xxv PART I THE DIVIDED OCEANS: INTERNATIONAL LAW GOVERNING JURISDICTIONAL ZONES 1

Transcription

1 Contents Preface page xv List of Figures xvii List of Tables xviii List of Abbreviations xix Table of Cases xxi Table of Treaties and Instruments xxv PART I THE DIVIDED OCEANS: INTERNATIONAL LAW GOVERNING JURISDICTIONAL ZONES 1 1 The Law of the sea in perspective 3 1 Introduction General considerations Functions of the law of the sea 4 2 Marine spaces in the law of the sea Scope of the oceans in the law of the sea Typology of marine spaces 5 3 Sources of the international law of the sea Formal sources Material sources 13 4 Principles of the international law of the sea Principle of freedom Principle of sovereignty Principle of the common heritage of mankind 19 5 The codification of the law of the sea The Hague Conference for the Codification of International Law (1930) The First UN Conference on the Law of the Sea (1958) The Second UN Conference on the Law of the Sea (1960) The Third UN Conference on the Law of the Sea ( ) 24 6 Outline of the UN Convention on the Law of the Sea General considerations Principal features of the Convention 31 vii

2 viii Contents 7 Development after UNCLOS III General considerations Adoption of two Implementation Agreements De facto amendment of the LOSC through Meetings of States Parties Development of the law of the sea through international organisations 35 8 Conclusions 37 2 Baselines and related issues 43 1 Introduction 43 2 Baselines Normal baselines Straight baselines Juridical bays Historic bays Bays bordered by more than one State River mouths Ports 61 3 Islands Nature of the problem Geological elements of islands Socio-economic elements of islands Customary law nature of Article Reefs 68 4 Low-tide elevations Identification of low-tide elevations Case law concerning low-tide elevations 70 5 Conclusions 72 3 Marine spaces under national jurisdiction I: territorial sovereignty 76 1 Introduction 76 2 Internal waters Spatial scope of internal waters Legal status of internal waters Jurisdiction of the coastal State over foreign vessels in internal waters Access to ports Ships in distress at sea 81 3 Territorial sea Legal status of the territorial sea The right of innocent passage The right of innocent passage of warships The right of innocent passage of foreign nuclear-powered ships and ships carrying inherently dangerous or noxious substances The rights of the coastal State concerning innocent passage The obligations of the coastal State concerning innocent passage 95 4 International straits Legal framework for international straits prior to Typology of international straits under the LOSC International straits under Part III of the LOSC 97

3 ix Contents 4.4 International straits outside the scope of Part III of the LOSC The right of transit passage Rights and obligations of coastal States bordering straits Customary law character of the right of transit passage Non-suspendable innocent passage Legality of creation of bridges in international straits Archipelagic waters General considerations Definition of an archipelago, archipelagic States and archipelagic waters Archipelagic baselines Jurisdiction of archipelagic States over archipelagic waters The right of innocent passage through archipelagic waters The right of archipelagic sea lanes passage Rights and obligations of an archipelagic State Conclusions Marine spaces under national jurisdiction II: sovereign rights Introduction Contiguous zone The concept of the contiguous zone Coastal State jurisdiction over the contiguous zone Exclusive economic zone Genesis of the concept of the EEZ Legal status of the EEZ Sovereign rights over the EEZ Jurisdiction of coastal States over the EEZ Freedoms of third States Residual rights Continental shelf Genesis of the concept of the continental shelf Spatial scope of the continental shelf Criteria for determining the outer limits of the continental shelf beyond 200 nautical miles The Commission on the Limits of the Continental Shelf Procedures to establish the outer limits of the continental shelf Payments concerning the exploitation of the continental shelf beyond 200 nautical miles The sovereign rights of the coastal State over the continental shelf Freedoms of third States Conclusions Marine spaces beyond national jurisdiction Introduction The high seas Spatial scope of the high seas Principle of the freedom of the high seas Principle of the exclusive jurisdiction of the flag State The nationality of a ship 155

4 x Contents 2.5 Problems associated with flags of convenience Exceptions to the exclusive jurisdiction of the flag State (1): the right of visit Exceptions to the exclusive jurisdiction of the flag State (2): the right of hot pursuit Exceptional measures The Area General considerations Spatial scope of the Area Raison d être of the principle of the common heritage of mankind Elements of the principle of the common heritage of mankind International Seabed Authority System for the exploration and exploitation of resources of the Area The 1994 Implementation Agreement Evaluation Conclusions Maritime delimitation Introduction Concept of maritime delimitation Definition Typology of maritime delimitation Treaty law concerning maritime delimitation The 1958 Geneva Conventions The 1982 UN Convention on the Law of the Sea Development of case law relating to maritime delimitation: two contrasting approaches The first phase ( ) The second phase (1993 present) Commentary Consideration of relevant circumstances (1): geographical factors Configuration of coasts Proportionality Baselines Presence of islands Geological and geomorphological factors Presence of third States Consideration of relevant circumstances (2): non-geographical factors Economic factors Conduct of the parties Historic rights Security interests Navigational factors Environmental factors An evaluation General trend of case law Judicial creativity in the law of maritime delimitation Conclusions 214

