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THE LAW OF THE SEA Grotius in his work Marem Liberum: states were to enjoy a full sovereignty over those waters proximate to their coasts, whereas in those waters beyond, where trade and navigation issues assumed a greater significance than issues of security and control, the principle of the freedom of the sea A. DEVELOPMENT OF THE MODERN LAW OF THE SEA  Large extent codified by UNCLOS 1 at Geneva in 1958 which drew up 4 Conventions o Convention on the Territorial Sea and the Contiguous Zone (46 states ratified) o The Convention on the High Seas (57) o Convention on Fishing and Conservation of the Living Resources of the High Seas (36) o Convention on the Continental shelf (54)  Most of the provisions of the first 2 conventions and some of the provisions of the 4th one codified customary law.  therefore, although the conventions are only binding on states which are parties to them, many of their provisions can be used as evidence of customary law even against states which are not parties.  Failed to reach agreement on: the width of the territorial sea failed in UNCLOS 2 too.  Technological advances in seabed exploitation, concerns for management of coastal fisheries, marine pollution and fresh ideas- created a need for new rules.  UNCLOS 3 in 1973 o Met intermittently for 9 years (with 144 states and 8 specialized agencies) o Adopted the text of the United Nations Convention on the Law of the Sea 1982. o Why it took so long: ‘package deal’ of rights and obligations to which no reservations may be made  tried to take decisions by consensus rather by majority votes.  That’s why while ratification signifies acceptance of its provisions, this may mask a lack of consensus and inconsistent state practice on specific issues o UNCLOS adopted in 1982 by 130 votes to 4, with 17 abstentions o Article 308(1) enter into force 12 months after the date of deposit of the 60th instrument of ratification/accession  Many western states refused to sign/ratify: dissatisfied with provisions concerning exploitation of the deep sea bed.  UN Secretary General initiated consultations among these states—result= Agreement Relating to the Implementation of Part XI of the Convention which modified the deep seabed mining regime found acceptance. o 1982 Convention  Some provisions codify customary int law  But many represent a departure fr the pre-existing customary in law.

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UNCLOS has been effective over the past 30 years of drafting, ratification and implementation in stimulating normative state practice on the law of the sea and int tribunals have frequently recognised the customary law status of certain UNCLOS provisions. Hence, even where states are not parties to UNCLOS, the convention articulates many of the customary rules applicable to maritime areas. UNCLOS-either a source of rights for parties or evidence of them for nonparties Article 311(1): among the states parties to it, the Convention will prevail over the four 1958 Conventions.  Almost all of the provisions of these older Conventions are either repeated, modified or replaced by the 1982 one.

B. MARITIME ZONES 1) Baselines  UNCLOS, Art 5:– “Except where otherwise provided in this Convention, the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State.”  Cf: Anglo-Norwegian Fisheries Case [1951] ICJ o Norway’s claim to territorial sea was drawn not from the low water line but from a series of artificial lines linking the outermost points of the fringe of rocks and islands that lay off the Norwegian coast. o ICJ: accepted the inconvenience of using low water mark as the baseline in such geographically complicated circs and accepted the straight baseline method under such circs  UNCLOS, Art 7 – Straight baselines- reflects findings in Fisheries case-customary law (1) In localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured. (3) The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast, and the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters. (5) Where the method of straight baselines is applicable under paragraph 1, account may be taken, in determining particular baselines, of economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage.  Cf Qatar v Bahrain (ICJ, 2001) o Straight baseline method can only be used if these conditions are met: either the coast line is deeply indented and cut into, or that there is a fringe of islands along the coast in its immediate vicinity. o The fact that a State considers itself a multiple island State or a de facto archipelagic State does not allow it to deviate from the normal rules for the determination of baselines unless the relevant conditions are met.

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2) Internal waters  UNCLOS, Art 8: (1) “Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State. (2) Where the establishment of a straight baseline in accordance with the method set forth in Article 7 has the effect of enclosing as internal waters areas which had not previously been considered as such, a right of innocent passage as provided in this Convention shall exist in those waters.”  No right of innocent passage through internal waters  Coastal State has the right to regulate access to its ports: UNCLOS, Arts 25(2), 211(3), 255. o (Cf. Saudi Arabia v Aramco ((1963) 27 ILR): the ports of every state must open to foreign vessels and can only be closed when the vital interests of the state so require o In support, see O’Connell: unsure if Aramco meant that ports must open to trades or that int law forbids discrimination among foreign ships using ports- “If a country chooses to close its ports altogether that would seem to be an act of sovereignty, but if it opens them, it must open them … arguably … to all-comers, on a nondiscriminatory basis”: O’Connell, The International Law of the Sea (1984) vol II, p 848); o Nicaragua [1986]: by virtue of its sovereignty, a coastal state may regulate access to its ports- may make entry to their ports/internal waters subject to compliance with requirements for the control of pollution of the marine environment  Coastal State has unlimited prescriptive and enforcement jurisdiction in the internal waters  But they usually leave jurisdiction over criminal acts taking place on foreign ships in internal waters to the flag State of the ship concerned, unless the act disturbs the “public peace” of the coastal State o R v Anderson (1868) Facts: D= US national- found guilty of manslaughter on board a British ship. The offence was committed in France’s territorial waters. D argued that the British Court had no jurisdiction to try him.  D was subject to the American jurisprudence as an American citizen, and to the law of France for committing the crime within its territory and also to jurisdiction of British law, which extends to the protection of British vessels.  France will not assert their police law unless invoked by the master of the vessel or that the offence leads to the disturbance of the peace of the port. o Wildenhus’s Case, 120 US 1 (1887) Facts: W=Belgian crew member of a Belgian shipguilty by US court for murder of another Belgian crew on board when docked in the US port. Argued that US lacked jurisdiction.  Principle: Disorders which disturb only the peace of the ship are to be dealt with exclusively by the flag ship. But those which disturb the public peace may be suppressed or punished by authorities of the local jurisdiction.  Adopts the common law view as to a coastal state’s enforcement jurisdiction over crimes committed by foreign ships in int water, ie coastal state may in law exercise jurisdiction in all criminal matters but that as a matter of comity it should not do so unless the crime disturbs its peace of tranquillity. The civil view is that this is a limitation of int law, not of comity. It would appear

