The Development of the Law of the Sea Convention: The Role of International Courts and Tribunals 1839104252, 9781839104251

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The Development of the Law of the Sea Convention

The Role of International Courts and Tribunals

Edited by

Øystein Jensen Fridtjof Nansen Institute, Norway, and the University of South-Eastern Norway

Cheltenham, UK • Northampton, MA, USA

© The Editor and Contributors Severally 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA

A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020940529 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781839104268

ISBN 978 1 83910 425 1 (cased) ISBN 978 1 83910 426 8 (eBook)

Contents List of contributorsvii Prefacexi List of abbreviationsxii Table of casesxiv 1

General introduction Øystein Jensen

1

2

The regime of islands Sir Malcolm D. Evans and Reece Lewis

3

Revealing a mosaic: international jurisprudence concerning the non-fisheries elements of the exclusive economic zone regime Robin Churchill

14

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4

Legislative and enforcement jurisdiction of the coastal state with respect to fisheries in the exclusive economic zone Nigel Bankes

5

Managing transboundary fish stocks for sustainability Andrew Serdy

104

6

Obligations of flag states in the exclusive economic zone Aldo Chircop

139

7

Deep seabed mining Aline Jaeckel

168

8

ITLOS and the tale of the tenacious ‘genuine link’ Moira L. McConnell

190

9

Hot pursuit Knut E. Skodvin

216

10

Historic rights Seokwoo Lee and Lowell Bautista

244

v

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11 Reflections Øystein Jensen

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Index268

Contributors Nigel Bankes is Professor and Chair in Natural Resources Law at the Faculty of Law, University of Calgary, Canada. His research work covers a range of areas, including carbon capture and storage, indigenous property rights in settler states, unitization and joint development agreements in marine areas, electricity regulation and dispute settlement under the United Nations Convention on the Law of the Sea. Professor Bankes is a member of the editorial boards of the Yearbook of Polar Law and the Arctic Review on Law and Politics, and is the former editor of the Journal of Energy and Natural Resources Law. In 2019, he received a Killam Annual Professorship for his excellence in research, mentorship and teaching. Lowell Bautista is Senior Lecturer at the School of Law at the Faculty of Law, Humanities and the Arts, University of Wollongong, Australia. Dr Bautista holds a Bachelor of Arts degree in Political Science (cum laude) and a Bachelor of Laws degree from the University of the Philippines; a Master of Laws (Marine and Environmental Law) degree from Dalhousie University, Canada; and a PhD in law from the University of Wollongong. His areas of research include territorial and maritime boundary issues in Asia-Pacific, the South China Sea, Philippine maritime and territorial issues, underwater cultural heritage and international environmental law, on which topics he has also published. Aldo Chircop is Professor of Law and Research Chair in Maritime Law and Policy at Dalhousie University, Canada. He was formerly Chair in Marine Environment Protection at the International Maritime Organization World Maritime University in Malmö, Sweden; and has held directorships of the Marine Affairs Program and Marine and Environmental Law Institute at Dalhousie, the International Ocean Institute and the Mediterranean Institute, Malta. Professor Chircop has co-authored or co-edited more than 20 books and 80 articles and book chapters in the field of international maritime law and the international law of the sea. Robin Churchill is Professor Emeritus in Public International Law at the University of Dundee, Scotland. For decades, he has been a world-leading vii

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academic in the field of the law of the sea and has acted as adviser/consultant to various non-governmental organizations (particularly environmental and fisheries organizations), foreign governments, the European Commission and the European Parliament. He is a member of the editorial boards of the British Yearbook of International Law, the International Journal of Marine and Coastal Law and Law, Science and Policy. He is also a member of the Permanent Court of Arbitration’s Panel of Arbitrators for Arbitration of Disputes relating to Natural Resources and the Environment. Together with Alan Vaughan Lowe, Churchill is the author of The Law of the Sea (Manchester University Press 1999) – the authoritative standard work on the subject. Sir Malcolm D. Evans is Professor of Public International Law at the University of Bristol, England. His areas of legal specialization include both international human rights protection and the international law of the sea. Professor Evans is the co-general editor of the International and Comparative Law Quarterly and co-editor-in-chief of the Oxford Journal of Law and Religion. His textbook International Law (Oxford University Press 2018) is widely recognized as an outstanding collection of pertinent writings by leading scholars in the field. He became a member of the UN Subcommittee for the Prevention of Torture in 2009 and since 2011 has served as its Chair. Professor Evans was appointed Knight Commander of the Order of St Michael and St George in 2016 for his services to torture prevention and religious freedom. Aline Jaeckel is Lecturer in Law at the University of New South Wales, Australia. Her research focuses on marine environmental management, ocean governance, the law of the sea and international environmental law. Dr Jaeckel has a particular research interest in the emerging regulation of deep seabed mineral mining and is the author of The International Seabed Authority and the Precautionary Principle – Balancing Deep Seabed Mineral Mining and Marine Environmental Protection (Brill 2017). She sits on the editorial board of Marine Policy and the advisory board to the Deep Ocean Stewardship Initiative, a global interdisciplinary network of researchers focused on science-policy engagement in ocean governance. Dr Jaeckel holds a PhD from the University of New South Wales; an LLM from Leiden University, the Netherlands; and an LLB from the University of the West of England, Bristol. Øystein Jensen is Senior Research Fellow at the Fridtjof Nansen Institute (Lysaker, Norway) and Associate Professor of Law at the University of South-Eastern Norway. Professor Jensen obtained his PhD in international law from the University of Oslo in 2013. He is the author of The Commission on the Limits of the Continental Shelf: Law and Legitimacy (Brill 2013); other

Contributors

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publications include books, book chapters and research articles, particularly in the field of the law of the sea. Seokwoo Lee is Professor of International Law at Inha University Law School, Korea. Prior to taking up his current post, he conducted research at several universities, including the University of Tokyo, Harvard, Georgetown, Oxford, Durham and George Washington University. He holds a DPhil (Oxford), LLMs (NYU, University of Minnesota, and Korea University), and an LLB (Korea University). His research focuses on territorial and boundary disputes, the law of the sea and international human rights law. Reece Lewis is Lecturer in Law at Cardiff University, Wales. Prior to joining Cardiff University, he completed his doctoral studies at the University of Bristol under the supervision of Professor Sir Malcolm D. Evans. His research is primarily in the field of the international law of the sea and on jurisprudential issues concerning the international legal order. Moira L. McConnell is Professor of Law Emerita and Honorary Fellow of the Marine and Environmental Law Institute at the University of Dalhousie, Canada. Her research interests are in the fields of public and private international law and domestic law, including international law, the law of the sea, maritime law and policy, international labour law, environmental law, governance systems, corporate law and governance, administrative and constitutional law, social justice, contract law and human rights. She has more than 100 publications on a wide range of topics in these fields. Professor McConnell is also a co-editor of the international interdisciplinary Ocean Yearbook and is a member of the editorial board of the WMU Journal of Maritime Affairs. Andrew Serdy is Professor of Public International Law and Ocean Governance at the University of Southampton, England. He has served in various diplomatic positions in the Australian Government Department of Foreign Affairs and Trade (including postings in Tokyo and Warsaw), before specializing in the law of the sea in the Department’s Sea Law, Environmental Law and Antarctic Policy Section. Professor Serdy has been legal adviser to Australian delegations to the Commission for the Conservation of Southern Bluefin Tuna, the Indian Ocean Tuna Commission and other international meetings, and appeared for Australia in 2000 in the Southern Bluefin Tuna case. He has published widely in the field of the law of the sea and is also a member of the editorial board of Ocean Development & International Law and of the peer review committee of the German Yearbook of International Law.

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Knut E. Skodvin is Associate Professor at the Faculty of Law, University of Bergen, Norway. His fields of expertise include public international law, the law of armed warfare and the law of the sea. Professor Skodvin obtained his PhD in international law from the University of Bergen in 2013 with a dissertation entitled Freedom of Navigation in the Exclusive Economic Zone under the Law of the Sea Convention.

Preface The Fridtjof Nansen Institute served as the national consortium partner when the Jebsen Centre for the Law of the Sea was established at the University of Tromsø – The Arctic University of Norway in 2013. During the six years when the Centre was in operation, I was the leader of the work package ‘Fundamental Challenges for the Law of the Sea’. In studying the driving factors behind the progressive development of the law of the sea, we also examined the role of international courts and tribunals. The present volume is among the outputs of the research conducted in the final phase of that project. Thanks are due to the many people who provided advice and assistance with this book – not least the entire staff of the Jebsen Centre, for creating a special environment of enthusiasm for learning and appreciation for growing. Further, I wish to thank Alex G. Oude Elferink, who provided helpful ideas and comments on an early outline for the book; and Sir Malcolm D. Evans, for useful advice in the publication process. My thanks also go to colleagues at the University of South-Eastern Norway and the Fridtjof Nansen Institute. As always, I am grateful to Susan Høivik for her competent language assistance in the preparation of the manuscript. I also wish to thank the staff at Edward Elgar Publishing, especially my editor, Amber Watts. And finally, let me thank the skilled and devoted authors of the chapters in this book, for putting in so much hard work. As far as possible, the text has been updated as of 1 January 2020, although in some places the reader is alerted to cases where decisions have been made after this date. Øystein Jensen Oslo, 10 January 2020

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Abbreviations CCAMLR CLCS DOALOS ECHR ECtHR EEZ EHRR EU FAO GATT ICJ ILC ILM ILO ILR IMO ISA ITLOS IUU JCLOS MSY nm PCA PCIJ QB

Commission for the Conservation of Antarctic Marine Living Resources Commission on the Limits of the Continental Shelf Division for Ocean Affairs and the Law of the Sea Convention for the Protection of Human Rights and Fundamental Freedoms European Court of Human Rights Exclusive economic zone European Human Rights Reports European Union Food and Agricultural Organization of the United Nations General Agreement on Tariffs and Trade International Court of Justice International Law Commission International Legal Materials International Labour Organization International Law Reports International Maritime Organization International Seabed Authority International Tribunal for the Law of the Sea Illegal, unreported and unregulated Jebsen Centre for the Law of the Sea Maximum sustainable yield Nautical miles Permanent Court of Arbitration Permanent Court of International Justice Law Reports, Queen’s Bench Division xii

Abbreviations

RFMO RHIB RIAA SDC SRFC UK UN UNCED UNCLOS UNCLOS I UNCLOS II UNCLOS III UNCTAD UNGA UNTS VCLT WTO WWF

xiii

Regional Fisheries Management Organisation Rigid-hulled inflatable boats Reports of International Arbitral Awards Seabed Dispute Chamber of the International Tribunal for the Law of the Sea Sub-Regional Fisheries Commission The United Kingdom of Great Britain and Northern Ireland United Nations United Nations Conference on Environment and Development United Nations Convention on the Law of the Sea First United Nations Conference on the Law of the Sea Second United Nations Conference on the Law of the Sea Third United Nations Conference on the Law of the Sea United Nations Conference on Trade and Development United Nations General Assembly United Nations Treaty Series Vienna Convention on the Law of Treaties World Trade Organization World Wide Fund for Nature

Table of cases Arbitral Tribunals Arctic Sunrise Arbitration (Netherlands v Russia), Award on the Merits of 14 August 2015, RIAA XXXII (2019), 210  12, 49, 51–6, 58, 60–61, 65–7, 69–70, 217,  222–43, 263, 265–6 Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India), Award of 7 July 2014, RIAA XXXII (2019), 1 18, 34, 36 Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), Award of 18 March 2015, RIAA XXXI (2018), 361 49, 62–5, 67–9, 71, 77, 86, 103,  163, 249, 259 Chamizal Case (Mexico v United States), Award of 15 June 1911, RIAA XI (2006), 309 253 Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic, Decision of 30 June 1977 and 14 March 1978. RIAA XVIII, 3  3, 18 Delimitation of the Exclusive Economic Zone and the Continental Shelf between Barbados and the Republic of Trinidad and Tobago, Decision of 11 April 2006, RIAA XXVII (2008), 147 78–9, 83 Delimitation of Maritime Areas between Canada and France, Award of 10 June 1992, RIAA XXI, 265 18 Dubai–Sharjah Border Arbitration, ILR 91 (1981), 543 31 Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe), Award of 5 September 2016, PCA Case Nº 2014-07 53–4 Filleting within the Gulf of St. Lawrence between Canada and France, Decision of 17 July 1986, RIAA XIX, 225 91 Guinea/Guinea-Bissau Dispute Concerning Delimitation of the Maritime Boundary, Award of 14 February 1985, ILR 77 (1985), 635 41 Investigation of certain incidents affecting the British trawler Red Crusader, Report of 23 March 1962 of the Commission of Enquiry established by the Government of United Kingdom and Northern Ireland and the Government of the Kingdom of Denmark on 15 November 1961, RIAA XXIX, 521 217, 219–20, 230, 234, 236 Island of Palmas Case (Netherlands v US), Award of 4 April 1928, RIAA II (2006), 829  21–2, 252 North Atlantic Coast Fisheries Case (Great Britain v United States), Award of 7 September 1910, RIAA XI (1910), 167 247 South China Sea Arbitration Award (Philippines v China), Arbitral Award of 12 July 2016, PCA Case Nº 2013-19 10–13, 15–16, 20, 24–5, 27–34, 36, 47, 49, 55,  61–3, 65–7, 69–71, 77, 79, 83, 88–9, 103, 117,  122, 126, 163–4, 245, 248–9, 253–61, 265–6 xiv

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S.S. ‘I’m Alone’, Award of 30 June 1933 and 5 January 1935. RIAA III (2006), 1609  3, 217–19, 230, 237

Central American Court of Justice Fonseca case (El Salvador v Nicaragua), Judgment of 9 March 1917, (1917) 11 American Journal of International Law 674 247

European Court of Human Rights Christine Goodwin v the United Kingdom, Judgment of 11 July 2002, EHRR XXXV, 447 9 Tyrer v the United Kingdom, Judgment of 25 April 1978, EHRR II, 1 9

International Court of Justice Continental Shelf (Tunisia v Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, 18 43–4, 244, 246–7, 249 Corfu Channel (UK v Albania), Judgment of 9 April 1949, ICJ Reports 1949, 4 2 Fisheries Case (United Kingdom v Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116 18, 245, 247, 250–51 Fisheries Jurisdiction (Spain v Canada), Jurisdiction of the Court, Judgment, ICJ Reports 1998, 431 86, 116 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, 3 6, 113 Gulf of Maine (Canada v United States of America), Judgment of 12 October 1984, ICJ Reports 1984, 246 44, 251–2, 259 Kasikili/Sedudu Island Case (Botswana v Namibia), Judgment, ICJ Reports 1999, 1045  21 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 6, 264 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, ICJ Reports 2001, 40 19–23, 28–30, 33–5, 42–6, 249–50 Maritime Delimitation between Greenland and Jan Mayen (Denmark v Norway), ICJ Reports 1993, 38 25, 32–3, 38–40 Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, ICJ Reports 2009, 61 3, 24, 43 Minquiers and Ecrehos Case (France v UK), Judgment, ICJ Reports 1953, 47 22 Nicaragua Case (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, 14 266 North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands), Judgment, ICJ Reports 1969, 3 36, 42, 43, 135 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010, 14 157, 177, 183 Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia v Singapore), ICJ Reports 2008, 12 23, 252–3

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Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v Malaysia), ICJ Reports 2002, 625 22 Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Reports 2012, 624 15,  22–4, 26–30, 32, 34, 38, 40, 42–3, 45 Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua v Honduras), Judgment, ICJ Reports 2007, 659 21–3, 29, 42 Whaling in the Antarctic (Australia v Japan; New Zealand intervening), Judgment, ICJ Reports 2014, 226 105

International Tribunal for the Law of the Sea ‘Arctic Sunrise’ (Kingdom of the Netherlands v Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, 230 53, 194, 222–43 ‘Camouco’ (Panama v France), Prompt Release, Judgment, ITLOS Reports 2000, 10  100–101, 114 Conservation and Sustainable Exploitation of Swordfish Stocks (Chile v European Community), Order of 20 December 2000, ITLOS Reports 2000, 148 114–15 Conservation and Sustainable Exploitation of Swordfish Stocks (Chile v European Union), Order of 16 December 2009, ITLOS Reports 2008–2010, 13 115 Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment, ITLOS Reports 2012, 4 31 ‘Grand Prince’ (Belize v France), Prompt Release, Judgment, ITLOS Reports 2001, 17  114, 148, 197, 202–6, 213 ‘Hoshinmaru’ (Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 18 94, 101–2, 114 ‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, 17 99, 114, 197, 205, 206–8 ‘Monte Confurco’ (Seychelles v France), Prompt Release, Judgment, ITLOS Reports 2000, 86 100–101, 114 MOX Plant (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, 95 158 M/T ‘San Padre Pio’ Case (Switzerland v Nigeria), Order of 6 July 2019 (not yet reported) 49, 59, 65–7, 98 M/V ‘Norstar’ Case (Panama v Italy), Judgment of 10 April 2019 (not yet reported)  12, 59, 197, 212 M/V ‘SAIGA’ (Saint Vincent and the Grenadines v Guinea), Prompt release, Judgment, ITLOS Reports 1997, 16 57, 59, 114, 145 M/V ‘SAIGA’ (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10 12, 49, 56, 57, 61, 67, 68, 97, 114, 148, 193, 194, 196–202,  204, 209–14, 217, 221–2, 227, 230, 233, 235, 238 M/V ‘Virginia G’ (Panama v Guinea-Bissau), Judgment, ITLOS Reports 2014, 4 49,  56–7, 59, 66–7, 68, 89–99, 102, 114, 145, 158, 197, 208–13 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, 2 April 2015, ITLOS Reports 2015, 4 5, 61, 84, 104, 123–38 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, 10 12, 84, 129, 157, 168–89, 264

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Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 280 11, 104, 116–22,  128, 155, 164, 183 ‘Tomimaru’ (Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 74 114 ‘Volga’ (Russian Federation v Australia), Prompt Release, Judgment, ITLOS Reports 2002, 10 100–101, 114, 216

Permanent Court of International Justice Legal Status of Eastern Greenland, Judgment, PCIJ Series A/B, No.53 (1933) SS ‘Wimbledon’, Judgment, PCIJ Series A, No 1 (1923)

21–2 2

1. General introduction Øystein Jensen 1. INTRODUCTION The United Nations Convention on the Law of the Sea (UNCLOS) has been in force for a quarter of a century now.1 It establishes a comprehensive legal regime for the oceans – the major site of interaction between states on the planet, and an area that is frequently the focus of inter-state frictions. Ratified by the vast majority of the world’s states, UNCLOS serves as the applicable law of the sea framework in most state-to-state relations.2 Over the course of the first 25 years of its operation, its provisions have been the subject of a range of inter-state disputes concerning interpretation and application. This book offers an in-depth appraisal of the contributions that international courts and tribunals have made to one of the most important fields of international law, tracing the impact that the jurisprudence has had on the development and clarification of various provisions of UNCLOS since its entry into force in 1994. The specific focus here is on the case law relating to substantive provisions of UNCLOS that have been subject to significant interpretation and application by international adjudicators. Thus, the object of analysis is one particular legal order – UNCLOS – not a specific court or tribunal, such as the International Court of Justice (ICJ) or the International Tribunal for the Law of the Sea (ITLOS). What makes this endeavour realistic within the frame of a single research anthology is that the book does not aim to cover UNCLOS jurisprudence in its entirety. Since UNCLOS entered into force, several provisions of its Part XV on procedures and jurisdiction have been subject to judicial examination.3 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397. As of 10 December 2019, 168 states had ratified UNCLOS. 3 Approximately two-thirds of the cases submitted to ITLOS over the past two decades have concerned disputes relating to the arrest and detention of ships: first, in regard to Article 290(5) of UNCLOS concerning the competence of ITLOS (or any other court or tribunal agreed by the parties) to prescribe provisional measures for disputes that are to be dealt with by an arbitral tribunal pending the constitution of 1 2

1

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Some of the chapters in this book do touch upon jurisdictional matters; but the focus is primarily on other substantive rules of UNCLOS, not the case law specifically concerned with its Part XV.4 Inter-state disputes on maritime boundaries have continued as a litigious matter since the entry into force of UNCLOS. And in a string of disputes relating to the Bay of Bengal, the Black Sea, the Caribbean Sea and the Pacific Ocean, various international courts and tribunals – including the ICJ, ITLOS and arbitral tribunals – have made important contributions to the understanding of the rules in Article 15 of UNCLOS on the delimitation of the territorial sea, and Articles 74 and 83 with respect to the delimitation of the single maritime boundary and the continental shelf beyond 200 nautical miles from the territorial sea baselines. However, the literature on delimitation case law is already extensive, so it would entail unnecessary duplication of other and recent research if this volume were also to deal with jurisprudence on UNCLOS’s delimitation provisions.5 Therefore, the contributing authors to this volume focus on exploring other substantive provisions and issue areas of UNCLOS that have been subject to adjudication and where the jurisprudence has influenced the law in its more detailed aspects.

2.

THE ADJUDICATORS OF UNCLOS

Traditionally, the ICJ has been states’ preferred judicial forum for the settlement of law-of-the-sea disputes. The first cases to be decided by both the Permanent Court of International Justice (PCIJ)6 and the ICJ,7 in 1923 and 1949 respectively, concerned the law of the sea – notably, ships’ right of passage through straits and canals. In addition, ad hoc arbitral tribunals and

that tribunal (ie, cases on provisional measures); and second, in regard to Article 292 of UNCLOS, under which foreign vessels arrested for alleged fisheries offences in the exclusive economic zone or for pollution offences shall be released promptly on payment of a bond or other security. If the arresting state refuses to set a bond or sets a bond that the flag state considers unreasonable, the flag state may apply to ITLOS (or another agreed dispute settlement body) requesting it to order the arresting state to set a reasonable bond. 4 On the literature of case law relating to Part XV, see, inter alia, N. Bankes and Ø. Jensen (eds), ‘Compulsory and binding dispute resolution under the UN Convention on the Law of the Sea’ (2017) 48 Ocean Development & International Law 209–344 (special issue). 5 See in particular A.G. Oude Elferink et al, Maritime Boundary Delimitation: The Case Law – Is It Consistent and Predictable? (Cambridge University Press 2018). 6 SS ‘Wimbledon’, Judgment of 17 August 1923, PCIJ, Series A, No 1. 7 Corfu Channel (UK v Albania), Judgment of 9 April 1949, ICJ Reports 1949, 4.

General introduction

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various arbitral awards have contributed important clarifications on intricate issues of interpretation and application of the law of the sea, including the SS I’m Alone8 and the Anglo-French Continental Shelf 9 cases. UNCLOS contains no limitations as to which courts or tribunals can resolve inter-state disputes regarding its interpretation and application.10 The disputing states are free to choose whatever peaceable solution they may desire. This is stated in Part XV, Section 1 of UNCLOS – the main rule being that the states themselves should seek to resolve their disputes.11 Among the options for such peaceful settlement is the application of a general dispute resolution agreement between the parties, which may include the use of a court or an ad hoc tribunal. Thus, adjudication outside the UNCLOS system has continued as a means for settling disputes by applying the Convention – be it through ad hoc arbitral tribunals, the ICJ or other dispute settlement bodies. One notable example is the dispute concerning the delimitation of the maritime zones between Romania and Ukraine in 2009 – a modern landmark case regarding the interpretation and application of Articles 74 and 83 of UNCLOS on the delimitation of the exclusive economic zones (EEZ) and the continental shelf between the two states.12 After failed attempts to reach agreement, Romania instituted proceedings against Ukraine before the ICJ.13 In addition to the opportunity for states to submit disputes concerning the interpretation and application of the Convention to any international court or SS ‘I’m Alone’ (Canada/USA), RIAA III (1935), 1609. Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland and the French Republic (United Kingdom/France), RIAA XXVIII (1977), 3. 10 For two takes on the UNCLOS dispute settlement system in general, see R. Churchill, ‘The General Dispute Settlement System of the UN Convention on the Law of the Sea: Overview, Context, and Use’ (2017) 48 Ocean Development & International Law 216–38; N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press 2005). 11 See Articles 279–80 of UNCLOS. According to Article 285 of UNCLOS, these rules also apply to disputes concerning deep seabed mining activities. In the event that a dispute concerning deep seabed mining is referred to a dispute settlement body, however, it is the Seabed Disputes Chamber of ITLOS that has exclusive jurisdiction to hear the case. Thus, states parties to UNCLOS accept the jurisdiction of the Chamber without any explicit declaration; only in certain instances may other dispute resolution bodies be used: see Articles 187–88 of UNCLOS. 12 Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, ICJ Reports 2009, 61. 13 Romania found jurisdiction of the ICJ on the provisions of an agreement concluded with reference to the Treaty on the Relations of Good Neighbourliness and Cooperation between Romania and Ukraine. See Additional Agreement to the Treaty on the Relations of Good Neighbourliness and Cooperation between Romania and Ukraine 1997 (2159 UNTS 357). 8 9

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tribunal of their own choice, UNCLOS has its own apparatus of courts and tribunals ready to act if the states do not succeed in resolving their disputes through any of the mechanisms prescribed by Section 1 of Part XV. Where no settlement has been reached by recourse to Section 1, according to Article 286 of UNCLOS, any dispute concerning the interpretation or application of the Convention may be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under Section 2 of Part XV.14 This means that a third party – one of the courts or tribunals mentioned in Article 287 – shall resolve the dispute, with final and binding effect. Upon ratification, UNCLOS states parties must choose one or more of the following bodies for the settlement of disputes under the Convention: ITLOS; the ICJ; an arbitral tribunal constituted in accordance with Annex VII of UNCLOS; or a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein (fisheries, protection and preservation of the marine environment, marine scientific research and navigation, including pollution from vessels and by dumping).15 Article 287 thus gives the states parties the opportunity to indicate the preferred court or tribunal for resolving disputes regarding the interpretation or application of UNCLOS. However, that provision does not guarantee that a state’s preferred procedure will actually be used. The court or tribunal that will ultimately hear the case also depends upon the choice of the other party (or parties): if the parties to a dispute have not accepted the same procedure, the case may be submitted to arbitration only in accordance with Annex VII, unless the parties agree otherwise;16 also, if a state party has not made a declaration, it shall be deemed to have accepted arbitration in accordance with Annex VII.17 Thus, under UNCLOS, there is actually a slight preference for arbitration as the means of dispute settlement. Concerning the role of courts and tribunals, UNCLOS represents a huge step forward as compared to the solution established under the four 1958 Geneva Conventions on the law of the sea.18 As explained by Tullio Treves – 14 In this regard the UNCLOS system is rather traditional. Compromissory clauses similar to that in Article 286 are found in many other multilateral treaties, some pre-dating UNCLOS. 15 Article 287(1) of UNCLOS. 16 Article 288(5) of UNCLOS. 17 Article 287(3) of UNCLOS. 18 Of the four 1958 Geneva Conventions, only the Convention on Fishing and Conservation of the Living Resources of the High Seas (559 UNTS 285) contains provisions on dispute settlement procedures; see Articles 9–12. The First United Nations Conference on the Law of the Sea (UNCLOS I) also adopted the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (450 UNTS 169), containing dispute resolution regulations for other matters than fisheries. Due to the low

General introduction

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a distinguished academic and former judge of ITLOS – ‘a major achievement of [UNCLOS] is that it has brought the law of the sea under the jurisdiction of international courts and tribunals’, since disputes arising between states parties and concerning the interpretation or application of UNCLOS may be submitted at the initiative of one party to the dispute to an international court or tribunal whose judgment is binding.19 However, the dispute settlement system under UNCLOS is at best quasi-compulsory. Notably, the role of the adjudicators is mitigated by the fact that Section 3 of Part XV provides for far-reaching limitations and exceptions (both obligatory and optional) to the application of the compulsory procedures entailing binding decisions in Section 2. In reality, therefore, a state’s ability to ‘force’ a judicial proceeding upon another state is still substantially limited – and these exceptions and limitations of Section 3 might be one reason why we have not seen any ‘explosion’ in the number of judicial decisions in the field of the law of the sea in the first 25 years of UNCLOS.20 Still, there can be no doubt that competition for cases has increased, due to the wide choice of forums for settling disputes under Section 221 – and particularly since the permanent and specialized tribunal for the law of the sea in Hamburg, ITLOS, is now included on the list of available adjudicators. Actually, ITLOS may take over as the primus inter pares: of the active courts and tribunals, the ICJ is not necessarily the court today with the greatest expertise in the law of the sea.22

number of ratifications and accessions, however, these instruments have not had much normative influence. 19 T. Treves, ‘The Development of the Law of the Sea Since the Adoption of the UN Convention on the Law of the Sea: Achievements and Challenges for the Future’ in D. Vidas (ed), Law, Technology and Science for Oceans in Globalisation – IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf (Martinus Nijhoff 2010) 41–58, 47. 20 In addition to litigation in the field of maritime boundary delimitation, there have been numerous cases with respect to the prompt release of vessels and provisional measures – two novel features of Part XV of UNCLOS. 21 V. Lowe and A. Tzanakopoulos, ‘The Development of the Law of the Sea by the International Court of Justice’ in C.J. Tams and J. Sloan (eds), The Development of International Law by the International Court of Justice (Oxford University Press 2013) 177–93. 22 Both ITLOS and the Seabed Disputes Chamber of ITLOS may adopt advisory opinions. For the Seabed Disputes Chamber, see Article 191. For ITLOS, the Convention does not contain an explicit provision for adopting advisory opinions; but, according to Annex VI of UNCLOS, Article 21 (Statute of the Tribunal), the jurisdiction of ITLOS comprises ‘all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal’. Under Article 21, ITLOS found that it had jurisdiction to entertain the request for an advisory opinion submitted to it by the Permanent Secretary of the Sub-Regional Fisheries Commission (SRFC). See Request

The development of the Law of the Sea Convention

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3.

COURTS AND TRIBUNALS AS AGENTS FOR LEGAL DEVELOPMENT

International courts and tribunals have as their primary task the resolution of disputes between states. Dispute settlement bodies are not legislators, as expressed in the civil law maxim ‘Iudicis est ius dicere, non dare’: it is the role of the judge to state the law, not to give it. Courts and tribunals are themselves aware of this role; the ICJ has stated that the function of a court or tribunal is not law making as such, but the application of existing law in the settlement of disputes: ‘In the circumstances, the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.’23 The ICJ stated the same in its Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons: It is clear that the Court cannot legislate, and, in the circumstances of the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable to the threat or use of nuclear weapons.24

What states’ representatives, politicians and diplomats are essentially concerned with are the background and facts of inter-state disputes, as well as the conclusions in specific cases. For international legal scholars, the focus is wider, involving the various aspects related to the procedures of courts and tribunals.25 Increasing attention has been paid to the design of dispute settlement mechanisms in international agreements.26 Other studies have addressed the effects of proliferation of international tribunals and forum shopping;27

for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, 4 (para 69). 23 Fisheries Jurisdiction (United Kingdom v Iceland), Merits, Judgment, ICJ Reports 1974, 3, 23–4. 24 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226, 237 (para 18). 25 See, for example, A. Zimmermann et al, The Statute of the International Court of Justice: A Commentary (Oxford University Press 2012); and H. Thirlway, The Law and Procedure of the International Court of Justice: Fifty Years of Jurisprudence (Oxford University Press 2013). 26 B. Koremenos, ‘If Only Half of International Agreements Have Dispute Resolution Provisions, Which Half Needs Explaining?’ (2007) 36 Journal of Legal Studies 189–212; K. Alter and L. Helfer, ‘Nature or Nurture? Judicial Lawmaking in the European Court of Justice and the Andean Tribunal of Justice’ (2011) 64 International Organization 563–92. 27 M. Busch, ‘Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade’ (2007) 61 International Organization 735–61.

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and there has been a greater focus on how the international legal order is in the process of developing constitutional (ie, vertical) distinctive features, in line with those found in internal judicial systems.28 As a result of the growing number and competencies of new international courts and tribunals, a further issue has arisen: can international courts be said to be legitimate actors?29 Still, however, international legal scholars are primarily concerned with the normative influence that the decisions of courts and tribunals have on the clarification and development of the substantive law. The mandate of international courts and tribunals may strictu sensu be limited to resolving disputes and, for some, providing advisory opinions; but, through interpretation and application, courts and tribunals do more than simply apply the law: they are part of the process of its continuing evolution. Judgments and advisory opinions will often offer ‘an authoritative voice on the meaning of international instruments and unwritten principles’; and ‘[i]nternational courts – in particular the ICJ – do play a major law-making role’.30 Thus, consolidation and further development of the law are frequent by-products of dispute settlement; and there is indeed a fine line between the primary role of courts and tribunals to resolve disputes on the one hand, and their coincidental role as ‘legislators’ on the other. Through longstanding and regular engagement, ICJ decisions have ‘come to be accepted as an authoritative guide’ to core legal issues, such as the law of territory.31 The significant judicial activity of the dispute resolution system under the World Trade Organization regime is another example of the extent to which case law may contribute to further consolidation and development of the law.32 And, with its numerous rulings, the European Court of Human Rights (ECtHR) has become the avant-garde instance in human rights law, shaping and giving concrete meaning to many provisions of the European Convention on Human Rights (ECHR).33

28 See J. Klabbers et al, The Constitutionalization of International Law (Oxford University Press 2009). 29 See, for example, N. Grossman et al (eds), Legitimacy and International Courts (Cambridge University Press 2018); R. Howse et al (eds), The Legitimacy of International Trade Courts and Tribunals (Cambridge University Press 2018). 30 A. Boyle and C. Chinkin, The Making of International Law (Cambridge University Press 2007), 268–69. 31 M. Shaw, ‘The International Court of Justice and the Law of Territory’ in C.J. Tams and J. Sloan (eds), The Development of International Law by the International Court of Justice (n 21) 176. 32 See generally G. Messenger, The Development of World Trade Organization Law: Examining Change in International Law (Oxford University Press 2016). 33 On the ECHR’s interpretation, see generally D.J. Harris et al, Law of the European Convention on Human Rights (Oxford University Press 2009) 5–21. See also

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The extent to which there is space and demand for international courts and tribunals to play an active and creative role in the development of treaty obligations depends largely on the substantive law at issue. In particular, the legislative technique employed by a convention will greatly influence the degree of ‘law-making’ activity by the adjudicators. A casuistic convention is easy to apply. Most conventions, however, operate with flexible and abstract terms and concepts. Treaties tend to be incomplete, because of the high transaction costs and future uncertainties.34 This is especially the case for multilateral treaties, where ‘many parties must agree on one single text, often left deliberately vague and redacted in multiple languages’.35 With regard to many of its provisions, UNCLOS falls into precisely that category. True, it has examples of significantly substantive rules and regulations, such as the ‘scientific’ criteria laid down in Article 76 for determining what is ‘continental shelf’ and what is not; but a great many provisions are marked by vagueness and ambiguity, such as the terms ‘genuine link’ and ‘hot pursuit’. Moreover, in some of its provisions, UNCLOS provides only framework regulations, which must be understood in light of customary international law or other treaty rules. Some other provisions of UNCLOS represent a codification of customary international law and must be interpreted with a view to such co-existing unwritten rules. In short, the space and demand for courts and tribunals to interpret UNCLOS are extensive. Here the Vienna Convention on the Law of Treaties (VCLT) offers the legal framework, under which a treaty – by the general rule of interpretation – is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context, and in light of its object and purpose.36 Other means of interpretation shall be taken into account as well;37 and recourse (when the interpretation according to the general rule leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable) may be had to supplementary means of interpretation, such as the preparatory works.38 When giving meaning to UNCLOS, J.G. Merrills, The Development of International Law by the European Court of Human Rights (Manchester University Press 1993). 34 P. Allott, ‘The Concept of International Law’ (1999) 10 European Journal of International Law 31–50, 43. 35 J. Pauwelyn and M. Elsig, ‘The Politics of Treaty Interpretation’ in J.L. Dunoff and M.A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2012) 445–74, 447. 36 Vienna Convention on the Law of Treaties 1969 (1155 UNTS 331), Article 31(1). 37 Article 31(3) of the VCLT. 38 Article 32 of the VCLT.

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a court or tribunal (and any other treaty interpreters) must, however, also make certain interpretative choices on which the VCLT is silent.39 For instance, faced with a specific term of UNCLOS, should it adopt an original or evolutionary interpretation – that is, take the meaning of that term when the treaty was concluded (original), or its meaning at the time of deciding a dispute (evolutionary)?40 Should it decide disputes on a case-by-case basis without reference to previously decided disputes (de novo) or rely on precedents?41 Should it interpret UNCLOS without reference to other legal instruments, or should it adopt a systemic approach to interpretation, linking the interpretation of the Convention to other treaties and general international law?42 And faced with a question that is not explicitly regulated by UNCLOS, should it take a deferential approach and do no more than the minimum required by its provisions or opt for an activist, gap-filling approach?43 Regardless, the fundamental consequence of the judicial activity of a court or tribunal is that it contributes to developing the law it is called upon to adjudicate.

Pauwelyn and Elsig, ‘The Politics of Treaty Interpretation’ (n 35) 449–68. That treaties are often interpreted in light of present-day conditions has been expressed by the ECtHR on several occasions: ‘The Court must also recall that the Convention is a living instrument which must be interpreted in the light of present-day conditions. In the case now before it the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field’ (Tyrer v UK [1978] 2 EHRR 1, 31). The context for utilizing a principle of dynamic and evolutive interpretation was an application which raised a complaint that corporal punishment by ‘birching’ in the Isle of Man was ‘degrading treatment’ prohibited by Article 3 of the ECHR. See B. Rainey et al, Jacobs, White, and Ovey: The European Convention on Human Rights (Oxford University Press 2017) 77. The ECHR reaffirmed this approach in the Christine Goodwin case, holding that ‘[it] is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive approach would indeed risk rendering it a bar to reform or improvement’ (Goodwin v UK, Reports of Judgments and Decisions 2002-VI, 74). 41 While not following a rule of legally binding precedent, most international courts and tribunals rely on previous case law, whether by making reference back to cases decided earlier by itself or to another court or tribunal in a different system or regime. See generally Pauwelyn and Elsig, ‘The Politics of Treaty Interpretation (n 35) 456. See also Article 21(2), of the 1998 Rome Statute of the International Criminal Court (2187 UNTS 90), which explicitly provides that weight shall be attributed to previous decisions: ‘The Court may apply principles and rules of law as interpreted in its previous decisions.’ 42 See generally Pauwelyn and Elsig, ‘The Politics of Treaty Interpretation’ (n 35) 457–59. 43 Ibid 454–55. 39 40

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4.

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RESEARCH FOCUS AND APPROACH OF THE CHAPTERS

How and in which areas have international courts and tribunals explored the frontiers of UNCLOS? This book is concerned with those provisions and issue areas of UNCLOS that, in the 25 first years of its operation, have become subject to significant interpretation by international courts and tribunals. For all the individual field studies presented here, the authors were requested: (1) to introduce the substantive provisions or issue areas of UNCLOS that have become subject to dispute settlement; (2) to present the case law relating to those rules and regulations, including the facts of the decided cases and the specific legal tasks facing the court or tribunal; and (3) to analyse the case law, with reflections on how and the extent to which the court or tribunal in question can be said to have provided the rules under scrutiny with further specific content. In examining the case law, the authors were also asked to reflect critically on the interpretative approach and technique employed by the relevant court or tribunal – for instance, whether it refers to the interpretive rules of the VCLT; whether it pushes for an original or evolutionary interpretation; whether it adopts a gap-filling approach; and whether it decides a case de novo or relies on precedent. This allows for more general reflections by each author – for instance, as to whether the decision-making body has made judicial modifications to the ordinary meaning of the treaty terms, or has made provisions applicable to untested situations not envisaged by the UNCLOS drafters and thus not specifically covered by its provisions.

5.

INTRODUCTION TO THE CHAPTERS

In Chapter 2, Sir Malcolm Evans and Reece Lewis review how international courts and tribunals have engaged with the regime of islands in Article 121 of UNCLOS. Focusing on the marked differences in approach by the jurisprudence in the various areas which have received particular attention in now-decided cases – sovereignty, entitlement and delimitation – they question whether there really exists a clearly structured ‘regime of islands’. In interpreting Article 121, courts and tribunals have taken an increasingly textual approach, focusing on key definitional terms and applying them in fairly mechanical ways. However, some of the most fundamental issues relating to the definition of an ‘island’ under Article 121 remain unresolved. Authors Evans and Lewis note in particular the award in the South China Sea

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Arbitration,44 hinting that a more contextually oriented approach to the regime of islands might be needed. Several provisions of UNCLOS relating to the EEZ have also been subject to dispute settlement in the past two-and-a-half decades. In Chapter 3, Robin Churchill examines the international jurisprudence as it relates to the non-fisheries provisions of the EEZ. He considers the approach of international courts and tribunals in relation to four main elements on which the adjudicators have made important clarifications: the rights of the coastal state; the rights of other states; mechanisms for resolving conflicts between the two sets of rights; and the formula in Article 59 of UNCLOS for resolving conflicts over unattributed rights. In Chapter 4, Nigel Bankes examines how international courts and tribunals have interpreted the provisions of UNCLOS dealing with legislative and enforcement jurisdiction of coastal states concerning fisheries in the EEZ. In focus is the contribution of the case law to certain open-textured and broadly drawn provisions, including Articles 61 and 62 of UNCLOS relating to conservation and utilization of the living resources. This is an area where recent years have seen several new decisions, from ITLOS as well as from arbitral tribunals. Case law on the UNCLOS rights and obligations of the coastal state in ensuring the sustainable management of shared fish stocks and fish stocks of common interest is analysed in Chapter 5 by Andrew Serdy, focusing on the 2015 ITLOS Advisory Opinion on IUU fishing and, to lesser extent, the Southern Bluefin Tuna case.45 Jurisprudence has had some influence in further developing certain regulations – and yet, a full 25 years after UNCLOS entered into force, there has still been no definitive judicial pronouncement on the content of the obligation of cooperation relating to transboundary fish stocks. In Chapter 6, jurisprudence relating to UNCLOS obligations of flag states in the EEZ is examined by Aldo Chircop. He too focuses on the Advisory Opinion on IUU Fishing – more specifically, on the extent to which the Advisory Opinion can be said to have changed the understanding of the ‘due diligence’ duties of flag states today. Minerals are present on the deep ocean floor in potentially large quantities and the number of actors engaged in seabed mining activities seems to be 44 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Award, 12 July 2016. Available on the website of the Permanent Court of Arbitration (PCA), www​.pcacases​.com/​web/​view/​7, last accessed 10 December 2019. 45 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 280.

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increasing. In Chapter 7, Aline Jaeckel examines the growing exploitation of such resources in view of Part XI of UNCLOS and the Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area of the ITLOS Seabed Disputes Chamber.46 Rather than providing yet another comprehensive analysis of the Advisory Opinion, Jaeckel shows how the Chamber used its very first Opinion to contribute to the development of the regime of the international seabed area by clarifying the responsibilities of states and their potential liability in case of environmental harm from seabed mining, and by elucidating the content of the ‘common heritage’ principle. Before disputes relating to the arrest and detention of ships can be brought to international adjudication, various intricate legal issues must be addressed, such as the question of nationality of ships and whether the flag state can make claims on behalf of non-nationals. In dealing with disputes relating to the arrest and detention of ships, courts and tribunals have clarified and developed certain important legal issues and doctrines under UNCLOS. Chapter 8 by Moira McConnell focuses on case law in relation to Article 91 of UNCLOS – in particular the concept of the ‘genuine link’, a point on which ITLOS has issued several relevant decisions, most recently in the M/V Norstar case.47 In Chapter 9, Knut E. Skodvin examines international case law relating to ‘hot pursuit’ under UNCLOS Article 111. His chapter focuses on the M/V Saiga (No 2)48 and Arctic Sunrise cases,49 but also draws lines to relevant jurisprudence prior to UNCLOS. Skodvin shows that the regime of hot pursuit under UNCLOS is subject to instability; and that jurisprudence to date, while not (re)shaping Article 111 in any fundamental manner, has provided clarifications on certain detailed aspects. The award in the 2016 South China Sea Arbitration concerned the role of historic rights and the source of maritime entitlements in the South China Sea. In Chapter 10, Seokwoo Lee and Lowell Bautista show how that award has removed much of the confusion on the relationship between UNCLOS and historic rights. The tribunal has clarified the meaning of the term ‘historic titles’ 46 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10. 47 The M/V Norstar Case (Panama v Italy), Judgment, 10 April 2019. Available on the ITLOS website, www​.itlos​.org, last accessed 10 December 2019. 48 The M/V Saiga Case (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10. 49 Arctic Sunrise Arbitration (Netherlands v Russia), Award on the Merits of 14 August 2015, RIAA XXXII (2019), 210; ‘Arctic Sunrise’ (Kingdom of the Netherlands v Russian Federation), Provisional Measures. Order of 22 November 2013, ITLOS Reports 2013, 230.

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under UNCLOS (as contained in Articles 298 and 15); moreover, any historic rights that China possessed over ocean space in the South China Sea were dissolved upon its ratification of UNCLOS. Because of the tribunal’s thorough reasoning and its steadfast adherence to the rules on treaty interpretation in the VCLT, the authors argue that this award will have substantial precedential weight on future cases involving similar issues. On the basis of the preceding substantive chapters of the book, the concluding chapter offers some brief reflections on the contribution of courts and tribunals to the development of UNCLOS thus far. Attention is paid to those areas where jurisprudence has brought significant clarifications and legal development, but also those where the contribution of case law has been rather scanty. Given the proliferation of courts and tribunals called upon to hear cases regarding the interpretation and application of UNCLOS, the editor questions whether there is a risk of fragmentation and loss of overall perspective on the law. In conclusion, he notes further causes for concern with respect to dispute settlement in the law of the sea – in particular the refusal of states parties to participate in proceedings before courts and tribunals, and the attendant danger of undermining the original intent underlying the pivotal dispute settlement system that UNCLOS represents.

2. The regime of islands Sir Malcolm D. Evans and Reece Lewis 1. INTRODUCTION 1.1

An Outline of the Argument

This chapter considers how international courts and tribunals have engaged with Article 121 of the UN Convention on the Law of the Sea (UNCLOS), paying particular regard to the award in the 2016 South China Sea Arbitration.1 As space precludes a full exploration of the treatment of islands by international courts and tribunals,2 the focus here is on certain core issues. Questioning the need for a discrete ‘regime of islands’, in this introductory section we identify three issues which arise whenever islands are considered within the context of the law of the sea: sovereignty, entitlement and delimitation. Section 2 provides an overview of judicial and arbitral approaches to Article 121, in part derived from long-established case law, and around which there is now a high degree of normative consensus. However, normative consensus does not necessarily imply interpretive consensus: this section highlights a range of problems which still need to be resolved. It also shows how recent judgments have taken an increasingly ‘textual’ approach, focusing on key definitional terms and applying them in fairly mechanical ways. This, we feel, is an unhelpful way of approaching the subject. Focusing on practice relating to maritime boundary delimitation, Section 3 explores a more contextual, rather than textual, approach. Courts and tribunals tend to view islands either as factors that constitute the primary contextual framework, or as factors that disrupt it. How islands are then treated in practice follows on from this; but this fundamental difference in approach is often 1 South China Sea Case (Philippines v China), Merits, 2016, https://​pcacases​.com/​ web/​sendAttach/​2086, last accessed 10 December 2019. 2 See those who do: D.W. Bowett, The Legal Regime of Islands in International Law (Oceana Publications 1979); H.W. Jayewardene, The Regime of Islands in International Law (Martinus Nijhoff 1990); C.R. Symmons, The Maritime Zones of Islands in International Law (Martinus Nijhoff 1979).

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obscured by the manner in which questions of ‘entitlement’ are addressed. All islands are ‘entitled’ to maritime zones (of some sort); but the extent of that entitlement will depend on the circumstances of the case. This is no different from the position of ‘mainlands’ (to use a pejorative term): all are entitled to generate maritime zones, but the extent of their entitlement will also depend on the circumstances of the case. This is what delimitation is all about – determining the extent of entitlements. The principle that ‘the land dominates the sea’ means that ‘mainlands’, in the guise of ‘the coastal configuration’, provide the essential starting point for any delimitation exercise. Islands – defined as areas ‘surrounded by water at high tide’ – seem to pertain to the realm of the sea rather than to the realm of the land; and so it becomes for courts and tribunals to determine whether the entitlement claims ‘constitute’ or ‘disrupt’ the primary context in a given situation, for they can do either. However, illogically and irrationally, courts and tribunals often seem to think that they can do both. This is why cases such as the South China Sea Arbitration, Nicaragua v Colombia3 and, indeed, almost all delimitation cases involving islands are so difficult and so contentious. In the process, however, the question in point changes from ‘What is the extent of an island’s entitlement?’ to ‘To what extent is an island entitled to its entitlement?’. By way of both illustration and conclusion, Section 4 highlights some key factors which appear to influence decision making. 1.2

(Why) is there a ‘Regime’ of Islands?

It is often assumed that there is a ‘regime of islands’. Part VIII of UNCLOS bears this heading and some of the key formative studies have addressed the topic on the basis of this assumption.4 However, this ‘regime’ is not dealt with as such in several leading historic5 and contemporary works6 on the law of the sea which address the effect of islands in relation to other key elements of the law of the sea framework. So, for example, islands are seen as giving rise to 3 Territorial and Maritime Dispute (Nicaragua v Colombia), ICJ Reports 2012, 624. 4 Ibid. 5 See, for example, D.P. O’Connell, The International Law of the Sea, Vol I (Clarendon Press 1982; Vol II, Clarendon Press 1984); M.S. McDougal and W.T. Burke, The Public Order of the Oceans (Yale University Press 1962). 6 D.R. Rothwell and T. Stephens, The International Law of the Sea (2nd edn, Hart 2016); Y. Tanaka, The International Law of the Sea (2nd edn, Cambridge University Press 2015); R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999). Similarly, the more recent D.R. Rothwell et al (eds), The Oxford Handbook on the Law of the Sea (Oxford University Press 2015) does not have a chapter devoted to islands as a discrete phenomenon.

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certain issues concerning the construction of straight baselines and bay closing lines; and specific rules have been devised to ensure that their impact accords with the overall purport of the general rule.7 The political status of groups of islands has given rise to the need for a specific regime for archipelagic states – but not for archipelagos more generally.8 UNCLOS recognizes that straits used for international navigation may be subject to a different legal regime when they lie between an island and a mainland, and not between two ‘mainland’ coasts.9 Famously – perhaps infamously – islands are widely understood to be a potential ‘relevant circumstance’ which may affect the manner in which maritime boundaries are to be drawn between ‘opposite’ or ‘adjacent’ coastal states.10 All this reflects the significance of islands to the law of the sea; but does this mean that there is a ‘regime’ of islands? If by ‘regime’ one means a coherent – or at least clear – set of principles which inform the manner in which the law of the sea engages with the phenomenon of islands, we would hold that it does not. Part VIII of UNCLOS does not even begin to draw together the various impacts of islands on the law of the sea, which remain scattered throughout the Convention text (thereby amply justifying this being the dominant approach to islands in the general academic literature on the law of the sea). Moreover, in all the examples mentioned above, islands are seen as requiring some form of special accommodation in the context of some other rule or regime. Part VIII of UNCLOS, ‘The Regime of Islands’, consists of a single article: Article 121 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.

See Articles 7(1) and 10(3) of UNCLOS. See Part IV of UNCLOS; South China Sea Arbitration (n 1) 275–76; S. Kopela, Offshore Archipelagos in the Law of the Sea (Martinus Nijhoff 2013); J.A. Roach, ‘Offshore Archipelagos Enclosed by Straight Baselines: An Excessive Claim?’ (2018) 49 Ocean Development & International Law 176; C. Whomersley, ‘Offshore Archipelagos Enclosed by Straight Baselines: A Reply to J. Ashley Roach’ (2018) 49 Ocean Development & International Law 203. 9 See Article 38(1) of UNCLOS (the ‘Messina Strait exception’). 10 See Section 4 of this chapter. 7 8

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Article 121 does three things. First, Article 121(1) offers the elements of a definition of an ‘island’. Article 121(2) implies that islands are to be equated with ‘other land territory’ for the purposes of generating certain forms of maritime zones. Article 121(3) expressly provides, in elliptical language which has continued to plague the subject, that some insular features described as ‘rocks’ are not to be treated in the same ways as others, by denying them the capacity to generate exclusive economic zones (EEZs) and continental shelves. Thus, all that Article 121 actually does is confirm that while ‘islands’ determined on the basis of physical geography (areas of land above water at high tide) are entitled to claim all those zones of maritime jurisdiction provided for in UNCLOS,11 some are to have lesser entitlements, based on considerations of human and economic geography.12 There is not much of a ‘regime’ about this and it is easy to see why it has caused so many problems: Article 121 is little more than a statement outlining some potential restrictions on some entitlements. Further, Article 121(2) says that the maritime zones of islands are to be determined ‘in accordance with the provisions of this Convention applicable to other land territory’. This give rise to several points. First, it does not expressly provide that islands are entitled to maritime zones – although this is generally presumed because it states that such zones are to be determined in accordance with the provisions applicable to other land territory. Second, if ‘islands’ are land territory like any other, why should it be necessary to provide expressly for the applicability of the UNCLOS provisions concerning the determination to maritime zones at all – surely they ought to apply as a matter of course? The very fact that it is said suggests some hesitancy here. Third, and relatedly, just because those provisions are ‘applicable’ does not mean that they are necessarily to be ‘applied’ in the same way – that is, as if islands were the same as other land territory. Taken as a whole, Article 121 gives the impression that islands are somehow of lesser standing than ‘other land territory’: and this has been reflected in the approach of courts and tribunals towards islands in the context of maritime delimitation – where they have definitely not been treated in the same way at all. Perhaps the matter is being approached from the wrong angle. There have always been difficulties in determining whether islands lying offshore are to be treated as if they were a part of the coastline – as exemplified by Lord 11 UNCLOS does not expressly address fishing zones, which are, however, recognized under customary international law. The text does not, therefore, make it clear whether the features falling within the scope of Article 121(3) can still claim fishing zones on the basis of customary international law, although it seems safe to assume that they cannot. 12 See J.I. Charney, ‘Rocks That Cannot Sustain Human Habitation’ (1999) 93 American Journal of International Law 863.

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Stowell’s ‘portico’ doctrine in The Anna.13 More recently, this issue arose in the Yemen/Eritrea arbitration concerning the Dahlak islands.14 The real issue in such cases is not what constitutes an island (and its generative potential), but what constitutes the mainland. Indeed, the Anglo-Norwegian Fisheries case15 and the provisions of UNCLOS concerning straight baselines demonstrate that some islands which would otherwise fall within the definitional scope of Article 121(3) can be used to generate entitlements to EEZs and continental shelves to which they would not otherwise be entitled.16 This indicates that the capacity of an island to generate an entitlement can be affected by its relationship to its sovereign mainland. Where it can be ‘drawn into’ the mainland coast in some way, an island’s generative capacity is greatly enhanced, acquiring more potency than islands of considerably greater size and significance, but which cannot form a part of the ‘mainland’. Why else is it that islands such as St Pierre and Miquelon have diminished standing as French islands ‘off the coast’ of Canada,17 and the Channel Islands as British islands ‘off the coast of France’,18 despite being many times more significant than the Dahlak shoals or the Norwegian belt of coastal islands which become part of a mainland coast? Almost every case reveals a similar ‘anomaly’ as regards the assumed rule that ‘islands’ are to be treated like other land territory. The greatest anomaly concerns sovereignty itself. When comparatively small islands are recognized as sovereign states, they are not seen as being in an inferior position to their proximate mainland neighbours: Singapore is not considered to be a small island ‘off the coast of’ Malaysia, or Bahrain off Saudi Arabia. Even islands barely compatible with Article 121(3) – such as Nauru – assume full generative capacities if they achieve the status of a sovereign state. There is, then, a clear interplay between the treatment accorded to those islands which meet the definitional requirements of Article 121(1), their sovereign status, their geographical relationship with the sovereign state of which

The Anna (1805) 165 ER 809. Eritrea v Yemen (1998) 114 ILR 1. 15 Anglo-Norwegian Fisheries (United Kingdom v Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116. 16 However, there is an increasing tendency of courts and tribunals to undermine this by refusing to use straight baselines for the purposes of delimitation. See, for example, Bay of Bengal Maritime Boundary Arbitration (Bangladesh/India), Award of 7 July 2014, 221–25, https://​pcacases​.com/​web/​sendAttach/​383, last accessed 10 December 2019. 17 Case concerning the delimitation of maritime areas between Canada and France (St Pierre and Miquelon) (Canada v France), Award of 10 June 1992, RIAA XXI, 265. 18 Case concerning the delimitation of the continental shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (UK v France), Decision of 30 June 1977, RIAA XVIII, 3. 13 14

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they form a part and their geographical relationship with others. Moreover, Article 121(3) does not deprive the very smallest of islands of the capacity to generate EEZs and continental shelves in all cases.19 In short, Part VIII of UNCLOS – the so-called ‘regime’ of islands – fails even to begin to capture the reality of how islands are taken into account when applying the provisions of UNCLOS. It does not capture the reality that islands are generally not treated in the same way as other land territory, and it diverts attention from how they are engaged with in practice.20 The first issue always concerns sovereignty, and this has several dimensions: is the feature an ‘island’ at all (as opposed to a low-tide elevation) and thus capable of being the subject of sovereignty?21 If so, is the island a sovereign state in its own right? If not, which state exercises sovereignty over it: is this clear, contested or terra nullius? Understandably, Article 121(1) addresses only the first of these questions – what is an island? The second issue concerns which maritime zones the island is capable of generating, and this is addressed by Articles 121(2) and (3). Whenever an island is entitled to zones of maritime jurisdiction, this results in a need to determine its effects on the outer limits of that jurisdiction – either as regards another state with an overlapping entitlement, or as regards the international community as a whole in relation to the high seas or the deep sea bed. It is necessary to know who is entitled to do what, and where. This, inexorably, leads to the question of delimitation, which is addressed not by Article 121, but by other provisions of UNCLOS: Article 15 as regards the territorial sea, Article 74 as regards the EEZ and Article 83 as regards the continental shelf; and under the jurisprudence generated by courts and tribunals relating to each of these articles, it is well attested that islands are considered to be potential ‘relevant circumstances’ which might necessitate some modification of a primary rule, as in most other areas of the law of the sea. Once again, rather than being treated as ‘other’ areas of land, those areas of land which are also islands are, in effect, ‘othered’.22 If, at base, the core issue addressed by the ‘regime of islands’ set out in UNCLOS Part VIII concerns the maritime jurisdictions which islands can generate (and it is difficult see what else it addresses); and if, when it comes to questions of delimitation, islands are treated in a heavily contextualized

19 See discussion above concerning the effect of straight baselines and the Anglo– French Arbitration, ibid. 20 See Section 4 of this chapter. 21 The significance of this distinction was paramount in Maritime Delimitations and Territorial Questions Between Qatar and Bahrain Case, Judgment of 16 March, ICJ Reports 2001, 40 (paras 201–8), ruling that low-tide elevations beyond the territorial sea are ‘not capable of appropriation’. 22 See Section 4.

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manner, then focusing attention on the formal definitional elements set out in Article 121 runs the risk of diverting attention from the at least equally important sets of factors concerning islands which in reality determine their generative effect. Unless or until these factors are brought into the evaluative matrix, our understanding of the ‘regime’ of islands will remain poor or distorted. However, it is these formal definitional issues that have increasingly become the focus of attention in recent judicial practice.23 The following sections examine judicial engagement with these three issues – sovereignty, entitlement and delimitation. While we may now have a richer understanding of the text, they have shed little light on the equally important question of context.

2.

DETERMINING SOVEREIGNTY OF ISLANDS

Strictly speaking, Article 121 has no bearing on the determination of sovereignty over a contested island. It does, however, have a bearing on whether a maritime feature actually is an island and thus capable of being subject to claims of sovereignty. The sovereign status of, or sovereignty over, an island is usually clear and uncontested. But many cases concerning islands also involve competing claims to sovereignty, and that will almost always have to be considered first. This reflects the fact that to whom an island belongs matters for the purpose of delimitation: determining sovereignty requires establishing not only whether there are any overlapping entitlements, but also the extent of the overlap. This has the practical effect of elevating the prominence of sovereignty when considering islands, even though this is (or ought to be)24 irrelevant to their generative capacity. It is generally accepted that ‘there is no difference between islands and continental land territory so far as the acquisition or loss of sovereignty is concerned’.25 This has frequently been affirmed by international courts and tribunals.26 State claims over islands are considered on the basis of the generally applicable and well-established principles concerning title to territory.27 Indeed, one of the landmark decisions establishing the modern concept of

Perhaps most clearly demonstrated in the South China Sea Arbitration. As discussed above, especially in relation to Nauru. 25 D.W. Bowett, The Legal Regime of Islands in International Law (n 2) 45. 26 For example, the International Court of Justice (ICJ) in Qatar/Bahrain (n 21) 206, stated: ‘it has never been disputed that islands constitute terra firma, and are subject to the rules and principles of territorial acquisition.’ 27 However, low-tide elevations may not be appropriated by any state, except when the low-tide elevation is within a state’s territorial sea; see ibid 202–8. 23 24

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territorial acquisition concerned an island: the Island of Palmas Arbitration.28 Determining title to territory involves examining the root of title – cession, conquest,29 occupation30 or prescription31 – with title being accorded to the state which can demonstrate the ‘better’ case.32 In the absence of any other considerations (eg, where a binding treaty or previous judicial or arbitral award between the states determines otherwise),33 sovereignty over islands accords with the orthodoxy that title lies with the state that can show that it was exercising effectivités sufficient to exclude the claims of others on the ‘critical date’.34 To prove the better title, a state must show that, as of the critical date, it had undertaken actions and activities (effectivités) relating to the contested territory which amounted to conduct à titre de souverain. ‘This demonstration consists in the actual display of State activities, such as belongs only to the territorial sovereign.’35 This approach is reflected in numerous cases decided by the ICJ.36 28 Island of Palmas Case (Netherlands v US), Award of 4 April 1928, RIAA II (1928), 829. 29 However, this no longer constitutes a basis of title to territory. See, for example, United Nations General Assembly Resolution 2625 (XXV): Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970 (UN Doc A/ RES/2625(XXV)). 30 The acquisition of territory which belongs to no one (terra nullius). 31 The acquisition of territory not terra nullius, on the basis that the succeeding sovereign can demonstrate effective control of the territory over time to the exclusion of the former title holder and which is not inconsistent with international law. 32 See, for example, Legal Status of Eastern Greenland (Norway v Denmark), Judgment, PCIJ Series A/B, No 53 (1933), 46: ‘in many cases the tribunal has been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the other State could not make out a superior claim. This is particularly true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.’ In other words, the ‘better’ claim need not be a particularly strong one. 33 As was the situation with respect to the Hawar Islands and to the island of Janan in Qatar/Bahrain (n 21) 99–109, in which the ICJ relied on a 1939 decision which applied to the then former British Protected States. 34 Either through the effective occupation of territory deemed to belong previously to no one (terra nullius) or through prescription whereby territory previously under the sovereign of a state can belong to another state if the latter can now demonstrate the better title. For the conditions of prescription, see, for example, Kasikili/Sedudu Island Case (Botswana v Namibia), ICJ Reports 1999, 1045 (paras 94–8). 35 Island of Palmas (n 28) 839. 36 See, for example, Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicaragua/Honduras), ICJ Reports 2007, 659. Honduras’ activities over four small uninhabited cays up until the critical date (set by the ICJ as being 2001) – including (but were not limited to) acts regulating fisheries, criminal law and permitting the US a right of over-flight – coupled with the lack

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In the Island of Palmas arbitration, the Permanent Court of Arbitration (PCA) rejected the idea that title could be established simply as a result of discovery37 and – importantly as regards islands – also rejected the suggestion that title could be acquired by contiguity.38 Nonetheless, the fact that an island is close to the mainland of a claimant state may constitute a rebuttable presumption of title in certain circumstances, such as cases concerning multiple island groups where state effectivités are sporadic. In the Eritrea v Yemen arbitration, the PCA thought that in such a scenario, there was a ‘presumption that any islands off one of the coasts may be thought to belong by appurtenance to that coast unless the State on the opposite coast has been able to demonstrate a clearly better title’.39 But what amounts to a display of effectivités sufficient to demonstrate sovereignty over islands? The approach generally applicable to land territory also applies to islands; however, when deciding whether a state has demonstrated sovereignty over an island, international courts – drawing on the comments in the Legal Status of Eastern Greenland case – have taken into account factors such as whether it is small, uninhabited or geographically remote.40 As the

of protest from Nicaragua, were sufficient to allow the ICJ unanimously to hold that sovereignty belonged to Honduras (227); Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), ICJ Reports 2002, 625, where sovereignty was determined according to historical title coupled with effectivités over a sustained period. See also Minquiers and Ecrehos Case (France v UK), ICJ Reports 1953, 47 (para 65), where the ICJ ‘attache[d], in particular, probative value to the acts which relate to the exercise of jurisdiction and local administration and to legislation’. Consequently, the court concluded that the effectivités over the islands in question undertaken by the UK as part of their control over the Channel Islands were sufficient to found title for the state. 37 Island of Palmas (n 28) 845–46. 38 Ibid 854–55; Nicaragua/Honduras (n 36) 161. The courts have, however, been willing to grant states sovereignty over low-tide elevations which are situated within their territorial seas, since a state has sovereignty over the territorial sea itself: Qatar/ Bahrain (n 21) 204; Nicaragua/Colombia (n 3) 26. 39 Eritrea/Yemen (n 14) 458. 40 See Huber in the Island of Palmas arbitration (n 28) 840: ‘Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regions are involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, for instance, the high seas.’ See also Clipperton Island Case (France v Mexico) (1932) 26 American Journal of International Law 390. Likewise, in Indonesia/Malaysia (n 31) 134, the ICJ held that in the instance of ‘very small islands which are uninhabited or not permanently inhabited — like Ligitan and Sipadan, which have been of little economic importance (at least until recently) — effectivités will indeed generally be scarce’; Case Concerning Sovereignty over Pedra

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ICJ has put it, ‘sovereignty over minor maritime features…may therefore be established on the basis of a relatively modest display of State powers in terms of quality and quantity’.41 Consequently, some state acts which would not normally amount to a display of sovereignty, such as the construction of navigational aids, ‘can be legally relevant in the case of very small islands’.42 This means that, in reality, there is a variable rather than an absolute standard. In any given dispute, sovereignty will be awarded to the claimant state which can show that it has the ‘better claim’, provided that it can reach some de minimis threshold in order to demonstrate that it is also ‘good enough’. The focus is not on the island: it is on the actions of the claimant states; and what might be sufficient to acquire sovereignty in one case may be insufficient in another. Once again, recognizing that this is a matter of context, rather than a purely textual approach, is a better reflection of the exercise. Above all else, however, an award of sovereignty acts as the ‘great equalizer’. No matter how meagre my effectivités over an island might be, if they are stronger than yours in relation to that island, that island becomes mine. You, on the other hand, might have presented an overwhelming display of sovereign authority over another island, on the basis of which it is clearly yours. The capacity of each of our islands to generate title to maritime zones is, however, exactly the same. So, your claim to exercise maritime jurisdiction from the island which is home to your capital city is, it seems, exactly the same as my claim to a remote and isolated feature on which I happen to have been the only state to have placed a navigation beacon. Whether it is right that such meagre acts should be able to generate such major entitlements – not only against other states, but also against the international community as a whole – is a question worth reflecting on. But for now, the position seems clear enough. When called on to determine who has ‘better title’ to an island, courts and tribunals seemingly do so without reference to the

Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), ICJ Reports 2008, 12 (paras 65–7). 41 Nicaragua/Honduras (n 36) 174. 42 In Qatar/Bahrain (n 21) 197, the ICJ stated: ‘certain types of activities invoked by Bahrain such as the drilling of artesian wells would, taken by themselves, be considered controversial as acts performed à titre de souverain. The construction of navigational aids, on the other hand, can be legally relevant in the case of very small islands. In the present case, taking into account the size of Qit’at Jaradah, the activities carried out by Bahrain on that island must be considered sufficient to support Bahrain's claim that it has sovereignty over it.’ This has been subsequently applied in Indonesia/Malaysia (n 36) 146–47 and Nicaragua/Colombia (n 3) 82–3.

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broader impact of their decision making.43 The focus is on the context: who has done what, and when.

3.

ENTITLEMENT: THE DEFINITIONAL ELEMENTS OF ARTICLE 121

Perhaps surprisingly, it is only rather recently that Article 121 has been the subject of focused and detailed consideration by international courts and tribunals. Less surprisingly, there is still no clear consensus concerning the interpretation of Article 121.44 The reason for this relates largely – but is not limited – to the problems posed by Article 121(3), which limits the capacity of ‘rocks’ to generate continental shelves and EEZs. While Articles 121(1) and (2) have long been recognized as reflecting customary international law, it was only in 2012 that the ICJ first recognized that ‘the legal régime of islands set out in…Article 121 forms an indivisible régime, all of which…has the status of customary international law’.45 This has heightened the need to determine the meaning of, and the relationship between, the various elements set out in Article 121. While some earlier cases offered some insights, these now must be read in the light of the South China Sea Arbitration, which offers a first attempt at a comprehensive interpretation by an international tribunal. The following sections outline the emergent approaches to the core definitional elements of Article 121. 3.1

Basic Terminology

According to Article 121(1), in order for a feature to be an island, it must be above water at high tide; if it is not, then it is a ‘low-tide elevation’. International courts and tribunals have routinely endorsed this terminology and

43 This is in contrast to the approach taken by the ICJ in Nicaragua/Colombia (n 3) 36, to the question of whether a feature was above water at high tide, and thus an island for the purposes of Article 121. It was said that ‘even the smallest island generates a 12-nautical-mile territorial sea… The Court therefore has to make sure that it has before it evidence sufficient to satisfy it that a maritime feature meets the test of being above water at high tide.’ 44 Indeed, the provision has been the subject of many different interpretations by scholars. Perhaps prompted by this lack of clarity, courts have often gone out of their way to avoid interpreting and applying the Article. This has only added to the confusion and uncertainty. For instance, the ICJ held that it did not have to consider the status of Serpents’ Island in Maritime Delimitation in the Black Sea (Romania v Ukraine), Judgment, ICJ Reports 2009, 61 (para 187). 45 Nicaragua/Colombia (n 3) 139.

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applied this approach.46 This simple division is, however, rendered complex by the reference in Article 121(3) to ‘rocks’ which cannot sustain human habitation or economic life of their own. Is a ‘rock’ something different from an island? If it is, then several questions follow: (1) what is a ‘rock’? (2) Can there be such a thing as a ‘rock’ which can sustain human habitation and an economic life of its own and generate an entitlement to the broader zones of maritime jurisdiction? (3) Can an ‘island’ (ie, something which is not a ‘rock’) which cannot sustain human habitation and an economic life of its own nevertheless generate entitlements to the broader zones of maritime jurisdiction on the basis of Articles 121(1) and (2)? Put simply, are rocks and islands separate legal concepts, with only islands being defined by UNCLOS (in Article 121(1))? Or are they different words for the same thing? This is not a particularly difficult question, yet it has taken an unconscionably long time for a court or tribunal to provide an answer. In 2016, the South China Sea Arbitration finally provided one, but unfortunately took the opportunity to introduce entirely unnecessary and potentially confusing additional concepts. The tribunal considered that Article 121 differentiated between ‘rocks’ and ‘fully-entitled islands’, with both being ‘sub-sets of the broader category of “high-tide features”’. 47 It held that ‘fully-entitled islands’ are high-tide features which are ‘capable in [their] natural condition of sustaining human habitation or an economic life of its own’;48 whereas ‘rocks’ are high-tide features which cannot do so. In other words, a rock is a ‘not fully-entitled island’. Why then did the drafters use different terms? It also implies that a large, remote, inhospitable and uninhabitable island can be described, for legal purposes, as a ‘rock’: size does not matter at all.49 It remains to be seen whether this contorted terminology has a life outside of the award. But if it does, then there is no need to debate whether there is a difference between a ‘rock’ and an ‘island’ for the purposes of Article 121 (and this might have been the reason why this approach was taken). It also means the first issue that needs to be considered is whether the feature in 46 However, courts and tribunals have, so far, not been as helpful in determining how this established (including the appropriate method of determination). See, for example, C. Schofield, ‘Defining the boundary between land and sea: territorial sea baselines in South China Sea’ in S. Jayakumar et al (eds), The South China Sea Disputes and the Law of the Sea (Edward Elgar Publishing, 2014) 38–9. 47 South China Sea Arbitration (n 1) 280. 48 Ibid 21. 49 This might be contrasted with its approach in Jan Mayen, where the ICJ implied that it was not necessary to examine Article 121(3) simply because the Jan Mayen island was relatively large (and thus not capable of being considered a ‘rock’ for the purposes of Article 121(3). See Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v Norway), ICJ Reports 1993, 38 (paras 60–1, 65 and 80).

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question is ‘above’ water at high tide and thus a ‘high-tide feature’. Only if it is a high-tide feature does it become necessary to consider the criteria set out in Article 121(3), which will determine its generative effect and thus whether it is to be referred to as a ‘fully-entitled island’ or a ‘rock’. The award examines these criteria in some detail and, as with the new terminology, it remains to be seen whether its interpretation of these criteria is taken up by others. 3.2

‘Above Water at High Tide’

The key to distinguishing between a ‘high-tide elevation’ (ie, an island or a rock) and a ‘low-tide elevation’ is whether it is above water at high tide. But what is meant by ‘high tide’ for these purposes? For example – and as O’Connell points out50 – as long ago as Post Office v Estuary Radio Ltd (1968) there was a problem due to the UK Territorial Waters Order in Council defining a ‘low-tide elevation’ as ‘a naturally formed area of drying land surrounded by water which is below water at mean high-water spring tides’. Lord Diplock noted that this raised: interesting and difficult questions…as to whether a low-tide elevation must be above water at all low tides, at mean low-water spring tides, at Admiralty Datum, at the lowest tides experienced from time to time (and if so, how often) in the course of a year, or at lowest astronomical tides. Someday some court, municipal or international, may have to decide this.51

In Nicaragua v Colombia, the ICJ had to wrestle with just this issue. Nicaragua argued that the area known as Quitasueño was ‘a shoal, all of the features of which are permanently submerged at high tide’; whereas Colombia argued that several features comprising the shoal were above water at high tide,and thus islands.52 The ICJ took the view that it was for Colombia to prove that the features were above water at high tide, and that it had failed to do so.53 Colombia had relied on a survey based on the ‘Grenoble Tide Model’, according to which 34 features passed this test. Nicaragua countered that this model, while highly accurate in deep waters, was known to be less accurate in shallow waters such as these; and argued that the UK Hydrographic Office’s ‘Admiralty Total Tide Model’ should be used, according to which only one feature – QS 32 – was above water at high tide – and that by a mere 0.7 metres.54

O’Connell, The International Law of the Sea (Vol I) (n 5) 181. Post Office v Estuary Radio, [1968] 2 QB 740, 761. 52 Nicaragua/Colombia (n 3) 28–9. 53 Ibid 36. 54 Ibid 31. 50 51

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In essence, the ICJ agreed with Nicaragua that since the Grenoble Tide Model was inaccurate in shallow waters, and since even according to this model some of the features claimed to be islands were above water at high tide by only some 20 or 30 centimetres, it would be inappropriate to rely on it to determine the legal status of the features.55 In doing so, the ICJ, in effect, rejected Colombia’s contention that ‘international law does not prescribe the use of any particular method of tidal measurement’.56 At the same time, it also seems to have endorsed the use of the ‘Highest Astronomical Tide’ as the relevant benchmark – this being what Colombia had used to determine the status of Quitasueño – rather than the ‘mean high tide’.57 However, the tribunal in the South China Sea Arbitration held that there was: nothing in the Convention, and no rule of customary international law, that would mandate that the status of low-tide elevations and high-tide features/islands be determined against any particular high-water datum. Accordingly, the Tribunal considers that States are free under the Convention to claim a high-tide feature or island on the basis of any high-water datum that reasonably corresponds to the ordinary meaning of the term ‘high tide’ in Articles 13 and 121.58

Being free to make a claim is one thing, but determining the status of a feature is quite another. Indeed, each party is likely to advance perfectly compelling claims, but based on different datums. And surely it should matter when the survey was taken? The ICJ had been dismissive of historical surveys: The issue which the Court has to decide is whether or not there exist at Quitasueño any naturally formed areas of land which are above water at high tide. It does not consider that surveys conducted many years (in some cases many decades) before the present proceedings are relevant in resolving that issue.59

The tribunal took a very different view, and placed considerable reliance on surveys undertaken by the United Kingdom in the 1860s and Japan in the 1930s, together with sailing directions issued by several states. Indeed, it ‘independently sought materials derived from British and Japanese surveys’, ‘provided them to the Parties for comment’ and noted that ‘Many of the Tribunal’s conclusions…are drawn from this material’.60

57 58 59 60 55 56

Ibid 36. Ibid 30. Ibid 38. South China Sea Arbitration (n 1) 331. Nicaragua/Colombia (n 3) 35. South China Sea Arbitration (n 1) 331.

