Functional Jurisdiction in the Law of the Sea (Publications on Ocean Development)

FUNCTIONAL JURISDICTION IN THE LAW OF THE SEA

Publications on Ocean Development Volume 62 A Series of Studies on on the International, Legal, Legal, Institutional and Policy Aspects of Ocean Development General Editor: Vaughan Vaughan Lowe Lowe Chichele Professor Professor of Public International Law and Fellow Fellow of All Souls College, Oxford University

The titles published in this series are listed at the end of this volume .

Functional Jurisdiction in the Law of the Sea

MARIA GAVOUNELI

MARTINUS NIJHOFF PUBLISHERS LEIDEN / BOSTON

This book is printed on acid-free paper. A Cataloging-in-Publica Cataloging-in-Publication tion record record for this book book is available available from from the Library of Congress.

ISBN: 978 90 04 16345 4

© 2007 Koninklijke Brill B rill NV, NV, Leiden, The Th e Netherlands Koninklijke Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP VSP. http:/ http ://www.brill.nl /www.brill. nl All rights reserved. reserved. No part of this publication publication may be reproduced, stored in a retrieval retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization Authorization to photocopy photocopy items for for internal or personal use is granted by Brill Academic Academic Publishers provided provided that the appropriate appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers MA 01923, USA. Fees are subject to change. Printed and bound in The Netherlands.

Every book is a story. This is a story about haddocks, stingrays and the ship above them. I wrote it surrounded by a bevy of willing young minds and a host of old friends and family. For the comfort, the support, the helping hand, the little messages of kind words, I thank you all. And all my gratitude and love for   , in the truest Greek sense of the word. For bearing with me… Athens, March 2007

TABLE OF CONTENTS Foreword ……………………………………………………….……… Abbreviations ………………………………………………….….……

ix xi

Part I Jurisdiction in the Law of the Sea Chapter 1 The manifestations of jurisdiction ……................................................... 1. Territoriality ………………………………………….………... 2. Nationality ……………………………………………………... 3. Universality ……………………………………………………. 4. Passive personality & the protective principle ……………........

5 7 13 19 29

Chapter 2 State jurisdiction in the sea .……………………………………………. 1. The flag State ..……………………………………………….... 2. The coastal State …….……………………………………….... 3. The port State ………………………………….…………..…... 4. Concurrent jurisdiction in the law of the sea …………….….....

33 34 39 44 49

Part II Challenges to the jurisdictional zones Chapter 3 Jurisdiction in the exclusive economic zone ……................................... 1. The balance of power ..……………………………………….... 2. The outer limits of a balancing act .............................................. 3. The attraction of unilateralism ……………………….………... 4. De uni pluria? …………………………………...……………... Chapter 4 Fisheries jurisdiction in the high seas …………………………………. 1. The traditional regulation of high seas fisheries ……………….

1

59 61 62 69 82 90 97 98

viii

TABLE OF CONTENTS

2. Institutional approaches to jurisdictional challenges ………….. 3. Jurisdiction without consent? ……………………………...…... 4. From freedom to fish to a right of access? ……………………..

107 118 127

Part III Challenges to the allocation of jurisdiction Chapter 5 Jurisdiction in the deep sea ……..…….................................................... 1. The jurisdictional exception of the deep seabed ……………..... 2. An institutional approach? ……………...……………………... 3. Manifestations of the freedoms of the high seas …..................... 4. Parallel jurisdictions in the deep sea……………........................

133 136 141 147 152

Chapter 6 Challenges to jurisdiction in the high seas ………………………….…. 1. The limits of flag State jurisdiction …………………….…….... 2. Expanding jurisdiction? …...…………………………………... 3. Limitations to flag State exclusivity? ………………………….. 4. A solid foundation ……………………………………………...

157 159 165 171 177

Table of treaties ……..……………………….………………………… Table of documents ……………………………………………………. Table of legislation …………………………………………………….. Table of cases ………………………………………………………….. Bibliography …………………………………………………………… Index ……………………………………………………………………

179 191 203 209 215 277

131

FOREWORD It is a commonplace observation that the 1982 UN Convention on the Law of the Sea establishes a framework for the Law of the Sea that is based upon two different concepts. One is a zonal analysis, which takes the juridical zones into which the seas are divided and stipulates the basic rules applica ble to each of them in turn. The other is a topical analysis, taking some of the main activities on the seas, such as fishing, marine research and pollution, and again setting out the basic rules for each. The framework is, however, incomplete, and a great deal is left open, not only to be worked out in more detailed treaties but also to be governed by more general principles of international law. In this way the 1982 regime will continue to develop to meet new challenges and changed circumstances. In this monograph Dr Gavouneli explores these issues and offers an expert insight into the jurisdictional developments that are clearly discernable a quarter-century after the adoption of the Convention. Her keen analysis moves from fundamental principles governing jurisdiction in international law to shrewd reflections on the significance of current developments such as the Proliferation Security Initiative and questions of jurisdiction over the international seabed area. This thoughtful text will be of real interest to all who have a concern with the directions in which the contemporary Law of the Sea is growing. Vaughan Lowe Oxford, August 2007

ABBREVIATIONS ADM AEDPA AFDI African JICL AJCL AJIL APM ARIEL Arizona JICL Asia Pacific JEL Asian YBIL ASR ATBA AWPPA BCN weapons Berkeley JIL BOE Boston College ICLR Boston ULR Brooklyn JIL Buffalo HRLR BYBIL California LR California Wester n ILJ Cambridge YB European Legal Studies Canadian YBIL

Annuaire du Droit de la Mer Anti-terrorism & Effective Death Penalty Act (USA) Annuaire français de droit international African Journal of International & Comparative Law American Journal of Comparative Law American Journal of International Law Associated Protective Measures Austrian Review of International & European Law Arizona Journal of International & Comparative Law Asia Pacific Journal of Environmental Law Asian Yearbook of International Law Articles on State Responsibility Areas to be Avoided Arctic Waters Pollution Prevention Act (Canada) Biological, chemical & nuclear weapons Berkeley Journal of International Law Boletín oficial del Estado Boston College International & Comparative Law Review Boston University Law Review Brooklyn Journal of International Law Buffalo Human Rights Law Review British Yearbook of International Law California Law Review California Western International Law Journal Cambridge Yearbook of European Legal Studies Canadian Yearbook of International Law

xii


CAS CBD CCAMLR CCSBT CDEMs CETS CFR CFSP CITES CMLR Colorado JIELP COLREG Columbia J Transn’l L Cornell LR CSA DOALOS EC ECHR ECJ Ecology LQ ECOSOC ECR EEC EEnvLR EEZ EJIL Emory ILR Env’l & Planning LJ ETS EU European LR FAO

Condition Assessment Scheme Convention on Biological Diversity Convention for the Conservation of Antarctic Marine Living Resources Commission for the Conservation of Southern Bluefin Tuna Construction, design, equipment and manning standards Council of Europe Treaty Series Code of Federal Regulations Common Foreign & Security Policy (European Union) Convention on international trade in endangered species of wild fauna & flora Common Market Law Review Colorado Journal of International Environmental Law & Policy Convention on the International Regulations for Preventing Collisions at Sea (IMO) Columbia Journal of Transnational Law Cornell Law Review Canada Shipping Act Division for Ocean Affairs and the Law of the Sea European Community European Court of Human Rights European Court of Justice Ecology Law Quarterly Economic & Social Council European Court Reports European Economic Community European Environmental Law Review Exclusive Economic Zone European Journal of International Law Emory International Law Review Environmental & Planning Law Journal European Treaty Series European Union European Law Review Food & Agricultural Organisation

ABBREVIATIONS

Florida JIL Georgetown IELR Georgia JICL Georgia JICLQ Georgia LR GFCM GYBIL Harvard ILJ Harvard JLPP Hofstra LR IATCC ICC ICCAT ICCPR ICJ ICLQ ICTY IELR IJMCL ILA ILC ILM ILO ILR IMO INDEMER Indian JIL IOFC IOrgLR IOTC ISA ISM Code Israel YBHR Italian YBIL

xiii

Florida Journal of International Law Georgetown International Environmental Law Review Georgia Journal of International & Comparative Law Georgia Journal of International Comparative Law Quarterly Georgia Law Review General Fisheries Commission for the Mediterranean German Yearbook of International Law Harvard International Law Journal Harvard Journal of Law & Public Policy Hofstra Law Review Inter-American Tropical Tuna Commission International Criminal Court International Commission for the Conservation of Atlantic Tunas International Covenant on Civil & Political Rights International Court of Justice International & Comparative Law Quarterly International Criminal Tribunal for the former Yugoslavia International Environmental Law Reports International Journal of Marine & Coastal Law International Law Association International Law Commission International Legal Materials International Labour Organisation International Law Reports International Maritime Organisation Institut du droit économique de la mer Indian Journal of International Law Indian Ocean Fishery Commission International Organisations Law Review Indian Ocean Tuna Commission International Seabed Authority International Code for the Safe Operation of Ships and for Pollution Prevention (IMO) Israel Yearbook of Human Rights Italian Yearbook of International Law

xiv


ITLOS IUU fishing IWC JDI JEL JENRL JHA JICJ JIML JMLC JO Leiden JIL LOSC MARPOL Max Planck YBU NL Melbourne JIL Melbourne ULR MERC Michigan JIL MOU NAFO NEAFC NGO NILR Nordic JIL NPT NRJ NYBIL NYUJILP NZJEL OAS Ocean YB OCLJ ODIL OECD

International Tribunal for the Law of the Sea Illegal, Unreported & Unregulated fishing International Whaling Committee Journal de droit international Journal of Environmental Law Journal of Energy and Natural Resources Law Justice & Home Affairs (European Union) Journal of International Criminal Justice Journal of International Maritime Law Journal of Maritime Law & Commerce Journal Officiel (France) Leiden Journal of International Law Law of the Sea Convention International Convention for the Prevention of Pollution from Ships (IMO) Max Planck Yearbook of United Nations Law Melbourne Journal of International Law Melbourne University Law Review Marine Environment Protection Committee (IMO) Michigan Journal of International Law Memorandum of Understanding North Atlantic Fisheries Organisation North-Eastern Atlantic Fisheries Commission Non Governmental Organisation Netherlands International Law Review Nordic Journal of International Law Non-Proliferation of Nuclear Weapons Natural Resources Journal Netherlands Yearbook of International Law New York University Journal of International Law & Policy New Zealand Journal of Environmental Law Organization of American States Ocean Yearbook Ocean & Coastal Law Journal Ocean Development & International Law Organisation of Economic Cooperation & Development

ABBREVIATIONS

OJ OPA Oregon LR OSPAR Ottawa LR Pace ILR PCA PCIJ PC-TJ PSI PSSA RBDI RCADI RCDIP RDI RECIEL REDI RFMO RFO RGA RGDIP RHDI RJE RMCUE S.Ct. San Diego ILJ San Diego LR SAR SEAFO Singapore JICL SIPRI SOFA SOLAS

xv

Official Journal Oil Pollution Act (USA) Oregon Law Review Convention for the Protection of the Marine Environment of the North-East Atlantic Ottawa Law Review Pace International Law Review Permanent Court of Arbitration Permanent Court of International Justice Committee of Experts on Transnational Justice (CoE) Proliferation Security Initiative Particularly Sensitive Sea Area Revue belge de droit international Recueil des cours de l’Académie de droit international Revue critique de droit international privé Rivista di diritto internazionale Review of European Community & International Environmental Law Revista española de derecho internacional Regional Fisheries Management Organisation Regional Fisheries Organisation Rivista giuridica dell’ambiente Revue général de droit international public Revue hellénique de droit international Revue juridique de l’environnement Revue de marché commun et de l’Union européenne Supreme Court (USA) San Diego International Law Journal San Diego Law Review International Convention on Maritime Search & Rescue (IMO) Convention on the conservation & management of the fisheries resources of the South East Atlantic Singapore Journal of International & Comparative Law Stockholm International Peace Research Institute Status of Forces Agreement International Convention on the Safety of Life at Sea (IMO)

xvi


South African YBIL Spanish YBIL SPAW SPRFMO STCW SUA Convention Suffolk Transn’l LR Sydney LR Syracuse JICL Syracuse JILC TAC Temple ICLJ Tennessee LR Texas JIL Texas LR TIJMCL Transportation LJ Tulane ELJ Tulane JICL Tulane LR U Miami IALR UDHR UK UN UNCED UNCLOS UNESCO UNHCR UNICPLOS UNRIAA UNTS

South African Yearbook of International Law Spanish Yearbook of International Law Specially Protected Areas & Wildlife South Pacific Regional Fisheries Management Organisation International Convention on Standards of Training, Certification & Watchkeeping for Seafarers (IMO) Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (IMO) Suffolk Transnational Law Review Sydney Law Review Syracuse Journal of International & Comparative Law Syracuse Journal of International Law & Commerce Total Allowable Catch Temple International & Comparative Law Journal Tennessee Law Review Texas Journal of International Law Texas Law Review The International Journal of Marine & Coastal Law Transportation Law Journal Tulane Environmental Law Journal Tulane Journal of International & Comparative Law Tulane Law Review University of Miami Interamerican Law Review Universal Declaration of Human Rights United K ingdom United Nations United Nations Conference on Environment & Development United Nations Conference on the Law of the Sea United Nations Educational, Scientific & Cultural Organisation United Nations High Commission for Refugees United Nations Informal Consultative Process on the Law of the Sea United Nations Reports of International Arbitral Awards United Nations Treaty Series

ABBREVIATIONS

US USC UST Vanderbilt J Transn’l L Vermont LR Virginia JIL VTS WCPFC West Indian LJ WHO Wisconsin ILJ WMD WMUJMA WTO Yale JIL YBIEL YBILC ZaöRV

United States United States Code United States Treaties Vanderbilt Journal of Transnational Law Vermont Law Review Virginia Journal of International Law Vessel Traffic Services Western & Central Pacific Fisheries Committee West Indian Law Journal World Health Organisation Wisconsin International Law Journal Weapons of Mass Destruction World Maritime University Journal of Maritime Affairs World Trade Organisation Yale Journal of International Law Yearbook of International Environmental Law Yearbook of the International Law Commission Zeitschrift für ausländisches öffentliches Recht & Völkerrecht

xvii

PART I

JURISDICTION IN THE LAW OF THE SEA When on 10 December 1982 the Law of the Sea Convention 1 was finally concluded, after one of the lengthier ever negotiations in international lawmaking, the end-product was truly impressive. Much more than a codifying treaty in progressive development of a very old branch of international law or even simply “a constitution for the oceans” 2 , the new instrument created an integral normative system, complete with a compulsory dispute settlement mechanism and its own (though non-exclusive) judicial forum. It was also a new blueprint for the partition of the sea 3 , a monumental allocation of powers strongly reminiscent of – and certainly comparable to – the very real struggle 4 underpinning the intellectual duel evidenced in Huig de Groot’s Mare liberum (1609) 5 and John Shelden’s Mare clausus (1635) 6 . As such the Law of the Sea Convention (LOSC) was the culmination of the tug-of-war between the sovereignty of the coastal State, which atavistically purports to expand its power further and further away from land; and the freedom of the 1833 UNTS 396; 21 ILM 1982, pp. 1261-1354. 2 Thus the statement of Tommy T.B. Koh, President of the Third UN Conference on the Law of the Sea; see ; see also Robin R. Churchill, 10 Years of the UN Convention on the Law of the Sea – Towards a global ocean regime? A general appraisal, 48 GYBIL 2005, pp. 81-116, at pp. 84-88; Shirley V. Scott, The Law of the Sea Convention as a constitutional regime for the oceans, in Alex G. Oude Elferink (ed.), Stability and change in the Law of the Sea: The role of the Law of the Sea Convention (Martinus Nijhoff, 2005) pp. 9-38; Bernard H. Oxman, The rule of law and the United Nations Convention on the Law of the Sea, 7 EJIL 1996, pp. 353-371. 3 P.J. Allott, Power-sharing in the Law of the Sea, 77 AJIL 1983, pp. 1-30. 4 For the history of the law of the sea in detail see D.P. O’Connell, The International Law of the Sea (vol. I, Clarendon, Oxford 1982) pp. 1-28; R.P. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited (Martinus Nijhoff, The Hague 1983); Hugo Caminos & Vicente Marotta Rangel, Sources of the Law of the Sea, in RenéJean Dupuy & Daniel Vignes (eds.), A Handbook of the New Law of the Sea (Martinus Ni jhoff, Dordrecht 1991) pp. 29-139; T. Scovazzi, The evolution of international law of the sea: New issues, new challenges, 286 RCADI 2000, pp. 39-244, at pp. 55-121. 5 Anonymous, Mare liberum sive de jure, quod Batavis competit ad Indicana commercia, dissertatio (Ludguni Batavorum 1609); Hugo Grotius, The Freedom of the Seas (Carnegie Endowment for International Peace, New York, reprinted 1952). 6 J. Seldenus, Mare clausum seu de dominio maris libri duo (Londini 1635). 1

2


high seas, a principle partly created as a reflexion of the impossibility to subdue the vast expanse of water for long centuries in human history 7 . The trend was already in place when the 1930 Hague Conference for the Codification of International Law was convened, where Bases of Discussion No. 1 stated: “A State possesses sovereignty over a belt of sea around its coasts; this belt constitutes its territorial waters” 8 . The 1945 Truman Proclamations on the continental shelf 9 and coastal fisheries 10 ushered in a wave of similar proclamations in a continuing wave of expansion 11 – all the way to the Chilean concept of mar presencial , first introduced by Admiral Jorge Martinez Busch, Commander in Chief of the Chilean Navy 12 and tentatively defined as “[a] type of contiguous zone to the exclusive economic zone, in which the State may prevent infringements of its fishing, research and resources exploitation interests in the exclusive economic zone” 13 . Thus Joe Verhoeven, Droit international public (Larcier, Bruxelles 2000) at p. 521; although one should also keep in mind the Roman mare nostrum approach to the Mediterranean Sea and the Inter Caetera bull of Pope Alexander VI, done on 4 May 1493; text available at . 8 Reproduced in S. Rosenne (ed.), League of Nations Conference for the Codification of International Law 1930 (vol. II, Oceana, New York 1975) at p. 235. See also Jesse S. Reeves, The codification of the law of territorial waters, 24 AJIL 1930, pp. 486-499. 9 Presidential Proclamation No. 2667, Policy of the United States with respect to the natural resources of the subsoil and the sea bed of the continental shelf , 28 September 1945, 10 Federal Registry 12303, [1943-48] 3 CFR §68. It was further supplemented by Executive Order No. 9633, 28th September 1945, 10 Federal Registry 12305, [1943-48] 3 CFR §437. See also Donald Cameron Watt, First steps in the enclosure of the oceans. The origins of Truman’s Proclamation on the Resources of the Continental Shelf, 3 Marine Policy 1979, pp. 211-214. 10 Presidential Proclamation No. 2668, Policy of the United States with respect to coastal fisheries in certain areas of the high seas, 28 September 1945, 10 Federal Registry 12304, [1943-48] 3 CFR §68. Again it was further supplemented by Executive Order No. 9634, 28th September 1945, 10 Federal Registry 12305, [1943-48] 3 CFR §437. 11 4 Whiteman’s Digest of International Law 1964, at p. 740. See, however, Georges Scelle, Plateau continental et droit international, RGDIP 1955, pp. 5-65. 12 “La gran tarea de esta generación es la ocupación efectiva de nuestro mar”, Clase magistral dictada por el Comandante en Jefe de la Armada, Valparaíso, 4 May 1990; Jorge Martinez Busch, El mar presencial: un nuevo concepto unificador del derecho internacional del mar, 60 Revista de Derecho de la Universidad de Concepción 1992, pp. 7-24. 13 Jane Gilliland Dalton, The Chilean mar presencial : A harmless concept or a dangerous precedent? 8 IJMCL 1993, pp. 397-418, at p. 400. For an overview see Francisco Orrego Vicuña, La ‘mer de présence’: un nouveau développement en droit international à l’égard de la pêche en haute mer, 7 Espaces et ressources maritimes 1993, pp. 32-46; contra: Thomas A. Clingan, Jr., Mar presencial (the presential sea): déjà-vu all over again? – a response to Francisco Orrego Vicuña, 24 ODIL 1993, pp. 93-97; Christopher C. Joyner & Peter N. DeCola, Chile’s presential sea proposal: implications for straddling stocks and the international law of fisheries, 24 ODIL 1993, pp. 99-121; Bernard Labat, Le concept chilien de ‘mer presentielle’ 7

JURISDICTION IN THE LAW OF THE SEA

3

The 1958 UN Conference on the Law of the Sea (UNCLOS I) ended up with the adoption of four conventions 14 and the creation of five zones in the sea 15 : internal waters, territorial sea, the contiguous zone, the high seas and, underneath it all, the continental shelf. This zonal approach, mostly based on concentric circles drawn from the baseline, was further accentuated in the Law of the Sea Convention, where the distance element was replaced by a spatial element tout court . We now have six categories of marine water spaces: internal waters 16 , territorial sea17 , archipelagic waters 18 , contiguous zone 19 , exclusive economic zone (EEZ) 20 , high seas 21 ; and two categories of marine underwater areas: the continental shelf 22 and the Area 23 – and perhaps even a archaeological zone 24 . The ‘unlimited expanse’ of Grotius has been converted into tidy stripes of jurisdiction, often vying for the same territory. In a typical example25 , the contiguous zone is a part of the high seas, if the coastal State has not declared an exclusive economic zone; otherwise, it becomes a part of the exclusive economic zone. Similarly, when no exclusive economic zone exists, the waters above the continental shelf are the high et ses conséquences sur le régime de la pêche dans la partie de la haute mer adjacente à la limite des 200 milles marins, 2 Annuaire du Droit de la Mer 1997, pp. 29-52. 14 Convention on the High Seas, 450 UNTS 82; Convention on the Continental Shelf, 499 UNTS 311; Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205; Convention on Fishing and Conservation of the Living Resources of the High Seas, 559 UNTS 285. 15 Arthur H. Dean, The Geneva Conference on the Law of the Sea: What was accom plished, 52 AJIL 1958, pp. 607-628; Wolfgang Friedmann, Selden Redivinus – Toward a Partition of the Seas?, 65 AJIL 1971, pp. 757-770. 16 Article 8 LOSC. 17 Article 2 LOSC. 18 Articles 46-54 LOSC. 19 Article 33 LOSC. 20 Article 55 LOSC. 21 Article 86 LOSC. 22 Article 76 LOSC. 23 Article 1 paragraph 1(1) LOSC. 24 Articles 303 and 149 LOSC. For an overview see A. Strati, The protection of the underwater cultural heritage: An emerging objective of the contemporary law of the sea (Martinus Nijhoff, The Hague 1995); Tullio Scovazzi, The protection of underwater cultural heritage: Article 303 and the UNESCO Convention, in David Freestone, Richard Barnes & David Ong (eds.), The Law of the Sea. Progress and Prospects (Oxford 2006) pp. 120-136; Anastasia Strati, Protection of the underwater cultural heritage: From the shortcomings of the UN Convention on the Law of the Sea to the compromises of the UNESCO Convention, in A. Strati, M. Gavouneli & N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 21-62. 25 Mentioned also by Yoshifumi Tanaka, Zonal and integrated management approaches to ocean governance: Reflections on a dual approach in the international law of the sea, 19 TIJMCL 2004, pp. 483-514, at p. 485.

4


seas; if, however, the coastal State establishes an exclusive economic zone, then the continental shelf becomes the seabed part of that exclusive economic zone 26 . In view of the multiplication and overlapping of these diverse zones, it becomes clear that one cannot proceed with the examination of the manifold manifestations of jurisdiction in the Law of the Sea Convention (Chapter 2) without a preliminary understanding of what jurisdiction is and how it works in international law generally and in the law of the sea in particular (Chapter 1); in other words, the tools of the trade. A final comment is perhaps not necessary. Throughout this book, reference will be made to the provisions of the Law of the Sea Convention as identical to the rules of customary international law of the sea – except where it is clearly indicated otherwise. It is widely understood that the Law of the Sea Convention constituted a codification of customary rules, existing at the time, and contained also instances of progressive development of international law, which have become in a very short period of time customary rules in their own right 27 . I believe that the record of State practice, including that of the United States 28 , conspicuously absent so far from the world community adhering to this universal treaty 29 , testifies to the general acceptance of its content as part of the general customary law of the sea. For it is, after all, a constitution for the oceans.

Article 56 paragraph 1 LOSC. See also François Pulvenis, Zone économique et plateau continental: unité ou dualité, 11-12 Revue iranienne des relations internationales 1978, pp. 103-120. 27 Continental Shelf Tunisia/Libyan Arab Jamahiriya, ICJ Reports 1982, available at ; see also Rudolf Bernhardt, Custom and treaty in the Law of the Sea, 205 RCADI 1987-V, pp. 247-330. 28 For an overview see the hearings on the Law of the Sea Convention before the Foreign Affairs Committee of the US Senate, available at ; see also John A. Duff, A note on the United States and the Law of the Sea: Looking back and moving forward, 35 ODIL 2004, pp. 195-219; John Norton Moore & William L. Schachte, Jr., The Senate should give immediate advice and consent to the UN Convention on the Law of the Sea: Why the critics are wrong, 50 Journal of International Affairs 2005, pp. 1-24, at p. 20. 29 The Law of the Sea Convention had, as of March 2007, 157 signatories and 153 ratifications; data available at . See also R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press 1999) at p. 22. 26

CHAPTER 1

THE MANIFESTATIONS OF JURISDICTION “International jurisdiction is an aspect or an ingredient or a consequence of sovereignty” 1 , stated succinctly F.A. Mann in the beginning of his second foray on The Doctrine of International Jurisdiction at the Hague Academy of International Law. “The legal rules and principles governing jurisdiction have a fundamental importance in international relations, because they are concerned with the allocation between States, and other entities such as the European Union, of competence to regulate daily life – that is, the competence to secure the differences that make each State a distinct society” 2 , commented on a more practical level Vaughan Lowe. Both aspects are essential for our understanding of jurisdiction and its function in the international scene today. Dealing with jurisdiction in one of its first pronouncements, the Permanent Court of International Justice already noted in the S.S. Lotus case 3 that a State’s “title to exercise jurisdiction rests in its sovereignty” 4 . It does not, however, coincide with such sovereignty nor is it a uniform concept. Jurisdiction may be encountered in various shapes and forms, with different notions of it available at the international and the national level 5 . It could refer to the judicial, legislative or administrative competence of the State 6 . It could apply to civil cases broadly defined, i.e. including fiscal and taxation matters 7 , as ‘civil jurisdiction’ and to criminal cases as ‘criminal jurisdiction’ – F.A. Mann, The doctrine of international jurisdiction revisited after twenty years, 196 RCADI 1984-III, pp. 9-116, at p. 20. 2 Vaughan Lowe, Jurisdiction, in Malcolm D. Evans (ed.), International Law (2nd ed., Oxford 2006) pp. 335-360, at p. 336. 3 The case of SS Lotus, France v. Turkey, Judgment no. 9, PCIJ, Ser. A, No. 10, 1927, pp. 3-33; also available at . The case also has the unenviable privilege to be actually overturned by subsequent State practice and international treaty, namely the allocation of jurisdiction in article 11 paragraph 2 of the 1958 High Seas Convention; 450 UNTS 82. 4 The SS Lotus case , supra, at p. 19. 5 Oppenheim’s International Law, vol. I: Peace, Introduction and Part 1 (9th edition, edited by Sir Robert Jennings & Sir Arthur Watts, Longman 1992) at p. 456. 6 Ian Brownlie, Principles of Public International Law (6th edition, Oxford 2003) at p. 297. 7 See in particular F.A. Mann, The doctrine of international jurisdiction, 111 RCADI 1964I, pp. 9-168, at pp. 109-119. 1


6

allowing international courts and tribunals to extract different conclusions on common rules 8 . It could be partitioned to ‘executive jurisdiction’, the power of a State to perform acts in the territory of another State; ‘judicial jurisdiction’, the power of a State’s courts to try cases involving a foreign element; and ‘legislative jurisdiction’, the power of a State to apply its laws to cases involving a foreign element 9 . The more traditional descriptive approach distinguishes between “the power to make decisions or rules (the ‘prescriptive or legislative jurisdiction’)” and “the power to take executive action in pursuance of or consequent on the making of decisions or rules (the ‘enforcement or prerogative jurisdiction’)”10 . It is quite clear, however, that ultimately the legal basis of all aspects of jurisdiction remains the same, namely State sovereignty – and whatever the label attached, jurisdiction remains the external manifestation of the power of the State. A mutual limitation of sovereign powers, in a world inhabited by equal, sovereign and independent States, becomes therefore a necessary corollary to State jurisdiction as a State’s right to prescribe (and enforce) rules for persons in another State is subject to that other State’s right to prescribe (and enforce) such rules itself. The legitimacy of contradictory claims may then be verified on the basis of commonly agreed bases of jurisdiction, the typical recital of which includes: the principle of territoriality, “determining jurisdiction by reference to the place where the offence is committed” 11 ; the principle of nationality, “determining jurisdiction by reference to the nationality or national character of the person committing the offence” 12 ; the universality principle, “determining jurisdiction by reference to the custody of the person committing the offence” 13 ; the protective principle, “determining jurisdiction by reference to the national interest injured by the offence” 14 ; 







Thus the European Court of Human Rights in the Al-Adsani case distinguishing between civil and criminal jurisdiction in order to decide whether State immunity should yield before a ius cogens rule; ECHR, Al-Adsani v. United Kingdom, Grand Chamber, 21 November 2001, App. No. 35763/97, . 9 Michael Akehurst, Jurisdiction in international law, 46 BYBIL 1972-73, pp. 145-257, at p. 145; Malcolm Shaw, International Law (5th ed., Cambridge 2003) at pp. 576-578. 10 Brownlie, supra note 6, at p. 297. 11 As defined in the Introductory Comment to the Harvard Research Draft Convention on Jurisdiction with Respect to Crime, 29 AJIL 1935, Spec. Suppl., at p. 443. 12 Ibid . 13 Ibid . 14 Ibid. 8

THE MANIFESTATIONS OF JURISDICTION

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the passive personality principle, “determining jurisdiction by reference to the nationality or national character of the person injured by the offence” 15 . Most domestic legal orders operate on all or some of these principles 16 – or even manifestations thereof. The allocation of jurisdiction in the law of the sea is mostly based on the application of the first three principles. Roughly speaking, the principle of territoriality operates in the areas under the sovereignty of the coastal State; nationality is embodied in the flag and expressed in the powers of the flag State; whereas universality is manifested in the regulation of crimenes iure gentium, traditionally piracy. There are, however, instances where other bases of jurisdiction operate. In a typical exam ple, the contiguous zone is the embodiment of the protective principle; the latter’s irruption in the high seas (coupled with the aggressive application of the passive personality principle) is further contributing to the primary tension between State jurisdiction and freedom of the seas. 

1. TERRITORIALITY The principle of territoriality is derived directly from the territorial element of the State 17 and denotes the sum of its legal competences, its ‘plenary’ jurisdiction, summa potestas. As such it is further complemented by instances where the State exercises prescriptive jurisdiction over activities initiated in its territory but completed outside its territory (‘subjective territorial jurisdiction’) or activities completed within its territory although initiated outside its territory (‘objective territorial jurisdiction’)18 . The latter has Ibid . Note, however, that the 1935 Harvard Research Draft Convention adopted only the first four principles, considering the last one of questionable permissibility; ibid ., at 579. See also Angelos Yokaris, La répression pénale en droit international public (Ant. N. Sakkoulas/Bruylant, Athènes/Bruxelles 2005) at pp. 43-45. 16 Thus in the Greek legal order the jurisdiction of Greek courts is found on all of the above principles: territoriality in article 5 of the Criminal Code; nationality in article 6 CC; passive personality in article 7 CC; the protective principle and universality in article 8 CC; Christos Mylonopoulos,   .       [= International Criminal Law. The territorial limits of criminal laws] (2nd ed., Athens 1993). 17 D.W. Bowett, Jurisdiction: Changing patterns of authority over activities and resources, 53 BYBIL 1982, pp. 1-26; Oppenheim’s, supra note 5, pp. 458-461. See also The Schooner Exchange v. Mac Faddon (1812), 7 Cranch 116, at p. 136 per Marshall, CJ; North Atlantic Coast Fisheries case (1910), 11 UNRIAA 167, at p. 180; Compania Naviera Vascongado v. Cristina SS [1938] AC 485, at pp. 496-497 per Lord Macmillan; R. v. West Yorkshire Coroner, ex parte Smith [1983] QB 335, at p. 358 per Donaldson LJ. 18 Lowe, supra note 2, at p. 338; Brownlie, supra note 6, pp. 299-301. The typical example of the latter is the Lockerbie case, where Scots law was successfully asserted and the trial took 15

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given rise to significant legal controversy when the US courts assumed jurisdiction in antitrust litigation over activities which, though neither actually initiated nor completed in the US, produced nevertheless “effects” within US territory 19 . Although later mitigated in (fluctuating) practice 20 , the effects doctrine gave rise to repeated assertions of extraterritoriality, usually on political grounds – in the most recent example, in the context of economic sanctions initially against Cuba (by virtue of the Helms-Burton Act) 21 and later against Iran and Libya (by virtue of the D’Amato-Kennedy Act) 22 . The response by the international community was invariably negative, feeding a

place in the Netherlands in a courtroom deemed under Scots jurisdiction; High Court of Judiciary, HM Advocate v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, case no. 1454/99, available at . A. Aust, Lockerbie: The other case, 49 ICLQ 2000, pp. 278-296; Michel Cosnard, Observations à propos de l’arrêt rendu par la Haute Cour de Justice écossaise dans l’affaire de Lockerbie, AFDI 2000, pp. 643-653; Sean D. Murphy, Contemporary practice of the United States, 95 AJIL 2001, at pp. 405-407; JeanFrançois Marchi, Le règlement des affaires Lockerbie et du DC-10 d’UTAQ: Indemnités et questions connexes, AFDI 2004, pp. 173-212. 19 In the classical formulation of the doctrine “any State may impose liabilities, even upon persons not within its allegiance, for conduct outside its borders that has consequences within its borders which the State reprehends”; US v. Aluminium Company of America (Alcoa), 148 F.2d 416 (1945), at p. 443; later reaffirmed in US v. The Watchmakers of Switzerland Information Center, Inc., 133 F.Supp. 40 and 134 F.Supp. 710 (1963); Hazeltine Research Inc. v. Zenith Radio Corporation, 239 F.Supp. 51 (1965), aff’d 395 US 100 (1969). For a concise overview see Shaw, supra note 9, at pp. 611-620. 20 Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (1976); Mannington Mills v. Congoleum Corporation, 595 F.2d 1287 (1979); Hoffmann-La Roche Ltd. V. Empagran S.A., 542 US 155 (2004); but see also Hartford Fire Insurance Co. v California, 113 S. Ct. 2891 (1993). For full commentary see Harold Maier, Interest balancing and extraterritorial jurisdiction, 31 AJCL 1983, pp. 579-597; Wilbur Fugate, Antitrust aspects of the Revised Restatement of Foreign Relations Law, 25 Virginia JIL 1984, pp. 49-71; Andreas Lowenfeld, Conflict, balancing of interests and the exercise of jurisdiction to prescribe: Reflections on the In surance Antitrust case, 89 AJIL 1995, pp. 42-53. 21 Cuban Liberty and Democratic Solidarity (Libertad) Act 1996 (Helms-Burton Act), Public Law 104-114, 22 USC 6021, 35 ILM 1996, pp. 357-378. See also Andreas F. Lowenfeld, Congress and Cuba: The Helms-Burton Act, 90 AJIL 1996, pp. 419-434; contra: Brice Clagett, Title III of the Helms-Burton Act is consistent with International Law, ibid., pp. 434-440. 22 Iran and Libya Sanctions Act 1996 (D’Amato-Kennedy Act), Public Law 104-172, 50 USC 1701, 35 ILM 1996, pp. 1273-1279. For general reactions see Vaughan Lowe, US extraterritorial jurisdiction: the Helms-Burton and D’Amato Acts, 46 ICLQ 1997, pp. 378-390; Michel Cosnard, Les lois Helms-Burton and D’Amato-Kennedy. Interdiction de commercer avec et d’investir dans certains pays, AFDI 1996, pp. 31-61; Brigitte Stern, Vers une mondialisation juridique ? Les lois Helms-Burton et D’Amato-Kennedy, RGDIP 1996, pp. 9791003. See also the reaction by the Organisation of American States, Inter-American Juridical Committee, Opinion examining the US Helms-Burton Act, OAS Doc. CJI/SO/II/doc.67/96rev.5, 27 August 1996, 35 ILM 1996, pp. 1322-1334.


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circle of reaction and counteraction in many States 23 and principally in its major economic and political partner, the European Community 24 and the European Union 25 . The (quasi-) normalisation of the commercial transactions adversely affected by the controversy was later achieved by an exercise in ‘positive comity’ involving a series of agreements between the parties 26 . The political aspects, however, were to reach new heights, even becoming a regular feature in the UN General Assembly agenda 27 , before a mutually restraining compromise was reached 28 . For an overview see A.V. Lowe (ed.), Extraterritorial Jurisdiction (Grotius, Cambridge 1983); idem, The problems of extraterritorial jurisdiction: Economic sovereignty and the search of a solution, 34 ICLQ 1985, pp. 724-746. For a discussion of such blocking statutes as countermeasures see Linos-Alexandre Sicilianos, La codification des contre-mesures par la Commission du droit international, 38 RBDI 2005, pp. 447-500, at pp.463-465; H. Gherari & S. Szurek (eds.), Sanctions unilatérales, mondialisation du commerce et ordre juridique international. A propos des lois Helms-Burton et D’Amato-Kennedy (CEDIN, Paris 1998). 24 Thus ECJ, case 89/85, Ahlstrom Osakyhtio v. Commission, judgment of 27 September 1988, [1988] ECR 5193; Michael Akehurst, Decisions of the Court of Justice of the European Communities in 1988, 59 BYBIL 1988, pp. 405-420, at pp. 415-419; D. Lange & J.B. Sandage, The Wood Pulp decision and its implications for the scope of EC Competition Law, 26 CMLR 1989, pp. 137-165; Brigitte Stern, L’extraterritorialité revisitée: Où il est question des affaires Alvarez-Machain, Pâte de bois et de quelques autres, AFDI 1992, pp. 239-313. 25 Council Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon and resulting therefrom, OJ L 309, pp. 1-6, 29 November 1996; Joint Action 96/668/ CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extraterritorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, OJ L 309, p. 7, 29 November 1996; both available at . 26 Agreement between the European Community and the United States concluded on 23 September 1991, 30 ILM 1991, p. 1487. Quashed by the ECJ, case C-327/91, French Republic v. Commission of the European Communities, [1994] ECR I-3641, it was reintroduced by the Decision of the Council and the Commission of 10 April 1995 concerning the conclusion of the Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws, OJ L 95, pp. 45-52, 27 April 1995; and was supplemented on 4 June 1998 by the Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws, OJ L 173, pp. 28-31, 18 June 1998. See also J. Basedow, Souveraineté territoriale et globalisation des marchés: le domaine d’application des lois contre la restriction de la concurrence, 264 RCADI 1997, pp. 9-178; Stefaan Smis & Kim Van Der Borcht, The EU-US compromise on the Helms-Burton and D’Amato Acts, 93 AJIL 1999, pp. 227-236. 27 For the latest instalment see UN General Assembly Resolution 61/11, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba, UN Doc. A/Res/61/11, 5 December 2006, preambular paragraph 4: “Concerned at the continued promulgation and application by Member States of laws and regulations, such as that promulgated on 12 March 1996 known as the “Helms-Burton Act”, the extraterritorial effects of which affect the sovereignty of other States, the legitimate interests of 23

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The end of this particular episode did not deter any further irruptions of extraterritoriality. Thus, in a typical example, the 2001 Patriot Act29 authorised the US Government to seize funds held by a non-US bank in the United States, if a customer account maintained overseas in the non-US bank is sub ject to forfeiture proceedings under the US money laundering legislation; yet, the bank is still contractually liable to its depositor outside the United States. The multiplication of such instances caused a reaction by the international business community: In 2006 the International Chamber of Commerce produced a Policy Statement on Extraterritoriality and Business, prepared by a Task Force on Extraterritoriality, whereby it “… encourages policy-makers, including legislators and regulators, as well as courts, to recognise international comity and principles of moderation and respect for other States’ interests when enacting legislation, enforcing rules or otherwise exercising jurisdiction” 30 .

Nevertheless, the extent of the territorial jurisdiction does not coincide with the territory of the State. Typically, it acquires a functional nature when it extends to the contiguous zone, where the State can exercise jurisdiction in relation to customs, fiscal, sanitary and immigration matters31 ; or in order to “protect objects of an archaeological and historical nature found at sea” 32 .

entities or persons under their jurisdiction and the freedom of trade and navigation”; available at . 28 Memorandum of Understanding between the European Union and the US concerning the US Helms-Burton Act and the US Iran and Libya Sanctions Act, concluded on 11 April 1997, whereby the application of the statute was suspended regarding European companies and consequently the European Union dropped its case before the WTO against the US; 36 ILM 1997, pp. 529-530. 29 Uniting and Strengthening America by providing appropriate tools required to intercept and obstruct terrorism (USA Patriot Act) Act 2001, Pub.L. 107-56, as amended by the US Patriot Improvement and Reauthorisation Act 2005; text available at . For the tip of the iceberg see Fletcher N. Baldwin, The rule of law, terrorism and countermeasures including the USA Patriot Act of 2001, 16 Florida JIL 2004, pp. 43-87; Richard H. Seamon & William Dylan Gardner, The Patriot Act and the wall between foreign intelligence and law enforcement, 28 Harvard JLPP 2005, pp. 319-464. 30 International Chamber of Commerce, Policy Statement: Extraterritoriality & Business, Recommendation no. 1, Document 103-33/5 Final, 13 July 2006, available at (emphasis in the original). See also at a similar attempt for a draft White Paper and recommendations by the International Bar Association Task Force on Extraterritorial Jurisdiction, dealing with extraterritoriality in the context of competition and antitrust, bribery and corruption, tort law, criminal law, securities and insolvency law; for the latest developments see . 31 Article 33 LOSC. 32 Article 303 LOSC.


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The State may also assert jurisdiction in the exclusive economic zone over the exploration for and exploitation of the living and non-living resources, including energy sources 33 ; over the establishment and use of artificial islands and structures 34 , including exclusive and full civil and criminal jurisdiction over them irrespective of whether they are situated in the exclusive economic zone 35 or the continental shelf 36 ; marine scientific research 37 ; and the protection and preservation of the marine environment 38 . It would be wrong, however, to assume that within its borders the State can do as it likes: In spite of the general rule of article 2 paragraph 7 of the UN Charter, the domestic jurisdiction of States is necessarily restricted by considerations of international law, e.g. human rights protection rules or humanitarian law concerns, let alone the contractual granting to or waiver of rights in favour of another State 39 . Indeed, whether a particular issue falls within the ambit of domestic jurisdiction is itself a question of international law, as both the Permanent Court of International Justice 40 and the International Court of Justice 41 had occasion to affirm. Thus, the assumption of jurisdiction on the territoriality principle, although justly considered one of the foundation stones of jurisdiction, remains far from unchallenged. In contrast, the assertion of territorial jurisdiction in cases of enforcement jurisdiction is universally accepted42 – and in this respect the notorious dictum in the S.S. Lotus case holds true: Article 56 paragraph 1(a) LOSC. 34 Article 56 paragraph 1(b)(i) LOSC. 35 Article 60 LOSC. 36 Article 80 LOSC. 37 Article 56 paragraph 1(b)(ii) LOSC. 38 Article 56 paragraph 1(b)(iii) LOSC. 39 In a typical example, see the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ L 239, pp. 19-62, 22 September 2000; to which acceded Italy, ibid ., pp. 63-68; Spain, ibid., pp. 69-75; Portugal, ibid, pp. 76-82; Greece, ibid., pp. 83-89; Austria, ibid., pp. 90-96; Denmark, ibid., pp. 97-105; Finland, ibid., pp. 106-114; and Sweden, ibid., pp. 115-123. 40 Thus the advisory opinion in the Nationality Decrees in Tunis and Morocco case, PCIJ, Ser. B, No. 4, 1923, pp. 7-32, at pp. 23-24; also available at . 41 Thus Anglo-Norwegian Fisheries case, UK v. Norway, ICJ Reports 1951, pp. 116-144; also available at . 42 For the practical effects of the distinction see Federal Trade Commission v. Compagnie de Saint-Gobain-Pont-à-Mousson, 20 ILM 1981, pp. 597-617; Conseil constitutionnel, décision du 11 février 1982, JO 1982, p. 301; Geneviève Burdeau, La contribution des nationalisations françaises de 1982 au droit international des nationalisations, RGDIP 1985, pp. 5-28. On the other side of the coin, the rule ‘mala captus bene detentus’ seems to have acquired customarylaw status: Opinion of the US Supreme Court in the case of Alvarez-Machain, 112 S. Ct. 33

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“the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention.” 43

Such contractual arrangements are rather frequent in practice – and thus the categorical character of exclusive jurisdiction assumed by the PCIJ has certainly been mitigated. They include, typically, Status of Forces Agreements (SOFA) 44 ; the rather more “traditional” form of cooperation – in the words of the Eritrea-Ethiopia Boundary Commission 45 –: exchange of customs personnel 46 ; and even practical arrangements in occupied territories 47 . Indeed, the whole idea of an ‘area of freedom, security and justice’ in the European Union 48 is based on the mutual acceptance of each member State’s 2188, 31 ILM 1992, at pp. 900-952; Malvina Halberstam, In defence of the Supreme Court decision in Alvarez-Machain, 86 AJIL 1992, pp. 736-746; Michael Glennon, State-sponsored abduction: A comment on United States v. Alvarez Machain, ibid., pp. 746-756; Rosemary Rayfuse, International abductions and the US Supreme Court: The law of the jungle reigns, 42 ICLQ 1993, pp. 882-897; Dominique Carreau, Droit international (7th ed., Pedone, Paris 2001) at p. 341, paragraph 845. 43 See supra note 3, at pp. 18-19. 44 See, for instance, the Agreement between the Parties to the North Atlantic Treaty regarding the status of their forces, done on 19 June 1951, TIAS no. 2846. For a taste of the relevant debate see Andrea Carlevaris, Recenti sviluppi nella prassi degli ‘Status-of-Forces Agreements’ per le operazioni di peace-keeping delle Nationi Unite, 53 La comunità internazionale 1998, pp. 667-691; Yokaris, supra note 15, at pp. 42-43; John W. Egan, The future of criminal jurisdiction over the deployed American soldier. Four major trends in bilateral US Statusof -Forces Agreements, 20 Emory ILR 2006, pp. 291-343. 45 Eritrea-Ethiopia Boundary Commission, Decision on the delimitation of the border between Eritrea and Ethiopia, 13 April 2002, paragraph 6.31, available at . 46 Thus the British and the French authorities in the Channel Tunnel under the Protocol concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, done on 25 November 1991; documents available at Geoffrey Marston, UK materials in international law, 64 BYBIL 1993, pp. 579-758, at pp. 647-648. 47 Thus under Annex I(b) on the Naharayim/Baqura area and Annex I(c) on the Zofar/AlGhamr area of the 1994 Treaty of Peace between Israel and Jordan, 34 ILM 1995, pp. 46-66. 48 Gilles de Kerchove and Anne Weyembergh (eds.), L’espace pénal européen: Enjeux et perspectives (Bruxelles 2002); Sionaidh Douglas-Scott, The rule of law in the European Union. Putting the security into the “area of freedom, security and justice”, 20 European LR 2004, 219-242; Neil Walker (ed.), Europe’s area of freedom, security and justice (Oxford 2004). The most prominent example of such parallel and overlapping jurisdiction is the Euro pean Arrest Warrant; Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between the member States, OJ L 190, p. 1, 18 July 2002, available at . For the pros and cons of the system see, among many others, Luisa Verucci, The European Arrest Warrant. An additional tool for prosecuting


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jurisdiction over the territory of another – thus creating what I call a ‘millefeuille effect’ of parallel and overlapping jurisdiction. The same principle ap plies in the ‘area of shared responsibility’ in matters of transnational criminal justice currently under development by the Council of Europe49 . It is also important to note that enforcement jurisdiction is also recognised on the basis of actual control over territory, including control through the actions of State officials 50 . In view of the human rights obligations incumbent upon all States, such extraterritorial jurisdiction may well evolve into a powerful weapon allocating – or even redistributing – jurisdiction and its corollary, State responsibility51 . 2. NATIONALITY The connection between the State and its nationals is one of the oldest legal links. For long centuries jurisdiction applied to the person, wherever that was to be found, rather than to a defined territory – indeed, traces of this personal jurisdiction may still be found in the case, common in civil law countries, where a national commits a criminal act abroad (active personality principle). The contemporary manifestation of this possibility, long considered unthinkable in common law jurisdictions 52 , allows for the prosecution of international crimes by the State of nationality of the perpetrator in lieu of ICC crimes, 2 JICJ 2004, pp. 275-285; Nicola Vennemann, The European Arrest Warrant and its human rights implications, 63 ZaöRV 2003, pp. 103-121; Alicia Pinajeros Parga, Bundesverfassungsgericht (German Constitutional Court) decision of 18 July 2005 (2 BvR 2236/04) on the German European Arrest Warrant Law, 43 CMLR 2006, pp. 583-595. 49 See Committee of Experts on Transnational Justice (PC-TJ), Final Activity Report , 20 December 2005, Doc. PC-TJ (2005) 10, available at . 50 Thus ECHR, Loizidou v. Turkey (Preliminary Objections), Series A, No. 310, 1995, p. 20; Haritini Dipla, Responsabilité de l’État et droits de l’homme: L’arrêt de la Cour de Strasbourg à l’affaire Loïzidou c. Turquie, 50 RHDI 1997, pp. 17-42; and ECHR, Bankovic v. Belgium, judgment of 12 December 2001, paragraphs 63, 67 and 71, available at . See, in general, F. Coomans & M.T. Kamminga (eds.), Extraterritorial application of human rights treaties (Intersentia, Antwerp/Oxford 2004); Morten Peschardt Pedersen, Territorial jurisdiction in Article 1 of the European Convention on Human Rights, 73 Nordic JIL 2004, pp. 279-305; Theodor Meron, Extra-territoriality of human rights treaties, 89 AJIL 1995, pp. 78-82; G. Cohen-Jonathan, La territorialisation de la juridiction de la Cour Européenne des Droits de l’Homme, 13 Revue trimestrielle des Droits de l’homme 2002, pp. 1069-1082. For the earlier doctrine see G.W. Keeton, Extraterritoriality in international and comparative law, 72 RCADI 1949-I, pp. 287-391. 51 Thus Max Huber, arbitrator, in PCA, Isle of Palmas arbitration, USA v. The Netherlands, 4 April 1928, 2 UNRIAA 830; also available at . 52 See, however, Paul Arnell, The case for nationality-based jurisdiction, 50 ICLQ 2001, pp. 955-962.