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that the coastal state’s enforcement jurisdiction in civil matters is unrestricted Archipelagos and archipelagic States are covered by Part IV of UNCLOS o Art 8(1): “Except as provided in Part IV, waters on the landward side of the baseline of the territorial sea form part of the internal waters of the State.” o Examples of archipelagic States include Indonesia and the Philippines UNCLOS, Art 47: (1) “An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. (2) The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles. (3) The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago. …” UNCLOS, Art 48: The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. UNCLOS, Art 50: Within its archipelagic waters, the archipelagic State may draw closing lines for the delimitation of internal waters, in accordance with articles 9, 10 and 11.” Rivers – UNCLOS, Art 9: If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-water line of its banks. Bays – UNCLOS, Art 10(2): A bay is a “well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation.” UNCLOS, Art 10(4): i]f the distance between the low-water marks of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. UNCLOS, Art 10(5): Where the distance … exceeds 24 nautical miles, a straight baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length. Bays belonging to more than 1 State: o Not covered by UNCLOS o The territorial waters should simply follow the sinuosities of the coast, subject to any special agreement. (author: Colombos) o Eg: Gulf of Aqaba in the Red Sea which is bordered by Egypt, Israel, Jordan and Saudi Arabia Historic bays: o Not covered by UNCLOS

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Tunisia/Libya (1982) ICJ: Historic bays must enjoy respect and be preserved as they always have been by long usage:  International law does not provide a single regime for ‘historic bays’ but only for a particular regime for each of the recognised cases of history bays.  Hence, for historic bays, there does not appear to be any maximum length for a closing line; a line of any length may be accepted by other states o Study by the UN Secretariat in 1962: under customary int law, a state may validly claim title to a bay on historic grounds if it can show that it has ‘for a considerable period of time’ claimed the bay as internal waters and effectively exercised its authority therein, and that during this time the claim has received the acquiescence of other states. o Gulf of Fonseca: ICJ held that it is a historic bay held in sovereignty jointly by El Salvador, Honduras and Nicaragua, but excluding the existing 3-mile belt held under the exclusive sovereignty of each state. The Bay, including the 3-mile belt, was found to continue to be subject to the right of innocent passage o Gulf of Sirte: Libya claimed that it is a historic bay. The period since 1973 does not constitute ‘a considerable period of time’ and Libya’s claim was not recognised by other states. Therefore, the US was entitled to treat the Gulf as high seas and to hold naval manoeuvres UNCLOS, Art 11: For the purpose of delimiting the territorial sea, the outermost permanent harbour works which form an integral part of the harbour system are regarded as forming part of the coast.

3) Territorial Sea  For many years, no agreement on the breadth of the territorial sea (3 – 200 nautical miles)  UNCLOS, Art 3: Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.  Still quite diverse practice in 2002  If States are opposite or adjacent to each other: UNCLOS, Art 15: o Where the coasts of 2 States are opposite or adjacent to each other, neither of the 2 States is entitled, failing agreement between them to the contrary, to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured. o This does not apply where “it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith.  Right of innocent passage – UNCLOS, Art 17: Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.  What is “innocent passage”? UNCLOS, Art 19(1): Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Such passage shall take place in conformity with this Convention and with other rules of international law

