition, since the Bering Sea has been considered by the Arctic Council as a component of the Large Marine Ecosystems of the Arctic area40 and by the United States as a part of the Arctic in terms of the Arctic Research and Policy Act,41 contracting parties to the Convention on Conservation of Pollock in Central Bering Sea, other than those coastal States, should become “interested states” in light of the effect of climate change. The question whether other states, such as cooperating non-members of neafc, could be qualified as “interested states” is subject to the interpretation of the criteria.42 It will be useful here to examine the practice of other regional fishery management organizations in relation to interim measures. The Commission of the South Pacific Regional Fisheries Management Organization (sprfmo) was established by the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean for the conservation and sustainable use of fishery resources of the South Pacific Ocean and to safeguard the marine ecosystems in which the resources occur. Before the commencement of sprfmo in the early 2013, five interim management measures had been adopted either by the international consultations or by the Preparatory Conferences (emphasis added). They are the 2007 interim management measures adopted by the third consultation meeting, the 2009 interim measures for deepwater gillnets and the 2009 revised interim measures for pelagic fisheries by the eighth meeting, the 2011 interim measures for pelagic fisheries by the Preparatory Conference ii, and the 2012 interim measures for pelagic fisheries by the Preparatory Conference iii. It is very clear by the wording of these interim management measures that they are voluntary in nature. The 2007 interim management measures, for instance, explicitly state in the preamble that: “These interim measures are 40 41 42

pame, Large Marine Ecosystems (lmes) of the Arctic Area Revision of the Arctic lme Map (Second Edition), May 2013, pp. 1–4. Arctic Research and Policy Act of 1984, amended 1990, Section 112 definition. See, Erik J. Molenaar, ‘The concept of “Real Interest” and other aspect of Co-operation through regional fisheries management mechanism’, 15 International Journal of Marine and Coastal Law, 2000, 475–531.

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voluntary and are not legally binding under international law”. Thus it is up to participating states to follow these interim measures in accordance with their domestic laws and regulations, taking into account the ecosystem approach and the precautionary approach. The period of application has also been set out in the interim measures so that they are to “be effective from 30 September 2007 and, unless specified otherwise, are to apply until the entry into force of the Agreement under negotiation to establish the sprfmo and the adoption of conservation and management measures pursuant to that Agreement.”43 Among participants of the third consultation meeting were the eu, Canada, the Russian Federation, the United States, China, Japan and Korea.44 The wording about the legal effect of the interim measures was followed by others. The 2012 Interim Measures for Pelagic Fisheries pointed out that these interim measures were adopted within a framework of a provisional approach and they should in no way constitute a precedent or serve as a reference for future management decisions of the Commission.45 As the applicable rules and the practice show, the interim measures should be formulated and adopted by coastal States and relevant states during consultative meetings or the preparation conference, and are not legally binding under international laws. Some Arctic coastal States have been engaged in that process. Therefore, the Arctic Five are well aware of the nature of their interim measures to deter unregulated fishing, as could be inferred from the last sentence of the Chairman’s Statement of the Nuuk meeting, which indicates that ‘the final outcome could be a binding international agreement’. However, the process during which the interim measures could be adopted by the Arctic Five is still questionable. Moreover, the objective of the interim measures, as addressed, is ‘unregulated fishing’. In accordance with the fao International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (ipoa-iuu), two kinds of fishing activities could constitute unregulated fishing: fishing “in the area of application of a relevant regional fisheries management 43

Interim Measures Adopted by Participants in Negotiations to Establish South Pacific Regional Fisheries Management Organization, http://www.sprfmo.int/assets/Meetings/ Meetings-before-2013/International-Consultations-2006-to-2009/IntCons-3-2007-Renaca -Chile/SPRFMO-Interim-Measures-Final.pdf, accessed 3 January 2015. 44 3rd International Meeting, 30 April-4 May 2007. www.sprfmo.int/3rd-international -meeting/, accessed 3 January 2015. 45 2012 Interim Measures for Pelagic Fisheries, paragraph 5. http://www.sprfmo.int/assets/ Meetings/Meetings-before-2013/01-Preparatory-conferences/PrepConf-III-Chile-2012/ 2012-Interim-MeasuresforPelagicFisheriesFINAL-Adopted-03Feb2012.pdf, accessed 3 January 2015.

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organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization”; or fishing “in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law.” (emphasis added) Obviously, the second circumstance is relevant to the Arctic Ocean. Here two criteria must be tested before any conclusion can be reached. Firstly, there is no regional organization and no applicable conservation and management measures adopted. Meanwhile, fishing activities are conducted in a manner inconsistent with applicable obligations under international law. Since there is no regional organization in the high seas of the Arctic Ocean, except for the Atlantic portion, the critical question is how to and who will decide whether the second criteria is met or not. It can be argued that this decision should not be made only by coastal States or unilaterally. If a dispute arises, such dispute shall be subject to compulsory procedures entailing binding decisions as provided by in Section 2 of Part xv of the un los Convention. The dispute between Denmark and the eu about Atlanto-Scandian herring is the very example in this regard.46 Besides, it shall be noted that ipoa-iuu indicates that “certain unregulated fishing may take place in a manner which is not in violation of applicable international law, and may not require the application of measures envisaged under the International Plan of Action.” 4.2 The Different Kinds of Scientific Research It is submitted that marine scientific research could serve a wide variety of purposes bearing in mind that adequate and effective scientific research is a basic precondition for rational exploitation of the marine living resources.47 In the context of scientific research on living resources in the high seas of the Arctic Ocean, two kinds of freedom of high seas might be relevant. One is the freedom of high seas fishing, and the other is the freedom of high seas marine scientific research. However, the two kinds of freedom are subject to different 46

47

wto, European Union—Measures on Atlanto-Scandian Herring, WT/DS469/1 • G/L/1058, 7 November 2013; The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v. The European Union), pca Case No. 2013–30, Termination Order of 23 September 2014. Robin Churchill and A.V. Lowe, The Law of the Sea (third ed.) (Manchester, Manchester University Press, 1999), p. 400.

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limitations, which make them different. Pursuant to Articles 87, 116–119 of the un los Convention, the freedom of high seas fishing is subject to, inter alia, the obligation of conservation. unfsa further stipulates that only members of a regional organization or arrangement can have access to the fishery resources.48 This means the freedom of high seas fishing could only be exercised by a state as a member of the regional organization or through an arrangement with the mandate to conserve and manage fishery resources. When exercising the freedom of high seas fishing, the state is under the obligation to comply with conservation and management measures, including promoting and conducting scientific research of the stocks. It is argued that high seas fishing has become a conditional freedom or may not be a freedom at all, and the obligation of conservation prevails. Conducting scientific research of commercial fish stocks has been one of the concrete elements of the conservation obligation. By contrast, the freedom of high seas marine scientific research49 is subject to fewer limitations. Article 257 of the un los Convention repeats the freedom, stating that “all states … have right to conduct marine scientific research”. The possible limitations include: promotion of international cooperation, publication and dissemination of information and knowledge, and protection of the marine environment. There is no precondition that marine scientific research has to be conducted within a regional or international organization. Compared with the freedom of high seas fishing, the freedom of marine scientific research in the high seas prevails. Given the significant difference between the two kinds of scientific research, it will be essential to understand to what kind of scientific research the joint program of scientific research belongs. If the proposed joint program of scientific research is to be classified as a kind of obligation to conserve high seas marine living resources, it should be conducted within a regional organization. Article 10 of unfsa obliges States to “agree on standards for collection, reporting, verification and exchange of data on fisheries for the stocks”, and to “promote and conduct scientific assessments of the stocks and relevant research and disseminate the results thereof.” Article 14 specifies the obligation of collection and provision of information and cooperation in scientific research, in particular paragraph two of Article 14 states: “States shall cooperate to agree on the specification of data and the format, and to develop and share analytical 48 49

unfsa, Article 8 (4). To make discussion simple in the paper, the term of ‘high seas marine scientific research’ refers herein to those research activities conducted in the water column beyond national jurisdiction.

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techniques and stocks assessment methodologies to improve measures for the conservation and management of fish stocks”. The practice of ccamlr might shed light on this. Article ix, paragraph 1 (a), of the Conservation of Antarctic Marine Living Resources mandates ccamlr to “facilitate research into and comprehensive studies of Antarctic marine living resources and of the Antarctic marine ecosystem”. To discharge this function, ccamlr in 1992 adopted for the first time Conservation Measure 47/xi ‘Scientific Research Exemption Provisions’, which has been revised a dozen times and now is Conservation Measure 24–01 (2013): “Application of measures to research”. Conservation Measure 24-01(2013) does not define the term of “scientific research”, but distinguishes scientific research activities from fishing activities and others by the amounts of catch. For instance, if the estimated catch of the proposed activity is more than five tons, then Conservation Measure 24–01 (2013) will apply. If the estimated catch is less than one ton, the Conservation Measure will not apply and the proposed activity will not be notified to ccamlr.50 The latter instance might imply that the proposed activity with less than one catch is not a kind of scientific research for fisheries purpose, and is governed by the freedom of high seas marine scientific research. If the proposed joint program of scientific research is to be classified as a kind of general marine scientific research, other than for fisheries purpose, the freedom could be exercised by all states and international cooperation as a general principle rather than as a concrete and substantive obligation. As a matter of fact, the unfsa is aware of the importance of this general scientific research to understand fish species and the marine ecosystem where these species occur. Article 14, paragraph 3, of the unfsa states that “consistent with Part xiii of the [los] Convention, shall cooperate, either directly or through competent international (not “regional”, the author added) organization, to strengthen scientific research capacity in the field of fisheries and promote scientific research related to the conservation and management of straddling fish stocks and highly migratory fish stocks for the benefit of all. To this end, “a state or the competent international organization conducting such research beyond areas under national jurisdiction shall actively promote the publication and dissemination to any interested states of the results of that research and information relating to its objectives and methods and, to the extent practicable, shall facilitate the participation of scientists from those states in such research.” The research activities by the Standing Committee on Antarctic Research (scar) on marine ecosystem and biology are of this kind. 50

ccamlr Conservation Measure 24–01 (2013), The application of conservation measures to scientific research, paragraph 2.

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In 1976, scar, together with other scientific organizations, set up an international cooperative research program of Biological Investigations of Marine Antarctic Systems and Stocks (biomass), with the principal objective “to gain a deeper understanding of the structure and dynamic functioning of the Antarctic marine ecosystem as a basis for the future management of potential living resources”. Two major data gathering experiments have been conducted: the First International biomass Experiment (fibex) and the Second International biomass Experiment (sibex). It was noted that the biomass program is the first international cooperative research program on marine living resources. The difference and the relationship between biomass and ccamlr have been precisely identified by one of the commentators: “biomass is directed towards the basic scientific research of the Antarctic marine ecosystem more than ccamlr”; “ccamlr is directed towards the management purpose more than biomass”; and “the role of biomass was seen to be to assist and cooperate with ccamlr whenever possible”.51 As mentioned above, the proposed joint program of scientific research is to address some questions relating to the potential sustainable use of harvestable fish stocks, which means it is a research activity of direct significance for the exploration and exploitation of the fish stocks in the high seas of the Arctic Ocean. In this case, it can be argued that the proposed scientific research should be a part of the functions of a regional organization or arrangement as provided for by the unfsa, and all related states are under an obligation to cooperate to develop the specific research and monitoring plan, making the organization or arrangement functional. 4.3 The Approaches to Conservation As provided for by the un los Convention and the unfsa, there are two approaches to conserve and manage straddling fish stocks, “either directly or through appropriate subregional or regional fisheries management organizations or arrangements”.52 A commentator identified the two approaches as bilateralist regimes and regionalist regimes. The criterion to distinguish the two approaches lies in the decision-making process.53 51

52 53

Takesi Nagata, ‘The Implementation of the Convention on the Conservation of Antarctic Marine Living Resources: Needs and Problems’, in Francisco Orrego Vicuña (ed.), Antarctic Resources Policy: Scientific, Legal and Politics Issue (Cambridge: Cambridge University Press, 1983), pp. 119–137. un los Convention, Article 63 (2); unfsa, Article 8 (1). Olav S. Stokke, Conclusions, in Olav S. Stokke (ed.), Governing High Seas Fisheries: The Interplay of Global and Regional Regimes (Oxford/New York, Oxford University Press, 2001),

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The arrangements for cod in the Barents Sea Loophole54 and Pollock in the Sea of Okhotsk Peanut Hole55 are examples of bilateralist regimes, in which overall conservation and management measures are taken by the coastal States. neafc is a typical regionalist regime in the adjacent Arctic seas. Bearing this in mind, it is interesting to note that both the us Senate Joint Resolution 17 and Chairman’s Statement of the Nuuk meeting have indicated that one or more regional or subregional fisheries management organizations or arrangements are or may be established for conservation of fisheries resources in the high seas of the Arctic Ocean. The uncertainty over the number of regional organizations or the arrangement for the high seas of the Arctic Ocean gives rise to the question as to which approach the Arctic Five will take to conserve the fishery in the Arctic Ocean. The fact that 40% of the open water of the high seas is mostly in the Pacific portion seems to suggest that a subregional organization or arrangement for the Pacific portion would be the practice for the short term and more subregional ones could be established with the retreating of sea ice. The existence of many mutual fisheries relationships between the Arctic Five56 and the practices in the Barents Sea, Norwegian Sea and the Sea of Okhotsk might imply that the Arctic Five are more in favor of bilateralist regimes than regionalist regimes. The debate during the deliberations over the United Nations General Assembly Resolution on Sustainable Fisheries in 2009 could also support this inference.57 However, the 24th meeting of the us-Russia Inter-governmental Consultative Committee (icc) in 2013 discussed the negotiation of “a central

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pp. 330–331; See also, Olav Schram Stokke, ‘Managing straddling stocks: the interplay of global and regional regimes’, 43 Ocean & Coastal Management, No. 2–3, 2000, 205–234. Robin R Churchill, ‘The Barents Sea Loophole Agreement: A “Coastal State” Solution to a Straddling Stock Problem’, 14 International Journal of Marine and Coastal Law, No. 4, 1999, 471–472. Alex G. Oude Elferink, ‘Fisheries in the Sea of Okhotsk High Seas Enclave – The Russian Federation’s Attempts at Coastal State Control’, 10 International Journal of Marine and Coastal Law, No. 1, 1995, 14. For instance, Agreement between Greenland/Denmark and Norway concerning Mutual Fishery Relations of 9 June 1992, Agreement between the Government of the Kingdom of Denmark and the Local Government of Greenland, on the one hand, and the Government of the Russian Federation, on the other hand, concerning Mutual Fishery Relations between Greenland and the Russian Federation of 7 March 1992, and Agreement between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations of 31 May 1988. Erik J. Molenaar, ‘Arctic Fisheries Management’, in Erik J. Molenaar, Alex G. Oude Elferink and Donald Rothwell (eds.), Law of the Sea and the Polar Regions: interactions between global and regional regimes (Leiden, Martinus Nijhoff Publishers, 2013), pp. 246–248.

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Arctic Ocean high seas fisheries agreement” and agreed that in the future both States would cooperate in research and data exchange relating to fisheries, habitat, and ecosystem processes in the Chukchi Sea.58 In light of the second revised report of Large Marine Ecosystems (lme) of the Arctic Area by peme of the Arctic Council, the central Arctic Ocean, covering 3.3 million km2, constitutes a large marine ecosystem.59 Whereas the central lme does not coincide with the high seas of the Arctic Ocean in geographical scope, it should by no means allow for the establishment of several subregional fisheries organizations or arrangements therein. In this regard, special reference should be made to the geographical scope of application of ccamlr,60 in which the principle of “marine ecosystem” prevails. Should a regional organization covering all the high seas of the Arctic Ocean be established, it would inevitably overlap with neafc in the Atlantic portion. Then some coordination mechanism would be necessary. The cooperation between the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (wcpfc) and the Inter-American Tropical Tuna Commission (iattc) is the relevant precedent. Both wcpfc and iattc have jurisdiction over an area between 4–60 south latitude and 130–150 west longitude. To avoid the duplication of measures, Article  22, paragraph 3, of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean empowers wcpfc to cooperate with concerned regional fisheries management organizations. A Memorandum of Understanding has been signed between the two tuna regional organizations to fulfill the obligation of cooperation, by means of reciprocal participation in relevant meetings, information sharing about stocks and species of mutual interest, development of processes to promote harmonization and compatibility of conservation and management measures and regular exchange of meeting reports. 5 Conclusions Climate change has not only opened a great portion of the high seas of the Arctic Ocean, but also driven some fish species to move northward. Under this circumstance marine fisheries are expected to expand to the Arctic Ocean 58 The u.s.-Russia Intergovernmental Consultative Committee, www.nmfs.noaa.gov/ia/ agreements/bilateral_arrangements/russia/russiabilat.pdf, accessed 30 December 2014. 59 pame, supra note 40. 60 The Convention on the Conservation of Antarctic Marine Living Resources, Article 1.

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where conservation of fisheries resources ought to be in place before commercial fishing actually takes place. In the meantime, the general rules of international fisheries law, reflected in the unfsa, and the modern management principles, such as the precautionary approach and the ecosystem approach, should be applied. Great attention should also be given to the biological linkage of fish species in the Arctic Ocean with those in the Arctic adjacent seas in formulating such a conservation regime. The Arctic Five have taken initiatives to address the legal vacuum in the Arctic Ocean as a result of global warming. They have adopted an interim measure to deter “unregulated fishing” in the high seas of the Arctic Ocean, to promote a joint program of scientific research, and to call for the establishment of one or more subregional or regional organizations or arrangements. From the perspectives of both applicable rules and related practice, an interim measure of this kind should be taken by coastal States and others during the consultative meetings or the preparation conference. Given the voluntary nature of the interim measure, it is up to these participating states to take steps in accordance with domestic laws and regulations to make sure that the agreed interim measure is complied with. As for the term of “unregulated fishing”, it will be problematic to decide which kind of fishing activities should be qualified as such in absence of a regional fisheries agreement. Considering the great legal difference between two kinds of scientific research, it is essential for the Arctic Five to clarify the nature of the proposed scientific research program. The practice in the Antarctic Ocean showed that both kinds of scientific research could co-exist to contribute to the conservation of marine living resources. They are, however, undertaken within different legal and institutional regimes. Whereas establishing several subregional or regional organizations or arrangements in the Arctic Ocean could also be an option, one regional organization or arrangement is argued as desirable and feasible in light of the ecosystem approach, the delineation of the Arctic lmes and the practice of ccamlr. While it is agreed that regional fisheries agreement(s) should be free standing from other Arctic regimes, it should not be easy to curtail the general applicable international rules and principles for specific circumstances like the Arctic Ocean. With more engagement of other states, the initiatives of the Arctic Five will undergo severe tests. Hopefully, the Arctic Five and other relevant states, like China, Japan, Korea, Iceland and the eu, could cooperate with each other to find a well-balanced solution in this regard.

part 3 Deep Sea-Bed Regime

⸪

chapter 9

The Forthcoming Breakthrough: China’s Legislation on Activities in the Deep Seabed Area1 Jiancai JIN and Guobin ZHANG2 Abstract As a State Party to the 1982 United Nations Convention on the Law of the Sea, China adheres to the principle of the common heritage of mankind and supports the International Seabed Authority functioning to organize and control activities in the Area. According to international law, domestic legislation on the Area is a substantial requirement for obligations/responsibilities and exemption from liability of a sponsoring State. China has a sound legal base for legislation on the Area’s activities and is accelerating the process of legislation on this field in recent years. This paper will introduce the background and process of the nation’s legislation and examine the framework of the law on activities in the Area. Specific issues under the law pertain to relevant considerations, structure, objectives, principles and key elements. The followup efforts of China’s legislation on activities in the Area are also briefly mentioned.

Keywords Deep seabed area – People’s Republic of China legislation – Law of the Sea Convention 1 The deep seabed area in this paper refers to the seabed, ocean floor and its subsoil beyond the national jurisdiction of the People’s Republic of China and any other state. Under the 1982 United Nations Convention on the Law of the Sea (hereinafter “los Convention”), this international seabed area is called “the Area”. The Area and its resources are the common heritage of mankind. No state shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof. See los Convention Arts. 136, 137. 2 Jiancai Jin is a Researcher at the Center for Polar and Deep Ocean Development (padod Center), Shanghai Jiao Tong University (sjtu), 1954 Huashan Road, Shanghai, China. Email:jin@ comra.org. He is former secretary-general of China Ocean Mineral Resource Research and Development Association (comra). Dr. Guobin Zhang is a Post-doctoral Researcher at the Center for Polar and Deep Ocean Development (padod Center), Shanghai Jiao Tong University (sjtu), 1954 Huashan Road, Shanghai, China. Email:[email protected]. The views expressed here are not necessarily those of comra or others. © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_010

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Background of National Legislation on Activities in the Area

1.1 The Uniqueness of the Area Activities The uniqueness of the Area activities can be characterized in three aspects. The first is internationalism. The Area occupies the great part of the ocean floor beyond the limits of national jurisdiction and shall be open to use exclusively for peaceful purposes by all states. Accordingly, the activities in the Area shall be carried out in compliance with international law based on the principle of the common heritage of mankind and be organized and controlled by the International Seabed Authority (isa)3 which was established in 1994. The second aspect is comprehensive. Prospecting and exploration for and exploitation of the mineral resources in the Area are carried out step by step. These activities involve marine scientific research, environmental protection, technological and equipment development. Moreover, these activities in the Area deal with the rights and obligations of different groups, the accommodation of the regulations developed, international cooperation, rights and legitimate interests of other states and so on. The last but not least one is forward-looking. Current development of deep seabed regulation is important to the international community, not only for exploring new sources of mineral resources for economical sustainable development, but also increasing the knowledge of the deep seabed and the capability of assessment of the deep sea environment. It is obvious that we are increasingly aware of our dependence on the use of the Area, the formation and development of strategic emerging industry and the significant influence on the ocean order in the future. Besides, being an important issue for the isa and State Parties, the attitudes and efforts to protect the marine environment will exercise a great influence on a new international marine order. With these characteristics in mind, the future law will play an important role in regulating and safeguarding the conduct of Chinese entities for their activities within the international seabed Area in compliance with international codes. The systematization of activities in the Area means that relevant 3 The isa has its headquarters in Kingston, Jamaica, functioning as a representative of mankind as a whole for the management of deep seabed mining. The isa is an autonomous international organization under the los Convention, and the 1994 Agreement relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea of 10th December 1982 [hereinafter “1994 Agreement”]. The 1994 Agreement is available at: http:// www.un.org/Depts/los/convention_agreements/texts/unclos/closindxAgree.htm (accessed 29 Mar. 2016), also reproduced in The Law of the Sea: Compendium of Basic Documents, International Seabed Authority/The Caribbean Law Publishing Company, 2001, p. 206.

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policies, rules, measures and standards will be needed to guide the activities in different stages or phases and related fields based on the law. The last characteristic implies that at this stage the law itself may establish a framework which needs to be perfected by relevant regulations and administrative measures as knowledge increases and the international regime is further developed. 1.2 China’s Position and Practice Concerning the Area The People’s Republic of China ratified the 1982 United Nations Convention on the Law of the Sea (los Convention)4 in 1996. As a State party to the los Convention, China adheres to the principle of the common heritage of mankind and supports isa functioning to organize and control activities in the Area, particularly administering the mineral resources and sustainable development of the Area concerning both the utilization of the resources and the protection of the environment. China’s practice in the Area is in compliance with international law. China began its investigation of seabed mineral resources as early as the later 1970s. During the 1980s, research and development of mineral resources in the Area were carried out by several institutes under different departments in China. Two scientific vessels, namely the No. 16 Xiang-yang-hong from the State Oceanic Administration (soa) and No. 4 Hai-yang from the Ministry of Geology and Mineral Resources, carried out comprehensive surveys relating to the marine scientific research and investigation of mineral resources in the Central, North and Northwest Pacific.5 Meanwhile, research on technology for processing and mining were carried out in the laboratories by institutes under the Ministry of Metallurgical Industry and other departments in China. In 1990, the China Ocean Mineral Resources Research and Development Association (comra) was established as the management organization, affiliated with soa to organize and coordinate relevant institutes, universities and entities to carry out activities in the deep seabed area. Adhering to the acknowledged international regime for the deep seabed as well as related rules of China, since its establishment, comra has strictly managed those activities in the Area with respect to cruise design, activities programs, survey equipment, collection and use of samples through stipulating and implementing relevant regulations and rules, with a view to ensuring these activities conducted in the Area are in compliance with the los Convention and other relevant legal 4 United Nations Convention on the Law of the Sea, concluded on 10 Dec. 1982 at Montego Bay, registered ex officio and entered into force on 16 Nov. 1994, 1833 unts 397. 5 See State Commission of Science and Technology, Marine Technology Policy, Beijing: Ocean Press, 1993, p. 211. (in Chinese).

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instruments. The results of this work in the Area has been mainly reflected in the success for application of exploring mineral resources in the Area and undertaking exploration activities in the Area for more than ten years.6 1.3 The Necessity of National Legislation on Activities in the Area The los Convention prescribes that States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with the Convention.7 A State Party shall not be liable for damage caused by any failure to comply with Part XI by a person or entity whom it has sponsored if the State Party has taken all necessary and appropriate measures to secure effective compliance.8 A State Party shall have “taken all necessary and appropriate measures” to secure effective compliance, which, pursuant to Article 4(4) of Annex iii to the los Convention, includes adopting laws and regulations and taking administrative measures within its legal framework, reasonably appropriate for securing compliance under its jurisdiction.9 Therefore, legislation on the Area is a substantial requirement for obligations/responsibilities and exemption from liability of a sponsoring State. The past decade has seen new developments on the activities in the Area. The number of new applicants for exploration in the Area is increasing. Activities in the Area are entering a critical period, with the focus shifting from exploration to exploitation. isa is eager to enact regulations on exploitation of resources in the Area. More states have promulgated deep seabed legislation in their domestic law systems. This international circumstance has drawn national attention to the urgency for legislation on the Area. On the other hand, although China has plenty of practice in the Area, it is undeniable that China’s capacity to monitor and supervise activities by its persons and entities in the Area is still less than developed States. China Minmetals Corporation (cmc), a  newcomer to the Area that submitted an application to isa for exclusive 6 See isa, Deep Seabed Minerals Contractors, available at: https://www.isa.org.jm/Deep Seabed-­minerals-contractors (accessed 27 Jan. 2016). 7 See los Convention Art. 139(1). 8 See los Convention Art. 139(2). 9 As provided in a 2011 advisory opinion of the Seabed Dispute Chamber, the sponsoring State’s obligation “to ensure” is an obligation of “due diligence”. See International Tribunal for the Law of the Sea, 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), List of cases No. 17, Advisory Opinion of 1 Feb. 2011, Reports of Judgments, para. 110.

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rights of exploration for polymetallic nodules, can be seen as an example for the necessity of national legislation, both for the code of conduct for the different players and for promotion of capacities in the activities in the Area so as to effectively monitor and protect the marine environment once mining the deep seabed occurs. 2

Process of Legislation on Activities in the Area

2.1 Legal Bases for Legislation on the Area’s Activities China has sound legal bases for legislation concerning the Area’s activities. Chinese laws, rules and regulations on activities within marine areas under its national jurisdiction lay scattered on basic legal systems. These legal systems include the system for a processing mechanism to apply for exploration of oceanic mineral resources, the system for evaluation of environmental impact and the system for compensation and penalty for pollution and damage. A wealth of experience was accumulated through the legislative process of those laws and regulations in terms of regulating exploration and development of marine mineral resources and marine environmental protection. Those legal instruments play an important role in safeguarding the conduct of Chinese persons and entities in compliance with the international codes for their activities in the international seabed Area. When it comes to the legal aspects of deep seabed mining, it is also necessary to briefly look into China’s existing mining legislations, some of which formed the legislative foundation for the deep seabed law. The 1996 Mineral Resource Law10 enacted by the Standing Committee of the National People’s Congress (npc)11 is one of the most important of the legislation pertaining to the aforementioned laws and regulations. This law provides a general legal framework specifically for mining activities within China, regulating registration of mineral exploration and exploitation, mining activities by enterprises and individuals, and liability issues. The 2001 Law on the Administration of the

10

Mineral Resource Law of the People’s Republic of China, first promulgated 19 Mar. 1986, entered into force 10 Oct. 1986, adopted at the 15th Session of the Standing Committee of the 6th npc of China, Order No. 36 of the President of prc, revised 29 Aug. 1996. 11 The npc is responsible for legislating and amending of constitution law, civil law, criminal law, national institutional law and other basic laws, while the npc’s Standing Committee is responsible for legislating and amending all the other national laws. See Legislation Law Art. 7.

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Use of Sea Areas12 is another important example of legislation. This law, which stipulates marine functional areas, rights and charges for sea area utilization, involves legal provisions on the procedure of deep seabed activities. Other legislation includes the 1985 Regulations on Control over Dumping of Wastes at Sea, the 1990 Regulations Concerning Prevention of Pollution Damage to the Marine Environment by Coastal Construction Projects, the 1994 Rules for Implementation of the Mineral Resources Law, and the 2006 Regulations Concerning Prevention of Pollution Damage to the Marine Environment by Marine Construction Projects, etc. China’s Attention to the Importance of Legislation on the Area’s Activities comra initiated the research program on legislation concerning the international seabed areas as early as 1991. Relevant proposals for legislation on the deep sea activities were discussed by the National People’s Congress during the 1990s and the 2000s. In the late 2000s, comra restarted the research program for legislation on activities in the Area and in the early 2010s, the Legal office of State Council put the administrative regulation on the Area’s activities in the legislation/regulation plan. As the activities in the Area increase, China invests more expertise and resources into the process of legislation on the Area’s activities. The State’s current five-year plan for the Area’s activities issued jointly by six ministries in 2011 called for accelerating the process of legislation on activities in the Area, and for shifting comra’s function from program management to administering the Area’s affairs. In 2012, comra was also named as the Authority of the Area’s affairs, initiating a research program for the system of administering the activities in the Area. During the first session of the 12th National People’s Congress held in March 2013, more than 30 delegates proposed a motion on the legislation of resources exploration and exploitation in the deep sea. Late in 2013, the Standing Committee of the 12th National People’s Congress decided to initiate the legislation on activities in the deep sea, issuing a plan for legislative work within its current term. 2.2

China is Accelerating the Process of Legislation on the Area’s Activities There are several reasons for China to accelerate the process of its legislation on activities in the Area since the International Tribunal for the Law of the Sea (itlos) issued its advisory opinion on the responsibilities and obligations of 2.3

12

Law on the Administration of the Use of Sea of the People’s Republic of China, promulgated 27 Oct. 2001, entered into force 1 Jan. 2002, adopted at the 24th Session of the Standing Committee of the 9th npc of China, Order No. 61 of the President of the prc.

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states sponsoring persons and entities with respect to activities in the Area. comra has signed three contracts with isa for exploration of the three different types of mineral resources in the Area. China recognizes that the activities in the Area are now entering into a critical time as reflected in these matters emanating from the 20th session of the isa. The year 2014 witnessed busy preparatory work for deep seabed legislation. For one thing, China studies relevant countries’ legislation and requirements from the los Convention. For another, extensive survey/discussions with stakeholders, such as universities, institutes, enterprises, relevant authorities, itlos, and the isa are still going on. It is optimistic to expect that new law will be promulgated and enter into force during the current term of the 12th National People’s Congress as scheduled. 3

Framework of the Law on Activities in the Area

3.1 Relevant Considerations Drafting the law shall require important considerations, for the legislation on activities in the Area will be a significant step forward at both the domestic and international level. The first consideration is the scope and extent of the law. For one thing, as an inseparable part of China’s legislation, the scope and extent of the law shall depend on China’s legal system and be uniform with existing legal instruments. For another, part of the content of the law will be rooted in international law. The second important consideration is the objectives of this legislation. By means of enacting the law on activities in the Area, China fulfills international obligations under the los Convention. The legislation on the activities in the Area shall be in compliance with the los Convention and Regulations of isa, as well as with the standards and relevant rules settled in international law. On the other hand, the legislation should play an important role in promoting marine scientific and technological development, encouraging international cooperation, building a sharing and collaborative mechanism for activities in the Area and relevant fields. These measures will certainly increase our knowledge of the deep seabed, while enhancing the capabilities to control and monitor the exploration and exploitation for the purposes of effective utilization of the resources and protection of the marine environment. Other considerations include the legal hierarchy of the law. According to the los Convention, the State Parties may adopt laws, regulations, and administrative measures within its legal framework to secure contractors’ effective compliance.13 13

See Los Convention Art. 139(2) and Annex iii Art. 4(4).

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There are laws of the territorial sea and contiguous zone and laws of the Exclusive Economic Zone and continental shelf under the current legal system of China. Since the Area is adjacent to the marine area beyond the limits of national jurisdiction and other related factors, it is reasonably appropriate to enact an independent law for this matter that would achieve more effective and stabilized results. It is expected that regulations and administrative measures related to activities in the Area will be designed and developed based on this law as needed from the progress of activities both in domestic and international aspects. 3.2 Structure The current draft of the law on activities in the deep seabed covers several parts with the first one providing general rules for the whole law, including the legislative objective, principles, personal jurisdiction, applicable activities and administrative authorities, while the last part prescribes supplementary general provisions including definitions of some terms. The parts following the general provision shall regulate the main activities in the Area, namely marine scientific research and resource investigation, both exploration and exploitation, and marine environmental protection. The next part should clarify the supervision and inspection rules, which include supervision authority, contents and materials for supervision and inspection, contractors’ obligations for periodic reporting and assistance and cooperation in the supervision. The sixth part should provide liability and penalty rules, which include rules of license revocation, compensation, fines, confiscation of illegal gains, and criminal responsibility. 3.3 Objectives and Principles Objectives of the law shall cover four aspects: to regulate exploration for and exploitation of mineral resources in the deep seabed in compliance with the los Convention and Regulations of the isa and relevant international instruments; to protect the marine environment; to promote the development of deep sea science and technology; and to promote the sustainable utilization of resources in the Area. The activities of resource exploration and exploitation in the deep seabed area shall follow the principles of sustainable development, protection of the marine environment, sound and scientific bases, collaboration and sharing. Though these reflect the spirit of the principle of the common heritage of mankind that governs the activities in the Area, further discussion may be necessary to emphasize this principle itself in the draft.

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3.4 Systems and Key Elements The main systems established in law and some key elements therein shall be reflected in the relevant aspects of the enforcement mechanism, environmental protection, development of science and technology, safety and liability. 3.4.1 Enforcement Mechanism The los Convention requires the sponsoring State to adopt laws and regulations and to take administrative measures that have two distinct functions, namely, to ensure compliance by the contractor with its obligations and to exempt the sponsoring State from liability. Such laws and regulations and administrative measures may include the establishment of enforcement mechanisms for active supervision of the activities of the sponsored contractor and for coordination between the activities of the sponsoring State and those of the Authority.14 In other words, ensuring that the responsibilities and obligations of a contractor are made enforceable is a precondition for the sponsoring State to be exempt from liability. Laws and regulations and administrative measures therefore should be at all times in force, from the beginning of qualifying an applicant to the completion of a contract. The elements of the enforcement mechanism in the law shall include the conditions for persons and entities to enter in the Area, procedure of application, permission for issuing the State sponsorship, supervision and inspection of the activities of the contractors in the Area, legal liabilities and penalties, etc. Before filing an application with isa for conducting the activities of resource exploration or exploitation in the Area, the persons and entities of China shall apply for permission to the department in charge of ocean affairs under the State Council and submit information. This department shall review the information submitted by the applicant, and shall grant permission and issue relevant documents if the application meets the requirements for, inter alia, financial, technical and equipment capacity. The department shall supervise and inspect the contractor’s activities of resource exploration and exploitation

14

See Advisory opinion of the Seabed Disputes Chamber on the responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area--Report of the Secretary-General, ISBA/17/C/6–ISBA/17/LTC/5, Seventeenth session Kingston, Jamaica 11–22 July 2011. Advisory opinion of the Seabed Disputes Chamber on the responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area–Report of the Secretary-General.

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in the deep seabed area and if necessary, may inspect the contractor’s vessels, facilities, equipment used for the activities of exploration and exploitation, as well as the navigation logs, records, data, etc. If anyone commits acts in violation of the law, penalties and other punishments shall be inflicted. For example, anyone who causes pollution and damage to the marine environment or damage to historical relics and laid objects in the operation area, shall be ordered by the department to cease the violation and have a fine imposed on him. 3.4.2 Environmental Protection One of the most important purposes of the law shall be the protection and preservation of the marine environment and biodiversity in the deep sea. As regards the protection of the marine environment, the laws and the follow-up regulations and administrative measures of the State shall not be less stringent than those adopted by isa, or less effective than international rules, regulations and procedures. For this purpose, the law shall demand the contractor, in compliance with the provisions and requirements in the Regulations of both the isa and China, take the necessary measures to prevent, reduce and control pollution and other hazards to the marine environment arising from the activities in the Area. The contractor shall, to a reasonable and practical extent, use the best available technologies to investigate and research the marine status of the exploration or exploitation area, establish environmental baselines, and assess the possible impacts of the exploration and exploitation activities on the marine environment. The contractor shall also be required to formulate and enforce environmental monitoring programs, monitor the impacts of the exploration and exploitation activities on the marine environment thereof, and ensure the proper operation of the monitoring equipment as well as maintaining the original monitoring records. 3.4.3 Promoting the Development of Deep Sea Science and Technology The law shall encourage research on deep sea science and technology and the training of relevant professionals in this field. Considering the lack of knowledge of the deep sea environment and the high cost and uncertainty of activities in this field, the law shall encourage cooperative research programs, support the establishment and operation of common platforms, and build a sharing and collaborative mechanism for the common platforms to bring together the expertise, research facilities and materials, logistic capacity and common interests of contractors, related companies, cooperative institutes and universities. Popularization of the knowledge of deep sea science is another issue that the law shall encourage through various means, including opening

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to the general public scientific research vessels, laboratories, exhibition rooms and other sites and facilities, as well as providing lectures and consultancies. 4

Follow-up Works

The law of activities in the Area will be the first legislation in China on the international deep seabed area activities which will help fill the gaps in the Chinese marine legal system. Without a doubt, significant development of China’s deep seabed legislation will pave the way for China’s future exploration and exploitation of the deep seabed mineral resources in the Area allocated to China’s entities. However, the course of Chinese deep seabed legislation is not finished; a variety of follow-up works should proceed. The roadmap for improving China’s deep seabed legislation encompasses two aspects. The first aspect is the literature explanation of the law and the second is to enact regulations and administrative measures based on this law. Compared with other legislation in China, the law of activities in the Area is unique, in that it is applicable to the seabed and ocean floor and subsoil thereof, beyond the limits of jurisdiction of China and other countries. For its citizens, legal practitioners and other organizations in China that are engaged in the activities of resource exploration and exploitation in the deep seabed area, the most important thing is to understand the law well. Although most of the provisions in the law are well-elaborated, some provisions are not described in sufficient detail, which may cause difficulties for understanding and implementation. In order to satisfy the practice needs and to iron out the existing flaws, the law may be supplemented with detailed implementing regulations. For example, specific incentive measures may be taken for developing environmentally friendly technology and equipment. Another example is the establishment and operation of a common platform to bring different interest groups together to work in a more effective and efficient manner. These measures have already been frequently used for such things as cleaner energy production, energy savings, and renewable energy sources, etc. Regulations supporting the law may also involve submitting copies of related information and samples or sample lists, technical standards about deep seabed resource exploration and exploitation, handbooks of deep seabed resource surveys, and related matters.

chapter 10

The Due Diligence Obligation of a Sponsoring State: A Framework for Implementation Elana Geddis1 Abstract The 1982 United Nations Convention on the Law of the Sea, together with the 1994 Part xi Implementation Agreement, created a new and novel regime for the management of the mineral resources of the deep seabed Area. Central to that regime is the requirement that the exploration and exploitation of minerals in the Area may only be conducted under a contract concluded with the International Seabed Authority and in accordance with any regulations adopted by it. A private commercial entity seeking to carry out such activities must first obtain the sponsorship of a State that is party to the Convention. A State that chooses to sponsor a private entity to carry out mineral activities in the Area incurs significant legal responsibilities. The sponsoring State’s primary obligation is to ensure compliance by its sponsored contractor with the terms of its contract with the Authority, the obligations of the Convention, and the provisions of any regulations adopted by the Authority. That imposes a “due diligence” obligation on the sponsoring State, requiring it to exercise effective legal and administrative control over its sponsored contractor. The effective implementation of the sponsoring State’s due diligence obligation requires a range of measures: regulatory, administrative, institutional and financial. This paper seeks to provide a framework to assist States in exercising due diligence over activities in the Area by addressing the individual elements of the sponsorship relationship and the implementation measures that each requires.

1 Elana Geddis (llb (Hons), llm (Harvard)) is a New Zealand barrister practising in public international law, with a specialisation in the law of the sea. She has appeared as counsel before the International Court of Justice, the International Tribunal for the Law of the Sea and an unclos Annex vii Tribunal. Prior to becoming a barrister in 2011 she was the Deputy Director of the Legal Division of the New Zealand Ministry of Foreign Affairs and Trade. The author’s conference PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghaigeddis.pdf.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_011

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Introduction The 1982 United Nations Convention on the Law of the Sea (“the Convention”),2 together with the 1994 Part xi Implementation Agreement,3 created a new and novel regime for the management of the mineral resources of the deep seabed.4 Article 136 of the Convention declares that the deep seabed beyond the edge of the continental shelf (“the Area”) is the “common heritage of mankind”. All rights to the mineral resources of the Area are vested in mankind as a whole.5 All mineral activities in the Area are organised, carried out and controlled by the International Seabed Authority,6 which is responsible for providing for the equitable sharing of the financial and economic benefits derived from such activities.7 Prospecting, exploration and extraction activities may only be conducted under a contract concluded with the Authority and in accordance with any regulations adopted by it.8 The Authority has adopted a comprehensive set of rules, regulations and procedures to regulate these activities, which are collectively referred to as the Mining Code.9 A private or commercial entity wishing to carry out mineral activities in the Area must first obtain the sponsorship of a State that is party to the Convention.10 The act of sponsorship is a “key element” in the system for the exploration and exploitation of the mineral resources of the Area.11 It enables States 2 3

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United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 unts 397 (entered into force 16 November 1994) (“Convention”). Agreement Relating to the Implementation of Part xi of the United Nations Convention on the Law of the Sea, opened for signature 28 July 1994, 1836 unts 42 (entered into force 28 July 1996) (“Part xi Implementing Agreement”). For commentary on the development of the deep seabed mining regime see Nordquist, M.H., Nandan, S.H., eds., United Nations Convention on the Law of the Sea 1982: A Commentary, Volume vi (Boston, Brill, 2002). Art. 137(1) of the Convention. Art. 153(1) of the Convention. Art. 140(2) of the Convention. Art. 153(3) of the Convention. To date the Authority has issued the: Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (adopted 13 July 2000) which was later updated and adopted 25 July 2013 (“Nodules Regulations”); Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (adopted 7 May 2010) (“Sulphides Regulations”); and the Regulations on Prospecting and Exploration for Cobalt-Rich Crusts (adopted 27 July 2012) (“Crusts Regulations”). These are available at: . Art. 153(2)(b) of the Convention. Responsibilities and Obligations of States with respect to Activities in the Area, Advisory Opinion, 1 February 2011, itlos Reports 2011, p. 10 (“Area Advisory Opinion”), para. 74.

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that would not themselves be in a position to engage in these activities to partner with qualified private or commercial enterprises.12 At the same time, it ensures that private entities operate under the same legal rules as States.13 In many ways, the relationship between a sponsoring State and its sponsored contractors is similar to the relationship between a flag State and vessels flying its flag.14 In both cases obligations assumed by States at international law are translated to private actors through “a specific act emanating from the will of the State”.15

The “Due Diligence” Obligation of the Sponsoring State

A State that chooses to sponsor a private entity to carry out activities in the Area incurs significant legal responsibilities. A sponsoring State is required to submit a certificate of sponsorship to the Authority, in which it declares that it “assumes responsibility in accordance with article 139, article 153, paragraph 4, and Annex iii, article 4, paragraph 4 of the Convention”.16 Those provisions require that a sponsoring State: • “shall have the responsibility to ensure” that the activities of its sponsored contractor “shall be carried out in conformity” with the provisions of Part xi of the Convention (Article 139(1) of the Convention);17 • “shall assist the Authority by taking all measures necessary” to ensure that its sponsored contractor complies with measures adopted by the Authority to control activities in the Area (Article 153(4) of the Convention);18 and 12

13 14 15 16 17

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D. French “From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean Floor – the Seabed Disputes Chamber’s 2011 Advisory Opinion” 26 International Journal of Marine and Coastal Law, 2011, 525, p. 529. Area Advisory Opinion, para. 75. Request for an Advisory Opinion submitted by the Sub-Regional Fisheries Commission (srfc), Advisory Opinion, 2 April 2015 (“srfc Advisory Opinion”), para. 125. Area Advisory Opinion, para. 78. Reg. 11(3)(f) of the Nodules Regulations, and of the Sulphides Regulations, and of the Crusts Regulations. The full text of the provision reads: “States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part. The same responsibility applies to international organizations for activities in the Area carried out by such organizations.” The full text of the provision reads: “The Authority shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance with the relevant provisions of this Part and the Annexes relating thereto, and the rules, regulations and

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• “shall…ensure” within its legal system that its sponsored contractor “shall carry out activities in the Area in conformity with the terms of its contract and its obligations under [the] Convention” (Article 4(4) of Annex iii of the Convention).19 Those responsibilities were specifically addressed in 2011 by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea in its ground breaking advisory opinion Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area.20 That opinion made clear that the primary obligation of a sponsoring State is “[t]he obligation to ensure compliance by sponsored contractors with the terms of the contract and the obligations set out in the Convention and related instruments”.21 A failure to comply with this obligation incurs state responsibility and potentially exposes the sponsoring State to liability for any resulting damage caused.22

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procedures of the Authority, and the plans of work approved in accordance with paragraph 3. States Parties shall assist the Authority by taking all measures necessary to ensure such compliance in accordance with article 139.” The full text of the provision reads: “The sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction.” Area Advisory Opinion supra n. 11. For further commentary on the approach taken by the Seabed Disputes Chamber see: D. French supra n. 12; H. Zhang “The Sponsoring State’s ‘Obligation to Ensure’ in the Development of the International Seabed Area” 28 International Journal of Marine and Coastal Law, 2013, 681; D. Freestone “Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area” 105 American Journal of International Law, 2011, 755; D. Anton, R. Makgill and C. Payne “Seabed Mining—Advisory Opinion on Responsibilities and Liability” 41 Environmental Law and Policy, 2011, 60; T. Poisel “Deep Seabed Mining: Implications of Seabed Disputes Chamber’s Advisory Opinion” 19 Australian International Law Journal, 2012, 214. Area Advisory Opinion, para. 242(3A). The Seabed Disputes Chamber noted that this obligation arose from the specific obligations contained in Arts. 139(1) and 153(4) of the Convention and Art. 4(4) of Annex iii of the Convention. See the discussion of the sponsoring State’s liability in the Area Advisory Opinion, paras. 164–211 and 242(4). Note in particular the Seabed Disputes Chamber’s view at paras. 181–184 that in order for the sponsoring State’s liability to arise there must be a causal link between the failure of that State and the damage caused by the sponsored contractor.

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In some circumstances such liability could extend to the payment of financial compensation for environmental damage.23 The sponsoring State’s obligation “to ensure” compliance by its sponsored contractor is an obligation of “conduct” not of “result”; it requires a sponsoring State to exercise “due diligence” over the activities of its sponsored contractor:24 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 the aforementioned obligations. Rather, it is an o­ bligation to deploy adequate means, to exercise best possible efforts, to do the ­utmost, to obtain this result. To utilise the terminology current in international law, this obligation may be characterised as an obligation “of conduct” and not “of result”, and as an obligation of “due diligence”. The concept of “due diligence” is firmly established in Anglo-American legal systems. It is generally taken to require:25 such a measure of prudence, activity or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent [person] under the particular circumstances; not measures by any absolute standards, but depending on the particular facts of the special case. Much of this meaning is reflected in the concept as it has developed in international environmental law.26 In particular, the concept incorporates the requirement of careful and persistent oversight which is inherent in the meaning of “diligence”. Due diligence also encompasses the requirement that efforts must be reasonable and appropriate to the circumstances, including the degree of risk and the knowledge available.27 23

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Art. 22 of Annex iii of the Convention provides that “[l]iability in every case shall be for the actual amount of damage”. See also the discussion in the Area Advisory Opinion, paras. 193–198. Area Advisory Opinion, para. 110. Black’s Law Dictionary (2nd ed., free online edition) . See, for example, the discussion of the development of the concept of “due diligence” in the context of the principle of prevention in: P. Birnie, A. Boyle and C. Redgewell International Law and the Environment (3rd ed., Oxford, Oxford University Press, 2008), pp. 147–150; and P. Sands and J. Peel Principles of International Environmental Law (3rd ed., Cambridge, Cambridge University Press, 2012), pp. 200–201. See, for example, International Law Commission Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries contained in Yearbook of

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These elements were expressly affirmed by the Seabed Disputes Chamber in its advisory opinion. They were further highlighted by the full Tribunal in its recent advisory opinion in relation to the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (srfc).28 Both advisory opinions emphasised the following elements when describing a State’s due diligence obligation to ensure compliance by private entities operating under its control: • First, the obligation requires a high degree of effort on the part of the sponsoring State. The sponsoring State must “deploy adequate means, […] exercise best possible efforts, […] do the utmost” to ensure compliance.29 “All necessary measures” must be taken.30 • Second, such efforts must be pro-active and ongoing. It is not enough for a sponsoring State simply to adopt regulatory or administrative measures. Due diligence requires also that the sponsoring State exercises “a certain level of vigilance” in the enforcement of those measures, including the monitoring of activities undertaken by its sponsored contractor.31 • Third, the measures that may be required to discharge the due diligence obligation may vary depending on the circumstances and change over time.32 “[M]easures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge.”33 The standard of due diligence will also vary with risk—the greater the risk, the greater the level of diligence required.34 Critically, however, the standard applies equally to all sponsoring States, whether developed or developing.35

28 29 30 31 32 33 34 35

the International Law Commission, 2001 (Vol ii, Part 2), 148–170 (“Draft Articles on Prevention”), p. 154, para. 11. srfc Advisory Opinion supra n.14. Area Advisory Opinion, para. 110; reaffirmed in srfc Advisory Opinion, paras. 128–129. srfc Advisory Opinion, para. 129. Pulp Mills on the River Uruguay (Argentina v Uruguay) Judgment, I.C.J. Reports 2010, p. 14, para. 197, cited in Area Advisory Opinion, para. 111, and in srfc Advisory Opinion, para. 131. Area Advisory Opinion, para. 117; reaffirmed in srfc Advisory Opinion, para. 132. Id. Id. Area Advisory Opinion, para. 158. Note that earlier commentary on the general due diligence obligation under international environmental law had often proposed to differentiate between the conduct required of developed and developing States. For example, the International Law Commission expressed the view in the commentary to its Draft Articles on Prevention that “the economic level of States is one of the factors to be taken into account in determining whether a State has complied with its obligation of due ­diligence”

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The obligation on the sponsoring State to exercise due diligence can be viewed in two ways. First, the exercise of “due diligence” represents a positive contribution by the sponsoring State to the effective functioning of the deep seabed regime. As stated by the Seabed Disputes Chamber “[t]he role of the sponsoring State is to contribute to the common interest of all States in the proper implementation of the principle of the common heritage of mankind”.36 The exercise of due diligence is thus consistent with the sponsoring State’s own interests in seeing that activities in the Area are conducted in a responsible and regulated fashion in the interests of mankind as a whole. Second, fulfilment of the due diligence obligation also serves to limit the liability of the sponsoring State, and therefore to manage the legal risk arising from the activities of its sponsored contractor. In this way the due diligence obligation can be viewed through a defensive, even self-interested, lens. It represents all the steps that a sponsoring State must take in order to protect itself from legal risk. Whichever perspective the obligation is viewed from, however, the standard to be met is high. The high standard of due diligence imposed on a sponsoring State is appropriate when consideration is given to where the risks and benefits of activities in the Area fall.37 Although the financial and economic benefits of activities in the Area are shared with developing States, a significant portion of any revenues is retained by the contractor to the potential benefit of the sponsoring State. The risk of damage to the environment of the Area, however, is carried by mankind as a whole. It is reasonable in such circumstances

36 37

(supra n. 27, p. 154, para. 13). The Seabed Disputes Chamber, however, based its conclusion on two considerations specific to the context of State sponsored activities in the Area. First, it noted at para. 158 that none of the provisions of the Convention concerning the responsibilities of the sponsoring State specifically provided for preferential treatment to be accorded to developing States. Second, it expressed a concern at para. 159 that differentiated responsibilities would lead to the spread of sponsoring States “of convenience”, ­undermining the protection of the marine environment and the common heritage of mankind. It is interesting, however, that the Tribunal did not expressly reaffirm the principle of equality when addressing the due diligence standard in the srfc Advisory Opinion, despite the very real problem of “flags of convenience” in relation to illegal, unreported and unregulated fishing. Area Advisory Opinion, para. 226. See, for example: Written Statement of the Federal Republic of Germany to the Seabed Disputes Chamber, paras. 20–21, available at: ; Poisel, supra n. 20, p. 214.

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to require a sponsoring State “to do the utmost” to reduce such risk by ensuring that its sponsored contractor complies with all relevant regulations and the terms of access under which its activities have been approved.

Specific Elements of Due Diligence

Further guidance on the specific elements required by the obligation of due diligence is contained in the “direct obligations” incurred by the sponsoring State under the Convention and the Authority’s Mining Code. These were identified by the Seabed Disputes Chamber to include obligations to:38 • Apply a precautionary approach, as reflected in Principle 15 of the Rio Declaration, to ensure effective protection of the environment from harmful effects; • Apply “best environmental practices”; • Require a sponsored contractor to provide guarantees of its technical and financial capability to comply with any emergency order adopted by the Authority for the protection of the marine environment; • Adopt laws and regulations to ensure that recourse is available under its legal system for prompt and adequate compensation in respect of damage to the marine environment; and • Ensure compliance by the sponsored contractor with its duty to conduct an environmental impact assessment of its proposed activities. Compliance with these direct obligations will be a relevant factor in determining whether a sponsoring State has discharged its due diligence obligation.39 These obligations can therefore be viewed as a minimum checklist to be fulfilled by the sponsoring State. As such they provide the starting point for implementation. However, the Seabed Disputes Chamber was at pains “to stress that these obligations are mentioned only as examples”.40 Adopting them pro forma without accompanying administrative measures and control will not be sufficient to discharge the obligation of due diligence.