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Rather than the claimant state having to demonstrate to the ICJ’s satisfaction that a feature was an island (ie, a ‘high-tide feature’), the tribunal explored each feature individually and came to its conclusions on the basis of what it considered to be the most compelling of the views taken by others.61 Whether those views were correct does not seem to have been particularly relevant: it was their relative persuasiveness which mattered, not their absolute accuracy. The tribunal’s approach is very different from that of the ICJ. It side-lines the definitional question and does not contribute to understanding what ‘above water at high tide’ actually means. Since this reformulation puts the distinction between high and low-tide elevations centre stage, its failure to engage with the details of that distinction is particularly surprising. And while the outcomes in both cases might be perfectly reasonable and justifiable, in combination they add to, rather than diminish, the uncertainties at the definitional heart of the ‘regime of islands’. 3.3

‘Area of Land’

Although the first part of the definition of an ‘island’ in Article 121(1) is that it is an ‘area of land’, courts have not chosen to probe this issue. In Nicaragua v Colombia, Nicaragua argued that Quitasueño (QS 32) was an individual piece of coral debris – that is, a part of the skeleton of a dead animal, and not a naturally formed area of land. As such, it did not fall within the definition of islands entitled to maritime zones.62 This argument was dismissed out of hand by the ICJ as being ‘without merit’ because ‘International law defines an island by reference to whether it is “naturally formed” and whether it is above water at high tide, not by reference to its geological composition’.63 That is not entirely correct. Article 121(1) (and customary international law) says that an island is a naturally formed area of land which is above water at high tide – and the removal of the words ‘area of land’ from the definition is off, to say the least. Thus, according to the ICJ, the geological composition of the area of land is not determinative of insular status.64 Nevertheless, an island must be composed of solid material – this includes sand65 or coral66 – and ‘attached to the substrate, and not of loose debris’.67

Ibid 333–81. Nicaragua/Colombia (n 3) 32. 63 Ibid 37. 64 Ibid. The same conclusion was reached in the South China Sea Arbitration (n 1) 481, concerning rocks. 65 Qatar/Bahrain (n 21) 195. 66 Nicaragua/Colombia (n 3) 37. 67 Ibid. 61 62

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The ICJ is equally clear that even the smallest island generates a 12 nautical mile (nm) territorial sea,68 and in Nicaragua v Colombia it accepted that ‘a comparatively small island may give an entitlement to a considerable maritime area’.69 The South China Sea Arbitration also held that ‘size cannot be dispositive of a feature’s status as a fully entitled island or rock and is not, on its own, a relevant factor’.70 It seems that, as far as entitlement to the territorial sea is concerned, size does not matter. 3.4

‘Naturally Formed’

Another key definitional element of Article 121(1) is that an island must be ‘naturally formed’. In the South China Sea Arbitration, the tribunal held that ‘the inclusion of the term “naturally formed” in the definition of both a low-tide elevation and an island indicates that the status of a feature is to be evaluated on the basis of its natural condition’.71 As a result, a low-tide elevation cannot be transformed into an island; nor can a non-fully entitled island be transformed into a fully entitled island, by non-natural means. According to the tribunal, ‘The status of a feature [must] be ascertained on the basis of its earlier, natural condition, prior to the onset of significant modification,’72 including for the purposes of Article 121(3).73 As with all elements of the definition of an ‘island’, this approach is more complex than it seems. For example, in Qatar v Bahrain, the ICJ took the view that the feature known as Qit’at Jaradah was to be considered an island even though it had undergone man-made alterations to secure its ‘top’ as being

See Qatar/Bahrain (n 21) 205; see also Nicaragua/Honduras (n 36) 302. Nicaragua/Colombia (n 3) 176. Indeed, Qit’at Jaradah, a feature which at high tide has a length and breadth of approximately 12 x 4 metres, and an altitude of 400 millimetres, was nevertheless held in Qatar/Bahrain (n 21) to be an island (195). Likewise, in Nicaragua/Colombia, a small feature called ‘QS 32’ was considered to be an island despite having a top of merely 10 to 20 centimetres (33) and (202). For the potential significance of the words ‘comparatively small island’, see P. von Muhlendahl, ‘Tiny Land Features in Recent Maritime Delimitation Case Law’ (2016) 31 The International Journal of Marine and Coastal Law 1, 12, who states that this suggests that ‘all tiny land features are islands, but only some of these islands…deemed bigger than “comparatively small”…generate an EEZ and continental shelf’. 70 South China Sea Arbitration (n 1) 538. This seemed to inspire the Norwegian Supreme Court in a 1996 case in which it was held that the size of the island ensured that it was not necessary to examine the criteria of a rock. Supreme Court of Norway, Judgment of 7 May 1996, Rt 1996 s 624. 71 Ibid 305. 72 Ibid 306, emphasis added. 73 Ibid 382. 68 69

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above water at high tide, although this was controversial.74 Indeed, the very idea of there being a clear distinction between the natural and the artificial is open to question.75 If a barrier is placed in the sea so that silt deposits or sand spits develop naturally elsewhere, is the resulting feature ‘naturally’ formed? The tribunal’s comment seems to assume that natural formation is a ‘one-off’ event, whereas it is likely to be a process over time. Moreover, new islands may appear and grow, while existing islands may shrink and disappear. The ‘critical date’ for natural formation is therefore another source of potential difficulty. 3.5

‘Human Habitation or Economic Life of their Own’

Article 121(3) provides that ‘rocks’ which cannot sustain human habitation or economic life of their own are entitled to generate only a territorial sea and contiguous zone, and cannot generate an EEZ or continental shelf.76 The ICJ confirmed this in Nicaragua v Colombia, when it said that ‘even an island which falls within the exception stated in Article 121, paragraph 3, of [UNCLOS] is entitled to a territorial sea’.77 Nevertheless, the requirement

74 Qatar/Bahrain (n 21) 195. For criticism of this decision, see the Joint Dissent of Judges Bedjaoui, Ranjeva and Koroma (194–99). 75 Where the line is drawn between artificial and natural formation, however, may be arbitrary. See discussion of the issue in C.R. Symmons (n 2) 29–37. See also L. Dorst et al, ‘Recent changes in the Dutch baseline: the inseparable connection of human activities and natural processes’ (ABLOS 2012 Paper, available at www​.defensie​.nl/​ binaries/​defensie/​documenten/​brochures/​2012/​09/​24/​changes​-dutch​-baseline/​recent​ -changes​-dorst​_etal​_ablos2012​_paper​_final​.pdf, last accessed 10 December 2019). The authors raise significant uncertainties, such as the distinction between artificial formations and land reclamation, and the issue of islands that can be said to originate partly due to both natural and human causes; M. Gagain, ‘Climate Change and Artificial Islands: Saving the Maldives’ Statehood and Maritime Claims Through the “Constitution of the Oceans”’ (2012) 23 Colorado Journal of International Environmental Law & Policy 77; A.H.A. Soons, ‘The Effects of a Rising Sea Level on Maritime Limits and Boundaries’ (1990) 37 Netherlands International Law Review 207, 210. 76 Nicaragua/Colombia (n 3) confirms this, even though it did not settle the status of Quitasueño. The ICJ held that ‘it has not been suggested by either Party that QS 32 is anything other than a rock which is incapable of sustaining human habitation or economic life of its own under Article 121, paragraph 3, of [UNCLOS], so this feature generates no entitlement to a continental shelf or exclusive economic zone’. (183). The tribunal in the South China Sea Arbitration (n 1) held that ‘all of the high-tide features in the Spratly Islands are…legally rocks for purposes of Article 121(3) and do not generate entitlements to an exclusive economic zone or continental shelf’ (646). 77 Nicaragua/Colombia (n 3) 176–77. In this respect, six islets were held to be entitled to generate ‘a territorial sea…the same as that of any other land territory…irre-

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that a ‘fully-entitled’ island be capable of sustaining ‘human habitation or an economic life of its own’ has been the most controversial aspect of the regime of islands as found in Article 121. This phrase has been the subject of much scholarly debate, but it fell to the tribunal in the South China Sea Arbitration to provide the first authoritative interpretation of these key terms. First, the tribunal took the view that the word ‘or’ between the two criteria is disjunctive rather than conjunctive, meaning that an island will be entitled to generate extended zones of maritime jurisdiction if it satisfies either.78 Nevertheless, the tribunal accepted that the ‘two concepts are…linked in practical terms, regardless of the grammatical construction of Article 121(3)’.79 Having taken a somewhat relaxed approach to this element, the tribunal then went on to adopt an extremely strict approach to the meaning of ‘human habitation’. It took the view that ‘human habitation’ requires the ‘non-transient presence of persons who have chosen to stay and reside on the feature in a settled manner’,80 ‘for whom the feature constitutes a home and on which they can remain’.81 This ruled out ‘groups…heavily dependent on outside supply’.82 Further, according to the tribunal, ‘at a minimum, sustained human hab-

spective of whether they fall within the exception stated in Article 121, paragraph 3’. See also Dubai–Sharjah Border Arbitration, (1981) 91 ILR 543, 674, where the tribunal held that ‘every island, no matter how small, has its belt of territorial sea’; Dispute concerning Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012, 4, in which the tribunal held that Bangladesh had a right to a 12-nm territorial sea around St Martin’s Island (169); and Maritime Delimitation in the Black Sea (n 44) 187–88, where the ICJ held that it was not necessary to consider the status of Serpents’ Island and need not consider whether it possessed an EEZ or continental shelf, as it was clear for delimitation purposes that the feature should have ‘no effect on the delimitation in this case, other than that stemming from the role of the 12-nautical-mile arc of its territorial sea’. 78 South China Sea Arbitration (n 1) 494–96. Whether this becomes the accepted interpretation remains to be seen. See, for example, the competing arguments of R. Kolb, ‘L’interprétation de l'article 121, paragraphe 3, de la convention de Montego Bay sur le droit de la mer: les “rochers qui ne se prêtent pas à l’habitation humaine ou à une vie économique propre…”’ (1994) 40 Annuaire français de droit international 876, 906; and B. Kwiatkowska and A.H.A. Soons, ‘Entitlement to Maritime Areas of Rocks which Cannot Sustain Human Habitation or Economic Life of Their Own’ (1990) 21 Netherlands Yearbook of International Law 139, 163–65. 79 Ibid 497. 80 Ibid 489. 81 Ibid 542. 82 Ibid 620. Thus, the tribunal did ‘not consider that the military or other governmental personnel presently stationed on the features in the Spratly Islands by one or another of the littoral States suffice to constitute “human habitation” for the purposes of Article 121(3)’ (emphasis added).

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itation would require that a feature be able to support, maintain, and provide food, drink, and shelter to some humans to enable them to reside there’.83 This might be contrasted with Jan Mayen, where the ICJ delimited the limits of the EEZ and continental shelf of Jan Mayen Island, which at the time was populated by 25 scientists and technicians, all entirely dependent on outside provision.84 It might also be inconsistent with a disjunctive approach to ‘economic life of their own’, since numerous small ‘high-tide features’ support transient and seasonal fishing populations, but would be unable to support ‘settled’ residence.85 However, the tribunal also took an extremely strict approach to the interpretation of that phrase too, excluding the significance of some economic usages. According to the tribunal:86 the ‘economic life’ in question will ordinarily be the life and livelihoods of the human population inhabiting and making its home on a maritime feature or group of features. Additionally, Article 121(3) makes clear that the economic life in question must pertain to the feature as ‘of its own’. Economic life, therefore, must be oriented around the feature itself and not focused solely on the waters or seabed of the surrounding territorial sea. Economic activity that is entirely dependent on external resources or devoted to using a feature as an object for extractive activities without the involvement of a local population would also fall inherently short.87

Ibid 490. Jan Mayen (n 49) 15; see South China Sea Arbitration (n 1) 550: ‘In this respect, the Tribunal notes that a purely official or military population, serviced from the outside, does not constitute evidence that a feature is capable of sustaining human habitation.’ See Charney, ‘Rocks That Cannot Sustain Human Habitation’ (n 12) for an interpretation of Article 121(3) based on the travaux preparatoires which are at odds with the tribunal’s interpretation. 85 For example, in Nicaragua/Colombia (n 3) 28 and 137, the ICJ decided to refrain from settling the status of four small cays with a sporadic fishing population (interestingly, from a third state – Jamaica), since neither party claimed any maritime zone beyond the territorial sea. However, this did not prevent the ICJ from referring to the features as ‘islands’. 86 For a criticism, see A.G. Oude Elferink, ‘The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: A Disquieting First’ (2016) JCLOS Blog, available at http://​site​.uit​.no/​jclos/​files/​2016/​09/​The​-South​-China​-Sea​-Arbitrations​ -Interpretation​-of​-Article​-1213​-of​-the​-LOSC​-A​-Disquieting​-First​.pdf, last accessed 10 December 2019: ‘The Tribunal’s position that “of their own” disqualifies “extractive economic activities, which accrue no benefit for the feature or its population” as meeting the requirement of “economic life of their own” is premised on the assumption that “economic life of their own” requires the presence of a local population. However, the fact that article 121(3) distinguishes between the separate requirements of human habitation and economic life, indicates that there is no basis in the text of article 121(3) to justify this assumption, but rather points in the contrary direction.’ 87 South China Sea Arbitration (n 1) 543. 83 84

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Again, it is difficult to reconcile this with Jan Mayen, which would arguably not meet this threshold: even if scientific research constituted economic life – which is contestable – it could hardly satisfy the test of ‘involvement of the local population’, for the simple reason that none existed.88 Does this mean that uninhabited islands cannot have extended maritime zones? Many do generate such claims. And what of uninhabited areas of mainland coasts, backed by hinterlands in which people cannot live without external assistance or artificial aids? The tribunal also introduced a rather contentious rationale for its strict approach in stating that 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’.89 Therefore, ‘the human habitation with which the drafters of Article 121(3) were concerned was the habitation by a portion of the population for whose benefit the exclusive economic zone was being introduced’.90 This is more of a socio-economic (if not socio-political) consideration and it is difficult to find a justification for it in the drafting history, which saw the criteria of ‘human habitation’ and ‘economic life’ as substitutes for a criterion based on size. Once again, this is best described as a novel approach. While the tribunal might be correct that permitting small uninhabited features to generate an EEZ or continental shelf would be an affront to UNCLOS,91 disbarring sizeable inhabited islands from doing so on the grounds that the resulting economic benefits do not accrue to the local population also seems something of an affront to the text. This is not the place to explore these issues fully. But enough has been said to show that the approach put forward by the PCA in the South China Sea Arbitration is seriously problematic from both a theoretical and practical perspective. It creates at least as many problems as it solves regarding the meaning of Article 121, which in many respects remains as mysterious and malleable as ever. What it does do, however, is signal an extremely restrictive interpretive approach which is at odds with both the pre-existing jurisprudence of the ICJ and state practice. Once again, it remains to be seen whether the approach of the tribunal will have traction with other international courts and tribunals.

88 The ‘population’ consisted of scientists and technicians who arrived there from the mainland. 89 South China Sea Arbitration (n 1) 516. 90 Ibid 520. 91 Once again, this remains an issue of interpretation, and this purported rule has not always been followed by international courts and tribunals: Jan Mayen (n 49); Qatar/ Bahrain (n 21).

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3.6 Conclusion The purpose of determining whether a feature is a low-tide elevation, a rock or an island is to know which (if any) zones of maritime jurisdiction that feature is entitled to generate.92 It has long been accepted in judicial and arbitral practice that Article 121(1) of UNCLOS reflects customary international law; and since the decision of the ICJ in Nicaragua v Colombia in 2012, it is widely accepted that this is true of Article 121 as a whole. This has not, however, resulted in greater certainty. Indeed, there is today perhaps more confusion regarding the generative capacity of islands than there has been for many years. It is clear that islands93 are capable of generating all types of maritime zones provided by UNCLOS in the same manner as land territory, provided that they do not fall foul of Article 121(3). If the tribunal in the South China Sea Arbitration is correct, the generative capacity of many more islands will be restricted than was previously thought, calling into question the accuracy of the ICJ’s observation that ‘islands, regardless of their size…enjoy the same status, and therefore generate the same maritime rights, as other land territory’.94 Small islands will find it very difficult to meet the tests set out by the arbitral tribunal and so will not generate the same rights as other land territory. Moreover, it is now clear not only that artificial installations are unable to generate maritime zones, but also that natural maritime features which have been artificially modified may now be considered not ‘naturally formed’ and thus unable to generate the entitlements which might otherwise have been expected. The tribunal in the South China Sea Arbitration was clearly of the view that artificial modification cannot change the status of the feature, and that entitlement is to be determined on the basis of a feature’s natural condition.95 Indeed, it even held that artificial islands are ‘excluded the possibility of…obtaining a territorial sea’.96 This results in a whole host of unresolved problems: can some parts of an artificially extended island generate maritime zones? If so, which parts? And how is delineation or delimitation to be undertaken? And what of man-made sea defences or land reclamation schemes,

92 In Bangladesh/India (n 16), however, the tribunal was unable to reach a decision on the status of South Talpatti and consequently decided to refuse to grant any effect to the feature for the creation of basepoints. 93 Low-tide elevations within a state’s territorial sea may act as basepoints for the calculation of maritime zones. Low-tide elevations located beyond this zone, however, do not. See Article 13 of UNCLOS. 94 Qatar/Bahrain (n 21) 185. This was quoted directly in the ICJ’s judgment in Nicaragua/Colombia (n 3) 176. 95 South China Sea Arbitration (n 1) 508. 96 Ibid 525.

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which hitherto have not affected the capacity of a feature to generate an entitlement?97 Surely it cannot be that an artificially extended mainland is to be treated differently from an artificially enlarged island? And does the artificial extension ‘count’ for the purposes of determining whether there is human habitation or economic life? The current status of jurisprudence concerning Article 121 can best be summed up as being confused, confusing and unhelpful.

4.

DELIMITATION: A CONTEXTUAL APPROACH

The opening section of this chapter identified three recurring issues relating to islands in the work of international courts and tribunals. Sections 2 and 3 considered how courts and tribunals have approached questions concerning sovereignty over islands and the entitlement of islands to generate maritime zones. Whereas – and entirely understandably – sovereignty has been considered in light of the relevant practice of the parties, questions of entitlement have been increasingly determined on the basis of increasingly strict interpretations of the definitional elements of Article 121. The approach to sovereignty might be said to be primarily contextual; whereas the approach to entitlement has become predominantly textual. We now turn to the third issue: delimitation. It is routinely said that delimitation should reflect the basis of title.98 Such comments are usually made in the context of the delimitation of the continental shelf, presumably because this is where the question of the basis of entitlement is most often at issue. Under Article 1 of the 1958 Geneva Convention, entitlement was on the basis of depth and exploitability;99 under Article 76 of UNCLOS, it is now determined on the basis of natural prolongation and distance, the relationship between which remains controversial.100 This argu97 Malaysia/Singapore (n 40); Qatar/Bahrain (n 21). The question whether such artificial extension or defence can render a previously natural feature an artificial island under Articles 60 and 80 remains unanswered. See, for example, Judge Oda’s Separate Opinion in Qatar/Bahrain questioning whether low-tide elevations remain low-tide elevations after man-made alterations (9). See further C. Schofield, ‘Islands or Rocks – Is that the Real Question? The Treatment of Islands in Delimitation of Maritime Boundaries’ in M.H. Nordquist et al (eds), The Law of the Sea: US Accession and Globalization (Martinus Nijhoff 2012) 327. 98 See, for example, Continental Shelf (Libya/Malta), ICJ Reports 1985, 13 (para 61). 99 See Article 1 of the Geneva Convention on the Continental Shelf (499 UNTS 311): ‘The seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters, or beyond that limit, to where the depth of the superjacent waters admits of the exploitability of the natural resources of said areas.’ 100 See, for example, Libya/Malta (n 98) 30–34, and the issue of the outer continental shelf in the Summary of Recommendations of the Commission on the Limits of the

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ably adds an important nuance to the debate concerning the role of islands in delimitation. The reason for the focus on the basis of title is that delimitation is premised on there being an overlap of equal entitlements: as the PCA has recently put it, ‘the Tribunal’s power to delimit the respective entitlements of the Parties exists only where those entitlements overlap’.101 If there are no overlapping entitlements, there can be no delimitation between states.102 But there can be no overlap of entitlements if there is no sovereignty over an area of land from which that entitlement (whatever that may be) flows. In other words, the basis of title is itself parasitic upon the fact of sovereignty: indeed, that is what is meant when it is said that ‘the land dominates the sea’.103 However, it is abundantly clear from the many maritime delimitation cases decided by courts and tribunals that whereas the ‘land’ may dominate the sea, ‘islands’ do not. The very fact that their generative capacity has been curtailed by Article 121(3) – and the extent of that curtailment drastically expanded by the tribunal in the South China Sea Arbitration – demonstrates this. The cases themselves, and the legal doctrine which they have generated, support the position that islands are not to be treated in the same way as a ‘mainland’. Theirs is a lesser entitlement, it seems, even though the ultimate basis of title – sovereignty – is the same for both. Even if it has an equal generative potential, it remains entirely unclear why a channel of water which severs the top of a headland from a promontory should potentially diminish the generative effect of the island that it produces within a delimitation process. The problem seems to be that, once a feature is determined to be an island, the question

Continental Shelf in regard to the Submission made by the United Kingdom of Great Britain and Northern Ireland in respect of Ascension Island on 9 May 2008, adopted by the Commission on the Limits of the Continental Shelf (CLCS) on 15 April 2010, www​.un​.org/​depts/​los/​clcs​_new/​submissions​_files/​gbr08/​gbr​_asc​_isl​_rec​_summ​.pdf, last accessed 10 December 2019. For a full exploration of the issue, see X. Liao, ‘The Delimitation of the Continental Shelf Beyond 200 Nautical Miles Between Coastal States’ (2018) Graduate Institute of International Law and Development Studies, Geneva, unpublished PhD thesis; and B.M. Magnusson, The Continental Shelf Beyond 200 Nautical Miles: Delineation, Delimitation and Dispute Settlement (Martinus Nijhoff 2015), Chapter 2. 101 Bangladesh/India (n 16) 503. 102 For several states, there still remains the need to delineate the outer limits of the continental shelf. On the work of the CLCS, see, for example, T. McDorman, ‘The Continental Shelf’ in The Oxford Handbook of the Law of the Sea (n 6) 181; L. Parson, ‘Observations on the Article 76 Process to Date: Coastal States’ Submissions and the Work Outstanding for the Commission on the Limits of the Continental Shelf’, in R.A. Barnes and J. Barrett (eds), Law of the Sea: UNCLOS as Living Treaty (British Institute of International and Comparative Law 2016) 119. 103 See, for example, North Sea Continental Shelf (Germany/Denmark), ICJ Reports 1969, 3 (para 96). This has been repeated many times since.

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arises concerning the effect which it is to have within the delimitation process – even if the island is itself the cause of the overlap of entitlements which has given rise to the delimitation in the first place. This has been clear from the very beginnings of the modern law of maritime delimitation: from the outset, islands were identified as potential ‘special circumstances’ the effect of which might be ameliorated within the delimitation process in order to achieve an equitable result.104 Just as the consideration of sovereignty differs from that concerning entitlement, adopting a contextual, rather than textual, analysis to the role of islands within the delimitation process best explains the approach of international courts and tribunals. There is little of mystery here – surely it is obvious – but it has become obscured by attempts to adopt a more rules-based approach to what is ultimately a process of informed discretion, contextually driven. If demonstrating that this is so were all that this section sought to achieve, it would amount to little more than a repackaging of case law which, while intellectually satisfying, would be of little practical value. However, approaching the role of islands from a contextual perspective in the manner we suggest has real practical consequences not only for the process of delimitation, but also for the approach to be taken to Article 121. For, as was argued earlier, the real impact of Article 121 has always been upon delimitation, as is well understood by courts and tribunals. We would suggest that the most important factor in determining how islands should be treated within the delimitation process is whether they are seen as constituting the primary contextual framework, or whether they are to be seen as disrupting that framework.105 The effect which they are actually given should, at the very least, take this into account. The outcomes which are the most problematic are those which fail to do so. 4.1

Islands as Context Generators

In many situations, it is the generative capacity of an island which gives rise to the need to delimit areas of overlapping entitlement in the first place. This is 104 See, for example, the early expert reports produced for the International Law Commission (ILC) in 1953 and its 1956 reports: ILC Final Draft Articles and Commentary, Articles 12(1) and 14(1), reproduced in Sir A. Watts, The International Law Commission 1948–1998 (Volume I, Oxford University Press 1999). 105 A similar approach was taken by T. Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge University Press 2015) 641–44. He identifies islands that are ‘constitutive’ of the delimitation and those ‘accessory’ to it, in exploring the role of equitable principles in delimitation. The categorization we explore here, however, is developed upon this formal classification and attempts to critically engage with how islands are treated in delimitation cases, under our overall contextual evaluative framework.

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most obviously true in cases where the island in question is itself a sovereign state, as with Bahrain, Barbados, Malta, the Philippines, Trinidad and Tobago, and the United Kingdom – which, while of highly differing sizes, are all obviously island states. In all of the decided cases concerning these states, the fact of their being islands had no direct bearing on the approaches taken by the courts or arbitral tribunals. The generative potential of their coasts was clearly at the heart of the case and their coasts were treated in exactly the same way as those of the ‘mainland’ coasts of others. Quite simply, as far as these states were concerned, their island coast was their mainland and it was these coasts which gave rise to the delimitation. It is simply not possible to do otherwise. Similarly, there have been cases in which the overlapping entitlements are the product of dependent islands and not the mainland territories of which they form a part. Examples include St Pierre et Miquelon, Jan Mayen and Nicaragua v Colombia – none of which involved potential entitlements generated from the mainland coasts of France, Norway or Colombia. Once again, in all these cases, islands not only contribute to the overlap of entitlements, but are in fact the sole reason for it: they have a constitutive effect; they create the need for the delimitation. In these cases, there is no indication that the method to be applied is any different from that which would have been used had the delimitation not been generated by a claim from an island. Indeed, in Nicaragua v Colombia, the ICJ expressly rejected the idea that the Colombian islands should be enclaved because they were located within the Nicaraguan continental shelf. As the ICJ put it, The reality is that the Nicaraguan mainland and fringing islands, and the Colombian islands, are located on the same continental shelf. That fact cannot, in and of itself, give one state’s entitlements priority over those of the other in respect of the area where their claims overlap.106

As a result, the ICJ refused to abandon the application of the ‘three-stage test’, which called for the construction of a provisional equidistance line.107 Where, then, the presence of islands gives rise to the delimitation, such islands are more likely to be used to construct an equidistance line (or to contribute towards the generation of the line produced by whatever is chosen as the primary method), even if similar islands might not have been used to do so in other cases where they did not play a similarly constitutive role – a point expressly made by the ICJ in Nicaragua v Colombia.108 Nicaragua/Colombia (n 3) 214. Ibid 198–99. 108 Ibid 198. 106 107

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However, this does not mean that ‘constitutive’ islands will be given full effect or treated in the same way as mainland coasts. The cases show that such islands are often given diminished effect relative to mainlands, even though it is accepted that they possess an equal capacity to generate zones of jurisdiction. This is even true of island states. In Libya v Malta, neither the fact of Malta being an island state nor the principle of the equality of states resulted in the application of strict equidistance.109 To achieve an equitable result, the ICJ concluded that the disparity of the relevant coastal lengths of the states (8:1 in Libya’s favour) and the geographic context called for a northerly adjustment of the median line, so as to lie closer to Malta.110 In an extraordinary piece of reasoning, the ICJ argued that Malta could not end up worse off than it would have been had it not been an independent state. It said that if Malta had been Italian territory, a delimitation between Sicily and Libya would have given at least some effect to Malta; so in order to ensure that Malta would not be in a ‘worse position because of its independence’,111 the delimitation line had to be south of any Libya/Italy median line, but north of a Libya/Malta median line. The ICJ ruled that an equitable solution would be ‘a boundary line that represents a shift of around three-quarters of the distance between the two outer parameters’.112 The ICJ did not draw attention to the fact that any equidistance line between Libya and Italy would be drawn from Sicily, which is itself an island. It was not being an island that mattered. What did matter was the general geographical context ‘in which the islands of Malta appear as a relatively small feature in a semi-enclosed sea’.113 In other words, even in the case of a sovereign island state, it was the overall geographical context, rather than its legal status or generative capacity, which dictated the final shape of the overall outcome. The ICJ took a similar approach in Jan Mayen.114 As in Libya v Malta, it employed a provisional equidistance line as its starting point;115 but, noting the disparity in coastal lengths between Greenland and the Norwegian island of Jan Mayen (around 9:1 in Denmark’s favour),116 found this to be a special circumstance requiring that the equidistance line be shifted closer to the island.117 Again, the ICJ did this in a rather odd way, identifying a zone between the

111 112 113 114 115 116 117 109 110

Libya/Malta (n 98) 52–4. Ibid 66–71. Ibid 72. Ibid 73. Ibid 73 and 69. Jan Mayen case (n 49). Ibid 50–1. Ibid 61. Ibid 69.

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provisional equidistance line and the limits of the 200-nm zone claims by Greenland, and dividing the area in Denmark’s favour on the basis that equal division would give too much weight to Jan Mayen, while also seeking to respect the need for equitable access to fisheries.118 Once again, it was not the strict entitlements, but the overall context which dictated the shape of the final outcome. The same is true of St Pierre and Miquelon (1992),119 which concerned overlapping entitlements generated from a dependent island. St Pierre and Miquelon are located off the Newfoundland coast of Canada. France held that the islands were entitled to generate a full 200-nm zone, and that this should be delimited on the basis of equidistance. Arguing that the islands were entitled only to a 12-nm enclave, Canada pointed to the disparity of the coastal lengths and sought to apply the concept of non-encroachment. The tribunal rejected the Canadian argument, noting that the French islands possessed a ‘coastal opening towards the south which is unobstructed by any…Canadian coast. Having such a coastal opening, France was fully entitled to a frontal seaward projection towards the south’.120 The tribunal also considered that ‘such a seawards projection must not be allowed to encroach upon or cut off a parallel frontal projection of the adjacent segments of the Newfoundland southern coast’.121 In the tribunal’s opinion, the equitable solution, given the difference in the length of the relevant coasts and the coastal projections, was to award the French islands a ‘corridor’ 200 nm long, but only 10.5 nm wide, extending south.122 Despite the diminished entitlement of the islands, the tribunal considered that ‘a particular coast, however short, may have a seaward projection as far as 200 miles, if there are no competing coasts that could require a curtailed reach’.123 We do not aim to examine all such examples here – only to illustrate that where islands are the sole reason for undertaking a delimitation, they are properly taken into account as a constituting feature of the case. When it comes to practical application of the methodology chosen, dependent islands are likely to end up with a significantly reduced effect vis-à-vis the ‘mainland’ coast Ibid 90–2. St Pierre and Miquelon (n 17). 120 Ibid 70. 121 Ibid. 122 Ibid 72–3. 123 Ibid 45. It is this latter point which explains the otherwise seemingly different approach taken by the ICJ in Nicaragua/Colombia (n 3), where the ICJ expressly held open the possibility of Nicaragua exercising jurisdiction on ‘the other side’ of the islands (thus, in effect, enclaving them). At the time of the ICJ’s judgment, Nicaragua was asserting title to the continental shelf in this area – a claim on which the ICJ did not then feel able to pass judgment and which at the time of this writing is before the ICJ. 118 119

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against whose entitlement they are competing. This may even be the case as regards island states. What counts is the context. Islands are not always discriminated against – but the context is often hostile to their claims in relation to mainland states, unless they are of some scale and significance: there does not even seem to have been any suggestion that the island coasts of the UK are in any way at a disadvantage to the continental coasts of Europe, or the island coasts of Sicily to the mainland coasts of North Africa. Again, this is a question not of law, but of context. The focus on context can help to explain one phenomenon which might otherwise be very difficult to explain: that some islands seem not to be treated as islands at all, but as part of the mainland coast that constitutes the primary frame of reference. Islands close to the mainland are often considered as forming an ‘integral part’ of the coastline of the state;124 where this is the case, their generative capacity is rarely called into question. For example, in the Eritrea v Yemen arbitration (1999), the Dahlaks were described as a ‘tightly knit group of islands and islets, or “carpet” of islands and islets’, and as ‘a typical example of a group of islands that forms an integral part of the general coastal configuration’125 – and were treated as such.126 Equally, the tribunal found that the Yemeni islands of Kamaran, Kutama and Uqban were ‘part of an intricate system of islands, islets and reefs which guard this part of the coast’.127 Not only can such islands have a constitutive effect; but there seems to be no consideration of whether, individually or collectively, they fulfilled the tests set out in Article 121(3). 4.2

Islands as Context Disruptors

Rather than ‘setting the scene’ for a delimitation, islands can be seen as features which distort or disrupt the primary contextual framework, complicating the process of delimitation between states.128 Courts and tribunals have 124 The tribunal in Guinea v Guinea-Bissau (1985) 77 ILR 635 established three types of islands according to their proximity to the coastline. First, ‘coastal islands’ identifiable by their close proximity to the coastline of the state, often attached to it at low tide, were held to form an ‘integral part’ of the coastline and were given full effect. Second were islands located between 2 nm and 37 nm from the coastline. Third were those located at a distance exceeding this margin. Only the first and second types of islands located off the coastline were considered as effecting any provisional delimitation line. 125 Eritrea/Yemen (n 14) 139. 126 Ibid 146. 127 Ibid 151. 128 D.E. Karl, ‘Islands and the Delimitation of the Continental Shelf: A Framework for Analysis’ (1977) 71 American Journal of International Law 642, 643.

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described how islands may produce a ‘disproportionally distorting effect’ which must be ‘eliminated’ to produce an equitable delimitation.129 Islands have often been described and treated as ‘special’ or ‘relevant’ circumstances which necessitate either an amendment to some provisional method of delimitation130 or a different approach.131 Indeed, the ICJ has accepted that in some cases it may be equitable to ‘ignor[e] the presence of islets, rock and minor coastal projections’ altogether.132 Once it has been determined that an island does not form a part of the primary frame of reference, they are treated in a very different way, no matter how significant they might be. The critical factor becomes the location of the islands relative to the area to be delimited. Famously, in the Anglo-French Continental Shelf Arbitration,133 concerning the delimitation of the continental shelf in the English Channel, the tribunal drew a provisional median line between the opposite coastlines of the UK and France, but did not include the coasts of the Channel Islands, which it thought ‘disturbs the balance of the geographical circumstances which would otherwise exist between the Parties’.134 Indeed, the tribunal characterized the Channel Islands as being ‘on the wrong side’ of the median line,135 and held that ‘the existence of the Channel Islands close to the French coast, if permitted to divert the course of that mid-Channel median line, effects a radical distortion of the boundary creative of inequity’.136 Consequently, the Channel Islands were enclaved within a 12-nm continental shelf, whereas the median line was drawn from the mainland coasts.137 Similarly, in Nicaragua v Honduras (2007), several Honduran islands were said to fall on the ‘wrong side’ of the bisector line, the angle of which was calculated from linear approximations of the coastal fronts of the adjacent states, in light of the morphodynamism along the coast. To remedy this, the ICJ awarded the islands a 12-nm territorial sea, which cut across the bisector line, causing it to arc.138

North Sea Continental Shelf (n 103) 57. See, for example, Anglo-French Arbitration (n 18), Qatar/Bahrain (n 21), Nicaragua/Colombia (n 3) and others discussed in this section. 131 See, for example, where islands are completely ignored, Libya/Malta (n 98) re Filfla; Continental Shelf (Tunisia v Libya), ICJ Reports CLC, 18, re Jerba, and others discussed in this section. 132 North Sea Continental Shelf (n 103) 57. 133 Anglo–French Arbitration (n 18). 134 Ibid 183. 135 Ibid 199. 136 Ibid 199. 137 Ibid 201–2. 138 Nicaragua/Honduras (n 36) 305. 129 130

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Both these can be contrasted with Nicaragua v Colombia, where the ICJ refused to draw enclaves around the Colombian islands, partly on the grounds that – unlike the Channel Islands in the Anglo-French case – they were not ‘on the wrong side’ of the provisional line, but faced Nicaragua in only one direction and so, by implication, formed the opposite coast.139 In other words, the Colombian Islands could not be enclaved since they constituted the primary context for the delimitation. Too much weight should not be attached to the language of an island being ‘on the wrong side’ of a provisional line, however. While these cases appear to be in some ways the most extreme, they distract attention from the much more noteworthy practice of completely ignoring islands which are on the ‘right’ side of the line. Case law is littered with examples. In Libya v Malta, the ICJ decided not to use the small Maltese island of Filfla as a basepoint, so it had no effect on the course of the provisional equidistance line drawn by the ICJ.140 Indeed, echoing the North Sea cases, it expressed the view that ‘the equitableness of an equidistance line depends on whether the precaution is taken of eliminating the disproportionate effect of certain “islets, rocks and minor coastal projections”.’141 Likewise, the tribunal gave the Yemeni islands of Al-Tayr and the Al-Zubayr group no effect on the equidistance line in the Eritrea v Yemen Arbitration, due to ‘their barren and inhospitable nature and their position well out to sea’.142 In Tunisia v Libya, no effect was given to the Tunisian island of Jerba, since it was considered ‘legitimate to disregard for the present coastal configurations found at more than a comparatively short distance’ from the coast,143 and that there were ‘other considerations’ which ‘prevail[ed] over the effect of its presence’.144 In Qatar/Bahrain (2001), the ICJ gave no effect to the Bahraini feature Fasht al Jarim which, it held, had a distorting effect on the equidistance line and ‘would not lead to an equitable solution’.145 In the Black Sea, Serpents’ Island, situated some 20 nm from the coast,146 was given no effect on the provisional equidistance line delimiting the continental shelf and EEZ; nor was it considered to be a relevant circumstance calling for adjustment to that line, since ‘in the context of the delimitation with Romania, any continental shelf and exclusive economic zone entitlements possibly generated by Serpents’ Island could not project further than the enti-

Nicaragua/Colombia (n 3) 231. Libya/Malta (n 98) 64. 141 Ibid. 142 Eritrea/Yemen (n 14) 147. 143 Tunisia/Libya (n 130) 120. 144 Ibid 79. 145 Qatar/Bahrain (n 21) 248. 146 Black Sea (n 43) 149. 139 140

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tlements generated by Ukraine’s mainland’.147 The overall geographic context – that Ukraine’s coast enclosed the delimitation area – barred Serpents’ Island from having a greater effect on delimitation.148 Another way in which the courts have sought to avoid the ‘distorting effect’ of islands is to give them only a ‘half effect’ (why it should be a half effect, as opposed to any other percentage, is rarely explained). In the Anglo-French Arbitration, the tribunal considered that the Scilly Isles had a distorting effect on the median line ‘when superadded to the greater projection of the Cornish mainland’,149 and so should only be given ‘half effect’ on the course of the line.150 Similarly, in Tunisia v Libya, the ICJ gave the Kerkennah Islands only half effect when constructing the bisector line used to effect the delimitation.151 The ICJ held that while giving the islands full effect would be excessive,152 their ‘size and position’ meant that they could not be ignored.153 Likewise, in Gulf of Maine, the ICJ Chamber gave Seal Island only half effect on the bisector line which it drew: Seal Island should not be completely disregarded, given its size, its height above sea level and the fact that it was permanently inhabited;154 but it would be ‘excessive’ to allow it to have full effect, as that would make the overall result disproportionate.155 It is difficult to avoid the conclusion that when an island is not at the heart of the delimitation framework, it is considered to be very much an incidental feature, the effects of which either can be discounted in full or in part, or can be taken account of in whatever manner appears most appropriate. In Qatar/ Bahrain, some islands were indeed used as basepoints which contributed to the generation of a provisional equidistance line, whereas others were not. In particular, the parties were in dispute over whether the feature known as Fasht al Azm was part of the Bahraini island of Sitrah or was a separate low-tide elevation. The ICJ concluded that if Fasht al Azm were to be regarded as part of the island of Sitrah, it would not be appropriate to take the equidistance line as the maritime boundary since, in view of the fact that less than 20 per cent of the surface of this island is permanently above water, this would place 147 Ibid 187. However, Serpents’ Island was entitled to a 12-nm territorial sea arc, which slightly altered the equidistance line, and which was consistent with the 1949 General Procès-Verbal agreement between the states (188). 148 Ibid 187. 149 Anglo–French Arbitration (n 18) 244. 150 Ibid 251. 151 Tunisia/Libya (n 130) 129. 152 Ibid 128. 153 Ibid. It is uncertain what the ICJ meant by ‘position’ here. 154 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America), ICJ Reports 1984, 246 (para 222). 155 Ibid.

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the boundary disproportionately close to Qatar’s mainland coast. Equally, if it were treated as a low-tide elevation, the equidistance line ‘would brush Fasht al Azm, and…would also be an inappropriate delimitation line’.156 The ICJ concluded that ‘there are…special circumstances which justify choosing a delimitation line passing between’ the feature and a close Qatari low-tide elevation.157 Thus, because of its indeterminacy and the perceived inequitableness of its use, the island of Sitrah was not used to generate the boundary. Equally, Qit’at Jaradah, located midway between the states, was denied full effect on the equidistance line in order to avoid attributing a ‘disproportionate effect… to an insignificant feature’.158 It was given partial effect as a result of the line being drawn between it and the Qatari low-tide elevation Fasht ad Diba.159 4.3 Conclusion This section does not pretend to have exhaustively analysed and systematized how courts and tribunals have addressed islands in delimitation cases. Rather, we have sought to sketch an alternative way of viewing those cases, focusing on whether islands form part of the essential framing of the dispute – whether they help to ‘constitute’ the primary framework within which the delimitation is to be conducted – or whether they are seen as ‘disrupting’ the primary framework in some way. The manner in which islands are engaged with is likely to be influenced by this distinction, even if the practical outcomes are not necessarily very different. Language does matter; and where islands play a constitutive role, it is all but impossible for them to be ignored in their entirety or for the purposes of generating provisional lines. What is more likely is that their impact will be examined through the lens of other factors, such as disproportionality in coastal lengths, or cut off and ameliorated in some way as a result. One might say that there is an enhanced presumption of their having a substantial generative effect – and the greater the role of the island in generating the overlapping entitlement, and the greater the significance of the generating island, the stronger will be that presumption. So, while a distant dependent island off the mainland coast of another state (eg, St Pierre et Miquelon or the Colombian Albuquerque Islands) is likely160 to be accorded more weight than a small and incidental offshore island, the greatest weight of all is likely to be Qatar/Bahrain (n 21) 218. Ibid. That is, the ICJ simply chose a line that would pass equitably between the features, based on no discernible methodology. 158 Ibid 219. 159 Ibid 249. 160 But this is not guaranteed. In Nicaragua/Colombia (n 3) itself, arguably too much weight was given to the relatively small Nicaraguan Corn Islands in the gener156 157

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given to sovereign island states – although, as Malta discovered, this is not a final guarantor of equality. The underlying logic appears to be that maritime delimitation prioritizes the ‘mainland’ over islands. The idea that an island could distort or complicate the geographic facts of the case, or even that islands may be ‘on the wrong side of the equidistance line’, suggests that, unless they are the source of overlapping entitlements on which a delimitation is premised, islands are considered not as part of the primary context, but as disruptors of it. Why do islands have distorting effects? Are they not natural features too? Do they not contribute to the factual geographical framework in exactly the same way as every other coastline with generative entitlement? Is it therefore not really true that islands generate maritime entitlement in the same way and to the same extent as mainlands?161 And does Article 121(3) of UNCLOS apply to all islands, including coastal archipelagos and close-lying offshore islands? The answers to these questions appear to be the same: the context determines.

5.

SOME IMPLICATIONS

This chapter has considered how international courts and tribunals have engaged with the ‘regime of islands’. We have questioned whether there really is a very clearly structured ‘regime’ at all, focusing on three areas which have received particular attention in decided cases: questions of sovereignty, entitlement and delimitation. Aside from the details, there is a marked difference of approach in each of these areas. As regards sovereignty, we find a ‘contextual’ approach, in which determinations are made on the basis of the best available evidence and which may take a multiplicity of forms. This mirrors the general approach to determining title to territory. If there is any surprise here, it is just how little evidence is sometimes required in order for a state to assert title over insular features, given the significance of this. One of the areas of greatest significance concerns the entitlement of maritime features to zones of maritime jurisdiction. Here an embryonic regime has been provided in Article 121 of UNCLOS. Perhaps inevitably, as soon as a text becomes involved, the approach of courts and tribunals becomes more textually oriented. As Article 121 has increasingly gained recognition as reflecting customary law, the debates around its interpretation have become increasingly forensic. This textually oriented approach reached its apogee in the award of

ation of the ‘equidistance line’, which significantly diminished the overall generative effect of the Colombian islands over its claimed entitlement. 161 The ICJ confirmed this in Qatar/Bahrain (n 21) 185.

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the South China Sea Arbitration (2016), which endorsed approaches that, if they are subsequently endorsed by others, threaten to unsettle much current practice concerning entitlement. At the same time, some of the most fundamental issues relating to the definition of an ‘island’ remain unresolved. However, both title and entitlement feed into the vexed question of delimitation of overlapping claims. The lack of a clear conventional text perhaps ensures that this will remain an area in which contextual considerations continue to loom large. Regardless, one major difference concerns how islands are engaged with in cases where they form a central element of the case and in those where they play an incidental role – ‘constitutive’ and ‘disruptive’ functions. While the outcomes may often be similar, this difference has an impact. It seems unwise to expect distant islands located off a mainland to be enclaved, even if similar islands have been enclaved when located off the coasts in the context of a mainland-to-mainland delimitation. It is equally illogical to expect small islands situated at some distance from a mainland coast to generate an equidistance line vis-à-vis an opposite mainland coast. Context does matter and must be factored into our understanding of the role to be accorded to islands in maritime delimitation – even if this means treating similar islands in dissimilar ways. That brings us back to the definitional questions which have caused so much difficulty. If the real purpose of Article 121 of UNCLOS is to identify those features which can claim maritime zones (extended maritime zones in particular), and if the results of those determinations are then to be subjected to contextual evaluation when they come into conflict with the claims of others, is it really desirable to invest so much effort into making fine-grained and controversial distinctions in the first place? Might a more broad-brush approach be all that is really required? Perhaps the award in the South China Sea Arbitration has led in completely the wrong direction, by engaging in so textually oriented an approach to the ‘regime of islands’ when a more contextually oriented analysis may be what is needed.

3. Revealing a mosaic: international jurisprudence concerning the non-fisheries elements of the exclusive economic zone regime Robin Churchill 1. INTRODUCTION One of the major innovations in the law of the sea effected by the Third United Nations Conference on the Law of the Sea was the elaboration and inclusion in the United Nations Convention on the Law of the Sea (UNCLOS) of a new maritime zone: the exclusive economic zone (EEZ). This was developed at the Conference as a compromise between those states that desired broad coastal state jurisdictional limits – especially in relation to the exploration and exploitation of natural resources – and those that favoured narrow coastal-state limits. The former were predominantly, but not exclusively, developing states; the latter were largely developed states, usually with strong maritime interests. The essence of the compromise was that coastal states obtained sovereign rights in respect of the economic resources of their EEZs, together with jurisdiction over ancillary matters such as marine scientific research and protection of the marine environment; whereas other states retained previous high-seas rights of communication concerning navigation, overflight and the laying of submarine cables and pipelines. As UNCLOS represents a compromise, it is unsurprising that many of its provisions concerning the EEZ are open-textured, imprecise or ambiguous. Even allowing for the sporadic and haphazard nature of international litigation, and the fact that disputes concerning a coastal state’s exercise of its sovereign rights over the living resources and its jurisdiction in respect of marine scientific research within the EEZ are largely exempt from compulsory dispute settlement,1 it is nevertheless surprising that the EEZ has not featured more in

1

Articles 297(2) and (3) of UNCLOS. 48

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cases before international courts and tribunals since UNCLOS came into force in 1994 – especially given the level of marine activity that takes place in the EEZ. As far as the non-fisheries elements of the EEZ regime are concerned, the judgment of the International Tribunal for the Law of the Sea (ITLOS) in the Saiga (No 2) case in 1999 dealt with one – relatively minor – EEZ issue;2 but then there were no further cases until the judgment of ITLOS in the Virginia G case in 2014,3 and a trio of arbitral awards in 2015/6 (the Chagos Marine Protected Area (MPA),4 Arctic Sunrise5 and South China Sea cases),6 shed light on several aspects of the EEZ. The awards of the arbitral tribunals in the pending Enrica Lexie and San Padre Pio cases,7 when eventually delivered, will probably contribute further to EEZ jurisprudence; as may possibly the two pending Ukraine v Russia cases, should the arbitral tribunals concerned find that they have jurisdiction.8 Rather like archaeologists excavating a site of Roman remains who gradually uncover a mosaic, so cases before UNCLOS dispute settlement bodies are gradually revealing a mosaic of interpretations of the EEZ regime. And just as some tiles are often missing from Roman mosaics when excavated, so some aspects of the EEZ regime have not yet been interpreted, and, depending on the accidents of litigation, may never have their meaning clarified by an international court. This chapter examines the existing mosaic of interpretation as it relates to the non-fisheries provisions concerning the EEZ. Interpretation of the fisheries provisions is considered in other chapters of this book. Likewise, this chapter does not consider the delineation of the EEZ from islands, as that is covered in Chapter 2. Nor does it deal with delimitation between the overlapping EEZs of neighbouring states, as maritime delimitation falls outside the scope of this book. 2 M/V ‘Saiga’ (No 2) Case (St. Vincent and the Grenadines v Guinea), ITLOS Reports 1999, 10. 3 Virginia G Case (Panama v Guinea-Bissau), ITLOS Reports 2014, 4. 4 In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), Award (2015), RIAA XXXI (2018), 365. 5 In the Matter of the Arctic Sunrise Arbitration (Netherlands v Russia), Award on the Merits (2015), RIAA XXXII (2019), 210. 6 South China Sea Case (Philippines v China), Merits, 2016, https://​pcacases​.com/​ web/​sendAttach/​2086, last accessed 10 December 2019. 7 Enrica Lexie Incident (Italy v India). Proceedings were instituted in June 2015; written proceedings were completed in March 2018 and hearings held in July 2019. See https://​pca​-cpa​.org/​en/​cases/​117/​, last accessed 10 December 2019. In the M/T ‘San Padre Pio’ Case (Switzerland v Nigeria), proceedings were instituted in May 2019. 8 Dispute concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait Case (Ukraine v Russian Federation) and Case concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v Russian Federation). Proceedings were instituted in September 2016 and April 2019, respectively.

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I begin by outlining the EEZ regime as laid down in UNCLOS, and then consider the interpretation by international courts and tribunals of its four main elements: (1) the rights of the coastal state; (2) the rights of other states; (3) mechanisms for resolving conflicts between the two sets of rights; and (4) the formula in Article 59 of UNCLOS for resolving conflicts over unattributed rights. The chapter ends with a discussion of the methods and techniques of interpretation used by international courts and tribunals when applying the provisions of UNCLOS concerning the EEZ.

2.

AN OVERVIEW OF THE EEZ REGIME9

Spatially, an EEZ lies between the outer limit of the territorial sea, which is usually located 12 nautical miles (nm) from the baseline, and a line 200 nm from the baseline. Under UNCLOS, there is no obligation on a coastal state to claim an EEZ. Currently, around 20 out of 151 coastal states have not claimed EEZs:10 most are located in enclosed or semi-enclosed seas, such as the Mediterranean Sea and Arab/Persian Gulf, where for geographical reasons it is impossible for a coastal state to claim anything like a full 200-nm zone. The inner 12 nm of the EEZ overlap with the contiguous zone (if one is claimed by a coastal state – and by no means all states do so), whereas the seabed of the EEZ overlaps with the continental shelf. Part V of UNCLOS lays down the substantive regime for the EEZ. It is a sui generis regime, being neither territorial sea nor high seas, although it

9 For detailed studies of the EEZ regime, see, for example, D. Attard, The Exclusive Economic Zone in International Law (Oxford University Press 1987); R. Beckman and T. Davenport, ‘The EEZ Regime: Reflections after Thirty Years’ in H.N. Scheiber and M.S. Kwon (eds), Securing the Ocean for the Next Generation (Law of the Sea Institute, Berkeley, CA., 2013), www​.law​.berkeley​.edu/​files/​Beckman​ -Davenport​-final​.pdf, last accessed 10 December 2019; M. Gavouneli, Functional Jurisdiction in the Law of the Sea (Martinus Nijhoff Leiden 2007), especially Chapter 3; B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Martinus Nijhoff 1989); D. Nelson, ‘Exclusive Economic Zone’ in R. Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online version); and F. Orrego Vicuña, The Exclusive Economic Zone (Cambridge University Press 1989). 10 Author’s calculation, based on information available on the website on the UN Division on Oceans and the Law of the Sea (DOALOS), www​.un​.org/​depts/​los/​index​ .htm, last accessed 10 December 2019. Some states that do not claim an EEZ claim sui generis zones that contain elements of the EEZ regime. See further G. Andreone and G. Cataldi, ‘Sui Generis Zones’ in M. Fitzmaurice and N. Martinez Gutierrez (eds), The IMLI Manual on International Maritime Law, Vol. I (Oxford University Press Oxford 2014) 217–38, especially 226–30; and M. Grbec, Extension of Coastal State Jurisdiction in Enclosed and Semi-Enclosed Seas, A Mediterranean and Adriatic Perspective (Routledge 2014), Chapter 3.

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has features of each. As already indicated above, the regime has four principal elements: (1) a set of the rights attributed to the coastal state; (2) a set of rights attributed to other states; (3) mechanisms for resolving potential conflicts between these two sets of rights; and (4) a formula for resolving conflicts over uses of the EEZ that do not fall within either category of attributed rights. These four elements are elaborated below, together with any relevant jurisprudence.

3.

THE RIGHTS OF COASTAL STATES

Article 56(1) of UNCLOS enumerates the rights that a coastal state has in its EEZ. There are six specific rights (set out in paragraphs (a) and (b) of Article 56(1)), together with ‘other rights and duties provided for’ in UNCLOS (paragraph (c)). Of the six specific rights, international courts and tribunals have not to date considered a coastal state’s sovereign rights relating to activities for economic exploitation of the EEZ (excluding living and non-living resources), such as the production of energy; or a coastal state’s jurisdiction relating to marine scientific research and protection and preservation of the marine environment. As noted, a coastal state’s sovereign rights relating to the living resources of the EEZ fall outside the scope of this chapter. That leaves a coastal state’s sovereign rights relating to the exploration and exploitation of the non-living resources of the EEZ, and its jurisdiction concerning the construction and use of artificial islands, installations and structures, together with a coastal state’s ‘other rights and duties’. Each of these matters has been the subject of some consideration by international courts and tribunals. 3.1

Coastal State Rights Relating to the Non-living Resources of the EEZ

In practice, a coastal state’s sovereign rights relating to the exploration and exploitation of the non-living resources of its EEZ concern primarily, if not exclusively, the natural resources of the seabed and subsoil. Article 56(3) provides that rights relating to those resources are ‘to be exercised in accordance with Part VI’ of UNCLOS. Part VI deals with the continental shelf. Thus, exploration and exploitation of the natural resources of the seabed and subsoil of the EEZ – which (as noted above) overlaps with the continental shelf – are governed by the continental shelf regime of Part VI of UNCLOS, not the EEZ regime of Part V. In principle, any case law concerning a coastal state’s rights in respect of seabed resources falls within Chapter 4 of this book, and outside the scope of this chapter. However, in Arctic Sunrise, ITLOS discussed the scope of a coastal state’s competence to enforce its rights over seabed resources in terms of the EEZ regime, rather than the continental shelf regime

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of Part VI. ITLOS did not explain why it did so, and at first sight it seems rather curious that it did. Presumably the reason was because, as explained shortly, the salient events in the case all occurred in the water column and not on the seabed. Whatever the reason, this approach led ITLOS to adopt what is arguably an overly narrow view of the powers of a coastal state to take enforcement action against those who interfere with its continental shelf rights, as will be explained below. Arctic Sunrise concerned protests by Greenpeace against Russian oil and gas activities in the Arctic. In September 2013, small boats, with Greenpeace protesters on board, were launched from the Arctic Sunrise, a Dutch-registered ship operated by Greenpeace, in the vicinity of a Russian oil platform in the Pechora Sea. The protesters tried to board the platform, without much success, and then returned to the Arctic Sunrise. Later, the Arctic Sunrise was boarded and seized by the Russian authorities at a place many miles from the platform and those on board the ship were arrested and detained. The main question for ITLOS in this case was whether the boarding, seizure and arrest were in accordance with international law. ITLOS held that Russia would have lawfully been able to take enforcement action against the Arctic Sunrise for breaches of its legislation prohibiting interference with an oil platform within the safety zone around the platform. It could also have done so beyond that zone if it had engaged in hot pursuit from within the zone.11 However, Russia’s actions did not fall within either of those forms of law enforcement. ITLOS then considered whether a coastal state has any broader powers to enforce its laws regarding the non-living resources in its EEZ. It noted that UNCLOS gives the coastal state no such powers explicitly. However, the provisions in UNCLOS relating to a coastal state’s sovereign rights over non-living resources derive largely from the 1958 Convention on the Continental Shelf. In its commentary on the draft articles that formed the basis of that Convention, the International Law Commission had observed that a coastal state’s sovereign rights included jurisdiction in connection with the prevention and punishment of violations of its laws. That led ITLOS to observe that while it ‘does not find it necessary to reach a view on the extent of the coastal State’s right to enforce its laws in relation to the non-living resources in the EEZ, it is clear that such a right exists’.12 However, there was no evidence that the Arctic Sunrise had breached Russian laws other than in the safety zone. ITLOS here seems to have regarded breaches of a coastal state’s legislation in a safety zone as quite distinct from interference with a coastal state’s sover-

11 Arctic Sunrise (n 5) paras 211 and 244. The ‘hot pursuit’ aspects of the case are discussed further in Chapter 9. 12 Arctic Sunrise (n 5) para 284.

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eign rights to the non-living resources of the seabed;13 whereas in reality, the former is an example of the latter. Indeed, ITLOS appears to recognise this much later in its award, when discussing a coastal state’s preventative powers in relation to possible terrorist attacks on an installation.14 Moreover, even if breaches of a coastal state’s legislation in a safety zone are considered to be distinct from interference with its rights to seabed resources, ITLOS’s view of the enforcement competence of the coastal state in relation to such breaches seems to be too narrow when compared with a coastal state’s enforcement jurisdiction in relation to breaches of its laws applying to the living resources of its EEZ. If a coastal state intercepts a foreign vessel fishing in its EEZ and finds illegally caught fish on board – fish that the vessel’s logbook shows were taken from elsewhere in that state’s EEZ than the place where the vessel was intercepted – there is no doubt that the coastal state is entitled to seize the vessel and take enforcement proceedings against it for the prior illegal fishing. While that competence may not be expressly conferred by UNCLOS, it is widely evident in state practice and has not been contested by the flag states of the vessels concerned. There seems no reason why the same principle should not apply to a vessel that has breached a coastal state’s legislation relating to installations and the safety zones around them. In other words, a coastal state should be able to seize a foreign vessel for such a breach (as well as for any other interference with its seabed rights) anywhere within the waters overlying its continental shelf that constitute its EEZ. That also seems to have been the view of Judge Golitsyn, as expressed in his dissenting opinion to the provisional measures order made by ITLOS in an earlier phase of the case.15 As well as considering a coastal state’s powers to take enforcement action after an offence against its seabed rights has been committed, in Arctic Sunrise ITLOS considered what powers (if any) a coastal state has to prevent the commission of such offences. ITLOS concluded that a coastal state had the right to take ‘appropriate’ measures to prevent interference with its sovereign rights, provided that such measures ‘fulfil the tests of reasonableness, necessity and proportionality’.16 Such measures could include those necessary to prevent See especially para 284. See para 314. 15 ‘Arctic Sunrise’ (Kingdom of the Netherlands v Russian Federation) (Provisional Measures), ITLOS Reports 2013, 230. Dissenting Opinion of Judge Golitsyn, paras 23 and 34. 16 Arctic Sunrise (n 5) para 326. This view was endorsed in Duzgit Integrity. Although that case concerned an incident in archipelagic waters and not the EEZ, its comments about the exercise of law enforcement powers have general application. According to the tribunal, ‘the exercise of [law] enforcement powers by a (coastal) State in situations where the State derives these powers from provisions of the [LOS] Convention is also governed by certain rules and principles of general international 13 14

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violations of the coastal state’s laws, dangerous situations, ‘negative environmental consequences’, and delay or interruption to essential operations:17 At the same time the coastal State should tolerate some level of nuisance through civilian protest as long as it does not amount to an ‘interference with the exercise of its sovereign rights’. Due regard must be given to rights of other States, including the right to allow vessels flying their flag to protest.18

In the case of the Arctic Sunrise, it was, at the time of its seizure, no longer engaged in actions that could potentially interfere with the exercise by Russia of its sovereign rights; nor did the Russian authorities give that as their reason for the seizure. Had they done so, their actions would not have been justified, as they would have infringed the Netherlands’ freedom of navigation contrary to Article 78(2) of UNCLOS. The award is not overly clear on how the preventive powers of a coastal state in relation to its rights over the non-living resources of the seabed are to be balanced against the right of other states to protest, in particular as regards the dividing line between acts of ‘nuisance’ by a ship (which are lawful) and acts amounting to ‘interference’ (which are not). 3.2

Coastal State Jurisdiction Concerning Artificial Islands, Installations and Structures

The other specific coastal state right listed in Article 56(1) on which international courts and tribunals have commented concerns a coastal state’s jurisdiction to construct and use artificial islands, installa­tions and structures. This right is elaborated in Article 60, which provides that in its EEZ a coastal state has: the exclusive right to construct and to authorise and regulate the construction, operation and use of: (a) artificial islands; (b) installations and structures for the purposes provided for in Article 56 and other economic purposes; (c) installations and structures which may interfere with the exercise of the rights of the coastal State in the zone.

law, in particular the principle of reasonableness. This principle encompasses the principles of necessity and proportionality’. See The Duzgit Integrity Arbitration (Malta v São Tomé and Príncipe), Award, 2016, para 209, www​.pcacases​.com/​web/​sendAttach/​ 1915, last accessed 10 December 2019. 17 Arctic Sunrise (n 5) para 327. 18 Ibid para 328.

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In South China Sea, the arbitral tribunal observed that Article 60 ‘endow[s] the coastal State…with exclusive decision-making and regulatory power over the construction and operation’ of artificial islands, installations and structures.19 UNCLOS does not explain how ‘artificial islands’, ‘installations’ and ‘structures’ are to be distinguished – even though they appear to be intended as distinct categories that do not overlap, as artificial islands may be constructed for any purpose, but installations and structures have a more limited range of purposes. South China Sea suggests that the main criteria for differentiation are size and permanency. Thus, the tribunal found that the construction of a fibreglass structure on a reef for the purpose of providing fishermen with shelter from storms was an installation or structure; whereas a concrete platform built up on a low-tide elevation that had a three-storey building, helipad, wharves and fortified seawalls was an artificial island.20 The tribunal upheld the rights of the Philippines under Article 60 by finding that China had violated this provision by constructing installations and an artificial island on Mischief Reef, a low-tide elevation lying within the EEZ of the Philippines.21 Article 60 goes on to provide, in paragraph 4, that a coastal state ‘may, where necessary’, establish ‘reasonable’ safety zones around artificial islands, installations and structures in which it may take ‘appropriate measures to ensure the safety both of navigation and of the artificial islands, installations and structures’. In Arctic Sunrise, ITLOS stated that such ‘appropriate measures’ included the enactment of laws and regulations aimed at ensuring the safety of navigation and of artificial islands, installations and structures, as well as the enforcement of such laws and regulations, ‘provided that such measures are aimed at ensuring the safety of both navigation and the artificial islands, installations, or structures’.22 ITLOS held that a 3-nm zone around a Russian oil platform that ships were recommended not to enter without the consent of the platform operator was not a ‘safety zone’ within the meaning of Article 60(4), because of its non-mandatory nature.23 This may have been correct, but it does not seem to follow from the ordinary meaning of the phrase that ‘appropriate measures to ensure the safety…of navigation’ must necessarily exclude recommendations to foreign shipping and must always be mandatory in nature. According to ITLOS, a zone around an installation will be a ‘safety zone’ within the meaning of Article 60(4) only if prescriptive measures apply there and those measures are mandatory. However, ITLOS gave no authority for this rather strict reading of Article 60(4). 21 22 23 19 20

South China Sea (n 6) para 1035. Ibid paras 996–1009 and 1036–7. Ibid paras 1036–43. Arctic Sunrise (n 5) para 211. Ibid paras 212–15.

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In Arctic Sunrise, ITLOS also ruled that, where a breach of the coastal state’s laws was committed on an artificial island, installation or structure or in a safety zone around it, that state could take enforcement action only on that artificial island, installation or structure or within its safety zone: beyond that zone, enforcement was possible only if carried out in the exercise of hot pursuit from the zone.24 That may be too narrow a reading of a coastal state’s law enforcement powers. 3.3

Other Coastal State Rights in the EEZ

Article 56(1)(c) of UNCLOS provides that, in addition to those rights listed in paragraphs (a) and (b) of Article 56(1), a coastal state also has in its EEZ ‘other rights and duties provided for in this Convention’. The principal rights that would appear to be referred to here are those that a coastal state has in its contiguous zone25 – if indeed it claims such a zone (and by no means all states do), since the con­tiguous zone is coterminous with the inner 12 nm of the EEZ; and the right of hot pursuit provided for by Article 111 of UNCLOS. International courts and tribunals have considered various other possible rights that a coastal state might have in its EEZ. The first occasion on which that was done was the Saiga (No 2) case. This concerned the seizure by Guinea of the Saiga, a tanker registered in St Vincent, for alleged violation of Guinea’s customs legislation following the supply of fuel oil by the tanker to several vessels fishing in Guinea’s EEZ. Guinea sought to justify its seizure of the Saiga by arguing that it was entitled to extend its customs legislation to its EEZ. That argument was roundly rejected by ITLOS, which pointed out that under UNCLOS, a coastal state’s legislative jurisdiction relating to customs matters was limited in the EEZ to artificial islands, installations and structures.26 Guinea also invoked Article 58(3) of UNCLOS, which provides that other states, in exercising their rights and performing their duties in the EEZ, must comply with ‘other rules of international law insofar as they are not incompatible with’ Part V of UNCLOS. Guinea argued that the ‘other rules of international law’ included an alleged right of self-protection (or public interest) and the doctrine of necessity. ITLOS firmly rejected that argument. An alleged right of self-protection would allow Guinea to prohibit any activities in its EEZ that affected its ‘economic “public interest” or entail[ed] “fiscal losses”

Ibid para 244. For such rights, see UNCLOS Article 33. 26 Saiga (No 2) case (n 2) para 127. That finding was upheld by ITLOS in Virginia G and applied equally to tax laws: see Virginia G (n 3) para 233. 24 25

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to it’. That was clearly incompatible with Articles 56 and 58 of UNCLOS, and would unjustifiably curtail the rights of other states in the EEZ.27 As for the doctrine of necessity, ITLOS, relying on the case law of the International Court of Justice (ICJ), found that the conditions for the doctrine of necessity to be apply were not satisfied.28 In their pleadings in Saiga, both parties discussed the practice of bunkering – that is, the supply of fuel oil by a tanker to other vessels. The practice is controversial because it obviates the need for vessels that are running low on fuel to call at a port in a nearby coastal state, thereby depriving the latter of potential tax revenues. Guinea argued that it is within the powers of a coastal state to regulate bunkering in its EEZ. St Vincent, by contrast, contended that bunkering is included in the navigational rights of other states in the EEZ. ITLOS found that it was not necessary to decide between those competing positions.29 However, in the later Virginia G case, which concerned the bunkering of fishing vessels in Guinea-Bissau’s EEZ by a tanker registered in Panama, ITLOS held that: the regulation by a coastal State of bunkering of foreign vessels fishing in its [EEZ] is among those measures which the coastal State may take in its [EEZ] to conserve and manage its living resources under Article 56 of the [Law of the Sea] Convention read together with Article 62, paragraph 4, of the Convention.30

ITLOS also held that a coastal state was entitled to charge a fee ‘for services rendered in connection with the authorization of bunkering’,31 but implied that it would be impermissible for a coastal state to seek to impose a tax on bunkering in the EEZ – thus confirming its position in Saiga (No 2).32 On the question of coastal-state competence to regulate the bunkering of vessels other than fishing vessels, ITLOS observed that the coastal state did not have such competence unless ‘otherwise determined in accordance with the Convention’.33 Saiga (No 2) case (n 2) paras 130–1. Ibid paras 132–35. 29 Ibid para 138. In Saiga (No 1), ITLOS put forward various arguments for and against the regulation of bunkering being included in a coastal state’s EEZ rights, but ultimately did not decide among them: see M/V ‘Saiga’ (No 1) Case (St Vincent and the Grenadines v Guinea), ITLOS Reports 1997, 16 (paras 56–9). 30 Virginia G (n 3) para 217. 31 Ibid para 234. 32 Saiga (No 2) (n 2) para 127. 33 Virginia G (n 3) para 223. Anderson has argued for a case-by-case approach to determining whether a coastal state has the right to regulate bunkering: see D. Anderson, ‘Coastal State Jurisdiction and High Seas Freedoms in the EEZ in the Light of the Saiga Case’ in C.R. Symmons (ed), Selected Contemporary Issues in the Law of the Sea (Martinus Nijhoff 2011), 105–15, 110–15. 27 28

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ITLOS made no such determination, thus effectively leaving the question open for a later court or tribunal. A different kind of potential ‘other’ coastal state right was considered by ITLOS in Arctic Sunrise. This concerned the powers of a coastal state to respond to a terrorist act directed at an installation in its EEZ. ITLOS held that a coastal state is entitled to seize a ship within the safety zone around the installation where a terrorist offence has been committed; but that there is no right to do so in the EEZ beyond that zone ‘where such action would not otherwise be authorised by’ UNCLOS.34 The only example that ITLOS gave of such possible authorization was hot pursuit. ITLOS considered a coastal state would also be able to take preventive action against a terrorist attack on an installation, because that would involve direct interference with the exercise of a coastal state’s sovereign rights to exploit the non-living resources of its seabed; but found it unnecessary in the context of the case to ‘determine the extent of any power to take such preventive action’.35 Apart from action against terrorism, a coastal state also has the power (as all states do) to board foreign ships in its EEZ if they are suspected of being engaged in piracy, slave trade or unauthorized broadcasting; and, where its suspicions are confirmed, to take repressive measures against such ships engaged in piracy or unauthorized broadcasting. Those powers derive from Articles 105 (piracy), 109 (unauthorized broadcasting) and 110 (boarding) of UNCLOS, which apply in the EEZ by virtue of Article 58(2) of UNCLOS, as explained below.

4.

THE RIGHTS OF OTHER STATES

The second major element of the EEZ regime concerns the rights that UNCLOS accords to other states within a coastal state’s EEZ. Article 58(1) provides that other states shall enjoy the high-seas freedom of navigation, overflight and the laying of submarine cables and pipelines, as well as ‘other internationally­ lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention’. International courts and tribunals have not yet had occasion to consider the rights of overflight and the laying of submarine cables and pipelines and other internationally­lawful uses of the sea related to them; but they have discussed navigation and related uses to some degree.

Arctic Sunrise (n 5) para 278. Ibid para 314.

34 35

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One issue that has arisen is whether bunkering is an ‘internationally­lawful use of the sea related to’ navigation. In the Saiga and Virginia G cases, which both involved the bunkering of fishing vessels, the applicants – St Vincent and Panama respectively – argued that it was. In Saiga, ITLOS found that it was not necessary to answer the question.36 In Virginia G, as noted, ITLOS held that the bunkering of fishing vessels in the EEZ falls within the regulatory competence of the coastal state, and therefore by implication is not an internationally lawful use of the sea related to navigation – but it left open the question of whether the position is different for ships other than fishing vessels.37 In the subsequent Norstar case, ITLOS held that the bunkering of mega-yachts on the high seas comes within the high-seas freedom of navigation, which it noted applies also in the EEZ under Article 58(1) of UNCLOS.38 That suggests that if a relevant case comes before it in the future, ITLOS may well decide that the bunkering of ships other than fishing vessels in the EEZ is an internationally lawful use of the sea related to navigation. An activity not unrelated to bunkering is a ship-to-ship (STS) transfer, where an oil tanker transfers part of its cargo of oil to another tanker while at sea. In San Padre Pio, which was pending before an Annex VII arbitral tribunal at the time of writing, applicant Switzerland argues that STS transfers in the EEZ are an internationally lawful use of the sea related to navigation. At the outset of the proceedings, before the Annex VII tribunal had been constituted, Switzerland requested ITLOS to make an order of provisional measures, to which it acceded. In its order, ITLOS observed that Switzerland’s ‘claims that bunkering activities carried out by the M/T “San Padre Pio” in the EEZ of Nigeria are part of the freedom of navigation and that it has exclusive jurisdiction as flag State with respect to such bunkering activities’ appear to be ‘plausible’.39 ITLOS gave no reasons to support its view, other than noting that it had taken into account the legal arguments of the parties and the evidence available to it. It is unfortunate that ITLOS here conflated STS transfers with bunkering, when, as pointed out above, the two are separate kinds of activity. It is also confusing because the defendant state, Nigeria, argues that the San Padre Pio was in fact engaged in bunkering, and not a STS transfer, as

See n 29 above. See ns 30–3 above. 38 The M/V ‘Norstar’ Case (Panama v Italy), Judgment, ITLOS Reports 2019 (not yet reported), paras 219–20. 39 The M/T ‘San Padre Pio’ Case (Switzerland v Nigeria), Order, ITLOS Reports 2019 (not yet reported), paras 107–8. 36 37

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Switzerland claims. It remains to be seen whether the Annex VII tribunal will agree with ITLOS.40 What is definitely included within the scope of internationally lawful uses of the sea related to navigation is protest at sea by ships. In Arctic Sunrise, ITLOS found that ‘[p]rotest at sea is an internationally lawful use of the sea related to the freedom of navigation’, as it is ‘necessarily exercised in conjunction with freedom of navigation’.41 However, the right to protest, which derives from the freedoms of expression and assembly recognised in several human rights treaties, is subject to certain limitations – in particular Article 88 of UNCLOS, which provides that the high seas shall be reserved for peaceful purposes; and Article 58(3) (discussed below), which requires states exercising their right of navigation in another state’s EEZ to show due regard to the coastal state’s rights and duties, and to comply with its laws adopted in conformity with UNCLOS:42 At the same time the coastal State should tolerate some level of nuisance through civilian protest as long as it does not amount to an ‘interference with the exercise of its sovereign rights’. Due regard must be given to rights of other States, including the right to allow vessels flying their flag to protest.43

In Arctic Sunrise, the protest at issue was by Greenpeace against Russia’s hydrocarbon activities in the Arctic. Other activities that have been the subject of protest at sea include whaling and the dumping of toxic waste. While ITLOS’s recognition in Arctic Sunrise of a right of protest is welcome, its prescription for the balancing of that right with coastal state rights may not be easy to apply in practice.44 Article 58(2) provides that Articles 88–115 of UNCLOS, found in Part VII on the high seas, and ‘other pertinent rules of international law’, apply in the EEZ, ‘in so far as they are not incompatible with’ Part V. As regards the former category of rules, international courts and tribunals have specifically found the following provisions of UNCLOS to apply within the EEZ: Article 88 (reser-

40 Further on the question of bunkering and STS transfers in the EEZ, see D. Testa, ‘Coastal State Regulation of Bunkering and Ship-to-Ship (STS) Oil Transfer Operations in the EEZ: An Analysis of State Practice and Coastal State Jurisdiction under the LOSC’ (2019) 50 Ocean Development & International Law 363–86. 41 Arctic Sunrise (n 5) para 227. 42 Ibid para 228. 43 Ibid para 328. 44 See further J. Mossop, ‘Protests against Oil Exploration at Sea: Lessons from the Arctic Sunrise Arbitration’ (2016) 31 The International Journal of Marine and Coastal Law 60–87.

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vation of the high seas for peaceful purposes);45 Article 91 (the nationality of ships;46 Article 92 (the flag state’s exclusive jurisdiction);47 Article 94 (flag state obligations);48 Article 97 (reservation of jurisdiction over collisions and other incidents of navigation to the flag state);49 Article 110 (right of visit);50 and Article 111 (hot pursuit).51 As has been seen, Article 58(1) spells out the rights of other states in the EEZ. UNCLOS contains no direct indication that other states might have rights additional to those listed in Article 58(1). This question has been by considered by two Annex VII arbitral tribunals, which adopted rather different approaches. In South China Sea, the tribunal observed that UNCLOS is ‘comprehensive in setting out the nature of the [EEZ]…and the rights of other States within [it]’.52 It considered that the ‘express inclusion [in UNCLOS] of an article setting out the rights of other States’ (ie, Article 58), and the attention given by UNCLOS to the rights of other states in the allocation of excess catch, ‘preclude the possibility that the Convention intended for other States to have rights in the [EEZ] in excess of those specified’.53 UNCLOS thus superseded earlier rights and agreements that were incompatible with its provisions. Accordingly, the tribunal found that historic rights to living and non-living resources and traditional fishing rights that had been established in areas that became the EEZs of other states did not survive the entry into force of UNCLOS, because they were incompatible with the coastal state’s rights.54 On the other hand, the tribunal suggested that rights that other states had acquired in areas that became EEZs, which were compatible with UNCLOS, continued after the entry into force of UNCLOS, by virtue of Article 311(2).55

Arctic Sunrise (n 5) para 228. Request for an Advisory Opinion by the Sub-Regional Fisheries Commission, Advisory Opinion of 2 April 2015, ITLOS Reports 2015, 4 (para 111). 47 Ibid; and Arctic Sunrise (n 5) para 231. 48 Advisory Opinion (n 46) para 111. 49 Arctic Sunrise (n 5) para 304. 50 Ibid paras 237–41. 51 Saiga (No 2) (n 2) paras 145–46; and Arctic Sunrise (n 5) paras 244–45. 52 South China Sea (n 6) para 246. 53 Ibid para 243. 54 Ibid paras 235–62 and 803–4. 55 Ibid para 238. According to Article 311(2), UNCLOS does not alter the rights and obligations of states parties that arise from other agreements compatible with UNCLOS and that do affect the enjoyment by other states parties of their rights or the performance of their obligations under UNCLOS. 45 46

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In Chagos MPA, decided one year before South China Sea, the tribunal took a rather different approach. It began by noting that Articles 2(3) and 56(2) of UNCLOS: make reference to ‘other rules of international law’ or an obligation [on the coastal state in its EEZ] to ‘have due regard to the rights and duties of other States’. These provisions require the Tribunal to consider Mauritius’ legal rights as they otherwise arise as a matter of international law, as well as Mauritius’ rights arising under the Convention.56

There is some ambiguity in this passage – not least because the tribunal brackets together Article 2(3) (which relates to the territorial sea) and Article 56(2) (which relates to the EEZ). What the tribunal appears to be saying is that the reference to other states’ rights in Article 56(2) includes not only rights under UNCLOS, but also other rights under international law. That is borne out by the fact that the tribunal goes on to state: ‘[F]or the purposes of Articles 2(3) and 56(2), the Tribunal considers the rights at issue to be those originating in legally binding undertakings given by the UK to Mauritius in 1965.’57 The tribunal found that there were three such rights of Mauritius in the 200-nm zone around the Chagos Archipelago (which was administered by the UK). They were fishing rights (although the tribunal lacked the jurisdiction to determine the scope of those rights); mineral rights in the seabed and subsoil around the archipelago; and a right to the eventual return of the archipelago when no longer needed for defence purposes. It is difficult to see how the last of these can be a right exercisable in the EEZ in the way that, say, navigation or overflight are. As for Mauritius’s second right, one would have thought that that it would have come under the continental shelf regime rather than the EEZ regime. In anything other than the colonial situation of the Chagos Archipelago, it is unlikely that the right would have survived the entry into force of UNCLOS, as it is incompatible with the coastal state’s rights. Be that as it may, the tribunal in Chagos MPA appears to accept that a state could have rights in another state’s EEZ other than those listed in Article 58(1) – a position very different from that taken by the tribunal in South China Sea. The latter tribunal, however, sought to distinguish Chagos MPA on the basis that the UK had repeated its 1965 undertakings after establishing a 200-nm zone around the Chagos Archipelago; and because that zone was not an EEZ.58 As regards the latter point, it is true that the UK had claimed an Environmental Protection and Preservation Zone and a Fisheries Conservation

Chagos MPA (n 4) para 293. Ibid para 294. 58 South China Sea (n 6) para 260. 56 57

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and Management Zone, rather than an EEZ, around the Chagos Archipelago; nevertheless, the tribunal in Chagos MPA considered the UK’s obligations in terms of the EEZ regime, and specifically found the UK bound by the ‘due regard’ obligation in Article 56(2) (discussed below). A further point of distinction for the South China Sea tribunal was that it considered the UK’s undertakings to Mauritius to be a modification of UNCLOS between them in accordance with Article 311(3) and (4) of UNCLOS.59 It seems possible to conclude from this jurisprudence that a state may have rights other than those listed in Article 58 of UNCLOS in the EEZ of another state if: (1) they derive from a pre-existing treaty or customary international law applying in an area that subsequently has become part of that other state’s EEZ and are compatible with UNCLOS; (2) they have unilaterally been granted to it by that other state following the latter’s establishment of its EEZ and are compatible with UNCLOS; or (3) they are contained in an agreement between it and the other state that modifies UNCLOS between them in accordance with the requirements of Article 311(3) and (4).