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Art 19(2) Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities: a) any threat or use of force b) any exercise or practice with weapons of any kind; c) any act aimed at collecting information to the prejudice of the security of the coastal State; d) any act of propaganda aimed at affecting the defence or security of the coastal State; e) the launching, landing or taking on board of any aircraft; f) the launching, landing or taking on board of any military device; g) the loading or unloading of [anything] contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State; h) any act of wilful and serious pollution contrary to this Convention; i) any fishing activities; j) the carrying out of research or survey activities; k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State; l) any other activity not having a direct bearing on passage. Does it cover warships, or merely merchant ships?  US-USSR Joint Declaration- yes, includes warships, regardless of cargo, armament or means of propulsion  A coastal state which questions whether the ship is innocent shall inform the ship of the reason why it questions the innocence of the passage, and provide the ship an opportunity to clarify its intention/correct its conduct in a reasonably shot time. If not, coastal state may require it to leave its territorial sea according to Art 30.  Wording of UNCLOS—just refers to “ships” and all submarines to navigate on the surface  Contrary State practice  Corfu Channel case (1948)- warships have a right of innocent passage through international straits in the territorial sea but did not consider their position beyond that  USSR position is not shared by over 40 coastal states which have national legislation and declarations which presently claim a right to control entry of warships into their territorial seas by means of prior notification, or limitations on number of warships present at any one time. UNCLOS, Art 21 – Coastal State may adopt laws and regulations re innocent passage, e.g.:  the safety of navigation and the regulation of maritime traffic;  the protection of navigational aids and facilities and other facilities or installations;  the protection of cables and pipelines; and  the conservation of the living resources of the sea, etc. If the coastal State suspects non-innocent passage, UNCLOS, Art 25(1): “The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.” And UNCLOS, Art 25(3): “The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of Page 6 of 22

foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published.” UNCLOS, Art 27 (Criminal jurisdiction): “(1) The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: a) if the consequences of the crime extend to the coastal State; b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances.” UNCLOS, Art 28(1) Civil jurisdiction: “The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.  Common law view: since the territorial sea is a sovereign territory, coastal states have a unlimited power to legislate on civil and criminal law matters for all ships that venture therein, although as a matter of comity they will exercise self-restraint  Civil law view: for jurisdictional purposes, a ship is the territory of the flag state- coastal states have only such prescriptive jurisdiction as states generally agree, and that agreement exists only in respect of matters that are of their nature related to passage. Since it lists only such matters, it might be inferred from the text of Art 21 that it favours the civil law view so that, for eg, a coastal state may legislate to prevent dangerous navigation by a ship in innocent passage, but not the murder of crew members on board

Straits  Designation as an “international strait” does not affect legal status of the waters (UNCLOS, Art 34)  UNCLOS, Art 37: international straits are “used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone”.  UNCLOS, Art 38:  (1) In straits … all ships and aircraft enjoy the right of transit passage, which shall not be impeded …  (2) Transit passage” means the exercise of “the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.”  But (Art 38(1)): if the strait is formed by an island of a State bordering the strait and its mainland, transit passage shall not apply if there exists seaward of the island a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics  Art 39: Duties on vessels when exercising right of transit: Page 7 of 22

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(a) To proceed without delay through or over the strait; (b) To refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;  (c) To refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. Art 45: the right of innocent passage also applies in international straits, and this right cannot be suspended (e.g., Strait of Tiran in Red Sea)

4) Contiguous Zone  UNCLOS, Art 33 – Coastal State may exercise control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws, and to punish infringements of the above laws committed within the territorial sea  May not extend more than 24 nautical miles from the baseline  “prevent”- suggests that a state might stop a vessel fr entering its waters when it has reason to believe that such an offence would be committed. 5) Continental shelf  Article77: Rights of the coastal State over the continental shelf (1) The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources. (2) The rights referred to in paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities without the express consent of the coastal State. (3) The rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express proclamation. (4) The natural resources referred to in this Part consist of the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil.  Art 77 reflects position in North Sea Continental Shelf [1969] ICJ: continental shelf= natural prolongation of its land territory into and under the sea—inherent right of coastal state by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources.  Extent of the continental shelf: UNCLOS, Art 76(1): o (1) … the seabed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baseline …” o (3) … the continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the

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slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.” (5) the maximum you can extend a continental shelf is 350 nautical miles, or 100 miles seawards of the 2500m isobath.

6) Exclusive Economic Zone  UNCLOS, Art 55: an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.  UNCLOS, Art 57: States can claim an EEZ of up to 200 nautical miles  UNCLOS, Art 56: In the EEZ, Coastal States have “sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil ...” 7) High Seas  UNCLOS, Art 86: “The provisions of this Part (‘the High Seas’) apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58 i) Freedom of the High Seas  UNCLOS, Art 87(1): The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law.  The freedom of the high seas comprises, inter alia: o a) freedom of navigation o b) freedom of overflight; o c) freedom to lay submarine cables and pipelines, subject to Part VI (‘the Continental Shelf’); o d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI (‘the Continental Shelf’); o e) freedom of fishing, subject to the conditions laid down in section 2; o f) freedom of scientific research, subject to Parts VI (‘the Continental Shelf’) and XIII (‘Marine Scientific Research’).  UNCLOS, Art 87 is not an exhaustive list o E.g., weapons testing, exercises, naval manoeuvres, observing other States’ naval manoeuvres  UNCLOS, Art 88: The high seas shall be reserved for peaceful purposes. o What about nuclear weapons testing? Unclear but several regional agreements such as the Treaty of Rarotonga establishing a South Pacific Nuclear Free Zone and the Treaty on the Southeast Asia Nuclear Weapon Free zone are evidence of a custom prohibiting nuclear testing, at least within these regions.