5 xi Contents PART II OUR COMMON OCEAN: PROTECTION OF COMMUNITY INTERESTS AT SEA Conservation of marine living resources Introduction Conservation of marine living resources prior to Conservation of marine living resources under the LOSC (1): the zonal management approach General considerations Conservation of marine living resources in the EEZ Conservation of marine living resources in the high seas Limits of the zonal management approach Conservation of marine living resources under the LOSC (2): the species specific approach Shared and straddling fish stocks Highly migratory species Marine mammals Anadromous stocks Catadromous species Limits of the species specific approach Development after the LOSC The concept of sustainable development The ecosystem approach The precautionary approach Ensuring compliance Flag State responsibility and its limits At-sea inspection of vessels of Contracting Parties At-sea inspection of non-contracting Party vessels Port inspection of Contracting Party vessels Port inspection of non-contracting Party vessels Conclusions Protection of the marine environment Introduction Typology of marine pollution General considerations Land-based marine pollution Vessel-source marine pollution Dumping at sea Pollution from seabed activities Legal framework for marine environmental protection prior to Customary law Treaty law Protection of the marine environment in the LOSC Generality and comprehensiveness Uniformity of rules Obligation to cooperate in the protection of the marine environment 265

6 xii Contents 5 Regulation of land-based marine pollution Limits of the global legal framework Development of regional treaties Identification of harmful substances Precautionary approach Environmental impact assessment International control Regulation of vessel-source marine pollution MARPOL The LOSC regime (1): regulation by flag States The LOSC regime (2): regulation by coastal States The LOSC regime (3): regulation by port States Port State Control Intervention by coastal States in the case of pollution casualties Pollution emergencies at sea Liability for oil pollution damage Liability for other pollution damage Dumping at sea Regulation of dumping at sea under the LOSC The 1972 London Dumping Convention and the 1996 Protocol Regional treaties Ocean sequestration and fertilisation Regulation of pollution from seabed activities Marine pollution arising from seabed activities under national jurisdiction Marine pollution arising from seabed activities in the Area Environmental protection of ice-covered areas Conclusions Conservation of marine biological diversity Introduction Principal approaches to conservation of marine biological diversity General considerations Three approaches Global legal frameworks for the conservation of marine biological diversity The 1982 UN Convention on the Law of the Sea The 1992 Convention on Biological Diversity Marine Protected Areas General considerations Typology of MPAs in international law MPAs in the high seas Limits of MPAs Conclusions Marine scientific research Introduction The concept of marine scientific research Regulation of marine scientific research in the LOSC General considerations Marine scientific research in marine spaces under national jurisdiction 339

7 xiii Contents 3.3 Marine scientific research in marine spaces beyond national jurisdiction Regulation of scientific research installations Legality of military and hydrographic surveys in the EEZ International cooperation in marine scientific research Transfer of technology Transfer of technology under the LOSC IOC criteria and guidelines on the transfer of marine technology Conclusions Maintenance of international peace and security at sea Introduction The suppression of piracy Concept of piracy Seizure of pirates The role of the UN Security Council in counter-piracy operations Regulation of unlawful offences and weapons of mass destruction at sea The 2005 SUA Convention Proliferation security initiative United Nations interdictions at sea Military exercises in the EEZ Regulation of nuclear weapons at sea Conclusions Land-locked and geographically disadvantaged states Introduction Land-locked States and access to the sea Legal regime prior to the LOSC Legal regime of the LOSC The navigational rights of land-locked States Land-locked and geographically disadvantaged States and uses of the oceans Fishing rights Exploitation of non-living resources in the oceans Marine scientific research Conclusions Peaceful settlement of international disputes Introduction Basic structure of dispute settlement procedures in the LOSC General considerations The interlinkage between voluntary and compulsory procedures for dispute settlement Voluntary conciliation Compulsory procedures for dispute settlement Multiplicity of forums Limitations to the compulsory procedures Optional exceptions to the compulsory procedures The International Tribunal for the Law of the Sea (1): Organisation Members of ITLOS The Seabed Disputes Chamber Special chambers 408

8 xiv Contents 5 The International Tribunal for the Law of the Sea (2): Procedure Jurisdiction of ITLOS Applicable law Proceedings before ITLOS Incidental proceedings Judgment Advisory proceedings Prompt release procedure Conclusions 420 Index 424