38 39 40

Area Advisory Opinion, para. 242(3B). Area Advisory Opinion, para. 123. Ibid., para. 236.

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“Necessary and Appropriate Measures”

The mechanism by which a sponsoring State is to fulfil its due diligence obligation is through the adoption of “necessary and appropriate measures” to ensure compliance by its sponsored contractor.41 The adoption of such measures also serves to exempt the sponsoring State from any liability for any damage caused by its sponsored contractor’s activities.42 The Convention does not elaborate on what was meant by “necessary and appropriate measures”, but clarification was provided by the Seabed Disputes Chamber in its advisory opinion. Such measures require the adoption of laws and regulations and the taking of appropriate administrative measures.43 They must be enforceable.44 It is not enough for a sponsoring State simply to record the obligations of its sponsored contractors by contract or administrative agreement.45 Although the adoption of such laws, regulations and administrative measures is not a pre-requisite to a decision to sponsor a contractor, they must be in force at all times that the contractor’s contract with the Authority is in force.46 They must also be kept under regular review to ensure that they remain in-step with legal and technological developments.47 The scope of such laws, regulations and administrative measures depends on the legal system of the sponsoring State.48 However, they must be reasonable, taking into account the various options available, and adopted in good faith to the benefit of mankind as a whole.49 As a minimum they cannot be less stringent than the rules adopted by the Authority, but may impose more stringent requirements if the sponsoring State considers this appropriate.50 They can be expected to address matters such as the financial viability and technical capacity of sponsored contractors, conditions for issuing a certificate of sponsorship, and penalties for non-compliance.51

41 42 43 44 45 46 47 48 49 50 51

Ibid., para. 217. Id. See also Art. 139(2) of the Convention and Art. 4(4) of Annex iii of the Convention. Area Advisory Opinion, paras. 218 and 242(5). Ibid., para. 239. Ibid., paras. 223–226. Ibid., para. 219. Ibid., para. 222. Ibid., para. 229 and 242(5). Ibid., para. 230. Ibid., para. 232. Ibid., paras. 234 and 242(5).

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The importance of adopting measures to address non-compliance was reemphasised by the full Tribunal in its advisory opinion on the srfc request. The Tribunal made clear that:52 While the nature of laws, regulations and measures that are to be adopted by the flag State is left to be determined by each flag State in accordance with its legal system, the flag State nevertheless has the obligation to include in them enforcement mechanisms to monitor and secure compliance with these laws and regulations. Sanctions […] must be sufficient to deter violations and to deprive offenders of the benefits accruing from [their non-compliant activities]. Although stated in the specific context of the obligations of a flag State to ensure that its vessels do not engage in illegal, unregulated and unreported fishing, the Tribunal’s comments flow from its general observations on the content of the obligation “to ensure” compliance. As such, a prudent sponsoring State would be wise to treat them as guidance also regarding its due diligence obligation in relation to the sponsorship of activities in the Area.

A Framework for Implementation53

Although the Seabed Disputes Chamber’s advisory opinion has provided valuable guidance to sponsoring States, it remains challenging to distil that guidance into an integrated regulatory regime that the sponsoring State can be confident will be sufficient to discharge its due diligence obligation. As one commentator has noted, “[a]s a question of fact, whether the level of ­regulatory 52 53

srfc Advisory Opinion, para. 138. This aspect of the paper has benefitted considerably from the work of the spc-eu Deep Sea Mining Project, in particular the Pacific-ACP States Regional Legislative and ­Regulatory Framework for Deep Sea Minerals Exploration and Exploitation, July 2012, (“Pacific Regional Legislative and Regulatory Framework”), available at: . Reference has also been made to the implementing legislation of several states as ­examples of current state practice, in particular: the Deep Seabed Mining Act 2015 of the Republic of Singapore, (“Singapore Deep Seabed Mining Act”) available at: ; Seabed Mining Act of 6 June 1995 of the Republic of Germany (as amended) (“German Seabed Mining Act”), available at: ; the International Seabed Mineral Management Decree 2013 of the Republic of Fiji (“Fiji Seabed Mineral Management Decree”), available at: .

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behaviour undertaken by any sponsoring State meets the due diligence obligation is inherently difficult to assess and prone to subjective interpretation.”54 Effective implementation requires the sponsoring State to adopt a number of measures: regulatory, administrative and institutional. For “most States it will be necessary to introduce new laws to provide the required rules, regulations and procedures” constituting due diligence.55 However:56 [t]he creation of adequate legislation and regulatory frameworks […] is not sufficient in itself to meet international obligations. […] Implementation and enforcement of the regimes created are also crucial. Strong institutions are particularly important to the oversight of [deep seabed mining] activities and legal, fiscal and environmental matters will all require dedicated public administrative capacity. States contemplating sponsoring a contractor to conduct activities in the Area therefore need to have in place a comprehensive governing law supported by the necessary institutional capacity and administrative measures to give effect to its requirements.57 The precise implementing measures required become clearer when the constituent elements of the relationship of sponsorship are broken down and considered individually. The relationship of sponsorship can be considered to consist of the following: • The decision to sponsor; • The legal conditions on which sponsorship is conferred and under which the contractor must carry out its activities; • The “ongoing” relationship, including monitoring and reporting, to verify the activities of the contractor; and • The capacity to take enforcement measures in the event of non-compliance. 54 French supra n. 12, p. 541. See also similar comments by Poisel supra n. 20, p. 223. 55 Anton et al., supra n. 20, p. 65. 56 Pacific Regional Legislative and Regulatory Framework supra n. 53, para. 12.1. 57 Note that the structure of the governing law will depend on the legal system of the sponsoring State. Options include: a comprehensive statute (see, for example, Fiji International Seabed Mineral Management Decree supra n.53); or a framework statute supplemented by detailed regulations or other executive decrees (see, for example, Singapore Deep Seabed Mining Act or German Seabed Mining Act supra n.53). The latter approach provides greater flexibility to amend the law to keep abreast of developments and is therefore likely to be preferable in most cases.

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Assessing each of these elements helps to provide a framework to determine: what needs to be provided for in the sponsoring State’s governing law; how the legal rules will be implemented and administered; and who will be responsible for doing so. Decision to Sponsor The first decision for a sponsoring State will be whether or not to sponsor a particular contractor. Given the responsibilities that flow from sponsorship, this is not a decision to be taken lightly. It should be remembered that the decision to sponsor is only the first link in the chain. The sponsored contractor may not actually conduct any mineral activities until it has sought the approval of, and concluded a contract with, the Authority. That process will require a substantive analysis of the sponsored contractor’s proposed activities by both the Legal and Technical Commission and the Council of the Authority. It is not necessary for the sponsoring State to duplicate all aspects of that analysis when determining whether or not to grant sponsorship. At the same time, however, entering into a sponsorship relationship with an unreliable or otherwise unqualified commercial entity risks exposing the sponsoring State to significant reputational risk and, potentially, legal liability. Demonstrating that sponsorship is conferred prudently and with due consideration is therefore an important first step in fulfilling the sponsoring State’s due diligence obligation.58 This contains a number of considerations. A first question will be: who will be responsible for the decision to sponsor? This decision could be taken by a range of actors, depending on the legal and constitutional framework of the sponsoring State, such as: a Government Minister, likely acting on official or expert advice;59 the head of the responsible administrative agency;60 or a specially constituted decision-making body.61 Consideration will need to be given as to whether the decision should be mandatory or discretionary. The decision maker may be required to confer sponsorship if certain specified grounds are met.62 Alternatively, the decision maker may be free to confer or decline sponsorship at his or her discretion on the basis of specified considerations.63 58 See Pacific Regulation Legislative and Regulatory Framework supra n. 53, para. 14.19. 59 See, for example, ss. 6–8 of the Singapore Deep Seabed Mining Act supra n. 53. 60 See, for example, s. 4 of the German Seabed Mining Act supra n. 53. 61 See, for example, ss. 27–28 of the Fiji International Seabed Mineral Management Decree supra n. 53. 62 See, for example, s. 4(6) of the German Seabed Mining Act supra n. 53. 63 See, for example, ss. 6–7 of the Singapore Deep Seabed Mining Act supra n. 53.

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A second key element of the discharge of due diligence will be the information and decision-making principles on which the decision to sponsor is based. These should be clearly set out in the sponsoring State’s governing law so that they are transparent and are applied consistently to all applications. The Convention is clear that the threshold requirement for sponsorship is that the entity possesses the nationality of the sponsoring State or is “effectively controlled by” nationals of that state.64 Evidence of such a link of nationality will therefore be a pre-requisite for sponsorship. In most cases it can be expected that the activities will be undertaken by a company or other legal entity rather than an individual. A basic requirement will therefore be that such a company be incorporated under the law of the sponsoring State.65 However, additional difficult issues arise where the applicant company is the wholly-owned subsidiary of a parent company registered in another state.66 In such a case the sponsoring State may wish to impose additional requirements in order to satisfy itself that the objective of “effective control” has been met. Once the threshold of nationality has been satisfied the merits of the application will need to be assessed. Considerable guidance on the additional factors that should be applied can be found in the information that will be required by the Authority when determining whether or not to approve the sponsored contractor’s application.67 A prudent implementation of the due diligence obligation would require the sponsoring State to assess at least the following information before making a decision to sponsor: • The financial resources, technical expertise and environmental record of the applicant; • The proposed plan of work; and • An environmental impact assessment.68 64 65 66

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Art. 153(2) of the Convention. See, for example, ss.2 and 7 of the Singapore Deep Seabed Mining Act supra n. 53. For a discussion of some of the issues relating to the requirements of nationality and effective control see the following notes prepared by the International Seabed Authority Secretariat for the Legal and Technical Commission: Issues related to the Sponsorship by States of Contracts for Exploration in the Area and Related Matters (ISBA/21/LTC/12, 9 June 2015); and Analysis of Regulation 11.2 of the Regulations on Prospecting and Exploration for Polymetallic Nodules and Polymetallic Sulphides in the Area (ISBA/20/LTC/10, 5 June 2014). See Regs. 13, 20 and 21 of the Sulphides Regulations and of the Crusts Regulations and Regs.12, 18 and 21 of the Nodules Regulations. See also Pacific Regional Legislative and Regulatory Framework supra n.53, paras. 14.24–14.29. Guidance on the format and content of an environmental impact assessment is contained in: International Seabed Authority Technical Study No 10 Environmental ­Management

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Key principles that will be relevant to the decision include: • The “reliability” of the applicant (including its financial situation, its technical capacity and experience, and its past performance); • The commercial viability of the proposed activities; • The environmental impacts of the proposed plan of work, including the application of the precautionary approach; • Compliance with environmental standards and best environmental practices; and • Any benefits to the sponsoring State. The decision-making process will also need to be supported by clear and effective decision-making procedures. The format for applications, timeframes for their consideration, application fees and other associated procedural ­issues will need to be considered and developed. Although such issues may seem unduly administrative, good processes are an important element of good ­decision-making. Depending on the requirements of the sponsoring State’s legal system it may be necessary also to ensure that natural justice principles, such as the applicant’s right to be heard, are provided for. Rights of appeal to an oversight or judicial body may also be appropriate.69 The decision to grant sponsorship will need to be confirmed by an appropriate administrative act. This will usually by achieved by issuing a licence, a certificate of sponsorship, or other formal document of approval.70 In order to maintain effective administrative control sponsorship should not be transferable without the express approval of the sponsoring State.71

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Needs for Exploration and Exploitation of Deep Sea Minerals (2012), available at: ; International Seabed Authority Legal and Technical Commission Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area (ISBA/19/LTC/8, 1 March 2013); and International Seabed Authority Legal and Technical Commission Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for polymetallic nodules in the area (ISBA/16/LTC/7, 2 November 2010). See, for example, Pacific Regional Legislative and Regulatory Framework supra n.53, paras. 17.1–17.5. See, for example: ss.6 and 8 of the Singapore Deep Seabed Mining Act supra n. 53; s. 4(1) of the German Seabed Mining Act supra n.53; s. 28 of the Fiji International Seabed Mineral Management Decree supra n. 53. See, for example: s.12 Singapore Deep Seabed Mining Act supra n. 53. Alternatively, the sponsoring State may wish to make its approval entirely non-transferable: see, for example, s. 4(11) of the German Seabed Mining Act supra n. 53.

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Conditions of Sponsorship It flows clearly from the due diligence obligation that a sponsoring State must make its sponsorship subject to certain conditions. The Seabed Disputes Chamber’s advisory opinion is clear that these conditions cannot simply be recorded by a contract or administrative agreement but must be prescribed by laws and regulations of the sponsoring State. A central part of the sponsoring State’s governing law must therefore be to stipulate the conditions of sponsorship in a manner that is binding and legally enforceable. The form in which these conditions are stipulated will depend on the legal framework of the sponsoring State. Conditions may be: set out in detail in statute;72 defined in general terms in statute and supplemented by binding administrative conditions;73 or specified in the terms of the licence issued to the sponsored contractor.74 In all cases, however, the conditions must have the force of law. The terms under which the sponsored contractor will conduct its activities in the Area will be defined by the contract with the Authority. Compliance with those terms will therefore be the central condition of sponsorship. It will generally be most efficient to incorporate the terms of the contract with the Authority into the sponsoring State’s governing law by reference. A simple approach is to create an obligation requiring the sponsored contractor to comply at all times with the terms of its contract with the Authority and the associated provisions of the Convention and the Mining Code.75 It will also be necessary for the sponsoring State to provide for the direct obligations recognised by the Seabed Disputes Chamber. This will require the sponsoring State to do two things. First, it must require the sponsored contractor to provide guarantees of its financial and technical capability to comply with any emergency order issued by the Authority for the protection of the marine environment.76 Second, it must make recourse available for prompt and adequate compensation in respect of any environmental damage caused by the activities of the sponsored contractor.77 This will require the sponsoring State to provide an appropriate avenue under its legal system for such claims to 72 73 74 75

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See, for example, s. 32 of the Fiji International Seabed Mineral Management Decree supra n. 53. See, for example, ss. 4 and 5 of the German Seabed Mining Act supra n. 53. See, for example, ss. 10 and 11 of the Singapore Deep Seabed Mining Act supra n. 53. See, for example: s. 1(1)(3) of the German Seabed Mining Act supra n. 53; s.10(2) of the Singapore Deep Seabed Mining Act supra n. 53; and s. 32(a) of the Fiji International Seabed Mineral Management Decree supra n. 53. Reg. 32(7) of the Nodules Regulations and Reg. 35(8) of the Sulphides Regulations. See also Area Advisory Opinion, para. 138. Art. 235(2) of the Convention. See also Area Advisory Opinion, paras. 139–140.

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be made and assessed.78 But it will also be important to restrict the sponsored contractor’s ability to render itself “judgment proof” against any such claims for compensation. Consideration should, for example, be given to requiring the sponsored contractor to maintain appropriate insurance as a condition of sponsorship so as to ensure that it will be in position to meet any legitimate compensation claims.79 Similarly, since the sponsoring State is also potentially subject to liability for damage arising from the sponsored contractor’s activities, it may wish to protect its own interests by imposing a requirement for the contractor to execute an indemnity in its favour.80 The sponsoring State remains free to impose additional conditions of sponsorship as it considers appropriate. The sponsoring State may choose, for example, to impose more stringent conditions regarding environmental protection. It may also wish to require the sponsored contractor to pay a royalty from any revenues from its mineral activities as a quid pro quo for its decision to confer sponsorship.81 The sponsoring State may also oblige the sponsored contractor to engage in complementary activities, such as training or capacitybuilding, in the sponsoring State in order to maximise the benefits accruing from the sponsorship relationship.82 Sponsorship is, of course, a two-way relationship. It will be necessary for the sponsoring State also to provide the sponsored contractor with legal certainty as to the tenure of sponsorship and the grounds on which sponsorship may be suspended or revoked.83 Given the significant financial consequences that would follow from the revocation of sponsorship it is important that the sponsoring State protects itself by clearly specifying the legal grounds and process for revocation in its governing law. Monitoring and Reporting The obligation of due diligence is active and ongoing. It is not discharged by the adoption of laws and regulations alone, but also requires “active supervision of 78 79 80 81 82 83

See, for example, s. 17 of the Singapore Deep Seabed Mining Act supra n. 53. See, for example, s. 27(1)(g) of the Fiji International Seabed Mineral Management Decree supra n. 53. See, for example: s. 10(2)(f) of the Singapore Deep Seabed Mining Act supra n. 53; s.33(2) of the Fiji International Seabed Mineral Management Decree supra n. 53. See, for example, s. 45(5)–(6) of the Fiji International Seabed Mineral Management Decree supra n. 53. Ibid., s. 27(1)(f). See also the discussion in Pacific Regional Legislative and Regulatory Framework supra n. 53, paras. 23.4–23.8. Ibid., ss. 38 to 44.

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the activities of the sponsored contractor”.84 Central to this is ongoing monitoring of the sponsored contractor’s activities.85 Careful consideration will need to be given to how to fully discharge this duty.86 At a minimum, the governing law should require the sponsored contractor to implement an environmental monitoring programme and provide regular reporting on its activities. Such reporting should address: environmental monitoring; work conducted; and expenditure and financial reports. In the interests of efficiency, it may be appropriate to align these reporting obligations with those imposed under the sponsored contractor’s contract with the Authority in order to eliminate avoidable duplication of work.87 A simple way of achieving this would be to require the sponsored contractor to submit an annual return to the sponsoring State certifying that all reporting obligations have been complied with and providing a copy of the reports provided to the Authority. However, the reporting obligations contained in the contract with the Authority should be considered to be the minimum required. It remains open to a sponsoring State to impose additional or more frequent reporting requirements. This may be appropriate where the activity in question carries a heightened degree of risk—for example, where it uses relatively untested technology, or is being conducted in particularly challenging conditions—or where previous reports have indicated an issue of concern. Reporting should be seen as a means to an end rather than an end in itself. Reporting is of little value unless the sponsoring State considers and acts on the information the reports contain. A sponsoring State that simply receives reports, but does not take steps to analyse and act upon them, is unlikely to be considered to have discharged its due diligence obligation. It will be important therefore that reports are considered by an agency with sufficient expertise and resources to interpret the information they provide. Reports should be reviewed and analysed against clearly identified milestones and assessment criteria.88 It will be important that the sponsoring State takes prompt steps to respond to any information in a report indicating that the sponsored contractor is failing to fulfil its obligations. The sponsoring State 84 Area Advisory Opinion, para. 218. 85 Pulp Mills, para. 197. 86 See Pacific Regional Legislative and Regulatory Framework supra n. 53, paras. 14.40–14.45. 87 Area Advisory Opinion, para. 218. The contract with the Authority requires sponsored contractors to implement an environmental monitoring programme and provide annual reports to the Authority on the implementation and results of that programme, together with work conducted and expenditure incurred (see s.10 of the Standard Clauses for an Exploration Contract, Annex 4 of the Sulphides Regulations). 88 See Pacific Regional Legislative and Regulatory Framework supra n. 53, para. 14.44.

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should therefore make provision in its governing law for the ability to require further information where it considers this necessary.89 It would also be prudent to provide for site inspections, either with or without notice, in order to verify the information provided in the reports.90 The inspection powers contained in the contract with the Authority provide a useful reference in this regard.91 Enforcement “Due diligence” requires a “certain level of vigilance in […] enforcement”.92 Indeed, “[t]he success of a regulatory regime lies in its ability to induce compliance.”93 The sponsoring State must therefore make provision in its governing law for appropriate steps to be taken against the sponsored contractor in the event of non-compliance. As with the other elements of the relationship, these legal measures must be supported by the necessary institutional capacity and expertise to enable the sponsoring State to take prompt and appropriate enforcement action as required. As a first step, the sponsoring State will need to identify an appropriate body to be responsible for enforcement and ensure that it has the necessary enforcement powers. These will include powers to enter premises, require information, obtain samples, and seize documents and materials.94 The conditions in and purposes for which such powers may be exercised should be clearly prescribed in the sponsoring State’s governing law. Depending on the constitutional system of the sponsoring State it is advisable for this enforcement responsibility to be conducted independently of political decision-makers so as to enable it to be executed impartially and without any appearance of undue influence. There are a range of enforcement tools available to regulate compliance, ranging from administrative warnings, to formal enforcement notices, through to the creation of offences and, ultimately, the revocation of sponsorship. The appropriate combination of tools will depend to some extent on the legal system of the sponsoring State, but helpful guidance can be drawn from existing 89 90 91 92 93 94

See, for example, s.35 of the Fiji International Seabed Mineral Management Decree supra n. 53. Id. See also Pacific Regional Legislative and Regulatory Framework supra n. 53, paras. 14.42–14.45. See, for example, s. 14 of the Standard Clauses for an Exploration Contact, Annex 4 of the Sulphides Regulations. Pulp Mills, para.197. Pacific Regional Legislative and Regulatory Framework supra n. 53, para. 14.46. See, for example: s. 8 of the German Seabed Mining Act supra n. 53; s.35 of the Fiji International Seabed Mineral Management Decree supra n. 53.

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seabed mining regulatory regimes. A staggered approach is likely to be most effective, with a hierarchy of tools available to the enforcement agency depending on the gravity of the conduct in question and its consequences.95 A central element of enforcement is the imposition of sanctions. These must be sufficient to deter non-compliance and to deprive the sponsored contractor of the benefits of any wrongdoing.96 Considering that the sponsored contractor will, most likely, be a company or other juridical entity, financial penalties by way of fines and/or forfeiture are likely to provide the primary sanction. To be an effective deterrent, such financial penalties will need to be set at a level that cannot simply be “dismissed as a business cost”.97 Penalties against individuals (such as directors or officers of the company) may also be appropriate for the gravest offences.98 The ultimate sanction for material non-compliance will be the suspension or revocation of the sponsorship relationship. The grounds and process for such a decision should be spelled out clearly in the sponsoring State’s governing law. The International Seabed Mineral Management Decree 2013 of Fiji, for example, provides for the government to revoke a Sponsorship Certificate on six months’ notice where the sponsored contractor has “acted in a manner which constitutes a material breach of the isa Rules or this Decree”.99 Singapore similarly allows for sponsorship to be suspended or revoked where the sponsored contractor has contravened the provisions of the relevant Singapore law or the conditions of its licence.100 Notably, in both cases, the decision to suspend or revoke is not automatic and the sponsored contractor must be

95

See, for example: s.11 of the German Seabed Mining Act supra n. 53; s. 36 of the Fiji International Seabed Mineral Management Decree supra n.53. See also the discussion in Pacific Regional Legislative and Regulatory Framework supra n. 53, paras. 14.46–14.48. 96 srfc Advisory Opinion, para. 138. 97 Pacific Regional Legislative and Regulatory Framework supra n. 53, para. 14.46. It is questionable whether the financial penalties provided for under existing national regulatory regimes are sufficient in this regard. The maximum financial penalty for breach of licence in Singapore, for example, is S$40,000, while German law provides for a maximum fine of €50,000. 98 See, for example: s.12 of the German Seabed Mining Act supra n. 53; and s.36 of the Fiji International Seabed Mineral Management Decree supra n. 53; s.21 of the Singapore Deep Seabed Mining Act supra n. 53. 99 ss. 36(2), 41 and 42 of the Fiji International Seabed Mineral Management Decree supra n. 53. 100 s. 14 of the Singapore Deep Seabed Mining Act supra n. 53.

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provided with advance notice and an opportunity to make submissions in its favour.101 Capacity and Resources As will be clear from the preceding discussion due diligence is not simply a matter of passing legislation and placing the statute book back on the shelf. In order to be effective such legislation must be supported by institutional capacity. The sponsoring State will need to ensure that it has the capacity to exercise regulatory oversight on an ongoing long-term basis.102 That requires appropriate resources, both financial and technical, and consideration will need to be given to securing both funding and appropriately qualified personnel. At every stage of the sponsorship relationship it will be important for the sponsoring State to consider: what needs to be done? who will be responsible? how will they carry out their duties? and how will it be funded? This in turn raises real issues for small and developing States, which may have limited budgets and little technical expertise in the regulation of deep seabed mining:103 The clear intention of the [Seabed Disputes Chamber] was to…implement the highest standard of protection for the marine environment equally among States Parties. The question that follows is whether developing States have the capacity to implement measures to ensure the highest standards of due diligence. This has led some commentators to suggest that developing States should e­ xplore creative avenues to develop the capacity needed to fulfil their due diligence responsibilities. For example, the high standard of due diligence incumbent on the sponsoring State:104 may mean that developing States will look to sponsored entities to finance the implementation and administration of domestic legislation governing mining activities in the Area. In these circumstances it is likely that measures will focus on environmental management of activity-specific 101 See: s. 42 of the Fiji International Seabed Mineral Management Decree supra n. 53; s.15 of the Singapore Deep Seabed Mining Act supra n. 53. 102 See the discussion of administrative arrangements in Pacific Regional Legislative and Regulatory Framework supra n. 53, paras.14.1–14.18. 103 Poisel supra n. 20, p. 224. 104 Anton et al., supra n. 20, pp. 64–65.

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proposals in defined locations rather than comprehensive governance of seabed mining in the Area. Equally, it may prompt sponsorship partnerships with developed States with well-developed legal, monitoring, and enforcement capabilities. Collaborative exercises such as the joint Deep Sea Minerals project by the eu and the South Pacific Community similarly provide a practical way of building in-state capacity for the governance and management of deep seabed mining activities.105 However, it is important to remember that effective regulation requires an ongoing active commitment on the part of the sponsoring State, so that any collaborative arrangements must be similarly be structured on a long-term continuing basis.

Oversight of Due Diligence

The capacity issues discussed above raise legitimate questions about the effective operation of the sponsorship regime. Their is a risk that, despite their best intentions, sponsoring States (particularly small developing States) may struggle to fulfil properly their due diligence obligation. This leaves the regime open to the perception that the activities of sponsored contractors pose a greater environmental risk than those of States Parties or their state enterprises. One source of this concern may be the lack of any oversight mechanism within the Authority to review the regulatory arrangements adopted by sponsoring States. The Seabed Disputes Chamber was clear that a failure by a sponsoring State to discharge its due diligence obligation incurs state responsibility and may give rise to liability for damage caused.106 It is questionable, however, whether that provides the most effective framework to ensure that a sponsoring State discharges its due diligence obligation effectively. The rules of liability have two significant shortcomings in this regard. First, they operate only once a breach has occurred and damage has been caused. They are not designed to monitor a state’s performance in order to avoid a breach and prevent such damage from occurring—which must surely be the desired outcome. Second, they rely on another state or international entity to invoke liability by making a claim for compensation. That raises particular difficulties in the context of activities in the Area. The Seabed Disputes Chamber has suggested that both 105 Details of this project are available at: . 106 Area Advisory Opinion, paras. 165–184 and 242(4).

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the Authority and individual States Parties to the Convention may be legally entitled to make such a claim.107 The practical question is, of course, whether either would be willing to do so. International environmental law provides several examples of reporting and oversight regimes adopted for the purposes of ensuring compliance with states’ international legal obligations.108 Looking ahead, there may be value in considering whether some degree of similar oversight is appropriate in the deep seabed context also. No provision is made for such a mechanism in the Authority’s current legal arrangements. The Council has invited s­ ponsoring States to provide information on their regulatory systems109 but to date has not gone beyond that invitation to take a more active oversight role. It would, however, appear to have the authority to do so if it wished. Under the Convention the Authority’s legal responsibilities to “exercise such control over activities in the Area as is necessary for the purposes of securing compliance” have been delegated to the Council—arguably granting it a legal mandate to exercise oversight over sponsoring States should it wish to do so.110

Concluding Remarks

The mechanism of state sponsorship forms an important element of the ­compromise regarding the deep seabed that was struck in Part xi of the Convention and the subsequent 1994 Implementing Agreement. Central to that compromise is the principle that the Area is the common heritage of mankind, and activities in the Area are to be carried out for the benefit of mankind as a whole, taking into consideration the particular interests and needs of developing States.111 The sponsorship regime delivers on that principle by providing an avenue through which smaller, or developing, States may participate in mineral activities in the Area. Concurrently, the sponsorship mechanism also 107 Area Advisory Opinion, para. 180. Note also that Art. 37 of the Statute of the International Tribunal for the Law of the Sea specifically authorises the Authority to have access to the Tribunal, providing a mechanism for any claim by the Authority to be heard. 108 See, for example, the reporting obligations for Annex i parties under Arts. 5, 7 and 8 of the 1997 Kyoto Protocol to the Climate Change Convention and the compliance mechanisms provided for in Art. 34 of the 2000 Cartagena Protocol on Biosafety. 109 See Decision of the Council of the International Seabed Authority at its 17th Session (ISBA/17/C/20, 21 July 2015). 110 Art. 153(4) of the Convention. The power to exercise this responsibility has been delegated to the Council of the Authority under Art. 162(2)(1) of the Convention. 111 Art. 140(1) of the Convention.

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preserves access to the mineral resources of the deep seabed by private commercial actors—another critical point of contention during the negotiations of Part xi. It is therefore important that the sponsorship regime is supported so that it can operate effectively. Current experience suggests that the obligations associated with sponsoring activities in the Area are not significantly deterring participation by developing States.112 At the same time, however, the potential pitfalls of the system should be acknowledged. All states should weigh carefully the risks and benefits that flow from sponsorship and make their own decision as to whether it is in their best interests to sponsor private commercial activity in the Area. 112 Several of the 22 contracts approved by the Authority as of July 2015 were concluded with entities sponsored by developing States. These include private commercial entities sponsored by Kiribati, Tonga, Nauru, and the Cook Islands, which are all Small Island Developing States with very small populations in international terms. Details of the existing contractors can be found in the Report of the Secretary-General of the Authority Status of Contracts for Exploration in the Area (ISBA/21/C/8/Rev.1*, 6 July 2015).

part 4 Resources and Maritime Boundary Regimes

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chapter 11

The Grey Area in the Bay of Bengal Case Jin-Hyun Paik1 Abstract In maritime boundary delimitation, whenever a delimitation line other than an equidistance line crosses the 200-nautical mile limit of one State and continues to reach the 200-nautical mile limit of another State, a small-wedge-shaped area is formed. This area is commonly referred to as a “grey area” due to the uncertainty of its legal status. In the Dispute concerning Delimitation of Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (2012), the International Tribunal for the Law of the Sea (itlos) has clarified several issues related to the grey area for the first time in international adjudication. First, it pointed out that the boundary abutting the grey area is a boundary delimiting the continental shelves of the two Parties, since in this area only their continental shelves overlap. Second, by characterizing the problem of grey area as one arising as a consequence of delimitation that must be effected to achieve an equitable solution, the Tribunal made it clear that this problem cannot be a reason for adhering to an equidistance line. Third, the Tribunal clarified the legal status of the grey area: Bangladesh has continental shelf rights over the seabed and subsoil and Myanmar the eez rights, notably with respect to the superjacent waters. Thus there is an overlay of Bangladesh’s continental shelf rights and Myanmar’s eez rights in the grey area. Fourth, in the view of the Tribunal, any practical or other difficulties that may arise from the overlap of rights can be resolved in accordance with the principle reflected in the relevant articles in the United Nations Convention on the Law of the Sea, including the principle of due regard. In this regard, the Parties may conclude specific agreements or establish appropriate cooperative arrangements. This approach of the Tribunal has subsequently been followed by the Annex vii Arbitral Tribunal in the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India (2014). With the pronouncements of the itlos and the Arbitral Tribunal in the two Bay of Bengal cases, it is hoped that the so-called grey area has now become less grey and that the parties to delimitation will be able to agree on cooperative arrangements in the area more easily.

1 Judge, International Tribunal for the Law of the Sea. The author’s PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai-paik.pdf.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_012

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1 Introduction In maritime boundary delimitation, whenever a delimitation line other than an equidistance line crosses the 200-mile (nautical mile) limit of one State and continues to reach the 200-mile limit of another State, a small-wedge-shaped area is formed. This area, in other words, the area beyond the 200-mile limit of one State but within that of the other State yet on the side of the former State of the delimitation line, is commonly referred to as a grey area perhaps due to the uncertainty of its legal status. In such an area, one State may be excluded from exercising the 200-mile Exclusive Economic Zone (eez) jurisdiction because the area lies beyond the 200 miles from its coast. On the other hand, the other State may also be excluded from exercising such jurisdiction in the area because it is located on the side of the former State of the delimitation line. Thus this area gives rise to a puzzling question as to its legal status (see Figure 11.1). The term “grey area” is of course not the term of art but widely used in maritime boundary delimitation. While a grey area can result from the delimitation of the territorial sea, this problem has drawn most attention in the context of a single maritime boundary delimiting the eez and the continental shelf. The question of a grey area is not a new phenomenon. In fact, this question was raised in the very first international adjudication on maritime boundary delimitation, namely in the Grisbadarna case.2 Nor is a grey area a rare, or even uncommon, phenomenon as it arises whenever a ­delimitation

Figure 11.1 The Concept of Grey Area. 2 The Grisbadarna case (Norway v. Sweden), Award of the Tribunal, 23 October 1909.

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line deviates from an equidistance line. Despite the frequent occurrence, however, no ­international courts or tribunals had directly tackled this issue until the International Tribunal for the Law of the Sea (itlos) did in the Bay of Bengal case.3 2

Grey Area in the Bay of Bengal Case

In the Bay of Bengal case, itlos was asked by the Parties to draw a single boundary delimiting the territorial sea, the eez and the continental shelf including the continental shelf beyond 200 nautical miles. For the delimitation of the territorial sea, the Tribunal drew an equidistance line up to the point beyond which the territorial seas of the Parties no longer overlap.4 For the eez and the continental shelf within 200 nautical miles, the Tribunal first constructed a provisional equidistance line from base points situated on the coasts of the Parties.5 Then the Tribunal considered whether there were relevant ­circumstances, calling for an adjustment of that line with a view to achieving an equitable solution. The Tribunal found that the concavity of the coast of Bangladesh was a relevant circumstance because the provisional equidistance line as drawn would produce a cut-off effect on that coast requiring an adjustment of that line.6 In order to avoid such effect, the Tribunal adjusted the provisional equidistance line from the point with coordinates 20° 03’ 32.0” N and 91° 50’ 31.8” E. From that point, the adjusted boundary line follows a geodetic line starting at an azimuth of 215° until it reaches a point which is located 200 nautical miles from the baselines from which the breadth of the territorial sea of Bangladesh is measured.7 Finally for the continental shelf beyond 200 nautical miles, the Tribunal extended the adjusted equidistance line in the same direction beyond the 200-mile limit of Bangladesh until it reaches the area where the rights of third States may be affected.8 The adjusted equidistance line first intersects the 200-mile limit of Bangladesh and continues to reach the 200-mile limit of Myanmar. The resulting wedge shaped area is thus beyond the 200-miles of Bangladesh but within the 200-mile 3 Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Judgment, itlos Reports, 2012. 4 Ibid., paras. 153–169. 5 Ibid., paras. 271–274. 6 Ibid., paras. 279–297. 7 Ibid., paras. 323–340. 8 Ibid., paras. 450–462.

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limit of Myanmar yet on the Bangladesh side of delimitation line (see Figure 11.2). Then the questions arise: what is the legal status of this area?; how should this area be treated?; and “who” (which party) has “what” rights in this area? Faced with these questions, the Tribunal clarified at least four issues related to the area. First, the Tribunal made it clear that the boundary abutting the grey area is a boundary delimiting the continental shelves of the two Parties since in this area only their continental shelves overlap. According to the Tribunal,

Figure 11.2

Grey Area. Source: Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar, Judgment, itlos reports 2012, sketch-map no. 7.

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there is no question of delimiting the eezs of both Parties as there is no overlap of their eezs in this area.9 Earlier in the judgment, the Tribunal clarified the relationship between entitlement and delimitation, and pointed out that delimitation presupposes an area of overlapping entitlements. Therefore, the first step in any delimitation is to determine whether there are entitlements and whether they overlap. In this case, the Tribunal found that both Bangladesh and Myanmar are entitled to the continental shelves beyond 200 nautical miles and their entitlements overlap.10 Second, the Tribunal observed that the problem of the grey area arises as a “consequence” of delimitation that must be effected to achieve an equitable solution. In so stating, the Tribunal implied that this problem can neither be a reason for adhering to an equidistance line nor be considered a relevant circumstance that should be taken into account in delimitation. Thus the grey area is a problem that should be dealt with between the Parties after the completion of delimitation operation.11 Third, the Tribunal clarified the legal status of grey area in terms of the allocation of rights and obligations in the area: that is, Bangladesh has continental shelf rights over the seabed and subsoil of the area as the boundary is delimited in such a way to leave the seabed and subsoil in the area to Bangladesh, while Myanmar has the undisputed eez rights over the area, notably with respect to the superjacent waters.12 Thus there is an overlay of Bangladesh’s continental shelf rights and Myanmar’s eez rights. The Tribunal did not find it necessary or relevant to address the question as to which rights, eez rights or continental shelf rights, prevail. Fourth, the Tribunal observed that any practical or other difficulties that may arise from the overlap of rights can be resolved in accordance with principles reflected in the relevant articles in the United Nations Convention on the Law of the Sea (the Convention), including the principle of due regard. The Tribunal recalled that the regime of the continental shelf has always coexisted with another regime in the same area; initially, the other regime was that of the high seas and, subsequently with the introduction of the eez regime, the concurrent eez rights of another coastal State.13 Therefore, there is no need to exaggerate difficulties that may arise from the overlap of jurisdictions. In such a situation, States with overlapping rights and jurisdictions, pursuant to the principles reflected in articles 56, 58, 78, 79 and others, should exercise 9 10 11 12 13

Ibid., para. 471. Ibid., para. 449. Ibid., para. 472. Ibid., para. 474. Ibid., para. 475.

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their rights and perform their obligations with due regard to those of the other. In this regard, the Parties may conclude specific agreements or establish cooperative arrangements.14 3

Grey Area Issues in the Subsequent Decisions

The approach of itlos to the question of a grey area has subsequently been followed by the Annex vii Arbitral Tribunal in the Bay of Bengal Maritime Boundary Arbitration between Bangladesh and India.15 In this case, the ­Arbitral Tribunal was asked to delimit the territorial sea, the eez and the continental shelf within and beyond 200 nautical miles between the Parties. The Arbitral Tribunal found that the concavity of the Bay of Bengal required the adjustment of the provisional equidistance line both within and beyond 200 nautical miles to ameliorate a cut-off effect on the seaward projections of the coast of Bangladesh.16 Then the Arbitral Tribunal decided that the adjusted boundary line would be a geodetic line with an initial azimuth of 177° 30’ 00” from the delimitation point 3 until this line meets with the maritime boundary between Bangladesh and Myanmar.17 This adjusted boundary line gave rise to an area that lies beyond 200 nautical miles from the coast of Bangladesh but within 200 nautical miles from the coast of India, yet on the Bangladesh side of the delimitation line (see Figure 11.3). The Arbitral Tribunal clarified the legal status of the grey area and the respective rights of the Parties within the area. The Arbitral Tribunal, like the itlos, first found that the boundary delimiting the grey area and beyond is the boundary delimiting the continental shelves because only the continental shelves of the Parties overlap in the area. It stated that as its power to delimit the respective entitlements of the Parties exists only where those entitlements overlap, there can be no question of delimiting entitlements in the grey area, except with respect to the continental shelf.18 The Arbitral Tribunal went further to note that while, in the grey area, the eez to which India is entitled includes rights to the seabed and subsoil pursuant to article 56(1)(a) of the Convention that also fall within the regime for the continental shelf, the Convention, in practice, distinguishes between the rights 14 15 16 17 18

Ibid., para. 476. Bay of Bengal Maritime Boundary Arbitration (Bangladesh v. India), Award of 8 July 2014. Ibid., paras. 473–475. Ibid., paras. 478–480. Ibid., para. 503.

The Grey Area In The Bay Of Bengal Case

Figure 11.3

Grey Areas. Source: Bay of Bengal Maritime Boundary Arbitration ­( Bangladesh v. India), Award of 8 July 2014, map 10.

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that arise under multiple regimes and those that pertain only to the eez. The Arbitral Tribunal thus made distinction between rights over the water column and rights over the seabed and subsoil in the eez. To support its finding to this effect, the Arbitral Tribunal referred to articles 56(3) and 68.19 Within the grey area, the boundary identified by the Arbitral Tribunal delimits only the Parties’ sovereign rights to explore the continental shelf and to exploit its resources as set out in article 77 of the Convention. Within this area, however, the boundary does not otherwise limit India’s sovereign rights to the eez in the superjacent waters.20 One interesting aspect of this case is that the grey area the Arbitral Tribunal has described overlaps in part with the grey area created by the delimitation line in the Bay of Bengal Case between Bangladesh and Myanmar. The Tribunal rightly pointed out that this delimitation does not prejudice the rights of India vis-à-vis Myanmar in respect of the water column in the area where the eez claims of India and Myanmar overlap.21 Thus the overlap should be settled between the two States later on. Regarding the question of a maritime area in which States concerned have shared rights, the Arbitral Tribunal took the similar perspective to that of the itlos. It recalled that the Convention is replete with provisions that recognize to a greater or lesser degree the rights of one State within the maritime zone of another and that those provisions call for States to exercise their rights and perform their duties with due regard to the rights and duties of other States.22 It further showed its confidence that the Parties will act, both jointly and individually, to ensure that each is able to exercise its rights and perform its duties within this area.23 Another case that has some relevance to the question of the grey area is the Maritime Dispute between Peru and Chile.24 In this case, the International Court of Justice (icj) was faced with the question of the legal status of a large triangular area that is located beyond the 200-mile limit of Chile but within 200 nautical miles from the coast of Peru. Peru claimed that (1) the delimitation between the two States is a line equidistant from the baselines of both Parties, up to a point situated at a distance of 200 nautical miles from the baselines; (2) beyond the point where the common maritime border ends, Peru is entitled to exercise exclusive sovereign rights over a maritime area lying 19 20 21 22 23 24

Ibid., para. 504. Ibid., para. 505. Ibid., para. 506. Ibid., para. 507. Ibid., para. 508. Maritime Dispute (Peru v. Chile), Judgment, icj Reports 2014.

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out to a distance of 200 nautical miles from its baselines (“outer triangle”).25 On the other hand, Chile argued that (1) the respective maritime zone entitlements of the two States have been fully delimited by agreement, that being the parallel of latitude passing through the most seaward boundary marker of their land boundary; (2) Peru has no entitlement to any maritime zone extending to the south of that parallel.26 The maritime boundary claimed by Chile would prevent Peru from exercising jurisdiction over the outer triangle, although the area is located within the 200 miles but beyond that limit of Chile. The icj rejected Chile’s claim and decided that the maritime boundary between the Parties starts at the intersection of the parallel of latitude passing through Boundary Marker No. 1 with the low-water line; and extends for 80 nautical miles along that parallel to Point A; from this point, runs along the equidistance line to Point B and then along the 200 nautical mile limit measured from the Chilean baselines to Point C.27 The Court further decided that since it delimited the overlapping maritime entitlements of the Parties by drawing an equidistance line, Peru’s second submission has become moot and the Court need not rule on it.28 The legal status of the outer triangle, which would have been similar to a grey area, did not arise in this case as the Court drew an equidistance line. There is no point of speculating how the Court would have decided if the issue had arisen. On the other hand, the President of the Court observed in his individual declaration that the outer triangle is part of Peru’s eez and continental shelf; and that would have been the result even if the Court had concluded that the agreed maritime boundary extended to 200 nautical miles from the coast, since this area lies beyond 200 nautical miles from the Chilean coast but within 200 nautical miles of Peru’s coast; and there is no evidence that Peru has relinquished any entitlements in areas beyond the 200-mile lateral boundary but still within 200 nautical miles of its coast.29 This view appears to be in line with the approach adopted in the two Bay of Bengal cases. 4

Overlapping Jurisdictions in the Grey Area

The overlapping jurisdictions or shared rights in the grey area can raise some difficult legal and practical questions. Those questions should be addressed 25 26 27 28 29

Ibid., paras. 13–14. Ibid. Ibid., paras. 177–190. Ibid., para. 189. Ibid., Declaration of President Tomka, para. 26.

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by the parties to delimitation. As the itlos and the Arbitral Tribunal have stated, it is up to the parties to determine measures that they consider appropriate to cope with challenges arising from overlapping jurisdictions. Here are a few examples in which some States addressed the question of overlapping jurisdictions. The 1990 us-Soviet Union boundary agreement30 gave rise to the three special zones that lie beyond 200 nautical miles from one State but within the 200 nautical miles from another State yet on the side of the former State of the boundary line. The two Parties agree that in those areas, one State henceforth may exercise the sovereign rights and jurisdiction derived from the eez that the other State would otherwise be entitled to exercise under international law in the absence of the agreement of the Parties on the maritime boundary.31 Thus this agreement assumes that one State has the continental shelf rights in the grey area while another State has the eez rights in the same area. ­Obviously the reciprocal relinquishment of entitlements was made in the context of negotiating an overall maritime boundary in a much larger area. In any case, this may be considered as one, though rather radical, of the ideas dealing with the problem of overlapping jurisdictions. The 2010 maritime boundary agreement between Norway and Russia in the Barents Sea32 adopted a similar approach in which Norway relinquished to Russia an area which lies within the 200-mile limit of Norway but beyond 200 nautical miles from Russia. Article 3 of the agreement provides that in the area east of the maritime delimitation line that lies within 200 nautical miles of Norway but beyond 200 nautical miles of Russia, the Russian Federation shall, from the day of the entry into force of the agreement, be entitled to exercise such sovereign rights and jurisdiction derived from eez jurisdiction that Norway would otherwise be entitled to exercise under international law. On the other hand, the 1997 maritime boundary agreement between ­Australia and Indonesia33 gives rise to areas of overlapping jurisdiction in which Indonesia exercises the eez sovereign rights and jurisdiction in relation to the water column and Australia the continental shelf sovereign rights and jurisdiction in relation to the seabed. Article 7 of the agreement provides 30 31 32 33

Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary, 1 June 1990. Ibid., Article 3. Treaty between the Kingdom of Norway and the Russian Federation concerning Maritime Delimitation and Cooperation in the Barents Sea and the Arctic Ocean, 15 September 2010. Treaty between the Government of Australia and the Government of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997.

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for several matters related to managing such areas of overlapping jurisdiction, including the construction of artificial island, installations and structure, grant of exploration or exploitation rights, notification of marine scientific research, and prevention, reduction and control of pollution of the marine environment. It also stipulates that neither Party may exercise its rights and jurisdiction in a manner which unduly inhibits the exercise of the rights and jurisdiction of the other and that the Parties must cooperate with each other in relation to the exercise of their respective rights and jurisdiction. 5 Conclusion Equitable delimitation may be able to put an end to a boundary dispute once and for all in some cases. In other cases, however, delimitation can entail new, complicated legal and practical problems. The grey area is one such problem that can arise as a consequence of delimitation. Another difficult problem that often arises is that of straddling hydrocarbon or mineral deposits. These problems cannot be adequately addressed without close cooperation between the parties to delimitation. As has been seen above, some boundary agreements have provisions to address those problems. The grey area raises the question of what status has to be attributed to it. The itlos and the Arbitral Tribunal in the Bay of Bengal cases “bifurcated” the area and allocated jurisdiction over the water column to one State and ­jurisdiction over the seabed and subsoil to another.34 Thus the two States share rights in the same area. These findings are based on the notion of entitlement to maritime jurisdictions and of delimitation of the overlapping entitlements. They are also premised upon the notion that distinction can be made between rights over the water column and rights over the seabed and subsoil in the eez. With the pronouncements of the itlos and the Arbitral Tribunal in the two Bay of Bengal cases, it is hoped that the so-called “grey area” has now become less grey and that parties to delimitation will be able to agree on cooperative arrangements over the area more easily.

34

David. P. Riesenberg, “Recent Jurisprudence Addressing Maritime Delimitation Beyond 200 Nautical Miles from the Coast”, asil Insights, Vol. 18, Issue 21, 11 June 2015, p. 7.

chapter 12

Separate Lines: Challenges and Opportunities of Differentiated Seabed and Water Column Boundaries Leonardo Bernard* and Clive Schofield** Abstract The significant extension of claims to national jurisdiction offshore in recent decades has led to a proliferation in overlapping maritime claims and the resulting need for the delimitation of maritime boundaries between coastal States. Prior to 1982, maritime delimitation beyond territorial sea limits predominantly concerned the delimitation of the continental shelf. With the introduction of the eez concept, States have been faced with the need to delimit both the continental shelf and the overlying water column, including in some instances the need to delimit the water column above their already delimited continental shelf. While there has been a clear trend towards coincident maritime boundaries to delimit both the seabed and water column, this has not always been the case. This chapter traces the development of the continental shelf and eez regimes and their relationship. Evolving approaches towards maritime delimitation are then outlined. Examples of State practice where separate delimitation lines have been defined are highlighted as are key challenges and opportunities related to such practice. The potential for further differentiated seabed and water column boundaries as well as other analogous practice to emerge in the future is then explored and concluding thoughts offered.

* Research Consultant, Centre for International Law, National University of Singapore; PhD Candidate, Australian National Centre for Ocean Resources and Security (ancors), University of Wollongong (uow), Australia. Email:[email protected]. The author’s conference PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai-bernard.pdf. ** Professor and Director of Research, Australian National Centre for Ocean Resources and ­Security (ancors), University of Wollongong (uow), Australia. Academic Leader of the ­Sustaining Coastal and Marine Zones research theme within the uow Global Challenges Program. Email: [email protected]. The author’s conference PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai-schofield.pdf.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_013

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Introduction The United Nations Convention on the Law of the Sea (losc)1 provides for a spatially sophisticated system of maritime jurisdictional zones. Within this framework the continental shelf and Exclusive Economic Zone (eez) are distinct yet interrelated and coexisting maritime regimes. The eez is a specific legal regime whereby coastal States have sovereign rights and jurisdiction over the natural resources in the body of water and subsoil up to 200 nautical miles (nm) from their shores.2 It overlaps with the continental shelf regime, which gives coastal States jurisdiction over the natural resources contained in the seabed and subsoil of the submarine areas that extend beyond a coastal State’s territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin or to a distance of 200 nm from the baselines.3 In effect, this means that a coastal State has the sovereign right to explore and exploit the hydrocarbon resources off its coast out to the 200 nm limit under both the continental shelf regime and the eez regime. In the context of overlapping continental shelf and eez entitlements, maritime boundary delimitation is required. The delimitation provisions for the continental shelf and eez, contained in Articles 74 and 83 of the losc are essentially identical. Where the same method of delimitation is applied to the definition of continental shelf and eez boundaries, ordinarily the result will be a boundary line that is coincident for both zones. Arguably this was what the drafters of the losc envisaged and, since the advent of the eez, there has been a strong trend towards the delimitation of what are often referred to as ‘single maritime boundaries’ consisting of a delimitation line applicable to both the continental shelf and eez. However, such unified lines dividing both eez and continental shelf rights are not obligatory and examples exist of the delimitation of separate continental shelf and eez boundary lines. For example, since the continental shelf regime predated the eez regime that was adopted in the losc, some States were faced with the need to delimit the water column above their already delimited continental shelf; and in doing so, they needed to consider factors that were not considered when delimiting the continental shelf. For example, while geomorphology is relevant to continental shelf boundary delimitation, it will not affect the delimitation

1 United Nations Convention on the Law of the Sea, adopted 10 December 1982, 1833 unts 3 (entered into force 16 November 1994) [losc]. 2 Ibid., Arts. 56 and 57. 3 Ibid., Art. 77.

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of the water column; on the other hand, the existence of traditional fishing rights may affect the delimitation of the water column, but might not affect continental shelf delimitation. Consequently, a single maritime boundary solution has not always proven to be ideal or possible, resulting in separate or multiple delimitation lines applicable to continental shelf and water column boundaries. This chapter outlines the development of the continental shelf and eez ­regimes and their relationship to one another while also noting the proliferation of overlapping maritime claims and thus the increasing need for maritime boundaries that has resulted from the significant extension of claims to maritime jurisdiction offshore in recent decades. Evolutions in approaches to ocean boundary-making and trends in maritime delimitation practice are then considered, including that towards single maritime boundaries. The chapter then examines State practice on multiple maritime boundaries with a view to highlighting some of the practical issues, challenges and also opportunities associated with opting for such a separate or layered jurisdictional ­solution with particular reference to the experience of Australia and Indonesia in the Timor Sea and Australia and Papua New Guinea with respect to the Torres Strait. The potential for further examples of differentiated seabed and water column boundaries to emerge in the future is then considered. Ultimately, it is suggested that while the delimitation of multiple maritime boundary lines applicable to different maritime zones is relatively rare, it is not unique. Further, while separate maritime boundaries for seabed and water column jurisdiction raise challenges, these are not insoluble and, indeed, are analogous to the issues that arise in the context of increasingly complex and sophisticated efforts towards the spatial management of offshore space. ­Moreover, this differentiated approach to delimitation may offer an alternative and creative pathway to dispute resolution in the context of particularly complex maritime boundary disputes in the future.

The Continental Shelf Regime

The concept of the ‘continental shelf’ became important in the early 20th ­century. Even before coastal States had realised the potential of the continental shelf as a source of hydrocarbon resources, they had recognised the importance of the continental shelf for their fishing industries. At that time, it was already generally accepted that possession of a territorial sea included rights over resources in the seabed and subsoil, and there was already a clear distinction between the bed of the territorial sea and the bed of the high seas, which

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is an area not subject to the jurisdiction of the coastal States.4 In 1926, a committee of experts formed by the League of Nations observed that at a certain distance from the coast, the bottom of the sea is marked by a sort of ‘great step’ that divides it into two distinct areas: the ‘continental shelf’, which extends from this step to the coastline and where most edible fish can be found; and a vast abysmal region that extends beyond this step.5 Thus, the Committee of Experts defined the regime of the continental shelf to some extent, but still failed to clarify the legal limits of the continental shelf.6 Although States had recognised early on the importance of the resources contained on and within the seabed, it was not until the 1940s that the regime of the continental shelf really developed. In 1942, pushed by the need for oil, the United Kingdom (u.k.), as the colonial power administering Trinidad and Tobago, signed the Gulf of Paria Treaty with Venezuela, in which they agreed to delimit the seabed beyond the territorial sea between them.7 This treaty was the first to delimit the seabed beyond the territorial sea, even before the legal concept of the continental shelf was firmly established. In the negotiation of the treaty, both States paid particular concern to ensure that the freedom of the high seas on the surface was not affected by the delimitation.8 This compromise between a coastal State’s need to exert jurisdiction over seabed resources and the need to maintain freedom of the high seas became an important factor in the development of the legal regime of the continental shelf. The Truman Proclamation Just prior to World War ii, technology had advanced to the extent where it was possible to commercially exploit the hydrocarbon resources beyond the territorial sea. As there was no legal regime in place to regulate exploitation of these resources, some coastal States started to make unilateral claims to the continental shelf areas adjacent to their territorial seas.9 One of the most 4 R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd ed. (Manchester University Press, 1999), p. 142. 5 Ibid., p. 126. 6 D.R. Rothwell and T. Stephens, The International Law of the Sea, (Oxford and Portland, ­Oregon: Hart Publishing, 2010), p. 100. 7 Treaty between His Majesty in Respect of the United Kingdom and the President of the United States of Venezuela Relating to the Submarine Areas of the Gulf Paria, 26 February 1942 ­(entered into force 22 September 1942), reprinted in J.I. Charney and L.M. Alexander (eds.), International Maritime Boundaries (The Netherlands: the American Society of International Law, 1993), p. 651. 8 See Charney and Alexander, ibid., p. 641. 9 Rothwell and Stevens, supra note 6, p. 98.