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surrendering such individual to the International Criminal Court 53 and of ma jor criminal offences, including sex crimes committed abroad54 ; and even serves as the foundation for the criminalisation of active corruption urbi et orbi 55 . Nationality confers upon a person rights and obligations towards the State 56 . On the domestic level such rights and obligations include, typically, the right to vote and the obligation to pay taxes and, traditionally, serve in the army. On the international level, they include the obligation to conduct oneself according to national laws and, most importantly, the right to diplomatic protection 57 . As the International Court of Justice put it in the Nottebohm case, nationality is “a legal bond having in its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.” 58

Indeed, such is the importance of the nationality link for a person that the right to a nationality is considered one of the core human rights, guaranteed in a series of international instruments including the Universal Declaration of Article 17 of the ICC Statute, adopted in Rome on 18 July 1998, UN Doc. A/Conf.183/9, 37 ILM 1998, at pp. 999-1069. On the principle of complementarity, in general, see John T. Holmes, The principle of complementarity, in Roy S. Lee (ed.), The International Criminal Court: Issues, negotiation, results (Kluwer, The Hague 1999) pp. 41-78; idem., Complementarity: National courts versus the International Criminal Court, in Antonio Cassese, Paola Gaeta & John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A commentary (vol. I, Oxford 2002) pp. 667-686; Sharon A. William, Commentary on Article 17, in Otto Triffterer (ed.), The Rome Statute of the International Criminal Court: Observers’ notes article by article (Nomos, Baden-Baden 1999) pp. 383 et seq., at pp. 385-392. See also Elisabeth Lambert-Abdelgawad, Le dessaisissement des tribunaux nationaux au profit des tribunaux pénaux internationaux: Un encadrement abusif par le droit international de l’exercice de la compétence judiciaire interne?, RGDIP 2004, pp. 407-438. 54 Thus, for instance, in the UK the Sexual Offences (Conspiracy and Incitement) Act 1996 and the Sex Offenders Act 1997; both available at . 55 Nationality jurisdiction being explicitly required by article 4 of the 1997 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 37 ILM 1998, pp. 1-11; also available at . For an overview see Maria Gavouneli, The international system of corruption control in I. Bantekas & G. Keramidas (eds.), Financial Crime: The international and European legal approach (Butterworths, London 2006) pp. 180-200. 56 R. Donner, The regulation of nationality in International Law (2nd ed., New York 1995); J.F. Rezek, Le droit international de la nationalité, 198 RCADI 1986-III, pp. 333-400. 57 For the latest overview see Vasileios Pergantis, Towards a ‘humanization’ of diplomatic protection?, 66 ZaöRV 2006, pp. 351-397. See also the Draft Articles on Diplomatic Protection adopted by the ILC on first reading in 2004 (John Dugard, special rapporteur), Report on the Work of the International Law Commission during its 56th session (2004), UN Doc. A/59/10, General Assembly Official Records, Suppl. No. 10, Chapter IV, pp. 13-93, paragraphs 38-60, at pp. 13-14, paragraphs 39-42, available at . 58 The Nottebohm case, Liechtenstein v. Guatemala, ICJ Reports 1955, pp. 4-27, at p. 23. 53


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Human Rights59 , the 1966 International Covenant on Civil and Political Rights 60 , the 1989 Convention on the Rights of the Child 61 and the 1997 European Convention on Nationality 62 . The granting of nationality becomes thus an issue of major importance – but it is one that international law typically relegates to the domestic jurisdiction of States 63 ; in the words of the Permanent Court of International Justice: “In the present state of international law, questions of nationality are, in the opinion of this Court, in principle within its reserved domain 64 .” 65

This absolute discretion has been qualified in practice, without never being negated in principle. Indeed, even in the Nottebohm case, where the International Court of Justice talked about a ‘genuine and close connection’ between the individual and the State, the question was rather the comparative value of the absence of any link with the nominal State of nationality (Liechtenstein) and the existence of such a real link with the State of resi Article 15 UDHR, adopted by UN General Assembly Resolution 217A (1948), UN Doc. A/810, available at . 60 Article 24 ICCPR, adopted by UN General Assembly Resolution 2200A (XXI), UN Doc. A/6316 (1966), 999 UNTS 171, available at . 61 Article 7 of the International Convention on the Rights of the Child, adopted by UN General Assembly Resolution 44/25, UN Doc. A/RES/44/25, 12 December 1989, available at . 62 Adopted in Strasbourg on 6 November 1997, ETS no. 166, available at . 63 See also article 1 of the 1930 Hague Convention on certain questions relating to the Conflict of Nationality Laws: “It is for each State to determine under its own law who are its nationals”; text available at . See also Paul Meyer, Droit international public et droit international privé sous l’angle de la notion de compétence, RCDIP 1979, pp. 349-388 and pp. 537-583. 64 The notion of ‘domaine réservé’ carries an immense ideological baggage and an impressive literature; see, among many others, Nicolas Politis, Le problème des limitations de la souveraineté, RCADI 1925-I, pp. 5-117; L. Preuss, Article 2 paragraph 7 of the Charter of the United Nations and matters of domestic jurisdiction, 74 RCADI 1949-I, pp. 553-653; Gaetano Aranzio-Ruiz, Le domaine réservé, l’organisation internationale et le rapport entre droit international et droit interne, 125 RCADI 1990-IV, pp. 9-484; Carreau, supra note 42, at pp. 369375; Patrick Daillier & Alain Pellet, Droit international public (7th ed., LGDJ, Paris 2002) pp. 438-448; Robert Kolb, Du domaine réservé. Réflexions sur la théorie de la compétence nationale, RGDIP 2006, pp. 597-630. On the right or obligation of intervention see Mario Bettati, Un droit d’ingérence?, RGDIP 1991, pp. 639-670; Simon Chesterman, Just war or just peace? Humanitarian intervention and international law (Oxford 2001); Laurence Boisson de Chazournes & Luigi Condorelli, De la ‘responsabilité de protéger’ ou d’une nouvelle parure pour une notion déjà bien établie, 110 RGDIP 2006, pp. 11-18. 65 Nationality Decrees in Tunis and Morocco case, supra note 40, at p. 24; confirmed by the ICJ on its advisory opinion on the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation, ICJ Reports 1969, at p. 150. 59

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dence (Guatemala) 66 . The Court confirmed the unfettered granting of nationality, this time regarding corporations67 , in the Barcelona Traction case 68 , where Canadian jurisdiction was affirmed on the basis of external links to nationality, in this case the place where the company was incorporated and had its registered offices, rather than the real links to its shareholders in Belgium; and returned to the issue in the same spirit in the Elettronica Sicula (ELSI) case 69 . The genuine link requirement resurfaced in article 91 paragraph 1 of the Law of the Sea Convention, where it is stated that “[t]here must be a genuine link between the State and the ship” 70 . It would be difficult, however, to find any practical obligation accruing upon States as a result of this provision 71 – and all attempts to infuse some substance on this dead letter have miserably failed. The most important among Thus also Lowe, supra note 2, at p. 341. Practice has actually overturned the Court’s approach, as the whole system of protection of foreign investment is based on the substantive effective control criterion rather than the formal incorporation criterion; see, for instance, the 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States, available at ; or even the more than 1100 bilateral investment protection treaties in existence; for the latest numbers see . See in general Giorgio Sacerdoti, Bilateral treaties and multilateral instruments on investment protection, 269 RCADI 1997, pp. 255-463; J.W. Salacuse & N.P. Sullivan, An evaluation of bilateral investment treaties and their grand bargain, 46 Harvard ILJ 2005, pp. 67-130. 68 Case concerning the Barcelona Traction, Light and Power Company Limited , Belgium v. Spain, Second Phase, ICJ Reports 1970, pp. 3-53, at p. 42. On the defunct nature of the precedent see Francisco Orrego Vicuña, International dispute settlement in an evolving global society: Constitutionalisation, accessibility, privatisation (Cambridge 2004) at p. 42. 69 ICJ, Elettronica Sicula S.p.A. (ELSI), USA v. Italy, judgment of 20 July 1989, available at ; P. Juillard, L’arrêt de la Cour Internationale de Justice (chambre) du 20 juillet 1989: L’affaire de l’ Elettronica Sicula (États-Unis/Italie), Procès sur un traité ou procès d’un traité?, AFDI 1989, pp. 276-297; B. Stern, La protection diplomatique des investissements internationaux. De Barcelona Traction à Elettronica Sicula ou les glissements progressifs de l’analyse, JDI 1990, pp. 897-948. 70 It was also present in article 5 of the 1958 Geneva Convention on the High Seas, supra note 3. 71 See, among others, Robin Churchill (with Christopher Hedley), The meaning of the ‘genuine link’ requirement in relation to the nationality of ships, A study prepared for the International Transport Workers’ Federation, October 2000; Alex Oude Elferink, The genuine link concept: Time for a post mortem?, in I.F. Dekker & H.H.G. Post (eds.), On the foundations and sources of International Law (T.M.C. Asser Press, The Hague 2003) pp. 41-63; Maria Gavouneli, From uniformity to fragmentation? The ability of the UN Convention on the Law of the Sea to accommodate new uses and challenges, in A. Strati, M. Gavouneli & N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea (Martinus Ni jhoff, Leiden/Boston 2006) pp. 205-233, at pp. 206-208. 66 67


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them, the 1986 UN Convention on Conditions for Registration of Ships 72 , was a rather vague text which sought to found nationality requirements on the level of participation in ownership or the manning of the ship; it never entered into force. As a result, it is the fact of registration itself that creates a permanent legal relationship between the ship and the State, on the basis of which the latter undertakes specific duties and obligations. Summarily set out in article 94 of the LOS Convention, they include the obligation to effectively exercise jurisdiction or control in administrative, technical and social matters, from the construction, equipment and seaworthiness of ships to the manning, labour conditions and the training of crews on board. The quest for this effective exercise of the flag State powers (all powers and not just administrative, technical and social matters 73 ) has remained elusive – indeed, although it certainly constitutes a breach of an obligation under the Law of the Sea Convention, nobody has ever attempted to bring a case before the International Tribunal for the Law of the Sea on this matter 74 . Correctly identifying the defective implementation of international and national rules, mostly by States with ‘flags of convenience’ 75 , as the primary cause for ‘substandard shipping’ 76 , the UN General Assembly has estab26 ILM 1987, pp. 1229-1250. For a general overview see G. Kasoulides, The 1986 UN Convention on the Conditions for the Registration of Vessels and the question of open registry, 20 ODIL 1989, pp. 543-576; Djamchid Momtaz, La Convention des Nations Unies sur les conditions de l’immatriculation des navires, AFDI 1986, pp. 715-736; M.L. McConnell, ‘Business as usual’: An evaluation of the 1986 UN Convention on Conditions for Registration of Ships, 18 JMLC 1987, pp. 435-449; H. Wefers Bettink, Open registry, the genuine link and the 1986 Convention on Registration Condition for Ship, 18 NYBIL 1987, pp. 68-119. 73 Thus also Tullio Scovazzi, The evolution of international law of the sea: New issues, new challenges, 286 RCADI 2000, pp. 39-243, at pp. 221-222. 74 Davis R. Robinson, Recourse against flag States for breaches of their international obligations under the 1982 Law of the Sea Convention, in Myron N. Nordquist & John N. Moore (eds.), Current marine environmental issues at the International Tribunal for the Law of the Sea (Martinus Nijhoff, The Hague 2001) pp. 371-383. 75 The literature on the subject is immense. For a taste see Emmanuel Roucounas, Facteurs privés et droit international public, 299 RCADI 2002, pp. 9-419, at pp. 205-207; G. Athanassiou, Aspects juridiques de la concurrence maritime (Pedone, Paris 1996); K.X. Li & J. Wonham, New developments in ship registration, 14 TIJMCL 1999, pp. 137-154. 76 Defined by the OECD Maritime Transport Committee as: “A vessel that, through its physical condition, its operation or activities of its crew, fails to meet basic standards of seaworthiness and thereby poses a threat to life and/or the environment. This would be evidenced by the failure of the vessel to meet regulations contained in international maritime conventions to the extent that it would be considered unfit to sail by a reasonable flag State or port State inspection”; OECD Maritime Transport Committee, Policy Statement on Substandard Shipping , 2002, available at . See also Moritaka Hayashi, Toward the elimination of substandard shipping: The Report of the International Committee of Shipping, 16 TIJMCL 2001, pp. 501-513. 72

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lished a Consultative Group of Flag State Implementation 77 and continues to call upon States to honour their obligations under international law in its annual omnibus resolution on the law of the sea: “Urges flag States without an effective maritime administration and appropriate legal frameworks to establish or enhance the necessary infrastructure, legislative and enforcement capabilities to ensure effective compliance with, and implementation and enforcement of, their responsibilities under international law and, until such action is undertaken, to consider declining the granting of the right to fly their flag to new vessels, suspending their registry or not opening a registry, and calls upon flag and port States to take all measures consistent with international law necessary to prevent the operation of substandard vessels.” 78

Registration then remains the act whereby nationality is conveyed to the ship; and it is generally agreed that each State remains free to set its own conditions and standards for the granting of such nationality 79 . It was so confirmed by the International Tribunal for the Law of the Sea in the Saiga case 80 , where the Tribunal further construed the need for a genuine link as a guarantee for the effective implementation of the duties of the flag State 81 – presumably in view of the complete and total uselessness of the notification to the flag State required by article 94 paragraph 6 of the LOS Convention, the only reference to the possibility that the flag State may not carry out fully its obligations! Given that a breach of an obligation usually triggers the mechanism of State responsibility 82 , the rather innocuous obligation to notify For its most recent report, see UN Doc. A/59/63 (2004), available at . See also the rather disappointing results of the Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the “genuine link”, convened by the IMO on 7-8 July 2005 and discussed by the IMO Council at its 96th session on 19-23 June 2006; UN Doc. A/61/160, 17 July 2006; available at . 78 Thus paragraph 71, UN General Assembly Resolution A/RES/61/222, Oceans and the law of the sea, 16 March 2007, available at . 79 Permanent Court of Arbitration, Muscat Dhows case, France v. UK, award of 8 August 1905, XI UNRIAA 92, also available at ; Lauritzen v. Larsen, 345 US 571, 73 S Ct 921 (1953). See also the 1987 reflagging of Kuwaiti ships to the US and the UK during the Iran-Iraq conflict; Shaw, supra note 9, at pp. 546-547; Myron H. Nordquist & Margaret G. Wachenfeld, Legal aspects of reflagging Kuwaiti tankers and laying of mines in the Persian Gulf, 31 GYBIL 1988, pp. 138-164. 80 ITLOS, The M/V Saiga (no. 2) case, Saint Vincent & the Grenadines v. Guinea, 1999, paragraph 65, available at ; Bernard H. Oxman & Vincent Bantz, The M/V Saiga (no.2), Saint Vincent & the Grenadines v. Guinea, Judgment, ITLOS case no. 2, 1 July 1999, 94 AJIL 2000, pp. 140-150. 81 Ibid., paragraph 83. See also David Anderson, Freedoms of the high seas in the modern law of the sea, in David Freestone, Richard Barnes & David Ong (eds.), The Law of the Sea. Progress and prospects (Oxford 2006) pp. 327-346, at pp. 332-340. 82 Articles 1 and 42 of the Articles on State Responsibility (ASR), approved by UN General Assembly resolution 56/83, UN Doc. /RES/56/83 (2001), text available at ; see 77


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the flag State, without any further droit de regard onto the follow-up to the case in question, could at best be considered a non-compliance provision in nascent form. The question of genuine link figured also in The Grand Prince case 83 with equally meagre results. Although both Judge (and currently President) Wolfrum in his Statement 84 and Judge Treves in his Separate Opinion 85 tried to distance themselves from the mechanical equation of registration as evidence of genuine link, the Tribunal was generally content to accept the formal act of registration as sufficient evidence of a genuine link between the ship and the State; and derive therefrom an affirmation of jurisdiction86 . In another context, equally happy to view registration as evidence of the ‘real financial link’ with the flag State is the Court of Justice of the European Communities 87 , holding further that construction in conformity with both the Law of the Sea Convention and the 1986 UN Registration Convention. 3. U NIVERSALITY In a world of finely partitioned allocations of jurisdiction, there is still am ble possibility to avoid prosecution and punishment by moving in territories where the State is unwilling or unable to exercise its powers or simply where the writ of no State applies. Absent the traditional bases of jurisdiction, i.e. territoriality and nationality, the universality principle allows for the assertion of jurisdiction in circumstances where the crime was not perpetrated by or against a national of the State away from its territory without any impact upon it or the security of the State. It seems that such was the historical reaJames Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, text and commentaries (Cambridge 2002). 83 ITLOS, The Grand Prince, Belize v. France, 2001, available at ; Bernard H. Oxman & Vincent P. Bantz, The Grand Prince, International Tribunal for the Law of the Sea decision on requirement that application for prompt release of a vessel be brought by or on behalf of the flag State, 96 AJIL 2002, pp. 219-224; Nathalie Ros, La France, le TIDM et les légines: Acte III. À propos de l’arrêt rendu le 20 avril 2001 dans l’‘affaire du Grand Prince’, 5 ADM 2000, pp. 245-284; Paolo Palchetti, Sul rapporto tra la procedura di pronta li berazione di navi ed equipaggi e i procedimenti davanti ai giudici interni dello Stato costiero: il caso della nave Grand Prince, RDI 2001, pp. 745-749; Tullio Treves, Flags of convenience before the Law of the Sea Tribunal, 6 San Diego ILJ 2004, pp. 179-189. 84 Ibid ., paragraph 3 of the Declaration: “… the registration cannot be reduced to a mere fiction … – an empty shell”. 85 Ibid., paragraph 2 of the Separate Opinion: “It is an artificial creation, a fiction…”; ibid. 86 Ibid ., paragraph 77 of the judgment. 87 ECJ, case C-62/96, Commission v. Greece, judgment of 27 November 1997, point 22, available at .

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son for the first application of the principle on marauding vagabondi in the late Middle Ages 88 . The rationale behind this stop-gap jurisdiction remains, therefore, deeply pragmatic – in the words of Georges Abi-Saab: “Universal jurisdiction has been a jurisdiction of last resort, a fail-safe solution called for by urgency and necessity” 89 .

The value-oriented approach, citing a moral repugnance for crimes beyond the ‘ordinary’, seems to have been a glossa added later in order to reinforce the need for further action – and it was in this exceptional spirit that Grotius affirmed that “[k]ings …have the right of demanding punishments not only on account of in juries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard of any persons whatsoever” 90 .

The qualification present in this passage gave rise to the pure ‘mandatory’ form of universal jurisdiction 91 , according to which each State assumes jurisdiction and consequently must prosecute all offences generally recognised as of universal concern, regardless of where the offence took place or who the perpetrator or the victims were92 . However, this ‘unilateral limited universality principle’ 93 is distinguished from the ‘co-operative limited universality principle’ 94 , which confers upon the State the right rather than the obligation (may instead of must ) to prosecute; in such a situation Grotius was quite categorical:

Géraud de La Pradelle, La compétence universelle, in Hervé Ascensio, Emmanuel Decaux & Alain Pellet (sous la direction de), Droit international pénal (Pedone, Paris 2000) pp. 905-918, at pp. 906-907. 89 Georges Abi-Saab, The proper role of universal jurisdiction, 1 JICJ 2003, pp. 596-602, at p. 600. 90 See Hugo Grotius, De iure belli ac pacis (as translated by A.C. Campbell, London 1814), book II, chapter XX, §XL, 1, . 91 Apparently, the term was first used by Willard B. Cowles, Universal jurisdiction over war crimes, 33 California LR 1945, pp. 177-218. 92 Bruce Broomhall, International Justice and the International Criminal Court. Between sovereignty and the rule of law (Oxford 2003) at p. 106. 93 To use the terminology of Luc Reydams, Universal Jurisdiction: International and municipal legal perspectives (Oxford 2003) at pp. 38-42. For an overview see H. Donnedieu de Vabres, Les principes modernes du droit pénal international (Sirey, Paris 1928); M. Henzelin, Le principe de l’universalité en droit pénal international (Helbing & Lichtenhahn-Bruylant, Basel, Geneva & Brussels 2000); K.C. Randall, Universal jurisdiction under international law, 66 Texas LR 1988, pp. 785-842; contra: Rosalyn Higgins, Problems and process: International Law and how we use it (Oxford 1994) at p. 62. 94 Reydams, supra, at pp. 35-38. 88


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“Alterum facere debeat, aut ut ipsa interpellata pro merito puniat nocentem, aut ut eum permittat arbitratio interpellantis.” 95

It seems that this approach is both closer to the historical antecedents of the concept and surprisingly modern. Most treaties providing for universal jurisdiction today typically define a crime and then oblige all States parties either to investigate and eventually prosecute or, in an expression of civitas maxima, to extradite the suspect to a State willing to do so (aut dedere aut iudicare) 96 . Indeed, a survey of 276 conventions, concluded in the two centuries between 1815 and 1999 97 , and comprising 27 categories of crime 98 revealed only a handful of agreements that clearly provide for the ‘pure’ form of universal jurisdiction; in other words, jurisdiction based exclusively on the nature of the crime and carried out by the forum State in the guise of an actio popularis on behalf of the international community 99 in order to safeguard the interests of that same international community by ensuring accountability

“It should either punish the guilty person as he deserves, or it should entrust him to the discretion of the party making the appeal”; supra note 90, book II, chapter XXI, §IV, 1. 96 M. Cherif Bassiouni & Edward M. Wise, Aut dedere aut iudicare: The duty to prosecute or extradite in international law (Martinus Nijhoff, 1995). 97 One could certainly expect this number to have increased, especially in view of the antiterrorism conventions adopted since 2001; among them, the International Convention for the Suppression of the Financing of Terrorism, adopted by General Assembly Resolution 54/109 of 9 December 1999; the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by General Assembly Resolution 59/290 of 13 April 2005, both available at ; the Protocol amending the European Convention on the Suppression of Terrorism, ETS no. 190, adopted in Strasbourg, on 15 May 2003; the Council of Europe Convention on the Prevention of Terrorism, CETS no. 196, adopted at Warsaw on 16 May 2005; and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, CETS no. 198, adopted at Warsaw on 16 May 2005, all available at . 98 Such international crimes are: aggression, genocide, crimes against humanity, war crimes, crimes against the UN and associated personnel, unlawful possession and/or use of certain weapons, theft of nuclear materials, mercenarism, apartheid, slavery and slave-related practices, torture, unlawful human experimentation, piracy, aircraft hijacking, unlawful acts against civil maritime navigation, unlawful acts against internationally protected persons, taking of civilian hostages, unlawful use of the mail, nuclear terrorism, financing of international terrorism, unlawful traffic in drugs and dangerous substances, destruction and/or theft of national treasures and cultural heritage, unlawful acts against the environment, international traffic in obscene materials, falsification and counterfeiting of currency, unlawful interference with submarine cables and bribery of foreign public officials; M. Cherif Bassiouni, Universal jurisdiction for international crimes: Historical perspectives and contemporary practice, 42 Virginia JIL 2001, pp. 81-162, at p. 107. 99 For a thorough discussion of the (possible) operation of actio popularis in the international community see François Voeffray, L’ actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (PUF, Paris 2004), especially at pp. 364-374. 95

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for the perpetration of certain categories of crimes, both expressly identified in number and particularly grave in character 100 . In spite of the support seemingly offered to this variety of universal jurisdiction in the Arrest Warrant case 101 by Judges Rosalyn Higgins, Kooijmans and Buergenthal in their joint Separate Opinion 102 , practical examples are few and difficult to come by. Although it failed to address the legal status of the principle of universal jurisdiction (pure or conditional103 ) 104 , leaving 11 of the 15 judges to issue different pronouncements on the matter, the Court found the Belgian statute on universal jurisdiction 105 in breach of the traditional rules on the allocation of jurisdiction. President Guillaume, in particular, was categorical that “universal jurisdiction in absentia is unknown to international law” 106 ; Bassiouni, supra note 98, at pp. 88-89; Roger O’Keefe, Universal jurisdiction, Clarifying the basic concept, 2 JICJ 2004, pp. 737-760, at pp. 752-759. See also American Law Institute, The Restatement (Third) of Foreign Relations Law of the United States (1987) §403. 101 Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ Re ports 2002, available at ; see also Alexander Orakhelashvili, Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ, 14 February 2002, 96 AJIL 2002, pp. 677-684. The matter will also be discussed in the case of Certain Criminal Proceedings in France, Congo v. France, referring to an alleged “violation of the principle that a State may not, in breach of the principle of sovereign equality among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations, exercise its authority on the territory of another State, by unilaterally attributing to itself universal jurisdiction in criminal matters”; a request for provisional measures was denied on other grounds, ibid ., ICJ Reports 2003, available at . 102 Arrest Warrant of 11 April 2000, supra, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, paragraphs 39 and 41. 103 According to the distinction by Antonio Cassese, International Criminal Law (Oxford 2003) pp. 284-291. 104 M. Henzelin, La compétence pénale universelle. Une question non résolue par l’arrêt Yerodia, 106 RGDIP 2002, pp. 819- 854. See also Antonio Cassese, Is the bell tolling for universality? A plea for a sensible notion of universal jurisdiction, 1 JICJ 2003, pp. 589-595. 105 Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977 additionnels à ces conventions, Moniteur belge, 5 août 1993; as amended by la Loi du 10 février 1999 relative à la répression des violations graves de droit international humanitaire, Moniteur belge, 23 mars 1999, 38 ILM 1999, pp. 918-925; Leen De Smet & Frederik Naert, Making or breaking international law? An international law analysis of Belgium’s Act concerning the punishment of grave breaches of international humanitarian law, RBDI 2002, pp. 471-511; Luc Reydams, Belgium reneges on universality: The 5 August 2003 Act on grave breaches of international humanitarian law, 1 JICJ 2003, pp. 679-689; Maria-Eugenia López-Jacoiste Díaz, Comentarios a la ley belga de jurisdicción universal para el castigo de las violaciones graves del derecho internacional humanitario, reformada el 23 de abril de 2003, 35 REDI 2003, pp. 839-648. 106 Arrest Warrant of 11 April 2000, supra note 101, Separate Opinion of President Guillaume, paragraphs 16, 12 and 9 in fine. 100


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a statement true enough, provided one does consider, as the Spanish Constitutional Court did in the Guatemalan Generals case 107 , that the physical presence of the accused in the territory of the forum State constitutes a mere procedural requirement, a conditio locus deprehensionis, for conducting a criminal trial rather than instigating a criminal investigation. Indeed, summarising the status of the principle in contemporary law, he concluded: “In other words, international law knows only one true case of universal jurisdiction: piracy. Further, a number of international conventions provide for the establishment of subsidiary universal jurisdiction for purposes of the trial of certain offenders arrested on national territory and not extradited to a foreign country.” 108

It is quite clear from this onslaught 109 , undoubtedly destined to redress the balance disturbed by a series of prosecutions of current and former, nominal and factual heads of states before domestic courts 110 , that little space is left to Tribunal constitucional, resolución no. STC 237/2005 de 26 septiembre 2005, ; Naomi Roht-Arriaza, Guatemala Genocide case, judgment no. STC 237/2005, Constitutional Tribunal (second chamber), 26 September 2005, 100 AJIL 2006, pp. 207-213; Hervé Ascensio, Are Spanish courts backing down on universality? The Supreme Tribunal’s decision in Guatemalan Generals, 1 JICJ 2003, pp. 690-702, at p. 700; idem., The Spanish Constitutional Tribunal’s decision in Guatemalan Generals. Unconditional universality is back, 4 JICJ 2006, pp. 586-594. 108 Separate Opinion of President Guillaume, supra note 101, paragraph 12 in fine. 109 Antonio Cassese, When may senior State officials be tried for international crimes? Some comments on the Congo v. Belgium case, 13 EJIL 2002, pp. 853-875; Steffen Wirth, Immunity for core crimes? The ICJ’s judgement in the Congo v. Belgium case, ibid ., pp. 877893; Marco Sassoli, L’arrêt Yerodia: Quelques remarques sue une affaire au point de collision entre les deux couches du droit international, RGDIP 2002, pp. 791-817; Joe Verhoeven, Quelques réflexions sur l’affaire relative au mandat d’arrêt du 11 avril 2000, RBDI 2002, pp. 531-536; Philippe Sands, What is the ICJ for?, ibid., pp. 537-545; Jean-Pierre Cot, Éloge de l’indécision. La Cour et la compétence universelle, ibid., pp. 546-553; Beatrice Bonafè, Imputazione all’individuo di crimini internazionali e immunità dell’organo, RDI 2004, pp. 393-426. 110 Thus in the Pinochet case: House of Lords, R. v. Bow Street Stipendiary Magistrate and others ex parte Pinochet Ugarte (Amnesty International and others intervening) (no. 3), judgment of 24 March 1999, available at ; Michel Cosnard, Quelques observations sue les décisions de la Chambre des Lords du 25 novembre 1998 et du 24 mars 1999 dans l’affaire Pinochet , RGDIP 1999, pp. 309-328; Andrea Bianchi, Immunity versus human rights: The Pinochet case, 10 EJIL 1999, pp. 237-277; Anne Weyem bergh, Sur l’ordonnance du juge d’instruction Vandermeersch rendue dans l’affaire Pinochet le 6 novembre 1998, RBDI 1999, pp. 178-204; Ruth Wedgwood, International Criminal Law and Augusto Pinochet, 40 Virginia JIL 2000, pp. 829-847. In the Qaddafi case, Cour de cassation, arrêt du 13 mars 2001, RGDIP 2001, 473-491; S. Zappalà, Do heads of State in office enjoy immunity from jurisdiction for international crimes? The Ghaddafi case before the French Cour de cassation, 12 EJIL 2001, pp. 595-612; Carlo Santulli, Coutume international et juge international : qui peut quoi? A propos de l’immunité du chef d’État étranger dans l’affaire Kadhafi, JDI 2002, pp. 805-813. In the Sharon case, Abbas Hijazi et al. v. Sharon et al ., Cour de cassation belge, décision du 12 février 2003, available at ; A. Cassese, 107

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the notion of universal jurisdiction available as a matter of customary law to crimenes iure cogens 111 . In addition to a variety of academic initiatives on universal jurisdiction 112 , already in the 1996 Draft Code of Crimes Against the Peace and Security of Mankind, the International Law Commission suggested that genocide, crimes against humanity, crimes against the United Nations and associated personnel and war crimes be subject to universal jurisdiction113 . The 1998 Rome Statute to the International Criminal Court did not affect the possible universal jurisdiction applicable on genocide, crimes against humanity, war crimes and aggression, the offences falling within its ambit 114 – although the total lack of any reference to universal jurisdiction may well have an impact upon the priority of national courts under the principle of complementarity under article 17 of the ICC Statute 115 . The International Law Association The Belgian Court of Cassation v. the International Court of Justice: The Sharon and others case, 1 JICJ 2003, pp. 437-452. See also Paola Gaeta, Ratione materiae immunities of former heads of State and international crimes: The Hissène Habré case, 1 JICJ 2003, pp. 186-196. 111 Having appeared for the first time in the Dissenting Opinion of Judge Schucking in the Oscar Chinn case, PCIJ, Series A/B, no. 63, 1923, pp. 149-150, the notion of ius cogens has generated a vast bibliography, among which see Lauri Hannikainen, Peremptory norms (ius cogens) in international law. Historical development, criteria, present status (Helsinki 1988); Maurizio Ragazzi, The concept of international obligations erga omnes (Clarendon Press, Oxford 1997); Antonio Gómez Robledo, Le ius cogens international: sa genèse, sa nature, ses fonctions, 172 RCADI 1981-V, pp. 9-217; Robert Kolb, Théorie du ius cogens international, 36 RBDI 2003, pp. 5-55; Pierre Klein, Responsibility for serious breaches of obligations deriving from peremptory norms of international law and UN law, 13 EJIL 2002, pp. 1241-1255; Alexander Orekhelashvili, Peremptory norms in international law (Oxford 2006). 112 Among them the Princeton Principles on Universal Jurisdiction, adopted in 2002, available at ; the Redress Universal Jurisdiction Project ; available at ; the Amnesty International projects on Universal jurisdiction: The duty of States to enact and implement legislation, AI Index IOR 53/002/2001, and on Universal Jurisdiction: 14 Principles on the Effective Exercise of Universal Jurisdiction, AI Index IOR 53/01/99, 1999, both available at ; the Africa Legal Aid project on The Cairo-Arusha Principles on Universal Jurisdiction in Respect of Gross Human Rights Offences, 2002, available at . 113 Report of the International Law Commission on the work of its forty-eighth session, UN Doc. A/51/10, paragraph 50, available at . 114 Article 4 of the ICC Statute; supra note 53; Louise Arbour, Will the ICC have a impact on universal jurisdiction?, 1 JICJ 2003, pp. 585-588. Note, however, that not all the crimes under the ICC Statute are considered as crimes of universal jurisdiction under customary international law: Dapo Akande, The jurisdiction of the International Criminal Court over nationals of non-parties: Legal basis and limits, 1 JICJ 2003, pp. 618-650, at pp. 621, 639; Christian Tomuschat, Issues of universal jurisdiction in the Scilingo case, 3 JICJ 2005, pp. 1074-1081. 115 See, instead of many others, Federica Gioia, State sovereignty, jurisdiction and ‘modern international law’: The principle of complementarity in the International Criminal Court, 19


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Committee on International Human Rights Law and Practice in its study on Universal Jurisdiction 116 affirmed the existence of a permissive customary universal jurisdiction for the crimes of genocide, crimes against humanity and war crimes, as defined in articles 6-8 of the ICC Statute, as well as the crime of torture, as defined in the UN Convention against Torture 117 . It was particularly careful, on the other hand, to note that such universal jurisdiction becomes mandatory for States parties to the Geneva Conventions118 and the UN Convention against Torture in cases of grave breaches thereof 119 . As to the Institut de droit international, it adopted during its 2005 Krakow session a resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes 120 , thus clearly indicating its preference on the scope of the principle. It follows that there exists a distinction between treaty-based universal jurisdiction, which is almost always mandatory 121 , whereas it seems that the customary form of universal jurisdiction is always permissive. The typical example of such permissive customary universal jurisdiction, even when contractually codified 122 , remains the archetypal crimen iure gentium, piracy. Leiden JIL 2006, pp. 1095-1123; Olympia Bekou & Robert Cryer, The International Criminal Court and universal jurisdiction: A close encounter?, 56 ICLQ 2007, pp. 49-68. 116 ILA, Report of the Sixty-Ninth Conference held in London (London 2000) pp. 403-431, at pp. 406-407. 117 Article 1 of the 1984 UN Convention against Torture and Other Cruel or Inhuman or Degrading Treatment of Punishment, adopted by General Assembly Resolution 39/46, 1465 UNTS 85, 23 ILM 1984, pp. 1027-1037. 118 See article 49 of the 1949 Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (Geneva I), 75 UNTS 31; article 50 of the 1949 Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea (Geneva II), 75 UNTS 85; article 129 of the 1949 Geneva Convention relative to the treatment of prisoners of war (Geneva III), 75 UNTS 135; and article 146 of the 1949 Geneva Convention relative to the protection of civilian persons in time of war (Geneva IV), 75 UNTS 287. 119 ILA Report, supra note 116, at p. 423. Note, however, that under article 7 of the UN Torture Convention a State is only obligated to prosecute persons already in its territory whereas under the Geneva Conventions States have a duty to seek out perpetrators of such offences even if they are outside their territory; ibid., at p. 410. 120 Institut de droit international, Resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, 17th Commission, Christian Tomuschat, rapporteur, Session of Krakow, 2005, ; see also Claus Kreß, Universal jurisdiction over international crimes and the Institut de droit international, 4 JICJ 2006, pp. 561-585. 121 Indeed, there seems to be an exception of permissive jurisdiction in article 5 of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243; see Broomhall, supra note 92, at p. 107, fn.6. 122 See article 105 LOSC.

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It seems that pirates were labelled ‘hostis humani generis’ 123 at about the same time as the freedom of the high seas became the primary rule of the law of the sea – the rising power of the flag State at an open sea clearly necessitated a universal deterrent against those who could potentially upset the balance of interests thus achieved. The first domestic statutes captured the spirit of an international crime 124 , later to acquire constitutional status in the US Constitution125 . The universal jurisdiction rule was already considered of long standing when it made its first appearance in international instruments 126 and was finally codified late in the 20th century in article 19 of the 1958 Geneva Convention on the High Seas 127 , to be repeated almost verbatim in article 105 of the Law of the Sea Convention. Although there are credible doubts nowadays as to whether the justification for universal jurisdiction in cases of piracy remains valid 128 , piracy continues to be today a serious problem in the waters of western Africa and es pecially South-East Asia 129 – with the ensuing need to reinforce international The words belong to Emerich de Vattel, Le droit des gens ou les principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains (1758); but the approach is recurrent in the works of both Alberigo Gentili, De iure bellicis Libri tres (1612); and Balthasar de Ayala, De jure et officiis bellicis et disciplina militari (1581). For the historical development of the regulation of piracy see V. Pella, La répression de la piraterie, 15 RCADI 1926, pp. 149-275; Alfred P. Rubin, The Law of Piracy (2nd ed., New York 1997). For an entertaining account see Jacob Sundberg, The crime of piracy, in M. Cherif Bassiouni (ed.), International Criminal Law, vol. I: Crimes (New York 1998) pp. 441-454. 124 Thus see in England the Offences at Sea Act (1536) 28 Hen. 8, ch. 15; or the Bounty Act (1825) 6 Geo. 4, ch. 49. See also In re Piracy Iure Gentium [1934] AC 586. 125 Thus reads article I, Section 8 cl. 10 of the US Constitution: “The Congress shall have power …[t]o define and punish Piracies and Felonies committed on the High Seas and Offences against the Law of Nations”. See also United States v. Furlong , 18 US (5 Wheaton) 184 (1820), with an express reference to the term ‘universal jurisdiction’, as quoted by Kantorovich, infra note 128, pp. 228-229. 126 Thus in article 21, Jay’s Treaty, 19 November 1794, 8 Stat. 116, 12 Bevans 13, at p. 27. 127 Article 19 of the High Seas Convention states: “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 taken by piracy and under the control of pirates and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed and may also determine the action to be taken with regard to the property, sub ject to the rights of third states acting in good faith” (my emphasis); supra note 3. 128 For the limitations of the concept see Eugene Kontorovich, The piracy analogy: Modern universal jurisdiction’s hollow foundation, 45 Harvard ILJ 2004, pp. 183-237; Joshua Michael Goodwin, Universal jurisdiction and the pirate: Time for an old couple to part, 39 Vanderbilt J Transn’l L 2006, pp. 973-1011. 129 The Regional Piracy Centre of the International Maritime Bureau with the International Chamber of Commerce keeps track of the situation; for the latest data see . See also José Luis Jesus, Protection of foreign ships against piracy and terrorism at sea: Legal aspects, 18 TIJMCL 2003, pp. 363-400, at pp. 364-373. 123


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commitments and increase regional cooperation 130 . Indeed the International Maritime Organisation (IMO) adopted in November 2001 a Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships 131 as well as Measures to prevent the registration of phantom ships 132 . Universal jurisdiction, however, attaches only to the strict definition of piracy contained in article 101 of the LOS Convention: an attack by the crew or passengers of a ship and directed towards another ship in the high seas for private ends. Consequently, acts of violence involving only one ship, such as the seizure of the Italian liner Achille Lauro in 1985 133 or the uprising aboard the Portuguese ship Santa Maria in 1961 134 do not amount to piracy iure gentium. The general category of offences against the safety of shipping, including the seizure of ships and acts of violence against persons on board or damage to the ship, its cargo or equipment in a manner endangering safe navigation are dealt with in the IMO 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention) 135 , which does not provide for universal jurisdiction. Interestingly enough and contrary to popular belief, neither slavery and slave related practices nor drug trafficking are covered by universal jurisdic For the latest example see the Regional Cooperation Agreement on combating piracy and armed robbery against ships in Asia, concluded on 28 April 2005, 44 ILM 2005, pp. 829835, with introductory note by Moritaka Hayashi, ibid., pp. 826-828; Kuala Lumpur Statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore, 20 September 2006, annexed to identical letters dated 15 November 2006 from the representatives of Indonesia, Malaysia and Singapore to the UN addressed to the Secretary-General, Doc. A/61/584, 17 November 2006; text available at . See also Timothy H. Goodman, “Leaving the Corsair’s name to other times”: How to enforce the law of sea piracy in the 21st century through regional international agreements, 31 Case Western JIL 1999, pp. 139-168; Robert C. Beckman, Combating piracy and armed robbery against ships in Southeast Asia: the way forward, 33 ODIL 2002, pp. 317-341; Erik Barrios, Casting a wider net: Addressing the maritime piracy problem in Southeast Asia, 28 Boston College ICLR 2005, pp. 149-163; Nihan Ünlü, Protecting the Straits of Malacca and Singa pore against piracy and terrorism, 21 TIJMCL 2006, pp. 539-549. 131 Adopted by IMO Assembly Resolution A.922(22) of November 2001, available at ; see also Leticia Diaz & Barry Hart Dubner, On the problem of utilising unilateral action to prevent acts of international piracy and terrorism: A proactive approach to the evolution of international law, 12 Syracuse JICL 2004-2005, pp. 1-50, at p. 39. 132 Adopted by IMO Assembly Resolution A.923(22) of November 2001, ibid . 133 Malvina Halberstam, Terrorism on the high seas: The Achille Lauro, piracy and the IMO Convention on Maritime Safety, 82 AJIL 1988, pp. 269-310; J.-P. Pancracio, L’affaire de l’ Achille Lauro et le droit international, AFDI 1985, pp. 221-236; Gerald P. McGinley, The Achille Lauro affaire – Implications for international law, 52 Tennessee LR 1984-1985, pp. 691-738. 134 Thomas Franck, To define and punish piracies: The lessons of the Santa Maria: A comment, 36 New York University LR 1961, pp. 839-845. 135 1678 UNTS 29004. 130

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tion under the Law of the Sea Convention – or indeed under other instruments: neither the 1926 International Slavery Convention 136 nor the Supplementary Convention on the Abolition of Slavery, the Slave Trade and institutions and practices similar to slavery 137 contain similar provisions 138 . Article 110 of the LOS Convention, repeating article 22 of the 1958 High Seas Convention, provides for a right of visit and search when a ship is reasonably suspected of being engaged in the slave trade. Once a slave is found taking refuge aboard ship (presumably after he has shed his chains), he becomes ipso facto free 139 ; as to the perpetrators of the crime, they have to be reported to the flag State, which has nonetheless the obligation to “take effective measures to prevent and punish the transport of slaves in ships flying its flag and to prevent the unlawful use of its flag for that purpose” 140 .

It has to be noted, however, that the ius cogens nature of the offence separately 141 and as part of crimes against humanity 142 is well documented in a number of international instruments since the 1841 London Treaty for the Suppression of the African Slave Trade 143 and the 1890 Brussels General Act for the Suppression of the Slave Trade and Importation into Africa of firearms, ammunition and spirituous liquors144 , which could be seen as containing a modicum of universal jurisdiction; presumably in response to the Declaration of the Congress of Vienna in 1815, which equated slave trafficking (rather than slavery tout court ) to piracy 145 .