5.

MECHANISMS FOR ADDRESSING POTENTIAL CONFLICTS BETWEEN THE RIGHTS OF THE COASTAL STATE AND THE RIGHTS OF OTHER STATES60

There is considerable potential for conflict between those rights attribut­ed by UNCLOS to the coastal state in the EEZ and those attributed to other states. The third major element of the EEZ regime concerns the mechanisms provided by UNCLOS for addressing such conflicts. First, UNCLOS provides a few specific mechanisms for regulating potential conflicts. For example, paragraphs 3 and 7 of Article 60 are designed to avoid conflicts between the right of the coastal state to construct artificial islands, installations and structures, and the navigational rights of other state, by requiring the coastal state to give due notice of the construction of such objects, to provide permanent means for warning of their presence once constructed and not to construct such objects in areas that would cause interference ‘to the use of recognized sea lanes essential to international navigation’. Similarly, the coastal state’s powers of pollution control are carefully spelled out in Part XII in order to minimize interference

Ibid. See also A. Proelss, ‘The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited’ (2012) 26 Ocean Yearbook 87–112. 59 60

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with foreign shipping. None of these specific mechanisms has yet been at issue in international litigation. As well as such specific provisions designed to avoid conflicts between the rights of the coastal state and other states, UNCLOS contains a general mechanism for seeking to avoid conflict which has been the subject of judicial consideration. This is the reciprocal ‘due regard’ obligation set out in Articles 56(2) and 58(3).61 In exercising its rights and performing its duties in the EEZ, a coastal state is required by Article 56(2) to have ‘due regard to the rights and duties of other States’. Likewise, in exercising their rights and performing their duties in the EEZ, other states are required under Article 58(3) to have ‘due regard to the rights and duties of the coastal State’. Furthermore, other states ‘shall comply with laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with’ Part V of UNCLOS. The meaning and scope of the ‘due regard’ obligation in Article 56(2) were considered by the arbitral tribunal in Chagos MPA. While not finding in that obligation ‘any universal rule of conduct’, the tribunal observed that the obligation requires a coastal state ‘to have such regard for the rights’ of another state ‘as is called for by the circumstances and by the nature of those rights’. That does not mean that any impairment of the other state’s rights must be avoided; but neither does it permit the coastal state to proceed as it wishes: Rather, the extent of the regard required by the Convention will depend on the nature of the rights held by [the other state], their importance, the extent of the anticipated impairment, the nature and importance of the activities contemplated by the [coastal state], and the availability of alternative approaches. In the majority of cases, this assessment will necessarily involve at least some consultation with the rights-holding State.62

In the present case the UK’s obligation of due regard ‘entail[ed], at least, both consultation [with Mauritius] and a balancing exercise with its own rights and interests’.63 The tribunal found that the UK had failed to consult Mauritius properly or to have balanced its own rights and interests with those of Mauritius – particularly because the latter’s rights had been significantly affected by the establishment of the MPA around the Chagos Archipelago, as 61 Further on this obligation, see C. Beaucillon and Y. Kerbat (eds), ‘Special issue. Peaceful and Military Uses of the EEZ: Exploring the “Due Regard” Obligation’ (2019) 34 The International Journal of Marine and Coastal Law 1–165; and J. Gaunce, ‘On the interpretation of the general duty of “due regard”’ (2018) 32 Ocean Yearbook 27–59. 62 Chagos MPA (n 4) para 519. 63 Ibid para 534.

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the condition of the archipelago would be affected when eventually returned to Mauritius.64 The UK had therefore breached its obligation of due regard under Article 56(2).65 The ‘due regard’ obligation in Articles 56(2) and 58(3) was also considered, albeit briefly, in Arctic Sunrise and South China Sea. In the former, the tribunal noted that a ship registered in one state engaged in protest in another state’s EEZ in the exercise of its right to an internationally lawful use of the sea related to navigation is required to have due regard to the rights and duties of the coastal state.66 Conversely, a coastal state, when exercising its sovereign rights, must show due regard to another’s state’s right to protest if that does not amount to interference with its sovereign rights.67 Without commenting further on the nature of the due regard obligation, the tribunal found that Russia had breached Article 56(2) in arresting the Arctic Sunrise at a time when the ship was not interfering with its (Russia’s) rights; and that Russia had no legal basis for its arrest.68 Here the situation appears to have been less one of a (potential) conflict of rights than a straightforward denial by Russia of the Netherlands’ rights, through the purported exercise of rights that it (Russia) did not possess. In South China Sea the tribunal found that China had breached its obligation under Article 58(3) to have due regard to the fisheries rights of the Philippines in the latter’s EEZ by not exercising due diligence to prevent its fishermen from fishing there illegally. In so finding, the tribunal quoted – seemingly with approval – the observations of the Chagos MPA tribunal referred to above.69 As with Arctic Sunrise – but this time with the roles of the coastal and the other state reversed – this case appears to have been less one of a (potential) conflict of rights than a situation where the other state had purported to exercise rights that it did not possess in the coastal state’s EEZ, thereby violating the latter’s rights. The coastal state’s ‘due regard’ obligation under Article 56(2) arises when it is ‘exercising its rights and performing its duties under’ UNCLOS. In the pending San Padre Pio case mentioned earlier, Switzerland argues that the reference to ‘duties’ in Article 56(2) includes not only duties under UNCLOS, but also obligations under other treaties – in this case, the International Covenant on Civil and Political Rights and the Maritime Labour Convention.

64 In this analysis the tribunal appeared to assume that the UK had the right to establish a 200-nm MPA around the Chagos Archipelago. The UK may well have had such a right, but its legal basis is not self-evident and was not explained by the tribunal. 65 Chagos MPA (n 4) paras 534–36. 66 Arctic Sunrise (n 5) para 228. 67 Ibid para 328. 68 Ibid para 333. 69 South China Sea (n 6) paras 742–44 and 755–57.

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In its order of provisional measures, ITLOS did not comment on that argument.70 It remains to be seen how the Annex VII tribunal will respond. It is difficult to reconcile Switzerland’s argument with the text of UNCLOS, which speaks of the coastal state’s ‘duties under this Convention’ (emphasis added). Furthermore, in requesting the Annex VII tribunal to rule on whether Nigeria has complied with its obligations under the treaties mentioned, Switzerland would appear to be asking it to adjudicate on matters beyond its jurisdiction: under Article 288(1) of UNCLOS, its scope is limited to disputes concerning the interpretation or application of UNCLOS. There remain potential conflicts between coastal states and other states for which no specific mechanism is provided by UNCLOS and where the reciprocal obligation of due regard may be too general to be useful.71 For example, it is unclear whether and to what extent a coastal state may, as part of its sovereign rights to exploit and manage living resources, also regulate foreign shipping in order to minimize conflicts with fishing in its EEZ – for example, by requiring ships to avoid areas where there are fixed nets or that are important spawning and nursery grounds for fish.72 International courts have yet to be asked to adjudicate on such matters. To date, most EEZ conflicts between coastal and other states have primarily concerned disputes over whether a claimed right is in conformity with UNCLOS (eg, the regulation of bunkering in Virginia G; the law enforcement powers of the coastal state in Arctic Sunrise), rather than the exercise of two sets of rights (one attributed to the coastal state, the other to another state) that are unambiguously in conformity with UNCLOS.

6.

THE ATTRIBUTION OF OTHER RIGHTS IN THE EEZ73

In attributing rights in the EEZ to the coastal state and to other states, UNCLOS has covered the more obvious uses of the EEZ. There may, however, be some uses of the EEZ that do not fall within the rights of either the coastal state or

San Padre Pio (n 39) para 50. Proelss argues that in such cases there should be a rebuttable presumption that the coastal state’s rights take priority: see Proelss (n 60) 98–109. However, in light of the subsequent Chagos MPA, Arctic Sunrise and South China Sea cases, it is doubtful that such an argument can be sustained. 72 See further on this issue, W.T. Burke, ‘Exclusive Fisheries Zones and Freedom of Navigation’ (1983) 20 San Diego Law Review 595–623. 73 On this question, see further S. Karagiannis, ‘L’article 59 de la Convention des Nations Unies sur le droit de la mer (ou les mystères de la nature juridique de la zone économique exclusive)’ (2004) 37 Revue Belge de Droit International 325–418. 70 71

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other states – for instance, the emplacement of underwater listening devices to detect submarines, jurisdiction over buoys used for purely scientific research and STS transfers of oil. De­velopments in technology may produce further examples. What is the legal posi­tion in relation to such uses? Which states are to have the competence to enjoy and regulate them? UNCLOS does not give a precise answer. Instead it provides, in Article 59, a general formula for attributing rights in such cases. This is the final principal element in the legal nature of the EEZ regime contained in UNCLOS. Article 59 reads as follows: In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone, and a conflict arises between the interests of the coastal State and any other State or States, the conflict should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

Thus, where a conflict arises over unattributed rights, it is to be resolved on the basis of the extremely open-textured criteria listed in Article 59: equity, relevant circumstances, and the respective importance of the interests involved to the parties to the dispute as well as to the international community. There appears to be no presumption in favour of either the coastal state or other states: each case, as it arises, will have to be decided on its own merits on the basis of the above criteria. There are several possible mechanisms by which the conflicts referred to in Article 59 may be resolved, such as negotiations between the states concerned or the conclusion of a treaty between them. A further mechanism would be a decision by an international court or tribunal. To date, however, there has been no consideration of Article 59 by such a body. In Virginia G, Judge Nelson thought that it was ‘strange’ that, in relation to the question of bunkering, little regard had been paid to Article 59 in the proceedings in the case.74

7.

APPROACHES TO INTERPRETATION

International courts and tribunals have considered the meaning of various provisions of UNCLOS concerning EEZs in five cases to date.75 Two of those case (Saiga (No 2) and Virginia G) were decided by ITLOS; the other three (Chagos MPA, Arctic Sunrise and South China Sea) by arbitral tribunals con Virginia G (n 3) Declaration of Judge Nelson, paras 8–10. The order of provisional measures by ITLOS in San Padre Pio is excluded from the scope of this survey because the nature of provisional measures proceedings is such that it is unrealistic to expect a court or tribunal to engage in any considered interpretation of the substantive provisions of UNCLOS. 74 75

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stituted in accordance with Annex VII of UNCLOS. What is striking about all these cases is how little ITLOS and the tribunals have referred to the methods of interpretation set out in the Vienna Convention on the Law of Treaties (VCLT); and how frequently they have asserted what a provision means without citing any authority or reasoning, based on acknowledged methods of interpretation, to support their view – even though the EEZ provisions at issue in these cases may have more than one possible meaning. Looking first at the record of ITLOS, in neither of the cases in which it has interpreted provisions of UNCLOS concerning the EEZ did it refer to the VCLT. In Saiga (No 2), the one EEZ issue that ITLOS had to determine was the extent to which a coastal state could apply its customs legislation in its EEZ. In answering that question, ITLOS essentially applied the ordinary meaning of the relevant UNCLOS provisions, read in their context – in other words, applying part of Article 31(1) of the VCLT as a method of interpretation, although it did not articulate its approach in those terms. The same was true of its approach in Virginia G to the question of whether a coastal state may regulate the bunkering of foreign fishing vessels in its EEZ: as ITLOS put it, Part V of UNCLOS ‘gives sufficient guidance concerning the question’.76 In addition, ITLOS supported its reading of UNCLOS with reference to a number of treaties and examples of state practice.77 At first sight, it might seem that ITLOS was applying Articles 31(3)(a) and (b) of the VCLT, without specifically referring to those provisions. However, the treaties cited by ITLOS are not ‘subsequent agreements’ of the kind referred to in Article 31(3)(a): most are regional agreements between limited numbers of UNCLOS parties and some predate the entry into force of UNCLOS. Likewise, the state practice cited by UNCLOS is not ‘subsequent practice’ within the meaning of Article 31(3)(b), as it concerns the practice of ‘several’ states only78 – not the practice of UNCLOS parties collectively establishing their agreement as to the meaning of UNCLOS.79 As mentioned, three separate, and differently constituted, arbitral tribunals have been faced with the interpretation of provisions of UNCLOS concerning EEZs. In chronological order, the first is Chagos MPA. Here the tribunal had to consider two issues: (1) the extent to which other states may have rights in

Virginia G (n 3) para 209. Ibid paras 216–19. 78 Ibid para 218. 79 Further on Articles 31(3)(a) and (b) of the VCLT, see A. Aust, Modern Treaty Law and Practice (3rd edn Cambridge University Press 2013) 212–16; and International Law Commission, Draft Conclusions on Subsequent Agreements and Subsequent Practice in relation to the Interpretation of Treaties, Report on the Work of the Seventieth Session, UN Doc A/73/10 (2018), para 51. 76 77

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the EEZ in addition to those listed in Article 58(1) of UNCLOS; and (2) the meaning of ‘due regard’ in Article 56(1). On the first issue, the tribunal simply assumed that other states could have such rights,80 even though that is by no means clear from the text of UNCLOS. That lack of clarity is shown by the fact that, as noted, the tribunal in the subsequent South China Sea case took a very different view of the question.81 As of the meaning of ‘due regard’, the Chagos MPA tribunal headed a sub-section of its award ‘The Interpretation of Article 56(2)’. This comprises just two paragraphs (518 and 519). The first consists largely of setting out the text of Article 56(2). The second paragraph, running to ten lines, contains the tribunal’s view of what it calls ‘the ordinary meaning’ of the provision. The tribunal cites no authority for its view and makes no reference, explicit or otherwise, to received canons of interpretation. That seems remarkable, given the open-textured nature of Article 56(2) and the fact that the phrase ‘due regard’, used in several places in UNCLOS, had never previously been considered by an international court. Further, it was not as if the issue had been ignored in the parties’ pleadings, so the tribunal could not claim that it had received no guidance from them. Mauritius had referred to the travaux préparatoires, case law of the ICJ and arbitral tribunals, and the Virginia Commentary;82 while the UK had relied primarily on the context of Article 56(2) and the Virginia Commentary.83 Moreover, the tribunal’s treatment of Article 56(2) stands in stark contrast to its consideration of the meaning of some of the provisions of UNCLOS relevant to the question of its jurisdiction – notably Article 297, where the tribunal engaged in a detailed examination of the travaux préparatoires.84 In Arctic Sunrise, the tribunal had to consider the nature of safety zones around installations and the scope of a coastal state’s rights to take enforcement action against foreign vessels interfering with its installations and rights to the non-living resources of the seabed. Indeed, the tribunal made several pronouncements on those matters. In most instances, it simply asserted what it considered the law to be, without giving any reasons for its views or engaging in any kind of exercise in treaty interpretation, even though the meaning of several of the provisions at issue was by no means clear or unequivocal. There were two exceptions here. First, in relation to a coastal state’s powers Chagos MPA (n 4) paras 293, 296–68, 304, 521 and 534–55. See text at notes 52–55 above. 82 Memorial of Mauritius, 131–38 and Reply, 176–80. The Virginia Commentary refers to M. Nordquist (ed), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol II (Martinus Nijhoff 1993). 83 Counter-memorial of the UK, 224–25 and Rejoinder, 171–73. 84 Chagos MPA (n 4) paras 307–17. 80 81

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to take enforcement action against those interfering with its rights to seabed resources, the tribunal referred to the travaux préparatoires of the 1958 Geneva Convention on the Continental Shelf as the forerunner of the relevant provisions of UNCLOS. Second, the tribunal found that the right of protest at sea derives from the freedoms of expression and assembly found in several human rights treaties to which the Netherlands and Russia are parties. The tribunal’s economy in treaty interpretation might in part be explained by the fact that had Russia declined to take any part in the proceedings in the case. The tribunal was thus faced with having to examine all possible arguments that Russia might have deployed to justify its arrest of the Arctic Sunrise, had it taken part in the proceedings. Several of those arguments were hypothetical in the extreme, so it is perhaps understandable that the tribunal felt it unnecessary to go to any great lengths to support its interpretation of UNCLOS. However, the lack of such support may also mean that some of its assertions about the meaning of UNCLOS will carry limited weight in future cases. That brings us to the last case to date in which the EEZ provisions of UNCLOS have been the subject of judicial interpretation. In South China Sea, the tribunal had to consider three issues relating to the EEZ. Its most developed interpretation of these issues was in relation to the question of whether other states may have rights in a coastal state’s EEZ additional to those listed in Article 58(1) of UNCLOS, which it considered in the context of China’s claimed historic rights within the EEZ of the Philippines. Observing that there is no express provision in UNCLOS permitting other states to have additional rights in a coastal state’s EEZ, the tribunal considered whether there might nevertheless be an implication in UNCLOS to this effect. It did so by focusing on the wording and context of UNCLOS – indeed, paragraphs 240 et seq are headed ‘Text and Context of the Convention’ – to reach the conclusion that: [a]s a matter of the text alone, the Tribunal considers that the Convention is clear in according sovereign rights to the living and non-living resources of the [EEZ] to the coastal State alone... Furthermore, the Tribunal considers that, as a matter of ordinary interpretation, the (a) express inclusion of an article setting out the rights of other States and (b) attention given to the rights of other States in the allocation of excess catch preclude the possibility that the Convention intended for other States to have rights in the [EEZ] in excess of those specified.85

Further: [the tribunal] considers the text and context of the Convention to be clear in superseding any historic rights that a State may once have had in areas that now form part of the [EEZ] and continental shelf of another State. There is no ambiguity that South China Sea (n 6) para 243.

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would call for the Tribunal to have recourse to the supplementary means set out in Article 32 of the Vienna Convention. Nevertheless, in light of the sensitivity of the matters at issue in these proceedings, the Tribunal considers it warranted to recall the origin of and purpose behind the Convention’s provisions on the [EEZ] and continental shelf.86

The tribunal then went on to examine the negotiating history of UNCLOS, which it saw as strongly supporting its interpretation. That was followed by a consideration of the relevant case law of the ICJ and arbitral tribunals. The other EEZ matters that were dealt with by the tribunal in South China Sea were considered much more briefly. On the obligation of ‘due regard’, the tribunal appeared to be content to follow the interpretation of the tribunal in Chagos MPA.87 On the question of artificial islands, installations and structures, the tribunal considered that UNCLOS ‘is clear with respect to the law governing’ such objects.88 Thus, no interpretation was called for. Given some of the questions raised earlier about the meaning of Article 60, the tribunal’s observation is somewhat surprising. Its rather cursory treatment here contrasts with its interpretation of one of the non-EEZ provisions of UNCLOS that it also had to consider – Article 121(3) (on uninhabitable rocks) – where the tribunal employed the full range of interpretative methods set out in the VCLT in a detailed analysis of the meaning of Article 121(3), running to nearly 30 pages of its award. Of the cases where the meaning of the EEZ provisions of UNCLOS has been considered by international courts and tribunals, South China Sea provides the only instance to date where any explicit reference has been made to the VCLT. Otherwise, ITLOS and the arbitral tribunals have been content to assert what they consider to be the ‘ordinary meaning’ of the relevant provisions, sometimes backed up by reference to the context of those provisions – even though in many instances there is room for legitimate doubt as to whether a provision has an ‘ordinary meaning’ from which there could be no plausible dissent. In essence, that approach of ITLOS and the tribunals represents a partial application of Article 31(1) of the VCLT, but completely ignores other aspects of treaty interpretation set out in the VCLT.

8. CONCLUSIONS In the quarter of a century that UNCLOS has been in force, international courts and tribunals have interpreted various unclear and ambiguous provisions Ibid para 247. Ibid para 742. 88 Ibid para 1031. 86 87

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relating to EEZs – in particular, concerning a coastal state’s powers to enforce its legislation relating to its sovereign rights over the non-living resources of the seabed; its powers to regulate bunkering in the EEZ; whether other states may have rights in a coastal state’s EEZ additional to those listed in Article 58(1); and the mutual ‘due regard’ obligation in Articles 56(2) and 58(3). In engaging in such interpretation, international courts and tribunals have, with one exception, never referred to the VCLT; nor have they applied the full range of interpretative methods set out in the VCLT. Here it is probably fair to say they have not acted so very differently from most other international courts and tribunals that have been faced with questions of treaty interpretation. There remain many EEZ-related provisions of UNCLOS whose meaning is uncertain or ambiguous. These include the scope and application of Article 59; whether the freedom of navigation and internationally lawful uses of the sea related thereto includes the right of foreign warships to conduct naval manoeuvres and weapons exercises in a coastal state’s EEZ;89 and whether monitoring devices laid on the seabed of an EEZ by other states are ‘structures’, thereby requiring the consent of the coastal state, or fall within the freedom to lay cables and pipelines and associated uses.90 Whether and when any of these (and other) uncertain questions concerning EEZs will ever be clarified by international courts and tribunals remains to be seen. This will depend in part on accidents of litigation and how willing states are to see these questions resolved. It may be that some states will wish to preserve the ambiguity, rather than seeing their preferred position – for example, on weapons exercises in the EEZ – rejected by an international court.

89 See, for example, M.J. Valencia and K. Akimoto, ‘Guidelines for Navigation and Overflight in the Exclusive Economic Zone’ (2006) 30 Marine Policy 704–11; and J.M. Van Dyke, ‘Military Ships and Planes operating in the Exclusive Economic Zone of Another Country’ (2004) 28 Marine Policy 29–39. 90 See, for example, T. Treves, ‘Military Installations, Structures and Devices on the Seabed’ (1980) 74 American Journal of International Law 808–57; R. Zedalis, ‘Military Installations, Structures and Devices on the Seabed: A Response’ (1981) 75 American Journal of International Law 926; and T. Treves, ‘Reply’, ibid, 933–35.

4. Legislative and enforcement jurisdiction of the coastal state with respect to fisheries in the exclusive economic zone Nigel Bankes 1. INTRODUCTION How have international courts and tribunals interpreted the provisions of the United Nations Convention on the Law of the Sea (UNCLOS)1 dealing with the legislative and enforcement jurisdiction of coastal states concerning fisheries in the exclusive economic zone (EEZ)?2 The recognition of the concept of the EEZ was one of the principal innovations of UNCLOS.3 Once established, an EEZ reserves to its coastal state the exclusive right to control access to living resources previously open to all.4 It is a sui generis zone insofar as the

United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3. Chapter 5 of this book specifically deals with the jurisprudence related to the management of shared, straddling and highly migratory stocks. The obligations of flag states are examined in Chapter 6. 3 The rights of a coastal state enumerated in Articles 56 and 68 of UNCLOS were solidified as customary law before the adoption of UNCLOS. See, for example, R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd edn Manchester University Press 1999) 161. Specialized literature on the EEZ includes D. Attard, The Exclusive Economic Zone in International Law (Oxford University Press 1987); B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Martinus Nijhoff 1989); and F. Orrego Vicuña, The Exclusive Economic Zone: Regime and Legal Nature under International Law (Cambridge University Press 1989). 4 A.H. Hoel et al, ‘Ocean Governance and Institutional Change’ in S. Ebbin et al (eds), A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources (Springer 2005) 3; Churchill and Lowe, The Law of the Sea (n 3) 176–77; A. Proelss, ‘The Law on the Exclusive Economic Zone in Perspective: Legal Status and Resolution of User Conflicts Revisited’ (2012) 26 Ocean Yearbook 87. 1 2

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exclusive rights of the coastal state with respect to certain other matters coexist with some remaining freedoms of the high seas.5 In many cases, the relationship between the rights of the coastal state and the freedoms of the high seas is mediated through open-textured terms such as ‘due regard’,6 ‘such measures as may be necessary’7 and ‘reasonable bond’;8 as well as the overarching ‘Castaneda Formula’ of Article 59, which instructs that, where rights or jurisdiction with respect to any matters have not been attributed by the text to the coastal state or other states, any resulting conflict ‘should be resolved on the basis of equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole’. This formula suggests that there should be no presumption in favour of either the coastal state or community interests in resolving new issues that may arise.9 Thus, it is hardly surprising that the drafters of UNCLOS envisaged that the compulsory dispute resolution provisions of its Part XV might be particularly significant in resolving disputes and offering interpretive guidance within this zone of conflict.10 Indeed, in one situation, Part XV offers a special remedy in the form of the institution of ‘prompt release’ to deal with the tension between the interests of flag states in ensuring that their vessels are not taken out of service for prolonged periods and the interests of the coastal state in ensuring the effective enforcement of its laws in relation to the conservation and management of the living resources of the EEZ.11 However, Article 297(3) also indicates that the coastal state cannot be required to submit to compulsory and binding dispute resolution with respect to its sovereign rights relating to 5 Articles 55, 58, 86 and 87 of UNCLOS. See G. Andreone, ‘The Exclusive Economic Zone’ in D. Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2014), 159–80, 162; Churchill and Lowe, The Law of the Sea (n 3) 166. 6 Articles 58(3), 60(3) and 234 of UNCLOS. 7 Articles 73(1) of UNCLOS. 8 Articles 73(2) and 292 of UNCLOS. 9 Andreone, ‘The Exclusive Economic Zone’ (n 5) 166, describes the rule in Article 59 as ‘one of the most controversial of the convention’. 10 See N. Klein, Dispute Settlement in the UN Convention on the Law of the Sea (Cambridge University Press 2005) 130–44. 11 Article 292 of UNCLOS. Although Article 292 is not limited to detention of vessels by coastal states enforcing their fisheries rules in the EEZ under Article 73, this has been the principal issue in the cases to date. Literature on the ‘prompt release’ cases includes T. Mensah, ‘The Tribunal and the Prompt Release of Vessels’ (2007) 22 The International Journal of Marine and Coastal Law 425; Klein, ibid 87–119; and D. Rothwell and T. Stephens, ‘Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests’ (2004) 53 International & Comparative Law Quarterly 171.

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fisheries in the EEZ.12 This suggests that the courts and arbitral tribunals may have quite limited ability to provide authoritative guidance as regards some of the most important EEZ provisions.13 After this brief introduction, Section 2 examines the basic jurisdictional issues with respect to fisheries matters as well as the related interpretive jurisprudence. Section 3 introduces the provisions of UNCLOS dealing with the legislative and enforcement jurisdiction of the coastal state with respect to fisheries. Section 4 considers the interpretive jurisprudence with respect to the coastal state’s legislative and enforcement jurisdiction, including a brief discussion of relevant prompt release cases. Section 5 concludes.

2.

FISHERIES ISSUES AND PART XV OF UNCLOS

2.1

Dispute Categories

Disputes concerning fisheries generally – and specifically the legislative and enforcement jurisdiction of the coastal state – are in principle subject to compulsory dispute resolution under Section 2 of Part XV of UNCLOS.14 However, this general proposition is subject to all the provisions of Section 1 of Part XV,15 and the specific exception in Article 297(3) to the effect that a coastal state is not obliged to accept compulsory and binding dispute resolution concerning any dispute relating to its sovereign rights with respect to the living resources in the EEZ, including disputes relating to ‘its discretionary powers for determining the allowable catch, its harvesting capacity, the alloca-

See further Section 2 below. R. Churchill, ‘The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?’ (2007) 22 The International Journal of Marine and Coastal Law 383. As Camille Goodman has observed, however, courts and tribunals still have some opportunity to comment on UNCLOS’s EEZ provisions as these issues come up indirectly in litigation, including in ‘prompt release’ cases and through advisory opinions. See C. Goodman, ‘Rights, Obligations, Prohibitions: A Practical Guide to Understanding Judicial Decisions on Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone’ (2017) 32 The International Journal of Marine and Coastal Law 1, 3. Still, as Rothwell and Stephens note, it would be a mistake to expect too much from tribunals in the context of prompt release cases, given that they are not designed to provide judgments on the merits. See Rothwell and Stephens, ‘Illegal Southern Ocean Fishing and Prompt Release: Balancing Coastal and Flag State Rights and Interests’ (n 11) 187. 14 See Article 297(3)(a) of UNCLOS. 15 Article 286 of UNCLOS establishes the pre-eminent role of Section 1, which allows the parties to agree to other means of dispute settlement which may (Article 282) or may not (Article 281) entail a binding decision. 12 13

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tion of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations’.16 This, as Burke points out, ‘is a rather large exception since it deals with the largest single area of coastal State fishing jurisdiction’.17 Others have voiced similar conclusions.18 The exception is in turn subject to the further provision that compulsory conciliation may be available in three specific instances; but many commentators take the view that the threshold for accessing compulsory conciliation (manifest failure or arbitrary refusal) will be very difficult to establish.19 A further qualification is that any such conciliation commission shall in no case ‘substitute its discretion for that of the coastal State’.20 To date, there have been no compulsory conciliation proceedings dealing with fisheries.21 Disputes concerning the law enforcement activities of the coastal state in the exercise of its sovereign rights or jurisdiction in relation to fisheries may also be exempted from compulsory and binding dispute resolution, but only if the coastal state makes an appropriate declaration under Article 298(1)(b) of UNCLOS – in which case, there is no recourse to compulsory conciliation. The EEZ regime does not apply to sedentary species, so the Article 297 caveat is not applicable to disputes arising with respect to such species.22 Similarly, Article 297 does not apply to claims brought by the coastal state concerning the obligations of others as regards the terms of fishing within its

Article 297(3) of UNCLOS. W. Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (1984) 63 Oregon Law Review 73, 117. 18 Klein, Dispute Settlement in the UN Convention on the Law of the Sea (n 10) 164–65; Churchill, ‘The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?’ (n 13) 388–89. 19 See, for example, T. Treves, ‘“Compulsory” Conciliation in the U.N. Law of the Sea Convention’, in V. Götz et al (eds), Liber Amicorum Günther Jaenicke – Zum 85 (Springer 1998), 611, 617–18; Churchill and Lowe, The Law of the Sea (n 3) 289; Andreone, ‘The Exclusive Economic Zone’ (n 5) 167; Churchill, ‘The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?’ (n 13) 389; and Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (n 17) 90–1. 20 Article 297(3)(c) of UNCLOS and Articles 6 and 7 of Annex V. 21 Compulsory conciliation procedure to date have dealt only with maritime boundary delimitation. See Report and Recommendations of the Compulsory Conciliation Commission Between Timor-Leste and Australia on the Timor Sea, 9 May 2018, PCA Case Nº 2016–10, https://​pcacases​.com/​web/​sendAttach/​2327, last accessed 10 December 2019. 22 Articles 68 and 77 of UNCLOS. See Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (n 17) 115–16. 16 17

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EEZ; or disputes concerning management of a transboundary stock on the high seas;23 or allegations that the coastal state has contravened the freedoms of other states under Article 58;24 or allegations that the coastal state is in breach of its obligations concerning the marine environment under Article 194. 2.2

Case Law Pertaining to Part XV and Fisheries

In the 2015 Chagos award, the arbitral tribunal rejected the attempt by the UK to characterize its decision to establish a marine protected area (MPA) around the Chagos Islands as a measure relating to fisheries in the EEZ and thus insulated from review under Article 297(3) of UNCLOS.25 The tribunal reached this decision principally on the grounds that the UK itself had ‘justified the measure in far broader terms’.26 Further, it noted that the UK had also justified the MPA in part by the need to protect coral – whereas coral is among the sedentary species excluded from the EEZ regime ‘and therefore beyond any possible application of Article 297(3)(a)’.27 In addition, the tribunal affirmed that it could assume jurisdiction insofar as the dispute pertained to the duty of all states, including the coastal state, to protect the marine environment under Article 194.28 The tribunal also declined to assume jurisdiction concerning Mauritius’ claim with respect to its asserted fishing rights within the Chagos Islands’ EEZ.29 It concluded that Mauritius could not avoid the implications of Article

23 Churchill, ‘The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?’ (n 13) 390. 24 Goodman, ‘Rights, Obligations, Prohibitions: A Practical Guide to Understanding Judicial Decisions on Coastal State Jurisdiction over Living Resources in the Exclusive Economic Zone’ (n 13) 565. 25 Chagos Marine Protected Area (Republic of Mauritius v United Kingdom), Award of 18 March 2015, RIAA XXXI (2018), 361, para 291. 26 Ibid para 286. 27 Ibid para 304. 28 Ibid para 302. This was also the opinion of the tribunal in the award on jurisdiction and admissibility in the South China Sea arbitration; see para 362 on the position of the Philippines and para 409, where the tribunal noted that Article 297(1)(c) expressly affirms the tribunal’s jurisdiction over disputes concerning the alleged violation of ‘specified international rules and standards for the protection and preservation of the marine environment’ in the EEZ. The tribunal reiterated this conclusion in its award on the merits (para 930). The awards are available on the website of the Permanent Court of Arbitration, www​.pcacases​.com/​web/​view/​7, last accessed 10 December 2019. 29 Chagos award (n 25) para 297.

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297(3) simply by characterizing the dispute as one pertaining to the rights of Mauritius rather than the sovereign rights of the coastal state: In nearly any imaginable situation, a dispute will exist precisely because the coastal State’s conception of its sovereign rights conflicts with the other party’s understanding of its own rights. In short, the two are intertwined, and a dispute regarding Mauritius’ claimed fishing rights in the [EEZ] cannot be separated from the exercise of the United Kingdom’s sovereign rights with respect to living resources.30

Furthermore, the tribunal concluded that any obligations that the UK might owe under Articles 63 (shared stocks) and 64 (highly migratory species) in its position as a coastal state were also exempt from scrutiny under Article 297(3) (a).31 However, Article 297(3)(a) would not serve as a shield to the extent that a dispute concerned the high-seas aspect of such a fishery.32 The tribunal also could find no textual support for the suggestion that Article 297(3) should be construed narrowly in the context of Article 63 and 64 so as to avoid the application of different dispute resolution regimes.33 This also meant that the tribunal had to decline jurisdiction under Article 300 insofar as a claim of abuse of rights pertained to these articles of UNCLOS.34 The award in the Arbitration between Barbados and Trinidad and Tobago35 is also of interest. Here, the tribunal observed that while it had jurisdiction to consider the possible effect of fishing activities on a delimitation line, it had no jurisdiction to establish a fisheries regime for an area that formed part of the EEZ of one of the contesting states. This followed from the actual dispute that the parties had referred to the tribunal, but also from Article 297(3) of UNCLOS.36 Worth noting also is the separate opinion of Judge Paik in the Advisory Opinion on IUU Fishing. He held that Section 2 of Part XV would apply to a dispute between coastal states with respect to their obligations to cooperate under Article 63(1) of UNCLOS dealing with shared stocks within each state’s

Ibid. Ibid para 300. 32 Ibid. 33 Ibid para 301. 34 Ibid para 303. 35 Arbitration between Barbados and the Republic of Trinidad and Tobago, relating to the delimitation of the exclusive economic zone and the continental shelf between them, decision of 11 April 2006, RIAA XXVII (2008), 147. 36 Ibid paras 215–17 and 276–83. 30 31

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EEZ.37 This is surely correct, and is also reflected in the award in the delimitation dispute between Barbados and Trinidad and Tobago.38 In the South China Sea Arbitration, the tribunal concluded that it could assume jurisdiction over the claim that China had violated the rights of the Philippines within the Philippines’ EEZ.39 As the tribunal noted, Article 297(3) (a) and the companion Article 298(1)(b) in respect of enforcement: serve to limit compulsory dispute settlement where a claim is brought against a State’s exercise of its sovereign rights in respect of living resources in its own [EEZ]. These provisions do not apply where a State is alleged to have violated the Convention in respect of the [EEZ] of another State.40

Finally, in its award on jurisdiction in the Arctic Sunrise Arbitration, the tribunal clarified that while Article 298(1)(b) of UNCLOS allows a coastal state to exempt itself from compulsory jurisdiction concerning fisheries enforcement activities, this allowance does not extend to enforcement activities in relation to sovereign rights associated with non-renewable resource rights.41

3.

RIGHTS AND JURISDICTION OF THE COASTAL STATE WITH RESPECT TO EEZ FISHERIES

3.1

Legislative Jurisdiction

The coastal state has ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living’ of the EEZ.42 As a consequence, the coastal state has the exclusive right to harvest the living resources of its EEZ. However, the sovereign rights of Article 56 are conditioned by the obligations to conserve and utilize the resources of the EEZ in accordance with Articles 61 and 62. Hence, the coastal state must ensure, ‘through proper conservation and management measures’, that the living resources of the EEZ are not ‘endangered by over-exploitation’.43 Such measures should be designed to ‘maintain or restore

37 Separate opinion of Judge Paik, para 37. Available at the ITLOS website, www​ .itlos​.org, last accessed 10 December 2019. 38 Barbados v Republic of Trinidad and Tobago (n 35) paras 285–86. 39 South China Sea Arbitration (Merits), (n 28) para 695. 40 Ibid. 41 Arctic Sunrise Arbitration (Netherlands v Russia), Award on Jurisdiction, [2014] PCA Case 2014-02, paras 72–7, https://​ pca​ -cpa​ .org/​ en/​ cases/​ 21/​ , last accessed 10 December 2019. 42 Article 56(1)(a) of UNCLOS. 43 Article 61(2) of UNCLOS.

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populations of harvested species at levels which can produce the maximum sustainable yield’ (MSY) – but the MSY target is qualified by reference to ‘relevant environmental and economic factors’ that the coastal state deems relevant.44 Such measures shall also take into account the implications for associated or dependent species which may be affected by harvesting activities concerning target species ‘with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened’.45 The coastal state has a duty to determine the (total) allowable catch (TAC) for the living resources of its EEZ46 and promote the optimum utilization of EEZ resources.47 Furthermore, if the coastal state considers that it lacks the capacity to harvest the TAC, it shall afford ‘other States access to the surplus’. In giving such access, the coastal state shall take into account all relevant factors, including ‘the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests’.48 This language emphasizes the broad discretion afforded to the coastal state in providing (or not) access to other states.49 Those provided with access must ‘comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State’.50 Such laws and regulations shall be ‘consistent with this Convention’;51 however, they may relate to a broad range of matters well beyond regulations that might be necessary to address conservation issues.52

44 Article 61(3) of UNCLOS. According to Burke (n 17) 80, the reference to environmental and economic factors makes it clear that the coastal state is not obligated to establish the MSY at any particular level of abundance or establish an allowable catch at any MSY level. Further, he suggests that a coastal state may also take into account social and political considerations (82–83) and thus might, for example, ‘maintain a level of abundance in excess of that which would produce MSY…this would assure higher catch rates and lower costs’ (83). 45 Article 61(3) of UNCLOS. 46 Article 61(1) of UNCLOS. See Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (n 17), 78, who notes that the allowable catch of a target species may be limited to the level of a permissible incidental catch. 47 Article 62(1) of UNCLOS. The phrase is ‘optimum utilization’, not maximum utilization: see Burke, ibid 88–9. 48 Article 62(2) of UNCLOS. 49 See Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (n 17) 89–95. 50 Article 62(4) of UNCLOS. 51 Ibid. 52 Churchill and Lowe, The Law of the Sea (n 3) 292–93.

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In some respects, the coastal state has even more discretion concerning marine mammals as a subset of the marine living resources of the EEZ.53 Article 65 indicates that Part V of UNCLOS does not restrict the right of a coastal state ‘to prohibit, limit or regulate the exploitation of marine mammals more strictly than provided for in this Part’. This provision seems to allow a coastal state to ignore the injunction of promoting the objective of optimum utilization of EEZ resources in relation to marine mammals. Special rules also apply to shared stocks (Article 63), highly migratory species (Article 64), anadromous species (Article 66) and catadromous species (Article 67), including important obligations to cooperate directly or through ‘appropriate international organizations’. Article 63 on shared stocks deals with two different situations: (1) stocks that occur within the EEZs of two or more coastal states; and (2) stocks that occur within the EEZ of a coastal state and areas beyond and adjacent to that zone. In the case of the first, the duty of the EEZ states is ‘to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks’. This is an obligation of conduct which requires the states to make a good-faith effort to reach an agreement.54 In the case of the second, the obligation is framed as a ‘duty to agree upon the measures necessary for the conservation of these stocks in the adjacent area’.55 This obligation applies to the adjacent area and not the area within the EEZ – although, as Burke notes, since the conservation status of the stock is clearly affected by harvesting both within and beyond the EEZ, the coastal state can hardly ‘agree upon a conservation regime for the part of the stock outside its EEZ while continuing to do as it pleases within the EEZ’.56 Article 63(2) should be read in conjunction with Article 116, notably litra b, which indicates that the right of all states to let their nationals engage in fishing on the high seas is subject to the rights and duties as well as the interests of coastal states as provided for, inter alia, in Article 63, paragraph 2, and Articles 64 to 67. For Burke, this means that the coastal state holds the dominant position; thus, if the parties fail to agree on the necessary measures, fishing states may be obliged to recognize and observe coastal state measures,

53 B. Vukas, ‘The 1982 United Nations Convention on the Law of the Sea and the Protection of the Living Resources of the Sea’ in B. Vukas, The Law of the Sea: Selected Writings (Brill 2004), 113–29, 118; Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (n 17) 115. 54 Burke, ibid 106. 55 Article 63(2) of UNCLOS. 56 Burke, ‘The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction’ (n 17) 111–12.

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as anything else would serve to undermine those measures and thus be inconsistent with Article 116.57 The obligations of the coastal state are more extensive in relation to highly migratory species, as here the duty is expressed as a duty to cooperate with other states whose nationals fish in the region, ‘with a view to ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the [EEZ]’.58 Article 194, specifically paragraph 5, is also relevant to coastal state obligations concerning the marine living resources of the EEZ. Although Article 194 speaks generally to the obligations of all states and not just coastal states, is relevant for all maritime zones and seems principally concerned with pollution, several decisions – as we will see in greater detail in Section 4 – confirm that Article 194 applies also to ecosystem protection in general. 3.2

Enforcement Jurisdiction

The enforcement jurisdiction of the coastal state with respect to fisheries is described mainly in Article 73, although it is also inherent in the sovereign rights described in Article 56 to conserve and manage the natural resources of the EEZ. Paragraph 1 of Article 73 is a non-exhaustive statement of some of (‘including’) the enforcement measures available to the coastal state ‘as may be necessary to ensure compliance’ with its laws and regulations relating to the living resources of its EEZ, which laws must be adopted in conformity with UNCLOS. These measures include ‘boarding, inspection, arrest and judicial proceedings’. Paragraph 3 precludes the coastal state from imposing imprisonment or corporal punishment for violations of its fisheries laws, absent an agreement to the contrary ‘by the States concerned’. Where a vessel is arrested or detained, the coastal state must promptly notify the flag state ‘of the action taken and any penalties subsequently imposed’ (para 4). Paragraph 2 establishes an obligation of prompt release of any vessel or crew, provided that a reasonable bond or other security has been posted. Cases of alleged non-compliance with this requirement may be brought before the International Tribunal on the Law of the Sea (ITLOS) or other competent tribunal under Article 292 of UNCLOS on an application for prompt release. ITLOS may order the release of the vessel or its crew upon the posting of bond or other financial security. The ‘prompt release’ process is unique. It is confined to the question of release and associated questions as to the reasonableness of any bond or security demanded by the coastal state pending release.

Ibid 113. Article 64 of UNCLOS.

57 58

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Article 292(4) expressly stipulates that any tribunal decision under Article 292 shall be without prejudice to the merits of any case. A tribunal may give judgment on the merits as part of proceedings commenced under Section 2 of Part XV or in some other way.

4.

CASE LAW ON THE RIGHTS AND JURISDICTION OF THE COASTAL STATE WITH RESPECT TO EEZ FISHERIES

Here we begin with some general observations and then turn to the case law under the following headings: the obligations of the coastal state with respect to EEZ fisheries; the obligations of the coastal state with respect to the marine environment and marine living resources; the prescriptive rights of the coastal state with respect to marine living resources; the enforcement rights of the coastal state with respect to its laws pertaining to marine living resources; and the jurisprudence of the prompt release cases with respect to the rights and obligations of the coastal state. 4.1

General Observations

Courts and tribunals are responsible for deciding the cases brought before them. For that reason, they rarely provide general expositions of the law. In part, this is a reflection of the principle of judicial economy; in part also a duty to decide only the matters raised by the pleadings and nothing beyond.59 However, in some cases the interpretive methodology prescribed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties60 may require considerable exegesis – either in order to establish the proper context for the interpretation of a particular text, or because the absurdity or unreasonableness of a preliminary interpretation requires resort to detailed examination of the travaux preparatoires of the treaty text. Perhaps the most prominent example of this in the context of the marine living resources of the EEZ is the award in the South China Sea Arbitration, which contains a lengthy disquisition on the evolution of the juridical concept of the EEZ.61 The tribunal engaged in this analysis of ‘text and context’ largely to provide a frame of reference for considering the argument that historic rights might have survived the adoption of UNCLOS and thus be exercisable within the EEZ of the coastal state – an

59 See Award in Barbados v Trinidad v Tobago (n 35–6), declining to establish a fisheries regime. 60 Vienna Convention on the Law of Treaties 1969, 1155 UNTS 321. 61 South China Sea Arbitration (Merits), (n 28) paras 240–62.

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argument which it comprehensively rejected, noting as a matter of text that the rights of habitual fishers are dealt with in Article 62. Thus, any fishing by non-nationals is contingent on the coastal state’s concluding that it lacks the capacity to harvest the entire TAC. Article 62 also makes it clear that historic fishing is only one of several criteria to be considered in any allocation of that surplus.62 4.2

Coastal State Obligations with Respect to the Marine Living Resources of the EEZ

The Advisory Opinion of ITLOS with respect to illegal, unreported and unregulated (IUU) fishing is largely concerned with the responsibilities of flag states of vessels fishing within another state’s EEZ.63 Nevertheless, ITLOS also took the opportunity to address the obligations of the coastal state within its EEZ, also in relation to the first two questions that expressly dealt with the obligations of flag states. ITLOS began its discussion by observing that Article 61(2) of UNCLOS makes it mandatory for the coastal state to adopt conservation and management measures, including enforcement procedures, for all living resources within its EEZ, so as to ensure that such resources are not endangered by over-exploitation.64 Furthermore, the combination of ‘the special rights and responsibilities’ of the coastal state within the EEZ means that ‘the primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing rests with the coastal State’.65 This responsibility is an obligation of conduct and a due diligence obligation.66 The fourth question addressed to ITLOS raised the specific question of the rights and obligations of the coastal state with respect to the sustainable

Ibid 242. In Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (SRFC), ITLOS Reports 2015, 4, only the fourth and final question put to ITLOS dealt expressly with the rights and obligations of coastal states. 64 Ibid paras 96 and 104. 65 Ibid para 109. ITLOS noted, however, that the primary responsibility of the coastal state does not release other states (ie, flag states) from their obligations (para 108). However, actions taken by a flag state are ‘without prejudice to the rights of the coastal state to take measures pursuant to article 73 of the Convention’ (para 139). 66 ITLOS does not make this point in the context of the duties of the coastal state, but it does offer this characterization in describing the obligations of the flag state (ibid paras 129–39), as did the Seabed Disputes Chamber in describing the duties of the sponsoring state with respect operations in the international seabed area (Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10). 62 63

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management of shared stocks and stocks of common interest.67 ITLOS interpreted the stocks in question to be the stocks covered by Articles 63 and 64, of ITLOS and interpreted ‘sustainable management’ as meaning ‘conservation and development’ as used in Article 63(1).68 Article 63(1) establishes an obligation as between coastal states to agree upon measures to coordinate and ensure the conservation and development of shared stocks. ITLOS clarified its understanding of the term ‘development of such stocks’ as meaning that ‘these stocks should be used as fishery resources within the framework of a sustainable fisheries management regime’.69 As to articulating the rights and responsibilities of coastal states, much of the Advisory Opinion of ITLOS paraphrases Articles 63 and 64, emphasizing, in relation to Article 63(1), that coastal states have reciprocal rights and obligations in relation to the duties to cooperate within that paragraph.70 However, the Opinion also contains three important additional elements.71 First, ITLOS reminds coastal states that the obligation to cooperate in Article 63(1) must be read in light of the obligation in Article 61(2): the obligation to cooperate is purposive and must aim ‘to ensure through proper conservation and management measures that the maintenance of the shared stocks in the [EEZ] is not endangered by over-exploitation’.72 Second, perhaps more importantly, ITLOS notes that to comply with these obligations, coastal states must ensure that shared stocks are not endangered by over-exploitation; base their conservation and management measures on the best scientific evidence available and apply the precautionary approach; and apply any generally recommended international minimum standards – sub-regional, regional or global.73 Further, these measures must take into account the effects on associated and dependent species.74 Much of the specific content of these paragraphs is evidently drawn from the text of Articles 61 and 62: ITLOS is again reminding coastal states that they must read the more specific provisions dealing with shared stocks and migratory species together with these more general provisions. Notably, the Advisory Opinion (n 63) para 186. Ibid para 191. 69 Ibid para 198. 70 Ibid para 205. 71 Judge Paik, in his Separate Opinion (n 37) 31, notes that ITLOS could have provided more guidance than it did with respect to the content of the duty to cooperate with respect to shared resources. He offers some additional (albeit limited) guidance. 72 Advisory Opinion (n 63) 207(i). 73 Ibid para 208. The text describes these as ‘obligations of SRFC Member States’; but apart from the specific references to the MCA Convention in what follows, these are also and more generally obligations of all coastal states. 74 Ibid para 209. 67 68

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obligation to cooperate is a ‘due diligence’ obligation which entails meaningful consultations in good faith (pursuant to Article 300) and substantial effort ‘with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks’.75 Furthermore, each state should take effective measures ‘aimed at preventing over-exploitation of such stocks that could undermine their sustainable exploitation and the interests of neighbouring’ states.76 Finally, ITLOS broadens the context for interpreting Articles 63 and 64 still further, by reminding all states of their reciprocal ‘due regard’ obligations under Articles 56(2) and 58(3).77 That said, it is difficult to infer what specific content might flow from this obligation in the present context.78 ITLOS also indicates that the ‘due regard’ obligation is in some way reinforced by the obligation of all states parties under Articles 192 and 193 to protect and preserve the marine environment. Perhaps the main point here is that the general provisions of Part XII must also form part of the interpretive context when assessing the adequacy of measures taken by coastal states for the conservation and management of the marine living resources of the EEZ.79 The International Court of Justice (ICJ) had cause to elaborate on the meaning of ‘conservation and management measures’ in the Fisheries Jurisdiction Case (Spain v Canada).80 While the ICJ did so in the context of construing Canada’s unilateral reservation in its declaration accepting the compulsory jurisdiction of the ICJ pursuant to Article 36(2) of the Statute of the ICJ,81 it deemed it appropriate to interpret the term in light of relevant international agreements, including UNCLOS.82 The ICJ began with the word ‘measures’, observing that this term is ‘wide enough to cover any act, step or proceeding, and imposes no particular limit on their material content or on the aim pursued thereby’.83 In 75 Ibid para 210. There are additional references to the duty to consult in (paras 212–13). 76 Ibid para 211. Again, the reference in the text is to ‘Member States’ but the proposition must surely apply more broadly. 77 Ibid para 216. 78 The leading statement on the duty of due regard (which emphasizes that the content of the duty will always be highly context specific) is the Chagos award (n 25) para 519. 79 Advisory Opinion (n 63) para 216. 80 Fisheries Jurisdiction Case (Spain v Canada), ICJ Reports 1988, 431, 66. 81 This does suggest that the ICJ’s observations should be treated with some caution, as the ICJ’s approach in construing a reservation is to emphasize the intention of the depositing state (ibid 48 and 52) ‘in a manner compatible with the effect sought by the reserving State.’ The ICJ Statute is annexed to the Charter of the United Nations 1945, 1 UNTS XVI. 82 Fisheries Jurisdiction Case (n 80) 66. 83 Ibid.

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the context of the dispute, ‘measures’ included laws of the legislature as well as subordinate legislation.84 Broadening the scope of the review to cover ‘conservation and management’ measures, the ICJ observed that a measure may be characterized as a conservation and management measure if ‘its purpose is to conserve and manage living resources and…to this end…satisfies various technical requirements’.85 Such technical or other requirements might concern quotas, open and closed periods, fish size, gear restrictions and so on. The ICJ supported these observations by reference to the domestic laws of various states and international instruments, before noting that there was nothing in Canada’s reservation that suggested that Canada intended to use the term ‘conservation and management’ in a sense different from that generally accepted in international law and practice.86 In sum, the case law with respect to the obligations of the coastal state concerning the marine living resources of the EEZ has emphasized the ‘due diligence’ obligation of the coastal state to adopt effective conservation and management measures (including enforcement measures) to ensure that any given stock is not endangered by over-exploitation. In this sense, the coastal state’s enforcement jurisdiction is not just a right (or a power), but also an obligation. The jurisprudence also reinforces a broad interpretation of ‘conservation and management’, emphasizing the cooperative obligations of all states concerning shared and highly migratory stocks. However, given the limitations on the jurisdiction of the dispute settlement bodies as per Section 2 of Part XV of UNCLOS, it is hardly surprising that the judiciary has not addressed issues such as the obligation to establish an MSY. 4.3

Coastal State Obligations with Respect to the Marine Environment and Marine Living Resources

Many of the rights and obligations arising under Part XII with respect to the protection and preservation of the marine environment apply to all states Ibid 68. Ibid 70. 86 Ibid 71 and 73. The ICJ was at pains to point out that a measure did not cease to be a ‘conservation and management measure’ because a coastal state might not have the authority under international law to prescribe such a measure with respect to areas beyond its national jurisdiction. Other members of the ICJ clearly disagreed with both the ICJ’s reference to these other instruments and documents and the lessons to be learned. In particular, dissenting members noted that other instruments, such as the Straddling Fish Stocks Agreement, did define ‘conservation and management measures’ by reference to ‘the relevant rules of international law’ (eg, see the Dissenting Opinion of Judge Ranjeva [translation], paras 24–38, www​.icj​-cij​.org/​files/​ case​-related/​96/​096​-19981204​-JUD​-01​-07​-EN​.pdf, last accessed 10 December 2019). 84 85

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(coastal or non-coastal), and often to all maritime zones as well. All this was emphasized by the South China Sea Arbitration, principally for jurisdictional reasons.87 That award has implications for coastal and non-coastal states. While the tribunal offered broad observations relating to the protection of the environment generally, the discussion here focuses on those passages in the award that most clearly concern the obligations of all states with respect to fisheries and fish habitats. The tribunal’s remarks were directed at China, but the following reframes the propositions that can be extracted from the award in terms of the responsibilities of the coastal state as to fisheries and fish habitats in the EEZ. It seems possible to make the following points. Article 192 imposes on the coastal state ‘a due diligence obligation to prevent the harvesting of species that are recognized internationally as being at risk of extinction and requiring international protection’.88 Reading Article 192 together with other applicable law (eg, the Convention on International Trade in Endangered Species (CITES), as well as Article 194(5)), we see that the coastal state has additional obligations to prevent ‘harms that would affect depleted, threatened, or endangered species indirectly through the destruction of their habitat’.89 Articles 192 and 194(5) require the coastal state to adopt rules and measures to prevent harvesting practices that have a harmful impact on a fragile marine environment or where the harvested species are ‘recognised internationally as being threatened with extinction or are inflicting significant damage on rare or fragile ecosystems or the habitat of depleted, threatened, or endangered species’. The coastal state must also ‘maintain a level of vigilance in enforcing those rules and measures’.90 Article 194(2) imposes on the coastal state a ‘due diligence’ obligation to take measures to prevent the use of harvesting measures that constitute pollution (eg, the use of explosives or cyanide).91 Article 192 imposes on the coastal state the obligation not to engage in construction activities such as artificial island building that would damage the marine environment. Such activities may also breach Article 194(1) through pollution of the marine environment by the deposition of sediment, and constitute a violation of the duty under Article 194(5) to take measures necessary

South China Sea arbitration (Merits) (n 28). Ibid para 956, premised at least in part on the basis that CITES ‘is the subject of nearly universal adherence’ and thereby part of the general corpus of international law that informs the content of both Articles 192 and 194(5) of UNCLOS. 89 Ibid para 959. 90 Ibid para 960. 91 Ibid paras 970–1. 87 88

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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.92 These obligations derived from Part XII of UNCLOS thus serve to supplement and contextualize the fisheries obligations of the coastal state under Part V. In particular, they may help provide content to the due diligence obligations of the coastal state. 4.4

Coastal State Rights with Respect to Marine Living Resources

As noted in Section 3, the rights of the coastal state concerning marine living resources encompass harvesting rights, prescriptive rights with respect to those harvesting marine living resources within its EEZ and the management of the resource (especially Article 62(4)), as well as enforcement rights (Article 73). In this section, the leading decisions on the scope of the coastal state’s harvesting and prescriptive rights – the Annex VII tribunal’s award in the South China Sea Arbitration and ITLOS’s decision in M/V Virginia G – are considered; while the tribunal’s examination of the enforcement of those laws are considered in Section 4.5. In the South China Sea Arbitration, the tribunal reached two key conclusions. The first was that historic fishing rights did not survive the adoption of an EEZ by a coastal state as authorized by the terms of UNCLOS (see Section 4.1 above). The second was that, whereas a non-coastal state might have some rights within the EEZ of the coastal state, those rights as detailed in Article 58: are limited to ‘navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.’ The rights of other States do not include restricting a coastal State from exploiting the living resources of its own [EEZ]. Indeed, the very notion is incompatible with the concept of sovereign rights and the exclusive jurisdiction over fisheries that was the central objective motivating the introduction of the [EEZ] concept…93

For the tribunal, the exclusive nature of the coastal state’s entitlement is further reinforced by Articles 61 and 62 on determining the allowable catch and authorizing others to access any portion of that TAC.94 Accordingly, the assertion of jurisdiction by China within the Philippines’ EEZ by promulgating a moratorium (a regulation sanctioned by punitive measures and to

Ibid para 983. Ibid para 700. 94 Ibid paras 736–38. 92 93

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vessels other than its own vessels) constituted ‘a breach of Article 56 of the Convention, which accords sovereign rights to the Philippines’.95 Further, the flag state has a ‘due regard’ duty to take the steps necessary to ensure that its vessels follow the rules established by the coastal state in exercising its prescriptive jurisdiction under Article 62(4).96 It follows that the coastal state has a correlative right to have the flag state fulfil this duty. In his Declaration in the Advisory Opinion on IUU Fishing, Judge Wolfrum expanded on this idea – the general law of state responsibility as well as the duty of the flag state to ensure that its vessels comply with the laws of the coastal state and international standards affords coastal states: the means to demand from the flag States to refashion their national law concerning fisheries so that it meets the international obligations entered into by the latter and the international standards set by the competent international organizations regional or universal.97

The most significant decision on the scope of the authority to make laws with respect to fisheries and the EEZ is the ITLOS decision in M/V Virginia G.98 The coastal state (Guinea-Bissau) had seized the Virginia G on the grounds that it had breached Guinea-Bissau’s fisheries laws by providing bunkering services to several foreign fishing vessels within the EEZ of Guinea-Bissau without its written authorization. Before considering the question of enforcement (examined in Section 4.5 below) ITLOS first had to assess whether UNCLOS accorded the coastal state jurisdiction to regulate bunkering activities associated with fishing vessels, and whether the laws of Guinea-Bissau were in conformity with UNCLOS.99 Panama held that bunkering was closely associated with the freedom of navigation afforded to ‘other states’ by Article 58. ITLOS however, decided in favour of Guinea-Bissau. Reading Article 56 together with Articles 61 and 62, it reasoned that the use of the terms ‘conserving’ and ‘managing’ in Article 56 ‘indicates that the rights of coastal states go beyond conservation in its strict sense’.100 Article 61 deals with conservation; Article 62(4) concerns both conservation and management and authorizes the coastal state to take a range of conservation measures.101 Such measures must Ibid para 712. Ibid paras 734–44 and 753–54. 97 Declaration of Judge Wolfrum, para 5, www​.itlos​.org/​cases/​list​-of​-cases/​case​ -no21/​, last accessed 10 December 2019. 98 The M/V ‘Virginia G’ Case (Panama v Guinea-Bissau), Judgment, ITLOS Reports 2014, 4. 99 Ibid paras 161 and 207. 100 Ibid para 212. 101 Ibid para 213. 95 96

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be directly connected to fishing: and ITLOS concluded that ‘such connection to fishing exists for the bunkering of foreign vessels fishing in the [EEZ] since this enables them to continue their activities without interruption at sea’.102 ITLOS gave further support for its conclusion by referring to state practice, including seven agreements or treaties that ‘all establish the close connection between fishing and the various support activities, including bunkering’,103 as well as national legislation in various parts of the world that ‘regulates bunkering of foreign vessels fishing in their [EEZs]’.104 ITLOS then turned to consider the scope of the authority to regulate bunkering, indicating that in doing so, it would need ‘to establish to what extent bunkering is covered by the freedom of navigation or other internationally lawful uses of the sea under Article 58 of the Convention’. But it is not clear whether that was what ITLOS actually did, since it simply concluded: The Tribunal is of the view that article 58 of the Convention is to be read together with article 56 of the Convention. The Tribunal considers that article 58 does not prevent coastal States from regulating, under article 56, bunkering of foreign vessels fishing in their [EEZs]. Such competence…derives from the sovereign rights of coastal States to explore, exploit, conserve and manage natural resources.105

It might have been more appropriate to have framed the analysis in terms of due regard: recognizing that the coastal state can regulate bunkering activities and then discussing whether it had due regard to the rights and obligations of other states, as contemplated by Article 56(2). The same might be said of ITLOS’s analysis of whether Guinea-Bissau’s requirement of a written author102 Ibid para 215. ITLOS acknowledged (para 214) that the arbitral tribunal in the La Bretagne Award had reached a different conclusion (Filleting within the Gulf of St Lawrence between Canada and France, Award of 17 July 1986, RIAA XIX, 225). ITLOS also noted that the regulation of non-fisheries related bunkering activities might be justified under other provisions of UNCLOS, such as those dealing with the protection of the marine environment. See also the Joint Declaration of Judges Kelly and Attard, opining that ‘bunkering of whatever type of ship may cause environmental harm to the [EEZ]. [We] consider that bunkering in general falls under the jurisdiction of the coastal State as provided for in [Art. 56]. Moreover, this jurisdiction is further considered in other articles of the Convention particularly in [Arts. 211 and 220]’. Declaration available on the ITLOS website, www​.itlos​.org/​cases/​list​-of​-cases/​case​-no​-19/​, last accessed 10 December 2019. 103 M/V Virginia G (n 98) para 216. 104 Ibid para 218. 105 Ibid para 217. See also Declaration of Judge Nelson, suggesting that since UNCLOS failed to allocate the right to regulate bunkering activities in the EEZ to either the coastal state or other states, ITLOS should have had resort to Article 59, and that it ‘seems strange that little regard was paid to this formula in these proceedings’ (para 10). Declaration available on the ITLOS website (n 102).

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ization was ‘unduly burdensome’. ITLOS concluded that it was not – but it is not clear where the ‘unduly burdensome’ test comes from in terms of treaty text. Again, it might have been better to have grounded this analysis in the context of the duty of due regard.106 ITLOS had one final point to make concerning the conformity of Guinea-Bissau’s laws with UNCLOS, and that related to the question of the fee for authorization to engage in bunkering activities. ITLOS seems to have framed this issue in terms of whether the law in question was a fisheries-related law, or a customs or fiscal law within the meaning of Article 33 of UNCLOS dealing with the contiguous zone. That seemed to turn on whether the fee was a tax or a fee for services rendered (ie, to cover the costs of the authorization). On the basis of its assessment of the evidence, ITLOS concluded ‘that the imposition of the fee by Guinea-Bissau does not constitute an attempt to extend its tax and customs legislation to the [EEZ], as claimed by Panama’.107 Thus, in sum, ITLOS took a broad view of the prescriptive powers of the coastal state with respect to fisheries conservation and management in its Virginia G decision in a way fully consistent with the expansive interpretation examined in the case law referenced in Section 4.2 above. We now turn to ITLOS’s examination of the enforcement of those laws. 4.5

Coastal State Enforcement Jurisdiction with Respect to Marine Living Resources in the EEZ

4.5.1 The M/V Virginia G case In addition to boarding, inspecting and arresting the M/V Virginia G,108 Guinea-Bissau had reacted to Panama’s perceived violation of the need to

106 It is all the more curious that the tribunal does not mention ‘due regard’ in this context, but does so later in the context of enforcement, concerning Panama’s argument that a coastal state’s enforcement actions should be informed by Article 110 (particularly para 2). The tribunal (n 98) para 347 rejected that contention, but reached the same result through application of due regard: ‘[Article 110] does not establish principles applicable to the [EEZ]. In this respect, article 56, paragraph 2, of the Convention is lex specialis and requires that, in exercising its rights and performing its duties in the [EEZ], the coastal State “shall have due regard to the rights and duties of other States”. This requirement is to be interpreted to imply that in the exercise of its powers pursuant to [Article 73], which includes boarding and inspection of foreign fishing vessels, the competent authorities of the coastal State shall proceed with all possible consideration.’ 107 Ibid para 234. 108 The tribunal (ibid para 265) concluded that ‘neither the boarding and inspection nor the arrest of the M/V Virginia G violated [Art.73(1)]’. Therefore, the tribunal must have been of the view that these activities must have proceeded ‘with all possible consideration’ or, in other words, with due regard.

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obtain written authorization for bunkering activity by confiscating the vessel and the gas and oil on board. Article 73, however, ‘makes no reference to confiscation of vessels’.109 ITLOS offered a paragraph-by-paragraph analysis of Article 73, beginning with the observation that Article 73(1) ‘has to be interpreted in the light of the practice of coastal States on the sanctioning of violations of fishing laws and regulations’110 and that ‘[it] is within the competence of the Tribunal to establish whether the legislation promulgated by Guinea-Bissau for the [EEZ] is in conformity with the Convention and whether the measures taken in implementing this legislation are necessary’.111 The analysis is thus a two-step approach: first of the law itself, and second of the concrete enforcement actions taken pursuant to the law in this case. ITLOS confirmed that the domestic law in question did permit confiscation for unlawful bunkering activities.112 It considered that the law might be unnecessary and therefore not lawful if it required confiscation in all cases, ‘irrespective of the severity of the violation and without possible recourse to judicial means’.113 But that was not the case here: the law afforded the domestic authorities ‘flexibility in sanctioning of violations of [their] fishing laws and regulations [and] offer several possibilities for the applicant to mount a legal challenge to confiscation in such a case’.114 Thus, the law itself was not in breach of the requirements of Article 73(1). However, ITLOS concluded that Guinea-Bissau’s exercise of confiscation was not necessary ‘either to sanction the violation committed or to deter the vessels or their operators from repeating this violation’.115 While conceding that the failure to obtain written authorization and to pay the fee was ‘a serious violation’ of the laws of the coastal state, it noted that the vessels that the M/V Virginia G refuelled were not subject to confiscation, and in some cases had neither been arrested nor fined. Furthermore, the agent for the owner of the vessels receiving bunkering

109 Ibid para 251. See also the Declaration of Judge Kulyk, who opined that confiscation was deliberately omitted from Article 73(1) since it is ‘a penalty rather than a measure to ensure compliance’ (para 90). Declaration available on the ITLOS website (n 102). 110 M/V Virginia G (n 98) para 253. 111 Ibid para 256. 112 Ibid para 255. ITLOS simply seems to be confirming that the seizure was in accordance with law and not arbitrary; see also para 263. 113 Ibid para 257. 114 Ibid para 257. See also the Declaration of Judge ad hoc Treves (para 11), available on the ITLOS website (n 102). 115 M/V Virginia G (n 98) para 269.

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services had provided the coordinates for the bunkering activities, and the evidence tended to show: that the failure to obtain a written authorization was rather the consequence of a misinterpretation of the correspondence between the representatives of the fishing vessels and [the fisheries authority] than an intentional violation of the laws and regulations of Guinea-Bissau.116

All this had to be viewed in light of the ‘principle of reasonableness’: In the view of the Tribunal the principle of reasonableness applies generally to enforcement measures under article 73 of the Convention. It takes the position that in applying enforcement measures due regard has to be paid to the particular circumstances of the case and the gravity of the violation.117

ITLOS concluded that confiscation was not reasonable, and that Guinea-Bissau had violated Article 73(1): its enforcement actions were neither necessary to ensure compliance with its laws and regulations nor reasonable. ITLOS then went on to review the actions of Guinea-Bissau through the lens of the next three paragraphs of Article 73. It observed that paragraph 2 imposes three obligations on the coastal state when detaining or arresting a foreign vessel: (1) the vessel and crew must be released on the posting of the bond or other security; (2) the release must be prompt; and (3) the bond or other security must be reasonable.118 ITLOS emphasized that it is up to the coastal state to determine the appropriate procedures to comply with these obligations and to allocate these responsibilities to the judicial or executive branch. In the present case the domestic law allowed a court to order the release of the vessel or crew on the application of the shipowner, captain or master of the vessel upon payment of sufficient security. The law required the court order to be made within 48 hours. In ITLOS’s opinion, this law satisfied the first two conditions of paragraph 2. As for the second condition, ITLOS referred to its own ‘prompt release’ jurisprudence for the relevant criteria.119 In M/V Virginia G, no application had been made to a court for release (but the vessel was ultimately released by the authorities), so ITLOS’s consideration was necessarily an abstract consideration of Guinea-Bissau’s statutory framework for determining the amount

Ibid. Ibid para 270. 118 Ibid para 284. 119 Ibid para 292, referencing in particular The ‘Hoshinmaru’ (Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 18 (para 82). For an overview of the jurisprudence, see Section 4.6 of this chapter. 116 117

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of security rather than its concrete application. Here ITLOS made two points. First, it was reasonable to expect that a domestic court would have regard to the provisions of UNCLOS in setting the amount of any bond; furthermore, should such a bond not appear to be reasonable, the Article 292 prompt release procedure could be instituted.120 Second, it was not open to Panama to question the validity of the domestic procedures on the basis that they were unreasonable or unaffordable and thus offered no real remedy: In undertaking activities within the [EEZ] of Guinea-Bissau the owner of the M/V Virginia G should have been familiar with the applicable laws of that State. The fact that the owner of the M/V Virginia G for financial or other reasons decided not to use the existing procedure…for the prompt release of the vessel cannot serve as a basis for a claim that Guinea-Bissau violated the provisions of article 73, paragraph 2, of the Convention.121

With respect to paragraph 3, Panama contended that while Guinea-Bissau’s law did not provide for imprisonment as a penalty for breach of its fisheries law, the crew had de facto been imprisoned by reason of the confiscation of their passports. In response, ITLOS relied heavily on the precise wording of Article 73(3), which provides that ‘coastal State penalties for violations of fisheries laws and regulations in the [EEZ] may not include imprisonment… or any other form of corporal punishment’. The relevant regulations did not transgress these prescriptions;122 further, neither the ‘short period of initial detention of the M/V Virginia G at sea’ nor the subsequent stay of the vessel in port could be interpreted as ‘imprisonment’ – especially the latter since the crew members were free to leave the ship.123 Any other interpretation would have made it impossible for a coastal state ever to arrest a vessel. As for the temporary holding of the passports, this too could not be construed as a breach of Article 73(3). ITLOS’s discussion of Article 73(4) (which deals with the duty of the coastal state to provide notice to the flag state) began with a rather curious preliminary point concerning the genuine link issue;124 or as ITLOS put it, the duty of the flag state to ‘exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practice’.125 Despite apparently

122 123 124 125 120 121

M/V Virginia G (n 98) para 294. Ibid para 295. Ibid para 306. Ibid para 308. On UNCLOS Article 91 and the genuine link, see Chapter 8 of this volume. The M/V ‘Virginia G’ Case (n 98) para 113.

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having decided this point much earlier in its judgment,126 ITLOS returned to it here because it might be suggested that Panama had no genuine link with the vessel, as neither the vessel’s owner nor crew were nationals of the flag state – and that if that were the case (ie, no genuine link), there was the possibility that Guinea-Bissau might be justified in not providing the notification called for by Article 73(4). In response, ITLOS reaffirmed its earlier conclusion to the effect that there was no evidence that Panama was not exercising effective control, and that ‘[it] follows from the above that Guinea-Bissau was bound in the present case’ by Article 73(4).127 The only possible interpretation of this passage is that ITLOS evidently believed that the existence of a genuine link serves as a condition precedent to triggering the duty to notify. This is a highly contextualized reading of UNCLOS which departs significantly from the actual text. Having found that Guinea-Bissau owed the duty to notify, it was easy to conclude that Guinea-Bissau was in breach – with the important consequence that Panama was unable to intervene at the initial stages or during the subsequent proceedings.128 ITLOS in the M/V Virginia G also confirmed that the coastal state’s powers of enforcement must be read in light of at least one other provision of UNCLOS as well as general international law. Concerning the former, ITLOS concluded that Article 225 (dealing with the duty not to bring a vessel into an unsafe port or anchorage) is of general application and as such applies to enforcement activities under Article 73.129 However, ITLOS also concluded that certain other provisions of UNCLOS do not establish general principles to be used in the interpretation of Article 73.130 The principal difference between

Ibid para 117. Ibid para 326. 128 Ibid para 328. 129 Ibid para 373. ITLOS concluded that there was no breach. See also Separate Opinion of Judge Ad Hoc Petrig in The M/T ‘San Padre Pio’ Case, Order of 6 July 2019, ITLOS Reports (not yet reported), suggesting that the obligation not to bring an arrested vessel to an unsafe anchorage is formulated ‘in an absolute fashion’ – that is, that it is an obligation of result and not a due diligence obligation of conduct (para 4). Separate Opinion available on the ITLOS website, www​.itlos​.org/​cases/​list​-of​-cases/​ case​-no​-27/​, last accessed 10 December 2019. 130 Notably, ITLOS (n 98, para 343) rejected Panama’s arguments that Articles 110 and 224 contained a set of principles also applicable to enforcement activities under Article 73(1). ITLOS also confirmed that, on its own terms, the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation ‘does not apply to enforcement activities lawfully exercised by coastal States in their [EEZs]’ (ibid para 376). 126 127

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these instances turns on the language of the different provisions. As to the relevance of general international law: The Tribunal considers it important to reiterate that general international law establishes clear requirements that must be complied with by all States during enforcement operations, including those carried out pursuant to article 73, paragraph 1, of the Convention. These requirements provide, in particular, that enforcement activities can be exercised only by duly authorized identifiable officials of a coastal State and that their vessels must be clearly marked as being on government service.131

Thus ITLOS – as in M/V ‘Saiga’ (No 2)132 – concluded that: the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea, as they do in other areas of international law.133

4.5.2 Dissenting views The overall conclusion regarding Article 73(1), that Guinea-Bissau’s enforcement actions were neither necessary nor reasonable, attracted several dissenting opinions – most notably the joint dissenting opinion of six judges,134 as well as the powerfully argued dissent of Judge ad hoc Sérvulo Correia.135 The main difference between the majority and the authors of the joint dissent concerns the standard of review applied by the majority. The joint dissenting opinion recognizes that national authorities do not have an unlimited power of appreciation136 with respect to their enforcement powers under Article 73(1): ‘[i]t is in no way the task of the Tribunal to take the place of the competent national authorities…’137

Ibid para 342. M/V ‘SAIGA’ (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10 (para 155). 133 M/V Virginia G (n 98) para 359. 134 Joint Dissenting Opinion of Vice-President Hoffmann and Judges Marotta Rangel, Chandrasekhara Rao, Kateka, Gao and Bouguetaia. Available from the ITLOS website (n 102). 135 Dissenting Opinion of Judge ad hoc Sérvulo Correia. Available from the ITLOS website (n 102). 136 Ibid para 53; see also para 48. 137 Ibid para 53. 131 132

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The joint dissenting opinion offers two principal arguments in support of greater deference to the coastal state. First, it emphasizes that the power that is subject to review is a sovereign rights power of the coastal state: the inquiry should start with a clear understanding that what is being discussed is the coastal State’s ‘sovereign rights’ to manage the living resources in its [EEZ]. The term ‘sovereign rights’ ought to carry with it a degree of deference to the coastal State in its exercise of those rights, unless such deference is denied by the Convention itself.138

In light of this, national courts and authorities should be accorded a broad margin of appreciation, since they are ‘better placed [than an international court] to appreciate all the relevant considerations of law and fact in the State concerned’.139 The second point emphasizes that the function of ITLOS in reviewing the exercise of a power under Article 73(1) is that of judicial review. ITLOS ‘does not sit as a court of appeal in assessing whether or not the enforcement measures are necessary in the circumstances of the case’;140 its function is ‘rather to review the decisions they delivered in the exercise of their power of appreciation’.141 With this in mind, a reviewing court should interfere only ‘if there is manifest error in the exercise of power or the exercise of power is manifestly arbitrary or if the power is exercised on the basis of facts which do not exist and which are patently erroneous’.142 The authors of the dissenting opinion concluded that that was not the case here. There is some common ground between the joint dissent and that of Sérvulo Correia; but he offers a more nuanced interpretation of the structure of Article 73.143 Unlike the majority, he emphasizes that Article 73(1) uses the language of necessity rather than reasonableness; and that this demands greater restraint on the part of a reviewing court. Closely related to this, whereas Article 73(2) allows the reviewing court to substitute its view of reasonableness for that of the coastal state, a reviewing court has no similar discretion under Article 73(1). Thus, necessity as used in Article 73(1) cannot be synonymous with proportionality or reasonableness. In the end, therefore, Sérvulo Correia holds

Ibid para 49. Ibid para 50. 140 Ibid para 47. 141 Ibid para 53. 142 Ibid para 55. 143 Dissenting Opinion (n 135) paras 15–16. For example, he also emphasizes that the case engages the ‘sovereign rights’ of the coastal state, and thus that there should be a deferential standard of review and a significant margin of appreciation extended to the coastal state. Further, he notes that the vessel was hardly without fault. 138 139

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that ITLOS should intervene only ‘when it is manifest or absolutely clear that a less intrusive or onerous measure would have been equally suitable and effective in attaining the legal aim’.144 Furthermore, in the application of that test, Sérvulo Correia clearly considers that necessity must be interpreted in light of the challenges facing a particular coastal state which ‘are relevant to assessing the suitability and effectiveness of confiscation as a penalty’.145 These factors included the essential importance of fisheries resources to the ‘very fragile economy’ of Guinea-Bissau; the pressure of illegal fishing within Guinea-Bissau’s EEZ; the need for deterrence though harsh penalties given the lack of surveillance and enforcement resources available to Guinea-Bissau; and the importance of prior authorization to facilitate inspection.146 Judge ad hoc Sérvulo Correia concludes as follows: Looking at the empirical circumstances in this case, that is, at Guinea-Bissau’s lack of resources for permanent monitoring of its vast [EEZ], a zone subject to heavy pressure from illicit fishing and fishing-related activities, I fail to see how it can be concluded that Guinea-Bissau committed a manifest error of appreciation by considering the penalty of confiscation necessary because of its effect as a deterrent.147

In conclusion, while M/V Virginia G certainly clarified some aspects of the prescriptive jurisdiction of the coastal state, there seems to be less agreement among the members of ITLOS with respect to the approach to be taken to the coastal state’s enforcement jurisdiction. In particular, there is little agreement concerning the standard of review to be applied regarding the ‘necessity’ of the particular enforcement measures adopted by a coastal state. 4.6

The Prompt Release Cases

ITLOS has also had the opportunity to comment on Article 73 in the context of nine ‘prompt release’ cases that have come before it. Of necessity, ITLOS has focused on the prompt release and reasonable bond requirements of paragraph 2; although it has also noted that this paragraph must be read ‘in the context of article 73 as a whole’, and that the obligation of prompt release ‘includes elementary principles of humanity and due process of law’.148 In assessing

Ibid para 21. Ibid para 19. 146 Ibid. 147 Ibid para 21. 148 ‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, 17 (para 77). 144 145

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the reasonableness of any bond or other security, ITLOS has indicated that various: (non-exhaustive) factors may be relevant, including ‘the gravity of the alleged offences, the penalties imposed or imposable under the laws of the detaining State, the value of the detained vessel and of the cargo seized, the amount of the bond imposed by the detaining State and its form.’149

Furthermore, in Monte Confurco ITLOS commented on the function of the institution of prompt release and the relationship between Articles 73 and 292 as follows: Article 73 identifies two interests, the interest of the coastal State to take appropriate measures as may be necessary to ensure compliance with the laws and regulations adopted by it on the one hand and the interest of the flag State in securing prompt release of its vessels and their crews from detention on the other. It strikes a fair balance between the two interests. It provides for release of the vessel and its crew upon the posting of a bond or other security, thus protecting the interests of the flag State and of other persons affected by the detention of the vessel and its crew. The release from detention can be subject only to a ‘reasonable’ bond… Similarly, the object of article 292 of the convention is to reconcile the interest of the flag state to have its vessel and its crew released promptly with the interest of the detaining state to secure appearance in its court of the Master and the payment of penalties… The balance of interests emerging from articles 73 and 292 of the convention provides the guiding criterion for the Tribunal in its assessment of the reasonableness of the bond.150

In Volga ITLOS concluded that the detaining state (Australia) was not entitled to impose conditions associated with the bonding requirement that would have required the detained vessel to install a vessel monitoring system and observe conservation measures established by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) until the conclusion of legal proceedings and a further condition designed to require disclosure of the underlying beneficial ownership of the vessel.151 In doing so, however, ITLOS emphasized that it was merely considering whether such a good behaviour bond could be required under Article 73(2); it took no final position as to

149 ‘Camouco’ (Panama v France), Prompt Release, Judgment, ITLOS Reports 2000, 10 (para 67). 150 ‘Monte Confurco’ (Seychelles v France), Prompt Release, Judgment, ITLOS Reports 2000, 86 (paras 70–2). 151 ‘Volga’ (Russian Federation v Australia), Prompt Release, Judgment, ITLOS Reports 2002, 10.