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i­nfluential references to the regime of the continental shelf is the so-called ‘Truman Proclamation’,10 in which the United States (u.s.) unilaterally declared its exclusive right over the resources in the seabed that formed part of the natural prolongation of its land territory. Although the u.s. was not the first State to assert some sort of jurisdiction over the seabed adjacent to their land territory and beyond territorial sea limits,11 the Truman Declaration was the first statement of its kind to assert a claim over the continental shelf and to clarify associated legal rights and entitlements. Further, the fact that it was the u.s. that was extending its jurisdiction over broad areas of continental shelf that had previously been regarded as being part of the high seas was highly influential. Consequently, the Truman Proclamation is generally regarded as a key catalyst for the expansion of coastal State claims to maritime jurisdiction farther offshore. Indeed, the claims of the u.s. were met with minimal protests and were immediately followed by other States declaring similar rights over parts of the seabed adjacent to their land territories. Following these developments, numerous States began to claim jurisdiction over areas far beyond the then narrow spatial confines of the traditional territorial sea. The claims that followed the Truman Declaration were, however, varied in nature, with some States claiming only jurisdiction over the resources found in the continental shelf, while others claimed sovereignty over the shelf and the column of water above it or even the air space above, and some other States defining the limit of continental shelf to the depth of 100 fathoms or 200 metres.12 Moreover, a number of Latin American countries went still further, opting to assert claims to sovereignty over both seabed and water column out to 200  nm offshore, regardless of the depth–prompting diplomatic protests from the u.s., u.k. and others.13 10 1945 u.s. Presidential Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, (1945) 10 Fed. Reg. 12,305 [Truman Declaration], online: cil . 11 See, e.g., Argentina’s continental shelf Decree of 1944. Decree No.1, 385 Concerning Mineral Reserves, 24 January 1944, Boletin Oficial de la Republica Argentina, Volume 52, no.14, 853 (17 March 1944) in United Nations, Laws and Regulations on the Regime of the High Seas, United Nations Document St/LEG/SER.B/1, (New York: United Nations, 1951). 12 Cuba, Mexico and Nicaragua set the boundary of the area claimed at the 200 meters depth line, see ibid., pp. 851–852, 855. 13 For example, in a joint declaration dating from 1952, Chile, Ecuador, and Peru asserted their “sole sovereignty and jurisdiction over the area of sea adjacent to the coast…and extending not less than 200 nautical miles from the said coast.” Reproduced as Annex i in

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Two important issues arose in relation to the Truman Proclamation. First, like the Gulf of Paria Treaty, the Truman Proclamation specifically recognised that the freedom of the high seas exists above the seabed that they claimed.14 Thus, the u.s. only claimed jurisdiction over the resources in their seabed, but did not claim any rights in the waters and the resources above it. The Truman Proclamation, however, did not provide a specific outer limit to the u.s. ­jurisdiction; instead it stated that u.s. jurisdiction over its continental shelf extended as far as the u.s. capability to exploit it.15 Second, not all States that were claiming continental shelf followed the u.s. formula. Other States declared that they not only had sovereign rights over the resources in their seabed, but also sovereignty over the body of water above it. Although it was quickly accepted that coastal States may have sovereign rights over the seabed that they considered as part of the natural prolongation of their land territory, there was no agreement on the scope of these rights. States had different interpretations not only of what kind of sovereign rights they had over the continental shelf, but also the outer limit of such continental shelf. Following the Truman Declaration in 1945, the inconsistency in relation to the nature and geographical extent of continental shelf claims and the use of varying methods of delimitation clearly demonstrated a lack of uniform State practice.16 Nevertheless, these claims were important to the development of the continental shelf regime. While the u.s. position that the jurisdiction and control over the continental shelf was not affected by the high seas freedoms above, it subsequently formed the basis of the continental shelf regime in the 1958 Convention on the Continental Shelf, and the position of the Latin ­American countries that claimed 200  nm exclusive jurisdiction became the precursor to the eez regime.

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United States Department of State, Maritime Boundary: Chile-Peru, 86 Limits in the Seas (Office of the Geographer, Bureau of Intelligence and Research, 2 July 1979). Truman Declaration, supra note 10. Although the Truman Declaration did not define the limits of continental shelf, the accompanying press release described it as an area adjacent to the continent to a depth of 100 fathoms. See R. Young, ‘Recent Development with Respect to the Continental Shelf’ 42:4 American Journal of International Law 849, 1948, 851. See the award in the arbitration between Petroleum Development Ltd and the Sheikh of Abu Dhabi, where Lord Asquith concluded that by 1951, the doctrine of continental shelf was not yet admitted to the canon of international law, ‘Petroleum Development (Trucial Coast) Ltd and the Sheikh of Abu Dhabi’, 1 International and Comparative Law Quarterly 247, 1952, p. 253, cited in Rothwell and Stephens, supra note 6, p. 101.

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The 1958 Geneva Convention on the Continental Shelf The profusion of extended claims to maritime jurisdiction largely sparked by the Truman Proclamation led to a clear need to clarify and codify the international law of the sea respecting maritime jurisdictional rights and obligations. In 1947, the United Nations General Assembly established an International Law Commission (ilc), which subsequently produced 73 draft articles concerning the law of the sea that were circulated to interested States in 1956.17 The ilc’s final report and recommendations, taking into account feedback from States, was provided to the First United Nations Conference on the Law of the Sea (unclos i) that took place in Geneva in 1958. By the time unclos i started, the idea that coastal States have jurisdiction over the continuation of their land territory was largely uncontroversial. The adoption of the 1958 Convention on the Continental Shelf (Continental Shelf Convention) only confirmed how the continental shelf regime had gained widespread, albeit not uniform, support through State practice.18 The continental shelf regime was recognised as an inherent right of coastal States. Further, the Continental Shelf Convention reaffirmed the doctrine introduced in the Truman Declaration that coastal States have exclusive sovereign rights to explore and exploit their continental shelf,19 as well as confirming that the body of water above the continental shelf remains as high seas.20 The Continental Shelf Convention also tried to tackle the elusive issue of how to determine the outer limit of the continental shelf. In the period leading up to unclos i, the limit of the continental shelf declared by coastal States varied. Consequently, in its report to the General Assembly in 1956, the ilc provided alternative ways to limit the continental shelf, that is, either “to a depth of 200 metres, or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas”.21 Despite failing to provide a definitive outer limit of the continental shelf,22 17 18

19 20 21 22

International Law Commission, ‘Articles concerning the Law of the Sea 1956’, Yearbook of the International Law Commission, 1956, vol. ii, p. 264. Convention on the Continental Shelf, 29 April 1958, unts 499, 311 (entered into force 10 June 1964) [Continental Shelf Convention], online: . Ibid., Art. 2(1). Ibid., Art. 3. International Law Commission, supra note 17. Friedman stated that Article 1 of the Continental Shelf Convention was “one of the most disastrous clauses ever inserted in a treaty of vital importance to mankind”, which left the limits of national jurisdiction open; see W. Friedman, ‘Selden Redivjvus – Towards a Partition of the Seas?’ 65:4 American Journal of International Law, 1971, 757, p. 759.

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the definition provided by the ilc was fully adopted into the ­Continental Shelf Convention without any changes,23 which reflected a desire to have a degree of certainty as to the extent of the continental shelf while leaving open the outer limit of the continental shelf for further exploration as technology developed.24 The eez Regime Although the concept of the eez was only formally introduced during Third United Nations Conference on the Law of the Sea (unclos iii), the importance of a ‘fishing zone’ beyond the territorial seas to coastal States had been recognised since the early 20th century. Aside from declaring its right to explore the natural resources in the continental shelf contiguous to its land territory,25 the u.s. also issued a second declaration, albeit overshadowed by the first. The second Truman Proclamation stressed the u.s. policy on the need for conservation zones and protection of fishery resources in areas of the high seas ‘contiguous to its coasts’ beyond the three nm breadth territorial sea then claimed by the u.s., although it did not claim sovereignty over the living resources in those waters.26 This second Truman Proclamation asserted the right to regulate and control fishing activities in waters beyond the territorial sea of a coastal State, and it was no surprise that it prompted a trend of unilateral declarations by countries claiming ‘entitlement’ or ‘sovereignty’ over extended maritime zones.27

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Continental Shelf Convention, Art. 1. S.B. Kaye, ‘State Practice and Maritime Claims: Assessing the Normative Impact of the Law of the Sea Convention’, in A. Chirop, et al. (eds.), The Future of Ocean Regime-Building (Martinus Nijhoff, 2009), p. 140. 25 Truman Declaration, supra note 10. 26 1945 u.s. Presidential Proclamation No. 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas (1945) 10 Fed Reg 12,304. It is notable, however, that the fisheries proclamation refers to the regulation and control of fishing and offers to enter into agreements with other States as opposed to the continental shelf proclamation which claims ‘jurisdiction and control’. Copy reprinted in 40 American Journal of International Law, Official Documents: 45. See also H.N. Scheiber, ‘Origins of the Abstention Doctrine in Ocean Law: Japanese-US Relations and the Pacific Fisheries, 1937–1958’, 16 Ecology Law Quarterly, 1989, 23. 27 For more detailed discussion on the claims made immediately following the Truman ­Declaration, see Young, supra note 15, p. 850; see also Scheiber, ibid.

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In 1947, Chile28 and Peru29 proclaimed sovereignty and jurisdiction over the seas adjacent to their coasts, up to a distance of 200 nm, in order to protect their offshore fishing industries from long distance fishing fleets. Although there were inconsistencies in relation to the nature and geographical extent of jurisdictional claims over offshore fishing activities following the Truman Proclamations, these claims were important to the development of the eez regime. Even though no agreement on any fishing zone regime was reached during unclos i in 1958,30 the post-Truman Proclamation positions of the Latin American countries that claimed 200  nm jurisdictions over fishing ­activities were the precursor to the eez regime. In 1960, the second United Nations Conference on the Law of the Sea ­(unclos ii) was held, focusing on questions as to the breadth of the territorial sea and how far coastal States could extend their fishery rights beyond their territorial seas. Although unclos ii failed to reach agreement on both issues, coming to grief over the then highly contentious issue of the proper limit of the breadth of the territorial sea,31 it was ultimately followed by unclos iii which, following negotiations from 1973, ultimately produced the landmark losc. The negotiations at unclos iii sought to resolve the issues left outstanding from the first two Conferences, including the issue of the proper breadth of the territorial sea and the limits of the fishing zone. During the Conference, the concept of an exclusive fishing zone, influenced by the various declarations of States regarding the extension of their fishing jurisdiction up to 200  nm, evolved even further. In 1974, the concept of the eez was introduced in the Conference to replace the freedom of fishing beyond the territorial sea and open access to the high seas fisheries up to 200 nm. The concept rapidly received strong support from most coastal States.32 28 29 30

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Presidential Declaration Concerning the Continental Shelf of 23 June 1947, El Mercurio, Santiago de Chile, 29 June 1947. Presidential Decree No. 781 of 1 August 1947, El Peruano: Diario Oficial, Vol. 107, No. 1983, 11 August 1947. unclos i, however, managed to produce four conventions: Convention on the High Seas (entered into force on 30 September 1962), Convention on the Territorial Sea and the Contiguous Zone, adopted 29 April 1958, 516 unts 205 (entered into force on 10 September 1964) [Territorial Sea Convention], Convention on Fishing and Conservation of the Living Resources of the High Seas (entered into force on 20 March 1966), and the Continental Shelf Convention, supra note 18. unclos ii came extremely close to achieving its aim with a proposal for a 6 nm territorial sea together with a 6 nm fishing zone seaward of that, ultimately failing to achieve the two-thirds majority necessary for adoption by a single vote. J. Stevenson and B. Oxman, ‘The Third United Nations Convention on the Law of the Sea: The 1974 Caracas Session’, 69 American Journal of International Law, 1975 1, p. 2. Although

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The eez was a completely new regime under international law in which coastal States have the sovereign right to explore and exploit the natural resources of the sea and of the seabed and subsoil up to 200 nm from their coasts without impeding freedom of navigation.33 In other words, they have the exclusive right to the fisheries and other living resources of the sea and to the oil and gas and other non-living resources of the seabed and subsoil. They also have such jurisdiction as is necessary for them to exercise their sovereign rights,34 including limited jurisdiction over marine scientific research and protection and preservation of the marine environment.35 It is important to remember that the eez is neither an extension of the sovereignty of the coastal States from their territorial seas, nor part of the high seas.36 Within the eez, the jurisdiction of the coastal States is limited to the natural resources as provided in the losc; and for other intents and purposes, the provisions of the high seas are applicable in the eez.37 Meanwhile, other States still have the right to exercise high seas freedoms in the eez of any State, including the freedoms of navigation and overflight.38 This balancing of rights, which must be exercised with due regard, is an important element in the creation of the eez regime.

The Relationship between the eez and the Continental Shelf

Not unlike its predecessor, the Continental Shelf Convention, the losc recognises that coastal States have sovereign rights to explore and exploit the natural resources of the seabed and subsoil on their continental shelf.39 The creation of the eez regime does not abolish the continental shelf regime, but instead

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the concept of extended fishing zones beyond the traditional territorial waters limits had been discussed and/or instituted in the previous decade, the concept of the eez was first advanced by Ambassador Njenga of Kenya in the Asian-African Legal Consultative Committee in 1972; see Report of The Thirteenth Session of the Asian-African Consultative C ­ ommittee, Lagos, 18–25 January 1972. losc, Arts. 56 and 57. Ibid., Art. 73. Ibid., Art. 56(1)(b). The legal status of the eez was heavily debated until they reached a compromise of the ‘sui generis’. For a detailed discussion on the status of the eez, see B. Oxman, ‘An Analysis of the Exclusive Economic Zone as Formulated in the Informal Composite Negotiating Text’, in T.A. Clingan Jr, (ed.), The Law of the Sea: State Practice in Zones of Special Jurisdiction (The Law of the Sea Institute: University of Hawaii, 1982), pp. 57–78. losc, Art. 58(2). Ibid., Art. 58(1). Ibid., Art. 77.

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preserves and expands upon it. The extent of a coastal State’s continental shelf was one of the most debated topics during the negotiations at unclos iii. The Conference finally agreed on a ‘legal limit’ of the continental shelf, which coincides with the limit of the eez – 200 nm from the baseline.40 All coastal States therefore are entitled to a continental shelf up to 200 nm, which overlaps with the eez regime. However, the eez and the continental shelf regimes do not always apply concurrently to the same geographical area, and at times they remain as two separate regimes. Even though the losc established the legal limit of the continental shelf at 200 nm, the extent of the actual or ‘physical’ continental shelf may be greater than 200 nm. The losc thus provides that States with a broad continental shelf off their coasts to retain their sovereign rights “throughout the natural prolongation of its land territory to the outer edge of the continental margin”41 with a maximum limit to continental shelf rights being set at either 350 nm from the baselines of the State concerned or 100  nm from the 2,500 metre depth isobath.42 Submissions related to continental shelf limits seawards of 200 nm, that is, to areas often referred to as the ‘extended’ or ‘outer’ continental shelf43 must be made to a specialised scientific and technical body established under the losc, the Commission of the Limits of the Continental Shelf (clcs).44 The clcs is a body consisting of twenty-one scientists. Importantly, the clcs is not a legal body and it does not therefore adjudicate on submissions. Instead, the clcs evaluates whether coastal States through their submissions have fulfilled the requirements of Article 76. On the basis of this assessment the clcs makes ‘recommendations’ to the coastal State on the basis of which the coastal

40 41 42 43

44

Ibid., Art. 76(1). Ibid. Ibid., Art. 76(5). Neither of the terms ‘outer’ or ‘extended’ continental shelf is entirely satisfactory or has gained universal acceptance. The term ‘outer continental shelf’ implies that there are distinct parts of the continental shelf when legally this is not the case. For its part the term ‘extended continental shelf’ gives a misleading impression that coastal States are somehow extending or advancing claims to additional areas of continental shelf. This is not the case as the sovereign rights enjoyed by the coastal State over the continental shelf are inherent. See losc, Art. 77(3) and North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands) (1967–1969), Judgment of 20 February 1969, icj Reports, 1969, 3 [hereafter North Sea Continental Shelf Cases], para.19. losc, Arts. 76(4) and 76(8); see .

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State can establish the outer limits to its continental shelf that are ‘final and binding’.45 The losc provides that rights with respect to the seabed and subsoil under the eez regime shall be exercised in a manner consistent with the continental shelf regime.46 However, this provision does nothing to resolve the difficulty of delimitation between coastal States having jurisdiction over both the continental shelf and the eez in the same area, as considered in further detail below.47

Overlapping Claims and Potential Maritime Boundaries

The losc provides a clear spatial framework for the limits to national claims to maritime jurisdiction measured offshore from baselines along the coast. These zones include a territorial sea, with consensus being reached on a maximum limit of 12 nm measured from baselines.48 Seaward of territorial sea limits, losc also provides for coastal States to claim a contiguous zone within which the coastal State may ‘exercise the control necessary’ to prevent or punish infringements of its customs, fiscal, immigration or sanitary laws out to a maximum limit of 24 nm from baselines along the coast.49 As most States claim a 12 nm breadth territorial sea, the contiguous zone, if claimed, generally extends from the 12 nm to 24 nm limits as measured from baselines along the coast. In a significant development, losc signalled the international community’s acceptance of the concept of the eez50 out to 200 nm from baselines. As noted above, most coastal States claim a 12 nm t­ erritorial sea, meaning that the actual breadth of the eez is usually 188 nm seaward of territorial sea limits. The vast majority of coastal States have proven to be enthusiastic claimants in terms of maritime jurisdictional zones.51 The majority of these claims are largely in conformity with the framework laid down under the losc, at least in terms of 45 46 47 48 49 50 51

Ibid., Art. 76(8). Ibid., Art. 56(3). S.B. Kaye, ‘The Use of Multiple Boundaries in Maritime Boundary Delimitation law and Practice’, 19 Australian Yearbook of International Law, 1998, 49, p. 51. losc, Arts. 3 and 4. Ibid., Art. 33. Ibid., Art. 57. See Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United ­Nations, Table of Claims to Maritime Jurisdiction (2008) available at .

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their geographic scope, with a number of previously excessive maritime claims having been ‘rolled back’.52 The introduction of the 200 nm breadth eez, in particular, has had a dramatic impact on the scope of ocean spaces becoming subject to the maritime claims of coastal States. It has been estimated that, should every coastal State make national maritime jurisdictional claims out to 200  nm (as is ­predominantly the case), these claims would encompass 43 million nm2 (147 million km2) of maritime space.53 The practical consequence of the significant expansion of maritime zones seaward has been a proliferation of overlapping maritime claims and, inevitably, maritime disputes. Wherever the maritime claims of (now) neighbouring States overlap, a potential maritime boundary situation exists. Thus, countries whose coastlines are up to 400 nm apart from one another may now require an eez boundary to be delimited between them and, with respect to extended continental shelf rights, States sharing a potential boundary may be even farther distant from each other. Indeed, less than half of overlapping maritime entitlements have thus far been resolved through the delimitation of maritime boundaries. Where each interstate maritime boundary relationship is counted as one potential maritime boundary, even if it may be composed of multiple distinct segments, the number of potential maritime boundaries within 200 nm limits has been calculated to be 366.54 At the time of writing, 196 of these 366 potential maritime boundaries or 54 per cent of them had at least one agreement relating to their delimitation in place. That said, many of these existing delimitation lines are partial in that they either pre-date the introduction of the eez—therefore relating exclusively to the seabed and subsoil of the continental shelf—or because an agreement could only be reached on parts of the potential full extent of the boundary line. Further, these figures do not include potential maritime delimitations with respect to extended continental shelf entitlements. As noted above, 52

53 54

Whilst many ‘excessive’ territorial sea claims have been ‘rolled back’ to the international norm of 12 nm, a number of coastal States retain claims to 200 nm territorial seas (Benin, Congo (Brazzaville), Ecuador and Peru). See, J.A. Roach and R.W. Smith, United States Responses to Excessive Maritime Claims (The Hague: Martinus Nijhoff Publishers, 2012), pp. 144–148. P.A. Symonds, Senior Adviser – Law of the Sea at Geoscience Australia (personal communication, July 2011). C.H. Schofield, ‘The Delimitation of Maritime Boundaries: An Incomplete Mosaic’, in D. Wastl-Walter (ed.), The Ashgate Research Companion to Border Studies, (Farnham: ­Ashgate, 2011), p. 670.

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­submissions to the clcs exceed 30 million km2, of which around 3.2 million km2 is subject to overlapping submissions. Therefore, there are large areas located seaward of 200 nm limits subject to overlapping maritime claims that will ultimately demand resolution, most obviously through the delimitation of extended continental shelf boundaries.55

Evolving Approaches to Maritime Delimitation

Despite the lack of agreement on the outer limit of the continental shelf after the Truman Proclamation in 1945, States had started to delimit continental shelf boundaries between them. Since this was a new area of law, there were no clear rules on how to delimit such maritime zones. Chile, Peru and Ecuador, for example, agreed in 1952 on boundary lines consistent with parallels of latitude seaward from the land boundary terminus (or, rather, termini) between them.56 The lines were multipurpose boundaries that extended to a distance of 200  nm from their respective coasts. In 1958, the u.k. defined maritime boundaries between Malaysia and Brunei Darussalam that covered three nm territorial sea and an unspecified adjacent continental shelf, using a combination of an equidistance line and a line perpendicular to the general direction of the coast.57 In the same year, Saudi Arabia and Bahrain also agreed on a continental shelf boundary, mostly based on the use of the median line approach, but the northern part of the boundary diverged in order to leave the Fasht Abu-Sa-‘fah oil field on the Saudi Arabian side of the line.58 The ­agreement 55

56

57 58

C.H. Schofield and R. van de Poll, ‘Exploring the Outer Continental Shelf’, in M. Lodge and K. Zhang (eds.), Implementation of Article 82 of the United Nations Convention on the Law of the Sea. Report of the International Workshop convened by the International Seabed Authority in collaboration with the China Institute for Marine Affairs in Beijing, the People’s Republic of China, 26–20 November, 2012, isa Technical Study No.12, (Kingston, Jamaica: International Seabed Authority, 2013), p. 72. Agreement between the Government of Chile and the Government of Peru Relating to the Maritime Boundary between Chile and Peru, 18 August 1952 (entered into force 23 ­September 1954), reprinted in Charney and Alexander, supra note 7, p. 799; Agreement between the Government of Peru and the Government of Ecuador Relating to the Maritime Boundary between Peru and Ecuador, 18 August 1952 (entered into force 7 February 1975), ibid., p. 835. Sarawak (Definition of Boundaries) Order in Council, 1958, no. 1518, 11 September 1958, ibid., p. 924. Agreement between the Government of Bahrain and the Kingdom of Saudi Arabia Concerning Delimitation of the Continental Shelf, 22 February 1958 (entered into force 26 February 1958), ibid., p. 1495.

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did, however, define a hexagonal zone around the oil field, which had previously been contested between the parties, and provided for equal sharing of revenues derived from its exploitation.59 During the negotiation of unclos i, the negotiating States preferred the use of median line based on the principle of equidistance from the respective coastlines.60 The negotiating States also agreed with the ilc as to the existence of special circumstances as exceptions to the median line/equidistance rule.61 In the years following unclos i, States continued to delimit the continental shelf largely based on the principles laid down in the Continental Shelf Convention by using the equidistance method. unclos iii witnessed a lack of consensus on the inclusion of equidistance as a preferred method of delimitation for the continental shelf and the eez. This translated into the ambiguous wording contained in the losc. Articles 74 and 83 of the losc dealing with delimitation of the eez and the continental shelf respectively merely call in identical general terms for agreement to be reached on the basis of international law in order to achieve ‘an equitable solution’.62 No preferred method of delimitation is indicated. Instead, all potentially relevant circumstances are to be weighed within the delimitation equation with the objective of achieving an equitable result. This marked shift away from equidistance as a preferred method of delimitation, at least in the first instance, can be largely attributable to the icj’s ruling in the North Sea Continental Shelf Cases of 1969.63 In its judgment, the icj declared that every coastal State has jurisdiction over the seabed that is a natural prolongation of its land territory.64 This decision was significant in that it confirmed that coastal States have jurisdiction over their continental shelf while also recognising the importance of the principle of natural prolongation in determining whether a State is entitled to a continental shelf. Although the icj was of the opinion that the Continental Shelf Convention did not “­ embody or crystallize any pre-existing or emergent rule of customary law”,65 the Court recognised the inherent sovereign rights of coastal States to explore and e­ xploit 59

Specifically, the agreement provides that the exploitation of the oil resources in this area will be carried out in the way chosen by the King of Saudi Arabia “on the condition that he grants to the Kingdom of Bahrain one half of the net revenue accruing to the Government of Saudi Arabia and arising from this exploitation”, ibid., Second Clause. 60 Continental Shelf Convention, Art. 6. 61 International Law Commission, supra note 17, p. 216. 62 losc, Arts. 74 and 83. 63 See North Sea Continental Shelf Cases, supra note 43. 64 Ibid., para. 19. 65 Ibid., para. 69.

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the natural resources in the area of the continental shelf that constitute a natural prolongation of their land territories into and under the sea.66 Further, with regard to the delimitation of the continental shelf, the icj concluded that States should apply the principle of equitability.67 Although the icj noted that a median line between opposite States usually resulted in an equal division of the maritime space involved,68 and that the majority of maritime boundary agreements at the time were based on the equidistance principle,69 the Court concluded that the provisions relating to equidistance in the Continental Shelf Convention had not become customary international law and were not obligatory.70 The icj also stated that the use of the median line/­equidistance principle in certain circumstances (in this case, Germany’s concave coastline) can lead to an unnatural or unreasonable result.71 The icj, thus, developed new criteria, and stated that the delimitation of the continental shelf between adjacent States should be equitable72 and take into account the relevant circumstances, such as the configuration of the coast.73 Moreover, the Court ruled that natural prolongation should be a key consideration in delimiting the continental shelf. In particular the icj ruled that: …delimitation is to be effected…in such a way as to leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, ­without encroachment on the natural prolongation of the land territory of another state.74 According to this approach, each coastal State should have rights over that part of the continental shelf forming a natural prolongation of its land territory into and under the sea. Thus, the location of the maritime boundary should 66 67 68 69 70

71 72 73 74

Ibid. Ibid., para. 23. Ibid., para. 57. Ibid., para. 75. In particular the examples drawn from State practice cited by the parties to the dispute and concluded following the signature of the Continental Shelf Convention. Ibid., paras. 70–82 and 101(a). Indeed, the Court asserted that there was “not a shred of evidence” that the States that had agreed to equidistance-based maritime boundary ­agreements had done so because they “believed themselves to be applying a mandatory rule of customary international law”, ibid., para. 76. North Sea Continental Shelf Cases, supra note 43, para. 24. Ibid., para. 55. Ibid., para. 91. Ibid., para. 101.

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be determined, or at least influenced, by the geophysical characteristics of the sea floor, notably its geology (composition and structure) and geomorphology (shape, form and configuration). The introduction of the 200  nm eez, encompassing both the continental shelf and the overlying water column, led to significant changes in the approach to maritime delimitation, at least within 200  nm of the coast. In ­particular, three years after the losc was opened for signature in 1982, the icj in its judgment in the Libya/Malta Case effectively dismissed any role for geophysical factors in determining the course of boundary delimitation within 200 nm of the coast. Noting developments in the international law of the sea the Court observed that as States were now entitled to claim continental shelf extending as far as 200 nm from its coast: …whatever the geological characteristics of the corresponding seabed and subsoil, there is no reason to ascribe any role to geological or geophysical factors…either in verifying the legal title of the States concerned or in proceeding to a delimitation as between their claims.75 Subsequently, international courts and tribunals have termed the method of delimitation applicable to the eez and continental shelf delimitation as ­contained in Articles 74 and 83 (and in customary international law) as the ­equitable principles/relevant circumstances method. For example, in the Cameroon/Nigeria Case the icj stated explicitly that: The Court has on various occasions made it clear what the applicable criteria, principles and rules of delimitation are when a line covering several zones of coincident jurisdictions is to be determined. They are expressed in the so-called equitable principles/relevant circumstances method.76 The Court went on to note that this method is “very similar to the equidistance/ special circumstances” method applicable in delimitation of the t­erritorial sea.77 The vague nature of these articles, which were among the last to be agreed at unclos iii, resulted from disagreement between the negotiating States. 75 76 77

Case Concerning the Continental Shelf (Libyan Arab Jamahiriya/Malta), Judgment of 3 June 1985, icj Reports, para. 39. Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria; Equatorial Guinea intervening), 2002 icj Reports 303, para. 288. Ibid.

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The difference of view was essentially between two camps – whilst some States preferred an ‘equidistance/special circumstances’ rule, others favoured delimitation on the basis of ‘principles of equity’. The end result was a compromise text which places particular emphasis on the objective of the delimitation, utilising an alternative form of words not reflective of either side’s view and thus acceptable to both.78 As the Arbitral Tribunal in the Eritrea-Yemen A ­ rbitration stated in reference to Article 83, this was “a last minute endeavour… to get agreement on a very controversial matter”, and therefore, “consciously designed to decide as little as possible”.79 Be that as it may, the delimitation provisions for the continental shelf and the eez, contained in Articles 74 and 83 of the losc, are identical in eschewing a preferred method of delimitation and simply calling for the delivery of an equitable solution. More recently, the icj, most strikingly through the Black Sea Case of February 2009, has articulated a three-stage approach to the ­delimitation of a maritime boundary. First, and “[i]n keeping with its settled jurisprudence on maritime delimitation”,80 a provisional delimitation line should be established using geometrically objective methods.81 In this context it was stated that “an equidistance line will be drawn unless there are compelling reasons that make this unfeasible in the particular case” [emphasis added].82 Once a provisional, equidistance-based delimitation line has been established, at the second stage the Court is to assess “whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result”.83 The third stage outlined by the Court in the Black Sea Case involved the verification of the line as resulting in a potential delimitation line, which may or may not have been adjusted, through what the Court termed a ‘disproportionality test’.84 This three-stage 78

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81 82 83 84

R. Beckman and C.H. Schofield, ‘Moving Beyond Disputes over Island Sovereignty: icj Decision Sets Stage for Maritime Boundary Delimitation in the Singapore Strait’, 40 Ocean Development and International Law, Volume, 2009, pp. 11–12. Arbitration between Eritrea and Yemen, Award of the Arbitral Tribunal in the Second Stage of the Proceedings (Maritime Delimitation), Award of 17 December 1999, 40 International Legal Materials, 2000, 983, para. 116. Case Concerning Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment of 3 February 2009, available at ­[hereinafter Black Sea Case], para. 118. Ibid., para. 116. Ibid. Ibid., para. 120. At this point the Court cited its earlier Judgment in the Cameroon/Nigeria Case (para. 288) in support of its ruling. Ibid., paras. 122 and 210–216.

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approach to delimitation has been followed in subsequent decisions, notably the by the International Tribunal on the Law of the Sea (itlos) in the Bay of Bengal Case,85 and by the icj in the Nicaragua/Colombia Case in spite of the geographical complexities of the case.86 In light of the fact that the provisions applicable to both continental shelf and eez delimitation are essentially identical and given that the three-stage approach to delimitation applies to both seabed and water column jurisdiction, one might expect the delimitation of continental shelf and eez boundaries would result in a boundary line that is coincident for both zones. Where States have set out to establish a boundary for both seabed and water column jurisdiction rights at the same time, for instance through the delimitation of an eez boundary out to the 200 nm limit, there has indeed proven to be a pronounced preference for such ‘single maritime boundaries’.87 Further, where a continental shelf boundary has been established prior to the introduction of the eez, States have often seen the virtues of clarity and simplicity in having a coincident delimitation line applicable to the overlying water column also and, in effect, ‘upgraded’ their continental shelf boundary agreement to one applicable to the eez. A recent, striking example of this practice is provided by two agreements between the Irish Republic and the United Kingdom. In their agreement of 1988, Ireland and the United Kingdom delimited a complex ‘staircase’ continental shelf boundary.88 Despite the difficulties, for instance in relation to fisheries enforcement, that might be anticipated were this delimitation line for seabed and subsoil to be applied to the overlying water column also, in 2013 Ireland and the u.k. nonetheless did convert this continental shelf delimitation line to one applicable to the eez. This necessitated some relatively minor ­adjustments along the line which were achieved through the exchange of equivalent areas 85

Dispute Concerning Delimitation of the Maritime Boundary in the Bay of Bengal (Bangladesh v Myanmar) (Judgment) itlos, 2012, Rep 4 [Bay of Bengal Case]. 86 These geographical complexities included the existence of numerous Colombian islands, notably San Andrés, Providencia and Santa Catalina and associated features, which lie 105–124 nautical miles off the mainland coast of Nicaragua while simultaneously around 380 nm from the mainland of Colombia. Territorial and Maritime Dispute (Nicaragua v Colombia), [2012] icj Rep 624, 695–697, para. 22. 87 Out of 148 boundary agreements concerning eez and continental shelf concluded after 1982, 82 per cent are multipurpose ‘single maritime boundaries’. 88 See Agreement between the Government of the United Kingdom of Great Britain and ­Northern Ireland and the Government of the Republic of Ireland concerning the delimitation of areas of the continental shelf between the two countries, 7 November 1988 (in force 11 January 1990), available at .

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and equivalent potential for exploitation. It was anticipated that potentially problematic maritime enforcement issues would to a large extent be sidestepped in this case thanks to the fact that both States are part of the European Union and therefore fisheries are subject to common approaches. However, the u.k.’s impending withdrawal from the European Union potentially raises concerns over fisheries enforcement issues. That said, Ireland and the u.k. have longstanding navy-to-navy relationships and cooperation together with wellestablished operational understandings on maritime enforcement issues.89 Moreover, even when States decided to bring a delimitation dispute to a third party dispute resolution, such as the icj, they usually asked the court or arbitration to delimit a single maritime boundary.90 While the trend towards single maritime boundaries for the sake of simplicity and convenience is hardly surprising, in certain circumstances such coincident lines may not be either ideal or possible. Consequently, separate lines may yet be desirable and, indeed, there is arguably increasing scope and demand for more sophisticated, multijurisdictional boundary solutions.

Multiple Boundaries in Practice

The losc does not mandate the creation of a single all-purpose ­maritime boundary,91 thus allowing States the flexibility of agreeing to multiple boundaries.92 The two regimes have different origins; one is based on natural ­prolongation while the other is based on distance.93 The Chamber of the icj in the Gulf of Maine Case reflects that “there is no material impossibility” to ­multiple boundaries.94 This section highlights two situations where separate delimitation lines for seabed and water column jurisdiction have been ­delimited: in the Torres Strait between Australia and Papua New Guinea (png) and in the Timor Sea between Australia and Indonesia.

89

C.H. Schofield, ‘Cooperative Mechanisms and Maritime Security in Areas of Overlapping Claims to Maritime Jurisdiction’, in P. Cozens and J. Mossop (eds.) Capacity Building for Maritime Security Cooperation in the Asia-Pacific (Wellington: Centre for Strategic Studies: New Zealand, 2005), 99–115, p. 114. 90 See Barbados v. Trinidad and Tobago (2006) 45 ilm 798, p. 243. 91 D.W. Bowett, The Regime of Islands in International Law (Oceana Publications, 1978), p. 189. 92 For arguments advocating for a single boundary, see Kaye, supra note 47, pp. 58–59. 93 Ibid., p. 57. 94 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), Judgment (1984) icj Reports 246, p. 267.

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Australia–Papua New Guinea Australia is separated from png by the Torres Strait, which at its closest point extends 93 nm between the Cape York Peninsula of Australia in the south and the Western Province of Papua New Guinea in the north. Australia and png concluded a treaty dealing with sovereignty and maritime boundaries in the maritime areas between them, notably the Torres Strait, in 1978.95 The agreement is a complex one that took six years to negotiate and a further six years to ratify as a result of the novel implementing legislation required.96 The area to be delimited—particularly the Torres Strait—is geographically complex and host to a profusion of islands and reefs. Moreover, it is located at the meeting point of the Pacific and Indian Oceans. As a result the region is affected by notoriously violent tidal streams of up to seven knots.97 These factors make navigating through the Torres Strait a hazardous task. Despite these navigational challenges, the Strait represents an increasingly important route for shipping, being the principal navigational route between South East Asia and Eastern Australia and the South Pacific. Further considerations that needed to be taken into account in the negotiations leading to the 1978 agreement included environmental factors, notably the fact that the Torres Strait lies to the north and west of and is connected to Australia’s Great Barrier Reef.98 The area is also home to significant indigenous cultures and communities, which have engaged in an ongoing and significant fisheries activity and trade throughout the Strait region.99 The agreement resolved outstanding sovereignty issues and also provided for innovative jurisdictional and management arrangements. The agreement recognised each side’s sovereignty over particular islands and confirmed that most of the islands in the Torres Strait are under Australian sovereignty. ­Australia did, however, recognise Papua New Guinea’s sovereignty over three uninhabited islands (Kawa, Mata Kawa and Kussa Islands) that it had previously regarded as Australian.100 The agreement provided for recognition and preservation of the rights of the indigenous peoples of the Strait to continue 95

Treaty between Australia and the Independent State of Papua New Guinea concerning sovereignty and maritime boundaries in the area between the two countries, including the area known as Torres Strait, and related matters, 18 December 1978 (entry into force, 15 February 1985). Treaty text available at Australian Treaty Series, 1985, p. 4. 96 Charney and Alexander, supra note 7, p. 929. 97 See in particular, S.B. Kaye, The Torres Strait, International Straits of the World, Volume 12, (The Hague, Martinus Nijhoff, 1997), pp. 1–22. 98 Ibid., pp. 121–133. 99 Ibid., pp. 55–76. 100 Treaty between Australia and the Independent State of Papua New Guinea, Art. 2(3).

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to manage their traditional activities, and the cross boundary allocation of fisheries resources between the littoral together with ongoing management of the Strait region through a joint authority. The agreement also explicitly provides for the maintenance of freedom of navigation rights through the region and specifically transit passage rights through the Torres Strait Islands ­themselves.101 Importantly for the present discussion, the agreement provides for the establishment of a protected zone encompassing the Torres Strait, the enclaving of certain Australian islands,102 and the separation of the seabed and water column boundaries within that zone. Thus, while the seabed boundary follows an adjusted equidistance line, the fishing zone boundary turns sharply to the north to enclave the inhabited Australian islands of Saibai, Dauan and Boigu before turning southward to re-join the seabed boundary (see Figure 12.1).103 The objective of the protected zone, under the management of the Torres Strait Protected Zone Joint Authority (pzja), was to safeguard traditional fishing activities and the free movement of traditional inhabitants, to regulate commercial fisheries and to protect the marine environment. The agreement included a moratorium on oil and gas exploration within the protected zone. The Torres Strait Treaty provided for the establishment of a joint advisory council set up to promote cooperation,104 and also provides a detailed regulatory regime which is designed to protect traditional rights while promoting cooperative development of commercial fisheries.105 The innovative separation of continental shelf and fisheries boundaries within the joint zone allowed the parties to take into consideration the 101 Ibid., Art. 7. 102 The agreement provides that the territorial seas of specific, listed islands “shall not extend beyond three miles” from the relevant baselines and that, furthermore, the territorial seas in question “shall not be enlarged or reduced, even if there were to be any change in the configuration of the coastline or a different result from any further survey”. This had the consequence of creating 3 nm-breadth territorial sea enclaves around several Australian islands located in the northern part of the Torres Strait, see Treaty between Australia and Papua New Guinea, Art. 3. 103 See for example, S.B. Kaye, Australia’s Maritime Boundaries, 2nd edition, Wollongong Papers on Maritime Policy, 12, (Wollongong: Centre for Maritime Policy, 2001), pp. 104–106. 104 See, ibid., pp. 104–105; see also D. Renton, ‘The Torres Strait Treaty after 15 Years: Some Observations from a Papua New Guinean Perspective’, in J.R. Crawford and D.R. Rothwell (eds.), The Law of the Sea in the Asian Pacific Region, (Dordrecht, Martinus Nijhoff, 1995), pp. 171–180. 105 Under Art. 23 of the Treaty, revenues are split 75:25 according to whose jurisdictional sector of the zone the fish are caught in.

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Figure 12.1  Maritime zones and boundaries in the Torres Strait

e­ xistence of numerous Australian islands in the northern parts of the Torres Strait extremely near to the Papua New Guinean coast (the closest being only approximately 500 metres offshore). Had a delimitation line been defined on the basis of equidistance, the presence of these islands would have resulted in the vast majority of the Torres Strait being located on the Australian side of the line. Such an outcome was viewed as an inequitable one. Instead, a continental shelf boundary was defined centrally in the Torres Strait, midway between the mainland coasts of both States. A fisheries boundary was then defined around the Australian islands in the northern part of the Torres Strait, passing close to the png coast. Thus, in this area the png seabed underlies the Australian water column (see Figure 12.1). Australia–Indonesia In the early 1970s, Australia and Indonesia concluded two continental shelf boundary agreements. One relates to the seabed and subsoil between the two countries in the Arafura Sea in the east while the other divides the seabed in the Timor and Java Seas to the west. The agreement related to the Arafura Sea was concluded in 1971 and is a quite straight forward, median line-based delimitation since there is no significant feature in the seabed of the area to be

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delimited.106 This is not the case for the western part of the boundary. While Indonesia had claimed that the boundary line should be delimited on the basis of equidistance between the two countries’ opposite coastlines, Australia instead argued that the boundary should be determined in accordance with the concept of ‘natural prolongation’. The latter argument proved to be especially persuasive since the discussions leading to the line agreed in 1972 took place immediately after the icj had handed down its judgment in the abovementioned North Sea Continental Shelf Cases of 1969 where the Court ruled that natural prolongation should be a key consideration in delimiting the continental shelf. Accordingly, Australia argued that two continental shelves existed in the Timor Sea divided by the Timor Trough, which reaches depths in excess of 3,000 metres, running parallel to the island of Timor.107 In accordance with the North Sea Continental Shelf Cases, the boundary line therefore should accord with a line approximating the axis of the Timor Trough. As this submarine feature lies substantially nearer to the Indonesian rather than the Australian coast, a seabed boundary fixed on this basis would lie well to the north and west of the median line in the Timor Sea and thus be greatly to Australia’s advantage. Ultimately, a compromise line was agreed upon that follows the southern edge of the Timor Trough. Nonetheless, the final seabed delimitation line still lies well on the Indonesian side of the median line between opposite coasts.108 Indeed, it has been estimated that Australia secured around 80 per cent of the area subject to overlapping claims as a result of the two States’ initial claims

106 Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia establishing certain seabed boundaries, 18 May 1971 (entered into force 8 November 1973), 974 unts 307. See also J.I. Charney and L.M. Alexander, (eds.), International Maritime Boundaries, Volume ii, (Dordrecht: Martinus Nijhoff, 1993), pp. 1,195–1,205. 107 Kaye, supra note 103, p. 47. 108 Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas Supplementary to the Agreement of 18 May 1971, 9 October 1972. For treaty text, see . See also, Charney and Alexander, ibid., pp. 1,207–1,218. The final seabed delimitation line between Australia and Indonesia agreed in 1972 appears to be consistent with the 200 metre depth isobath on the southern side of the trough, rather than either its axis (Australia’s position) or the median line (Indonesia’s position). See Kaye, supra note 103, p. 49.

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Figure 12.2  Maritime boundaries and joint zones in the Timor Sea

(see Figure  12.2).109 Here it is worth noting that Australia’s seabed boundaries with Indonesia in the Arafura and Timor Seas were negotiated prior to Indonesia’s 1975 occupation and subsequent annexation of East Timor, creating a discontinuity in the line which became commonly referred to as the ‘Timor Gap’. Following Indonesia’s invasion and annexation of East Timor and 109 Charney and Alexander, ibid., pp. 1,210–1,211. See also Kaye, ibid., pp. 47–50; and, S.B. Kaye, ‘East Timor and Maritime Boundary Delimitations’, in R. Heath and B. Snushall, (eds.), Protecting Maritime Resources: Boundary delimitation, resource conflicts and constabulary responsibilities, (Canberra: Sea Power Centre Australia, 2003), pp. 51–59.

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­ anberra’s subsequent acceptance of Indonesian sovereignty over East Timor, C boundary negotiations for the Timor Gap were initiated in order to join up the separate sections of their existing maritime boundary agreements to the east and west. In light of the introduction of the eez concept and related evolutions in approaches to maritime delimitation, Indonesia steadfastly refused to simply ‘join the lines up’ and agree to a further natural prolongation-based boundary. Indeed, there was considerable resentment on the Indonesian side concerning the earlier agreements.110 This impasse was overcome through the application of a joint zone solution – the Timor Gap Zone of Cooperation.111 The Timor Gap was heralded as the most complex, comprehensive and sophisticated maritime joint development zone ever concluded.112 Ironically, this sophisticated joint development agreement is now defunct as a consequence of the independence of Timor Leste. The central part of the Timor Gap Zone of Cooperation (Zone A) lives on in a sense, however, as the Joint Petroleum Development Area (jpda) defined in the Timor Sea Treaty concluded between Australia and Timor Leste in 2002 is identical in scope.113 These arrangements 110 Indonesia was, in the words of former Indonesian Foreign Minister Mochtar, “taken to the cleaners” by Australia when these agreements were negotiated; quoted in Kaye, supra note 103, p, 54. 111 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of east Timor and Northern Australia, 11 December 1989. See, Charney and Alexander, ibid., pp. 1,245–1,328. For treaty text, see . The Timor Gap Zone of Cooperation covered an area of 60,500 km2 and effectively plugged the Timor Gap. It was divided into three ­sub-zones – a central Zone A where revenues were to be shared on a 50:50 basis, a smaller Zone B to the south where sharing was on the ratio 90:10 in favour of Australia and a narrow Zone C, where the ratio was 90:10 in favour of Indonesia. 112 See for example, H. Fox, (ed.), Joint Development of Offshore Oil and Gas, Volumes i and ii, (London: British Institute of International and Comparative Law, 1989 and 1990). The agreement includes extremely detailed provisions within the main Treaty as well as four substantial Annexes and was seemingly designed to cater for all conceivable issues that might arise relating to petroleum exploration and exploitation in the Zone of Cooperation. 113 Timor Sea Treaty, Dili, 20 May 2002, for treaty text see: . The Timor Sea Treaty came into effect on the same day that Timor Leste gained independence. Prior to that date an exchange of notes between the governments of Australia and East Timor served to allow oil and gas exploration activities to proceed unchecked in the area that was to become the jpda. See: Exchange of Notes constituting an Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste concerning Arrangements for Exploration and Exploitation of Petroleum in an Area of the Timor

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were subsequently s­ upplemented through the Treaty on Certain Maritime Arrangements in the Timor Sea (cmats) of 23 February 2007.114 Unsurprisingly, neither of the aforementioned continental shelf boundary agreements between Australia and Indonesia addresses fisheries issues – something that proved to be of increasing concern to both States. In particular, Indonesia’s fishermen, however, have been conducting traditional fishing in the waters around the Ashmore Islands,115 which are small islets under Australian sovereignty located approximately halfway between Australia’s mainland and Indonesia’s main archipelago in the Timor Sea. To address this, both States signed a Memorandum of Understanding in 1974 in which Australia allows Indonesian fishermen to continue their traditional fishing activities, which includes fishing for sedentary species within the waters around the Ashmore Islands.116 In 1979, when it became obvious that the eez regime would be passed, ­Australia declared a 200 nm fishing zone from its baselines.117 The adoption of distance criteria to determine the outer limit of the eez meant that the natural prolongation principle in drawing boundaries had lost its importance.118 In the same declaration in 1979, Australia decided not to use the natural prolongation principle to draw boundaries where there were overlapping claims with its neighbours, but instead opted for a line of strict equidistance.119 This meant that in the Arafuru and Timor Seas, the equidistance line lay south of the seabed boundaries previously agreed with Indonesia.

Sea between Australia and East, Dili, 20 May 2002, available at: . Nonetheless, Article 8 of the Exchange of Notes reads: “In agreeing to continue the arrangements in place on 19 May 2002, pending entry into force of the [Timor Sea] Treaty, the Government of the Democratic Republic of East Timor does not thereby recognize the validity of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (the ‘Timor Gap Treaty’) or the validity of the ‘integration’ of East Timor into Indonesia.” 114 Department of Foreign Affairs and Trade, ‘Entry into Force of Greater Sunrise Treaties with East Timor’, Alexander Downer, Minister of Foreign Affairs, Australia, media release, 23 February 2007. See . 115 Kaye, supra note 103, p. 51. 116 The text of the Memorandum of Understanding is reprinted in 11 Australian Yearbook of International Law, 1991, 268–269. 117 Charney and Alexander, supra note 106, p. 1229. 118 Kaye, supra note 103, p. 51. 119 Charney and Alexander, supra note 106, p. 1229.

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Rather than renegotiating the continental shelf boundary, both States instead chose to respect the existing continental shelf boundary and negotiate a separate one for the water column. Indonesia was prepared to accept the equidistance method for drawing the fishing boundary as proposed by ­Australia, but argued that in the western segment the line should be adjusted. This is because of the location of the Ashmore Islands, which if taken into account, would push the equidistance line closer to Indonesia.120 Indonesia argued that small uninhabited features like the Ashmore Islands should not be given full effect in drawing the boundary. In 1981, both countries signed another Memorandum of Understanding agreeing to implement a provisional fisheries boundary that gives less effect to the Ashmore Islands, giving Indonesia 70 per cent of the disputed area.121 This was revised in 1997 when the two countries signed a boundary agreement,122 which follows the boundary of the provisional fishing boundary, with the exception that it gives a greater consideration to the Ashmore Islands, enclaving them with 24 nm arcs instead of the 12 nm ones provided in the provisional agreement.123 This has created an unusual situation whereby there are substantial portions of the central and northern Timor Sea where Australia has jurisdiction over the continental shelf by virtue of the 1972 seabed treaty and Indonesia has jurisdiction over the overlying water column thanks to the 1981 and 1997 agreements (see Figure 12.2). The 1997 Agreement provided that Indonesia’s eez sovereign rights and jurisdiction are limited to the water column, and that Australia’s continental shelf sovereign rights and jurisdiction apply to the seabed.124 The 1997 Agreement also aims to allow both States to exercise their jurisdiction independently of each other, while upholding the ‘due regard’ principle, which 120 Ibid. 121 Memorandum of Understanding between the Government of the Republic of Indonesia and the Government of Australia Concerning the Implementation of a Provisional Fisheries ­Surveillance and Enforcement Arrangement, 29 October 1981, see Charney and Alexander, supra note 106, pp. 1,229–1,243. See also Kaye, supra note 103, p. 53. 122 Treaty between the Government of Australia and the Government of the Republic of Indonesia establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, 14 March 1997, atnif 4 [Treaty between Australia and Indonesia]. 123 Kaye stated that the 1997 agreement “provided for a water column boundary that was based on an equidistance line in all areas except between Christmas Island and Java, which substantially favoured Indonesia, and reflected the relative size of the islands”, see S.B. Kaye, ‘Joint Development in the Timor Sea’ in R. Beckman, I. Townsend-Gault, C. Schofield, T. Davenport and L. Bernard, (eds.), Beyond Territorial Disputes in the South China Sea: Legal Framework for the Joint Development of Hydrocarbon Resources (Edward Elgar, 2013), p. 252. 124 Treaty between Australia and Indonesia, supra note 122, Art. 7.

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means that notice is required before either party undertakes any activities in the sea or seabed that could potentially interfere with the jurisdiction and/or enjoyment of the other.125 However, the 1997 Agreement has yet to come into force, and both States still operate based on the 1981 provisional agreement.

Trouble between the Lines?: Challenges Associated with Multiple Boundaries

Clearly, the eez, dealt with under Part v of losc, and which encompasses ­seabed and subsoil rights and the ‘water superjacent’,126 overlaps with the continental shelf regime addressed under Part vi with respect to sovereign rights relating to the sea-bed and subsoil. The losc seeks to resolve potential tensions arising from this issue through the requirement that in exercising eez rights coastal States “shall have due regard to the rights and duties of other States and shall act in a manner compatible with the provisions” of the losc,127 together with a sweeping provision that “[t]he rights set out in this article with respect to the sea-bed and subsoil shall be exercised in accordance with Part vi”.128 However, uncertainties remain in a number of areas. As Kaye has observed, a number of direct and indirect inconsistencies exist between the continental shelf and eez regimes which are only partially resolved under the losc.129 In particular, it is observed that whilst Article 56 neatly resolves the issue of applicable law within its own jurisdiction it “does nothing to resolve the difficulty of differing coastal States having jurisdiction over continental shelf and eez in the same area”.130 He goes on to highlight the construction of artificial islands, installations and structures as an “area of potential concern”.131 Here it can be noted that while Article 60 relating to artificial islands, installations and structures forms part of Part v of the losc dealing with the eez, these provisions also apply to the continental shelf.132 Clearly, in a situation 125 For example, the construction of any installation or structure that is not an artificial ­island must be preceded by ‘due notice’; ibid., Art. 7(e). 126 losc, Art. 56(1). 127 Ibid., Art. 56(2). 128 Ibid., Art. 56(3). 129 Kaye, supra note 47, pp. 49–72. 130 Ibid., p. 51. 131 Ibid., p. 53. 132 Article 80 of the losc, which falls under Part vi of the Convention concerning the ­continental shelf, provides that “Article 60 applies mutatis mutandis to artificial islands, installations and structures on the continental shelf”.

