Clive H Schofield

Current Legal Developments: The Arctic

The planting of a flag in a titanium canister on the seabed at the North Pole in August 2007 on the part of the Russian Federation and efforts by the other Arctic Ocean littoral states to reinforce their territorial and, particularly, maritime jurisdictional claims in the region, led to the Arctic becoming the focus of considerable global media attention in recent months. Much of this coverage has been alarmist in tone, replete with tales of a “scramble” or “race” for the Arctic, talk of an Arctic “land-grab”, and unease over a resultant Arctic resource “gold rush”. Although some of the media and even diplomatic responses have been, to say the least, somewhat misleading, these events have been set against the backdrop of some startling and potentially profound changes to the Arctic environment which have also served to heighten concerns over events in the region. The aim of this paper is to highlight key developments and explore some of the legal and policy issues that arise.

Beyond the Limits?: Outer Continental Shelf Opportunities and Challenges in East and Southeast Asia

This article examines the process by which certain coastal states in East and Southeast Asia may confirm their sovereign rights over areas of continental shelf more than 200 nautical miles from their baselines — areas commonly termed the “outer” or “extended” continental shelf. The article provides an overview and explanation of this legally and technically complex process. It also highlights some of the numerous issues and uncertainties in respect of both the interpretation of the relevant provisions of the international law of the sea and practical aspects of the implementation of the process itself. Many states around the world, including in East and Southeast Asia, are striving to meet a deadline for submissions related to the outer continental shelf of May 2009. Existing and potential submissions are outlined. The potential opportunities and challenges associated with outer continental shelf are then discussed.

Pushing the Limits of the Law of the Sea Convention: Australian and French Cooperative Surveillance and Enforcement in the Southern Ocean

This article examines recent steps taken by Australia and France to combat illegal fishing in their claimed maritime zones of jurisdiction around their adjacent sub-Antarctic island territories. These steps comprise operational responses and legal developments, including the conclusion of two bilateral treaties on cooperative surveillance and enforcement. Geographical and legal problems associated with addressing the illegal fishing threat in the Southern Ocean are highlighted. It is concluded that when they come to be tested by international legal authorities, some of the more innovative legal measures under discussion are likely to be appraised as being in conflict with some provisions of the United Nations Convention on the Law of the Sea.

Minding the gap: the Australia-East Timor treaty on certain maritime arrangements in the Timor Sea (CMATS)

The intertwined issues of the delimitation of maritime boundaries and the division of the resources, particularly petroleum resources, of the Timor Sea have served as a persistent irritant in bilateral relations between Australia and East Timor since the latters independence in 2002. In 2003 an International Unitization Agreement for the Greater Sunrise complex of fields was signed. This was followed by the conclusion in 2006 of the Treaty on Certain Maritime Arrangements in the Timor Sea. The subsequent entry into force of these agreements, in February 2007, appears to resolve this contentious dispute, at least for the foreseeable future. This article explores the background to the dispute and positions of the parties, traces the progress of negotiations towards its interim resolution and then assesses the agreements themselves. It is concluded that while the agreements are, on balance, somewhat more favourable to Australia than to East Timor, they can still be viewed as beneficial to both parties.

Moving Beyond Disputes Over Island Sovereignty: ICJ Decision Sets Stage for Maritime Boundary Delimitation in the Singapore Strait

The International Court of Justices May 2008 decision to award Pedra Branca/Pulau Batu Puteh to Singapore and Middle Rocks to Malaysia has removed a major obstacle to the delimitation of maritime boundaries in the eastern part of the Singapore Strait. This article explores the issues relevant to the delimitation of maritime boundaries between Malaysia, Singapore, and also Indonesia in this area. A brief summary of the case is followed by consideration of the baselines and maritime jurisdictional claims of the parties and the delimitation of maritime boundaries, with particular emphasis on the status and potential role of the islands in this context. Potential maritime boundary delimitation scenarios in the eastern Singapore Strait are then considered and assessed.

Defining eez Claims from Islands: A Potential South China Sea Change

In the face of seemingly intractable territorial and maritime disputes in the South China Sea, the article examines how the 1982 United Nations Convention on the Law of the Sea (losc), sets out what maritime claims States can make in the South China Sea and how it establishes a framework that will enable States to either negotiate maritime boundary agreements or negotiate joint development arrangements (jdas) in areas of overlapping maritime claims. It provides an avenue whereby the maritime claims of the claimants can be brought into line with international law, potentially allowing for meaningful discussions on cooperation and maritime joint development based on areas of overlapping maritime claims defined on the basis of the losc.

Preliminary considerations on the potential influence of submarine fans on marine delimitation

The complex issues associated with marine delineation for the outer limit of continental shelf and the boundary delimitation have provoked considerable attention among researchers in a variety of academic circles, particularly in the juristic filed and the geo-science field. In the present contribution, we start from an overview of submarine fans, as one of common types of sediment-deposit bodies in the ocean, and explore the related geological features which may be of relevance to the marine delimitation in accordance with the 1982 United Nations Convention on the Law of the Sea. We carry out a comparative assessment of certain significant geological features of submarine fans, using the Bengal fan as an example, which is the biggest submarine fan in the world and represents an important factor in the maritime boundary dispute between the neighboring states currently. The relationship between the special geological bodies and the international principle in the 1982 United Nations Convention can be established by combining geological and juristic analyses. This preliminary observation on the effect of submarine bodies both on the marine entitlement and boundary delimitation indicates that it is important for the international society to appropriately deal with this problem so that the marine right of any state can be protected.

Blurring the lines: maritime joint development and the cooperative management of ocean resources

The first part of the paper examines the significant extension in coastal State jurisdiction offshore and outlines progress in the delimitation of maritime boundaries worldwide. Some of the problems associated with lack of maritime boundary delimitation and the resultant large zones of overlapping maritime claims are then highlighted. Progress in the cooperative management of ocean resources through maritime joint development zones is then reviewed.

A Tribunal Navigating Complex Waters: Implications of The Bay of Bengal Case

The International Tribunal on the Law of the Seas March 2012 Judgment in the Bay of Bengal Case is a landmark decision in multiple ways. It represents the first maritime boundary to be delimitated by the Tribunal. It is the first adjudication of a maritime boundary in Asia, and it is also the first judicial delimitation of a maritime boundary for parts of the extended continental shelf located seaward of the 200-nautical-mile limit from baselines. While the Tribunals ruling largely resolves the maritime dispute between Bangladesh and Myanmar, it also raises a number of questions and concerns that are highlighted in this article, including the Tribunals approach to delimitation both within and beyond the 200-nautical-mile limit, the treatment of islands, the interplay between law of the sea institutions and the creation of a so-called grey area where continental shelf jurisdiction falls to one state and water column jurisdiction to the other.

No Panacea?: Challenges in the application of provisional arrangements of a practical nature

This chapter outlines some of the factors that offer the opportunity and the need for applying maritime joint development. It explores some of the key potential benefits associated with the application of joint development to areas subject to competing maritime claims. A number of obstacles to the establishment of and potential problems associated with joint management mechanisms for offshore spaces are then explored, drawing on examples of such joint arrangements located in East and Southeast Asia. Maritime joint management mechanisms necessarily represent a significant challenge to State sovereignty. Their implementation is therefore challenging and requires the investment of considerable political capital over a period of decades. While challenges to the successful establishment and implementation of provisional arrangements of a practical nature can certainly be overcome, political will remains the vital factor in making joint zones work effectively and for them to be sustained over the long term. Keywords:maritime claims; maritime joint development; Southeast Asia; State sovereignty