Done in Geneva on 25 September 1926, it entered into force on 9 March 1927; as amended by the Protocol signed in Geneva on 7 December 1953, approved by UN General Assembly resolution 794 (VIII) of 23 October 1953 and entered into force on 7 July 1955, 212 UNTS 17; both texts also available at . 137 Adopted on 7 September 1956 by ECOSOC resolution 608 (XXI), 226 UNTS 3. 138 R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press 1999) at p. 212; Ilias Bantekas, Susan Nash & Mark Mackarel, International Criminal Law (Cavendish, London/Sydney 2001) at pp. 28-29. 139 Article 99 paragraph 2 LOSC. 140 Article 99 paragraph 1 LOSC. 141 M. Cherif Bassiouni, Enslavement as an international crime, 23 NYU Journal of International Law & Policy 1991, pp. 445-517; Emmanuel Jos, La traite des êtres humaines et l’esclavage, in Ascencio, Decaux et Pellet (eds.), supra note 88, pp. 337-347. 142 See the first conviction for enslavement as a crime against humanity under the International Criminal Tribunal for the former Yugoslavia: Prosecutor v. Dragoljub Kunarac et al., judgment, ICTY case no. IT-96-23-T & IT-96-23/1-T, 22 February 2001, paragraphs 515543, available at 143 2 Martens Nouveau Recueil , ser. 1, p. 392. 144 27 Stat. 886. 145 Bassiouni, supra note 98, at pp. 112-115. 136


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The illicit trafficking of drugs is subject only to an obligation for the States to cooperate with a view to suppress it 146 . The Law of the Sea Convention does not create any jurisdictional powers other than suggesting to the flag State to seek the cooperation of other States, when it has “reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances” 147 . The suggestion was indeed implemented and institutionalised in the 1988 Vienna Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 148 , which creates a framework for such cooperation; and it has also given rise to a number of ‘rider agreements’ 149 and their more trendy offshoots in the terrorism context. 4. PASSIVE PERSONALITY & THE PROTECTIVE PRINCIPLE The passive personality principle and the protective principle are two sides of the same coin. The first creates jurisdiction when a national of a State is the victim of a crime whereas under the protective or ‘security’ principle the State assumes jurisdiction over aliens for acts done abroad, which affect the vital interests of the State. For a long period of time the nationality of the victim was not considered sufficient as basis of jurisdiction. The opposition to such claims in earlier times was fierce, especially by the United Kingdom 150 and the United States 151 – although in more recent times the domestic courts realised its useful Article 108 paragraph 1 LOSC. Article 108 paragraph 2 LOSC. See also Christina Sorensen, Drug trafficking in the high seas: A move towards universal jurisdiction under international law, 4 Emory ILR 1990, pp. 207-230, at pp. 220-225; Anne H. Geraghty, Universal jurisdiction and drug trafficking. A tool for fighting one of the world’s most pervasive problems, 16 Florida JIL 2004, pp. 371-403. 148 ECOSOC Doc. E/Conf.82/15 of 19 December 1988, 28 ILM 1989, pp. 497-526; William Gilmore, Drugs trafficking at sea: The case of R. v. Charrington and Others, 49 ICLQ 2000, pp. 477-489. 149 Thus described because they authorise law enforcement officers of one State to ride on law enforcement vessels of another State; Laleta Davis-Mattis, International drug trafficking and the law of the sea. Outstanding issues and bilateral responses with emphasis on the USCaribbean agreements, 14 Ocean YB 2000, pp. 360-385; Churchill & Lowe, supra note 138, pp. 218-220. 150 Where the last described incident dates back to 1852; Lord MacNair, International Law Opinions (vol. 2, 1956) p. 150, as quoted by Akehurst, supra note 9, at p. 158. 151 Thus the Cutting case, J.B. Moore, Digest of International Law (vol. II, 1906) pp. 228242; Whiteman’s Digest of US Practice in International Law 1976, at p. 339. For an overview see Geoffrey R. Watson, The passive personality principle, 28 Texas ILJ 1993, pp. 1-46; idem., Offenders abroad: The case for nationality-based criminal jurisdiction, 17 Yale JIL 1992, pp. 41-84. 146 147

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ness in order to bring within their jurisdiction difficult cases, typically the perpetrators of war crimes: it was famously invoked in the Eichmann case 152 along with other convoluted arguments based on universal jurisdiction and the protective principle. Eventually, it served as a bridge to the perpetrators of any act committed abroad against a citizen 153 and it was in this form that, in a complete volte face, it explicitly constituted the foundation in 1996 of the US Anti-Terrorism and Effective Death Penalty Act (AEDPA) 154 – to be repeated later in many other statutes. It was not an original move. The passive personality principle was already accepted in a series of international instruments, most notably in antiterrorist conventions 155 . In a typical example, article 6 of the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation creates a facultative basis of jurisdiction if “during [the] commission [of the conventional offence] a national of that State is seized, threatened, injured or killed.” 156 .

By 2002, President Guillaume considered it, in the Arrest Warrant case, as part of “the law as classically formulated”157 . The protective principle, on the other hand, had traditionally enjoyed wide acceptance 158 . The vital interests of the State were always considered worthy Attorney-General of Israel v. Eichmann, District Court of Jerusalem, 12 December 1961, 36 ILR (1968) pp. 5-276, at pp. 44-48; Supreme Court of Israel, 29 May 1962, ibid., pp. 277-342, at pp. 308-311. For an overview see J.E.S. Fawcett, The Eichmann case, 38 BYBIL 1962, pp. 181-215; Leslie Green, Aspects juridiques du procès d’Eichmann, AFDI 1963, pp. 150-190; Matthew Lippman, Genocide: The trial of Adolf Eichmann and the quest for global justice, 8 Buffalo HRLR 2002, pp. 45-121. 153 Thus United States v. Yunis, 681 F. Supp. 896 (DDC 1988), aff’d 924 F.2d 1086 (DC Circ. 1991); Lynda M. Clarizio, United States v. Yunis, 83 AJIL 1989, pp. 94-99; see also Restatement, supra note 100, §402. 154 Pub. L. 104-132, section 221, 110 Stat. 1214, 28 USC 1605. Lee M. Caplan, The Constitution and jurisdiction over foreign States: The 1996 amendment to the Foreign Sovereign Immunities Act in perspective, 41 Virginia JIL 2001, pp. 369-426, at pp. 409-426. 155 Ever since the first anti-terrorism instrument, the International Convention for the prevention and repression of terrorism, concluded in Geneva on 16 November 1937 but never entered into force; LN Doc. C.546.M.383.1937; as quoted in Andrea Gioia, Terrorismo internazionale, crimini di guerra e crimini contro l’umanità, RDI 2004, pp. 5-69, at pp. 8-11. For an overview see Gilbert Guillaume, Terrorism et droit international, RCADI 1989-III, pp. 247330. See also UN Security Council Resolution 1373/2001, UN Doc. S/RES/1373 (2001) of 28 September 2001, 40 ILM 2001, pp. 1278-1280, also available at ; Paul Szasz, The Security Council starts legislating, 96 AJIL 2002, pp. 901-905; Eric Rosand, Security Council Resolution 1373, the Counter-Terrorism Committee and the fight against terrorism, 97 AJIL 2003, pp. 333-341. 156 See supra note 135. 157 Arrest Warrant of 11 April 2000, supra note 101, Separate Opinion of President Guillaume, paragraph 4. 152


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of protection, although their definition varied widely. In different times in history, most notably during the Cold War, they also included considerations of an ideological or simply political nature 159 – in addition to the more traditional criminal offences of immigration 160 , currency protection and assorted economic crimes. It was rather controversially invoked by the US against foreigners in the high seas in cases of drug-trafficking, allowing for the boarding of foreign vessels without the permission of the flag State 161 , before the relevant provisions of the Maritime Drug Law Enforcement Act 1986 were repealed 162 to be replaced by treaty arrangements with the flag State in conformity with the law of the sea. Interestingly enough, the protective principle justified the adoption of the first marine environment protection statutes, especially the 1970 Canada Arctic Waters Pollution Prevention Act (AWPPA), which prohibited “pollution of areas of the arctic waters adjacent to the mainland and islands of the Canadian Arctic” 163 . Indeed, for long years, by virtue of the Canadian Ship ping Act (CSA)164 , Canada was exercising a ‘protective’ jurisdiction over shipping in the area that finally became in 1996 its exclusive economic zone 165 . Similar considerations of a possible environmental impact on the US shores may also be found in the US Oil Pollution Act 1990, which covers not only vessels bound for US ports but even foreign ships navigating through the exclusive economic zone when carrying certain types of oil or hazardous materials, even though they have no intention to reach a US port166 . Thus articles 7-8 of the Harvard Research Draft Convention on Jurisdiction with Respect to Crime; supra note 11; Brownlie, supra note 6, pp. 302-303; Lowe, supra note 2, at p. 342. 159 For selected examples see Akehurst, supra note 9, pp. 157-159. 160 Thus Naim Molvan v. Attorney-General for Palestine [1948] AC 531, 15 Annual Digest 1948, p. 115. 161 United States v. Gonzalez, 776 F.2d 931 (1985). 162 Pub. L. 99-570, 100 Stat. 3302, 46 USC §3201-3202, as amended by Pub. L. 100-690 (1988), 102 Stat. 4294, USC §4802 and finally repealed by Pub. L 103-447, 108 Stat. 4694, USC §103; Jeffrey D. Stieb, Survey of US jurisdiction over high seas narcotics trafficking, 19 Georgia JICL 1989, pp. 119-147. See also Michael Costa, Extraterritorial application of the Maritime Drug Law Enforcement Act in United States v. Suerte, 18 Temple ICLJ 2004, pp. 131-154. 163 Arctic Waters Pollution Prevention Act (AWPPA), RSC, ch. A-12 (1993), text also available at ; see also Christopher P. Mooradian, Protecting ‘sovereign rights’: The case for increase coastal State jurisdiction over vessel-source pollution in the exclusive economic zone, 82 Boston ULR 2002, 767-816, at pp. 799-801. 164 Canadian Shipping Act (CSA), RSC, ch. S-9 (1993), first enacted in 1972; text also available at . 165 Oceans Act, ch. 31, 1996 SC §13(1); text also available at . 166 Oil Pollution Act (OPA) of 1990, Pub.L. No. 101-380, 104 Stat. 484; see also Erik Jaap Molenaar, Coastal state jurisdiction over vessel-source pollution (Martinus Nijhoff, The Hague 1998) at pp. 376-377. 158

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The protective principle constitutes par excellence the acknowledged basis of anti-terrorist protection, establishing jurisdiction for offences addressed against the official agents and representatives of the State. Such is the case international instruments, such as the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons 167 ; the 1979 International Convention against the Taking of Hostages 168 ; the 1997 International Convention for the Suppression of Terrorist Bombing 169 ; or the 1999 International Convention for the Suppression of the Financing of Terrorism 170 ; or indeed, domestic statutes, the most notorious of which remains the Omnibus Diplomatic Security and Antiterrorism Act 171 , with the passive personality principle certainly lurking behind the protection accorded to US victims worldwide172 . Actions directly addressed against the State also create protective jurisdiction. In a typical example, under article 6 paragraph 2(c) of the 1988 SUA Convention, offences falling within the ambit of the Convention, as expanded by the 2005 SUA Protocol 173 , may be brought within State jurisdiction if they are committed “in an attempt to compel that State to do or abstain from doing any act” 174 . The maritime manifestations of jurisdiction have been obvious in the discussion of the diverse bases of jurisdiction, on which each State may found its assumption of jurisdiction. The primary allocation of power under the Law of the Sea Convention is carried out on a combination of these primary rules and creates a very interesting interplay of mutually exclusive, concurrent or parallel and overlapping varieties of jurisdiction, which will be discussed in the next chapter. Adopted by UN General Assembly Resolution 3166/1974 of 5 February 1974, UN Doc. A/RES/3166 (XXVIII); 13 ILM 1974, pp. 41-49. 168 18 ILM 1979, pp. 1456-1463; Edouard Delaplace, La prise d’otages, in Ascensio, Decaux et Pellet (eds.), supra note 88, pp. 387-394; Sami Shubber, The International Convention against the Taking of Hostages, 52 BYBIL 1981, pp. 205-240. 169 Adopted by UN General Assembly Resolution 52/164 of 9 January 1998, available at . 170 See supra note 97. 171 Pub. L 99-399, 18 USC 2331 (1986); Patrick Donnelly, Extraterritorial jurisdiction over acts of terrorism committed abroad: Omnibus Diplomatic Security and Antiterrorism Act of 1986, 72 Cornell LR 1986-1987, p. 599-619; Alison Elisabeth Chase, Legal mechanisms of the international community and the United States concerning State sponsorship of terrorism, 45 Virginia JIL 2004, pp. 41-137. 172 Andreas Lowenfeld, US law enforcement abroad: The Constitution and the International Law, 83 AJIL 1989, p. 880-893; Christopher Blakesley, Jurisdiction as legal protection against terrorism, 19 Connecticut LR 1986-1987, pp. 895-943. 173 Concluded on 13 October 2005, IMO Doc. LEG/CONF.15/DC/1; it opened for signature on 14 February 2006; also available at . 174 See supra note 135. 167

CHAPTER 2

STATE JURISDICTION IN THE SEA The casual reader of the Law of the Sea Convention 1 – assuming that such a rare beast exists – would find striking the lack of any reference therein to the traditional bases of jurisdiction, as described in the previous chapter. Rather, the allocation of jurisdiction could be detected in the numerous references to the functions of the State in the maritime context. The State thus operates in the Law of the Sea Convention as the ‘flag State’, the ‘coastal State’ or the ‘port State’ – with the possible exception of Part XII where the subject of “the obligation to protect and preserve the marine environment” 2 is the State tout court . There is also a rare reference, under article 97 paragraph 1 of the LOS Convention, to a fourth player: the State of nationality of the master and crew with distinct enforcement jurisdiction 3 , surprisingly not counter balanced with the competence to protect the master and the crew through an application for prompt release, the novel human rights mechanism (very successfully) established under article 292 of the Convention 4 . 1833 UNTS 396; 21 ILM 1982, pp. 1261-1354. Article 192 LOSC. 3 Article 97 paragraph 1 LOSC reads: “In the event of collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national .” (emphasis added). 4 The success of the new procedure is evident in the fact that more than half of the cases adjudicated so far by the International Tribunal for the Law of the Sea refer to prompt release proceedings: The M/V Saiga case, Saint Vincent & the Grenadines v. Guinea, 1997; The Camouco case, Panama v. France, 2000; The Monte Confurco case, Seychelles v. France, 2000; The Grand Prince case, Belize v. France, 2001; The Chaisiri Reefer 2 case, Panama v. Yemen, 2001; The Volga case, Russian Federation v. Australia, 2002; The Juno Trader case, Saint Vincent & the Grenadines v. Guinea Buissau, 2004; all available at . For a detailed analysis of the procedure see Anne-Katrin Escher, Release of vessels and crews before the International Tribunal for the Law of the Sea, 3 The Law and Practice of International Courts and Tribunals 2004, Parts 1-2 at pp. 205-374, Part 3 at pp. 411-507; Bernard H. Oxman, Observations on vessel release under the United Nations Convention on the Law of the Sea, 11 TIJMCL 1996, pp. 201-215. For the overall presence of human rights in the Law of the Sea Convention see Bernard H. Oxman, Human rights and the United Nations Convention on the Law of the Sea, 36 Columbia J Transn’l L 1997, pp. 399-429. 1 2

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Under each one of these guises, for which no definition is provided in the text of the Convention, the State can exercise a different range of functions. Most of them are not necessarily new – flag State powers, for instance, constitute traditional attributes of State power at sea. Others have acquired novel importance as the international community has accorded or shifted emphasis to specific uses of the seas, e.g. the production of energy; or has developed new values, thus rearranging its priorities in the seas, e.g. protection of the environment. The interplay between the different labels, which each State may, simultaneously or not, assume provides a fascinating canvas of contrasting interests, joint actions and overlapping concerns. When the ever ex panding activities of international organisations, with their own jurisdictional claims, enter the fray, the situation becomes even more complicated – and ultimately much more interesting. 1. THE FLAG STATE Flag State jurisdiction is the oldest expression of maritime jurisdiction. It is also coincidental to jurisdiction exercised on the basis of nationality 5 . The hoisting of a flag indicates to the world which State is to exercise flag State jurisdiction over the ship6 , as any affront to the ship is construed as and assimilated with an affront to the flag State 7 – hence the importance attached to the already discussed ‘genuine link’ with the State granting the privilege of the flag 8 . On the flip side, the acts and/or omissions of the vessel are not automatically attributable to the State, as the ship remains a private actor and the usual rules of attribution would apply, namely articles 2-11 of the Articles on State Responsibility 9 . Maurice Kamto, La nationalité des navires en droit international, La mer et son droit. Mélanges offertes à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, Paris 2003) pp. 343373; contra D.H.N. Johnson, The nationality of ships, 8 Indian Yearbook of International Af fairs 1959, pp. 3-15, as quoted by R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press, 1999) at p. 257. 6 See also N. Singh, Maritime flag and State responsibility, Essays in international law in honour of Judge Manfred Lachs (Martinus Nijhoff, The Hague/Lancaster/Boston 1984) pp. 657-669; Pierre Bonassies, La loi du pavillon et les conflits de droit maritime, 125 RCADI 1969-III, pp. 505-630; Société française de droit international, Le navire en droit international , colloque de Toulon (Pedone, Paris 1992). 7 Thus Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1998, paragraph 20. 8 See supra Part I, Chapter 1, 2. 9 The draft articles prepared by the International Law Commission, UN Doc A/56/10 (2001), were approved by General Assembly resolution 56/83 of 12 December 2001, text available at ; James Crawford, The International Law Commission’s Articles 5

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The extent of the jurisdiction exercised by the flag State is neatly summarised in article 94 of the Law of the Sea Convention. It comprises the obligation for each State to effectively exercise jurisdiction and control in administrative, technical and social matters 10 , including the construction, equipment and seaworthiness of ships 11 ; the manning of ships, labour conditions and the training of crews 12 ; as well as the use of signals, the maintenance of communications and the prevention of collisions 13 . At first sight, the content of these rules appears to remain within the exclusive competence of the flag State – until one reaches paragraph 5 of the same article 94 LOSC, where it is stated that: “In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance.”

It becomes thus clear that the standards, which the State is called to uphold, are international rather than domestic – and consequently the ample facility to regulate the ship flying one’s flag is in actual practice severely curtailed by globally agreed rules and regulations. Such rules may be found in two important fora. The International Labour Organisation (ILO) had always considered maritime labour as one of its primary priorities. As a result, a series of special maritime sessions since the 1920s created a comprehensive system of standards and conditions for the employment of seafarers worldwide 14 , although not always with immediately discernible results. The rules were codified and further strengthened with the adoption by the International Maritime Organisation (IMO) of the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) 15 . The two organisations have just concluded the intensive cooperation leading to the adoption, during the 2006 ILO 94th on State Responsibility. Introduction, text and commentaries (Cambridge 2002), especially at pp. 91-123. 10 Article 94 paragraph 1 LOSC. 11 Article 94 paragraph 3(a) LOSC. 12 Article 94 paragraph 3(b) LOSC. 13 Article 94 paragraph 3(c) LOSC. 14 See Nicolas Valticos, La protection internationale des travailleurs de la mer, La Mer et son droit. Mélanges offertes à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, Paris 2003) pp. 343-373. 15 Available at . For an overview of the international and national rules safeguarding seafarers’ rights in selected jurisdictions, see Deirdre Fitzpatrick & Michael Anderson (eds.), Seafarers’ rights (Oxford 2005); see also Prodromos Mavridis, La protection sociale des marins dans le droit communautaire, Revue de droit de l’Union européenne 2003, pp. 647-685.

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(maritime) session, of a consolidated Maritime Labour Convention 16 , thus creating, in express application of article 94 of the Law of the Sea Convention 17 , “a single, coherent instrument embodying as far as possible all up-to-date standards of existing international maritime labour Conventions and Recommendations” 18 .

At the same time, the IMO has promoted, through the work of its Subcommittee on Flag State Implementation 19 , a voluntary audit scheme 20 as a tool in order to assess how effectively the member States implement and enforce the conventional standards they have agreed upon as compiled in the Code for the implementation of mandatory IMO instruments 21 . The first such audits are already under way, although the whole process still depends upon the consent of the State concerned. Nonetheless, it remains the only valid attempt so far to create an effective system of implementation control at sea, along the lines of the peer review procedures employed, for instance, in the anti-corruption conventions. Along the same lines moves also the European Community, collectively the largest flag State jurisdiction in the seas. The Green Paper on the Future Maritime Policy for the European Union contains a strong commitment on behalf of the Union and the member States to support a policy to improve the performance of flag States and considers the development of an instrument to strengthen the monitoring of international rules in the high seas, including with the use of state-of-the-art technology, such as global satellite navigation under the Galileo programme, a matter of urgency 22 . It was adopted on 7 February 2006, available at . Cleopatra Doum bia-Henry, The consolidated Maritime Labour Convention: A marriage of the traditional with the new, Les normes internationales du travail : Un patrimoine pour l’avenir. Mélanges en l’honneur de Nicolas Valticos (Bureau international du Travail, Genève 2004) pp. 319-334; George Politakis, Deconstructing flexibility in international labour conventions, ibid., pp. 463-496, at pp. 487-492. 17 The ninth preambular paragraph of the Maritime Labour Convention, supra, reads: “Recalling that Article 94 of the United Nations Convention on the Law of the Sea, 1982, establishes the duties and obligations of a flag State with regard to, inter alia, labour conditions, crewing and social matters on ships that fly its flag,…”. 18 Second preambular paragraph of the Maritime Labour Convention. 19 For the workings of the Sub-committee, see . 20 Originally approved by the IMO Assembly Resolution A.946(23) on 27 November 2003, Voluntary IMO Member State Audit Scheme; and finally adopted in 2005 by IMO Assembly Resolution A.974(24) Framework and Procedures for the Voluntary IMO Member State Audit Scheme, available at . 21 Approved by IMO Assembly Resolution A.973(24) in November 2005, ibid. 22 Green Paper by the Commission of the European Communities, Towards a future maritime policy for the Union: A European vision for the oceans and seas, COM (2006) 275, 7 June 2006; available at . 16


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Even in these very early stages the ‘naming and shaming’ procedure thus created appears more intrusive – and consequently capable of causing a change in attitudes – than the optional notification procedure coyly prescribed in article 94 paragraph 6 of the Law of the Sea Convention, according to which “A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation” 23 .

It is quite clear that the lack of effective implementation, creating conditions of substandard shipping with its ensuing impact on maritime labour 24 , is due more to the absence of any political will to act on the matter rather than any dearth of information… On the other hand, it would be simplistic and rather naïve to assume that the flag State retains at all times full control of a ship: the present-day global maritime commerce relies much more on other users of the vessel, such as the charterer or the administrator of the ship, rather than the typical ship-owner wrapped in the flag (presuming at all times that the owner can be eventually identified in a web of holding companies) 25 . The exclusive jurisdiction of the flag State is further challenged in a num ber of other instances. The flag State is obligated to take action so that vessels flying its flag render assistance to a ship or persons in distress at sea 26 – an obligation further substantiated in the 1974 International Convention on the Safety of Life at Sea (SOLAS) 27 and the 1979 International Convention Emphasis added. See also David D. Caron, Ships, nationality and status, IV Encyclopedia of International Law 2000, pp. 400-408; Joseph Vorbach, The vital role of non-flag States actors in the pursuit of safer shipping, 32 ODIL 2001, pp. 27-42. 24 See on the subject Awni Behnan, Ending flag State control?, in Andree Kirchner (ed.), International Maritime Environmental Law (Kluwer Law International, 2003) pp. 123-135. 25 Emmanuel Roucounas, Facteurs privés et droit international public, 299 RCADI 2002, pp. 9-419, at §§319-328, pp. 207-211. 26 Article 98 LOSC. The IMO has also issued Guidelines on the Treatment of Persons Rescued at Sea, adopted by Resolution MSC.167(78) in May 2004; text available at . See also IMO & UNHCR, Rescue at sea. A guide to principles and practice as applied to mi grants and refugees (2006), ibid . For a general discussion of a new category of persons in distress, namely migrants at sea, see Ximena Hinrichs, Measures against smuggling of migrants at sea: A Law of the Sea related perspective, RBDI 2003, pp. 413-451; Raymond Goy, Le régime international des migrants illicites par voie de mer, ADM 2003, pp. 249-301; Tullio Scovazzi, La tutela della vita umana in mare, con particolare riferimento agli immigranti clandestini diretti verso l’Italia, 88 RDI 2005, pp. 106-120. 27 Chapter V, Regulation 33(1) of the SOLAS Convention reads: “The master of a ship at sea, which is a position to be able to provide assistance, on receiving information from any sources that persons are in distress at sea, is bound to proceed with all speed to their assis23

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on Maritime Search and Rescue (SAR) 28 . On a less charitable mission, the flag State must criminalise and take effective measures to prevent vessels flying its flag from transporting slaves 29 , thus aiding and abetting to a iure co gens crime30 . The flag State is also called upon to cooperate in the fight against criminality at sea 31 , in all its modern or less modern forms. Such provisions include the fight against drug trafficking 32 , mostly through the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 33 , which further provides for increased regional cooperation 34 ; the repression of piracy 35 , where there exists no other global international convention but the restricted definition is supplemented by the 1988 Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (the SUA Convention)36 , as amended by the 2005 SUA Protocol 37 ; or the suppression of unauthorised broadcasting from the high seas 38 . tance, if possible informing them or the search and rescue service that the ship is doing so…”; text available at . 28 Chapter 2.1.10 of the SAR Convention obligates States parties to “…ensure that assistance be provided to any person in distress at sea … regardless of the nationality or status of such a person or the circumstances in which that person is found”; text available at . 29 Article 99 LOSC. 30 See supra Chapter 1, 3, at footnotes 136-145 and relevant text. 31 Including tort jurisdiction: for a discussion of the Australian example see Alison Mutton, Choice of law on the high seas: Blunden v. Commonwealth, 26 Sydney LR 2004, pp. 427-438. 32 Article 108 paragraph 2 LOSC. 33 Adopted in Vienna as ECOSOC Doc. E/Conf.82/15 of 19 December 1988, 28 ILM 1989, pp. 497-526; Vicenta Carreño Gualde, Suppression of the illicit traffic in narcotic drugs and psychotropic substances on the high seas: Spanish case-law, 4 Spanish YBIL 1995/1996, pp. 91-106. 34 In the best available example, see the Agreement on illicit traffic by sea, implementing article 17 of the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, ETS no. 156, adopted in Strasbourg on 31 January 1995; see also W.C. Gilmore, Narcotics interdiction at sea: the 1995 Council of Europe Agreement, 20 Marine Policy 1996, pp. 3-14. 35 Article 100 LOSC. For a general overview of the problems and challenges still posed see José Luis Jesus, Protection of foreign ships against piracy and terrorism at sea: Legal aspects, 18 TIJMCL 2003, pp. 363-400, at pp. 364-387; Ethan C. Stiles, Reforming current international law to combat modern sea piracy, 27 Suffolk Transn’l LR 2004, pp. 299-326; Zou Kenyuan, Seeking effectiveness for the crackdown of piracy at sea, 59 Journal of International Affairs 2005, pp. 117-134. 36 1678 UNTS 29004; Tullio Treves, The Convention for the suppression of unlawful acts against the safety of maritime navigation, 2 Singapore JICL 1998, pp. 541-556. 37 Concluded on 13 October 2005, IMO Doc. LEG/CONF.15/DC/1; it opened for signature on 14 February 2006; also available at . 38 Article 109 LOSC – considered a trendy pastime in the 1960s and now sadly rendered obsolete by technology; Paul Harris, Broadcasting from the high seas. The history of offshore radio in Europe 1958-1976 (Edinburgh 1977); N. March Hunnings, Pirate broadcasting in


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2. THE COASTAL STATE The jurisdiction of the coastal State over seaward maritime areas remains nothing less that the projection of State sovereignty onto the sea. Hence the traditional debate on the breadth of the territorial waters 39 , best encapsulated in Bynkershoek’s words: “terrae dominium finitur ubi finitur armorum vis” 40 .

The territorial aspect of the State extends to all the maritime zones, from the full sovereignty exercised over the territorial sea 41 to the sovereign rights enjoyed in the EEZ 42 . It would be, however, incorrect to presume that the jurisdiction the coastal State exercises over the seas is identical to that exercised on the land. The right of innocent passage creates a major hole in the sovereignty of the coastal State: it allows for “continuous and expeditious” 43 passage through the territorial sea “so long as it is not prejudicial to the peace, good order or security of the coastal State” 44 and it takes “place in conformity with [the] Convention and with other rules of international law” 45 . This general negative definition, which was also to be found in article 14 paragraph 4 of the 1958 Geneva Convention on the Territorial Sea 46 , was improved with the addition of a (non-exhaustive) 47 list of activities, the presEuropean waters, 14 ICLQ 1965, pp. 410-436; H.F. van Punhuys & Menno J. van Emde Boas, Legal aspects of pirate broadcasting: A Dutch approach, 60 AJIL 1966, pp. 303-341. 39 Currently at 12 nautical miles from the baselines; article 3 LOSC. 40 Cornelius Bynkershoek, De dominio maris (1703). 41 Article 2 LOSC. For the classical exposition of the doctrine see D.P. O’Connell, The juridical nature of the territorial sea, 45 BYBIL 1971, pp. 303-381. 42 Article 56 LOSC. 43 Article 18 paragraph 2 LOSC. 44 Article 19 paragraph 1 LOSC. 45 Ibid . For the traditional judicial test of the principle see the Corfu Channel case, United Kingdom v. Albania, ICJ Reports 1949, available at ; see also Anthony Carty, The Corfu Channel case – and the missing admiralty orders, 3 The Law and Practice of International Courts and Tribunals 2004, pp. 1-35. 46 Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205. 47 R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press 1999) pp. 84-87. Note, however, that in an agreement on the Uniform Interpretation of Norms of International Law Governing Innocent Passage in 1989 the US and the (then) USSR agreed that “Article 19 of the Convention of 1982 sets out in paragraph 2 an exhaustive list of activities that would render passage not innocent. A ship passing through the territorial sea that does not engage in any of those activities is in innocent passage”; 14 Law of the Sea Bulletin 1989, pp. 12-13; Erik Franckx, Further steps in the clarification of the Soviet position on the innocent passage of foreign warships through territorial warships, 19 Georgia JICL 1989, pp. 535-563; idem., Innocent passage of warships: Recent developments in US-Soviet relations, 14 Marine Policy 1990, pp. 484-490.

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ence of which renders the passage non-innocent and thus returns the ship to the full jurisdiction of the coastal State, which “may take all the necessary steps in its territorial sea to prevent [such] passage” 48 . The prohibited activities include weapons practice 49 , intelligence gathering 50 , propaganda 51 , launching or taking on board of aircraft or other military device 52 , embarking or disembarking persons or goods in breach of customs, fiscal, immigration and sanitary laws and regulations 53 , wilful and serious pollution54 , fishing55 , research or survey activities 56 , interference with communications 57 as well as two generic clauses, presumably at the discretion of the coastal State: “any other activity not having a direct bearing on passage” 58 , and “any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations” 59 .

As a result, the coastal State has acquired increased leeway in determining whether a ship is exercising innocent passage or not. That being said, there is no dearth of instances where the coastal State has claimed additional grounds for rendering a passage non-innocent alleging the need for increased environmental protection, especially in view of passage by certain (mostly nuclear) ships 60 . Article 25 paragraph 1 LOSC. See in general William K. Agyebeng, Theory in search of practice. The right of innocent passage in the territorial sea, 39 Cornell ILJ 2006, p. 371-399. 49 Article 19 paragraph 2(b) LOSC. 50 Article 19 paragraph 2(c) LOSC. 51 Article 19 paragraph 2(d) LOSC. 52 Article 19 paragraphs 2(e)-(f) LOSC. 53 Article 19 paragraph 2(g) LOSC. 54 Article 19 paragraph 2(h) LOSC. 55 Article 19 paragraph 2(i) LOSC. 56 Article 19 paragraph 2(j) LOSC. 57 Article 19 paragraph 2(k) LOSC. 58 Article 19 paragraph 2(l) LOSC. 59 Article 19 paragraph 2(a) LOSC. 60 See, instead of many others, Marco Roscini, The navigational rights of nuclear ships, 15 Leiden JIL 2002, pp. 251-265; Jon M. Van Dyke, The legal regime governing sea transport of ultrahazardous radioactive materials, 33 ODIL 2002, pp. 77-108; Kari Hakapää, Innocent passage – Past and present, 23 Marine Policy 1999, pp. 131-145; Lawrence Marín, Oceanic transportation of radioactive materials: The conflict between the law of the sea’s right of innocent passage and duty to the marine environment, 13 Florida JIL 2000-2201, pp. 361-378; Pablo Cubel, Transboundary movements of hazardous wastes in international law: The special case of the Mediterranean Sea, 12 TIJMCL 1997, pp. 447-487; Robert Nadelson, After MOX: The contemporary shipment of radioactive substances in the Law of the Sea, TIJMCL 2000, pp. 193-244; Laura Pineschi, The transit of ships carrying hazardous wastes through foreign 48


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With the view both to safeguard the freedom of navigation in the seas, even in an area so close to the coast, and also to maintain the authority of the flag State to take all measures necessary to ensure safety at sea for ships flying its flag, the Law of the Sea Convention contains a double prohibition of action addressed to the coastal State. First, it restricts its sovereignty to adopt laws and regulations only to certain tasks enumerated in article 21 of the LOS Convention – and even then strictly “… in conformity with the provisions of [the] Convention and other rules of international law” 61 .

Among them, one could find safety of navigation and the regulation of maritime traffic62 , the conservation of the living resources of the sea 63 , the prevention of infringement of the fisheries laws and regulations of the coastal State 64 , the preservation of the environment of the coastal State and the prevention, reduction and control of pollution thereof 65 . Second, even those laws and regulations must be drafted and construed in such a way so as “not [to] hamper the innocent passage of foreign ships through the territorial sea” 66 .

In particular, the coastal State “in the application of [the] Convention or any laws or regulations adopted in conformity with [the]Convention” 67 .

shall not impose requirements, “which have the practical effect of denying or impairing the right of innocent passage” 68 , coastal zones, in F. Francioni & Tullio Scovazzi (eds.), International responsibility for environmental harm (Graham & Trotman/Martinus Nijhoff, London 1991) pp. 299-316. For the evolutionary development of a new approach to innocent passage of dangerous cargoes through ‘notification without consent’ see Tullio Scovazzi, The evolution of international law of the sea: New issues, new challenges, 286 RCADI 2000, pp. 39-243, at pp. 156-162. 61 Article 21 paragraph 1 LOSC. 62 Article 21 paragraph 1(a) LOSC. 63 Article 21 paragraph 1(d) LOSC. 64 Article 21 paragraph 1(e) LOSC. 65 Article 21 paragraph 1(f) LOSC. For an overview see Erik Franckx, Vessel-source pollution and coastal State jurisdiction: General framework, 24 South African YBIL 1999, pp. 1-34. 66 Article 24 paragraph 1 LOSC. 67 Ibid . 68 Article 24 paragraph 1(a) LOSC.

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or discriminate against ships flying the flag of or carrying cargoes to and from any State 69 , including by levying charges upon them 70 . Construction, design, equipment and manning standards (CDEMs) are particularly singled out. The coastal State is expressly forbidden to legislate on such issues “unless […] giving effect to generally accepted international rules and standards” 71 .

Such rules and standards may be found mostly in the 1973 International Convention for the Prevention of Pollution from Ships, as amended in 1978 (MARPOL 73/78) 72 and the 1974 International Convention for the Safety of Life at Sea (SOLAS 74) 73 . Unilateralism in these matters becomes strictly incompatible with the Law of the Sea Convention – which necessarily means that coastal sovereignty must explore other avenues in order to make its presence felt 74 . In a typical example of alternative bases of rule-making, the coastal State remains free to adopt national pollution control measures stricter than the relevant international regulations and applicable on ships flying its flag or present in the territorial waters75 , provided that such measures again “cannot hamper innocent passage of foreign ships” 76 . Indeed, it was on the basis of this last proviso that the compatibility of Directive 2005/35/EC concerning ship-source pollution and the introduction of penalties for infringements 77 with the Law of the Sea Convention has been challenged before the European Court of Justice 78 , as it provides for the crimi Article 34 paragraph 1(b) LOSC. Article 26 LOSC. 71 Article 21 paragraph 2 LOSC. For an overview see Anne Bardin, Coastal State’s jurisdiction over foreign vessels, 14 Pace ILR 2002, pp. 27-76. 72 Text available at . 73 Ibid. 74 See also Alan Boyle, EU unilateralism and the Law of the Sea, 20 TIJMCL 2005, pp. 117; Maria Gavouneli, From uniformity to fragmentation? The ability of the UN Convention on the Law of the Sea to accommodate new uses and challenges, in A. Strati, M. Gavouneli & N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 205-233, at pp. 210-213. 75 Article 211 paragraph 2 LOSC. 76 Article 211 paragraph 4 LOSC. 77 Directive 2005/35/EC of the European Parliament and Council of 7 September 2005 concerning ship-source pollution and the introduction of penalties for infringements, OJ L 255, pp. 11-21, 30 September 2005. 78 ECJ, Case C-308/06, Reference for preliminary ruling from the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) made on 14 July 2006 – The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The 69 70


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nalisation of pollution, also if committed “recklessly or by serious negligence” thus exceeding the ‘wilful pollution’ standard of article 19 paragraph 2(h) of the Law of the Sea Convention. The situation is no different in the exclusive economic zone. The coastal State enjoys sovereign rights for the purposes of exploration and exploitation of the natural resources of the zone 79 and may also exercise jurisdiction as to the establishment of offshore structures, the conduct of marine scientific research and the protection of the marine environment 80 . Although the latter may well prove to be a Trojan horse for the re-affirmation of its jurisdiction 81 , on the face of the law the coastal State may only “adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to generally accepted international rules and standards established through the competent international organisation or general diplomatic conference” 82 .

The approval of the international community, expressed through the IMO as the competent international organisation, is also necessary should the coastal State feel that ‘special circumstances’ require the adoption of ‘special mandatory measures’ for the prevention of pollution or the protection of its resources 83 . The procedure set out in article 211 paragraph 6 of the Law of the Sea Convention involves a series of cumbersome, time-consuming decisions whereby international laws and regulations may designate specially protected areas allowing for the possible adoption of national measures of im plementation over a period of almost two years. The proliferation of such designated areas, in spite of the considerable difficulty of the staged ap proach knowingly adopted by the LOS Convention and often, bypassing the LOS Convention, on debatable or even non-existent legal bases, testifies to the crying need for similar arrangements 84 – and their proven beneficial uses and effects 85 . Greek Shipping Cooperation Committee, Lloyd’s Register, The International Salvage Union v. The Secretary of State for Transport ; for developments see . 79 Article 56 paragraph 1 (a) LOSC. See also Christopher P. Mooradian, Protecting ‘sovereign rights’: The case for increased coastal State jurisdiction over vessel-source pollution in the exclusive economic zone, 82 Boston ULR 2002, pp. 767-816. 80 Article 56 paragraph 1(b) LOSC. 81 See infra Part II, Chapter 1. 82 Article 211 paragraph 5 LOSC. 83 Article 211 paragraph 6(a) LOSC. 84 For an overview see, instead of many others, Tullio Scovazzi (ed.), Marine Specially Protected Areas. The general aspects and the Mediterranean regional system (Kluwer Law International, The Hague/Boston/London 1999) at pp. 3-43. 85 See also infra Part II, Chapter 3, 2.

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3. THE PORT STATE The port State is always a coastal State – although the reverse is not always true. The Law of the Sea Convention has granted specific rights and obligations to this special category of a coastal State, especially in terms of enforcement action of the applicable rules and standards for the protection and preservation of the marine environment. Thus presented, the rule constitutes an innovation of the Convention 86 – indeed, it has been described as “the most important innovation of the enforcement system”87 –, presaged in a more limited way in the MARPOL Convention. The change in emphasis has prompted comments ranging from a perceived delegation of the port State to second-grade coastal State quality 88 to a long-awaited recognition of the traditionally long association between the ship and her port 89 . In actual fact, the major difference lies in the ‘voluntary’ character of the ship’s presence in port 90 : whereas the principle of innocent passage shields the seagoing vessel from the jurisdiction of the coastal State, port-state jurisdiction strengthens compliance with national rules and regulations without any interference with the freedom of navigation as entry into a port constitutes a voluntary submission of the vessel to the jurisdiction of the port State – either and both running concurrently with the original jurisdiction of the flag State. The creation of a separate port State jurisdiction is the direct consequence of the expansion of the coastal State’s jurisdiction over the exclusive economic zone, especially in view of the enhanced environmental protection provisions included in the Law of the Sea Convention. As more and more See Shabtai Rosenne & Alexander Yankov (eds.), United Nations Convention on the Law of the Sea 1982. A Commentary, vol. IV: Articles 192 to 278, Final Act, Annex VI (Martinus Nijhoff, Dordrecht/Boston/London 1991) at §218.1, p. 260; David Anderson, The roles of flag States, port States, coastal States and international organisations in the enforcement of international rules and standards governing the safety of navigation and the prevention of pollution from ships under the UN Convention on the Law of the Sea and other international agreements, 2 Singapore JICL 1998, pp. 557-578, at pp. 567-570. 87 Barbara Kwiatkowska, The 200-mile exclusive economic zone in the new law of the sea (Martinus Nijhoff, Dordrecht 1989) at p. 180. 88 Thus P.-M. Dupuy & Martine Rémond-Gouilloud, La préservation du milieu marin, in R.-J. Dupuy & D. Vignes (éds.), Traité du nouveau droit de la mer (Paris 1985) pp. 979-1045, at p. 1023. 89 Thus Emmanuel Roucounas,   « »               Memorandum   [=Reinforcement of the port State under the new Law of the Sea Convention and the Paris Memorandum], Offer to Ilias Crispis (Athens 1995) pp. 611-626, at p. 614. 90 Article 218 paragraph 1 LOSC. See also Rosenne & Yankov, supra note 86, at §218.9(f), p. 274; Ted L. McDorman, Port State enforcement. A comment on Article 218 of the 1982 Law of the Sea Convention, 28 JMLC 1997, pp. 305-322. 86


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marine areas come under the jurisdiction of the coastal State, the need was perceived for a ‘third’ jurisdiction, which would take over, if that coastal State – or indeed the flag State – were to show signs of laxity in enforcing their obligations. As a result, port State enforcement jurisdiction may be exercised “in respect of any discharge from [a] vessel outside the internal waters, territorial sea and exclusive economic zone of that State in violation of applicable international rules and standards established through the competent international organisation or general diplomatic conference” 91 .

Moreover, the port State may exercise enforcement jurisdiction in respect of discharges in the internal waters, territorial sea or exclusive economic zone of another State, at the request of that State or the flag State or a third State damaged or threatened by the discharge violation. Naturally, the port State retains its jurisdiction in respect of violations which have caused or were likely to cause pollution in its internal waters, territorial sea or EEZ – but in application of its jurisdiction in its capacity as a coastal State 92 . It is important to note in this respect that all port State jurisdiction remains permissive, not mandatory 93 . The port State thus becomes, if it so wishes, the friendly or not-so-friendly neighbourhood constable in matters pertaining to marine pollution94 , exercising a form of universal jurisdiction 95 of the aut dedere aut iudicare variety: in a fairly complicated system of implementation, the port State may transfer the file to either the coastal State or the flag State, any such proceedings subject to suspension upon a request of the coastal State victim of pollution 96 .

Article 218 paragraph 1 LOSC. For a wider definition of ‘port State’ see Erik Jaap Molenaar, Port State jurisdiction: Towards mandatory and comprehensive use, in David Freestone, Richard Barnes & David Ong (eds.), The Law of the Sea. Progress and Prospects (Oxford 2006) pp. 192-209, at p. 194. 93 Tatjana Keselj, Port State jurisdiction in respect of pollution from ships: The 1982 United Nations Convention on the Law of the Sea and the Memoranda of Understanding, 30 ODIL 1999, pp. 127-160, at p. 140, quoting J. Peter A. Bernhardt, A schematic analysis of vessel-source pollution: Prescriptive and enforcement regimes in the Law of the Sea Conference, 20 Virginia JIL 1979-1980, pp. 268-311, at p. 284. 94 For an overview see, instead of many others, G. Kasoulides, Port State control and jurisdiction: Evolution of the port State regime (Martinus Nijhoff, Dordrecht/Boston/London 1993); Moritaka Hayashi, Jurisdiction over foreign commercial ships in ports. A gap in the law of the sea codification, 18 Ocean YB 2004, pp. 488-511. 95 Thus also K. Ioannou & Anastasia Strati,    [=Law of the Sea] (2nd ed., Athens 2000) at §944. 96 Article 218 paragraph 4 LOSC. 91 92

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Port State jurisdiction may also assume a negative aspect. In the absence of any reference to a right to entry into ports, the Law of the Sea Convention, nevertheless, allows States to “establish particular requirements for the prevention, reduction and control of pollution of the marine environment as a condition for the entry into their ports or internal waters or for a call at their offshore terminals” 97 .