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of bifurcated eez and continental shelf delimitation lines a particular artificial island, i­nstallation or structure cannot be under the jurisdiction of both coastal States, at least not without agreement between them to that effect. Kaye suggests that this issue was apparently not foreseen by the drafters of the losc and asserts that the losc “provides no clue” as to how this situation is to be dealt with.133 Further indirect inconsistencies are also noted in relation to marine pollution events and the conduct of marine scientific research.134 The fundamental challenge facing two coastal States in dealing with separate or multiple continental shelf and eez (water column) boundaries is how each State can enjoy its sovereign rights without interference from the ‘other’ side. For instance, if the ‘shelf State’ is to proceed with exploration and ­exploitation of the continental shelf it is inevitable that the installations and structures involved, and their associated safety zones, will impair the ‘eez State’ from full enjoyment of its right to fish in the water column overlying the shelf in question. With respect to the examples of State practice outlined above, these i­ssues were addressed in differing ways. With respect to the complex arrangements relating to the Torres Strait, the establishment of a large protected zone within which a moratorium on oil and gas exploration was agreed upon serves to largely sidestep any potential tensions between eez and continental shelf rights. For example, given the prohibition on mineral resource activities within the protected area, including the area where water column and seabed boundaries diverge, there is scant likelihood of the need to construct artificial islands, installations and structures, especially those commonly associated with oil and gas exploration and production. In contrast, the 1997 Australia-Indonesia Treaty anticipates potential ­tensions arising from separate eez and continental shelf boundaries and deals with it through agreement on provisions indicating that both sides will ­undertake activities with due regard to the rights of the other.135 However, in a critical analysis of this treaty, Herriman and Tsamenyi have suggested that these arrangements are inadequate.136 In particular, they note that whilst under the terms of the agreement Australia has an obligation to inform I­ ndonesia 133 Kaye, supra note 47, p. 52. 134 Ibid., pp. 54–56. 135 See in particular, Treaty between the Government of Australia and the Government of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, Art. 7. 136 M. Herriman and M. Tsamenyi, ‘The 1997 Australia-Indonesia maritime boundary treaty: A secure legal regime for offshore resource development?’, 29:4 Ocean Development and International Law, 1998, pp. 373–375.

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of the construction of artificial islands, installations and structures whilst not diminishing “in any way Indonesia’s sovereign rights and jurisdiction” over their construction in the area of overlapping jurisdiction.137 Noting that the 1997 treaty is “silent on matters that could well be contentious” they conclude that the agreement places Australia at a potential disadvantage as its continental shelf rights in the area of overlapping jurisdiction “might only be enjoyed largely at Indonesia’s pleasure” whilst Indonesia’s eez rights would be largely unfettered meaning that the maintenance of good relations between the parties is crucial to it functioning, especially from the Australian perspective.138 Some of the practical challenges associated with dealing with separate seabed and water column boundaries are illustrated by fisheries surveillance and enforcement activities in the area of overlapping jurisdictions. For example, in April 2008, the Australian Fisheries Management Authority (afma) was reported to have apprehended 33 vessels suspected of illegal fishing off the coast of Northern Australia.139 It subsequently emerged that nine of the vessels involved, and their 55 crew who had been detained, were not, in fact, engaged in illegal fishing in Australian waters.140 Another challenge with separate seabed and water column boundaries is to ensure that any activities conducted in the water column would not affect the seabed, and vice versa. The probability of the first scenario occurring is rare, but not impossible. In 1970, when the vessel Oceanic Grandeur ran aground and spilled oil in the Torres Strait, the pearl oyster industry in the strait was decimated for the next 18 months due to a strange disease resulting from the spill.141 The second scenario, where the seabed activities affected the water c­ olumn, would appear to be more likely to happen. Unsurprisingly, activities on the seabed, such as hydrocarbon drilling and transferring gas or oil through a pipeline, have a higher risk of causing pollution. Even without the ­overlapping 137 Ibid., p. 373. 138 Ibid., p. 378. 139 See House of Representatives of Australia, Hansard, Questions without Notice, Illegal ­Fishing, 15 May 2008 and Questions without Notice: Additional answers, Illegal Fishing, 26 May 2008, available at and . 140 Ibid. 141 The spill happened before Australia and Papua New Guinea agreed on having separate boundaries for the seabed and water column. But this incident shows that shipping activities could have an impact on the seabed activities; see Kaye, supra note 97, p. 122.

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j­urisdiction caused by the multiple boundaries, this scenario is likely to come about where the activities of a shelf State related to the exploitation of seabed hydrocarbons cause pollution that spreads to the waters of another State. When the Montara offshore oil spill occurred in 2009, the oil spill from this oil field located 50  nm within Australia’s eez spread to Indonesian waters and affected Indonesian fishing activities. While it is clear that Australia has jurisdiction over the seabed and water column in the area where the Montara oil field is located,142 the platform’s proximity to the water column boundary with Indonesia proved to be highly problematic for Australia’s neighbour.143 The spill continued for 74 days,144 and it affected not only Indonesia’s waters, but also Australian waters where Indonesian fishermen have traditional fishing rights.145 Thus, the management of having multiple maritime boundaries will require close cooperation and coordination from the two States to be able to manage the various risks from the exploitation of natural resources in the overlapping area.

Possible Situations for Multiple Boundaries

Although Australia is the only State who has two agreements with two different States establishing different boundaries between the seabed and water column, Indonesia remains the one country in the world with the most possibilities for multiple boundaries agreements. Aside from the already existing multiple boundaries with Australia, multiple boundaries could be negotiated with Malaysia, Vietnam and the Philippines. These will be discussed in more detail below. North Malacca Strait On 27 October 1969, just a few months after the icj issued its judgment on the North Sea Continental Shelf Cases, Indonesia and Malaysia concluded a treaty that delimited the continental shelf boundary in the Malacca Strait 142 For an overview of the Montara Oil Spill, see Australian Government, Department of the Environment, Montara Oil Spill, available at . 143 Y. Lyons, ‘Transboundary Pollution from Offshore Activities: A Study of the Montara ­Offshore Oil Spill’, in S. Jayakumar, et al. (eds.), Transboundary Pollution: Evolving Issues of International Law and Policy (Edward Elgar, 2014), p. 162. 144 Ibid., p. 163. 145 Ibid., p. 166.

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(­ Continental Shelf Agreement).146 The Agreement claimed to be based on the equidistance principle between the baselines of Indonesia and Malaysia.147 In actuality, the boundary appears closer to the Indonesian coast than to the ­Malaysian coast. Prior to the negotiation of the Continental Shelf Agreement, Indonesia had been promoting the regime of ‘Archipelagic Waters’; and during unclos i,­ Indonesia had unsuccessfully argued the use of ‘archipelagic baselines’ to enclose mid-ocean archipelagos. When Indonesia came to negotiate the ­Continental Shelf Agreement with Malaysia, it was proposing the use of this archipelagic baseline as the base point from which to measure the boundary from their land territory. Malaysia countered Indonesia’s use of archipelagic baselines by applying the straight baselines system to enclose all its islands off the coast of the western Malay Peninsula.148 This was Malaysia’s way of achieving an equal footing in the division of the continental shelf with Indonesia, the latter having drawn straight baselines around its archipelago.149 The two countries then agreed to delimit the continental shelf boundary by drawing a median line equidistant from the straight baselines of both countries, which was in line with the approach set out in the Continental Shelf Convention.150 If baselines were ignored and equidistance was measured from the coast of both countries, Indonesia should have gained more continental shelf than what was agreed in the Continental Shelf Agreement.151 146 Agreement between the Government of Malaysia and the Government of the Republic of Indonesia on the Delimitation of the Continental Shelf between the Two Countries, 27 October 1969 (entered into force 7 November 1969), us Department of State, ­‘International Boundary Study, Series A, Limits in the Seas’, No 1, 21 January 1970 ­[Continental Shelf Agreement]. 147 Ibid., p. 7. 148 See M. Herriman and R.P. Mohamed, ‘A Malacca Straits eez Boundary: Factors for ­Consideration’, in M. Shariff, et al (eds.), Towards Sustainable Management of the Straits of Malacca (Malacca Straits Research and Development Centre: 2000), pp. 758–759. At that time, it was generally recognised that straight baselines may be employed if a coast is deeply indented or has a fringe of islands, provided that the baseline does not depart to an appreciable extent from the general direction of the coast. If a State employs straight baselines, the waters landward of the baseline are considered to be internal waters. ­However, if the use of straight baselines has the effect of enclosing as internal waters areas which were not previously considered as such, the right of innocent passage applies in such waters; see Territorial Sea Convention, supra note 30, Arts. 4–5. 149 Continental Shelf Agreement, supra note 146, p. 4. 150 Continental Shelf Convention, supra note 18, Art. 6. 151 Prescott claimed that if a strict line of equidistance was drawn in this sector, Indonesia would gain about 1,000 nm2 of continental shelf; see V. Prescott, ‘Indonesia’s Maritime

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This posed a problem after the establishment of the eez regime following the conclusion of the losc in 1982. In 1996, Malaysia unilaterally declared that it considered the continental shelf boundaries in the north Malacca Strait concluded between Indonesia and Malaysia to represent the boundary for the eez as well.152 The fact remains, however, that the Continental Shelf Agreement signed in 1969 does not extend to the body of water above it, and it is unlikely that Indonesia will concede to Malaysia’s claim. Although Indonesia has accepted Malaysia’s use of straight baselines as a basis for the delimitation of the continental shelf in the north Malacca Strait, Indonesia does not recognise the use of these straight baselines to delimit the water column in the area.153 ­Indonesia has also objected to the use of straight baselines to delimit M ­ alaysia’s territorial sea in the north Malacca Strait.154 Thus, negotiations to delimit the water column boundaries in the north Malacca Strait may lead to the establishment of a line that differs from the 1969 continental shelf boundaries. Natuna Sea The Natuna Sea is bordered by Indonesia in the south, Malaysia in the east and west and Vietnam in the north. Indonesia has a continental shelf boundaries agreement with Malaysia that was concluded in 1969.155 The western segment is an equidistance boundary line, while the eastern segment is an adjusted equidistance favouring Malaysia.156 It was reported that during the negotiation of the eastern segment, Malaysia was reluctant to give full effect to Indonesia’s

152

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Claims and Outstanding Delimitation Problems’, in ibru Boundary and Security Bulletin, Winter 1995–1996, pp. 94–95. Upon its ratification of the losc, Malaysia declared that if the maritime area is less than 200 nm from baselines, the boundary for the eez shall be the same line with the boundary of the continental shelf; see Malaysian Declaration Upon Ratification of the Convention of the Law of the Sea 1982, 14 October 1996, available at . Malaysia’s use of straight baselines does not seem to comply with the strict requirement provided in the los Convention. The icj in Qatar/Bahrain also stated that straight baselines can only be used in the strict and very limited situations as provided in Article 7 of the losc, and on the fact pattern before them decided to eliminate the disproportionate effect of small islands. See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, 2001 icj Rep 40 [Qatar/Bahrain], paras. 21, 179 & 214. Robert Smith, in personal communication to Jon van Dyke, 10 February 2003, cited in M.J. Valencia, ‘Validity of Malaysia’s Baselines and Territorial Sea Claim in the Northern Malacca Strait’, 27 Marine Policy 367, 2003, p. 372. Continental Shelf Agreement, supra note 146, at 4. Charney and Alexander, supra note 7, at 1021.

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Natuna Islands.157 Indonesia eventually agreed to adjust the equidistance line to Malaysia’s advantage in return for its support of Indonesia’s archipelagic State concept. The northern segment of the continental shelf boundary was not concluded with Vietnam until 2003,158 even though negotiation of the boundary had started as early as 1972. The fact that Indonesia agreed to give less than full effect to the Natuna Islands in the boundary negotiation with Malaysia worked to the advantage of Vietnam, and Indonesia agreed to adjust the equidistance line favouring Vietnam in the final agreement.159 None of the States bordering the Natuna Sea have agreed the boundaries for the water column yet. Judging from the official maps issued by Indonesia, any water column boundary may not necessarily follow the continental shelf boundaries. Indonesia’s forward position for the water column boundaries extends to the north of the continental shelf boundary with Vietnam, and to the east of the continental shelf boundary with Malaysia. Celebes Sea On 23 May 2014, Indonesia and the Philippines concluded a maritime boundary in the Celebes Sea.160 The Celebes Sea is bordered by the Philippines in the north, Malaysia and Indonesia in the west and Indonesia in the south and east. The initial negotiation began in 1994, but remained dormant for almost a decade before talks were reactivated again in 2003.161 Although the text of the agreement refers to the boundary as an eez boundary, it expressly excludes

157 Ibid. 158 Agreement between the Government of the Socialist Republic of Vietnam and the Government of the Republic of Indonesia concerning the Delimitation of the Continental Shelf Boundary, 26 June 2003 (entered into force 29 May 2007), 2457 unts 155, Law of the Sea Bulletin No 67, pp. 39–41, vi International Maritime Boundaries 4301–4315 (Rpt. 5–27, 2011). 159 Charney and Alexander, vol. vi, supra note 7, p. 4304. 160 Agreement between the Government of the Republic of the Philippines and the Government of the Republic Indonesia Concerning the Delimitation of the Exclusive Economic Zone Boundary, 23 May 2014 [eez Boundary Agreement], available at . 161 A.H. Oegroseno, ‘How Indonesia and the Philippines Solved Their Maritime D ­ ispute’, The Diplomat, 14 June 2014, available at .

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the continental shelf.162 Specifically, Article I(3) of the agreement states “[t]his Agreement shall not prejudice any rights or positions of the Contracting Parties with regard to the delimitation of the Continental Shelf boundary”. No reason was given for why the continental shelf was excluded, although one Indonesian official claims that both countries have yet to collect sufficient data on the continental shelf, thus the decision for the exclusion. In October 2014, both countries’ Foreign Ministers released a joint statement declaring their intentions to convene a joint technical team to discuss the delimitation of the seabed boundary in the Celebes Sea.163 The negotiation of the seabed boundary seems to be completely dependent on the geological and geomorphological factors, which may lead to a boundary that differs from the water column boundary. This would be consistent with the pattern of Indonesia not having a single all-purpose boundary. East China Sea Another area where having multiple boundaries can be an alternative solution to a dispute is the East China Sea. The East China Sea is a semi-enclosed sea bordered by China on the west, South Korea on the north, Taiwan on the South and Japan on the east. Because the widest point between China and Japan in the East China Sea is only 345 nm, there is an area where each country’s eez projection overlaps. Japan argues that the boundary should be the median line between the coasts of the two States. China, on the other hand, claims that it is entitled to an outer continental shelf beyond its eez that extends to the Okinawa Trough, located up to 277 nm from its shores.164 Japan counters that it is just as entitled to the continental shelf in the East China Sea as China because the Okinawa Trough does not constitute a break in the continental shelf (which would give a greater outer continental shelf to China), but is a continuous continental shelf between both States, meaning that the median line should be the boundary.165 This dispute could be resolved by the clcs, which is a scientific ­committee 162 eez Boundary Agreement, supra note 160, Art. I(3). 163 Joint Statement between the Republic of Indonesia and the Republic of the Philippines ­Concerning the Delimitation of the Continental Shelf Boundary, 10 October 2014, available at . 164 ‘China to submit outer limits of continental shelf in East China Sea to un’ Xinhua News (16 September 2012). 165 S.K. Kim, ‘Perspectives on East China Sea Maritime Disputes: Issues and Context’ in C. Schofield, S. Lee and M.S. Kwon (eds.), The Limits of Maritime Jurisdiction (Martinus Nijhoff Publishers, 2014), p. 291.

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that determines the existence and limits of outer continental shelf claims based on scientific evidence. On 14 December 2012, China made a submission to the clcs requesting a determination of its outer continental shelf in the East China Sea;166 however, Japan objected to China’s submission.167 The clcs is unable to consider China’s submission because of Japan’s objection. Since no coastal State can unilaterally claim an outer continental shelf without the recommendation of the clcs, the issue will remain unresolved until both China and Japan ask the clcs to determine whether the continental shelf in the East China Sea consists of one continuous shelf or two distinct continental shelves separated by the Okinawa Trough. However, such a determination regarding the continental shelf in the East China Sea may not be relevant to the delimitation of the maritime boundary between the two countries. This is because the icj has ruled that where the distance between two opposing coastal States is less than 400 nm, the distance factor, and not the geophysical factor, should be considered in determining the boundary.168 This means that in the East China Sea, regardless of whether China has an outer continental shelf beyond 200 nm, the boundary should be based on the distance factor, which would be the median line between C ­ hina and Japan.169 If this matter were to come before the icj, it is likely that the icj would follow its precedent set out in the Black Sea Case by employing the three-stage approach to delimitation and drawing a median line between ­China and Japan. At the second stage, relevant circumstances may be considered to adjust the provisional median line. Some writers argue that under the los ­Convention China is entitled to a greater adjustment of the median line in its favour ­because it is the larger country.170 This statement is inaccurate for two reasons. First, nowhere in the los Convention is it stated that a larger country is entitled to a larger maritime zone due to its size. Second, the icj has stated repeatedly that the size of the land mass of a coastal State is not a factor that 166 Submission by the People’s Republic of China to the Commission on the Limits of the Continental Shelf (clcs), ‘Outer Limits of the Continental Shelf beyond 200 nautical mile from the Baselines: Submission to the Commission’ (14 December 2012) (China’s clcs Submission), Executive Summary. 167 Communications Received from Japan with regard to China’s clcs Submission (28 ­December 2012). 168 Libya v. Malta, supra note 75, paras. 39–40. 169 Indeed, this distance criterion was argued by Japan when they sent an objection to ­China’s clcs Submission, supra note 167. See also Kim, supra note 165. 170 A. Ho, ‘What Solution to China-Japan Maritime Dispute?’ Straits Times (9 May 2014).

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can justify the adjustment of the median line.171 Rather, the determining factor is the length of the relevant coast, a factor that gives no consideration to the land size of the relevant countries. Thus, a median line adjustment may be in order if China can show that it has a longer relevant coast in the East China Sea than Japan. One possible solution to the dispute is to have separate boundaries between the seabed and the water column, with the seabed boundary following the Okinawa Trough and the water column boundary following the median line. However, both countries do not seem to be prepared to move forward with this approach.

Separate Pathways to Dispute Resolution?

It seems clear from the foregoing that in general States prefer single maritime boundaries where eez and continental shelf boundaries are coincident. Given the complexity of enforcing and managing multiple boundaries, it is easy to see why a single boundary is preferable. However, this is not necessarily always achievable. In such a situation separate delimitation lines may offer an alternative pathway to dispute resolution. This does not mean, however, that negotiating multiple boundaries is easier than negotiating a single one. Both require the same amount of political will and commitment from the disputing States to resolve their boundary disputes. However, if both States manage to get past the initial distrust and domestic politics, the multiple boundaries solution could be a plausible solution for a complex boundary dispute. Indeed, for all of the challenges associated with multiple maritime boundaries and thus separated eez and continental shelf jurisdiction, these issues are not immune from resolution and there are signs that additional practice of this type may emerge in the future. For example, as noted in the case above regarding Australia and Indonesia, separate eez and continental shelf boundaries emerged in large part because of significant evolutions in approaches to ocean boundary-making in the period between the general acceptance of coastal State rights over the continental shelf and the advent of the eez. With respect to continental shelf boundaries agreed on prior to the introduction of the eez it may not be a simple matter of ‘upgrading’ continental shelf boundaries to eez delimitation lines. Thus, in cases where the continental shelf boundary was negotiated based on the natural prolongation principle, it is likely that the State that has less natural 171 Libya v Malta, supra note 75, para. 40.

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prolongation would insist on a different boundary line for the water column. This is illustrated by Indonesia’s practice where, even though continental shelf boundaries with neighbouring States such as Malaysia and Vietnam have been agreed upon, Indonesia has nonetheless claimed eez rights extending significantly beyond these existing continental shelf boundary lines. These claims are depicted in multiple official maps of the Republic of Indonesia.172 ­Similarly, as noted above, the 2014 agreement between Indonesia and the Philippines ­appears to leave the door ajar for a multiple boundaries type of solution by not creating a single maritime boundary delimiting all of the components of the eez. Additionally, ‘provisional arrangements of a practical nature’,173 or maritime joint development zones as they are often termed, have been applied where agreement on maritime delimitation has proved hard to reach. A ­ rguably these cooperative and often jurisdictionally complex joint or shared maritime mechanisms bear some similarities to the separate maritime boundaries mentioned above. A further intriguing parallel to joint zones is provided by so-called ‘grey areas’ such as that created in the Bay of Bengal Case through the ruling of itlos in 2012.174 Within the grey area continental shelf rights are accorded to Bangladesh but jurisdiction over the superjacent water column rests with Myanmar. This is so because itlos opted to both depart from the median line and to extend the maritime delimit seaward of the 200 nm limit to areas of extended continental shelf, yet Myanmar’s 200 nm limit lies further to the south than does that of Bangladesh. Thus, those areas on the Bangladeshi side of the line delimited by the Tribunal seawards of Bangladesh’s 200  nm eez limit constitute areas of extended continental shelf, yet this same area still lies within 200 nm of Myanmar so its rights over the water column are unaffected by the Tribunal’s delimitation.175 This situation was compounded in July 2014 when the Arbitration Tribunal in the case between BangladeshIndia issued its award.176 In addition to issues related to the identification of the terminus of the land boundary and delimitation of territorial sea and eez boundaries between the parties, the Tribunal also delimitated c­ontinental 172 173 174 175 176

See for example, Bakosurtanal, Map of the Republic of Indonesia (Cibinong, 2010). losc, Arts. 74(3) and 83(3). Bay of Bengal Case, supra note 85. Ibid., para. 474. In the matter of the Bay of Bengal Maritime Boundary Arbitration, The People’s Republic of Bangladesh and the Republic of India, Award of the Arbitration Tribunal, 7 July 2014, ­paras 498–508, available at .

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shelf areas, ­including areas of extended continental shelf. In an analogous manner to i­tlos in the above-mentioned Bangladesh-Myanmar scenario, a departure from equidistance as a method of delimitation was made in order to achieve an equitable result. This was in large part because of the concavity of Bangladesh’s coastline meaning that were equidistance lines to be applied, ­Bangladesh’s maritime ­entitlements would suffer from severe ‘cut off’ effects. Consequently, a further ‘Grey Area’ between Bangladesh and India was defined, similar to that already created between Bangladesh and Myanmar. These two grey areas partially overlap with one another. As noted above, such arrangements of different jurisdictional lines for different maritime zones are not entirely unique. Moreover, in its ruling in the Bay of Bengal Case, itlos observed that the legal regime of the continental shelf had always coexisted with another legal regime in the same area (for example the high seas and, more recently, the eez)177 and that there are many ways for the parties to address their responsibilities, including “appropriate cooperative arrangements”.178 It can therefore be anticipated that such novel arrangements will become more common in the future as any departure from the equidistance methodology relating to the delimitation of extended continental shelf areas between adjacent States will inevitably yield a ‘grey area’ situation. It can also be suggested in closing that as oceans governance becomes ever more sophisticated, for instance through the advent and increasing uptake of approaches such as marine spatial planning,179 there will be an increasing need for such multi-boundary and zoning approaches both within national maritime jurisdictions and between them.

177 Bay of Bengal Case, supra note 85, para. 475. 178 Ibid., para. 476. 179 Marine spatial planning can be characterised as a strategic planning tool which aims to improve decision-making in the management of offshore areas with the objective of delivering more rational and harmonised uses of marine space ideally eliminating overlaps, clashes and conflicts and identifying co-development opportunities. This approach is increasingly popular but it is worth emphasising that it builds on past oceans management approaches and should not be construed as a replacement for existing, more sector-specific, management tools. See for example, T. Potts, ‘msp and Various Uses and Interests Relating to the Marine Environment’, in D. Hassan, T. Kuokkanen and N. Soininen (eds.), Marine Spatial Planning and International Law: A Transboundary Perspective, forthcoming.

chapter 13

Particularly Sensitive Sea Areas beyond National Jurisdiction: Time to Chart a New Course? David Freestone* and Viva Harris** Abstract On 2 June 2015, the un General Assembly voted to begin a process which may lead to the negotiation of a new international legally binding instrument—perhaps a third ­Implementation Agreement to the 1982 un Convention on the Law of the Sea—­ regulating the conservation and sustainable use of biological diversity in areas ­beyond national jurisdiction. Key elements of the agenda for the negotiations will be the agreement of modalities for the establishment of marine protected areas beyond n ­ ational jurisdiction, as well as their relationship with existing sectoral protection measures. imo has the authority to designate sea areas for protection through two main mechanisms: Special Areas designated under marpol 73/78, and under its Particularly Sensitive Sea Area (pssa) Guidelines. It is the imo Marine Environment Protection Committee (mepc) that can designate pssas together with Associated ­Protection Measures (apm). To date mepc has designated 16 pssas; none of them are in the high seas. A number of high seas areas have been suggested as appropriate for pssa designation, including the polar areas and the Sargasso Sea in the subtropical north Atlantic Gyre. This paper suggests that the imo may want to consider proactively adjusting its ­approach to high seas protection in the light of the emerging wider United Nations agenda for conservation of areas beyond national jurisdiction.

The International Maritime Organization (imo) is one of the few intergovernmental organizations with a clear mandate to regulate human activities * Visiting Scholar and Adjunct Professor at the George Washington University Law School; ­Editor in Chief of the International Journal of Marine and Coastal Law and Executive ­Secretary of the Sargasso Sea Commission. ** Doctoral student, University of California, Los Angeles, Department of Political Science, formerly Lecturer in Law and Research Fellow at Santa Clara University School of Law. The authors would like to thank Julian Roberts and Kristina Gjerde for their thoughtful ­comments on earlier drafts of this paper. The authors would also like to thank Michael ­Margherita for his thorough research of marpol regulations.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_014

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on the high seas.1 Established in 1948,2 the purposes of the Organization are “to provide machinery for cooperation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds ­affecting shipping engaged in international trade; to encourage and facilitate the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of ­marine pollution from ships….”3 The Organization is also empowered to deal with administrative and legal matters related to these purposes.4 The imo has sponsored a complex web of international instruments regulating international maritime shipping and vessel-source pollution issues.5 Over the years it has developed an important role in the prevention and control of marine pollution from vessels. Its primary environmental instrument is the International Convention for the Prevention of Pollution from Ships, 1973, as amended by the 1978 Protocol (marpol 73/78),6 which, through its various substance-based annexes, regulates a wide range of discharges at sea.7 m ­ arpol also envisages the establishment of Special Areas where more ­rigorous d­ ischarge restrictions may apply. One of these is in the Southern Ocean, in an area that includes the high seas.8 1 As defined by the United Nations Convention on the Law of the Sea (losc) Article 86 (10 Dec. 1982), http://www.un.org/depts/los/convention_agreements/texts/LOSC/closindx .htm. Within the un General Assembly the high seas come within what are now called Areas beyond National Jurisdiction (abnj); although these areas are not co-terminus with the high seas. 2 The Inter-Governmental Maritime Consultative Organization (imco) was formally established in 1948 at the United Nations Maritime Conference. Convention on the International Maritime Organization (6 March 1948) (hereinafter, “Convention on the imo”). imco came into effect in 1958, and in 1982 its name was changed to imo. See International Maritime ­Organization, ‘Brief History of imo’, available at http://www.imo.org/en/About/History OfIMO/Pages/Default.aspx. 3 Convention on the imo, Article 1(a). 4 Id. 5 For a summary of the key imo conventions and other conventions related to the imo, see imo, ‘List of imo Conventions’, available at http://www.imo.org/en/About/Conventions/ ListOfConventions/Pages/Default.aspx. 6 International Convention for the Prevention of Pollution from Ships, 1973, as amended by the 1978 Protocol (marpol). 7 See marpol Annex i (operational and cargo-related oil waste), Annex ii (noxious liquid substances), Annex iii (packaged harmful substances), Annex iv (sewage), Annex iv (garbage), and Annex v (air pollution). 8 The Antarctic Area is a Special Area defined as the sea area south of latitude 60°S. marpol, Annex i, as set forth in imo mepc Resolution MEPC.117(52) s.11.7 (15 Oct. 2004). How much

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The imo Marine Environment Protection Committee (mepc) has adopted non-binding resolutions on a range of issues including the designation of ­Particularly Sensitive Sea Areas (pssas). The pssa designation is linked with specific measures (Associated Protective Measures (apms)) designed to address the risk that shipping poses to each pssa.9 To date, mepc has approved some sixteen pssas,10 however, no pssa has yet been declared in the high seas even though the pssa guidelines themselves suggest that any sea area “within and beyond the limits of the territorial sea” is eligible for designation.11 Despite the broad mandate that it has to regulate marine pollution from ships, it can be argued that the State Parties to imo have not taken full advantage of the instruments that they have available—including the pssa framework—for conserving areas of the high seas that may be at risk from the various impacts of international shipping. The apparent reluctance of the imo State Parties to take measures in Areas beyond National Jurisdiction (abnj) is in sharp contrast with other work within the un family that is happening elsewhere. On 19 June, 2015, the un General Assembly adopted a resolution establishing an intergovernmental conference to negotiate an “international legally binding instrument” on the Conservation and Sustainable Use of Marine Biological Diversity in Areas beyond National Jurisdiction.12 This negotiation process may lead to a new

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of this area qualifies as “high seas” is up for debate, as some countries have claimed portions of Antarctica south of latitude 60°S. However, no country has formally claimed the area 90°W to 150°W, leaving at least that portion as an area beyond national jurisdiction. Given the uncertainty regarding claims to eezs in the Mediterranean Sea, it is ­arguable that the Special Area in the Mediterranean Sea also lies beyond national jurisdiction. See fao General Fisheries Commission for the Mediterranean, ‘Fisheries Laws and Regulations in the Mediterranean: A Comparative Study (2005), Annex 2, Note on ­Maritime Jurisdiction in the Mediterranean Sea’, at http://www.fao.org/docrep/008/y5880e/ ­ y5880e09.htm. For a study of the evolution of the pssa Concept see D. Freestone and K. Gjerde, ‘Particularly Sensitive Sea Areas—An Important Environmental Concept at a Turning-point’, 9 Int’l J. Marine & Coastal L., No. 4 (November 1994), 431, see also J. Roberts, Marine Environment Protection and Biodiversity Conservation (New York, Springer, 2007). See imo, ‘Particularly Sensitive Sea Areas’, available at http://www.imo.org/en/OurWork/ Environment/PSSAs/Pages/Default.aspx, for a map view see http://pssa.imo.org/index .htm#/globe. Two of the sixteen areas are part of the Great Barrier Reef pssa, so it is sometimes said that there are fifteen pssas. imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24) s. 4.3 (1 Dec. 2005), http://www.imo.org/en/ OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. un General Assembly, Resolution on the Development of an International Legally ­Binding Instrument under the United Nations Convention on the Law of the Sea on

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instrument—­perhaps a third Implementation Agreement under the losc relating to abnj. This resolution is the result of discussions which have been going on for nearly a decade.13 The ongoing negotiations at the un may provide an incentive for the State parties to the imo—which, of course, are the same States party to the un Charter that sit in the un General Assembly—to look again at this issue. The imo has the mechanisms available to it (through the designation of Special Areas under marpol or by using the pssa process with its Associated Protection Measures) to give higher degrees of protection to vulnerable areas in abnj, but have not taken much advantage of these to date. Taking such a step is consistent with, and would indeed support the approach that the unga is taking in seeking to provide greater protection to the biodiversity of areas beyond national jurisdiction. It might also ensure that the imo is not out of step with the trajectory of the new unga initiative. This paper reviews the current area-based conservation measures developed by other international organizations with global mandates applicable to abnj, and examines some of the opportunities, challenges and possible constraints of implementing the pssa framework in areas beyond national jurisdiction.

The Legal Regime of Areas beyond National Jurisdiction (abnj)

Oceanic areas beyond national jurisdiction are the last great global commons, comprising nearly half of the planet’s surface and constituting the largest biome on Earth.14 These are the marine areas that are beyond the limits of the Exclusive Economic Zones (eezs) recognized by the losc and of the continental shelf, which the Convention recognizes may extend beyond 200 nautical miles to its outer geomorphological limits.15 Since the finalization of the 1982 un Law of the Sea Convention, human activities in the ocean, particularly in areas beyond national jurisdiction, have burgeoned, as have their impacts.16

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the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond ­National ­Jurisdiction, (A/Res/69/292), 19 June 2015, paras. 1(k) and 2. The United Nations Ad Hoc Open-ended Informal Working Group (so-called “bbnj Working Group”) studied issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. See infra. Marjo Vierros and Salvatore Arico, ‘Governance of Marine Areas Beyond National ­Jurisdiction’, United Nations University Rio + 20 Series, 14 Mar. 2012. losc, Art. 76. See, e.g., B. Halpern et al., ‘A Global Map of Human Impact on Marine Ecosystems’, 319 Science, No 5865, 2008, 948; E. Ramirez-Llodra et al., ‘Man and the Last Great Wilderness: Human Impacts on the Deep Sea’, 6(8) PLoS ONE: e22588, 2011.

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These impacts are not only the result of new activities but also of the unprecedented increase of existing activities such as maritime transport, laying of submarine cables, interest in seabed exploration and mining, and, of course, fishing. David Freestone has called the governance of marine areas beyond national jurisdiction the ‘final frontier’.17 The current characteristics of the abnj regime, with its regulatory and governance gaps, and weak implementation and enforcement of existing rules,18 are reminiscent of the nineteenth century frontier areas in the usa. In the more than thirty years since the adoption of the Convention it has become clear that the co-operative regime for abnj, which the Convention seems to have envisaged, has not materialized. The 1982 un Law of the Sea Convention (losc) does establish a comprehensive regime for the regulation of human activities in the ocean. Part vii of the Convention covers the rights and duties of States on the high seas. ­Article 87 of the Convention provides for “Freedom of the high seas,” making it clear that the high seas are open to all States, whether coastal or landlocked. It then itemizes six specific freedoms, namely: freedom of navigation; freedom of overflight; freedom to lay submarine cables and pipelines; freedom to construct artificial islands and other installations permitted under international law; freedom of fishing; and freedom of scientific research.19 However, these freedoms are not unconditional—they may only be exercised “under the conditions laid down by this Convention and by other rules of international law.”20 Article 87(2) reinforces the point that these freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the seas, and also with due regard for the rights under the Convention with respect to “the Area.” Having said that, the only specific additional ­restrictions that can 17

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D. Freestone, ‘The Final Frontier: The Law of the Sea Convention and Areas beyond National Jurisdiction’, Proceedings of the 2012 Law of the Sea Institute Conference on Securing the Ocean for the Next Generation, vol. 1, (Martinus Nijhoff, 2013) 1–15. See K. Gjerde, H. Dotinga, S. Hart, E.J. Molenaar, R. Rayfuse and R. Warner, Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National Jurisdiction (Gland: iucn, 2008), available at http://cmsdata.iucn.org/downloads/iucn_marine_paper_1_2.pdf (last accessed 3 June 2015). Specifically, on fishing. See Mary Ann Palma, Martin Tsamenyi and William Edeson, Promoting Sustainable Fisheries: The International Legal and Policy Framework to Combat Illegal, Unreported and Unregulated Fishing (Martinus Nijhoff, 2010) xi, who suggest that one third of all fish harvested are from iuu operations. Each freedom is subject to limitations included in the losc, including those set out in Parts vi, vii, and xiii, as well as other limitations found in international law. losc, ­Article 87.1. losc, Article 87.1.

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be made to the exercise of these rights are by international agreement that would be binding only on the States which are party to them. Of course, Part xii of the Convention does impose general obligations in relation to the “Protection and Preservation of the Marine Environment,” which extend to the high seas and international seabed area. Article 192 obliges all States to “protect and preserve the marine environment” and Article 194(5) specifies that measures under Part xii are to include “those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.” Article 197 further obliges States to “cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional features.” In Part xi, the Convention also establishes an international regime for the exploration and exploitation of seabed mineral resources in “the Area” overseen by the International Seabed Authority (“isa”). It designates the Area and its mineral resources as the Common Heritage of Mankind, and mandates the isa to administer the resources for the benefit of mankind. In addition to provisions for the sharing of financial and other economic benefits from mining activities, it also envisages the development of detailed rules and regulations for the prevention of damage from mineral exploration and extraction activities and for the conservation of the flora and fauna of the seabed. However, these rules do not apply to activities such as deep-sea bottom fishing, marine scientific research, cable-laying or potential new activities such as ocean fertilization and other forms of marine geo-engineering.21 A range of other global and regional treaties do regulate specific activities which take place in abnj, such as fishing, dumping and navigation. But of course these detailed sectoral treaties are only binding on States Parties. So, the problem of proper (that is, integrated and generally applicable) governance in abnj is revealed by the patchwork of treaties that currently exists.

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See, e.g., R. Rayfuse, M. Lawrence and K. Gjerde, ‘Ocean Fertilisation and Climate Change: The Need to Regulate Emerging High Seas Uses’ 23 Int’l J. Marine & Coastal L., No. 2, 2008, 297; K. Scott, ‘Regulating Ocean Fertilization under International Law: The Risks’ (2013) Carbon & Climate Change Law Review, No. 2, 2013, 108. Although, see the work of the London Convention and Protocol described by Philomene Verlaan, ­‘Current Legal Developments’ 28 Int’l J. Marine & Coastal L., No. 4, 2013, 729–736.

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A number of experts have conducted detailed reviews of existing organizations with jurisdiction over activities in abnj and concluded that there are serious gaps in coverage.22 In relation to sectoral activities, these gaps are both functional as well as geographic. This is not necessarily a defect in the basic Convention regime itself, but it is a serious defect in its implementation. In fact, the lacunae in implementation are vividly shown by the Convention provisions relating to the monitoring and reporting of potentially polluting ­activities. These provisions, which are quite rigorous, are based entirely on the good faith implementation by State Parties; there is no international process for receiving or reviewing these reports, or even for publicizing them. The Convention provides as follows: Article 204(2): “… States shall keep under surveillance the effects of any activities which they permit or in which they engage in order to determine whether these activities are likely to pollute the marine environment.” Article 205: “States shall publish reports … or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States.” Article 206: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine ­environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate ­reports of the results of such assessments….” Although there are international treaty requirements for prior environmental impact assessment for the permitting of human activities in some areas of the ocean, such as the Southern Ocean under the Madrid Protocol,23 or for some 22

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K. Gjerde et al., Regulatory and Governance Gaps in the International Regime for the Conservation and Sustainable Use of Marine Biodiversity in Areas beyond National J­ urisdiction’ (iucn 2008), available at . See also D. Freestone, ‘Problems of High Seas Governance’, and K. Gjerde, ‘High Seas Fisheries Governance: Prospects and Challenges in the 21st ­Century’, in D. Vidas and P.J. Schei (eds.), The World Ocean in Globalisation: Challenges and Responses (Martinus Nijhoff, 2011). For an excellent wider discussion of the abnj legal regime, see: R. Warner, Protecting the Oceans beyond National Jurisdiction: Strengthening the International Law Framework (Martinus Nijhoff, 2009). The Protocol on Environmental Protection to the Antarctic Treaty (signed in Madrid on 4 October 1991 and entered into force in 1998), (1991) 30 ilm 1455, available at . Annex 1 is on Environmental Impact

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activities such as ocean dumping, this is very much the exception rather than the rule.24 An important result of the sectoral approach in the treaty regimes applicable to abnj is that although the parties to all these treaties must have regard to the sweeping obligation of Article 192 to protect and preserve the marine environment, the modalities by which this is done vary widely from regime to regime. Each sectoral regime has its own distinctive protection mechanisms and assesses differently the factors that need to be taken into account; the result is a plethora of distinct regimes designed to protect specific areas of the ocean from individual sector-specific risks. The United Nations Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction (so-called ‘bbnj Working Group’) was set up by the un General Assembly to address these issues. The process of reaching consensus—which it did in January of 2015—has taken nearly a decade; the first meeting was held in 2006. The bbnj Working Group has recommended that the un General Assembly develop an international ­legally-binding instrument under the 1982 Law of the Sea Convention (losc) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction.25 Such an instrument might be a third Implementing Agreement to the losc.26

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­Assessment. Report on the work of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its sixteenth meeting – Letter dated 14 April 2015 from the Co-Chairs of the Consultative Process addressed to the President of the General Assembly unn Doc A/70/78 at http://www.un.org/depts/los/consultative _process/consultative_process.htm. See R. Warner and S. Marsden, Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate, 2012). Recommendations of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. See un Doc A/69/780*1 (3 February 2015). There are two existing Implementing Agreements, one enacted in 1994 and one in 1995. un General Assembly, ‘Agreement relating to the implementation of Part xi of the United Nations Convention on the Law of the Sea of 10 December 1982’, unga Resolution A/48/263 (17 Aug. 1994), , un General Assembly, ‘Agreement of 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,’ unga Resolution A/164/37 (4 Aug. 1995), http://www .un.org/Depts/los/­convention_agreements/texts/fish_stocks_agreement/CONF164_37 .htm.

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As discussed above, for this reason alone the unga decision is indeed historic. The un negotiation, now scheduled to begin in March 2016,27 is likely to address the full range of human activities in abnj and examine in detail the regulatory activities of the bodies that have sectoral responsibilities in those areas.28 In light of the pioneering role that the imo has exercised in the development of safety and anti-pollution regimes for vessels it is important that its role in relation to abnj is recognized. This un process therefore provides an appropriate opportunity to examine the role that the existing imo instruments can play in abnj and to advance the discussion about how that role could be expanded.

Global Efforts to Protect abnj

To date, a number of organizations of the United Nations have addressed the issue of the conservation of areas beyond national jurisdiction. The following section will look at each of these initiatives to demonstrate the advances that are being made in area-based efforts to conserve biodiversity in abnj. a) Vulnerable Marine Ecosystems At the direction of the United Nations General Assembly (unga), the Food and Agriculture Organization of the un (fao) has developed guidelines for at-risk seabed marine areas known as “Vulnerable Marine Ecosystems” (vmes). Prompted by concerns about the destruction of deep sea cold water corals and other seabed resources by bottom trawling, the unga in 2004 called upon States and regional fisheries management organizations to take action to protect vulnerable marine ecosystems.29 In 2006, the unga formalized its expectations for the identification and management of vmes in Resolution 61/105.30 The resolution calls upon organizations with competence to regulate bottom fisheries (e.g., regional fisheries management organizations) to “identify vulnerable marine ecosystems and determine whether bottom fishing activities 27 28

29 30

See unga Res. 69/272 (6 July 2015). See, e.g., D. Tladi, ‘The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Protected Areas beyond National Jurisdiction’, 30 ­Int’l J. Marine & Coastal L., No. 4, 2015, 654. unga Res. 59/25 (17 Nov. 2004) para. 66, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/ N04/477/70/PDF/N0447770.pdf?OpenElement. unga. Res. 61/105, paras. 80–90 (6 Mar. 2007), http://www.un.org/en/ga/search/view_doc .asp?symbol=A/RES/61/105&Lang=E.

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would cause significant adverse impacts to such ecosystems….”31 This sets out a two-part analysis: first, whether an ecosystem meets the requirements to be considered a vme, and second, whether “significant adverse impacts” to the area would occur from bottom fishing. Responding to the unga mandate, the fao Committee on Fisheries (cofi) prepared the International Guidelines for the Management of Deep-sea Fisheries in the High Seas (dsf Guidelines),32 which sets out five criteria for determining whether an area should be considered a vme. The first criterion is “Uniqueness or rarity.” This includes “discrete feeding, breeding, or spawning areas,” as well as areas that contain “rare species whose loss could not be compensated for by similar areas or ecosystems.”33 Second is “Functional significance of habitat,” which includes habitats that are necessary for the “life-history stages (e.g. nursery grounds or rearing areas)” of fish stocks or threatened marine species.34 Third is “Fragility,” which is defined as “an ecosystem that is highly susceptible to degradation by anthropogenic activities.”35 Fourth is the “Life-history traits of component species that make recovery difficult,” which refers to whether species within the ecosystem have slow growth rates, late age of reproductive maturity, or are long-lived.36 The last criterion is “Structural complexity,” meaning “complex physical structures created by significant concentrations of biotic and abiotic features.”37 Once a fisheries management organization has determined that an area is a vme, it must then determine whether bottom fishing would cause significant adverse impacts to the area. If it is determined that the vme would indeed suffer significant adverse impacts from bottom fishing activities, then Resolution 61/105 provides strong protection: the regional fisheries management organization must either manage the area so as to prevent the impacts, or must not authorize the harmful activities to proceed.38 The fao dsf ­Guidelines

31 32

33 34 35 36 37 38

Id. s. 83, http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/61/105&Lang=E. un Food and Agriculture Org. [fao], International Guidelines for the Management of Deep-sea Fisheries in the High Seas (2009), http://www.fao.org/docrep/011/i0816t/i0816t00 .HTM. un fao, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, s.s. 42(i) (2009), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. Id. s. 42(ii), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. Id. s. 42(iii), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. Id. s. 42(iv), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. Id. s. 42(v), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. unga Res. 61/105, s. 83(a) (6 Mar. 2007), http://www.un.org/en/ga/search/view_doc .asp?symbol=A/RES/61/105&Lang=E.

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r­ecommend specific management measures that may be used,39 including closing areas to bottom fishing activities.40 Since its inception, the vme designation has been used consistently in areas beyond national jurisdiction.41 The largest vmes in areas beyond national jurisdiction include the Wüst Seamount, the New England Seamounts, and the Middle mar Area.42 b) Ecologically and Biologically Significant Marine Areas The un Convention on Biological Diversity (cbd) has as one of its primary objectives the conservation of biological diversity,43 and its provisions apply both to areas within a party’s national jurisdiction and to “processes and activities” carried out under the “jurisdiction or control [of the party], within the a­ reas of its national jurisdiction or beyond the limits of national jurisdiction.”44 The objectives of the cbd are implemented through decisions of the Conference of the Parties (cop),45 and in 2010 the cop adopted decision X/29 that provided for the description of “ecologically or biologically significant marine areas” (ebsas).46 Seven criteria are used to identify ebsas.47 The first is the uniqueness or rarity of the ecosystem and/or its constitutive species.48 An example of this criterion is the Sargasso Sea, designated as an ebsa in 2012. Its mats of holopelagic Sargassum seaweed create a dynamic, mid-ocean habitat of a scale unseen in any other part of the world,49 making it a rare and unique ecosystem. The second criterion is whether the area has special importance 39

See, e.g., un fao, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, s.s.s.s. 61–80 (2009), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. 40 un fao, International Guidelines for the Management of Deep-sea Fisheries in the High Seas, s. 63(i) (2009), http://www.fao.org/docrep/011/i0816t/i0816t00.HTM. 41 See Vulnerable Marine Ecosystems Database, http://www.fao.org/in-action/vulnerable -marine-ecosystems/vme-database/en/ (last visited 22 Aug. 2015). 42 Vulnerable Marine Ecosystems Database, http://www.fao.org/in-action/vulnerable -marine-ecosystems/vme-database/en/ (last visited 22 Aug. 2015). 43 Convention on Biological Diversity, Article 1, https://www.cbd.int/convention/articles/ default.shtml?a=cbd-01. 44 Id. Article 4, https://www.cbd.int/convention/articles/default.shtml?a=cbd-04. 45 Id. Article 23, https://www.cbd.int/convention/articles/default.shtml?a=cbd-23. 46 Convention on Biological Diversity Conference of the Parties, cop 10 Decision X/29, s. 36, https://www.cbd.int/decision/cop/default.shtml?id=11663. 47 Convention on Biological Diversity Conference of the Parties, cop 9 Decision IX/20, s. 14, Annex 1, https://www.cbd.int/decision/cop/default.shtml?id=11663. 48 Id. 49 Ecologically or Biologically Significant Areas (ebsas): The Sargasso Sea, https://chm.cbd .int/database/record?documentID=200098.

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for life-history stages of species. This includes “breeding grounds, spawning areas, nursery areas, [and] juvenile habitat,” as well as “habitats of migratory species (feeding, wintering or resting areas, breeding, moulting, or migratory routes).”50 The third criterion is the importance of the area for threatened, endangered or declining species. An example is the Grey Petrel Feeding Area in the South-East Pacific Rise, which is the feeding area for a population of nearthreatened grey petrels.51 The fourth criterion is vulnerability: whether the area contains habitats or species that are “functionally fragile,” that is, “highly susceptible to degradation or depletion by human activity” or slow to recover from adverse events.52 The fifth criterion is whether the area has comparatively higher natural biological productivity. Examples include biologically rich upwellings, hydrothermal vents,53 and areas of high primary productivity such as the Equatorial High-Productivity Zone.54 The sixth criterion examines the biological diversity of the area for comparatively higher biological or genetic diversity. Such areas include seamounts, cold coral communities, and deepwater sponge communities.55 The last criterion is naturalness, which looks to whether the area has retained its natural state (that is, whether it has a low level of “human-induced disturbance or degradation”).56 The Decision of the cbd cop does not provide any binding effects for ebsa descriptions. The cbd Parties have agreed to provide the cbd ebsa descriptions “to Parties, other Governments and relevant international organizations,”57 but it is left to States and intergovernmental organizations to take appropriate measures—for example by the selection and enforcement of conservation measures.58 If no States or intergovernmental organizations choose to manage 50 51 52 53 54 55 56 57 58

Convention on Biological Diversity Conference of the Parties, cop 9 Decision IX/20, ­Annex i, https://www.cbd.int/decision/cop/default.shtml?id=11663. Ecologically or Biologically Significant Areas (ebsas): Grey Petrel Feeding Area in the South-East Pacific Rise, https://chm.cbd.int/database/record?documentID=204074. Convention on Biological Diversity Conference of the Parties, cop 9 Decision IX/20, ­Annex i, https://www.cbd.int/decision/cop/default.shtml?id=11663. Id. Ecologically or Biologically Significant Areas (ebsas): Equatorial High-Productivity Zone, https://chm.cbd.int/database/record?documentID=204046. Convention on Biological Diversity Conference of the Parties, cop 9 Decision IX/20, ­Annex i, https://www.cbd.int/decision/cop/default.shtml?id=11663. Id. Convention on Biological Diversity Conference of the Parties, cop 11 Decision XI/17, para. 6, https://www.cbd.int/decision/cop/default.shtml?id=13178. See D. Freestone, ‘Governance of Areas Beyond National Jurisdiction: An Unfinished Agenda of the 1982 Convention?’, losc at 30 and Beyond, Jill Barrett & Richard Barnes eds., 2015, 13–14.

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and conserve an ebsa, there is no provision in the cbd or related instruments to compel action. That is not to say that the ebsa designation is, by itself, ineffectual. The designation is a scientific exercise that results in international recognition of an area’s value as a biological resource and its vulnerability to human activities.59 The designation can be used to strengthen the scientific arguments in requests for protective measures under other treaties.60 For example, the Sargasso Sea lies partly within the jurisdiction of the North West Atlantic Fisheries Organization (nafo). After the Sargasso Sea was described as an ebsa in 2012, the eu proposed that nafo pass a conservation resolution on the Sargasso Sea, based in part on its ebsa status. The proposed resolution was not adopted, but the issue was kept under consideration by nafo.61 At its 37th Annual Meeting in Halifax in September 2015, nafo decided to prohibit, in seamount closure areas under its jurisdiction, the use of mid-water trawling gear with discs, bobbins or rollers on its footrope or “any other attachment designed to make contact with the bottom.”62 nafo also agreed that all vme indicator species63 caught during fishing on seamount closures be reported as bycatch. nafo also agreed to remove the exemption for “exploratory bottom fishing activities in seamount protection zones.”64 These are the first regulatory measures agreed for fisheries in the Sargasso Sea ebsa. c) Areas of Particular Environmental Interest The International Seabed Authority (isa) is the intergovernmental body that regulates exploration for and exploitation of seabed minerals of the deep sea floor in the areas beyond national jurisdiction.65 The isa recently began using the concept of “Areas of Particular Environmental Interest” (apei) to protect certain areas of the sea floor that lay beyond national jurisdiction from the harmful effects of mining.66 The isa has recognized its responsibility to use 59 60 61 62

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See id. See id. See id. Northwest Atlantic Fisheries Organization (nafo), nafo/fc DOC. 15/13, Seamount Closures: gear specification for the use of midwater trawls and reporting of vmes (September 2015). E.g., corals and sponges. nafo/fc DOC. 15/15, Revision of Article 17 of the nafo cem (September 2015). United Nations Convention on the Law of the Sea (losc) Article 156, http://www.un.org/ depts/los/convention_agreements/texts/LOSC/closindx.htm. See International Seabed Authority (isa), Decision of the Council of the International Seabed Authority relating to an environmental management plan for the Clarion-Clipperton Zone, at 2, ISBA/17/C/19 (21 July 2011) (initiating the process to identify “areas of particular

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its regulatory authority under losc to prevent harm to the marine environment.67 In 2011, the isa issued its Environmental Management Plan for the Clarion-Clipperton Zone, which included the designation of nine apeis.68 The isa authority does not encompass all activities that could pose an environmental threat to an apei. Under the losc, the isa’s authority is to “­ organize and control activities in the Area,”69 with “activities in the Area” ­being defined as “all activities of exploration for, and exploitation of, the resources of the Area.”70 Thus, the isa authority to regulate activities within an apei is ­limited to mining and other activities involving the extraction or exploitation of ­resources from the seabed. As a consequence, an area could be designated as an apei and closed to mining activities, but still be subject to bottom fishing or other harmful activities not related to mining. d) Area-specific Protective Measures Available to the imo As discussed above, the imo is the intergovernmental organization charged with navigational safety and the regulation of marine pollution from ships. The imo has two main instruments for providing area-based protection to protect marine areas for environmental reasons: marpol “Special Areas,” and the designation of “Particularly Sensitive Sea Areas,” whose associated protection measures can include strong protections under other regulatory schemes, such as solas71 and the imo Ships’ Routeing provisions. i) marpol marpol was adopted through the imo in 1973 and amended in 1978.72 With a few exceptions, marpol broadly applies to all ships operating in marine

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environmental interest” in the Clarion-Clipperton Zone), https://www.isa.org.jm/files/ documents/EN/17Sess/Council/ISBA-17C-19.pdf. isa, Decision of the Council of the International Seabed Authority relating to an environmental management plan for the Clarion-Clipperton Zone, at 1, ISBA/17/C/19 (21 July 2011), https://www.isa.org.jm/files/documents/EN/17Sess/Council/ISBA-17C-19.pdf, citing losc Article 162. isa Legal and Technical Commission, Environmental Management Plan for the Clarion-Clipperton Zone (13 July 2011), https://www.isa.org.jm/sites/default/files/files/ documents/isba-17ltc-7_0.pdf. losc Art. 157, s. 1. losc, Art. 1, s. 3. However, see also Aline Jaeckel, ‘An Environmental Management Strategy for the International Seabed Authority? The Legal Basis.’ 30 Int’l J. Marine & Coastal L. 93 (2015). International Convention for the Safety of Life at Sea (solas), 1974. See supra, note 7.