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whether a coastal state might impose such requirements as part of the legitimate exercise of the coastal state’s sovereign rights in its EEZ.152 While the majority judgments of ITLOS have generally taken a narrow view of the context of Article 73(2) (looking only at the balance of Article 73), various permanent and ad hoc members of ITLOS have taken a more expansive approach. They have chosen to emphasize that the context of the coastal state’s exercise of its enforcement powers and any related bonding requirements includes the obligations of the coastal state under Article 61, as well as in some cases obligations under related instruments, such as the CCAMLR.153 Given the reluctance of the majority to place Article 73(2) in a broader context, the most recent unanimous ‘prompt release’ decision of ITLOS in The Hoshinmaru is perhaps particularly worthy of note.154 This case involved the arrest of the Japanese fishing vessel Hoshinmaru for breach of Russia’s fishing regulations. The ship was licensed to fish in the Russian EEZ pursuant to a cooperative arrangement between Russian and Japan, but the alleged offences included misrepresenting the species of fish caught and misrepresenting the data in a fishing log and a daily fishing report. In assessing the reasonableness of the bond in light of the guidance provided in Camouco and Monte Confurco, ITLOS noted that the incident did not entail fishing without a licence155 and might be regarded ‘as transgressions within a broadly satisfactory cooperative framework’.156 Nevertheless, ITLOS was not prepared to regard the offence as a minor or technical offence. It observed: Monitoring of catches, which requires accurate reporting, is one of the most essential means of managing marine living resources. Not only is it the right of the Russian Federation to apply and implement such measures but the provisions of article 61, paragraph 2, of the Convention should also be taken into consideration to ensure through proper conservation and management measures that the maintenance of the living resources in the [EEZ] is not endangered by over-exploitation.157

In sum, the ‘prompt release’ cases provide a specialized body of jurisprudence that to date has focused on the interpretation and application of Article 73(2). 152 Ibid paras 76 and 79. It is hard to see how this could be objectionable in the context of a coastal state providing access to its EEZ. 153 See the Dissenting Opinion of Judge Anderson in Volga (paras 2 and 21), where he refers to Articles 61, 64 and 116–20 of UNCLOS. Available on the ITLOS website, www​.itlos​.org/​cases/​list​-of​-cases/​case​-no​-11, last accessed 10 December 2019. See also the Dissenting Opinion of Judge Anderson in Camouco (n 149). Available at www​ .itlos​.org/​cases/​list​-of​-cases/​case​-no​-5/​, last accessed 10 December 2019. 154 The Hoshinmaru (n 119). 155 Ibid para 98. 156 Ibid para 99. 157 Ibid.

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At times, ITLOS has been badly divided in its interpretative approach, with the majority reluctant to set this paragraph in a broader legal and social context. The notably unanimous Hoshinmaru decision indicates a possible change; but that is difficult to confirm, in the absence of any more recent decision since 2007.

5. CONCLUSIONS In his 2007 article on the fisheries jurisprudence of ITLOS, Robin Churchill concluded (at that time) that there was ‘little in the net’, and that ITLOS had had little opportunity to clarify many of the ‘open-textured and broadly drawn’ fisheries provisions of UNCLOS.158 Recent years, however, have seen significant new decisions – some from ITLOS; others from Annex VII tribunals. The principal contributions from ITLOS dealing with the prescriptive and enforcement jurisdiction of the coastal state have been its decision in M/V Virginia G and its important Advisory Opinion on IUU Fishing. While the latter mainly concerned the obligations of flag states, ITLOS also offered important guidance to coastal states, emphasizing their principal ‘due diligence’ responsibility to ensure that the living resources of the EEZ are not endangered by over-exploitation, and that this obligation also concerns coastal state duties to cooperate with respect to shared stocks and highly migratory species. While Virginia G offers important guidance concerning both the prescriptive and the enforcement jurisdiction of the coastal state, guidance offered appears clearer as regards the former than the latter. Concerning the former, ITLOS has adopted a broad interpretation of conservation and management, but seems badly divided on the question of the standard of review to be applied when it is called upon to review the ‘necessity’ of the enforcement measures promulgated and then taken under Article 73(1). In my view, the multi-authored dissenting opinion and the dissenting opinion of Sérvulo Correia are more convincing than the judgment on the appropriate role of a tribunal in reviewing a coastal state’s enforcement actions under Article73(1) – where the majority failed to expressly address the applicable standard of review. A similar tension is evident in ITLOS’s ‘prompt release’ jurisprudence, with the majority reluctant to embrace a more contextualized assessment of coastal state responses that takes full account of their conservation and management responsibilities under Article 61 in assessing the reasonableness of bonding requirements under Articles 73(2) and 292. Surprisingly, ITLOS has not been

158 Churchill, ‘The Jurisprudence of the International Tribunal for the Law of the Sea Relating to Fisheries: Is There Much in the Net?’ (n 13) 423.

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called upon since 2007 to provide further guidance on prompt release. It would be interesting to know if ITLOS’s predilection for second-guessing coastal states has had the same chilling effect on the willingness of coastal states to push their enforcement authority (and responsibility) as has been attributed to the decisions of investment tribunals adopting broad interpretations of the fair and equitable treatment standard.159 This would be a difficult question to research, but it may merit attention in view of the important responsibilities that coastal states have assumed under UNCLOS, and as ITLOS has affirmed. Annex VII tribunals have also offered important clarifications concerning some of the many jurisdictional issues related to fisheries that are embedded in Part XV of UNCLOS. These tribunals have also clarified other important matters. For example, the South China Sea Arbitration emphasized the exclusive nature of the fisheries entitlement of the coastal state as well as the environmental obligations of all states – including coastal states – with respect to marine ecosystems. Similarly, the Chagos award offers guidance as to the ‘due regard’ responsibilities of the coastal state – but this highly contextualized duty will need to be further clarified.

159 See, for example, K. Tienhaara, ‘Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor-State Dispute Settlement (2018) 7 Transnational Environmental Law 229.

5. Managing transboundary fish stocks for sustainability Andrew Serdy 1. INTRODUCTION Fisheries for stocks found on both sides of a boundary of one kind or another (‘straddling stocks’) share with deep seabed mining the distinction that the contribution of the international judiciary has come mainly – though in the case of fisheries, not exclusively – by way of an advisory opinion, rather than through judgments rendered in contentious cases. Although several contentious cases on fisheries relating to such stocks have been brought by states since the entry into force of the United Nations Convention on the Law of the Sea (UNCLOS),1 none has to date lasted all the way through to a decision on the merits: two were settled and two dismissed for want of jurisdiction – albeit in one of them, not before significant provisional measures had been ordered by the International Tribunal for the Law of the Sea (ITLOS). This chapter begins by setting out the rights and obligations of coastal and other states in ensuring the conservation and management of shared, straddling and highly migratory stocks as laid down in the relevant provisions of UNCLOS. It then examines the cases, concentrating on the 2015 advisory opinion rendered by ITLOS2 and to a lesser extent the provisional measures phase of Southern Bluefin Tuna.3

United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3. Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, ITLOS Reports 2015, 4. 3 Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 280 (hereinafter ‘SBT Provisional Measures Order’). 1 2

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OBLIGATIONS CONCERNING TRANSBOUNDARY STOCKS

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UNCLOS has a series of provisions relating to fish stocks whose range or migratory paths have transboundary elements because they span the exclusive economic zone (EEZ) of one state (extending from the outer limit of the territorial sea to no more than 200 nautical miles (nm) from the baseline)4 and that of another state and/or the high seas. The most significant of these are Articles 63 and 64 of UNCLOS on shared, straddling and highly migratory stocks, defined below. However, these are not the only transboundary marine living resources for which UNCLOS makes specific provisions. Of transboundary character are also anadromous species, for which Article 66 places primary responsibility for management with the state of origin. Normally, such species may be exploited only within the EEZ – but where others have traditionally fished there, international consultations to enable continuance of this are envisaged. Cooperation is required where the fish migrate through neighbouring EEZs. Similarly, for catadromous species, Article 67 gives responsibility for management to the states in whose waters the species spends the greater part of its lifecycle; harvesting takes place only in their EEZs (or landward), in cooperation with their neighbours through whose waters the fish pass. Neither category is further considered in this chapter, as their management has not been the subject of international litigation; nor are marine mammals, even though cetaceans – including whales – are listed in Annex I to UNCLOS.5 The basic obligation in Article 63 with respect to shared and straddling stocks in paragraphs 1 and 2, respectively, is to attempt to cooperate: states are to ‘seek to agree’ on the measures necessary for managing the stock. Shared stocks – a term not appearing in the text of UNCLOS, but commonly used to refer to the stocks covered by paragraph 1 – are those occurring in two or more neighbouring EEZs, sometimes migrating from one to the other at predictable times in their lifecycle or annually. For these, the agreement to be sought is prescribed by paragraph 1 on measures ‘necessary to co-ordinate and ensure Article 57 of UNCLOS. Although Article 65 (extended to the high seas by Article 120) also includes an obligation to cooperate, UNCLOS was not among the several treaties that in 2010 Australia alleged Japan to have breached by its scientific whaling; by the time the International Court of Justice (ICJ) handed down its decision in 2014 (Whaling in the Antarctic (Australia v Japan: New Zealand intervening), Judgment, ICJ Reports 2014, 226), the claim had been narrowed to breach of the International Convention for the Regulation of Whaling (161 UNTS 72) only. 4 5

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the development of such stocks’. For straddling stocks – a phrase likewise absent from UNCLOS, but given currency by the UN Fish Stocks Agreement6 as shorthand for stocks that ‘occur both within the exclusive economic zone and in an area beyond and adjacent to the zone’ (ie, on both sides of an EEZ/ high-seas boundary) – the duty that by paragraph 2 falls on the coastal state and any state fishing in the adjacent part of the high seas may be pursued either directly or through a (sub-)regional fisheries management organization. In either case, it is aimed at agreeing on the measures ‘necessary for the conservation of these stocks in the adjacent area’. Strictly, the obligation does not apply to the coastal state in its EEZ – although in practice, a state refusing to cooperate will find it considerably harder to elicit cooperation from those fishing for the same stock on the high seas and not reliant on access to the coastal state’s ports; this can have a deleterious effect on the stock even when it accounts for only a small proportion of the fishery. Highly migratory species are governed by Article 64 and are listed in Annex I of UNCLOS. Here there is a stronger obligation of international cooperation for their conservation and management, such that one unsuccessful attempt may not be sufficient: coastal states and other states fishing for these stocks must cooperate ‘directly or through appropriate international organizations with a view to ensuring conservation and promoting the optimum utilization of such species throughout the region, both within and beyond the [EEZ]’. In addition, where appropriate organization exists already, the relevant states ‘shall cooperate to establish such an organization and participate in its work’. All these provisions are stated to be in addition to the other provisions in Part V of UNCLOS – meaning in particular that the coastal state does not lose the right to exclude foreign fishing for any stock in its EEZ merely because the stock is not wholly confined within that zone. While the regime exhibits a degree of complexity reflecting the varying geographical distributions and behaviours of different stocks with respect to political boundaries, the general norm is that the coastal state may exercise sovereign rights for the exploration, exploitation, conservation and management of fish stocks.7 This includes straddling and highly migratory stocks while they are present in an EEZ.8 The exercise of these rights is, however, subject to the limitation of due regard

6 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, 2167 UNTS 3. 7 Article 56(1)(a) of UNCLOS. 8 J. Harrison and E. Morgera, ‘Article 63’ in A. Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (Verlag C.H. Beck/HArticle Publishing/Nomos Verlagsgesellschaft 2017), 506, 509.

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to the rights and duties of other states.9 The high-seas provisions of Articles 88–115 apply in principle to the EEZ, but only insofar as they are consistent with the EEZ provisions themselves.10 Foreign vessels are to abide by coastal states’ EEZ laws, provided that these are compatible with UNCLOS and other rules of international law (eg, on marine pollution) – although there is no such qualification of the freedom of navigation that fishing vessels retain in the EEZ.11 There is not much difference between the prescriptions in Article 61, by which the coastal state should manage its stocks in its EEZ; and Article 119, which is the equivalent for the high seas. Under the former, the coastal state must determine the allowable catch of living resources in its EEZ.12 Its obligations are to avoid over-exploitation, based on the best scientific evidence available; and to cooperate with regional and global management of fisheries, including exchanging data.13 This will be especially relevant when the stock is one of a transboundary character. Specifically, the coastal state must maintain populations at, or restore them to, the levels generating the maximum sustainable yield (MSY), qualified by economic considerations, such as the needs of fishing communities, as well as generally recommended international standards.14 Also applicable to intra-EEZ and transboundary stocks alike is the regime for foreign fishing vessels’ access to the EEZ laid down in Article 62. The first of its four paragraphs states that coastal states must promote optimum utilization, without prejudice to Article 61.15 Coastal states are to determine their own harvesting capacity in respect of each stock in their EEZs; others have a right of access to the surplus – that is, the difference between the allowable catch calculated under Article 61 and the coastal state’s own capacity, subject to regard for landlocked and geographically disadvantaged states, especially developing countries among them.16 Considerations that may weigh on an



Article 56(2) of UNCLOS. Article 58(2) of UNCLOS. 11 Articles 58(1) and (3) of UNCLOS. 12 Article 61(1) of UNCLOS. 13 Articles 61(2) and (5) of UNCLOS. 14 Article 61(3) of UNCLOS. These international standards may be found in instruments of the Food and Agricultural Organization of the UN (FAO), such as the International Plans of Action and the 1995 Code of Conduct for Responsible Fisheries. See J. Harrison and E. Morgera, ‘Article 61’ in Proelss (n 8) 480, 487. Although there are numerous problems with the concept of MSY (ibid 485 and sources there cited), it is well entrenched in international fisheries law, albeit with a subtle change of roles in the UN Fish Stocks Agreement: see infra, text at n 23. 15 Article 62(1) of UNCLOS. 16 Article 62(2) of UNCLOS. 9

10

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individual coastal state’s preferences as to the distribution of the surplus are given wide scope: all relevant factors may be taken into account – including the significance to its own economy and its other interests; Articles 69 and 70 on landlocked and geographically disadvantaged states; as well as the need to minimize economic disruption to those states whose vessels have traditionally fished in what is now the EEZ, but at the time were exercising the freedom of fishing on the high seas, and those states having contributed to research on the stocks in question.17 Coastal states may subject access to the surplus to regulations, restrictions or conditions, of which a non-exhaustive list is given in paragraph of Article 62: these include licensing of fishermen and vessels, which may require payment of fees or transfer of technology; species, quotas and periods, per vessel or per country; seasons and areas, type, size and amount of vessels or gear; size and/or age restrictions on fish that may be caught; information requirements, such as catch and effort statistics or position reports; research programmes; any requirement to carry coastal state observers on board the foreign vessels, land their catch in its ports or enter into a joint venture with a local fishing operator; and enforcement procedures.18 While this regime appears to create preferential rather than exclusive rights, the compulsory dispute settlement provisions of Part XV of UNCLOS exclude the discretionary determination by coastal states of the allowable catch and their own harvesting capacity – no dispute on these can go to the dispute settlement procedures without the coastal state’s consent.19 This, combined with the open-ended and numerous criteria for granting access as noted, in fact renders the coastal state’s rights all but exclusive in effect. In practice, the extent to which any coastal state is prepared to allow foreign fishing fleets access to the stocks present in its EEZ often depends on its perception of its own national benefit and its relative negotiating strength vis-à-vis fishing states. Until the closing years of the twentieth century, several distant-water fishing states maintained a series of access agreements under Article 62 with a wide range of coastal states, but many of these have been allowed to expire without being renewed. On the other hand, the EU remains a keen user of such agreements, to ensure access of its fishing fleets to EEZs in other parts of the world. 2.2

Enforcement in the EEZ

The powers available to coastal states for enforcing the conservation and management measures they enact for their EEZs are found in Article 73 (which

Article 62(3) of UNCLOS. Article 62(4) of UNCLOS. 19 Article 297(3) of UNCLOS. 17 18

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may be supplemented under Article 62(4)(k) by agreement with states seeking fishing access to the EEZ):20 the coastal state may board, inspect and arrest vessels in its EEZ on suspicion of violating its regulations, with the obligation to release them promptly on posting of a reasonable bond. No imprisonment or corporal punishment of master and crew is permitted without the agreement of the flag state, which must be promptly informed of all action taken. Often, however, despite insisting in principle on the right to control all activity in its EEZ, a coastal state will in practice choose to rely on the flag state to enforce its rules – a particular temptation where there is a language barrier. This dilution of the incentive to comply with coastal state law sometimes causes difficulties; one commentator writing before the delivery of the 2015 Advisory Opinion argued that Article 58(3) is not a suitable basis for the flag state’s duties, and Article 94 only incidentally so.21 These provisions are complemented by several articles in Part VII which are relevant to fishing on the high seas for transboundary stocks and reinforce the duty of cooperation.22 Most high-seas fishing is in fact partly regulated under Part V on the EEZ, because few stocks are completely oceanic: most fish caught on the high seas are either straddling stocks or highly migratory species. 2.3

High Seas – UNCLOS and the UN Fish Stocks Agreement

Article 87(1) preserves the high-seas freedom of fishing deriving from customary international law, subject to Section 2 of Part VII (ie, Articles 116–20). Article 116 provides that all states have the right for their nationals – including 20 See V.J. Schatz, ‘Combating Illegal Fishing in the Exclusive Economic Zone – Flag State Obligations in the Context of the Primary Responsibility of the Coastal State’ (2016) 7 Göttingen Journal of International Law 383, arguing (402–5) that while clearly articulated obligations for flag states in respect of fishing by their vessels in foreign EEZs would be welcome, the wide variety of such supervisory measures found in fishing access treaties is a twofold argument against the proposition that such obligations already exist in customary international law: the variety itself militates against uniformity of state practice; and, as no such provisions would be needed if clear customary obligations existed, their very presence in the treaties suggests the opposite. 21 Ibid 395–99, concluding that the difficulty some coastal states have in policing their EEZs is not in itself a ground for reinterpreting UNCLOS so as to shift the duty onto the flag state. See also by the same author, but after the Advisory Opinion, V. Schatz, ‘Fishing for Interpretation: the ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (2016) 47 Ocean Development & International Law 327, 337. Here Schatz argues that ITLOS was correct in not applying Article 94(5) (as opposed to Article 61(3)) as allowing for the application by reference of soft-law instruments; but concedes that it is ‘difficult, but not impossible, to read a moderate supervisory flag state obligation’ into Article 58(3). 22 Articles 87 and 116–19 of UNCLOS.

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vessels flying their flag – to engage in fishing on the high seas, subject to: (1) their treaty obligations; (2) the rights and duties, as well as the interests, of coastal states provided for in, among others, Articles 63(2) and 64–67 (ie, straddling and highly migratory stocks, marine mammals, anadromous and catadromous species); and (3) the remaining provisions of Section 2. These begin with the brief Article 117, by which ‘[a]ll States have the duty to take, or to cooperate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas’. Article 118 expands on this by requiring states to cooperate with each other in the conservation and management of high-seas living resources when their nationals exploit identical living resources, or different living resources in the same area, by negotiating measures to conserve these resources and establishing (sub-)regional fisheries organizations to this end. Further, by paragraph 1 of Article 119, the allowable catch and other conservation measures for living resources in the high seas must be designed to maintain or restore populations of harvested species to the level corresponding to the MSY, as qualified by relevant environmental and economic factors, while maintaining or restoring populations of associated or dependent species above levels at which their reproduction may become seriously threatened. This wording closely parallels that of Article 61 in Part V. In addition, according to paragraph 2, available scientific information, catch and fishing effort statistics and other data relevant to the conservation of fish stocks must be contributed and exchanged regularly through competent international organizations, with participation by all states concerned. Paragraph 3 provides that the conservation measures and their implementation must not discriminate in form or in fact against the fishermen of any state. For those states that are party to it, Articles 63(2) and 64 are supplemented by the UN Fish Stocks Agreement, whose objective is to ensure long-term conservation and sustainable use of straddling and highly migratory fish stocks by strengthening the legal regime, especially through global and (sub-)regional fisheries management organizations (RFMOs). Although the Agreement is largely aimed at the high-seas component of the relevant fisheries, Articles 5–7 also apply in the EEZ: these relate to the precautionary approach to fisheries (Articles 5 and 6 and Annex II)23 and compatibility of high-seas and EEZ 23 Contrary to the position prevailing in some other contexts, the precautionary approach to fisheries does not shift the onus of proof so as to shut down fisheries, unless they can be affirmatively shown to be sustainable. Rather, it entails managing fisheries by target and limit reference points; MSY is now the limit, not the target; and pre-agreed action is taken if the limit is approached or breached. Under the UN Fish Stocks Agreement (n 6), parties must adopt measures to ensure the long-term sustainability of these stocks and to promote their optimum utilization (Article 5(a)); ensure that

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conservation and management measures for the same stock (Article 7). The silence of ITLOS about these in its Advisory Opinion (other than the separate opinion of one judge, in which context they are discussed further below) suggests that it did not see any of the provisions as having attained the status of customary international law. In turn, Article 7 obliges parties to cooperate – either directly or through RFMOs – to achieve compatible conservation and management measures in respect of straddling and highly migratory stocks.24 In determining such measures, states must take into account the measures applied to the same stocks by coastal states in their EEZs. They must ensure that high-seas measures for those stocks do not undermine their effectiveness; previously agreed measures applied on the high seas for the same stocks (whether by RFMOs or directly by states); the biological unity and other characteristics of the stocks, including the extent to which they occur and are fished in EEZs; and the respective dependence on the stocks concerned of the coastal states and the states fishing on the high seas. The measures must have no harmful impact on living marine resources as a whole.25 States must make every effort to agree on compatible conservation and management measures within a reasonable time; pending that agreement, every effort to enter into provisional arrangements of a practical nature must be made.26 If they fail on either score, any state concerned may invoke the dispute settlement procedures found in Part VIII of the Agreement, in the latter case for the purpose of obtaining provisional measures.27 Coastal states and states fishing on the high seas must regularly inform each other, directly or through RFMOs, of the measures they have adopted for straddling and highly migratory fish stocks within areas under their national jurisdiction or for regulating the fishing by vessels flying their flag for such stocks on the high seas.28 Part III of the Fish Stocks Agreement contains mechanisms for international cooperation in the conservation and management of straddling and highly migratory stocks. States having a real interest in the fishery are obliged to measures are based on the best scientific evidence available and are designed to maintain or restore stocks to sustainable levels (Article 5(b)); and apply the precautionary approach (Articles 5(c) and 6(1)). This is explained in more detail in Annex II, whose paragraph 6(4) contains an obligation to ensure that, when limits are approached, they are not exceeded; if they are exceeded, however, the specified restorative action must be taken without delay. The risk of exceeding the limits must be very low, and target points are not to be exceeded on average. 24 Ibid Article 7(1). 25 Ibid Article 7(2). 26 Ibid Article 7(3). 27 Ibid Articles 7(4)–(5). 28 Ibid Articles 7(7)–(8).

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pursue cooperation in relation to those stocks, directly or through appropriate RFMOs, which now play a key role. Notably, by paragraphs 3 and 4 of Article 8, where any RFMO is competent to establish conservation and management measures for such stocks, states must give effect to their duty to cooperate by doing one of three things: become members of the RFMO; apply the measures established by it; or refrain from fishing for the stocks concerned. To this, Article 17 adds that parties that are non-members or non-participants in the RFMO and do not agree to apply their measures must still cooperate in the conservation of relevant fish stocks. In particular, they must not authorize their vessels to engage in fishing for highly migratory and straddling stocks that are subject to the RFMO’s conservation and management measures.29 Extensive enforcement duties are imposed on the flag state by Articles 18 and 19. In order to ensure that vessels fishing on the high seas comply with (sub-)regional conservation and management measures, their flag states must establish a national record of fishing vessels authorized to fish on the high seas and take measures to permit only those vessels to do so. Further, they must impose conditions necessary to meet RFMO obligations; ensure their vessels do not fish without authorization in areas of national jurisdiction of other states; and collect and verify fishing vessel position and catch data.30 It is thus no longer sufficient for states parties to leave the conduct of their fishing vessels on the high seas unregulated: they are now under a positive duty to regulate them. Parties must ensure that vessels flying their flag comply with RFMO conservation and management measures; and must investigate alleged violations of them by those vessels, wherever they occur.31 If there is sufficient evidence of a violation, the flag state must institute proceedings in accordance with its laws, and detain the vessel or apply other sanctions severe enough to discourage violations and deprive offenders of the benefits of illegal fishing.32 A flag state must also ensure that a vessel involved in a serious violation of conservation or management measures does not re-start fishing on the high seas until it has complied with the sanctions imposed.33 Further, if a coastal state requests the flag state of a vessel on the high seas to investigate allegations that the vessel has fished unauthorized in its EEZ, the flag state must cooperate with the coastal state in taking enforcement action, and may authorize the coastal state to board and inspect the vessel on the high seas.34 The flag state must require vessel masters to cooperate and facilitate inspection on 31 32 33 34 29 30

Ibid Articles 17(1)–(2). Ibid Article 18(3). Ibid Articles 18(1) and 19(1)(b). Ibid Articles 19(1)(d) and (2). Ibid Article 19(1)(e). Ibid Article 20(6).

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the high seas, and must suspend the authorization to fish of any vessel whose master refuses its direction to allow boarding and inspection.35 The inspecting state must notify the flag state and permit it to investigate serious violations and take enforcement action against the vessel. Should the flag state fail to act, inspecting state authorities may remain on board the vessel and direct it to the nearest suitable port. Alternatively, the flag state may authorize the inspecting state to act on its behalf.36 Against this background, we can now turn to consideration of the issues that have arisen in litigation concerning international fisheries – with the caveat that the truncation of these actions by settlement or for want of jurisdiction has left most of them unresolved

3.

CONTENTIOUS CASES

3.1 Introduction The last fisheries case that resulted in a judgment on the merits predates the UNCLOS era: in 1974 in the Fisheries Jurisdiction cases,37 the International Court of Justice (ICJ) confirmed the exclusive fishing rights of coastal states out to 12 nm from the baseline as an entitlement of customary international law,38 and preferential rights on the high seas beyond, wherever the coastal state was dependent on them.39 Within only a few years, however, this was overtaken by the concept of the EEZ (Part V of UNCLOS), which accords to

Ibid Article 22(4). Ibid Article 21(6)–(8). 37 Fisheries Jurisdiction cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland), ICJ Reports 1974, 3 and 175 respectively. The ICJ was asked to review the lawfulness of Iceland’s claim to exclusive jurisdiction over fisheries out to 50 nm from its baseline, which did not concern transboundary fisheries as such, although the stocks from which Iceland was seeking to exclude foreign fishing vessels may well have occurred also in its territorial sea. The ICJ recalled the 1958 resolution of the (First) UN Conference on the Law of the Sea recognizing the special interest of coastal states in offshore resources; but, as the purpose of the Third UN Conference on the Law of Sea (UNCLOS III) then getting underway was in part to review this, it declined to pre-empt the Conference by pronouncing on the maximum limit beyond 12 nm, which it saw as lex ferenda (paras 50–53). This might depend on the extent to which the coastal state was dependent on offshore resources (para 70). Thus the ICJ held that Iceland had some entitlement to preferential rights beyond 12 nm, but not exclusive rights up to 50 nm, and an obligation to recognize other states’ historic fishing rights and to reach negotiated compromises on access to the preferential area in light of those rights, with an equitable apportionment (paras 67–8, 78). 38 Ibid para 52. 39 Ibid paras 58–60. 35 36

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the coastal state sovereign rights to explore and exploit, conserve and manage, among other things, the living resources of the water column of this zone.40 It is within Part V that the main provisions on transboundary stocks are found. Since UNCLOS entered into force in 1994, there have been several fisheries-related cases in ITLOS;41 but the bulk of these have concerned the coastal state’s obligation to release promptly, on payment of a reasonable bond, foreign vessels detained for fisheries offences in its EEZ, to which the transboundary status or otherwise of the stocks being fished is irrelevant. The same applies to the finding by ITLOS in 2014 that bunkering of fishing vessels falls under coastal state fisheries jurisdiction, including potential confiscation of vessels engaging in it unlawfully, to the extent necessary to ensure compliance with coastal state regulations.42 However, this potentially creates significant inroads into the residual freedom of navigation preserved by Article 58 mentioned above,43 which the flag state here unsuccessfully argued should have been the dominant principle. Both the settled cases on transboundary fisheries featured the EU as a party, albeit on opposite sides of the argument. The Swordfish case was brought in 2000 to both a panel created by the Dispute Settlement Body of the World Trade Organization (WTO) and a Special Chamber of ITLOS. The ITLOS case was in essence a countersuit by Chile after the European Community (as it then was called) complained to the WTO of breach of Articles V and XI of the General Agreement on Tariffs and Trade44 through Chile’s refusal to allow Spanish vessels to tranship swordfish caught on the high seas through its ports

Article 56(1)(a) of UNCLOS. ‘Camouco’ (Panama v France), Prompt Release, Judgment, ITLOS Reports 2000, 10; ‘Monte Confurco’ (Seychelles v France), Prompt Release, Judgment, ITLOS Reports 2000, 86; ‘Grand Prince’ (Belize v France), Prompt Release, Judgment, ITLOS Reports 2001, 17; ‘Volga’ (Russian Federation v Australia), Prompt Release, Judgment, ITLOS Reports 2002, 10; ‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, 17; ‘Hoshinmaru’ (Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 18; ‘Tomimaru’ (Japan v Russian Federation), Prompt Release, Judgment, ITLOS Reports 2005–2007, 74. To these can be added both Saiga cases, which were not fisheries cases, despite involving a fishing vessel: M/V ‘SAIGA’ (Saint Vincent and the Grenadines v Guinea), Prompt Release, Judgment, ITLOS Reports 1997, 16; M/V ‘SAIGA’ (No. 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10. 42 M/V Virginia G (Panama v Guinea-Bissau), ITLOS Reports 2014, 4, where the coastal state was ordered to reverse the confiscation because it was deemed not necessary to ensure enforcement of its laws in accordance with Article 73(1). 43 Supra, text at n 11. 44 Since the entry into force in 1995 of the Agreement Establishing the World Trade Organization (1867 UNTS 3), the General Agreement on Tariffs and Trade has been 40 41

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to Europe and the US. The cases presented to the Special Chamber involved claims by Chile that the Community had failed to comply with its obligations under UNCLOS Article 64 to cooperate directly with Chile, as a coastal state, to conserve swordfish on the high seas adjacent to Chile’s EEZ and to report its catches and other information relevant to this fishery to Chile; and claims by the European Community that a Chilean decree purporting to apply unilateral conservation measures relating to swordfish on the high seas breached the related high-seas fisheries Articles of UNCLOS (87, 89 and 116–119); and further, that the Galapagos Agreement concluded by Chile, Colombia, Ecuador and Peru in 2000 was inconsistent with Articles 64 and 116–119; and that Article 64 imposed a positive requirement on Chile and the Community to negotiate an agreement on cooperation.45 Although these claims all raised important issues that would have benefited from judicial consideration, no arguments were made, as the clock was repeatedly stopped on the timetable for memorials. Eventually, in 2009, both cases were settled before pleadings were exchanged.46 Not long afterwards, a dispute brewing for some years between Denmark (in right of the Faroe Islands) and the EU over allocation of herring stocks in the Northeast Atlantic came to a head in 2013 with the imposition by the EU of trade bans against both mackerel and herring from the Faroes and closure of its ports to vessels capturing them under licence from the Faroes. Like the Swordfish case, actions were initiated both under Part XV of UNCLOS and in the WTO; but on this occasion the same party (Denmark) instituted both sets of proceedings. The UNCLOS limb of the dispute concerned the application and interpretation of Article 63(1) on shared stocks.47 Both parts of the dispute

maintained in force among members of the WTO pursuant to Articles II(2) and (4) of the former. 45 Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European Community), Order of 20 December 2000, ITLOS Reports 2000, 148, at 149–50. The Galapagos Agreement has not entered into force and to all intents and purposes has been superseded by the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (Auckland, 14 November 2009), www​ .sprfmo​.int/​assets/​Basic​-Documents/​Convention​-web​-12​-Feb​-2018​.pdf, last accessed 10 December 2019), to appear in UNTS Vol. 2899. 46 WTO doc WT/DS193/4 (3 June 2010), Chile – Measures Affecting the Transit and Importation of Swordfish, Joint Communication from the European Union and Chile; Conservation and Sustainable Exploitation of Swordfish Stocks (Chile/European Union), Order of 16 December 2009, ITLOS Reports 2008–2010, 13. 47 See Permanent Court of Arbitration Case Nº 2013–30, In the Matter of the Atlanto-Scandian Herring Arbitration before an Arbitral Tribunal constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Kingdom of Denmark in respect of the Faroe Islands (Applicant) and the European

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were settled in 2014,48 with agreed catch limits, but the finer details of the terms on which this occurred have not been made public. The earlier of the cases to which a jurisdictional challenge was upheld concerned the Spanish-flagged fishing vessel Estai, seized by Canada in 1995 while fishing on the high-seas part of the Grand Banks of Newfoundland, under the then-European Community’s objection to a Northwest Atlantic Fisheries Organization conservation measure by which the Community and its member state Spain had thus escaped being bound. Although UNCLOS was by then in force generally, Canada was not yet party to it and the merits would have been decided under customary international law.49 Canada had, however, amended its acceptance of the ICJ’s jurisdiction under Article 36, paragraph 2, of the ICJ Statute some months earlier and successfully challenged the ICJ’s jurisdiction.50 Because Canada’s objection to the ICJ’s jurisdiction was lodged promptly after the Spanish application, the jurisdictional challenge was pleaded, heard and decided before any memorials putting forward arguments on the merits were required, so these, as far as can be ascertained, never came into existence. 3.2

Southern Bluefin Tuna

The Southern Bluefin Tuna case is worth considering at greater length, however, as several findings significant for transboundary stocks in general were made before its ultimate dismissal when a preliminary objection was

Union (Respondent), Termination Order, https://​pcacases​.com/​web/​sendAttach/​781, last accessed 10 December 2019. 48 WTO Doc WT/DS469/3 (25 August 2014), European Union – Measures on Atlanto-Scandian Herring: Joint Communication from Denmark in respect of the Faroe Islands and the European Union. 49 Although it is uncertain whether the conclusion that Article 63(2) reflects customary international law would have been reached in 1995, for contemporary purposes it is significant that the debate is now about whether this is true of some provisions of the UN Fish Stocks Agreement which implement it. See, for example, Harrison and Morgera, ‘Article 63’ (n 8) 511–12. In any event, the high-seas location of the fishing operations of the Estai would also have brought into play Articles 116 to 118, about which the same conclusion has long been made without real controversy. S.B. Kaye, International Fisheries Management (Kluwer Law International 2001) 322, notes that it was accepted by both coastal and distant-water states negotiating about the Bering Sea pollock fishery, and this can be concluded without too much difficulty from Article 119 through the cross-reference to it in Article 116. 50 For the facts, see Fisheries Jurisdiction (Spain v Canada), Jurisdiction of the Court, Judgment, ICJ Reports 1998, 432.

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upheld.51 The applicants’ case was that an experimental fishing programme by Japan to resolve uncertainty in the stock assessment of the eponymous species was in breach of its obligations under Articles 64 and 116–119, of UNCLOS and, in addition, Article 300 on good faith; as well as the precautionary principle. Pending the constitution of an arbitral tribunal under Annex VII to UNCLOS, the applicants first sought from ITLOS provisional measures, including cessation of the programme. The Annex VII tribunal ultimately (and controversially) held that it lacked jurisdiction because the 1993 Convention for the Conservation of Southern Bluefin Tuna52 procedurally displaced UNCLOS through its optional dispute settlement clause, implicitly excluding recourse to UNCLOS’ compulsory procedures within the meaning of its Article 281(1).53 However, ITLOS, exercising default jurisdiction over the provisional measures application, found that the Annex VII arbitral tribunal would prima facie have jurisdiction over the dispute. It thus prescribed several provisional measures – including that the parties should each ensure that their catches did not exceed their last agreed annual national allocations, and refrain from conducting experimental fishing except with the agreement of the other parties, unless they stayed within those allocations. The speed with which it proved possible to seek and obtain provisional measures is notable. The applicants set in train on 15 July 1999 the process to constitute a tribunal under Annex VII to UNCLOS, seeking not just final relief,54 but also provisional measures. As it would take some time for the

51 Southern Bluefin Tuna Case between Australia and Japan and between New Zealand and Japan, Award on Jurisdiction and Admissibility, Decision of 4 August 2000, RIAA XXIII (2000) (hereafter SBT Preliminary Objections Award). 52 1819 UNTS 359. 53 Sir Kenneth Keith dissented: his view was that to displace UNCLOS a clear indication to this effect would have been needed in the 1993 Convention, but none was to be found there: SBT Preliminary Objections Award, Separate Opinion of Sir Kenneth Keith, ibid, 49, at 52–7, in particular at 54 (paras 18 (‘strong and particular wording’) and 19 (‘clear wording’)). This has since been endorsed in the South China Sea Arbitration Award: In the Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Award on Jurisdiction and Admissibility, 29 October 2015. Available at www​.pcacases​.com/​ web/​sendAttach/​1506, last accessed on 10 December 2019, paras 223–25. 54 New Zealand requested the arbitral tribunal to adjudge and declare that Japan had breached its conservation and management obligations under UNCLOS Articles 64 and 116–19, including by: (1) failing to adopt necessary conservation measures for its nationals fishing on the high seas to maintain or restore the southern bluefin tuna stock to levels which can produce the MSY; (2) carrying out unilateral experimental fishing in 1998 and 1999 which had resulted or would result in southern bluefin tuna being taken by Japan over and above its last agreed national allocation from the

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tribunal to be composed and be a position to hear applications of any kind, two weeks later, under the terms of Article 290(5), ITLOS gained jurisdiction over the provisional measures phase of the dispute; and on 30 July, Australia and New Zealand requested from it an order that Japan immediately cease its experiment.55 Japan’s response of 9 August argued that ITLOS should deny the provisional measures requested by the applicants, but included a counter-request for a different provisional measure: that Australia and New Zealand urgently and in good faith recommence negotiations with Japan for a period of six months to reach a consensus on the outstanding issues between them, including a protocol for a continued experimental fishing programme and the determination of a total allowable catch and national allocations for the year 2000. If no consensus were reached within the six months, any remaining disagreements should be referred for resolution to the panel of independent scientists assisting the working group on the design of an experimental fishing programme, whose terms of reference the parties had agreed in 1998.56 The hearing took place from 18 to 20 August and the order was handed down on 27 August. Under Article 290, paragraphs 1 and 5 of UNCLOS, there were three tests that the applicants had to meet: (1) the measures sought must be appropriate to preserve the parties’ rights or preventing serious harm to the marine environment pending the creation of the Annex VII tribunal; (2) the question must

Commission for the Conservation of Southern Bluefin Tuna; (3) taking unilateral action contrary to the rights and interests of New Zealand as a coastal state and discriminating against New Zealand fishermen by allowing its nationals to catch additional southern bluefin tuna in the course of experimental fishing; (4) failing to cooperate with New Zealand in good faith with a view to ensuring the conservation of UNCLOS; and (5) otherwise failing in its UNCLOS obligations, UNCLOS to conserve and manage southern bluefin tuna, having regard to the requirements of the precautionary principle. Therefore, New Zealand sought orders directing Japan to: (1) refrain from authorizing or conducting any further experimental fishing for southern bluefin tuna without the agreement of New Zealand and Australia; (2) negotiate and cooperate in good faith with New Zealand, including through the Commission, with a view to agreeing future conservation measures and a total allowable catch for SBT necessary for maintaining and restoring the stock to levels which could produce the MSY; (3) ensure that its nationals and persons subject to its jurisdiction not take a total annual catch of SBT above the amount of the previous national allocations agreed with New Zealand and Australia until agreement was reached with those states on an alternative level of catch; and (4) restrict its catch in any given fishing year to its national allocation as last agreed in the Commission, less the amount of SBT taken by Japan in the course of its unilateral experimental fishing in 1998 and 1999: SBT Provisional Measures Order (n 3) para 28. Australia made the same requests mutatis mutandis: ibid para 29. 55 Ibid para 31(1), New Zealand; para 32(1), Australia. 56 Ibid para 33.

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be sufficiently urgent for such measures to be required; and (3) ITLOS must be satisfied that the Annex VII tribunal would prima facie have jurisdiction over the dispute. They constructed their argument by reference to the principal relief sought in the statements of claim. The provisional measures ultimately sought from ITLOS were that: (1) Japan immediately cease unilateral experimental fishing for southern bluefin tuna; (2) Japan restrict its catch in any given fishing year to its national allocation as last agreed in the Commission for the Conservation of Southern Bluefin Tuna (‘the Commission’), subject to the reduction of such catch by the amount of SBT taken by Japan in the course of its unilateral experimental fishing in 1998 and 1999; (3) the parties act consistently with the precautionary principle in fishing for SBT pending final settlement of the dispute; (4) the parties ensure that no action be taken which might aggravate, extend or render more difficult solution of the dispute submitted to the Annex VII Arbitral Tribunal; and (5) the parties ensure that no action be taken which might prejudice their respective rights in respect of the implementation of any decision on the merits that the Annex VII Tribunal might render.57 ITLOS in essence ran the first and second tests together, against the background that ‘commercial fishing for [SBT] is expected to continue throughout the remainder of 1999 and beyond’.58 It noted that ‘Australia and New Zealand contend that further catches of [southern bluefin tuna], pending the hearing of the matter by an arbitral tribunal, would cause immediate harm to their rights’;59 but it did not comment on the applicants’ reasoning that, since the catch limit they were asking the future tribunal to prescribe for Japan for the 1999 season was about to be reached as fishing was continuing, only by urgent orders could this be prevented from happening. Instead, it held that ‘the conservation of the living resources of the sea is an element in the protection and preservation of the marine environment’,60 and went on to analyse the situation in these terms. While there was ‘no disagreement between the parties that the [southern bluefin tuna] stock…is severely depleted and is at its historically lowest levels and that this is a cause for serious biological concern’,61 it noted that there was ‘scientific uncertainty regarding measures to be taken to conserve the stock…and…no agreement among the parties as to whether the conservation measures taken so far have led to the improvement in the stock’– placing them at odds with each other as to whether Japan’s unilateral experimental fishing programme further threatened the stock and endangered its existence or was 59 60 61 57 58

Ibid para 31, New Zealand; para 32, Australia. Ibid para 75. Ibid para 69. Ibid para 70. Ibid para 71.

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‘necessary to reach a more reliable assessment of the potential of the stock to recover’.62 In those circumstances, ITLOS held, the parties should ‘act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the [southern bluefin tuna] stock’; further, although it could not ‘conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the… stock’.63 In this way, the first two conditions for ITLOS to order provisional measures were fulfilled. Although it did not react to the applicants’ argument that the precautionary approach must lead to the same end, Judge Treves in his separate opinion considered that this was in effect what ITLOS had found: [I]n order to resort to the precautionary approach for assessing the urgency of the measures to be prescribed in the present case, it is not necessary to hold the view that this approach is dictated by a rule of customary international law. The precautionary approach can be seen as a logical consequence of the need to ensure that, when the arbitral tribunal decides on the merits, the factual situation has not changed. In other words, a precautionary approach seems to me inherent in the very notion of provisional measures.64

As to the third test, ITLOS found that the parties’ conduct within the Commission as well as in their relations with others fishing the southern bluefin tuna stock was ‘relevant to an evaluation of the extent to which the parties are in compliance with their obligations under [UNCLOS]’, and was unpersuaded by Japan’s argument that the effect of the 1993 Convention as between its parties was to exclude their right to invoke UNCLOS provisions relating to the conservation and management of that stock.65 This served to knit together the two applicable instruments – a situation that will frequently exist in relation to transboundary stocks where, in addition to UNCLOS, the

Ibid paras 72–4, 79. Ibid paras 77 and 80. 64 Southern Bluefin Tuna, Separate Opinion of Judge Treves, ITLOS Reports 1999, 316, 318 (para 9); see also Separate Opinion of Judge ad hoc Shearer, ibid p. 320 at 327: ‘the measures ordered by the Tribunal are rightly based upon considerations deriving from a precautionary approach.’ S. Marr, ‘The Southern Bluefin Tuna Cases: The Precautionary Approach and Conservation and Management of Fish Resources’ (2000) 11 European Journal of International Law 815 at 826–28, queries why in view of this finding ITLOS did not order a complete cessation of fishing for SBT by all parties; the answer given by Judge ad hoc Shearer, ITLOS Reports 1999, 320, at 327–29, is that it had no power to order relief ultra petita, but the same reasoning prompted the brief Joint Declaration of Vice-President Wolfrum and Judges Caminos, Marotta Rangel, Yankov, Anderson and Eiriksson, ibid 302. 65 SBT Provisional Measures Order (n 3) paras 50–1. 62 63

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constitutive treaty of the pertinent RFMO also governs. Among other jurisdictional considerations, it is notable that ITLOS gave full weight to the phrase prima facie occurring twice in Article 290 by pronouncing itself satisfied that the UNCLOS provisions invoked by Australia and New Zealand ‘appear to afford a basis on which the jurisdiction of the [Annex VII] arbitral tribunal might be founded’, despite Japan’s contention that the mere fact that the 1993 Convention had its own built-in dispute settlement mechanism precluded recourse to any such tribunal or to the procedures in Part XV, Section 2 more generally.66 This led ITLOS to conclude that the requirements for invoking those procedures had been fulfilled, and that the future arbitral tribunal would prima facie have jurisdiction over the dispute.67 There is no necessary contradiction between the decision of ITLOS that prima facie jurisdiction existed and that of the Annex VII tribunal that it lacked jurisdiction, as the tests are different. In the provisional measures phase, the effect of the prima facie wording is that, as long as jurisdiction is not manifestly lacking, the court or tribunal should consider only why jurisdiction might exist, not why it might not– just as ITLOS did; it is in a subsequent phase that the question of whether jurisdiction over the dispute definitively exists will be determined. By large majorities,68 ITLOS decided that the parties must ‘each ensure that no action is taken’ that might ‘aggravate or extend the disputes submitted to the arbitral tribunal’,69 or ‘prejudice the carrying out of any decision on the merits which the arbitral tribunal may render’.70 It further ordered them to limit their respective annual catches to the last agreed national allocations, adding that ‘in calculating the annual catches for 1999 and 2000, and without prejudice to any decision of the arbitral tribunal, account shall be taken of the catch during 1999 as part of an experimental fishing programme’71 and ‘each [shall] refrain from conducting an experimental fishing programme involving the taking of a catch of [southern bluefin tuna], except with the agreement of the other parties or unless the experimental catch is counted against its annual national allocation’.72 ITLOS also urged the parties to ‘resume negotiations without delay with a view to reaching agreement on measures for the conservation and management of [southern bluefin tuna]’ 73 and ‘make further efforts to reach agreement with other States and fishing entities engaged in fishing for

Ibid paras 52–3 and 55. Ibid paras 61–2. 68 Twenty votes to two, except as indicated in the following footnotes. 69 SBT Provisional Measures Order (n 3) subpara 90.1(a). 70 Ibid subpara 90.1(b). 71 Ibid subpara 90.1(c), by 18 votes to 4. 72 Ibid subpara 90.1(d). 73 Ibid subpara 90.1(e), by 21 votes to 1. 66 67

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[southern bluefin tuna], with a view to ensuring conservation and promoting the…optimum utilization of the stock’.74 This proved very helpful to the applicants, and the Annex VII tribunal, despite dissolving those measures as a consequence of its finding that it lacked jurisdiction, made a point of noting that the effect of these measures had been to bring the parties’ positions closer together, which could not be ignored: the revocation ‘does not mean that the Parties may disregard the effects of that Order or their own decisions made in conformity with it’.75 One of New Zealand’s counsel subsequently wrote in a letter to the editor of a scholarly journal that the decision had been beneficial in helping the parties achieve resolution of their dispute.76 It may be thought that the greater share of the credit for this goes to the ITLOS provisional measures rather than the Annex VII tribunal’s decision against its own jurisdiction, which removed the legal pressure from one of the parties, as the tribunal itself appeared to concede in urging both sides to avoid unilateral actions that might aggravate the dispute before it could be resolved.77 The award was heavily criticized as reducing the Part XV compulsory binding dispute settlement framework to ‘a paper umbrella that dissolves in the rain’.78 Since then, the fact that the Annex VII tribunal in the South China Sea case took up the invitation by counsel for the Philippines to depart from the reasoning in the Southern Bluefin Tuna case in respect of Article 28179 lessens the likelihood that it will be followed in future, and this is conducive to a harmonious working of UNCLOS on one hand and treaties that create RFMOs on the other.

Ibid subpara 90.1(f). SBT Preliminary Objections Award (n 51) para 67. 76 B. Mansfield, ‘The Southern Bluefin Tuna Arbitration: Comments on Kwiatkowska’s Article’ (2001) 16 The International Journal of Marine and Coastal Law 361; see also SBT Preliminary Objections Award (n 51) paras 68–9. 77 Ibid para 70, last sentence. 78 J. Peel, ‘A Paper Umbrella which Dissolves in the Rain? The Future for Resolving Fisheries Disputes under UNCLOS in the Aftermath of the Southern Bluefin Tuna Arbitration’ (2002) 3 Melbourne Journal of International Law 53. The titular phrase is taken from remarks of counsel for Australia, Professor Crawford (as he then was) in the oral pleadings: see the relevant transcript, https://​icsid​.worldbank​.org/​ en/​Documents/​icsiddocs/​First​%20Round​%20Presentation​%20of​%20Australia​%20and​ %20New​%20Zealand​_May​%208​_2000​.pdf, last accessed 10 December 2019, 96. 79 Per Counsel for the Philippines, Mr Martin, in the transcript for 8 July 2015 in the Hearing on Jurisdiction and Admissibility, www​.pcacases​.com/​web/​sendAttach/​1400, last accessed 10 December 2019, 16. 74 75

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THE ITLOS ADVISORY OPINION

4.1 Background In 2015, ITLOS delivered an advisory opinion sought from it by the Sub-regional Fisheries Commission (SRFC). The SRFC lacked authority to request an advisory opinion under the instrument by which it was created.80 The SRFC is a vehicle by which the member states can, among other things, give effect to the duty of cooperation under Article 63(1), but is not confined in its mandate to shared stocks. It is not an RFMO in the sense of the UN Fish Stocks Agreement, as it has no power to regulate the fisheries in its members’ EEZs. Under the aegis of the SRFC, a further treaty was drafted in 2012, the Convention on the Determination of the Minimal Conditions for Access and Exploitation of Marine Resources within the Maritime Areas under Jurisdiction of the Member States of the Sub-Regional Fisheries Commission (MCA Convention).81 A the title indicates, this is an attempt to coordinate the members’ approaches to consenting to fishing by distant-water states in their respective EEZs, avoiding undercutting each other’s terms to attract foreign fleets to their overall detriment. By Article 33 of the MCA Convention, the SRFC’s Conference of Ministers is empowered to authorize its Permanent Secretary to ‘bring a given legal matter before [ITLOS] for advisory opinion’. In 2013, at its 14th session, the Conference of Ministers adopted such a resolution, authorizing the Permanent Secretary to seek an advisory opinion from ITLOS on four questions: 1. What are the obligations of the flag state in cases where illegal, unreported and unregulated (IUU) fishing activities are conducted within the [EEZ] of third-party states? 2. To what extent shall the flag state be held liable for IUU fishing activities conducted by vessels sailing under its flag?

80 Agreement Establishing a Sub-Regional Fisheries Commission, 1985, Article 2, www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​SRFC​_1985​_Convention​ _English​_translation​_May​_2013​_​_3​_​.pdf, last accessed 10 December 2019. It now has seven members: Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania, Senegal and Sierra Leone, as seen in the signatories to the decision of the Conference of Ministers that set in train the obtaining of the Advisory Opinion: ITLOS Advisory Opinion (n 2) para 2. 81 www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​Convention​_CMA​ _ENG​.pdf, last accessed 10 December 2019. It follows from the previous footnote that the same seven states are parties to this treaty.

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3. Where a fishing licence is issued to a vessel within the framework of an international agreement with the flag state or with an international agency, shall the state or international agency be held liable for the violation of the fisheries legislation of the coastal state by the vessel in question? 4. What are the rights and obligations of the coastal state in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna? ITLOS handed down its opinion in 2015, having entertained written and oral arguments from 27 states and the EU as parties to UNCLOS and from the US as party to the UN Fish Stocks Agreement, as well as the Commission itself and, among others, the FAO, the Forum Fisheries Agency and the International Union for the Conservation of Nature.82 A perhaps surprisingly high proportion of the literature on the opinion is devoted to the question of the jurisdiction of ITLOS to render an advisory opinion, as it is clear that UNCLOS contemplates no such jurisdiction in relation to itself except on a few carefully circumscribed matters in Part XI, where the Seabed Disputes Chamber is given that role. Despite the arguments to the contrary of eight states and the EU, ITLOS decided unanimously that it did have the necessary jurisdiction, basing itself on Article 21 of Annex VI to UNCLOS, its Statute, which contains a general reference to ‘all matters’ under any other agreement that confers jurisdiction on ITLOS – a phrase it contrasted with the term ‘disputes’ earlier in Article 21, to show that something wider must have been intended by the drafters.83 The

The full list can be seen in the ITLOS Advisory Opinion (n 2) para 17. Ibid paras 56–7. While the issue is beyond the scope of this chapter, the doubts raised by M. Lando, ‘The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission’ (2016) 29 Leiden Journal of International Law 441 and N. Peiris, ‘Advisory Opinion on Fisheries in the Exclusive Economic Zone from the International Tribunal for the Law of the Sea: The Birth of Regional Treaty-based Advisory Jurisdiction’ (2017) Ocean Yearbook 250, do not seem particularly compelling. The strongest counterargument may be found in the Declaration of Judge Cot, ITLOS Reports 2015, 73 (para 3), who points out that the French text of Annex VI omits any reference to ‘matters’, although Judge Cot himself preferred to base the jurisdiction of ITLOS on Article 138 of the Rules of Tribunal, on the reasoning that since the Rules were adopted in 1997, no state had hitherto challenged them (ibid para 4). This position was apparently shared by one other judge, who at the same time was at pains to deny any inconsistency between Article 138 and its parent treaty: Separate Opinion of Judge Lucky, ITLOS Reports 2015, 88, at 96–7 (para 21). While the Spanish ‘todas las cuestiones’ and Russian ‘все вопросы’ are in line with the English, as is the Arabic text, the Chinese text repeats the word corresponding to ‘applications’ earlier in the Article and thus may suggest the opposite. The author thanks Wassim Dbouk and Jenny Zhang respectively for assistance with the two last-mentioned authentic texts. 82 83

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source of its advisory jurisdiction, ITLOS made clear, is not Article 21 – much less Article 138 of the Rules of the Tribunal which, as a subordinate instrument, cannot contradict UNCLOS – but rather that other agreement, which operates in conjunction with Article 21 and whose function is to render ITLOS competent to accept and exercise that jurisdiction.84 4.2

The First Question: Flag State Responsibility for IUU Fishing

Regrettably, the four questions are far from well drafted; particularly the first one, which ITLOS found itself having to reformulate, taking the clumsy reference to ‘third-party States’ as meaning the member states of the SRFC itself – a sensible approach, as it was the problem of foreign fishing in their own EEZs that had been troubling the members for some years.85 This had the effect of severely limiting, though not removing altogether, the applicability of its provisions to transboundary stocks as such; although, as noted above, as a general proposition much, if not all, of what it said about fisheries in the EEZ in the broad will apply to all kinds of transboundary stocks there in any event. The jurisdictional limitation of the question to the EEZs of the seven SRFC member states has also been described as ‘illusory’, since everything ITLOS had to say about the application there of relevant UNCLOS provisions would apply equally in principle to the EEZs of other states,86 which may explain the opposition of some states to the jurisdiction of ITLOS in the case; and there is irony in most of the Advisory Opinion interpreting the provisions of UNCLOS rather than of the MCA Convention, on whose substance it barely comments. This is compounded by the flaw in the composite concept of IUU fishing, on which the present author has commented elsewhere. In the context of this question which is confined spatially to the EEZ even as originally formulated, if the unregulated component of IUU fishing exists there at all, that can happen only if the coastal state has completely failed to regulate it, so the remedy lies in that state’s own hands. By contrast, where the state has taken the trouble to

ITLOS Advisory Opinion (n 2) para 58. Ibid paras 87–9. The reformulation has two elements: correcting for the sloppy but common error of using the term ‘third [party]’ in the sense of ‘other’ when the legal relationship described is between two parties only is not sufficient, as this would still have left the question as referring to the EEZ of potentially any state other than the flag state. Careful not to expand the scope of the question beyond the confines of its jurisdiction, which was limited ratione loci by its derivation from the 2012 Convention that applied only to the parties’ own EEZs, ITLOS thus interpreted the question as referring only to those seven EEZs. 86 R. Churchill, ‘Dispute Settlement in the Law of the Sea: Survey for 2015 – Part I’ (2016) 31 The International Journal of Marine and Coastal Law 555–82, 564. 84 85

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enact regulations, fishing contrary to these will fall into the illegal component, which is the real problem off West Africa. Be that as it may, ITLOS began by observing that, since UNCLOS says nothing directly about flag state responsibility for IUU fishing, it would examine the issue ‘in light of general and specific obligations of flag states under the Convention for the conservation and management of marine living resources’.87 In view of the ‘special rights and responsibilities given to the coastal State in the [EEZ]’ under UNCLOS, it concluded that ‘the primary responsibility for taking the necessary measures to prevent, deter and eliminate IUU fishing rests with the coastal State’.88 ITLOS stressed that, where the coastal state allows foreign fishing in its EEZ, the fact that, under UNCLOS, the coastal state takes ‘primary responsibility for the conservation and management of living resources in the [EEZ], including the adoption of such measures as may be necessary to ensure compliance with’ its relevant laws and regulations, does not thereby relieve flag states of all responsibility of their own;89 they must ‘ensure that vessels flying their flag do not conduct IUU fishing activities within the [EEZs] of the SRFC Member States’.90 ITLOS located the source of these obligations in Articles 58, paragraph 3, and 62, paragraph 4 of UNCLOS, holding that ‘the flag State has the obligation to take necessary measures, including those of enforcement, to ensure compliance by vessels flying its flag with the laws and regulations adopted by the SRFC Member States’; the same provisions ‘also impose the obligation on the flag State to adopt the necessary measures prohibiting its vessels from fishing in the [EEZs] of the SRFC Member States’ without their authorization.91 ITLOS Advisory Opinion (n 2) para 110. Ibid para 106. The use of the verbs ‘prevent, deter and eliminate’ mirrors – no doubt deliberately – the title of the pertinent FAO International Plan of Action (n 14), possibly signalling that ITLOS sees this as a generally recommended measure supplying guidance for the interpretation and application of UNCLOS’ fisheries provisions notwithstanding its non-binding nature. 89 ITLOS Advisory Opinion (n 2) para 108. 90 Ibid para 124. 91 Ibid paras 134 and 135. This is preferable to reading Article 62(4) as imposing the obligation directly on the foreign-flagged vessels, as did the Annex VII tribunal in the South China Sea arbitration (In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, award, 12 July 2016, www​.pcacases​.com/​web/​sendAttach/​ 2086, last accessed 10 December 2019, para 740. Even so, it may be seen as an opportunity missed to reinforce the coastal state’s responsibility to regulate its EEZ effectively, as it has the consequence that foreign fishing in the EEZ is prohibited by international law even if there is no law against it in the coastal state itself. In this, however, it is consonant with the upholding of the Philippines’ ninth submission (ibid paras 735–57) that 87 88

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At one level, this is far from self-evident. Since on land it does not fall to aliens’ states of nationality to prevent criminal activity by them in whichever state they happen to be present – a task and jurisdictional competence normally jealously guarded by the host state – it might be thought that a fortiori the same should hold in the EEZ, a zone in which the coastal state has a mixture of sovereign rights and jurisdiction under Articles 56 and 60 of UNCLOS that falls well short of full sovereignty. On the other hand, it may be that the logistical difficulty of patrolling a large expanse of ocean, coupled with language barriers in communicating with foreign fisherfolk, makes coastal states less keen to assert their monopoly of enforcement. At all events, while this position is one that ITLOS had to infer from UNCLOS, it is expressly made in the Fish Stocks Agreement.92 Schatz surmises that ITLOS drew inspiration from a judgment of the Court of Justice of the European Union which rejected the direct application of Article 62(4) to foreign vessels, but appeared to regard it as a corollary of this that the obligation must instead rest on the flag state.93 Both Schatz and the present author prefer in this regard the Separate Opinion of Judge Paik, who treats Article 62(4) not as imposing an obligation as such, but rather as outlining the extent ratione materiae of the coastal state’s jurisdiction in its EEZ.94 Also not obvious was the link ITLOS made in this regard with Article 94 of UNCLOS, which requires the flag state to exercise jurisdiction and control over its vessels on the high seas (and by extension via Article 58 in the EEZ) in administrative, technical and social matters. This obligation is usually thought to relate to a vessel’s fitness in various ways for navigation, rather than to the economic activity such as fishing in which it may engage; although paragraph 6 has close parallels in Articles 21(8) and (14) of the UN Fish Stocks

Chinese fishing vessels had been fishing unlawfully in areas that, by the success of prior submissions, fell by default into the Philippine EEZ, as in doing so the tribunal made no mention of whether the municipal law of the Philippines reserved fishing in its EEZ for its own vessels. Both the written and the oral pleadings of the Philippines are wholly silent as to whether such laws exist. 92 UN Fish Stocks Agreement (n 6) Article 18(3)(a)(iv). 93 Schatz, ‘Fishing for Interpretation: the ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 21) 329–30, referring to Joined Cases C-103/12 and C-165/12, European Parliament and European Commission v Council of the European Union, https://​eur​-lex​.europa​.eu/​legal​-content/​EN/​TXT/​PDF/​?uri​=​ CELEX:​62012CJ0103, last accessed 10 December 2019. 94 Schatz, ‘Fishing for Interpretation: the ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 21) 330, citing Separate Opinion of Judge Paik.

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Agreement and may thus encompass fishing activities.95 At least one instance of invocation of it – albeit by a regional fisheries management organization, rather than directly by one or more of its member states – has been recorded.96 This serves to underpin the finding by ITLOS that one of these administrative matters is that: the flag State must adopt the necessary administrative measures to ensure that fishing vessels flying its flag are not involved in activities which will undermine the flag State’s responsibilities under the Convention in respect of the conservation and management of marine living resources. If such violations nevertheless occur and are reported by other States, the flag State is obliged to investigate and, if appropriate, take any action necessary to remedy the situation.97

Further, it is also in fulfilment of this obligation, ITLOS noted, that the flag state must: adopt the necessary administrative measures to ensure that fishing vessels flying its flag are not involved in activities in the [EEZs] of the SRFC Member States which undermine the flag State’s responsibility under article 192 of the Convention for protecting and preserving the marine environment and conserving the marine living resources which are an integral element of the marine environment.98 95 On Article 94 of UNCLOS, see D. Guilfoyle, ‘Article 94’, in Proelss (n 8) 707–14. 96 Ibid 713. 97 ITLOS Advisory Opinion (n 2) para 119. It is noteworthy that the flag state responsibilities are expressed not to be concomitant to the coastal state’s rights as one might expect, but as part of the latter’s own ‘primary’ responsibility. Peiris, ‘Advisory Opinion on Fisheries in the Exclusive Economic Zone from the International Tribunal for the Law of the Sea: The Birth of Regional Treaty-based Advisory Jurisdiction’ (n 83) 276–78, is critical of the terminology of specific and general obligations of the flag states and the primary responsibility of the coastal state that permeates the reasoning of the Advisory Opinion, but is absent from its final operative paragraph. He repeats the criticisms in respect of the third and fourth questions, in reference to essentially the same UNCLOS provisions (283–85). 98 ITLOS Advisory Opinion (n 2) para 219; see also para 136: ‘Pursuant to Articles 192 and 193 of the Convention, the flag State has the obligation to take the necessary measures to ensure that vessels flying its flag comply with the protection and preservation measures adopted by the SRFC Member States.’ While Churchill, ‘Dispute Settlement in the Law of the Sea: Survey for 2015 – Part I’ (n 86) 565, expresses a degree of surprise at this construction of Article 192, whose very general phrasing has tended to lead to it being seen as ‘hortatory’. See also in the same vein Schatz, ‘Fishing for Interpretation: the ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 21) 333–34; although he concedes that it ‘invite[s] dynamic interpretation’, Article 192 – however generally worded – does refer specifically to an ‘obligation’. The linkage between fisheries and the marine environment was previously made in the Southern Bluefin Tuna Provisional Measures Order (n 3).

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Significantly, ITLOS held these to be obligations of conduct (‘due diligence’) rather than obligations of result which any failure to achieve them would breach by definition.99 Put another way, flag states are not guarantors of the good behaviour of the private persons and entities operating fishing vessels in foreign EEZs; but they have an obligation to take reasonable steps to ensure good behaviour, so that it is insufficient to rely on the non-attribution of their acts and omissions to the flag state. This approach is in line with the Advisory Opinion of its Seabed Disputes Chamber on the rights and responsibilities of states sponsoring contractors to exploit the minerals of the deep seabed beyond national jurisdiction.100 This has the consequence that the general words of paragraph 6 of Article 94 – by which ‘[a] State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State [which] upon receiving such a report…shall investigate the matter and, if appropriate, take any action necessary to remedy the situation’ – apply equally to allegations of IUU fishing reported by a coastal state to a flag state in respect of one of the latter’s vessels. This places the flag state: under an obligation to investigate the matter and, if appropriate, take any action necessary to remedy the situation as well as inform the reporting State of that action [which] is without prejudice to the rights of the coastal State to take measures pursuant to article 73 of the Convention.101

This is an aspect of the overarching duty to cooperate common to the flag state and the member states of the SRFC in its specific application to cases of illegal fishing in the EEZ of any member state by vessels of the flag state.102 4.3

The Second Question: Flag State Liability for IUU Fishing

The foregoing left relatively little to be said in answer to the second question, closely related as it was to the first. Thus, ITLOS advised that the flag state is not directly liable for any failure of vessels flying its flag to comply with the fisheries laws and regulations of SRFC member states in their EEZs, as the ITLOS Advisory Opinion (n 2) para 129. See Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, 10, at 41 (paras 110 and 112) on the meaning of ‘ensure’. 101 ITLOS Advisory Opinion (n 2) para 139. See also para 118 highlighting the inference drawn by ITLOS of the flag state’s obligation to report to the coastal state, not contained explicitly in Article 94(6). 102 Ibid para 140. 99

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actions of those vessels are not per se attributable to the flag state.103 Rather, the flag state’s liability arises from its failure to comply with its due diligence obligations concerning illegal fishing by its vessels in the EEZs of the member states featured in the reply to the first question, as that is a breach by the flag state of its own obligation and is thus attributable to it – but it is not liable if it has taken all necessary and appropriate measures to meet its due diligence obligations to ensure that its vessels do not fish illegally in those EEZs. This is so, irrespective of the (in)frequency of violations.104 4.4

The Third Question: Liability for an ‘International Agency’

Taking the coy reference to an ‘international agency’ as meaning the EU, the only such agency actually concerned with fishing in the EEZs of the SRFC member states, the reply to the third question confirmed that the EU would take on the flag state’s obligations referred to above from its own member states to the extent that these had transferred competence over fisheries matters to it. This would occur most notably in situations where, in the exercise of its exclusive competence in fisheries matters, the EU had concluded an agreement with a member state of the SRFC providing for access by vessels flagged to any EU member state to fish in the EEZ of the state concerned. This is because it is then the EU, and not its individual member states, that is party to the fisheries access agreement with that state, and thus – by application of a core principle of the law of treaties, pacta tertiis nec nocent nec prosunt105 – only the EU could be held liable for any breach of its due diligence obligations arising from that agreement, and not its member states.106 ITLOS drew attention to the provision in Annex IX to UNCLOS by which the SRFC could request the EU or one or more of its member states for information as to which of them had responsibility in respect of any specific matter. Failure to provide this information within a reasonable time, or the provision 103 Ibid para 146. This was criticized in the Declaration of Judge Wolfrum, ITLOS Reports 2015, 71, at 72, who regretted the absence of any discussion of the consequences of breach of the obligations, in particular Articles 30 and 31 of the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts prescribing cessation of wrongful conduct and reparation of the harm caused, as ‘a means to permanently improve the national laws on fisheries so that it [sic] meets the relevant internationally accepted rules and standards’. 104 ITLOS Advisory Opinion (n 2) para 150. 105 Vienna Convention on the Law of Treaties 1969 (1155 UNTS 371) Article 34; Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 (Document A/ CONF.129/15), Article 34. 106 ITLOS Advisory Opinion (n 2) paras 172–3.

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of contradictory information, would result in joint and several liability of the EU and the member state(s) concerned.107 ITLOS also pointed out that under Article 6, paragraph 1 of Annex IX, which provides that parties having competence under Article 5 of that Annex have responsibility for failure to comply with obligations or for any other violation of UNCLOS, the liability of an international organization for an internationally wrongful act is linked to its competence. From this, it followed that if an international organization undertakes an obligation in a matter for which it has competence, and the compliance with that obligation depends on the conduct of its member states, then the international organization may be held liable if a member state fails to comply with the obligation and the organization did not meet its obligation of due diligence.108 This may, however, have the effect of undermining the goal of a seamless continuum of responsibility between the organization and its member states from the viewpoint of third states, which should make them indifferent as to which of the two renders the performance to which they are entitled, and which they hold responsible if that performance is in some way deficient. If the EU merely has to exercise due diligence to ensure that its member states comply, then it would be held to a less exacting standard than other states outside the EU, who would be directly liable to the Commission’s member state for the same non-compliant act or omission. 4.5

The Fourth Question: Conservation and Development

Only with the last question can the Advisory Opinion make pronouncements of direct applicability to transboundary stocks. This question too could have been better drafted, as the phrase ‘sustainable management’ – while commonly employed – not only creates the unfortunate impression that it is the management that has to be sustained rather than the stocks that are its subject, but also undermines the standard of qualified MSY set in UNCLOS Articles 61 and 119 calling for restoration of depleted stocks to that level. This is because, under the most commonly used biological models for fisheries, stocks that are depleted can still be sustainably exploited, albeit at levels far below the MSY, without being rebuilt, and this is often the choice of governments and fishing industries – so any removal of pressure from their legal obligations to aim higher is to be deprecated. Observing that ‘the ultimate goal of sustainable management of fish stocks is to conserve and develop them as a viable and sustainable resource’, ITLOS chose to construe ‘sustainable management’ as used in the fourth question as

Ibid para 174. Ibid para 168.

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meaning ‘conservation and development’, as referred to in Article 63(1) of UNCLOS.109 However, in his Separate Opinion, Judge Ndiaye wrote that it: amounts to establishing mechanisms for cooperation among the SRFC member states and with the SRFC to ensure that exploitation levels for shared stocks and stocks of common interest do not over time exceed the rate of replenishment of those stocks.110

The question relates to stocks occurring in the EEZs of two or more member states of the SRFC,111 which Article 63(1) directs to seek to agree – either directly or through an organization such as the SRFC itself – with other member states in whose EEZs these stocks occur, upon the measures necessary to coordinate and ensure their conservation and development. In his separate opinion, Judge Paik noted that by this question the SRFC, as emerged from the background information it had provided in its written and oral statements, was asking ITLOS to tackle the ‘key legal problem…arising from the lack of cooperation between the SRFC Member States concerning the conservation and management of shared resources’, which had led some member states to ‘experience serious difficulties in effectively conserving and managing’ those resources, due to a lack of cooperation. A particular factor was the practice of some of them of issuing licences to fish for shared stocks without consultation with neighbouring states.112 ITLOS, for its part, took Article 61 of UNCLOS as providing sufficient guidance on what is meant by conservation,113 and ventured an interpretation of the term ‘development of such stocks’ used in Article 63(1). This suggested to ITLOS that ‘these stocks should be used as fishery resources within the framework of a sustainable fisheries management regime’. This could include exploiting hitherto unexploited stocks or increased exploitation of underexploited ones by developing ‘responsible fisheries, as well as more effective fisheries management schemes to ensure the long-term sustainability of exploited stocks’, together with restoration of those stocks needing this to be ‘preserv[ed] as a long-term viable resource’.114

Ibid paras 190–1. Separate Opinion of Judge Ndiaye, ITLOS Reports 2015, 76, at 81 (para 19). 111 ITLOS Advisory Opinion (n 2) para 179, interpreting the term ‘coastal state’. 112 Separate Opinion of Judge Paik, ITLOS Reports 2015, 102, at 114 (para 30). 113 ITLOS Advisory Opinion (n 2) para 197. 114 Ibid para 198; see also Harrison and Morgera, ‘Article 63’ (n 8) 509–10. Restoration of a stock (ie, to a size closer to its virgin biomass) has a role to play in this. For those keen to use the language of sustainable development, it can thus be argued that this has a specific meaning in the fisheries context, namely the pertinent UNCLOS and UN Fish Stocks Agreement provisions as elucidated through the Advisory Opinion, 109 110

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While the stock is in the EEZ of a given member state, that state must cooperate with the competent international organization, to ensure, through proper conservation and management measures, that the maintenance of the shared stock is not endangered by overexploitation.115 These measures must be based on the best scientific evidence available and designed to maintain or restore the stock to the level which can produce the MSY, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special needs of the SRFC’s member states, taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards.116 The measures must provide for exchange on a regular basis through competent international organizations of available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of shared stocks.117 Thus far, the response to the fourth question has done little more than restate the content of Articles 61, 63 and 64 of UNCLOS, from which it quotes liberally, with minor adjustments to adapt them to the particular circumstances of the waters off West Africa. Judge Paik in his Separate Opinion was unimpressed by the Advisory Opinion’s repeated references to cooperation and rehearsing of the relevant UNCLOS provisions, as ‘shared resources…, by their very nature, cannot be conserved or managed effectively without cooperation’. This was ‘hardly…sufficient’ to answer satisfactorily the question of what specifically is required in order to discharge that obligation.118 ITLOS then adds, however, that the obligations to ‘seek to agree’ and ‘cooperate’ under Articles 63(1) and 64, respectively, concern due diligence, requiring the states in question to consult meaningfully with one another in good faith, in the sense that substantial effort should be made by all states concerned, with a view to adopting effective measures necessary to coordinate and ensure the conservation and development of shared stocks.119 This requires of each SRFC member state in whose EEZ shared stocks occur effective measures aimed at preventing overexploitation that could undermine their sustainable exploitation and the interests of neighbouring member states.120 As a result, member states fishing in their own EEZs for shared stocks which also occur in the EEZs of other member states must consult each other when preparing

just as the precautionary approach to fisheries is distinct from, albeit related to, the precautionary approach in international environmental law generally. 115 ITLOS Advisory Opinion (n 2) paras 206–7. 116 Ibid para 208. 117 Ibid para 209. 118 Separate Opinion of Judge Paik (n 112) para 34. 119 ITLOS Advisory Opinion (n 2) para 210. 120 Ibid para 211.

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management measures for the stocks, in order to coordinate and ensure their conservation and development. Such measures are also required in respect of fishing for those stocks by vessels flagged to non-member states.121 And, given the central place of cooperation in Part V of UNCLOS, fisheries conservation and management measures, to be effective, should cover the whole stock over its entire area of distribution or migration routes.122 Finally, ITLOS referred to the due regard to each other’s rights and duties that SRFC member states and other states party to UNCLOS must have in exercising their rights and performing their duties under the Convention in their respective EEZs, flowing from Articles 56(2) and 58(3) and their Article 192 obligation to protect and preserve the marine environment, of which the living resources are part.123 4.6

The Separate Opinions

Two judges commented further on the duty to cooperate with a view to conserving and managing shared stocks and stocks of common interest sustainably. First, Judge Ndiaye stated that it required the SRFC to: determine the allowable catch and allocate quotas among its Member States; draw up the register or record of licensed fishing vessels; reduce fishing effort or capacity; establish prior consultation between Member States before fishing permits for shared stocks or stocks of common interest are issued.