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UNCLOS, Art 89: No State may validly purport to subject any part of the high seas to its sovereignty

ii) Nationality of ships  UNCLOS, Art 90: Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.  UNCLOS, Art 91: o 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. o 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect  NB the “genuine link” requirement  There are several notorious “open registry States”, or “flags of convenience” (e.g., Liberia, Panama) o Concerns about this practice, abuse of concept of nationality, etc  UN Convention on Conditions for the Registration of Ships (1986): States parties must have a competent and adequate national maritime administration which has to ensure that ships flying its flag comply with international rules concerning the safety of ships and marine pollution (Art 1). o States parties must include in their registry of shipping:  information identifying those owning and managing its ships and hence accountable for them (Art 6);  ensure that its nationals participate to a required degree in either the ownership or the manning of its ships (Arts 8 and 9); and  ensure that those responsible for the management of its ships are able to meet operational financial obligations (Art 10).  M/V Saiga o Facts: Owned by a Cypriot company, managed by a Scottish company, chartered to a Swiss company- Master and crew of the Saiga were all Ukrainian- Previously been registered as a Maltese vessel- 6 month certificate of provisional registration as a St Vincent and Grenadines registered ship expired on 12 September 1997; a permanent certificate was not issued until 28 November 1997 - arrested by the Guinean coast guard outside the Guinean EEZ What was the nationality of the Saiga? o Saint Vincent and the Grenadines argued that it was SVG:  inscription ‘Kingstown’ as the port of registry on the stern of the vessel;  documents on board;  ship’s seal which contained the words ‘Saiga Kingstown’; and  the then current charter-party which recorded the flag of the vessel as SVG.  Also conduct of SVG o Was there a “genuine link” for the purposes of Article 91(1)?  ITLOS: the purpose of the requirement was to secure more effective implementation of the duties of the flag State and not to establish criteria by

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reference to which the validity of the registration of ships in a flag State may be challenged by other States. iii) Jurisdiction on the High Seas  UNCLOS, Art 92(1): Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. (Lotus case- customary law) A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.  UNCLOS, Art 94(1): Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.  but see UNCLOS, Art 110: 1. A warship which encounters on the high seas a foreign ship (other than a ship entitled to immunity) is not justified in boarding it unless there is reasonable ground for suspecting that: o a) the ship is engaged in piracy; o b) the ship is engaged in the slave trade; o c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; o d) the ship is without nationality; or o e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. iv) Jurisdiction over international crimes on the high seas  Art 99: Every State shall take effective measures to prevent + punish the transport of slaves  Art 100 – “All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas …” (piracy defined in Article 101)  Art 105 – On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. v) Deep seabed  UNCLOS, Art 1(1): “the Area” is “the sea bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction.”  Art 136 – the Area and its resources are the “common heritage of mankind”  Art 137 – “No State shall claim or exercise sovereignty or sovereign rights over any part of the Area or its resources, nor shall any State or natural or juridical person appropriate any part thereof.” C. DELIMITATION OF MARITIME BOUNDARIES  Delimitation of the continental shelf and EEZ – mixture of UNCLOS and customary international law Art 74 (re the EEZ): o 1. “The delimitation of the EEZ between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article

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38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. o 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.” Art 83 (re the continental shelf): o 1. “The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution. o 2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV (settlement of disputes) North Sea Continental Shelf cases [1969] o the delimitation was to be effected: “in accordance with equitable principles, and taking account of all the relevant circumstances in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the seas, without encroachment on the natural prolongation of the land territory of each other.” o And negotiations on the delimitation should take into account the following considerations:  1. the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features;  2. so far as known or readily ascertainable, the physical and geological structure, and natural resources, of the continental shelf areas involved;  3. the element of a reasonable degree of proportionality, which a delimitation carried out in accordance with equitable principles ought to bring about between the extent of the continental shelf areas appertaining to the coastal State and the length of its Coast measured in the general direction of the coastline, account being taken for this purpose of the effects, actual or prospective, of any other continental shelf delimitations between adjacent States in the same region. Achieving an “equitable solution” o UNCLOS, Art 74(1), and Art 83(1) adopt the idea of an “equitable solution” when delimiting the EEZ / continental shelf What is an “equitable solution”? o The formula “avoids mentioning equidistance, equitable principles, special or relevant circumstances – and is virtually devoid of content.” (Malcolm Evans, ‘The Law of the Sea’, in Malcolm Evans (ed), International Law (2nd ed, 2006)) o “… there has to be room for differences of opinion about the interpretation of articles which, in a last minute endeavour at the Third United Nations Conference on the Law of the Sea to get agreement on a very controversial matter, were consciously designed to decide as little as possible. It is clear, however, that both Articles 74(1) and 83(1) envisage an equitable result.” (Eritrea/Yemen, Second Phase: Maritime Boundary, Award of 17 December 1999, para 116) Others are equally sceptical: Page 12 of 22


