Louis B. Sohn

Cases and Materials on the Law of the Sea, Second Edition

This second edition of Cases and Materials on the Law of the Sea compiles cases, treaties, U.N. documents, commentaries, and other teaching materials that systematically present law of the sea topics.

6 Maritime Delimitation

This chapter provides examples of the diverse methods states use to delimit maritime boundaries, including both bilateral agreements and cases from arbitral tribunals, the International Court of Justice (ICJ), and the International Tribunal for the Law of the Sea (ITLOS). It considers the delimitation of the territorial sea. The chapter next addresses zones extending up to 200 nautical miles. It deals with the delimitation of extended continental shelves, i.e., continental shelves beyond 200 nautical miles from baselines. The chapter presents one example of a bilateral agreement, relating to the territorial sea and continental shelf respectively. Hence, despite the fact that delimitation agreements far outnumber maritime boundaries settled through third-party adjudication, most of the excerpts included in the chapter are from arbitral and judicial decisions.Keywords: baselines; extended continental shelves; International Court of Justice (ICJ); ITLOS; maritime delimitation; territorial sea

11 The Deep Seabed

This chapter primarily concerns the international legal regime for the mineral resources of the seabed and subsoil beyond the limits of national jurisdiction. It traces early developments and then outlines the complex provisions of Part XI of the 1982 United Nations Convention on the Law of the Sea (LOS Convention) governing deep seabed mineral resources. Those provisions involve roles for international institutions: the International Seabed Authority and the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea. A 1994 Part XI Implementation Agreement modified or set aside some controversial seabed mining provisions of the LOS Convention. This 1994 Agreement paved the way for widespread acceptance of the Convention by both developed and developing states, and set out rules for the current regime governing deep seabed mining. Finally, the chapter examines the work of the International Seabed Authority.Keywords: 1994 Part XI Implementation Agreement; International Seabed Authority; Law of the Sea (LOS) Convention; Seabed Disputes Chamber

2 Freedom of the High Seas

This chapter introduces the principle of the freedom of the high seas as codified in the 1982 United Nations Convention on the Law of the Sea (LOS Convention). It addresses particular high seas freedoms: the freedom of navigation, the freedom of overflight, the freedom of fishing, the freedom to lay submarine cables and pipelines, and other freedoms. The chapter then explores important constraints on the exercise of high seas freedoms: the requirement that states exercise high seas freedoms with reasonable regard to the interests of other states, and the requirement that the high seas be used for peaceful purposes. The chapter also addresses the duty to render assistance to those in distress on the high seas. The exercise by individual states of their high seas freedoms involves a consideration of global community interests.Keywords: freedom of fishing; freedom of navigation; freedom of overflight; high seas freedoms; Law of the Sea (LOS) Convention; submarine cables

15 Settlement of Disputes

This chapter focuses on the dispute settlement system established in the United Nations Convention on the Law of the Sea (LOS Convention). It provides an overview of the dispute settlement provisions of the LOS Convention and how they were negotiated. The chapter examines one of the components of the Conventions system of third-party dispute settlement, the International Tribunal for the Law of the Sea (ITLOS), which began operating after the Convention entered into force in 1994. The chapter particularly focuses on the Tribunals structure, jurisdiction, and relationship to other dispute settlement bodies. In earlier drafts of the Convention, disputes related to seabed mining were originally subject to a special Seabed Tribunal. However, once agreement was reached on an ITLOS, composed of twenty-one members elected at a meeting of all the parties to the Convention, many states became reluctant to maintain two separate tribunals.Keywords: International Seabed Authority; ITLOS; Law of the Sea (LOS) Convention; sea disputes; seabed mining