It must also take measures for compliance and enforcement, including ‘effective implementation of article 18 of the [UN Fish Stocks] Agreement…relating to the duties of the flag State’ and a number of specific matters addressed in recent years by other international fisheries commissions.124 Second, in Judge Paik’s view, ‘at the core of the legal difficulty faced by the SRFC Member States’ was ‘the relationship between the duties to cooperate and the sovereign rights of the coastal State to conserve and manage living resources in its EEZ’. This being so, he regretted that the Advisory Opinion was ‘rather short’ in terms of: clarify[ing] the meaning and scope of the duties to cooperate in managing the shared resources laid down in the relevant provisions of [UNCLOS], and possibly of the MCA Convention, and to examine how they should be applied between the SRFC Member States. 123 124 121 122

Ibid para 212. Ibid para 214. Ibid para 216. Separate Opinion of Judge Ndiaye (n 110) para 37.

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This ought to have been the main task of ITLOS in answering the fourth question, in order to be of assistance to those states and to facilitate cooperation among them for the ‘sustainable management’ of shared stocks.125 Like the majority, Judge Paik noted that the coastal state’s sovereign rights under Article 56(1) of UNCLOS to explore and exploit, conserve and manage the living resources in its EEZ are ‘conditioned by its obligations to conserve and utilize those resources in accordance with articles 61 and 62 of the Convention’, which, along with its above sovereign rights, ‘extend to the transboundary stocks, the straddling stocks and the highly migratory species within its EEZ’.126 He also observed that, while Article 63(2) applies only to the high-seas areas adjacent to the EEZ in terms of the obligation to seek to agree upon the measures necessary for the conservation of straddling stocks and is hence ‘beyond the jurisdiction of the Tribunal in the present proceedings’, Article 63(1) can nonetheless be applied to the same stocks ‘to the extent that [they] are found within the EEZs of two or more coastal States’.127 Notably, Judge Paik expanded on the obligation under Article 63, paragraph 1 to ‘seek to agree’, averring that it fell short of being an obligation to reach agreement, but rather ‘embodie[d] the notion of a pactum de negotiando, an obligation to enter into negotiation in good faith with a view to reaching an agreement’ in terms of the locus classicus in the ICJ’s decision in the North Sea Continental Shelf Cases: [T]he parties are under the obligation to enter into negotiations with a view to arriving at agreement, not merely to go through a formal process of negotiation… so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it.128

He contrasted this with the Article 64(1) obligation to cooperate in relation to highly migratory stocks, which ‘may be understood to be of more general nature and have a broader scope’. In Judge Paik’s view, this ‘may include duties to notify, to exchange information, and to consult and negotiate’. As to how it is to be discharged, he thought that the ‘UN Fish Stocks Agreement

Separate Opinion of Judge Paik (n 112) para 31. Ibid para 32. Judge Paik is here using the expression ‘transboundary’ solely to denote what in this chapter are termed ‘shared stocks’ – that is, those to which Article 63(1) of UNCLOS applies; he lists the other transboundary stocks covered by Articles 63(2) and 64 separately. 127 Ibid para 33. 128 Ibid para 35, citing North Sea Continental Shelf (Federal Republic of Germany v Denmark; Federal Republic of Germany/Netherlands), Judgment, ICJ Reports 1969, 3, at 47 (para 85). 125 126

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is instructional in this regard, as it gives a few indications about how the obligation to cooperate on the conservation and management of straddling fish stocks and highly migratory fish stocks is to be performed’. He singled out for mention paragraphs 3 to 5 of Article 7 of the Agreement, according to which states are to ‘make every effort to agree on compatible conservation and management measures within a reasonable period of time’, and for the dispute settlement procedures within the Agreement to be available if this proves impossible.129 Translating this into the rights and obligations of the SRFC member states, Judge Paik considered that their obligations were to ‘cooperate for the sustainable management of their shared resources’. For stocks subject to Article 63(1) of UNCLOS because they occur in the EEZs of more than one state, this entailed that ‘they must exchange information and data relevant to their conservation and management and negotiate in good faith with a view to agreeing upon cooperative arrangements’. These could include ‘joint determination of the total allowable catches for those stocks, their allocation among States concerned, the coordination or joint adoption of conservation measures, and the establishment of mechanisms for effective monitoring, control and surveillance’. An allocation, once determined, would result in each SRFC member state having sovereign rights to utilize the allocated resources in its EEZ, albeit subject to Article 62 of UNCLOS. Should no agreement be reached despite negotiation in good faith, each member state must conserve and manage those stocks occurring within its EEZ in accordance with both Articles 61 and 62. Judge Paik added that: if a Member State of the SRFC unjustifiably refuses to consult or negotiate, or wilfully delays in responding to proposals for conservation and management measures, such conduct could result in the breach of the State’s obligation under article 63, paragraph 1, of the Convention and entail liability.

Further, he maintained that disputes arising from alleged failure to comply with the Article 63(1) obligation were not covered by the exemption from the compulsory settlement mechanisms in Part XV of UNCLOS of disputes arising from the exercise of the coastal state’s sovereign rights regarding the living resources in its EEZ, and could thus be submitted to those mech-

129 Separate Opinion of Judge Paik (n 112) para 36; see also text at n 27–8. Accord on the applicability of the UN Fish Stocks Agreement the Separate Opinion of Judge Ndiaye (n 110) para 10 – although, because the compatibility it prescribes extends to measures of the International Commission for the Conservation of Atlantic Tunas applying on the high seas, he also thought that ITLOS did not in fact have jurisdiction to answer the fourth question (ibid para 9).

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anisms.130 As for how another member state should react to any failure to comply with the obligation to cooperate, because Article 63(1) was ‘without prejudice to’ the remainder of Part V, the delinquent member state retained the sovereign right to conserve and manage the shared stocks within its EEZ, including determining the allowable catch and giving other states access to any surplus within it. Hence: the right course of action for a SRFC Member State in cases where another Member State sharing the transboundary stocks refuses to cooperate without justifiable reasons is to invoke the liability of that State for the breach of obligations under article 63, paragraph 1, of the Convention, not to try to restrict the exercise of its sovereign rights in the EEZ.131

Lastly, Judge Paik drew attention to the implications of two provisions of the MCA Convention, which the majority Advisory Opinion had passed over in silence. One was Article 3.3, by which the agreements or other arrangements made by SRFC member states authorizing access by foreign fishing vessels to the surplus of stocks in their EEZs must contain clauses on the adaptation to the allowed fishing effort according to the availability of the resource and ‘in line with the principle of precautionary and the ecosystem-based approach’ [sic, quoting the provision]. The other was Article 9.2, which provides that member states shall give ‘priority’ to the establishment of concerted fisheries management plans for shared stocks. Their combined effect was a ‘clear… emphasis…laid on the need to apply the precautionary approach and the ecosystem-based approach in authorizing access to non-Member flag States and on the need to establish concerted management for shared stocks’. Judge Paik thought it arguable that, for transboundary stocks, these provisions and their management in the EEZs of SRFC member states ‘could be interpreted as attaching greater weight or higher priority to the obligation to cooperate, in relation to the sovereign rights of the coastal State, than the Convention’.132

5. CONCLUSIONS It is frustrating that a quarter of a century after UNCLOS entered into force, we are still waiting for a definitive judicial pronouncement on the content of the obligation of cooperation relating to transboundary fish stocks. Despite making some important contributions, the ITLOS Advisory Opinion of 2015,

Separate Opinion of Judge Paik (n 112) para 37. Ibid para 38. 132 Ibid para 39. By ‘Convention’ Judge Paik must mean UNCLOS rather than the MCA Convention, as the latter would be nonsensical in the context. 130 131

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which initially seemed a promising vehicle for this, did not fully live up to expectations in this regard. In retrospect, it may be that only a contentious case can really bring the clarification needed. In view of the tendency for states to settle their fisheries disputes and the ever-present jurisdictional complications attending UNCLOS litigation that combine to make the survival of any given case until judgment on the merits rather unlikely, we may still have a long wait ahead of us.

6. Obligations of flag states in the exclusive economic zone Aldo Chircop 1. INTRODUCTION On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) delivered a seminal Advisory Opinion on the Request submitted to the Tribunal by the Sub-Regional Fisheries Commission (SRFC) (ITLOS Advisory Opinion).1 The member states of the SRFC – Cape Verde, Guinea, Guinea Bissau, Mauritania, Senegal, Sierra Leone and the Gambia – had long been concerned about illegal, unreported and unregulated (IUU) fishing by foreign fleets in their exclusive economic zones (EEZs).2 The flagging of elements of those fleets under open registers, also known as flags of convenience or non-compliance, further exacerbated the problem, highlighting institutional and political failings.3 In the application they sought, among other things,

1 Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission, Advisory Opinion, 2 April 2015, ITLOS Reports 2015, 4. 2 Approximately 7 million people in West Africa depend on fishing as a source of income; possibly 300 000 jobs have been lost as a result of foreign fishing, contributing to increases in poverty. Illegal fishing is worth $2.3 billion in the waters of Mauritania, Senegal, the Gambia, Guinea Bissau, Guinea and Sierra Leone. This is estimated to account for 20 per cent of the global loss from illegal fishing. See D. Belhabib, ‘The Black Hole in the Seas’ in 77 Samudra Report Articles (International Collective in Support of Fishworkers 2017) 20, www​.icsf​.net/​en/​samudra/​detail/​EN/​4319​.html​ ?detpag​=​mapart, last accessed 10 December 2019. 3 ‘The characteristics of a “flag of non-compliance” generally include: lack of laws and regulations applying to fishing on the high seas; failure to ratify relevant international agreements (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, 2167 UNTS 3; Straddling Stocks Agreement) and join RFMOs; identical registration requirements for fishing vessels and other vessels; and consequently no appropriate licensing, monitoring or reporting requirements for fishing vessels.’ See C. Goodman, ‘The Regime for Flag State Responsibility in International Fisheries Law –

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ITLOS’s opinion on the legal obligations and potential liability of flag states with respect to fishing vessels registered under their flags engaged in IUU fishing in foreign EEZs. The seven West African states had concluded regional instruments to enhance cooperation in fisheries management and conservation, and to combat IUU fishing. In 1985 they established the SRFC as a regional fisheries management organization (RFMO) to ‘harmonize, in the long-term, policies of member countries in terms of preservation, conservation and management of fisheries resources and strengthen their cooperation for the well-being of their populations’.4 In 1993 the same states entered into agreements on conditions of access to, and utilization of, surplus fisheries resources in the EEZs of the SRFC member states,5 and on regional cooperation on hot pursuit.6 In 2012 the 1993 conditions of the access agreement were revamped to reflect new global instruments concerning responsible fishing, combating IUU fishing and port state measures, and to harmonize and integrate the respective fisheries policies and legislation of the SFRC members more effectively.7 Collectively, the regional instruments established a framework for the management and conservation of the living resources of the seven states’ EEZs and a detailed regulatory regime for foreign fishing that required, among other things, landing the catch in the port of the licensing coastal state. Despite these efforts, IUU

Effective Fact, Creative Fiction, or Further Work Required?’ (2009) 23 Australian and New Zealand Maritime Law Journal 157, 164. 4 Agreement Establishing a Sub Regional Fisheries Commission, 1985, Article 2, www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​SRFC​_1985​_Convention​ _English​_translation​_May​_2013​_​_3​_​.pdf, last accessed 10 December 2019. 5 Convention of 14 July 1993 on the Definition of the Conditions of Access and Exploitation of Fisheries Resources off the Coastal Zones of SRFC Member States (MCA Convention). 6 Convention on Sub-regional Cooperation in the Exercise of Maritime Hot Pursuit, 1993, www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​Convention​ _sur​_le​_droit​_de​_poursuite​_ENG​.pdf, last accessed 10 December 2019. This was followed by the Protocol on the Practical Modalities for the Coordination of Surveillance Operations within the Member States of the Sub-regional Fisheries Commission, 1993, www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​SRFC​_​-​_Protocol​ _on​_Surveillance​_Operations​_​_1​_​.pdf, last accessed 10 December 2019. 7 Convention of 8 June 2012 Relating to the Definition of the Minimum Conditions of Access and Exploitation of Fisheries Resources within the Maritime Zones under the Jurisdiction of SRFC Member States (CMAC Convention), www​.itlos​ .org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​Convention​_CMA​_ENG​.pdf, last accessed 10 December 2019.

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fishing continued in the management area of the SRFC,8 so the states applied to ITLOS for legal advice. ITLOS’s Advisory Opinion may be described as seminal for several reasons. First, ITLOS had to consider its own jurisdiction over the matter. It interpreted this competence to include discretion to provide an advisory opinion at the request of a regional fisheries body. However, some scholars have found the ratio unconvincing.9 The United Nations Convention on the Law of the Sea (UNCLOS)10 does not confer competence to provide advisory opinions in the broad terms espoused by ITLOS. Rather, UNCLOS appears to restrict such competence to requests from the International Seabed Authority; and ITLOS’s Seabed Disputes Chamber is specifically empowered by UNCLOS for this purpose.11 Although several states argued that ITLOS did not have jurisdiction, the full Tribunal was unanimous in declaring jurisdiction under its own rules of procedure.12 The effect

8 The persistent problem of IUU fishing led to the 2012 amendments. See Sub-Regional Fisheries Commission Permanent Secretariat, Technical Note (March 2013), www​.itlos​.org/​fileadmin/​itlos/​documents/​cases/​case​_no​.21/​Technical​_Note​ _eng​.pdf, last accessed 10 December 2019. 9 ITLOS came across as conferring upon itself additional authority through its power to adopt its own rules of procedure, a power not expressly conferred to it by UNCLOS. See ITLOS Advisory Opinion (n 1) paras 40–1. As Becker observed, ‘[I]n particular, one can only be struck by the apparent disregard for certain basic tenets of treaty interpretation in the Tribunal’s approach to jurisdiction.’ See M.A. Becker, ‘Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC), Case No. 21’ (2015) 109 American Journal of International Law 851, 855. Lando noted: ‘[O]ne could say that ITLOS “employed textual and teleological reasoning to reach a predetermined result”.’ See M. Lando, ‘The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission’ (2016) 29 Leiden Journal of International Law 441, 460. Tanaka questioned ITLOS’s ratio in asserting jurisdiction and warned of the danger of abuse of advisory opinions. See Y. Tanaka, ‘Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015’ (2015) 14 The Law and Practice of International Tribunals 318, 339. 10 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3. 11 Ibid, Articles 159 and 191, and Article 40 of Annex VI. 12 ITLOS recalled Article 16 of its statute, which empowers it to adopt rules of procedure; and Article 21, which states that its jurisdiction includes ‘all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal’. See Annex VI of UNCLOS. ITLOS adopted its rules of procedure on 28 October 1997; www​.itlos​.org/​basic​-texts​-and​-other​-documents/​, last accessed 10 December 2019. According to Article 138(1) of the Rules of Procedure, ‘[T]he Tribunal may give an advisory opinion on a legal question if an international agreement related to the purposes of the Convention specifically provides for the submission to the Tribunal of a request for such an opinion.’ The international agreement in this case was the MCA Convention (n 5), as amended by the CMAC Convention (n 7), pursuant to Article 33.

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was an extension of ITLOS’s jurisdiction13 and with the possibility of pronouncing on the rights and duties of third states without their consent.14 ITLOS applied, mutatis mutandis, the procedure for requests for advisory opinions to the Seabed Disputes Chamber15 and then proceeded to answer four questions posed in the application.16 Second, in response to the first two questions, ITLOS clarified the rights and duties of the flag state with respect to the activities of ships registered under its flag operating in foreign EEZs, including the basis for its potential liability. This included an in-depth probe into the content of the core duty to exercise effective jurisdiction and control over the activities of fishing vessels. Although ITLOS’s focus was on the EEZs of the SRFC states, the answer obviously has broader legal and geographical repercussions.17 These issues constitute the focus of this chapter. Third, in answering the third question, the Advisory Opinion addressed the situation of international organizations to which the UNCLOS states parties transferred competence over matters governed by UNCLOS.18 That applied only to the European Union, which had assumed competence over the responsibilities of its member states concerning fisheries management and conservation matters. It was the first time the European Union’s competence was considered by an international tribunal. That issue is addressed only peripherally in this chapter.

13 According to Gavounelli, ‘[T]he services rendered under forum prorogatum include a fully functional advisory role, thus broadening the powers of the Tribunal as originally set out by UNCLOS.’ See M. Gavouneli, ‘Introductory Note to Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS)’ (2015) ILM 890, 891. 14 ITLOS Advisory Opinion (n 1) para 75. ITLOS was of the view that the consent of non-SRFC states was not relevant because the decision was not binding: it served to inform SRFC member states (ibid para 76). 15 Ibid para 80. 16 ITLOS was requested to respond to the following questions: (1) what are the obligations of the flag state in cases where IIU fishing activities are conducted within EEZ of third-party states? (2) To what extent shall the flag state be held liable for IUU fishing activities conducted by vessels sailing under its flag? (3) Where a fishing licence is issued to a vessel within the framework of an international agreement with the flag state or with an international agency, shall the state or international agency be held liable for the violation of the fisheries legislation of the coastal state by the vessel in question? (4) What are the rights and obligations of the coastal state in ensuring the sustainable management of shared stocks and stocks of common interest, especially the small pelagic species and tuna? (ibid para 2). 17 ITLOS expressly stated that its jurisdiction in this case was limited to the EEZs of the SRFC states (ibid para 69). 18 Article 305(1)(f) and Annex IX of UNCLOS.

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With respect to the fourth question, the Advisory Opinion clarified the rights and duties of coastal states as regards regulating shared stocks and highly migratory species in their EEZs, and upheld the duty to cooperate. This issue is discussed in Chapters 4 and 5 of this book. ITLOS was established by UNCLOS as a specialized dispute settlement mechanism in the service of UNCLOS. The case was not contentious: there were no complaining state parties, but rather states seeking guidance on general legal questions with respect to their RFMO. The advisory opinion is not binding, but this belies its actual importance. It was rendered by the full Tribunal and not simply a chamber. The bench largely shared uniform views. The first two questions elicited unanimous answers, with the third and fourth questions producing large majority answers. There were two declarations and three separate opinions, but no dissenting opinions. The bench benefited from statements on jurisdiction and/or substantive matters submitted by 22 UNCLOS states parties (including the European Union),19 the United States,20 several UN bodies and RFMOs,21 and WWF International as amicus curiae. A substantial number of interested parties representing coastal states, distant-water fishing states, other interested states, and international global and regional organizations with competencies in the subject matter of the case conveyed their views to inform ITLOS. The legal weight of this judgment, albeit advisory, is thus substantial. Several critical commentaries on the decision are available.22 This chapter focuses specifically on ITLOS’s modern understanding of the scope and extent of the flag state’s due diligence duties with respect to its ships. Although the context of the Advisory Opinion concerns IUU fishing in the EEZs of 19 www​.itlos​.org/​cases/​list​-of​-cases/​case​-no​-21/​#c1572, last accessed 10 December 2019. 20 As party to the Straddling Stocks Agreement (n 3). 21 International organizations include the Food and Agriculture Organization of the United Nations (FAO), International Union for Conservation of Nature and Natural Resources and the UN. RFMOs include the Caribbean Regional Fisheries Mechanism, Central American Fisheries and Aquaculture Organization and Forum Fisheries Agency. See ITLOS website (n 19). 22 Tanaka, ‘Reflections on the Advisory Jurisdiction of ITLOS as a Full Court: The ITLOS Advisory Opinion of 2015’ (n 9); Becker, ‘Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC), Case No. 21’ (n 9); Lando, ‘The Advisory Jurisdiction of the International Tribunal for the Law of the Sea: Comments on the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission’ (n 9); Gavouneli, ‘Introductory Note to Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) (ITLOS)’ (n 13); and V. Schatz, ‘Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (2016) 47 Ocean Development & International Law 327.

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the SRFC states and flag states that are not SRFC members, the ratio has far-reaching implications for the rights and duties of flag states concerning their ships, irrespective of function and location in the current context. This chapter proceeds as follows. First, it explains the significance of the issues considered by ITLOS in the context of the law of the sea; but also with reference to international maritime, environmental and fisheries law. Second, it discusses ITLOS’s understanding of the responsibilities and potential liability of flag states in response to the questions posed to it. Third, it reflects on the significance of the Advisory Opinion and its ratio, and the extent to which it has changed the understanding of the due diligence duties of flag states today. The chapter concludes with observations on ITLOS as a ‘living institution’ and the effect of this case on maintaining UNCLOS as a ‘living constitution’.

2.

LEGAL CONTEXT

2.1

The Primacy of Flag State Jurisdiction

The legal context of the Advisory Opinion is drawn from interrelated fields of international law: the law of the sea and maritime, fisheries and environmental law. Under conventional and customary international law, the flag state has long enjoyed primary jurisdiction over its ships. This jurisdiction is largely exclusive on the high seas; but concurrent with coastal state jurisdiction (sovereign or functional, depending on location) when its ships are exercising rights of innocent passage in the territorial sea and archipelagic waters, archipelagic sea lanes passage, transit passage in straits used for international navigation, and freedom of navigation in the EEZ. As ships do not enjoy navigation rights in internal waters, the port state enjoys full jurisdiction over ships voluntarily within its ports. The flag state always enjoys legislative and enforcement jurisdiction over its ships; whereas the coastal state enjoys legislative jurisdiction, but not always enforcement jurisdiction as well, within its maritime zones. The exercise of enforcement jurisdiction by the coastal state depends on the location of the ship and/or the nature of the offence. The rationale for the flag state’s comprehensive jurisdiction over its ships in foreign waters and on the high seas is to ensure that law and order at sea are maintained by empowering the state that enjoys legitimate authority over its ships. Registration confirms the power to exercise primary authority over ships, irrespective of location. For this purpose, a ship cannot have more than one nationality at the same time.23 The flag state grants nationality to ships on

Article 92(1) of UNCLOS.

23

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the basis of its conditions for registration.24 In principle, and as a rule of law, there must exist a genuine link between the flag state and the registered ship;25 but this is not necessarily a requirement for granting nationality to a ship or even recognition by other states.26 In the M/V ‘Virginia G’ ITLOS observed that: once a ship is registered, the flag State is required, under article 94 of the Convention, to exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practices. This is the meaning of ‘genuine link’.27

Closed registers usually restrict registrations to nationals (including corporations), and perhaps to bareboat charters as long as the original registration is suspended and a corporate presence to conduct local business is established in the state of the new register. In comparison, closed registers do not impose such limitations and an ad hoc corporate presence may suffice. The ‘beneficial link’ rule heralds back to a time when most ships were owned and operated by interests in the flag state. It has largely been overtaken by today’s global and transnational shipping industry, which moves its assets across jurisdictions with ease, using legal structures that may reflect only a nominal presence in the ‘home’ register of the ‘owner’ corporation and/or vessel. The rules and conditions for the registration of ships are neither universal nor uniform. As a result, open registers, as an alternative to closed registers, have emerged and attracted the bulk of world tonnage by offering attractive economic and legal benefits, such as low registration fees; exemption from or low corporate tax rates; the ability to hire personnel and crews irrespective of nationality; and ease of transfer of ownership. Many open registers have become known as ‘flags of convenience’, particularly where the flag state has

24 Article 91(1) of UNCLOS. The flag state’s right to determine a ship’s entitlement to fly its flag is a long-established rule. See the Muscat Dhows Case (France v Great Britain), Award of the Permanent Court of Arbitration of 8 August 1905, RIAA XI (1961), 83. 25 Article 92(1) of UNCLOS. On the genuine link, see Chapter 8 of this book. 26 See M/V ‘Virginia G’ (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, 4; M/V ‘SAIGA’ (Saint Vincent and the Grenadines v Guinea), Prompt Release, Judgment, ITLOS Reports 1997, 16 (paras 80, 110–13). 27 M/V ‘Virginia G’, ibid para 113. Regarding M/V ‘SAIGA’, which M/V ‘Virginia G’ affirmed, Scovazzi has criticized the lost opportunity to clarify the meaning of ‘genuine link’, seeing the purpose of this concept as being to ensure safety of navigation, accident prevention and environment protection. See T. Scovazzi, ‘ITLOS and Jurisdiction over Ships’ in H. Ringbom (ed), Jurisdiction over Ships: Post-UNCLOS Developments in the Law of the Sea (Brill/Nijhoff 2015) 382, 404.

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failed to exercise effective jurisdiction and control.28 Such failure has included lack of subscription to, or implementation and enforcement of, international rules and standards, with the consequence that seafarers do not always receive necessary protection and certain ships may pose environmental and security threats. In addition to performing a vital public order function, ship registration is a highly competitive business. Maritime states go to great lengths to attract ships under their flags. Not all states in the business of ship registration, whether open or closed registers, are able or willing to exercise effective jurisdiction and control. In 2013 the UN General Assembly sent a strongly worded message to flag states: flag States without an effective maritime administration and appropriate legal frameworks to establish or enhance the necessary infrastructure, legislative and enforcement capabilities to ensure effective compliance with and implementation and enforcement of their responsibilities under international law, in particular the Convention, and, until such action is taken, to consider declining the granting of the right to fly their flag to new vessels, suspending their registry or not opening a registry, and calls upon flag and port States to take all measures consistent with international law necessary to prevent the operation of substandard vessels.29

In particular, open registers have been a major cause for concern. They may not undertake in-depth screening of foreign applications; may permit the registration of substandard ships; and may not consistently monitor the quality of their shipping. What historically emerged as a problem in commercial shipping has become extended to fishing vessels whose owners, seeking ways to conduct distant fishing operations while evading the conditions and restrictions of regional agreements and coastal state regulation, find haven under overly permissive flags.30 2.2

The Notion of ‘Effective’ Flag State Jurisdiction

Article 94(1) of UNCLOS and customary law establish a legal obligation on the flag state to ‘effectively exercise its jurisdiction and control in administra28 The International Transport Workers’ Federation (ITF Global) has a longstanding campaign concerning ‘flags of convenience’ and lists the registers it considers as such flags. See ITF, ‘Flags of Convenience’, www​.itfglobal​.org/​en/​transport​-sectors/​ seafarers/​in​-focus/​flags​-of​-convenience​-campaign/​. 29 UN General Assembly Resolution A/68/70, 9 December 2013: ‘Oceans and the Law of the Sea’ (UN Doc Res A/68/70 (27 February 2014), para 147. 30 For contemporary insights on some of the most serious social and environmental problems of fishing, see A. Couper et al, Fishers and Plunderers: Theft, Slavery and Violence at Sea (Pluto Press 2015).

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tive, technical and social matters over ships flying its flag’.31 The flag state is to maintain a register with the requisite information on its ships and assume jurisdiction over the crew ‘in respect of administrative, technical and social matters concerning the ship’.32 It is expected to legislate for this purpose. Its measures should aim to ensure safety at sea, including with respect to the construction, equipment and seaworthiness of ships; manning and training in accordance with international instruments; and operational matters such as signalling, communications and prevention of collisions.33 Such measures include ship surveys, onboard equipment and information necessary for safe navigation, and qualified master, officers and appropriate manning levels conversant with international rules for safety of life at sea, safe navigation, pollution prevention and maritime communications.34 In taking such measures, the flag state ‘is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance’.35 Commentators on Article 94 have generally interpreted ‘administrative, technical and social matters’ to refer to the administration of ship registers, maritime safety standards, vessel navigation (especially collision avoidance), labour standards and environmental protection;36 but, as will be seen below, ITLOS has adopted a significantly wider view of what else is included in the flag state’s obligations. Ships in foreign ports are subject to port state control inspection under international maritime law conventions and within the framework of regional agreements among maritime administrations for this purpose. If a ship inspection identifies serious violations of standards in the maritime convention concerned, the vessel may be detained until the deficiency is rectified. However, the deficiency here is that of the private operator, not the flag state. If the flag state does not exercise effective jurisdiction and control to ensure that its ships comply with international standards, there is relatively little that complaining states can do, unless direct harm has been suffered by the complaining state. UNCLOS simply provides the complaining state with the discretion to report to the flag state the facts that lead it to believe that ‘proper jurisdiction and

Article 94(1) of UNCLOS. Article 94(2) of UNCLOS. 33 Article 94(3) of UNCLOS. 34 Article 94(4) of UNCLOS. 35 Article 94(5) of UNCLOS. 36 S.N. Nandan and S. Rosenne (eds), United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. III (Nijhoff 1995), 135, 143–152. See also D. Guilfoyle’s commentary on Article 94 in A. Proelss (ed), United Nations Convention on the Law of the Sea: A Commentary (CH Beck 2017), 707–14. Guilfoyle cites several other writers in support. 31 32

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control with respect to a ship have not been exercised’.37 In turn, this triggers a duty for the flag state to investigate and ‘if appropriate, take any action necessary to remedy the situation’.38 Thus the exercise of jurisdiction and control are ultimately matters of fact.39 The UNCLOS text on this matter has no further expectations from the flag state. Even if effective jurisdiction and control are not exercised, other states are still required to recognize the nationality of the ship.40 So ultimately, the maintenance of public order on board a ship and with respect to its actions boils down to the flag state’s exercise of effective jurisdiction and control. ITLOS in its Advisory Opinion would further develop this expectation.41 2.3

Flag State Jurisdiction over Fishing Vessels

The difficulties encountered with lack of exercise of jurisdiction and control, resulting in substandard commercial vessels and heightened safety and environmental risks, are exacerbated in the case of fishing vessels. Fishing vessels are subject to registration and acquire the nationality of the flag states, just like commercial vessels. However, a major difference is that fishing vessels are largely insulated from the regulatory regimes applicable to commercial shipping. Several key international maritime conventions do not apply in great part, if at all, to fishing vessels and to safety and training standards, for example. Whereas the International Maritime Organization (IMO)42 and the International Labour Organization (ILO)43 have mature regulatory regimes governing all aspects of the administrative, technical and social matters for commercial vessels, fishing vessels are left out or only partially addressed in those regimes.44 International regulation concerning fishing vessels is UNCLOS Article 94(6). Ibid. 39 ‘Grand Prince’ (Belize v France), Prompt Release, Judgment, ITLOS Reports 2001, 17 where ITLOS concluded it had no jurisdiction and the documentary evidence failed to establish that Belize was the flag state of the vessel (para 93). 40 M/V ‘SAIGA’ (No 2) (n 26) paras 82–3. 41 ‘The Tribunal is of the view that the flag State is under the obligation to inform the reporting State about the action taken.’ ITLOS Advisory Opinion (n 1) para 118. 42 For example, the IMO has over 50 treaty instruments concerning regulation of shipping. The list of instruments and amendments in respect of which the IMO performs depositary and other functions is available at www​.imo​.org/​en/​About/​Conventions/​ StatusOfConventions/​Pages/​Default​.aspx, last accessed 10 December 2019. 43 Principally the Maritime Labour Convention 2006, www​ .ilo​ .org/​ wcmsp5/​ groups/​public/​@​ed​_norm/​@​normes/​documents/​normativeinstrument/​wcms​_090250​ .pdf, last accessed 10 December 2019. 44 Save where expressly provided, fishing vessels are excepted from the application of the International Convention for the Safety of Life at Sea as amended (1184 UNTS 37 38

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relatively recent.45 Moreover, international maritime and labour conventions have long been enforced through port state control mechanisms, on the basis of non-discrimination and no more favourable treatment, so that the nationality of the ship is irrelevant in inspections for compliance with international standards. The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 1995 (Straddling Stocks Agreement) introduced a port state control inspection system for fishing vessels which remedied some of the problems concerning fishing vessels.46 IUU fishing in the EEZ is of considerable concern to coastal states because, in addition to the potential social, economic and environmental costs, it poses a direct challenge to the authority of the coastal state. Such fishing activity undermines the coastal state’s ability to exercise its rights and discharge its duties under UNCLOS and global and regional fisheries agreements. The coastal state enjoys exclusive sovereign rights to explore, exploit, conserve and manage the non-living resources47 and jurisdiction to protect and preserve the marine environment in the EEZ, and includes marine conservation.48 In acting upon its sovereign rights over living resources, the coastal state has various duties, including promoting optimum utilization bearing in mind conservation and management needs.49 It has the right to determine its harvesting capacity; where it does not have the capacity to harvest the entire total allowable catch, it has a duty to give other states access to the surplus on a regulated basis,50 with particular states being given priority consideration.51 All foreign nationals fishing in the EEZ are required to comply ‘with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal State’ consistent with UNCLOS,52 and which the coastal state must

2), Chapter I, Regulation 3(a)(vi). Article II(4) of the Maritime Labour Convention (n 43) expressly excludes fishing vessels. 45 See the Torremolinos International Convention for the Safety of Fishing Vessels, www​.imo​.org/​en/​about/​conventions/​listofconventions/​pages/​the​-torremolinos​ -international​-convention​-for​-the​-safety​-of​-fishing​-vessels​.aspx, last accessed 10 December 2019. 46 Article 23 of the Straddling Stocks Agreement (n 3). 47 Article 56(1)(a) of UNCLOS. 48 Articles 56(1)(b)(iii) and 61(2) of UNCLOS. 49 Article 62(1) of UNCLOS. 50 Article 62(2) of UNCLOS. 51 Article 62(3) of UNCLOS. 52 The laws and regulations may relate, among other things to the following: ‘(a) licensing of fishermen, fishing vessels and equipment, including payment of fees and other forms of remuneration, which, in the case of developing coastal States, may

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publicize.53 Flag states have a duty to cooperate with coastal states, and in particular have a ‘due regard’ duty towards ‘the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law’.54 However, UNCLOS left unclear what specific actions the flag state should take in respecting the laws and regulations of the coastal state, especially in exercising effective jurisdiction and control over its ships. This is also an issue that ITLOS would address. Given the way that IUU fishing vessels operate, the ‘prompt release’ system may have undermined the ability of coastal states to respond effectively.55 Subsequent international instruments further clarified the responsibilities of flag states with respect to fishing vessels. The 1993 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas spelled out the flag state’s responsibilities in considerable detail;56 and consist of adequate compensation in the field of financing, equipment and technology relating to the fishing industry; (b) determining the species which may be caught, and fixing quotas of catch, whether in relation to particular stocks or groups of stocks or catch per vessel over a period of time or to the catch by nationals of any State during a specified period; (c) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the types, sizes and number of fishing vessels that may be used; (d) fixing the age and size of fish and other species that may be caught; (e) specifying information required of fishing vessels, including catch and effort statistics and vessel position reports; (f) requiring, under the authorization and control of the coastal State, the conduct of specified fisheries research programmes and regulating the conduct of such research, including the sampling of catches, disposition of samples and reporting of associated scientific data; (g) the placing of observers or trainees on board such vessels by the coastal State; (h) the landing of all or any part of the catch by such vessels in the ports of the coastal State; (i) terms and conditions relating to joint ventures or other cooperative arrangements; (j) requirements for the training of personnel and the transfer of fisheries technology, including enhancement of the coastal State’s capability of undertaking fisheries research; (k) enforcement procedures.’ See Article 62(4) of UNCLOS. 53 Article 62(5) of UNCLOS. 54 Article 58(3) of UNCLOS. 55 Barnes has criticized the balance that Articles 73 and 292 of UNCLOS seek to achieve between enforcing coastal state fishing laws and the prompt release of apprehended foreign vessels, given the way international fishing activities operate. See R. Barnes, ‘Flag States’ in D.R. Rothwell et al (eds), The Oxford Handbook of the Law of the Sea (Oxford University Press 2015), 304, 318. 56 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas 1993, 2221 UNTS 91 (FAO Compliance Agreement), Article III. The Agreement’s extensive provisions on flag state responsibility included requirements to take measures to ensure that the flag state’s fishing vessels do not engage in activities that undermine the effectiveness of international conservation and management measures (‘international’ understood to

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further clarified the modus of international cooperation, such as communicating evidence to the flag state to enable it perform its responsibilities and port state supporting action.57 However, its scope of application was clearly limited to high-seas areas and therefore did not include the EEZ. Earlier, the United Nations Conference on Environment and Development (UNCED) in 1992 had spotlighted IUU fishing as an issue, advocating for enhanced conservation and management of marine living resources on the high seas and under national jurisdiction, and calling for an intergovernmental conference that would lead to a new agreement.58 A conference of the Food and Agricultural Organization of the United Nations (FAO) unanimously adopted the FAO Code of Conduct for Responsible Fisheries, 1995.59 Although non-mandatory, it is widely regarded as a code of good practices, and the FAO Compliance Agreement is now part of the Code.60 The Code includes provisions on flag state regulation of fishing vessels (eg, records of fishing vessels, authorization of fishing activities, marking of vessels and gear, compliance with international safety and labour standards) and enforcement by flag states.61 Flag states should adopt sanctions that are sufficiently severe to discourage violations, and take action against violations of conservation and management measures.62 UNCED also marked the path for the development and adoption of the Straddling Stocks Agreement. This Agreement performs a vital function in elaborating on the UNCLOS provisions concerning cooperation for the long-term conservation, management and sustainable use of fisheries resources, both in the EEZ and on the high seas; and calling for more effective include measures adopted at the regional level); to ensure that its vessels fishing on the high seas are so authorized by the flag state and over which it can exercise its responsibilities effectively; to monitor vessels, including blacklisting; to require vessels to provide information on their operations to enable the flag state to fulfil its responsibilities; to make contraventions of the Agreement an offence under national law to secure compliance; and to take enforcement measures against, and impose effective sanctions on, vessels. 57 Ibid Article V. 58 Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992), Chapter 17: Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-enclosed Seas, and Coastal Areas, and the Protection, Rational Use and Development of their Living Resources (UN Doc A/CONF.151/26, 13 August 1992, Sections C and D). 59 FAO Code of Conduct for Responsible Fisheries, adopted by the FAO Conference by Res 4/95 on 31 October 1995, FAO Doc 95/20/Rev/1 (1 November 1995) (FAO Code of Conduct). 60 Preamble to the FAO Compliance Agreement (n 56). 61 Ibid Article 8.2. 62 Article 8.2.7 of the FAO Code of Conduct (n 59).

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enforcement by flag, port and coastal states.63 Its key provisions with respect to flag state responsibilities are far reaching. As part of the duty to cooperate to promote compatibility of conservation and management measures, the flag state has an obligation to inform on activities for regulating its vessels fishing on the high seas.64 The Agreement establishes the duty of the flag state to take measures to ensure that its ships comply with sub-regional and regional conservation and management measures;65 to exercise its responsibilities effectively;66 and to ensure compliance.67 The duty to ensure compliance includes subsidiary duties to enforce measures irrespective of location of violations; to conduct immediate investigation of alleged violations; to require reports to investigating authorities (vessel location, catch, gear used, operations); and to institute proceedings and apply sanctions.68 The Straddling Stocks Agreement remedied the gap in UNCLOS concerning lack of reporting back to the complaining coastal state by imposing such a requirement on the investigating flag state.69 Further, the Agreement included provisions that enable the flag state to seek the cooperation of other states in enforcement procedures,70 and that require the flag state to respond expeditiously when notified that a vessel flying its flag is believed to have engaged in fishing contrary to conservation and management measures, by investigating

63 Preamble to the Straddling Stocks Agreement (n 3). This is spelled out in detail in several provisions – in particular, Article 7 on compatibility of conservation and management measures and Articles 8–9 et seq on cooperation through RFMOs. 64 ‘States fishing on the high seas shall regularly inform other interested States, either directly or through appropriate subregional or regional fisheries management organizations or arrangements, or through other appropriate means, of the measures they have adopted for regulating the activities of vessels flying their flag which fish for such stocks on the high seas’ (ibid Article 7(8)). 65 Ibid Article 18(1). 66 Ibid Article 18(2). The measures to be adopted are numerous and include requirements to exercise control through licensing of vessels; adopt regulations; prohibit unlicensed fishing; require that a fishing licence be carried on board for inspection; ensure its ships do not do unauthorised fishing in areas within the jurisdiction of other states; maintain a national record of fishing vessels and provide access to information; ensure the marking of vessels and gear for identification; require vessel location and catch reporting; implement verification measures procedures; provide for the monitoring, control and surveillance of vessels; implement inspection schemes, observer programmes and vessel monitoring systems; regulate transhipment on the high seas; and adopt regulations to ensure compliance with sub-regional, regional or global measures (ibid Article 18(3)). 67 Ibid Article 19(1). 68 Ibid. 69 Ibid Article 19(1)(b). 70 Ibid Article 20.

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itself or authorizing the inspecting state to investigate.71 Thus, although other states may inspect and investigate foreign vessels, the flag state retains primary legislative and enforcement jurisdiction over its ships. In 2001, the FAO adopted the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing,72 a non-mandatory instrument within the framework of the Code of Conduct for Responsible Fisheries.73 It is aimed at preventing, deterring and eliminating IUU fishing ‘by providing all States with comprehensive, effective and transparent measures by which to act, including through appropriate regional fisheries management organizations established in accordance with international law’.74 It sets out a framework for concerted measures that include international cooperation, the exercise of legislative and enforcement jurisdiction, and the adoption of national action plans. The responsibilities of flag states with respect to fishing vessel registration, record of fishing vessels and authorization to fish are set out in detail.75 Later, the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing also established duties for the flag state.76 These include a duty to require vessels to cooperate with port state inspections; to request port states to inspect the flag state’s vessels suspected of conducting IUU fishing; to require its vessels to use ports which comply with this agreement; to investigate reports concerning its vessels engaged in IUU fishing and take enforcement measures; to report on its actions in respect of its vessels engaged in IUU fishing; and to ensure that measures concerning its ships are effective.77 2.4 Conclusions Despite substantial legal development, the relationship between the general duties of flag states with respect to their ships and their specific duties with respect to fishing vessels while undertaking fishing operations, especially Ibid Article 21(6). International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA–IUU), adopted by the 24th Session of the Committee on Fisheries on 2 March 2001 and endorsed by the 120th Session of the FAO Council on 23 June 2001, www​.fao​.org/​3/​a​-y1224e​.pdf, last accessed 10 December 2019. The definition in Article 2(4) of the CMAC Convention (n 7) was guided by the IPOA–IUU. 73 FAO Code of Conduct (n 59) Article 2(d). 74 Article 8 of the IPOA–IUU (n 72). 75 Ibid Articles 34–50. 76 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing 2009, www​.fao​.org/​fileadmin/​user​_upload/​legal/​ docs/​037t​-e​.pdf, last accessed 10 December 2019. 77 Ibid Article 20. 71 72

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where they engaged in IUU fishing, has lacked clarity. In particular, the standard of conduct expected in the exercise of jurisdiction and control is not expressly set out in UNCLOS or other instruments of international law considered in this chapter. Clarity has similarly been lacking as to the consequences of breach of flag state duties.

3.

THE APPROACH OF ITLOS

We now turn to ITLOS’s understanding of the flag state’s primary obligations and standard of conduct with respect to its fishing vessels engaged in operations in foreign EEZs and the secondary obligations consequential on failure to perform the primary obligations. 3.1

Flag State Obligations

ITLOS restated and underscored that the responsibilities of the flag state with respect to its fishing vessels are informed by fundamental UNCLOS obligations from which other duties flow. With respect to IUU fishing, the flag state’s duties are linked to the coastal state’s pursuit of sovereign rights in the EEZ and accompanying obligations in Article 61(2) of UNCLOS to adopt conservation and management measures; in Article 62 to regulate access to fishery resources; and in relevant regional agreements to combat unregulated fishing. Primary responsibility for regulating IUU fishing falls with the coastal state, with corollary responsibilities for other states. Consequently: laws and regulations adopted by the coastal State in conformity with the provisions of the Convention for the purpose of conserving the living resources and protecting and preserving the marine environment within its exclusive economic zone, constitute part of the legal order for the seas and oceans established by the Convention and therefore must be complied with by other States Parties whose ships are engaged in fishing activities within that zone.78

In addition to the coastal state laws and regulations, ITLOS emphasized there are other measures under bilateral access agreements and RFMOs, such as the SRFC and the International Commission for the Conservation of Atlantic Tunas, with which other states must comply. In turn, those states are expected to ensure their vessels are also in compliance.79 ITLOS brought fisheries conservation and management measures under the umbrella of Article 94. As noted under Section 2.2 above, Article 94(1)

ITLOS Advisory Opinion (n 1) para 102. Ibid para 114.

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establishes the flag state’s core obligation to exercise effective jurisdiction and control in administrative, technical and social matters, entailing a duty to exercise legislative and enforcement jurisdiction on its ships. The duty is not limited to safety outcomes: the legislative subject matter for the exercise of jurisdiction set out in the provision is inclusive, rather than exclusive. In this regard, ITLOS noted that the use of the text ‘in particular’ in Article 94(2) with respect to the measures to be taken by the flag state ‘is only indicative, not exhaustive’.80 Accordingly, it interpreted the flag state’s duty over administrative matters to extend not only to the mainstream IMO safety, pollution, security and ILO labour standards, but also to the international standards applicable to fishing vessels: It follows from the provisions of article 94 of the Convention that as far as fishing activities are concerned, the flag State, in fulfilment of its responsibility to exercise effective jurisdiction and control in administrative matters, must adopt the necessary administrative measures to ensure that fishing vessels flying its flag are not involved in activities which will undermine the flag State’s responsibilities under the Convention in respect of the conservation and management of marine living resources.81

Here ITLOS does not delimit what is comprehended by ‘administrative measures’ and further seems to suggest that the flag state’s action must not be purely bureaucratic, but must also be supervisory in nature and preventative in intent. This is then followed by the corollary duty to investigate complaints of violations by other states and to take necessary remedial action to address violations of international fisheries rules by its fishing vessels.82 ITLOS underscored the Article 192 general obligation of all states to protect and preserve the marine environment, as stated in its earlier interpretation of this provision in the Southern Bluefin Tuna cases, as encompassing the conservation of marine living resources in all areas.83 This interpretation of Article 192 translates the flag state’s duty in Article 94 to a duty to regulate the activities of its ships to respect and comply with measures for the conservation and management of marine living resources, whether enacted by coastal states in their EEZs or by RFMOs within their management areas. While foreign vessels may be permitted to fish the surplus in a foreign EEZ under a licence, flag states have a duty under Article 58(3) to pay ‘due regard Ibid para 117. Ibid para 119. 82 Ibid paras 118–19. 83 Ibid para 120. See Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan), Provisional Measures, Order of 27 August 1999, ITLOS Reports 1999, 280 (para 70). 80 81

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to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of international law in so far as they are not incompatible with this Part’.84 According to ITLOS, the flag state’s duty therefore extends to complying with coastal state regulation to conserve marine living resources and combat IUU fishing,85 and arguably also to RFMO regulations to the extent they apply in EEZs, as in the case of the SRFC. ITLOS was of the view that the laws that inform the content of the duty to protect and preserve the marine environment include coastal state regulations for this purpose. Coastal state laws and regulations for the conservation and management of living resources are guided by Articles 61 and 62 of UNCLOS, respectively concerning conservation and utilization of living resources in the EEZ. ITLOS held that this leads to a duty for other states, set out in Article 62(4) and also pursuant to Article 58(3), to ensure that their nationals engage in fishing in compliance with coastal state conservation measures and other terms and conditions.86 Thus the flag state’s duty in these provisions –together with its duties to protect and preserve the marine environment and to pay due regard to the laws and regulations of the coastal state – entail an obligation ‘to take the necessary measures to ensure’ that its ships and nationals are not engaged in IUU fishing activities in the coastal state’s EEZ, and in this case in the zones of the SRFC member states.87 3.2

Standard of Conduct

Having clarified the obligations of the flag state with respect to its ships, ITLOS moved next to consider the standard of conduct expected. The flag state’s obligations are not absolute, given the text used – responsibility ‘to ensure’. On this point ITLOS followed the Seabed Advisory Opinion where, in the context of sponsoring states, the responsibility to ensure was equated with ‘notions of obligations of “due diligence” and obligations “of conduct”’.88 In that opinion, the Seabed Disputes Chamber held that sponsoring states must exercise power and control over entities of their nationality, such as the con-

Article 58(3) of UNCLOS. ITLOS Advisory Opinion (n 1) paras 102 and 106. ITLOS further observed that it ‘wishes to emphasize that the primary responsibility of the coastal State in cases of IUU fishing conducted within its exclusive economic zone does not release other States from their obligations in this regard’ (para 108). 86 ITLOS Advisory Opinion (n 1) para 123. 87 Ibid para 124. 88 Ibid para 125. 84 85

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tractors concerned.89 Similarly in the SRFC case, the flag state’s responsibility ‘to ensure’ was an obligation of conduct aimed towards achieving compliance with conservation and management measures by its ships. The flag state would discharge its responsibility by taking measures in pursuance of Article 94 of UNCLOS.90 Accordingly, and again echoing the Seabed Advisory Opinion, the flag state’s duty is one of due diligence in taking measures aimed at compliance, not to achieve the result of actual compliance. The content of the obligation is: to deploy adequate means, to exercise best possible efforts, to do the utmost, to obtain this result. To utilize the terminology current in international law, this obligation may be characterized as an obligation ‘of conduct’ and not ‘of result’, and as an obligation of ‘due diligence’.91

Citing the Pulp Mills case, ITLOS saw a connection between the ‘notions of obligations “of due diligence” and obligations “of conduct”’,92 making the flag state’s duty to adopt and enforce measures an obligation of conduct rather than of result. Accordingly, while the flag state is not absolutely liable for the activities of its ships, the conduct of its ships could engage its liability where it does not discharge its due diligence duty.93 ITLOS went on to elaborate on the content of ‘due diligence’ conduct in the exercise of effective jurisdiction and control. Citing Pulp Mills again, ITLOS clarified that the duty in Article 94 of UNCLOS requires ‘a certain level of vigilance in…enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators’, as well as enacting regulations.94 The Seabed Disputes Chamber in its Seabed Advisory Opinion had also highlighted the contextual, risk-specific and dynamic nature of due diligence obligations.95 And, applied to the facts of the case in point, this ratio requires a flag state which is not a party to a regional fisheries convention to discharge the obligation of conduct by employing adequate means, using best efforts and doing its utmost to ensure its vessels are not engaged in IUU fishing, and thus prevent

89 Responsibilities and Obligations of States with respect to Activities in the Area, Advisory Opinion of 1 February 2011, ITLOS Reports 2011, 10 (para 108). 90 ITLOS Advisory Opinion (n 1) para 127. 91 Seabed Advisory Opinion (n 89) para 110. 92 ITLOS Advisory Opinion (n 1) para 111 and citing para 187 of Pulp Mills (n 94). 93 Ibid para 112 and again relying on the Seabed Advisory Opinion (n 89) paras 110–12. 94 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010, 14 (para 197). 95 Seabed Advisory Opinion (n 89) para 117.

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such fishing; and further to apply sanctions of sufficient severity against rogue ships.96 The duty of due diligence is accompanied by a duty to cooperate.97 According to ITLOS, the flag state has an obligation to investigate complaints and take appropriate and remedial action against its ships, and in the process to inform the complaining state.98 Failure of the flag state to discharge its due diligence obligations may engage its liability.99 ITLOS referred to the guidance provided by the International Law Commission (ILC) Draft Articles on State Responsibility, which provide that wrongful acts of a state entail its responsibility. An internationally wrongful act of omission or commission attributable to a state that constitutes a breach of an international obligation engages the liability of that state and leads to an obligation to make reparations for the injury.100 ITLOS stopped short of explaining what the basis of the reparation would be in the case of IUU fishing – potentially a lost opportunity to develop its jurisprudence on this point, as remarked by Judge Wolfrum.101 This is surprising, given that ITLOS in M/V ‘Virginia G’ had considered the issue and referred to the ILC Draft Articles.102 Further, ITLOS did not address the potentially difficult issue of burden of proof, which is a serious matter for SRFC member states that might not have the investigative resources and capabilities to suppress IUU fishing. Coastal states may well be left with the burden of proving the flag

96 Ibid para 129. ITLOS underscored that the content of the flag state’s due diligence duty is to be found in UNCLOS itself, such as Articles 58(3) and 62(4) concerning the obligation to take necessary measures, including enforcement, to ensure compliance by its vessels (para 134); to adopt measures prohibiting vessels from fishing in the SRFC EEZs, unless so authorized (para 135); (pursuant to Articles 192–93) to ensure that vessels comply with the protection and preservation measures adopted by the SRFC states (para 136); and to legislate enforcement mechanisms to monitor and secure regulatory compliance and sanctions to deter violations and deprive offenders of benefits derived from IUU fishing (para 138). 97 ITLOS observed that ‘the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment under Part XII of the Convention and general international law. . .’. See MOX Plant (Ireland v United Kingdom), Provisional Measures, Order of 3 December 2001, ITLOS Reports 2001, 95 (para 82). 98 ITLOS Advisory Opinion (n 1) para 139. 99 Ibid paras 146–47. 100 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of its Fifty-third Session, 23 April–1 June and 2 July–10 August 2001, Official Records of the General Assembly, Fifty-sixth session, UN Doc A/56/10 Supplement No.10, Report of the Sixth Committee (A/56/589 and Corr.1), 26 (Articles 1–2 and 31). 101 ITLOS Advisory Opinion (n 1), Declaration of Judge Wolfrum (para 1). 102 M/V ‘Virginia G’ (n 26) paras 428–30.

Obligations of flag states in the EEZ

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state’s lack of due diligence; whereas a more equitable approach would be to reverse the burden.103 One question posed to ITLOS concerned the responsibility and potential liability of international organizations to which exclusive competence over fishing matters has been transferred by their member states. The only pertinent case here is the European Union – which is not a flag state. However, ITLOS had no difficulty in finding that such an international organization could be held responsible as a contracting party to a fisheries access agreement entered into on behalf of its members. In this case, the international organization would have a duty to ensure that the vessels of member flag states comply with the laws and regulations of coastal states, and do not conduct IUU fishing in the latter’s EEZs. 104 Accordingly, breach of the due diligence obligation entails liability for the international organization.105 This aspect of the decision leaves something to be desired, as it appears to enable the organization to screen non-compliant flag states. Irrespective of the organization’s competence over fisheries conservation and management, the failures of a flag state remain, and it is unclear why ITLOS did not hold flag states equally responsible together with the organization which acted on their behalf in securing access.

4.

TOWARDS JUDICIAL ACTIVISM AND FUNCTIONALIST DECISION MAKING?

International courts and tribunals ‘play a tremendous role in shaping the structure and content of international law’, including through judicial activism.106 International courts and tribunals are creatures of the constitutive instruments that define their jurisdictional boundaries, but may also enjoy an extension of that power through other inter-state agreements referring disputes to them. These venerable bodies usually develop their own rules of procedure and

103 Becker, ‘Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC), Case No. 21’ (n 9) 857. 104 ITLOS Advisory Opinion (n 1) para 172. 105 Ibid para 173. 106 F. Zarbiyev, ‘Judicial Activism in International Law: A Conceptual Framework for Analysis’ (2012) 3 Journal of International Dispute Settlement 247, 248. Zarbiyev defines ‘judicial activism in the international context as ‘a term of art to characterize a course of action that goes beyond the boundaries of what is deemed appropriate for the judiciary in a given context’ (ibid 251–52). Thirlway, whom Zarbiyev quotes earlier, is blunter in describing substantive judicial activism: being unsatisfied with existing law, or with what he or she sees as lacunae in the existing law, a judge engaged in a substantive judicial activism ‘will be ready’, writes Thirlway, to indulge in something close to open law creation in order to base his decision. Ibid 250.

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decide on the limits of their competence, perhaps with some liberty.107 The ‘advisory proceedings may provide even more opportunities for judicial activism than contentious cases’.108 In such proceedings, where the questions posed may elicit theoretical and abstract answers, judges may become ‘oracles of the law’.109 The judicial impact could be significant. Schatz proposes the view that ITLOS has fundamentally changed ‘the architecture of the EEZ fisheries regime’ through an ‘advisory opinion’.110 Although the impact of the decision may not be that far-reaching, as the structures and processes remain in place, ITLOS appears to have at a minimum fleshed out aspects of the scheme of rights and responsibilities of coastal states and flag states in the EEZ to respond to a major governance failure. In this sense, the ITLOS Advisory Opinion does not come across as revolutionary, but indeed as evolutionary. It constitutes an important development in longstanding efforts at upscaling the general international standards for responsible shipping and related doctrine informing the accountability of flag states. How ITLOS made this important contribution through a measure of activism bears discussion. Key to these efforts has been the approach it adopted to treaty interpretation, generating mixed reactions. Becker has noted that ITLOS ‘does not mention the travaux preparatoires or the draft rules’ in interpreting its mandate.111 Schatz has observed the absence of support for the interpretation of some provisions and departure from scholarly views.112 ITLOS did not employ a simple textual or ordinary meaning approach informed by an understanding of the intentions of UNCLOS parties. Rather, it appears to have done something more, using a mixed teleological and functionalist approach. Writing in 1951, Fitzmaurice observed that the teleological approach to treaty interpretation had ‘its sphere of operation almost entirely in the field

107 In the case of the ITLOS Advisory Opinion, Becker observes that ‘one can only be struck by the apparent disregard for certain basic tenets of treaty interpretation in the Tribunal’s approach to jurisdiction’ in assuming jurisdiction (ibid 855). Interestingly, Judge Cot expressed ‘serious reservations in respect of the Tribunal’s convoluted reasoning in establishing the basis for its jurisdiction and of its refusal to exercise the discretionary power which it does nonetheless recognize that it holds’. ITLOS Advisory Opinion (n 1), Declaration of Judge Cot, para 2. 108 Zarbiyev, ‘Judicial Activism in International Law: A Conceptual Framework for Analysis’ (n 106) 272. 109 Ibid. 110 Schatz, ‘Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 22) 338. 111 Becker, ‘Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC), Case No. 21’ (n 9) 856. 112 Schatz, ‘Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 22) 328.

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of general multilateral conventions, particularly those of the social, humanitarian and law-making type’.113 Today that sphere would arguably include UNCLOS, international environmental law and international fisheries law. The absence of reference to the travaux preparatoires in the ITLOS Advisory Opinion helped ITLOS to formulate an interpretation that is forward rather than backward looking and benchmarked against a diplomatic record that was not fully immersed in the IUU problem as we know it today.114 Cognizant of the limitations of the UNCLOS text in answering the questions (all aimed at helping to combat the problem of IUU fishing), ITLOS appears to have freed itself of textual strictures. Interpreted individually, the provisions it grappled with posed interpretation challenges, as commentators have observed.115 However, if the provisions are interpreted collectively, as a pattern, within the context of UNCLOS and the modern jurisprudence of ITLOS itself, as well as the International Court of Justice and arbitration awards, the interpretations provided make sense in the result achieved, even where the text of those provisions falls short. ITLOS’s approach may also be termed ‘functionalist’ – perhaps the other side of the coin of the teleological approach. Johnston wrote that the functionalist theory ‘is a result of dissatisfaction with traditionalist approaches to boundary-making theory that seem too limiting because of their dependency on abstraction, their obsession with narrowly technical issues, or their bias toward one particular discipline’.116 The functionalist approach is often justified by the complexity of the problems of ocean space and the demand for efficient, effective and equitable regimes. Similarly, the ITLOS Advisory Opinion may be characterized as functionalist in the sense of being a purposive, problem-oriented and contextual interpretation, producing a useful outcome – in contrast to issue and rule-specific reading in search of loyalty to the original textual intent, divorced from the actual problem. The use of ships as platforms for IUU fishing, together with dereliction of flag state supervision, is a complex and longstanding problem 113 G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points’ (1951) 28 British Yearbook of International Law 1. 114 Zarbiyev observes that ‘it is well known that in international law teleological interpretations are, for instance, often associated with dynamic readings of law while recourse to travaux preparatoires is considered as a symbol of backward-looking interpretations’. Zarbiyev, ‘Judicial Activism in International Law: A Conceptual Framework for Analysis’ (n 106) 253. 115 For example, Schatz, ‘Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 22). 116 D.M. Johnston, The Theory and History of Ocean Boundary-Making (McGill-Queen’s University Press 1988), 285.

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that today particularly disadvantages developing coastal states. Response to the problem requires mobilization of a range of legal tools to reinforce duties and enhance accountability. The law of the sea is not a mere system of abstract rules demanding interpretation as an exercise in itself: it ought to be interpreted and applied in the service of the international community in solving or managing problems in an equitable manner. The SRFC member states – all of them developing states – sought the assistance of a rules-based order. ITLOS responded and avoided the strictures of Article 94 of UNCLOS in providing an interpretation of flag state obligations to extend to fishing vessels engaged in IUU fishing. It also appears to have sought an effect utile of its interpretation to ensure that the provisions concerned would retain their effectiveness.117 The result is substantial: ITLOS may have found a way to internalize the cost of IUU fishing by holding states responsible and possibly liable for their lack of supervision of private actors that shelter under their flags and from whose actions they may well be deriving economic benefits at the social, economic and environmental cost of other states. Does the impact of this advisory opinion spill outside the remit of the specific case – and if so, to what extent and in which directions? Although the ITLOS Advisory Opinion is not binding, and its scope is clearly delimited by ITLOS’s jurisdiction with reference to the questions posed to it (with the implication that it is formally limited in application to the EEZs of the SRFC member states), by analogy the ratio is pertinent to the responsibilities of flag states as third-party users of other ocean spaces. The understanding now is that the flag state’s core obligations under UNCLOS are not limited, and effectively comprehend the range of international and national rules and standards adopted in accordance with UNCLOS that apply to the operations conducted by its ships. Wherever there are provisions requiring ships to comply with national laws and regulations, such as Article 62(4), one can imply a duty on the flag state to require its ships to comply with national laws and regulations.118 A flag state duty to take measures with respect to its ships, as private actors, may be inferred. This is further supported by the ‘due regard’ duty in Article 58(3) so that flag states cannot ignore coastal state rights and duties in the EEZ, but rather should comply with their laws and regulations – a point

117 A technique used in the European Court of Justice. See N. Fennelly, ‘Legal Interpretation at the European Court of Justice’ (1996) 20 Fordham International Law Journal 656, 674. 118 There are alternative views. Schatz, ‘Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 22) 330, finds that the ‘interpretation of Art. 62(4) as a separate flag state obligation by the Tribunal is questionable’.

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underscored also in the Chagos Arbitration and reiterated in the South China Sea Arbitration.119 Beyond the EEZ, arguably, where an RFMO has adopted conservation and management measures, the Advisory Opinion should also serve to inform the obligations of Articles 94 and 192 of UNCLOS with respect to fishing on the high seas. IUU fishing is also a problem on the high seas; by analogy, the Straddling Stocks Agreement and FAO Compliance Agreement would serve to inform Articles 94 and 192 as they concern fishing on the high seas. These instruments were not relied upon in the ITLOS Advisory Opinion, but that is not altogether surprising, as ITLOS took care to delimit the scope of the opinion to the EEZs of the SRFC member states.120 Arguing further, the ratio is also relevant to all ships in other ocean spaces – although not necessarily with respect to IUU fishing – such as the territorial sea, straits used for international navigation and archipelagic waters. For example, all ships enjoy a right of innocent passage which may be regulated by the coastal state and whose laws and regulations must be respected by those ships.121 There is a similar requirement for ships exercising transit passage122 and, by extension, for archipelagic sea lanes passage.123 Accordingly, ITLOS widened the scope of Article 94 obligations to apply not only to international rules and standards for maritime safety, training and pollution prevention, but also to measures for conservation and management of living resources. Essentially, the flag state’s ‘due diligence’ duty to exercise effective jurisdiction and control over its ships extends to requiring its vessels to comply with all applicable laws – in this case, those of the SRFC member states. This approach to the flag state’s core obligations – together with the general duty under Article 192 of UNCLOS to protect and preserve the marine 119 In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), Merits, 2015, https://​files​.pca​-cpa​.org/​pcadocs/​MU​-UK​ %2020150318​ %20Award​ .pdf, last accessed 10 December 2019; South China Sea Arbitration (Philippines v China), Merits, 2016, https://​pcacases​.com/​web/​sendAttach/​ 2086, last accessed 10 December 2019. Schatz, ‘Fishing for Interpretation: The ITLOS Advisory Opinion on Flag State Responsibility for Illegal Fishing in the EEZ’ (n 22) 331, seems to take a narrow reading of the application of the ‘due regard’ duty to the rights of the coastal state under UNCLOS. 120 A point made by Judge Paik. See Separate Opinion of Judge Paik, ITLOS Advisory Opinion (n 1) paras 5, 22–9. This point is also made by Becker, ‘Request for an Advisory Opinion Submitted by the Sub-regional Fisheries Commission (SRFC), Case No. 21’ (n 9) 857, who argues that ITLOS’s reluctance to address other instruments that addressed flag state obligations ‘may stem from the uneven subscription of flag states to such instruments’. 121 Article 21(4) of UNCLOS. 122 Article 42(4) of UNCLOS. 123 Article 54 of UNCLOS.

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environment – could in theory, and under the right factual matrix, be applied to all forms of shipping. The flag state’s obligations concern all ships registered under its flag: it stands to reason that ships with different operations and functions will engage the flag state’s duty with respect to the standards applicable to those vessels. For example, a flag state could be required to ensure that protest vessels registered under its flag comply with the international collision avoidance regulations on the high seas and coastal state laws and regulations governing innocent passage in the territorial sea. ITLOS was consistent with its earlier jurisprudence in the Southern Bluefin Tuna cases in interpreting the conservation of marine living resources as an element in the protection and preservation of the marine environment.124 It proceeded to link this ‘element’ expressly to Article 192 of UNCLOS and fleshed out how this provision included other obligations in the protection and preservation of the marine environment, including the obligations of the flag state. In turn, this paved the path for extensive further elaboration in the South China Sea Arbitration and actual identification of the types of instruments that nourish Article 192, especially the Convention on International Trade in Endangered Species of Wild Fauna and Flora in the facts of that case.125 The arbitral tribunal stated: Article 192 of the Convention provides that ‘States have the obligation to protect and preserve the marine environment.’ Although phrased in general terms, the Tribunal considers it well established that Article 192 does impose a duty on States Parties, the content of which is informed by the other provisions of Part XII and other applicable rules of international law. This ‘general obligation’ extends both to ‘protection’ of the marine environment from future damage and ‘preservation’ in the sense of maintaining or improving its present condition. Article 192 thus entails the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment. The corpus of international law relating to the environment, which informs the content of the general obligation in Article 192, requires that States ‘ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control.’126

This arbitration award can potentially be further read to support the proposition that, in exercising effective jurisdiction and control as understood in the ITLOS Advisory Opinion, the flag state should be expected to take positive action to protect the marine environment while exercising jurisdiction and control over its ships.

Southern Bluefin Tuna Cases (n 83) para 70. South China Sea Arbitration (n 119). 126 Ibid para 941. 124 125

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Interestingly, ITLOS did not use other principles and doctrines that could have further buttressed the ratio. Notably, it did not consider the ‘no harm’ principle as an additional potential basis for the flag state’s responsibility for its ships, despite its traction in other areas of international environmental law. Barnes has argued that the principle: can be used to reinforce the flag State duties, for example, by drawing into the scope of due diligence those policy and guidance measures in soft law instruments that articulate how a State should give effect to its obligations of conduct.127

Also conspicuously and inexplicably absent is an invocation of the UNCLOS obligation for state parties to fulfil their obligations in good faith, and to ‘exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not constitute an abuse of right’.128 Although peripheral to the purpose of this chapter, the ITLOS Advisory Opinion should provide guidance not only to flag states, but also to international organizations as regards facilitating inter-state cooperation as competent international organizations. To a great extent, the IMO could serve as a model for FAO as the competent international organization responsible for the conservation and management of marine living resources under UNCLOS. The IMO has for some time addressed the issue of implementation of international maritime conventions by its member states, particularly for flag states. An initially voluntary scheme for flag state audits has paved the way to the IMO Member State Audit Scheme for all IMO member states in their capacities as flag, port and coastal states in effect on 1 January 2016.129 The common aim for all member states is ‘to enhance global maritime safety and protection of the marine environment and assist States in the implementation of instruments of the Organization’.130 Detailed guidance is provided for flag states concerning implementation, delegation of authority, enforcement, surveyors, investigation and evaluation and review.131 At this time the audit focuses on selected mandatory instruments132 and includes advice on policies, legislation and

Discussed by Barnes, ‘Flag States’ (n 55) 323. Article 300 of UNCLOS. 129 IMO Instruments Implementation Code (III Code), Assembly Resolution A.1070(28) adopted on 4 December 2013. 130 Ibid Part 1, para 1. 131 Ibid Part 2. 132 Namely instruments concerning safety of life at sea; prevention of pollution from ships; standards of training, certification and watchkeeping for seafarers; load lines; tonnage measurement of ships; and regulations for preventing collisions at sea (ibid Part 1, para 6). 127 128

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administrative action in support of implementation.133 It is supported by the Implementation of IMO Instruments (III) Code and overseen by a dedicated Sub-Committee on Implementation of IMO Instruments (III), which is tasked, among other things, with reviewing states’ rights and obligations in the maritime conventions; monitoring the levels of implementation and related issues; considering proposals for instruments to assist states with implementation; and promoting harmonization of port state control activities. While the system has its limitations, it marks a path for auditing flag states with respect to their actions in implementing international fisheries conservation and management measures.

5. CONCLUSION During the oral proceedings, Germany argued that the intention of the ITLOS statute was to confer jurisdiction to shape ITLOS as a ‘living institution and to expressly provide room for states to enter into further bilateral or multilateral agreements conferring jurisdiction’.134 Despite several state positions to the contrary, ITLOS took note of this characterization of itself as a ‘living institution’135 and appears to have implicitly embraced it in the ITLOS Advisory Opinion by assuming jurisdiction. This raises the fundamental question of how UNCLOS can retain relevance under changing circumstances, such as the ability of existing provisions to address new problems and change to the fundamentals that informed its negotiation in the first place. The manner in which ITLOS approached the interpretation of UNCLOS with respect to an enduring old problem betrays a view of the Convention as a ‘living ocean constitution’, reminiscent of the discourse on the US Constitution. Indeed, there are similarities between UNCLOS and the US Constitution. Both instruments are notoriously difficult to amend, so that maintaining relevance in the face of new problems and social change falls on the shoulders of courts and tribunals. The view of the ‘living constitution’ posits that it should evolve, change and adapt to respond to changing circum-

133 Specifically jurisdiction; organization and authority; legislation, rules and regulations; promulgation of international mandatory instruments, rules and regulations; enforcement arrangements; control, survey, inspection, audit, verification, approval and certification functions; selection, recognition, authorization, empowerment and monitoring of recognized organizations and nominated surveyors; investigations required to be reported to the IMO; and reporting to the IMO and other maritime administrations. Ibid Part 1, para 7. 134 Statement by Germany, Oral Proceedings (verbatim records) ITLOS/PV.14/ C21/2/Rev.1 (3 September 2014). 135 ITLOS Advisory Opinion (n 1) para 49.

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stances, without being subject to formal amendment processes, so that the instrument can persist while embracing change and maintaining relevance. The alternative – of placing faith in the intentions of the drafters at the time of drafting through narrow textual interpretation – risks losing relevance as new problems arise. While the ITLOS Advisory Opinion concerned IUU fishing, for which a narrow reading of UNCLOS might not have provided an effective response, it opens a route for states to bring new problems to the attention of ITLOS. One could, for instance, easily envisage requests from states experiencing existentialist threats from climate change, such as small island developing states, which feel that UNCLOS state parties are not doing enough to protect and preserve the marine environment by taking effective mitigation action. Would a truly ‘living institution’ refrain from responding to such requests?

7. Deep seabed mining Aline Jaeckel 1. INTRODUCTION In 2011 the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS) delivered its ‘historic’1 Advisory Opinion on the Responsibilities and Obligations of States sponsoring Persons and Entities with Respect to Activities in the Area.2 This was a milestone not only because it was the first time the Chamber had been called upon, but also because the Chamber adopted a progressive interpretation of the legal regime for mineral mining on the international seabed and thereby significantly developed the regime. The international seabed area (‘the Area’) covers around half of the surface of the Earth and contains valuable minerals, such as cobalt and manganese. It includes ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’.3 Part XI of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) establishes an innovative legal regime for deep seabed minerals in the Area. To prevent a small group of technologically advanced states from reaping all the benefits from mining minerals in the Area, Article 136 classifies the Area and its resources as ‘the common heritage of mankind’. This legal status serves as the cornerstone for the Area regime and differentiates it from other parts of UNCLOS. While coastal states retain jurisdiction over the minerals on their continental shelves, all rights in the mineral resources of the Area ‘are vested

1 R. Rayfuse, ‘Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area’ (2011) 54 German Yearbook of International Law 459, 460; D. Freestone, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’ (2011) 105 American Journal of International Law 755–61. 2 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Reports 2011, 10 (‘SDC Advisory Opinion’). 3 Article 1(1)(1) of UNCLOS.

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in mankind as a whole’.4 To act on behalf of mankind, UNCLOS established the International Seabed Authority (ISA), an independent organization that regulates and governs the use of mineral resources in the Area.5 All states parties to UNCLOS are ipso facto members of the ISA.6 While Part XI establishes a complex legal framework for the Area regime in 59 Articles, it was always designed to be gradually developed further, in line with advances in mining technology and scientific understanding of the deep seabed environment. Indeed, an evolutionary approach to the development of the Area regime, with the ISA as its central organization, is specifically foreseen in the 1994 Implementing Agreement.7 The development of the legal regime for the Area is led by the ISA and supported by the Seabed Disputes Chamber, the specialized dispute settlement body established by UNCLOS.8 The Chamber used its first Advisory Opinion to contribute to the development of the Area regime by clarifying the responsibilities of states and their potential liability in case of environmental harm from seabed mining, and by elucidating the content of the ‘common heritage’ principle. This chapter does not seek to provide a comprehensive analysis of the Advisory Opinion, which already exists in the literature.9 Rather, focusing on the extent to which the Seabed Disputes Chamber contributed to the evolution Article 137(2) of UNCLOS. Articles 137, 153(1) and 156–57 of UNCLOS. 6 Article 156(2) of UNCLOS. 7 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (1994 Implementing Agreement), Annex, Section 1(3), 1836 UNTS 3. 8 Articles 186–91 and Annex VI, Articles 35–40 of UNCLOS. 9 See, for example, Rayfuse, ‘Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area’ (n 1); Freestone, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’ (n 1); 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’ (2011) 26 The International Journal of Marine and Coastal Law 525; D.K. Anton et al, ‘Seabed Mining – Advisory Opinion on Responsibility and Liability’ (2011) 41 Environmental Policy and Law 60; G. Handl, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities With Respect to Activities in the Area: The International Tribunal of the Law of the Sea’s Recent Contribution to International Environmental Law’ (2011) 20 Review of European Community & International Environmental Law 208; T. Poisel, ‘Deep Seabed Mining: Implications of Seabed Disputes Chamber’s Advisory Opinion’ (2012) 19 Australian International Law Journal 213; and I. Plakokefalos, ‘Seabed Disputes Chamber of the International Tribunal for the Law of the Sea: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’ (2011) 24 Journal of Environmental Law 133. 4 5

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of the Area regime, it seeks to demonstrate how the Chamber’s progressive interpretation of the Area regime has helped to develop it in an attempt to avoid the common problem of enforcing flag state responsibility in the law of the sea. Section 2 sets out the basic parameters of the Area regime; and Section 3 briefly summarizes the background to, and main findings of, the Advisory Opinion. Section 4 offers an analysis of four ways in which the Advisory Opinion helped to develop the Area regime, and Section 5 provides a discussion of the approach taken by the Seabed Disputes Chamber in interpreting relevant provisions of UNCLOS, the 1994 Implementing Agreement, and the ISA’s Mining Code. Section 6 offers concluding remarks.

2.