What is disturbing about the ‘equitable principles to produce equitable results’ formula is not that that there are choices being made to achieve a result – but that the result is nowhere articulated other than the self-serving description of ‘equitable’.” (Dame Rosalyn Higgins, Problems and Process – International Law and How we Use it (1993) 227.) o “The doctrine of the equitable result … if allowed its head, leads straight into pure judicial discretion and a decision based upon nothing more than the court’s subjective appreciation of what appears to be a ‘fair’ compromise of the claims of either side.” (Sir Robert Jennings, ‘Equity and Equidistance Principles’ (1986) Annuare suisse de droit international 27, 31 o Relation to Art 38(2) of the ICJ Statute? (“This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”)  How international tribunals apply this rule: o Maritime Delimitation in the Area between Greenland and Jan Mayen [1993] ICJ:  Prima facie: a median line delimitation between opposite coasts equitable solution  BUT there are situations - in which the relationship between the length of the relevant coasts and the maritime areas generated by them by application of the equidistance method, is so disproportionate that it is necessary to take this circumstance into account in order to ensure an equitable solution o Eritrea/Yemen, Maritime Delimitation: Second Phase, Award of 17 December 1999: Equidistance line normally provides an equitable boundary in accordance with the reqs of the Convention and those of Articles 74 and 83 o Land and Maritime Boundary between Cameroon and Nigeria [2002] ICJ= method is very similar to the equidistance method applicable in delimitation of the limitation of the territorial sea:  First: draw an equidistance line  Second: consider whether there are factors calling for the adjustment or the shifting of the line in order to achieve an equitable result.  What factors/relevant circs can be taken into account o No limit-North Sea Continental Shelf [1969] ICJ. They may include:  Configuration of the coast (North Sea Continental Shelf cases);  Presence of islands capable of generating claims to a continental shelf or EEZ (small islands may be given less effect, e.g., Scilly Isles in the Anglo-French Continental Shelf case);  Ensuring that areas appertaining to each State are not disproportionate to the ratio between the lengths of their ‘relevant coasts’ adjoining the area;  Prior conduct of the parties;  Security considerations;  Geological factors are not considered relevant where the distance between the coasts is less than 400nm;  Economic factors are generally not considered to be relevant Maritime Delimitation in the Black Sea (Romania v Ukraine) Facts: Page 13 of 22

Treaty between USSR and Romania of 1949 delimited a 12‐nm territorial sea around Serpents’ Island  Treaty between Romania and Ukraine on the Romanian‐Ukrainian State Border Régime, Collaboration and Mutual Assistance on Border Matters (2003) delimited land boundary and the territorial sea  No agreement on the continental shelf or EEZ ICJ considered:  The lengths of the respective coastlines of the two States: Romania’s was 248km, and the Ukraine’s was 705 km  The size of the maritime area of each State (although it confirmed that the purpose of delimitation is not to apportion equal shares of the area, and the calculation of the relevant area does not purport to be precise and is approximate) ICJ’s methodology: 1. Draw an equidistance line; 2. consider whether there are factors calling for the adjustment or shifting of the provisional equidistance line in order to achieve an equitable result; 3. verify that the line (a provisional equidistance line which may or may not have been adjusted by taking into account the relevant circumstances) did not lead to an inequitable result by reason of any marked disproportion between the ratio of the respective coastal lengths, and the ratio between the relevant maritime area of each State by reference to the delimitation line. Applying ICJ’s methodology:  Phase 1: The provisional equidistance line was constructed from the most appropriate points on the coasts, with particular attention being paid to protuberant coastal points situated nearest area to be delimited  Phase 2: Lengths of coasts, enclosed nature of Black Sea, presence of Serpents’ Island, conduct of the parties (concessions, fishing, naval patrols), cutting off effect, security considerations – none relevant in this case  Phase 3: “the continental shelf and exclusive economic zone allocations are not to be assigned in proportion to length of respective coastlines. Rather the Court will check, ex post facto, on the equitableness of the delimitation line it has constructed.” – no need for alteration here (Length: Romania : Ukraine = 1:2.8; Area: Romania : Ukraine: 1.2.1) D) DISPUTE SETTLEMENT UNDER UNCLOS Compulsory dispute settlement regime one of the major important achievements of UNCLOS  UNCLOS, Art 309: No reservations or exceptions may be made to this Convention unless expressly permitted by other articles of this Convention.  But see Art 298: When signing, ratifying or acceding to this Convention or at any time thereafter, a State may, without prejudice to the obligations arising under section 1, declare in writing that it does not accept any one or more of the procedures provided for in section 2 with respect to one or more of the following categories of disputes”: (a) maritime boundary disputes under Arts 15 / 74 / 83 (but declarant States must accept conciliation); (b) military activities and law enforcement activities; (c) disputes in respect of which the UNSC is exercising its functions

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UNCLOS, Art 279: States Parties shall settle any dispute between them concerning the interpretation or application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the UN Charter and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of the Charter. UNCLOS, Art 280: States may agree to settle a dispute by peaceful means of their own choice UNCLOS, Art 281(1): If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure.