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environments,73 and requires limitations of discharges for six categories of ship emissions: operational and cargo-related oil waste (addressed in Annex i), noxious liquid substances (Annex ii), packaged harmful substances (Annex iii), sewage (Annex iv), garbage (Annex v), and air pollution (Annex vi).74 Each annex sets out requirements regarding the types and quantities of discharges that may occur, ship speed at time of discharge, and required operating equipment, including waste filtering equipment. Five of the annexes include provisions for enhanced protection of designated sea areas.75 Specifically, Annexes i, ii, iv and v provide for “Special Areas,” and Annex vi provides for “Emission Control Areas.” Special Areas and Emission Control Areas are subject to more stringent limitations than what applies more generally through marpol. For instance, within the Antarctic Special Area, Annex i contains a blanket prohibition of “any discharge into the sea of oil or oily mixtures from any ship.”76 The Special Area and Emission Control Area designations have not been widely applied to areas beyond national jurisdiction. There are currently fourteen sea areas that are designated as Special Areas or Emission Control Areas,77 but only two are located in areas beyond national jurisdiction. They are the Antarctic (south of Latitude 60°S)78 and the Mediterranean Sea (parts of which lie beyond national jurisdiction).79 Given the critical role that the high 73

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International Convention for the Prevention of Pollution from Ships (marpol) (1973, as amended), Annex i, Regulation 2(1), Annex ii, Regulation 2(1), Annex iii, Regulation 1(1), Annex iv, Regulation 2(1)(limiting application to ships meeting minimum tonnage requirements), Annex v, Regulation 2, Annex vi, Regulation 1. marpol, Annex i–vi. For a chart of designated Special Areas and Emission Control Areas, see International Maritime Organization, Special Areas under marpol, at http://www.imo.org/en/OurWork/ Environment/SpecialAreasUnderMARPOL/Pages/Default.aspx. marpol, Annex Regulation 15(B)(4), as set forth in imo mepc Resolution MEPC.117(52) (15 Oct. 2004). See International Maritime Organization, ‘Special Areas under MARPOL’, at http://www .imo.org/en/OurWork/Environment/SpecialAreasUnderMARPOL/Pages/Default.aspx. marpol, Annex i, as set forth in imo mepc Resolution MEPC.117(52) s.11.7 (15 Oct. 2004), http://www.imo.org/blast/blastDataHelper.asp?data_id=15720&filename=117(52).pdf; see supra, note 3, for a discussion of how much of this Antarctic area is beyond national jurisdiction. It should be noted that, given its relatively small size, the Mediterranean Sea is eligible to be claimed as eezs of the bordering States. However, most of the bordering States have elected not to claim eezs there, and those that have made claims have not formally resolved their eez boundaries, therefore it is arguable that the Mediterranean Sea’s areas beyond national jurisdiction begin at 12 nautical miles off of the coast. For an overview of the Mediterranean Sea boundary claims, see fao General Fisheries Commission for the

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seas play in migratory routes, breeding and spawning habitats, and ecosystems of threatened species, it is nevertheless highly likely that more areas beyond national jurisdiction would meet Special Area and/or Emission C ­ ontrol Area criteria. The designation of a Special Area is a science-based analysis that takes into account both the natural characteristics of the area and the type of shipping activities occurring within it. The marpol text itself contains only a limited amount of guidance as to eligibility for area-based protection. For instance, Annex ii does not contain provisions for designating Special Areas, but instead specifies the Antarctic (sea area south of latitude 60°S) as the only ­Special Area under Annex ii.80 Annexes i, iv and v define a Special Area as “a sea area where for recognized technical reasons in relation to its oceanographic and ecological condition and to the particular character of its traffic the adoption of s­ pecial mandatory methods for the prevention of sea pollution by… [oil/sewage/­garbage, respectively] is required,”81 but provide no specific criteria.82 However, the imo has enacted a set of guidelines that provide more specificity as to eligibility for Special Area status. imo Assembly Resolution A.927(22) uses the three categories set forth in the Special Area definition quoted above: Oceanographic Conditions, Ecological Conditions, and Vessel Traffic Characteristics.83 Oceanographic Conditions are those that “may cause the concentration or retention of harmful substances in the waters or sediments of the area….”84 They include circulation patterns, such as convergence zones and gyres, as well as stratification due to temperature and salinity.85 Ecological Conditions are

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Mediterranean, ‘Fisheries Laws and Regulations in the Mediterranean: A Comparative Study (2005), Annex 2, Note on Maritime Jurisdiction in the Mediterranean Sea’, at http:// www.fao.org/docrep/008/y5880e/y5880e09.htm. marpol, Annex ii, Regulations 1.3, 8. marpol, Annex i, Regulation 1(11), Annex iv, Regulation 1(5), Annex v, Regulation 1(3). Likewise, Annex vi defines an Emission Control Area as “an area where the adoption of special mandatory measures for emissions from ships is required to prevent, reduce and control air pollution from NOx or SOx and particulate matter or all three types of emissions and their attendant adverse impacts on human health and the environment.” marpol, Annex vi, Regulation 2(8). Specific criteria are not provided, and this definition appears to focus more on the character of the emissions from shipping activities rather than on any harmful impacts specific to any one area. imo Resolution A.927(22), Annex 1, s.2.3 (29 Nov. 2001), http://www.imo.org/blast/blast DataHelper.asp?data_id=24553&filename=A927(22).pdf. Id. s.2.4. Id.

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those indicating that protection is needed to preserve marine species, habitats, and ecosystems.86 Marine species needing protection include those that are depleted, threatened, or endangered. Habitats needing protection include areas of high natural productivity, such as fronts, upwelling areas, and gyres; spawning, breeding, and nursery areas for important marine species; and migratory routes for sea-birds and marine mammals. Ecosystems needing protection include those that are “rare or fragile,” such as coral reefs, mangroves, seagrass beds and wetlands, and those that are “of critical importance for the support of large marine ecosystems.”87 Vessel Traffic Characteristics examines the character of shipping activities in the area; specifically, whether lawful discharge from ships otherwise complying with marpol requirements would nonetheless be “unacceptable in light of the existing oceanographic and ecological conditions in the area.”88 ii) Particularly Sensitive Sea Areas (pssas) Another framework that the imo uses to protect marine ecosystems in an ­area-specific manner is the Particularly Sensitive Sea Area designation. The imo defines a “Particularly Sensitive Sea Area” (pssa) as “an area that needs special protection through action by imo because of its significance for r­ecognized ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities.”89 The concept was originally conceived by the imo in 1991,90 and is currently provided for in imo Assembly Resolution A.982(24).91 pssas provide protection for marine areas through “associated protective measures” (apms), which are requirements applied through imo instruments, including marpol, through other 86 87 88 89

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Id. s.2.5. Id. Id. s.2.6. imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24) (1 Dec. 2005), http://www.imo.org/en/ OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. imo Assembly, ‘Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas’, Resolution A.720(17) (6 Nov. 1991), http://www.imo.org/ blast/blastDataHelper.asp?data_id=22581&filename=A720(17).pdf. For early history and evolution see D. Freestone and K. Gjerde (eds.), Particularly Sensitive Sea Areas: an Important Environmental Concept at a Turning Point. (1994) Special Issue, vol. 9, Int’l J. Marine & Coastal L. imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24) (1 Dec. 2005), http://www.imo.org/en/ OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf.

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i­nternational treaties as provided in the losc, or through a State’s sovereign powers (in the case of territorial seas).92 A pssa designation is a separate process from the marpol “Special Area” designation, but the two can be applied contemporaneously; in fact, imo Resolution A.982(24) specifically provides that “a pssa may be identified within a Special Area and vice versa. It should be noted that the criteria with respect to the identification of pssas and the criteria for the designation of Special Areas are not mutually exclusive.”93 There are three requirements that must be satisfied in order for a marine area to be designated a pssa by the imo. First, at least one criterion (ecological, socio-economic, or scientific) must be met, with supporting documentation establishing that at least one of the criteria exists throughout the proposed area.94 Second, vulnerability to impacts from international shipping must be shown.95 Third, there must be an existing or proposed “associated protective measure” (apm) that would protect the proposed pssa from the identified risk of environmental damage.96 Each of these requirements will be discussed ­below. It is important to note that imo Resolution A.982(24) does not limit ­eligibility for pssa status to areas within national jurisdiction. Because the Resolution is explicit as to the eligibility requirements for pssas, the most reasonable interpretation of the document’s silence as to jurisdictional issues is that they are not relevant to the query of whether an area should be considered for pssa status. To date, pssas have only been granted in territorial seas and eezs, but, as discussed below, there are a number of areas beyond national jurisdiction that are strong candidates for pssa designation. 1) Ecological, Socio-economic, and Scientific Criteria The imo lists eleven ecological criteria that could support a pssa ­designation.97 These include Uniqueness or Rarity (“the only one of its kind”), Critical ­Habitat (essential to the survival of endangered species), Dependency (­ecosystem is dependent on underlying biotic systems, like coral or kelp forests), and ­Representativeness (an “outstanding and illustrative example” of an ecosystem or other natural characteristic).98 By example, the Saba Bank pssa, ­located in the Caribbean, is recognized for its unique corals (including two newly 92 93 94 95 96 97 98

Id. s. 7.5.2.3. Id. s. 4.5. Id. s. 4.4. Id. s. 5.1. Id. s. 7.1. Id. s. 4.4. Id. s. 4.4.1–4.4.4.

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d­ iscovered species), its critical habitat for two species of threatened turtles, its dependency on the health of its corals, and its representativeness of deep water reef structure.99 The imo pssa criteria also include Diversity (an exceptional variety of species or habitats, or genetic diversity), Productivity (high rate of natural biological production, which can be associated with oceanic fronts, upwelling areas and gyres), Spawning or Breeding Grounds, and Naturalness (“relative lack of human-induced disturbance or degradation”).100 The Strait of Bonifacio pssa, located in the waters between France and Italy, is recognized for its diversity (977 species of fauna, including scores of rare, endangered, and critically endangered species, such as the loggerhead turtle, peregrine falcon, and the red tuna).101 It is also recognized for its productivity (it plays a “major role in the dispersion of larvae throughout the Western Mediterranean”) and its role as a breeding ground for numerous aquatic and avian species.102 The Papahānaumokuākea Marine National Monument pssa is a rare example of naturalness—“[b]ecause of their geographic isolation and long history of protection… [its reefs] are among the healthiest and most undisturbed coral reefs on the planet.”103 The remaining ecological criteria are Integrity (an area that is a “self-sustaining ecological entity”), Fragility (“highly susceptible to d­ egradation,” whether from natural or human factors), and Bio-geographic ­Importance (“representative of a biogeographic ‘type’”).104 The Papahānaumokuākea ­Marine National Monument pssa is also an excellent example of these c­ riteria. “Integrity” is evidenced by the numerous interdependent processes occurring in the area: the feeding, breeding and pupping areas of the H ­ awaiian Monk Seal, the food chain that cycles between the shallow water reef and the deep ocean floor habitats, and a remarkable cycle which consists of bird guano stimulating algae growth, which then provides a food source for marine species, which in turn provides a food source for bird

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imo Resolution MEPC.226(64), Annex 2, Designation of the Saba Bank as a Particularly Sensitive Sea Area (5 Oct. 2012), http://www.imo.org/en/KnowledgeCentre/IndexofIMO Resolutions/Documents/MEPC%20-%20Marine%20Environment%20Protection/ 226%2864%29.pdf. Id. s. 4.4.5–4.4.8. imo Resolution MEPC.204(62), Annex 2, Designation of the Strait of Bonifacio as a Particularly Sensitive Sea Area, (15 July 2011), http://www.imo.org/blast/blastDataHelper .asp?data_id=30763&filename=204(62).pdf. Id. imo Resolution, Papahānaumokuākea Marine National Monument as a Particularly S­ ensitive Sea Area, MEPC.171(57), Annex 2, (4 Apr. 2008), http://www.imo.org/blast/blast DataHelper.asp?data_id=22481&filename=171(57).pdf. Id. s. 4.4.9–4.4.11.

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species. The ecosystem’s dependence on healthy coral makes it an inherently fragile one, and as to bio-geographic importance, the area represents “one of the last remaining examples of an intact apex predator-dominated coral reef ecosystem with large top predator fish such as sharks in abundance.”105 The imo provides three social, cultural, and economic criteria that can support a pssa designation. First, social or economic dependency, meaning that the area’s environmental quality and living marine resources have social or economic importance, such as “fishing, recreation, tourism, and the livelihoods of people who depend on access to the area.”106 For example, the Canary Islands pssa protects waters that are vital to the Canary Islands economy—the Canary Islands’ marine ecosystems are central to the islands’ popularity as a “leading tourism destination in the European context,” with tourism comprising 80% of the local economy.107 The second criterion is human dependency, meaning an area “that is of particular importance for the support of traditional subsistence or food production activities or for the protection of the cultural resources of the local human populations.”108 The Papahānaumokuākea M ­ arine National Monument pssa recognizes the vital importance of the area to native Hawaiian culture and religious traditions. Oral traditions, ethnological studies, and archeological expeditions confirm the area’s central role in the development of Hawaiian religion and customs.109 The third pssa criterion in the “social, cultural, and economic” category is “cultural heritage,” meaning that the area contains “significant historical and archaeological sites.”110 Again, the Papahānaumokuākea Marine National Monument pssa is a prime example. Not only does it contain numerous archaeological sites relating to the ­Native Hawaiian peoples, but it is also the site of over 120 ship and aircraft wrecks. The wrecks range from 19th century whaling ships to Civil War-era Navy ships to World War ii fighter planes lost during the Battle of Midway.111 105 imo Resolution, Papahānaumokuākea Marine National Monument As a Particularly S­ ensitive Sea Area, MEPC.171(57), Annex 2, (4 Apr. 2008), http://www.imo.org/blast/blast DataHelper.asp?data_id=22481&filename=171(57).pdf. 106 Id. s. 4.4.12. 107 imo Resolution MEPC.134(53), Annex 1, Designation of the Canary Islands as a Particularly Sensitive Sea Area, (22 July 2005). 108 Id. s. 4.4.13. 109 imo Resolution, Papahānaumokuākea Marine National Monument As a Particularly S­ ensitive Sea Area, MEPC.171(57), Annex 2, (4 Apr. 2008), http://www.imo.org/blast/blast DataHelper.asp?data_id=22481&filename=171(57).pdf. 110 Id. s. 4.4.14. 111 imo Resolution, Papahānaumokuākea Marine National Monument As a Particularly S­ ensitive Sea Area, MEPC.171(57), Annex 2, (4 Apr. 2008), http://www.imo.org/blast/blast DataHelper.asp?data_id=22481&filename=171(57).pdf.

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The imo also designates three scientific and educational criteria: first, ­ esearch (an area that has “high scientific interest”); second, Baseline for MonR itoring Studies, meaning that the area provides “suitable baseline conditions with regard to biota or environmental characteristics.”112 The third criterion is Education, meaning an “area that offers an exceptional opportunity to demonstrate particular natural phenomena.”113 The Galapagos Archipelago pssa is a prime example of all three of these criteria. It provides scientists “tangible clues about adaptation and dispersion of species,” and is “one of the most important places to study evolution, biogeography and animal behaviour.”114 2) Vulnerability to Impacts from International Shipping In addition to meeting one of the ecological, socio-economic, or scientific ­criteria, the area’s recognized attributes must be at risk from international shipping activities.115 The imo lists both vessel traffic characteristics and natural factors that should be considered. Vessel traffic characteristics that could put an area at risk of environmental harm include Operational Factors (types of activities, such as fishing, pleasure craft, or oil rigs, that “by their presence may reduce the safety of navigation”),116 and Vessel Types, such as “high-speed vessels, large tankers, or bulk carriers with small under-keel clearance.”117 They also include Traffic Characteristics, meaning that the volume, concentration, or interaction of the traffic is “such as to involve greater risk of collision or grounding,”118 and Harmful Substances Carried, referring to the carriage or substances, whether as cargo, fuel or stores, “that would be harmful if released into the sea.”119 The imo lists three natural factors that should be considered when evaluating an area’s vulnerability to impacts from shipping. First, Hydrographical Factors, meaning the topography of the area, the water depth, and the “lack of proximate safe anchorages and other factors which call for increased navigational caution.”120 Also to be considered are Meteorological Factors (“weather, 112 Id. s. 4.4.16. 113 Id. s. 4.4.17. 114 imo Resolution MEPC.135(53), “Designation of the Galapagos Archipelago as a Particularly Sensitive Sea Area,” Annex 1, (22 July 2005), http://www.imo.org/blast/blastDataHelper .asp?data_id=15737&filename=135(53).pdf. 115 Id. s. 5.1. 116 Id. s. 5.1.1. 117 Id. s. 5.1.2. 118 Id. s. 5.1.3. 119 Id. s. 5.1.4. 120 Id. s. 5.1.5.

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wind strength and direction, [and] atmospheric visibility”)121 and Oceanographic Factors (“[t]idal streams, ocean currents, [and] ice”),122 both of which could “increase the risk of collision and grounding and…also the risk of d­ amage to the sea area from discharges.”123 3) Associated Protective Measures For an area to receive a pssa designation, there must be at least one existing or proposed “associated protective measure” (apm) that would address the area’s vulnerability to the impacts of international shipping.124 The application for pssa status must provide the legal basis for each proposed apm. There are three possible legal bases for apms. An apm has a legal basis if it is “already available under an existing imo instrument.”125 If it is not a pre-existing measure, it can acquire a legal basis by being proposed for adoption under an existing or proposed imo instrument (although the legal basis does not attach until the amendment or adoption actually occurs).126 An apm may also be proposed for adoption in a territorial sea, so long as it does not derogate the rights of the coastal State.127 Finally, a measure may be proposed for adoption by international treaty pursuant to Article 211(6) of the losc, if “existing measures… would not adequately address the particularized need of the proposed area.”128 Associated protective measures may include vessel reporting or routeing requirements, discharge restrictions, operational criteria, no-anchoring areas, and prohibited activities. Vessel reporting requirements include both mandatory and voluntary reporting schemes, and are typically implemented through Ship Reporting Systems (srs) or Long Range Identification and Tracking. Long Range Identification and Tracking (lrit) is implemented by the imo through its Safety of Life at Sea (solas) regulations,129 and is a means of reporting a ship’s location via satellite. solas requires ships to have an lrit system ­“suitable for use at all times throughout the intended voyage.”130 121 122 123 124 125 126 127 128 129

Id. s. 5.1.6. Id. s. 5.1.7. Id. s. 5.1.6–5.1.7. Id. s. 7. Id. s. 7.5.2.3(i). Id. s. 7.5.2.3(ii). Id. s. 7.5.2.3(iii). Id. Safety of Life at Sea (solas) Ch. v, Regulation 11, https://mcanet.mcga.gov.uk/public/c4/ solas/solas_v/Regulations/regulation11.htm. 130 solas Ch. v, Regulation 19, s. 2.1.6, https://mcanet.mcga.gov.uk/public/c4/solas/solas_v/ Regulations/regulation19.htm.

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A Ship Reporting System (srs) is a radio method for a ship to declare to the reporting authority information about its journey, including its location, intended route, and any incidents involving the discharge of harmful substances or other marine pollutants.131 Ship Reporting Systems are also implemented by the imo through solas. The Galapagos Archipelago pssa includes a mandatory srs requirement for all ships within the pssa to report on twelve aspects of the ship’s navigation, including location, speed, intended route, type of cargo (including hazardous materials), and quantity and type of remaining fuel.132 The reports must be sent upon entering the pssa, exiting the pssa, and when deviating from the intended route within the pssa.133 Some srs requirements are concerned only with the activities of larger ships, or ships carrying hazardous cargo. The Papahānaumokuākea Marine National Monument pssa, located north-west of Hawaii, includes an srs requirement that only applies to ships of 300 gross tonnage or greater.134 Vessel routeing is a category of apm that includes compulsory and recommended pilotage programs, and traffic separation schemes. Compulsory pilotage programs require ships to maintain contact with the applicable pilotage authority and comply with the authority’s instructions as to appropriate navigational routes. It is not clear whether the imo would be willing to impose a compulsory pilotage program in areas beyond national jurisdiction. Indeed, it is not even clear who the pilotage authority would be in such instances, although it is possible that coastal States with adjacent territorial seas and eezs would volunteer to assume that authority. The case of the Torres Strait pssa application is instructive here. In 2003, Australia and Papua New Guinea submitted a pssa application for the waters of the Torres Strait, an international strait that lies between the two countries.135 The strait, which lies within the territorial seas and eezs of the countries,136 has long been recognized as an international shipping route. The pssa application proposed an apm that would extend Australia’s compulsory pilotage program to the strait. Other member States of the imo vigorously opposed the 131 imo Resolution A.851(20) (27 Nov. 1997), http://www.imo.org/blast/blastDataHelper .asp?data_id=22635. 132 imo Resolution msc 229.82, Annex 21, ¶ 3.3.1 (5 Dec. 2006), http://www.imo.org/blast/ blastDataHelper.asp?data_id=17266&filename=229(82).pdf. 133 Id. ¶ 3.4.1. 134 imo Resolution MSC.248(83), Annex 26, ¶ 1.1.1 (8 Oct. 2007), http://www.imo.org/blast/ blastDataHelper.asp?data_id=20465&filename=248(83).pdf. 135 See Julian Roberts, Marine Environment Protection and Biodiversity Conservation 150–159 (2007). 136 http://eatlas.org.au/media/1017 (click on “interactive map” for an interactive overview of the maritime boundaries).

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application of a compulsory pilotage program to a body of water widely recognized as an international strait.137 It was argued that “international straits are sacrosanct and the right of transit defined in the losc is an absolute which will always trump other values, whether environmental or cultural.”138 After two years of debate, the pssa was approved after the proponents of the application agreed that the pilotage program would be “recommended” rather than compulsory.139 Arguably, the losc “freedom of navigation” is even more sacrosanct in areas beyond national jurisdiction than in the Torres Strait, which is not located beyond national jurisdiction.140 Nonetheless, there is also a strong argument that compulsory pilotage programs do not deny any State the freedom to navigate—they merely ensure that navigation proceeds in a way that maximizes the safety of ships and the protection of the environment. Another set of controversial apms are construction, design, equipment and manning standards (cdems). cdems are requirements that speak to how ships are designed, which equipment or features a ship must have, and/or the quality of the ship’s crew. It has been argued that applying cdem standards to localized areas is contrary to the principle of freedom of navigation.141 When an area in the north-east Atlantic Ocean was proposed for pssa status, the proposal included an apm prohibiting certain types of single-hull tankers carrying heavy grades of oil. Because the apm would regulate the hull design of ships, it was considered a cdem standard that would violate the freedom of navigation. Many States opposed the apm for this reason, and the apm was ultimately withdrawn from the pssa proposal.142 Although the cdem standard was not adopted in that instance, there is still the possibility that one could be adopted in the future, as they are not explicitly prohibited by imo regulations or the United Nations Convention on the Law of the Sea. In fact, it has been argued that the “imo has already adopted one measure that could be construed as a 137 See id., 157–158, see also Suzanne Lalonde, ‘The Artic Exception and the imo’s pssa Mechanism: Assessing Their Value as Sources of Protection for the Northwest Passage’, 28 Int’l J. Marine & Coastal L. 401, 429 (2013). 138 Suzanne Lalonde, ‘The Artic Exception and the imo’s pssa Mechanism: Assessing Their Value as Sources of Protection for the Northwest Passage’, 28 Int’l J. Marine & Coastal L. 401, 430 (2013). 139 See Julian Roberts, Marine Environment Protection and Biodiversity Conservation 150–159 (2007). See id., 159. 140 losc Part iii, which applies to international straits, arguably provides less freedom of navigation than Part vii, which applies to the high seas. 141 See Julian Roberts et al., ‘Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept’, 25 Int’l J. Marine & Coastal L. 483, 510 (2010). 142 See id.

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cdem standard.”143 Specifically, an amendment to Annex i of marpol 73/78 “will prohibit the carriage and use of heavy fuel oil (hfo) on ships operating in Antarctic waters…(italics added).”144 This amendment’s prohibition of the use of heavy fuel oil effectively excludes ships whose fuel systems are designed to use that grade of oil. Another controversial type of apm is an Area to Be Avoided (atba) designation, which prohibits navigation in the atba altogether. The Malpelo ­Island pssa (off the coast of Colombia) includes an Area to Be Avoided that applies to large ships and fishing vessels.145 However, proposals for atbas are not approved in all cases. An atba within the Swedish eez was proposed for the Baltic Sea pssa, but was vigorously opposed by some States, and the imo nav Sub-committee concluded that the pssa proposal did not justify a mandatory atba.146 Nonetheless, reluctance to approve Areas to Be Avoided does not appear to be a trend, as that same year the imo approved an extensive atba in the Galapagos Archipelago pssa,147 and three years after that, the imo approved several atbas for areas within the Papahānaumokuākea Marine ­National Monument.148 Finally, No-Anchoring zones are another available apm. For instance, the Saba Bank pssa in the Caribbean includes No-Anchoring areas that apply to all ships.149 Most areas beyond national jurisdiction are too deep for ship anchoring and therefore are probably not appropriate for No-Anchoring apms. The imo has indicated that a pssa application can include additional information to support the pssa designation. The applicant can provide ­“evidence that international shipping activities are causing or may cause damage to the attributes of the area,” as well as “any history of groundings, collisions, or spills in the area.”150 The imo will also consider “any adverse impacts to the ­environment outside the proposed pssa expected to be caused by changes to 143 See id., 511. 144 See id. 145 imo Resolution MEPC.97(47)(8 Mar. 2002); see also http://pssa.imo.org/malpelo/­malpelo .htm. 146 See id. 514. 147 imo Resolution MEPC.135(53), ‘Designation of the Galapagos Archipelago as a ­Particularly Sensitive Sea Area’, Annex 2, (22 July 2005). 148 imo Resolution MEPC.171(57), Annex 4, (4 April 2008); http://www.imo.org/blast/­ blastDataHelper.asp?data_id=22481&filename=171(57).pdf. 149 imo Resolution MEPC.226(64) (5 Oct. 2012). 150 imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24), s. 5.2.1–5.2.2 (1 Dec. 2005), http://www.imo.org/ en/OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf.

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international shipping activities as a result of pssa designation.”151 Other information that “might be helpful” includes “stresses from other environmental sources…[and] any measures already in effect and their actual or anticipated beneficial impact.”152

Assessment of Application of pssas to Areas beyond National Jurisdiction

Why the Particularly Sensitive Sea Area Concept Should be Applied to abnj The conservation of the high seas presents unique difficulties because areas beyond national jurisdiction are not governed by any single State, so any conservation measures must necessarily be the product of interstate cooperation. With respect to area-based conservation of abnj, this interstate cooperation has already been achieved through the systems described above: (1) the un Food and Agriculture Organization’s Vulnerable Marine Ecosystem f­ ramework, (2) the Convention on Biological Diversity’s process for identifying Ecologically or Biologically Significant Marine Areas, (3) the International Seabed ­Authority’s identification of Areas of Particular Environmental Interest, and (4) marpol’s provisions for “Special Areas.” The pssa framework has not yet been applied to areas beyond national ­jurisdiction, but it is well-suited to do so for a number of reasons. First, it is a process administered by the imo. The imo is uniquely situated to facilitate the conservation of areas beyond national jurisdiction because it is widely recognized as a comprehensive regulatory authority of vessel activities – i­ncluding in abnj.153 Although the imo is not itself vested with powers to create or ­enforce regulations, it is the entity that provides the infrastructure for States to mutually agree upon regulations and to exercise their individual powers of enforcement of those regulations. Second, the pssa guidelines have already been agreed upon by the imo member States, so the pssa framework is immediately available for application to areas beyond national jurisdiction without further a)

151 Id. s. 5.2.3. 152 Id. s. 5.2.4–5.2.5. 153 See Julian Roberts, Marine Environment Protection and Biodiversity Conservation 3 (2007).; see also Julian Roberts et al., ‘Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept’, 25 Int’l J. Marine & Coastal L. 483, 501 (2010), “[t]he legitimacy of the imo is in principle beyond doubt and spatial measures adopted by its subsidiary bodies are capable of affecting the rights and freedoms of third States—even on the high seas….”.

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interstate negotiations. Third, the pssa framework provides a comprehensive, area-based management tool that addresses many of the weaknesses of the ­fragmented collection of environmental protection measures currently available in abnj. The pssa regulations do not need any revisions in order to logically apply to areas beyond national jurisdiction. From a scientific perspective, the pssa eligibility criteria are equally appropriate to use when analyzing areas beyond national jurisdiction as they are for territorial seas and eezs. From a legal ­perspective, the regulations do not contain any indication that application to areas beyond national jurisdiction would be unanticipated, or prohibited. ­Furthermore, there are pre-existing interstate frameworks, such as marpol, and the Safety of Life at Sea Convention (solas), that can be used to implement Associated Protective Measures, so long as the apms do not contravene the un Convention on the Law of the Sea (losc). Finally, as discussed in the introduction, above, the un General Assembly bbnj working group is already in the process of setting the stage for negotiations to establish marine protected areas in abnj, making it clear that area-based conservation of abnj is the intent of the un and indicates the trajectory of international marine conservation. By recognizing the appropriateness of applying the pssa framework to abnj, the imo, as a specialized agency of the un, will be acting consistent with that trajectory. Process of Applying the pssa Concept to Areas beyond National Jurisdiction The process of obtaining a Particularly Sensitive Sea Area designation, described in more detail in the subsections below, commences with a Member government submitting an application to the imo’s Marine Environment ­Protection Committee (mepc).154 The mepc considers the proposal “with the assistance of a technical group set up for that purpose.”155 The proposed Associated Protective Measures in the proposal are then reviewed by various imo bodies, including committees, sub-committees, or even the Assembly, depending on the nature of the apms.156 If the apms are approved by the designated imo bodies, then the decision is left to the mepc as to whether the pssa proposal as a whole should be approved.157

b)

154 imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24), s.s.s. 3.2, 8.3 (1 Dec. 2005), http://www.imo.org/ en/OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. 155 Id. s. 8.3.1. 156 Id. s. 8.3.2–4. 157 imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24), s. 8.3.6–7 (1 Dec. 2005), http://www.imo.org/ en/OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf.

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i) Formulation of pssa Proposal Only a Member Government of the imo (“Government”) may submit a pssa application.158 More than one Government may submit an application, and Resolution A.982(24) states, “Where two or more Governments have a common interest in a particular area, they should formulate a coordinated proposal.”159 There is some argument as to the meaning of this statement—does it merely mean that it is preferable for two or more Governments that support a pssa to endeavor to work together on a common proposal? Or, does it mean that any Government with a “common interest” in an area can demand to be included in the coordinated proposal, even if that Government objects to the pssa and intends to prevent the proposal from moving forward?160 The latter interpretation would allow any government with a “common ­interest” in an area a unilateral veto right against any pssa application being submitted for that area. This argument presented itself when a pssa for parts of the Baltic Sea was proposed.161 The Russian Federation opposed the proposal, and even though the application did not cover any areas in its jurisdiction, the Russian Federation argued that it nonetheless had navigational interests in the area, and therefore its consent to any pssa proposal was required.162 The imo’s Marine Environmental Protection Committee rejected this argument on the ground that the Russian Federation’s participation in the pssa proposal was not required since the waters were outside the Russian Federation’s jurisdiction.163 Thus, at least for areas within territorial seas and eezs, it appears that unanimous support of affected governments is not required. That pssa proposal did not include any areas beyond national jurisdiction, so it is not clear how the coordinated proposal provision would be interpreted for proposals that include abnj. Under losc, all States have an interest in areas beyond national jurisdiction.164 A State could argue that a proposal for a pssa in abnj must have the

158 imo Assembly, Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, Resolution A.982(24), s. 3.1 (1 Dec. 2005), http://www.imo.org/en/ OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. 159 Id. 160 See Julian Roberts et al., ‘Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept’, 25 Int’l J. Marine & Coastal L., 2010, 483, 505–507. 161 See id., 506. 162 See id. 163 See id. 164 See, e.g., losc Article 87: “The high seas are open to all States, whether coastal or landlocked….”.

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unanimous support of all member States since they all have an interest in the area, just as the Russian Federation argued that its support was required for the Baltic Sea proposal because it had an interest in the Baltic Sea. However, as noted above, the Russian Federation’s argument was rejected because it did not have jurisdiction over any of the areas in the proposal, and likewise, no State has jurisdictional authority over abnj. Thus, there is a viable argument that a proposal for a pssa in areas beyond national jurisdiction need not obtain the consent of all member States. ii) Submission and Approval of pssa Application The Government (or Governments) formulating the pssa proposal must first submit it to the imo Marine Environment Protection Committee (mepc),165 and may make a presentation of the proposal to the mepc.166 The mepc, in considering the proposal, “should establish a technical group, comprising representatives with appropriate environmental, scientific, maritime, and legal expertise.”167 If any technical groups are formed, they assess the application and prepare a report for the mepc.168 After assessing the proposal and any reports from technical groups, the mepc may choose to designate a pssa “in principle,” while the proposed apms are being reviewed by the appropriate imo body.169 Depending on the apm, the appropriate imo body may be a committee, a sub-committee, or even the Assembly.170 The imo committees, each of which are comprised of all member States, are the above-described Marine Environment Protection Committee (mepc), as well as the Maritime Safety Committee, the Legal Committee, the Technical Co-operation Committee, and the Facilitation Committee.171 The Maritime Safety Committee is known as the “highest technical body” of the imo.172 The Committee considers “any matter within the scope of the Organization [imo] concerned with aids to navigation, construction and equipment of vessels… training and qualification of seafarers… rules for the prevention of collisions, handling of dangerous cargoes… and any other matter directly 165 imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24), s.s.s. 3.2, 8.3 (1 Dec. 2005), http://www.imo.org/ en/OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. 166 Id. s. 8.3.2. 167 Id. s. 8.3.1. 168 Id. s. 8.3.3. 169 Id. s. 8.3.2. 170 Id. s. 8.3.4. 171 http://www.imo.org/en/About/Pages/Structure.aspx. 172 Id.

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­affecting ­maritime safety…”173 Many, if not all, apms fall within the scope of the Maritime Safety Committee’s concern. The Legal Committee is “empowered to deal with any legal matters within the scope of the organization,”174 and may render an opinion about the legality of proposed apms, especially if they are novel ones. The Technical Cooperation Committee implements the imo technical programs, including a program to assist developing countries in implementing the imo marine environment protection standards.175 This may be especially relevant to pssas proposed in areas beyond national jurisdiction, where enforcement of apms is largely dependent on the flag State’s adherence to the imo’s enforcement scheme. The Facilitation Committee may also have a particular interest in pssas proposed in the high seas, because the Committee is charged with facilitating cooperation between States in implementing imo programs. Conservation of abnj will, by definition, require cooperation between States since no State has jurisdiction over the area. There are seven imo sub-committees who could potentially review proposed Associated Protective Measures, and they are: Carriage of Cargoes and Containers; Human Element, Training and Watchkeeping; Implementation of imo Instruments; Navigation, Communications and Search & Rescue (formerly “nav”); Pollution, Prevention and Response; Ship Design and Construction; and Ship Systems & Equipment.176 Given that Associated Protective Measures can range from cargo restrictions to vessel routeing to discharge requirements it is possible that a proposed pssa could trigger review by many, if not all, of the sub-committees. The assigned committees and sub-committees review whether the Associated Protective Measures in the proposal meet the requirements for the instruments under which they are proposed. A pssa application cannot be ­approved until at least one proposed apm has been approved by the appropriate ­committee or other imo body.177 When the proposed Associated Protective Measures for an abnj are reviewed, there will likely be debate as to whether the measure violates the freedom of navigation codified in losc.178 However, the un Division for Ocean 173 imo Resolution A.836(19), p. 3, ¶ I(1), http://www.imo.org/blast/blastDataHelper .asp?data_id=23913&filename=836(19).pdf. 174 http://www.imo.org/en/About/Pages/Structure.aspx. 175 imo Resolution A.836(19), p. 7, http://www.imo.org/blast/blastDataHelper.asp?data_ id=23913&filename=836(19).pdf. 176 Id. 177 Id. 178 See losc Article 87(a).

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Affairs and the Law of the Sea has concluded that an apm endorsed by the imo assembly upon recommendation by both a committee and its sub-committee that the apm is in conformity with imo requirements, would be “de facto in conformity with the losc ‘as losc defers to imo on navigational rules, regulations and standards.’”179 After approval of the apms by the appropriate imo body, the mepc may ­designate the area as a pssa.180 If, on the other hand, the mepc rejects the application, it must provide “a statement of reasons for its decision and, if appropriate, request the Member Government to submit additional information….”181 A pssa designation in abnj affects a variety of parties, many of whom may be motivated to intervene during the pssa approval process. Therefore, in order to increase the likelihood of approval of a pssa proposal, the Government leading the proposal initiative would do well to build support for the proposal among affected parties prior to its submission. Such parties would include States most likely to be affected by the pssa requirements (for instance, States whose ships commonly use the area as a navigation route), and States whose territorial seas, eezs, and/or continental shelves abut the proposed area. Within those States, there may be separate government departments or ministries (such as federal governments, state governments, and ministries of shipping, trade or environmental protection) who may need to be individually consulted. There may also be regional organizations that are affected, and inter-­ governmental entities, such as trade consortiums, who would be interested in the outcome of the pssa process and whose support or opposition could have a significant effect on the decision of whether to approve the proposal. iii) Enforcement of apms Once the pssa has been designated, enforcement of the Associated Protective Measures is determined by the instruments governing the measures. In other words, an apm that is a provision of marpol would be enforced as provided under marpol. Likewise, an apm under solas would be enforced as provided under solas. 179 See Julian Roberts et al., ‘Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept’, 25 Int’l J. Marine & Coastal L. 483, 507 (2010), quoting imo, ‘Comments made by the Division for Ocean Affairs and the Law of the Sea of the United Nations in Connection with Issues Raised in Document leg’, 87/16/1 (October 2003). 180 imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24), s. 8.3.7 (1 Dec. 2005), http://www.imo.org/en/ OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. 181 Id. s. 8.3.6.

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Under losc, primary enforcement responsibility lies with the flag State, as it has exclusive jurisdiction over its ships on the high seas.182 losc specifically provides that “States shall ensure compliance by vessels flying their flag or of their registry with applicable international rules and standards, established though the competent international organization….”183 Since the imo is “the competent international organization” with respect to the regulation of navigation on the high seas, and a pssa designation, including its apms, is a set of “rules and standards” established by the imo, it is clear that flag States have enforcement responsibility related to their ships’ conduct in areas designated as pssas. losc arguably also provides port States with the option to enforce Associated Protective Measures. Article 211 allows States to “establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry of foreign vessels into their ports,” provided that they “give due publicity to such requirements and shall communicate them to the competent international organization.”184 Unlike other articles of losc, this provision does not limit its applicability to jurisdictional areas such as territorial seas, continental shelf, or eezs; therefore, it is arguable that States could make compliance with the apms of pssas in areas beyond national jurisdiction a condition of port entry.185 Some port States have opted to exercise “Port State Control” (psc), which gives them the authority to ensure that all ships leaving their ports comply with all applicable international regulations.186 The imo has formally 182 See losc, Article 92, http://www.un.org/depts/los/convention_agreements/texts/LOSC/ closindx.htm, “Ships shall said under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas,” see also id., Article 216, “[P]ollution of the marine environment by dumping shall be enforced… by the flag State….”. 183 losc, Article 217, http://www.un.org/depts/los/convention_agreements/texts/LOSC/ closindx.htm. 184 Id., Article 211(3). 185 See Julian Roberts et al., ‘Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept’, 25 Int’l J. Marine & Coastal L. 483, 517 (2010), “[P]ort State jurisdiction under the losc [losc] is, in principle, unlimited.” imo Assembly, ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, Resolution A.982(24), s. 8.3.7 (1 Dec. 2005), http://www.imo.org/en/ OurWork/Environment/PSSAs/Documents/A24-Res.982.pdf. 186 See imo Assembly, ‘Regional Co-Operation in the Control of Ships and Discharges’, Resolution A.682(17) (6 Nov. 1991), http://www.imo.org/blast/blastDataHelper.asp?data_ id=24510&filename=A682(17).pdf.

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r­ ecognized and encouraged this practice, as well as the practice of port States entering into regional “memorandums of understanding” (mous) with other port States so that inspection requirements are coordinated among the ports at which a ship may dock during a voyage.187 The first such mou was the Paris Memorandum of Understanding, signed in 1982 by European port States.188 Eight additional mous have since been created, spanning Asia, Latin America, the Caribbean, West and Central Africa, the Black Sea, the Mediterranean, and the Indian Ocean.189 In addition, the United States Coast Guard maintains its own port State control regime.190 Since a pssa designation by the imo is a valid regulatory regime, a port State can require pssa apm compliance for any ship leaving its port and intending to navigate through a pssa that is beyond national jurisdiction. Compliance with Associated Protective Measures can be facilitated by the use of Ship Reporting Systems (srs) and Long Range Identification and Tracking (lrit). A Ship Reporting System provides a method for ships to declare their location and intended route, as well as report any incidents involving the discharge of harmful substances or other marine pollutants.191 Ship Reporting Systems are implemented by the imo through its Safety of Life at Sea (solas) regulations.192 lrit is another means of reporting a ship’s location, and is also implemented by the imo through solas. solas requires ships to have an lrit system “suitable for use at all times throughout the intended voyage.”193 There is a strong argument that both coastal and port States are entitled to use lrit in their efforts to monitor compliance with apms. The imo has specifically authorized States to request lrit information for “safety and 187 Id., “Noting with appreciation that a number of maritime nations elsewhere in the world are exercising port State control…[b]eing convinced that regional co-operation in the application of port State control measures in all parts of the world would enhance international standards…[i]nvites Governments to consider concluding regional agreements on the application of port State control measures….”. 188 See ‘Paris Memorandum of Understanding on Port State Control’ (1 July 1982), https:// www.parismou.org/system/files/Paris%20MoU%2C%20incl%2038th%20amendment %20%28final%29_0.pdf. 189 http://www.imo.org/en/OurWork/MSAS/Pages/PortStateControl.aspx. 190 Id. 191 imo Resolution A.851(20) (27 Nov. 1997), http://www.imo.org/blast/blastDataHelper .asp?data_id=22635. 192 Safety of Life at Sea (solas) Ch. v, Regulation 11, https://mcanet.mcga.gov.uk/public/c4/ solas/solas_v/Regulations/regulation11.htm. 193 solas Ch. v, Regulation 19, s. 2.1.6, https://mcanet.mcga.gov.uk/public/c4/solas/solas_v/ Regulations/regulation19.htm.

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marine environment protection purposes.”194 Under solas, on receipt of a “Notice of Arrival,” port States “may request information on those ships that have declared their intention to enter one of their reports, irrespective of their location….”195 Thus, once the Notice of Arrival is received, port States are entitled to receive ship tracking information for a ship’s movements across the high seas, including any pssas in abnj. In addition, coastal States “are entitled to receive information about ships navigating within 1000 nautical miles off their coasts.”196 Since the territorial seas and eezs only extend a combined 200 nautical miles from a State’s coast, this gives coastal States information about a ship’s movements in areas beyond national jurisdiction (up to 800 nautical miles past the State’s eez).

Conclusion: Charting a New Course …

In 2014 the American Geophysical Union reported that one of its members, while researching the satellite data for signs of icebergs, discovered that altimetry data from seven satellites allowed him to estimate the number of vessels on the ocean worldwide. The data from 1992 to 2012 suggested that maritime traffic increased 300 percent in that 20 year period.197 So, in the 50 odd years since the imo started work the maritime seascape has changed radically—but so also has the legal seascape. The 1982 un Convention on the Law of the Sea codified some of the international conventions developed under imo auspices198 and, as Oxman has pointed out, the Convention also legislated for the future by reference – recognizing the ongoing legal 194 imo Assembly, ‘Use of the Long-Range Identification and Tracking Information for Maritime Safety and Marine Environment Protection Purposes’, Resolution A.682(17) (6 Nov. 1991) http://www.imo.org/en/OurWork/Safety/Navigation/Documents/LRIT/ MSC.242(83).pdf. 195 See Julian Roberts et al., ‘Area-based Management on the High Seas: Possible Application of the imo’s Particularly Sensitive Sea Area Concept’, 25 Int’l J. Marine & Coastal L., 2010, 483, 519. 196 Id. 197 Jean Tounadre, “Anthropogenic pressure on the open ocean: The growth of ship traffic revealed by altimeter data analysis” (2014) Vol. 21, issue 22, Geophysical Research Letters 7924–7932. doi: 10.1002/2014GL061786. See http://www.livescience.com/48788-ocean -shipping-big-increase-satellites.html. 198 For example the definition of “dumping” in Art 1(5) losc is based on the provisions of the London Convention (although not an imo instrument it is run through the imo). Much of the content of Section 5 of Part xii is based on existing international conventions.

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developments by competent international organizations, like imo, in relevant fields.199 Since the 1992 un Conference on Environment and Development there have been major developments in the principles of international environmental law applicable to ocean affairs. Foremost among these would be the requirements of the precautionary approach, now acknowledged by the International Tribunal for the Law of the Sea (itlos) to be a part of customary international law,200 as well as the ecosystem approach that can be argued to be one of the basic principles of modern ocean governance.201 As this paper has demonstrated, the imo has played a crucial role in the regulation of maritime transport and safety as well as marine pollution from vessel sources. It is recognized by the un Framework Convention on Climate Change (unfccc) as being the competent body to regulate emissions of greenhouse gases from shipping.202 Although initially slow to respond to this challenge it has been able to develop a new Annex vi to marpol on Atmospheric Emissions and to add CO2 to the substances covered by that Annex.203 199 Bernard Oxman, ‘Tools for Change: The Amendment Procedure,’ in United Nations, Proceedings of the Twentieth Anniversary Commemoration of the Opening for Signature Commemoration of the Opening for Signature of the United Nations Convention on the Law of the Sea (2003) un 195. 200 See Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect To Activities in The Area. Case No. 17. Advisory Opinion. International Tribunal for the Law of the Sea, February 1, 2011. At http://www.itlos.org/. See also David Freestone ­‘Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in the Area’ Advisory Opinion of the Seabed Disputes Chamber of itlos (2011) 105 American Journal of International Law, pp. 755–761 at 758ff. 201 David Freestone ‘Modern Principles of High Seas Governance: The Legal Underpinnings’ (2009) 39/1 Environmental Policy and Law 44–49. 202 The unfccc Subsidiary Body for Scientific and Technological Advice (sbsta) at its fortieth session invited the secretariats of the International Civil Aviation Organization (icao) and the International Maritime Organization (imo) to continue to report, at future sessions of the sbsta, on relevant work on addressing emissions from fuel used for international aviation and maritime transport. FCCC/SBSTA/2014/2, paragraph 125. 203 The imo itself claims that it is “the only organization to have adopted energy-efficiency measures that are legally binding across an entire global industry and apply to all countries. Mandatory energy efficiency standards for new ships, and mandatory operational measures to reduce emissions from existing ships, entered into force under an existing international convention (marpol Annex vi) in 2013. By 2025, all new ships will be 30% more energy efficient than those built last year. This is more than a target, it is a legal requirement” http://www.imo.org/en/MediaCentre/PressBriefings/Pages/55-paris -­agreement.aspx.

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In general, imo has been able to respond to well-known and well-­established environmental threats. Like the development of much of international environmental law, it is well publicized disasters that have driven the development of new proactive treaty regimes and the evolution of the law of marine pollution control is no different. The development of the oil spill compensation regimes, for example, can be tracked to a series of major oil spills—­starting with the Torrey Canyon in 1967.204 Responding to external pressure about the state of the ocean, the imo has raised many of the basic thresholds for socalled ‘operational discharges’ so that, for example, plastic wastes may not be discharged anywhere in the ocean. However, it can be suggested that it has yet to respond comprehensively to the ongoing concern of the international community about the impacts of human activities on biodiversity in marine areas beyond national jurisdiction. This paper has sought to show that other sectoral organizations and treaty regimes are responding to the idea that there are important areas in the open ocean—the areas beyond national jurisdiction—that are worthy of protection. Because of the widespread impacts of land based sources of pollution205 and, in some areas, of ocean acidification,206 few such areas can be said to be completely pristine. Nevertheless, measures have been taken to try to protect them from ongoing human impacts. Responding to a series of unga resolutions on high seas bottom fishing and the 2009 fao Guidelines on high seas bottom fishing,207 a number of rfmos have declared Vulnerable Marine Ecosystems where bottom trawling is prohibited.208 The International Seabed Authority 204 Which itself prompted the 1969 International Convention relating to Intervention on the High Seas in cases of Oil Pollution Casualties. 11 ilm 1291 (1972). For details of the Civil Liability Conventions, see Abecassis and Jarashow, Oil Pollution from Ships (2 ed., 1985). 205 The Census of Marine Life suggested that human activities – particularly pollution – have reduced ocean bio-mass by perhaps up to 30%. R. Danovaro, et al., “Exponential Decline of Deep-Sea Ecosystem Functioning Linked to Benthic Biodiversity Loss” (2008), 18(1) Current Biology: 1–8. 206 Fabry, V.J., C. Langdon, W.M. Balch, A.G. Dickson, R.A. Feely, B. Hales, D.A. Hutchins, J.A. Kleypas, and C.L. Sabine, Present and Future Impacts of Ocean Acidification on ­Marine Ecosystems and Biogeochemical Cycles, report of the Ocean Carbon and Biogeochemistry Scoping Workshop on Ocean Acidification Research held 9–11 October 2007, La Jolla, ca. 207 Supra, note 30. International Guidelines for the Management of Deep-Sea Fisheries in the High Seas, adopted by the fao Committee on Fisheries (cofi) in August 2008, pursuant to a request of the unga in unga Res 61/105 [8 December 2006] gaor 61 Session Supp. 49 vol. 1, 53. 208 For a map see http://www.fao.org/in-action/vulnerable-marine-ecosystems/en/.

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has established a network of Areas of Particular Environmental Interest in the Pacific Ocean around the Clarion-Clipperton Fracture Zone to protect representative marine biodiversity across a large region where mineral exploitation is being planned.209 The Parties to the Convention on Biological Diversity have brought to light new information about important and sensitive marine areas through an expert workshop process to describe Ecologically or Biologically Significant Areas—many of which are in abnj.210 The unga has also included the establishment of area-based management tools including marine protected areas (mpas) in abnj as one of the key items of the agenda for its Preparatory Commission discussions (which started in spring 2016) on a possible new Implementing Agreement under the losc.211 The imo already has instruments—as we have discussed—for the ­identification of areas beyond national jurisdiction deserving of further protection from the impacts of maritime shipping. marpol Special Areas can be declared for high seas areas and the Guidelines for Particularly Sensitive Sea Areas envisage them beyond the territorial sea—some already extend beyond 12 miles.212 However, as we have discussed before, there are only two marpol Special Areas in abnj,213 and as yet no pssas. There may be some institutional inertia on this issue among some i­ mportant imo parties, but it may also be no surprise to learn that it is remarkably difficult for proponents of action in abnj to meet the standard of proof requirements set out in the pssa Guidelines. Let us take as an example a unique high seas ecosystem such as the Sargasso Sea situated in the subtropical circulation zone of the North Atlantic around the islands of Bermuda. In 2012 after a rigorous scientific examination by scientists at a regional workshop the Sargasso Sea was described as an ebsa by the Parties to the cbd.214 Although the outer limits of the Sargasso Sea do change with the movements of the floating mats 209 See David Johnson and Maria Adelaide Ferreira, “isa Areas of Particular Environmental Interest in the Clarion-Clipperton Fracture Zone” (2015) 30 Int’l J. Marine & Coastal L. 559–574. 210 https://www.cbd.int/ebsa/. 211 See supra, note 29. 212 See David Freestone, Ole Varmer, Meredith Bennett, ‘Aulani Wilhelm, Theodore M. Beuttler, Jeff Ardron, Sara Maxwell and Kate Killerlain Morrison, “Place-based Dynamic Management of Large Scale Ocean Places: Papahānaumokuākea and the Sargasso Sea” (2014) 33 (2) Stanford Environmental Law Journal pp. 191–248. 213 In the Southern Ocean and the Mediterranean. The latter is a special case as discussed above notes 8 and 79. 214 Ecologically or Biologically Significant Areas (ebsas): The Sargasso Sea, https://chm.cbd .int/database/record?documentID=200098.

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of Sargassum which give the sea its name, its core area is some two million square miles. As a unique floating ecosystem which is a vital—and well documented— spawning and nursery area for a number of critically endangered species as well as a number of endemic species,215 there can be little doubt that it meets a number of the ecological, socioeconomic and scientific criteria—the first requirement for pssa designation. However for a large open-ocean area it is extremely, perhaps unreasonably, hard to meet the second of the three linked requirements – to demonstrate that it is suffering obvious damage as a result of the impacts of international shipping. The pssa Guidelines provide that “In proposing an area as a pssa and in considering what associated protective measures should be taken, other information that might be helpful includes the following: any evidence that international shipping activities are causing damage and whether damage is of a recurring or cumulative nature.”216 Although this is posed as “helpful” ­information it is the de facto burden of proof that a pssa can really only be justified if harm from shipping can be demonstrated. The third requirement—the establishment of the Associated Protection Measure (apm)—has of course its own separate burden of proof. The Sargasso Sea may again provide an example of how this works in practice. We know that this area with its unique floating ecosystems is in one of the busiest shipping areas of the North Atlantic.217 We know that shipping has ­increased exponentially in the last 20 years; we know that vessels are still permitted to make operational discharges in high seas areas—including discharges of ballast water.218 We know by analogy with other areas that such discharges will have negative impacts on mats of floating seaweed. We know that marine mammals—maybe as many as 30 species—migrate seasonally through the

215 D. Laffoley, H. Roe et al., The Protection and Management of The Sargasso Sea: The golden floating rainforest of the Atlantic Ocean; Summary Science and Supporting Evidence Case. Sargasso Sea Alliance, 2011, p. 13. At http://www.sargassoseacommission.org/storage/­ documents/Sargasso.Report.9.12.pdf. 216 Page 11 – A 22/Res.927 I:\ASSEMBLY\22\RES\927.doc. 217 Julian Roberts, Maritime Traffic in the Sargasso Sea: An Analysis of International Shipping Activities and their Potential Environmental Impacts. Sargasso Sea Alliance Science Report Series, No. 9. Available at http://www.sargassoseacommission.org/storage/documents/ No.9.MaritimeTraffic_LO.pdf. 218 Indeed the Ballast water convention encourages discharges beyond 200  nm from the coast. International Convention for the Control and Management of Ships’ Ballast Water and Sediments (adopted 13 Feb. 2004, not yet in force), Annex B, Regulation B-4.