Complete with a right to request information as to the intentions of the vessel 98 and the obligation to prevent from sailing a vessel non-conforming to the international standards of seaworthiness 99 , this provision has provided the legal basis for the elaborate system of memoranda of understanding (MOU), administrative arrangements concluded between the port authorities of a region rather than the States proper, with a view to ensure that a certain num ber of inspections is carried out at a more or less similar level. The 1982 Paris MOU 100 , the first exercise of this kind, was fully aware of the need to create uniform standards – and thus a level playing-field to counterbalance the financial risks inherent in the international community consta ble function of any given port. The earlier inspections focused on the national enforcement of the internationally agreed construction, design, equipment and manning standards (CDEMs) 101 , with a eye on safe navigation rather than on environmental concerns. However, as the IMO concentrated more and more on the ‘human element’ in merchant shipping, the scope of controls expanded to cover the whole operation of a ship, best exemplified in the IMO International Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code 2002) 102 . Environmental regulations took also Article 211 paragraph 3 LOSC. And presumably impose sanctions as well: US v. Royal Caribbean Cruises Ltd ., 2003, file available at the US Coast Guard site at ; see also Anderson, supra note 86, at pp. 270-272. 99 Article 219 LOSC. See also Gerhard Kiehne, Investigation, detention and release of ships under the Paris Memorandum of Understanding on port state control: a view from practice, 11 TIJMCL 1996, pp. 217-224. 100 Memorandum of Understanding on Port State Control, Paris, 26 January 1982, as regularly amended; text available at . See also Tim De Bondt, States and the control of ships, in Erik Franckx & Philippe Gautier (eds.), The Exclusive Economic Zone and the United Nations Convention on the Law of the Sea, 1982-2000: A preliminary assessment of State practice (Bruylant, Bruxelles 2003) pp. 123-132, at pp. 128-131. 101 See also supra under 2. 102 First adopted in 1991, it became mandatory in 1996; text available at . For an overview see Antonio José Rodriguez & Mary Campbell Hubbard, The International Safety Management (ISM) Code, 73 Tulane LR 1999, pp. 1585-1618; Chen Liang, Legal and practical consequences of not complying with the ISM Code, 27 Maritime Policy & Management 2000, pp. 219-230; Lia Athanassiou,      [=The role and liability of classification societies] (Athens 1999) at pp. 23-26; idem.,    97 98


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pride of place, with norms stricter in application appli cation and wider in i n scope, including the proper functioning of liability regimes: in a fairly typical example, reference is now increasingly made to the 1992 International Convention on Civil Liability for Oil Pollution Damage (CLC Convention)103 , although the text of that Convention does not make any reference to port State jurisdiction or control 104 . In addition, the implementation control of both ILO labour and living standards 105 as well as WHO health regulations 106 , obligations which the flag State was supposed to police 107 , appeared in the ever expanding list. Indeed, the IMO and the ILO are once again cooperating in the elaboration of draft Guidelines for Port State Control on Inspection of Seafarers’ Working Hours 108 pursuant to ILO Convention no. 180 on Seafarers’ Hours of Work and Manning of Ships Convention 109 whereas the development of further Guidelines for Port State Control under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments is expected for 2008 110 . Fishing has emerged as a prime target of port State control as the FAO adopted a port State model scheme to combat illegal, unreported and unregulated (IUU) fishing 111 . Even cultural matters are now entrusted to the        [=The debate on the limitation of liability for maritime claims] (Athens 2005), at p. 313; Dimitrios Christodoulou, The International Safety Management (ISM) Code and the rule of attribution in corporate criminal re sponsibility under English law (Athens law (Athens 2000). 103 The CLC Convention, originally adopted in 1969, has been replaced by the 1992 Protocol thereto, as further amended in 2000; codified text available at . For an overview see Michael Mason, Civil liability for oil pollution damage: Examining the evolving scope for environmental compensation in the international regime, 27 Marine Policy 2003, Policy 2003, pp. 1-12. 104 As commented by Molenaar, supra Molenaar, supra note note 92, at p. 203. 105 See Francis Maupain, Persuasion et contrainte aux fins de la mise en œuvre des normes et objectifs de l’OIT, Mélanges en l’honneur de Nicolas Valticos, Valticos, supra note supra note 16, pp. 687-709. For an earlier attempt see F. Wolf & H. Kellerson, Les problèmes de droit de travail et la Convention sur le droit de la mer, in Société in Société française de droit international, Perspectives du droit de la mer à l’issue de la Troisième Conférence des Nations Unies, Unies , Colloque de Rouen (Pedone, 1983) pp. 224-237. 106 The 2005 International Health Regulations further broaden the obligations of port States, available at . 107 See supra See supra under under 1. 108 Draft text available at . 109 Adopted on 22 October 1996, it entered into force on 8 August 2002; for the text of the Convention see . 110 Information available at . See also Report of the UN Secretary-General, Oceans and the Law of the Sea, UN Doc. 61/63/Add.1, 17 August 2006, paragraph 45, available at . 111 Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing , Annex E to the Report of the Technical Consultation to Review Port State Measures

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coordinated enforcement powers of the port State, under article 15 of the 2001 Underwater Cultural Heritage Convention 112 , which reads: “States Parties shall take measures to prohibit the use of their territory, including their maritime ports, ports, as well as artificial islands, installations and structures under their exclusive jurisdiction or control, in support of any activity directed at underwater cultural heritage which is not in conformity with this Convention.” (emphasis added).

The effectiveness of the system has also prompted further geographical expansion. Indeed, the IMO actively encouraged 113 the proliferation of such arrangements with a view to create a global network of regional port State control system. In addition to the European coastal waters and the waters of the North Atlantic basin covered by the t he Paris MOU, the Asia and Pacific waters are covered by the Tokyo Memorandum of Understanding 114 ; the Latin American States work together in the context of the Acuerdo de Viña del Mar 115 ; the Caribbean waters are policed by the Caribbean Memorandum of Understanding 116 ; West and Central Africa is covered by the Abuja Memorandum of Understanding 117 ; the Black Sea region operates under the Black to Combat Illegal, Unreported and Unregulated Fishing, FAO Fisheries Report no. 759 (FAO, Rome 2004) available at . 112 The Convention on the Protection Protection of the Underwater Cultural Heritage was adopted adopted by the UNESCO General Conference on 2 November 2001, 41 ILM 41 ILM 2002, 2002, pp. 40-56; available at ; Guido Carducci, New developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage, 96 AJIL 2002, AJIL 2002, pp. 419-434; Sarah Dromgoole, 2001 UNESCO Convention on the protection of the underwater cultural heritage, 18 TIJMCL 2003, TIJMCL 2003, pp. 59-108. For a thorough discussion of the issue in general see Vittorio Mainetti, Considerazioni in tema di esercizio della sovranità archeologica da parte dello Stato costiero, in Guido in Guido Camarga & Tullio Scorazzi (eds.), The protection of the underwater cultural heritage. Legal aspects aspects (Guiffrè Editore, Milano 2002) pp. 217-244; Tullio Treves, Stato costiero e archeologia sottomarina, RDI 1993, pp. 698-719; Anastasia Strati, The Protection of the Underwater Cultural Heritage. An emerging objective of the contemporary law of the sea (Martinus sea (Martinus Nijhoff, 1995); Sarah Dromgoole & Nicholas Gaskell, Draft UNESCO Convention on the protection of the underwater cultural heritage 1998, 14 TIJMCL 1999, pp. 171-206, at pp. 177-179. 113 IMO Assembly Resolution A.682(17) Regional A.682(17) Regional cooperation in the control of ships and discharges (1991), discharges (1991), available at . See in general Ted L. McDorman, Regional Port State Control Agreements: some issues of international law, 5 OCLJ 2000, 2000, pp. 207-225; Richard W.J. Schiferli, Regional concepts of port State control: A regional effort with global effects, 11 Ocean YB 1994, YB 1994, pp. 202-217. 114 Asia-Pacific Memorandum of Understanding on port-State control in the Asia-Pacific Region, Tokyo, 1 December 1993, as regularly amended, text available at . For a general comment see Ted L. McDorman, Port State control: A comment on the Tokyo MOU and issues of international law, 7 Asian 7 Asian YBIL 1997, YBIL 1997, pp. 229-241. 115 Established in 1992; for an overview see . 116 Established in 1996; for an overview (partly in Latin) see . . 117 Established in 1999; for an overview see .


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Sea Memorandum of Understanding 118 ; the non-European waters of the Mediterranean are covered by the Mediterranean Memorandum of Understanding119 ; the Indian ocean coastal States cooperate in the Indian Ocean Memorandum of Understanding 120 ; and the Arab States in the Gulf have come together in the Riyadh Memorandum of Understanding. All of them remain nominally voluntary voluntary arrangements. Only the Paris Memorandum of Understanding has acquired a legally binding cloak for the coastal member States States of the European Union by its reincarnation as Directive 95/21/EC on Port State control of shipping, as repeatedly amended 121 . It is a reincarnation that we will meet again as the interplay between international rules and Community legislation continues to provide an interesting testing ground as well as a battlefield in matters maritime – with special em phasis on maritime zones and functional functional jurisdiction in the European seas.

JURISDICTION IN THE LAW OF THE SEA 4. CONCURRENT JURISDICTION

In the world of sovereign States, which constitutes the international community, the increased presence of international organisations introduces another layer of collective action. In terms of jurisdiction, however, most international organisations seem to coordinate the powers of their member States rather than reinforce their presence or, even more, substitute them in their jurisdictional functions. A significant exception in this tidy allocation of sovereign powers is the European Union and its déclinaison, the European Community, the first regional economic integration organisation, which may actually replace the member States in their functions towards their duties to the international community as a whole. This transfer of powers from the State to the Organisation is a characteristic of the Community legal order 122 . In some cases, State competence over a Established in 2000; for an overview see . 119 Established in Malta in 1997; for an overview see . 120 Established in 1998; for a overview see . 121 It is currently Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001, amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the member States, of international standards of ship safety, pollution prevention and ship board living and working conditions (port State control), OJ L 19, p. 17, 22 January 2002, available at . 122 For the interplay between the States and the Union see Constantin A. Stephanou, L’Union européenne et la souveraineté des États membres, Droit et justice. Mélanges en l’honneur de Nicolas Valticos (Pedone, Valticos (Pedone, Paris 1999) pp. 355-366; Alan Dashwood, The rela118

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specific matter has been transferred completely to the Community, thus de priving the member States of any possibility of further action. In the words of the European Court of Justice: “The power to adopt measures … has belonged fully and definitively to the Community. Member States are therefore no longer entitled to exercise any power of their own … The adoption of measures is a matter of Community law. The transfer to the Community of powers in this matter being total and definitive, … a failure [of the Council] to act could not in any case restore to the member States the power and freedom to act unilaterally in this field” 123 .

In other cases, competence is shared between the member States and the organisation, to be exercised concurrently; or even remains exclusively at the hands of the sovereign powers of the State. Although the attribution of powers is supposed to be regulated by the founding treaties of the Community and the Union, in practice the system remains in a perennial state of flux, with the borderline between State and Community power shifting typically towards an ever closer Union. All these would have been an obscure exercise in internal politics of an international organisation but for the fact that the European Community ex pressly 124 and the European Union in fact 125 have indeed international personality and may – indeed, regularly – act in the international scene concluding international agreements with third parties. These treaties take typically the form of a ‘mixed agreement’, defined as: tionship between the member States and the European Union/European Community, 41 CMLR 2004, CMLR 2004, pp. 355-381; Enzo Cannizzaro, Fragmented sovereignty? The European Union and its member States in the international arena, 13 Italian 13 Italian YBIL 2003, YBIL 2003, pp. 35-57. For an earlier perspective see also Nicos Scandamis,      [=The  [=The State in the European Community] (Ant. N. Sakkoulas, Athens 1986). 123 Case 804/79, Commission v. UK [1981] [1981] ECR 1045, at paragraphs 17, 18 and 20. 124 Article 210 of the Treaty establishing the European Community, originally established in 1957 and since repeatedly amended and codified, OJ C 321E, 29 December 2006; 2006; text also available at . 125 See, instead of many others, Loïc Grard, L’Union européenne, sujet de droit international, RGDIP tional, RGDIP 2006, 2006, pp. 337-372; Maria Gavouneli, International Law aspects of the Euro pean Union, 8 Tulane JICL 2000, pp. 147-165; Jan Klabbers, Presumptive personality: The European Union in international law, in Martii in Martii Koskenniemi (ed.), International (ed.), International law aspects if the European Union (1998) Union (1998) pp. 231-253; Nanette A.E.M. A.E. M. Neuwahl, Legal personality of the European Union – International and institutional aspects, in V. in V. Kronenberger (ed.), The EU and the international legal order: Discord or harmony? harmony? (T.M.C. Asser Press, The Hague 2001) pp. 3-22. See also articles 24 and 38 of the Treaty establishing the European Union, originally established in 1992, OJ C 191, 29 July 1992; and since repeatedly amended and codified, OJ C 321E, 29 December 2006, text also available at ; Gilles de Kerchove & Stephan Marquardt, Les accords internationaux conclus par l’Union européenne, AFDI 2004, 2004, pp. 803-825.


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“an agreement to which one or more of the Communities and the member States are, or may become, parties, and which contains provisions some elements of which fall within Community competence, and some of which fall within the competence of the member States” 126 .

The internal allocation of power becomes crucial in such circumstances, as it is only reasonable for the other contracting party to wish to know exactly who is bound by what obligation. The practice has arisen, therefore, when the Community concludes an international agreement to provide a ‘declaration of competence’ 127 , specifying which areas of the agreement fall within the competence of the organisation and which within the competence of he member States 128 . That said, the actual declaration is rarely very clear. In a typical example, the Declaration made by the European Community under Annex IX of the Law of the Sea Convention embarks upon a concise list of issues falling within the exclusive competence but a rather brief reference to issues of concurrent jurisdiction; indeed, the world community is duly forewarned of the fluidity in the allocation of competence: “the scope and the exercise of Community competence are, by their nature, subject to continuous development.” 129 . I. Macleod, I.D. Henry & Stephen Hyett, The external relations of the European Communities munities (Oxford 1996) at p. 143. On the notion of mixed agreements in general see D. O’Keefe & H.G. Schermers (eds.), Mixed agreements agreements (Kluwer, Deventer 1983); Nanette Neuwahl, Joint participation in international treaties and the exercise of powers by the EEC and its member States: Mixed agreements, 28 CMLR 1991, CMLR 1991, pp. 717-740; Allan Rosas, Mixed Union – Mixed agreements, in Koskenniemi in Koskenniemi (ed.), supr (ed.), supraa, pp. 125-148; Joni Heliskoski, Mixed agreements as a technique for organising the international relations of the European Community and its member States (Kluwer States (Kluwer Law International, The Hague 2001); Panos Koutrakos, EU International Relations Law Law (Hart, Oxford 2006); Mustafa Karayigit, Why and to what extent a common interpretative position for mixed agreements?, 11 European Foreign Affairs Review 2006, Review 2006, pp. 445-469. 127 For the workings of this practice see Marise Cremona, External Cremona, External relations of the EU and the member States: Competence, mixed agreements, international responsibility and effects of international law, law, EUI Working Papers, Law No. 2006/22, at pp. 21-25; text also available at . 128 Thus ECJ, Opinion 2/2000 on the Cartagena Protocol [2001] ECR I-09713, paragraph 16, also available at . See also Laurence Burgorgue-Larsen, À propos de la compétence partagée. Du particularisme de l’analyse en droit communautaire, RGDIP 2006, 2006, pp. 373-390. 129 Declaration concerning the competence of the European Community with regard to matters governed by the UN Convention on the Law of the Sea of 10 December 1982 and the Agreement of 28 July 1994 relating to the implementation of Part XI of the Convention made upon formal confirmation on 1 April 1998; text available at . See also Daniel Vignes, La Convention des Nations Unies sur le droit de la mer serait-elle un regrettable accord mixte? La Communauté l’a pourtant conclue, Mélanges en hommage à Michel Waelbroeck (1999) (1999) pp. 683-694; see also in general Kenneth R. Simmonds, The European Economic Community and the new Law of the Sea, 218 RCADI 218 RCADI 1989-IV, 1989-IV, pp. 9-166. 126

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Under these circumstances, any third party wishing to enter into an agreement with the Community or the Union would face an uphill battle. Illumination must therefore be sought to the internal workings of the Union legal order. Although the European Court of Justice is not comfortable with attempts to allocate competence between the Community and the member States 130 , still it has created one of the first such tests in the ERTA the ERTA principle: principle: “[E]ach time the Community with a view to develop a common policy envisaged in the Treaty, adopts provisions laying down common rules, whatever form they may take, the member States no longer have the right, acting individually or even collectively, to undertake obligations which affect those rules” 131 .

The ensuing shift in the allocation of power remains thus very much within the prerogative of the Commission and is clearly not conducive to legal certainty. Nor could one find solace in the original allocation of powers in the founding treaties, as shown in case C-176/03 132 , where the Commission and the Council disagreed on the allocation of criminal jurisdiction in Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law 133 . In spite the fierce reaction of almost all the member States, who intervened in the process, and although the Court accepted that “[a]s a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s C ommunity’s competence” 134 ,

it nevertheless proceeded to grant to the Community nothing less that inherent powers powers of enforce enforcement ment neces necessary sary for for the proper proper execution execution of its functions: functions: “However, the last-mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal Thus ECJ, Ruling ECJ, Ruling 1/78 (re Draft Convention on the Physical Protection of Nuclear Materials) [1978] ECR 2151, paragraph 35; also available at . 131 Case 22/70, Commission v. Council , [1070] ECR 263, paragraph 17; also available at . 132 Case C-176/03, Commission of the European Communities supported by the European Parliament v. Council of the European Union supported by the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Re public, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland , 13 September 2005; available at . See also the Opinion of AdvocateGeneral Dámaso Ruiz-Jarabo Colomer on the matter, Opinion of 26 May 2005, ibid. 133 OJ L 29, 2003, p. 55. 134 ECJ, Case C-176/03, supra C-176/03, supra,, at paragraph 47 in fine, fine, referring also to case 203/80, Casati [1980] ECR 2595, paragraph 27, and case C-226/97 Lemmens Lemmens [1998] ECR I-13711, paragraph 19, both available at . 130


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penalties by the competence national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective” 135 .

At the end of the day, the best way to ensure that the presumed allocation of jurisdiction is the correct one is to actually ask the relevant organisation in each particular case. Indeed, that is the solution adopted by the Law of the Sea Convention, where the failure of the organisation or its member States to provide such information within a reasonable period of time or to offer contradictory information result in the joint and several liability of all concerned 136 , both the institution and the States 137 . The question of Community competence becomes even more important in the Law of the Sea context as it reflects on the jurisdiction of the European coastal States to take all measures necessary for the protection of the marine environment in areas under their jurisdiction 138 . Indeed, the substantive part Ibid ., at paragraph 48 (my emphasis). For a first reaction on the case see the comments by G. Dellis,                 [=Community competence for criminal enforcement and the constitutional role of the Court of Justice of the European Communities], To Syntagma 2006, pp. 542-552; also available in [in Greek]. For a more general discussion see F. Comte, Criminal environmental law and Community competence, EEnvLR 2003, pp. 147-156; M. Faure, European environmental criminal law: Do we really need it?, EEnvLR 2004, pp. 18-29. 136 Annex IX, article 6 paragraph 2 LOSC. 137 See Christian Tomuschat, The international responsibility of the European Union, in Enzo Cannizzaro (ed.), The European Union as an actor in international relations (Kluwer, The Hague 2002) pp. 177-191; P.J. Kuiper & Esa Paasivirta, Further exploring international responsibility. The European Community and the ILC’s project on responsibility of international organisations, 1 International Organisations LR 2004, pp. 111-138. See also the ILC Draft Articles on the Responsibility of International Organisations, as adopted so far; ILC Re port on the work of its 58th session (2006), UN Doc. A/61/10 (2006), chapter VI, paragraphs 80-91; and the four reports submitted to date by the Rapporteur Giorgio Gaja; both available at . 138 For an overview see André Nollkaemper & Ellen Hey, Implementation of the Law of the Sea Convention at the regional level: European Community competence in regulating safety and environmental aspects of shipping, 10 TIJMCL 1995, pp. 241-288; André Nollkaemper, The external competence of the Community with regard to the law of the marine environmental protection: The frail legal support for grand ambitions, in Henrik Ringbom (ed.), Competing norms in the law of marine environmental protection – Focus on ship safety and pollution prevention (Kluwer Law International, The Hague 1997) pp. 165-186; Phoebe Okowa, Legal consequences of EC participation in international environmental agreements, in Malcolm D. Evans (ed.), Aspects of statehood and institutionalism in contemporary Europe. EC/International Law Forum II (Dartmouth, Aldershot 1997) pp. 301-329; Ton IJlstra, Development of resource jurisdiction in the EC’s regional seas: National EEZ policies of EC 135

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of the European legislation on the environmental protection of the coastal waters has been the subject of further litigation. Under EC Directive 2005/35/EC of the European Parliament and Council of 7 September 2005 concerning ship-source pollution and the introduction of penalties for infringements 139 as further complemented by EU Council Framework Decision 2005/667/JHA of 12 July 2005 on the strengthening of the criminal law framework for the enforcement of the law against shipsource pollution 140 , the European Union moves to cover discharges of polluting substances in the seas, along the lines and in application of the MARPOL 73/78 Convention. The legal basis of the Framework Decision is again challenged by the Commission before the European Court of Justice 141 , in the wake of the decision in the case C-176/03 on the protection of the environment through criminal law 142 . An additional challenge is also brought against the Directive, this time through a request for a preliminary ruling 143 , regarding the compatibility of the measures provided therein with the Law of the Sea Convention and MARPOL standards. The Directive prohibits any discharge of polluting substances taking place in the internal waters, including the ports of the member States, the territorial sea, straits used for international navigation, the exclusive economic zone and the high seas 144 “if committed with intent, recklessly or by serious negligence” 145 . In do doing, the Directive moves beyond the rather complicated exceptions to MARPOL provisions 146 . In an unprecedented request, the Court has been asked to decide on the ensuing possible member States in the Northeast Atlantic, the Mediterranean Sea and the Baltic Sea, 23 ODIL 1992, pp. 165-192. 139 OJ L 255, 30 September 2005, pp. 11-21. 140 Ibid ., pp. 164-167. 141 ECJ, Case C-440/05, Commission of the European Communities supported by the Euro pean Parliament v. Council of the European Union supported by the Portuguese Republic, the Kingdom of Belgium, the Republic of Finland, the French Republic, the Slovak Republic, the Republic of Malta; the Republic of Hungary; the Kingdom of Denmark, the Kingdom of Sweden, Ireland, the Czech Republic, the Hellenic Republic, the Republic of Estonia, the United Kingdom of Great Britain and Northern Ireland, the Republic of Latvia, the Republic of Lithuania, the Kingdom of The Netherlands, the Republic of Austria and the Polish Republic; for developments in this case between the organisation against its member States see . 142 See supra note 132. 143 ECJ, Case C-308/06, supra note 78 and text thereto. 144 Article 3 of the Directive. 145 Article 4 of the Directive. 146 See on the matter Iliana Christodoulou-Varotsi, Recent developments in the EC legal framework on ship-source pollution: The ambivalence of the EC’s penal approach, 33 Trans portation LJ 2006, pp. 371-386.


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incompatibility between the two sets of rules. This may not be a simple question of compatibility – indeed, one has to keep in mind that the ECJ was already given jurisdiction for a pre-emptive compatibility control under article 300 (6) of the EC Treaty 147 . It may be complicated by the existence under Community law of the (constitutional) obligation to achieve a higher level of protection in environmental matters 148 : in theory, therefore, the acts in question may be considered necessary for the fulfilment of the Community duty of environmental protection, even if they exceed the framework prescribed by the Law of the Sea Convention, to which the Community is also a party! Whatever the outcome, the decision will greatly help to clarify the legal parameters of Community action in the exercise of its jurisdiction under the law of the sea in general – and may still create another conundrum. Nevertheless, the internal disarray aside, the common appearance of both the international organisation and its member States in the international arena results in further complications. International organisations – and certainly regional integration organisations, of which the European Union is the prime example 149 – expect their member States to conduct themselves in their external relations in a manner ensuring ‘close cooperation’ between them. This principle, clearly based on the solidarity duty under article 10 of the Treaty establishing the European Community 150 , has evolved from the practice of mixed agreements 151 and has become a constitutional principle in EC external relations law 152 . As a result the member States are constrained in the

For an overview see Koutrakos, supra note 126, at pp. 186-192. Article 174 paragraph 2 EC reads: “Community policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Community. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay…”. 149 For an overview see Tullio Scovazzi (ed.), The protection of the environment in a context of regional economic integration: The case of the European Community, the MERCOSUR and the NAFTA. Environment in the context of regional integration (Giuffrè, Milano 2001). 150 Article 10 EC reads: “Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty”. 151 Thus, for instance, ECJ, Opinion 2/91 (re ILO Convention no. 170) [1993] ECR I-1061, paragraphs 36-38; ECJ, Opinion 1/94 (re WTO Agreements) [1994] ECR I-5267, paragraph 108; ECJ, case C-266/03, Commission v. Luxembourg [2005] ECR I-04805, paragraph 58. 152 Thus Cremona, supra note 127, at p. 6; Panos Koutrakos, The elusive quest for uniformity in EC external relations, 4 Cambridge YB European Legal Studies 2001, pp. 243-271. 147 148

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exercise of their jurisdiction in the context of another contractual arrangement 153 . In the first of such constraints, the European Community occasionally em ploys ‘disconnection clauses’ in international treaties, whereby it indicates to the other contracting parties that as between the member States Community rules will continue to apply to the exclusion of that particular treaty rules. The European Court of Justice seems to consider this practice “a mechanism seeking to prevent any conflict in the enforcement of the agreement” 154 but there is no doubt that it creates two parallel treaty systems operating within the same treaty arrangement 155 . Another, perhaps more important, repercussion relates to the exclusivity of the available dispute resolution mechanisms. Under the Community legal order there is no doubt that disputes between the member States concerning “the interpretation or application of [the] Treaty” 156 must be resolved by the European Court of Justice. What happens, however, if the member States are involved in disputes concerning the application of provisions found in several treaties with the same content? The issue has acquired particular importance in the context of a dispute arising between the United Kingdom and Ireland as to the operation of the MOX plant at Sellafield. Ireland chose to fight its case in all the fora avail Note, however, that this interdependence works both ways: In case C-239/03, Commis sion of the European Communities v. the French Republic, judgment of 7 October 2004, the Court of Justice of the European Communities held that “by failing to take all appropriate measures to prevent, abate and combat heavy and prolonged pollution of the Étang de Berre and by failing to take due account of the requirements of Annex III to the Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, signed at Athens on 17 May 1980 and approved on behalf of the European Economic Community by Council Decision 83/101/EEC of 28 February 1983, by amending the authorisation for the discharge of substances covered by Annex II to the Protocol following the conclusion of the latter, the French Republic has failed to fulfil its obligations under articles 4(1) and 8 of the Convention for the protection of the Mediterranean Sea against pollution, signed at Barcelona on 16 February 1976 and approved on behalf of the European Economic Community by Council Decision 77/585/EEC of 25 July 1977, under article 6(1) and (3) of the Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, […] and under article 300(7) EC”; available at . For a brief comment see Michel Petite, Current le gal issues in the external relations of the European Union, EUI Working Paper, Law no. 2006/38, at pp. 9-10. 154 ECJ, Opinion 1/2003 (Competence of the Community to conclude the new Lugano Convention on jurisdiction and enforcement of judgments in civil and commercial matters), 7 February 2006, paragraph 130; available at 155 See also the critique by Constantin P. Économidès & Alexandros G. Kolliopoulos, La clause de déconnexion en faveur de droit communautaire: Une pratique critiquable, RGDIP 2006, pp. 273-302. 156 Article 292 EC. 153


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able to her under the conventions covering the circumstances of the case. Thus it first turned to an arbitral tribunal constituted under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR) 157 . Moreover, as the question involved “international movements of radioactive materials and the protection of the marine environment of the Irish Sea” under the Law of the Sea Convention, it clearly fell under the compulsory system of dispute resolution created by the Convention. On 25 October 2001 Ireland referred the case to the arbitral tribunal provided for in Annex VII, under article 287 of the Convention 158 . In addition, on 9 Novem ber 2001, pursuant to article 290(5) of the Law of the Sea Convention, it requested the International Tribunal for the Law of the Sea for provisional measures 159 . However, the EC Commission claimed that the dispute thus described fell within the areas of shared jurisdiction between the Community and the member States and thus started proceedings against Ireland under article 226 of the EC Treaty for failure to fulfil its obligations. Both the Advocate General Luís Miguel Poiares Pessoa Maduro and the Court concurred. They considered that “[t]he obligation devolving on Member States, set out in Article 292 EC, to have recourse to the Community judicial system and to respect the Court’s exclusive jurisdiction, which is a fundamental feature of that system, must be understood as a specific expression of Member States’ more general duty of loyalty resulting from Article 10 EC.” 160

Final award of 2 July 2003 in the dispute concerning access to information under Article 9 of the OSPAR Convention; available at . See also T. McDorman, Access to information under Article 9 OSPAR Convention (Ireland v. UK), Final award, 98 AJIL 2004, pp. 330-339. 158 The issue remains pending before the Arbitral Tribunal; for latest developments see . For a general discussion of the case see R.R. Churchill & Joanne Scott, The MOX Plant litigation: The first half-life, 53 ICLQ 2004, pp. 643-676; Volker Röben, The Order of the UNCLOS Annex VII Arbitral Tribunal to suspend proceedings in the case of the MOX Plant at Sellafield: How much international solidarity?, 73 Nordic JIL 2004, pp. 223245; Yuval Shavy, The first MOX Plant award: The need to harmonise competing environmental regimes and dispute settlement procedures, 17 Leiden JIL 2004, pp. 815-827. 159 ITLOS, The MOX Plant case, Ireland v. UK, provisional measures, Order of 3 Decem ber 2001; available at . See also Barbara Kwiatkowska, The Ireland v. United Kingdom (Mox Plant) case: Applying the doctrine of treaty parallelism, 18 TIJMCL 2003, pp. 1-58; Malcolm J.C. Forster, The MOX Plant case – Provisional measures in the International Tribunal for the Law of the Sea, 16 Leiden JIL 2003, pp. 610-619. 160 ECJ, case C-459/03, Commission v. Ireland , 30 May 2006, at paragraph 169; see also the Opinion of the Advocate-General M. Poiares Maduro delivered on 18 January 2006, paragraphs 54-55; both available at . 157

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This principle of loyalty, however, also includes an additional obligation “of prior information and consultation”161 , particular in cases where the dispute in question “relates essentially to undertakings resulting from a mixed agreement which relates to an area, namely the protection and preservation of the marine environment, in which the respective areas of competence of the Community and the Member States are liable to be closely interrelated, as is, moreover, evidenced by the Declaration of Community competence and the appendix thereto.” 162 .

The findings of the Court were indeed already evidenced in practice. In a case almost coincidental in timing, Belgium and The Netherlands were able to bring the Iron Rijn case 163 , an issue pertaining to both protection of the environment and transport, both Community competences, before an international arbitral tribunal without incurring the Commission’s ire – and they accomplished this feat by simply involving the Commission authorities in the negotiations and showing to their satisfaction that the bilateral issue would have no impact upon Community policies. The complexity and the variety of the jurisdictional issues generated by the participation of international organisations, and especially the European Union, in sea affairs can only be rivalled by the intricacies of the interplay between the member States and the organisation in that same field 164 . Important decisions, which already required consensus by the manifold manifestations of State jurisdiction, are further complicated by the additional obligation to coordinate and eventually reconcile the competing interests of a large number of important States, operating under their different guises, in a jurisdictional conundrum of Herculean proportions. The implications are to be visited in the pages to come – with no results guaranteed.

Ibid ., at paragraph 181. Ibid ., at paragraph 176. 163 Permanent Court of Arbitration, Arbitration regarding the Iron Rhine (‘IJzeren Rijn’) railway, Belgium v. The Netherlands, award of 24 May 2005, paragraphs 220-223; available at . See in general Virginie Barral, La sentence du Rhin de fer, une nouvelle étape dans la prise en compte du droit de l’environnement par la justice internationale, RGDIP 2006, pp. 647-668; Nikolaos Lavranos, The MOX Plant and IJzeren Rijn disputes: Which court is the supreme arbiter?, 19 Leiden JIL 2006, pp. 223-246. 164 For the briefest of overview of the issues involved see Annie Cudennec & Gaëlle GueguenHallouët (éds.), Le juge communautaire et la mer (Bruylant, Bruxelles 2003); Tullio Treves (ed.), The Law of the Sea. The European Union and its member States (Martinus Nijhoff, The Hague 1997); Ellen Hey, The European Community, the Law of the Sea and accountability. An ever changing and challenging relationship, in Malcolm D. Evans (ed.), Aspects of statehood and institutionalism in contemporary Europe (Aldershot, 1997) pp. 277-300. 161 162

PART II

CHALLENGES TO THE JURISDICTIONAL ZONES The central question remains: Is this multiplicity of jurisdictional zones and areas final? To my mind, it depends upon the person, who is called to answer the question. Those who consider the Law of the Sea Convention as the final pronouncement of the world community on matters maritime would naturally tend to believe that the situation has been finalised and no further changes are possible. On the other hand, those who recognise that, in spite of its seminal importance and even because of it, the Law of the Sea Convention will need to remain a living, breathing instrument, fully adjustable and adjusted to emerging needs and conditions, would perhaps be ready to reconcile emerging new trends with the solid legal basis of the Convention. Indeed, it is quite probable that the future is not drawn in terms of black and white but rather in shades of grey. States have shown a very commendable tendency to rein in their wish to expand seawards – at least in so many words. Claims of creeping jurisdiction are not set in regulatory language but are rather based on construing new ways to read the provisions establishing the existing maritime zones. Whether this restraint is due to a temperamental horror jurisdictionis – in the words of Tullio Scovazzi 1 – or rather it constitutes a sensible approach to the progressive development of the law of the sea is the main question this book seeks to answer. In order to do so, I will attempt in the pages to come to review some of the jurisdictional manifestations in the Law of the Sea Convention, most notably those where the contradictory principles of State jurisdiction and the freedom of the high seas are best embodied, with a view to decide on the shape of things to come. In the following Part II, I intend to discuss the challenges presented to the existing jurisdictional zones – variations to the rule. In Chapter 3 the focus will be on the jurisdiction of the coastal State over the Exclusive Economic Zone. Strictly defined in terms of length and content in the LOS Convention, the notion of the EEZ has nevertheless shown major diversification in prac Tullio Scovazzi, A contradictory and counterproductive regime, in Roberta Garabello & Tullio Scovazzi (eds.), The protection of the underwater cultural heritage before and after the 2001 UNESCO Convention (Martinus Nijhoff, Leiden/Boston 2003) pp. 3-17, at p. 6. 1

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tice, generating maritime zones of variable length and divergent content, e.g. fisheries zones. The major challenge today comes from the creation of ‘ecological zones’, where the coastal State shifts the emphasis from economic considerations to the protection of the environment; and the tools available include the prohibition of passage through such a zone, thus encroaching further upon the freedom of the seas. Do the provisions on the EEZ and the ensuing allocation of powers suffice as legal basis for the creation of such zones? In other words, is it a progressive development of existing regulations or a deviation from the rule? In Chapter 4 the same question will be posed in regard to the jurisdiction of the flag State, mainly in fisheries protection. More and more States participate in fisheries protection schemes, which involve an exchange of enforcement powers over their fishing boats but also an exercise of jurisdiction over areas of the high seas. How could these pacta tertii develop into objective regimes of fisheries protection in the high seas? Is there sufficient legal basis for such a reading of the Convention or (again) we are moving away from both the letter and the spirit of the rules? In all cases, it is important to discern between attempts to rewrite the contractual terms or even construe them in an innovative manner from the straight forward breach of such terms. In the words of Dame Rosalyn Higgins in her centennial lecture in the American Society of International Law (2006), there is a red thin line between constructive analysis and moving beyond the scope of a regulatory provision.

CHAPTER 3

JURISDICTION IN THE EXCLUSIVE ECONOMIC ZONE The exclusive economic zone was one of the two novelties brought by the Law of the Sea Convention to the traditional law of the sea, the other being the deep seabed Area 1 . The term was first encountered in the workings of the Organisation of African Unity 2 , later to be codified in a series of Draft Articles on Exclusive Economic Zone 3 , as the embodiment of a claim to permanent sovereignty over “the renewable and non-renewable natural resources” 4 , albeit without undue interference with other legitimate uses of the sea, namely freedom of navigation, overflight and laying of cables and pipelines 5 . It was, nevertheless, a concept developed from the ever increasing Latin American pronouncements on wider zones of maritime jurisdiction, comprising the diverse guises of the patrimonial sea 6 as codified in the 1972 Declaration of Santo Domingo 7 . This newly established concept, appearing in a Part XI LOSC. 2 See Organisation of African Unity, Council of Ministers, Declaration on the Issues of the Law of the Sea, May 1973. For a general overview of such discussions see David Attard, The exclusive economic zone in international law (Oxford 1987) at pp. 20-26; T.O. Elias, New horizons in the Law of the Sea (1979) at pp. 25-26. 3 Draft Articles on Exclusive Economic Zone, proposed by Algeria, Cameroon, Ghana, Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal, Sierra Leone, Somalia, Sudan, Tunisia and United Republic of Tanzania to the UN General Assembly Committee on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction, Sub-Committee III, UN Doc. A/AC.138/SC.II/L.40, 16 July 1973, 12 ILM 1973, pp. 12461249. For the whole story see Tayo O. Akintoba, African States and contemporary international law. A case study of the 1982 Law of the Sea Convention and the exclusive economic zone (Martinus Nijhoff, The Hague 1996). 4 Draft Articles, supra, article II. 5 Ibid ., article IV. 6 Jorge Castañeda, The concept of patrimonial sea in international law, 12 Indian JIL 1972, pp. 535-542; L.D.M. Nelson, The patrimonial sea, 22 ICLQ 1973, pp. 668-686; Andrés Aguilar, The patrimonial sea or economic zone concept, 11 San Diego LR 1974, pp. 579-602; Louis de Gastines, La mer patrimoniale, 79 RGDIP 1975, pp. 447-457. 7 11 ILM 1972, pp. 892-893; Norma G. Sabia de Barberis, Le développement de ‘zone économique’ en Amérique latine, 7 Thesaurus Acroasium 1977, pp. 529-534; F.V. García Amador, The origins of the concept of an Exclusive Economic Zone: Latin American practice and legislation in Francisco Orrego Vicuña (ed.), The Exclusive Economic Zone: A Latin American perspective (1984) pp. 7-25; Francisco Orrego Vicuña, The exclusive economic zone. Re1

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barely concluded conventional text after a nine-year long and tortuous negotiation 8 , acquired immediately customary law status: by 24 February 1982, even before the Law of the Sea Convention was signed, the International Court of Justice recognised, in a brief incidental comment, the new zone as “part of modern international law” 9 . However, the wild success of the new zone of jurisdiction did not necessarily suggest that the world community was equally clear as to its legal nature, including its legal basis, or the diverse manifestations of its operation. Agreed upon as a compromise between the creeping jurisdictional aspirations of the coastal State and the high seas purists of the flag States, the exclusive economic zone necessitated two extensive articles to set out the bare minimum of jurisdiction apportioned to the respective users of the seas. The tension that gave birth to the new zone has not abated since; indeed, its latest manifestations are the most organised attempt so far to reverse the balance achieved at the Third Conference on the Law of the Sea. 1. THE BALANCE OF POWER The tug-of-war between the powers of the coastal State and the ‘other’ third States in the EEZ is immediately obvious in Part V of the Law of the Sea Convention, where the rights, jurisdiction and duties of the coastal State are set out in article 56; the rights and duties of ‘other’ States are indicated in article 58 LOSC; and there is even a third provision, in article 59 LOSC, dealing with residual rights, “in cases where [the] Convention does not attribute rights or jurisdiction to the coastal State or to other States within the exclusive economic zone”.

Somewhere in the balance among the enumeration of exclusive rights and the inherent restrictions posed upon instances of concurrent jurisdiction lies the true nature of the EEZ and consequently the authoritative description of

gime and legal nature under international law (Cambridge 1989) at pp. 11-12; Hugo Caminos, Harmonisation of pre-existing 200-mile claims in the Latin American region with the United Nations Convention on the Law of the Sea and its exclusive economic zone, 30 U Miami IALR 1998, pp. 9-30. 8 See, among others, B. Buzan, Negotiating by consensus: Developments in technique at the UN Conference on the Law of the Sea, 75 AJIL 1981, pp. 324-348. 9 Continental Shelf Tunisia/Libyan Arab Jamahiriya, ICJ Reports 1982, paragraph 100, available at . See also Barbara Kwiatkowska, The 200-mile exclusive economic zone in the new law of the sea (Martinus Nijhoff, Dordrecht 1989) pp. 27-37.

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the functions attributed to the right-holder, be it the coastal State, the other State or a third category altogether. Under article 56 of the LOS Convention, the coastal State has acquired two types of powers. First, it is granted ‘sovereign rights’ to carry out exploration and exploitation with regard to, on the one hand, “the natural resources, whether living or non-living of the waters superjacent to the seabed and of the seabed and its subsoil” 10 ;

and, on the other hand, other economic activities, such as the production of energy from the water, currents and winds 11 . The distinction between the two must be attributed to historical accident, as the antecedents of the EEZ were almost totally concentrated on the administration of natural resources 12 ; other activities seem to have been added as an afterthought in an effort to instil in the final text the appearance of a comprehensive approach. The additional obligation for the coastal State to engage in conservation and managing activities regarding natural resources confirms that the emphasis remained on securing what was known and appreciable at the time, without relinquishing rights to any other, emerging or even totally novel, economic activity. Conservation and management as a holistic comprehensive parameter to economic exploitation would have to wait almost twenty years for the 1992 Rio Declaration on Environment and Development 13 and the ensuing next generation of environmental instruments, such as the 1992 Framework Convention on Climate Change 14 , the 1992 Convention on Biological Diversity 15 or the 1997 Convention on the non-navigational uses of international watercourses 16 . Article 56 paragraph 1(a) LOSC. Ibid . For an interesting idea see Martin Tsamenyi & Max Herriman, Ocean energy and the law of the sea: The need of a protocol, 29 ODIL 1998, pp. 3-19. 12 See, instead of many others, Ann L. Hollick, The origins of the 200-mile offshore zones, 71 AJIL 1977, pp. 494-500. 13 31 ILM 1992, pp. 874-880. For a comment on its importance see Patricia Birnie & Alan Boyle, International law and the environment (2nd ed., Oxford 2002) at pp. 82-84; Philippe Sands, Principles of International Environmental Law (Cambridge 2003) at pp. 52-63. 14 31 ILM 1992, pp. 849-873; Birnie & Boyle, supra, pp. 523-533; Alexandre Kiss & JeanPierre Beurier, Droit international de l’environnement (3rd ed., Pedone, Paris 2004) pp. 250270. 15 31 ILM 1992, pp. 818-848; Birnie & Boyle, supra, pp. 568-590. See in general Michael Bowman & Catherine Redgwell (eds.), International law and the conservation of biological diversity (Kluwer Law International, The Hague 1996). 16 36 ILM 1997, pp. 700-720; Stephen C. McCaffrey & Mpazi Sinjela, The 1997 UN Convention on International Watercourses, 92 AJIL 1998, pp. 97-107; Stephen C. McCaffrey, The law of international watercourses. Non navigational uses (Oxford 2001), especially at pp. 297-413. 10 11

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Second, the coastal State was granted ‘jurisdiction’ over specific activities, namely the establishment and use of artificial islands, installations and structures; marine scientific research; and the protection and preservation of the marine environment. It is clear to my mind that the vastness of powers thus accrued to the coastal State was not fully understood at the time: the establishment and use of offshore installations on the continental shelf was conceived as a privilege of the coastal State under the 1958 Geneva Convention on the Continental Shelf 17 ; marine scientific research activities had little practical impact to most States18 ; whereas the world community at large considered the notion of protection and preservation of the marine environment merely related to the oil pollution instruments already adopted in the IMO context 19 . It was, nevertheless, clearly understood that the notion of ‘sovereign rights’ denotes something less than full sovereignty – although what exactly would that be remains uncertain 20 . Indeed, such sovereign rights could only Article 5 paragraphs 2-7 of the Geneva Convention on the Continental Shelf; 499 UNTS 311. See, in general, Nikos Papadakis, The international legal regime of artificial islands (Leyden 1977); Fritz Münch, Les îles artificielles, 38 ZaöRV 1978, pp. 933-958; Maria Gavouneli, Pollution from offshore installations (Graham & Trotman/Martinus Nijhoff, 1995). 18 For an earlier understanding see Riccardo Pisillo Mazzeschi, La ricerca scientifica ed il nuovo diritto internazionale del mare, in Tullio Treves (ed.), La ricerca scientifica nell’evoluzione del diritto di mare (Giuffrè, Milano 1978) pp. 9-52; L Caflisch & J. Piccard, The legal regime of marine scientific research and the Third United Nations Conference on the Law of the Sea, 38 ZaöRV 1978, pp. 848-901; A.H.A. Soons, Marine scientific research and the law of the sea (Martinus Nijhoff, The Hague 1982); Annick de Marffy, Marine scientific research, in R.-J. Dupuy & Daniel Vignes (eds.), A handbook on the New Law of the Sea (vol. 2, Dordrecht 1999) pp. 1127-1146. See also M. Stolker, Marine scientific research and customary law. Legal regime within the exclusive economic zone, 23 Thesaurus Acroasium 1998, pp. 435-445; Florian H.T. Wegelein, Marine scientific research. The operation and status of research ves sels and other platforms in international law (Martinus Nijhoff, Leiden 2005); Yoshifumi Tanaka, Obligation to co-operate in marine scientific research and the conservation of marine living resources, 65 ZaöRV 2005, pp. 937-965. 19 See, among many others, V.I. Andrianov, The role of the International Maritime Organisation in implementing the 1982 UNCLOS, 14 Marine Policy 1990, pp. 120-124; Edgar Gold, International shipping and the new law of the sea: new directions for a traditional use?, 20 ODIL 1989, pp. 433-444; as well as the discussion on the IMO interface with the Law of the Sea Convention in Myron H. Nordquist (ed.), Current maritime issues and the International Maritime Organisation (Martinus Nijhoff, The Hague 1999) with contributions by Rüdiger Wolfrum, pp. 223-236; Shabtai Rosenne, pp. 251-268; and Agustín Blanco-Bazán, pp. 269-287. 20 Joe Verhoeven, Droit international public (Larcier, Bruxelles 2000) at p. 550 : “On ne peut qu’hésiter à l’admettre, tant paraît artificielle la distinction prétendument établie entre les droits « souverains » et une « souveraineté »”. On the parallel notion of sovereign rights over the continental shelf see also Aegean Sea continental shelf case, Greece v. Turkey, ICJ Re ports 1978, paragraph 81; Jean-François Pulvenis, Le plateau continental. Définition et régime des ressources, in René-Jean Dupuy & Daniel Vignes (éds.), Traité du nouveau droit de la mer (Economica/Bruylant, Paris/Bruxelles 1985) pp. 275-336, at p. 323. 17


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be exercised once an EEZ was proclaimed; contrary to the territorial sea and the continental shelf, which constitute attributes of the State ab initio, the exclusive economic zone remains a discretionary zone, the existence of which must be proclaimed to the world. ‘Jurisdiction’ is this context must signify an even more restricted exercise of powers: it has been argued that the existence of sovereign rights creates a presumption of sovereignty for the coastal State which would supersede a jurisdictional claim by another State whereas claims of jurisdiction operate on the same level of equality and must be resolved through the standard dispute settlement procedures 21 . The enumeration of rights and duties for other, third States in article 58 LOSC is less specific and certainly more comprehensive. The non-coastal State retains all the freedoms of the high seas, as set out in article 87 of the Convention, with the exception of the freedom of fishing, which has become an exclusive sovereign right of the coastal State. Is there an assimilation to the high seas regime lurking behind this deceptively straightforward language? The maritime States present during the negotiations in the Third UN Conference on the Law of the Sea have certainly indicated so – indeed, it would fall perfectly within their understanding of the EEZ as an area of the high seas, over which the coastal State had acquired certain strictly-defined competences22 . A closer reading, however, reveals three important qualifications: the freedoms exercisable in the exclusive economic zone are very specifically those “of navigation and oversight and of the laying of submarine cables and pipelines and other internationally lawful uses of the sea, related to these freedoms, such as those associated with the operation of ships, aircraft and submarine ca bles and pipelines, ...”23

and they apply therein only “in so far as they are not incompatible with this Part” 24 Thus Anastasia Strati,     [=The Exclusive Economic Zone], in Haritini Dipla & Christos Rozakis (eds.),           [=The Law of the Sea and its application in Greece] (Aegean Institute on the Law of the Sea and Maritime Law, Athens 2004) pp. 145-207, at p. 154. 22 Bernard H. Oxman, An analysis of the Exclusive Economic Zone as formulated in the Informal Composite Negotiating Text, in Thomas A. Clingan, Jr. (ed.), Law of the Sea: State practice in zones of special jurisdiction (1982) pp. 57-78; Mario Scerni, La zone économique exclusive : son importance, sa nature juridique et les problèmes principaux relatifs, 7 Thesaurus Acroasium 1977, pp. 157-184. See for the general discussion Attard, supra note 2, pp. 70-125; Orrego Vicuña, supra note 7, at pp. 30-33. 23 Article 58 paragraph 1 LOSC. For an attempt to codify the proper exercise of these rights in the EEZ see Mark J. Valencia & Kazumine Akimoto, Guidelines for navigation and overflight in the exclusive economic zone, 30 Marine Policy 2006, pp. 704-711. 24 Article 58 paragraph 2 LOSC. 21

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of the Law of the Sea Convention and with “due regard to the rights and duties of the coastal State” 25 .