Convention for the Conservation of Southern Bluefin Tuna, Art 16: 1. If any dispute arises between two or more of the Parties concerning the interpretation or implementation of this Convention, those Parties shall consult among themselves with a view to having the dispute resolved by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful means of their own choice. 2. Any dispute of this character not so resolved shall, with the consent in each case of all parties to the dispute, be referred for settlement to the ICJ or to arbitration; but failure to reach agreement on reference to the ICJ or to arbitration shall not absolve parties to the dispute from the responsibility of continuing to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above.  Japan argued (first argument): The dispute between it and Australia and New Zealand fell solely within the SBT Convention, and not within the scope of UNCLOS. The Southern Bluefin Tuna Convention was a lex specialis that subsumed, discharged and eclipsed any provisions of UNCLOS.  Australia/NZ argued: o The SBT Convention did not "cover" the relevant obligations of the Parties under UNCLOS. o The SBT Convention was intended to be a means of implementing UNCLOS obligations in respect of highly migratory species, not a means of escaping those obligations.  Tribunal held: Agreed with Australia/NZ – there is frequently a “parallelism of treaty obligations, such that disputes can arise under more than one treaty. Here there was a dispute under the SBT Convention, as well as under UNCLOS.  Japan argued (second argument): In any event, the conditions of Art 281 have not been met. Under Art 281, the procedures provided for in Part XV of UNCLOS apply only: a) where no settlement has been reached by recourse to such means and b) the agreement between the parties “does not exclude any further procedure”.  The Tribunal agreed with Japan: The first condition in Art 281 was satisfied, but as for the second condition, the Tribunal found that Article 16 of the SBT Convention excluded any further procedure, including UNCLOS dispute settlement: “the absence of an express exclusion of any procedure in Article 16 is not decisive.”  Cf Sir Kenneth Keith’s separate opinion:

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The word any in article 281(1) is significant since it requires the exclusion to be of any other procedure available between the Parties such as those under the compulsory jurisdiction of the International Court or other treaties for the peaceful settlement of disputes. o Given the presumption of the parallel and overlapping existence of procedures for the peaceful settlement of disputes appearing in international judicial practice and the general law of treaties, strong and particular wording are required to exclude any other procedure. o This is further supported by other particular provisions of Part XV and by the pivotal role compulsory and binding peaceful settlement procedures played and play in the preparation and scheme of UNCLOS.  Art 283: parties to a dispute have an obligation to exchange views, or consult, with a view to settling the dispute.  Art 284: parties can agree to refer the dispute to conciliation.  Art 287 1. “When signing, ratifying or acceding to this Convention or at any time thereafter, a State shall be free to choose, by means of a written declaration, 1 or more of the following means for the settlement of disputes concerning the interpretation or application of this Convention a) the International Tribunal for the Law of the Sea established in accordance with Annex VI; b) the International Court of Justice; c) an arbitral tribunal constituted in accordance with Annex VII; d) a special arbitral tribunal constituted in accordance with Annex VIII for one or more of the categories of disputes specified therein. 3. A State Party, which is a party to a dispute not covered by a declaration in force, shall be deemed to have accepted arbitration in accordance with Annex VII. 4. If the parties to a dispute have accepted the same procedure for the settlement of the dispute, it may be submitted only to that procedure, unless the parties otherwise agree. 5. If the parties to a dispute have not accepted the same procedure for the settlement of the dispute, it may be submitted only to arbitration in accordance with Annex VII, unless the parties otherwise agree. 3) Provisional Measures  Art 290(1): If a dispute has been duly submitted to a court or tribunal which considers that prima facie it has jurisdiction under this Part or Part XI, section 5, the court or tribunal may prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision.  Art 290(5): Pending the constitution of an arbitral tribunal to which a dispute is being submitted under this section, the ITLOS may prescribe, modify or revoke provisional measures in accordance with this article if it considers that prima facie the tribunal which is to be constituted would have jurisdiction and that the urgency of the situation so requires. 4) Prompt Release  Art 73(2): Arrested vessels and their crews shall be promptly released upon the posting of reasonable bond or other security. Page 16 of 22

Art 292(1): Where the authorities of a State Party have detained a vessel flying the flag of another State Party and it is alleged that the detaining State has not complied with the provisions of this Convention for the prompt release of the vessel or its crew upon the posting of a reasonable bond or other financial security, the question of release from detention may be submitted to any court or tribunal agreed upon by the parties or, failing such agreement within 10 days from the time of detention, to a court or tribunal accepted by the detaining State under article 287 or to the International Tribunal for the Law of the Sea, unless the parties otherwise agree. Art 292(3): The court or tribunal shall deal without delay with the application for release and shall deal only with the question of release, without prejudice to the merits of any case before the appropriate domestic forum against the vessel, its owner or its crew.