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Sargasso Sea to Bermuda and the Caribbean from northern waters and back.219 We know that marine mammals are vulnerable to ship strikes.220 We know that vessel noise has a disrupting impact on their navigation systems, but it is difficult to demonstrate such identifiable harm in an open ocean environment. The costs of showing such harm would be prohibitive. Indeed if it were possible to prove that vessels were causing such negative impacts then the flag States of those vessels could be argued to be in breach of the requirements of the 1982 Convention to “protect and preserve the marine environment”221 and to take measures necessary to “protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.”222 This would seem to be a highly appropriate opportunity for the use of the precautionary approach. The classic definition of precaution is set out in Principle 15 of the 1992 Rio Declaration.223 It reads: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. In its 2011 Advisory Opinion,224 the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (itlos) recognized “a trend towards

219 D. Laffoley, H. Roe et al., The Protection and Management of The Sargasso Sea: The golden floating rainforest of the Atlantic Ocean. Summary Science and Supporting Evidence Case. Sargasso Sea Alliance, 2011, p. 18. At http://www.sargassoseacommission.org/storage/­ documents/Sargasso.Report.9.12.pdf. 220 The lethality of ship strikes is especially apparent in the case of right whales. Ship strikes accounted for over 35% of all known mortalities of right whales. Fisheries and Oceans Canada, ‘Recovery Potential Assessment for Right Whale’, Canadian Science Advisory R ­ eport, Sept. 2007, p. 6. 221 Art 192 losc. 222 Art 194(5) losc. 223 Principle 15 of the 1992 Declaration of the un Conference on Environment and Development, un Doc. A/CONF.151/26/Rev.1. 224 Responsibilities and Obligations Of States Sponsoring Persons And Entities With Respect To Activities In The Area. Case No. 17. Advisory Opinion. International Tribunal for the Law of the Sea, February 1, 2011. At http://www.itlos.org/.

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making this approach part of customary international law”225 and found ­precaution to be an “an integral part of the general obligation of due diligence” of states sponsoring seabed activities by requiring actions where scientific evidence on the scope and harmful impact of the activities is insufficient but “there are plausible indications of potential risks.”226 The full Tribunal took this approach further in 2015 in its Advisory Opinion in Case 21, where it found that flag States had a similar duty of due diligence to ensure that vessels flying its flag and engaged in fishing complied with their legal obligations.227 It seems relatively clear from this case law that itlos would also be likely to find the flag States of merchant vessels under a precautionary duty of due diligence to ensure they did not breach their obligations ­under the 1982 Convention or imo instruments. However these developments do not seem to be reflected in the burden of proof requirements of the pssa Guidelines.228 The international community is increasingly concerned by cumulative anthropogenic impacts on the biodiversity of the world’s oceans; although ­subject to a wide range of regulatory measures, vessel impacts are still a significant part of those impacts. The unga has the development of area-based ­management tools, including marine protected areas in abnj, on its agenda for the ongoing discussions of a new Implementing Agreement under the 1982 Convention. Two sessions of the bbnj Preparatory Commission have already been held in 2016—with two more sessions planned for 2017. The imo would be in the vanguard of this process if it incorporated the precautionary approach and the ecosystem approach more effectively into its programme of work, starting with the Guidelines on the Identification of Particularly ­Sensitive Sea Areas. 225 Id., Para 135, citing also the icj in the Pulp Mills case, (Pulp Mills on the River Uruguay) (Argentina v. Uruguay), Judgment, i.c.j. Reports, 2010. 226 Id., Para. 131. 227 Request For An Advisory Opinion Submitted By The Sub-Regional Fisheries Commission (srfc). Case 21, Advisory Opinion April 2 2015, paras 119ff. At: http://www.itlos.org/. 228 The Special Area Guidelines however seem more open to such an approach. As discussed above, the wording is more precautionary: “2.5 Conditions indicating that protection of the area from harmful substances is needed to preserve: 1 depleted, threatened or endangered marine species; 2 areas of high natural productivity (such as fronts, upwelling areas, gyres); 3 spawning, breeding and nursery areas for important marine species and areas representing migratory routes for sea-birds and marine mammals; 4 rare or fragile ecosystems such as coral reefs, mangroves, seagrass beds and wetlands; and 5 critical habitats for marine resources including fish stocks and/or areas of critical importance for the support of large marine ecosystems.” [emphasis added]

part 5 Current Ocean Law and Policy Challenges/Opportunities

⸪

chapter 14

The Antarctic Whaling Case and the International Law on the Regulation of Whaling Dan Liu* Abstract In 2010 Australia filed an application with the International Court of Justice alleging that Japan’s scientific whaling programme violated several provisions of the International Convention for the Regulation of Whaling. It requested the Court to order Japan to halt the programme. On March 31, 2014, the International Court of Justice delivered the judgment in the Whaling in the Antarctic case involving Australia, Japan and New Zealand (Whaling in the Antarctic (Australia v. Japan: New Zealand intervening). Instead of praising this landmark judgment, this paper seeks to summarize and analyze the legal issues of the case, and the conventional and institutional regulation of whaling, in order to provide profound analysis on the impact of the case on the international regulation of whaling. Japan and other whaling States have continuously engaged in “scientific whaling” (especially when jarpa ii was preceded by the Japanese Whale Research Program under Special Permit in the Antarctic) after the 1985/1986 whaling moratorium issued by the iwc. This led to the whaling case brought by Australia against Japan before the International Court of Justice (hereinafter referred to as icj) in 2010, and the final judgment was delivered in 2014. This article begins with an introduction about the factual and procedural background of the Whaling in the Antarctic case, including the previous 2008 Kyodo case (Humane Soc’y Int’l Inc. v. Kyodo Senpaku Kaisha Ltd) tackled by the Federal Court of Australia, and claims of both parties. The second part analyzes the regulation of whaling in the icrw/iwc regime, and whaling under the United Nation’s Convention on the Law of the Sea (hereinafter referred to as unclos). The third part focuses on the legal issues of the case, especially the connection between the identification of

* Dan liu is an Associate Researcher, Center for Ocean Law and Policy Studies, Koguan Law School, Shanghai Jiao Tong University. Email: [email protected]. The research is supported by the National Social Science Foundation of China (13CFX123). The author’s conference PowerPoint is available at: http://www.virginia.edu/colp/pdf/shanghai-liu.pdf.

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_015

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“maritime areas” (Antarctic area) and the determination of the icj’s jurisdiction in the case, the interpretation and application of Article vii of icrw, and the judgment of the icj. In the end, this paper examines the loopholes of whaling regulation within the icrw/iwc framework. More importantly, the inspiration and impact of the Whaling in the Antarctic case on the future of the iwc will also be analyzed.

1

The Antarctic Whaling Case: Background and Legal Issues

On May 31, 2010, Australia filed an application instituting proceedings against Japan. This is the first occasion that Australia has instituted proceedings before the icj since the Nuclear Test case in 1973, and Australia last appeared before the court as respondent in the East Timor case commenced in 1991. Japan had not appeared before the icj as either an applicant or respondent in the previous proceedings.1 1.1 Factual and Procedural Background The Japanese Whale Research Programme under Special Permit in the Antarctic (jarpa i) commenced in the 1987/88 season. The iwc has issued zero catch limits in relation to the killing of whales for commercial purposes since the 1985/86 season. One would imagine that Japan could have followed either Norway’s or Iceland’s steps. Instead Japan signed onto the moratorium out of what some describe as pressure from the United States that it would otherwise deny Japan fishing rights for the Alaskan Pollack near the coast of Alaska.2 Nevertheless, the moratorium did not stop Japan from whaling. It has brought out whaling programs both in the Antarctic and Southern Pacific Ocean, in the name of “scientific research”, for example, the Antarctic jarpa i programme, and jarpa ii programme in the Northern Pacific Ocean. The Japanese Whale Research Programme initially targeted approximately 300 minke whales per season, and increased this to 400 whales per season from the 1995/96 season. In 2005, Japan began a second phase of its research programme (jarpa ii), initially announcing its intention to target 850 minke whales and 10 fin whales as part of a feasibility study. During the 2007/8 season Japan’s target was 850 minke whales, 50 humpback whales and 50 fin whales, 1 2

1 Donald R. Rothwell, ‘Australia v. Japan: jarpa ii Whaling Case before the International Court of Justice’, available at , access date: Jan 15, 2016. 2 Yui Nishi, Dolphins, ‘Whales, and the Future of the International Whaling Commission’, 285 Hastings Int’l & Comp. L. Rev., No. 33, 2010, 289.

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although it subsequently decided not to target humpback whales.3 Between the 2005/6 season and the 2008/9 season, Japan declared a total catch of 2,599 whales in the Southern Ocean.4 On January 15, 2008, the Federal Court of Australia issued declaratory relief and an injunction against Kyodo Senpaku Kaisha Ltd. (Kyodo),5 a Japanese whaling company operating in the Southern Ocean. Kyodo operated in the Australian Whale Sanctuary, within the claimed Exclusive Economic Zone (eez) off the Australian Antarctic Territory. The Federal Court of Australia declared that Kyodo had breached sections 229–232 and 238 of the epbc Act by killing, treating, and possessing whales in the aws in the eez adjacent to the Australian Antarctic Territory. Kevin Rudd’s Labor Party adopted a position that, if elected in 2007, they would support bringing a legal claim against Japan in the International Court of Justice. This policy was extremely popular with the Australian public. However, it took three years before this policy was carried out.6 Therefore, the shift of relief from domestic judicial settlement to international dispute settlement in 2010 by Australia became a hotspot7 during that period. Although the declaration8 made by Australia for excluding all disputes relating to the delimitation of maritime zones from the jurisdiction of the icj 3 4 5 6 7 8

3 Joanna Mossop, ‘Australia v. Japan: Whaling in the International Court Of Justice’, 169 N.Z.Y.B. Int’l L, No. 7, 2009, 169–170. 4 See “Special Permit Catches since 1985”, available at , access date: Jan 15, 2016. 5 Donald K. Anton, ‘Antarctic Whaling: Australia’s Attempt to Protect Whales in the Southern Ocean,’ 319 B.C. Envtl. Aff. L. Rev., No. 36, 2009, 333. 6 Mossop, supra note 3 at 169. 7 See David Leary, ‘The Standing of Civil Society to Enforce Commonwealth Environmental Law Under Section  475 of the Environment Protection and Biodiversity Conservation Act and Its International Implications: The Japanese Whaling Case and the Law of Unintended Consequences’, Macquarie Law Journal, No.8, 2008; Mossop, supra note 3; Natalie Klein, ‘Whales and Tuna: The Past and Future of Litigation Between Australia and Japan’, 143 Geo. Int’1 Envtl. L. Rev., No.21, 2009. 8 The Government of Australia declares, under paragraph 1 (a) of article 298 of unclos, that it does not accept any of the procedures provided for in Section 2 of Part xv (including the procedures referred to in paragraphs (a) and (b) of this declaration) with respect of disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations as well as those involving historic bays or titles. See Government of Australia, “Declaration and statements”, available at , access date: Jan 15, 2016.

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and the International Tribunal for the Law of the Sea, which might somehow became an obstacle for the proceedings, Australia still filed in the Registry of the icj an application instituting proceedings against Japan on May 31, 2010. Subsequently, on 20 November 2012, New Zealand filed in the Registry of the Court a Declaration of Intervention in the case, and its request was found to be admissible by the icj on 6 February 2013.9 1.2 Claims of Both Parties Australia and Japan accepted jurisdiction of the icj on March 22, 2002, and July 9, 2007, respectively.10 Australia alleges that jarpa ii is not a programme for purposes of scientific research within the meaning of Article viii of the Convention. In Australia’s view, it follows from this that Japan has breached and continues to breach some of its obligations under the Schedule to the icrw. Australia’s claims concern compliance with the following substantive obligations: (1) the obligation to respect the moratorium setting zero catch limits for the killing of whales from all stocks for commercial purposes (para.10(e) of icrw Schedule to observe the zero catch limit in relation to the killing of whales for commercial purposes); (2) the obligation not to undertake commercial whaling of fin whales in the Southern Ocean Sanctuary (para.7(b), to act in good faith and refrain from undertaking commercial whaling of humpback and fin whales in the Southern Ocean Sanctuary); (3) the obligation to observe the moratorium on the taking, killing or treating of whales, except minke whales, by factory ships or whale catchers attached to factory ships (para.10(d)); and (4) when authorizing jarpa ii, Japan also failed to comply with the procedural requirements set out in paragraph 30 of the Schedule for proposed scientific permits.11 In its memorial, Australia requests that Japan shall refrain from authorising or implementing any special permit whaling which is not for purposes of scientific research, cease with immediate effect the implementation of jarpa ii, and revoke any authorization, permit or licence that allows the implementation of jarpa ii.”12 9 10 11 12

9 10

11 12

Whaling in the Antarctic (Australia v. Japan), Judgment, 31 March 2014, paras. 7–12. See “Australia institutes proceedings against Japan for alleged breach of international obligations concerning whaling”, available at , access date: Jan 15, 2016. Australia v. Japan, supra note 9 at para. 48. Application Instituting Proceedings, Whaling in the Antarctic (Australia v. Japan), filed in the Registry of the Court on 31 May 2010, para. 40.

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Japan, on the contrary, contested all the alleged breaches. With regard to the substantive obligations under the Schedule, Japan argues that none of the obligations invoked by Australia applies to jarpa ii, because this programme has been undertaken for purposes of scientific research and is therefore covered by the exemption provided for in Article viii, paragraph 1, of the Convention. Japan also contends that there has been no breach of the procedural requirements stated in paragraph 30 of the Schedule.13 2

Conventional and Institutional Regulation on Whaling Activities

For centuries, whales have been regarded as a res nullius resource—considered to be freely available to anyone who could hunt and kill them,14 but unregulated whaling led to a significant decline in a number of various whale species. On December 2, 1946 in Washington, dc, the International Convention on the Regulation of Whaling (hereinafter referred to as “icrw”) was adopted and signed by 15 states, asserting that whales were now to be viewed as a res c­ ommunis15 resource. Under the icrw, provisions were made to establish the International Whaling Commission (hereinafter referred to as “iwc”). Although being criticized for its imprecise and vague language employed in its provisions,16 the 1982 unclos provides a comprehensive framework governing the use of the sea and management of marine resources, including whales. Whaling under the International Convention on the Regulation of Whaling and International Whaling Commission The icrw aims to “provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.”17 Under the icrw, the iwc has operated as the principal international organization dealing with whaling, and currently it has 88 member governments.18 The iwc

2.1

13 14 15 16 17 18

13 14 15 16

17 18

Judgment, Whaling in the Antarctic (Australia v. Japan), 31 March 2014, para. 49. Emily A Gardner, ‘Swimming through a Sea of Sovereign States: A Look at the Whale’s Dilemma’, 61 Ocean Yearbook, No. 12, 1996, 61. Id. at 62. Steven Freeland and Julie Drysdale, ‘Cooperation or Chaos? – Articles 65 of United Nations Convention on the Law of the Sea and the Future of the International Whaling Commission’, 2 MqJICEL, 2005, 17. The Preamble, icrw. See Membership and Contracting Governments, available at , access date: Jan 15, 2016.

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is composed of one commissioner for each contracting party, which was given authority to amend the Schedule. While normal decisions required a simple majority, amendments to the Schedule had to be “adopted by three-quarters of the commissioners”,19 and “shall be based on scientific findings”.20 However, dissenting countries were given the right to opt out of such an agreement by filing an objection within 90 days—which could then be followed by reciprocal objections by others.21 The primary arrangement by the iwc was to give into the high quotas demanded by the members due to their interests in getting fair quotas at the time period. As a result, more whale species were hunted to near extinction.22 The discovery of cheaper alternatives to whale oil during the early 1970s became a turning point for the whaling industry as well as the management measures adopted by the iwc ever since. Currently four types of whaling are taking place (See Table  14.1): the first is commercial whaling conducted either under objection or reservation to the moratorium; the second, called aboriginal subsistence whaling, is to support the needs of indigenous peoples; the third type is whaling under scientific permit (or “special permit”); and the fourth type is whale sanctuaries. Table 14.1 Recent catches within the iwc framework.23

Types

Definition

Content

Commercial whaling

Commercial whaling catch limits

(1) The Commission took a 1982 decision which came into force for the 1986 and 1985/86 seasons that catch limits for all commercial whaling would be set to zero. (2) The Scientific Committee has developed and the Commission has adopted

19 20 21 22 23

19 Article iii(2), icrw. 20 Article v(2)(a), icrw. 21 Article v, icrw. 22 Yui Nishi, Dolphins, ‘Whales, and the Future of the International Whaling Commission’, 285 Hastings Int’l & Comp. L. Rev., No. 33, 2010, 288. 23 See “Catch Limits & Catches Taken”, available at , access date: Jan 15, 2016.

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Definition

371

Content

the Revised Management Procedure (hereinafter referred to as the “rmp”), later implemented, awaiting agreement from the Commission on Revised Management Scheme (hereinafter referred to as the “rms”), which includes additional non-scientific matters including inspection and observation. Aboriginal Catch limits for (1) Bering-Chukchi-Beaufort Seas stock whaling aboriginal subsis- of bowhead whales taken by native tence whaling people of Alaska and Chukotka; (2) Eastern North Pacific gray whales (taken by native people of Chukotka and Washington State); (3) East Greenland common minke whales (taken by Greenlanders); (4) West Greenland bowhead whales (taken by Greenlanders); (5) West Greenland fin whales (taken by Greenlanders); (6) West Greenland common minke whales (taken by Greenlanders); (7) West Greenland humpback whales (taken by Greenlanders); (8) Humpback whales taken by St Vincent and The Grenadines. Also known as “Article viii Scientific Catches taken Whaling under Scientific under scientific Whaling”. Since the ‘moratorium’ came into effect after 1986, Japan, Norway and permits Permits Iceland have issued scientific permits as part of their research programmes. Whale As a management Except for management measures sanctuaries measure governing catch and size limits, species and seasons, the iwc also designates open and closed areas for commercial whaling.

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Except for aboriginal whaling and whaling under scientific permits, which are the two exceptions to the moratorium on commercial whaling, the iwc has taken three kinds of measures to regulate whaling,24 namely, the moratorium on commission whaling, whale sanctuaries, and the rmp & rms. In 1982, the iwc adopted an indefinite moratorium on commission whaling in 1986. The moratorium is binding upon all other members of the iwc.25 Some said that the moratorium was pushed by the global movement against whaling,26 while others viewed it as the result of the battlefield between whaling countries and anti-whaling countries.27 Norway and Iceland take whales commercially at present, either under objection to the moratorium decision or under reservation to it. These countries establish their own catch limits but must provide information on those catches and associated scientific data to the Commission. The Russian Federation has also registered an objection to the moratorium decision but does not exercise it. The moratorium is binding on all other members of the iwc. Norway takes North Atlantic common minke whales within its eez, and Iceland takes North Atlantic common minke whales and also North Atlantic fin whales, again within its eez.28 As another measure taken by the iwc, sanctuaries are currently designated to prohibit commercial whaling. The first of these, the Indian Ocean Sanctuary, was established in 1979 and covers the whole of the Indian Ocean south to 55°S. The second was adopted in 1994 and covers the waters of the Southern Ocean around Antarctica.29 The Southern Ocean Sanctuaries basically declared a whale sanctuary in which all whaling would banned as a precautionary measure, although Japan continues to permit the taking of whales there for

24 25 26 27 28 29

24 The iwc has not regulated (with minor exceptions) the small cetaceans. Two agreements on small cetaceans have been adopted under the 1979 International Convention on the Convention of Migratory Species. See Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Oxford University Press, 2009), p. 725. 25 Michael Byers, International Law and the Arctic (Cambridge University Press, 2013), p. 177. 26 Arne Kalland, Japanese Position on Whaling and Anti-Whaling Campaign (The Institute of Cetacean Research, 1998), pp. 11–26. 27 Lisa Kobayash, ‘Lifting the International Whaling Commission’s Moratorium on Commercial Whaling as the Most Effective Global Regulation of Whaling’, 177 Environs Envtl. L. & Pol’y J. No. 29, 2005, 198. 28 See ‘Commercial Whaling’, available at , access date: Jan 15, 2016. 29 See ‘Whale Sanctuaries’, available at , access date: Jan 15, 2016.

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scientific research purposes under Article viii of the icrw.30 A proposal for the establishment of a whale sanctuary in the South Atlantic by Brazil was first discussed in 1998, but it failed to achieve the required three-quarter majority votes during the 59th Annual Meeting in 2007.31 The rmp is thought to be the most conservative of any system currently existing for setting quotas. Any state wishing to resume commercial whaling will have to satisfy the Commission that the relevant stock can be exploited sustainably.32 It is agreed that the rmp should not be implemented and used in the context of whaling until the accompanying Revised Management Scheme (rms) is agreed. The rms covers the aspects of commercial whaling regulation not related to setting catch limits, such as observer schemes and record keeping.33 2.2 Whaling under unclos In 1982, the status of whales in international law took on a new and more thoughtful dimension with the conclusion of unclos. Article 65 and Article 120 of unclos are of particular importance to the management of whales and thus have significant implications for iwc and icrw.34 Article 65 of unclos provides that: Nothing in this Part restricts the right of a coastal State or the competence of an international organization, as appropriate, to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this part. States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management, and study. Article 65 emphasizes the role of “the appropriate international organizations” in relation to the “conservation, management, and study” of whales. No criteria are provided in Article 65 as to what constitutes an appropriate international organization. It follows that the iwc is within the spectrum of “international organizations”, while another question arises as to whether the North Atlantic

30 31 32 33 34

30

Alexander Gillespie, ‘The Southern Ocean Sanctuary and the Evolution of International Environmental Law’, 15 International Journal of Marine and Coastal Law, No. 3, 2000, 293. 31 Birnie et al., supra note 24 at 725. 32 Id. at 726. 33 See ‘The Revised Management Procedure’, available at , access date: Jan 15, 2016. 34 Freeland and Drysdale, supra note 16 at 17.

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Marine Mammal Commission (hereinafter referred to as “nammco”35) or cites may also be characterized in this way.36 Article 120 of unclos appears in Part vii dealing with the high seas, which states that Article 65 “applies to the conservation and management of marine mammals in the high seas”. It is also worth noting that Article 65 is found in Part 5 of unclos, which relates to the 200-nautical-miles Exclusive Economic Zone (eez). Therefore, some suggest that the combined effect of Article 65 and 120 is to create a specific management regime for marine mammals in the eez and high seas, and to allow for a different regime within the eez from that of “optimum utilization”.37 2.3 Article viii and “Scientific Permit” in Question In addition to the powers of the iwc to regulate commercial whaling, the icrw conferred upon member states the power to grant their nationals special permits to harvest whales for scientific purposes. Except for giving permission to the member governments to kill whales for scientific research purposes, Article viii gives responsibility for setting and regulating these catches to individual governments, not the iwc. Although the iwc does not regulate special permit whaling, Article viii does stipulate that any country undertaking special permit whaling should report to the iwc each time a permit is issued. It also states that the scientific information produced by the special permit whaling should be presented, at least annually, to the Commission. This information is received by the iwc Scientific Committee which reviews all special permit whaling proposals and the results of any programmes, follows with the findings reported to the Commission. The Commission often makes comments on proposals it receives from contracting governments to establish or modify special permit programmes.38 35 36 37 38

35

36

37 38

nammco: nammco is an international regional body for cooperation on the conservation, management and study of marine mammals in the North Atlantic. Four parties of nammco, the Faroe Islands, Greenland, Iceland and Norway, are committed to sustainable and responsible use of all living marine resources, including marine mammals. For further discussions, see Alexander Gillespie, ‘Forum Shopping in International Law: The iwc, cites, and the Management of Cetaceans,’ 13 Ocean Development and International Law, No.1, 2002; D.H. Lawrence, ‘nammco Defies the International Whaling ­Commission’s Ban on Commercial Whaling: Are Whales in Danger Once Again?’ The Transnational Lawyer, No.6, 1993. Kimberly S. Davis, ‘International Management of Cetaceans under the New Law of the Sea Convention’, 477 Boston University International Law Journal, No. 3, 1985, 502. See ‘Special Permit Whaling (also known as Scientific Whaling)’, available at , access date: Jan 15, 2016.

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The state at the forefront of scientific whaling practice is Japan. Japan’s research whaling program has raised questions about whether these activities are merely a way to circumnavigate the present commercial moratorium. Japan has countered this with the argument that these specially designated scientific catches are essential to obtain information necessary for rational management and other important research needs.39 The first research programme, the Japanese Whale Research Programme under Special Permit in the Antarctic (jarpa i), commenced in the 1987/88 season. As noted above, it initially targeted approximately 300 minke whales per season, and increased this to 400 whales per season from the 1995/96 season.40 In 2005 Japan began a second phase of its research programme (jarpa ii), initially announcing its intention to target 850 minke whales and 10 fin whales as part of a feasibility study. Between the 2005/6 season and the 2008/9 season, Japan has declared a total catch of 2,599 whales in the Southern Ocean.41 3 The icj’s Decision on Whaling and Its Impact The subject matter of the Antarctic Whaling case centered on the violation of international obligations enshrined in the icrw. There are several issues in connection with the case, including the jurisdiction of the icj, the interpretation of Article viii, Paragraph 1 of icrw, the application of Article viii, Paragraph 1 of icrw to jarpa ii and the examination on the alleged violation of the Schedule. Legal Issues Australian 2002 Declaration and the Assertion of the icj Jurisdiction Jurisdiction of the Court usually plays a central role before the Court moves to its next proceedings. In this regard, it’s important to review the 2002 Declaration made by the government of Australia, which reads as follows, “The Government of Australia declares that it recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the 3.1 (1)

39 40 41

39 40 41

Howard S. Schiffman, ‘Scientific Research Whaling in International Law: Objectives and Objections’, 473 ilsa J. Int’l & Comp. L., No.8, 2001, 475–476. Application Instituting Proceedings, Whaling in the Antarctic (Australia v. Japan), filed in the Registry of the Court on 31 May 2010, para. 10. Resolution on jarpa ii, iwc Res, Resolution 2005–1 (2005), available at , access date: Jan 15, 2016.

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same obligation, the jurisdiction of the International Court of Justice in conformity with paragraph 2 of Article 36 of the Statute of the Court, until such time as notice may be given to the Secretary-General of the United Nations withdrawing this declaration. This declaration is effective immediately”.42 This declaration does not apply to: “(b) any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation.”43Therefore, Australia accepted the compulsory jurisdiction of the icj with the exception of any disputes relating to the delimitation of maritime zones, including the territorial sea, the eez and the continental shelf. Japan’s declaration was made on July 9, 2007.44 Japan contests the jurisdiction of the Court over the dispute submitted by Australia with regard to jarpa ii, arguing that it falls within Australia’s reservation (b). While acknowledging that this dispute does not concern or relate to the delimitation of maritime zones, Japan maintains that it is a dispute “arising out of, concerning, or relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation”; Japan also maintains that the present dispute “relates to the exploitation” of a maritime zone claimed by Australia or of an area adjacent to such a zone.45 As a result, Japan contended that the icj lacked jurisdiction to determine the application because it fell within Australia’s 2002 Declaration, which referred to disputes concerning maritime delimitation. In a previous similar dispute, namely, the Southern Bluefin Tuna case, the arbitral tribunal faced a more complicated argument raised by Japan that the agreed procedure contended in the Convention for the Conservation of Southern Bluefin Tuna (hereinafter referred to as “ccsbt”) should preclude the jurisdiction of “Annex vii proceedings”. The arbitral tribunal ruled that it lacked jurisdiction to determine the merit of the case because the ccsbt had precluded the application of Article 281 (1) of unclos.46 Unlike the Southern Bluefin Tuna case, the icj would simply tackle the legal effect of Australia’s 42 43 44 45 46

42

43 44 45 46

See Government of Australia, “Declaration and statements”, available at , access date: Jan 15, 2016. Australia v. Japan, supra note 9 at para. 31. Id. Id. at para. 32–34. B. Kwiatkowska, ‘The Southern Bluefin Tuna (New Zealand v. Japan; Australia v. Japan) Cases’, 15 International Journal of Marine & Coastal Law, No. 1, 2000, 1–36.

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2002 Declaration, no other agreements which involve the application of Article 281 of unclos. Accordingly, the Court assumed jurisdiction on the ground that the subject matter of the case was not expressly related to the delimitation of maritime zones, though it might be implied as Japan argued; moreover, Japan’s whaling activities envisaged in jarpa ii covered maritime areas under the asserted Australian Antarctic Territory or in an adjacent area.47 (2) Four Approaches to the Interpretation of Article viii of the icrw The interpretation of Article viii, especially paragraph 1 of the icrw is central to the present case. Article viii of the icrw provides as follows: 1.

2.

Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted. Any whales taken under these special permits shall so far as practicable be processed and the proceeds shall be dealt with in accordance to directions issued by the Government by which the permit was granted.

The arguments made by the parties largely reflected the disagreement as to the meaning and scope of “scientific research”. Japan initially argued that “special permit whaling under Article viii is entirely outside the scope of the icrw”.48 Japan’s observation highlighted an underlying problem in the icrw treaty and regime, specifically that there has historically been a lack of objective certainty amongst the parties about what constituted “scientific research” pursuant to Article viii. That is, in part, because the icrw does not provide a definition of the term; nor does it establish any demarcation criteria by which to distinguish permissible scientific research from the regulated activities of commercial exploitation and subsistence whaling.49 47 48 49

47 48 49

Australia v. Japan, supra note 9 at 36–41. Id. Brendan Gogarty and Peter Lawrence, ‘The icj Whaling Case: Science, Transparency and the Rule of Law’, 134 J.L. Inf. & Sci., No. 23, 2015, 139.

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The icj employed four major approaches to examine the meaning and scope of Article viii, instead of making direct interpretation on “scientific research”: Firstly, the Court notes the function of Article viii. “In light of the object and purpose of the Convention and taking into account other provisions of the Convention, including the Schedule”, the Court regarded whaling conducted under a special permit which meets the conditions of Article viii is “not subject to the obligations under the Schedule concerning the moratorium on the catching of whales for commercial purposes, the prohibition of commercial whaling in the Southern Ocean Sanctuary and the moratorium relating to factory ships.”50 Secondly, the icj made connection between the object and purpose of icrw and Article viii. Since the preamble of the icrw indicated that the Convention pursues the purpose of ensuring the conservation of all species of whales while allowing for their sustainable exploitation, the Court observed that neither a restrictive nor an expansive interpretation of Article viii is justified. The Court noted that programmes for purposes of scientific research should foster scientific knowledge; they may also pursue an aim other than either conservation or sustainable exploitation of whale stocks.51 Thirdly, when reviewing the grant of a special permit authorizing the killing, taking and treating of whales, the icj applied the “standard review” test by addressing two arms of tests: (a) whether the programme under which these activities occur involves scientific research; (b) if the killing, taking and treating of whales is “for purposes of” scientific research by examining whether, in the use of lethal methods, the programme’s design and implementation are reasonable in relation to achieving its stated objectives.52 In applying the above standard of review, the Court found itself “not to be called upon to resolve matters of scientific or whaling policy”.53 Fourthly, the Court moved on to the meaning of the phrase “for the purposes of scientific research”, and regarded the two elements of the terms “scientific research” and “for the purposes of” are cumulative.54 Again, arguments of the parties came to play. Australia’s understanding of “scientific research” relied primarily on the views of scientific experts, which maintains four essential elements (defined and achievable objectives; “appropriate methods”; peer review; 50 51 52 53 54

50 51 52 53 54

Australia v. Japan, supra note 9 at para. 55. Id. Id. at para. 67. Id. at para. 69. Id. at para. 71.

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and the avoidance of adverse effects on stock). Australia also drew on resolutions of the Commission and the Guidelines related to the review of special permits by the Scientific Committee.55 To assist the interpretation of “for purpose of” scientific research as well as Article viii, paragraph 2, Australia raised some of the features of the programme, for example, the sale of whale meat, and the pursuit of policy goals such as providing employment or maintaining whaling infrastructure.56 However, in this regard, the above arguments made by Australia did not fully persuade the Court. (3) Application of Article viii to the jarpa Programme In order to ascertain whether a programme’s use of lethal methods is for purposes of scientific research, the icj had to consider whether the elements of a programme’s design and implementation were reasonable in relation to its stated scientific objectives. Such elements may include: decisions regarding the use of lethal methods; the scale of the programme’s use of lethal sampling; the methodology used to select sample sizes; a comparison of the target sample sizes and the actual take; the time frame associated with a programme; the programme’s scientific output; and the degree to which a programme coordinates its activities with related research projects.57 Wishing to pass no judgment on the scientific merit of Japan’s stated goals,58 the court accepted that the Japanese whaling program’s four purported research objectives could “broadly be characterized as ‘scientific research’.”59 Instead, the court decided to examine, under an objective standard, whether “in the use of lethal methods, jarpa ii’s design and implementation were reasonable in relation to achieving its stated objectives.” Firstly, the Court carried an examination on the lethal methods of the design of jarpa ii. The Parties addressed three points as follows: first, whether nonlethal methods are feasible as a means to obtain data relevant to the ­j arpa ii research objectives; secondly, whether the data that jarpa ii collects through lethal methods are reliable or valuable; and thirdly, whether before launching jarpa ii Japan considered the possibility of making more extensive use of non-lethal methods.60 The icj recognized that Japan’s lethal methods were 55 56 57 58 59 60

55 56 57 58 59 60

Id. at para. 74. Id. at para. 73–95. Id. at para. 88. Id. The court reasoned that jarpa ii’s stated goals came “within the research categories identified by the Scientific Committee.” Id. at para. 127. Id. at para. 132.

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necessary to obtain at least some of the data sought by jarpa ii ­researchers. But the court held that Japan had failed to assess the potential to reduce ­j arpa ii’s sample sizes by using modem nonlethal means.61 The Court then compared jarpa and jarpa ii’s objectives and means. The icj found “considerable overlap between the subjects, objectives, and methods” of jarpa and jarpa ii.62 Because these two programs were so similar, the Court was skeptical of Japan’s argument that jarpa ii’s objectives called for larger lethal sampling than its predecessor program. In addition, Japan did not wait for the results of jarpa’s scientific assessment before launching ­j arpa. The Court found this to further undermine Japan’s claim that it designed ­j arpa ii for scientific purposes and in relation to jarpa’s results.63 Furthermore, the court also examined whether the sample sizes for the three different species were reasonable in relation to jarpa ii’s stated scientific objectives. The icj recognized that sample sizes should vary depending on Japan’s desired statistical accuracy and research time frame, but it nevertheless found Japan’s sample sizes problematic for several reasons.64 In the end, the Court held that Japan’s jarpa ii program did not qualify as a scientific program under icrw Article viii because the program’s stated goals did not align with its design and implementation.65 3.2 Evaluation of the icj Decision on the Antarctic Whaling Case For the remedies requested by Australia, the icj observed that jarpa ii is an ongoing programme and measures that go beyond declaratory relief are warranted. The Court therefore ordered that Japan revoke any extant authorization, permit or license to kill, take or treat whales in relation to jarpa ii, and refrain from granting any further permits, in pursuance of that programme; the Court sees no need to order the additional remedy requested by Australia, which would require Japan to refrain from authorizing or implementing any special permit whaling which is not for purposes of scientific research within the meaning of Article viii.66 In its judgment of March 31, 2014, the icj declared as follows: 61 62 63 64 65 66

61 62 63 64 65 66

Id. at para. 134–135. Id. at para. 151–153. Gogarty and Lawrence, supra note 49 at 336. Australia v. Japan, supra note 9 at para. 176–178. Id. at para. 227. Id. at para. 245–246.

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(1) The special permits granted by Japan in connection with jarpa ii do not fall within the provisions of Article viii, paragraph 1, of icrw; (2) Japan, by granting special permits to kill, take and treat fin, humpback and Antarctic minke whales in pursuance of jarpa ii, has not acted in conformity with its obligations under paragraph 10 (e) of the Schedule to the icrw; (3) Japan, by granting special permits to kill, take and treat fin, humpback and Antarctic minke whales in pursuance of jarpa ii, has not acted in conformity with its obligations under paragraph 10 (e) of the Schedule to icrw; (4) Japan has not acted in conformity with its obligations under paragraph 10 (d) of the Schedule to the icrw in relation to the killing, taking and treating of fin whales in pursuance of jarpa ii; (5) Japan has not acted in conformity with its obligations under paragraph 7 (b) of the Schedule to the icrw in relation to the killing, taking and treating of fin whales in the “Southern Ocean Sanctuary” in pursuance of jarpa ii; (6) Japan has complied with its obligations under paragraph 30 of the Schedule to the icrw with regard to jarpa ii; (7) Japan shall revoke any extant authorization, permit or license granted in relation to jarpa ii, and refrain from granting any further permits in pursuance of that programme. It is not surprising that the result of the Whaling case was immediately lauded in the Western popular press as a win for “good science” against “bogus ­science”.67 The Australian minister responsible for bringing the action described the result as ensuring that “the charade of scientific whaling will cease once and for all”.68 Objectively, the icj’s ruling that a Japanese whaling program violated the icrw is not only a “victory” for conservation, but also an elevation of environmental protection and respect for international environmental law above realist political considerations.69 On the other side, after the icj decision, Japan said that it had cut its Antarctic whale-catch quota by two-thirds in a move it 67 68 69

67 68 69

Martin Murphy, ‘Japan: Let Them Eat Whale’, The Diplomat (Sep 25, 2014), available at , access date: Jan 15, 2016. Gogarty and Lawrence, supra note 49 at 147. Remi Moncel, ‘Dangerous Experiments: Scientific Integrity in International Environmental Adjudications after the icj’s Decision in Whaling in the Antarctic, 305 Ecology L.Q., No.42, 2015, 308.

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hopes will convince international opponents it is conducting genuine scientific research on expeditions in the Antarctic region.70 However, the icj’s decision on the Antarctic Whaling case has been criticized for several reasons as follows. First, before Australia brought the international litigation against Japan in 2010, a major difficulty for Australia in pursuing litigation against Japan over jarpa ii rests in the fact that it implicates rights claimed by Australia over part of Antarctica and in adjacent maritime zones.71 In the previous comment on the judgment issued by the Federal Court of Australia, commentators already described the “Kyodo case” as “negative incentives presented by the unilateral exercise of Australian jurisdiction over whales in the Southern Ocean”.72 Even after the icj’s decision was delivered in 2014, suspicion remains.73 Second, the icj avoided defining “science research”, while implicitly evaluating Japan’s claims against largely unexplained scientific criteria. What made the Whaling case particularly promising in this respect is the relatively barebones reference to scientific research in Article viii of the icrw. Compared with the World Trade Organization dispute resolution regime which relates to contests over risk assessments between states, there is nothing within the text of the icrw that might be seen as qualifying the type, quality or nature of scientific research therein.74 The icj appears to have limited the general applicability of its decision outside the particular factual matrix of the dispute. In that respect, the Antarctic Whaling Case can be seen as somewhat of a “missed opportunity” to advance the rule of law in relation to international legal-scientific obligations.75 Third, the “standard review” test employed by the icj in the present case was criticized as neither explaining the jurisprudential source of, or justification for the test, nor fully considering Australia’s argument that scientific research needs to meet four basic criteria (defined and achievable objectives; “appropriate methods”; peer review; and the avoidance of adverse effects).76 70 71 72 73 74 75 76

70

See ‘Japan Cuts Antarctic Whale Quota’ (Nov. 18, 2014), available at , access date: Jan 15, 2016. 71 See abc News, ‘Whales Worth More Alive Than Dead: Report’ (14 June 2008), available at , access date: Jan 15, 2016. 72 Anton, supra note 5 at 351. 73 See Plant, Brendan, ‘Sovereignty, Science, and Cetaceans: The Whaling in the Antarctic Case’, 74 Cambridge Law Journal, No.1, 2015, 40–43. 74 Gogarty and Lawrence, supra note 49 at 146. 75 Id. at 135–136. 76 Id. at 148.

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Four, ironically, despite varied calls for inclusiveness in environmental matters, as is customary for the court, the icj did not allow third parties to intervene at oral argument or submit amicus briefs.77 That is, it made a decision that was somewhat lacking in jurisprudential transparency. 4

Impact of the Antarctic Whaling Case on icrw/iwc Regime and the Future of the iwc

4.1 Loopholes of the icrw/iwc Regime The ineffectiveness of the iwc to control the decline of whale numbers as a whole, in a large measure, has been due to the weakness in the icrw itself. It is therefore necessary to highlight several areas of weakness in the way that the icrw/iwc management regime is structured. Firstly, the preamble of the icrw partly mirrors the two motives for regulation by determining the emerging regime’s twin goals as being to conserve whale resources while at the same time providing for an orderly development of the whaling industry.78 The preamble of the icrw does not prohibit whaling, or in other words, it does not protect the whale species per se, but provides regulations on the whaling industry for the sustainable use of the present and future generations. In the Antarctic Whaling case, the Court noticed that “Amendments to the Schedule and recommendations by the iwc may put an emphasis on one or other objective by the icrw, but cannot alter its object and purpose”,79 and it therefore asserted that “neither a restrictive nor expensive interpretation of Article viii is justified”.80 Secondly, lack of effective enforcement is probably the greatest weakness of the existing icrw regime. Under the icrw regime, compliance is essentially self-regulated. A member state is responsible for enforcement of the provisions of the Convention in relation to actions “by persons or by vessels under its jurisdiction”, as well as for the prosecution of the violations.81 This does not address the situation where infractions are carried out in waters beyond the

77 78 79 80 81

77

See Philippe J. Sands & Ruth Mackenzie, International Courts and Tribunals, Amicus Curiae (Max Planck Encyclopedia of Public, 2008), pp. 6–10. 78 Sebastian Oberthür, ‘The International Convention for the Regulation of Whaling: From Over-Exploitation to Total Prohibition’, Yearbook of International Cooperation on Environmental and Development, 1998/99, 34. 79 Australia v. Japan, supra note 9 at para. 56. 80 Id. 81 Article ix (1) & (2), icrw.

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national jurisdiction of any other member state.82 Moreover, the icrw makes no provision for enforcement where the violations are carried out by a state itself rather than individuals. The iwc itself has no powers of enforcement under the icrw.83 Thirdly, the “objection provision” can be used by any iwc member to raise an objection against an amendment to the Schedule with specified timeframes.84 As a consequence, that member is not bound by the particular amendment unless it withdraws its objection. Connection between the Antarctic Whaling Case and the icrw/iwc Regime The icj’s decision on the Antarctic Whaling case has a profound connection with the icrw/iwc regime. The icrw does not explain what constitutes permissible “scientific research” under Article viii of icrw. That explains the reason why some scholars called for Amending Article viii.85 Yet, the iwc’s nonbinding review of states’ permits does provide some clues. The Scientific Committee’s own evaluations of Iceland’s and Japan’s scientific whaling programs could guide the courts. But these reports are only soft law, so courts presumably have no obligation to follow them to interpret the Convention or assess a state’s compliance with the Convention.86 A second challenge for courts is that the icrw, unlike other international agreements, does not contemplate international judicial disputes between states.87 The icj heard Australia’s claim against Japan because the countries agreed elsewhere to the court’s compulsory jurisdiction, not because the icrw refers disputes to the icj. It is well documented that iwc member governments have been unable to reach an agreement on special permit whaling. To some extent, the icj’s decision on the Antarctic Whaling case was determined in favor of Australia and New Zealand, finding that Japan’s jarpa ii was not a program for the ­purposes

4.2

82 83 84 85 86 87

82

Steven Freeland and Julie Drysdale, ‘Co-operation or Chaos?-Article 65 of United Nations Convention on the Law of the Sea and the Future of the International Whaling Commission’, 2 MqJICEL, 2005, 10. 83 John K. Setear, Can Legalization Last? Whaling and the Durability of National (Executive) Discretion, 711 Virginia Journal of International Law, No. 44, 2004, 711–718. 84 Article v (3), icrw. 85 Telesetsky Anastasia and Lee Seokwoo, ‘After Whaling in the Antarctic: Amending Article viii to Fix a Broken Treaty Regime’, 30 International Journal of Marine and Coastal Law, Issue 4, 2015, 700–726. 86 Moncel, supra note 69, 331–332. 87 Art. ix, icrw.

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of scientific research, and could not, therefore, be said to be permitted by Article viii of the icrw.88 The implications of the Judgment were discussed at the iwc Commission meeting in September 2014. Consensus could not be reached but Resolution 2014–5 on this regard was adopted by vote.89 Although the Resolution recalls that “the Court’s decision has no binding force except between parties and in respect of the particular case”, it recognizes that “the decision is a highly authoritative guide on how Article viii of the icrw should be interpreted and applied.”90 The Resolution further mentioned the Court’s view that State parties to the Convention have a duty to co-operate with the iwc and the Scientific Committee and thus give due regard to recommendations calling for an assessment of the feasibility of non-lethal alternatives.91 4.3 Future of the iwc At least two scenarios for the future development of the iwc have been discussed in the past history of the iwc. First, it could become a pure preservationist body, dealing with preferably non-lethal whale research, threats to whales beyond the catch (for example, pollution or excessive whale watching), and the like. This protectionist scenario is favored by a majority of nonwhaling countries, heavily influenced by a number of environmental ngos. The second scenario of a moderate resumption of whaling would consist in a careful reopening of selected whale stocks, at least for so-called small-type coastal whaling.92 At the 2003 meeting, as in previous years, the iwc did not adopt a proposal by Japan for an interim relief allocation of 50 minke whales to be taken by coastal community-based whaling.93 However, several countries, notably Japan, Iceland and Norway, oppose the moratorium, emphasizing that the Convention’s goal was, to “make possible the orderly development of the whaling industry.” Norway and Iceland take whales commercially at present, either 88 89 90 91 92 93

88 89 90

91 92

93

Australia v. Japan, supra note 9 at para. 247. See ‘Special Permit Whaling’, available at , access date: Jan 15, 2016. See ‘Resolution 2014–5’, iwc, available at , access date: Jan 15, 2016. Resolution 2014–5, iwc. Sebastian Oberthür, ‘The International Convention for the Regulation of Whaling: From Over-Exploitation to Total Prohibition’, Yearbook of International Cooperation on Environmental and Development, 1998/99, 34–35. See “Catch Limits & Catches Taken”, available at , access date: May 14, 2015.

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under o­ bjection to the moratorium decision or under reservation to it. These countries establish their own catch limits but must provide information on those catches and associated scientific data to the Commission. As noted above, the Russian Federation has also registered an objection to the moratorium decision but does not exercise it.94 Other countries operate entirely outside the iwc regime. The most significant of these is Canada, which banned commercial whaling in 1972 but withdrew from the Commission in 1982. It then guaranteed aboriginal whaling rights under land claim agreements with the Inuvialuit in 1984 (Sec. 14.(6), 1984 Inuvialuit Final Agreement, as amended) and the Inuit in 1993 (1993 Nunvavut Land Claims Agreement, Sec. 5.6.1).95 Recently, the iwc has accepted a limited amount of “subsistence” whaling by the Inupiat of Alaska and the Inuit of Greenland, and granted bowhead quotas for that purpose. This raises the question as to whether Canada should rejoin the iwc regimes.96 At the 65th meeting of the iwc in 2014, Japan submitted a proposal to permit small-type coastal whaling of minke whales from the Okhotsk Sea-West Pacific stock. This proposal was not adopted by the Commission, and Japan indicated that views of individual member governments on this proposal would be explored intersessionally. Now, responses from eu iwc Commissioners can be found on the iwc website. The countries that sent responses to the Japanese proposal for Small Type Coastal Whaling are: Austria, Belgium, Bulgaria, the Republic of Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, the Netherlands, Poland, Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom, and also the European Union as an accredited observer to the iwc.97 In 2011 the Commission stated its desire to maintain the progress achieved through the “Future of the iwc” process and agreed to: (1) Encourage continuing dialogue amongst Contracting Governments regarding the future of the International Whaling Commission; (2) Continue to build trust by encouraging Contracting Governments to coordinate proposals or initiatives as widely as possible prior to their submission to the Commission; and (3) Encourage Contracting Governments to continue to co-operate in taking forward the work of 94 95 96 97

94

See “Commercial whaling”, available at , access date: Jan 15, 2016. 95 Byers, supra note 25 at 176–177. 96 Anthony Speca, In the Belly of the Whaling Commission (Northern Public Affairs, 2012). 97 See “Government of Japan’s Consultation on Small-type Coastal Whaling”, available at , access date: Jan 15, 2016.

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the Commission, notwithstanding their different views regarding the conservation of whales and the management of whaling.98 Moreover, after the Antarctic Whaling case, in the Resolution passed by the iwc, the Scientific Committee in its review of new and existing special permit research programmes, will take into account elements relevant to the consideration of such programmes, which include as follows: (1) whether the design and implementation of the programmes including sample sizes are reasonable in relation to achieving the programme’s stated research objectives; (2) whether the elements of the research that rely on lethally obtained data are likely to lead to improvements in the conservation and management of whales; (3) whether the objectives of the research could be achieved by non-lethal means or whether there are reasonably equivalent objectives that could be achieved non-lethally; (4) whether the scale of lethal sampling is reasonable in relation to the programme’s stated research objectives, and non-lethal alternatives are not feasible to either replace or reduce the scale of lethal sampling proposed; and (5) such other matters as the Scientific Committee considers about the programme, having regard to the decision of the icj, including the methodology used to select sample sizes, a comparison of the target sample sizes and the actual take, the timeframe associated with a programme, the programme’s scientific output, and the degree to which a programme coordinates its activities with related research projects.99

98 99

98 99

See “Future of the iwc”, available at , access date: Jan 15, 2016. Resolution 2014–5, iwc.

chapter 15

Law of the Sea and Ocean Governance in Southeast Asia: Comparative European Lessons on Pragmatism and Principle Ronán Long* Abstract The aim of the paper is to identify a range of comparative trends in European Union law and policy that may be applicable to resolving some of the thorny issues associated with ocean governance and the implementation of the law of the sea in Southeast Asia. In particular, contemporary trends are highlighted in the European Union’s approach to fisheries management, marine environmental protection, maritime spatial planning, ocean governance, ecosystems-based management, as well as the cooperative practice of the Member States in submitting joint-submissions to the Commission on the Limits of the Continental Shelf under Article 76 of the Convention. As will be seen, the eu and its constituent Member States are pursuing a functional approach to the implementation of the United Nations Convention on the Law of Sea on all of these matters, with pragmatism trumping principle in many instances. This in turn has helped deflate tensions regarding long-standing maritime boundary and resource related issues between eu Member States.

i Introduction One of the most pressing challenges in contemporary law of the sea relates to how best to reconcile the increased assertion by states of territorial sovereignty over offshore geographical features, such as islands, rocks and low-tide elevations, with the corresponding curtailment of navigation freedoms, which are so crucial for the effective functioning of the world’s ocean trading routes.1 * Ronán Long holds the Nippon Foundation Professorial Chair in Ocean Governance and the Law of the Sea at the World Maritime University. The author’s conference PowerPoint is available at http://www.virginia.edu/colp/pdf/shanghai-long.pdf. 1 The chapter is updated from a paper presented by R. Long, Contemporary Trends in eu Law, High-Level Workshop: “Maritime Issues and unclos: Sharing European/eu and Asian ­Approaches to Territorial Disputes”, Halong Bay, Vietnam, June 4–5, 2015. Originally © koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_016

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­ owhere are the on-going processes of the “territorialization” of maritime N space, creeping jurisdiction and the militarization of disputes, more evident than in the South China and East China Seas, two regional seas through which high volume ship-borne trade passes daily. When considering the destabilizing effects of the crises in the South China Sea (scs) and the risks that it poses to the orderly functioning and stability of international trade, it is pertinent to recall that the great French political theorist and jurisprudential scholar, Montesquieu, observed presciently in his celebrated work, De L’Esprit Des Lois (The Spirit of the Laws, 1758) that: …the natural effect of commerce is to lead to peace. Two nations that trade together become mutually dependent: if one has an interest in buying, the other has one in selling; and all unions are based on mutual needs.2 Almost two hundred years later, the writings and political creed of Montesquieu, the progenitor of the principle of interdependence, profoundly ­influenced the political philosophy of Jean Monnet and Robert Schuman, who subsequently became the forefathers of European integration. Common rules on trade and the harmonization of over three-dozen other policy areas have since contributed to stability in Europe and have engendered regional support for the maintenance of a peaceful economic and political union, which is founded on the rule of law and a free trade system.3 Undoubtedly, they are the sina qua non of European Union (eu) integration.

­ ublished online in Vietnamese: Các Xu Hướng Đương Đại: Nghề Cá Liên Minh Châu Âu, p Môi Trường Biển Và Quản Lý Biển (Hanoi: eu-Vietnam Strategic Dialogue Facility, 2015). This is scheduled for publication in Vietnamese in a volume co-edited by E. Franckx and T. Thuy (Hanoi: Vietnamese Diplomatic Academy, 2016). For comparative purposes and at appropriate points in the text below, the author also draws from his publication, R. Long “Law of the Sea; The North-East Atlantic and North Sea” in D. Rothwell, A. Oude Elferink, T. Stephens, (Eds.), Oxford Handbook On The Law Of The Sea, (Oxford, Oxford University Press, 2015) 647–671. 2 C. Montesquieu, De l’esprit des lois (Geneva: 1758). For modern version see L. Versini, Sorbonne. (Paris: Sorbonne, Éditions Gallimard, 1995) 2 volumes: vol. i: pp. 1 à 604; vol. ii: pp. 605 à 1628. The passage quoted supra is cited by A. Hirschman, The Passions and the Interests (Princeton: Princeton University Press, 1977) 80. Also cited by J. Plender Capitalism: Money, Morals and Markets (London: Biteback Publishing Ltd., 2015) at text close to note 103 therein. 3 Art 3(5), Treaty of European Union.