No wholesale import of the high seas regime is anywhere to be found; a conclusion corroborated by the wording of article 78 of the LOS Convention on the legal status of waters superjacent to the continental shelf, which repeats verbatim the no-effect clause of article 3 of the 1958 Continental Shelf Convention: “The rights of the coastal State over the continental shelf do not affect the legal status of the superjacent waters or of the air space above those waters”,

omitting the crucial phrase: ‘as high seas’ 26 . The general agreement that the exclusive economic zone constitutes a ‘tertium genus’ 27 , a sui generis area 28 , neither a part of the high seas nor of the territorial waters (in spite of its origins29 ), resembles too much the proverbial cough of the cantor before a difficult musical passage for relief. Indeed, the carefully orchestrated efforts of the drafters to allow no possibility for developing compétences d’attribution, in the words of René-Jean Dupuy 30 , has left even the International Tribunal on the Law of the Sea at a loss to identify the exact powers of the States in the EEZ. In its very first cases on the M/V Sai-

Article 58 paragraph 3 LOSC. For a rather predictable definition of the term see George K. Walker, Defining terms in the 1982 Law of the Sea Convention IV: The last round of definitions proposed by the International Law Association (American Branch) Law of the Sea Committee, 36 California Western ILJ 2005, pp. 133-183 at p. 175. 26 Thus also Attard, supra note 2, at p. 63. 27 Thus the International Court of Justice in the Fisheries Jurisdiction cases, UK v. Iceland, ICJ Reports 1974, paragraph 54; Federal Republic of Germany v. Iceland, ICJ Reports 1974, paragraph 46, both available at . 28 Thus Andrés Aguilar, in his capacity as Chairman of UNCLOS III Second Committee, in his introductory note to the Revised Single Negotiating Text, 5 Official Records 1974, at p. 153; Jorge Castañeda, Negotiations on the Exclusive Economic Zone at the Third United Nations Conference on the Law of the Sea, Essays in honour of Judge Lachs (Martinus Nijhoff, 1984) pp. 605-623, at p. 615-616. 29 F.V. García Amador, The Latin American contribution to the development of the law of the sea, 68 AJIL 1974, pp. 33-50. See also the arbitral award in the Guinea/Guinea Bissau maritime delimitation case, 77 ILR 1985, paragraph 124; Nganda Kingue, La sentence du 14 février 1985 du Tribunal d’arbitrage dans l’affaire de la délimitation de la frontière maritime entre la Guinée et la Guinée-Bissau, RGDIP 1987, pp. 45-82; Marie-Christine Aquarone, The 1985 Guinea/Guinea Bissau maritime boundary case and its implications, 26 ODIL 1995, pp. 413-431; Georges Labrecque, Les frontières maritimes internationales. Géopolitique de la délimitation en mer (2e éd., L’Harmattan, Paris 2004) at pp. 333-338. 30 René-Jean Dupuy, L’océan partagé : Analyse d’une négociation – Troisième Conférence des Nations Unies pour le droit de la mer (Pedone, Paris 1979) at p. 76. 25


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ga 31 , which encompassed the whole spectrum of its powers and presumably set the tone for its future actions, the Tribunal chose not to address the question whether bunkering in the EEZ was an activity associated with fishing activities, in which case it falls under the jurisdiction of the coastal State as the latter has sovereign rights over the exploitation of living natural resources therein; or an activity associated with the operation of ships in the meaning of article 58 of the Convention, in which case it constitutes part of the freedom of navigation guaranteed to the other States; or even a residual right under article 59 of the Convention, not falling under the jurisdiction of either State, in which case any potential conflict would have to “be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the world community as a whole.” 32 .

It is perhaps appropriate that the Tribunal, deciding on an application for prompt release of vessel and crew under article 292 of the LOS Convention 33 , restricted itself to a finding on the admissibility as several of its judges came up with different conclusions. The then vice-president Wolfrum and Judge Yamamoto forcefully objected in their dissenting opinion to what they perceived as the Tribunal’s rather obscurely expressed preference for qualifying bunkering as an ancillary service to fishing and thus

ITLOS, The M/V ‘Saiga’ case, Saint Vincent & the Grenadines v. Guinea, 1997 (prompt release); The M/V Saiga (no. 2) case, Saint Vincent & the Grenadines v. Guinea, 1998 (provisional measures), 1999 (merits); all available at . 32 Article 59 LOSC. For a general discussion on residual rights see Syméon Karagiannis, L’article 59 de la Convention des Nations Unies sur le droit de la mer (ou les mystères de la nature juridique de la zone économique exclusive), 27 RBDI 2004, pp. 325-418; A. Righeti, Il contenuto dell’articolo 59 della Convenzione sur diritto del mare del 1982, in Umberto Leanda (ed.), Le régime juridique international de la mer Méditerranée (Guiffrè, Milano 1987) pp. 227-230. 33 For an understanding of this unique (essentially human rights) procedure see Joseph Akl, La procédure de mainlevée du navire ou prompte libération de son équipage devant le Tribunal international du droit de la mer, 6 ADM 2001, pp. 219-246; Imen Gallala, La notion de caution raisonnable dans la jurisprudence du Tribunal international du droit de la mer, 105 RGDIP 2001, pp. 931-968; Miguel García García-Revillo, The release of crew according to the ITLOS jurisprudence, in Giuseppe Cataldi (ed.), The Mediterranean and the Law of the Sea at the dawn of the 21st century: Actes du colloque inaugural de la Association internationale du Droit de la mer, Naples, 22-23 mars 2001 (Bruylant, Bruxelles 2002) pp. 97-112; Erik Franckx, ‘Reasonable bond’ in the practice of the International Tribunal for the Law of the Sea, 32 California Western ILJ 2002, pp. 303-342; Jean-Pierre Queneudec, À propos de la procédure de prompte mainlevée devant le Tribunal international du droit de la mer, 8 ADM 2003, pp. 79-92; Yoshifumi Tanaka, Prompt release in the UN Convention on the Law of the Sea: Some reflections on the ITLOS jurisprudence, 31 NILR 2004, pp. 237-271. 31

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“an activity which can be assimilated to the activities which a coastal State may regulate in the exercise of its sovereign rights concerning marine living resources in the exclusive economic zone.” 34 .

When the issue was further raised in the merits of the case, Judge Vukas was quite categorical in his separate opinion that “bunkering should, although a rather new activity at the time not expressly mentioned at the Conference, be considered an international ‘lawful use of the sea’ in the sense of article 58(1) of the Convention. It is related to the freedom of navigation ‘and associated with the operation of ships’” 35 .

Judge Laing seems to have based his lengthy separate opinion on that same assumption 36 whereas Judge Zhao, in his own separate opinion, disagreed and considered it part of commercial activities carried out in the EEZ, to be undertaken only upon a prior agreement with the coastal State 37 . In comparison, the decision of the ICJ in the Nicaragua case that the laying of mines in the EEZ was prejudicial to the right of access to ports, an expression of the right to communication and maritime commerce, which necessitates the unhindered exercise of the right of navigation guaranteed therein, becomes the very definition of clarity 38 . Regardless of the legal nature of the EEZ and its repercussions, there is no doubt that the jurisdiction and rights attributed to both the coastal and the ‘other’ States remain essentially functional, to be exercised according to

ITLOS, The M/V Saiga case, supra note 31, Dissenting opinion of Vice-President Wolfrum and Judge Yamamoto, paragraph 21, available at . See in general Raymond Goy, Les premières décisions du Tribunal international sur le droit de la mer, Espaces et ressources maritimes 1997, pp. 135-156; E.D. Brown, The M/V Saiga case on prompt release of detained vessels: The first judgment of the International Tribunal of the Law of the Sea, Marine Policy 1998, pp. 307-326; Vaughan Lowe, The M/V Saiga: The first case in the International Tribunal on the Law of the Sea, 48 ICLQ 1999, pp. 179-199. 35 ITLOS, The M/V Saiga (no.2) case, supra note 31, 1999, Separate opinion of Judge Vukas, paragraph 17, available at . See also Francisco Orrego Vicuña, L’affaire Saiga et l’interprétation judiciaire des droits et devoirs des États dans la ZEE, 13 Espaces et ressources maritimes 1999-2000, pp. 43-60; Louise de la Fayette, ITLOS and the saga of Saiga: Peaceful settlement of a Law of the Sea dispute, TIJMCL 2000, pp. 355-392; idem., The M/V Saiga (no.2) case (St. Vincent and the Grenadines v. Guinea), Judgment, 49 ICLQ 2000, pp. 467-476; David Anderson, The regulation of fishing and related activities in exclusive economic zones, in Erik Franckx & Philippe Gautier (eds.), The Exclusive Economic Zone and the UN Convention on the Law of the Sea, 1982-2000: A preliminary assessment of State practice (Bruylant, Brussels 2003) pp. 31-50. 36 Ibid ., Separate opinion of Judge Laing, available at . 37 Ibid ., Separate opinion of Judge Zhao, in fine, available at . 38 Military and paramilitary activities in and against Nicaragua, Nicaragua v. United States of America, Merits, ICJ Reports 1986, paragraph 214. 34


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their (economic 39 ) purpose and in view of the corresponding rights and duties of others on the same area. Although the existence of parallel and often contradictory obligations is nothing new in international law40 and, more specifically, in the law of the sea 41 , the necessity to adjudicate each case on its merits and the specific circumstances surrounding it adds more than a sprinkle of uncertainty in the process. The ultimate question remains not the type of balance required in that process but rather whether, in the pursuit of the final goal, the exercise of one of the parallel and contradictory rights may well be wholly obliterated. 2. THE OUTER LIMITS OF A BALANCING ACT The first and most important casualty in a possible capitis diminutio of rights in the exclusive economic zone would necessarily involve the freedom of navigation. The attribution of powers in the zone set out in articles 56 and 58 of the LOS Convention involves a simple scheme, whereby, on the one hand, fishing is granted to the coastal State whereas, on the other hand, the bulk of the freedoms of the high seas, including the freedom of navigation, remain guaranteed to the other States. The apparent simplicity of this system is highly deceptive: The coastal State also enjoys a wide range of other jurisdictional powers, including the obligation to protect and preserve the marine environment in the exclusive economic zone. It is not inconceivable that, under specific circumstances, the need to safeguard the marine environment, a customary obligation binding upon every State on the planet 42 , would necessitate the suspension of navigation, certainly temporarily but also permanently. There is no doubt that the general thrust of articles 56 and 58 of the LOS Convention remains attached to a balance of interests, which would involve a general obligation to be aware of and take into consideration the interests of the other party and a specific obligation to take any decision with such third party interests included in the calculation. The Convention, however,

For a comment see Lea Brillmayer & Nathalie Klein, Land and Sea: Two sovereignty regimes in search of a common denominator, NYUJILP 2001, pp. 703-768. 40 For a comprehensive overview see Emmanuel Roucounas, Engagements parallèles et contradictoires, 206 RCADI 1987-VI, pp. 9-287. 41 For the best as yet exposition of the competing parameters of the dispute settlement system see Nathalie Klein, Dispute settlement in the UN Convention on the Law of the Sea (Cam bridge 2005). 42 See, instead of many others, Birnie & Boyle, supra note 13, pp. 109-111. 39

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envisages also at least two possibilities 43 of enhanced coastal State jurisdiction where the balance between navigation and environmental protection could tip towards the direction of the coastal State, thus giving credence to Joe Verhoeven’s conclusion that “Autrement dit, la zone est plus une mer territoriale assortie d’une liberté de navigation qu’une haute mer accompagnée de droit « préférentiels » au profit de l’État côtier.” 44 .

The first such instance legitimises what constituted a major point of contention during the UNCLOS III negotiations: the 1970 Arctic Waters Pollution Prevention Act (AWPPA) 45 , which created a 100-mile maritime zone of environmental – and ultimately territorial 46 – jurisdiction. Succumbing to the

A third possibility may arise in terms of transit passage through international straits, although I think that the preference of the LOS Convention for uninterrupted passage could not have been made more explicit than in article 44 LOSC: “There shall be no suspension of transit passage”; Maria Gavouneli, Obbligazioni alternative e contrastanti nel diritto internazionale dell’ambiente, 16 RGA 2001, pp. 527-551, at pp. 544-549; Mary George, Transit passage and pollution control in straits under the 1982 Law of the Sea Convention, 33 ODIL 2002, pp. 189-202. For a more general discussion see Hugo Caminos, The international regime of straits in the 1982 UN Convention on the Law of the Sea, 205 RCADI 1987-V, pp. 13-245, at p. 123; S.N. Nandan & D.H. Anderson, Straits used for international navigation: A commentary on Part III of the UN Convention on the Law of the Sea 1982, BYBIL 1989, pp. 159-204; Tullio Treves, Droit de passage en transit et protection de l’environnement dans le détroit de Bonifacio, 7 Espaces et ressources maritimes 1993, pp. 175-184; Matteo Fornari, La nuova regolamentazione del traffico marittimo nelle Bocche di Bonifacio e il ruolo della Organizzazione Marittima Internazionale, 16 RGA 2001, pp. 319-341; Marco Gestri, Libertà di navigazione e prevenzione dell’inquinamento: il caso dello stretto di Messina, RDI 1986, pp. 280-306; Fabio Spadi, The bridge on the Strait of Messina: ‘Lowering’ the right of innocent passage?, 50 ICLQ 2001, pp. 411-419; Matteo Fornari, Conflicting interests in the Turkish straits: Is the free passage of merchant ships still applicable?, 20 TIJMCL 2005, pp. 225-246. 44 Verhoeven, supra note 20, at p. 550. Note, however, the comments by Jon M. van Dyke, The disappearing right to navigational freedom in the exclusive economic zone, 29 Marine Policy 2005, pp. 107-121. 45 Arctic Waters Pollution Prevention Act (AWPPA), RSC, ch. A-12 (1993), first enacted in 1970; 9 ILM 1970, pp. 543-552, text also available at . For the typical reaction at the time see Louis Henkin, Arctic anti-pollution: Does Canada make – or break – international law?, 65 AJIL 1971, pp. 131-136; Donat Pharand, The law of the sea of the Arctic, with special reference to Canada (Ottawa 1973); B. Johnson Theutenberg, The evolution of the law of the sea with special regard to the polar areas. A study of resources and strategy, in René-Jean Dupuy (éd.), Le règlement des différends sur les nouvelles ressources naturelles (Colloque de l’Académie de droit international, Martinus Nijhoff, The Hague 1983) pp. 337424. 46 See also the comments by Bernard H Oxman, The territorial temptation: A siren song at sea, 100 AJIL 2006, pp. 830-851, at p. 849; Donat Pharand, Canada’s Arctic waters in international law (Cambridge 1988); idem., The Arctic waters and the Northwest Passage: a final revisit, 38 ODIL 2007, pp. 3-69; Dirk Zeller, From mare liberum to mare reservarum: Can43


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pressure of unilateralism, article 234 of the LOS Convention authorises the coastal State to adopt and enforce non-discriminatory laws and regulations for the prevention and control of vessel-source pollution “in ice-covered areas within the limits of the exclusive economic zone, where particularly severe climatic conditions and the presence of ice covering such areas for most of the year create obstructions or exceptional hazards to navigation, and pollution of the marine environment could cause major harm to or irreversible disturbance of the ecological balance”.

Although the decision-maker is asked to “have due regard to navigation” 47 , there is a conspicuous absence of any further reference to the ‘competent international organisation’ or the world community at large – with the possible exception of the scientists who are asked to contribute “the best available scientific evidence” 48 . The coastal State remains the sole judge of the need for and the content of its regulatory action. The second instance could not have been more different. It relates to the creation of special areas in the exclusive economic zone under article 211 of the LOS Convention, an apparent exception to the general preference of the Convention for international solutions to universal problems, exemplified in the obligation of the coastal State to adopt national anti-pollution rules and regulations in both the territorial waters 49 and the exclusive economic zone only to the extent that such rules and regulations “conform[…] to and giv[e] effect to generally accepted international rules and standards established through the competent international organisation…” 50 .

The conditions are clearly restrictive and apply only: “Where the international rules and standards … are inadequate to meet special circumstances and coastal States have reasonable grounds for believing that a particular, clearly defined area of their respective exclusive economic zones is an area where the adoption of special mandatory measures for the prevention of pollution of vessels is required for recognised technical reasons in relation to its oceanographical and ecological conditions, as well as its utilisation or the protection of its resources and the particular character of its traffic...” 51 .

The coastal States may have ‘reasonable grounds’ but, quite clearly, they cannot act on their own: it is the organisation that ada’s opportunity for global leadership in ocean resource governance, 19 Ocean YB 2005, pp. 1-18. 47 Article 234 LOSC. 48 Ibid . 49 Article 21 LOSC. See also supra, Part 1, Chapter 2, 2. 50 Article 211 paragraph 5 LOSC. 51 Article 211 paragraph 6(a) LOSC.

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“shall determine whether the conditions in that area correspond to the requirements set out above” 52 .

The coastal State retains thus a right of initiative for what ultimately amounts to the method of exercising its functions in its exclusive economic zone but nothing more than that. Indeed, the designation of such a special area is further subject to severe time limitations: once all scientific and technical evidence is in place, the coastal State shall direct a communication, i.e. a request for action, to the Organisation 53 , namely the IMO; within 12 months the Organisation shall decide on the creation of such an area 54 ; and any regulatory action undertaken under the new regime would become applicable to foreign vessels 15 months after the initial submission of the communication 55 . In contrast, the coastal State has prescriptive jurisdiction under two distinct bases. First, once the determination is made, the coastal State “… may, for that area, adopt laws and regulations for the prevention, reduction and control of pollution from vessels implementing such international rules and standards or navigational practices as are made applicable, through the organisation, for special areas.” 56 .

It has been suggested that the ‘special areas’ regime, to which this rather complicated wording seems to refer, is in essence the special areas system available under the 1973/1978 MARPOL Convention 57 , without any further procedural requirements. That seems unlikely: the Law of the Sea Convention was never timid in referring directly to ‘international rules and regulations’ if need be, without resorting to obscure references to pre-existing instruments – indeed, it has even been suggested that the twin formulation includes also IMO non-binding instruments 58 . Moreover, on a more substantive Ibid . Article 211 paragraph 6(a) LOSC. 54 Ibid . 55 Article 211 paragraph 6(c) LOSC in fine. 56 Article 211 paragraph 6(a) LOSC in fine (emphasis added). 57 The International Convention for the Prevention of Marine Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto entered into force on 2 October 1983; text and latest information available at . 58 See, however, IMO doc. LEG 67/9 of 13 October 1992, paragraphs 125-126, as quoted by Angelo Merialdi, Legal restraints on navigation in marine specially protected areas, in Tullio Scovazzi (ed.), Marine specially protected areas (Kluwer Law International, 1999) pp. 2943 at p. 35, fn. 12; Alan Boyle, Marine pollution under the Law of the Sea Convention, 79 AJIL 1985, pp. 347-372, at pp. 355-357; W. van Reenen, Rules of reference in the new Convention on the Law of the Sea, 12 NYBIL 1981, pp. 3-44; Daniel Vignes, La valeur juridique de certaines règles, normes ou pratiques mentionnés au TNCO comme ‘généralement acceptées’, AFDI 1979, pp. 712-718; Budislav Vukas, Generally accepted international rules and standards, in A.H.A. Soons (ed.), Implementation of the Law of the Sea Convention through 52 53


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basis, the designation of special areas generates special discharge standards for oil 59 , noxious liquid substances 60 , garbage 61 and sulphur oxide emissions 62 in designated areas of the high seas, exclusive economic zones or even territorial seas whereas the LOSC special areas may be established in any ‘clearly defined area’ within an EEZ in need of protection for whatever source of pollution63 . In addition, second, the coastal State also has the competence to complement the international protection system with “additional laws and regulations” which “ may relate to discharges or navigational practices but shall not require foreign vessels to observe design, construction, manning or equipment standards other than generally accepted international rules and standards” 64 .

This national prerogative is clearly in line with the general competences of the coastal State in the exclusive economic zone to take action in matters pertaining to the protection and preservation of the marine environment65 . Indeed, the direct exclusion of CDEM standards is yet another limitation to the powers of the coastal State. Nevertheless, the determination of what coninternational institutions (Law of the Sea Institute, Honolulu 1990) pp. 405-421; Erik Jaap Molenaar, Coastal state jurisdiction over vessel-source pollution (Martinus Nijhoff, The Hague 1998) chapter 10. 59 MARPOL 73/78, Annex I, Prevention of pollution by oil , available at . Such areas include the Mediterranean Sea, the Baltic Sea and the Black Sea (designated in 1973 and into force since 1983); the Antarctic area (designated in 1990 and into force since 1992); and the North-West European waters (designated in 1997 and into force since 1999). Although the Red Sea (1973/1983), the Gulf area (1973/1983), the Gulf of Aden (1987/1989) and recently the Oman area (2004/2007) have been so designated the relevant requirements have not as yet taken effect due to the lack of technical facilities. The special area of the Southern South African waters (2006) is expected to come into force in early 2008. 60 MARPOL 73/78, Annex II, Noxious liquid substances, available at . Such areas include the Baltic Sea (1973/1987) and the Antarctic area (1992/1994) whereas the Black Sea (1973/1987) has not as yet taken effect due to the lack of technical facilities. 61 MARPOL 73/78, Annex V, Garbage, available at . Such areas include the Baltic Sea (1973/1988), the North Sea (1989/1991) and the Antarctic area below 60o South (1990/1992) whereas the systems available in the Mediterranean Sea (1973/1988), the Black Sea (1973/1988), the Red Sea (1973/1988), the Gulf area (1973/1988) and the wider Caribbean region, including the Gulf of Mexico and the Caribbean Sea (1991/1993) have not as yet taken effect due to the lack of technical facilities. 62 MARPOL 73/78, Annex VI: Prevention of air pollution by ships (SOx Emission Control Areas), available at . Such areas are already or soon to be operational in the Baltic Sea (1997/2005) and the North Sea (2005/2006). 63 Thus also Merialdi, supra note 58, at p. 34; Kwiatkowska, supra note 9, at p. 174. 64 Article 211 paragraph 6(c) LOSC. 65 See, however, the discussion on the extent of the criminal jurisdiction of the coastal State supra, Part I, Chapter 2, 4.

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stitutes an (allowed) additional rule as opposed to a (prohibited) CDEM standard is always a subject of controversy. In a typical example, the State of Washington attempted in the 1990s – not without immediate reaction 66 – to introduce environmental regulations 67 requesting vessels going through the Strait of Juan de Fuca and the Olympic Coast National Marine Sanctuary to file oil spill prevention plans with the coastal authorities, which would necessarily include reporting on the position of the ship every 15 minutes through the installation of GPS receivers onboard and a comprehensive system of personnel training involving a restriction in the hours of work and mandatory drug and alcohol testing for the crew. However, this ‘mixed regulatory system’ remains far too complicated for the users of the sea – indeed, there has not been so far a single special area created solely under the procedure stipulated in article 211 paragraph 6 of the Law of the Sea Convention. Instead, the relevant provision serves as an additional legal basis for the designation by the IMO of ‘Particularly Sensitive Sea Areas’ (PSSA), a beast unknown in this form to the Convention and, in fact, created by the Organisation without any particular treaty basis 68 as a flexible, precautionary response to the increasingly urgent need for environmental protection in certain parts of the seas, in application of both the general obligation of States to protect and preserve the marine environment under articles 192 and 194 of the LOS Convention 69 and their more specific duty, ‘acting through the competent international organisation’ to establish rules and standards to prevent pollution from vessels under article 211 paragraph 1 of the Convention. Defined in the 2005 PSSA Guidelines adopted by International Association of Independent Tanker Owners (Intertanko) v. Lowry, 497 F.Supp. 1484 (W.D. Washington 1996) aff’d in part, rev’d in part ; International Association of Independent Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Circ. 1998). For a general overview see Barry Hart Dubner, On the interplay of international law of the sea and the prevention of marine pollution – How far can a State proceed in protecting itself from conflicting norms in international law, 11 Georgetown IELR 1998, pp. 137-161. 67 Washington Administrative Code, §§317-21-100 to 321-21-540 (1995), available at . The US and Canada concluded an Agreement for a Cooperative Vessel Traffic Management System for the Juan de Fuca region on 19 December 1979, 32 UST 380, available at . 68 Thus also Louise de la Fayette, The Marine Environment Protection Committee: The conjunction of the law of the sea and international environmental law, 16 TIJMCL 2001, pp. 155-238, at p. 186. Antecedents of the concept may be traced to Resolution 9 of the 1978 International Convention on Tanker Safety and Pollution Prevention or even to a 1966 proposal by France and the then Soviet Union to designate Areas to be Avoided (ATBA) under the SOLAS Convention; for a general history see Gerard Peet, Particularly Sensitive Sea Areas: A documented history, 9 TIJMCL 1994, pp. 469-507. 69 See also UN DOALOS, Comments in connection with issues raised in document LEG 87/16/1, IMO Doc. LEG 87/17, Annex 7, p. 1, available at . 66


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the IMO, replacing the previous 1991 Guidelines after a lengthy and com prehensive negotiation70 , as “an area that needs special protection though action by IMO because of its significance for recognised ecological, socio-economic or scientific attributes, where such attributes may be vulnerable to damage by international shipping activities.” 71 ,

a PSSA triggers in effect a cluster of protective provisions under several IMO instruments. The designation 72 of a PSSA becomes thus a matter of significant interest, not only to the coastal State – although nothing prevents a PSSA to extend beyond the maritime jurisdictional zones into the high seas – but also to the world community at large, in view of the crucial importance for navigation in the areas concerned. The ever expanding, especially in recent years, present list 73 includes the Great Barrier Reef area in Australia (1990) 74 ; the Sabana-Camagüey archipelago in Cuba (1997) 75 ; the Malpelo IMO Resolution A.982 (24), Revised Guidelines for the identification and designation of Particularly Sensitive Sea Areas, adopted on 1 December 2005, replacing IMO Resolution A.927 (22), Guidelines for the designation of Special Areas under MARPOL 73/78 and Guidelines for the identification and designation of Particularly Sensitive Sea Areas, adopted on 29 November 2001; both available at . For an earlier account of the debate see Kristina Gjerde & David Freestone, Particularly Sensitive Sea Areas – An important environmental concept at a turning point, 9 TIJMCL 1994, pp. 431-468; for a thorough presentation of the negotiation see de la Fayette, supra note 68, at pp. 185-194; Giuletta Rak, Le nuove linee guida dell’Organizzazione Marittima Internazionale (IMO) per la designazione di aree speciali e di aree marine particolarmente sensibili, 17 RGA 2002, pp. 591-612. 71 Ibid ., paragraph 1.1. 72 Note also the shift from the term ‘identification’ under the 1991 Guidelines to a more binding-looking ‘designation’ in the 2005 Guidelines; Fabio Spadi, Navigation of marine protected areas: National and international law, 31 ODIL 2000, pp. 285-302; Kristina Gjerde, Protecting Particularly Sensitive Sea Areas from shipping: A review of IMO’s new PSSA Guidelines, in H. Thiel & J.A. Koslow (eds.), Managing risks to biodiversity and the environment on the high sea, including tools such as Marine Protected Areas – Scientific requirements and legal aspects (BfN-Skripten, Bonn/Bad Godesberg 2001) pp. 123-131, also available at . 73 See also a proposal for a PSSA in the Adriatic Sea by Davor Vidas, Protecting the Euro pean Seas as Particularly Sensitive Sea Areas: The need for regional cooperation in the Adriatic Sea, in Katarina Ott (ed.), Croatian accession to the European Union: The challenges of participation (Zagreb 2006) pp. 347-380. 74 Designated as an attachment to IMO Resolution A.720 (17), Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas , 1990, available at ; see in general Peter Ottesen, Stephen Sparkes & Colin Trinder, Shipping treats and protection of the Great Barrier Reef marine park – The role of the Particularly Sensitive Sea Area concept, 9 TIJMCL 1994, pp. 507-522. 75 MERC 74/40, Identification of the Archipelago of Sabana-Camagüey as a Particularly Sensitive Sea Area, 1997, available at . See also K.M. Gjerde & J.S.H. Pullen, Cuba’s Sabana-Camargüey Archipelago: The second internationally recognised particularly sensitive sea area, 13 TIJMCL 1998, pp. 246-262; Kristina Gjerde, IMO approves protective 70

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island, off the coast of Colombia (2002) 76 ; the sea area around the Florida keys in the US (2002) 77 ; the Wadden Sea, upon a joint application by Denmark, Germany and the Netherlands (2002) 78 ; the Paracas National Reserve in Peru (2003) 79 ; the hotly debated Western European waters (2004) 80 ; the Torres Strait as an extension to the existing area of the Great Barrier Reef, proposed jointly by Australia and Papua New Guinea (2005) 81 ; the Canary islands in Spain (2005) 82 ; the Galapagos archipelago in Ecuador (2005) 83 ; and, last but not least, the Baltic Sea area, jointly proposed by Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005) 84 – with the conspicuous absence of the Russian waters. The identification and designation of PSSA involves a two-stage procedure for the assessment of the vulnerability of the area proposed and the risk it faces by international shipping 85 . During the first step in the process, the coastal State must provide evidence

measures for Cuba’s Particularly Sensitive Sea Area in the Sabana-Camagüey Archipelago, 14 TIJMCL 1999, pp. 415-422. 76 MERC 97/47, Identification of the sea area around Malpelo Island as a Particularly Sensitive Sea Area, 2002, available at . 77 MERC 98/47, Identification of the sea area around the Florida Keys as a Particularly Sensitive Sea Area, 2002, available at . 78 MERC 101/48, Identification of the Wadden Sea as a Particularly Sensitive Sea Area, 2002, available at . 79 MERC 106/49, Designation of the Paracas National Reserve as a Particularly Sensitive Sea Area, 2003, available at . 80 MERC 121/52, Designation of the Western European waters as a Particularly Sensitive Sea Area, 15 October 2004, available at . See also Markus Detjen, The Western European PSSA – Testing a unique international concept to protect imperilled marine ecosystems, 30 Marine Policy 2006, pp. 442-453; Julian Roberts, Martin Tsamenyi, Tim Workman & Lindy Johnson, The Western European PSSA proposal: A ‘Politically Sensitive Sea Area’, 29 Marine Policy 2005, pp. 431-440. 81 Report of the Marine Environment Protection Committee at its 53rd session, 18-22 July 2005, MERC 53/24, paragraph 8.33.2., available at . For a whiff of the legal issues involved see J. Roberts, Compulsory pilotage in international straits: The Torres Strait PSSA proposal, 37 ODIL 2006, pp. 93-112. 82 MERC 124/53, Designation of the Canary islands as a Particularly Sensitive Sea Area, 2005, available at . 83 MERC 135/53, Designation of the Galapagos Archipelago as a Particularly Sensitive Sea Area, 2005, available at . 84 MERC 136/53, Designation of the Baltic Sea as a Particularly Sensitive Sea Area, 2005, available at . See also Ylva Uggla, Environmental protection and the freedom of the high seas: The Baltic Sea as a PSSA from a Swedish perspective, 31 Marine Policy 2007, pp. 251-257. 85 Detjen, supra note 80, at pp. 448-450; Bénédicte Sage, Precautionary coastal States’ jurisdiction, 37 ODIL 2006, pp. 359-387, at pp. 374-376.


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“to establish that at least one of the criteria exists throughout the entire pro posed area, though the same criterion need not to be present throughout the entire area” 86 .

This is a significant tightening of the procedure in comparison to the earlier edition of the Guidelines, which considered the existence of just one such criterion anywhere in the area sufficient; indeed, as pointed out by the UN DOALOS, that was one of the significant differences with the special areas under the Law of the Sea Convention, which necessitates the presence of all of them 87 . The second step involves an assessment of the risk imposed by international shipping activities for that part of the seas, especially in view of vessel traffic characteristics in the area and the natural factors there 88 ; the final enclosure, however, may also include a buffer zone, “an area contiguous to the site-specific feature (core area) for which specific protection from shipping is sought” 89 .

The final designation of a PSSA is dependant upon the adoption of Associated Protective Measures (APM), which include everything with “an identified legal basis” 90 . This is a new requirement, introduced in the 2005 Guidelines, which many – and certainly the environmental organisations – felt that it restricted the range of responses available to the Organisation, thus curtailing any proactive tendencies for a more effective environmental protection 91 . There is no doubt that this formulation has taken the PSSA phenomenon away from the rather dilettante approach of administrative practices in the IMO and moved it squarely within the evolutionary implementation of the Law of the Sea Convention. As a result, the designation of new PSSAs has acquired a solid legal basis, investing them with the binding power, as an expression of the common will of the coastal States concerned; and moreover, it has streamlined developments in the marine environmental Revised Guidelines, supra note 70, paragraph 4.4. There are in all 11 ecological criteria, including uniqueness or rarity, critical habitat, dependency, representativeness, diversity, productivity, spawning and breeding grounds, naturalness, integrity, fragility and biogeographic importance; ibid ., paragraphs 4.4.1.-4.4.11; three social, cultural and economic criteria; ibid ., paragraphs 4.4.12-4.4.14; and three scientific and educational criteria; ibid ., paragraphs 4.4.154.4.17. 87 De la Fayette, supra note 68, at p. 189. 88 Revised Guidelines, supra note 70, paragraphs 5.1.-5.2; see also Sage, supra note 85, at pp. 374-375. 89 Ibid ., paragraph 6.3.; Detjen, supra note 80, at pp. 448-449. 90 Ibid ., paragraph 6.1. 91 Thus Comments submitted by the WWF on MERC 52/8 on the Proposed amendments to Assembly Resolution A.927(22) to strengthen and clarify the Guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs), MERC 52/8/4, 18 August 2004, available at . 86

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protection front within the context and under the authority of the Law of the Sea Convention. Acting in this spirit, the 2005 Guidelines further specify in paragraph 7.4.2.1.(a) three distinct categories of APMs: “ (i) any measure that is already available in an existing instrument; (ii) any measure that does not yet exist but that should be made available as a generally applicable measure and that falls within the competence of IMO; (iii) any measure proposed for adoption in the territorial sea as provided for in the Law of the Sea Convention” 92 ,

provided that any such measure should be specifically tailored to meet the needs of the area at risk 93 . The suitability criterion would offer significant guidance in choosing among the wide variety of measures already available or soon to be adopted: they would include discharge and anchoring restrictions under the SOLAS 94 and the COLREG 95 conventions, with or without the parallel designation of MARPOL ‘special areas’; traffic separation schemes, compulsory pilotage and generally Vessel Traffic Services (VTS) 96 ; ship reporting systems and ship routing measures 97 , including mandatory ship routeing measures for purely environmental purposes 98 . The last category provides the only direct reference in the 2005 PSSA Guidelines to the Law of the Sea Convention. The broad ‘any measure’ language is significantly tempered by a footnote, indicating that “[t]his provision does not derogate from the rights and duties of coastal States in the territorial sea as provided in the Law of the Sea Convention”. Ibid . Ibid ., paragraph 7.4.2.1.(b). 94 Convention for the Safety of Life at Sea (SOLAS), adopted on 7 November 1974, 1184 UNTS 2, text also available at . 95 Convention on the International Regulations for Preventing Collisions at Sea (COLREG), adopted on 20 October 1972, text available at . 96 See also IMO Resolution A.857(20), Guidelines for Vessel Traffic Services, adopted on 27 November 1997; see also Sage, supra note 85, at pp. 381-382. 97 Resolution A.572(14), General provisions on Ships Routeing , 2003, available at . They include traffic separation schemes, traffic lanes, separation zones or lines, roundabouts, inshore traffic zones, recommended routes, deep-water routes, precautionary areas, areas to be avoided, and no anchoring areas; for definitions see Sage, supra note 85, at pp. 379-380; Julian Roberts, Protecting sensitive marine environments: The role and application of ships’ routeing measures, 20 TIJMCL 2005, pp. 135-159. 98 SOLAS Regulation V/8 and Resolution A.572 (14), both as amended by Resolution MSC.46(65) of 16 May 1995; available at ; see also Glenn Plant, The relationship between international navigational rights and environmental protection: A legal analysis of mandatory ship traffic systems, in Henrik Ringbom (ed.), Competing norms in the law of marine environmental protection (Martinus Nijhoff 1997) at pp. 27-28. 92 93


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If the purport of this provision is to reiterate the coastal States’ obligation to respect the innocent passage of foreign ships in the territorial sea and abstain from regulating matters pertaining to the construction, design, equipment and manning of foreign vessels (CDEM standards), then this a fine example of bad legislative drafting. Indeed, it has been suggested that the rather opaque language employed allows for the adoption of reasonable CDEM standards applicable on foreign vessels provided that they are proportionate, do not hamper innocent passage and are previously approved by the IMO 99 . On the face of the law, however, it is hard to see the legal basis of this evolutionary reading of the relevant provisions of the Law of the Sea Convention, which certainly puts at risk the delicate balance between navigation and environmental concerns established therein. Indeed, the IMO Marine Environment Protection Committee (MERC) reacted forcefully when the proponents of what eventually became the Western European PPSA suggested, at the wake of the Prestige incident in November 2002 100 , the total ban of single hull tankers over 600 dwt carrying heavy grades of oil 101 ; it was clearly understood that the proposal was far away from the regulatory framework of the Law of the Sea Convention and was subsequent withdrawn. It was replaced by a reporting obligation with a 48 hours notice period 102 , an ‘existing obligation’ as SOLAS Regulation 8 clearly provides in Chapter V (Navigation) for notification requirements as a method to enable the coastal State to guarantee that effective measures addressing any environmental pollution incident are actually in place. Important as they may be, PSSAs are at the end of the day a category of marine protected areas 103 , enclosures of the seas in which certain activities may be excluded or limited to a minimum in order to protect the marine environment without any territorial or other jurisdictional connotation 104 – al Thus Detjen, supra note 80, at p. 449; Gjerde, supra note 72, in fine. For an overview see The Prestige accident, ; José Juste Ruiz, El accidente del Prestige y el derecho internacional: de la prevención fallida a la reparación insuficiente, 35 REDI 2003, pp. 15-42; Jorge Pueyo Losa, Isabel Lirola Delgado & Julio Jorge Urbina, En torno a la revisión del régimen jurídico internacional de seguridad marítima y protección del medio marino a la luz del accidente del Prestige, ibid ., pp. 43-77. 101 MERC 49/8/1, Designation of a Western European Particularly Sensitive Area, 11 April 2003, Annex 1, at p. 2, jointly submitted by Belgium, France, Ireland, Portugal, Spain and the United Kingdom; available at . 102 Report of the Marine Environment Protection Committee at its 49th session, MERC 49/22, 8 August 2003, at p. 50. 103 Tundi Agardy, Marine protected areas and ocean protection (Austin, Texas 1997). 104 See, however, the discussion by Nele Matz, Protected areas in international nature conservation law: Can States obtain compensation for their establishment?, 63 ZaöRV 2003, pp. 693-716. 99

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though one could well read such a tendency in the “hereby appropriated” language used in the 2006 proclamation of a 50-mile North-Western Hawaian islands marine national monument within the US exclusive economic zone 105 . Global conventions provide for the designation of such protected areas; examples include the 1971 Ramsar Convention on wetlands of international importance, especially as waterfowl habitat 106 ; the 1972 Convention concerning the protection of the world cultural and natural heritage 107 ; or the 1991 Madrid Protocol on environmental protection to the 1959 Antarctic Treaty 108 . The more important maritime protected areas may be found in the numerous regional environmental conventions 109 : Among them, the 1992 OSPAR Convention for the protection of the marine environment of the North-East Atlantic 110 ; the 1995 Barcelona Protocol concerning Specially Presidential Proclamation no. 8031, Establishment of the Northwestern Hawaiian Islands Marine National Monument , 26 June 2006, 71 Federal Registry 36441 [2006]. Note, however, that “The Secretary of State, …, shall seek the cooperation of other governments and international organizations in furtherance of the purposes of this proclamation and consistent with applicable regional and multilateral arrangements for the protection and management of special marine areas. Furthermore, this proclamation shall be applied in accordance with international law. No restrictions shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States (including foreign flag vessels) unless in accordance with international law”; ibid . (my emphasis); Peter H. Sand, ‘Green’ enclosure of ocean space – déjà vu?, 53 Marine Pollution Bulletin 2007 [on file with the author]. The area seems to have already attracted its share of controversy: Jon M. van Dyke, J. Morgan & J. Gurish, The exclusive economic zone of the Northwestern Hawaiian islands: When do uninhabited islands generate an EEZ?, 25 San Diego LR 1988, pp. 425-494. 106 Done on 2 February 1971 and entered into force on 21 December 1975; 996 UNTS 245. 107 Done in Paris on 21 November 1972 and entered into force on 17 December 1975, 11 ILM 1972, pp. 1358-1366. 108 Done in Madrid on 4 October 1991 and entered into force on 14 January 1998, 30 ILM 1991, pp. 1461-1486; K. Bastmeijer, The Antarctic Environmental Protocol and its domestic legal implementation (Kluwer Law International, Dordrecht 2003). 109 For an overview see, instead of many others, Tullio Treves, Regional approaches to the protection of the marine environment, in Myron H. Nordquist, John Norton Moore & Said Mahmoudi (eds.), The Stockholm Declaration and law of the marine environment (Kluwer Law International 2003) pp. 137-154; David M. Dzidzornu, Marine environment protection under regional conventions. Limits to the contribution of procedural norms, 33 ODIL 2002, pp. 263-316. 110 Done in Paris on 22 September 1992 and entered into force on 25 March 1998, 21 ILM 1993, pp. 1069-1100; text and general information also available at . For an overview see Ellen Hey, Ton IJlstra & André Nollkaemper, The 1992 Paris Convention for the protection of the Marine Environment of the North-East Atlantic: A critical analysis, 8 TIJMCL 1993, pp. 1-49; José Juste, La Convention pour la protection du milieu marin de l’Atlantique nordest, 97 RGDIP 1993, pp. 365-393; Juliane Hilf, The Convention for the protection of the marine environment of the North-east Atlantic – New approaches to an old problem? 55 ZaöRV 1995, pp. 580-603; Louise de la Fayette, The OSPAR Convention comes into force: Continuity and progress, 14 TIJMCL 1999, pp. 247-279; Rainer Lagoni, Regional protection in the Northeast Atlantic, in Nordquist, Moore & Mahmoudi (eds.), supra, pp. 183-203. 105


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Protected Areas and biological diversity in the Mediterranean 111, replacing the 1982 Geneva Protocol concerning Mediterranean Specially Protected Areas 112 ; or the 1990 Kingston Protocol concerning specially protected areas and wildlife 113 to the 1983 Cartagena de Indias Convention for the protection and development of the marine environment of the wider Caribbean region114 . The common problem in all these instruments relates to the impact of restrictions on navigation, often in the high seas, upon third States 115 , not party to the conventions; States parties being naturally bound by their contractual obligations. It has been suggested that protected areas, created on the basis of such pacta tertiis, create nonetheless an erga omnes effect, reminiscent of the objective regimes discussed by the PCIJ in the case of the Free zones of Upper Savoy and the district of Gex 116 . A more contemporary legal basis may be sought in the customary obligation of all States to protect and preserve the marine environment: measures taken with a view to guarantee environmental protection may well be binding upon third States, not necessarily creating an obligation to comply with the specific provisions of an agreement to which they have not participated but rather a duty of non-interference with arrangements agreed by certain members of the international community on In force since 12 December 1999; for the text and general information see . For a overview see Tullio Scovazzi, Regional cooperation in the field of the environment, in Tullio Scovazzi (ed.), Marine specially protected areas (Kluwer Law International 1999) pp. 81-99, at pp. 86-88; Maria Gavouneli, New forms of cooperation in the Mediterranean system, in Nordquist, Moore & Mahmoudi (eds.), supra note 109, pp. 223-236, at pp. 225-227. 112 It was adopted in Geneva on 3 April 1982 and entered into force on 23 March 1986; text available at . For a comparative overview see Ange-Laurent Bindi, La création et la gestion des aires marines spécialement protégées (AMSP), 5 ADM 2000, pp. 165-175; Habib Slim, Les aires spécialement protégées en Méditerranée, 6 Revue de l’INDEMER 2001, pp. 121-139; Carlos Francisco Fernández Beistegui, Las zonas marinas es pecialmente sensibles (ZMES): las incertidumbres de la medidas previstas para su protección, 21 Anuário de derecho marítimo 2004, pp. 89-119. 113 Done on 18 January 1990, it entered into force on 18 June 2000, text available at ; Alessandra Vanzella-Khouri, Implementation of the Protocol concerning specially protected areas and wildlife (SPAW) in the wider Caribbean region, 30 U Miami IALR 1998, pp. 53-83; Charlotte de Fontaubert & Tundi Agardy, Critical analysis of the SPAW Protocol. The dilemma of regional cooperation, ibid ., pp. 85-98. 114 Done on 24 March 1983, it entered into force on 30 March 1986, 22 ILM 1983, pp. 221245. For an overview of the Caribbean system see Winston Anderson, The law of Caribbean marine pollution (Kluwer Law International, 1997); Benedict Sheehy, International marine environment law. A case-study in the Wider Caribbean Region, 16 Georgetown IELR 2004, pp. 441-472. 115 For a thorough airing of the issues see Erik Franckx, Pacta tertiis and the Agreement for the implementation of the straddling and highly migratory fish stocks provisions of the UN Convention on the Law of the Sea, 8 Tulane JICL 2000, pp. 49-81. 116 France v. Switzerland, 1932, PCIJ, ser. A/B, no. 46 at p. 96, available at ; for a more detailed discussion see Gavouneli, supra note 43, at pp. 536-539. 111

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behalf of the international community as a whole117 . It is quite clear that the affirmation of such a duty necessarily involves a degree of acquiescence by the third State, which is not always evident and almost never to be presumed.