5) Hot Pursuit (1) The coastal State must have good reason to believe that the ship has violated the laws and regulations of that State (Art 111(1)); (2) The hot pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, or the EEZ/continental shelf if the violation of the coastal State’s applicable laws is suspected (Art 111(1) and (2)); (3) The hot pursuit may only be continued outside the territorial sea or the contiguous zone (or EEZ/continental shelf) if the pursuit has not been interrupted (Art 111(1) and (2)). (4) The ship giving the order to stop does not need to be likewise within the territorial sea or the contiguous zone or EEZ/continental shelf (Art 111(1) and (2)).  111(3): right ceases as soon as foreign ship enters territorial sea of another State  111(4): must first give visual or auditory signal to the vessel to stop (which it can see or hear)  111(5): right can only be exercised by naval vessel or military aircraft (or other vessels/planes in public service) E. CONTEMPORARY ISSUES 1) Piracy Background:  Civil war in Somalia 1990  Due to lack of effective government, pirates have had free reign in attacking shipping off the Somali coast  Attacks have been made in the territorial sea and beyond, up to 750 nm from the coast  Targets include cruise liners, tankers, ships carrying international aid, fishing and recreational vessels  From 2005‐2007, attacks/attempted attacks off Somali coast exceeded incidents for the Malacca Straits and the South China Sea combined  From 1992‐2000, Somalia had no representation at the UN  Transitional Federal Government (‘TFG’) in power since 2000, but lacks control over most of Somalia’s territory  Pirates operate from command centres on the Somali coast

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Pirates use “mother ships” from which they launch their smaller vessels to attack ships in the EEZ and the high seas After the attack, the ships retreat into the Somali territorial sea In 2003, 23 hostages taken; by 2008, this rose to 815; in 2010, 1,181 hostages were taken (with 760 still in captivity) In 2005, there were 35 attacks; in 2010, there were 219 attacks In 2011, there were 151 attacks Capture of M/V Rozen (World Food Programme vessel) in February 2007; vessel and crew of 12 held hostage for 40 days M/V Victoria (WFP) also attacked in May 2007, one crew member was killed Le Ponant (April 2008) attacked – French military responded (with Somalia’s consent) Worldwide ship hijackings (Jan – Sept 2009): o 34 hijackings o 559 hostages o 294 total attacks Gulf of Aden (Jan – April 2009): o 10 hijackings (of 38 attempts) o 26 interventions, 10 arrests In 2011: o 25 successful hijackings (of 151 attacks on vessels) As at February 2012: 10 vessels and 159 hostages being held Average ransom: USD 5.8 million Average length of hijacking 60‐70 days (but see “Win Far 161”, held for 10 months)

Legal framework for combatting piracy  UNCLOS, Art 100 (duty to cooperate): All States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.  UNCLOS, Art 101 (definition): Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: i. on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft; (c) any act of inciting or of intentionally facilitating … (a) or (b).  UNCLOS, Art 103 (pirate ship): A ship or aircraft is considered a pirate ship or aircraft if it is intended by the persons in dominant control to be used for the purpose of committing one of the acts referred to in Article 101.  UNCLOS, Art 105 (jurisdiction): o On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. Page 18 of 22


The courts of the State which carried out the seizure may decide upon the penalties to be imposed UNCLOS, Art 110 (right of approach): [A] warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity … is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy Where should pirates be prosecuted? o Under UNCLOS and customary international law, all States have universal jurisdiction to capture and prosecute pirates – but there is no obligation to do so o So States might not have adequate national laws o States might be reluctant to prosecute if there are no “links” o States might have impediments under their constitution or national law from being involved in efforts to combat piracy

Legal Framework – SUA Convention Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (1988)  Art 3: it is an offence to ‘seize or exercise control over a ship by force or threat thereof’  Art 4: not an offence where the offence took place within one State’s territorial sea, and the vessel was not scheduled to navigate beyond that territorial sea  Art 5: States parties have an obligation to legislate and criminalise acts committed against Article 3 of SUA: a) against or on board their flag vessels; b) within their territory, including their territorial sea; and c) by one of their nationals.  Arts 8 and 10: If a vessel detains a vessel or suspect under the SUA Convention, any port State which is a State party must accept delivery of the suspect and extradite or prosecute if there are reasonable grounds for suspecting they have committed an offence Summary of UNCLOS and SUA: UNCLOS:  no obligation on States to create national offences  need “two vessels”,  piracy must be “for private ends”- all acts lacking State sanction= private ends  no provision for States capturing pirates to transfer them to other States  automatic right to board on the high seas SUA: – obligation on States to create national offences – obligation to accept delivery of pirates, and to extradite or prosecute – no automatic right to board on the high seas – haphazard implementation by different States UN SECURITY RESOLUTIONS  UNSCR 1816: authorised interdiction operations in Somalia’s territorial sea (cf UNCLOS – EEZ and high seas only), and use “all necessary means to repress acts of piracy and armed robbery at sea”—overcomes the problem where pirates are able to launch attacks in