THE AREA REGIME

Part XI of UNCLOS was controversial from its inception. The idea of declaring the Area and its mineral resources to be the common heritage of mankind and placing them under common management was as bold and innovative as it was divisive. This led to several industrialized states not ratifying UNCLOS in its original form, as adopted in 1982. The concerns of those states centred on the transfer of technology to developing states;10 economic assistance for developing states whose land-based mining industry might suffer as a result of deep seabed mining;11 and the idea that states would fund a public mining entity linked to the ISA, called the Enterprise.12 The 1994 Implementing Agreement addressed these concerns by substantially altering the policy and institutional framework of the Area regime.13 This allowed UNCLOS to enter into force and enjoy almost universal membership. The general legal framework of the Area regime is set out in Part XI and Annexes III and IV of UNCLOS, as amended by the 1994 Agreement.14 It establishes the ISA to organize, control and carry out activities in the Area, particularly with a view to administering the resources of the Area.15 ‘Activities in the Area’ are defined as ‘all activities of exploration for, and exploitation of, the resources of the Area’.16 The actual mineral exploration or exploitation can be carried out by either states parties, state enterprises or natural or juridical persons that possess

Article 144 of UNCLOS. Articles 151(10) and 164(2)(d) of UNCLOS. 12 Articles 158 and 170 of UNCLOS. 13 See, for example, Annex, Sections 2, 3, 5, and 7 of the 1994 Implementing Agreement (n 7). 14 Ibid Article 2. 15 Articles 153(1) and 157(1) of UNCLOS. 16 Article 1(1)(3) of UNCLOS. 10 11

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the nationality of states parties or are effectively controlled by them or their nationals.17 Thus, both public and private actors can be involved in mining operations, although they must be sponsored by a state party.18 Additionally, UNCLOS foresees that the enterprise may to be able to conduct mining.19 The enterprise is envisioned in UNCLOS as the commercial arm of the ISA, 20 although it is not yet operational – a fact that reflects the controversy surrounding its funding and role.21 To manage activities in the Area, UNCLOS establishes a contractual system whereby exploration and exploitation work in the Area may be conducted only under a contract issued by the ISA. Such a contract grants exclusive rights to the contractor over minerals in a particular area.22 As of December 2019, 30 exploration contracts have been granted for 15 years each, covering sites in the Atlantic, Indian, and Pacific Oceans.23 A key feature of the Area regime is its site-banking system, which contributes to the operationalization of the common heritage principle. Applicants from developed states must research mineral abundance and environmental conditions on two sites, one of which is then reserved for 15 years for mining by a developing state and/or the enterprise.24 The aim is to ensure access to and benefit sharing of this global commons for developing states, by lowering the costs and efforts associated with locating a potential mining site. The site-banking system was one of the innovative concepts for the Area regime that was integrated into UNCLOS, although it has been altered since.25 While UNCLOS sets out the broad legal and institutional framework for the Area regime, including such key features as the site-banking system, the regime was always designed to evolve over time. The specific rules and regulations pertaining to activities in the Area were to be developed at a later Article 153(2)(b) of UNCLOS. Article 153(2)(b) and Annex III, Article 4 of UNCLOS; X. Hinrichs Oyarce, ‘Sponsoring States in the Area: Obligations, Liability and the Role of Developing States’ (2018) 95 Marine Policy 317. 19 Article 153(2)(a) of UNCLOS. 20 Articles 158(2) and 170(1), and Annex IV, Article 1 of UNCLOS. 21 A. Jaeckel et al, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (2016) 70 Marine Policy 198, 200. 22 Annex III, Articles 3 and 16 of UNCLOS. 23 Report of the Secretary-General of the International Seabed Authority under Article 166, Paragraph 4, of the United Nations Convention on the Law of the Sea (ISA Doc. ISBA/24/A/2, 29 May 2018), 20, https://​ran​-s3​.s3​.amazonaws​.com/​isa​.org​.jm/​ s3fs​-public/​files/​documents/​isba24​_a2​-en​.pdf, last accessed 10 December 2019. 24 Annex III, Articles 8 and 9 of UNCLOS; 1994 Implementing Agreement (n 7) Annex, Sections 1(10), 2(2) and 2(5). 25 Jaeckel et al, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (n 21) 201. 17 18

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stage – not least because, at the time that UNCLOS and the 1994 Agreement were negotiated, understanding of the deep oceans was rudimentary and seabed mining remained a future challenge that would require technology then existing only in sketchbooks. So that the Area regime could be developed in line with scientific, technological and legal changes, UNCLOS equipped the ISA with law-making powers: it is mandated to adopt rules, regulations and procedures for all aspects of prospecting, exploration and exploitation in the Area,26 including protection of the marine environment,27 as well as for financial matters and internal administration28 and for the equitable sharing of the financial benefits of seabed mining.29 In implementing its powers, the ISA has adopted three sets of binding regulations – for the exploration of polymetallic nodules,30 polymetallic sulphides31 and ferromanganese crusts32 – as well as several sets of non-binding recommendations. Collectively, these are referred to as the ‘Mining Code’. The ISA is currently working to develop the first regulations for the commercial-scale exploitation of seabed minerals. The role of the Mining Code was well described in a 1984 background paper from the Secretariat of the ISA’s Preparatory Commission: In the formulation of these rules, regulations and procedures, the primary objective should be to enable the Authority to better carry into effect the provisions of the Convention relating to the conduct of activities in the Area. The rules, regulations and procedures are subsidiary and supplementary to the Convention, and are

26 Articles 137(2), 160(2(f)(ii), 162(2)(o)(ii) and 209, and Annex III, Article 17(1) of UNCLOS. For a detailed discussion on the law-making powers of the ISA, see J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press 2011), 122–46. 27 Article 145 of UNCLOS. 28 Articles 160(2)(f)(ii) and 162(2)(o)(ii) of UNCLOS. 29 Articles 82, 160(2)(f)(i) and 162(2)(o)(i) of UNCLOS. 30 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (ISA Doc. ISBA/6/A/18, 13 July 2000), as amended by ISA Docs. ISBA/19/C/17 (22 July 2013), ISBA/19/A/12 (25 July 2013) and ISBA/20/A/9 (24 July 2014) (‘Nodules Exploration Regulations’). All decisions of the Council are available at the ISA website, www​.isa​.org​.jm/​, last accessed 10 December 2019. 31 Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (ISA Doc ISBA/16/A/12/Rev.1, 15 November 2010), as amended by ISA Docs ISBA/19/A/12 (25 July 2013) and ISBA/20/A/10 (24 July 2014) (‘Sulphides Exploration Regulations’). Available on the ISA website (n 30). 32 Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (ISA Doc ISBA/18/A/11 (27 July 2012), as amended by ISA Doc ISBA/19/A/12 (25 July 2013) (‘Crusts Exploration Regulations’). Available on the ISA website (n 30).

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required to be drafted in greater detail and structured in such a way that they become the day-to-day de facto working instruments of the Authority.33

Thus, the Mining Code is the primary way in which Part XI of UNCLOS is concretized and developed further over time. This development is supported by the compulsory dispute settlement mechanism for the Area regime, centred on the Seabed Disputes Chamber.34 Originally intended to be an organ of the ISA, the Chamber is an independent legal body based within the International Tribunal for the Law of the Sea (ITLOS) in Hamburg: a ‘tribunal within a tribunal’.35 The Chamber has compulsory jurisdiction in respect of disputes concerning activities in the Area,36 as well as jurisdiction to give advisory opinions at the request of the ISA Assembly or Council.37 While UNCLOS provides for the use of other judicial forums for specific disputes, the Chamber enjoys ‘the exclusive function of interpreting Part XI of the Convention and the relevant annexes and regulations that are the legal basis for the organization and management of activities in the Area’.38 Through this exclusive role, the Chamber can assist the development of the Area regime, as it has done with its 2011 Advisory Opinion, to which we now turn.

3.

THE ADVISORY OPINION ON THE RESPONSIBILITIES AND OBLIGATIONS OF SPONSORING STATES

3.1 Background The request for the Advisory Opinion arose out of discussions in the ISA Council about the potential liabilities to which developing states could be exposed if they sponsored activities in the Area. In 2008, two applications by

33 Preparatory Commission for the ISA and ITLOS, Doc LOS/PCN/SCN.3/WP.1 (8 March 1984), 2. 34 Articles 186–191 and Annex VI, Articles 35–40 of UNCLOS. For a detailed discussion of the dispute settlement mechanism, see T. Treves, ‘Judicial Action for the Common Heritage’ in H. Hestermeyer et al (eds), Law of the Sea in Dialogue (Springer 2010), 113. 35 H. Tuerk, ‘The Contribution of the International Tribunal for the Law of the Sea to International Law’ in A.G. Oude Elferink and E.J. Molenaar (eds), The International Legal Regime of Areas beyond National Jurisdiction: Current and Future Developments (Martinus Nijhoff 2010) 217, 221. 36 Articles 187 and 287(2) of UNCLOS. 37 Article 191 of UNCLOS. 38 SDC Advisory Opinion (n 2) para 25.

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private mining entities, sponsored by Nauru and Tonga, to explore for polymetallic nodules in the Pacific were submitted to the ISA.39 The applications were for reserved areas that had been pre-researched as part of the site-banking system and found to contain commercially viable mineral deposits. Consideration of the applications by Tonga and Nauru was postponed owing to economic circumstances and concerns over the potential liabilities these Pacific island states might face in the event of environmental harm caused by the exploration work.40 Since UNCLOS places particular emphasis on ensuring that developing states can fully participate in the Area regime,41 including through the site-banking system, the question arose whether a developing state would be liable for environmental damage that might occur during exploration work sponsored by that state. The argument put forward by Nauru was that such liabilities would effectively exclude some developing states from participating effectively in the Area regime:42 these liabilities or costs could, in some circumstances, far exceed the financial capacities of Nauru (as well as those of many other developing States). Unlike terrestrial mining, in which a State generally only risks losing that which it already has (for example, its natural environment), if a developing State can be held liable for activities in the Area, the State may potentially face losing more than it actually has.43

In 2010, Nauru proposed to the ISA Council to seek an advisory opinion from the Seabed Disputes Chamber to clarify the responsibilities and liability of sponsoring states.44 The ISA Council decided to submit the following three questions to the Seabed Disputes Chamber: 1. What are the legal responsibilities and obligations of States Parties to the Convention with respect to the sponsorship of activities in the Area

39 Nauru Ocean Resources Inc. – Application for Approval of a Plan of Work for Exploration (ISA Doc. ISBA/14/LTC/L.2, 21 April 2008) and Tongan Offshore Mining Limited – Application for Approval of a Plan of Work for Exploration (ISA Doc ISBA/14/LTC/L.3, 21 April 2008). Available on the ISA website (n 30). 40 Summary report of the Chairman of the Legal and Technical Commission on the work of the Commission during the fifteenth session (ISA Doc ISBA/15/C/5, 27 May 2009), 6. Available on the ISA website (n 30). 41 See, for example, Articles 140, 148, 150(c) and 152(2) of UNCLOS. 42 SDC Advisory Opinion (n 2) para 4. 43 Ibid. 44 Proposal to Seek an Advisory Opinion from the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea on Matters Regarding Sponsoring State Responsibility and Liability – Submitted by the Delegation of Nauru (ISA Doc ISBA16/C/16, 5 March 2010). Available on the ISA website (n 30).

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in accordance with the Convention, in particular Part XI, and the 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982? 2. What is the extent of liability of a State Party for any failure to comply with the provisions of the Convention, in particular Part XI, and the 1994 Agreement, by an entity whom it has sponsored under Article 153, paragraph 2 (b), of the Convention? 3. What are the necessary and appropriate measures that a sponsoring State must take in order to fulfil its responsibility under the Convention, in particular Article 139 and Annex III, and the 1994 Agreement?45 3.2

Main Findings of the Advisory Opinion

On 1 February 2011, the Seabed Disputes Chamber issued its unanimous Advisory Opinion. The Chamber found that sponsoring states have two types of obligations. First, they have direct obligations contained in UNCLOS or the ISA regulations, such as to conduct environmental impact assessments. Second, sponsoring states are required to apply due diligence to ‘exercise best possible efforts, to do the utmost’ to secure compliance by the sponsored mining contractors as regards their contractual obligations and those set out in the legal framework.46 Importantly, these obligations apply equally to all states, whether developing or developed, unless a direct obligation specifies otherwise. The Chamber rejected the idea of strict liability of sponsoring states and clarified that liability arises if: (1) a state fails to meet its obligations; (2) damage has occurred; and (3) a causal link exists between the failure and the damage in the case of the due diligence obligation. In order to discharge their obligations and avoid liability, sponsoring states must, among other things, adopt laws, regulations and administrative measures within their domestic legal systems to ensure compliance by the contractors and to exempt the state from liability. In making these findings, the Chamber arguably strengthened the Part XI regime by seeking to ensure that a sponsoring state has in place a comprehensive domestic regulatory framework when it sponsors activities in the Area. The Chamber took a clearly progressive stance and demonstrated its willing-

45 Decision of the Council of the International Seabed Authority Requesting an Advisory Opinion Pursuant to Article 191 of the United Nations Convention on the Law of the Sea (ISA Doc. ISBA/16/C/13, 6 May 2010). Available on the ISA website (n 30). 46 SDC Advisory Opinion (n 2) para 110.

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ness to apply an evolutionary approach to interpreting Part XI of UNCLOS, as discussed below.

4.

CONTRIBUTION OF THE ADVISORY OPINION TO THE EVOLUTION OF THE AREA REGIME

The 2011 Advisory Opinion was a milestone in the development of the Area regime – not only by clarifying the role of sponsoring states, but also by clarifying the content and limits of the preferential treatment of developing states, as well as the environmental protection aspects of the Area regime. The following sections discuss four key aspects of the advisory opinion which demonstrate the Chamber’s willingness to apply an evolutionary approach to interpreting Part XI of the Convention: due diligence, compensation, preferential treatment of developing states and the precautionary approach. 4.1

The Due Diligence Obligation

In finding that sponsoring states have a due diligence obligation to ensure that their sponsored contractors comply with all obligations, the Chamber set a high environmental standard for all sponsoring states and contractors, and clearly demonstrated an evolutionary approach to interpreting the law. One illustration of this point is the Chamber’s finding as to what constitutes part of a sponsoring state’s due diligence obligation. The Chamber lists several direct obligations of sponsoring states, including the obligation to assist the ISA; to apply a precautionary approach and best environmental practices; to conduct an environmental impact assessment; to adopt guarantees for emergency orders by the ISA to protect the marine environment; and to provide recourse for compensation.47 These direct obligations under UNCLOS or the ISA regulations, the Chamber found, also contribute to a sponsoring state’s obligation of due diligence.48 Here, the Chamber offered a noteworthy reasoning which clearly illustrates its evolutionary approach. The Chamber found that the obligation to apply ‘best environmental practices’ in general terms has become part of the due diligence obligation.49 Not only is this obligation not specifically included in UNCLOS, but it was included only in the later of the two sets of exploration regulations (Sulphides Exploration Regulations) that the ISA had adopted

Ibid para 122. Ibid para 123. 49 Ibid para 136. 47 48

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at the time of the Advisory Opinion. Despite this, the Chamber reasoned as follows: The adoption of higher standards in the more recent Sulphides Regulations would seem to indicate that, in light of the advancement in scientific knowledge, member States of the Authority have become convinced of the need for sponsoring States to apply ‘best environmental practices’ in general terms so that they may be seen to have become enshrined in the sponsoring States’ obligation of due diligence.50

In other words, the Chamber found that an obligation contained only in one set of regulations for a particular type of mineral deposit is applicable to all sponsoring states regardless of the type of mineral deposit in question. The Chamber’s reasoning also demonstrates its view of due diligence as a variable concept which ‘may change over time as measures considered sufficiently diligent at a certain moment may become not diligent enough in light, for instance, of new scientific or technological knowledge’.51 In addition to finding that a relatively recent obligation forms part of a state’s due diligence, the Chamber used the then-latest set of regulations to inform its reading of the earlier Nodules Exploration Regulations, and found that the latter ‘should be interpreted in light of the development of the law, as evidenced by the subsequent adoption of the Sulphides Regulations’.52 Despite only a decade lying between both sets of regulations, the Chamber clearly aimed to ensure that the higher standards in the more recent regulations would apply to all mineral exploration in the Area. The Chamber performed a similar exercise of broadening the applicability of an environmental obligation in its finding about environmental impact assessments. It confirmed that the obligation to conduct an environmental impact assessment is both a direct obligation under UNCLOS53 and a general obligation under customary international law.54 The customary obligation, the Chamber notes by reference to the Pulp Mills case, is ‘broad enough to cover activities in the Area even beyond the scope of the Regulations’.55

Ibid. Ibid para 117. 52 Ibid para 137. 53 Article 206 of UNCLOS. 54 SDC Advisory Opinion (n 2) para 145. 55 Ibid para 148. 50 51

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Lastly, by finding that states have due diligence obligations, the Chamber ensured that treaty obligations contained in UNCLOS are applicable not only to states, but also to mining contractors: ‘Responsibility to ensure’ points to an obligation of the sponsoring State under international law. It establishes a mechanism through which the rules of the Convention concerning activities in the Area, although being treaty law and thus binding only on the subjects of international law that have accepted them, become effective for sponsored contractors which find their legal basis in domestic law. This mechanism consists in the creation of obligations which States Parties must fulfil by exercising their power over entities of their nationality and under their control.56

These examples demonstrate how the Chamber drew on various sources of law and interpreted them in an evolutionary manner, aiming to ensure that all actors in the Area regime comply with high environmental standards. 4.2

Claiming Compensation

A further evolutionary interpretation of the Seabed Disputes Chamber is its finding on what constitutes compensable damage and who may bring a case against a non-compliant sponsoring state. UNCLOS is silent on this matter. The Chamber ‘envisage[s] that the damage in question would include damage to the Area and its resources constituting the common heritage of mankind, and damage to the marine environment’.57 In other words, the Chamber speculates that pure environmental harm may be compensable. The Chamber further hypothesized that several entities could bring a claim if damage arose. Each state party may be entitled to bring a claim for compensation ‘in light of the erga omnes character of the obligations relating to preservation of the environment of the high seas and in the Area’.58 The judicial confirmation of the erga omnes character of this obligation can in itself be regarded as an important contribution.59 To support its view, the Chamber cited Article 48 of the International Law Commission’s Articles on State Responsibility, which entitles states other than an injured state to invoke responsibility of another state if ‘the obligation breached is owed to the international community as a whole’. Ibid para 108. Ibid para 179. 58 Ibid para 180. 59 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’ (n 9) 546. 56 57

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The Chamber further noted that ‘entities engaged in deep seabed mining’ – public and private mining operators, coastal states and ‘other users of the sea’ – may be entitled to claim compensation.60 Most importantly, the Chamber found that the ISA itself might bring a claim. Although UNCLOS does not specifically foresee such entitlement, the Chamber reasoned that it might be implicit in the ISA obligation to act ‘on behalf of mankind as a whole’.61 These ‘remarkable’ findings62 pave the way for an extensive liability regime, including an institutional right to claim. The Chamber clearly sought to prevent a repetition of the challenges experienced with enforcing flag state responsibilities under law of the sea. In making these findings and filling gaps left by UNCLOS, the Chamber’s reasoning was arguably significantly influenced by the special legal status of the Area and its resources as the common heritage of mankind. The practical relevance of this legal status is somewhat unclear – not least because the 1994 Implementing Agreement significantly altered its expression in the Area regime. However, the Seabed Disputes Chamber has shown that the ‘common heritage’ concept not only is an active principle, but also forms the basis for advancing a progressive interpretation of the Part XI regime, affecting even the enforceability of the regime. 4.3

Preferential Treatment of Developing States

A key question for the Seabed Disputes Chamber was whether the responsibilities and liabilities of developing states were markedly different from those of developed states. This lay at the core of Nauru’s initial concern, which had triggered the request for an advisory opinion. Part XI of UNCLOS places special emphasis on the interests and effective participation of developing states in the mining regime.63 Indeed, this is a key aspect of the common heritage of mankind principle. As such, Nauru’s hope that the Chamber would find the responsibilities and liability of developing states to be less demanding than those of developed states was not unfounded.

SDC Advisory Opinion (n 2) para 179. Ibid paras 179–80. It is worth noting that Article 157(2) of UNCLOS equips the ISA with ‘such incidental powers, consistent with this Convention, as are implicit in and necessary for the exercise of those powers and functions with respect to activities in the Area’. 62 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’ (n 9) 545. 63 See, for example, Articles 140, 144 and 148 of UNCLOS. 60 61

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However, while the Chamber expressly recognized the relevant treaty provisions that afford preferential treatment for developing states, it unambiguously noted that none of these affect a sponsoring state’s responsibilities or liabilities, which ‘apply equally to all sponsoring state, whether developing or developed’.64 The Chamber arrived at its findings by interpreting the relevant provisions in UNCLOS and the 1994 Implementing Agreement. A key provision here is Article 148, which requires the promotion of the effective participation of developing states in seabed mining activities ‘as specifically provide for in this Part’. However, as the Chamber notes, none of the general provisions on responsibilities and liabilities of sponsoring states specifically provide for preferential treatment of developing states. The Chamber further justified its findings with reference to the need to prevent ‘sponsoring States “of convenience”’ – a reference to the key challenge of enforcing flag state responsibilities in the law of the sea. Unequal treatment of states could encourage companies from developed states to seek sponsorship from a developing state in order to avoid stringent environmental regulations and control. This, as the Chamber noted, would ‘jeopardize uniform application of the highest standards of protection of the marine environment, the safe development of activities in the Area and protection of the common heritage of mankind’.65 In other words, the Chamber found that the importance of protecting the marine environment overrides economic differences between states. However, the Chamber did acknowledge that direct obligations on states can specifically provide for differential treatment of developing and developed states. A point in case is the obligation to apply a precautionary approach. The ISA exploration regulations66 include the obligation by direct reference to Principle 15 of the Rio Declaration on Environment and Development, which in turn requires states to apply precaution ‘according to their capabilities’.67 The Chamber was nevertheless quick to point out that this differentiation does not apply to the obligation to follow best environmental practices.68

SDC Advisory Opinion (n 2) para 158. Ibid para 159. 66 Nodules Exploration Regulations (n 30) Regulation 31(2); Sulphides Exploration Regulations (n 31) Regulations 33(2); Crusts Exploration Regulations (n 32) Regulation 33(2). 67 31 ILM 874. See also SDC Advisory Opinion (n 2) para 129. 68 Ibid para 161. 64 65

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Moreover, it further tried to limit the scope of differentiation by noting the following: [The] reference to ‘capabilities’ is only a broad and imprecise reference to the differences in developed and developing States. What counts in a specific situation is the level of scientific knowledge and technical capability available to a given State in the relevant scientific and technical fields.69

This can be seen as an attempt to clarify the meaning of ‘developed’ and ‘developing’ states, which has caused headaches for the ISA in practice. UNCLOS is silent on the matter. The resulting ambiguity has allowed both Singapore and China to obtain exploration contracts for areas reserved for developing states.70 In fact, China has both contributed a reserved area (required only of non-developing states) and claimed one as a developing state.71 The Chamber’s findings may be disappointing to some developing states. In this context, the Chamber made a comment about the importance of the site-banking system in enabling effective participation of developing states in the Area regime: ‘[d]eveloping States should receive necessary assistance including training’,72 to be able to participate in the regime on equal footing with developed states. Thus, the Chamber pointed the ISA in a particular direction with respect to preferential treatment of developing states. This guidance is perhaps particularly noteworthy in the context of changes to the site-banking system that were introduced through the 2010 Sulphides Exploration Regulations and the subsequent 2012 Crust Exploration Regulations. Both of these regulations introduced an alternative to reserved areas – allowing applicants to choose between contributing a reserved area for the benefit of developing states, or granting the enterprise an equity interest in a joint venture arrangement for future mining operations, if and when these eventuate.73 The reasoning behind this new option was that deposits of sul Ibid para 162. Report and recommendations to the Council of the International Seabed Authority relating to an application for the approval of a plan of work for exploration by Ocean Mineral Singapore Pte Ltd (ISA Doc ISBA/20/C/7, 25 February 2014), 15; Report and recommendations of the Legal and Technical Commission to the Council of the International Seabed Authority relating to an application for the approval of a plan of work for exploration for polymetallic nodules by China Minmetals Corporation (ISA Doc ISBA/21/C/2, 5 March 2015), 14. All documents available on the ISA website (n 30). 71 ISA Doc ISBA/21/C/2, ibid. See also A. Jaeckel et al, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (n 21). 72 SDC Advisory Opinion (n 2) para 163. 73 Sulphides Exploration Regulations (n 31) Regulations 16–19; Crusts Exploration Regulations (n 32) Regulations 16–19. 69 70

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phides and crusts are three-dimensional, making it difficult to determine their size without substantial exploration work at the pre-application stage.74 The follow-on effects of this regulatory change have not been widely discussed and could affect the manner in which developing states can participate in the Area regime.75 4.4

The Precautionary Approach

A last point on which the Chamber demonstrated its willingness to interpret UNCLOS in an evolutionary manner concerned the need to apply a precautionary approach to the Part XI regime. While UNCLOS does not expressly mention ‘precaution’, the ISA exploration regulations oblige the ISA and all sponsoring states to apply a precautionary approach: In order to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, the Authority and sponsoring States shall apply a precautionary approach, as reflected in principle 15 of the Rio Declaration…to such activities.76

The 2010 Sulphides Exploration Regulations imposed the same obligations on exploration contractors.77 However, the Nodules Exploration Regulations adopted in 2000 had not imposed this obligation on contractors at the time of the Advisory Opinion. This indicates a gradual strengthening and broadening of the obligation to apply a precautionary approach within the ISA legal framework. This also meant that the 13 exploration contracts concluded under the original Nodules Exploration Regulations did not require contractors to apply a precautionary approach. The Seabed Disputes Chamber sought to close this gap. By finding that applying precaution is an element of due diligence, it effectively confirmed that every sponsoring state is obliged ‘to take measures within the framework of its own legal system in order to oblige sponsored entities to adopt [a precautionary] approach’.78

74 ISA Doc ISA, ISBA/7/C/2, 29 May 2001, para 12. Available on the ISA website (n 30). 75 For a detailed discussion, see A. Jaeckel et al, ‘Sharing Benefits of the Common Heritage of Mankind – Is the Deep Seabed Mining Regime Ready?’ (n 21) 201. 76 Decision of the Assembly relating to the regulations on prospecting and exploration for polymetallic nodules in the Area (ISA Doc. ISBA/6/A/18, 4 October 2000), Regulation 31(2). Available on the ISA website (n 30). 77 Sulphides Exploration Regulation (n 31) Regulation 33(5). 78 SDC Advisory Opinion (n 2) para 134.

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The Chamber’s finding of precaution as being part of a sponsoring state’s due diligence draws on the ‘implicit’ link between precaution and due diligence made in the Southern Bluefin Tuna case.79 In making this link, precaution becomes applicable ‘even outside the scope of the [ISA] Regulations’.80 As French noted, ‘an obligation only contained within subsequent secondary regulations has now been transformed into a fundamental element of the conventional requirement on sponsoring States’.81 The Chamber’s reasoning is informed by a growing acceptance of the precautionary approach under international law. Indeed, breaking with previous judicial hesitation on the matter, the Chamber noted ‘a trend towards making this approach part of customary international law’.82 This trend was reinforced by the International Court of Justice’s (ICJ) finding in the Pulp Mills case that ‘a precautionary approach may be relevant in the interpretation and application’ of the relevant environmental treaty at the heart of the dispute.83 The Chamber saw the ICJ Statement as being in line with Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT), which allows the taking into account of ‘any relevant rules of international law applicable in the relations between the parties’. In other words, the Chamber deemed a precautionary approach to be a relevant rule of international law – which demonstrated its willingness to interpret the law in light of current environmental concerns and to view UNCLOS as a living instrument.84 Further, the Chamber enunciated a perhaps surprisingly low threshold for taking precautionary measures: The due diligence obligation of the sponsoring States requires them to take all appropriate measures to prevent damage that might result from the activities of contractors that they sponsor. This obligation applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks. Such disregard would amount to a failure to comply with the precautionary approach.85

Ibid para 132. Ibid para 131. 81 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’ (n 9) 547. 82 SDC Advisory Opinion (n 2) para 135. 83 Ibid. 84 For a detailed discussion about the gradual integration of precaution in UNCLOS, see A. Jaeckel, The International Seabed Authority and the Precautionary Principle (Brill/Martinus Nijhoff 2017), Chapter 4.4. 85 SDC Advisory Opinion (n 2) para 131. 79 80

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This stands in contrast to the direct obligation to apply precaution under the ISA exploration regulations, to protect against ‘harmful effects which may arise’ from activities in the Area.86 To complicate things further, the exploration regulations also reference Principle 15 of the Rio Declaration, which in turn names ‘threats of serious or irreversible damage’ as the threshold for precaution. In light of these differing thresholds, the Seabed Disputes Chamber has broadened the application of the precautionary approach by unambiguously requiring states to apply it where there are plausible indications of potential risk – which covers most activities associated with seabed mining.

5.

INTERPRETATIVE APPROACH

In this, its first advisory opinion, the Seabed Disputes Chamber followed an evolutionary approach as well as a gap-filling approach, while also applying a systemic interpretation and making ample use of the VCLT. Each of these claims is discussed individually in the following. 5.1

Evolutionary Approach

Section 4 demonstrates the Seabed Disputes Chamber’s evolutionary approach and its willingness to interpret the Area regime in light of recent developments in international law. In fact, the Chamber can be said to have interpreted the Area regime in line with principles supporting sustainable development – including the sustainable use of natural resources, the precautionary approach, common but differentiated responsibility, equity and good governance.87 In doing so, the Chamber helped to bring the Area regime into the twenty-first century with respect to marine environmental protection. At times, the Chamber’s approach was so progressive that it caused one commentator to note: As should be gleaned from the general tone of this article, the judgment is warmly received by this author, but nevertheless, even he wishes to stop and reflect on some 86 Nodules Exploration Regulations (n 31) Regulation 31(2); Sulphides Exploration Regulations (n 31) Regulation 33(2); Crusts Exploration Regulations (n 32) Regulation 33(2). 87 A. Jaeckel and T. Stephens, ‘The Interpretation of Sustainable Development Principles in ITLOS’ in M-C. Cordonier Segger and Judge C.G. Weeramantry (eds), Sustainable Development Principles in the Decisions of International Courts and Tribunals: 1992–2012 (Routledge 2017) 339; 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’ (n 9).

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of these arguably more creative—radical seems too strong—aspects of treaty and instrument interpretation, which are utilised by the Chamber to ensure maximum coherence and contemporaneity in its application and reach.88

We can only speculate about the reasons for the Chamber’s willingness to follow such a progressive view. The status of the Area and its resources as the common heritage of mankind no doubt influenced its findings; as did its aim of ensuring that the significant problem of ‘flag states of convenience’ would not be repeated in the Area regime. The Chamber may also have been influenced by the fact that UNCLOS establishes an inherently evolutionary design of the Area regime. As noted, the Area regime was always intended to evolve over time, to respond to new scientific understandings of the deep ocean environment. As Harrison summarizes: Part XI of the Law of the Sea Convention was never intended to provide a comprehensive legal code covering all aspects of the regulation of the International Seabed Area. Rather, it was intended that the legal regime should develop gradually over time as knowledge of the deep seabed expands. One of the key functions of the Authority is the enunciation of detailed rules and regulations to fill gaps in the framework left by the Law of the Sea Convention.89

Indeed, the institutional structure of the ISA is also designed to expand over time. Although the ISA started as a lean organization with few staff members, the 1994 Implementing Agreement provided for the setting up and functioning of the ISA organs and subsidiary bodies through ‘an evolutionary approach taking into account the functional needs’ of the ISA at the various stages of developing the Area.90 In light of this inherently evolutionary design, we might assume that a conservative approach by the Chamber could have been met with criticism. 5.2

Gap-filling Approach

The Seabed Disputes Chamber used the Advisory Opinion to fill gaps in the Area regime. Perhaps the most pertinent example here is the Chamber’s speculation that environmental harm falls within compensable damage; and that the ISA, states and public and private entities engaged in deep seabed mining could bring a case against a non-compliant state. With UNCLOS being silent on these points, the Chamber’s finding made a significant contribution to Ibid 555. Harrison, Making the Law of the Sea: A Study in the Development of International Law (n 26) 116. 90 1994 Implementing Agreement (n 7) Annex, Section 1(3). 88 89

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clarifying the rights and obligations of actors under the Area regime. Perhaps the Chamber could have answered the specific questions posed to it without pronouncing its views on what constitutes compensable harm and who could bring a case. Nevertheless, the Chamber chose to provide guidance on these issues (albeit framed in the conditional), which would inevitably arise in case of environmental harm. A further example is the Chamber’s finding that a sponsoring state must require its sponsored contractors to adopt a precautionary approach, even though this obligation had not been included in the early exploration contracts. In doing so, the Chamber filled a gap left by the circumstance that exploration contracts under different sets of ISA regulations include unequal obligations for contractors. Harmonizing the obligations via the concept of due diligence, as the Chamber has done, contributes to the aim of ensuring the ‘uniform application of the highest standards of protection of the marine environment’.91 However, despite the Chamber’s progressive and evolutionary interpretation of the law, its findings do at times closely follow the text of UNCLOS. In finding that sponsoring states have a due diligence obligation, the Chamber rejected the view argued by some92 that a strict liability regime should be followed. As noted by Freestone, UNCLOS itself weighs heavily against this argument.93 Article 139(2) of UNCLOS reads: A State Party shall not however be liable for damage caused by any failure to comply with this Part by a person whom it has sponsored…, if the State Party has taken all necessary and appropriate measures to secure effective compliance…

Nonetheless, as Rayfuse observes, the Chamber did not rule out the possibility that the ISA could strengthen the liability regime in future regulations – particularly those regarding mineral exploitation, which entails a greater risk of environmental harm than exploration does.94 The ISA is currently developing the first exploitation regulations. It will be interesting to see whether the Chamber’s remarks will prompt changes in the liability regime for activities in the Area.

SDC Advisory Opinion (n 2) para 159. See, for example, Written Statement of the International Union for Conservation of Nature to the Seabed Disputes Chamber (19 August 2010), www​.itlos​.org/​en/​cases/​ list​-of​-cases/​case​-no​-17/​, last accessed 10 December 2019. 93 Freestone, ‘Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area’ (n 1) 759. 94 SDC Advisory Opinion (n 2) para 168; Rayfuse, ‘Differentiating the Common? The Responsibilities and Obligations of States Sponsoring Deep Seabed Mining Activities in the Area’ (n 1). 91 92

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Systemic Interpretation

While the core work of the Chamber in its Advisory Opinion was to interpret UNCLOS and the ISA’s regulations, the Chamber contextualized its findings by reference to other international judicial rulings. With respect to substance, direct parallels to other cases or advisory opinions are difficult, as this remains the sole judicial ruling about the Area regime to date. However, the Chamber drew parallels on interpretative issues,95 customary international law96 and questions of state responsibility under general international law;97 and made reference to rulings by ITLOS, the ICJ, the Permanent Court of International Justice, arbitral tribunals and the World Trade Organization.98 In particular, the Chamber took care to ensure that its findings were contextualized within international environmental law, as is evident in its discussion about the precautionary approach and environmental impact assessments.99 Demonstrating a systemic rather than a self-contained interpretation,100 the Chamber also frequently referenced the work of the International Law Commission.101 Moreover, in discussing what sponsoring states may have to include in their domestic laws, the Chamber even referred to two sets of domestic laws as examples.102 5.4

Use of the Vienna Convention on the Law of Treaties

The Chamber specifically relied on the interpretive rules in the VCLT and confirmed their customary status (which ITLOS had never done).103 Indeed, the Chamber used the VCLT not only to inform its reading of UNCLOS and the 1994 Implementing Agreement, but also to guide its interpretation of the ISA’s exploration regulations. The Chamber reasoned that ‘these instruments are binding texts negotiated by states and adopted through a procedure similar to that used in multilateral

SDC Advisory Opinion (n 2), eg paras 57 and 60. Ibid, for example, paras 57, 135, 147–48, 169, 178, 182–83, 194, 210–11. Ibid, for example, paras 112, 169, 194, 208–11. Ibid para 57. Ibid, for example, paras 116, 125, 132, 135, 147–49. 100 J. Pauwelyn and M. Elsig, ‘The Politics of Treaty Interpretation: Variations and Explanations across International Tribunals’ in J.L. Dunoff and M.A. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (Cambridge University Press 2013), 445. 101 See, SDC Advisory Opinion (n 2) eg para 169. 102 Ibid para 237. 103 Ibid paras 57, 62 and 135. 97 98 99 95 96

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conferences’.104 This may be a slightly misleading analogy, as the ISA regulations were developed mainly by a small specialist advisory body of the ISA – the Legal and Technical Commission – before being considered, potentially amended and adopted by the ISA Council,105 where only 36 of more than 160 member states have a vote. Although the plenary organ, the Assembly, must give final approval of all regulations,106 regulations apply provisionally once adopted by the Council.107 Moreover, even though decisions by the Assembly are basically intended to be taken by consensus, there is a final option of adopting regulations by majority vote.108 Indeed, this is among the remarkable powers of the ISA: being able to adopt regulations that are binding on all member states, without requiring individual consent and – more importantly – without the possibility for members to opt out.109 However, the Chamber further justified its approach by reference to the findings of the ICJ in its advisory opinion on the independence of Kosovo110 that the VCLT ‘may provide guidance’ for the interpretation of resolutions of the UN Security Council,111 which clearly do not always reflect the views of all UN member states.

6. CONCLUSIONS The 2011 Advisory Opinion issued by the Seabed Disputes Chamber contributed significantly to the evolution of the Area regime. In particular, the Chamber interpreted the ‘common heritage of mankind’ principle as very much an active principle integral to the Area regime. In doing so, it helped to articulate the meaning and practical relevance of that principle, including by directing the focus of the ISA to the site-banking system. Moreover, the Chamber highlighted that all states – whether developing or developed – have the same due diligence obligation to ensure that their sponsored entities comply with all requirements. With this finding, the Chamber contributed to ensuring that the Area regime is less likely to suffer the challenges associated Ibid para 60. Articles 162(2)(o)(ii) of UNCLOS. 106 Article 160(2)(f)(ii) of UNCLOS. 107 Article 162(2)(o)(ii) of UNCLOS. 108 Articles 159(9) and (10) of UNCLOS; Annex, Sections 3(2) and 3(3) of the 1994 Implementing Agreement (n 7). 109 For a detailed discussion on the decision-making processes of the ISA, see Jaeckel, The International Seabed Authority and the Precautionary Principle (n 84) 101–3, 147. 110 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Request for an Advisory Opinion, ICJ Reports 2010, 403. 111 SDC Advisory Opinion (n 2) para 60. 104 105

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with enforcing flag state responsibility and ‘flags of convenience’ in the law of the sea. Apparent throughout the Advisory Opinion is the Chamber’s aim of ensuring that all actors that are actively engaged in activities in the Area must comply with the same standards of good governance and environmental protection. To this end, the Chamber engaged in a gap-filling exercise and used a systemic interpretation, situating the Area regime within a broader international law context. The Advisory Opinion clearly stresses the importance of protecting the marine environment in areas beyond national jurisdiction – an erga omnes obligation, as the Chamber specifically stated. Indeed, the Chamber recognized the priority of the marine environment over economic differences between states. From the start, the Area regime was both visionary and controversial – not least because of the principle of the common heritage of mankind. Although the regime was significantly altered by the 1994 Implementing Agreement, the idea of having a central organization tasked with regulating and managing the Area on behalf of humankind has prevailed. This organization, the ISA, is equipped with an extensive environmental mandate and far-reaching powers, including law-making powers, supported by a dedicated dispute settlement mechanisms and body. Its mandate and exclusive jurisdiction over minerals in the Area provide excellent great opportunities to encourage the sustainable use of natural resources. The Seabed Disputes Chamber has done much to guide the ISA in the direction of sustainable development and, along the way, has helped to develop the Area regime considerably.

8. ITLOS and the tale of the tenacious ‘genuine link’ Moira L. McConnell 1. INTRODUCTION Part VII of the United Nations Convention on the Law of the Sea (UNCLOS)1 sets out the core jurisdictional principles governing the ‘High Seas’. These include the important, and now often contested, six freedoms,2 as well as the important prohibition on claims to sovereignty over the high seas.3 Central, if only implicit, in the exercise of most of these freedoms4 is the right set out in Article 90 of UNCLOS: ‘Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.’ Flowing from this right are the correlative obligations in Articles 91 and 92 of UNCLOS which are embedded in the attribution of ‘nationality’ to ships, suggesting a kind of personality, analogous perhaps to that of a person. Article 91 reads: 1. Every State shall fix the conditions for the grant of its nationality to ships, for the 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 must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect.

This legal concept of ship nationality, and the resulting jurisdiction over ships flying the flag of a state, is reinforced in Article 92: 1. Ships shall sail under the flag of one State only and…shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during

3 4 1 2

United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3. Article 87(1a–f) of UNCLOS. Article 89 of UNCLOS. Article 87(1b) of UNCLOS. 190

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a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry. 2. A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality.

The obligations of the flag state are also addressed in Article 94, according to which every state shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. In particular, the meaning of the requirement in Article 91 – that ‘[t]here must exist a genuine link between the State and the ship’ – has generated a plethora of scholarly writings5 that address the issue in context of UNCLOS and the 1958 Convention on the High Seas (CHS).6 The CHS sought to codify the rules of international law relating to the high seas; its provisions were generally considered to be ‘declaratory of established principles international law’.7 Despite this claim to codification, however, the concept of ‘genuine 5 See M.S. McDougal et al, ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (1960) 54 American Journal of International Law 105; P. Jessup, ‘The United Nations Convention the Law of the Sea’ (1959) 59 Columbia Law Review 234, 256; A.D. Watts, ‘The Protection of Merchant Ships’ (1957) 33 British Yearbook of International Law 53, 84; A.D. Watts, ‘The Protection of Alien Seamen’ (1958) 7 International & Comparative Law Quarterly 691–711; L.F. Goldie, ‘Recognition and Dual Nationality – A Problem of Flags of Convenience’ (1962) 31 British Yearbook of International Law 220, 270; B. Bozcek, Flags of Convenience, An International Legal Study (Harvard University Press 1962); H. Meijers, The Nationality of Ships (Martinus Nijhoff 1967); M.L. McConnell, ‘Darkening confusion mounted upon darkening confusion: The Search for the Elusive Genuine Link’ (1985) 16 Journal of Maritime Law and Commerce 365; M.L. McConnell, ‘Business as Usual: An Evaluation of the 1986 United Nations Convention on the Conditions for Registration of Ships’ (1987) 18 Journal of Maritime Law and Commerce 435; L. de La Fayette, ‘ITLOS and the Saga of the Saiga: Peaceful Settlement of a Law of the Sea Dispute’ (2000) 15 The International Journal of Marine and Coastal Law 355–92; R. Churchill, ‘The meaning of the “Genuine Link” requirement in relation to the nationality of ships’. A study prepared for the International Transport Workers Federation, 2000, http://​seafarersrights​ .org/​wp/​wp​-content/​uploads/​2014/​11/​INTERNATIONAL​_ARTICLE​_GENUINE​ -LINK​-REQUIREMENT​-IN​-NATIONALITY​-OF​-SHIPS​_2000​_ENG, last accessed 10 December 2019; I.F. Dekker and H. Post (eds), On the Foundations and Sources of International Law (T.M.C. Asser Press 2003), XII; M.L. McConnell, ‘Forging or Foregoing the Genuine Link? A reflection on the Maritime Labour Convention, 2006 and other strategies’, in A. Chircop et al (eds), The Regulation of International Shipping: International and Comparative Perspectives. Essays in Honor of Edgar Gold (Martinus Nijhoff 2012) 402–25. 6 450 UNTS 82. 7 T. Treves, Introductory note – 1958 Geneva Conventions on the Law of the Sea (the UN Audiovisual Library of International Law), http://​legal​.un​.org/​avl/​ha/​gclos/​ gclos​.html, last accessed 10 December 2019.

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link’ was already controversial when it was introduced in the CHS. McDougal, Burke and Vlasic issued a warning in 1960: It is not yet demonstrated that any conceivable good for the common interest of peoples could attend the introduction of this new-found requirement of genuine link… It has not, in sum, been established that the proposed innovation would serve any common interest which would counterbalance the grave risks and dangers which it would entail. On the contrary, it would seem reasonably clear that the only purposes it would serve are those of disruption, controversy and anarchy…8

Johnson commented that the problem of nationality of ships was only ‘complicated or simplified…by the emergence of the concept of the genuine link’.9 Then, in 2003 Dekker and Post went so far as to describe the concept of the genuine link as one of ‘the more problematic “cornerstones” of international law’.10 Elferink has even suggested that it may be time for a post-mortem with respect to any further discussions aimed at establishing the meaning of the concept.11 Analysing state activities to secure flag state responsibility, he concludes that ‘additional effort to reach agreement over [a] more detailed definition of the genuine link serves little purpose’.12 In response, Soons has argued that a call for a-post mortem assumes that the concept was once alive. Further, in his view: [n]o such specific content has been given in state practice to the concept. In this sense it has been a phantom, much like the Flying Dutchman. Or, rather, we must conclude that it appears to be an empty shell. In that case the concept has never been alive, and it will be impossible to perform a post mortem.13

de La Fayette has observed that, given the proliferation of open registries and the repeated failure of efforts by some states to control or even abolish them, ‘one might have thought that the question of the genuine link had been laid to rest’.14 However, she points out that in fact, there was a resurgence of interest in

8 McDougal et al, ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (n 5) 115. 9 D.H.N. Johnson, ‘Foreword’ in Meijers (n 5) v. 10 Dekker and Post, On the Foundations and Sources of International Law (n 5) XII. 11 A.G. Oude Elferink, ‘The Genuine Link Concept: Time for a Post Mortem?’, in Dekker and Post, On the Foundations and Sources of International Law (n 5) 41–58. 12 Ibid 58. 13 A.H.A. Soons, ‘Comments’, in Dekker and Post, On the Foundations and Sources of International Law (n 5) 67. 14 de La Fayette, ‘ITLOS and the Saga of the Saiga: Peaceful Settlement of a Law of the Sea Dispute’ (n 5) 371.

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the meaning of the concept in the late 1990s, including in the UN Commission on Sustainable Development (CSD),15 particularly in connection with better protection of fish stocks and improving protection from ship-source pollution. Well before the CSD, the genuine link had also attracted the attention of other international organizations, including the UN Conference on Trade and Development (UNCTAD), which in 1986 adopted the still-unsuccessful Convention on the Conditions for Registration of Ships aimed at establishing uniform requirements for ship registration: for the purpose of ensuring or…strengthening the genuine link between a State and ships flying its flag, and in order to exercise effectively its jurisdiction and control over such ships with regard to identification and accountability of shipowner and operators as with regard to administrative, technical, economic and social matters…16

A report on the ‘genuine link’ was also issued by the International Maritime Organization (IMO) and other UN specialized agencies in 2006.17 In that report a clear connection was made to the aforementioned underlying legal problem foreseen by McDougal, Burke and Vlasic: what are the legal consequence of non-recognition of a genuine link between a ship and its flag state? These scholarly writings and the 2006 UN study suggest that further efforts devoted to determining the precise legal content and meaning of the genuine-link concept and its relationship to ship nationality are probably fruitless; and possibly even detrimental to more pragmatic efforts to improve compliance with international standards.18 In addition, however, there have been many international decisions related to the concept of the genuine link, beginning in 196019 with the International Court of Justice (ICJ) and, since 1997, frequently arising as a key issue in cases brought before the International

15 Commission on Sustainable Development, Report on the Seventh Session of the Economic and Social Council, www​.un​.org/​documents/​ecosoc/​docs/​1999/​e1999​-29​ .htm, last accessed 10 December 2019. 16 Text in UN Doc TD/RS/CONF/23, 7 February 1986, Article 1, https://​unctad​ .org/​en/​PublicationsLibrary/​tdrsconf23​_en​.pdf, last accessed 10 December 2019 (not in force). 17 UN Doc UNGA A/61/160 (Report of the Ad Hoc Consultative Meeting of Senior Representatives of International Organizations on the ‘genuine link’), https://​undocs​ .org/​en/​A/​61/​160, last accessed 10 December 2019. 18 See also B.H. Oxman and V. Bantz, ‘The M/V ‘Saiga’ (No.2) (St. Vincent and the Grenadines v Guinea), Judgement (ITLOS Case No.2)’ (2000) 94 American Journal of International Law 149. 19 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, ICJ Reports 1960, 150. The Advisory Opinion laid the foundations in favour of an objective test of which states

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Tribunal on the Law of the Sea (ITLOS) in the context of UNCLOS.20 In fact, in its first decision on the merits of a case, ITLOS addressed the meaning of the genuine-link requirement in Article 91 of UNCLOS.21 Despite the comprehensive answer given by ITLOS, however, questions of its meaning in UNCLOS have continued to surface in subsequent cases, usually in connection with an application for prompt release under Article 292. This chapter analyses the approach of ITLOS to the interpretation of Article 91 of UNCLOS and related provisions on the genuine link. We will not address the details of the many procedural matters, such as standing to bring a case, the requirement for exhaustion of local remedies, the role of the flag state in relation to the private sector in asserting a breach on international obligations, the role of the flag state in protecting nationals in the case of a multinational crew on ships and the wider international law on diplomatic protection.22 However, for the purpose of analysis, the interaction between such issues and the genuine link cannot be ignored. The way in which the question of ship nationality and the genuine link has been presented in all these cases is important, as disputes have arisen mainly in a contest between a coastal state’s interests and a flag state’s right regarding exclusive jurisdiction over its ships on the high seas and other navigational rights in other zones, and indeed its international obligation to protect ships flying its flag as well as the seafarers on board.23

are to be considered flag states. Although this decision has not been referred to in later ‘genuine-link’ cases before ITLOS, it is an approach that seems to ITLOS’s decisions. 20 See P. Gautier, ‘ITLOS Experience in Dispute Resolution’, in International Ocean Institute – Canada (ed), The Future of Ocean Governance and Capacity Development: Essays in Honor of Elisabeth Mann Borgese (1918–2002) (Brill/Nijhoff 2018), 181. 21 M/V ‘SAIGA’ (No. 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10. The prompt release application was decided in M/V ‘SAIGA’ (Saint Vincent and the Grenadines v Guinea), Prompt Release, Judgment, ITLOS Reports 1997, 16. 22 B. Oxman, ‘Homage to Judge Tullio Treves’ (2007) Law of the Sea Institute, Occasional Paper #2 (Institute for Legal Research, University of California), 6, www​ .law​.berkeley​.edu/​files/​2​-oxman​-​-treves​_homage(3)​.pdf, last accessed 10 December 2019. On the interaction of the concept with the 1966 International Covenant on Civil and Political Rights, see ‘Arctic Sunrise’ (Kingdom of the Netherlands v Russian Federation), Order of 25 October 2013, ITLOS Reports 2013, 224. 23 On the balance between the interests of flag state and coastal state rights, see V. Lowe, ‘Advocating Judicial Activism: The ITLOS Opinions of Judge Ivan Shearer’ (2005) 24 Australian Year Book of International Law 145.

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195

THE CASE LAW

Several judgments from ITLOS have involved a dispute framed as a flag state claim against a coastal state under UNCLOS for the prompt release of a vessel (and the seafarers on board) that has been arrested for alleged violations of the coastal state’s law. These cases have continued to raise also the question of the ‘genuine link’ requirement in the context of challenges by a coastal state regarding the legitimacy of the flag state’s claim – its standing – to represent the ship and the seafarers, and to invoke the right to prompt release. ITLOS case law has focused on establishing certainty with respect to the term ‘genuine link’. However, the plethora of dissenting and differing judicial opinions may also have undercut the overall quest for certainty. In addition, jurisprudence to date illustrates how cases before ITLOS have raised problems related to coastal state behaviour, with the issue of a genuine link arising as objections to the jurisdiction of ITLOS. This section examines the jurisprudence of ITLOS regarding the interpretation of the term ‘genuine link’ in Article 91 of UNCLOS. The point of legal interest is the interpretive approach adopted by ITLOS. Has ITLOS adopted a purposive reading of UNCLOS? A plain meaning reading? An interpretation based on context and the drafting history? Or were there any other interpretive approaches? With the large number of dissenting and differing opinions, it is difficult to draw clear conclusions. The review of cases also indicates that the way in which the concept of the genuine link has been raised (often as a preliminary objection to the standing of a flag state in connection with an application for prompt release under Article 292 of UNCLOS) has affected the analysis; as has the question of competing interests between coastal states and flag states. The case law chosen for analysis here focuses on the following issues: (1) the possibility of non-recognition of a flag state by another state if the latter questions whether a genuine link exists between a flag state and a ship, and the extent and scope of international scrutiny of a flag state’s registry practices; (2) the right of a flag state to make a separate claim for damages to the state for actions taken against a ship under its flag; and (3) the role of the flag state in representing foreign seafarers working on board its ships, an issue that involves complex international law regarding diplomatic protection. The first two issues relate to the idea of an international legal order for the high seas, as codified in UNCLOS, whereby all states can exercise law of the sea freedoms through ships flying their flags. The third issue, which has now also been the subject of extensive analysis by the International Law

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Commission (ILC),24 concerns the role of the flag state in protecting seafarers on its ships and was advanced already in the M/V ‘Saiga’ (No 2) Case. Indeed, many of the cases that have come before ITLOS have touched on the role of the flag state and had this issue as a key question – either at the preliminary stage (with regard to prompt release under Article 292 of UNCLOS) or on the 24 Draft Articles on Diplomatic Protection with commentaries. Reprinted in 2006 Yearbook of the International Law Commission, vol. II, Part Two. See Article 18, which provides that the ‘right of the State of nationality of the members of the crew of a ship to exercise diplomatic protection is not affected by the right of the State of nationality of a ship to seek redress on behalf of such crew members, irrespective of their nationality, when they have been injured in connection with an injury to the vessel resulting from an internationally wrongful act’. The International Law Commission (ILC) Commentary on Article 18 notes, among other things, that: ‘[The purpose] of draft article 18 is to affirm the right of the State or States of nationality of a ship’s crew to exercise diplomatic protection on their behalf, while at the same time acknowledging that the State of nationality of the ship also has a right to seek redress on their behalf, irrespective of their nationality, when they have been injured in the course of an injury to a vessel resulting from an internationally wrongful act. It has become necessary to affirm the right of the State of nationality to exercise diplomatic protection on behalf of the members of a ship’s crew in order to preclude any suggestion that this right has been replaced by that of the State of nationality of the ship. At the same time it is necessary to recognize the right of the State of nationality of the ship to seek redress in respect of the members of the ship’s crew. Although this cannot be characterized as diplomatic protection in the absence of the bond of nationality between the flag State of a ship and the members of a ship’s crew, there is nevertheless a close resemblance between this type of protection and diplomatic protection…There are cogent policy reasons for allowing the flag State to seek redress for the ship’s crew. This was recognized by the Law of the Sea Tribunal in Saiga when it called attention to “the transient and multinational composition of ships’ crews” and stated that large ships “could have a crew comprising persons of several nationalities. If each person sustaining damage were obliged to look for protection from the State of which such a person is a national, undue hardship would ensue”…Support for the right of the flag State to seek redress for the ship’s crew is substantial and justified. It cannot, however, be categorized as diplomatic protection. Nor should it be seen as having replaced diplomatic protection. Both diplomatic protection by the State of nationality and the right of the flag State to seek redress for the crew should be recognized, without priority being accorded to either. Ships’ crews are often exposed to hardships emanating from the flag State, in the form of poor working conditions, or from third States, in the event of the ship being arrested. In these circumstances they should receive the maximum protection that international law can offer… The right of the flag State to seek redress for the ship’s crew is not limited to redress for injuries sustained during or in the course of an injury to the vessel but extends also to injuries sustained in connection with an injury to the vessel resulting from an internationally wrongful act, that is as a consequence of the injury to the vessel. Thus such a right would arise where members of the ship’s crew are illegally arrested and detained after the illegal arrest of the ship itself.’ See Report of the International Law Commission, Fifty-eight session (UN Doc. A/61/10), 91, 93 and 94, http://​legal​.un​.org/​ ilc/​documentation/​english/​reports/​a​_61​_10​.pdf, last accessed 10 December 2019.

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merits, having required that ITLOS elaborate on the meaning of the ‘genuine link’ requirement contained in Article 91. In addition to M/V ‘Saiga’ (No 2), this section will focus on ‘Grand Prince’,25 ‘Juno Trader’,26 M/V ‘Virginia G’27 and M/V ‘Norstar’.28 The fact pattern in all these cases involved a challenge to the jurisdiction of ITLOS based on an argument by the coastal state that the applicant flag state had no right to bring a claim on behalf of the ship because there was no ‘genuine link’ between the flag state and the ship. In M/V ‘Norstar’, the coastal state also began to challenge claims made by the flag state on behalf of seafarers, thus invoking wider international law on diplomatic protection and the question of whether the flag state can represent cargo claims. 2.1

M/V ‘Saiga’ (No 2)

M/V ‘Saiga’ (No 2) is without doubt the foundational case in terms of jurisprudence on the question of ship nationality and the genuine link requirement in Article 91 of UNCLOS.29 As that case sets out the first views of ITLOS on this and related issues in a case on the merits, the judgment and separate opinions are discussed in some detail. For the subsequent cases analysed in this chapter, M/V Saiga also provides the background for examining the extent to which ITLOS builds on its first interpretation and application of Article 91. The case initially came before ITLOS in 1997 as a ‘prompt release’ application by Saint Vincent and the Grenadines under Article 292 of UNCLOS. It was later initiated as a request for arbitration filed by Saint Vincent and the Grenadines under Annex VII of UNCLOS as an application for provisional measures under Article 290. In 1998, the parties agreed to transfer the arbitral proceedings to ITLOS for a decision on all matters. ITLOS was nearly unanimous, but eight judges issued separate opinions on various aspects, five of which expressed differing opinions relating to ship registration.30 Many interesting issues were dealt with in the case, but the focus 25 ‘Grand Prince’ (Belize v France), Prompt Release, Judgment, ITLOS Reports 2001, 17 26 ‘Juno Trader’ (Saint Vincent and the Grenadines v Guinea-Bissau), Prompt Release, Judgment, ITLOS Reports 2004, 17. 27 M/V ‘Virginia G’ (Panama/Guinea-Bissau), Judgment, ITLOS Reports 2014, 4. 28 M/V ‘Norstar’ (Panama v Italy), Preliminary Objections, Judgment, www​.itlos​ .org, last accessed 10 December 2019. 29 Judgment (n 21). Questions related to ship registration, genuine link and nationality of claims were addressed in paras 55–88 and 103–9. In detail on the case, see de La Fayette, ‘ITLOS and the Saga of the Saiga: Peaceful Settlement of a Law of the Sea Dispute’ (n 5). 30 Available on the ITLOS website (n 28).

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in this chapter is limited to ITLOS’s approach to ascertaining ship nationality and, in particular, the meaning of the requirements in Article 91 of UNCLOS. There were four grounds for Guinea’s objection to the admissibility of the claims. Three related to the standing of the Saint Vincent and the Grenadines as the flag state representing vessel and crew; the fourth related to exhaustion of local remedies.31 Although not directly connected to the issue of ship nationality, the latter also proved relevant in terms of the relationship between a flag state and ships flying its flag. First, a somewhat technical argument was made: that the vessel was not in fact registered in Saint Vincent and the Grenadines on the date of the arrest, as its six-month provisional registration certificate had lapsed and the permanent registration certificate was not issued until after the date of arrest.32 ITLOS found that, although the determination of the conditions for nationality are for the flag state, this is a matter that can be reviewed as a question of fact. ITLOS examined evidence relating to registration in particular. Here an important factor for ITLOS was the failure of Guinea to raise the objection earlier, and indeed its acceptance of the Saint Vincent and the Grenadines as the flag state.33 Second, a more substantive argument was advanced: that Guinea under UNCLOS was not obliged to recognize the Vincentian nationality of the M/V Saiga because, in its view: there was no genuine link between the Saiga and Saint Vincent and the Grenadines. Guinea contends that ‘[w]ithout a genuine link between Saint Vincent and the Grenadines and the M/V ‘Saiga’, [Saint Vincent and the Grenadines’] claim concerning a violation of its right of navigation and the status of the ship is not admissible before the Tribunal vis-à-vis Guinea, because Guinea is not bound to recognise the Vincentian nationality of the M/V ‘Saiga’, which forms a prerequisite for the mentioned claim in international law.34

Guinea buttressed this argument by asserting: a State cannot fulfil its obligations as a flag State under the Convention with regard to a ship unless it exercises prescriptive and enforcement jurisdiction over the owner or, as the case may be, the operator of the ship. Guinea contends that, in the absence of such jurisdiction, there is no genuine link between the ship and Saint Vincent and the Grenadines and that, accordingly, it is not obliged to recognize the claims of Saint Vincent and the Grenadines in relation to the ship.35 33 34 35 31 32

Article 295 of UNCLOS. Judgment (n 21) paras 55 and 58. Ibid paras 65–6, 72–4. Ibid para 75. Ibid para 76.

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Saint Vincent and the Grenadines responded: there is nothing in the Convention to support the contention that the existence of a genuine link between a ship and a State is a necessary precondition for the grant of nationality to the ship, or that the absence of such a genuine link deprives a flag State of the right to bring an international claim against another State in respect of illegal measures taken against the ship.36

After a lengthy discussion, ITLOS concluded: The…purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States.37

As this paragraph (and the related discussion) indicates, ITLOS described a functional, albeit somewhat circular, role for the ‘genuine link’ requirement; but still did not define it. Rather, it focused on the question of the right of a state other than the flag state to refuse to recognize the nationality of a ship because of an alleged lack of genuine link. In so doing, ITLOS considered both the wording of UNCLOS, its drafting history,38 purposive considerations, and the wider potential impact on the international legal order if a state could simply refuse to recognize the nationality of a ship and the claim of another state to represent the ship and crew on the basis of a lack of a ‘genuine link’. ITLOS also leaned towards a textual analysis which confined the remedy of jurisdictional control failures (perhaps arising from a lack of a genuine link)

Ibid para 77. Ibid para 83. 38 Notably, ITLOS recalled: ‘the ILC, in article 29 of its 1956 Draft Articles on the Law of the Sea, proposed the concept of a “genuine link” as a criterion not only for the attribution of nationality to a ship, but also for the recognition by other States of such nationality. After providing that “[s]hips have the nationality of the State whose flag they are entitled to fly”, the draft article continued: “Nevertheless, for purposes of recognition of the national character of the ship by other States, there must exist a genuine link between the State and the ship”. This sentence was not included in article 5, paragraph 1, of the Convention on the High Seas of 29 April 1958 (hereinafter “the 1958 Convention”), which reads, in part, as follows: “There must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag”. Thus, while the obligation regarding a genuine link was maintained in the 1958 Convention, the proposal that the existence of a genuine link should be a basis for the recognition of nationality was not adopted’ (ibid para 80). ITLOS also considered subsequent conventions and other legal instruments (including the UN Fish Stocks Agreement) but found that they did not address the issue (ibid paras 84–5). 36 37

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to that provided by UNCLOS itself: the state should report the problem to the flag state.39 On the third argument – the question of the standing of Saint Vincent and the Grenadines to make claims regarding injury to the interests of the crew and others – ITLOS made several observations, setting out an important conceptual approach: a ship is a ‘unit’ for purposes of these claims. As ITLOS pointed out, many nationalities are involved in international shipping. To expect each ship or interest to have to get its respective state of nationality to file a claim would not be a sensible solution. In term of its reasoning – aside from the pragmatic and policy-based rationale on this question – ITLOS adopted an interpretive result based on the wording of UNCLOS.40 The fourth argument, regarding the application of Article 295 of UNCLOS, clarified that a claim for damages made on behalf of a shipowner, master and crew and other private parties involved could also constitute the basis of an independent claim by the flag state for breach of international law vis à vis its rights under UNCLOS.41 The important point is the conclusion of ITLOS regarding the nature of the claim – in this case, a claim by the flag state for breach of its rights independently of the private interests and injuries involved.42 As noted by de La Fayette: Although the judgement is not explicit on this point, it would appear that, when injury to private persons relates to the rights of flag states under the law of the sea, the private injury is subsumed within the public, quite unlike private injuries to foreign nationals on land territory, where no direct independent international legal right of the ‘home state’ is involved.43

The five separate opinions that addressed the issue of registration agreed with the result regarding the admissibility of the claims, but all disagreed with the conclusion regarding the validity of the registration. Some of the opinions combined the question of registration and the ‘genuine link’ argument in Article 91. As Judge Anderson noted, there was the troubling issue of competence to question national decisions regarding registration and the role of ITLOS in examining this question.44 His opinion conflated the question of registration and Article 91, although he did not refer to the ‘genuine link’ as such. Judge Anderson concluded that the issue for ITLOS was basically ‘to consider Article 94 of UNCLOS. Judgment (n 21) paras 105–8. 41 Ibid paras 96–8. 42 Ibid para 91. 43 de La Fayette, ‘ITLOS and the Saga of the Saiga: Peaceful Settlement of a Law of the Sea Dispute’ (n 5) 374–75. 44 Separate opinion of Judge Anderson (n 30) 131–39. 39 40

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whether or not the interpretation advanced by St. Vincent was included within the range of the possible or permissible interpretations which may be placed on the wording of the legislation’.45 His opinion on the question of locus standi was also strongly influenced by the conduct of Guinea in raising this matter at such a late stage.46 President Mensah was more troubled by the registration-period gaps, but felt compelled to hear the case on the merits to ensure ‘justice’: he was concerned about the impact on the human rights of the seafarers, who had no role in administrative problems related to ship registration.47 A similar concern for justice and the operation of the international legal order was reflected in Judge Nelson’s opinion.48 Judge Rao – while also doubting the continuity of registration by Saint Vincent and the Grenadines – was strongly influenced by Guinea’s failure to raise the issue of standing in a timely manner.49 This was also the concern of Vice-President Wolfrum, who was the most outspoken on the issue of the impact of failures in registry practice and its relationship to the genuine-link requirement. In his view, this meant that the M/V Saiga was not a national of Saint Vincent and the Grenadines at the time of the arrest, as registration is the main way to establish a link between the state and the ship. He allowed the case on the merits because of Guinea’s behaviour – not as estoppel, but as an application of the doctrine of acquiescence to the behaviour of Guinea.50 On the question of ship nationality and whether a state can refuse to recognize a claim by another state to represent the ship and all on board as the flag state, it seems that deference was accorded both to the flag state’s registry practice and its claim to represent the ship and seafarers on board. With regard to the former, while ITLOS issued a warning about laxity in registration practices of shipowners and flag state administrations alike, it did not voice any real concern about the existence of open registries per se – perhaps because in recent decades, many traditional maritime states have also opened second or international registries to attract or keep ships under their flags. While ITLOS did not comment on this point, it is ironic that the current case involved an open-registry state assertively taking international responsibility for a ship under its flag and seeking to protect the seafarers on board that ship – contrary to the concerns usually raised about open registries and their failure to exercise jurisdiction over ships under their flags. ITLOS was clearly also concerned 47 48 49 50 45 46

Ibid 134. Ibid 135–36. Separate opinion of President Mensah (n 30) paras 19–21. Separate opinion of Judge Nelson (n 30) 121–22. Separate opinion of Judge Rao (n 30) paras 4–12. Separate opinion of Vice-President Wolfrum (n 30) paras 15–43.

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with the maintenance of the international legal order on the seas and human rights. From the perspective of treaty interpretation, ITLOS clearly took account of the drafting history of Article 91 – notably the CHS and the 1956 International Law Commission Draft Articles, the latter of which suggested the possibility of non-recognition of a ship’s nationality as a consequence of a perceived lack of a genuine link. Importantly, in interpreting UNCLOS’s provisions, ITLOS adopted a functional approach to the role of the genuine link while carefully refraining from specifying what such a link in fact constitutes. The separate opinion of Vice-President Wolfrum, however, could be read to suggest that registration is the link. The issue was framed more as whether another state can refuse to recognize the nationality of a ship. As such, the answer seems obvious: it would be inviting chaos and anarchy to find otherwise.51 However, ITLOS did comment that the question of nationality is a question of fact, which it could evaluate based on the evidence. Thus, if challenged, the details of registration, ship-board documentary and so on can provide guidance as to what courts and tribunals will examine in assessing a flag state’s claim regarding a ship’s nationality. As to the question of representation of seafarers, ITLOS did not look at the drafting history, but noted that UNCLOS contains no provision indicating that a distinction be drawn in the treatment of seafarers based on whether they are nationals of the flag state. This interpretation was buttressed by a more pragmatic policy point: it would not be helpful to seafarers if each potential state of nationality had to bring a claim for diplomatic protection of its nationals in order to obtain a remedy when a ship and a seafarer had been held in a foreign port.52 Under Article 292 of UNCLOS, the only state that can bring a claim for release is the flag state. 2.2

Grand Prince

Grand Prince involved an unsuccessful application to ITLOS for prompt release under Article 292 of UNCLOS initiated by an authorized representative on behalf of Belize as the flag state. The case is noteworthy for the procedural gaps it highlighted, including issues relating to the effect of ship registration expiry and the locus standi of the flag state relative to the timing of an application under Article 292. It also raised the difficult question of the nature of the ‘prompt release’ application relative to domestic judicial proceedings and

51 As also suggested by McDougal et al, ‘The Maintenance of Public Order at Sea and the Nationality of Ships’ (n 5). 52 See commentary by the ILC (n 24).

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penalties. ITLOS was split on the outcome, with several judges of the majority issuing declarations or separate opinions. The Grand Prince was caught fishing illegally in the EEZ of the Kerguelen Islands in the French Southern and Antarctic Territories in the last week of December 2000. It had a temporary form of registration under the flag of Belize: a ‘provisional patent of navigation’ which expired on 29 December 2000, with no indication of any attempts to prolong its registration in Belize (the vessel was in the process of being reflagged to Brazil, where it had a fishing licence). The facts of the case were unusual in two respects. First, although Belize was the flag state at the time of the arrest, it is unclear from conflicting communications between Belize and ITLOS as to whether Belize was the flag state in March 2001 – the date of the application by Belize for prompt release under Article 292.53 Second, the request for prompt release was not from the initial detention or related to a decision of 12 January 2001 by a French court of first instance on that matter, but from the decision of a criminal court in January, which had ruled to confiscate the vessel. This raised difficult issues for ITLOS, as Belize argued that the unusually rapid court proceedings and decisions of the French courts undermined Article 73 of UNCLOS. At the same time, France argued that ITLOS did not have jurisdiction under Article 292 to address this situation as a prompt release case. The problem of uncertainty as to whether the Grand Prince was in fact registered in Belize, combined with the rapid domestic court processes, could be viewed as unique and of little guidance to future cases. Nevertheless, the case has some instructive points because of the potential gaps it highlighted regarding the procedural impact of changes to a vessel’s flag following an incident and because of the approach adopted by ITLOS. Notably, ITLOS decided that although France had not challenged the locus standi of Belize, it was required to satisfy itself as to its jurisdiction and enquire proprio motu.54 After reviewing communications from various Belizean government agencies, ITLOS concluded: [in] the light of the expiration of the provisional patent of navigation or…in the light of the de-registration of the Grand Prince…and on the basis of an overall assessment of the material placed before it, the Tribunal concludes that the documentary evidence submitted by the Applicant fails to establish that Belize was the flag State of the vessel when the Application was made…In these circumstances, the Tribunal is not called upon to deal with the submissions of the parties on the remaining questions of jurisdiction, admissibility, and merits of the Application.55

Judgment (n 25) paras 67–76. Ibid paras 77–8. 55 Ibid paras 93–4. 53 54

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As noted, six of the majority judges also attached declarations or separate opinions. The declaration of Vice-President Nelson emphasized the communication from the Minister of Foreign Affairs as authoritative,56 while Judge Wolfrum highlighted (as in M/V ‘Saiga’) the importance of registration as key to the legal order and exercise of jurisdiction. He argued that extending registration in order to accommodate an application to ITLOS under Article 292: does not conform to the objective and purpose of registration…article 91, paragraph 1, third sentence, of the Convention states that there must be a genuine link between the flag State and the ship. This means the registration cannot be reduced to a mere fiction and serve just one purpose, namely to open the possibility to initiate proceedings under article 292…This would render registration devoid of substance – an empty shell. So far this Tribunal has never accepted that a vessel was registered under a particular flag solely on the ground that this State so claimed…Moreover, such an approach, were it to be accepted, would mean that the jurisdiction of the Tribunal would depend upon a decision of national officials, without the State concerned assuming the responsibilities of a flag State in substance. This would be incompatible with the role and function of the Tribunal and would erode the flag State system.57

Judge ad hoc Cot expressed a somewhat different concern. In his view, Belize was introducing a new issue in international law in its complaint concerning ‘prompt confiscation’. He was concerned that arguments such as that advanced by Belize were essentially an allegation of ‘fraud against the Convention’, which should not be taken lightly. However, he found nothing in the record of this case to justify it.58 The judges who issued separate opinions differed in their approaches. Judge Anderson emphasized additional factors that he felt gave rise to further uncertainties regarding whether Belize was the flag state.59 Judge Laing acknowledged that there could be many situations where various forms of documents might be issued for shorter periods to allow for registration, such as bareboat charters. In his view, however, the communications of Belize in March 2001 were communications only, and not certificates of registration. He was also worried about potential implications for enforcement under Article 73 of UNCLOS if ships could be quickly confiscated after an arrest, thereby allowing coastal states to pre-empt the Article 292 process.60

58 59 60 56 57

Declaration of Vice-President Nelson (n 30) 47. Declaration of Judge Wolfrum (n 30) paras 3–4. Declaration of Judge ad hoc Cot (n 30) paras 5–8. Separate opinion of Judge Anderson (n 30) 54–5. Separate opinion of Judge Laing (n 30) paras 8–13.

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Also important was Judge Treves’ separate opinion about the purpose of ship registration and the need for a real jurisdictional link. He noted: that the registration of the Grand Prince…was solely for the purpose of submitting an application under article 292. It was an artificial creation, a fiction…Neither the attitude of the shipowner nor…that of Belize…show that ‘registration’ was seen as entailing the normal consequences of registration, namely, the right to navigate under the flag of the registering State, and all the obligations concerning administrative, technical and social matters set out in article 94 of the convention…A ‘registration’ of such an artificial character…cannot be considered as ‘registration’ within the meaning of article 91 of the Convention. And it is only this kind of registration that makes a State a flag State for the purposes of article 292 of the Convention.61

The joint dissenting opinion of nine judges disagreed with ITLOS’s interpretation of the communications and documents and argued that, rather than relying on the documents, ITLOS should have exercised its powers to ask questions from the Belize administration to better understand the apparent discrepancy between statements from differing government departments. The dissent would have found jurisdiction as, in their view, Belize was the flag state at the time of application.62 Concerned with technicalities of locus standi, and possibly unique problems in documentation and idiosyncratic domestic legal proceedings, Grand Prince could be viewed as an outlier case of little precedential import. However, it again highlighted the question of registration as a central aspect of establishing nationality of ship and arguably as a link – if not the ‘genuine link’ – between a ship and a flag state. At the same time, several judges saw the need for ITLOS to clarify whether it is the date of wrongful act or the date of the Article 292 application, or both, that must exist in order to make an application under Article 292. An interesting question that was not discussed is also: where was the vessel in fact registered after 29 December 2000, if not in Belize? Presumably it had not yet moved to the Brazilian registry. Concluding that it was not on the Belize registry would seem to leave it stateless. On the other hand, the vessel had been confiscated by France in January 2001; so perhaps at the time of the refusal of the prompt release bond and the application under Article 292, it was in fact a French vessel. As discussed below in Juno Trader, this is certainly a central argument advanced in a later case by a coastal state.

Separate opinion of Judge Treves (n 30) 65. Joint dissenting opinion of Judges Caminos, Marotta Rangel, Yankov, Yamamoto, Akl, Vukas, Marsit, Eiriksson and Jesus (n 30) 66–71. 61 62

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2.3

Juno Trader

Juno Trader was a successful prompt release application by Saint Vincent and the Grenadines, on behalf of crew and vessel. ITLOS’s decision was unanimous, but several declarations and separate opinions highlighted points of interest in relation to the question of ship nationality and a ‘genuine link’. As in Grand Prince, questions of jurisdiction were raised following the assessment of locus standi. In Juno Trader, however, the next step – building on arguments in Grand Prince regarding which state was the flag state at the time of the Article 292 application – was taken with the confiscating coastal state, Guinea-Bissau. As a result of domestic proceedings, a notice was issued stating that ‘ownership of the ship JUNO TRADER reverted to the State of Guinea-Bissau with effect from 5 November 2004 for failure to pay the fine imposed by the decision of the Interministerial Fisheries Control Committee of 19 October 2004’.63 The Article 292 application was made by Saint Vincent and the Grenadines on 18 November 2004. However, Guinea-Bissau argued that it had been the state of ship nationality at the time. ITLOS concluded it had jurisdiction and that: by suspending the execution of the fine imposed on the vessel, the decision of the Regional Court of Bissau has therefore rendered inapplicable any sanction for non-payment, including its confiscation. In any case, whatever may be the effect of a definitive change in the ownership of a vessel upon its nationality the Tribunal considers that there is no legal basis in the particular circumstances of this case for holding that there has been a definitive change in the nationality of the Juno Trader.64

There were various other arguments, including whether Guinea-Bissau had also failed to comply with Article 73, paragraph 2 of UNCLOS regarding release of vessel and crew upon posting of a reasonable bond. ITLOS concluded that there had been a failure to comply with Article 73 and that, consequently, Guinea-Bissau must promptly release the Juno Trader, including its cargo and its crew.65 Apparently, the ITLOS majority opted for a solution that could allow the vessel cargo and crew to be released as soon as possible. The case highlights the problems of potential abuse of power by coastal states on the one hand and the concerns about countering illegal fishing on the other. In that regard,

Judgment (n 26) para 53. Ibid paras 62–3. 65 Ibid para 80. 63 64

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the declarations and separate opinions appear to be of more interest than the judgment itself, as they point to serious concerns about due process and abuse of process with respect to the behaviour of Guinea-Bissau that were not directly expressed in the judgment. Although these procedural aspects are not the subject of this chapter, some views that also touch on the question of the genuine link will be discussed. As to the question of the nationality of the vessel, Judges Mensah and Wolfrum issued a joint separate opinion with interesting comments on the argument put forward by Guinea-Bissau that, with the administrative confiscation of the vessel, it became the owner and, therefore, Saint Vincent and the Grenadines was no longer the flag state. They commented first on the process by which the change of ownership occurred, and second on the potential relevance of the alleged change of ownership, and concluded as follows: there is no legal basis for asserting that there is an automatic change of the flag of a ship as a consequence solely of a change in its ownership. In this context we consider it important to emphasize the special importance of the nationality of a vessel, particularly in regard to the implementation and enforcement of the rules of international law pertaining to the rights and responsibilities of States in respect of the ship. According to article 91 of the Convention, it is for each State to establish the conditions for the granting of its nationality to ships and for the registration of ships. The term ‘nationality’ when used in connection with ships, is merely shorthand for the jurisdictional connection between a ship and a State. The State of nationality of the ship is the flag State or the State whose flag the ship is entitled to fly; and the law of the flag State is the law that governs the ship. The jurisdictional connection between a State and a ship that is entitled to fly its flag results in a network of mutual rights and obligations, as indicated in part in article 94 of the Convention.66

Further: In view of the important functions of the flag State as referred to in article 94 of the Convention and also the pivotal role of the flag State in the initiation of the procedure for the prompt release of a ship under article 292 of the Convention, a procedure which may be compared to diplomatic protection of persons, it cannot easily be assumed that a change in ownership automatically leads to a change of the flag. The obligations and rights of the flag State in respect of the ship cannot be transferred automatically, particularly since the flag State has obligations and enjoys corresponding rights vis-à-vis other States. For this reason it is both necessary and appropriate that a change in flag should be in accordance with procedures established by the flag State for that purpose and it is also necessary that these procedures are consistent with the fundamental objectives of international law relating to the nationality of ships. In the present case, there is no evidence that the alleged loss of the flag of the Juno Trader had any basis in the law of the flag State or the relevant

Joint Separate Opinion of Judges Mensah and Wolfrum (n 30) para 9.

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provisions of the Convention…Equally, it is not tenable to argue that the Juno Trader has lost its flag in consequence of its alleged confiscation. Vessels without flags are the exception and, therefore, loss of flag of a ship cannot be assumed lightly.67

Also of interest is Judge Ndiaye’s separate opinion, which suggests a critique of the majority: If the Tribunal has found itself competent in this case it is simply on the basis of formal, even formalistic, criteria, making the subtle and slightly artificial distinction between title of ownership and flag. Transfer of ownership does not automatically lead to transfer of flag. There are formalities to be completed that clearly were not carried out at the time of submission of the document instituting proceedings. Thus, the Respondent did not show the Tribunal any measure that it has taken that would prove that it had decommissioned the Juno Trader, that it exercises its jurisdiction – in accordance with its domestic law – over the vessel, the captain, the officers and the crew for administrative, technical and social reasons. The Respondent has also failed to provide evidence of any measures taken to register the vessel in the ship registry of Guinea-Bissau or even of an offer of sale. The only formality carried out by the Respondent has been to notify the Applicant about the confiscation with the decision dated 3 December 2004. Clearly, with this type of solution there is great risk of ending up with a phantom flag. 68

Thus, the question of details of registration and technicalities as to who has locus standi surfaced as main legal issues also in Juno Trader. However, what does become clear is that, according to ITLOS, simply confiscating a vessel does not change its nationality in terms of an Article 292 application. In this respect, ITLOS followed established practice and jurisprudence: change of ownership does not in itself change the flag state of the vessel or ship – only a change in registration can do that. 2.4

M/V ‘Virginia G’

Unlike the previous cases, M/V ‘Virginia G’ was initiated not as a prompt release application under Article 292, but through an application from Panama, as the flag state, for arbitration under UNCLOS against Guinea-Bissau. The case extended over nearly five years, from 2009–14, and was transferred from arbitration to ITLOS in 2011. Due to procedural delays, the judgment was not issued until 14 April 2014. The facts of the case were largely similar to those of Juno Trader. The M/V Virginia G was arrested in August 2009 in Guinea-Bissau’s EEZ for Ibid paras 10–11. Separate Opinion of Judge Ndiaye, ibid paras 28–30.

