Law of the Sea PDF

Law of the Sea UN Convention on the Law of the Sea (UNCLOS) -​ Negotiations began in 1973 -​ Adopted December 1982 -​ Entered into force November 1994 -​ Why is it important? -​ Deals with central issues 1.​ State sovereignty 2.​ Territorial boundaries...

Law of the Sea UN Convention on the Law of the Sea (UNCLOS) -​ Negotiations began in 1973 -​ Adopted December 1982 -​ Entered into force November 1994 -​ Why is it important? -​ Deals with central issues 1.​ State sovereignty 2.​ Territorial boundaries 3.​ State interests -​ Key treaty that governs law of the sea today Types of Waters 1.​ Internal waters: Treated as if they were part of the state’s land territory ​ Full territorial sovereignty -​ Baselines ​ Separate a state's internal waters from external waters ​ Provide line from which the maritime zones are measured ​ Normal baseline traces the coast ​ But sometimes problems - with islands, bays, etc ○​ Example - 1951: Anglo-Norwegian Fisheries Case ​ Beliefs regarding customary law ​ “Persistent objector” rule 2.​ Territorial sea: 12 nautical miles from baselines of state -​ Limitations on sovereignty in territorial state ​ Must allow “innocent passage” of foreign vessels (includes foreign military vessels) ○​ Innocent = “as long as it's not prejudicial to the peace, good order, or security of the state ○​ Passage = going through in “continuous and expeditious manner” ​ State has duties to foreign vessels in territorial sea ​ Foreign vessels not engaged in innocent passage may be excluded from territorial sea 3.​ Contiguous zone: 24 nautical miles from baselines -​ Coastal state may exercise control over these waters under certain conditions 1.​ To prevent crime within its territorial sea/territory 2.​ To punish crimes committed in its territory or territorial sea -​ But if you do illegal things in the contiguous zone, can't be arrested for that 4. Exclusive economic zone (EEZ): 200 nautical miles from baselines -​ Can exercise rights in relation to natural resources within EEZ ​ Fishing activities  ​ Mining rights ​ Pollution managment -​ Foreign vessels have extensive rights in EEZ 1.​ Some navigational freedoms on high sea 2.​ Other states can lay submarine cables and pipelines in EEZ 5. Continental shelf -​ Coastal state has sovereign rights over natural resource s(within soul and seabed) of continental shelf ​ Not fishing -​ A state can claim continental shelf extending beyond 200 nautical miles 6. High Seas: everything else -​ High seas open to all states -​ “Flag state” has exclusive right to exercise jurisdiction over its vessels on high seas -​ All states may exercise jurisdiction over pirate vessels ​ UNSC resolutions from 2010-2022 -​ New treaty adopted June 2023: “high seas treaty’ to protect marine life  ​ First comprehensive treaty in this area (goal = 30% protected by 2030) ​ Process started in 2004 ​ Open for signature Sept 2023 - currently 107 signatures and 15 ratified/acceded ​ Treaty rules not yet met re entry into force Important issues: 1.​ Overlapping maritime zones ​ LOSC (United Nations Convention on the Law of the Sea) has compromissory clauses for dispute resolutions… -​ Under section 1 - ​ Conciliation procedure ○​ Panel makes non binding recommendation ​ If dispute incapable of settlement under section 1, either party may resort to the compulsory dispute settlement provisions contained in section 2 ○​ LOSC has compromissory clauses for dispute resolution… -​ Under section 2 ​ Agreements shall be resolved by one of these 4 procedures (all legally binding): 1.​ International Tribunal for the Law of the Sea (ITLOS) 2.​ ICJ 3.​ General arbitral tribunal 4.​ Arbitral tribunal composed of specialist in particular area ​ Many overlapping claims to areas of the sea and continental shelf exist ○​ Customary law answer tends to be median line between 2 states but… what if >2 states ​ States/tribunals often unwilling to automatically apply equidistance principle ○​ “Equidistance” versus “equitable” Equidistance can be Equitable North Sea Continental Shelf Case: -​ Germany not party to Convention on the Continental Shelf -​ But Denmark and Netherlands: argue equidistance is customary international law -​ If apply Equidistance principle: Germany gets A-B-E-D-C ICJ Ruled: -​ Ruled equidistance not customary international law and Germany not legally bound to it b/c its part of the CCS -​ “It must next be observed that, in certain geographical circumstances… the equidistance method, dispute