3. THE ATTRACTION OF UNILATERALISM The saga of the available mechanisms for balancing the different uses of the seas proves, beyond any doubt, the delicate nature of the exercise but also the powerful urge of the coastal State to break the procedural constraints the world community has placed upon its actions and take immediate action. There is never a better chance for such flares of unilateralism that when a maritime incident highlights the limitations of concerted multilateral action and the regulatory limits of the Law of the Sea Convention. This was the case of the Torrey Cannon, which created the 1969 International Convention relating to intervention on the high seas in cases of oil pollution from ships and the 1973 Protocol relating to intervention on the high seas in cases of marine pollution by substances other than oil 118 ; the case of Exxon Valdez, which resulted in the US Oil Pollution Act 1990 119 ; the case of Erika, which shaped the maritime safety policy of the European Community 120 ; and the For a general discussion see Malgosia Fitzmaurice, Modifications to the principles of consent in relation to certain treaty obligations, 2 ARIEL 1997, pp. 275-317 at p. 299; Kristina M. Gjerde, High seas marine protected areas, 16 TIJMCL 2001, pp. 515-528; Tullio Scovazzi, Marine protected areas on the high seas. Some legal and policy considerations, 19 TIJMCL 2004, pp. 1-17. 118 Adopted on 29 November 1969, it entered into force on 6 May 1975; initially amended by the 1973 Protocol thereto, which entered into force on 30 March 1983 and subsequent amendments in 1991, 1996 and 2002 revising the list of substances; texts available at . The IMO pollution prevention system was complemented with the adoption of the 1990 International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC), adopted on 30 November 1990 and entered into force on 13 May 1995, as sup plemented by the 2000 Protocol on Preparedness, Response and Cooperation to Pollution Incidents by Hazardous and Noxious Substances, adopted on 15 May 2000, which will enter into force on 14 June 2007; ibid . 119 Oil Pollution Act (OPA) of 1990, Pub.L. No. 101-380, 104 Stat. 484. 120 See Communication from the Commission to the European Parliament and the Council on the safety of the seaborne oil trading [Erika I], COM (2000) 142 final, 21 March 2000; Communication from the Commission to the European Parliament and the Council on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika [Erika II], COM (2000) 802 final, 6 December 2000; Communication from the Commis sion on a third package of legislative measures on maritime safety in the European Union [Erika III], COM (2005) 585 final, 23 November 2005; complete information available at ; Françoise Odier, Une nouvelle étape dans le développement de la sécurité maritime : les leçons de l’ Erika, 4 ADM 1999, pp. 117


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case of the Prestige, which has put the tension between freedom of navigation and environmental protection squarely on the front page of world news, generating a torrent of international regulation 121 . The immediate reaction of the coastal States concerned remained true to (unilateral) form. Meeting in Malaga in November 2002, just a week after the Prestige disaster, the competent ministers from France and Spain agreed to a new interpretation of their rights and duties in their respective exclusive economic zones: “ L’Espagne et la France sont déterminées à limiter la présence dans leurs zones économiques exclusives respectives des navires de plus de quinze ans d’âge, à simple coque, transportant des fiouls lourds et des goudrons et présentant des risques pour la protection de l’environnement marin. Pour ce faire, l’Espagne et la France mettent en place une obligation de signalement détaillé à l’entrée de leurs zones économiques exclusives afin de permettre, en cas de doutes, un contrôle approfondi des navires à la mer dont le résultat pourra aboutir à une injonction à quitter la zone” 122 .

The declaration was immediately joined by Portugal whereas Belgium and Germany reacted vehemently to the possibility of unilateral action spreading in European waters – given the tone of political argumentation at the time123 . There is no question that the coastal State has jurisdiction in the EEZ for matters pertaining to the protection and preservation of the marine environment. However, the text of the Law of the Sea Convention is explicit as to the extent of the powers of the coastal State when faced with the risk of a 179-189; Yves van der Meensbrugghe, Sécurité maritime et protection de l’environnement marin en l’an 2000 : Des réactions de la Communauté européenne à l’affaire de l’ Erika et de quibusdam aliis…, 5 ADM 2000, pp. 177-201; Henrik Ringbom, The Erika accident and its effects on EU maritime regulation, in Myron H. Nordquist & John Norton Moore (eds.), Current marine environmental issues and the International Tribunal for the Law of the Sea (Martinus Nijhoff, The Hague 2001) pp. 265-285. 121 For the first reactions see Communication on improving safety at sea in response to the Prestige accident , COM (2002) 681, 3 December 2002; Communication from the Commission on action to deal with the effects of the Prestige disaster , COM (2003) 105 final, 5 March 2003; both available at . 122 Spain/France summit meeting, 26 November 2003, text available at . See also Laurent Lucchini, Les contradictions potentielles entre certaines mesures de protection de l’environnement et la liberté de navigation. Rapport général, in Rafael Casado Raigón (éd.), L’Europe et la mer. Pêche, navigation et environnement marin (Bruylant/Éditions de l’Université de Bruxelles, Bruxelles 2005) pp. 205-214, at pp. 207-208; Valentín Bou Franch, Freedom of navigation versus pollution by oil from vessels: The point of view of coastal States, ibid., pp. 253-288, especially at pp. 265-273. 123 For a taste see M. Lehardy, Le naufrage du Ievoli Sun et les propositions Gayssot sur le contrôle de la navigation, RGDIP 2001, pp. 178-184.

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pollution incident. In application of its general jurisdictional rights in the exclusive economic zone, the coastal State may “require [a] vessel to give information regarding its identity and port of registry, its last and its next port of call and other relevant information required to establish whether a violation has occurred …” 124 .

provided that “there are clear grounds for believing that a vessel navigating in the exclusive economic zone … of a State has, in the exclusive economic zone, committed a violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels or laws and regulations of that State conforming and giving effect to such rules and standards…” 125 .

Moreover, if there are clear grounds for believing that the violation has indeed occurred “resulting in a substantial discharge causing or threatening significant pollution of the marine environment” 126 ,

then the coastal State may even proceed with a physical inspection of the vessel and eventually institute proceedings, including detention of the vessel, if there is “a discharge causing major damage or threat of major damage to the coastline or related interests of the coastal State or to any resources of its territorial sea or exclusive economic zone” 127 .

All of the above being a very complicated way to say that, if a ship causes a pollution incident within the EEZ of any given State, it becomes subject to the enforcement jurisdiction of that State, it gets punished for it. The precautionary approach in this rather standard rule is evidenced only in the possible threat of ‘significant pollution’ or ‘major damage’, once a violation has indeed occurred. There is no question that the requirement of a previous breach before the enforcement system kicks into place would not always guarantee the best environmental result. Indeed, under both articles 292 and 294 of the Law of the Sea Convention and customary international law 128 the obligation to take appropriate measures certainly also covers pre Article 220 paragraph 3 LOSC. Ibid . 126 Article 220 paragraph 5 LOSC (emphasis added). 127 Article 220 paragraph 6 LOSC (emphasis added). 128 See also article 3 of the 2001 ILC Articles on Prevention of transboundary harm from hazardous activities: “The State of origin shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof.”; Official Records of the General Assembly, Fifty-Sixth session, Supplement no. 10, A/56/10, text also available at . 124 125


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ventive measures: The harm prevention obligation was indeed made explicit by the ICJ in the Advisory Opinion on the Legality of the threat or use of nuclear weapons 129 . However, reading into a very clear text an additional obligation of prevention, in effect obliterating the inherent delicate balance of the system between freedom of navigation and protection of the marine environment, would require a major subsequent development of a new rule of international law 130 . Neither the well-documented travaux prépartoires of the Law of the Sea Convention nor the status of international environmental law today allow for such a conclusion although it is generally understood – and repeatedly affirmed by international courts and tribunals 131 – that even older treaties must be construed and applied in light of all the law in force between the parties; a principle recently affirmed in the Iron Rhine case, where the 1839 Treaty of Separation between The Netherlands and Belgium was indeed interpreted in view of the environmental responsibilities of the parties 132 . However, in the Gabcikovo-Nagymaros case, the Court, deciding on the facts of the case, found no need to modify the contractual obligations of the parties (undertaken in the early 1970s) in view of subsequently evolved environmental principles 133 ; and that when international environmental law is perhaps the only branch of international law with a birthday: June 1973! Environmental concerns, including obligations of prevention, were certainly incorporated into the Law of the Sea Convention, which was generally understood, even at the time, to be the first and certainly “the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time” 134. Advisory Opinion on the Legality of the threat or use of nuclear weapons, ICJ Reports 1996, paragraph 29: “The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment”; available at . 130 For the mechanism of change see, instead of many others, Nancy Kontou, The termination and revision of treaties in the light of new customary international law (Oxford 1994). 131 See, among others, the Advisory Opinion on Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971; Aegean Sea continental shelf , Greece v. Turkey, ICJ Reports 1978. 132 Permanent Court of Arbitration, Arbitration regarding the Iron Rhine (‘IJzeren Rijn’) railway, Belgium v. The Netherlands, award of 24 May 2005, paragraphs 220-223; available at . See also supra, Part I, Chapter 2, 4, notes 154-160 and text therein. 133 Case concerning the Gabcikovo-Nagymaros project , Hungary v. Slovakia, ICJ Reports 1997, paragraph 140; available at . 134 John R. Stevenson & Bernard H. Oxman, The future of the UN Convention on the Law of the Sea, 88 AJIL 1994, pp. 488-499, at p. 496. 129

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FUNCTIONAL JURISDICTION JURISDICTION IN THE LAW OF THE SEA

The coastal State can, therefore, request information, conduct a physical inspection, even arrest a polluting ship, once it has caused an incident in breach of its (flag State) obligations under international law. It cannot do any of the aforementioned and it cannot order it to move away from the exclusive economic zone waters, thus curtailing its freedom of navigation therein, upon suspicion suspicion that a polluting incident is possible or even impeding. The Malaga agreement on expulsion from the EEZ is outside the legal framework of the Law of the Sea Convention 135 – and it was understood as such by the parties, which soon moved to address the situation in other fora with the proposal for a Western European waters PSSA 136 and the adoption of new CDEM standards under MARPOL to exclude the presence of single-hull old ships from the European waters 137 : In a rather complicated system, with many exceptions, all transport of heavy-grade oil by single-hull tankers will cease immediately 138 whereas 15-year old single-hull tankers carrying lighter types of oil are subject to a vigorous Condition Assessment Scheme (CAS) 139 before they are all phased out by 2015 140 . The system mirrors the even more rigorous timelines, i.e. a total phase-out of single-hull vessels by 2010, established by Regulation (EC) 1726/2003 of the European Parliament and of the Council of 22 July 2003 amending Regulation (EC) 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers 141 . It is, nevertheless, interesting that nobody seems to have paid any attention, presumably following the US example in adopting OPA 1990, to article 195 of the LOS Convention:

Caroline Laly-Chevalier, Les catastrophes maritimes et la protection des côtes françaises, AFDI ses, AFDI 2004, 2004, pp. 581-606, at p. 587; Lucchini, supra Lucchini, supra note note 122, at pp. 208-209. 136 See supra See supra note note 80. 137 For a thorough presentation see Veronica Frank, Consequences of the Prestige sinking Prestige sinking for European and international law, 20 TIJMCL 2005, TIJMCL 2005, pp. 1-64, especially at pp. 18-25. 138 MERC 111/50, Annex 2, amending MARPOL 73/78, Annex I, Regulation H; text available at . 139 MERC 111/50, Annex 1, paragraph 7, amending MARPOL 73/78, Annex I, Regulation G; MERC 112/50 amending the Condition Assessment System; texts available at . 140 MERC 111/50, Annex 1, paragraph 4, amending MARPOL 73/78, Annex I, Regulation G; text available at . 141 OJ L 249, 1 October 2003, pp. 1-4; Yves van der Meensbrugghe, De l’ Erika au Erika au Prestige Prestige : : La réaction de la Communauté européenne en matière de sécurité maritime et de protection de l’environnement marin en 2002, ADM 2003, 2003, pp. 333-345; Catherine Roche, Prévention et la lutte contre la pollution des mers par les hydrocarbures : Les derniers développements communautaires, RMCUE munautaires, RMCUE 2003, 2003, pp. 598-609; Wang Hui, The EU marine oil pollution prevention regime – Recent developments, EEnvLR developments, EEnvLR 2004, 2004, pp. 292-303, at 300-301. 135


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“In taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another …” 142 .

The international engagements of the States concerned, notably of France, were also reflected in the domestic scene. Amending Law no. 76-655 creating an exclusive economic zone at its Atlantic coast, France established in 2003 a ‘zone de protection écologique’ 143 applicable also at the Mediterranean coast 144 , conceived as a ‘déclinaison’, a functional derivative of the exclusive economic zone 145 . In the new zone the State authorities implement and enforce domestic laws and regulations and exercise “en outre les compétences reconnues par le droit international relatives à la protection et à la préservation du milieu milieu marin”.

In practice, therein lies the legal basis for the domestic enforcement, including the examination of documents, physical examination and even the arrest of the ship 146 , of international rules and regulations under MARPOL and assorted IMO instruments as well as under the EC maritime environmental regulations and directives 147 . Nothing untoward in these provisions but an in Thus also Laly-Chevalier, supra Laly-Chevalier, supra note note 135, at p. 588. Loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection écologique au large des côtes du territoire de la République, JO du 16 avril 2003, modifiant Loi no. 76-665 relative à la zone économique au large des côtes du territoire de la République, JO 16 juillet 1976; text available at . . 144 Which necessitates a delicate delimitation exercise; décret no. 2004-33 du 8 janvier 2004 portant création d’une zone de protection écologique au large des côtes du territoire de la République en Méditerranée, JO du 10 janvier 2004; available at . . See also Irini Papanicolopulu, Some thoughts on the extension of existing boundaries for the delimitation of new maritime zones, in Rainer in Rainer Lagoni & Daniel Vignes (eds.), Maritime delimitation (Brill, tation (Brill, The Hague 2006) pp. 223-236. 145 Thus Clotilde Deffigier, La zone de protection écologique en Méditerranée, Un outil efficace de lutte contre la pollution par les navires? Commentaire de la loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection écologique au large des côtes du territoire de la République, RJE République, RJE 2004, 2004, pp. 129-141 and pp. 257-266, at p. 131; Sarah Wolf, Neue Tendenzen zur Ausdehnung küstenstaatslicher Umweltkompetenzen auf See: Eine Untersuchung am Beispiel der französischen “zone de protection écologique” im Mittelmeer, 66 ZaöRV 2006, 2006, pp. 73-141. 146 See article L218-29 of the Code de l’environnement, as amended by article 6 of Loi no. 2001-380, JO of 4 May 2001; by article 4 of Loi no. 2003-346 of 15 April 2003, JO of 16 April 2003; and article 30 paragraphs 1 and 9 of Loi 2004-204 of 9 March 2004, JO of 10 March 2004; as further specified in décret no. 95-411 of 19 April 1995, JO of 19 April 1995; all available at 147 See, however, case C-308/06, The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Cooperation Committee, Lloyd’s Register, The International Salvage Union v. The Secretary of State for Transport , Reference for 142 143

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teresting aside in article L218-21 of the Code, which makes the tools of criminal enforcement applicable also “aux navires … étrangers même immatriculés dans un territoire relevant d’un gouvernement non partie à la Convention [MARPOL] ” 148 ,

although the sanctions provided include only financial penalties 149 . On the face of it, one would argue for a clear case of expanding jurisdiction where none exists, a textbook case of a pactum a pactum tertiis. tertiis. However, the rules to which reference is made are actually the “generally accepted international rules and standards” of article 211 of the Law of the Sea Convention. And it has been argued – quite convincingly – that the widespread acceptance of these rules by State practice, both among the parties to MARPOL and other IMO instruments and the world community at large, has rendered the way in which they find expression “only of secondary importance” 150. Indeed, on a rather convoluted but thoroughly researched argument, the ILA Committee on coastal jurisdiction over marine pollution concluded in its 2000 Final Report that although such standards “cannot be equated with customary law nor with legal instruments in force for the States concerned”151 , yet “[e]ven in the hypothesis that the concrete international rules and standards referred to are of a conventional nature, the question whether the State is a party to the convention containing a particular international rule or standard becomes irrelevant for the State in question to exercise prescriptive jurisdiction, as long as that rule or standard is generally accepted.” 152 .

In other words, the consent or, at the very least: the acquiescence, of the foreign State to have its vessels submitted to French coastal State jurisdiction is presumed and eventually enforced: it seems that the implementation of the rule has not given rise to any protest by affected States, although naturally the ships involved had recourse to judicial protection. A variation of the same rule, but with no implementation in practice as yet and consequently no evidence of foreign State reaction, is also to be found in the Italian law for the creation of a ‘zona di protezione ecologica’, in which preliminary ruling from the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court); available at . 148 Article L218-21 of the Code de l’environnement, as amended by article 3 of Loi no. 2003-346 of 15 April 2003, JO of 16 April 2003; and article 30 paragraphs 1 and 5 of Loi 2004-204 of 9 March 2004, JO of 10 March 2004; available at . 149 Ibid .,., in fine. fine. 150 ILA, Report ILA, Report of the Sixty-ninth Conference, Conference, London 2000, Final Report of the Committee on coastal jurisdiction over marine pollution (London 2000) pp. 443-512, Conclusion no. 6, at p. 487. 151 Ibid .,., Conclusion no. 2, at p. 475. 152 Ibid .,., Conclusion no. 6, at p. 487.


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“le norme del diritto italiano, del diritto dell’Unione europea e dei trattati internazionali in vigore per l’Italia” 153

apply “anche nei confronti delle navi battenti bandiera straniera e delle persone di nazionalità straniera” 154 .

The same rule is repeated in article 6 of the Slovenian Ecological Protection Zone 155 . In this case, however, the exercise of the jurisdictional powers of the coastal State in the EEZ certainly covers all vessels present therein irrespective of their nationality. The Mediterranean zones of environmental protection do not make ex press reference to the freedom of navigation. Although the respective domesdomestic regulations may allow for the eventual seizure of the offending vessel, such interference is – at least for the time being – within the regulatory framework of the Law of the t he Sea Convention. However, the balance between navigation and the exercise of coastal State jurisdiction for the protection and preservation of the marine environment is made explicit in the Croatian Ecological and Fisheries Protection Zone: “… [T]he ecological and fisheries protection zone of the Republic of Croatia protected in this manner remains a sea area where all States shall enjoy freedoms, as guaranteed under international law, of navigation, overflight, laying submarine cables and pipelines, and other internationally lawful uses of the sea” 156 .

It seems that even the proliferation of new zones in such a sensitive area as the Mediterranean Sea, where there is simply not enough space between op posite coasts for the full expansion of 200-mile zones, is nevertheless carried out generally in accordance with the Law of the Sea Convention and certainly in full cognizance of the delicate balance the Convention has achieved among conflicting uses of the seas. Whether this has been accomplished by a Article 2 paragraph 2 of Legge no. 61 di 8 febbraio 2006, Istituzione di zone di protezione ecologica oltre il limite esterno del mare territoriale, Gazzetta Ufficiale no. 52 del 3 marzo 2006; available at . 154 Ibid . For an overview see Tullio Scovazzi, La zone de protection écologique italienne dans le contexte confus des zones côtières méditerranéennes, 10 ADM 2005, pp. 209-222; Giuseppe Cataldi, L’Italia e la delimitazione degli spazi marini. Osservazioni sulla prassi recente di estensione della giuridizione costiera nel Mediterraneo, RDI Mediterraneo, RDI 2004, 2004, pp. 621-642. 155 Act on the Ecological Protection Zone and the Continental Shelf of the Republic of Slovenia, 22 October 2005, 60 Law 60 Law of the Sea Bulletin 2006; Bulletin 2006; available at . 156 Article 4 of the Decision of the Croatian Parliament for the extension of the jurisdiction of the Republic of Croatia in the Adriatic Sea, 3 October 2003, as amended on 3 June 2004 and in force since 3 October 2004; 55 Law of the Sea Bulletin 2004, Bulletin 2004, p. 31; text available at . 153

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judicious reading of the rules or rather it is inherent i nherent in the EEZ concept merits perhaps further examination. 4. DE UNI PLURIA? The accommodation of conflicting uses in the exclusive economic zone often disguises the fact that the exclusive economic zone as defined in the Law of the Sea Convention does not exist. Out of 159 States that have ratified to date the Law of the Sea Convention, at least 106 have attached to their instruments of ratification a declaration 157 of some sort: A brief look through these documents would render immediately obvious the fact that every single State claiming an EEZ – or even contemplating establishing one – has a different understanding of what is the exact extent of the zone and what are the functions it allows therein. Thus, in a statement made at the time of signing the Law of the Sea Convention, Chile reaffirmed its unique understanding that the exclusive economic zone has territorial connotations 158 whereas Germany, in an equally lengthy statement, appeared clearly opposed to any claim of sovereignty 159 . The exact content of the rights accorded to the coastal State under article 56 of the Law of the Sea Convention is also subject to different interpretations: On the legal status of such declarations see L.D.M. Nelson, Declarations, statements and ‘disguised reservations’ with respect to the Convention on the Law of the Sea, 50 ICLQ 2001, pp. 767-786. 158 Statement made upon signature on 10 December 1982 and confirmed upon ratification on 25 August 1997: “The exclusive economic zone has a sui generis sui generis legal legal character distinct from that of the territorial sea and the high seas. It is a zone under national jurisdiction, over which the coastal State exercises economic sovereignty and in which third States enjoy freedom of navigation and overflight and the freedoms inherent in international communication. The Convention defines it as a maritime space under the jurisdiction of the coastal State, bound to the latter’s territorial sovereignty and actual territory, on terms similar to those governing other maritime spaces, namely the territorial sea and the continental shelf”; available at . 159 Statement made upon accession on 14 October 1994: “In the exclusive economic zone, which is a new concept of international law, coastal States will be granted precise resourcerelated rights and jurisdiction. All other States will continue to enjoy the high-seas freedoms of navigation and overflight and of all other internationally lawful uses of the sea. These uses will be exercised in a peaceful manner, and that is, in accordance with the principles embodied in the Charter of the United Nations. In articles 56 and 58 a careful and delicate balance has been struck between the interests of the coastal State and the freedoms and rights of all other States. This balance includes the reference contained in article 58, paragraph 2, to articles 88 to 115 which apply to the exclusive economic zone in so far as they are not incom patible with Part V. Nothing in Part V is incompatible incompatible with article 89 which invalidates claims of sovereignty”; available at . 157


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Brazil considers that military exercises in the exclusive economic zone necessitate the prior consent of the coastal State 160 whereas the Netherlands clearly considers such a suggestion anathema 161 . Interesting is also the different understanding of States, indeed member States of the European Union, in matters pertaining to coastal State jurisdiction for the protection of the marine environment. France 162 – and lately Slovenia163 – recognise the environmental protection rules in the exclusive economic zone as consolidation of the general rules of the law of the sea. Portugal, on the other hand, in already giving notice of an evolutionary reading of its contractual obligations: “Bearing in mind the available scientific information and with a view to the protection of the environment and the sustained growth of economic activities based on the sea, Portugal will, preferably through international cooperation and taking into account the precautionary principle, carry out control activities beyond the areas under national national jurisdiction.” 164 .

It is true that the exclusive economic zone has descended from the equally wide variety of fisheries zones established mostly by the Latin American States in the 1940s. Indeed, at the beginning the difference between the two

Statement made upon signature on 10 December 1982: “The Brazilian Government understands that the provisions of the Convention do not authorize other States to carry out in the exclusive economic zone military exercises or manoeuvres, in particular those that imply the use of weapons or explosives, without the consent of the coastal State.”; available at . For the military uses of ocean spaces in general see, instead of many others, Alva Myrdal (& Adolfo Maresca), Preserving the oceans for peaceful purposes, 133 RCADI 1971-II, pp. 1-14; Charles E. Pirtle, Military uses of ocean space and the Law of the Sea in the new millennium, 31 ODIL 2000, ODIL 2000, pp. 7-45. 161 Statement made upon ratification on 28 June 1996: “The Convention does not authorize the coastal State to prohibit military exercises in its exclusive economic zone. The rights of the coastal State in its exclusive economic zone are listed in article 56 of the Convention, and no such authority is given to the coastal State. In the exclusive economic zone all States enjoy the freedoms of navigation and overflight, subject to the relevant provisions of the Convention.”; available at . 162 Statement made upon signature on 10 December 1982: “The provisions of the Convention relating to the status of the different maritime spaces and to the legal regime of the uses and protection of the marine environment confirm and consolidate the general rules of the law of the sea and thus entitle the French Republic not to recognize as enforceable against it any foreign laws or regulations that are not in conformity with those general rules.”; available at . 163 Declaration made upon succession on 16 June 1995: “The Republic of Slovenia considers that its Part V ‘Exclusive economic zone’, including the provisions of article 70, ‘Right of geographically disadvantaged States’, forms part of the general customary international law.”; available at . 164 Statement made upon ratification on 3 November 1997; available at . 160

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terms was not always clear 165 . However, the proliferation of ‘fisheries zones’ or ‘pollution protection zones’ or ‘ecological protection zones’ ever since has not contributed to the uniformity of the concept. States have repeatedly chosen variations of the rule rather than the original item, opting for different combinations of the jurisdictional powers attributed to the coastal State and certainly for different distances from the baseline; indeed, it seems that few of the exclusive economic zones established in the world today extend to the full complement of 200 miles from the shore. A special case and at the same time a typical example of the multifunctionality of the EEZ concept may be found in the Mediterranean Sea 166 . Lack of space has caused a certain reluctance among the coastal States to take advantage of their full jurisdictional powers under the Law of the Sea Convention – and engage in a major delimitation exercise. The difficulty was further accentuated by the exclusive jurisdiction of the European Community in matters of fisheries: discussions for a common European Fisheries Zone in the Mediterranean waters (in addition to the one already in existence in the Atlantic and North Sea waters) have just begun and will long continue 167 . Spain was the first to take the plunge instituting in 1997 a 37-mile fisheries protection zone in the European coast 168 , which promptly caused a reac-

Jean-Pierre Quéneudec, Les rapports entre zone de pêche et zone économique exclusive, 32 GYBIL 1989, pp. 138-155; Carl-August Fleischer, The right to a 200-mile exclusive economic zone or special fishery zone, 14 San Diego LR 1976-1977, pp. 548-583. 166 For an overview see Tullio Treves, Les zones maritimes en Méditerranée : Compatibilité et incompatibilité avec la Convention sur le droit de la mer de 1982, in Institut de droit économique de la mer, Les zones maritimes en Méditerranée, Actes du colloque, Monaco, 4-6 octobre 2001, 6 Revue de l’INDEMER 2002, pp. 19-35; Tullio Scovazzi, Les zones côtières en Méditerrannée : évolution et confusion, ibid., pp. 95-108; Umberto Leanza, Le nouveau droit de la mer Méditerrannée (Ed. Scientifica, Napoli 1994). 167 Communication from the Commission to the Council and the European Parliament laying down a Community Action Plan for the conservation and sustainable exploitation of fisheries resources in the Mediterranean Sea under the Common Fisheries Policy, COM (2002) 535 final, 9 October 2002; Declaration of the Ministerial Conference for the Sustainable Development of Fisheries in the Mediterranean, Venice, 25-26 November 2003; both available at . For an early comment see also P.W. Birnie, An EC exclusive economic zone: Marine environmental aspects, 23 ODIL 1992, pp. 193-216. 168 Real decreto 1315 de 1 agosto 1997, BOE no. 204 de 26 agosto 1997, p. 25628, as amended by Real decreto del 31 marzo 2000, BOE no. 79 de 1 abril 2000; text available at . See in general D. Blázquez Peinado, El real decreto 1315/1997 de 1 de agosto por el que se establece una zona de protección pesquera en el Mar Mediterráneo, 49(2) REDI 1997, pp. 334-339; Eva María Vázquez Gómez, Problèmes de conservation et de gestion des ressources biologiques en Méditerranée. La zone de protection de la pêche espagnole, in Cataldi (ed.), supra note 33, pp. 183-191. 165


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tion by France (in pre-Malaga days) 169 . It evidently followed the example of Tunisia 170 in the African coast, which had proclaimed a fisheries zone already since the 1960s before instituting in 2005 a full exclusive economic zone 171 – all to the sound of loud Italian protests 172 . Malta had also created a 12-mile fishing zone in 1971, subsequently extended to 25 miles by a decision of 18 July 1978 173 , again generating protests by Italy 174 . Algeria declared an exclusive fisheries zone in 1994, extending to 32 miles between the western frontier with Morocco and Ras Ténès and to 52 miles from there eastwards175 . Libya declared in 2005 a 62-mile fisheries protection zone, where “no fishing of any kind or by any means shall be permitted … except by permit from the competent authorities.” 176 .

The newly proclaimed ecological zones of Croatia and Slovenia have also initiated a protracted delimitation ruckus in the Adriatic Sea 177 . On the other Protestation du Gouvernement français au sujet de l’établissement de la zone de protection de la pêche en Méditerranée du 22 septembre 1998, ADM 1997, p. 655; see also Víctor Louis Gutiérrez Castillo, L’Espagne et les problèmes de délimitation en Méditerranée, in Cataldi (ed.), supra note 33, pp. 169-182. 170 Loi no. 62-35 du 16 octobre 1962, Journal officielle de la République Tunisienne no. 53 des 12-16 octobre 1962. 171 Law 50/2005 of 27 June 2005, 58 Law of the Sea Bulletin 2005, also available at . See also Habib Slim, Observations sur la loi tunisienne du 27 juin 2005 relative à la zone économique exclusive, 10 ADM 2005, pp. 223-235. 172 Tullio Scovazzi, L’accordo di pesca italo-tunisino del 19 giugno 1976, RDI 1976, pp. 761-767; idem., Gli accordi bilaterali sulla pesca (Giuffrè, Milano 1977); Tullio Treves, Il diritto di mare e l’Italia (Giuffrè, Milano 1995) at pp. 89-91. 173 For the text of the decision see RGDIP 1979, p. 536. 174 See Natalino Ronzitti, Le zone di pesca nel Mediterraneo e la tutela degli interessi italiani, Rivista marittima 1999, pp. 31-35; Benedetto Conforti, The Mediterranean and the exclusive economic zone, in Umberto Lenza (ed.), Il regime giuridico internazionale del mare Mediterraneo (Giuffrè, Milano 1987); Gemma Andreone, Les conflits de pêche en Méditerranée, in Cataldi (ed.), supra note 33, pp. 193-220. 175 Décret législatif no. 94-13 du 28 mai 1994, Journal officielle de la République Algérienne no. 40 du 22 juin 1994. 176 General People’s Committee Decision no. 37 of 1373 from the death of the Prophet (AD 2005) concerning the declaration of a Libyan fisheries protection zone in the Mediterranean Sea, annexed to the letter dated 29 March 2005 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the UN addressed to the SecretaryGeneral, doc. A/60/68; available at . 177 Maja Sersic, The Adriatic Sea: Semi-enclosed sea in a semi-enclosed sea, in Cataldi (ed.), supra note 33, pp. 329-347; Budislav Vukas, The extension of the jurisdiction of the coastal States in the Adriatic Sea, in Natalino Ronzitti (ed.), I rapporti di vicinato dell’Italia con Croazia, Serbia-Montenegro e Slovenia (2005) pp. 251-268; idem., State practice in the aftermath of the UN Convention on the Law of the Sea: The exclusive economic zone and the Mediterranean Sea, in A. Strati, M. Gavouneli & N. Skourtos (eds.), Unresolved Issues and New Challenges to the Law of the Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 251-258. 169

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side, Italy has delayed the presidential decree specifying the limits of the Italian zona di protezione ecologica 178 while bilateral negotiations are in progress with the neighbours. The de facto freezing of maritime claims is even more pronounced in respect to the full jurisdictional powers in the exclusive economic zone. Morocco was one of the first to claim a comprehensive 200-mile exclusive economic zone in 1981, for both its Atlantic and Mediterranean waters 179 . Egypt had already indicated in 1983 that it would “...exercise … the rights attributed to it by the provisions of Parts V and VI of the … Convention … in the exclusive economic zone situated beyond and ad jacent to its territorial sea in the Mediterranean Sea and in the Red Sea.” 180 ;

but it seems that the zone has become functional only upon the conclusion of the 2003 EEZ delimitation agreement with the Republic of Cyprus181 . Indeed, the coming into force of that agreement necessitated the retroactive declaration of the Cypriot exclusive economic zone 182 – a legal pirouette to minimise reactions from the neighbouring Turkey; but to no avail 183 . It becomes thus clear that the EEZ concept has (acquired? – most probably; but such acquisition was immediate and acquiesced by the States) an inherent flexibility both in terms of spatial delimitation and of substantive content, See article 1 paragraph 2 of Legge no. 61 di 8 febbraio 2006, supra note 153. 179 Dahir no. 1-81-179 of 8 April 1981 promulgating Law no. 1-81 of 18 December 1980; see also the 1992 Fisheries Agreement between the European Community and the Morocco, OJ L 99, 31 December 1992. For an overview see Saïd Ihraï, Les zones maritimes marocaines : L’état des lieux, 6 Revue de l’INDEMER 2002, pp. 87-107; Abdelkader Lahlou, Une nouvelle approche de la relation halieutique Union européenne – Maroc : D’un accord de dimension politique à une convention à vocation économique, in Casado Raigón (éd.), supra note 122, pp. 39-46. 180 Statement made upon ratification on 26 August 1983; available at . 181 Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the delimitation of the delimitation of the exclusive economic zone, concluded in Cairo on 17 February 2003 and entered into force on 7 March 2004; text available at . For a general presentation see Emmanuella Doussis, L’Accord du 17 février 2003 entre Chypre et l’Égypte sur la délimitation de leurs zones économique exclusives : Bref commentaire, 9 ADM 2004, pp. 143-155; Irini Papanicolopulu, Il confine marino. Unità o pluralità? (Giuffrè, Milano 2005) at pp. 255-257. 182 Promulgated by Law 64 (I)/2004,              , Official Gazette of the Republic Annex I, no. 3831 of 5 April 2004; text available at . At the same time Cyprus also promulgated a contiguous zone of 12 miles; Law 63(I)/2004, ibid . 183 For the Turkish objection and the Cyprus Statement of Position see Report of the Secretary-General to the General Assembly, Doc. A/60/63 of 5 March 2005, paragraph 11; available at . Turkey has declared an exclusive economic zone in the Black Sea by Decree No. 86/11264 of the Council of Ministers, Official Gazette, 17 December 1986; available at . 178


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which allows the coastal State to essentially pick and choose the specific functions it wishes to exercise in the marine area it decides to designate as such. In view of the wide range of available options, including those not explicitly referred to in the text of the Law of the Sea Convention 184 , the coastal State could well attempt to concoct its own understanding of what constitutes an exclusive economic zone and what functions it can exercise therein. In so doing, the State fiddles with the border between the acceptable variation – or even conceivably: innovation – and the outright breach of the Law of the Sea Convention, which thus becomes increasingly vague and difficult to discern. Examples abound of States seeking to push a little further the acceptable limit, usually in pursuit of an equally worthy (or simply: valued) objective, the typical case being the protection of the environment 185 . However, for each such daring move there seems to be an equally robust reaction: the tension between the coastal State and the world community, personified in this case mostly by flag States, remains fluid and strong. There is, however, an inescapable conclusion to be drawn from recent practice: a coastal State may well pursue unilateral interests but it can never act in a unilateral manner. Time and again, individual initiatives have been condemned and often frustrated whereas multilateral action has inevitably been shown to be much more effective – and eventually successful. On the other hand, one cannot underestimate the propulsion power of a strongly motivated unilateral action in a decentralised international system 186 . The threat of unilateralism seems to have become both the weapon of choice and the best available means to reach a mutually acceptable solution on the global level as all parties remain convinced that, at the end of the day, universal problems require universal solutions: nothing can be more universal in char-

Indeed, INDEMER has distinguished in its 2001 Colloque between, on the one hand, traditional maritime zones, i.e. the territorial sea, international straits, the exclusive economic zone, and, on the other hand, ‘zones maritimes non prévues par la Convention’, i.e. fisheries zones, specially protected areas and sea-mammals sanctuaries; supra note 166. 185 See, instead of many others, Ilona Chayne, Environmental unilateralism and the WTO/GATT system, 24 Georgia JICL 1995, pp. 433-465; Laurence Boisson de Chazournes, Unilateralism and environmental protection: issues of perception and reality of issues, 11 EJIL 2000, pp. 315-338. 186 For a brief walk through a vast field see Philippe J. Sands, ‘Unilateralism’, values and international law, 11 EJIL 2000, pp. 291-302; Tom J. Farer, Beyond the Charter frame: Unilateralism or condominium?, 96 AJIL 2002, pp. 359-364; Madeline H. Morris, Terrorism and unilateralism. Criminal jurisdiction and international relations, 36 Cornell ILJ 2004, pp. 473489; John B. Attanasio (ed.), Multilateralism v. unilateralism. Policy choices in a global society (British Institute of International & Comparative Law, London 2004). 184

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acter and impact than the sea and the environment. The scene is therefore set for many more acts to a never-ending play of characters.

CHAPTER 4

FISHERIES JURISDICTION IN THE HIGH SEAS Although navigation and fisheries have always been the two more traditional uses of the seas, both long created freedoms of the high seas, any similarity in their juridical treatment remains superficial. In contrast to navigation, which relates to the appropriate use of the same pool of water (barring climate change modifications) and thus becomes conducive to spatial appropriation, fishing relates to the acquisition and exploitation of a commodity, which, at the end of the day, has proved exhaustible. In the words of Grotius: “and if it were possible to prohibit … fishing, for in a way it can be maintained that fishing is exhaustible, still it would not be possible to prohibit navigation, for the sea is not exhausted by that use.” 1 .

Coupled with the continuous movement of fish, which stubbornly refuse to remain within man-made boundaries, any attempt at regulation must necessarily take into consideration the fact that fishing remains a ‘common property natural resource’ 2 , subject to property rights only once it is removed from the sea. Therein lies the difficulty in codifying and developing international fisheries law. Fishing interests propagate the greatest possible open space available to common use, thus keeping at a minimum zones of coastal State jurisdiction. Historical experience, however, teaches us that the exploitation of common resources is by definition inefficient 3 : when that resource is also exhaustible, the need to agree on commonly acceptable principles regulating such exploitation becomes imperative. Indeed, exploitation in that setting does not simply denote the management of the resource but also, much more Hugo Grotius, The Freedom of the Seas, or the right which belongs to the Dutch to take part in the East Indian trade. A dissertation (translated with a revision of the Latin text of 1633 by Ralph van Deman Magoffin, New York 1916) at p. 34, text available at the Grotius collection, . For the modern-day discussion see W. Frank Newton, Inexhausti bility as a law of the sea determinant, 16 Texas JIL 1981, pp. 396-432. 2 R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press 1999) at p. 281. See also Grotius’ reference to Athenaus: “The sea is the common property to all but the fish are the private property of him who catches them”; supra, at p. 25. 3 Thus the seminal Garrett Hardin, The tragedy of the commons, 162 Science 1968, pp. 1243-1248. 1

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urgently, the preservation of that valuable commodity for the benefit of the present and future generations. In the decentralised system of the international community, any such law-making exercise instantly acquires an additional element of difficulty and thus uncertainty – and immediately raises the question of proper and effective implementation. The Law of the Sea Convention has been placed squarely in the midst of this legal and economic conundrum, attempting at the same time to respect traditional concepts of jurisdiction, to satisfy the increasing needs of the world community for sustenance and to create a system capable to address the rising and often unforeseen challenges of the future. 1. THE TRADITIONAL REGULATION OF HIGH SEAS FISHERIES Although fisheries was such an old use of the sea, it was only in the second half of the 20th century that the international community was able to codify international fisheries law in a single instrument. The 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas 4 was at the same time the culmination of the zonal approach to fisheries management and the turning point for the regulation of fisheries. Traditional in its approach, it allocated coastal fisheries to the jurisdiction of the coastal State within its territorial waters – and stopped there. Although it referred to the ‘special interest’ of the coastal State in the conservation of natural resources to areas adjacent to its territorial sea 5 , it nevertheless reiterated the customary freedom of fishing in the high seas 6 , first affirmed in the 559 UNTS 285. See in general André Gross, La Convention sur la pêche et la conservation des ressources biologiques de la haute mer, RCADI 1959-II, pp. 3-89; M. Doliver Nelson, The development of the legal regime of high seas fisheries, in Alan Boyle & David Freestone (eds.), International law and sustainable development (Oxford 1999) pp. 113-118. 5 Article 6 paragraph 1 of the Convention reads: “A coastal State has a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to its territorial sea”; ibid ., text also available at . For State practice, especially that of Canada, see J.L. Meseguer, Le régime juridique de l’exploitation de stocks communs de poissons au-delà des 200 miles, 28 AFDI 1982, pp. 884-899. See also the La Bretagne arbitration, Dispute concerning filleting within the Gulf of St. Laurence, Canada v. France, award of 17 July 1986, 90 RGDIP 1986, pp. 713-786; W.T. Burke, Coastal State fishery regulation under international law: A comment on the La Bretagne award of July 17, 1986 (The arbitration between Canada and France), 25 San Diego LR 1988, pp. 495-533. 6 Article 1 of the Convention reads: “All States have the right for their nationals to engage in fishing on the high seas, subject (a) to their treaty obligations, (b) to the interests and rights of coastal States as provided for in this Convention, and (c) to the provisions contained in the following articles concerning conservation of the living resources of the high seas”; ibid . 4

FISHERIES JURISDICTION IN THE HIGH SEAS

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Bering Sea arbitration 7 . The ‘special interest’ language lies at the root of the ICJ decision in the Fisheries Jurisdiction cases, where the Court held that a coastal State dependant on fishing for its socio-economic livelihood enjoyed in certain circumstances preferential rights of access to high seas resources under customary law. As a corollary to such rights, the Court also found that: “Both States have an obligation to take full account of each other’s rights and of any fishery conservation measures, the necessity of which is shown to exist in those waters. It is one of the advanced of maritime international law, resulting from the intensification of fishing, that the former laissez-faire treatment of the living resources of the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all. Consequently, both parties have the obligation to keep under review the fishery resources in the disputed waters and to examine together, in the light of scientific and other available information the measures required for conservation and development of equitable exploitation of these resources” 8 .

Although the obligation to cooperate was further reaffirmed, preferential access to fishing did not have any decisive effect in either the 1984 Gulf of Maine delimitation9 or the 1993 Jan Mayen case 10 . Reference to continued access to ‘traditional fishing grounds’ is indeed made in the 1999 Yemen Eritrea Maritime Boundary arbitration 11 , conceived as a restriction of the ju Behring Sea Fur Seals arbitration, Great Britain v. United States, Arbitration Award (Paris, 15 August 1893), 1 Moore’s International Arbitration Awards 1898, pp. 755-917; 1 IELR 2000, pp. 43-88. 8 Fisheries Jurisdiction cases, UK v. Iceland, ICJ Reports 1974, paragraph 72; Federal Re public of Germany v. Iceland, ICJ Reports 1974, paragraph 64; both available at . See, instead of many others, R.R. Churchill, The Fisheries Jurisdiction case: The contribution of the International Court of Justice to the debate on coastal States’ fisheries rights, 24 ICLQ 1975, pp. 82-105. 9 Case concerning delimitation in the maritime boundary in the Gulf of Maine area, Canada v. USA, ICJ Reports 1984, available at . 10 Case concerning maritime delimitation in the area between Greenland and Jan Mayen, Denmark v. Norway, ICJ Reports 1993, available at . See, instead of many others, Haritini Dipla, L’arrêt de la Cour internationale de justice en l’affaire de la délimitation maritime dans la région située entre le Groenland et Jan Mayen, RGDIP 1994, pp. 899-930; María Pilar Pozo Serrano, La sentencia de la CIJ de 14 junio de 1993 sobre la delimitación de la región situada entre Groenlandia y Jan Mayen, 49 REDI 1997, pp. 117-133. See also Lewis E. Queirolo, Richard S. Johnston & Zhang Zhengkun, The nature and evolution of cooperative fishing arrangements in extended jurisdiction zones, 21 Marine Policy 1997, pp. 255-266. 11 PCA, In the matter of an Arbitration pursuant to an Agreement to arbitrate dated 3 Octo ber 1996 between the Government of the State of Eritrea and the Government of the Republic of Yemen, Award of the Arbitral Tribunal in the second stage of the proceedings (Maritime Delimitation), 17 December 1999, paragraphs 108-111; text available at . For a thorough discussion see Nuno Sérgio Marques Antunes, The 1999 Eritrea-Yemen mari7

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risdictional powers of the neighbours over their respective maritime zones and imposing upon them a further obligation to “make mutually agreed regulations for the protection of this traditional fishing regime” 12 , which would also include any administrative measures taken in view of environmental considerations “impacting upon these traditional rights” 13 . One the other hand, in 2006 the alleged ‘critical dependence’ of Barbadian fishermen upon access to traditional fishing grounds was not considered sufficient by the Arbitral Tribunal to have an impact upon the determination of an equidistant delimitation line in the western sector of the boundary between Barbados and Trinidad & Tobago; in mitigation, the Tribunal imposed upon Trinidad & Tobago the obligation “… to negotiate in good faith an agreement with Barbados that would give Barbados access to fisheries within the EEZ of Trinidad and Tobago, subject to the limitations and conditions spelled out in that agreement and to the right and duty of Trinidad and Tobago to conserve and manage the living resources within its jurisdiction” 14 .

The cooperation restriction of the jurisdictional rights of the coastal State fully conforms with the letter and the spirit of the Law of the Sea Convention, which has severely truncated the freedom of fishing by enclosing large parts of the high seas into 200 miles of exclusive economic zones where the coastal State has the exclusive right to control access, exploitation and conservation of the fisheries resources 15 . As more than 90% of commercial fisheries are located within the EEZ under the jurisdiction of the coastal State, it time delimitation award and the development of international law, 50 ICLQ 2001, pp. 299344, especially at pp. 304-305. 12 Ibid ., paragraph 109. 13 Ibid . 14 Arbitral Tribunal constituted pursuant to Article 287 and in accordance with Annex VII of the UN Convention on the Law of the Sea, In the matter of an arbitration between Barbados and the Republic of Trinidad & Tobago, Award, 11 April 2006, paragraph 292; available at . For a first presentation see Yoshifumi Tanaka, Arbitral Tribunal Award, Annex VII LOSC, Barbados v. Trinidad and Tobago, Award of the Arbitral Tribunal constituted pursuant to Article 287 and in accordance with Annex VII of the UN Convention on the Law of the Sea: The Barbados and the Trinidad and Tobago case (11 April 2006), 21 TIJMCL 2006, pp. 523-532, at p. 528; Philippe Weckel & Guillaume Areou, Tribunal arbitral de la mer (Annexe VII CNUDM), Sentence du 11 avril 2006, Délimitation de la ZEE et du plateau continental (Barbade c. Trinité-et-Tobago), RGDIP 2006, pp. 711-721; Barbara Kwiatkowska, Barbados/Trinidad and Tobago, Award on Jurisdiction and Merits, at

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becomes evident that the collapse of many domestic fisheries and the associated overexploitation of commercial fisheries worldwide 16 can be safely attributed to the shortcomings of domestic jurisdiction 17 . With the dual purpose of conservation and utilisation of the living resources in the EEZ in mind, the coastal State is obligated to promote the ob jective of optimum utilisation18 while determining the total allowable catch (TAC) 19 , the maximum amount of fish which may be harvested in its exclusive economic zone. Although both obligations are drafted in terms of an exclusive right, yet the determination of a final number is subject to an impressive array of conditions. The coastal State must ensure that the maintenance of such living resources “is not endangered by over-exploitation” 20 . With a view to accomplish this exalted task and “taking into account the best scientific evidence available” 21 , the coastal State must adopt “proper conservation and management measures” 22 , which “shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.” 23 ,

while taking For some impressive numbers see FAO, State of the world fisheries and aquaculture (SOFIA) 2004, available at ; Kristina M. Gjerde, High seas fisheries management under the Convention on the Law of the Sea, in David Freestone, Richard Barnes & David Ong (eds.), The Law of the Sea. Progress and Prospects (Oxford 2006) pp. 281-307, especially at pp. 282-290. 17 For the pitfalls of domestic jurisdiction in fisheries see Bernard H. Oxman, The territorial temptation: A siren song at sea, 100 AJIL 2006, pp. 830-851, at p. 849; Richard Barnes, The Convention on the Law of the Sea: An effective framework for domestic fisheries conservation?, in Freestone, Barnes & Ong (eds.), supra, pp. 233-260. 18 Article 62 paragraph 1 LOSC. 19 Article 61 paragraph 1 LOSC. 20 Article 61 paragraph 2 LOSC. It is seems that the mere commercial exhaustion of the available resources is not the worst outcome of the depletion of a species: overfishing can create a trophic cascade, whereby the ecosystem structure is changed so drastically that recovery prospects for formerly dominant species are diminished; in other words: the fish would not return ever; Gjerde, supra note 16, at pp. 283, also quoting Kenneth T. Frank, Brian Petrie, Jae S. Choi & William C. Leggett, Trophic cascades in a formerly cod-dominated ecosystem, 308 Science 2005, pp. 1621-1623. 21 Ibid . 22 Ibid . 23 Article 61 paragraph 3 LOSC. 16

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“into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened”24 .