7 Internal Waters and Ports

This chapter explores international legal issues related to internal waters and ports. Internal waters are located on the landward side of the baseline and include lakes, rivers, bays, historic waters, and many ports. A port, where cargo and passengers are loaded or unloaded, is generally an integral part of the coastline. However, ships may also anchor and load or unload cargoes at roadsteads or deepwater ports at a distance from the coast. The chapter also explores whether foreign vessels have a right of access to ports. It analyzes the resolution of conflicts of jurisdiction that arise when foreign flag vessels and their crews are present in internal waters. Finally, the chapter considers port state jurisdiction and control over foreign flag vessels pursuant to treaties regulating environmental, safety, and labor matters; these treaties have led to an enlarged scope for port state jurisdiction.Keywords: baseline; bays; foreign flag vessels; internal waters; lakes; maritime ports; rivers

8 Territorial Sea, Contiguous Zone, Straits, and Archipelagic Waters

This chapter examines the territorial sea, a narrow band of coastal waters over which the coastal state traditionally has exercised authority. It explores the breadth of the territorial sea and its juridical status in international law. The chapter focuses on the right of foreign vessels to engage in innocent passage, which constitutes one significant limit on the authority of a coastal state over its territorial sea. It looks at the contiguous zone, which extends beyond the territorial sea, and the conceptual links between the territorial sea and the contiguous zone. The chapter examines two navigational regimes developed at the Third United Nations Conference on the Law of the Sea (UNCLOS III) and codified in the 1982 United Nations Convention on the Law of the Sea (LOS Convention): transit passage through straits and archipelagic sea lanes passage through archipelagic waters.Keywords: archipelagic waters; coastal state; contiguous zone; Law of the Sea (LOS) Convention; straits; territorial sea; UNCLOS III

3 Nationality of Vessels

This chapter examines the concept of nationality of vessels. The nationality of vessels has been, in theory, central to the system of control of activities on the high seas, and to a significant extent in other zones of the oceans as well. Vessel nationality is important in part because of the desirability of applying consistent legal standards to vessels. The chapter introduces the concept of vessel nationality, exploring when states may confer nationality on vessels and the requirement that there be a genuine link between a vessel and its flag state. It talks about the Registration of vessels, which is the primary method by which states indicate grants of nationality, and ships documents. Finally, the chapter explains what is a ship or a vessel, and codifies the meaning that the term vessel had acquired in general maritime law.Keywords: flag state; general maritime law; high seas; vessel nationality; vessel registration

13 Conservation and Management of High Seas Living Resources

This chapter digs back into history to consider whether Hugo Grotius, so often associated with the origins of high seas freedoms, was really as staunch a supporter of the freedom of fishing as he is generally depicted today. It addresses the period right after the entry into force of the 1982 United Nations Convention on the Law of the Sea (LOS Convention) when a dispute arose between Canada and the European Union (then still the European Communities) that spiraled out of control. The chapter analyzes the contemporary period and the new legal framework that has been created to address the issue of overfishing on the high seas. It devotes particular attention to regional fisheries management organization (RFMOs), as they are today the primary legal mechanism available to tackle this issue.Keywords: CanadasCoastal Fisheries Protection Act; European Union; high seas; Hugo Grotius; Law of the Sea (LOS) Convention; regional fisheries management organization (RFMO)

9 Exclusive Economic Zone

This chapter covers the early developments of the law of the sea. The creation of the exclusive economic zone (EEZ) is a good example of how codification may sometimes precede and contribute to the formation of customary international law. The chapter examines some applications of the EEZ in state practice. Some activities taking place in the EEZ clearly fall under the competence of the coastal state, while others remain part of the freedoms of the high seas. The chapter presents an example of a unilateral coastal state claim (the 1945 Truman Proclamation on fisheries) and a judicial analysis of competing claims concerning the right to fish in fisheries zones proclaimed by a coastal state (the 1974 decision of the International Court of Justice (ICJ) in the United Kingdom-Iceland Fisheries Jurisdiction case).Keywords: coastal state; customary international law; exclusive economic zone (EEZ); fisheries zones; high seas; International Court of Justice (ICJ)