its known advantages, leds unquestionably to inequity, in [that the] slightest irregularity in a coastline is automatically magnified by the equidistance line” -​ “[De]limitation must be the object of agreement between the States concerned, and that such agreement must be arrived at in accordance with equitable principles” ​ → i.e., negotiate a solution -​ No solution ​ “The delimitation…shall be effected by agreement in accordance with international law…in accordance with Article 38 [of the Statue of the ICJ]...in order to achieve an equitable solution” -​ Negotiated a solution based on this ruling -​ After negotiation among 3 states: Germany accorded larger portion of the continental shelf based on “equitable” principle Important Issues 2. Importance of Land territory and islands -​ Can generate a continental shelf and an EEZ covering hundreds of square miles -​ Grieving sovereign rights over fishing and natural resources -​ Limits actions of other states → only “innocent passage” allowed in territorial waters -​ Definition of island: must be able to sustain human life and economic activity to create territorial waters, EEZ, etc EXamples of Importance of LOS: -​ Islands in South China Sea (SCS) ​ Claimed in whole or part by China, Vietnam, Philippines, Malaysia and Brunei ​ Fishing rights ​ Mining rights ​ Trade flows through area ​ Military functions -​ China claims sovereignty over everything within “Nine-dashed Line” ​ Says claim comes from ownership during Xia dynasty 921st-16th centuries BCE) ​ Vietnam disputes - says it has owned since 17th century ​ Philippines claims based on geographical proximity ​ Malaysia and Brunei claim much of territory falls within their EEZ as defined by LOSC​ Some interesting Highlights of Recent History of SCS Dispute -​ 1974 China violently seizes Paracel islands from vietnam -​ February 1992 - China passes “ Law on the Territorial Sea” ​ Art 6: “To enter the territorial sea of the People’s republic of china, foreign military ships must obtain permission from the Government of the People’s Republic of China” ○​ Contradicts UNCLOS innocent passage rule -​ 1994 - UNCLOS enters into force (China acceded in 1996) ​ UNCLOS defines maritime boundaries ​ Chinese reservation on innocent passage -​ May 2009 - Malaysia and Vietnam file submission to UN Commission to extend their continental shelves beyond 200 nm ​ In response: China makes “nine-dash line” claim -​ July 23 2010- US Sec state Clinton affirms uS interests in “open access to Asia’s maritime commons” -​ Early-mid 2011: philippine sand vietnam highlight of “harassment” of their surveying and oil exploration ships ​ Chinese naval “incursions” into their own waters -​ October 2011: Philippines renames SCS the west Philippine Sea ​ US statement supports -​ April 8 2012: Scarborough Shoal Incident (2 month standoff) -​ June 2012: Vietnam passes law claiming jurisdiction over Spratly and Paracel islands, demanding notification from foreign naval ships passing through ​ China responds with establishing Sansha City to administer Islands -​ January 2013: Philippines files UN arbitration over China's claims in SCS ​ Case = “South China Sea Arbitration” -​ 2013: China begins massive dredging campaign to build artificial islands around 7 reefs in SCS -​ 2014: Dredging operation underway, island construction -​ October 2015: US sailed a guided missile destroyer within 12 nautical miles of the artificial islands (engages in FON missions regularly after this) -​ July 2016: UN arbitration tribunal rules against China ​ Rejected China’s historic rights argument ​ Said China had violated international law ​ Said these are not “islands” in legal sense ​ Said they fall in Philippines EEZ (means China is illegally occupying) ​ Decision legally binding but no mechanism to enforce it ​ China has not abided by it -​ September 2018: USS Decatur travelled within 12 nautical miles of Chinese claimed reefs ​ THEN: Chinese ship forced it off course -​ August 2019: US sails aircraft carrier in Bay of Manila in light of fears Philippines moving closer to China  ​ US Secretary of defense: our government’s “national defense strategy makes this our priority theater” -​ July 2020L US declares Chinese Claims ‘unlawful’ -​ Where are we today -​ 2024: Increasingly violent tensions between Philippines and China ​ Note: US has a mutual defense treaty with the philippines ​ Questionable whether US will honor -​ ASEAN-China negotiating a “code of conduct” agreements for SCS