It is quite clear that the proliferation of such terms and conditions makes the practical implementation of the rule a difficult puzzle to solve. It is perhaps the best example of the split personality demonstrated by the Law of the Sea Convention in respect of fishing. On the one hand, the Convention is fêted as “a significant innovation in incorporating the species to the policies relating to conservation and management” 25 ; on the other hand, the delimitation of the exclusive economic zone remained “the pragmatic creation of positive law” 26 without any geographical, ecological or biological consideration taken into account. The traditional concept of jurisdiction finds therein its conceptual limitation: even the best national measures of preservation and management of the living resources remain fragmented and partial attempts to address a global problem – and generate calls for closer cooperation as an indispensable condition for the operation of the system 27 . The obligation to cooperate becomes then both a necessary concomitant of action and a palliative for any malaise. The multiplicity of national solutions in the zones of exclusive jurisdiction requires concerted action, for any shred of effectiveness to be found: hence, the obligation under article 61 of the Law of the Sea Convention for the coastal State to cooperate, as appropriate, with competent international organisations at the subregional, regional or global level – and not simply with other States tout court . A first element of interaction – and at the same time, an indication of the ecosystem approach hinted at in the Law of the Sea Convention 28 – may be Article 61 paragraph 4 LOSC. Francisco Orrego Vicuña, The changing international law of high seas fisheries (Cam bridge 1999) at p. 24. The LOS Convention includes specific provisions for straddling stocks: article 63; for highly migratory species: article 64; marine mammals: article 65; anadromous stocks: article 66; catadromous stocks: article 67; sedentary species: article 68 LOSC; see in general John Warren Kindt, The law of the sea: anadromous and catadromous fish stocks, sedentary species and the highly migratory species, 11 Syracuse JILC 1984, pp. 9-46. 26 Barnes, supra note 17, at p. 237. See also W.T. Burke, The Law of the Sea Convention provisions on conditions of access to fisheries, 63 Oregon LR 1984, pp. 73-119. 27 For a thorough discussion see Giorgio Pontecorvo, The enclosure of the marine commons, adjustment and redistribution, 12 Marine Policy 1988, pp. 361-372; Ellen Hey, The re gime for the exploitation of transboundary marine fisheries resources (Martinus Nijhoff, 1989) at pp. 34-35; William T. Burke, Importance of the 1982 Convention on the Law of the Sea and its future developments, 27 ODIL 1996, pp. 1-4. 28 Thus also Erik Jaap Molenaar, Ecosystem-based fisheries management, commercial fisheries, marine mammals and the 2001 Reykjavik Declaration in the context of international law, 17 TIJMCL 2002, pp. 561-595, at p. 575; Scott Parsons, Ecosystem considerations in 24 25


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found in the coastal State’s obligation to grand to third parties access to the living resources of the exclusive economic zone 29 , provided that it does not have the capacity to harvest the entire allowable catch, with a view to achieve optimum utilisation30 of the commonly shared resource allocated to its jurisdiction. In so doing, the coastal State would have to take into consideration another voluminous cloud of terms and conditions, which would include “all relevant factors, including, inter alia, the significance of the living resources of the area to the economy of the coastal State concerned and its other national interests, the provisions of articles 69 [on the rights of land-locked States] and 70 [on the rights of geographically disadvantaged States], the requirements of developing States in the subregion or region in harvesting part of the surplus and the need to minimise economic dislocation in States whose nationals have habitually fished in the zone or which have made substantial efforts in research and identification of stocks” 31 .

The practicalities of such access are to be set out in agreements concluded between the interested parties 32 , whereby the visitors undertake to comply with the conservation measures and domestic regulations of the coastal State 33 . In practice (and in spite of all this exercise in verbosity) the coastal State remains its own judge on the determination of its own harvesting capacity, any allocation of surplus or the adoption of conservation and management measures: indeed, disputes over the living resources in the zones under coastal State jurisdiction are expressly excluded from the compulsory dispute settlement mechanism of the Law of the Sea Convention 34 . The Law of the Sea Convention is much more specific in its attempt to organise inter-State cooperation with regard to straddling stocks and highly migratory species, which, by definition, defy maritime boundaries – it is also in these provisions where the ecosystem approach becomes slightly more visible. Thus when ‘shared stocks’ of the same species occur in the exclusive economic zones of the two or more coastal States, these States are called upon “to agree upon the measures necessary to coordinate and ensure the fisheries management: Theory and practice, 20 TIJMCL 2005, pp. 381-422. See also Dan Tarlock, Ecosystems, in Daniel Bodansky, Jutta Brunnée & Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford 2007) pp. 574-596. 29 Article 62 paragraph 2 LOSC. 30 Article 62 paragraph 1 LOSC. On the technical background of such decisions see Re becca Metzner, Fishing aspirations and fishing capacity: Two key management issues, 20 TIJMCL 2005, pp. 459-478. 31 Article 62 paragraph 3 LOSC. 32 Article 62 paragraph 2 LOSC. 33 Article 62 paragraph 4 LOSC. 34 Article 297 paragraph 3 LOSC. See also Barnes, supra note 17, at pp. 245-246; Burke, supra note 26, at p. 81.

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conservation and development of such stocks” 35 . From a jurisdictional point of view, this obligation of cooperation – which, incidentally, remains an obligation of conduct rather than an obligation of result: “shall seek to …” 36 – remains a typical obligation of coordination, at best an exchange of jurisdictional powers between neighbours. Things start getting slightly more interesting in the obligation of coastal States, which find in their exclusive economic zone “the same stock or stocks of associated species” as that occurring “in an area beyond and adjacent to that zone” 37 . In such a case, both the coastal State and the States “fishing for such stock in the adjacent area” are bound to seek to agree “either directly or through appropriate subregional or regional organisations” 38 upon measures necessary for the conservation of these stocks not just in the EEZ, a zone under exclusive coastal State jurisdiction, but also “in the adjacent area” 39 , presumable an area of the high seas. The same pattern is emphatically reiterated in respect of highly migratory species, where the obligation to cooperate “directly or through appropriate international organisations with a view to ensuring conservation and promoting the objective of maximum utilisation of such species throughout the region, both within and beyond the exclusive economic zone” 40

extends also to a duty of “the coastal State and other States whose nationals harvest these species in the region” 41 not only to formally establish appropriate international organisations where none exists but also to effectively “participate in [their] work” 42 . The extension of State jurisdiction to the high seas, either directly or as an aggregate of communal action through an international organisation, constitutes a new aspect of functional jurisdiction, another novelty of the Law of Article 63 paragraph 1 LOSC. For a thorough discussion of such shared stocks see Robin R. Churchill, The management of shared fish stocks: The neglected ‘other’ paragraph of article 63 of the UN Convention on the Law of the Sea, in Anastasia Strati, Maria Gavouneli & Nikos Skourtos (eds.), Unresolved issues and new challenges to the law of the sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 3-19. 36 Ibid . For the nature of the obligation see Moritaka Hayashi, The management of trans boundary fish stocks under the LOS Convention, 8 TIJMCL 1993, pp. 245-261, at p. 251; Tullio Treves, Codification du droit international et pratique des États dans le droit de la mer, 223 RCADI 1990-IV, pp. 9-302, at p. 231. 37 Article 63 paragraph 2 LOSC. 38 Ibid . 39 Ibid . 40 Article 64 LOSC. 41 Ibid . 42 Ibid . 35


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the Sea Convention. The risk of using such an obligation to jointly act as a pretence for unilateral action was naturally immediately realised and testifies to the incomplete nature of the relevant provision 43 . The example of Canada is illustrative: The promulgation of the Coastal Fisheries Protection Act 44 was ostensibly caused by the dysfunction of the regional fisheries system, the North Atlantic Fisheries Organisation, and gave rise to a fierce reaction by third States, notably the European Community, triggering a turbot war 45 . The situation almost got out of hand in 1995 with the arrest of the Estai, a Spanish trawler, outside the Canadian EEZ. Litigation ensued before the International Court of Justice 46 , before a settlement was reached in the 1995 Canada-European Community Agreed Minute on the Conservation and Management of Fish Stocks 47 . The obligation of institutionally concerted action becomes even more crucial in the high seas, where the individuality of each flag State reigns su preme and may easily nullify any attempt at conservation or even rational ex ploitation. Indeed, the exclusivity of coastal State jurisdiction in the EEZ, undoubtedly with its formidable enforcement powers included, has also pushed the world fisheries both outwards and deeper: between 1992 and 2002 the global marine fish capture in the high seas rose from 5% to 11% of the total Thus also Treves, supra note 36, at p. 233; Peter G.G. Davies & Catherine Redgwell, The international legal regulation of straddling fish stocks, BYBIL 1996, pp. 201-274, at pp. 240-241; Jean-François Pulvenis, Vers une emprise des états riverains sur la haute mer au titre des grands migrateurs?, 35 AFDI 1989, pp. 774-806; Barbara Kwiatkowska, Creeping jurisdiction beyond 200 miles in the light of the 1982 Law of the Sea Convention and State practice, 22 ODIL 1991, pp. 153-187. 44 Coastal Fisheries Protection Act, RSC, ch. C-33 (1985), as amended by SC ch. 14 (1994), 33 ILM 1994, pp. 1383-1388, also available at . For a general discussion, both for and against see Michael Sean Sullivan, The case in international law for Canada’s extension of fisheries jurisdiction beyond 200 miles, 28 ODIL 1997, pp. 203-268; Paul Fauteux, The Canadian legal initiative in high seas fishing, 4 YBIEL 1993, pp. 51-77; Laurent Lucchini, La loi canadienne du 12 mai 1994 : la logique extrême de la théorie du droit préférentiel de l’état côtier en haute mer au titre des stocks chevauchants, AFDI 1994, pp. 864-875. 45 See, instead of many others, Peter Davies, The EC/Canadian fisheries dispute in the Northwest Atlantic, 44 ICLQ 1995, pp. 927-939; Christopher Joyner & Alejandro von Gustedt, The turbot war of 1995: Lessons for the law of the sea, 11 TIJMCL 1996, pp. 425-458; David R. Teece, Global overfishing and the Spanish-Canadian turbot war: Can international law protect the high-seas environment?, 8 Colorado JIELP 1997, pp. 89-125; Yann-Huei Song, The Canada-European Union turbot dispute in the Northwest Atlantic: An application of the incident approach, 28 ODIL 1997, pp. 269-311. 46 Fisheries Jurisdiction case, Spain v. Canada, ICJ 1995, available at ; Louise de la Fayette, The Fisheries Jurisdiction case (Spain v. Canada), Judgment on jurisdiction of 4 December 1998, 48 ICLQ 1999, pp. 664-672. 47 Agreed on 20 April 1995, 34 ILM 1995, pp. 1260-1278; see also C. Joyner, On the borderline? Canadian activism on the Grand Banks, in Olav Schram Stokke (ed.), Governing high seas fisheries: The interplay of global and regional regimes (Oxford 2001) pp. 207-234. 43

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yield, with more than 30% of it constituting illegal, unreported and unregulated (IUU) fishing48 . The purpose well defined, the practicalities of implementation remained vague. There is nothing in addition to this announcement of jurisdiction to substantiate the obligations accrued upon States in the high seas area. The provisions relating to the conservation and management of the living resources of the high seas follow the same pattern and do not offer much comfort, either: under article 118 of the Law of the Sea Convention, States whose nationals engage in fishing in the high seas “shall enter into negotiations with a view to taking the necessary measures for the conservation of the living resources concerned” 49 ,

including the establishment of “subregional or regional fisheries organisations to this end” 50 . Although the eventual mandate of such organisations, as part of appropriate State action, is again voluminously described in the framework of the terms and conditions guiding conservation measures 51 , the ques Gjerde, supra note 16, at p. 284; E. Meltzer, Global overview of straddling and highly migratory fish stocks: The non-sustainable nature of high seas fisheries, 25 ODIL 1994, pp. 255-328; Rachel Baird, Illegal, unreported and unregulated fishing: An analysis of the legal, economic and historical factors relevant to its development and persistence, 5 Melbourne JIL 2004, pp. 299-334. The problem of IUU fisheries has caused a veritable avalanche of actions, without evident success; among them the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing, adopted by consensus at the 24th session of the FAO Committee on Fisheries on 2 March 2001 and endorsed by the 120th session of the FAO Council on 23 June 2001, text available at ; the High Seas Task Force, created by certain States and NGOs in the context of the OECD Committee on Fisheries: Final Report of the Ministerially-led Task Force on IUU fishing on the high seas, Closing the net. Stopping illegal fishing in the high seas, March 2006, text available at ; or the Communication from the Commission on a Community Action Plan for the eradication of IUU fishing , COM (2002) 180, 28 May 2002, as well as the 2006 Consultation Paper on the initiatives envisaged by the Commission to improve the fight of the European Community against illegal, unreported and unregulated fishing, both texts available at ; Carl-Christian Schmidt, Economic drivers of Illegal, Unreported and Unregulated (IUU) Fishing, 20 TIJMCL 2005, pp. 479-507; Diane Erceg, Deterring IUU fishing through State control over nationals, 30 Marine Policy 2006, pp. 173-179; L. Griggs & G. Lugten, Veil over the nets (unravelling corporate liability for IUU fishing offences), 31 Marine Policy 2007, pp. 159-168. 49 Article 118 LOSC. 50 Ibid . See also Rafael Casado Raigon, L’application des dispositions relatives à la pêche en haute mer de la Convention des Nations Unies sur le doit de la mer, 8 Espaces et ressources maritimes 1994, pp. 210-219; Djamchid Momtaz, La conservation et la gestion des stocks de poissons chevauchants et grands migrateurs, 7 Espaces et ressources maritimes 1993, pp. 47-61; Carl August Fleischer, The new régime of maritime fisheries, 209 RCADI 1988-II, pp. 99-222. 51 Article 119 LOSC. reads: “1. In determining the allowable catch and establishing other conservation measures for the living resources of the high seas, States shall: (a) take measures 48


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tion of enforcement seems to be totally absent. The only rule remains the exercise of a traditional flag State jurisdiction: “All States have the duty to take, or to co-operate with other States in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas” 52 .

The defects of flag State jurisdiction are well known – even regarding the much more massive shipping industry. The suggestion that a lax flag State machinery, unable and unwilling to properly police bulky ocean-going vessels, would actually effectively control the actions of diverse fishing fleet beggars belief. It becomes therefore clear that the jurisdictional novelty of the Law of the Sea Convention would be – and indeed, has been – bypassed by reality and time, unless complemented immediately with effective enforcement measures. By the time of the 1992 Rio UN Conference on Environment and Development (UNCED), the necessity of coordinated action was recognised and, indeed, reflected in chapter 17 of Agenda 21, where paragraph 17.46 reproduces in part the relevant articles of the Law of the Sea Convention and then adds a call upon States “to ensure effective monitoring and enforcement with respect to fishing activities” 53 . Binding obligations of this kind, however, can only be found in conventional texts, presumably concluded with the primacy clause of article 311 of the Law of the Sea Convention in mind, which further prohibits any subsequent agreements between the parties not compatible with the Convention 54 . 2. I NSTITUTIONAL APPROACHES TO JURISDICTIONAL CHALLENGES A first attempt to further specify the rights and obligations of States regarding high seas fisheries was made in the context of the Food and Agriculwhich are designed, on the best scientific evidence available to the States concerned, to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global; (b) take into consideration the effects on species associated with or dependent upon harvested species with a view to maintaining or restoring populations of such associated or dependent species above levels at which their reproduction may become seriously threatened. …”. 52 Article 112 LOSC. 53 Text available at . 54 Alan Boyle, Further development of the 1982 Convention on the Law of the Sea: Mechanisms for change, 54 ICLQ 2005, pp. 563-584 = in Freestone, Barnes & Ong, supra note 16, pp. 40-62.

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ture Organisation (FAO), the competent organisation for fisheries purposes. The Code of Conduct on Responsible Fisheries is, strictly speaking, a non binding document; however, the provisions of the Code reflect to a large extent the general principles of fisheries law and as such have acquired customary law status. The essence of the Code is best captured in article 6 thereof, which declares that “the right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resources” 55 .

The Code is global in character, covering the whole fishing cycle and not just high seas fisheries, and addressing obligations to individuals involved in fisheries as well as States to apply a precautionary approach 56 and seek to maintain biodiversity 57 on the basis of the ecosystem approach 58 ; all princi ples which do not readily appear in the Law of the Sea Convention and thus already considered to have modified its fisheries provisions, as stated in the Southern Bluefin Tuna cases 59 . Naturally, the Code has limited enforcement powers: rather, it attempts to further effective flag State control 60 , with the parallel enhancement of port State jurisdiction 61 . The only truly binding part of the Code, forming a integral part of it in an interesting melange of hard and soft law provisions 62 , is the 1993 FAO Agreement to Promote Compliance with Conservation Meas Article 6.1. of the Code of Conduct for Responsible Fisheries, adopted by consensus at the 28th session of the FAO Conference on 31 October 1995; available at . See in general W.R. Edeson, The Code of Conduct for Responsible Fisheries, 11 TIJMCL 1996, pp. 233-238; Gerald Moore, The Code of Conduct for Responsible Fisheries, in Ellen Hey (ed.), Developments in international fisheries law (Kluwer, The Hague 1999) pp. 91-92. 56 Article 6.5. of the Code of Conduct for Responsible Fisheries, ibid .; see also PierreMarie Dupuy, Le principe de précaution et le droit international de la mer, La mer et son droit. Mélanges offertes à Laurent Lucchini et Jean-Pierre Quéneudec (Pedone, Paris 2003) pp. 205-220; David Freestone, International fisheries since Rio: The continued rise of the precautionary principle, in Boyle & Freestone (eds.), supra note 4, pp. 140-165. 57 Article 6.6. of the Code of Conduct for Responsible Fisheries, supra note 55. 58 Article 6.2. of the Code of Conduct for Responsible Fisheries, ibid. 59 ITLOS, Southern Bluefin Tuna cases (nos. 3 & 4), New Zealand v. Japan; Australia v. Japan, Provisional measures, 1999, paragraphs 77-79; Separate opinion of Judge Laing, paragraphs 16-19; Separate opinion of Judge Treves, paragraph 9; Separate opinion of Judge Shearer; all available in ; 60 Article 8.2. of the Code of Conduct of Responsible Fisheries, supra note 55. 61 Article 8.3. of the Code of Conduct of Responsible Fisheries, ibid. 62 See also W. Edeson, Soft and hard law aspects of fisheries issues, in Myron Nordquist, J.N. Moore & Said Mahmoudi (eds.), The Stockholm Declaration and law of the marine environment (Kluwer Law International, The Hague 2003) pp. 165-182; idem., William Edeson, Sustainable use of marine living resources, 63 ZaöRV 2003, pp. 355-375. 55


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ures in the High Seas 63 , whose main thrust remains the flag State duty to deter reflagging of fishing vessels in order to avoid compliance with conservation measures 64 . A much more effective tool for the management of high seas fisheries is the 1995 UN Agreement for the Implementation of the provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of straddling fish stocks and highly migratory fish stocks 65 , the first global agreement concentrating on high seas fisheries – although the Agreement explicitly requires that the precautionary approach will be universally applied 66 and, moreover, that “conservation and management measures established for the high seas and those adopted for areas under national jurisdiction shall be compatible in order to ensure conservation and management of the straddling fish stocks and highly migratory fish stocks in their entirety” 67 . Approved by FAO Conference Resolution 15/93 on 24 November 1993 under Article XIV of the FAO Constitution, 33 ILM 1994, pp. 968-980, also available at . See in general Gerald Moore, The FAO Compliance Agreement, 10 TIJMCL 1995, pp. 412416; Patricia Birnie, New approaches to ensuring compliance at sea: The FAO Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, 8 RECIEL 1999, pp. 48-55; D.A. Bolton, The Compliance Agreement, in Hey (ed.), supra note 55, pp. 31-54. 64 Alexander Yankov, Reflagging of fishing vessels: Critical assessment of its impact on the enforcement of fishing regulations and the responses thereto, in P. Ehlers, E. MannBorgese & R. Wolfrum (eds.), Marine issues (Kluwer Law International, The Hague 2002) pp. 195-202; Patricia Birnie, Reflagging of fishing vessels in the high seas, 2 RECIEL 1993, pp. 270-276. 65 Opened for signature in New York on 4 December 1995, it entered into force on 11 December 2001; 34 ILM 1995, pp. 1542-1580, also available at . For an overview see Davies & Redgwell, supra note 43; Habib Gherari, L’accord du 4 août 1995 sue les stocks chevauchants et les stocks de poissons grands migrateurs, 100 RGDIP 1996, pp. 367-390; David A. Balton, Strengthening the law of the sea: The new Agreement on straddling stock fish and highly migratory fish stocks, 27 ODIL 1996, pp. 125-151; Moritaka Hayashi, The 1995 Agreement on the conservation and management of straddling and highly migratory fish stocks: Significance for the Law of the Sea Convention, 20 Ocean & Coastal Management 1995, pp. 51-69; David Freestone & Z. Makuch, The new international environmental law of fisheries: The 1995 UN Straddling Stocks Convention, 7 YBIEL 1996, pp. 3-51; André Tahindro, Conservation and management of transboundary fish stocks: Comments in light of the adoption of the 1995 Agreement for the conservation and management of straddling fish stocks and highly migratory fish stocks, 28 ODIL 1997, pp. 1-58. 66 Article 3 paragraph 1 and article 6 of the Agreement. See also in general Fernando González-Laxe, The precautionary principle in fisheries management, 29 Marine Policy 2005, pp. 495-505. 67 Article 7 paragraph 2 in conjunction with article 3 paragraph 1 of the Agreement. For the compatibility discussion see David Freestone, The conservation of marine ecosystems under international law, in D. Bowman & Catherine Redgwell, International law and the conservation of biological diversity (Martinus Nijhoff, 1996) pp. 91-107; David H. Anderson, The 63

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The Agreement was created to amplify the duty to cooperate, as stipulated in articles 63 paragraph 2, 63 and 117 of the Law of the Sea Convention. The “shall seek to agree” language of the Law of the Sea Convention is now transformed to a stricter “shall pursue cooperation” order, which further requires “consultations in good faith and without delay, particularly when there is evidence that the straddling fish stocks and highly migratory fish stocks concerned may be under threat of over-exploitation or where a new fishery is being developed for such stocks” 68 .

Where there is no international organisation in place, coastal States and States fishing in the high seas are obligated to create one 69 . Where there is such an organisation in place “States fishing for the stocks on the high seas and relevant coastal States shall give effect to their duty to cooperate by becoming members of such organisation” 70

whereas third “States having a real interest in the fisheries concerned” are invited to become members without further obstacles or discrimination exercised against them 71 . The enforcement of measures agreed upon by such institutional arrangements is at the same time more intensive and less strict than the enforcement provisions of the Law of the Sea Convention. As with the enforcement of environmental protection regulations, default jurisdiction is again entrusted to the flag State: the State authorities shall act expeditiously, by police and judicial means, to ensure compliance by vessels flying its flag with measures adopted by regional and subregional organisations 72 “irrespective of where violations occur” 73 . Moreover, the applicable sanctions in respect of violations must Straddling Stocks Agreement of 1995 – an initial assessment, 45 ICLQ 1996, pp. 463-475, at pp. 468-470; Roger Jeannel, Le régime en haute mer de la pêche des espèces se trouvant aussi dans une zone économique exclusive, 6 Espaces et ressources maritimes 1992, pp. 123-127; A. Oude Elferink, The determination of compatible conservation and management measures for straddling and highly migratory fish stocks, 5 Max Planck YBUNL 2001, pp. 551-607. 68 Article 8 paragraph 2 of the Agreement. 69 Article 8 paragraph 5 of the Agreement. 70 Article 8 paragraph 3 of the Agreement. 71 Ibid . Naturally, the determination of who is the ‘State having a real interest’ remains at the discretion of the other States members to the international organisation; Erik Jaap Molenaar, The concept of ‘real interest’ and other aspects of cooperation through regional fisheries management mechanisms, 15 TIJMCL 2000, pp. 475-531; Jean-Pierre Quéneudec, La notion d’État intéressé en droit international, 255 RCADI 1995, pp. 343-461. 72 Article 19 paragraph 1 of the Agreement. 73 Article 19 paragraph 1(a) of the Agreement.


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“be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and shall deprive offenders of the benefits accruing from their illegal activities.” 74 .

In the same spirit, the coastal State may board and inspect in the high seas any vessel for which “there are reasonable grounds for believing” that it has been involved in unauthorised fishing within an area under the jurisdiction of that coastal State with the consent of the flag State 75 ; cases of hot pursuit are naturally excluded 76 . Indeed, in contrast to what happens with environmental protection regulations under the Law of the Sea Convention, the coastal State cannot prosecute the offending vessel; it can only request the flag State to provide information on the progress and outcome of the relevant investigations 77 , thus acquiring a droit de regard over the whole procedure. The most innovative provisions of the 1995 Agreement refer to enforcement against violations occurring in the high seas by means of well advertised 78 inspectors designated by any State party to a regional fisheries agreement, who are authorised to board and inspect “fishing vessels flying the flag of another State party to [the] Agreement, whether or not such State party is also a member of the organisation” 79 .

Still, the inspectors cannot prosecute the offending ship themselves: the flag State must be promptly notified of any such action 80 and must act within 3 days, either to investigate and take appropriate enforcement action or authorise the inspecting State to investigate 81 . In case of a serious violation, such as fishing without a valid licence 82 , to which the flag State has failed to respond, the inspectors may remain aboard to secure evidence and eventually lead the Article 19 paragraph 2 of the Agreement. Article 20 paragraph 6 of the Agreement. 76 Ibid.; Erik Molenaar, Multilateral hot pursuit and illegal fishing in the Southern Ocean: The pursuits of the Viarsa 1 and of the South Tomi, 19 TIJMCL 2004, pp. 19-41; W.C. Gilmore, Hot pursuit: The case of R. v. Mills, 44 ICLQ 1995, pp. 949-958. For the concept of hot pursuit in general see Robert C.F. Reuland, The customary right of hot pursuit onto the high seas: Annotations to article 111 of the Law of the Sea Convention, 33 Virginia JIL 1993, pp. 557-589. 77 Article 20 paragraph 3 of the Agreement. 78 According to article 20 paragraph 4 of the Agreement, “[T]he vessels used for boarding and inspection shall be clearly marked and identifiable as being on government service”. 79 Article 21 paragraph 1 of the Agreement (my emphasis). See also Rudiger Wolfrum, Means of ensuring compliance with and enforcement of international environmental law, 272 RCADI 1998, pp. 9-154, at p. 46; C. Joyner, Compliance and enforcement in new international fishing law, 12 Temple ICLJ 1998, pp. 271-300. 80 Article 21 paragraph 4 of the Agreement, in fine. 81 Article 21 paragraph 6 of the Agreement. 82 For the definition of ‘serious violation’ see article 20 paragraph 11 of the Agreement. 74 75

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vessel to the nearest appropriate port 83 ; but still they cannot prosecute: indeed, the flag State may at any point take over the case, requesting the release of the vessel along with the full file84 . As to what would happen, if the flag State keeps ignoring the inspecting State’s calls to act, the Agreement remains silent 85 . It has been argued that under such circumstances the inspecting State may yet prosecute; otherwise, the whole system would grind to a halt 86 . In practice, the offending vessel remains at the port of the inspecting State, subject to the prompt release procedure under 292 of the Law of the Sea Convention. Indeed, the International Tribunal on the Law of the Sea was severely criticised for not using the prompt release mechanism in order to further enhance the effectiveness of measures taken by the inspecting State authorities in application of fishing regulations, as already both the Camouco case 87 and the Confurco case 88 refer to fisheries issues 89 . Instead, dealing in the Volga case with circumstances directly involving enforcement of fisheries conservation and management measures, ITLOS preferred to adjudicate on the reasonableness of the bond required for the release of the vessel and thus remain demurely within the strict boundaries of the task entrusted to it 90 . Nevertheless, the enforcement scheme of the 1995 Agreement is founded on the pre-eminence of regional fisheries organisations (RFOs) rather than Article 21 paragraph 8 of the Agreement. Article 21 paragraph 12 of the Agreement. 85 See also infra, under 3. 86 Orrego Vicuña, supra note 25, at pp. 254-255; see also David H. Anderson, Investigation, detention and release of foreign vessels under the UN Convention on the Law of the Sea and other international agreements, 11 TIJMCL 1996, pp. 165-177; Raymond Goy, Le pêcheur devant le juge pénal en droit international, in Giuseppe Cataldi (éd.), La Méditerranée et le droit de la mer à l’aube du 21e siècle (Bruylant, Bruxelles 2002) pp. 113-130. 87 ITLOS, The Camouco case, Panama v. France, prompt release, 2000; available at ; Bernard H. Oxman & Vincent Bantz, The ‘Camouco’ (Panama v. France) (Judgment), 94 AJIL 2000, pp. 713-721. 88 ITLOS, The Confurco case, Seychelles v. France, prompt release, 2000; available at . See in general Christoph Schwarte, Environmental concerns in the adjudication of the International Tribunal for the Law of the Sea, 16 Georgetown IELR 2003-2004, pp. 421-440. 89 Thus Barnes, supra note 17, at pp. 256-257. 90 ITLOS, The Volga case, Russian Federation v. Australia, 2002, available at ; Donald R. Rothwell & Tim Stephens, Illegal southern ocean fishing and prompt release: Balancing coastal and flag State rights and interests, 53 ICLQ 2004, pp. 171-187; Chester Brown, ‘Reasonableness’ in the law of the sea: the prompt release of the Volga, 16 Leiden JIL 2003, pp. 621-630; Philippe Weckel, Prompte mainlevée, Navire Volga (Fédération de Russie c. Australie), 107 RGDIP 2003, pp. 182-188; Andrienne J. Oppenheim, The plight of the Patagonian toothfish: Lessons from the Volga case, 30 Brooklyn JIL 2004, pp. 293-328. 83 84


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flag-State jurisdiction91 – or, alternatively but in a more traditional setting, contractual arrangements between interested parties, such as the 1999 Barents Sea ‘Loophole’ Agreement 92 or even the highly controversial Galapagos Agreement 93 , which gave rise to a two-pronged dispute before the International Tribunal for the Law of the Sea 94 and the World Trade Organisation panels 95 . The contractual system clearly considers such institutional arrangements a tool for the implementation of the Agreement; an understanding that would also explain why enforcement is also possible against States not participating in the regional organisations: State consent to be bound by the Agreement suffices. Indeed, the central role of RFOs in providing enforcement mechanisms is further reiterated in the direct obligation for all parties to the Agreement not only to create such institutions but also to establish de Daniel Vignes, L’internationalisation des politiques de conservation en haute mer et le rôle des commissions régionales de pêche, 1 ADM 1997, pp. 143-149; Giuseppe Cataldi, Le Commissioni regionale di pesca, in Società italiana di diritto internazionale (SIDI), Il diritto internazionale del mare. Fra usi antichi e nuove forme di utilizzazzione, VI Convegno: Padova, Treviso, Venezia, 24-26 maggio 2001 (Editoriale scientifica, 2002) pp. 23-54. For the latest in this interesting interplay see Tore Henriksen, Geir B. Hønneland & Are Sydnes, Law and politics in ocean governance. The UN Fish Stocks Agreement and regional fisheries re gimes (Martinus Nijhoff, Leiden/Boston 2006) . 92 Agreement between Iceland, Norway and Russia concerning certain aspects of cooperation in the area of fisheries, done in St. Petersburg on 15 May 1999, available at ; Robin R. Churchill, The Barents Sea Loophole Agreement: A ‘coastal State’ solution to a straddling stock problem, 14 TIJMCL 1999, pp. 467-490; Olav S. Stokke, The loophole of the Barents Sea fisheries regime, in Stokke (ed.), supra note 47, pp. 273-301; idem., Managing fisheries in the Barents Sea loophole: Interplay with the UN Fish Stocks Agreement, 21 ODIL 2001, pp. 241-262. The back ground may be found in Thorir Gudmundsson, Cod war on the high seas. Norwegian-Icelandic dispute over “Loophole” fishing in the Barents Sea, 64 Nordic JIL 1995, pp. 557-573. 93 The Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific, concluded in 2000 among Chile, Peru and Ecuador, provided for preferential rights for coastal States and was put on hold as a result of the negotiated truce in the dispute between Chile and the European Community; for the text and recent developments see ; Rosemary Gail Rayfuse, Non-flag State enforcement in high seas fisheries (Martinus Nijhoff, 2004) pp. 315-323; Boyle, supra note 54, at p. 578. 94 ITLOS, Case concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean, Chile v. European Community, 2000, cases sus pended in 2001; orders available at ; Marcos A. Orellana, The swordfish dis pute between the EU and Chile at the ITLOS and the WTO, 71 Nordic JIL 2002, pp. 55-81. 95 Chile – Measures affecting the transit and importation of swordfish, Request for the establishment of a panel by the European Communities, WT/DS193/2, 7 November 2000 (004761); Chile – Measures affecting the transit and importation of swordfish, Agreement between the European Communities and Chile, Communication from the European Communities, WT/DS193/3, 6 April 2001 (01-1770) and WT/DS193.Add.1, 9 April 2001; both available at ; Peter-Tobias Stoll & Silja Vönecky, The Swordfish case: law of the sea v. trade, 62 ZaöRV 2002, pp. 21-35. 91

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tailed boarding and inspection procedures, operating on the principle of nondiscrimination96 . Failing that possibility for regional self-governance, the Agreement provides for a fall-back system, detailed enough to become operational without further ado 97 . In actual fact, the system outlined in article 22 of the Agreement is heavily influenced by the workings of the North Atlantic Fisheries Organisation (NAFO)98 , the 1994 Bering Sea Agreement 99 and the most comprehensive of all fishing arrangements, the Convention and the Committee for the Conservation of Antarctic Marine Living Resources (CCAMLR) 100 , created in the context of the Antarctic Treaty System101 . Operating in this environment, regional fisheries organisations have proliferated, perhaps beyond any expectation, to cover the entire globe in a veritable jungle of acronyms. Some elements of this alphabet soup are more well-known than others: among them the International Whaling Committee

Article 21 paragraph 2 LOSC. 97 Article 21 paragraph 21 paragraph 3 in conjunction with article 22 LOSC. 98 Created by the 1978 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries; 1135 UNTS 369. For its operation see, instead of many others, Rayfuse, supra note 93, pp. 224-259; Elli Louka, International Environmental Law. Fairness, effectiveness and world order (Cambridge 2006) pp. 278-280. 99 Convention on the conservation and management of pollock resources in the Central Bering Sea or the ‘Doughnut Hole’ Convention, adopted on 11 February 1994 and entered into force on 8 December 1995; Rayfuse, supra, pp. 284-295; David A. Balton, The Bering Sea Doughnut Hole Convention: Regional solution, global implications, in Stokke (ed.), su pra note 47, pp. 143-178; Stuart Kaye, Legal approaches to polar fisheries regimes: A com parative analysis of the Convention for the conservation of Antarctic marine living resources and the Bering Sea Doughnut Hole Convention, 26 California Western LJ 1995, pp. 75-114. 100 The Convention was adopted on 20 May 1980 and entered into force on 7 April 1982; text and the latest information available at . For the best presentation of its workings see, instead of many others, Rayfuse, supra note 93, pp. 259-294; idem., Enforcement of high seas fisheries agreements: Observation and inspection under the Convention on the Conservation of Antarctic Marine Living Resources, 13 TIJMCL 1998, pp. 579-605; Louka, supra, pp. 283-286; Olav Schram Stokke, The effectiveness of CCAMLR, in Olav Schram Stokke & Davor Vidas (eds.), Governing the Antarctic: The effectiveness and legitimacy of the Antarctic Treaty System (Cambridge 1990) pp. 120-151; E.J. Molenaar, CCAMLR and Southern Ocean Fisheries, 16 TIJMCL 2001, pp. 465-499; Denzil G.M. Miller, Eugene N. Sabourenkov & David C. Ramm, Managing Antarctic living resources: The CCAMLR ap proach, 19 TIJMCL 2004, pp. 317-363. For an interesting aspect see Maria Giovanna Bozzetti, Il ruolo della Comunità europea nell’attuazione della Convenzione per la conservazione della flora e della fauna marina dell’Antaride (CCAMLR), 18 RGA 2003, pp. 621-642. 101 For the system see in general A. Watts, International law and the Antarctic Treaty System (Cambridge 1992); Davor Vidas, Emerging law of the sea issues in Antarctic Maritime Area: A heritage for the new century? 31 ODIL 2000, pp. 197-222. 96


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(IWC) 102 ; the Commission for the Conservation of Southern Bluefin Tuna (CCSBT)103 , the working of which were at the centre of a dispute settlement extravaganza before the parties returned to the table of negotiations 104 ; the General Fisheries Commission for the Mediterranean (GFCM) 105 ; or even the recently created Caribbean Regional Fisheries Mechanism 106 . However – and Established pursuant to the International Convention for the Regulation of Whaling, done on 2 December 1946 and entered into force on 10 November 1948; 161 UNTS 72. For the latest information on what constitutes a whole different universe see . For an overview see, instead of many others, Patricia W. Birnie, Marine mammals: Exploiting the ambiguities of article 65 of the Convention on the Law of the Sea and related provisions: Practice under the International Convention for the Regulation of Whaling, in Freestone, Barnes & Ong (eds.), supra note 16, pp. 261-280; Michael Heazle, Lessons in precaution: The International Whaling Commission experience with precautionary management, 30 Marine Policy 2006, pp. 496-509. 103 Created by the 1993 Convention for the conservation of southern bluefin tuna; for the text and latest information see ; Rayfuse, supra note 93, pp. 197-203; 104 ITLOS, Southern Bluefin Tuna cases, New Zealand v. Japan, Australia v. Japan, Provisional measures, 1999, available at ; LOSC Annex VII Arbitral Tribunal, Southern Bluefin Tuna cases, Australia v. Japan, New Zealand v. Japan, award of 4 August 2000, available at and . See, among many others, Robin R. Churchill, The Southern Bluefin Tuna cases (New Zealand v. Japan, Australia v. Japan): Order for Provisional Measures of 27 August 1999, 49 ICLQ 2000, pp. 979-990; Alan Boyle, The Southern Bluefin Tuna arbitration, 50 ICLQ 2001, pp. 447-452; Barbara Kwiatkowska, The Australia and New Zealand v. Japan Southern Bluefin Tuna (Jurisdiction and Admissibility) award of the first LOSC Annex VII Arbitral Tribunal, 16 TIJMCL 2001, pp. 239-294; Cesare Romano, The Southern Bluefin Tuna dispute: Hints or a world to come … like or not, 32 ODIL 2001, pp. 313-348; David Freestone, Caution or precaution: “A rose by any other name…”?, 10 YBIEL 1999, pp. 25-32; Raymond Goy, L’affaire du thon à nageoire bleue, 14 Espaces et ressources maritimes 2001, pp. 47-74; Deborah Horowitz, Southern Bluefin Tuna case (Australia and New Zealand v. Japan) (Jurisdiction and admissibility). The catch of Poseidon’s trident: The fate of high seas fisheries in the Southern Bluefin Tuna case, 25 Melbourne ULR 2001, pp. 810-830; Mariko Kawano, L’affaire du thon à nageoire bleue et les chevauchements de juridictions internationales, AFDI 2003, pp. 516-541. 105 Established under article XIV of the FAO Constitution by the Agreement and Rules of Procedure of the General Fisheries Council for the Mediterranean approved by the FAO at its fifth session in 1949; Rayfuse, supra note 93, pp. 192-197; Louka, supra note 98, pp. 282-283. For an overview of the Mediterranean fisheries system see General Fisheries Commission for the Mediterranean, Report of the thirtieth session, Istanbul, 24-27 January 2006 (FAO, Rome 2006); Larry Miranda, Research Guide to international and regional fisheries regulation of the Mediterranean, 2000, available at ; Tullio Scovazzi, The enforcement in the Mediterranean of United Nations resolutions on large-scale driftnet fishing, 2 Max Planck YBUNL 1998, pp. 365-385. 106 Created by the 2002 Agreement establishing the Caribbean Regional Fisheries Mechanism, which, albeit referring to the need to cooperate in order to protect straddling stocks, yet it appears to cover only the exclusive economic zones of the member States; for the latest developments see ; Milton O. Haughton, Robin Mahon, Patrick McConney, G. André Kong & Anthony Mills, Establishment of the Caribbean Regional Fisheries Mechanism, 28 Marine Policy 2004, pp. 351-359. 102

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in spite of the duty of member States to do so – not all regional organisations have elaborated a comprehensive system of boarding and inspection procedures. The example of the NAFO and the CCAMLR has been followed by the Indian Ocean Tuna Commission (IOTC) 107 ; the Inter-American Tropical Tuna Commission (IATTC) 108 , which had already experienced serious problems between the parties 109 ; the International Commission for the Conservation of Atlantic Tunas (ICCAT) 110 ; and the Western and Central Pacific Fisheries Committee (WCPFC) 111 and assorted arrangements in North-East Asia 112 : they have all created often elaborate implementation mechanisms based on the mutual transfer of enforcement jurisdiction between the parties in areas comprising both the exclusive economic zones of the parties and Created as the successor to the Indian Ocean Fishery Commission (IOFC) in 1996 pursuant to the 1993 Agreement for the establishment of the Indian Ocean Tuna Commission, adopted by the FAO Council at its 150th session in November 1993 and entered into force on 17 March 1996; for the text and latest developments see ; Rayfuse, supra note 93, pp. 182-192. 108 Created in 1950 by the Convention between the United States and Costa-Rica for the establishment of an Inter-American Tropical Tuna Commission, to which a number of other States, including France and Spain, have also adhered; for latest developments see ; Rayfuse, supra note 93, pp. 138-157. 109 The fisheries dispute between US and Mexico ended up before the adjudicatory organs of the World Trade Organisation; James Joseph, The tuna/dolphin controversy in the Eastern Pacific Ocean: Biological, economic and political impacts, 25 ODIL 1994, pp. 1-30; B. Kingsbury, The tuna-dolphin controversy, the World Trade Organisation and the liberal pro ject to reconceptualise international law, 2 YBIEL 1994, pp. 1-40. 110 Created in 1969 pursuant to the International Convention for the conservation of Atlantic tunas, signed on 14 May 1966 and entered into force on 21 March 1969; for the latest developments see ; Rayfuse, supra note 93, pp. 157-182; Louka, supra note 98, pp. 281-282. 111 The Convention on the conservation and management of highly migratory fish stocks in the Western and Central Pacific Ocean was signed on 5 September 2000 and entered into force on 19 June 2004; for the text and latest information see ; Louka, supra note 98, pp. 271-275; Violanda Botet, Filling in one of the last pieces of the ocean: Regulating tuna in the Western and Central Pacific Ocean, 41 Virginia JIL 2001, pp. 787-813; T. Aqorau, Tuna fisheries management in the Western and Central Pacific Ocean: A critical analysis of the Convention for the conservation and the management of highly migratory fish stocks in the Western Central Pacific Ocean and its implications for the Pacific island States, 16 TIJMCL 2001, pp. 379-431. It adds to the regulatory regime created by the South Pacific Forum Fisheries Agency Convention, which was signed at Honiara, the Salomon islands, on 10 July 1979 and entered into force on 9 August 1979 in the context of the South Pacific Forum Fisheries Agency; text and further information available at ; Louka, supra note 98, pp. 271-273; William M. Sutherland, Management, conservation and cooperation in EEZ fishing: The Law of the Sea Convention and the South Pacific Forum Fisheries Agency, 18 ODIL 1987, pp. 613-640. 112 Kim Sun Pyo, The UN Convention on the Law of the Sea and new fisheries agreements in the North-East Asia, 27 Marine Policy 2003, pp. 97-109; Chiyuki Mizukami, The fisheries policy of Japan under the new Law of the Sea, 8 Asian YBIL 1998/1999, pp. 59-76. 107


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parts of the high seas. Such measures include the compilation of lists with ‘cooperating parties and entities’ 113 , positive ‘white’ lists of vessels authorised to fish in the RFO area 114 , negative ‘black’ lists of vessels found to be undermining measures adopted by the RFO area 115 , catch documentation schemes 116 , surveillance and information sharing 117 and measures calling for control of nationals involved in non-member flag State operations 118 – or combinations thereof 119 . Among the latest additions to the group is the Committee on the Conservation and Management of Fisheries Resources in the South-East Atlantic Ocean (SEAFO) 120 , which also covers non-migratory species in the high seas See, for instance, the ICCAT Resolution 97-02 on Becoming a contracting party, entity or fishing entity; or the CCSBT Resolution to establish the status of cooperating non-member of the Extended Commission and the Extended Scientific Committee; as quoted by Rosemary Rayfuse, Countermeasures and high seas fisheries, 51 NILR 2004, pp. 41-76 at p. 57. 114 Thus also ICCAT Recommendation 02-22 concerning the establishment of an ICCAT Record of Vessels over 24 metres authorised to operate in the Convention Area; IATTC Resolution C-03-07 on the establishment of a list of longline vessels over 24 metres authorised to operate in the Eastern Pacific Ocean; IATTC Resolution on a Regional Vessel Register; IOTC Resolution 02/05 concerning the establishment of a record of vessels over 24 metres authorised to operate in the IOTC Area; Rayfuse, supra. 115 See, among others, the CCAMLR Conservation Measure 10-06 (2002): Scheme to promote compliance by contracting party vessels with CCAMLR conservation measures; ICCAT Recommendation 02-23 to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the ICCAT Area; IOTC Resolution 02/04 on establishing a list of vessels presumed to have carried out illegal, unregulated and unreported fishing; Rayfuse, supra note 112. 116 Among them the ICCAT bluefin, bigeye and swordfish statistical document programmes; the CCSBT southern bluefin tuna statistical document programme; the CCAMLR toothfish catch documentation scheme; Rayfuse, supra note 112. 117 Among them the NEAFC Scheme to promote compliance by non-contracting party vessels; the NAFO Joint Scheme of joint international inspection and surveillance; Rayfuse, su pra note 112. 118 See, for instance, CCAMLR Conservation Measure 118/XVI (1997): Scheme to promote compliance by non-contracting party vessels with CCAMLR conservation and management measures; IATTC Resolution on fishing by vessels of non-contracting parties (2000); Rayfuse, supra, note 112. 119 Transform Aqorau, Illegal fishing and fisheries law enforcement in small island developing States: The Pacific islands experience, 15 TIJMCL 2000, pp. 37-63. See also in general the critique by Ted L. McDorman, Implementing existing tools: Turning words into actions – Decision-making processes of Regional Fisheries Management Organisations (RFMOs), 20 TIJMCL 2005, pp. 423-457. 120 Created by the Convention on the conservation and management of the fisheries resources of the South East Atlantic Ocean, adopted on 20 April 2001, 41 ILM 2002, pp. 257281; for the text and latest developments see . See also A. Jackson, The Convention on the conservation and management of fishery resources in the South East Atlantic Ocean 2001: An introduction, 17 TIJMCL 2002, pp. 33-77; Louka, supra note 98, pp. 268-271. 113

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and in that respect goes beyond the 1995 Agreement. Along the same lines moves a recent initiative by Australia, Chile and New Zealand for the establishment of a South Pacific Regional Fisheries Management Organisation (SPRFMO), which would cover only non-highly migratory species in the high seas areas of the South Pacific Ocean 121 . Thus a whole new chapter of fisheries law is already in place, often going well beyond the confines of the 1995 Agreement and certainly the rudimentary provisions of the Law of the Sea Convention. It is significant, however, that even in this veritable deluge of institutional arrangements and regulation, the general principles of the Law of the Sea Convention remain fully in place. Indeed, the constitutive instruments for the new schemes always state the Law of the Sea Convention as their frame of reference – and then merrily proceed at best in progressive development thereof. The question necessarily remains whether we would consider such lip-service as confirmation of the compulsory nature of the rules enshrined in the Convention, understood at least as a point of departure for further regulation; or, instead, as evidence of an effective by-passing of the Convention in favour of more specific, regionally-centred and species-attuned regulatory systems. I tend to move towards the first option, which presents the additional advantage of reconciling the long-established principles of the law of the sea with the expanding and evolving needs of fisheries preservation and management. 3. JURISDICTION WITHOUT CONSENT ? The essence of the Straddling Stocks Agreement lies in article 8 paragraph 4 thereof, which reads: “Only those States which are members of such an organisation or participants in such an arrangement, or which agrees to apply the conservation and management measures established by such organisation or arrangement, shall have access to the fishery resources to which those measures apply”.