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alleged unlicensed fishing activity: to wit, delivering fuel to fishing vessels (ie, ‘bunkering’). The vessel and the fuel oil on board were confiscated. There were numerous confusing actions and communications, with Guinea-Bissau court decisions that seemed to overrule government orders regarding the vessel and sale of the fuel oil, which in turn then seemed to overrule the court orders. Ultimately, the vessel was released by decision of the authorities of Guinea-Bissau on 6 October 2010. Some crew had remained with the vessel since its arrest in August 2009. The case highlights the problems of ‘overenthusiastic’ enforcement by coastal states through domestic administrative actions that appeared abusive, and with ship and crew essentially being held hostage, even in the face of domestic court decisions in their favour. Panama thus claimed numerous UNCLOS violations against the ship and crew, and violations against Panama as the flag state, and sought compensation for harms suffered by all. Despite agreeing to submit the case to ITLOS, Guinea-Bissau argued that ITLOS had no jurisdiction to hear the case for various reasons, including the alleged lack of a genuine link between the ship and Panama, and the fact that the crew were not nationals of or domiciled in Panama.69 Guinea-Bissau thus raised arguments on admissibility that ITLOS had addressed already in M/V ‘Saiga’ and later cases. ITLOS reaffirmed its earlier analysis and views; but unlike in the predecessor cases, no problems regarding the details of flag state registry practice needed to be considered. However, the case is interesting in terms of ITLOS’s analysis of the genuine link and ship nationality, as Guinea-Bissau had argued that a flag state can implement its legal obligations, including in environmental matters, only if it exercises effective jurisdiction and control over the shipowner or operator; and further, that ‘a basic condition for the registration of a ship is that also the owner or operator of the ship is under the jurisdiction of the flag State’.70 ITLOS emphatically affirmed its interpretations in M/V ‘Saiga’ (No 2), but this time in a bareboat charter case where the flag state had clearly used recognized organizations. Thus, ITLOS ruled in favour of the admissibility of Panama’s claims, reiterating its opinion in M/V ‘Saiga’ and other cases on the issue of the genuine link. This time, however, it went further, acknowledging – with no disagreement – Panama’s use of recognized organizations to carry

Judgment (n 27) paras 102–3. Ibid para 103.

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out inspection functions and so on; and also, importantly, appearing to clearly state the meaning of the genuine link. Referring to M/V ‘Saiga’, ITLOS held: article 91, paragraph 1, third sentence, of the Convention requiring a genuine link between the flag State and the ship should not be read as establishing prerequisites or conditions to be satisfied for the exercise of the right of the flag State to grant its nationality to ships…the purpose of the provisions of the Convention on the need for a genuine link between a ship and its flag State is to secure more effective implementation of the duties of the flag State, and not to establish criteria by reference to which the validity of the registration of ships in a flag State may be challenged by other States…In the view of the Tribunal, once a ship is registered, the flag State is required, under article 94 of the Convention, to exercise effective jurisdiction and control over that ship in order to ensure that it operates in accordance with generally accepted international regulations, procedures and practices. This is the meaning of ‘genuine link’.71

ITLOS then noted that, on the basis of information available to it, there was no reason to question that Panama had exercised effective jurisdiction and control over the vessel at the time of the incident.72 Accordingly, ITLOS concluded that there was a genuine link between Panama and the M/V Virginia G at the time of the incident, and thus no breach of Article 91 of UNCLOS.73 Guinea-Bissau also argued on the question of the nationality of the crew. ITLOS again distinguished between the situation of diplomatic protection of nationals and its view in M/V ‘Saiga’ that the ship as a unit was ‘entitled to bring claims in respect of alleged violations of its rights under the Convention which resulted in damages to these persons or entities’.74 On the question of the application of Article 295 of UNCLOS, ITLOS essentially agreed with Panama’s view, which also followed the analysis in M/V ‘Saiga’.75 Although there were various declarations and separate opinions and dissents, ITLOS was unanimous on the admissibility issues relating to the genuine link and to nationality. However, the dissenting opinion of Judge Ndiaye is notable for its expression of significant concerns about difficulties facing countries in the region in addressing the depletion of fish stocks because of illegal, unreported and

73 74 75 71 72

Ibid paras 110, 112–14. Ibid paras 114–17. Ibid para 407. Ibid paras 127–28. Ibid paras 153–60.

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unregulated fishing.76 Although he did not dissent on this point, he commented critically on the majority’s view on the genuine link: The Tribunal has once again missed an opportunity to give a decision embodying a response to this fundamental question which has needed answering since 1955. It could have established the legal status of the concept of genuine link. It has again shied away from examining the potential relevance of the constituent elements of the genuine link, just as it did in the M/V ‘SAIGA’ (No. 2) Case.77

Judge Jesus, in his dissenting opinion, also seemed to suggest that ITLOS could have gone further in considering the question on the genuine link.78 However, he was also of the view that Guinea-Bissau should not have been allowed to raise the lack of genuine link or Panama’s locus standi: I believe that Guinea-Bissau should have been precluded from raising the objection to the admissibility of the claims presented by Panama on the ground of absence of a genuine link between Panama and the M/V Virginia G, as Guinea-Bissau, stated that the M/V Virginia G, while under the Panamanian flag, had been authorized on a number of occasions to bunker fishing vessels in Guinea-Bissau’s EEZ…these authorizations issued by the competent authorities of Guinea-Bissau are an implicit recognition and acceptance of Panama as the legitimate flag State of the ship.79

The question of exhaustion of local remedies troubled several of the other judges who issued declarations and separate opinions. Notably, Judges Cot and Kelly had concerns that the majority conclusion was ‘wobbly’ on some aspects, as the ship had been arrested in territorial waters. They argued that ITLOS soon should seize the opportunity to re-examine the question of whether mixed claims (eg, cargo interests) should be subsumed under flag state claims; and in particular, how mixed claims related to international law on diplomatic protection. However, as they considered that there were probably no effective legal remedies available in Guinea-Bissau in any event, they agreed with the majority conclusion that the rule did not apply and that Panama was not obliged to exhaust local remedies before submitting the dispute to ITLOS.80 On the question of admissibility of the claims because of the nationality of the shipowner, master and crew, Judge ad hoc Sérvulo Correia – while agreeing with ITLOS on the question of the ‘ship as a unit’ and protection of

78 79 80 76 77

Dissenting Opinion of Judge Ndiaye (n 30) paras 3–18. Ibid para 100. Dissenting Opinion of Judge Jesus (n 30) paras 49–50. Ibid para 56. Joint Separate Opinion of Judges Cot and Kelly (n 30) paras 8 and 21–9.

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the ship and crew members – did not agree that this should extend to cargo interests as well.81 M/V ‘Virginia G’ indicates that, unless there are obvious problems with ship registration, issues regarding ship nationality appear to be less about the genuine link per se, and more about questions of state responsibility and protection of seafarer and cargo interests. 2.5

M/V ‘Norstar’

One of the more recent cases before ITLOS – M/V ‘Norstar’ – also, to some extent, raised questions of ship nationality. Briefly, the case related to an oil tanker engaged in bunkering activity. It was registered in Panama and owned by Norwegian interests. The M/V Norstar bunkered mega-yachts in various areas of the Mediterranean considered high seas and was charged under Italian law in 1998 for tax fraud and smuggling mineral oils. Despite its initiation in 2015, the case resulted in a final judgment only in April 2019, although the facts of the case stretched over more than a decade and involved many procedural complexities.82 The final judgment and the dissenting opinion by seven judges focused on jurisdictional questions relating to the exercise of criminal jurisdiction regarding bunkering in the high seas, the facts of the case and the application of Italian customs laws. The question of ship nationality arose incidentally at the preliminary stage, when Italy objected, among other things, to the admissibility of Panama’s claim because of the nationality of the crew and also regarding the application of Article 295 of UNCLOS. ITLOS followed its prior case law and concluded in favour of admissibility on all counts: The Tribunal recalls its finding in the M/V ‘SAIGA’ (No. 2) Case [and] the M/V ‘Virginia G’ Case, that, under the Convention, a ship is to be considered a unit ‘as regards the obligations of the flag State with respect to the ship and the right of a flag State to seek reparation for loss or damage caused to the ship by acts of other States’, that ‘[t]hus the ship, everything on it, and every person involved or interested in its operations are treated as an entity linked to the flag State’ and that ‘[t]he nationalities of these persons are not relevant’…The Tribunal finds that the M/V ‘Norstar’, flying the flag of Panama, is to be considered a unit and therefore the M/V ‘Norstar’, its crew and cargo on board as well as its owner and every person involved or interested in its operations are to be treated as an entity linked to the flag State, irrespective of their nationalities.83

Dissenting Opinion of Judge ad hoc Sérvulo Correia (n 30) paras 6–7. M/V ‘Norstar’ (Panama v Italy), www​.itlos​.org/​en/​cases/​list​-of​-cases/​case​-no​ -25/​, last accessed 10 December 2019. 83 Judgment (n 28) paras 230–31. 81 82

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Regarding Article 295, ITLOS concluded that it would follow its prior case law regarding whether the cargo interests were assimilated to state injuries. Thus, a claim for damage to persons and entities with an interest in the ship or its cargo arose from the alleged injury to Panama and claims in respect of such damage were not subject to the rule of exhaustion of local remedies. Accordingly, ITLOS did not consider it necessary to address the arguments of the parties on the question of a jurisdictional connection.84 Although there were dissents and separate opinions at the preliminary stage, the majority remained consistent with its interpretive approach in M/V ‘Saiga’ and M/V ‘Virginia G’ on the question of the admissibility of ship and crew nationality and cargo claims. ITLOS therefore adopted an approach that allows for claims to be made by flag states on a wide range of issues. In the final stages, these issues did not arise and ITLOS followed earlier case law in awarding Panama reparations for breaches of its rights under Article 87 of UNCLOS.85

3. CONCLUSIONS As the saying goes, ‘much ink has been spilled’, to little real effect. This could be said also about ITLOS jurisprudence concerning the genuine link requirement in Article 91 of UNCLOS. In M/V ‘Saiga’ (No 2) in 1999, ITLOS adopted an approach which followed – although it was not explicitly attributed to – the ICJ decision in 1960,86 which it has largely adopted over the last two decades. In line with Article 32 of the Vienna Convention on the Law of Treaties,87 ITLOS’s interpretation of Article 91 in 1999 took account of the drafting history and related provisions – particularly the provisions of the CHS and also the ILC proposals for a text that was not ultimately included in the CHS. Importantly, in considering the UNCLOS provisions, ITLOS seems to have adopted a functional, or purposive, approach to treaty interpretation, focusing on the fundamental role of the ‘genuine link’ requirement. With the exception of Judge Wolfrum in M/V ‘Saiga’ (No 2) and Grand Prince, rather than specifying elements of what constitutes a ‘genuine link’, the issue has been framed more as whether a state may unilaterally refuse to recognize the nationality of a ship operating under the flag of another state. Primarily, ITLOS has focused on assuring ‘justice’ for seafarers and ship interests, and avoiding the interna-

86 87 84 85

Ibid paras 268–72. Judgment (n 83) para 469. See Advisory Opinion (n 19). Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331.

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tional legal disorder that would arise from unilateral non-recognition of flag states – particularly in cases involving overenthusiastic enforcement actions by coastal states. Nevertheless, registration practice has been a key issue because, in the view of ITLOS, registration constitutes both a formal link and proof of connection between the ship and the flag state. Flag state practice as to the conditions under which a ship will be registered have not been reviewed; but whether the ship was in fact registered at the time of an incident and at the time of an application for hearing before ITLOS has been evaluated by the Tribunal. Issues such as bareboat charters, use of recognized organizations and the question of the nationality of the shipowner or crew have not impacted on ITLOS’s conclusions. Thus, ITLOS’s interpretation may be seen as focused on establishing certainty. The many dissenting and separate opinions have mainly concerned either disagreement with the facts of registration or disagreement on procedural questions – in particular, the application of Article 295 of UNCLOS. However, there has been no disagreement on the core approach to the interpretation of Article 91; and there is nothing to indicate that ITLOS would enter into a discussion of whether a flag state is really a flag state simply because it may be a more open registry state. As noted in relation to MV ‘Saiga’ (No 2), it would indeed be ironic if ITLOS did so, as in all cases, the flag state has actually intended to take international responsibility in addressing the fate of a ship under its flag. In other words, the flag states have in question exhibited the very behaviour that flag states are often accused of lacking. Therefore, underlying ITLOS’s approach seem to be considerations of humanitarian perspectives, as well as rules and principles in UNCLOS and international maritime law (eg, as reflected through International Maritime Organization conventions) that it is primarily the flag state which is to be responsible for the administration of matters regarding ship and crew. Indeed, if the flag state is not expected to take action on behalf of the ship and the seafarers, then who is? This analysis of ITLOS jurisprudence over two decades has also highlighted how problems have been raised relating to coastal state behaviour, which in several cases has been questionable at the very least. The ways in which the issue of ship nationality and a genuine link has been raised – usually as an objection to the locus standi of the flag state in connection with an application for prompt release – could have skewed the results of an analysis by any tribunal. The analysis has also been affected by the underlying question of the competing interests between coastal state and flag state, with no other claimant interested parties, such as the state of nationality of the shipowner. Similar to cases before domestic tribunals, the way in which facts arise and policy issues are presented and framed for a tribunal is central to the ensuing opinions and decisions.

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Later ITLOS cases have raised the question of the interaction of UNCLOS (which gives exclusive jurisdiction88 to the flag state for matters onboard its ships, including representing seafarers) with the international law on diplomatic protection (which concerns the right and responsibility of a state to represent its nationals internationally). In that regard, it is the mix of private and state interests, as well as the application of Article 295 of UNCLOS, that has been the focus of legal controversy, more so than the question of nationality per se. It appears that ITLOS’s approach to interpreting Article 91 of UNCLOS is not likely to be revised soon: through various cases, ITLOS seems to have established an authoritative pattern for handling similar cases in the future. Its purposive approach seems suited for dealing with the problems of potential ‘disruption, controversy and anarchy’, as foreseen by McDougal, Burke and Vlasic, when the concept of the ‘genuine link’ was introduced in the CHS. This approach also serves to clarify important aspects related to accountability for registry practices, as well as providing a forum for evaluating flag state failures to carry out international regulatory responsibilities. However, while ITLOS’s established approach to interpretation may not change much, the topic of ship nationality and genuine link is certain to be revisited in future cases. Here it may be noted that arguments are evolving in connection with breaches of flag state rights, and there are persistent challenges involved in applying Article 91 of UNCLOS to particular facts of registration, the timing of the Article 292 application and action by states other than a flag or coastal state to protect the interests of a national.

88 Although, as explained by Tuerk, ‘the question of release may be submitted not only by the flag state, but also on its behalf…This permits states either once and for all, or on a case-by-case basis, to entrust the interested ship-owners, or for instance, associations of such ship-owners with the power to act on their behalf. In this way, in practice even though not in principle, private parties may be allowed to further their interests directly before ITLOS. In such a case, the flag state nevertheless remains party to the proceedings…The possibility for private parties, if properly authorized by the flag state, to appear before ITLOS, is certainly a significant innovation provided by UNCLOS, if not the most important novel feature of its entire dispute settlement mechanism.’ See H. Tuerk, ‘The Work of the International Tribunal for the Law of the Sea’ in A. Chircop et al (eds), Ocean Yearbook 20 (Martinus Nijhoff 2012) 181–203, 199.

9. Hot pursuit Knut E. Skodvin 1. INTRODUCTION The right of hot pursuit adds effect to the jurisdiction of the coastal state by expanding its enforcement jurisdiction, with several preconditions.1 The need for this right stems from the fact that the international law of the sea divides the oceanic space into different zones, within which the balance of the rights and freedoms of the coastal state and other states shifts markedly. Had the zones been absolute, the coastal state, where afforded enforcement jurisdiction, would see this end abruptly at the outer limit of the relevant zone(s).2 From the perspective of the coastal state, this would be unfortunate. In particular, the outer areas of a zone could easily be exploited, as vessels could simply escape upon seeing government vessels approaching.3 While it would not be unusual in international law if the coastal state then simply had to refer the matter to the flag state, in some situations this remedy would seem insufficient. For flag states, the picture is quite different. Where a vessel passes out of an area in which it could be subject to enforcement by the coastal state and

1 The expansion may be geographically quite extensive and the enforcement operations quite complex, as illustrated by the Viarsa and South Tomi cases: see E.J. Molenaar, ‘Multilateral hot pursuit and illegal fishing in the Southern Ocean. The pursuit of the Viarsa 1 and the South Tomi’ (2001) 19 The International Journal of Marine and Coastal Law 19. 2 A coastal state’s legislative and enforcement jurisdiction do not overlap in many cases. For instance, it ensues from Article 220 of UNCLOS that the coastal state’s enforcement jurisdiction with regard to its EEZ is far more limited than its legislative jurisdiction for the same zone. 3 A similar point was made by Judge ad hoc Shearer in his dissenting opinion in ‘Volga’ (Russian Federation v Australia), Prompt Release, ITLOS Reports 2004, 10, concerning the reasonable bond under the prompt release procedure in Article 292 of UNCLOS. Australia argued, among other things, for the need for substantial fines, because of the remoteness and difficulties in combating illegal, unreported and unregulated fisheries in the EEZ surrounding the distant Heard Island and McDonald Islands.

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becomes subject to exclusive flag state jurisdiction – at least insofar as concerns this specific basis for jurisdiction. The right of hot pursuit attempts to balance these positions, setting out the conditions for extended enforcement jurisdiction. As such, the right of hot pursuit is interesting not only in itself, but also because it must balance the powers vested in the coastal state in zones from the continental shelf and exclusive economic zone (EEZ) inwards, and the positions reserved for other states from the territorial sea outwards. In line with the overall research subject of this book, this chapter aims to analyse how and to what extent international courts and tribunals have contributed to the development and clarification of the rules on hot pursuit as set out in the United Nations Convention on the Law of the Sea (UNCLOS). In focusing on the leeway and scope of such courts and tribunals, however, we should also recall the history of UNCLOS4 − not least because the regulation of hot pursuit in UNCLOS represents the continuation of a line of development encompassing several cases. For these reasons, this chapter takes as its point of departure two cases that preceded UNCLOS: the case concerning the sinking of the I’m Alone and the case concerning the aftermath of the failed attempt at arresting the Red Crusader. Both touch upon the right of hot pursuit and are helpful in understanding the regulations in later conventions. Both are also important as examples of other cases to which a later tribunal could refer. Section 3 offers an introduction to the regulation of ‘hot pursuit’ in UNCLOS; while Sections 4 and following are devoted to the Saiga and Arctic Sunrise cases.

2.

THE RIGHT OF HOT PURSUIT

Like most legal concepts, the right of hot pursuit has its roots in various pre-existing legal concepts applicable in other areas.5 For the international law of the sea, codification attempts may be traced back as far as the Institut de Droit International in 1894 and the International Law Association in 1894.6 In different shadings, this right had already been applied in national legislation

4 The need for a historical approach to the international law of the sea has frequently been pointed out: see, for example, D.P. O’Connell, The International Law of the Sea, vol I (Clarendon Press 1982) 37. 5 See N.M. Poulantzas, The Right of Hot Pursuit in International Law (Martinus Nijfhoff 2002) 4 et seq. For somewhat different emphasis, see O’Connell, The International Law of the Sea (n 4) 1076 et seq. 6 Ibid 1078.

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and different treaties for some time – with perhaps the British Hoovering Acts being of special influential importance in this regard.7 The right of hot pursuit is thus not the result of careful deliberation at diplomatic conferences. Rather, as with many legal concepts, it grew out of a perceived need. It originated from the meeting of narrow territorial seas, with technological developments allowing for seafaring over greater distances and at greater speed. Seeking to protect their coasts, for whatever reasons, states turned to pre-existing ideas, applying them in new ways. In earlier times, the territorial sea could largely be guarded without the need to extend the coastal state’s competence to enforce its legislation. However, with the addition of further zones offering different competences for the coastal state, and with technological developments making the oceanic space more accessible and exploitable by humankind, the need for such expansion increased. 2.1 The I’m Alone Case The I’m Alone case arose from the US prohibition on the production, transportation, import and sale of alcoholic beverages (1920–33). Under a 1924 treaty between the United States and Great Britain, the United States was allowed to inspect British vessels outside US territorial waters, to ensure that they were not carrying alcoholic beverages to be imported illegally.8 The SS I’m Alone was a vessel under the Canadian flag and was thus covered by the treaty. It was found to have been involved in rum running to the United States for several years before meeting its destiny in March 1929, en route from Belize carrying a cargo of rum. The cargo was to be taken to a point in the Gulf of Mexico and then transferred onto smaller vessels and smuggled into the United States. At one point, the I’m Alone drew the attention of the US revenue cutter Wolcott; as the I’m Alone refused to submit to a search, chase was given. The chase was later joined by the US revenue cutter Dexter. On 22 May 1929 this latter vessel opened fire on the I’m Alone, which sank in international waters in the Gulf of Mexico.9

7 See Poulantzas, The Right of Hot Pursuit in International Law (n 5) 94 et seq (and for the Hoovering Acts, ibid 103 et seq). 8 Convention between the United States of America and Great Britain to Aid in the Prevention of the Smuggling of Intoxication Liquors into the United States, Article II. Reprinted in SS ‘I’m Alone’ (Canada v United States), RIAA III (1933 and 1935), 1609–18, at 1611. 9 Joint Interim Report by the Commissioners, 30 June 1933, and Joint Final Report, 5 January 1935. Both reprinted in SS ‘I’m Alone’, ibid 1615 (interim report) and 1617 (final report).

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Objections were made as to the legality of the sinking of the I’m Alone and, in accordance with the treaty between the United States and Great Britain, a two-person commission was set up. The commissioners were to address several questions, including: whether the Government of the United States under the Convention has the right of hot pursuit where the offending vessel is within an hour’s sailing distance of the shore at the commencement of the pursuit and beyond that distance at its termination.

The question itself was not answered in the interim report of the commissioners, as they failed to agree. In their final report, the commissioners found the intentional sinking of the I’m Alone unlawful on other grounds and no statement on ‘hot pursuit’ was needed. The existence of such a right might have had meaning for the extent of the transgression; but seemingly, in the commissioners’ opinion, it did not affect the outcome of the case.10 2.2 The Red Crusader Case The Red Crusader case emerged after the Danish authorities arrested British trawler Red Crusader in May 1961. The vessel was one of four that was suspected of being engaged in fisheries near the Faroe Islands on the night of 29 May 1961. According to an agreement between the two states, this was forbidden within the ‘blue line’. The Red Crusader was for a short time pursued by the Danish Niels Ebbesen, before accepting arrest. It proceeded to set course for Torshavn, Faroe Islands, with two Danish servicemen onboard.11 However, skipper Wood of the Red Crusader changed his mind and set course for a British port. The crewmembers of the Niels Ebbesen were escorted off the bridge and kept under guard elsewhere.12 Thereafter, and within Danish territorial waters, both warning shots and directed shots were fired from the Niels Ebbesen towards the Red Crusader. The British vessel HMS Troubridge intervened in the chase and later ensured the return of the Danish personnel.

10 The right of hot pursuit was the second question for the commissioners. See the Joint Interim Report by the Commissioners, ibid. The questions are referred to by the same numbering in the Joint Final Report, ibid. However, although the commissioners had invited the parties to submit evidence on the matter, this final report has no comment on or reference to the second question. 11 Investigation of certain incidents affecting the British trawler Red Crusader, Report of 23 March 1962 of the Commission of Enquiry established by the Government of United Kingdom and Northern Ireland and the Government of the Kingdom of Denmark on 15 November 1961, RIAA XXIX (1962), 521–39, at 526 et seq. 12 Ibid 536.

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The two states agreed to establish a commission of inquiry to establish what had happened and the legality of the measures taken by the Danish authorities. The commission did not address ‘hot pursuit’ in those terms. However, it thoroughly discussed the position of the vessels prior to instigation of the first chase undertaken to put the Red Crusader under arrest and thereafter the movements of the vessels up to the arrest. The commission concluded that the Red Crusader had indeed been inside the blue line, with its fisheries gear not stowed, from 21:00 until 21:14; and further, that the Niels Ebbesen had given the Red Crusader appropriate signals to stop – but not before 21:39, by which time the vessel was outside the blue line.13 The commission’s decision was focused on the facts, with little space devoted to developing the law. Hence, the commission’s reason for ascertaining the location of the Red Crusader with regard to the blue line when the first signal to stop was given was not explained. The key points in its decision are rather that the Niels Ebbesen fired upon the Red Crusader without giving proper warning of solid gunshots, creating a danger to human life onboard the Red Crusader without proven necessity.14 However, the Convention on the High Seas, although not in force at the time, was being negotiated. ‘Hot pursuit’ was regulated in Article 23 therein, which the International Law Commission (ILC) held not to be contested under international law. While there may have been some doubt about certain details, the requirement that signals be given while a vessel to be pursued is still within an area where the coastal state has enforcement jurisdiction does not seem to have been among these.15 As such, the legal points may have seemed too obvious to require comment. However, it is unclear what effect, if any, the commission saw it as having for the remainder of the actions taken that proper signalling of commencement of pursuit was given only after the vessel had left the area of coastal state jurisdiction.

3.

THE LAW OF THE SEA CONVENTION

In UNCLOS, hot pursuit is dealt with in Article 111, in Part VII on the high seas. With expansions for the continental shelf and EEZ, the provision builds on and continues Article 23 of the Convention on the High Seas.16 Ibid 527–34. See especially Conclusions 2 and 3 at 534. Ibid 538. 15 See Yearbook of the International Law Commission, 1956, Vol II – Documents of the eighth session including the report of the Commission to the General Assembly (United Nations 1957) 285. 16 See E.D. Brown, The International Law of the Sea, Vol. I (Dartmouth Publishing 1994) 298. 13 14

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According to Article 111(1), the provision applies to pursuits originating from internal waters, archipelagic waters, the territorial sea or the contiguous zone. Paragraph 2 extends the right, mutatis mutandis, to the EEZ and the continental shelf, including safety zones found in the latter. The provision is also incorporated into Part V on the EEZ through Article 58(2), stating that Articles 88 to 115 apply in the zone, ‘in so far as they are not incompatible with this Part’. Briefly put, Article 111 establishes several conditions for hot pursuit: (1) it may begin only if there is ‘good reason to believe’ that the vessel in question has violated laws and regulations applicable to the zone in question; (2) it must begin while the vessel in question – either itself or one of its boats or another craft for which it works as a mother vessel – is in one of the relevant zones; (3) it may begin only after a signal has been given to the vessel in question while the conditions mentioned in (2) are met; (4) it must be not be interrupted; (5) it must be undertaken by a vessel or aircraft clearly marked and identifiable as being in government service and authorized to conduct pursuit; and (6) it must end when the pursued vessel enters the territorial sea of its flag state or a third state. While the wording is extensive, nearly all of these conditions are open to interpretation. The text is far from clear on matters such as what constitutes sufficient reason; what is required for two or more vessels to be seen as in sufficient cooperation; and what is required for a pursuit to be interrupted. As we shall see, questions can also be raised regarding sufficient marking and what should be accepted as signals, as well as the strictness of the location requirement.

4. THE M/V SAIGA (NO 2) CASE The M/V Saiga, flagged with St Vincent and the Grenadines, was an oil tanker which provided marine gasoil to other vessels off the coast of West Africa. As part of its business, it also refuelled fishing vessels. On 28 October 1997, the Saiga was drifting at a point south of the southern limit of Guinea’s EEZ, awaiting contact with a fishing vessel. At around 9:00am, the Saiga was ‘attacked’ by a Guinean patrol boat and was subsequently boarded and arrested. The Saiga was then brought to port in Conakry in Guinea.17 Among the questions before the International Tribunal for the Law of the Sea (ITLOS) was whether the Saiga had been arrested in accordance with Article 111 of UNCLOS. ITLOS dealt with this point rather swiftly. As its

17 M/V Saiga (No 2) (Saint Vincent and the Grenadines v Guinea), Judgment, ITLOS Reports 1999, 10 (paras 31–3).

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point of departure, ITLOS noted that the conditions given for hot pursuit in Article 111 are cumulative.18 From this, ITLOS went on to mention several conditions under Article 111 that, in its view, were not met. There were several possible times at which ‘pursuit’ might be said to have begun. The first was 26 October, when a patrol vessel had been sent in search of the Saiga. However, this patrol vessel had been recalled – which represented a ‘clear interruption of any pursuit’.19 Alternatively, pursuit might have begun on 27 October. But at the time the order for pursuit was given, no more than a suspicion could be held against the Saiga. Furthermore, no auditory or visual signal could have been given to the Saiga at this point; and this pursuit was also interrupted.20 A third option was to view the pursuit as beginning on 28 October. However, ITLOS could not find that the required visual or auditory signals had been given within visual and hearing range of the Saiga and therefore not at the commencement of pursuit.21 Thus, when the Saiga was stopped and arrested, this could not be said to have occurred in circumstances that justified the exercise of hot pursuit.22 All in all, then, this case may have been too straightforward to offer much opportunity to develop the law.

5. THE ARCTIC SUNRISE CASE 5.1 Facts This case arose between the Kingdom of the Netherlands and the Russian Federation after the arrest of Dutch-flagged vessel the Arctic Sunrise because of its participation in a Greenpeace protest in the Barents Sea. This was no straightforward case. Indeed, it gave rise to four decisions from international tribunals: a decision on provisional measures from ITLOS, and three decisions (on jurisdiction, merits and damages) from an arbitral tribunal convened under Annex VII of UNCLOS. At an early stage, the Russian Federation announced that it did not accept the procedures provided for in Section 2, Part XV of UNCLOS and consequently would not participate in the proceedings.23 Both ITLOS and the Permanent Court of Arbitration (PCA)

Ibid para 146. Ibid para 147. 20 Ibid. 21 Ibid para 148. 22 Ibid para 150. 23 See Arctic Sunrise (Kingdom of the Netherlands v Russian Federation), Provisional Measures, Order of 22 November 2013, ITLOS Reports 2013, 230 (paras 41 et seq) (hereafter Arctic Sunrise); In the Matter of the Arctic Sunrise Arbitration 18 19

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arbitral tribunal acknowledged the disadvantage that this entailed, as they could hear arguments on both law and facts from one side only.24 And while the tribunals could ask questions and attempt to imagine the views of the Russian Federation, that could hardly replace the advantages of a discourse between the parties. This is especially undesirable in cases concerning law enforcement actions, where the enforcing state will naturally hold a considerable amount of the evidence. However, the focus in this chapter is on the contributions of international courts and tribunals; and for that purpose it is sufficient to present the facts of the case as these were seen by the PCA arbitral tribunal.25 The Arctic Sunrise was an icebreaker with a crew of 30. It departed Kirkenes, Norway on 14 September 2013, with course set for the Barents Sea; the intention was to stage a protest against oil drilling activities, specifically by targeting the oil production platform Prirazlomnaya. The Russian authorities were well aware of this. Russian Coast Guard vessel Lagoda contacted the Arctic Sunrise by radio on both 16 and 17 September, warning against interfering with the Prirazlomnaya, and informing it of the 3 nautical mile (nm) ‘hazard to navigation’ zone established around the platform, as well as the 500-metre safety zone, in which navigation was prohibited. The Arctic Sunrise arrived in the waters near the Prirazlomnaya on 17 September and remained outside the 3 nm hazard zone. In the early hours of 18 September, the Arctic Sunrise hailed the Prirazlomnaya to inform it of the intention to stage a protest. At the same time, Greenpeace faxed a letter to the platform management, notifying them of the same. This included information that the protestors would attempt to scale the platform and establish a camp on it. Shortly after, five rigid-hulled inflatable boats (RHIBs) were launched from the Arctic Sunrise and started approaching the Prirazlomnaya. One of these RHIBs was towing a foam tube intended to function as a survival capsule for the protesters. The cable for this tube broke and the Arctic Sunrise, against radioed orders from the Lagoda, entered the 3 nm hazard-to-navigation zone to retrieve the tube. The RHIBs then entered the 500-metre safety zone surrounding the Prirazlomnaya, which the protestors then started trying to scale. The RHIBs of the Arctic Sunrise were in turn chased by two RHIBs from the Lagoda. One campaigner who had succeeded in attaching herself to a mooring line had her rope cut, resulting in her falling into the cold waters. She was picked up by (Netherlands v Russia), Award on the Merits (2015), RIAA XXXII (2019), 6 (hereafter Arctic Sunrise, merits). 24 Ibid para 19 (Arctic Sunrise, merits); ibid para 54 et seq (Arctic Sunrise). See also the comments in the joint separate opinion of Judges Wolfrum and Kelly in the Arctic Sunrise (n 23) para 6. 25 Arctic Sunrise, merits (n 23) paras 74 et seq.

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an Arctic Sunrise RHIB and joined another protestor in attempting to climb a different mooring line. In the ensuing scuffle, each side accused the other of having been aggressive, including allegations that weapons had been pointed from the Russian side and shots had been fired. The two protestors in the end descended into an RHIB from the Lagoda. The five RHIBs from the Arctic Sunrise had returned to the vessel between 6:15am and 6:45am, outside both the 50-metre safety zone and the 3 nm hazard to navigation zone. At around this time, the Lagoda started radioing the Arctic Sunrise with orders to stop, and to admit an investigations team onboard the vessel. It was stated that the RHIBs from the Arctic Sunrise had attacked the Prirazlomnaya, and that the former was therefore suspected of terrorism. The Arctic Sunrise refused to stop or accept a boarding party, maintaining that it was in international waters. The order to stop was repeated several times from the Lagoda and warning shots were fired. At around 7:30am, the Lagoda displayed an ‘SN’ flag. A stalemate now developed, with the Arctic Sunrise circling the Prirazlomnaya at a distance of around 4 nm and the Lagoda positioned in between. This stalemate was broken at sunset on the evening of 19 September, when the Lagoda again radioed the Arctic Sunrise, repeating the order to stop and heave to. At the same time, the Arctic Sunrise was approached by a helicopter marked by a red star on its belly, from which armed personnel rappelled down onto the aft deck of the Arctic Sunrise, which was subsequently towed to Murmansk. 5.2

The International Tribunal for the Law of the Sea

The Netherlands and the Russian Federation held very different views on the legality of what had taken place. After a brief exchange of views, the Netherlands instigated arbitration proceedings according to Annex VII of UNCLOS, as well as provisional measures proceedings before ITLOS under Article 290, Section 5 of UNCLOS. For ITLOS to grant provisional measures under this provision, it must find that the arbitral tribunal to be established will prima facie have jurisdiction, and that the ‘urgency of the situation’ requires that provisional measures be granted. Taking a different view from that expressed by Russia regarding the extent of Russia’s freedom from obligatory dispute resolution, ITLOS found that there was indeed prima facie jurisdiction for the arbitral tribunal. As to the urgency of the situation, the majority decision focused on the state of the vessel while under detention and the detention of the crew, finding these points sufficient to invoke the urgency requirement.26 On neither of these points did Arctic Sunrise (n 23) paras 71 and 89.

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the majority find reason to venture into the merits of the case and comment on whether, given the evidence placed before ITLOS, there could be a case against the Russian Federation. A different approach was taken in separate and dissenting opinions. In their separate opinion, Judges Wolfrum and Kelly deemed it relevant to the question of provisional measures that the Arctic Sunrise had been arrested in the EEZ, where the coastal state has only limited enforcement jurisdiction. In their view, the Russian Federation could exercise enforcement jurisdiction to protect the platform within the safety zone, but had ‘no such right in the exclusive economic zone vis-à-vis the Arctic Sunrise’, as the facts presented themselves before ITLOS. In the EEZ, Greenpeace could invoke the freedom of expression; ‘whereas in the safety zone, depending on the factual situation, the exercise of such rights may have to yield to the safety interests of the operator of the platform’.27 These statements have several important implications. First, the statement regarding the enforcement jurisdiction of the Russian Federation in regard of the Arctic Sunrise indicates that the judges saw no basis for hot pursuit against the Arctic Sunrise, including based on its relation to the RHIBs launched from the vessel and their presence in the safety zone. The statement is explicitly based on the facts as presented before ITLOS – but neither the majority nor the separate opinion of Judges Wolfrum and Kelly sheds light on what ITLOS considered these facts to be or how it saw the law as applying to these facts. Additionally, the opinion suggests that enforcement actions to protect the platform in cases such as this must be based on actions that took place within the safety zone. However, not even this is unqualified. The exercise of freedom of expression, even within the safety zone, must be weighed against the interests of the platform. Even then, the interest of the safety of the platform only ‘may’ override the interest in exercising the freedom of expression. This weighing of interest before enforcement is permissible represents an added condition for the exercise of hot pursuit. It may even be argued that if accepted, the test would require more for hot pursuit, as the safety interest is weaker in the case of pursuit than when enforcement action takes place directly within the safety zone. Also, the separate opinion of Judge Jesus touches on the merits of the case. He addresses the question of whether, concerning the release of personnel from the Arctic Sunrise, a distinction should be made between those who were inside the safety zone (and thus ‘violated’ it) and those who ‘may have been in the Russian EEZ on board of the vessel as it exercised its freedom of navi-

27 Ibid joint separate opinion of Judges Wolfrum and Kelly, paras 12 et seq (quotes from para 14).

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gation’.28 Without commenting on the assessment of the facts or the law, this view also implies that there was no case of constructive presence of the Arctic Sunrise as a mother vessel. In his dissenting opinion, Judge Golitsyn delved by far the deepest into the merits of the case. The principal reason for the Dutch claim was a violation of the freedom of navigation. In Golitsyn’s view, this rendered it necessary, in considering the urgency of the situation, to also assess the merits of the case. If, in detaining the Arctic Sunrise, the Russian Federation had been acting in accordance with UNCLOS, then no freedom of navigation violation would have occurred, thereby invalidating the principal reasoning for the urgency of the matter.29 Here Judge Golitsyn’s opinion is focused on the facts of the case, rather than on developing the law. His point of departure can be found in Article 60, paragraph 5, which provides the coastal state with the power to take ‘necessary enforcement measures’ to ensure compliance with its regulations ‘within the safety zones’.30 From this, he addresses the facts as these could be established from the submissions of the Dutch side and as far as the Russian Federation had commented on facts before withdrawing from the process. Central to his argument was that the RHIBs from Arctic Sunrise intentionally entered the safety zone surrounding Prirazlomnaya and that crew members attempted to scale the platform. From this, it followed that the Russian Federation might take enforcement measures, and also that the mother ship might be held responsible for the acts of the vessels launched from it. In this regard, Judge Golitsyn found that the Russian Federation exercised the right of hot pursuit ‘in full conformity with the Convention’.31 He addressed the freedom of expression mentioned by Judges Wolfrum and Kelly indirectly, pointing out that national courts in the Netherlands twice, and in the United States once, have found that comparable activities by Greenpeace were not covered by the freedom of expression.32 Therefore, according to Judge Golitsyn, the freedom of navigation argument could not serve as the basis for granting provisional measures; nor could other reasons put forth by the Dutch side, such as the deteriorating condition of the vessel while in detention. Judge Golitsyn did not comment on individual aspects of Article 111. Nor did he explain what he assessed the facts of the case to be in a manner that allows for deductions about his understanding of all conditions therein. For instance, as ITLOS assessed the facts, no signal had been given from the Lagoda to the Arctic Sunrise before both the Arctic Sunrise itself and the 30 31 32 28 29

Ibid separate opinion of Judge Jesus, para 13. Ibid separate opinion of Judge Golitsyn, para 36. Ibid para 25. Ibid para 36. Ibid para 27.

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RHIBs launched from it were outside both the safety zone and the 3 nm hazard to navigation zone. Judge Golitsyn may have had a different understanding of the facts; or may have held that the law did not require such warnings for a pursuit to be commenced or perhaps that this requirement was not applicable as far as safety zones were concerned. 5.3

The Arbitral Tribunal

For the arbitral tribunal, none of the views expressed by ITLOS were binding; but for any tribunal, they would form an important point of departure. All tribunals will be well aware that the parties to the dispute, other states and academia will read their decisions, looking for both consistency and inconsistency. Even more important is the decision from ITLOS for the later arbitral tribunal when forced to search for arguments that could have been presented from the Russian standpoint itself.33 Furthermore, as ITLOS is a standing tribunal, the arbitral tribunal may reasonably expect that ITLOS may wish to revisit Arctic Sunrise when reaching decisions on other cases. In the arbitral tribunal’s dealing with the merits of that case, hot pursuit became a key issue. With reference to the ITLOS decision in MV Saiga (No 2), the tribunal reaffirmed that the conditions for hot pursuit as these ensue from Article 111 of UNCLOS are cumulative.34 After examining available Russian legislation, the tribunal found that a safety zone as provided for in Article 60(5) of UNCLOS had been established around the Prirazlomnaya and that this had been violated: thus, there existed a violation of coastal state law. The more difficult question for the tribunal concerned the requirements deduced from Article 111, paras 1 and 4 concerning the commencement of pursuit. For pursuit to be lawfully commenced, the pursued vessel, or a vessel for which it serves as a mother vessel, must be within the relevant zone when the order to halt is given. For this specific case, these requirements meant that ‘to be lawful, the pursuit of the Arctic Sunrise had to commence while at least one of its RHIBs was within the 500-meter safety zone around the Prirazlomnaya’.35 In its assessment, the tribunal started by disregarding any order to stop given to the RHIBs of the Arctic Sunrise while these were within the safety zone. According to the tribunal, ‘the Convention requires that stop orders be given 33 There was some initial correspondence between the Russian Federation and the Netherlands that contained comments on the merits, but nothing like that which could ensue from contradictory proceedings. See the listed correspondence in Arctic Sunrise, merits (n 23) para 153. 34 Ibid para 246. 35 Ibid para 253.

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to the main ship that is to be pursued’.36 No further reasoning is provided for this view; and for this condition, no reference is made to UNCLOS’s wording. For the Arctic Sunrise, there was the question of what signal to accept. An ‘SN’ flag was hoisted by the Ladoga, but only well after the RHIBs had left the safety zone. Prior to this, signals had been given in the form of warning shots and ‘stop’ orders over VHF. The Netherlands argued that VHF signals do not conform to the requirement that there should be ‘visual or auditory signals... given at a distance which enables it to be seen or heard by the foreign ship’.37 The tribunal did not accept this interpretation, but stressed that the wording of UNCLOS must be interpreted in light of its object and purpose, with regard to modern technology. The principal object of the signals requirement, according to the tribunal, is to alert the pursued to the commencement of pursuit.38 The object of hindering abuse by signals being transmitted over a long distance, as can be derived from the ILC’s commentary to the draft 1958 High Seas Convention, was dismissed by the tribunal. Given the extension of coastal state competence over vast areas, coupled with advances in technology, a proximity requirement ‘would not make sense’. Additionally, there was no danger of abuse, as the two vessels were within 3 nm of one another when the signal was given. The signal given was therefore deemed valid; the question then concerned the positions of the RHIBs of the Arctic Sunrise at the time it received the first radioed order to stop that was sent by the Lagoda.39 The tribunal discussed this at length before concluding that the first radio signal had not been given until shortly (a minute or two) after the last of the RHIBs from the Arctic Sunrise had left the declared safety zone around the Prirazlomnaya. Having established this, the tribunal might have concluded that subsequent pursuit was not in accordance with international law. Instead, the tribunal paid close attention to the wording of Article 111(1), according to which vessels ‘must be’ within the relevant zone when pursuit commences, and contrasted this with the more open wording of Article 111(4) focusing on the vessel that started the pursuit having used ‘practicable means’ to determine the position of the vessel to be pursued. The tribunal interpreted the latter to indicate that Article 111 does not require an objective test as to the location of the vessel to be pursued or its boats at the time the signal is given, but rather calls for a subjective test of what was held at the pursuing vessel. The tribunal did, however, stop short of reaching a conclusion here. The question of a lawful

38 39 36 37

Ibid para 255. Ibid para 258. The requirement is discussed further below. Arctic Sunrise, merits (n 23) paras 259–60 (quote para 260).

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pursuit was resolved on a different basis, rendering the tribunal’s reflections on the matter obiter.40 Instead, the tribunal went on to consider whether the pursuit of the Arctic Sunrise was ‘continuous’, as required by Article 111(1): that the pursuit had remained ‘uninterrupted’ from the time of the first stop order until boarding took place a good 36 hours later. This, the tribunal found, was not the case. For the first few hours, there were clear signs of pursuit: numerous orders were given to stop, warning shots were fired and an unsuccessful boarding was attempted by one of the Lagoda’s RHIBs. Then a stalemate ensued. The Arctic Sunrise continued to circle the Prirazlomnaya before withdrawing even further and the Lagoda shadowed it. After discussions regarding the two crewmembers from the Arctic Sunrise who were being held aboard the Lagoda, an RHIB was allowed to deliver clothing, food and medicine. The Lagoda also several times indicated that it was awaiting further instructions. The tribunal found this behaviour not consistent with ‘continuous pursuit’, which would have required the objective ‘to board, as soon as possible, the pursued ship’. Also, the behaviour of the Arctic Sunrise was not consistent with pursuit, ‘as it remained in the area and did not try to flee’. In the view of the tribunal, the Lagoda remained in the area not to await reinforcements that could board the Arctic Sunrise, but to ensure that the vessel did not attempt any further actions against the Prirazlomnaya.41 Having reached this conclusion, the tribunal found that there had been no lawful ‘hot pursuit’ of the Arctic Sunrise on which Russian authorities could rely as a legal basis for boarding, seizing and detaining the Arctic Sunrise.42 The tribunal also examined several other possible legal bases on which the Russian boarding might have been justified. Here the tribunal did find reason to address the relation between the right of protest at sea, as discussed in the separate opinion of Judges Wolfrum and Kelly.43 ‘Protest at sea’ was held by the tribunal to be a lawful use of the sea related to the freedom of navigation and therefore protected by Articles 58 and 87 of UNCLOS.44 But beyond this, the tribunal did not offer either a coastal or a flag state much assistance: the solution is to be found in the ‘due regard’ obligation between states ensuing from Articles 56(2) and 58(3).45 Moreover, any measures taken must meet

Ibid paras 267–68. Ibid paras 269–74 (quotes from para 271). 42 Ibid para 275. 43 Arctic Sunrise (n 23) joint separate opinion of Judges Wolfrum and Kelly, para 14, who had addressed this as a question of freedom of expression. 44 Arctic Sunrise, merits (n 23) paras 226–27. 45 Ibid paras 228 and 230. 40 41

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tests of reasonableness, necessity and proportionality.46 From this, the tribunal deduced that ‘the coastal state should tolerate some level of nuisance through civilian protest as long as it does not amount to an “interference with the exercise of sovereign rights”’.47 A precise line based on this is certainly difficult to draw.48

6.

INTERPRETATIONS, CLARIFICATIONS AND REMAINING MYSTERIES

The rulings of international tribunals concerning hot pursuit vary, both in interpretative style and in detail. In Saiga, ITLOS took as its clear point of departure the wording of UNCLOS Article 111.49 But from there, ITLOS’s reasoning is not transparent. ITLOS stated that the conditions set out in Article 111 are cumulative, but no reasoning was provided.50 Arguably, the conclusion is fairly obvious. However, this is a persistent pattern. In the ensuing paragraphs, ITLOS noted different times at which the pursuit may be argued to have begun and referred to conditions which the pursuit failed to fulfil. But in so doing, ITLOS moved between facts and law, without explicitly stating anything on how it came to regard the law as it did. Further, in dealing with Article 111, ITLOS made no reference to the 1969 Vienna Convention on the Law on Treaties (VCLT) or other sources outside of UNCLOS. Such references to additional sources were made elsewhere in the Saiga decision – for instance, where ITLOS discussed the use of force. But again, the interpretative process of the majority seems less than clear. The majority opinion simply stated that UNCLOS contains no express provisions on the use of force in the arrest of ships – without explaining, for instance, why it interpreted Article 73 as having no bearing on the matter. Also, the norm applicable from other norms of international law through Article 293 was postulated only. In the ensuing paragraph, ITLOS expanded on the norm, with reference to both the I’m Alone and Red Crusader cases. But this is only what, according to ITLOS, could be derived from the cases, with no clarity as to exactly what had been derived from the cases and whether this could be derived from both, separately or together. Here reference was also made to the Straddling and

Ibid para 326. Ibid para 328. 48 For a far more extensive comment, see J. Mossop, ‘Protests against oil exploration at sea: lessons from the Arctic Sunrise arbitration’ (2016) 31 The International Journal of Marine and Coastal Law 60. 49 Arctic Sunrise, merits (n 23) para 145. 50 Ibid para 146. 46 47

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Highly Migratory Fish Stocks Agreement, but only as a source ‘reaffirming’ the view already reached by ITLOS.51 This style of reasoning is repeated in the ITLOS ruling for preliminary measures in Arctic Sunrise. The majority, after having established the facts, went on to note ‘urgency’, without expanding on what the law requires for this to be the case or how ITLOS had reached this understanding.52 Thus, we find in the majority opinion no comment or way of discerning why, unlike Judge Golitsyn, the majority saw no need to look into the merits of the case to assess urgency. That said, the majority opinion made extensive reference to rulings from the International Court of Justice and to previous ITLOS rulings.53 Again, however, ITLOS failed to apply these rulings as part of a deduction of the law: the majority mainly stated how they saw the law, adding a reference to one or more rulings. To a certain extent, the arbitral tribunal dealing with the merits of Arctic Sunrise went further in indicating its approach to the content of the law: ‘it may be necessary for the tribunal to resort to foundational or secondary rules of general international law such as the law of treaties.’ Added to this was a footnote referring to the VCLT as an example.54 However, there was no elaboration on which other sources the arbitral tribunal deemed applicable for treaty interpretation. For its assessment of hot pursuit, the arbitral tribunal quoted Article 111 of UNCLOS extensively, which would indicate that the wording was central to its reasoning.55 The first condition of hot pursuit addressed was that there must have been ‘good reason to believe’ that the vessel had violated the laws of Russia.56 And the tribunal noted which laws and regulations the Russian Federation had in place. But it never addressed the legal content of the terms or what would be required for there to be ‘good reason’. It may, of course, be held that once a safety zone had been established, any discussion of these terms became superfluous. However, the style is indicative of how the tribunal discussed the sources only to a very limited degree. Due to their connection, the arbitral tribunal chose to deal with the conditions of a signal being given to the vessel being pursued and the location of the vessel or one of its boats together. It held that a signal must be given while

Ibid paras 155–56. Arctic Sunrise (n 23) para 89. For a similar criticism see D. Guilfoyle and C.A. Miles, ‘Provisional Measures and the MV Arctic Sunrise’ (2014) 108 American Journal of International Law 271, 279. 53 See Arctic Sunrise (n 23) paras 48, 51–2, 76, 84 and 99–101. 54 Arctic Sunrise, merits (n 23) para. 190. 55 Ibid para 245. 56 Ibid para 247. 51 52

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either the vessel to be pursued itself or one of its boats is within the zone in which the coastal state enjoys enforcement jurisdiction. Equally, the tribunal found, without any further discussion of sources, that the signal must be given to the ship that is to be pursued – a stop order to one of the vessels using it as a mother vessel would not suffice.57 This interpretation left the case to possibly turn on the question of acceptable means of signalling. In its assessment of the facts, the tribunal found that an ‘SN’ flag was hoisted only after the last of the RHIBs had left the security zone around the Prirazlomnaya. The only signal given while the RHIBS were in the safety zone was by VHF radio. The tribunal found this sufficient, also noting several sources. However, no mention was made of what the tribunal saw as ensuing from either wording or context: it viewed the matter ‘in light of object and purpose, having regard to the modern use of technology’.58 The principal object of the signal rule was held to be to make the ship pursued aware that it is under pursuit; it was further noted that VHF signals are the standard means of communications at sea, and that vessels under the International Convention for the Safety of Life at Sea have an obligation to monitor Channel 16. Indeed, the Arctic Sunrise did acknowledge ‘some of the radio messages’.59 The Netherlands had directed the tribunal’s attention to the ILC commentary to the draft of the 1958 Convention on the High Seas, in which signals given at a greater distance had been excluded due to the danger of abuse. The tribunal found that this concern could not carry a contrary interpretation. It noted first that the ILC’s comment appertained to the 1958 Convention on the High Seas and thus came before UNCLOS had extended the scope of coastal state jurisdiction. Given the larger areas to be policed and the technology available, it would ‘make no sense to limit valid stop orders to those given by an enforcement craft within the proximity required for an audio or visual signal that makes no use of radio communications’. Mention was also made of two cases in which domestic courts held VHF communications to be an acceptable signal. In light of this, and the fact that that the two vessels in question were less than 3 nm apart – thus ‘precluding any possibility for abuse’ – the tribunal found that a valid signal had been given with the ‘first radio message to stop’.60 The use of radio as an acceptable means of conveying the signal represents a significant development of the international law of the sea. O’Connell had found that the question needed no elaboration, simply referring to general acceptance by the Hague Conference and the ILC of radio signals as being 57 Ibid paras 253–55. The point of departure later varied somewhat, as discussed below. 58 Ibid paras 254–60, quote from para 259. 59 Ibid para 259. 60 Ibid para 260. This statement was later significantly modified by the tribunal.

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insufficient.61 Likewise Poulantzas, discussing the question at greater length, also maintained that it was unanimously held that radio would not suffice.62 Moreover, in a footnote, Rothwell and Stephen dismissed the use of wireless transmissions.63 Very differently, Allen held that ‘most modern’ authors have taken the approach that radio is acceptable.64 An opening for considering the use of radio messages may also be found in the separate opinion of Judge Anderson in M/V Saiga (No 2): Even if the Tribunal had been willing in principle (and after due consideration of the point) to consider the possibility of accepting as an auditory signal a radio message sent over a distance of 40 miles or so, the alleged signal from P32B could still not have been deemed to constitute a valid signal in the absence of any evidence of: (1) the sending of the message from P32B...; and (2) more importantly, the receipt of the message by the Saiga and the latter’s understanding of the message as an order to stop by officials of Guinea.65

Though not dismissing radio messages out of hand, the statement is not very supportive. It is an ‘even if’, and one requiring due consideration. It is submitted that the arbitral tribunal’s assessment in Arctic Sunrise does not meet the standard of ‘due consideration’. That interpretation was made without any mention of its relation to the wording of Article 111(4). Had Article 111 merely required a ‘signal’, there would have been little doubt that a radio transmission would suffice – but the ‘signal’ must be ‘visual or auditory’. With ‘auditory’, the reference surely indicates that which can be picked up by the human ear unaided. This does not apply to radio, which must be transformed from an audible utterance to radio waves and then back to something audible to the human ear. The term ‘visual or auditory’ seems rendered superfluous by the tribunal’s interpretation. For the object and purpose of the rule, it is certainly correct that both the content and the width of coastal state jurisdiction have developed significantly since the 1958 High Seas Convention. The limitations on use of radio as per the Hague Conference and the ILC must, however, have been well known O’Connell, The International Law of the Sea (n 4) 1091. Poulantzas, The Right of Hot Pursuit in International Law (n 5) 204. 63 See D.R. Rothwell and T. Stephens, The International Law of the Sea (2nd edn, Hart Publishing 2016) 449–50 (with accompanying footnote 27). 64 C.H. Allen, ‘Doctrine of hot pursuit: a functional interpretation adaptable to emerging maritime law enforcement technologies and practices’ (1989) 20 Ocean Development & International Law 309, 319 (referencing two other sources). R.R. Churchill and A.V. Lowe, The International Law of the Sea (3rd edn, Manchester University Press 1999) 216 refer to this as a ‘flexible’ interpretation, seemingly with approval. 65 M/V Saiga (No. 2) (n 17) separate opinion of Judge Anderson, 139. 61 62

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to negotiating parties of UNCLOS. Still, they chose to retain the wording in this regard, fully aware of the extension of coastal state jurisdiction made by UNCLOS. Arguing that UNCLOS extended coastal state jurisdiction, and that Article 111 should therefore be interpreted flexibly, would seem more likely to disturb the balance of the ‘package deal’ than retain it.66 As the arbitral tribunal does mention, the object and purpose of Article 111(4) are often held to be to prevent abuse.67 Radio signals can be transmitted at any range; immediately auditory or visual signals require proximity in order to function as signals. This in turn, coupled with the requirement of immediacy, also means that there must be a good reason to suspect the vessel and it must be ensured that the correct vessel is pursued throughout. The requirement thus helps to protect against an overly assertive coastal state. In addition, these requirements help to ensure that legality of the pursuit is evident to the flag state.68 The latter is important, as the rule of hot pursuit extends coastal state enforcement jurisdiction. And, as demonstrated by the intervention of naval vessel from the flag state in Red Crusader, legal certainty is vital. Whereas the object and purpose of Article 111 may support the acceptance of radio signals, especially when the vessel to be pursued has given a response to the stop signal, it is at best unclear whether there is sufficient basis for abandoning the distance requirement. Even if the object and purpose support this interpretation, it must still be reconciled with the provision’s wording, which is to be interpreted according to its ‘ordinary meaning...in light of its object and purpose’ – which arguably restricts how far an interpretation can diverge from the ordinary meaning of the terms used.69 It is not clear whether the tribunal upheld the requirement of proximity in stating that it would ‘make no sense to limit valid stop orders to those given by an enforcement craft within the proximity required for an audio or visual

66 The reference to UNCLOS as a ‘package deal’ is much used and seems universally accepted; see, for instance, P. Birnie et al, International Law & the Environment (3rd edn, Oxford University Press 2009) 382. The expression also appears to have been employed during the negotiations, indicating the desire for a single comprehensive instrument wherein one might sacrifice at one point to gain on another: see J.R. Stevenson and B.H. Oxman, ‘The Third United Nations Conference on the Law of the Sea: The 1975 Geneva Session’ (1975) American Journal of International Law 69, 763 and 765. See also the extensive discussion in H. Caminos and M.R. Molitor, ‘Progressive development of international law and the package deal’ (1985) 79 American Journal of International Law 871, 873 et seq. 67 Arctic Sunrise, merits (n 23) 260 (with further references). 68 On balancing the two sides of object and purpose, see also Molenaar (n 1) 29. 69 See, for example, O. Dörr, ‘Article 31’ in O. Dörr and K. Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd edn, Springer 2018) 586 et seq.

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signal that makes no use of radio communications’. The tribunal’s assessment was based, among other things, on the presence of new technologies such as seabed sensors, satellite surveillance and over-the-horizon radar. None of these requires proximity. And only after setting out its general understanding of the law did the tribunal note that the two vessels ‘in any event’ were within 3 nm of each other.70 The ‘any event’ statement is important: it means that any broader implications from the tribunal’s reasoning are obiter. What seems certain is that tribunal saw no need for a radio signal to be acknowledged by the to-be-pursued vessel to be valid. In applying the law, the tribunal focused on the position of the Arctic Sunrise and its RHIBs when the first order to stop was radioed. And while the tribunal did mention that ‘at least some of the radio messages to stop were received and acknowledged’, there was no discussion of whether the first radio message was or which later radio messages were received and acknowledged.71 Neither did the tribunal in this regard make any reference to the separate opinion of Judge Anderson in Saiga, in which he held that if a radio transmission were to be accepted as a signal under Article 111(4), then evidence of receipt and comprehension would be central.72 Having accepted radio transmissions as signals under Article 111(4), the tribunal turned to the placement of the vessel and found that – if only by a matter of minutes – the last of the RHIBs from the Arctic Sunrise had left the security zone by the time the first radio transmission was made.73 This assessment focused on the wording of Article 111(1), which provides that the ‘foreign ship “must be” in the relevant area at the commencement of the pursuit’. However, the tribunal found support for a softer approach in the wording of Article 111(4) that the ‘pursuing ship has satisfied itself by such practicable means as may be available’ that the vessel was within the zone in question. This, to the tribunal, indicated that the assessment as to location should not be made with ‘full benefit of hindsight, but rather looked at from the perspective of the pursuing ship’. The tribunal added that the safety zone was relatively small. On this basis, ‘[i]t may therefore be that, given the closeness in time of the first stop order and departure of the Arctic Sunrise RHIBs from the relevant zone, and the fact that the Lagoda ostensibly began radioing the stop order as soon as it realised’ that the RHIBs were leaving the zone, the Russian Federation ‘should be seen as having’ satisfied this criterion.74

72 73 74 70 71

Arctic Sunrise, merits (n 23) para 260. Ibid para 259 and the discussion in paras 261 et seq. M/V Saiga (No 2) (n 17) separate opinion by Judge Anderson, 139. Arctic Sunrise, merits (n 23), para 266. Ibid para 267.

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It is not difficult to agree with the tribunal that the wording of Article 111(4) offers a different test from Article 111(1). And in terms of what would be practicable, it would seem to have been a perfectly acceptable solution for the tribunal to refuse to go into this, given Russia’s non-participation in the proceedings. However, the tribunal seems to have confused the question under Article 111(1) of whether the right of hot pursuit exists with that under Article 111(4) of when pursuit has begun. Only in regard of the latter is the coastal state afforded some leeway. The points that emphasized the time between the radio transmissions and the RHIBs’ departure from the zone, and that the transmissions started as soon as the RHIBs were seen to be leaving, may indicate that the Russian Federation thought it was acting correctly. But an assessment, from objective criteria, of what the Russian side might have thought is arguably very different from an assessment of whether the ‘pursuing ship has satisfied itself by such practicable means as may be available’ as to the RHIBs’ position. Moreover, the RHIBs were launched at the latest at 4:30 in the morning, just over 3 nm from the Prirazlomnaya, and had set course directly for it;75 the RHIBs then departed the safety zone at 6:11 at the earliest.76 This left a significant period of time in which the Russian authorities could have signalled to the Arctic Sunrise the order to stop. In assessing these criteria, unlike its assessment of acceptable signals, the tribunal also relied solely on the wording of the Article. There was no reference to its object and purpose; and certainly not to how the situation might appear from the standpoint of a flag state. Nor was there any mention of Red Crusader, which was arguably much stricter and certainly much more detailed in its analysis of possibilities.77 However, the tribunal also rendered this assessment obiter, turning instead to the requirement of continuity.78 For this condition, the tribunal offered no interpretation of Article 111 – merely stating, as per Article 111(1), ‘a pursuit continued outside the maritime area where it was lawfully commenced...must not have been interrupted’.79 Ibid para 85, in conjunction with paras 83 and 86. Ibid para 267. 77 See Red Crusader (n 11) 527 et seq. Also critical to the tribunal on this point is A.G. Oude Elferink, ‘The Russian Federation and the Arctic Sunrise case: hot pursuit and other issues under UNCLOS’ (2016) 92 International Law Studies (U.S. Naval War College) 381, 394. On the requirement in Article 111(4) as focused on the location of the offending vessel and the possibilities of the pursuing vessel to establish its position – and not accepting pursuit when the offending vessel has been established to be outside the relevant zone – see Poulantzas, The Right of Hot Pursuit in International Law (n 5) 199 et seq. 78 Arctic Sunrise, merits (n 23) para 268. 79 Ibid para 269. 75 76

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On the facts, the tribunal accepted the pursuit as having been uninterrupted for the first three hours. The order to stop was repeated several times. The Arctic Sunrise was informed that warnings shots might be fired and warning shots were indeed fired. An RHIB was even sent to conduct a boarding.80 But then ‘pursuit’, as the tribunal saw it, disintegrated. The Lagoda had threatened to open fire at the stern of the Arctic Sunrise, but did not do so. Instead, the guns were unloaded and, for the next 33 hours, the Lagoda shadowed the Arctic Sunrise. The tribunal found the behaviour of the Lagoda to be consistent with deterring further action towards the Prirazlomnaya, but not with pursuit. Here the tribunal gave its most general statement of what is required: that the conduct have as its ‘final objective...to board, as soon as possible, the pursued ship’. That pursuit was broken was also demonstrated by the Arctic Sunrise not trying to flee.81 The tribunal did address the obvious objection to this line of argument – that the Lagoda was awaiting further assistance or further instructions. However, it found that the Lagoda’s behaviour was not consistent with this. It also noted a Russian news report that a spokesman for the Russian Coast Guard had referred to the two protesters who had been taken aboard the Lagoda as ‘guests’.82 Again the tribunal’s conclusions are questionable if we take other factors into consideration. Concerning the object and purpose, it may be asked where the dangers of abuse lay in accepting the pursuit as continuous. The Arctic Sunrise was never out of sight, so there was no risk of confusion. Onboard the Arctic Sunrise, there may have been relief at not being under any immediate risk of boarding or forceful measures; but with a Russian coast guard vessel staying close by, it would have surely been unreasonable to assume that the Russian authorities no longer wished to apprehend the vessel and its crew.83 The tribunal’s requirement that pursuit be conducted in a manner demonstrating that the object is to ‘board, as soon as possible, the pursued ship’ would seem a tall order – especially in this case, where the situation had escalated through an attempted boarding and the firing of warning shots, as well as the threat of aimed shots (not attempted – arguably well in line with the

Ibid para 270. Ibid para 271. Elferink tentatively reaches the same conclusion, but focuses on other factors in so doing; see A.G. Oude Elferink, ‘The Arctic Sunrise incident: a multi-faceted Law of the Sea case with a human rights dimension’ (2014) 29 The International Journal of Marine and Coastal Law 244, 275 et seq. 82 Arctic Sunrise, merits (n 23) paras 272 and 274. 83 See also the discussion in Poulantzas, The Right of Hot Pursuit in International Law (n 5) 213 regarding the requirement of continuity and the award in SS I’m Alone. 80 81

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signals given by ITLOS in Saiga).84 The question remains: what would have satisfied the tribunal that there was ‘continuous pursuit’? Would continuous radio transmissions have sufficed or would more forceful measures be needed? Here it must be borne in mind that unassisted boarding of a vessel at sea is no easy task. The considerations for human life must apply not only in respect of the vessel to be boarded, but also as to what is required of a coastal state wanting to conduct enforcement operations as permitted by international law. There is also tension with considerations of humanity, as emphasized in Saiga, when the tribunal held against the Russian Federation that the Lagoda had unloaded its gun mounts.85 According to this ruling, a pursuing state should not de-escalate in this manner, to avoid this being used against it in a later dispute on the lawfulness of pursuit. There is an inherent danger that the approach employed by the tribunal will push states wishing to utilize their rights of enforcement to err on the side of aggression.86 The tribunal’s reasoning regarding the ‘continuous pursuit’ condition also creates some internal tension within the ruling. Regarding the two previous conditions dealt with – what constitutes an acceptable signal and the positioning requirement – the tribunal’s approach was liberal. But regarding continuity, its stance was much stricter. Here we must note that there is no lopsidedness in the tribunal’s approach. Its understanding of the signal requirement expands on allowable signals, thus benefiting the coastal state; as does the understanding of the placement requirement. However, its strict interpretation of what constitutes ‘uninterrupted pursuit’ is advantageous to the flag state. Of these, the tribunal rendered the first two obiter, with only the latter forming part of the ratio decidendi. The arbitral tribunal expressly commented on the above conditions of hot pursuit.87 As pointed out by Elferink, there was no mention of who might act on behalf of the state under the right of hot pursuit.88 Under Article 111(5), this right may be ‘exercised only by warships or military aircraft’ or other aircraft or vessel ‘clearly marked and identifiable as being on government service and authorized’ – logically covering not only who may effect the pursuit, but also who might bring it to an end through enforcement action.

84 M/V Saiga (No 2) (n 17) paras 145–55; see D.J. Attard and P. Mallia, ‘The High Seas’ in D.J. Oxford et al (eds), The IMLI Manual on International Maritime Law (Oxford University Press 2014) 268. 85 See M/V Saiga (No 2) (n 17) para 155; Arctic Sunrise, merits (n 23) para 271. 86 See also Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (n 81) 394 et seq. 87 Arctic Sunrise, merits (n 23) paras 242–75. 88 Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (n 81) 394.

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According to the factual findings of the tribunal, the helicopter from which the Arctic Sunrise was boarded ‘was unmarked save for a red star on its bottom side’. The men who descended from the helicopter were ‘in unmarked uniforms’.89 The tribunal, however, was satisfied that these were Russian officials, based on their ‘subsequent actions’ of having the vessel towed to Murmansk.90 As the tribunal commented on the issue only with regard to its factual findings, there is no discussion of the law on the matter. Indeed, given its extensive discussion of other conditions of hot pursuit – both conditions fulfilled and not fulfilled – this appears to have been overlooked. The wording of Article 111(5) would suggest that actual markings, and not subsequent actions, are central to the assessment.91 Additionally, it is submitted that the object and purpose of the provision would support this interpretation. It would appear essential for both the vessel which is the subject of an enforcement action and the flag state to have certainty – based not only on later actions, but also on the moments leading up to an enforcement action, and the enforcement action itself – that the vessel is subject to enforcement deemed rightful under international law. Allowing enforcement from unmarked or poorly marked vessels and aircraft creates a risk that the pursued vessel itself or the flag state could seek to protect the vessel from unauthorized and illegal boarding by an unknown entity. However, as the requirement of Article 111(5) is not addressed by the tribunal in its discussion of hot pursuit, there would seem to be little reason to emphasize its award in this regard.

7.

WAS IT ‘HOT PURSUIT’?

It ensues from the above that the tribunal saw ‘hot pursuit’ as a major legal basis on which the Russian authorities could exercise enforcement jurisdiction. But that was not the only basis examined. According to Article 56(1) of UNCLOS, the coastal state has ‘sovereign rights for the purpose of exploring and exploiting...the natural resources’ of the seabed and subsoil of the EEZ; and according to Article 77(1), likewise for the continental shelf. A pertinent question would therefore be whether, instead of hot pursuit from the safety zone, the coastal state could not simply rely on its rights in the EEZ or the continental shelf. The tribunal was aware of this point, of course. It established that the coastal state has the ‘right to take measures to prevent interference with its sovereign Arctic Sunrise, merits (n 23) para 100. Ibid para 101. Additionally, the tribunal finds support for their view in a news item published the following day. 91 The same view is held by Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (n 81) 394. 89 90

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rights’ of the resources in the EEZ.92 However, in the tribunal’s view, this must be weighed against the rights of other states, ‘including the right to allow vessels flying their flag to protest’.93 The tribunal further found that, at the time it was boarded, the Arctic Sunrise ‘was no longer engaged in actions that could potentially interfere with the exercise by Russia of its sovereign rights’. Moreover, at the time of boarding, the Arctic Sunrise was ‘exercising the freedom of navigation’.94 The tribunal also noted that, as regards the continental shelf, a boarding of the Arctic Sunrise would have ‘infringed and unjustifiably interfered with the navigation and other rights and freedoms of the Netherlands’.95 Therefore, the measures taken against the Arctic Sunrise could not be justified based on the sovereign rights of the coastal state.96 However, that view has not been universally shared. In his contribution to this book, Churchill notes how the tribunal’s approach distinguishes between breaches of a safety zone on the one hand, and interference with a coastal state’s sovereign rights to the living and non-living resources of the zone on the other. Further, even if the distinction is accepted, the tribunal has taken a very narrow view of the coastal state’s enforcement competence. Specifically, Churchill points to the coastal state’s competence with regard to enforcement concerning fisheries resources, where it seems clear that – even if a vessel had ceased violating the sovereign rights of the coastal state – there would still be enforcement power, as long as the vessel remained in the EEZ.97 The tribunal offered no reasoning beyond its statements for its understanding and use of the provision on hot pursuit, relying solely on the coastal state’s sovereign rights. There was certainly no contextual interpretation, such as that undertaken by Churchill. A reasoned view, concluding much as did the arbitral tribunal, is provided by Elferink, who takes as his point of departure the fact that Article 60(4) of UNCLOS contains no mention of enforcement beyond the safety zone;98 and hat hot pursuit is the sole possible basis that ensues from the specific mention of this possibility in Article 111.99 This interpretation of Article 60(4) is correct, in that it does not say that enforcement of the safety zone is possible beyond the zone. Article 60(4)

Arctic Sunrise, merits (n 23) para 324. Ibid para 328. 94 Ibid paras 329 and 330. 95 Ibid para 331. 96 Ibid para 332. 97 See Churchill, Chapter 3 of this volume. 98 Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (n 81) 258. 99 Ibid. 92 93

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regulates the competence of the coastal state to set regulations within the safety zone. Reading it as also regulating the competence of the coastal state in a case of hot pursuit seems unnecessarily restrictive. As for Article 111(2), in mentioning hot pursuit from safety zones, the wording is somewhat curious: the right of hot pursuit applies ‘mutatis mutandis to violations in the exclusive economic zone or on the continental shelf, including safety zones around continental shelf installations’. First, it should be noted that pursuit from safety zones is mentioned for continental shelf installations, but not for installations located in a state’s EEZ. This does certainly not mean that safety zones are not an issue in the EEZ. The provision introducing safety zones is found, as mentioned by Elferink, in Part V, Article 60 of UNCLOS on the EEZ; which, under Article 80, is applicable mutatis mutandis to the continental shelf. So it is certainly not the case that no consideration was given to safety zones with regard to EEZs. One way of explaining the special mention of installations on the continental shelf could relate to the difference of coastal state competence in the water column, with the coastal state also holding sovereign rights for the column in its EEZ, but the column over the continental shelf retaining its high seas status (see Article 78(1)).100 It could then be argued that a general right of enforcement is more readily envisaged in the EEZ than in the waters above the continental shelf – in turn, necessitating special mention of safety zones. However, this interpretation is somewhat strained, because of the general mention of violations taking place on the continental shelf – the same as for the EEZ. And as Churchill notes, the latter has been understood to mean – at least as regards fisheries violations – that a vessel may be subject to enforcement for violation of the coastal state’s sovereign rights for as long as it is to be found within the EEZ. The question of ‘hot pursuit’ will thus arise only regarding a vessel that is already on the verge of leaving the zone.101 But the difference regarding the water column may help to explain why a special reference to safety zones was inserted with regard to the continental shelf.102 Regardless, we should recall that there may be a question of violation of different provisions. Article 60(4) allows the coastal state to set safety zones and impose regulations on navigation within these zones – up to and including

100 See also, for example, Rothwell and Stephens, The International Law of the Sea (n 63) 125. 101 See also the ILC’s statement on sovereign rights, suggesting wide rights of enforcement also for the continental shelf, quoted in Churchill and Lowe, The International Law of the Sea (n 64) 151. 102 For a somewhat different angle, see Elferink, ‘The Arctic Sunrise Incident: A Multi-faceted Law of the Sea Case with a Human Rights Dimension’ (n 81) 391 et seq.

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a total ban on non-authorized vessel movement.103 Articles 56 and 77, respectively, allocate to the coastal state sovereign rights to the EEZ and to the continental shelf. Intrusion into a safety zone may often – but not always – affect the sovereign rights of the coastal state. Where exploitation is not affected – whether because the intrusion was minor, or because it was clear to all parties that the intrusion was not malicious and presented no danger – hot pursuit will allow for enforcement of the safety zone violations, without impinging on the sovereign rights of the coastal state. Certainly, this may be the case if we accept the tribunal’s demand that a threshold be met before the sovereign rights are sufficiently affected. Not any act that happens to resemble exploitation will then constitute a violation of the sovereign rights of the coastal state.104 Neither the right of hot pursuit from, nor safety zones in, the EEZ are rendered irrelevant by a wider understanding of enforcement rights.105 Hot pursuit will still extend enforcement jurisdiction where state jurisdiction in regard to sovereign rights has not been triggered. As for safety zones, they provide an area in which navigation can be more closely regulated or even excluded. This is important, as it creates greater legal certainty than the ‘due regard’ obligation ensuing from Articles 56 and 58 of UNCLOS. For the coastal state, it will also be important to keep vessels at a distance from structures and installations in the EEZ; but not all intrusions – even into a zone as narrow as a 500-metre radius safety zone – will necessarily disturb the exploitation of the zone’s resources. For the flag state, the existence of the safety zones creates legal certainty regarding permissible space for navigation in the EEZ, so that navigational hazard zones or other zones designated by a coastal state do not create too much confusion regarding the freedom of navigation.106 Interpreting UNCLOS in this manner means that there was no issue of hot pursuit in Arctic Sunrise – none whatsoever. As for the rights of the coastal state to enforce against a vessel of a different flag state, the tribunal’s statements on the balancing with other rights, such as the freedom of expression, still stand – with one important caveat. If the Arctic Sunrise is seen as having disturbed the exploitation of the natural resources of the EEZ and enforcement jurisdiction in this regard prevails as long as the vessel is still inside the EEZ – as it would with regard to a fisheries violation – then the tribunal’s statement

103 For the continental shelf as mentioned in conjunction with Article 80, see also Elferink, ibid 274. 104 See Arctic Sunrise, merits (n 23) paras 326 et seq. 105 See J. Mossop ‘Protests against oil exploration at sea: lessons from the Arctic Sunrise arbitration’ (2018) 8 Victoria University of Wellington Legal Research Papers 60, 68. 106 An additional such zone had been declared around the Prirazlomnaya by the Russian authorities. See Arctic Sunrise, merits (n 23) para 82.

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that the Arctic Sunrise at the time of boarding was enjoying the freedom of navigation no longer stands.107 For the ‘hot pursuit’ aspect of the award, the tribunal’s views would still stand. But the fact that this case may not have been one of hot pursuit at all illustrates the difficulties facing the tribunal when one party chooses not to appear. The imbalance in argumentation before the tribunal and the apparently missed approaches to the issue, coupled with the tribunal’s very limited justification for its views on arguably controversial points, all indicate that Arctic Sunrise should carry very limited weight for a future tribunal faced with the same questions. For states, Arctic Sunrise offers possibilities to influence the development of international law on hot pursuit. It shows that there is a clear movement towards accepting radio as a means of signalling; states may, through practice, either agree with or object to this development. Likewise for the other aspects of hot pursuit commented upon by the tribunal: states may influence the questions of determination of location and non-interruption. For coastal states, it is particularly important to have agreed views on interruption, in light of the harsh onus placed on them by the tribunal. That said, in many ways Arctic Sunrise has shown that the content of the right of hot pursuit is in flux – as indeed is the question of whether the right of hot pursuit is even applicable.

107 Ibid para 330. Whether the Arctic Sunrise did encroach on the exploitation of the natural resources of the zone and other sides of this assessment falls outside the scope of this chapter.

