Vincent P. Cogliati-Bantz

II. International Tribunal for the Law of the Sea, Hoshinmaru (Japan v Russian Federation) and Tomimaru (Japan v Russian Federation) Prompt Release Judgments of 6 August 2007

On 6 August 2007, the International Tribunal for the law of the Sea (Tribunal) delivered two judgments under Article 292 of the UN Convention on the Law of the Sea (Convention). Both cases originated from the arrest by Russia, in accordance with Article 73 of the Convention, of two Japanese fishing vessels in its exclusive economic zone (EEZ), for fisheries-related violations. However, while in one instance the Tribunal decided in favour of the release of the vessel upon the payment of a bond of 10 million roubles, in the other case, the Tribunal found that the confiscation of the ship, ordered as a penalty under Russian law, had rendered the application for prompt release without object.

Disentangling the 'Genuine Link': Enquiries in Sea, Air and Space Law

While the UN Convention on the Law of the Sea contains the requirement that there exist a genuine link between a ship and its flag State, neither what constitutes that link, nor the effect of its absence has been determined with unambiguous clarity. In addition, it must be enquired whether the genuine link is a requirement that concerns the opposability of the nationality, or the duties of the flag State once the nationality is conferred, or both. The fact that the genuine link as a requirement has not been singled out expressly in the relation between a State of registry and an aircraft or a space object calls for an analysis of the legal mechanisms in air law and space law in order to determine what meaningful connections are established between these means of transportation and States.

Archipelagic States and the New Law of the Sea

Archipelagic State were among the first to ratify UNCLOS. The new Law of the Sea which emerged from the Third Conference is based upon functional allocation of rights and duties of coastal and third States over certain maritime areas. The right of transit passage (TP) was negotiated to respond to the extensive of the breadth of the territorial sea in straits used for international navigation. It seeks to resolved the inherent tension between the interest of third States in unimpeded navigation and overflight and the status of the waters navigated through or above, for the territorial sea is placed under the sovereignty of the coastal State. The analogous right of archipelagic sea lands passage (ASLP) emerged concurrently at UNCLOS III. It is not predicted upon the extension of the territorial sea but on the novel maritime zone of archipelagic (insular) waters; its justification also rests on the preservation of a right of passage that approximates the freedom of navigation previously enjoyed by third States, while respecting the sovereignty of archipelagic States (AS) over archipelagic waters (AW), This balance of interests infused the package-deal approach throughout the Conference.

Marine oil and gas pollution spills in Australian waters

Marine oil and gas pollution spills in Australian waters have not been frequent in world terms and all of them have been fairly minor in quantity and effect. The first incident is addressed by Sarah Derrington concerning, in December, the APL Sydney dragging its anchor in Port Phillip Bay, near Melbourne, and breaking the gas pipeline on the bottom of the bay. The second incident, analyzed by Nick Gaskell, concerns the Pacific Adventurer, which lost containers overboard that punctured the hull resulting in the spill of oil some miles offshore from Moreton Island, near Brisbane, in March . The final incident, discussed by Vincent Cogliati-Bantz and Craig Forrest, occurred in April when the Shen Neng went aground off Gladstone port, in the Great Barrier Reef on the Australian east coast. In each case the authors set out the background and circumstances in relation to each of these oil spills. Keywords:Australian waters; gas pollution; Marine oil; oil spill; Phillip Bay