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Similarly, the 1982 United Nations Convention on the Law of the Sea (the Convention) and its associated agreements contribute enormously to clarity and certainty in the rule of law as it applies to the ocean and related matters.4 By doing so, this sophisticated web of international and regional treaties fosters the healthy development of the global economy and growth of international trade and commerce. Nonetheless, a striking feature of the implementation of the law of the sea by coastal States worldwide is their continued obsession with advancing territorial claims and the projection of maritime zones from a broad swathe of coastal and oceanographic features.5 In many instances, as is evident from the specialist literature,6 their practice in this regard does not always conform to the letter or indeed to the spirit of the prescriptive norms set down by the Convention. This appears to be particularly the case in the South and East China Seas regions.7 In marked contrast and somewhat ironically in view of the turbulent and territorial nature of European history, the precise legal status of offshore features has not contributed to the same degree of political tension or acrimonious dispute between the 23 coastal Member States that make up the eu.8 Indeed, it appears that apart from the intractable issues associated with irregular migration across the Mediterranean Sea, the relative stability of ocean law related matters in Europe can be partly attributed to the progressive role of eu law in establishing a common framework for regional trade, the management of some offshore activities, including most notably, fisheries, as well as the adoption of a unified trans-national approach to the protection and preservation of the marine environment.9 Allied to this and independently of the eu, 4 1833 u.n.t.s. 3 / 21 ilm 1261 (1982). Entered into force on 16 November 1994. As of 25 May 2016, 167 States Parties and the European Union. There are 30 non-parties to the Convention including the United States, El Salvador, Colombia, Venezuela, Peru, Turkey, Israel, Iran, Libya, Cambodia, North Korea, Eritrea, Syria and the United Arab Emirates, as well as 17 land-locked States. 5 See, inter alia: A Roach and R.W. Smith, Excessive Maritime Claims, 3rd ed. (Leiden/Boston: Martinus Nijhoff, 2012). 6 Ibid. 7 See, for example, A. Roach, “China’s Shifting Sands in the Spratlys”, 19(5) asil 15 July 2015. Available at: http://www.asil.org/insights/volume/19/issue/15/chinas-shifting-sands-spratlys. 8 T. Treves, L. Pineschi (eds.), The Law of the Sea, The European Union and its Member States, (Leiden/Boston: Martinus Nijhoff, 1997) passim. 9 R. Long, “The Inexorable Rise of the Law of the Sea Convention within the European Legal Order” in Michael Lodge, Myron H. Nordquist, (eds.), Peaceful Order in the World’s Oceans: Essays in Honor of Satya N. Nandan, (Leiden/Boston, Nijhoff, 2014) pp. 157–185.

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several ­European Member States and neighboring coastal States have taken a pragmatic role to the management of transboundary hydrocarbon resources, as well as to the delineation and delimitation of maritime boundaries.10 Indeed, in some notable instances, they have rolled back excessive maritime claims in the North Sea and the North Atlantic and demonstrated considerable constraint in establishing Exclusive Economic Zones (eezs) in the Mediterranean Sea, with a view to averting tension with neighboring States within the region.11 With a view to sharing knowledge on European regional practice, the discussion in this paper highlights contemporary trends in the eu’s approach to fisheries management, marine environmental protection, maritime spatial planning, ocean governance, as well as the cooperative practice of the Member States in submitting joint-submissions to the Commission on the Limits of the Continental Shelf under Article 76 of the Convention.12 On all of these matters, it is increasingly evident that the eu and its constituent Member States are pursuing a functional approach to the implementation of the Convention, with pragmatism trumping principle in many instances. This in turn has helped deflate tensions regarding long-standing maritime boundary and resource related issues. Ultimately, it is not beyond the bounds of possibility that such an approach could be germane to the resolution of maritime disputes elsewhere in the world including those that have become part and parcel of regional affairs in Southeast Asia. Indeed, in the period after the Annex vii Arbitration Tribunal renders its judgment on the merits phase of the arbitration between the Philippines and China, expected in June 2016, there may well be a need for all concerned parties to search for innovative solutions to the longstanding disputes that have characterized bilateral and regional relations in the scs most notably.13

10

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R. Long “Law of the Sea; The North-East Atlantic and North Sea” in D. Rothwell, A. Oude Elferink, T. Stephens, (eds.), Oxford Handbook On The Law Of The Sea, (Oxford, Oxford University Press, 2015) 647–671. See discussion on uk and German practice infra. On practice on maritime claims in the Mediterranean Sea, see I. Papanicolopulu, The Mediterranean Sea in Donald Rothwell, Alex Oude Elferink, Karen Scott and Tim Stephens, The Oxford Handbook of the Law of the Sea (Oxford: oup, 2015), 604–625, at 611. See discussion on continental shelf claims infra. Permanent Court of Arbitration, Case No. 2013–19, The Republic of Philippines v. The People’s Republic of China, 22 January 2013. Available at: http://www.pcacases.com/web/ view/7.

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Steady Evolution of eu Policy

The eu’s approach to regional tensions over maritime disputes in the scs and East Sea has evolved in a relatively fragmented fashion and against the backdrop of increased international concerns about the militarization of the dispute and its impact on ocean trading routes. That said, the eu and China have maintained diplomatic relations for over 40 years and have joint interests in promoting a robust and effective international trading system.14 Over the past decade, nonetheless, diplomatic tensions have been increasingly manifest between China and countries in the Asia region including Taiwan, Vietnam, the Philippines, Malaysia and Brunei. In December 2015, the European Parliament highlighted a steady progression of recent regional events that are a cause for eu concern including: the on-going protests of the pro-democracy Umbrella Movement in Hong Kong; the shift from ‘responsive diplomacy’ to ‘proactive diplomacy’ in Chinese foreign policy; the publication of the White Paper on China’s military strategy, which places greater emphasis on safeguarding its maritime rights and interests; the failure of China to uphold and apply key provisions in the Law of the Sea Convention to help resolve territorial and maritime disputes in the South and East China Sea; the continued Chinese support for North Korea and the growing proliferation of weapons of mass destruction within the region; along with the consolidation of links between Russia and China in the period post the Ukrainian and Crimean crises.15 This is ­undoubtedly a veritable list of misdemeanors that will continue to influence the relationship between the eu and China for the foreseeable future, including their bilateral relations on law of the sea and trade related matters. Against this background, it is thus surprising to note that a quick review of the stop-start evolution of international affairs within the region reveals that the eu appears to have demonstrated nothing short of a degree of apathy or indifference to the escalating nature of maritime disputes in the South China Sea up until 2012.16 A sea change in eu policy occurred with the visit of the eu High Representative for Foreign Affairs and Security Policy to Phnom Penn in 14 The eec and China established diplomatic relations on the 6 May 1975. 15 European Parliament Committee On Foreign Affairs, Report on eu- China, 2.12.2015. ­Motion for a European Parliament Resolution on eu-China Relations, at paras O-T. Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=−//EP//NONSGML+ REPORT+A8-2015-0350+0+DOC+PDF+V0//EN. 16 Y. Song, K. Zou, Major Law and Policy Issues in the South China Sea: European and American Perspectives (Farnham: Ashgate, 2014) at 295.

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July 2012 and with the signing subsequently of the accession instrument to the Treaty of Amity and Cooperation in Southeast Asia.17 The latter is aimed at promoting peace, stability and cooperation in the region, as well as the settlement of disputes by peaceful means. Moreover, it provides a framework for the eu to work with asean Member States towards the resolution of territorial and other disputes within the region. The principles set out in the Treaty of Amity and Cooperation in Southeast Asia reflect the obligations that arise under eu treaty law including upholding the values of respect for human dignity, freedom, democracy, equality and respect for human rights.18 Moreover, as is well known, in its relationship with the wider world, the Union is committed to the progressive development of international law and the principles set out in the United Nations (un) Charter.19 Crucially, the Union’s action on the international scene must be guided by the principles that inspired its own creation and continue to guide its functioning on a day-to-day basis.20 Following on from this, the Union is compelled to ‘promote multilateral solutions to common problems”, utilizing the un framework and international law to address matters concerning third countries, international and regional organizations.21 In all law of the sea related matters, the aforementioned eu treaty obligations inform Union action at global and regional levels including any future measures that impinge upon regional matters in Asia. They also provide the legal basis underpinning the Union’s status as an international legal actor that is party in its own right to the Convention, the 1994 Implementation Agreement, the 1995 Fish Stocks Agreement, and many other international agreements pertaining to maritime matters.22 At the same time, it is also important to keep in mind that the 28 Member States that make up the Union are also 17 18 19 20 21 22

Council Decision 2012/308/CFSP of 26 April 2012 on the accession of the European Union to the Treaty of Amity and Cooperation in Southeast Asia, oj L 154/1, 15.06.2012. Article (Art) 2, Treaty European Union (teu). Art. 3(5), teu. Art. 21, teu. Ibid. Art. 306 and Art. 3 of Annex ix, Convention. The eu is party to both Convention and 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 of 4 August 1995 (the Fish Stocks Agreement). Dec. 98/392/EC oj L 179 (23 June 1998); Dec. 98/414/EC, oj L 189/14 (3 July 1998); Decision 96/428/EC, oj L 177/24 (16 July 1996). The eu has also accepted the fao Compliance Agreement. Council Dec., oj L 177, 16.7.1996, p. 24.

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party to the Convention and related agreements.23 As a result, the geopolitical and strategic considerations that have a bearing on the formulation and implementation of Union policies concerning the law of the sea are complex and are influenced by the Member States, as well as the role of the Union as a supranational regional integration organisation committed to the promotion of international trade and to the free-flow of navigation and communications at a global level, as well as the sustainable use of offshore resources and the protection of the marine environment.24 Over the past decade, eu policy has been slow to focus on maritime claims in Asia. Moreover, the eu and the Member States, for obvious reasons, have not and are unlikely to take a stand on the merits of the various sovereignty claims over offshore features in the scs specifically. That said, the eu institutions and the European Parliament have voiced their concerns about the building of military facilities, as well as the dangers posed by the confrontations between naval vessels and military aircraft, along with the possible establishment of an air defence identification zone in and over the South China Sea.25 The Parliament has called upon all parties involved to avoid unilateral provocative actions and has emphasised the importance of compulsory dispute settlement under Part xv of the Convention.26 Moreover, the Parliament considers it “regrettable that China refuses to acknowledge the jurisdiction of both unclos and the Court of Arbitration” but considers that: ..a way forward for a possible peaceful resolution of the tension in the areas of the South and East China Seas is the negotiation and joint implementation of codes of conduct for the peaceful exploitation of the maritime areas in question, including the establishment of safe trade routes and quotas for fishing or attribution of areas for resource exploration; endorses the urgent call by the 26th asean Summit for the speedy adoption of a Code of Conduct in the South China Sea; welcomes the agreement reached recently between China and asean to speed up consultations on a Code of Conduct for the disputes in the South China Sea; takes note 23 24

25 26

See T. Treves, L. Pineschi (eds.) The Law of the Sea, The European Union and its Member States (The Hague: Kluwer Law International, 1997) passim. R. Long “The Inexorable Rise of the Law of the Sea Convention within the European Legal Order” ” in Michael Lodge, Myron H. Nordquist, (eds.), Peaceful Order In The World’s Oceans: Essays In Honor Of Satya N. Nandan, (Leiden/Boston: Nijhoff, 2014) 157–185. Motion for a European Parliament Resolution on eu-China Relations, op cit. note 14, para 41. Ibid., para 42.

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of Taiwan’s ‘South China Sea Peace Initiative’ aimed at reaching a consensus on a code of conduct and the establishment of a mechanism allowing all sides to cooperate in the joint exploitation of natural and marine resources in the region; supports all actions enabling the South China Sea to become a ‘Sea of Peace and Cooperation’.27 The Parliament has also asked the eu High Representative for Foreign and Security Policy to identify the risks to peace and security in the region including those that impinge upon the freedom and safety of navigation, as well as other European interests.28 Furthermore, there have been a number of calls within the eu institutions for the eu to take a more proactive approach and to act as “a deal broker” by demonstrating how it has resolved similar territorial, maritime and resource related disputes in Europe. For instance, the 2012 East Asia Policy Guidelines notes the importance of the South China Sea for the eu and suggests that it should offer, at the behest of relevant parties, to share information on dispute settlement, the sustainable management of resources, as well as maritime security cooperation in sea areas that are subject to maritime disputes.29 Assuming that the relevant parties make such a request, considerable care needs to be taken with the latter suggestion for a whole range of de jure reasons pertaining to the sui generis nature of the eu institutional and treaty architecture. For instance, a notable point of distinction between the eu and Asian States is that the Union provides strong institutional structures and law-making bodies for giving effect to law of the sea obligations including the duty of cooperation that arises for States bordering enclosed or semi-enclosed seas.30 As is well known, the Convention requires such States to coordinate their actions regarding the conservation and management of living resources, the protection of the marine environment and the undertaking of marine scientific research.31 Undoubtedly, the eu has sought to discharge these obligations in a coherent fashion by fostering a strong regional approach to fishery management, marine environmental protection, maritime spatial planning, maritime security, as well as maritime governance more generally. Crucially, in all its actions both internally and externally, the Union is fully committed to 27 28 29 30 31

Ibid. Ibid., para 43. eu Guidelines on the eu’s Foreign and Security Policy in East Asia, 15 June 2012. Available at: http://eeas.europa.eu/asia/docs/guidelines_eu_foreign_sec_pol_east_asia_en.pdf. Art. 123, unclos. Art 123 (a)–(d), unclos.

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the p ­ eaceful settlement of disputes through its own dispute settlement procedures in the European Court of Justice or by reliance on international dispute settlement in disputes with third countries, such as Part xv of the Convention.32 Nonetheless, the proposed suggestion has considerable merit and there is little doubt but that the littoral States that border the East and South China Sea have much to gain from identifying the key elements in the eu approach to ocean governance and with working with the eu and the Member States towards achieving acceptable solutions to the challenges posed by maritime disputes. In this regard, it should not be forgotten that the eu and China have worked together successfully on several law of the sea related matters including anti-piracy operations in the Gulf of Aden. Before turning to these topics, it is pertinent to say a little more about the attribution of law-making powers between the Member States and the Union. This is important because in many ways it makes the Union unique as a rulebased body with a long and successful history of integration and economic prosperity. iii

Union and the Member States: The Attribution of Legal Powers

One of the most complex areas of Union law for those that are unfamiliar with the workings of the supra-national European institution is the precise attribution of legal powers (competence) between the Union and the Member States in relation to the subject matter of the Convention and other international agreements pertaining to the ocean.33 This attribution is not helped by the fact that Union competencies are in a perpetual state of progressive development in favour of the eu.34 In other words, Union law is not static but is in a steady state of promoting greater integration and ever-closer cooperation between the Member States, and in certain instances with third countries. This is a defining characteristic of the Union as a supra-national regional integration organization that makes it fundamentally different from other international bodies such as the Asia-Pacific Economic Cooperation (apec), which is the 32

33 34

R. Long, “The European Union and Law of the Sea Dispute Settlement” in J. Barrett et al. (ed.) Convention A Living Instrument (London: British Institute of International and Comparative Law, 2015), 35 pp. L. Lijnzaad “Declarations of Competence in the Law of the Sea, A Very European Affair” in M. Lodge M.H. Nordquist (ed.) at 186–207. Declaration made pursuant to Art 5(1) of Annex ix to the Convention and to Art 4(4) of the Agreement, oj L 179/1, 23.06.1998. Case C-459/03, [2006] ecr i–4635.

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forum for economic cooperation in the Asia-Pacific region. In marked contrast to the eu, however, apec does not have the same legal capacity or institutional capacity to undertake any of the tasks associated with ocean governance or the implementation of the Law of the Sea that are discharged on a regular basis by the eu. As pointed out by your author previously,35 the key point is that the Union advances regional and multilateral cooperation in law of the sea related matters by adopting laws and policies within its fields of competence and by using international law to enter into agreements with third countries and international bodies.36 Instructively, the Court of Justice has held that the Convention is an “integral part” of the European legal order pursuant to Article 216(2) of the Treaty on the Functioning of the eu.37 The Union and the Member States are thus under a duty to both uphold and implement its wide-ranging provisions. That said, it is not always easy to discern which provision of the Convention are a Union competence or remain within the prerogatives of the Member States. Some guidance on this subject can be obtained from the instrument of formal confirmation deposited by the European Community (ec) with the SecretaryGeneral of the United Nations in 1998,38 which contains an important declaration indicating the competence that the Member States had transferred to the ec at that particular time concerning matters governed by the Convention and the Part xi Agreement, as well as a more general declaration under Article 310 of the Convention concerning fishing activities outside of the eez.39 The 1998 Declaration is not a definitive list on the allocation of competences, as the eu treaties have since been amended on many subject matters that are directly applicable to advancing regional cooperation in maritime affairs including extensive provisions on: transport, competitiveness, the coordination of economic policies of the Member States, research and technological

35

This passage is replicated from: R. Long, “Law of the Sea; The North East Atlantic and North Sea”, in D. Rothwell, A. Oude Elferink, T. Stephens, (eds.), Oxford Handbook on the Law Of The Sea, (Oxford, Oxford University Press, 2015) 647–671. 36 Art 21, teu. 37 Case C-459/03 Commission v. Ireland [2006] ecr i–4635, para. 82 citing inter alia: Case C-344/04 iata and elfaa [2006] ecr i–403, para. 36. Indeed, the Court has since held that the fao Compliance Agreement, the Fish Stocks Agreement and the third country fishery partnership agreements are all integral parts of the eu legal order, see Case C-73/14, Council of the European Union v European Commission [2015] not yet reported, para. 69. 38 Council Decn. 98/414/EC, oj L 189/14, 3.07.1998. 39 Annex ii of Council Decn. 98/392, oj L 179, 23.06.1998. See com (97) 37.

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d­ evelopment, as well as on environmental protection and the prudent use of natural resources.40 Since the early 1980s, one of the fields where the Union has exercised its ­law-making powers extensively is within the domain of commercial sea fisheries. This is significant because fisheries remain a fertile area for regional cooperation in Northeast and Southeast Asia, and one of the most crucial subject matters where there is a pressing need for the introduction of sustainable management systems and effective measures to combat iuu fishing. Two aspects of the Union’s fisheries policy merit further elaboration here as they demonstrate fundamental differences from the approach adopted by apec, which has working groups on fisheries and marine resource conservation but is unable to advance a regional approach to some of the key tasks in fisheries management. iv

Sharing Fishery Resources: Internal Dimension

The conservation and management of marine biological resources, including fisheries, is an exclusive Union competence and the eu has adopted a large corpus of laws and policies in the form of the common fishery policy (cfp) since the early 1970s.41 This legislation has extensive geographical, material and personal scope.42 As your writer has noted elsewhere, one unique feature of the common fisheries policy (cfp) is that European fisheries are a common pool resource within the region and all Union fishing vessels (that is to say, vessels flying the flag of a Member State) enjoy, in principle, equal access to the waters under the sovereignty and jurisdiction of other Member States.43 In practice, however, access is curtailed by the principle of relative stability, which stipulates that the allocation of fishing opportunities is based upon a predictable share of the stocks for each Member State, as well as the protection of the entitlements of local populations dependent upon fisheries.44 Moreover, access arrangements to the coastal waters up to 12 nautical miles from the baselines is restricted 40 41

42 43 44

Arts 43(2), 91(1), 100(2), 173(3), 175, 188, 192(1), 194(2), 195(2), Treaty on the Functioning of the European Union (tfeu) oj C 115/1, 9 May 2008. Art 3(1)(d), tfeu. This passage on the cfp is replicated from: R. Long, “Law of the Sea; The North East Atlantic”, in D. Rothwell, A. Oude Elferink, T. Stephens, (eds.), Oxford Handbook On The Law Of The Sea, (Oxford, Oxford University Press, 2015) 647–671. Art 1, Reg 1380/2013 oj L 354/22 28 December 2013. Art 5 ibid. Art 16 ibid.

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to those vessels that have traditionally operated from ports on the adjacent coasts.45 Keeping coastal fisheries for the exclusive use of local fleets that have strong economic ties with nearby coastal States is undoubtedly a common feature of fisheries management worldwide. Indeed, this approach ought to be a fundamental feature for any putative regional scheme established in the scs in line with international best practice. At a practical and operational level, many facets of fisheries management and enforcement are undertaken by the Member States, who operate within Union rules, and allocate fishing opportunities to vessels on the basis of environmental, social and economic criteria such as historic catch levels. As a result of eu laws and policies, regional fisheries law amounts to a highly technical legislative code addressing many matters including fishing licences and permits, management plans, technical conservation measures, fleet size limitations, economic incentives, as well as detailed quota and fishing effort restrictions.46 Similar to the experience in other global regions, the management of fisheries in Europe has been particularly problematic and requires constant adjustment and reform.47 According to the European Commission, the traditional difficulties besetting the cfp included all of the following: unsustainable fisheries, fleet overcapacity, non-compliance by the industry with their conservation obligations, short-term management practices, government subsidies, environmentally destructive fishing practices and the failure to adhere to scientific advice.48 For countries bordering the East Sea and South China Sea, it may be interesting to note that the European fisheries policy has developed a very distinctive regional focus over the past decade. More specifically, in line with a major reform of the policy that came into effect in 2014, the policy is focused on sea-basins, namely: the North Sea, the Celtic Seas, the Bay of Biscay and the wider Atlantic, the Baltic Sea, the Mediterranean and the Black Seas, with the overall objective of achieving greater sustainability, together with enhanced economic, social and employment benefits for the sector.49 Markedly, the basic fishery regulation prohibits the practice of discarding fish back into the marine environment (a long-term weakness in the cfp) and provides for the use of 45 46 47 48 49

Art 5(2) and Annex 1 ibid. R.R. Churchill D. Owen The ec Common Fisheries Policy (opu Oxford 2010). J. Raakjaer, A Fisheries Management System in Crisis: The eu Common Fisheries Policy ­(Aalborg: Aalborg University Press, 2009). com (2009)163. Reg. 1380/2013.

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multi-annual plans for the management of selected fisheries, as well as the application of the ecosystem and precautionary approaches to the various tasks undertaken in fisheries management.50 Under the cfp, there is scope for the Member States to adopt implementation measures to give effect to the policy at a regional level, as well as an advisory role in management for regional stakeholder consultative bodies, known as Advisory Councils.51 Member States are obliged to apply common rules on enforcement and to ensure compliance with the regulatory scheme pertaining to illegal, unreported and unregulated (iuu) fishing.52 Again the latter aspect of Union law is relevant to countries in the East Sea and South China, or for countries from the region with vessels that are operating on the high seas, that is to say in areas beyond national jurisdiction. These rules are significant, in so far as: • The Union can blacklist countries that do not take appropriate action against illegal fishing activities or act contrary to international efforts to curb iuu fishing; • Only marine fisheries products validated as legal by the competent flag State or exporting country must validate fishery products before they can be exported/imported to the Union; • The Union gives full effect to the enforcement and compliance measures and lists adopted by Regional Fisheries Management Organisations (rfmos).53 Most importantly, the operators of fishing vessels who fish illegally anywhere in the world, under any flag, face substantial penalties under Union law that is aimed at depriving them of their illicit gains.54 This approach of course accords fully with and reflects the requirements set out in the 2009 fao Agreement on Port State Measures to Prevent, Deter and Eliminate iuu Fishing,55 as well as the International Plan of Action on the same subject. iuu fishing remains the most pressing marine environmental concern in the scs.56 Furthermore, there is some support in the academic literature that 50 Arts 2, 9, 10, 14 ibid. 51 Annex iii, Reg. 1380/2013. 52 Arts 36–39 Reg. 1380/2013. Reg 1005/2008 L 286/1 29.10.2008. 53 Ibid. 54 Reg. 1005/2008, Com Reg 1010/2009. 55 Not yet in force. Comes into effect after the deposit of twenty-fifth instrument of ratification with the Director-General of the fao. 56 A. Witter, L. Teh, X. Yin, W.L.C. Rashid Sumaila, Taking Stock and Projecting the Future of South China Sea Fisheries, Fisheries Economics and Changing Ocean Research Units, The Global Ocean Cluster, Institute for the Oceans and Fisheries, the University of ­British

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iuu fishing leads to other illegal activities in the region including fuel and people smuggling, as well as drug trafficking.57 All in all, the absence of an elaborate regional model for fisheries management in the South China Sea is very different from the collaborative approach taken by the eu. At a regional level, the Coordinating Body on the Seas of East Asia and the Southeast Asian Fisheries Development Centre, with representation from China, Indonesia, Malaysia, the Philippines, Singapore, Thailand, Cambodia, and Vietnam, have a very limited inter-governmental mandate in relation to the marine environment and fisheries. Similarly the geographical scope and mandates of two Asia and Pacific regional fisheries management bodies, the Asia-Pacific Fishery Commission and the Western and the Central Pacific Fisheries Commission, do not allow them to play an active, effective or direct role in combatting iuu fishing in the South China and East Seas. iuu activity thus continues to be an on-going problem with most of it taking place at the coastal State level or in fisheries that are shared between neighbouring States.58 For this reason, port state measures are unlikely to be very effective in combatting illegal practices.59 Moreover, many iuu vessels target high value migratory species, such as tuna.60 Accordingly, only joint management measures can ensure the sustainability of fisheries in the longer-term. There are some precedents with Vietnam and China adopting a bilateral agreement for fisheries in the Gulf of Tonkin, which came into force in 2004.61 There are a number of other important initiatives including the conclusion of a fisheries law enforcement agreement between the ­Philippines and Taiwan that is applicable in the area where the respective eezs overlap.62 There have been some suggestions that there is a pressing need to establish some form of a regional scheme administered by a regional o­ rganisation

57

58

59 60 61 62

Columbia, Vancouver, bc, Canada. Available at: http://oceancanada.org/wp-content/up loads/2015/03/FCWP_2015_99_Witter.pdf. Sea Resources Management, Case study of Illegal, Unreported and Unregulated (iuu) fishing off the east coast of Peninsular Malaysia. apec Publication No. 208-FS-01.4. ­(Singapore: Asia-Pacific Economic Cooperation, 2008), cited at 25 ibid. See, Introduction to illegal fishing in Asia and the Pacific Simon Funge-Smith, fao Regional Office for Asia and the Pacific, The 9th Asia Regional Partners’ Forum on Combating Environmental Crime (arpec) 22–23 June 2010, United Nations Conference Center, Bangkok, Thailand. Ibid. Ibid. Y. Huang, H. Mingming, “Implementation of the Sino-Vietnamese Fishery Agreement: Mainly Chinese Perspective” (2013) 4(3) Beijing Law Review 103–119. Agreement Concerning the Facilitation of Cooperation on Law Enforcement in Fisheries Matters on November 5, 2015.

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s­ imilar to the schemes that operated in the Europe’s regional seas, such as the International Baltic Sea Fisheries Commission.63 Significantly, at the time of writing, none of the coastal States that border the South China Sea or East Sea had ratified the 2009 fao Agreement on iuu Fishing.64 Furthermore, three of the world’s leading fishing powers, Vietnam, the Philippines and Taiwan are not yet party to the 1995 Fish Stocks Agreement. In the case of Taiwan, it is unable to become party to the Agreement and to most international fisheries treaties, because it is not a un member or one of its specialised agencies, and because of the limited number of States that maintain diplomatic relations with the government in Taipei. Nonetheless, it appears that there is an urgent need for the littoral States in the East and South China Sea to become party to multilateral agreements on the management and conservation of fisheries, as well as those that are aimed at improving compliance with high seas fisheries obligations and that are aimed at combatting iuu fishing. External Dimension of eu Fisheries Similar to many countries in Asia, Europe is a major global actor in international fisheries and has vessels that operate in third country waters and within the constraints of a highly regulated framework that is closely supervised by the European institutions and the Member States. As such, the Union’s approach to the management and conservation of straddling and highly migratory fish stocks is fully consistent with the scheme advanced by the Fish Stocks Agreement and international fisheries law more generally.65 Notably, the Union is a member of 17 rfmos, made-up of 6 rfmos concerned with the management of tuna stocks and 11 non-tuna rfmos. Under the Basic Fisheries Management Regulation, the Union’s approach to participation in the work of rfmos is based on giving full effect to the best available scientific advice so as to ensure that fishery resources are managed sustainably.66 The Union has concluded 19 sustainable fisheries partnership agreements with third countries, many of which are concerned with access to tuna stocks 63 64

65 66

K. Zou, The South China Sea, in D. Rothwell, A. Oude Elferink, T. Stephens, (Eds.), Oxford Handbook On The Law Of The Sea, (Oxford, Oxford University Press, 2015) at 644. On the 3 March 2016, the following States and regional economic integration organization were party to the 2009 Agreement: Australia, Barbados, Chile, Costa Rica, European Union – Member Organization, Gabon, Iceland, Mauritius, Mozambique, Myanmar, New Zealand, Norway, Oman, Palau, Republic of Korea, Seychelles, Somalia, South Africa, Sri Lanka, Saint Kitts and Nevis, United States of America, and Uruguay. Op. cit. note 5. Art. 29(2), Reg. 1380/2013.

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under regional arrangements.67 Briefly stated, these agreements accord with both the Convention and the Fish Stocks Agreement in that they only provide for access to the surplus stocks in coastal State waters.68 This is particularly important as many of the tuna agreements are with developing States. The agreements aim to foster conservation and environmental sustainability, as well as setting down rigorous rules in relation to compliance with Union fisheries laws and human rights obligations. In relation to the latter, each agreement has a generic “human rights clause”, aimed at guaranteeing respect for democratic principles and human rights, as laid down in the Universal Declaration of Human Rights and other relevant international human rights instruments.69 The agreements are fully consistent with the Union’s development policy objectives and should not therefore be viewed solely as fisheries agreements per se. There are a number of features of sustainable fisheries partnership agreements that merit highlighting for countries in Asia that have similar type agreements with developing states. First, the financial cost of the agreements and all of their substantive provisions are open to public scrutiny and are debated in both the European Parliament and the Council. In order to ensure absolute transparency, the terms of the agreements are freely accessible on the Internet. Secondly, the Union pays for access to fishing rights and must also support the following: the development of the local fishing industry; measures to combat iuu fishing; fostering scientific research; as well as improving fisheries control and surveillance, fishery resource management and the health and hygiene conditions of fishery products. In other words, the agreements must develop the national fishing sector in the coastal State. Thirdly, agreements are based upon the best available scientific advice and apply similar management and conservation standards to those that are applicable to vessels fishing in Union waters.70 Where possible, the agreements contain a clause prohibiting the granting of more favourable conditions to vessels of third countries fishing in those waters.71 The latter requirement of course has a bearing on the opportunities that are open to countries in Asia and elsewhere to negotiate similar agreements. 67

68 69 70 71

Tuna stocks: Cape Verde, Comoros, Côte d’Ivoire, Gabon, Kiribati, Madagascar, Mauritius, Mozambique, Sâo Tomé and Principe, Senegal, Seychelles. Mixed fisheries: Greenland, Guinea-Bissau, Mauritania and Morocco. Northern agreements: Faroe Islands, Iceland and Norway. Article 62(2) and (3), Convention. Art. 31(6), Reg. 1380/2013. Art. 31(3), Reg. 1380/2013. Art. 31(6)(a), Reg. 1380/2013.

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Prior to re-negotiation of an agreement or a protocol to an agreement, the European Commission undertakes a comprehensive ex-ante evaluation and this includes a stock assessment.72 Moreover, the Union is the only entity worldwide that makes public its international fishery agreements and evaluations. Furthermore, any Member State or European institution (the European Parliament, the Council or the Commission), may obtain the opinion of the Court of Justice as to whether an agreement is compatible with the objectives and tenor of the European treaties.73 This approach ensures that appropriate procedures are in place for oversight and judicial scrutiny. Perhaps it is also appropriate to point out that the Court of Justice of the eu has held that authorisation is required from the European Commission for eu flagged vessels to fish in third country waters and that there is a prohibition on the use of bare-boat charters for this purpose.74 This will help close the possibility of Union nationals utilising flags of convenience to circumvent the terms and conditions that apply under fisheries partnership agreements concluded by the Union with third countries. The well-established procedures that apply in the eu to the negotiation and conclusion of fishery agreements can be compared with the practice of China, which is also one of the world’s major fishing powers. In 2012, for example, a study prepared for the European Parliament noted that China had 79 fisheries agreements with third countries, many of which were characterised by a lack of transparency and whose terms remained outside the public domain due to their political and commercial sensitivity.75 According to the European Parliament study, the Chinese distant water fishing fleet is most active in West Africa and Latin America, where their activities have led to “unsustainable use of fisheries resources and have negatively impacted the socioeconomic development of host countries”.76 The same study noted that iuu fishing on the part of Chinese vessels is widespread with more than half of the iuu vessels identified in Guinean waters as Chinese.77 Moreover, 200 Chinese industrial vessels were observed operating in Liberia despite the country having only granted 17 fishing licences to these vessels.78 Allegedly, Chinese longline ­vessels are also 72 73 74 75

76 77 78

Art. 31(1), Reg. 1380/2013. Art 218(11), tfeu. Case C-565/13, Ahlström and Others, 9.10.2014. R. Blomeyer, I. Goulding, D. Pauly, A. Sanz, K. Stobberu, The Role of China in World Fisheries, (Brussels: eu, 2012). Available at: http://www.europarl.europa.eu/meetdocs/2009 _2014/documents/pech/dv/chi/china.pdf. Ibid. at 71. Ibid. at 72. Ibid. at 72.

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implicated in iuu fishing in Southeast Asia.79 Significantly, the eu has actively sought to encourage China to adopt a more transparent approach to the negotiation of international fishery agreements.80 Undoubtedly, the eu faces a tougher negotiation environment with third countries, particularly in Africa, who often have more flexible negotiation options with China, and as a result whose distant water fleet activities are often culpable of iuu fishing.81 On its part, the eu has sought to advance further cooperation with China in addressing iuu fishing and a joint working group was established for this purpose in 2016.82 v

Marine Strategy Framework Directive

International best practice suggests that fisheries should not be regulated in isolation without having regard to the conservation and ecological status of the broader marine environment. Indeed, according to the European Commission, ecological sustainability is a pre-requisite for the attainment of the economic and social sustainability of marine resources, such as fisheries.83 In line with international trends, the Union has adopted several comprehensive and sophisticated legal instruments that are aimed at protecting and preserving the marine environment including most notably the Marine Strategy Framework Directive (msfd).84 The instrument is very much focused on advancing a regional cooperative model for the protection and preservation of the marine environment and provides a useful example of Member State collaboration at a pan-European level. The msfd provides a blueprint for marine environmental protection in Union law and is the principal means for the implementation of the ecosystem approach in decisions concerning the management and use of all marine resources in sea areas under the sovereignty and jurisdiction of the Member 79 80 81 82

83 84

Ibid. at 79. Ibid. Ibid. See Joint Press Release between the eu and the Ministry of Agriculture on cooperation on Fisheries, 22 October 2015. Available at: http://eeas.europa.eu/delegations/china/ press_corner/all_news/news/2015/20151022_en.htm. com (2009)163, 22.04. 2009, p. 8. Dir. 2008/56/EC oj L 164/19, 25 June 2008. See R. Long, “The eu Marine Strategy Framework Directive: A New European Approach to the Regulation of the Marine Environment, Marine Natural Resources and Marine Ecological Services”, 29 (1) (2011) Journal of Energy and Natural Resources Law 1–45.

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States.85 One of the thematic strands running through the msfd is the need to foster the integration of environmental concerns into European policies on maritime matters. The msfd requires the Member States to achieve good environmental status (ges) of all sea areas under their national sovereignty and jurisdiction by 2020.86 The quality of the environment is assessed on the basis of eleven qualitative descriptors for determining ges, which are shown on Table 15.1 below. The overall scheme of protection is regional in so far as the msfd requires the establishment of a number of marine regions and sub-regions in the Baltic Sea, the North-east Atlantic Ocean, the Mediterranean Sea and the Black Sea. These areas are coterminous with the geographical boundaries of the existing Regional Seas Conventions. The Directive sets down a firm schedule for the Table 15.1 Qualitative descriptors for determining good environmental status.

Number

Descriptor

1

Biological diversity is maintained. The quality and occurrence of habitats and the distribution and abundance of species are in line with prevailing physiographic, geographic and climatic conditions. Populations of all commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock. All elements of the marine food webs, to the extent that they are known, occur at normal abundance and diversity and levels capable of ensuring the long-term abundance of the species and the retention of their full reproductive capacity. Sea-floor integrity is at a level that ensures that the structure and functions of the ecosystems are safeguarded and benthic ecosystems, in particular, are not adversely affected. Contaminants in fish and other seafood for human consumption do not exceed levels established by Community legislation or other relevant standards. Introduction of energy, including underwater noise, is at levels that do not adversely affect the marine environment.

3 4

6 9 11

85 86

On the ecosystem approach see Recital 44 and Article 1(3), Dir. 2008/56/EC. Dir. 2008/56/EC.

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various tasks that need to be undertaken for the attainment of ges. Thus, each Member State had to develop strategies by 2012, which contained a detailed assessment of the state of the environment, a definition of “good environmental status” at the regional level, as well as the establishment of clear environmental targets and monitoring programmes for the on-going assessment and the regular update of the targets. Each Member State must then draw up a programme of cost-effective measures by 2015 in coordination with other Member States in their marine region with a view to achieving or maintaining ges by 2020. Prior to the implementation of any new measure there is a requirement to undertake an impact assessment that contains a detailed cost-benefit analysis of the proposed measures. The msfd provides a legal basis for the adoption of Union measures in instances where Member States cannot achieve their environmental targets. Supplementing the msfd, Commission Decision 2010/477/ EU sets out the detailed criteria and methodology for the attainment of ges in marine waters.87 The msfd has three features that may be of interest to countries bordering the East Sea/South China Sea. First, the Directive does not envisage the adoption of horizontal management measures at the Union level, but entails the adoption of operational and implementation measures through the regional seas agreements, such as the ospar and Barcelona Conventions. Secondly, implementation of the msfd is intended to bring about a major shift in the emphasis of Union law-making in so far as maritime regulation and decisionmaking will no longer be organised exclusively along the vertical lines of sector policies such as fisheries, but will become more integrated in form and content at a horizontal level across a range of policies.88 Thirdly, the msfd promotes a sea-basin approach where management measures are to be harmonized at a regional or sub-regional level. Finally, it is worth noting that as a consequence of this general shift in emphasis under Union environmental legislation, it should be noted nonetheless that future regulatory measures will focus on mitigating the impacts of particular activities on the wider marine regions and will not be limited by the maritime boundaries of the Member States. That is to say, measures are to be adopted to reduce impacts on entire marine ecosystems or parts thereof.89 For this reason, the msfd is inclusive in scope and mandates expressly the Union to work with the regional authorities and other sectors to improve maritime governance so that “all interested parties are given early and effective 87 88 89

Commission Dec., oj L 232/14, 2.9.2010. com (2008) 395 final. 26.6.2008, p. 8. Descriptors 1, 3, 4 and 6 of Dir. 2008/56/EC.

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opportunities to participate in [its] implementation… involving, where possible, existing management bodies or structures, including Regional Sea Conventions, Scientific Advisory Bodies and Advisory Councils”.90 This approach is unquestionably the best example in Union marine environmental law of a collaborative approach that is very much contingent upon regional cooperation and further integration between the Member States and third countries acting collectively in the interest of the common good. Similarly, the approach of course is four square with the regional approach to environmental protection advanced by the Convention.91 Instructively, as far back as 1996, China has called for the implementation of the ecosystem approach in the China Ocean Agenda 21 and its application in the Yellow Sea ecosystem.92 The question remains however on how to implement the approach in practice in the absence of political agreement and in the absence of appropriate structures and decision-making bodies at a regional level. vi

Maritime Spatial Planning

A topic of common concern for countries bordering the East Sea/South China Sea region as well as for the Union and the Member States, is how to make the best use of maritime space for different economic and development purposes. In recent years, the Member States of the Union are increasingly committed to implementing sophisticated planning systems governing the use of maritime space in sea areas under their sovereignty and jurisdiction in the form of marine/maritime spatial planning (msp).93 In a major initiative, the Union adopted a Directive establishing a framework for msp in July 2014.94 The msp Directive aims to promote the sustainable growth of maritime economies, the sustainable development of marine areas and the sustainable use of marine resources.95 The objectives of the instrument include contributing 90 91 92

93 94

95

Article 19(1) of Dir. 2008/56/EC. Article 197, unclos. K. Zou, “The South China Sea”, in D. Rothwell, A. Oude Elferink, T. Stephens, (eds.), Oxford Handbook on the Law of the Sea, (Oxford: Oxford University Press, 2015) at 644 and note 83. These include Belgium, Germany, Portugal, Sweden, the Netherlands and the uk. Dir. 2014/89/EU. This section is taken from R. Long, “Offshore Renewable Energy Development: Legal Challenges and Policy Conundrums in eu” 34(4) (2014) International Journal of Marine and Coastal Law 690–715. Art 5(1), Dir. 2014/89/EU.

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to the sustainable development of the energy sectors at sea, the planning and management of maritime transport, fisheries and aquaculture, and the preservation and protection of the environment, including improving resilience to climate change impacts.96 The msp Directive is also intended to facilitate the implementation of the many Union policies and strategies that are applicable to the marine environment. Apart from establishing an appropriate framework for conflict avoidance and resolution, the normative methodology advanced by the msp Directive is clearly aligned with applying an ecosystem-based approach to the sustainable use of marine and coastal resources, including fishery resources and offshore energy infrastructure.97 A particular focus is on the integrated planning and management of infrastructure and systems that traverse the maritime boundaries of the Member States, such as infrastructure associated with the production of renewable energy, seabed cables, and shipping routes and lanes.98 At one level, this approach is foursquare with the Union’s Integrated Maritime Policy (discussed below), which identifies the integrated management of various sector activities as one of the main ways to promote growth of the maritime economies in the Member States.99 The msp Directive goes a long way towards addressing some of the ­planning issues concerning offshore development in Union waters. More specifically under the scheme advanced by the Directive, Member States must establish and implement spatial plan(s), as soon as possible, and at the latest by 31 March 2021.100 The geographical scope extends to marine waters, that is to say the sea and subsea areas that are under the sovereignty and jurisdiction of the Member States, as defined in other Union instruments.101 Other than infrastructure associated with energy installations, the plans adopted by the Member States must take into consideration: aquaculture areas, fishing areas, maritime transport routes and traffic flows, military training areas, nature and species conservation sites and protected areas, raw material extraction areas, scientific research, tourism, and underwater cultural heritage.102 Most importantly, Member States must cooperate on issues of a transnational nature and by means of the appropriate regional seas structures, and or networks or structures of Member States’ competent authorities, and or by using methods that 96 97 98 99 100 101 102

Art 5(2), Dir. 2014/89/EU. Recitals 1, 3, 13, 14 and 22, as well as Art. 5 (1), Dir. 2014/89/EU. Art 8(2), Dir. 2014/89/EU. com (2007) 575. Art. 15(3), Dir. 2014/89/EU. Art. (3)4, Dir. 2014/89/EU. Art. 8(2), Dir. 2014/89/EU.

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meet the requirements of the Union’s sea-basin strategies, as outlined above.103 Furthermore, every effort must be made to cooperate with third countries in the planning and management of offshore activities.104 Again, this approach is clearly relevant for countries in other ocean regions including the East Sea/ South China Sea. The msp Directive is therefore very much premised on the establishment and implementation of coherent planning mechanisms that apply across regional seas basins. As pointed out by the European Commission, the crossborder effects of economic activities undertaken at sea cannot be alleviated by a planning system that is structured on a purely national basis and which pays little or no regard to trans-national impacts.105 In addressing this shortcoming, the msp Directive notes that the Preamble of the Convention states that issues relating to the use of ocean space are closely interrelated and need to be considered as a whole.106 Furthermore, msp is the “logical advancement and structuring of the use of rights” granted under the Convention and a practical tool that assists Member States to comply with their international and regional obligations.107 For countries bordering the East Sea and South China Sea, as can be seen from the discussion thus far, if one has to highlight one distinctive feature of Union policies and other law of the sea related instruments, such as the cfp and the msfd,108 it is that they apply a regional approach to the management and utilisation of marine resources and the protection of the marine environment. The msp Directive does not prescribe in detail how regional cooperation mechanisms on spatial planning should look or work in practice because of the differences between various marine regions, or sub-regions and coastal zones and this remains an issue to be resolved by the Member States.109 Nonetheless, the approach is foursquare with the Convention and is a strong indicator of the sophisticated approach taken by the Union, the Member States and neighbouring countries to resolve difficult law of the sea matters that involve the implementation of area-based management tools.

103 104 105 106 107 108 109

Art. 11, Dir. 2014/89/EU. Art. 12, Dir. 2014/89/EU. swd (2013) 65, at p. 24. Recital 7, Dir. 2014/89/EU. Ibid. Preamble and Art. 56(2) los Convention. See (n. 84). Recital 20, Dir. 2014/89/EU.

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411

Marine Protected Areas

In addition to the msfd, the Union has a comprehensive code of instruments that are aimed at nature conservation and protecting marine biodiversity including the Habitats and Birds Directives.110 These instruments have been applied to establish a comprehensive network of marine protected areas (mpas) at a pan-European level. More specifically, the instruments set down specific obligations on the Member States as regards the establishment and management of special protection areas (spas) and special areas of conservation (sacs). The network of spas and sacs established under the Birds and Habitats Directives is referred to as the natura 2000 network, which is a pan-European ecological network of protected areas. Within this network, Member States are required to protect biodiversity by taking a number of measures including: the designation of protected areas for the birds, habitats and species listed in the directives; the maintenance or restoration of protected habitats and species at a favourable conservation status; the adoption of appropriate conservation and management measures for the designated sites; undertaking “appropriate assessment” of plans and projects likely to have a significant effect on the integrity of an sac. There is also a strict scheme of protection for the fauna and flora listed in Annex iv of the Habitats Directive, including several species of marine mammals, which must be protected within their entire natural range, both inside and outside the Natura 2000 sites. Member States are required to undertake appropriate monitoring and enforcement, as well as to report to the Commission on the implementation of the Directive every six years. Utilising the procedures set out in the Directives, the Union had established 936 marine spas and 1848 marine sites of community importance by 2015.111 The vast majority are in the territorial waters of the Member States but the network also extends to 9 mpas in areas beyond national jurisdiction (abnj), the latter are designated by ospar Contracting Parties under the ospar Convention.112 Four brief comments have been made previously by your author in the Oxford Handbook of the Law of the Sea about the regional approach taken by the Union to the establishment and creation of mpas, which can also be taken into consideration in the context of exploring the possibilities for improving ocean 110 Dir. 92/43/EEC, oj L 206/7, 22.7.1992. Dir. 2009/147/EC, oj L 20/7, 26.1.2010. 111 http://ec.europa.eu/environment/nature/natura2000/barometer/docs/SCI_EU27.pdf. 112 ospar 2012 Status Report on the ospar Network of Marine Protected Areas (ospar London 2013) at 9.

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governance in the East and South China Sea.113 Firstly, designations in the eu are made on the basis of scientific merit and in order to achieve c­ onservation objectives including mitigating the potential threat of damage from human activities.114 Secondly, the establishment of mpas conforms to international law and multilateral initiatives taken in conformity with the Law of the Sea Convention and the 1992 Convention of Biological Diversity.115 The ­practical aspects of mpa management nevertheless require a strong collaborative ­approach at a regional level with bodies such as the North East Atlantic Fisheries Commission (neafc), which has adopted area-based management measures restricting fishing activity in ospar’s mpas in abnj. Thirdly, the network complements the msfd (described above) and should therefore not be viewed in isolation from the overall scheme of regional environmental protection.116 Finally, the success of mpas in the Atlantic and in Europe’s regional seas is very much contingent upon the quality and effectiveness of the management measures and scientific monitoring programmes, which will only become apparent in the fullness of time. Again it needs to be emphasised that slow progress has been made under unep’s East Asian Seas Programme in advancing environmental protection at a regional level, as well as under the Partnerships in Environmental Management for the Seas of East Asia pemsea. One authoritative and comprehensive study has argued cogently how a network of mpas in the South China Sea could help diffuse regional tensions and foster greater cooperation between the parties in dispute.117 viii

Environmental Impact Assessment

The Law of the Sea Convention sets down an express obligation on States Parties to assess the potential effects of planned activities under their jurisdiction 113 R. Long, The North-East Atlantic and North Sea, Handbook on the Law of the Sea, (Oxford, Oxford University Press, 2015) 647–671. 114 ospar Recommendation 2003/3 adopted by ospar 2003 (ospar 03/17/1, Annex 9), amended by ospar Recommendation 2010/2 (ospar 10/23/1, Annex 7). 115 Decision VII/28 by the seventh Conference of Parties (cop 7, Kuala Lumpur, 2004) to the Convention of Biological Diversity on Protected Areas (Arts 8 (a) to (e)). 116 Part iv B supra. 117 Vu Hai Dang, Marine Protected Areas Network in the South China Sea: Chartering a Course for Future Cooperation (Leiden/Boston: Nijhoff, 2014) at 26.

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or control, which may cause substantial pollution of or significant and harmful changes to the marine environment.118 In the eu, environmental impact assessment (eia) and strategic environmental assessment (sea) are applied as procedural tools by the Member States to assess and mitigate the adverse environmental effects of development projects, plans and programmes.119 Briefly stated, the former requires that certain classes of projects be subject to assessment before they are approved due to their nature, size, location, or their potential to have significant effects on the environment. Projects listed in Annex 1 of the eia Directive, such as large port developments, are subject to mandatory assessment and projects listed in Annex ii are subject to assessment where there are likely effects on the environment. In contrast, the sea Directive takes a much broader approach and provides for the strategic assessment of certain plans and programmes on the environment. Significantly, both the eia and sea Directives require national bodies in the Member States to take the views of the public and other stakeholders into consideration ex-ante and before a particular development, project, plan or programme is approved or authorised by the licensing or ­regulatory authority. By and large, both directives have improved the quality, accountability and legitimacy of environmental and planning decisions in ­relation to both onshore and offshore developments.120 The Union obligations to undertake eia and sea must again be viewed in light of obligations that arise under international and regional law. In particular, eia of fishing activity is required under several international instruments including the Fish Stocks Agreement, which requires coastal and flag States to “assess the impacts of fishing, other human activities and environmental factors on target stocks and species belonging to the same ecosystem or associated with or dependent upon the target stocks.”121 There is also an obligation on States and the Union to assess the impact of fishing on non-target and associated or dependent species and their environment, and adopt plans, which are necessary to ensure the conservation of such species and to ­protect ­habitats of 118 Article 206, unclos. 119 dir. 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment, L26/1, 28.1.2012; dir. 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, oj L 197/30, 21.7.2001. 120 Stuart Bell, Donald McGillvray and Ole W. Pedersen, Environmental Law, 8th ed. (Oxford: oup, 2013), 452–497. 121 Article 5(d) of the Straddling Fish Stocks Agreement.

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special concern. Similarly, a prior assessment of the impact of fishing activities on the Antarctic environment or on dependent or associated ecosystems must be undertaken under the 1998 Protocol on Environmental Protection to the Antarctic Treaty (the Madrid Protocol).122 For this reason, all States with vessels engaged in bottom longline fishing must submit eias to the Commission for the Conservation of Antarctic Marine Living Resources (ccamlr) for review and approval. Three important rfmos in the Atlantic (the neafc, nafo and seafo) require impact assessments in relation to bottom trawling in new fishing areas or when new scientific information becomes available. Other relevant instruments are the United Nations General Assembly resolutions 61/105, 64/72 and 66/68, which call for the assessment of the impacts of bottom fishing on vulnerable marine ecosystems on the basis of the best available scientific information. Note should also be taken of Regulation (ec) No 734/2008, which prohibits the use of bottom gears in the High Seas without prior impact assessment for fishing activity in international waters not regulated by Regional Fisheries Management Organisations.123 This requires the carrying out of prior scientific assessment and the publication of the results of the assessment. There are also rigorous regulatory requirements concerning: special fishing permits, vms, observers, reporting to the Commission on catches and fishing plans, and the invocation of serious infringement procedures in relation to fishing in areas that are assessed.124 Union measures also accord with the fao Deep Sea Fishery Guideline, which offer specific guidance regarding assessing the significant adverse impacts in vulnerable marine ecosystems.125 Although international law is inherently weak when compared to the comprehensive and legally binding nature of eu law outlined above, the law on eia has nonetheless evolved significantly over the past decade and much of the impetus for developments in this regard has been driven by the jurisprudence of international courts and tribunals. Specifically, in the Pulp Mills Case, the International Court of Justice stated that: “an obligation arises in this regard once there is a risk that the proposed industrial activity may have 122 123 124 125

Article 8 of the Madrid Protocol. oj L 201/8. Article 6 of Regulation (ec) No 734/2008. fao. International Guidelines for the Management of Deep-sea Fisheries in the High Seas. Directives internationales sur la gestion de la pêche profonde en haute mer. Directrices Internacionales para la Ordenación de las Pesquerías de Aguas Profundas en Alta Mar. Rome/Roma, fao. 2009, 73 p.

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a ­significant ­adverse impact in a transboundary context, in particular, on a shared resource”.126 In Nicaragua v Costa Rica that if the eia “confirms that there is a risk of significant transboundary harm, the State planning to undertake the activity is required, in conformity with its due diligence obligation, to notify and consult in good faith with the potentially affected State, where that is necessary to determine the appropriate measures to prevent or mitigate that risk.”127 The requirements of undertaking eia in relation to activities that impinge upon the international seabed area were addressed by the Seabed Disputes Chamber of itlos in an advisory opinion, where it expressed the view: The [icj]’s reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction; and the Court’s references to “shared resources” may also apply to resources that are the common heritage of mankind. Thus, in light of the customary rule mentioned by the icj, it may be considered that environmental impact assessments should be included in the system of consultations and prior notifications set out in article 142 of the Convention with respect to “resource deposits in the Area which lie across limits of national jurisdiction”.128 In addition to the jurisprudence of courts and tribunals, there are a number of international treaties providing far more detail on the substantive and procedural aspects of eia and sea including: the 1991 espoo Convention on Environmental Impact Assessment (eia) in a Transboundary Context of the United Nations Economic Commission for Europe;129 as well as the Protocol on Strategic Environmental Assessment (sea) to the Convention on Environmental Impact Assessment in a Transboundary Context;130 which are both in force. Significantly, in the context of the scs, one of the key issues raised by the Philippines in the Annex vii Arbitration is that China has violated its obligations under the Convention to protect and preserve the marine environment at Scarborough Shoal and Second Thomas Shoal by its island-construction 126 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010) icj rep 14, p. 83, para. 204. 127 Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica) [2015] icj 15 December 2015, p. 45, para 104. 128 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 Case 17, [2011] itlos Rep. 10 at para 148. 129 1989 u.n.t.s. 309. 130 Into force 11 July 2010.