10. Historic rights Seokwoo Lee and Lowell Bautista 1. INTRODUCTION In international law, a state acquires historic rights of title over territories through a process of historical consolidation involving a long period of continuous and undisturbed exercise of sovereignty.1 A successful claim of historic rights requires effective occupation and the acquiescence of the international community.2 Such rules pertaining to the acquisition and loss of territory have developed largely from state practice, customary international law3 and the practice of international courts and tribunals.4 The United Nations Convention on the Law of the Sea (UNCLOS)5 constitutes the primary legal framework for addressing maritime claims. However, the legal regime of historic rights, historic title or historic waters is not defined in UNCLOS. The Convention does not contain specific provisions which clarify, explain or elaborate the constitutive elements which define historic

1 R.Y. Jennings, The Acquisition of Territory in International Law (Manchester University Press1963) 16–28. See also Y.Z. Blum, Historic Titles in International Law (Martinus Nijhoff 1965); Y.Z. Blum, ‘Historic Rights’ in R. Bernhardt (ed), Encyclopedia of Public International Law (North-Holland Publishing Company 1984) 120. 2 G. Triggs, International Law: Contemporary Principles and Practices (Lexis Nexis 2011) 271–343. 3 The UNCLOS Preamble affirms that matters not regulated by the Convention continue to be governed by the rules and principles of general international law. See also Juridical Regime of Historic Waters, Including Historic Bays (UN Doc A/ CN.4/143, 9 March 1962) para 54; Case Concerning the Continental Shelf (Tunisia/ Libyan Arab Jamahiriya), Judgment of 24 February 1982, ICJ Reports 1982, 18 (para 100). 4 I. Brownlie, Principles of Public International Law (Oxford University Press 2008) 142. 5 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 3.

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rights, historic waters or historic bays;6 but it recognizes the legal regime of historic rights over waters.7 The question of historic rights in the law of the sea was considered in the decision of the arbitral tribunal set up in accordance with Annex VII of UNCLOS in the South China Sea Arbitration, filed by the Philippines against the People’s Republic of China on 12 July 2016.8 The landmark decision – ground-breaking in many respects – clarified, among other things, historic rights and historic titles in the law of the sea; the contemporary relevance and validity of historic claims; and, importantly, the relationship between UNCLOS and historic rights. The arbitral tribunal categorically declared China’s ‘nine-dash line’ claim to be incompatible with UNCLOS, which supersedes and nullifies any historic rights that may have existed prior to UNCLOS.9

2.

HISTORIC RIGHTS IN THE LAW OF THE SEA

Sovereignty over waters claimed on historic grounds is exceptional in nature, justified on the basis of a long period of exercise of jurisdiction without opposition from other states.10 It has been argued that a state may acquire historic title to a maritime area on the basis of the following factors: (1) the exercise of authority over the area by the state claiming the historic right; (2) the continuity of this exercise of authority; and (3) the attitude of states.11 In addition,

6 R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd edn, Manchester University Press 1999) 43; G. Yuan, ‘On Historic Rights under the Law of the Sea’ 2008 1 China Oceans Law Review 190–217, 190. 7 Churchill and Lowe, ibid 41–45, 455–56; D.R. Rothwell and T. Stephens, The International Law of the Sea (Hart Publishing 2010) 47–9, 454–55. 8 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Award of 12 July 2016. The award is available on the website maintained by the Permanent Court of Arbitration, www​ .pcacases​ .com/​ web/​ view/​ 7, last accessed 10 December 2019. The Tribunal was composed of Judge Thomas A. Mensah (Presiding Arbitrator), Judge Jean-Pierre Cot, Judge Stanislaw Pawlak, Professor Alfred H.A. Soons, and Judge Rüdiger Wolfrum. 9 South China Sea Arbitration, ibid paras 261, 278 and 1203 (B)(2). See also paras 232, 246, 252, 262 and 263. 10 Juridical Régime of Historic Waters, Including Historic Bays (n 3) paras 39–42. See also Historic Bays: Memorandum by the Secretariat of the United Nations (UN Doc. A/CONF.13/1), 10; Fisheries Case (United Kingdom v Norway), Judgment of 18 December 1951, ICJ Reports 1951, 116, at 130–31; South China Sea Arbitration (n 8) para 267. 11 Juridical Regime of Historic Waters, Including Historic Bays (n 3) para 80.

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a fourth element as a basis of a historic title claim has also been suggested: aspects relating to economic necessity and national security.12 However, the nature of the concept of historic rights poses both practical and conceptual challenges. The confusion is due in part to the complex mosaic of amorphous and undefined terms relating to historic rights: historic waters, historic title, historic claims and historic bays.13 Clive Symmons, who has written extensively on the topic, argues: The term ‘historic rights’ is broader than that of historic waters. It implies, in its widest sense, a State claiming to exercise certain jurisdictional rights in what usually are international waters, most particularly fishing rights. Such rights must, however, basically satisfy the same, or at least similar, supposed requirements for establishing ‘historic waters’ claims per se, particularly those of continuous and long usage with the acquiescence of relevant other States.14

According to Tanaka, historic rights pertain to those rights that exist ‘over certain land or maritime areas acquired by a state, through a continuous and public usage from time immemorial and acquiescence by other states, although those rights would not normally accrue to it under general international law’.15 Despite the convoluted nomenclature, what is apparent is the distinction between ‘historic title’ and ‘historic rights’. As Dupuy and Dupuy point out, ‘[o]ne should…distinguish between a historic “title” of full territorial sovereignty (whether or not consolidated by state conduct) and historic “rights”, which may include rights falling short of sovereignty, such as exceptional fishing rights or the right of passage.’16 In the law of the sea, the term ‘historic rights’ is associated with the narrower category of ‘historic waters’.17 Historic waters, according to Leo Ibid para 81. As Keyuan has noted, ‘there are a number of legal terms in the historical context, such as “right”, “title” and “consolidation”, which may cause confusion. It is even more complicated when one tries to explore so-called historic rights in the maritime area, particularly when the term is used along with other related terms such as historic waters and historic bays.’ See Z. Keyuan, ‘Historic Rights in International Law and in China’s Practice’ 32 Ocean Development & International Law 149–68, at 149. See also Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (n 3) para 100. 14 C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (Martinus Nijhoff 2008) 4, citing Y.Z. Blum, ‘Historic Rights’ in Encyclopaedia of Public International Law (North-Holland Publishing Company 1995), 710–15. 15 Yoshifumi Tanaka, Predictability and Flexibility in the Law of Maritime Delimitation (Hart Publishing 2006) 299. 16 F. Dupuy and P.-M. Dupuy, ‘A Legal Analysis of China's Historic Rights Claim in the South China Sea’ (2013) 107 American Journal of International Law 124–141, 137. 17 Ibid. 12 13

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Bouchez, ‘are waters over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time, exercises sovereign rights with the acquiescence of the community of States’.18 While the concept has not been much elaborated in jurisprudence, a few cases have affirmed the historic character of certain bodies of water.19 A ‘definition’ of historic waters is to be found in the 1951 Fisheries Case, in which the International Court of Justice (ICJ) held that historic waters are ‘waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title’.20 Essentially, then, ‘historic waters’ in the context of the law of the sea refers to a sovereignty claim. ‘Historic title’, used most frequently to refer to historic bays, actually applies to all waters which can be included in the maritime domain of a state.21 In the words of Fitzmaurice, ‘there seems to be no ground of principle for confining the concept of historic waters merely to the waters of a bay…a claim could equally be made on an historic basis to other waters’.22 According to a 1962 UN study on the legal regime of historic waters, historic rights: are claimed not only in respect of bays, but also in respect of maritime areas which do not constitute bays, such as the waters of archipelagos and the water area lying between an archipelago and the neighbouring mainland; historic rights are also claimed in respect of straits, estuaries and other similar bodies of water.23

From the records of the First and Second UN Conferences on the Law of the Sea (UNCLOS I, UNCLOS II), it appears that the issue of historic rights has

18 L.J. Bouchez, The Regime of Bays in International Law (A.W. Sythoff 1964) 199. 19 See, for example, The North Atlantic Coast Fisheries Case (Great Britain v United States), Award of 7 September 1910, RIAA XI (1910), 167; Fonseca (El Salvador v Nicaragua), Central American Court of Justice, Judgment of 9 March 1917 (1917) 11 American Journal of International Law 674; Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (n 3); Case Concerning the Land, Island and Maritime Frontier Dispute between Honduras and El Salvador, Judgment of 11 September 1992, ICJ Reports 1992, 35. 20 Fisheries (n 10) 130. 21 Juridical Régime of Historic Waters, Including Historic Bays (n 3) para 34. 22 G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice 1951–54: Points of Substantive Law’ (1954) 31 British Yearbook of International Law 371–429, 381. 23 Historic Bays: Memorandum by the Secretariat of the United Nations (n 10) 2. The classical definition by the ICJ is more restrictive. The court in Fisheries (n 10) 132 defined ‘historic waters’ as ‘waters which are treated as internal waters but which would not have that character were it not for the existence of an historic title’.

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always been closely connected to the economic interests and concerns (fishing privileges in particular) of coastal as well as flag states. With regard to historic rights, UNCLOS I focused on the delimitation of the territorial sea relating to historic bays and adopted the draft article prepared by the International Law Commission.24 At UNCLOS II, the concept of historic rights was again recognized by the majority of states, but no new agreement resulted. At the Third UN Conference on the Law of the Sea (UNCLOS III), states did not discuss historic rights, historic waters or historic bays in any great detail.25 In the end, a few provisions of UNCLOS explicitly referred to historic bays and title, and those basically came to be based upon the 1958 Convention on the Territorial Sea and the Contiguous Zone.26 First, according to Article 10(6) of UNCLOS, which mirrors Article 7(6) of the 1958 Convention: ‘The foregoing provisions [on various aspects related to the territorial sea] do not apply to so-called “historic” bays, or in any case where the system of straight baselines provided for in article 7 is applied.’ According to Article 15 of UNCLOS, which reflects Article 12(1) of the 1958 Convention: Where the coasts of two States are opposite or adjacent to each other, neither of the two States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two states in a way which is at variance therewith. (emphasis added).

Also, Article 46 of UNCLOS, defining an ‘archipelago’, makes reference to historical facts in the assessment of what an archipelago is. And – important in relation to the South China Sea Arbitration – according to Article 298, paragraph 1 (litra a i) of UNCLOS: When signing, ratifying or acceding [the Convention], a State may…declare in writing that it does not accept [compulsory procedures entailing binding decisions] with respect to disputes concerning the interpretation or application of articles 15, 74 and 83 relating to sea boundary delimitations, or those involving historic bays or titles. . .

Rothwell and Stephens, The International Law of the Sea (n 7) 39. Ibid 41. 26 516 UNTS 205. 24 25

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CASE LAW

Prior to the South China Sea Arbitration, several international courts and tribunals dealt with the issue of historic rights in the context of the law of the sea­. Their judgments can provide valuable insights into the complexities associated with the concept and the practical difficulties of its application. The following discussion begins by emphasizing case law as it relates to the formation and acquisition of historic rights. Jurisprudence confirms that the law of the sea acknowledges historic rights, given that certain requirements are fulfilled, including exclusivity on the part of the claiming state. Second, focus is placed on the conduct of states as a key factor for the approval of historic rights, including the recognition or lack of protest by other states. Although historic rights have not been a decisive factor in maritime boundary delimitation cases – including cases involving the delimitation of the continental shelf and the exclusive economic zone27 – historic rights appear to remain relevant in such cases, and have been relied upon by parties in their submissions and arguments before courts and tribunals.28 3.1

Formation and Acquisition of Historic Rights

International law recognizes the acquisition of territorial sovereignty through occupation, accretion, cession, conquest and prescription.29 Acquisitive prescription which is based on ‘immemorial possession’ applies to historic waters ‘where the original title is uncertain and is validated by long possession’.30 The application of prescription to historic waters, however, must be approached with caution, because historic waters are ‘waters which one State claims to be part of its maritime territory while one or more other States may contend that they are part of high seas’.31 Thus, it has been argued, in order for acquisitive prescription to arise, possession must be exercised a titre de souverain; moreover, it must be public, peaceful and persistent.32 27 T. Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (Cambridge University Press 2015) 485. 28 See Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits, Judgment, ICJ Reports 2001, 40, at 112–13 (para 236); Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) (n 3), 73–4 (para 100); In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v United Kingdom), Award of 18 March 2015, RIAA XXXI (2018), 361 (paras 124 and 430). 29 Brownlie, Principles of Public International Law (n 4) 127–28. 30 Juridical Regime of Historic Waters, Including Historic Bays (n 3) paras 63–6. 31 Ibid para 65. 32 Brownlie, Principles of Public International Law (n 4) 148–50.

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In Libya/Tunisia Continental Shelf, the regime of historic rights was based on acquisition and occupation,33 with Tunisia basing its historic rights claim on the ‘long established interests and activities’ of its fishing population over the seabed and waters of the Mediterranean Sea.34 The ICJ did not undertake any thorough discussion regarding historic fishing rights, but it recognized that ‘historic titles must enjoy respect and be preserved as they have always been by long usage’.35 In North Atlantic Coast Fisheries it was maintained that ‘a servitude [which in this case was manifested through historic fishing] in international law predicates an express grant of a sovereign right’.36 However, such possession must also be exclusive. In both the aforementioned case37 and Eritrea v Yemen, the tribunals denied claims to historic rights, mainly on grounds of the non-exclusivity of fishing rights.38 No historic title was established over the maritime areas because there were multiple states sharing access to them unopposed.39 The requirement of exclusivity was further established in Qatar v Bahrain. Here the tribunal recognized that although the pearling industry in the Gulf area was historically carried out by Bahraini fishermen, it was traditionally considered a ‘right which was common to the coastal population’ and therefore, ‘never…led to the recognition of an exclusive quasi-territorial right to the fishing grounds’.40 In contrast, the ICJ held in the 1951 Fisheries case that Norway was able to prove the existence of a historic title to the disputed maritime areas as Norwegian fishermen had exploited the fishing grounds ‘from time immemorial’; and that ‘British fishermen refrained from fishing in Norwegian coastal waters for a long period, from 1616–1618 until 1906’.41 Thus, it seems clear that historic title over maritime areas may be formed by fishing activities, but only if such fishing grounds were exclusive to the fishermen of the claiming state.

Case Concerning the Continental Shelf (n 3) para 100. Ibid para 98. 35 Case Concerning the Continental Shelf (n 3) para 100. 36 North Atlantic Coast Fisheries (n 19) 181. 37 Ibid 184. 38 Award of the Arbitral Tribunal in the second stage of the Proceedings between Eritrea and Yemen (Maritime Delimitation), Award of 17 December 1999, RIAA XXII (1999), 335–410 (paras 38 and 66). 39 Award of the Arbitral Tribunal in the first stage of the Proceedings between Eritrea and Yemen (Territorial Sovereignty and Scope of the Dispute), Decision of 9 October 1996, RIAA XXII (1999), 209–332 (paras 126 and 128). 40 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain), Merits, Judgment, ICJ Reports 2001, 40, at 236. 41 Fisheries (n 10) 124. 33 34

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From case law, it also appears that historic rights must meet the test of intertemporal law: ‘it needs to be shown that these rights have been continuously exercised until present times.’42 This requirement of continuous exercise was not fulfilled in the 1984 Gulf of Maine case.43 Thus, historic title cannot be said to have been created once the ‘effective exercise of sovereignty’ has been interrupted or other states act against it.44 While the ICJ in Fisheries found that the historic rights of Norway over the disputed fishing grounds included sovereignty based on historic title, that is not always the case. A state may be recognized as having historic rights over a particular area, but not territorial sovereignty. Such was the case in Eritrea v Yemen, where the tribunal concluded that while the southern Red Sea had become historical fishing grounds, the maritime area’s openness for fishing, the unrestricted traffic and the ‘common use of the islands by the populations of both coasts’ created what the tribunal described as a form of ‘servitude internationale’. 45 Such servitude, while arising out of a historic right, fell short of sovereignty, since the said historic rights had accrued in favour of both disputing states. A similar conclusion is found in the abovementioned North Atlantic Coast Fisheries case. The United States argued that the treaty between the United Kingdom and itself, granting US citizens ‘forever…the liberty to take fish of every kind’ from the southern coast of Newfoundland, constituted an international servitude in its favour, thereby negating any right for the United Kingdom to regulate the fishing activity of US citizens on the said coast.46 The tribunal disagreed, holding that the right of the United States to fish was solely an economic right, not an attribute of sovereignty. Contending otherwise would be inconsistent with the ‘historical basis of the American fishing liberty’.47 These ‘historic fishing rights’ merely granted the liberty to fish over the coast of Newfoundland because they were primarily grounded on the fact that Americans, while still under British rule, had enjoyed fishing rights concurrently with British citizens.48 The tribunal then described historic fishing

42 Cottier, Equitable Principles of Maritime Boundary Delimitation: The Quest for Distributive Justice in International Law (n 28) 487. 43 Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America) Judgment of 12 October 1984, ICJ Reports 1984, 246 (paras 233 and 235). 44 Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (n 14) 151–2 and 161–2. 45 Eritrea v Yemen (n 40) para 126. 46 North Atlantic Coast Fisheries (n 19) 173, at 181. 47 Ibid 181 and 183. 48 Ibid 183–84.

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rights as a ‘a purely economic right’ which do not entail sovereignty.49 The distinction, then, is clear: historic rights may or may not include sovereignty;50 whereas historic title is closely linked to sovereignty.51 3.2

State Conduct

Opposition, failure or lack of a reaction of relevant states to the actions of the claiming states is a decisive factor in determining the existence of historic rights.52 This is comparable with the general requirement that possession must be public, peaceful and uninterrupted in cases of acquisitive prescription. As stated by the Chamber of the Court in Gulf of Maine, ‘acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as consent’.53 In Fisheries, this was described as the ‘general toleration of foreign States’.54 Conversely, the presence of opposition from foreign states interferes with the ‘peaceful and continuous’ possession of the state claiming historic rights and may effectively prevent its formation.55 Thus, unopposed and uninterrupted possession of parts of the sea over a certain period of time is one factor in the acquisition of historic title.56 A state having a potential historic title over a particular territory may nevertheless lose title because of subsequent inaction as regards the possession of the territory by another state.57 Such was the case in Pulau Batu Puteh – albeit over land territory – where Malaysia lost its territorial sovereignty over the island of Pedra Branca, despite having historic title, because it had failed to take action against the occupation of the island by Singapore and its predecessors.58 The investigation of marine accidents, control over visits, installation of naval communication equipment and reclamation plans by Singapore and Ibid. X. Ma, ‘Historic Title over Land and Maritime Territory’ (2017) 4 Journal of Territorial and Maritime Studies 31–46, at 34. 51 Y. Tanaka, ‘Reflections on Historic Rights in the South China Sea Arbitration (Merits)’ (2017) 32 The International Journal of Marine and Coastal Law 458, 464. 52 Brownlie, Principles of Public International Law (n 4) 149. 53 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States), Judgment, ICJ Reports 1983, 246, at 305. 54 Fisheries (n 10) 138. 55 Y. Wang, ‘Rethinking the Concept of Historic Rights in International Law’ (2019) 7 Korean Journal of International and Comparative Law 153, 164. 56 M. Shaw, International Law (Cambridge University Press 2008) 507. 57 Island of Palmas (United States v The Netherlands), RIAA II (2006), 829–71, at 831 and 838. 58 Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge (Malaysia v the Republic of Singapore), Judgment, ICJ Reports 2008, 12. 49 50

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the United Kingdom (as predecessor to Singapore) were considered by the ICJ as ‘acts à titre de souverain’;59 the ICJ concluded that sovereignty over the disputed island had passed to Singapore because of the aforementioned acts and the failure of Malaysia and its predecessors to respond accordingly.60 However, the ICJ did not reach the same conclusion with regard to Middle Rocks, a maritime feature located a few nautical miles away from Pedra Branca island.61 It found that: none of the conduct reviewed in the preceding part of the Judgment which has led the Court to the conclusion that sovereignty over Pedra Branca/Pulau Batu Puteh passed to Singapore or its predecessor before 1980 has any application to the [case] of Middle Rocks.62

Nevertheless, such scenario can be avoided, as seen in the case of Chamizal.63 In this territorial dispute between the United States and Mexico, the tribunal found that the former had failed to acquire title over the disputed border territory by means of prescription because Mexico had effectively interfered by constantly challenging and questioning the former’s occupation through diplomatic agents.64 Therefore, applying the tribunal’s decision, it would seem that a state need not physically possess the disputed territory or file an official action against another state for an international dispute settlement body to prevent the abandonment of a title. Diplomatic protests, as long as they are consistent, are sufficient to impede the acquisition of title to a territory by another state.65

4.

THE SOUTH CHINA SEA ARBITRATION

On 12 July 2016, the arbitral tribunal constituted under Annex VII of UNCLOS issued its award in the dispute between the Philippines and China over maritime claims in the South China Sea. The case aimed to resolve the decades-old dispute between the two countries. The Philippines sought, among other things, a declaration from the tribunal that China’s rights and entitlements in the South China Sea would have to be based on UNCLOS Ibid para 274. Ibid para 276. 61 Ibid para 278. 62 Ibid paras 289 and 290. 63 The Chamizal Case (Mexico/USA), Award of 15 June 1911, RIAA XI (2006), 309. 64 Ibid 328–9. 65 Brownlie, Principles of Public International Law (n 4) 149. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (n 14) 72–3. 59 60

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and not on any claim to historic rights. Specifically, the Philippines held that China’s claim to rights within the ‘nine-dash line’ marked on Chinese maps was without lawful effect to the extent that they exceeded the entitlements to which China would be permitted under UNCLOS.66 Thus, the Philippines first argued that any rights China had were made void by its accession to UNCLOS. Second, the Philippines argued that China had never had any historic rights in the South China Sea.67 On these issues, the arbitral tribunal unanimously decided in favour of the Philippines.68 In a 500-page award, it applied the rules of international law – principally UNCLOS, as well as other rules of international law which were not incompatible with the Convention.69 The arbitral tribunal categorically declared that China’s nine-dash line claim was incompatible with UNCLOS, including China’s historic rights over living and non-living resources in the South China Sea. Thus China did not, according to the tribunal, possess historic rights over the resources within the nine-dash line in areas within Philippine’s EEZ or continental shelf. In the tribunal’s view, China’s ratification of UNCLOS did not, however, ‘extinguish’ its historic rights in the waters of the South China Sea. Rather, China: relinquished the freedoms of the high seas that it had previously utilised with respect to the living and non-living resources of certain sea areas which the international community had collectively determined to place within the ambit of the exclusive economic zone of other States. At the same time, China gained a greater degree of control over the maritime zones adjacent to and projecting from its coasts and islands.70

South China Sea Arbitration (n 8) para 7. Ibid para 188. 68 Ibid paras 1202–3. 69 An extensive body of scholarly work explores various facets of the Award. See, for example, L. Bautista, ‘The South China Sea Arbitral Award amidst Shifting Philippine Foreign Policy’ (2018) 6 Korean Journal of International and Comparative Law 47–65; L. Bautista, ‘The South China Sea Arbitral Award: Evolving Post-Arbitration Strategies, Implications and Challenges’ (2018) 10 Asian Politics and Policy 178–89; K. Zou, ‘Historic Rights in the South China Sea Arbitration Case: A Preliminary Reflection’ (2016) 1 Asia Pacific Journal of Ocean Law and Policy 268–72; S. Kopela, ‘Historic Titles and Historic Rights in the Law of the Sea in the Light of the South China Sea Arbitration’ (2017) 48 Ocean Development and International Law 181–207; X. Ma, ‘Merits Award Relating to Historic Rights in the South China Sea Arbitration: An Appraisal’ (2018) 8 Asian Journal of International Law 16–23; Tanaka, ‘Reflections on Historic Rights in the South China Sea Arbitration (Merits)’ (n 51). 70 South China Sea Arbitration Award (n 8) para 271. 66 67

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Scope of the Exception in Article 298 of UNCLOS

On the matter of historic rights, the Philippines requested the tribunal to adjudge and declare that: 1. China’s maritime entitlements in the South China Sea, like those of the Philippines, may not extend beyond those expressly permitted by [UNCLOS]; 2. China’s claims to sovereign rights jurisdiction, and to ‘historic rights’, with respect to the maritime areas of the South China Sea encompassed by the so-called ‘nine-dash line’ are contrary to the Convention and without lawful effect to the extent that they exceed the geographic and substantive limits of China’s maritime entitlements expressly permitted by UNCLOS.71

In its award on jurisdiction, the tribunal had characterized these submissions as reflecting a ‘dispute concerning the source of maritime entitlements in the South China Sea and the interaction of China’s claimed “historic rights” with the provisions of the Convention’.72 Also, the tribunal emphasized that a dispute concerning the interaction of UNCLOS with another instrument or body of law – including the question of whether rights arising under another body of law were or were not preserved by UNCLOS – was a dispute concerning the interpretation and application of UNCLOS.73 In its award on jurisdiction, the tribunal, however, also held that the: final determination on its jurisdiction with respect to the Parties’ dispute was dependent on the nature of any historic rights claimed by China and whether they are covered by the exclusion from jurisdiction in Article 298 of the Convention for disputes concerning ‘historic bays or titles’.74

Importantly, the tribunal clarified the distinction between the concept of historic rights and historic title: The term ‘historic rights’ is general in nature and can describe any rights that a State may possess that would not normally arise under the general rules of international law, absent particular historical circumstances. Historic rights may include sovereignty, but may equally include more limited rights, such as fishing rights or rights of access, that fall well short of a claim of sovereignty. ‘Historic title’, in contrast, is used specifically to refer to historic sovereignty to land or maritime areas. ‘Historic waters’ is simply a term for historic title over maritime areas, typically exercised either as a claim to internal waters or as a claim to the territorial sea, although ‘general international law…does not provide for a single ‘régime’ for ‘historic

Ibid para 112. Ibid para 170 73 Ibid. 74 Ibid para 171. 71 72

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waters’ or ‘historic bays’, but only for a particular régime for each of the concrete, recognised cases of ‘historic waters’ or ‘historic bays’.’ Finally, a ‘historic bay’ is simply a bay in which a State claims historic waters.75

The tribunal held that the drafters of UNCLOS were aware that the reference to ‘historic titles’ in Article 298 is a reference to claims of sovereignty over maritime areas derived from historical circumstances. Accordingly, Article 298 was not intended to exclude also jurisdiction over historic rights short of title – a broad and unspecified category of other ‘historic rights’ falling short of sovereignty. Was China’s claim, in the view of the tribunal, a claim to historic title? In its award on jurisdiction, the tribunal had noted: ‘China has never expressly clarified the nature and scope of its claimed historic rights.’76 However, the tribunal also noted that China’s unequivocal acceptance and respect of freedom of navigation and overflight enjoyed by all states in the South China Sea77 indicated that China did not consider the maritime areas enclosed by its nine-dash line to be equivalent to its territorial sea or internal waters.78 Thus, to the tribunal, China’s conduct was the dispositive proof that China’s claim was not one to historic title, but that it rather invoked a constellation of ‘historic rights’ in the South China Sea. Accordingly, the tribunal concluded that it had jurisdiction to consider the submissions of the Philippines.

75 Ibid para 225. This view is shared by commentators, who also differentiate between historic title as being ‘sovereignty-based rights’ as opposed to non-sovereign type historic rights falling short of title. See C.R. Symmons, ‘First Reactions to the Philippines v China Arbitration Award Concerning the Supposed Historic Claims of China in the South China Sea’ (2016) 1 Asia-Pacific Journal of Ocean Law and Policy 260–67, at 262–63; C.R. Symmons, Historic Waters in the Law of the Sea: A Modern Re-Appraisal (n 14) 5; Z. Keyuan, ‘China’s U-Shaped Line in the South China Sea Revisited’ (2012) 43 Ocean Development & International Law 18–34, at 23. 76 South China Sea Arbitration (n 8) para 180. 77 Ibid para 212. See also Position Paper of the Government of the People’s Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines, 7 December 2014, para 28, www​.fmprc​ .gov​.cn/​mfa​_eng/​zxxx​_662805/​t1217147​.shtml, last accessed 10 December 2019. 78 South China Sea Arbitration (n 8) paras 213–14. See also Z. Gao and B.B. Jia, ‘The Nine-Dash Line in the South China Sea: History, Status, and Implications’ (2013) 107 American Journal of International Law 98–124, at 108–9, arguing that ‘[the] nine-dash line, in the light of that body of national law, is not intended to assert a historic title of sovereignty over the sea areas, as enclosed by the lines, beyond what is allowed under international law’.

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Merits of the Philippines’ Submissions

The tribunal was then basically faced with the question of whether China’s entitlements in the South China Sea were limited to those provided for in UNCLOS, and whether any claims to historic rights within the area of the ‘nine-dash line’ in excess of UNCLOS’s rights were prohibited. In other words: does UNCLOS allow the preservation of historic rights to resources which are at variance with UNCLOS and have been established anterior to its entry into force?79 In addressing the question of whether UNCLOS allows the preservation of rights to resources which are at variance with the Convention and were established prior to its entry into force, the tribunal first applied Articles 311 and 293(1) – both of which mirror the general rules of international law concerning the interaction of different bodies of law.80 The tribunal further relied upon Articles 30(2) and 30(3) of the Vienna Convention on the Law of Treaties (VCLT), according to which, as between treaties, ‘the later treaty will prevail to the extent of any incompatibility, unless either treaty specifies that it is subject to the other, in which case the intent of the parties will prevail’.81 Importantly, the tribunal found that: no article of the Convention expressly provides for or permits the continued existence of historic rights to the living or non-living resources of the exclusive economic zone [and] nothing in the Convention expressly provides for or permits a State to maintain historic rights over the living and non-living resources of the continental shelf, the high seas, or the Area.82

The question for the tribunal was therefore whether UNCLOS had in fact intended the continued operation of historic rights, and thus that China’s claims should not be considered incompatible with UNCLOS.83 Relying on the text of UNCLOS, the tribunal found the Convention to be clear in according sovereign rights to the living and non-living resources of the EEZ to the coastal state alone. The tribunal referred to Articles 56, 58, 62 and 77, and held that the very notion of sovereign rights over living and non-living resources ‘is generally incompatible with another State having historic rights to the same resources, in particular if such historic rights are considered exclusive, as China’s claim to historic rights appears to be’.84 Thus, South China Sea Arbitration (n 8) paras 233 and 235. Ibid para 237. 81 Ibid. 82 Ibid para 239. 83 Ibid. 84 Ibid para 243. 79 80

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as UNCLOS includes provisions expressly setting out the rights of other states and pays attention to the rights of other states in, for example, the allocation of any excess catch in the EEZ, this precludes the possibility that UNCLOS intended for other states to have any other rights (ie, historic rights) in the EEZ or on the continental shelf. With respect to the context of the treaty terms, the tribunal first referred to the ‘system of maritime zones’ created by UNCLOS, which was intended to be comprehensive and to cover any area of sea or seabed.85 Beyond that system, in the view of the tribunal, there is no room for historic rights. Second, the tribunal referred to both the Preamble as the context for limiting exceptions to UNCLOS and its Article 309, which provides that ‘[n]o reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention’.86 Importantly, too, the tribunal held that UNCLOS: does not include any express provisions preserving or protecting historic rights that are at variance with the Convention. On the contrary, the Convention supersedes earlier rights and agreements to the extent of any incompatibility. The Convention is comprehensive in setting out the nature of the exclusive economic zone and continental shelf and the rights of other States within those zones. China’s claim to historic rights is not compatible with these provisions.87

Accordingly, the tribunal ruled that the wording and context of UNCLOS were clear, and there was no ambiguity in superseding any historic rights that a state may once have had in the areas that now form part of the EEZ and continental shelf of another state.88 The tribunal thereby basically demonstrated the dominance of the UNCLOS treaty regime vis-à-vis essentially customary international law.89 If there was no ambiguity, there was also no need to resort to supplementary means of treaty interpretation as set out in Article 32 of the VCLT.90 However – due to the ‘sensitivity of the matters at issue’91 – the tribunal found reason to bring in other means of treaty interpretation for the purpose of underpinning its conclusion that UNCLOS supersedes any historic rights that China may once have had in the disputed maritime areas. Notably, the tribunal recalled the origin of and purpose behind the UNCLOS provisions on the EEZ and the

Ibid para 245. Ibid. 87 Ibid para 246. 88 Ibid para 247. 89 Symmons, ‘First Reactions to the Philippines v China Arbitration Award Concerning the Supposed Historic Claims of China in the South China Sea’ (n 7) 261. 90 South China Sea Arbitration Award (n 8) para 247. 91 Ibid. 85 86

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continental shelf. The tribunal noted that, during the negotiations on the EEZ regime under UNCLOS III, China had been among the states that actively positioned itself as a defender of the rights of developing states, and had been ‘resolutely opposed to any suggestion that coastal States could be obliged to share the resources of the [EEZ] with other powers that had historically fished in those waters’.92 The tribunal noted this: not because the remarks of any particular State during the negotiation of a multilateral Convention are indicative of the content of the final treaty, but because China’s resolute opposition to any accommodation of historic fishing is largely representative of the position that prevailed in the final text of the Convention. The Tribunal also notes that China’s position, as asserted during the negotiation of the Convention, is incompatible with a claim that China would be entitled to historic rights to living and non-living resources in the South China Sea that would take precedence over the exclusive economic zone rights of the other littoral States. China never advanced such a claim during the course of the negotiations, notwithstanding that the South China Sea and the question of sovereignty over the Spratly Islands was raised on several occasions in exchanges between China and the Philippines during the work of the Seabed Committee and between China and Viet Nam during the Third UN Conference.93

To confirm its interpretation further, the tribunal also examined other international decisions that had addressed claims involving rights in the EEZ of another state, including Gulf of Maine, Fisheries Jurisdiction, Eritrea v Yemen and the Chagos Marine Protected Area Arbitration.94 Subsequently, the tribunal concluded that China’s claim to historic rights to the living and non-living resources within the nine-dash line was incompatible with UNCLOS: Accordingly, upon China’s accession to the Convention and its entry into force, any historic rights that China may have had to the living and non-living resources within the ‘nine-dash line’ were superseded, as a matter of law and as between the Philippines and China, by the limits of the maritime zones provided for by the Convention. This should not be considered exceptional or unexpected. The Convention was a package that did not, and could not, fully reflect any State’s prior understanding of its maritime rights. Accession to the Convention reflects a commitment to bring incompatible claims into alignment with its provisions, and its continued operation necessarily calls for compromise by those States with prior claims in excess of the Convention’s limits.95

94 95 92 93

Ibid para 251. Ibid para 252. Ibid paras 255–60. Ibid para 262.

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In ratifying UNCLOS, China had thus relinquished any claims to historic rights that were in excess of and incompatible with the Convention. And, as between the Philippines and China – and in responding to the Philippines’ submissions number 1 and 2 – the tribunal concluded that it is UNCLOS that now defines the scope of maritime entitlements in the South China Sea. Thus, China’s claims to historic rights with respect to the maritime areas of the South China Sea encompassed by the relevant part of the nine-dash line were therefore contrary to UNCLOS and without any lawful effect.

5.

CONCLUDING REMARKS

While UNCLOS acknowledges the existence of historic rights, it does not provide a definition; nor does it elaborate on the concept in any great detail. The absence of a clear explanation of the term has rendered its status largely undetermined, in turn leading to some extrication of the concept in arbitral and judicial decisions. Notably, international courts and tribunals have been reluctant to state categorically that historic rights cannot be formed outside the territorial waters. The difference in opinions regarding the concept of historic rights among scholars also indicates the need for further clarification. The South China Sea Arbitration served to clear much of the confusion. On the whole, the award represents continuity and does not significantly depart from previous case law on the matter. But the part of the award specifically concerned with historic rights must be recognized as contributing significantly to the development and clarification of a concept which is mentioned in only a few provisions in UNCLOS and which was not greatly discussed during the negotiating history of the Convention. Notably, the approach and consideration of the tribunal clarified certain key substantive elements of the concept. The point on which the South China Sea Arbitration brings most to the table, however, is in regard to the relationship between the concept of historic rights on the one hand and the legal framework of UNCLOS on the other. The award shows that historic rights claims that are incompatible or inconsistent with the rights provided for under UNCLOS are basically nullified once a state has acceded to or ratified the Convention. Moreover, in the event of such incompatibility, the UNCLOS treaty regime will prevail. Historic rights, while preserved under UNCLOS, will thus not deprive another state – here, the Philippines – of what has been lawfully allocated to it by the Convention. While the tribunal seems to have had no difficulty deciding in favour of the Philippines, one striking character of the award is the extent to which the tribunal carefully examines the Philippines’ submissions. To a large extent, the tribunal indeed relied on recognized means and methods of treaty interpretation codified in the VCLT. First and foremost, it started with the text of treaty, apparently ascribing great weight to the wording in UNCLOS. To a consid-

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erable extent, the tribunal also relied on the context. As a matter of ordinary interpretation, then, the tribunal held that UNCLOS precludes the possibility of other states having rights in the EEZ or on the continental shelf beyond what UNCLOS itself provides for. However, a striking element of the decision is also that the tribunal – clearly in light of the sensitivity of the matters at issue – deemed it warranted to recall other means of treaty interpretation as well. The tribunal thus also relied on the object and purpose of UNCLOS, the negotiating record and previous case law in concluding that China’s claim to historic rights to the living and non-living resources within the ‘nine-dash’ line was incompatible with UNCLOS to the extent that it exceeded the limits of China’s maritime zones as provided for by the Convention. In conclusion, given the tribunal’s faithful and extensive reliance on recognized methods of treaty interpretation, we may assume that this award, on the points relating to historic rights, will carry substantial precedential weight in future cases involving similar issues.

11. Reflections Øystein Jensen The oceans. The most resource-rich and strategically important area of our planet. Hundreds of years of inter-state combat and conflict. The focus of the largest multilateral conference in the history of the United Nations. A massive treaty with hundreds of provisions – and near-global support. Among its major achievements, a separate dispute resolution system with courts and tribunals, ready to act. All the pieces of the puzzle are now in place for international courts and tribunals to play a powerful role in fleshing out and in helping to keep the substantive rules of the United Nations Convention on the Law of the Sea (UNCLOS) abreast of new developments.1 Aside from the case law in relation to maritime boundary delimitation and the full case law relating to certain provisions of Part XV of UNCLOS, however, international courts and tribunals have hardly been overworked regarding the interpretation and application of the Convention’s provisions. The contributions in this book were not intended to cover all the areas that have been subject to judicial examination – but there are in fact relatively few (if any) other substantive provisions of UNCLOS than those addressed here which have become subject to significant interpretation, and where international courts and tribunals can be said to have influenced the development of the law. Perhaps this signals that, with the adoption of UNCLOS, the world community has achieved what was intended: order for the oceans; a clear set of rules and regulations, so that a state can foresee which activities can be undertaken with reasonable assurance that other states will acquiesce; less need for dispute resolution; and (thus far) a rather modest role for international courts and tribunals. Even though the drafters of UNCLOS had expected contention and decided to adopt a separate system for resolving maritime disputes, it was not a goal in itself that these institutions be used. So when courts and tribunals, a quarter of a century after UNCLOS entered into force, have not actually been used as much as might have been anticipated, this may be taken as a healthy sign, indicating that the Convention has generally functioned as intended.

1

United Nations Convention on the Law of the Sea 1982, 3 UNTS 1833. 262

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As should be clear from Professor Robin Churchill’s annual surveys of dispute settlement in the law of the sea in The International Journal of Marine and Coastal Law,2 the above is a fairly correct description of the larger picture: dispute settlement in relation to UNCLOS has so far had a limited impact on the further development of the Convention. However, there are certain fields and provisions within the framework of UNCLOS where courts and tribunals can already be said to have made valuable interpretive contributions. In some areas, the contribution of case law has been limited to targeted influence on discrete aspects of the law. Knut E. Skodvin’s analysis of the rules on hot pursuit (Chapter 9 in this volume) provides one example. The Arctic Sunrise case did not shape Article 111 in any fundamental manner; but it provided certain clarifications on detailed aspects – for instance, by pointing out the growing tendency to accept radio as a means of ‘signal’ in the context of Article 111(4) of UNCLOS.3 In many of those areas where courts and tribunals have had such targeted influence, however, unresolved questions remain. For instance, while courts and tribunals have made important clarifications with respect to some of the non-fisheries-related provisions relating to the exclusive economic zone, Robin Churchill (Chapter 3) holds that there are many whose meaning remains uncertain or ambiguous. Likewise, Sir Malcom Evans and Reece Lewis (Chapter 2) show that some of the most fundamental issues relating to the definition of an ‘island’ under Article 121 of UNCLOS are yet to be clarified. Other areas have experienced greater normative influence and development. Moira McConnell (Chapter 8) foresees that the topic of ship nationality and the ‘genuine link’ will be revisited in future cases because of the persistent challenges involved in applying Article 91 of UNCLOS to particular facts of ship registration. However, her analysis indicates that the International Tribunal for the Law of the Sea (ITLOS) has already issued important pronouncements on several intricate legal issues that need to be addressed before disputes relating to the arrest and detention of ships are brought to international adjudication – notably with regard to how the term ‘genuine link’ is to be interpreted. The same can be said of Part XI of UNCLOS. Aline Jaeckel (Chapter 7) finds that the Advisory Opinion of the Seabed Disputes Chamber has done much to guide the International Seabed Authority (ISA) towards sustainable

2 For the latest survey, see R. Churchill, ‘Dispute Settlement in the Law of the Sea: Survey for 2017’ (2018) 33 The International Journal of Marine and Coastal Law 653–82. 3 In the Matter of the Arctic Sunrise Arbitration (Netherlands v Russia), Award on the Merits (2015), RIAA XXXII (2019).

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development and has helped to develop the regime of the ISA.4 For instance, Jaeckel shows how the ISA, in its finding on what constitutes compensable damage and who may bring a case against a non-compliant sponsoring state, has ruled that various entities – including the ISA itself – may bring a claim if such damages arise. As UNCLOS is silent on this point, this finding is indeed remarkable, paving the way for an extensive liability regime under the Convention, including an institutional right to claim. And in arriving at these findings, the Seabed Disputes Chamber filled important regulatory gaps left by UNCLOS. Moreover, this indicates that influence and legal development on the basis of decisions by courts and tribunals are not necessarily dependent upon the binding nature of the pronouncements. Advisory opinions can also contribute to the further development of core legal aspects. As indicated by Andrew Serdy (Chapter 5), however, advisory opinions do not necessarily result in any major development of the law – quite the contrary. In his analysis of the impact of the Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission,5 he argues that only a contentious case can bring the clarification needed with respect to the content of the obligation of cooperation relating to transboundary fish stocks. Perhaps ITLOS has already faced the same dilemma as that confronting the International Court of Justice (ICJ) when an advisory procedure is activated: shall a dispute settlement body then see its function as merely like that of a ‘trusted advisor’ – or shall it ‘decide that the advisory role is a judicial one, requiring it still to function as a court’?6 The point here is that if a court or tribunal considers its advisory opinions to be similar to its judgments, there will be much greater expectations as to the judicial quality of those opinions, in terms of both process and outcome. If, on the other hand, the court or tribunal sees itself merely as a trusted adviser, the outcome of an advisory opinion might become rather anaemic. For an illustration of such potential weaknesses of advisory opinions, we need look no further than the Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons, in which the ICJ – on a straightforward question by the UN General Assembly – did not manage to come up with a yes or no answer.7

4 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, Advisory Opinion, ITLOS Reports 2011, 10. 5 Request for an Advisory Opinion by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion of 2 April 2015, ITLOS Reports 2015, 4. 6 F.D. Berman, ‘The Uses and Abuses of Advisory Opinions’ in N. Ando et al (eds), Liber Amicorum Judhe Shigeru Oda (Brill/Nijhoff 2002), Vol. 2, 809, 818–19. 7 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226.

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As indicated in the introductory chapter to this book, uniformity of jurisprudence was not seen as a high priority by the states negotiating UNCLOS. The resultant proliferation of potential adjudicators within the UNCLOS framework is one factor that might give rise to concerns about the well-known phenomenon of fragmentation of international law. Indeed, the Study Group of the International Law Commission on the Fragmentation of International Law has considered deviating institutional practices and, possibly, the loss of an overall perspective on the law, as potential results of fragmentation.8 While it might be considered a threat to coherent interpretation and application of UNCLOS that, for instance, ITLOS is called upon to deal with a specific matter one day and an arbitral tribunal is called upon to deal with a similar matter the next, several contributions in this volume have noted how courts and tribunals set up to deal with various provisions of UNCLOS have in fact made extensive use of precedent. Seokwoo Lee and Lowell Bautista (Chapter 10) show that the arbitral tribunal in the South China Sea Arbitration relied heavily on previous case law in concluding that China’s claim to historic rights to the living and non-living resources within its ‘nine-dash’ line was incompatible with UNCLOS to the extent that it exceeded the limits of China’s maritime zones as provided for by UNCLOS.9 Likewise, Knut E. Skodvin (Chapter 9) notes that the majority opinion in the Arctic Sunrise case made extensive reference to rulings from both the ICJ and ITLOS. Here we may recall the general trend in international litigation whereby international courts and tribunals often quote and cite previous decisions, even though international judgments are not binding precedents as per common law. The result is an established authoritative pattern – a jurisprudence constante – and some degree of certainty: the very opposite of fragmentation. Over time, this might contribute to the development of more firm and nuanced rules. The normative influence of a judgment (or advisory opinion) depends on how well reasoned the decision is. The chapters in this volume indicate surprising variations in the extent to which courts and tribunals make use of the rules of treaty interpretation codified in the Vienna Convention on the Law

8 See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, 11, https://​legal​.un​.org/​ilc/​documentation/​english/​a​ _cn4​_l682​.pdf, last accessed 10 December 2019. 9 In the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines and the People’s Republic of China, Award, 12 July 2016. The award is available on the website maintained by the Permanent Court of Arbitration, www​.pcacases​.com/​web/​view/​7, last accessed 10 December 2019.

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of Treaties (VCLT).10 Consequently, the pronouncements and conclusions of courts and tribunals are often ill founded in their reasoning, prompting doubts about their value as factors influencing the development of the law. Knut E. Skodvin (Chapter 9) notes that international tribunal rulings concerning hot pursuit have varied in interpretative style and detail. Reflecting on treaty interpretation, Robin Churchill (Chapter 3) is rather critical of how seldom ITLOS and other tribunals refer to the methods of interpretation set out in the VCLT. In some decisions, however, courts and tribunals have relied faithfully and extensively on recognized methods of treaty interpretation. Seokwoo Lee and Lowell Bautista (Chapter 10) make such an argument in relation to the award in the South China Sea Arbitration. And in Chapter 7, Aline Jaeckel demonstrated how the Seabed Disputes Chamber in its Advisory Opinion followed an evolutionary approach as well as a gap-filling approach, while also applying a systemic interpretation and making ample use of the VCLT. In such cases – when the pronouncements of courts or tribunals are well reasoned – it may be assumed that they are more influential on the development of the law and will bear greater precedential weight upon future cases involving similar issues. We cannot conclusively explain or quantify the extent to which any given judgment, award or advisory opinion has contributed to the development of UNCLOS. The role of a court or tribunal will always be context specific, depending, for instance, on whether it is faced with an area of UNCLOS that is open to further judicial development, as in the case of vague and ambiguous provisions. The specific case studies in this book clearly show that the normative influence of particular pronouncements has varied. In recent years, more general cause for concern has emerged as regards the influence that court and tribunal decisions can be said to have within the UNCLOS framework. As the United States refused to participate in the merits phase of the proceedings in Nicaragua,11 in Arctic Sunrise and in the South China Sea Arbitration, the defendants (the Russian Federation and China, respectively) refused to participate in the proceedings.12 No agents, counsel, advisers or other representatives were appointed by Russia or China in those arbitrations. In Arctic Sunrise, Knut E. Skodvin (Chapter 9) finds that this created an imbalance in argumentation before ITLOS, and that the resultant ruling was not perhaps as well founded in fact and law as it should have been. Indeed, if states parties refuse to participate in proceedings, and later also reject rulings by courts and tribunals that have had jurisdiction over the matter Vienna Convention on the Law of Treaties 1969, 1155 UNTS 331. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1986, 14. 12 See also S. Talmon, ‘The South China Sea Arbitration and the Finality of ‘Final’ Awards’ (2017) 1 Journal of International Dispute Settlement 1. 10 11

Reflections

267

at hand, the implications could be fundamentally more serious: the risk of undermining the original intent of the UNCLOS dispute settlement system – a highly distressing prospect with respect to the credibility and legitimacy of those pivotal rules and regulations.

Index access to surplus fish stocks 80–81, 84, 107–8, 136–7, 140 ad hoc tribunals 2–3 adjudicators 2–5, 265 Advisory Opinions generally competence of ITLOS to provide 141–2 law development, role in 264 IUU fishing, on (ITLOS) 137–8 background 122–5, 143–4 burden of proof 158–9 coastal state rights and duties 102, 133–7, 143 conservation and sustainable management 78–9, 84–5, 131–4, 154–6, 163–5 cooperation obligations 133–7, 143 criticism of 143–4, 165 flag state liability 129–30, 142, 158 flag state responsibility 90, 125–9, 143–4, 154–9, 162–3 importance of 141–3, 160, 162–3 international organizations' responsibility 130–31, 142 interpretation approach 160–61 jurisdiction of 144 legal status of 143, 162–3 standard of conduct 156–9 nuclear weapons, on (ICJ) 6, 264 seabed mining, on (ITLOS SDC) background 173–5 best environmental practices 176–7, 180–81 common heritage of mankind 169, 171, 178–9, 185, 188–9

compliance obligations of sponsoring states 175 developing states, treatment of 174, 179–82 direct obligations of sponsoring states 175–6, 180, 184 due diligence obligations of sponsoring states 175–8, 182–3, 186, 188–9 evolutionary approach 184–5 gap-filling approach 185–6 importance of 168, 176, 188–9, 263–4 liabilities of sponsoring states 175, 186 mining contractors, responsibilities of 178, 186 non-compliance, claims for 178–9, 185–6 precautionary approach 176–7, 182–4, 186 systemic interpretation 187 treaty interpretation rules, use of 187–8 Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas 1993 150–51 Anglo-French Continental Shelf 3, 42, 44 Anglo-Norwegian Fisheries 18 Anna 18 archipelago, definition 248 Arctic Sunrise artificial island, breach on 56 coastal state rights to non-living resources 51–4, 69–70 dispute resolution jurisdiction 79 due regard obligations 65–6, 69–70 hot pursuit 222–31, 235–43 268

Index

refusal to participate in proceedings 266 right to protest at sea 60–61, 69–70, 229–30, 240 safety zones 69–70 terrorism, prevention of 58 treaty interpretation 67, 69–70 Area, the 168–9 see also seabed mining artificial islands, installations or structures coastal state rights in EEZ 54–6, 69–71 customs controls, applicability 56 islands, influences on rights of 34–5 marine environment protection obligations, and 88–9 safety zones around 55, 69–71 scope, interpretation of 54–5 terrorism, prevention of 58 Atlanto-Scandian Herring 115–116 Barbados and Trinidad and Tobago 78–9 Black Sea 'Serpents' Island' 43–4, 49 boarding rights 58, 109 broadcasting, unauthorized 58 bunkering practices jurisdiction, judicial interpretation 212–13 rights of coastal states in EEZ 57–8, 67, 91–4, 114 rights of other states in EEZ 59–60, 67 Camouco (Panama v France) 100–101 Castaneda Formula 74 Chagos (MPA) 49, 62–5, 67–9, 71, 77–8, 103, 259 Chamizal 253 coastal states conservation and management obligations 156 fishing in EEZ 75–6, 79–80, 84–7, 110 shared fish stocks 81, 84–7, 105–6 transboundary fish stocks 105–8, 110, 135–6, 151–3 fish stocks, rights and obligations

269

access to surplus, provision of 80–81, 84, 107–8, 136–7, 140 conservation and management 75–6, 79–80, 84–7, 110 due diligence 87–8 effective measures 86 highly migratory species 77–8, 85–7, 106, 135–6 judicial interpretation 113–22 optimum utilization requirement 107–8 shared fish stocks 78–9 stocks of common interest 84–5 sustainability 84–5 transboundary fish stocks 105–8, 110, 135–6, 151–3 IUU fishing, and challenges for 149–50 cooperation, and 133–7, 143 rights and duties 102, 133–7, 143, 149–50, 155–6 mineral resources rights 51–4, 168 rights in EEZ 51–8, 71–2 artificial islands, installations and structures 54–6 balancing with rights of other parties 60–65 boarding 58, 1209 bunkering practices 57–8, 67, 91–4, 114 customs controls 56 enforcement powers 53 hot pursuit 58, 216, 220–43 interference, prevention powers 53–4, 70 living resources, regarding (see fishing in EEZ) non-living resources, regarding 51–4, 70, 72, 168 obligations, and 63–6, 69–70 piracy, prevention of 58 public interest/ necessity protection 56–7 seabed resources, regarding 51–4, 70, 72, 168 terrorism, prevention of 53, 58 unauthorized broadcasting, and 58

270

The development of the Law of the Sea Convention

Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) 100–101 common but differentiated responsibility 184 common heritage of mankind 169, 171, 178–9, 185, 188–9 conservation and management cooperation obligations 110–112, 133–7 endangered species 88 flag states, effective jurisdiction 163–4 IUU fishing 78–9, 84–5, 131–4, 154–6, 163–5 no harm principle 111, 165 Southern Bluefin Tuna 116–22, 155, 164, 183 sustainable management 84–5, 131–4, 154–6 transboundary fish stocks 149, 151–2 continental shelf hot pursuit 58, 216–17, 220–41, 239–42 interpretation of 8 mineral resources, rights over 168–9 overlap with EEZ 50 Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973 164 Convention on the High Seas 1958 191–2, 199, 220, 232 Convention on the Territorial Sea and the Contiguous Zone 1958 248 courts and tribunals, generally see also International Court of Justice; International Tribunal on the Law of the Sea (ITLOS) de novo decisions vs. precedent 9–10 international law, role in development of 6–9, 159–60 delimitation, of islands conventions, scope under 35–6 dependent islands 39–41 distortive capacity 41–5 entitlement, and 15 equidistance rules 38–40

interpretation of 15, 17–19 judicial interpretation 2, 15 mainland, priority of 15–16, 39–42, 45–6 natural prolongation and distance 35 overlapping entitlements 20, 35–41, 45–6 Romania-Ukraine dispute 3, 43–4 three-stage test 38 developing states historic fishing rights (see historic rights) seabed mining, participation in 174, 179–82 dispute settlement adjudicators 2–5, 265 choice of forum 4–5 de novo decisions vs. precedent 9–10 ITLOS, competence of 141–2, 173 law development, role in 263–4 limitations of 5 options for 3–5 refusal to participate in proceedings 266–7 seabed disputes 141–2, 173 state preferred procedures 4–5 treaty interpretation rules, role in 160–62, 187–8, 257–60, 265–6 trends 263 due diligence obligations coastal states, of 87–9, 158–9 conservation and management 87–9, 163–4 flag states, of 88, 128–9, 156–8, 163–4 IUU fishing, regarding 156–8, 163–4 Pulp Mills 157–8, 177, 183 seabed mining activities 175–8, 182–3, 186, 188–9 due notice provisions 63, 95–6 due regard obligations EEZ, in coastal state fishing rights 86, 155–6 dispute settlement 64–6, 74, 86 flag state responsibilities 90, 155–6, 162–3

Index

IUU fishing, and 155–6, 162–3 judicial interpretation 65–6, 69–72, 86, 90 economic life of its own island rights requirement, as 31–3 endangered species, international protection 88 Enrica Lexie 49 entitlement constitution vs. disruption 14–15 islands, to rights 14–15, 17–20, 34–5 artificial installations or modifications, and 34–5 EEZ status 17–18, 30, 33 high tide elevation 24–8 human habitation or economic life 25, 30–33 interpretation of 24–9 land rights, compared with 36–7 mainland, relationship with 17–19, 33, 36–7, 45–6 maritime jurisdiction 19–20, 23 natural formation 29–30, 34 overlapping entitlements, and 20, 35–41, 45–6 rocks, capacity to generate 17, 24–6 environmental impact assessments 177 European Court of Human Rights 7 European Union liability for flag state obligations regarding IUU 130–31, 142 exclusive economic zone (EEZ) background 48 coastal state rights 51–8, 71–2 artificial islands, installations and structures 54–6 balancing with rights of other parties 60–65 boarding 58, 109 bunkering practices 57–8, 67, 91–4, 114 customs controls 56 enforcement powers 53 hot pursuit 58, 216, 220–43 interference, prevention powers 53–4, 70

271

non-living resources, regarding 51–4 obligations, and 63–6, 69–70 piracy, prevention of 58 public interest/ necessity protection 53, 56–8 seabed resources 51–4, 70, 72, 168 terrorism, prevention of 53, 58 unauthorized broadcasting, and 58 contiguous zone, overlap with 50 criticisms of 48–9, 107 dispute settlement mechanisms due notice provisions 63, 95–6 due regard obligations 64–6, 74, 86 enforcement measures 82–3 general provisions 63–4, 73–4 limitations of 66, 108 prompt release 74–5, 82–3, 94–5, 99–102, 109, 114, 150 unattributed rights conflicts, for 66–7 fishing in (see fishing in EEZ) islands, right to generate EEZ 17–18, 30, 33 judicial interpretation 49, 67–71. criticism of 68–9 due regard 69–72, 86, 90 historic rights 70–71, 89, 257–8 interpretation of treaties, and 68, 71–2 right to protest at sea 60–61, 69–70, 229–30, 240 safety zones 69–70 seabed resources, interference with 70 other rights, scope of 66–7 regime overview 50–51 rights of other states 72 agreements and undertakings 62–3 bunkering practices 59–60, 67 customary international law, under 58–63 high seas freedom of navigation and overflight 58 naval maneouvers 72

272

The development of the Law of the Sea Convention

obligations, and 64–5 right to protest at sea by ships 60–61, 69–70, 229–30, 240 ship-to-ship transfers (STS) 59–60, 67 submarine cables and pipelines, laying 58, 72 Romania-Ukraine delimitation 3, 43–4 safety zone, hot pursuit in 222–31, 240–42 fish stocks coastal state rights and obligations access to surplus, provision of 80–81, 84, 107–8, 136–7, 140 conservation and management 75–6, 79–80, 84–7, 110 due diligence obligation 87–8 effective measures 86 highly migratory species 77–8, 85–7, 106, 135–6 judicial interpretation 113–22 optimum utilization requirement 107–8 shared fish stocks 78–9 stocks of common interest 84–5 sustainability 84–5 transboundary fish stocks (see transboundary fish stocks) UN Fish Stocks Agreement 109–13 Fisheries 1951 247, 250, 252 Fisheries Jurisdiction Spain v Canada 86–7, 116 UK v. Iceland/ Germany v. Iceland 113–14 fishing in EEZ coastal state rights 73–4 access for other states, criteria for granting 80 bunkering practices 59, 91–4, 114 conservation and management obligations 75–6, 79–80, 84–7, 110 due diligence obligations 87–9 due regard obligations, and 86, 155–6

duty not to bring vessel into unsafe port 96–7 enforcement jurisdiction 82–3, 92–9, 102 harvesting rights, exclusivity of 89–90 historic rights 83–4, 89, 257–8 judicial interpretation 77–9, 83–102 legislative jurisdiction 79–82, 89–92 limitations 75–7 marine mammals, exploitation 81 maximum sustainable yield (MSY) targets 80, 107 migratory species 77–8, 85–6, 106, 135–6 sedentary species 76–7 shared fish stocks 77–8 total allowable catch (TAC) obligations 80, 89 dispute categories 75–7 dispute settlement mechanisms bond or security requirement 82–3, 99–101 compulsory nature of conciliation 75–7 enforcement measures 82–3 generally 73–4 prompt release 74–5, 82–3, 94–5, 99–102, 109, 114, 150 shared fish stocks 81–2 tribunal jurisdiction 77–8 illegal, unreported and unregulated fishing (see illegal, unreported and unregulated fishing) judicial interpretation bunkering 91–4 confiscation 93–4, 98–9, 114 conservation and management obligations 84–7 due diligence obligations 87–9, 156–8 due regard 86, 90 effective measures 86 enforcement rules 92–9, 102 flag state obligations 84

Index

generally 77–9, 83–4 harvesting rights, exclusivity of 89–90 historic rights 83–4, 89, 257–8 international law, role of 96–7 IUU fishing 84–5, 90, 102 judicial review, role of 98–9 legislative jurisdiction 89–92 reasonableness vs. necessity 98–9 treaty interpretation 83 fishing vessels access to surplus fish stocks in EEZ 80–81, 84, 107–8, 136–7, 140 bunkering practices 59, 91–4, 114 confiscation, legality of 93–4, 98–9, 114 conservation obligations 150–51 detention of 147–8 duty not to bring into unsafe port 96 FAO Compliance Agreement and Code of Conduct 150–51 flag state jurisdiction 148–53 inspections 147–8 limitations 148–9 flag state registration 148–9 international conventions, non-applicability to 148–9 IUU fishing (see illegal, unreported and unregulated fishing) port state control mechanisms 149 prompt release rules 74–5, 82–3, 94–5, 99–102, 109, 114, 150 rights of passage 163 flag states foreign seafarers, representing 195–7, 200, 202 hot pursuit rights 58, 216–17, 222–39, 242 IUU fishing administrative, technical and social measures 146–8, 154–5 due diligence 156–8 due regard obligations 155–6, 162–3 effective jurisdiction obligations 146–8, 154–5, 163–4

273

international law compliance 154–5 liabilities for 129–30, 142, 158 responsibilities for 84, 90, 125–9, 143–4, 149–59, 162–3 standard of conduct 156–9 jurisdiction effective jurisdiction 146–8, 154–5, 163–4 fishing vessels, over 145–53 genuine link requirement (see genuine link requirement) nationality, interpretation of 95–6, 144–5, 190–91, 197–206 rationale for 144–5, 190–91 responsibilities 153–4 administrative, technical and social obligations 146–8, 154–5 conservation enforcement 109, 112–13, 150–53 due diligence 88, 128–9, 156–8, 163–4 due regard obligations 90, 155–6, 162–3 international law compliance 154 internationally wrongful acts 131, 158 investigations 147–8 IUU fishing, and 84, 90, 125–9, 149–59, 162–3 standard of conduct 156–9 transboundary fish stocks 150–53 ship registration abuse of process 206–7 beneficial link rule 145 closed registers 145–6 fishing vessels 148–9 genuine link requirement 8, 95–6, 144–5, 191–2, 197–208, 214, 263 locus standi 202–8, 211 nationality, and 95–6, 144–5, 190–91 rule and conditions for 144–6

274

The development of the Law of the Sea Convention

temporary registration 202–5 flags of convenience/ non-compliance 139, 145–6, 185 Food and Agriculture Organization (FAO) responsible fishing policies 150–51, 153 fragmentation 265 freedom of the high seas/ navigation bunkering, and 59–60, 67, 91–2 cooperation obligations 110–112 fish stocks management 77, 106–7, 110 fishing rights 109–13 judicial interpretation 114–15 hot pursuit 220–21 IUU fishing on high seas 163 naval manoeuvering and weapons exercises 72 right to protest at sea by ships 60–61, 65, 69–70, 229–30, 240 ship-to-ship transfer (STS) 59–60, 67 genuine link requirement judicial interpretation 8, 145, 213–15 development of 193–7 foreign seafarers, representing 195–7, 200, 202 Grand Prince 202–5, 213 international legal order for the high seas 195 Juno Trader 206–8 locus standi 202–8, 211 Norstar 212–13 right of flag state to make damages claims 200, 209–12 right to refuse recognition of flag state 198–202, 213–14 SAIGA No.2 196–202, 209–10, 212–14 ship nationality and registration 95–6, 144–5, 191–2, 197–208, 214, 263 Virginia G 208–13

legal conceptual difficulties with 192–4 Germany v. Iceland see Fisheries Jurisdiction good faith obligations 165 Grand Prince 202–5, 213 Gulf of Maine 44, 251–2, 259 highly migratory fish species coastal state legislative jurisdiction 81–2 coastal state obligations 77–8, 85–7, 106, 135–6 historic rights acquisition of conceptual challenges of 246 continuous exercise requirement 245, 249–51 criteria for 244–6, 249–51 exclusivity requirement 250 exercise of authority 245, 249–51 historic waters, over 249 necessity or national security grounds 246 state conduct, and 245, 249, 252–3 UNCLOS ratification, impact of 253–4 definition and interpretation 244–7, 260 economic rights vs. sovereignty 245–6, 251–2 historic waters 246–7, 249 rights vs. title 246–7, 250–51, 255–6 treaty interpretation rules 257–61 fishing rights in EEZ 70–71, 83–4, 89, 257–8 international law development of 244, 247–9 UNCLOS priority over customary international law 257–60 non-living resources rights in EEZ 257–8 South China Sea 70–71, 89, 248, 253–61 importance of 260–61

Index

transboundary fish stocks, and 105 Hoshinmaru 101–2 hot pursuit 8 arbitral tribunals, jurisdiction of 209–10, 222–5 coastal state rights 58, 216, 220–43 conditions for 221–2, 227–31 beginning 221–3, 228–9, 236–7 continuity and interruption 221–2, 236–8 ending 221–2, 224, 228, 238–9 identifiable vessel, pursuit by 221–2, 224, 228, 238–9 radio communication, validity of 232–6, 243, 263 signalling, generally 221–2, 224, 227–9, 231–5, 242 EEZ and continental shelf, in 58, 216–17, 220–42 flag state rights 58, 216–17, 222–39, 242 high seas, on 220–21 historical background 217–20 judicial interpretation additional sources for 230–32 Arctic Sunrise 222–31, 235–43 I'm Alone 218–19, 230 Red Crusader 219–20, 230, 234, 236 Saiga No. 2 221–2, 227, 230, 233 purpose 216–17 right to protest at sea, and 229–30, 240 safety zone, in 222–31, 240–42 terrorism, prevention of 58 human habitation definition 31–2 island rights, requirement for 31–3 illegal, unreported and unregulated fishing (IUU) Advisory Opinion on, generally 137–8 background 122–5, 143–4 burden of proof 158–9 criticism of 143–4, 165 importance of 141–3, 160, 162–3

275

interpretation approach 160–61 jurisdiction of 144 legal status of 143, 162–3 coastal states burden of proof 158–9 challenges for 149–50 rights and duties 102, 133–7, 143, 149–50, 155–6 conservation and sustainable management, and 78–9, 84–5, 131–4, 154–6, 163–6 EU liability for flag state obligations 130–31 FAO policy development 151–53 flag states administrative, technical and social measures 146–8, 154–5 due diligence 156–8 due regard obligations 155–6, 162–3 effective jurisdiction 146–8, 154–5, 163–4 international law compliance 154–5 liabilities 129–30, 142, 158 responsibilities 84, 90, 125–9, 143–4, 149–59, 162–3 standard of conduct 156–9 international law, and cooperation obligations 133–7, 150–51, 154 international organizations, responsibilities 130–31, 142 I'm alone, SS 3, 218–19, 230 innocent passage, right of 163 inspections coastal state rights to conduct, in EEZ 58, 109 fishing vessels, flag state jurisdiction for 147–8 port state controls 144–9 installations, artificial see artificial islands, installations or structures International Court of Justice (ICJ) jurisdiction of 86–7 role of 3, 6–7, 264 international law endangered species, protection of 88

276

The development of the Law of the Sea Convention

enforcement operations, rules for 96–7 internationally lawful uses of the sea (see freedom of the high seas) internationally wrongful acts, responsibility for 131, 158, 178 judicial role in development of 6–9 rights of non-coastal states in EEZ under customary international law 58–63 treaties (see treaties) UNCLOS priority over customary international law 257–60 vagueness and ambiguity in 8–9 International Law Commission (ILC) Draft Articles on State Responsibility 158, 178 International Maritime Organization (IMO) Member State Audit Scheme 165–6 international organizations illegal fishing, assumption of flag state liability for 130–31 internationally wrongful acts, responsibility for 131, 159 International Seabed Authority (ISA) 169, 263–4 evolutionary approach 185 Mining Code 172–3, 176–7, 180, 182 precautionary approach 176–7, 182 International Tribunal on the Law of the Sea (ITLOS) 5, 262 Advisory Opinions of (see Advisory Opinions) jurisdiction of 209–10, 222–4 living institution, as 166–7, 185 Seabed Disputes Chamber, role of 169, 173 interruption, hot pursuit 221–2, 236–8 Island of Palmas 21–2 islands see also South China Sea definition 16–17, 19–20, 47, 263 area of land 28–9 high-tide elevation 24–8 human habitation or economic life 25, 30–33 naturally formed 29–30, 34 rocks 17, 24–6

delimitation 15, 17–19 archipelago, definition 248 conventions, scope under 35–6 dependent islands 39–41 distortive capacity 41–5 equidistance rules 38–40 generative capacity 37–41 mainland, priority of 15–16, 39–42, 45–6 natural prolongation and distance 35–6 overlapping entitlements 20, 35–41, 45–6 three-stage test 38 entitlement to rights 14–15, 17, 34–5 area of land 28–9 artificial installations or modifications, and 34–5 conventions, scope under 35–6 EEZ status 17–18, 30, 33 high tide elevation 24–8 human habitation or economic life 25, 30–33 island, interpretation of 24–9, 36–7 land, compared with 36–7 mainland, relationship with 17–19, 33, 36–7, 45–6 maritime jurisdiction 19–20, 23 natural formation 29–30, 34 overlapping entitlements, and 20, 35–41, 45–6 rocks 17, 24–6 straits 16 territorial seas 30 groups of islands, status of 16, 248 maritime jurisdiction, zones of 19–20, 46–7 regime of islands (Art 121) contextual approach 20–24, 35–47 interpretation of 16–20, 24–35, 263 scope of 14–20, 45–7 textual approach 24–35, 46–7 sea lane passage, general right of 163 sovereignty 18–24, 35 actions of claimant states, relevance of 21–4

Index

discovery, relevance of 22 overlapping entitlements, and 20, 35–41, 45–6 sovereign state, status of 18–20 title to territory, determination of 20–24, 46–7 Jan Mayen Island 32–3, 39–40 jurisdiction Advisory Opinions, ITLOS competence to provide 141–2, 173 choice of forum 4–5 coastal state fishing rights in EEZ, and enforcement jurisdiction 82–3, 92–9, 102 legislative jurisdiction 79–82, 89–92 dispute settlement tribunals, of 77–8, 141–2, 173, 209–10, 222–5 effective jurisdiction 146–8, 154–5, 163–4 flag states, of 146–55, 163–4, 190–91 high seas, of, generally 190 hot pursuit, during (see hot pursuit) inspection of fishing vessels, for 147–8 island maritime jurisdiction 19–20, 23, 46–7 IUU fishing obligations 146–8, 154–5, 163–4 scientific research equipment, over 67 seabed Area, of 168–9 shared fish stocks, over 81–2 ship nationality, and 190–91 land reclamation schemes see artificial islands, installations or structures Eastern Greenland 22–3 Libya/ Tunisia Continental Shelf 250 Libya v. Malta 39, 43 marine environment coastal states rights and obligations 86–9

277

due diligence 87–9, 158–9 harvesting rights 89–92 international protection access and exploitation, MCA Convention 123, 137 obligations, generally 88–9, 110 marine living resources see also fish stocks; fishing in EEZ conservation and utilization coastal state rights and obligations 75–6, 79–81, 84–7, 100 cooperation 110–112, 133–7 due diligence 87–9, 163–4 IUU fishing, and 131–4, 154–6, 163–6 measures, judicial interpretation 86–7 sustainable management, and 131–4 UN Fish Stocks Agreement 109–13 marine mammals, exploitation 81 sedentary species 76–7 marine mammals 81 maximum sustainable yield (MSY) targets 80, 107, 110 mega-yachts 59, 212–13 migratory fish see highly migratory fish species military exercises at sea 72 mineral resources coastal state rights 168 deep seabed mining (see seabed mining) Minimum Conditions for Access and Exploitation of Marine Resources Convention (MCA Convention) 123, 137 Monte Confurco 100–101 naval manoeuvering 72 Nicaragua v. Colombia 26–31, 34, 38, 43 Nicaragua v. Honduras 42 Nicaragua v. USA 266 no harm principle 111, 165 non-living resources see also seabed mining; seabed resources coastal state rights in EEZ 51–4, 168 Norstar 59, 212–13

278

The development of the Law of the Sea Convention

North Atlantic Coast Fisheries 250–52 North Sea Continental Shelf 43, 135 piracy 58 pollution controls EEZ, dispute settlement, and 63–4 international provisions 88–9 port state controls inspections 144–9 IUU fishing, prevention measures 140, 153 non-discrimination principles, applicability of 149 Post Office v. Estuary Radio 26 prompt release rules 74–5, 94–5, 109, 114, 150 bond or security requirement 82–3, 99–102, 114 protest at sea, right to 60–61, 65, 69–70, 229–30, 240 Pulau Batu Puteh 252–3 Pulp Mills 157–8, 177, 183 Qatar v. Bahrain 29–30, 43–5, 250 radio communication, use in hot pursuit 232–6, 243, 263 reasonableness, principle of 94 bonds for prompt release, and 99–101, 114 necessity, compared with 98–9 Red Crusader 219–20, 230, 234, 236 regional fisheries management organizations (RFMOs) 110–112 Sub-Regional Fisheries Commission (SRFC) 122, 139–41 Rio Declaration on Environment and Development 1992 180, 182, 184 Romania-Ukraine 3, 43–4 safety zones artificial islands or installations in EEZ 55, 69–71 hot pursuit in 222–31, 240–42 SAIGA No.2 coastal state rights and obligations 56–7 bunkering practices 57–9 doctrine of necessity, and 56–7

genuine link requirement 196–202, 209–10, 212–14 hot pursuit 221–2, 227, 230, 233 international law, role of 97 other states' rights 59 treaty interpretation rules, role in 67–8 St Pierre and Miquelon 40 San Padre Pio 49, 59–60, 65–6 scientific research, jurisdiction over 67 sea defences, of islands 34–5 sea lane passage, general right of 163 seabed mining Advisory Opinion on (see Advisory Opinions) developing states, participation of 174, 179–82 dispute settlement 169, 173 exploitation grant trends 171 Mining Code 172–3 mining contractors, responsibilities of 178, 186 site-banking system 171–4, 181–2 sponsoring states, responsibilities and obligations 174–5 best environmental practices 176–7, 180–81 compliance obligations 175 direct obligations 175–6, 180, 184 due diligence obligations 175–8, 182–3, 186, 188–9 evolutionary approach 184–5 gap-filling approach 185–6 liabilities of 175, 186 non-compliance, claims for 178–9, 185–6 precautionary approach 176–7, 182–4, 186 seabed resources coastal state rights over 168 EEZ, in 51–4, 70, 72 common heritage of mankind, as 169, 171, 178–9, 185, 188–9 damage to, compensation claims for 178–9, 185–6, 264 exploration and exploitation (see seabed mining) interference with 70

Index

jurisdiction over 168–9, 171 shared fish stocks coastal state legislative jurisdiction 81, 116 dispute resolution 81–2 coastal state rights and obligations 78–9 conservation and management 81, 84–7, 105–6, 115–16 judicial interpretation 115–16 ship arrest genuine link requirement (see genuine link requirement) nationality of ships, and 8, 95–6, 144–5, 191–2, 197–202, 197–206 powers of 109 prompt release rules 74–5, 82–3, 94–5, 99–102, 109, 114, 150 ship inspections 147–8 ship-to-ship transfer (STS) 59–60, 67 South China Sea area of land, interpretation 29 artificial islands, powers regarding 55 background 253–4 conservation and protection of marine environment 88, 164 dispute resolution jurisdiction 79 due regard obligations 65, 71 EEZ, conceptual interpretation of 83–4 harvesting rights, exclusivity of 89–90, 103 high tide elevation 27–8 historic rights 70–71, 83–4, 89, 248, 253–61 rights vs. title 255–6 human habitation or economic life 31, 33 importance of 260–61 islands regime, judicial interpretation 24–6, 29, 31, 33–6, 46–7, 55 naturally formed 29 non-coastal states, applicability to 87–8 refusal to participate in proceedings 266

279

rights of other states in EEZ 61, 70–71 rocks vs. islands, status of 25–6 treaty interpretation in judicial reasoning 67–8, 257–60, 265–6 UNCLOS ratification, impact of 253–4 Southern Bluefin Tuna 116–22, 155, 164, 183 sovereignty conflicts over historic rights (see historic rights) IUU fishing, cooperation obligations 134–5 transboundary fish stocks 134–7 islands, of 18–24, 35 actions of claimant states, relevance of 21–4 discovery, relevance of 22 overlapping entitlements, and 20, 35–41, 45–6 sovereign state, status of 18–20 title to territory, determination of 20–24, 46–7 straddled stocks see transboundary fish stocks structures artificial structures (see artificial islands, installations or structures) definition 72 Sub-Regional Fisheries Commission (SRFC) 122 see also illegal, unreported and unregulated fishing regional cooperation agreements 139–41 submarine cables and pipelines 58, 72 sustainable development evolutionary approach 184–5 precautionary approach 180, 182, 184 sustainable management IUU fishing, and 131–4, 154–6 shared fish stocks 81, 84–7, 105–6 Swordfish 114–15

280

The development of the Law of the Sea Convention

terra nullius, sovereignty over 19 terrorism, prevention of 53, 58 total allowable catch (TAC) 80, 89, 110, 136 transboundary fish stocks rights and obligations concerning coastal states, of 105–8 conservation and management in EEZ 105–8, 110, 135–6, 151–3 cooperation 135–6, 151–3 enforcement in EEZ 108–9 flag states, of 150–53 freedom of high seas, and 109–13, 109–15 highly migratory species 77–8, 85–7, 106–7, 135–6 historic rights, and 105 IUU fishing 131–6 judicial interpretation 113–22 maximum sustainable yield (MSY) targets 107 non-coastal states, for 106 optimum utilization requirement 107–8 shared stocks 105–6 Southern Bluefin Tuna 116–22, 155, 164, 183 Straddling Stocks Agreement 149, 151–3 UN Fish Stocks Agreement 109–13 sovereignty conflicts 134–7 transit passage, right of 163 treaties international obligations under, generally 65–6 interpretation of Advisory Opinion on IUU, approach in 160–62

Advisory Opinion on seabed mining, approach in 183, 187–8 dispute settlement, role in 160–62, 187–8, 257–60, 265–6 drafting history, consideration of 160–61, 213 functionalist approach 161–2 precautionary approach 183 teleological approach 160–61 Vienna Convention on 8–9, 68, 71–2, 83, 183, 187–8, 213–14, 257–60, 265–6 living instruments, as 8–9, 166–7, 185 Tunisia v. Libya 43–4 UK v. Iceland/ Germany v. Iceland 113–14 Ukraine v. Russia 43–4, 49 UN Fish Stocks Agreement definitions 106 international cooperation mechanisms 111–12 obligations under 110–113 unattributed rights, dispute settlement 66–7 underwater listening devices 67, 72 Vienna Convention on the Law of Treaties 8–9, 68, 71–2, 83, 183, 187–8, 213–14, 257–60 Virginia G 49, 57–9, 66–8, 89–99, 102, 145, 208–13 Volga 100–101 warships 72 weapons exercises 72 WTO dispute settlement 7 Yemen v. Eritrea 18, 22, 41, 43, 250, 259