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international waters and then quickly return to Somali territorial waters when int ships pass through a narrow corridor in the Gulf of Eden o Limitations: o Only for six months o It did not make the international law of piracy directly applicable in Somali territorial waters o No solution re jurisdiction to try pirates UNSCR 1838: exhorted States whose naval vessels operate on the high seas off the coast of Somalia to use on the high seas the necessary means, in accordance with international law, as reflected in UNCLOS, for the repression of acts of piracy UNSCR 1846: o Extended UNSCR 1816 for 12 months o Called on States and regional organisations with the capacity to do so ‘to take part actively in the fight against piracy and armed robbery at sea off the coast of Somalia’ o Noted provisions of SUA Convention UNSCR 1851: States and regional organisations cooperating in the fight against piracy and armed robbery at sea off the coast of Somalia … may undertake all necessary measures that are appropriate in Somalia, for the purpose of suppressing acts of piracy and armed robbery at sea, pursuant to the request of the TFG UNSCR 1897: renewed authorisations in UNSCR 1846 and UNSCR 1851 UNSCR 2020: Renews authorisations of previous UNSCRs until November 2012 Current response: o 24 naval vessels patrolling the area- Coalition Taskforce 150/151 ‘Enduring Freedom’, EU, NATO—but then more to ward off pirates, rather than to pursue or apprehend them- deployment of a naval contingent is an expensive undertaking relative to the costs of ransom o For prosecution of pirates:- Prisoner transfer agreements have been agreed (EU/UK/US/Denmark – Kenya: sea robbers captured by the Royal Navy to be tried in Kenyan Courts; EU/UK – Seychelles; China – TFG; France – Puntland o Trials can take / have taken place in Kenya, US, Netherlands, France, Seychelles, Tanzania o Query validity of transferring captured pirates to 3rd states having regard to Art 105drafting history clearly reveals that this provision was intended to preclude transfers to 3rd party states. Problems: o Different naval forces have different mandates o States who capture pirates reluctant to detain them o Practical difficulties with prosecutions (cf UNSCR 1918 (2010))- called on countries to criminalise piracy within their national laws o Legal difficulties – e.g., application of ECHR? Refugee Convention? captured pirates come under the protection guaranteed by the Convention as soon as they are under the effective control of a state naval vessel. Hence the states are obliged to secure for everyone within their jurisdiction the rights and freedoms defined under the Convention. The captured pirates , can thus assert human rights protection/violations under Articles 2 (right to life); 3 prohibition of torture and Page 20 of 22

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other forms of inhumane and degrading treatment); 5 (right to liberty and security – relating to detention); 6 (right to a fair trial); and 7 (due judicial process before punishment). Workload of States carrying out prosecutions (see Kenya’s decision on 1 April 2010) So “catch and release” policy re‐implemented? International Criminal Tribunal for pirates? Best hope: restoration of effective government in Somalia?

2) Whaling in the Southern Ocean  See Australia’s Application Instituting Proceedings against Japan before the ICJ (31 May 2010)  There is a long‐running contest between whaling states and anti‐whaling states whether there should be (i) limited whaling, or (ii) no whaling  This has been a source of contention for the International Whaling Commission (‘IWC’)  IWC’s moratorium on commercial whaling  International Convention on the Regulation of Whaling (1946) did not originally contain such a ban, but the moratorium was adopted in 1982  Japan initially objected to the amendment (so was not bound by it), but it withdrew its objection by the end of 1987  Japan launched a “scientific whaling” programme for minke whales  ICRW, Art VIII(1): Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once to the Commission all such authorizations which it has granted. Each Contracting Government may at any time revoke any such special permit which it has granted.  Japan is not the only country with active whaling programmes  Iceland and Norway continue to engage in commercial whaling  Another exception is “aboriginal subsistence whaling”, which is permitted (Denmark, Russian Federation, St Vincent and the Grenadines, United States)  Australia has long criticised Japan for increasing annual takes that amount to over 1,000 minke whales  Election promise of Rudd Government (Federal Election in 2007)  Rudd Government continued to pursue diplomacy, but when this failed, ICJ proceedings launched in May 2010  Australia argues that “JARPA II” is breach of Japan’s obligations under ICRW, CITES, and CBD  JARPA I commenced in 1987‐88. From 1987‐2005, over 6,800 minke whales were taken  JARPA II (2005 – ) more than doubles the take of minke whales, to around 850 per year (cf the 2010‐2011 season, which was abandoned early, with less than 100 whales), and also includes humpback whales and fin whales  See Australia’s Application Instituting Proceedings Page 21 of 22

Obligations allegedly breached by Japan  International Convention on the Regulation of Whaling: (i) failure to observe in good faith the moratorium on commercial whaling; (ii) failure to observe prohibition on whaling for humpback and fin whales in Southern Ocean Whale Sanctuary Japan’s catch cannot be justified as “scientific whaling” under Art VIII(1) due to: (i) scale of programme; (ii) lack of relevance for conservation of stocks; (iii) risks presented to targeted species and stocks This is essentially an “abuse of rights” argument  Convention on International Trade in Endangered Species: The taking of humpback whales under JARPA II violates Arts II and III(5) of CITES o Under Art II(1), trade in Appendix I species “must be subject to particularly strict regulation in order not to endanger further their survival and must only be authorized in exceptional circumstances.” o Under Art III(5), Appendix I species can only be introduced into a State subject to a number of strict conditions certified by relevant state authorities  Convention on Biological Diversity: o Violation of Arts 3, 5, and 10(b)  Art 3 requires States to ensure that activities under their jurisdiction and control do not cause harm to other states or to areas beyond national jurisdiction.  Art 5 requires States, “as far as possible and as appropriate,” to cooperate in the conservation and sustainable use of biological diversity beyond national jurisdiction.  Art 10(b) requires States, “as far as possible and as appropriate,” to adopt measures that avoid or minimise adverse impacts on biological diversity.

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