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c­ ampaign. Indeed, this is one of the issues to be addressed at the merits phase of the arbitration concerns the Tribunal the likelihood of the Tribunal following both the International Court of Justice in the Nicaragua v Costa Rica case and itlos in the Malaysia v. Singapore case and hold that that China should have undertaken an ex ante evaluation of the risk of significant transboundary harm and should have consulted in advance affected states within the region.131 In the overall context of maritime activities in Southeast Asia, it should also be borne in mind that there are many other eia models that arise under sector specific treaties and regional frameworks including procedures adopted by the fao and rfmos in relation to deep-sea fishing activity.132 Again, all of these models are relevant to any discussion of the assessment of the environmental impacts of fisheries in Southeast Asia. ix

New International Instrument on Biodiversity beyond National Jurisdiction

The Union has been a major promoter of international efforts to adopt a new implementing instrument under the Convention that provides for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction. Much progress has been made on this issue at the un over the past decade, which culminated with the Ad Hoc Open-ended Informal Working Group making recommendations to the General Assembly on the scope, parameters and feasibility of an international instrument under the Convention.133 The General Assembly subsequently decided to prepare for a decision to launch intergovernmental negotiations on a binding instrument within the framework of the Convention and to make a decision in this regard by the end of the 72nd session.134 Moreover, it decided to convene a Preparatory Committee to meet over 2016–2017, which is open to all members of the un, specialized agencies and parties to the Convention, as well as observers including those representing civil society, and which is tasked with making substantive 131 Case Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), icj, 16 December 2015: Case concerning Land Reclamation by Singapore in and around the Straits of Johor, Malaysia v Singapore, Award, (2005) xxvii riaa 133, icgj 372 (pca 2005), 1st September 2005, Permanent Court of Arbitration. 132 On the obligation to undertake eia under several marine environmental treaties, see D. Rothwell, T. Stephens, The International Law of the Sea, 2nd ed., (Oxford and Portland Oregon: Hart Publishing, 2016) 524–525. 133 un Resolution A/69/780, annex, Sect. i. 134 un Resolution A/RES/69/292.

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r­ ecommendations on the elements of a draft text of an international legally binding instrument under the Convention.135 The General Assembly in turn is tasked with deciding the commencement date of an intergovernmental conference to consider the PrepCom recommendations on the elements and to elaborate the text of an international legally binding instrument under the Convention.136 The negotiations will address a package of topics which were agreed in 2011, specifically: “the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology”.137 The first session of the Preparatory Committee took place in March-April of 2016 and was attended by 91 States Parties to the Convention including many from Southeast Asia,138 10 non-parties,139 as well as the eu. The eu and the Member States are committed to working with the G77 and China, including countries bordering the scs/East Sea to bring this process to a successful conclusion. Indeed, although the un process is very much focused on elaborating a comprehensive scheme for the protection and use of biodiversity in abnj, many of the instruments and tools under discussion are also clearly germane and applicable to the challenges posed by marine resource use in disputed areas of the scs/East Sea. The first session of the Preparatory Committee 135 136 137 138

un Resolution A/RES/69/292, para 1(a). un Resolution A/RES/69/292, para 1(k). un Resolution A/RES/69/292, para 2. Algeria, Argentina, Australia, Austria, Bangladesh, Barbados, Belgium, Belize, Brazil, Bulgaria, Burkina Faso, Cabo Verde, Cameroon, Canada, Chile, China, Congo, Costa Rica, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, European Union, Fiji, Finland, France, Gabon, Germany, Ghana, Greece, Honduras, Iceland, India, Indonesia, Iraq, Ireland, Italy, Jamaica, Japan, Kenya, Lebanon, Lesotho, Lithuania, Madagascar, Malaysia, Mauritius, Mexico, Micronesia (Federated States of), Monaco, Morocco, Mozambique, Myanmar, Nepal, Netherlands, New Zealand, Nicaragua, Norway, Palau, Papua New Guinea, Paraguay, Philippines, Poland, Portugal, Russian Federation, Saudi Arabia, Senegal, Singapore, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, State of Palestine, Sudan, Swaziland, Sweden, Switzerland, Thailand, Togo, Tonga, Trinidad and Tobago, Tunisia, United Kingdom of Great Britain and Northern Ireland, Uruguay, Vanuatu, Viet Nam, Zambia. 139 Venezuela (Bolivarian Republic of), Peru, El Salvador, Turkey, Holy See, Israel, Iran, United Arab Emirates, United States of America, and the Democratic People’s Republic of Korea (dprk).

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­ roceeded in a collegiate and constructive fashion with a view to identifying p areas of mutual understanding and agreement.140 x

Union’s Approach to Maritime Governance

The Union’s approach to maritime affairs embraces a complex array of legal actors, instruments and sector policies that operate at international, regional and national levels within the Member States.141 Moreover, at a pan-eu level, it is advanced in the form of the Union’s Integrated Maritime Policy (imp), which is well established and aimed at achieving the following objectives: …[ensuring] synergies and coherence between sectoral policies bring added value and fully respect the principle of subsidiarity. Furthermore, it should be developed as a tool to address the challenges facing Europe’s sustainable development and competitiveness. It should take particular account of the different specificities of Member States and specific maritime regions which should call for increased cooperation, including islands, archipelagos and outermost regions as well as of the international dimension.142 The European Commission has stated that the “aim of the imp is to promote the sustainable growth of both the maritime economy in particular, and the coastal regions more generally, by improving coordination between the different sectoral policies and by developing crosscutting tools.”143 Similarly, the European Parliament has stated that the primary objective of the imp “is to maximise the sustainable development, economic growth and social cohesion 140 Chair’s overview of the first session of the Preparatory Committee, Annex ii, at 19–20, available at: http://www.un.org/depts/los/biodiversity/prepcom_files/PrepCom_1_Cha ir’s_Overview.pdf. Also, see, R. Long, M. Rodríguez Chaves, “Anatomy of a new international instrument for the conservation and sustainable use of marine biodiversity in Areas Beyond National Jurisdiction: First Impressions Of The Preparatory Process” (2016) 25(2) Journal of Environmental Liability: Law, Policy and Practice, 214–219. 141 This section draws from: R. Long “Principles and normative trends in European Union ocean governance” in C. Schofield, S. Lee, M. Kwon (eds.), The Limits of Maritime Jurisdiction (Boston/Leiden, Brill-Nijhoff Publishers, 2014), 629–726. 142 Doc. 16616/1/07, rev 1, Presidency Conclusions of European Council Meeting, Brussels, 14.02.2008, para. 58. Available at: http://www.consilium.europa.eu/ueDocs/cms_Data/ docs/pressData/en/ec/97669.pdf. 143 com (2009) 536 final, Brussels, 15.10.2009.

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of coastal, island and outermost regions through coherent and coordinated maritime-related policies and relevant international cooperation.”144 In 2015, the eu undertook a public consultation and review of its ocean governance policy. The public consultation concluded that the framework is not effective as evidenced by pollution, overexploitation of resources, climate change and ocean acidification.145 Also in October 2015, Commissioner Vella, who has responsibility for the environment and maritime affairs in the European Commission, visited China as part of the stakeholder consultation process with key international actors and to discuss how global ocean governance could be improved through a specific programme of actions. The Commissioner noted in his press release pertaining to the visit that: Global environmental and maritime challenges cannot be tackled by ­Europe alone. As two of the world’s biggest economies, the eu and ­China’s role is fundamental to ensuring a greener future. Their work in shaping ocean governance, developing resource efficient and circular green economies can deliver growth, jobs and a safer environment.146 Within the Southeast Asia region, however, the eu and apec have markedly different approaches to ocean governance stemming from their very different treaty and institutional structures. apec works around the traditional rubric of inter-governmental meetings supported by specialist working groups including apec’s Ocean and Fisheries Working Group (ofwg). The importance of the latter working group must be viewed against the high productivity of countries within the region, which are estimated to account for over 80% of global aquaculture production and 65% of sea fisheries.147 Clearly, the concerns of apec extend well beyond the scs/East Sea regions, nonetheless, the ofwg provides a useful forum for discussing matters of common concern that go beyond fisheries and aquaculture including food security, climate change, 144 European Parliament Report on the proposal for a regulation of the European Parliament and of the Council establishing a Programme to support the further development of an Integrated Maritime Policy, com (2010) 0494 – C7-0292/2010 – 2010/0257(cod), 30.05.2011. 145 European Commission, Summary of the results of the public consultation on international Ocean Governance (Luxembourg: eu, 2016). Available at: http:// ­ ec.europa.eu/dgs/maritimeaffairs_fisheries/consultations/ocean-governance/doc/ ocean-governance-summary_en.pdf. 146 Ibid at 16. Also, see European Commission Presses Release, 12 October 2015. Available at: http://europa.eu/rapid/press-release_MEX-15-5825_en.htm. 147 apec, Harvesting Currency: The importance of fisheries and aquaculture for apec economies (apec, 2009).

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­marine scientific research and technology transfer, as well as the blue economy. In 2015, 16 apec economies attended the annual meeting of the ofwg and considerable progress was made on updating apec’s Marine Sustainable Development Report and Action Plan.148 Significantly, apec members consider that they share “one ocean” and recognise “the urgent need for ocean cooperation due to the complex and trans-boundary nature of ocean and coastal issues and challenge”.149 In this regard, the Xiamen Declaration, which was adopted by apec Ocean related ministers calls for the “establishment of more integrated, sustainable, inclusive and mutually beneficial partnership through ocean cooperation among apec members on a range of collaborative and concerted actions.150 Specifically, the Xiamen Declaration identifies four areas of integrated ocean management for such cooperation, namely: (1) Coastal and marine ecosystem conservation and disaster resilience; (2) The role of the ocean on food security and food related trade; (3) Marine science, technology and innovation; and (4) Blue Economy.151 xi

Collaborative Approaches to the Outer Limits of the Continental Shelf

This paper has focused on Union law. At the same time, it should be noted that there are many other topics covered by the Convention that come within the exclusive competence of the Member States, which have been subject to collaborative action on the part of the Member States, such as in relation to the submission of extended continental shelf claims beyond 200 miles to the Commission on the Limits of the Continental Shelf (clcs) under Article 76 of Convention. Clearly, these matters also have a bearing on the exploration and exploitation of marine resources. Most notably, Ireland, France, Spain and the uk lodged a joint submission with the clcs in May 2006, claiming an area of continental shelf that measures about 80,000 sq km in the area of the Celtic Sea and the Bay of Biscay, and 148 Chile; People’s Republic of China; Hong Kong, China; Indonesia; Japan; Republic of Korea; Malaysia; Papua New Guinea; Peru; the Philippines; the Russian Federation; Singapore; Chinese Taipei; Thailand; the United States; and Viet Nam. See: http://mddb.apec.org/ Documents/2015/OFWG/OFWG2/15_ofwg2_summary.pdf. 149 apec Ocean Cooperation in the Asia Pacific Region. Available at: http://library.pcw .gov.ph/sites/default/files/Annex%20G%20-%20APEC%20Ocean%20Cooperation%20 in%20the%20Asia%20Pacific%20Region.pdf. 150 Ibid. 151 Ibid.

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lies beyond 200 miles from the baselines of each State. This joint submission, which was prepared collectively, was submitted to the clcs without prejudice to the ultimate delimitation of the boundaries of the continental shelf between the four States concerned. For each of the four States this joint submission represented a partial submission in respect of a portion only of the outer limits of the continental shelf appurtenant to it that lies beyond 200 miles from its baselines. The outer limit as projected in the submission is based on both sediment thickness (the Irish formula) and on the basis of the “60 miles from the foot of the slope” distance criterion (the Hedberg formula), as set out in Article 76 of the Convention. The area of continental shelf that is the subject of the joint partial submission is not claimed by any other State. On 24 March 2009, the clcs adopted the “Recommendations of the Commission on the Limits of the Continental Shelf in regard to the Joint Submission made by France, Ireland, Spain and the United Kingdom of Great Britain and Northern Ireland in respect of the area of the Celtic Sea and the Bay of Biscay” on 19 May 2006.152 This novel solution set an important international precedent. Moreover, it expedited the clcs submission process and it is anticipated that the delimitation of this area will be agreed between the four States concerned on the basis of applicable principles of international law in due course. In the alternative, there may be scope to establish a joint development and management zone should the parties so decide.

Cross-Border Unitization Agreements, Joint Venture and Joint Development Zones There are several examples of agreements to exploit and share petroleum resources across maritime boundaries in Europe.153 Generally, they provide a useful mechanism for resolving the exploration and exploitation of crossboundary petroleum reserves in instances where there is political willingness to cooperate and reach agreement on how best to share available or potential 152 Information on Article 76 of the Convention and the Executive Summaries of the joint submission of France, Ireland, Spain and the uk can be found at: Http://www.un.org/ Depts/los/clcs_new/clcs_home.htm. 153 See, inter alia: Hazel Fox, et al., Joint Development of Offshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary (London: British Institute of International and Comparative Law, 1989); H. Fox, Joint Development of Offshore Oil and Gas, Vol. 2, (London: British Institute of International and Comparative Law, 1990).

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resources. The precise arrangements governing the exploration and exploitation of such resources vary considerably and extend from broad cooperative agreements to intricate jurisdictional and revenue sharing systems. In some instances, they are unitization agreements concerning a single deposit and in other cases they entail the establishment of a joint venture approach. As such, they must be distinguished from joint development zones, where the agreement sets out the arrangements between two states to develop and share in agreed proportions the resources found within a disputed area, that is to say where a boundary agreement remains undetermined.154 Thus, for example, the 1976 Frigg Field Agreement, which relates to an area that straddles across the uk/Norway continental shelf boundary, addresses the apportionment of the reserves as a single unit (unitisation), as well as regulates matters such as safety, taxation, and dispute settlement, but does not affect the rights and jurisdiction of the parties.155 The Statfjord Agreement which also applies in the North Sea, between Norway and the United Kingdom, defines the term “reserves” and has a number of other features, which distinguish it from the 1976 Frigg Field Agreement. There are other examples of different approaches to the management of cross-boundary resources, including the 1974 Agreement between France and Spain, which allows each State to retain its sovereignty and jurisdiction over an area of 814 nm2, but at the same time provides a legal basis for joint ventures between the companies operating in each sector, as well as the export of the resources from the respective sectors. Significantly, the prescribed arrangement does not affect the legal status of the superjacent waters or airspace.156 The agreed continental shelf boundary delimits the jurisdictional zones of each state in the joint area. All of these cross-border arrangements are matters that fall within the exclusive competence of the Member States, independently of the Union. In marked contrast to the joint-approach to hydrocarbon resources that pervades in state practice in Europe, China, the Philippines and Vietnam have awarded oil concessions unilaterally in disputed areas of the scs. Moreover, States within the region have shown scant regard for the obligations that arise under the Convention, which requires States to make every effort to enter into 154 Ibid. The latter zones have a legal basis in Articles 74(3) and 83(3) of unclos. 155 Norway-United Kingdom. “Agreement relating to the exploitation of the Frigg Field Reservoir and the transmission of gas therefrom to the United Kingdom, done at London on 10 May 1976,” Treaty Series N. 113, 1977. 156 Art 6, France-Spain. “Convention sur la delimitation des plateaux continentaux des deux Etats dans le Golfe de Gascogne (Golfe de Biscaye), signee a Paris le 29 Janvier 1974,” United Nations Document ST/LEG./SER.B/19, 445.

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provisional arrangements of a practical nature and not to jeopardize or hamper the reaching of a final agreement, pending the delimitation of the eez and/or the continental shelf between States with opposite or adjacent coasts.157 Indeed, one authority has concluded that it is hard to find state practice within the region where a party has actually refrained from undertaking hydrocarbon related activities in acknowledgement of a duty under the Convention.158 There are four provisional joint-development agreements in the scs ­region that are over a decade old between Malaysia and Thailand (1979/1990), M ­ alaysia and Vietnam (1992), Malaysia and Thailand (1999), as well as Cambodia and Thailand (2001).159 The joint seismic survey agreement concluded between China, the Philippines and Vietnam in 2005 is no longer in force.160 xii

What Do We Learn from the eu Approach?

The traditional focus of the eu and the Member States is on addressing sovereignty and economic issues pertaining to the ocean by means of a normative rule-based approach firmly rooted in the Convention and through its own unique legal order. In addition and in marked contrast to the approach taken by three permanent members of the Security Council (United States (a nonparty to the Convention), the Russian Federation and China), the eu has shown a strong commitment to international dispute settlement and to discharging its obligations under Part xv of the Convention,161 thereby strengthening the international legal order. The meeting of the G7 States in June 2015 highlighted the risks posed by large-scale land reclamation in the South China Sea and the escalating tension in the East Sea. One of the ironies resulting from the rising fears of China and its burgeoning military is that there is a rapprochement between the United States and Vietnam, as well as with other countries within the region.162 For countries in other ocean regions including the littoral States of Southeast Asia, there are a number of trends evident in the Union’s functional a­ pproach 157 Articles 74(3) and 83(3), unclos. 158 biicl Project, Obligations of States under Articles 74(3) and 83(3) of unclos in respect of Undelimited Maritime Areas, Draft Section 3.3.6, State Practice in the South East Asia and South China Sea Region (London: biicl, 2016) (copy with the author), 54–67, at 61. 159 Ibid., at 64. 160 Ibid. 161 R. Long op. cit. supra note 32. 162 Financial Times, 21–22 May 2016, at 6.

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to the implementation of the law of the sea in the domains of fisheries management, environmental protection and maritime governance, which demonstrate that pragmatism frequently trumps the principle of exclusive State sovereignty over resources and unilateralism in relation to maritime governance more generally. The principal features of the eu approach are as follows: I.

Based on the rule of law and strict observance and development of international law including the Convention and related international agreements; II. Acceptance that all problems and challenges related to management of human activities in relation to ocean space are inter-related and need to be considered as a whole in line with the principle of inter-dependence; III. A high level of protection and improvement in the quality of the environment, a prudent use of natural resources, the promotion of scientific and technological advancement; IV. The promotion of regional solutions to regional problems. Particularly in the form of sea-basin strategies, which acknowledge the unique political, geographical, economical context of each maritime region. That is to say, one size does not fit all; V. Adoption of integrated approaches to maritime governance for cross-­ sectoral collaboration and stakeholder consultation at European, regional and national levels; VI. Development of cross-thematic policy tools such as maritime spatial planning, comprehensive marine knowledge and data, and integrated maritime surveillance; VII. Promotion of sustainability, ecosystem-based management and the precautionary principle under the cfp and the msfd; VIII. Promotion of the Union as a strong and responsible international actor in multilateral and regional fora. IX. Clear linkages with other Union policies on trade, research, energy and competition; and X. Adopting a leadership role and collaborative approach in its relations with third countries.

chapter 16

The Link between Exercise of Control over Foreign Merchant Ships with Lawful Grounds and State Liability for Wrong Assessments Hakan Karan1 Abstract This paper is a study of “the close link between the high tendency towards the exercise of the control over foreign merchant ships with the assessment of a reasonable or clear lawful ground and the state liability for the wrong assessment”. There has been a growing need to secure the safety of navigation, to protect the environment against ship-sourced pollution and to meet increasing maritime security concerns by increasing effective control over foreign merchant ships. This trend in state practice should not result in any harm to maritime trade due to wrongful interdiction to the voyage of a merchant ship. Within the scope of this paper, the reasons and prerequisites for the exercise of control are analyzed. The discussion examines any need to create a link between the exercise of control with the assessment of a reasonable or clear lawful ground and liability for the wrong assessment. This paper focuses on the issues relating to the navigation of “merchant” ships. Any reference to a ship hereinafter is therefore made to merchant ships. The immunity of state ships falls outside the coverage of this paper. Effective control over the ships can only be executed through visiting the ship and proceeding with an investigation onboard. This inevitably delays her voyage and the term of “control” is mainly used in this meaning.

i

Flag State Control versus Foreign State Control over Vessels

The flag States’ right to exercise control over national ships generally diminishes whenever such vessels move towards the coast increasingly impacting 1 llm, PhD in law, Professor at Law Faculty, Ankara University; Director of the Research Centre for Sea and Maritime Law, Ankara University; Legal Adviser to the Maritime Department, Turkish Ministry of Foreign Affairs. [email protected].

© koninklijke brill nv, leiden, ���7 | doi 10.1163/9789004323445_017

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the interest of coastal States. The opposite is true when moving away from the coast. In principle, while in the high seas, the right of control over its ships belongs to the flag State. In internal and port waters such a right is largely attributed to the coastal or port States. Flag State Control Every state is entitled to grant its nationality to a ship as long as there is a genuine link between the State and the ship.2 Flag States are accordingly entitled as well as obliged to exercise effectively its control in administrative, technical and social matters over ships flying its own flags3 depending on the maritime zones where the national ships sail. Flag States are to: (a) assume jurisdiction under their domestic laws; and (b) take necessary measures for the safety of navigation (maritime navigational safety), the protection of marine environment and the security at sea (maritime security) over their own national ships. [emphasis added] Any national law enacted for the performance of these duties should be in line with generally accepted international laws. There are several international instruments crafted by the International Maritime Organization (imo), which are regarded as generally accepted by the international community, and consequently applicable to all flag States, irrespective of whether they are party thereto.4 Flag States shall also ensure that national ships navigate in accordance with such laws. Otherwise the ships must be prohibited from their voyage, until the international standards have been satisfied.5 The flag State’s jurisdiction and control over its ship partakes more of the characteristics of personal jurisdiction than of a floating part of the flag State or territorial jurisdiction.6 Foreign State Control States may have either sovereignty or sovereign rights within maritime zones as well as jurisdiction over foreign vessels under the international law of the 2 3 4 5

Article 91 of unclos. Article 94 of unclos. Churchill, R.R. and Lowe, A.V., The Law of the Sea, 3rd ed., Manchester 1999, p. 347. With respect just to the protection marine environment see Article 217 of the unclos. Gold, E., “International Shipping and the New Law of the Sea: New Directions for a Traditional Use?” 20 Ocean Developments and International Law 433 (1989), p. 441. 6 Cunard SS Co. V. Mellon, 262 us 100, 123 (1923); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).

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sea. They are accordingly entitled to a right or incur an obligation to implement their control in administrative, technical and social matters over foreign ships depending on the maritime zones where the foreign ship sails. These matters pertain to: (a) (b) (c) (d) (e) (g) (h) (i) (j) (k) ii

peace, good order or security; safety of navigation; artificial islands, installations and structures; submarine cables and pipelines; natural resources; marine environment; marine scientific research; customs, fiscal, immigration or sanitary matters; archaeological or historical objects; and submarine tunnels. Reasons for the High Tendency to Exercise Control over Foreign Vessels

Ineffective Flag State Control Coastal or port States have the aim of facilitating the free flow of international trade. In its discretion, they have generally allowed foreign ships access to their commercial ports, have not exercised their jurisdiction over foreign ships unless violations of the peace, good order or security of the coastal State7 or the port’s tranquility was infringed by the foreign ship. They have not in general interfered with the internal matters of foreign ships, content to leave matters to flag State jurisdiction. However due to certain flag States’ reluctance to exercise their jurisdiction over their national ships, a need has arisen to increase the level of control over foreign ships. In an ideal world there would be no necessity for coastal or port State control were flag States’ control over their national ships effectively implemented. The insufficiency of control by the flag State is interrelated especially with the flag of convenience or open registry cases.8 By the international law of the sea, every state is empowered as well as obliged to fix the conditions for the grant of its nationality to ships, for the 7 Wildenhus Case, 120 us 1, 12 (1887); Cunard SS Co. V. Mellon, 262 us 100,124 (1922). 8 Mansell, J.N., “Flag State Responsibility”, Dordrecht 2009, p. 4; Grewal, D., “International Ship Safety Regulations”, in Talley, W.K., Maritime Safety, Security and Piracy, London 2008, p. 11.

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registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the state whose flag they are entitled to fly. There should be a genuine link between the state and the ship.9 As there is no clear definition of the genuine link, states have specified some conditions for its nationality broadly without demanding any meaningful connection with such states. This is especially a problem with their nationals who own, manage or navigate the ship. In order to attract the attention of maritime entrepreneurs to their flag or registry, flag of convenience States may offer lower taxes, crewing standards and salaries, less stringent shipping requirements, volume discounts and less demanding manning conditions. Consequently, with the aim of attracting maritime entrepreneurs to their flag or registry, states offering a flag of convenience have reduced the degree of control over their national ships. This outcome is against their duty of flag State control under international law of the sea. That has resulted in serious incidents causing marine pollution such as the famous cases of the Torrey Canyon in 1968 and Amoco Cadiz in 1978. Accordingly a response was taken to ineffective flag State control over foreign state ships, especially by port States as a result of a multilateral state initiative outside of the imo. Effective control over the ships would essentially be taken at ports rather than at sea.10 The port State control can be a very good mechanism for the control of foreign ships under the control of a flag State. Nevertheless, it can never completely replace the flag State control. For example, in the Erika case even though the ship was detained five times after her inspection, she slipped through the whole series of safety net inspections. Indeed, before a ship voluntarily enters into and anchors at a port, the port State control cannot effectively be implemented. Most states are not capable of or keen on inspecting a ship passing through the waters over which they have limited jurisdictional rights. By the time when the foreign ships call at any port, she may have passed hundreds or thousands of miles of coastline while sailing in breach of generally accepted international laws especially on maritime safety. unclos has no clear wording on port State control other than Article 218 pertaining to matters of environmental pollution. As a result, imo, as an authorized international institution, has taken the lead to regulate port State control for the safety of navigation (navigational safety at sea) and the ­protection of

9 10

Article 91 of unclos. Frank, V., The European Community and Marine Environmental Protection in the International Law of the Sea, Leiden 2007, p. 204.

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marine environment with several international instruments, such as [emphasis added]: (a) imo Resolutions A. 466.XII (1981), A. 787.19 (1995); A. 882.21 (1999), A. 1052.27 (2011) (b) solas 1974 as amended; (c) Load Lines 1966 as amended; (d) marpol 1973/78 as amended; (e) stcw 1978; (f) tonnage 1969; (g) afs 2001; and (h) mlc 2006. All these instruments lay down minimum guiding standards for the flag State to take into consideration in the exercise of its control over its national ships. The port State control mechanisms are in principle set up in imo Resolution A.1052(27) and are reflected in nine extant regional port State control Memorandums of Understanding. These are: (a) (b) (c) (d) (e) (f) (g) (h) (i)

Paris MoU 1982; Acuerdo de Vina del Mar 1992; Tokyo MoU 1993; Caribbean MoU 1996; Mediterranean MoU 2000; Indian Ocean MoU 1998; West and Central African MoU 1999; Black Sea MoU 2000; and Riyadh MoU 2004.

The United States has chosen to activate its own program.11 The Paris MoU following the Amoco Cadiz incident in 1978 was adopted for the protection of the marine environment through port State controls within the jurisdiction of fourteen European states, which assumed a duty to inspect a total of 25% of foreign ships visiting their ports. The Paris MoU introduced the first regular and systematic control of ships to be exercised by a group of port States. This

11

Croal, J., “us Coast Guard Programme - Port State Control”, 9/1 P&I International 7 (January 1995), p. 10; Bryant, D.L., “Port State Control as Practiced by the us Coast Guard”, 4/10 International Maritime Law 300 (1997), p. 303.

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MoU was a model upon which eight other regions based their MoUs. Although there is no world-wide unification of laws relating to port State control, the imo plays a very important role in the harmonization of regimes by providing technical assistance. During the execution of control over foreign ships, port States carry out an initial inspection of the ship’s relevant certificates as required by international law in order to ensure their validity. Following the inspection, if the port State, from general impressions or observations on board, has clear grounds for suspecting that the ship does not meet the safety standards for seaworthiness, the port State should proceed to a more detailed inspection. If the port State, after the inspection, comes to the conclusion that the foreign ship is in an unseaworthy condition, the port State detains said ship until her serious deficiencies have been rectified. Growing Environmental Sensitivity The increasingly intensive use of ocean areas and the resources of the world’s oceans has led to various sources of marine pollution, and then to general degradation of the individual ecosystems of the World Sea, disturbance of ecological equilibrium and reduction of the productivity of the seas and oceans that are also the source of oxygen. The need for the protection of the marine environment against pollution on a global scale has become one of the most urgent problems of the modern day. Just after the Torrey Canyon catastrophe of 1967 resulting in 120,100 tons of oil spillage and pollution of over 250 miles of coastline of the United Kingdom and France, the importance of the protection of the marine environment against the ship source-pollution and the absence of international instruments combating therewith were realised. Although there had been some national laws prohibiting marine pollution, their scope covers only internal waters and the territorial sea rather than the waters beyond such national maritime sovereignty or the sovereign right zones in the First un Convention on the Law of the Sea. No comprehensive regime had been set forth for the protection of the marine environment. Instead there were only some general provisions laying general obligations on the state parties for environmental protection. In the 1970s, several regional and multilateral conventions emerged with the aim of protecting the environment. Especially the works of the imo are worth mentioning. imo’s original mandate was principally concerned with navigational safety at sea. However, as the custodian of the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (oilpol Convention), the Organization, soon after it began functioning in 1959, assumed

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r­ esponsibility for pollution issues and the imo has subsequently, over many years, adopted a wide range of measures to prevent and control pollution caused by ships and to mitigate the effects of damages that may occur as a result of maritime operations and accidents. These measures have been successful in reducing ship-sourced pollution and illustrate the commitment of the imo and the shipping industry towards protecting the environment. Of the 51 treaty instruments for the regulation of international shipping imo has adopted so far, 21 are directly environment-related. The original focus of its work was the prevention of marine pollution by oil, which resulted in the adoption of the International Convention for the Prevention of Pollution from Ships (marpol) in 1973. marpol, as the first ever comprehensive antipollution convention, has been changed over the last few decades to include a much wider range of measures to prevent marine pollution. marpol was amended many times to also include requirements addressing pollution from chemicals, other harmful substances, garbage, sewage and, under an Annex vi adopted in 1997, air pollution and emissions from ships. Other international instruments adopted by the imo regulate oil pollution preparedness, response and co-operation (e.g., oprc Convention and its 2000 oprc-hns Protocol), control of harmful anti-fouling systems on ships (e.g., afs Convention), prevention of the potentially devastating effects of the spread of invasive harmful aquatic organisms carried by ships’ ballast water (e.g., bwm Convention), and safe and environmentally sound recycling of ships (e.g., Hong Kong Convention). The imo also carries out Secretariat f­unctions in connection with the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, and the London Convention as well as its 1996 Protocol. Its objective is to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. Those imo instruments formed the basis for the rules governing the protection of environment contained in unclos. Pressing Security Concerns Following the Achille Lauro incident in 1985, the imo adopted in 1988 the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (sua). Article 6 provides that states shall take measures to establish jurisdiction over the offences described in the Convention. sua was to permit effective legal action to be undertaken against those who are engaged in ­specified unlawful offences.

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However, the offences in the 1988 text were limited to activities that were directed against the ship per se (including its cargo), persons on board or navigational safety at sea. These acts were related to the traditional doctrine of piracy and only set the framework to punish the offenders irrespective of any political or terrorist purpose they might have. Following the devastating terrorist acts of 11 September 2001 in the United States, the international community recognized the need also to protect the international maritime transport sector against the threat of terrorism at sea.12 Then the states and international organizations, especially the imo responded swiftly and firmly by developing new requirements. A comprehensive mandatory security regime for international shipping entered into force in 2004. The new regime included a number of amendments to the 1974 Safety of Life at Sea Convention (solas), the most far-reaching of which enshrined the International Ship and Port Facility Security Code (isps Code), which contains detailed security-related requirements for governments, port authorities and shipping companies. Again as a response, the sua (Terrorism) Protocols 2005 amending the sua 1988 was adopted in 2005 under the auspices of the imo. The new Protocols extend the list of offences to unlawful and intentional acts with the terrorist motive against ships, fixed platforms and the persons thereon. The sua (Terrorism) Protocols also include a new precautionary measure against unlawful acts of boarding. A state party may board a foreign ship on the high seas if there are reasonable grounds to suspect that the ship or a person thereon is involved in the commission of an offence against sua with the clear consent of the flag State. The clear authorization and co-operation of the flag State are thus still required before such a boarding. A State Party may notify the imo SecretaryGeneral of its pre-authorization for boarding provided there is no response from the flag State within four hours. Even if at the beginning the aim of the terrorism reforms was to allow any boarding if there were no response from the requested state within the four hour time limit, this reform was not accepted after long discussions at the Conference. The unaccepted provision led states to cooperate with each other through another means, the Proliferation Security Initiative (psi). psi was initially launched by several individual states in order to allow others to board their national vessels.

12

Ronzitti, N., “The Law of the Sea and the Use of Force against Terrorist Activities”, in Maritime Terrorism and International Law, N. Ronzitti (ed.), Dordrecht 1990, p. 1.

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433

Prerequisites for the Exercise of Control over Foreign Vessels

Lawful Grounds The first condition for the exercise of control over foreign ships is an assessment of whether the control is lawful. No state can suspend the voyage of foreign ships without lawful grounds. Any act without a ground recognized by the international law of the sea must be considered unlawful. It is necessary to take into consideration the maritime zones in each case. By knowing where the ships at issue sail, the flag State and other states concerned can study the lawful grounds for the exercise of foreign state control. 1 High Seas The freedom of the high seas is one of the cardinal principles of the international law of the sea. The high seas are open for the use of all states. No state can claim any sovereignty over the high seas. Such freedom includes freedom of navigation, which entitles any state to sail ships flying its flag on the high seas. The freedom can be exercised under customary international law. The flag State is obliged to ensure that ships flying its flag navigate on the high seas observing the rules relating to navigational safety at sea, protection of the marine environment and public security at sea. As indicated above, the flag State enjoys exclusive jurisdiction and control over its ships on the high seas. This rule is based on the principle that the law applicable onboard the vessel should not change at every change of maritime jurisdiction.13 No state other than the flag State can in principle interfere with the navigation of a ship on the high seas. Any such interference requires the express consent of the flag State14 or a treaty based rule adopted by the flag State. A state which has clear grounds to believe that proper jurisdiction or control with respect to a ship have not been exercised cannot do more than report the facts to the flag State.15 Upon receiving such a report, the flag State has a legal duty to investigate the matter and, if appropriate, take any action necessary to remedy the situation. It is exceptionally allowed to board foreign ships on the high seas for the good order and security at sea reasons set out below:16 13 14 15 16

Lauritzen v. Larsen, 345 us 571, 685 (1953). United States v. Green, 671 F.2d 46, 50 (1st Cir. 1982). Article 94(6) of unclos. Article 110 of unclos.

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the engagement of the foreign ship in piracy; the involvement of the foreign ship in slave trade; the commitment of the foreign ship to unauthorized broadcasting; the navigation of the ship without nationality; or the navigation of the national ship flying a foreign flag or no flag.

Likewise, the coastal State whose national law relating to inland and port ­waters, territorial sea, archipelagic waters, exclusive economic zone, continental shelf or contiguous zone has been breached may undertake the hot pursuit of a foreign ship on the high seas.17 In contrast, the international law of the sea forbids states to exercise their jurisdiction or control over foreign ships even though such ships have engaged in illicit traffic in narcotic drugs or psychotropic substances.18 The foreign states’ only right is to request the cooperation of the flag State to suppress such traffic. States also do not have a right to interdict vessels to combat the proliferation of weapons of mass destruction. Similarly no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State in the event of collisions or any incidents of navigation.19 Neither is there a clear rule on whether states may exercise control over foreign ships for reasons of self-defense despite the following examples: (a) The Algerian Emergency: The French Navy conducted operations between 1956 and 1962 by suspending the voyages of foreign ships for the infiltration of weapons to Algerian insurgents; (b) The Cuban Quarantine: The foreign ships were boarded for inspection by the us Navy in response to the supply of missiles to Cuba by the Soviet Union in 1962; and (c) The Mavi Marmara: Israel’s Navy interdicted the Mavi Marmara proceeding to Gaza under blockade of Israel on the ground of its self-defense in 2010. However, the legality of maritime interceptions in line with resolutions adopted by the un Security Council is not contested. For example relying on the un Security Council Resolution 661 (1990) and 687 (1991), all ships heading to Iraqi ports were investigated.

17 18 19

Article 111 of unclos. Article 108 of unclos. Article 97 of unclos. Cf. the SS Lotus, pcij Ser. A, No. 10 (1927).

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2 Maritime Sovereign Right Zones in the High Seas There are three types of maritime zones in the high seas over which the coastal State has sovereign rights: the Exclusive Economic Zone, continental shelf and contiguous zone. These zones are normally otherwise a part of the high seas. Consequently in these zones, all states enjoy the freedom of navigation, subject to the relevant rules of the international law of the sea.20 The exercise of the rights of the coastal State in the zones must not breach or result in any “unjustifiable” interference with navigation and other rights and freedoms of other states as provided in international law of the sea. By comparison in exercising their rights and performing their duties under this Convention in these zones, states shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the international law of the sea.21 The coastal State may, in the exercise of its sovereign rights within such zones, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with its national laws in line with the generally accepted international rules.22 Exclusive Economic Zone The coastal State is entitled to exercise limited jurisdiction or control over foreign ships to the extent necessary to prevent infringement of its jurisdiction and laws relating to: (a) economic exploitation and exploration of natural resources, including fisheries and mining; (b) artificial islands, installations and structures; (c) marine scientific research; and (d) protection and preservation of the marine environment, especially against ship source pollution. Continental Shelf The coastal State is empowered under the international law of the sea to exercise limited jurisdiction or control over foreign ships to the extent necessary to prevent infringement of its jurisdiction and laws relating to:

20 21 22

Article 55 of unclos. Oliver, J.T., “National Security and the un Convention on the Law of the Sea: us Coast Guard Perspectives”, 15 ilsa J. Int’l & Comp. L. 573, 2008–2009, p. 578. Article 58 of unclos. Article 73, 211 and 220 of unclos.

436 (a) (b) (c) (d) (e)

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the economic exploration and exploitation of natural resources; artificial islands, installations and structures; marine scientific research; drilling and tunneling; and exceptionally, submarine cables and pipelines.

Contiguous Zone In the contiguous zone the coastal State may exercise limited jurisdiction and control over foreign ships to the extent necessary to prevent infringement of its laws on: (a) customs, fiscal, immigration or sanitary matters;23 and (b) archaeological and historical objects.24 3 Maritime Sovereignty Zones Territorial Sea and Archipelagic Waters In the territorial sea the coastal State is ipso iure and ipso facto granted sovereignty.25 It is not a part of the high seas. The coastal State in principle enjoys full and exclusive coastal State jurisdiction and control over foreign vessels. However the scope of the coastal State’s sovereignty is exceptionally narrowed by the right of innocent passage. Foreign ships are entitled to the right of innocent passage through the territorial sea.26 The coastal State should refrain from any act hampering the innocent passage of foreign ships through a coastal State’s territorial sea except in accordance with the international law of the sea.27 In comparison the coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.28 In the case of ships proceeding to internal waters or a call at a port facility outside internal waters, the coastal State also has the right to take the necessary steps to prevent any breach of the conditions to which admission of those ships to internal waters or to which such a call is subject.29 23 24 25 26 27 28 29

Article 33 of unclos. Article 303 of unclos. Article 2 of unclos. Article 17 of unclos. Article 24 of unclos. Article 19 of unclos. Article 25 of unclos.

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The coastal State, with respect to the protection of the environment in its territorial sea, has jurisdiction over foreign vessels, and may enforce coastal States’ laws, which have been adopted for the prevention, reduction or control of marine pollution from foreign vessels within the territorial sea of the coastal State.30 The coastal State’s criminal and civil jurisdiction over foreign ships is limited. The coastal State’s criminal jurisdiction to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage should not be exercised over a foreign ship passing through the territorial sea, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving its internal waters. Nevertheless in considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation. The coastal State should not stop or divert a foreign ship passing through a coastal State’s territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. The coastal State may, however, levy execution against or arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. Principally, the navigational regime for the territorial sea applies mutatis mutandis to archipelagic waters (Articles 46–54 of the unclos).

30

Article 220 of unclos.

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Internal and Port Waters The coastal State ipso iure and ipso facto enjoys complete sovereignty in its internal waters. Port waters are deemed to be internal waters. The coastal State has full and exclusive coastal and port State jurisdiction or control over foreign vessels in the internal waters of the coastal State. Every foreign ship must comply with the laws of the coastal and port State. The port State may exercise its jurisdiction over a foreign ship in violation of generally accepted environmental law within the maritime zone not only with its jurisdiction, but also with that of another state’s jurisdiction on request of such state.31 Again port States, upon request or on their own initiative, may take administrative measures to prevent unseaworthy vessels from sailing.32 Foreign ships are not entitled to the right of innocent passage in internal or port waters to facilitate the free flow of international trade. Coastal States, in their discretion, however, generally allow foreign ships’ access to their commercial ports and do not exercise their jurisdiction over foreign ships unless the peace, good order or security of the coastal State33 or the port’s tranquility is infringed by the foreign ship. Generally, coastal States leave such matters to the flag State jurisdiction. Should the coastal or port State refrain from asserting jurisdiction over a foreign ship with respect to any law which the ship has breached, the right and duty are on the flag State to exercise jurisdiction over its national ship.34 4 Straits Used for International Navigation Special Regime Straits used for international navigation are subject to a special regime of passage.35 This regime shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil. The foreign vessel passing through the straits used for international navigation enjoys the right of transit passage and exceptionally the right of innocent passage. These rights may also be subject to a special regime pursuant to a long standing international agreement. States bordering straits shall not hamper free transit or innocent passage. There shall be no suspension of free transit or 31 32 33 34 35

Article 218 of unclos. Article 219 of unclos. Wildenhus Case, 120 us 1, 12 (1887); Cunard SS Co. V. Mellon, 262 us 100,124 (1922). United States v. Flores, 289 us 137, 158 (1933). Articles 34–45 of unclos.

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innocent passage. Accordingly, from the wording in unclos it seems that the coastal State has no right to exercise control over foreign ships passing through the strait.36 Reasonable or Clear Ground The second condition for the exercise of control over a ship in an international strait is an assessment of the lawful ground as reasonable or clear. Coastal State inspection as a part of control over the ship shall only be carried out on the condition that there is a reasonable or clear ground for believing that a foreign ship has violated laws of the strait State. Strait States shall not delay a foreign vessel longer than is essential for purposes of the investigations provided for in unclos articles 216, 218 and 220. Any such physical inspections of a foreign vessel shall be limited to an examination of such certificates, records or other documents as the vessel is required to carry by generally accepted international rules and standards. For similar documents on board, further physical inspection of the vessel may be undertaken only after an initial examination and only when there are clear grounds for believing that the condition of the vessel or its equipment does not correspond substantially with the particulars of those documents. The use of the term “reasonable” or “clear” ground has great significance in foreign State control especially when carried out by port States. This rule is amplified in Article 1/19(b) of the solas and in imo Resolutions, as well as in Articles 108, 110, 216, 217, 220, and 226 of unclos. iv

Foreign State’s Liability for Wrong Assessment

The interpretation of the words “clear” or “reasonable” is up to the judgment of the states claiming jurisdiction. Some states may construe these words broadly to exercise investigation over foreign ships. But following the inspection there is a possibility that the assessment of reasonable or clear lawful grounds was wrong. Due to such wrong assessment the ship’s voyage would possibly be suspended and would possibly result in a delay in the arrival of the inspected ship and cargo as well as its passengers. That would definitely harm the business of ship, cargo and travel interests. Accordingly states must be held liable for damage or loss attributable to them arising from measures taken upon a wrong assessment and states must 36

For different views see Shearer, I.A., “Problems of Jurisdiction and Law Enforcement against Delinquent Vessels” 35 iclq 320 (1986), p. 331; Klein, N., Maritime Security and the Law of the Sea, Oxford 2011, p. 84.

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provide for recourse in their courts for actions in respect of such damage or loss. Otherwise the states holding no risk of liability would execute their control over the foreign ships very resiliently. Any state exercising control over a foreign ship thus carries the risk of compensating the ship and cargo interests for the loss suffered due to an unjustified boarding. Consequently the international law of the sea imposes liability for a wrongful assessment as is limitedly provided the case in Articles 110, 111 and 232 of unclos relating to unlawful visit and unlawful pursuit on the high seas or unlawful environmental enforcement measures or Article 8(bis) of the sua (Terrorism) Protocols with respect to unlawful boarding. This liability should be objective and for any loss, including economic losses arising from suspension of a voyage due to a wrong assesment. This liability is not based on the fault of the states concerned. The claim could be brought directly by any civil person who is affected by the detention or delay of a ship caused by the exercise of nonflag state control over the foreign ship. Such liability has an effect on the judgment of the inspecting state and effectively prevents discretionary control. As a matter of principle, an authentic balance between the legitimate right to be compensated for wrongful delay or detention and the genuine need to enhance maritime safety, maritime security and protection of marine environment worldwide should be sought. From the compensation standpoint, this balance can be achieved by acknowledging the need to make provision in the text of the instrument for direct action in the  interests of crews and the owners of ships and cargoes, and also for joint and several liability on the part of the states involved in the operation at issue. Direct action is necessary because not every jurisdiction accepts that a person under private law is entitled to bring an action against a state vessel, unless this is specified in an international treaty. Joint and several liability is indispensable, on account of the states involved in each operation and in order to increase the options for ensuring that the claimant is properly compensated. In spite of the international obligation on states to provide for recourse in their courts for a wrong assesment, it is not possible to conclude that in practice states accept direct liability for their wrong assessment. There is a need to unify the regime of state liability to prevent state authorities from abusing their rights to exercise control over ships. National laws should, for instance, establish speedy arrangements for dealing with claims of this nature. Conclusion Within the scope of international law, states are free to exercise control over ships if there are reasonable and clear lawful grounds for believing that their

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laws adopted in line with generally accepted international law are breached by foreign ships. However there is a possibility that the inspecting state’s assessments can be wrong. In that case, the inspecting state’s liability for the delay of the ship, and consequently of the cargo and passengers, should be uniformly set down. Such uniform liability brings two specific benefits: firstly, it will ensure that states exercise greater caution, knowing that unsupported action by one of their officials could cause financial damage; secondly, it will lead to effective redress for the damage and loss resulting from a wrongful operation.

Index Annex vii 246n1, 271, 276, 376, 391, 415 Antarctic Whaling Case 365–387 Antarctica 128n41, 173n15, 324n8, 372, 382 Arctic Council 101, 115–116, 131–134, 182, 183, 188n40, 191, 192n53, 205, 213, 215, 216, 219, 220, 223, 230 Arctic fisheries 182n10, 186n30, 188n38, 197, 205, 208–210, 212, 214n12, 215, 219, 220, 220n34, 36, 229n57 Arctic Five 179, 181, 182, 188n38, 191–198, 201, 202, 212, 216, 217, 220–222, 224, 229, 231 Arctic Ocean 102, 107, 116, 117n41, 118, 119, 122n7, 171, 173, 179–204, 209, 211–231, 280n32 Article 121 3–78 Article 76 48, 170–172, 181n5, 292, 391, 420, 421 Australia 33, 85, 89, 280, 284, 294n53, 301–309, 311–313, 319, 344, 365–369, 375, 376, 378–380, 382, 384, 402n64, 417n38 Australia vs. Japan (Antarctic Whaling Case) 366n1, 367n3, 368n9, 11, 369n13,  375n40, 376n43, 46, 377n47, 378n50,  380n64, 383n79, 385n88 Australia-Indonesia Treaty 311 Bay of Bengal Case (Bangladesh vs. Myanmar) 271–281, 300, 320, 321 China 3, 6, 29, 33, 62, 63, 72–75, 77, 79n2, 116, 133, 182, 183, 196, 201, 221, 224, 231, 235n2, 237–245, 295n55, 317–319, 391, 392, 394, 396, 401, 404, 405, 408, 415–417, 419, 420n148, 422, 423 China Ocean Mineral Resources Research and Development Association (comra) 235n2, 237, 240, 241 climate change 68, 68n135, 85, 102, 133, 134, 179, 182, 192, 210, 212–215, 223, 230, 267n108, 327n21, 356, 409, 419 Commission of the Limit of the Continental Shelf (clcs) 118, 172, 173, 181n5, 292, 295,  317, 318, 420, 421

Continental Shelf Convention 8, 59, 288, 289, 290n30, 291, 296, 297, 314 deep seabed area 14, 235–245 definition of the continental shelf (Article 76) 171 European Parliament 212, 392, 394, 403, 404, 413n119, 418, 419n144 European Union (eu) 7, 116, 133, 182, 183, 188, 190, 196, 197, 201, 206, 212, 224, 225, 231, 266, 301, 334, 386, 388n1, 389, 390n4, 8, 391–399, 401–405, 407, 408n94, 95, 409n96–98, 100–102, 410n103, 104, 106, 109, 412–414, 417, 418n141, 419, 423–424 Exclusive Economic Zone (eez) 3, 4, 6, 7, 18, 23, 25, 28, 30, 32n49, 33–35, 37, 38, 47, 48, 53, 57, 65, 67–76, 109, 110, 113, 114, 116, 179, 183, 186, 242, 271–273, 275, 276, 278–281, 283, 284, 287, 289–294, 296, 298–300, 307–313, 314n148, 315–317, 319–321, 324n8, 325, 336n79, 339, 344, 346, 348, 349, 352, 353, 355, 367, 372, 374, 376, 391, 397, 401, 423, 434, 435 fisheries management 183, 187, 188n40, 189, 198–200, 219, 220, 331, 391, 398–402, 424 Food and Agriculture Organization (fao)  90, 190, 204, 208, 210, 213, 215, 224, 324n8, 330, 331, 336n79, 347, 357, 393n22, 397n37, 400, 401n58, 402, 414, 416 Foreign Merchant Ships 425–441 Geneva Convention 12, 16, 41, 288–289 Grey Area 271–281, 320, 321 high seas 10–13, 15, 17, 23, 40, 49, 68, 164, 179–203, 212, 215n17, 216, 217, 220–223, 225–231, 275, 284–291, 321–324, 326, 327, 328n22, 331, 332n39, 345n140, 347, 349n160, 351, 352n179, 353, 355, 356n201, 357–359, 374, 400, 402, 414, 426, 432–436, 440

444 International Convention for the Prevention of Pollution from Ships (marpol) 117,  121–123, 126, 131, 135, 138–140, 145, 149,  163, 164, 322, 323, 325, 335–339, 346–348,  352, 356, 358, 429–431 International Court of Justice (icj) 52n96, 53, 174, 246n1, 278, 279, 292n43, 296–301, 305, 313, 315n153, 318, 361n225, 365–368, 375–384, 387, 414–416 International Maritime Organization (imo) 115, 121–168, 181, 322–325, 330, 335, 336n75, 77, 337–358, 361, 426, 428–432, 439 International Polar Year (ipy) Conference 212 International Seabed Authority (isa) 175, 236–238, 241–244, 246, 247, 258n66, 68, 259n68, 264, 267n109, 295n55, 327, 334, 335, 347, 357, 358n209 International Tribunal for the Law of the Sea (itlos) 189n43, 238n9, 240, 241, 246n1,  247n11, 249, 267n107, 271, 273, 274, 276,  278, 280, 281, 300, 320, 321, 356, 360, 361,  368, 415, 416 international waters (High Seas) 414 Itu Aba 3–78 Korea 133, 204–210, 215n17, 221, 224, 231, 402n64, 417n139, 420n148 LOS convention (United Nations Convention on the Law of the Sea Convention) 215,  216, 218, 219, 225, 226, 228, 235n1, 237 marine environment 15, 111, 114, 115, 116n35, 117n41, 122, 123, 134–168, 175n24, 181, 187n36, 207, 219, 226, 236, 239–242, 244, 252n35, 253, 260, 265, 281, 291, 303, 321n179, 322, 324, 327–329, 335, 344n135, 345n139, 347n153, 348–351, 353, 355, 360, 390, 394, 395, 399–401, 405, 406, 409, 410, 413, 415, 416n132, 426, 427, 428n10, 429, 430, 433, 435, 440 marine scientific research (msr) 114, 173n15, 205, 209, 225–227, 236, 237, 242, 281, 291, 311, 327, 395, 420, 427, 435, 436 marpol 117, 121–123, 126, 131, 135, 138–140, 145, 149, 163, 164, 322, 323, 325, 335–339, 346–348, 352, 356, 358, 429, 431

Index North East Atlantic Fisheries Commission (neafc) 180, 188, 191, 194–198, 201, 202,  205, 206, 210, 216, 218, 219, 223, 229, 230,  412, 414 North Pacific Fishery Council (npfc) 206 Northern Sea Route (nsr) 101–120, 128, 170n2, 208 Ocean Acidification (oa) 79–94, 210, 357, 419 Particularly Sensitive Sea Area (pssa) 322, 324, 325, 338–355, 358, 359, 361 People’s Republic of China (China) 3, 73, 235n1, 237, 239n10, 240n12, 295n55, 318n166, 391n13, 420n148 Philippines 3, 5, 6, 29, 31, 32n50, 39, 49, 62, 63, 65, 66, 70n138, 72–75, 313, 316, 317n163, 320, 391, 392, 401, 402, 415, 417n138, 420n148, 422, 423 Philippines vs. China (South China Sea Case) 32n50, 70n138, 76 Protection of Arctic Marine Environment (pame) 117n41, 215, 219, 221, 223n40,  230n59 Regime of Islands (Article 121) 5, 7, 9, 10, 17–19, 23–25, 27, 28, 33, 40n59, 41–50, 54, 56, 57, 59, 61, 76–78 Republic of Korea (Korea) 133, 207, 402n64, 417n139, 420n148 Russia (Russian Federation) 101–120, 125, 128, 134, 169–175, 179, 182, 188, 191, 201, 208, 212, 213, 215, 218n25, 224, 229, 250, 280, 349, 372, 386, 392, 417n138, 423, 420148 Russian Federation 101–120, 134, 169–175, 179, 182, 188, 191, 201, 215, 218n25, 224, 229n55, 229n56, 280, 349, 350, 372, 386, 417n138, 420n148, 423 Seabed Disputes Chamber 238n9, 243n14, 248n12, 249, 251–255, 260, 265, 266, 356n200, 360, 415 South China Sea (scs) 3–78, 389, 391, 392, 394–396, 399–402, 407, 408, 410, 412, 415, 417, 419, 422, 423 South China Sea Case 76 South Korea (Korea) 182, 183, 190, 196, 201, 317

445

Index

Taiping 3–78 Taiwan 4, 63, 317, 392, 401, 402 Taiwan Authority (Taiwan) 6, 62, 63, 65, 66, 73, 75 The Area (Deep Seabed Area) 14, 235–238

288–290, 292, 295n55, 296, 298, 314, 323, 324, 329n26, 334n65, 345, 356n199, 367n8, 369, 373–374, 376, 377, 384n82, 388n1, 390, 393, 394, 395n30, 408n91, 413n118, 422n154, 423n157, 426n2, 428, 431, 433n15, 434n17–19, 435n20–22, 436n23–29, 437, 438n31, 439, 440 United Nations Fish Stocks Agreement (unfsa) 215–219, 222, 226–228, 231

United Nations Convention on the Law of the Sea Convention (unclos) 3–78, 113, 114, 170–173, 175, 181, 183n16, 208, 215, 218n24, 235n1, 236n3, 237, 247, 275, 283,

warship 70, 341 Whaling 195, 241, 365–387 Whaling in Antarctic (Antarctic Whaling Case) 365–387

Southeast Asia 388–424 Sub-Regional Fisheries Commission (srfc) 189n43, 248n14, 251, 255, 264n96,  361n227