Thus the traditional freedom of fishing becomes qualified by the concerted action of international institutions. All those non members to such arrangements are therefore to abstain from fishing in waters where conservation and management measures exist. Indeed, under article 33 of the 1995 Agreement one can find a rare set of obligations addressed to the member States: “ 1. States parties shall encourage non-parties to this Agreement to become parties thereto and to adopt laws and regulations consistent with its provisions. For the latest information see .

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2. State parties shall take measures consistent with this Agreement and international law to deter the activities of vessels flying the flag of non-parties which undermine the effective implementation of this Agreement”.

To invite another member of the international community to participate in an institutional arrangement is well understood. To effectively threaten a third State with action unless it also joins the club is certainly not usual and would easily become unsustainable in international relations. It thus becomes evident that this peculiar reference to the stick must be counterbalanced by a carrot: none other than access to fisheries – which, however, were supposed to be free in the first place… There is nothing wrong in this line of reasoning for those States that have already adhered to the 1995 Agreement or indeed a regional fisheries organisation: they have submitted to a system of exchange of jurisdiction based on the primacy of flag State jurisdiction, in the best traditions of the law of the sea. What would happen, however, to third parties, who have not given their consent to any conservation or management measures, have not accepted any limitation to their customary freedom of fishing and do not intend to do so? The customary rule, as codified in article 34 of the 1969 Vienna Convention on the Law of Treaties 122 , remains: pacta tertiis nec nocent nec prosunt . A praeter legem interpretation of the rules appears to be in order. It can be argued that the 1995 Agreement constitutes a further elaboration of the principles enunciated in the Law of the Sea Convention 123 . Cardinal among them is the principle of cooperation, enshrined in articles 117 and 118 of the Law of the Sea Convention, which impose upon States the obligation to cooperate through regional organisations as a ‘natural corollary’ of the duty to conserve a shared natural resource 124 . It is a fact that no conservation is possible in the high seas without the consent of all exploiting States to promulgate and implement measures to regulate their exploitation of natural resources. Consequently, the duty to cooperate in conservation qualifies the right to freely fish in the high seas. Hence the exclusivity of access to fisheries reserved for States member to regional organisations in article 8 paragraph 4 of the 1995 Agreement and the corresponding obligation upon nonmember States to 1155 UNTS 18232, 8 ILM 1969, pp. 679-735; also available at . For the general theory see Christine Chinkin, Third parties in international law (Oxford 1993). 123 Orrego Vicuña, supra note 25, at pp. 288-289. See, however, the rebuttal offered by Erik Franckx, Pacta tertiis and the Agreement for the implementation of the provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, FAO Legal Papers online #8, June 2000, at p. 13; also available at . 124 Rayfuse, supra note 112, at p. 54; Hey, supra note 27, at pp. 34-35. 122

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“… not authorise vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures established by such organisation or arrangement” 125 .

There is no reference in this formulation to a regional fisheries organisation or arrangement to which the State is question is actually a member. The ob jective fact that third parties have concluded a conservation agreement suffices to restrict the traditional freedom of fishing. The State in question is obligated to join that RFO or arrangement, in application of its duty to cooperate, or else forfeit the right of its nationals to enjoy free access to the fisheries resources of the high seas 126 . A more dogmatically correct approach would point out to the general consensus that the 1995 Agreement is neither an implementation agreement to the LOS Convention nor an amendment thereof 127 in spite of the mandate given to the diplomatic conference that created it 128 and the result being cele brated as ‘a carefully crafted compromise’129 – it simply goes beyond the confines of the Law of the Sea Convention and creates another legal universe, naturally binding only upon those States parties to it 130 . Indeed, it is explicitly Article 17 paragraph 2 of the 1995 Agreement. Thus Rayfuse, supra note 112, at p. 54. 127 Franckx, supra note 123, at pp. 9-20; L. Lucchini & M. Voelckel, Droit de la mer (tome 2, vol. 2, Pedone, Paris 1996) at p. 690; W. Edeson, Towards long-term sustainable use: Some recent developments in the legal regime of fisheries, in Boyle & Freestone (eds.), supra note 4, pp. 165-204; P. Örebach, P. Sigurjohsson & T. McDorman, The 1995 UN Straddling and Highly Migratory Fish Stocks Agreement: management, enforcement and dispute settlement, 13 TIJMCL 1998, pp. 119-141; Daniel Vignes, Le gommage des différences entre haute mer et zone économique exclusive opéré par l’Accord du 4 décembre 1995 sur le stocks chevauchants et de grands migrateurs: vers l’assimilation de la haute mer à la zone de 200 milles et la disparition de la liberté de la pêche en haute mer, 4 Revue de l’INDEMER 1996, pp. 93-120; Freestone & Makuch, supra note 65, at p. 50; Laurence Juda, The 1995 UN Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks: A critique, 28 ODIL 1997, pp. 147166; Hayashi, supra note 65, at pp. 65-66. 128 Charlotte DeFontaubert, The UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. Another step in the implementation of the Law of the Sea Convention, 12 Ocean YB 1996, pp. 82-91; Howard L. Brown, The UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks. An analysis of international environmental law and the Conference’s final agreement, 21 Vermont LR 1996, pp. 547-589. 129 Thus José de Yturriaga Barberán, The international regime of fisheries: From UNCLOS 1982 to the presential sea (Martinus Nijhoff, The Hague 1997) at pp. 183-184; L. Lucchini, Stocks chevauchants – grands migrateurs, in Najib Al-Nauimi & R. Meese (eds.), International legal issues arising under the United Nations Decade of International Law (Martinus Nijhoff, The Hague 1995) pp. 513-548. 130 Thus Erik Franckx, Pacta tertiis and the Agreement for the implementation of the straddling and highly migratory fish stocks provisions of the United Nations Convention on the Law of the Sea, 8 Tulane JICL 2000, pp. 49-82; Boyle, supra note 54, at p. 570. For the expo125 126


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so stated in article 1 paragraph 2(a) of the Agreement, which reproduces the definition found in article 1 paragraph 2(2) of the Law of the Sea Convention and in article 2 paragraph 1(g) of the 1969 Vienna Convention on the Law of Treaties. States parties to the Law of the Sea Convention but not the 1995 Agreement 131 will continue to exercise only flag State jurisdiction upon their vessels fishing in the high seas. Those (few) not parties to either convention will continue to operate under the customary freedom of fishing rules in their unadulterated form. Legal niceties aside, the fact remains that most States today are cooperating in one fisheries arrangement or another, having in the process accepted some manifestation of what amounts to a general obligation to conserve and manage high seas fisheries in a sustainable manner. This qualification in itself is already considered as part of the customary law of fisheries, as accepted by the International Tribunal of the Law of the Sea in the South Blue fin Fin Tuna cases 132 . A strict application of the rule of consent would thus become difficult to argue successfully. At the very least, it must be accepted that State practice has already sufficiently amended the customary freedom of fishing to reverse the burden of proof so that a State must now prove its persistent objection to any cooperation in conservation measures to remain untouched by the new rule 133 ; indeed, such a State must necessarily not be a member of the Law of the Sea Convention, as any direct refusal to join a fisheries conservation scheme would constitute a breach of obligation to cooperate under articles 116 and 117 of the Convention. What then would happen to a vessel flying the flag of a non-party State, which is caught in the conservation area fishing in breach of what is at least a obligation of the flag State to restrict the operation of its vessels, explicitly stated in article 17 of the 1995 Agreement 134 ? If the flag State is a member to sition of the principle see Malgosia Fitzmaurice, Modifications to the principles of consent in relation to certain treaty obligations, 2 ARIEL 1997, pp. 275-317; see also in general idem., Consent to be bound – anything new under the sun?, 74 Nordic JIL 2005, pp. 483-508. 131 As of March 2007 there are 65 States parties to the 1995 Agreement as compared to 157 signatories and 153 ratifications for the Law of the Sea Convention; for details and recent developments see . 132 ITLOS, Southern Bluefin Tuna cases, supra note 104, paragraphs 77-79; Separate opinion of Judge Laing, paragraphs 16-19; Separate opinion of Judge Treves, paragraph 9; Separate opinion of Judge Shearer; all available in . See, in general, Marcos A. Orellana, The law of highly migratory fish stocks: ITLOS jurisprudence in context, 34 Golden Gate ULR 2004, pp. 459-495. 133 Thus Rayfuse, supra note 112, at p. 62. 134 Article 17 paragraph 2 of the 1995 Agreement reads: “[A State which is not a member of a subregional or regional fisheries management organisation or is not a participant in a subregional or regional fisheries management arrangement, and which does not otherwise agree to apply the conservation and management measures established by such organisation

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the 1995 Agreement or even the Law of the Sea Convention, then its duty to cooperate in the conservation and management of marine resources, however remote, is well established 135 . For the remainder, such an obligation may be found in a customary law obligation to cooperate in the conservation of marine resources, admittedly formulated in a much more nebulous form and without any particular management measures in mind. How then could the States parties to such agreements reach to this rogue outsider, whose appearance and operation in the protected waters threatens the effectiveness of the conservation and management regime they have agreed upon? It has been suggested that the breach undoubtedly committed by the flag State either towards the world community at large regarding the customary obligation to cooperate in conservation measures or towards States parties to a Regional Fisheries Organisation, who have agreed upon specific management measures, entitles the injured State to countermeasures, the latter defined “not as a form of punishment for wrongful conduct but as an instrument for achieving compliance with the obligations of the responsible State” 136 .

Such countermeasures, typically the boarding and arrest of a vessel found fishing in protected waters, are indeed acceptable as they are taken against a State which is responsible for an internationally wrongful act and are only directed against such State 137 . Such measures must also be reversible 138 , “commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question” 139 ,

and not taken in response to the four categories of obligations of fundamental importance enumerated in article 50 of the Articles on State Responsibility, namely the obligation to refrain from the threat or use of force under the or arrangement] shall not authorise vessels flying its flag to engage in fishing operations for the straddling fish stocks or highly migratory fish stocks which are subject to the conservation and management measures established by such organisation or arrangement”. 135 Article 17 paragraph 1 of the 1995 Agreement. 136 Commentary, paragraph (1), in James Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, text and commentaries (Cambridge 2002) at p. 284. For the general notion of countermeasures see Linos-Alexandre Sicilianos, La codification des contre-mesures par la Commission du droit international, 38 RBDI 2005, pp. 447-500, at pp. 450-459; David J. Bederman, Counterintuiting countermeasures, 96 AJIL 2002, pp. 817-832. 137 Thus article 49 paragraph 1 of the Articles on State Responsibility, approved by UN General Assembly resolution 56/83, UN Doc. /RES/56/83 (2001); text also available at . See also Sicilianos, supra, pp. 463-465. 138 Ibid., pp. 465-468. 139 Article 51 of the Articles on State Responsibility; see also Enzo Cannizzaro, The role of proportionality in the law of international countermeasures, 12 EJIL 2001, pp. 889-916.


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UN Charter, obligations for the protection of fundamental human rights, obligations of a humanitarian character prohibiting reprisals and any other obligations arising under peremptory norms of international law 140 , thus “allow[ing] for the recognition of further peremptory norms creating obligations which may not be subject of countermeasures by an injured State” 141 .

Under normal circumstances – and the particular facts of each case are certainly a question of proof – , the boarding and control of a fishing vessel, which may lead to its arrest, is in principle reversible, must be exercised in a manner proportional to the gravity of the offence and certainly does not im plicate at least the last three of the categories of obligations exempt from the application of countermeasures. Indeed, it could also be convincingly argued that any use of force required for the arrest of the offending vessel does not amount to a threat of the peace or an act of aggression 142 but rather constitutes a police action 143 , perfectly within the sovereign prerogative of the investigating State. Such an understanding of the situation is reflected in State practice and would actually be in full conformity with article 22 paragraph 1(f) of the 1995 Agreement, which requires inspecting States to “avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonable required in the circumstances”.

On the other hand, it is also true that the exclusivity of the flag State jurisdiction in the high seas, including areas falling within the scope of application of regional fisheries organisations or arrangements, may only yield either to a rule of international law allowing such intervention upon the ship or by the consent of the State concerned. Absent the circumstances allowing intervention on a foreign-flagged vessel under article 110 of the Law of the Sea Convention, the only other possible legal basis for interdiction remains the consent of the flag State. Such consent to police action may indeed be Article 50 of the Articles on State Responsibility; see also Sicilianos, supra note 136, at pp. 468-471. 141 Commentary, supra note 136, at p. 290. For an overview of what constitutes a peremptory norm see Lauri Hannikainen, Peremptory norms (ius cogens) in international law. Historical development, criteria, present status (Helsinki 1988); Alexander Orakhelashvili, Peremptory norms in international law (Oxford 2006). 142 The argument was actually raised by Spain in the Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1995, supra note 46, but the Court found it had no jurisdiction to hear the case and thus the question remains. For the general principle see, instead of many others, Bruno Simma (ed.), The Charter of the United Nations: A commentary (2nd ed., vol. 1, Oxford 2002) at pp. 117 and 796. 143 Thus Rayfuse, supra note 112, at pp. 73-75. 140

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found in multilateral and bilateral agreements on combating illicit traffic in narcotic drugs 144 : it has been argued that in such cases intervention is to be construed not as a non use of force but rather as a non prohibited use of force by operation of the consent principle 145 . Even if the possibility of countermeasures is assured, another issue is who has the power to take such countermeasures. Both the general obligation to cooperate on conservation and management measures for marine living resources under the Law of the Sea Convention and the much more specific obligations to abide by the technical terms and conditions imposed by regional fisheries organisations are all obligations owned to a group of States. It is conceivable therefore that the injury necessary to trigger the responsibility of the offending State is owed to all the parties to a regional fisheries organisation and indeed to all States member to the 1995 Agreement or even member to the Law of the Sea Convention. The Commentary to the Articles on State Responsibility uses the example of marine pollution to differentiate between injury felt by the community as a whole and damage suffered by particular States, where the impact of the wrongful act was particularly severe: “This will have to be assessed on a case by case basis, having regard to the ob ject and purpose of the primary obligation breached and the facts of each case. For a State to be considered injured it must be affected by the breach in a away which distinguishes it from the generality of other States to which the obligation is owed” 146 .

The difficulty lies in the fact that the injury suffered in the case of fisheries cannot easily be said to have impacted one or another State; rather it has a direct effect upon all the members of a regional organisation, perhaps not so dramatic as to

Thus, for instance, the 1981 Agreement to facilitate the interdiction by the United States of vessels of the United Kingdom suspected of trafficking in drugs, 1285 UNTS 197; or the 1990 Treaty between the Kingdom of Spain and the Italian Republic to combat illicit drug trafficking at sea, 1776 UNTS 229. On the merits of ‘police action’ see Gert-Jan van Hegelson, Implementation of Caribbean maritime counter-narcotics cooperation report, in M.H. Nordquist & J.N. Moore (eds.), Oceans policy: New institutions, challenges and opportunities (Martinus Nijhoff, Dordrecht 1999) pp. 295-303; as compared to C.A. Allen, Limits on the use of force in maritime operations in support of WMD counter-proliferation initiatives, 35 Israel YBHR 2005, pp. 115-180. 145 Thus, forcefully, Douglas Guilfoyle, Interdicting vessels to enhance the common interest: maritime countermeasures and the use of force, 56 ICLQ 2007, pp. 69-82, at p. 81. 146 Crawford, supra note 136, at p. 259. See also Linos-Alexandre Sicilianos, The classification of obligations and the multilateral dimension of he relations of international responsi bility, 13 EJIL 2002, pp. 1127-1145. 144


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“radically change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation” 147

but certainly important enough to consider themselves “injured by the same internationally wrongful act” 148 . Thus each one of the States member to a regional fisheries organisation or arrangement “may separately invoke the responsibility of the State which has committed the internationally wrongful act” 149

and, consequently, each one of those States may take countermeasures against the State which is responsible for that internationally wrongful act. If, however, one of the member States feels that the breach was so remote as to have only a limited impact upon it and the injury thus suffered was of a more general interest, presumably referring to a question of principle, too close for comfort to an (inexistent in international law) actio popularis 150 , rather than an actual injury inflicted upon the State’s fishing rights in that particular area, then that State remains entitled to invoke the responsibility of the offending State and take such ‘lawful measures’ against the responsible State so as “to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached.” 151 .

Would those ‘lawful measures’ be different than ‘countermeasures’ in cases of a breach of conservation measures in regional fisheries protected area? The assumption is clear in theory: there must be a difference in practice in the intensity of measures taken by those States ‘directly affected’ and those who may have a general interest in seeing the fisheries management system

Article 42(a)(ii) of the Articles on State Responsibility. Article 46 of the Articles on State Responsibility. 149 Ibid. 150 Barcelona Traction, Light and Power Company, Limited , Second Phase, Belgium v. Spain, ICJ Reports 1970, paragraph 33, available at . See in general François Voeffray, L’ actio popularis ou la défense de l’intérêt collectif devant les juridictions internationales (PUF, Paris 2004). 151 Article 54 of the Articles on State Responsibility. For third-party reactions in general see M. Akehurst, Reprisals by third States, 44 BYBIL 1970, 1-18; J.I. Charney, Third State remedies in international law, 10 Michigan JIL 1988, p. 57-101; L.-A. Sicilianos, Les réactions décentralisées à l’illicite (LDGJ, Paris 1990) at pp. 110-175; J.A. Frowein, Reactions by not directly affected States to breaches of public international law, 248 RCADI 1994-IV, pp. 345-437; Bruno Simma, From bilateralism to community interest in international law, 250 RCADI 1994-VI, pp. 217-384. 147 148

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work 152 . Would that translate into a dichotomy of reactions where the ‘directly affected’ State may actually board and arrest an offending vessel whereas a third State would only take other measures, such as prohibiting the landing of fish caught in breach of such arrangements in its ports or such other economic sanction? The jury is still out, in spite of the ever expanding practice in the fisheries law area. Either way, it is clear that such action remains at all times an individual act rather than a collective measure decided by the organisation as a whole 153 . Indeed, actions taken by an international fisheries organisation, “even though the member States may direct or control its conduct” 154 ,

remain outside the concept of countermeasures to be addressed as a new title under the collective security system 155 . Moreover, any action undertaken as a countermeasure requires a prior call to the offending State to fulfil its obligations, a notification of the act to be taken as a countermeasure and an offer to negotiate on the matter 156 ; indeed, the customary nature of these requirements has been affirmed by both the International Court of Justice 157 and State practice. Given the fluid nature of fisheries enforcement, one could have some difficulty with a request for negotiation each and every time a vessel is caught fishing where it should not Sicilianos, supra note 145, at pp. 1139-1140; Pierre-Marie Dupuy, Quarante ans de codification du droit de la responsabilité internationale des États. Un bilan, RGDIP 2003, pp. 305-348, at pp. 337-340; Christian J. Tams, Enforcing obligations erga omnes in international law (Cambridge 2005) at pp. 209-228. 153 For an earlier discussion of sanctions in this respect see David D. Caron, International sanctions, ocean management and the law of the sea: A study of denial of access to fisheries, 16 Ecology LQ 1989, pp. 311-354. 154 Crawford, supra note 136, at p. 302; see also Sicilianos, supra note 136, pp. 483-498. On the relationship between the responsibility of the State and the responsibility of the international organisation see articles 13, 25 and 26 of the Draft Articles on the Responsibility of International Organisations, provisionally adopted by the International Law Commission (Giorgio Gaja, rapporteur); ILC, Report on the work of its 58th session (2006), General As sembly Official Records, Sixty-first session, Supplement No. 10, UN Doc. A/61/10; available at . 155 Kofi Annan, A more secure world. Our shared responsibility: Report of the High-level Panel on threats, challenges and change. Towards development, security and human rights for all (UN, New York 2005); see also Laura Forlati & L.-A. Sicilianos, Les sanctions économiques en droit international (Académie de droit international de La Haye, Martinus Ni jhoff, Leiden/Boston 2004). 156 Article 52 paragraph 1 of the Articles on State Responsibility. 157 Gabcikovo-Nagymaros project , Hungary v. Slovakia, ICJ Reports 1997, paragraph 84, available at ; see also the arbitral award on the Air Services Agreement of 27 March 1946 , United States v. France, 18 UNRIAA 1978, pp. 417-453, at p. 444, paragraphs 85-87. 152


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have been. However, the notification of action and call for negotiations is actually incorporated into the 1995 Agreement, which enunciates very clearly the threat to take action against offending vessels 158 and repeatedly calls upon non-parties to become members or negotiate arrangements of equivalent effect 159 . Indeed, the discussion of possible reactions to fishing activity by nonmembers was a major issue in the 2006 Review Conference on the 1995 Agreement 160 , the Outcome of which called upon States to: “commit themselves to providing incentives, where needed, to encourage nonmembers to join the regional fisheries management organisations, including sharing technology and expertise, assistance in the development of appropriate frameworks and enhancement of enforcement capabilities. Non-members shall enjoy benefits from participation in the fishery commensurate with their commitment to comply with conservation and management measures in respect of the stocks.” 161 .

Is this injunction to act in accordance with what amounts to a new fisheries regime, presumably also in compliance with the Law of the Sea Convention as clearly indicated in the title of the 1995 Agreement, an acknowledgement of the change already incurred or rather an instigation to act in a certain way, in view – and perhaps even, in spite – of the lack of any binding obligation to do so? It is certainly a question that remains at the forefront of fisheries regulation. 4. FROM FREEDOM TO FISH TO A RIGHT OF ACCESS? From afar, the system of fisheries regulation looks well developed and comprehensive. The Law of the Sea Convention reiterates the traditional See in particular article 21 paragraph 4 of the 1995 Agreement. Article 33 of the 1995 Agreement. 160 Convened in New York on 22-26 May 2006, pursuant to article 36 of the 1995 Agreement, which requires a review conference four years after its entry into force; full information available at . For a first reaction to the workings of the Conference see Yoshinobu Takei, Unfinished business: Review Conference on the 1995 Fish Stocks Agreement, 21 TIJMCL 2006, pp. 551-568; to be compared with the suggestions by Michael W. Lodge & Satya N. Nandan, Some suggestions towards better implementation of the UN Agreement on straddling fish stocks and highly migratory fish stocks of 1995, 20 TIJMCL 2005, pp. 345-379; Erik Jaap Molenaar, Addressing regulatory gaps in high seas fisheries, ibid , pp. 533-570. 161 Report of the Review Conference on the Agreement for the Implementation of the Provi sions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks prepared by the President of the Conference, UN Doc. A/CONF.210/2006/15, 5 July 2006, Annex, paragraph 32(e), available at ; my emphasis. 158 159

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freedom of fishing in the high seas but it already creates obligations of cooperation between coastal States and ‘interested’ States fishing for straddling fish stocks and highly migratory fish stocks in areas “beyond and adjacent to the zone[s]” 162 under coastal State jurisdiction. This obligation of cooperation is further substantiated in the 1995 Agreement, which, on the one hand, raises it to an indispensable condition for granting access to fisheries 163 and, on the other hand, creates an even more specific obligation to establish regional fisheries organisations and arrangements in order to agree on specific measures of conservation and management fully attuned to the circumstances of each area and the species to be found therein and abide by such measures 164 . This cascade of obligations, from the general to the very specific, clearly modifies the traditional rule of freedom to fish in the high seas. Indeed, the system looks so tidy – and the objectives of sustainable exploitation of fisheries and assorted environmental concerns so worthy – as to create the im pression that adequate protections are indeed in place and the international community must be happy with the result. Yet, fisheries around the world continue to decline, often dramatically. A closer look reveals that adherence to what one could consider as ‘universal’ regimes is in fact rather patchy and implementation is almost always deficient. The manifold contractual arrangements in existence seem to vie for attention, often promulgating contradicting regulations, which leave major loopholes in the prescriptive legal framework of fishing or, at best, subvert each other’s effectiveness. New suggestions for the parallel application of old and new, specific and general conventions add to the mêlée: the recent involvement of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) 165 in matters pertaining to the man-

Articles 63 paragraph 2 and 64 paragraph 2 LOSC. 163 Article 17 of the 1995 Agreement. 164 Article 8 of the 1995 Agreement. 165 993 UNTS 243; concluded on 3 March 1973, it entered into force on 1 July 1975. For an overview see in general Willem Wijnsteckers, The evolution of CITES : A reference to the Convention on international trade in endangered species (8th ed., CITES Secretariat, Geneva 2006); David M. Ong, The Convention on International Trade in Endangered Species (CITES 1973): Implications of recent developments in international and EC environmental law, 10 JEL 1998, pp. 291-314; Jess Hemings, Does CITES conserve biodiversity?, 7 Asia Pacific JEL 2002, pp. 95-124; Rosalind Reeve, Enhancing the international regime for protecting endangered species. The example of CITES, 63 ZaöRV 2003, pp. 333-354; Saskia Young, Contemporary issues of the Convention on international trade in endangered species of wild fauna and flora (CITES) and the debate over sustainable use, 14 Colorado JIELP 2003, pp. 167-189. 162


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agement of commercially exploitable aquatic species illustrates the point 166 . The ensuing uncertainty as to the content of the law and insecurity as to its proper implementation remains a far cry from the neat cascade described above. At the end of the day, the international system remains securely founded on the State as a legislating and policing unit and ultimately on the consent of the State before expected or desirable practice translates into binding law. The need for a specific expression of consent before the commonly agreed rules are amended is indeed reflected in the cascading instruments, which encompass an interesting mixture of the carrot and the stick. Nevertheless, this interplay between persuasion and coercion cannot fully cover the very real problems created by the non-participation of certain States to these contractual arrangements 167 . In spite of the wealth of persuasive arguments by academics and practitioners, the fact of the matter remains that contractual obligations may only be amended by another treaty or a subsequent customary rule – and the creation of this new customary rule must necessarily fulfil the very strict criteria for the formation of international custom 168 . Indeed, commenting on the existing gap between the learned opinions of scholars or the wishful thinking of environmentally minded citizens, the International Court of Justice noted in the Nicaragua case: “The mere fact that States declare their recognition of certain rules is not sufficient … to consider these as being part of customary international law, and as applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, inter alia, international custom ‘as evidence of a general principle accepted as law’, the Court may not disregard the essential role played by general practice. Where two States agree to incorporate a particular rule in a treaty, their agreement suffices to make that rule a legal one, binding upon them; but See in more detail Erik Franckx, The protection of biodiversity and fisheries management: Issues raised by the relationship between CITES and LOSC, in Freestone, Barnes & Ong (eds.) supra note 16, pp. 210-232; Rosie Cooney, CITES and the CBD: Tensions and synergies, 10 RECIEL 2001, pp. 259-267. See also on the relationship between CCAMLR and CITES, D. Bialek, Sink or swim: Measures under international law for the conservation of Patagonian Toothfish in the Southern Ocean, 34 ODIL 2003, pp. 105-137; Rosemary Rayfuse, Biological resources, in Bodansky, Brunnée & Hey (eds.), supra note 28, pp. 362-393, at p. 391. 167 Thus also Daniel Bodansky, Customary (and not so customary) international environmental law, 3 Indiana Journal of Global Legal Studies 1995, pp. 105-131; Pierre-Marie Du puy, Formation of customary international law and general principles, in Bodansky, Brunnée & Hey (eds.), supra note 28, pp. 449-466. 168 For an overview see M. Akehurst, Custom as a source of international law, 47 BYBIL 1974-1975, pp. 1-54; Maurice H. Mendelson, The formation of customary international law, 272 RCADI 1998, pp. 155-410; Malgosia Fitzmaurice, International protection of the environment, 293 RCADI 2001, pp. 9-488, at pp. 105-116. 166

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in the field of customary international law, the shared view of the parties as to the content of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio iuris of States is confirmed by the practice” 169 .

And yet, one wonders whether the existing State practice in fisheries regulations is not in fact a breach of what constitutes secure contractual obligations for those States party to a regional fisheries organisation, the 1995 Agreement, the Law of the Sea Convention, or any combination thereof. On the other hand, the insistence displayed on the benefits of participation to regional fisheries arrangements may well point to a customary confirmation of a pro-active obligation to cooperate rather than constitute evidence of any real will on behalf of interested States to consent to the creation of an emerging customary rule of exclusion, regulating access to fisheries. In the words of the Court, once again: “The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indication of the recognition of a new rule.” 170 .

The overwhelming acceptance of the principles underlying fisheries jurisdiction, in all their complexity, rather point to this direction. For all their intensity, the repeated calls for cooperation constitute, at the end of the day, just an acknowledgment of the contractual limitations of the existing legal framework. Nevertheless, such limitations still allow for a new, more pur pose-intensive reading of existing obligations for all interested parties, with a view to promote and enhance the effective implementation of the spirit – and not only of the letter – of the relevant conventions. In such a context, the original allocation of flag State jurisdiction under the Law of the Sea Convention remains intact as the contractual structure of the Convention has shown to have managed to successfully absorb and accommodate the developing regulatory framework of fisheries protection.

Case concerning military and paramilitary activities in and against Nicaragua, Nicaragua v. USA, Merits, ICJ 1986, paragraph 184, also available at . 170 Ibid ., paragraph 186. 169

PART III

CHALLENGES TO THE ALLOCATION OF JURISDICTION The challenges to the jurisdictional zones in the sea, as stipulated in the Law of the Sea Convention, have demonstrated the resilience of the conventional structure – and have indeed shown themselves to be variations to the rule. The practice of States indicates that the propensity of the coastal State to ex pand the jurisdiction it is allotted in the exclusive economic zone has been contained within the concept of a marine protected area, usually but – essentially– not solely under the exclusive jurisdiction of that coastal State, where the freedoms of the high seas and especially the freedom of navigation are indeed severely restricted with a view to safeguard considerations of environmental protection. There is no question that the establishment of such areas, in application of the principle rather than the actual letter of the Law of the Sea Convention, entails a new, delicate balance of interests between the ‘green’ aspirations of the coastal State, mostly translated to pollution damage (and the cost thereof), and the liberal-minded exertions of flag States, mostly concerned with the financial bottom-line of maritime trade. In a similar manner, the challenges to the flag State jurisdiction in cases of fisheries protection have also been contained by the conventional structure – but this time by modifying, perceptively, the Convention itself. It is true that the Law of the Sea Convention provides for an informal system of amendment and development through the conclusion of subsequent treaties not “incompatible with the effective execution of the object and purpose of [the] Convention … provided further that such agreements shall not affect the application of the basic principles embodied therein…” 1 .

This is clearly the function of the 1995 Agreement for the implementation of the provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, which is in the process of essentially converting the traditional freedom to fish to a right of access to fisheries condi-

Article 311 paragraph 3 LOSC. See also Alan Boyle, Further development of he Law of the Sea Convention: Mechanisms for change, 54 ICLQ 2005, pp. 563-584. 1

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tional upon the adoption of coordinated measures of fisheries conservation and management. The question remains whether this built-in flexibility of the system would also extend to circumstances clearly not foreseen by the framers of the Convention and thus not taken into consideration when setting out the outer limits of its regulatory framework. Under Part III, I intend to discuss challenges to the Law of the Sea Convention, which were only suspected at the time of drafting – progressive development of the rules. In Chapter 5, I will discuss the extension of coastal State jurisdiction into the high seas and especially the deep seabed beyond the areas of national jurisdiction. The Law of the Sea Convention has created organs competent to consider such an expansion, the Commission for the Outer Limits of the Continental Shelf and the International Seabed Authority. Are we looking towards a new allocation of State jurisdiction in the deep seas, a jurisdiction, however, different in content from the traditional form of exclusive and plenary powers over a defined territory? In Chapter 6, I will concentrate on challenges to that most traditional form of jurisdiction, flag State jurisdiction. In the wake of repeated terrorist attacks, the venerable principle of the freedom of the seas is restricted by contractual arrangements, such as the new 2005 protocol to the SUA Convention or even the PSI initiative of the US Government. Are we witnessing the creation of a new system of maritime traffic on the basis of a possible principle of protection or is it still, underneath it all, the same freedom of the seas freely disposed of by its beneficiary, the flag State?

CHAPTER 5

JURISDICTION IN THE DEEP SEA The novelties of the Law of the Sea Convention have been so easily and almost instantly assimilated in the traditional formulation of the Law of the Sea that it is perhaps forgotten how close the Conference came to founder in the 1980s – before the 1994 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982 1 managed to ‘implement’ the Convention without formally amending it 2 . The bone of contention was the exploitation regime for the deep seabed, the newfound marine area which the Convention took away from State jurisdiction. The word was at the time that untold riches awaited humankind in the deep black yonder 3 – and the international community cracked at the seams in the effort to contain this new gold rush in the seas. Several decades later we know that the prospect of sea wealth was illusory – at least in the form contemplated by the framers of the Law of the Sea Convention. Instead, we are confronted with new challenges, brought along by the latest developments in technology, which have further expanded, and indeed changed, our knowledge and view of the planet. To date, we have discovered at least two benthic ecosystems operating on energy sources other than light: sediment communities and seep communities, which in33 ILM 1994, pp. 1309-1327. The Agreement was adopted on 28 July 1994 and entered into force on 28 July 1996, having been approved by UN General Assembly Resolution 48/263 on 17 August 1994, UN Doc. A/RES/48/263/Annex; text available at . 2 For discussions on the subject then and now see D.H. Anderson, Further efforts to ensure universal participation in the UNCLOS, 43 ICLQ 1994, pp. 886-893; idem., Resolution and Agreement to the Implementation of Part XI of the UN Convention on the Law of the Sea. A general assessment, 55 ZaöRV 1995, pp. 275-289; Jonathan Charney, Entry into force of the 1982 UNCLOS, 35 Virginia JIL 1995, pp. 381-404; Laurent Lucchini, La Convention des Nations Unies sur le droit de la mer du 10 décembre 1982 : Une entrée en vigueur pour quelle Convention?, 7 Espaces et ressources maritimes 1993, pp. 1-9; Alan Boyle, Further development of the 1982 Convention on the Law of the Sea: Mechanisms for change, in David Freestone, Richard Barnes & David Ong (eds.), The Law of the Sea. Progress and prospects (Oxford 2006) pp. 40-62, at p. 42, fn. 14. 3 For the estimates of the time see G. Weissberg, International law meets the short-term national interest: The Maltese proposal on the seabed and ocean floor – Its fate in two cities, 18 ICLQ 1969, pp. 41-102, at p. 52. 1

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clude hydrothermal vents, petroleum seeps and sediment-pore water seeps. In the past decade we came to realise the immense wealth of biological diversity to be found in hydrothermal vents 4 , comprised of species adapted to the particular sulphur-rich environment of these chimneys in the sea and sustained on chemosynthetic microbial processes rather than photosynthesis 5 . Indeed, of the approximately 500 species discovered around hydrothermal vents to date, some 80-95% are considered endemic to that particular environment and new to science 6 . These data, further enriched by continued spectacular developments, have opened unsuspected horizons to pharmacology, biotechnology and molecular biology, where microbes superthermo philic (thriving in temperatures over 115oC), hyperthermophilic (thriving in temperatures between 80-115oC) and thermophilic (thriving in a mere 5080oC environment) are apparently of immense usefulness in procuring new industrial processes and eventually generate new products for the benefit of humankind 7 . As of 2005, approximately 20 marine natural products were undergoing human clinical trials whereas at least 37 patents have been issued for products based on deep-sea organisms 8 . This newly-found wealth makes the discovery of possible hydrothermal sites an element of acute importance. More than 100 hydrothermal vent sites have been identified to date and more continue to appear, especially around Antarctica. The most well-known sites are located in the East Pacific Rise and the Juan de Fuca, Gorda and Explorer Ridges; in the mid-Atlantic Ridge; in the Gakkel Ridge, which runs under the Arctic Ocean from north of Greenland to Siberia; and in the north waters of New Zealand’s exclusive economic zone 9 , thus presenting diverse issues of jurisdictional competence. Benthic Apparently these structures come mostly in two forms: columnar chimney black smokers, which ventilate sulphide- and oxide-rich dense and cold seawater, recycled through fissures in the upper portions of the lithosphere by the magma lying at a depth of 1,6 to 2,4 kilometres below the sea floor in a buoyant column of fluid reaching as high as 350oC without boiling because of the intense pressure on the deep seabed; or freestanding complex sulphite mounds 10-30 metres in diameter and up to more than 40 metres in height; with grateful thanks for the technical description and all scientific information to David Kenneth Leary, International Law and the genetic resources of the deep sea (Martinus Nijhoff, Leiden/Boston 2007) at pp. 10-11. 5 Ibid ., at p. 16. 6 Ibid ., at p. 15. 7 Ibid ., at p. 17. See also Report of the UN Secretary-General, Oceans and the Law of the Sea, UN Doc. A/59/62, 4 March 2004, paragraph 247, text available at . 8 For a thorough presentation see UNEP, Ecosystems and biodiversity in deep waters and high seas (2006); text available at ; see also Padmashree Gehl Sampath, Regulating bioprospecting. Institutions for drug research, access and benefit sharing (UNU, New York 2005). 9 Report of the UN Secretary-General, supra note 7, at p. 12. 4

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communities of interest are also to be found – and threatened by human activities – in seamounts, deep-sea trenches (with abundant hadal fauna), deepsea coral reefs, submarine canyons, cold seeps and pockmarks as well as polymetallic nodules and gas hydrates, mostly consisting of methane gas in crystalline form. In this context, access to and exploitation of the biological resources of the deep seabed becomes a boom industry, albeit reserved to few, affluent and technologically advanced members of the world community 10 . At present, both within the confines of coastal State jurisdiction and, much more importantly, in the areas under the high seas, ‘bioprospecting’ has become the most immediately exploitable resource of the seabed 11 , with obvious practical interest for all those concerned. Defined as “the exploration of biodiversity for commercially valuable genetic and biochemical resources” 12

or even “the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products” 13 ,

bioprospecting, or ‘biodiscovery’ “to put greater emphasis on the investigative aspect of the research and less on the idea of future exploitation” 14 , does not fit easily into the categories of activities recognised by the Law of the Sea Convention; indeed, the term does not even appear in the text of the Apparently, a deep-ocean scientific expedition can cost up to $30.000 per day with a minimum duration of two weeks; for more information see Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), Bioprospecting of genetic resources of the deep-sea bed , Doc. UNEP/CBD/SBSTTA/2/15, 1996, available ay 11 For an overview see Craig H. Allen, Prospecting the oceanic gardens of Eden: International law issues in deep seabed vent resources conservation and management, 13 Georgetown IELR 2001, pp. 563-660; Julia Jabour-Green & Dianne Nicol, Bioprospecting in areas outside national jurisdiction. Antarctica and the Southern Ocean, 4 Melbourne JIL 2003, pp. 76-111. 12 See SBSTTA, Report prepared in response to Decision II/10 (1995) of the Conference of the Parties to the Convention on Biological Diversity, Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1 of 22 February 2003, paragraph 49; available at . 13 Ibid . See also the descriptive approach eventually taken by the UN Secretary-General: “[T]he search for biological compounds of actual or potential value to various applications, in particular commercial applications[, …] involv[ing] a series of value-adding processes, usually spanning several years, from biological inventories requiring accurate taxonomic identification of specimens to the isolation and characterisation of valuable active compounds”; Re port of the UN Secretary-General, Oceans and the law of the sea, UN Doc. A/62/_/ (advanced and unedited text), 12 March 2007, paragraph 150, available at . 14 Ibid. 10

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Convention 15 . Nevertheless, Law, as indeed does Nature, abhors vacuum. Clearly, the new activities need to be regulated. The question is whether we need a new set of rules – and then who would be competent to thus legislate? Or, alternatively, could it be that they already fit into the existing legal framework, which keeps the resources of the deep seabed away from State jurisdiction, entrusting them to the regulatory powers of the International Seabed Authority (ISA), where “a system of prior authorisation and management has replaced the primitive principles of free access and first come, first served” 16 ? On the other hand, absent an express and clear submission to the institutional and regulatory environment of the deep seabed, the reemergence of flag State jurisdiction, in exercise of a freedom of the high seas, is not unthinkable: it is, after all, the default jurisdiction in customary international law. And indeed the Law of the Sea Convention is very explicit in ascertaining that, whatever the rights granted or exercised in the deep sea bed, “the legal status of the waters superjacent to the Area or that of the air space above those waters” is not affected 17 . 1. THE JURISDICTIONAL EXCEPTION OF THE DEEP SEABED The allocation of jurisdiction under the Law of the Sea Convention contained yet another novelty. The entire Area of the deep seabed, defined as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” 18 ,

has been removed from State jurisdiction and declared the “common heritage of mankind” 19 . The new concept, famously proposed by the Maltese ambassador Arvid Pardo in 1967, had an avowed economic perspective, purporting to ensure the equitable sharing of the benefits accruing from the exploitation of the resources of the seabed amongst the less affluent States of the international community. In that respect, it fit perfectly within the ideological environment of its era and the revendications of the emerging developing States, as best set out in the 1970 Declaration of principles governing Tullio Scovazzi, Bioprospecting on the deep seabed: A legal gap requiring to be filled, in Francesco Francioni & Tullio Scovazzi (eds.), Biotechnology and International Law (Hart Publishing, Oxford/Portland, Oregon 2006) pp. 81-97. 16 In the words of Francesco Francioni, International Law for Biotechnology: Basic princi ples, in Francioni & Scovazzi (eds.), ibid., pp. 3-27, at p. 8. 17 Article 135 LOSC. 18 Article 1 paragraph 1(1) LOSC. 19 Article 136 LOSC. 15


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the seabed and the ocean floor and the subsoil thereof beyond the limits of national jurisdiction 20 . Part XI of the Law of the Sea Convention sets out the core elements of the system 21 . The Area is declared a zone beyond national jurisdiction not sub ject to appropriation22 . All activities therein “shall … be carried out for the benefit of mankind as a whole” 23 , meaning in practice that all economic benefits derived therefrom will be shared equitably and on a non-discriminatory basis among all States 24 . The appropriate exploitation mechanism will be implemented by the International Seabed Authority, which shall act on behalf of mankind as a whole; it remains the entity to which all rights in the resources of the Area are vested 25 . Nevertheless, activities in the Area will be carried out “exclusively for peaceful purposes by all States” 26 . The limitations of the concept were almost immediately perceived – indeed, it found almost no other application, with the exception of the 1979 Agreement governing the activities of States on the Moon and other celestial bodies 27 , itself an instrument of limited applicability for the time being. The Adopted by UN General Assembly Resolution 2749 (XXV), available at ; for the authentic flavour of the times see Mohammed Bedjaoui, Towards a new international economic order (UNESCO, Paris 1979). Note also the comments by Marti Koskenniemi & Marja Lehto, The privilege of universality. International law, economic ideology and seabed resources, 65 Nordic JIL 1996, pp. 533-555; Markus G. Schmidt, Common heritage or common burden? The US position on the development of a regime for deep-seabed mining in the Law of the Sea Convention (Oxford 1989). 21 For an overview see Christopher C. Joyner, The concept of the common heritage of mankind in international law, 13 Emory ILR 1999, pp. 615-628; Jennifer Frakes, The common heritage of mankind principle and the deep seabed, outer space and Antarctica: Will developed and developing nations reach a compromise?, 21 Wisconsin ILJ 2003, pp. 409-434; Graham Nicholson, The common heritage of mankind and mining. An analysis of the law as to the high seas, outer space, the Antarctic and world heritage, 6 NZJEL 2002, pp. 177-198; Anastasia Strati, Deep seabed cultural property and the common heritage of mankind, ICLQ 1981, pp. 859-894. 22 Article 137 paragraph 1 LOSC. 23 Article 140 paragraph 1 LOSC. 24 Article 140 paragraph 2 LOSC. 25 Article 137 paragraph 2 LOSC. 26 Article 141 LOSC. 27 Article 11 paragraph 1 reads: “The Moon and its natural resources are the common heritage of mankind, …”; the Moon Treaty was concluded on 18 December 1979 and entered into force on 11 July 1984; 18 ILM 1979, pp. 1434-1441. For an overview see M.L. Smith, The commercial exploitation of mineral resources in outer space, in Tanja L. Zwaan (ed.), Space Law: Views of the future (Kluwer Law International, Deventer 1988) pp. 42-55; Carl Q. Christol, The Moon Treaty and the allocation of resources, 22 Annals of Air and Space Law 1997, pp. 31-51. 20

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only other reference to the common heritage of mankind to be found in a treaty, namely that included in the 1983 FAO International Undertaking on Plant Genetic Resources 28 , quickly succumbed to a reductio ad absurdum, as in 1991 – already in another era in international law – it was construed to read: “The concept of the common heritage of mankind, as applied in the International Undertaking on Plant Genetic Resources, is subject to the sovereignty of States over their plant genetic resources” 29 .

Although the Authority is supposed to undertake activities in the Area in a manner that would prevent, reduce and control “interference with the ecological balance of the marine environment” 30

and shall adopt appropriate rules, regulations and procedures for “the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment” 31 ,

still the economic outlook of the project makes it unsuitable for the exigencies of present-day sustainable management purposes. Indeed, it has been suggested that the concept itself is incompatible with the principles of environmental protection and sustainability 32 , as these were set out and gradually developed in the series of programme statements: the 1972 Stockholm Declaration on the Human Environment 33 , the 1992 Rio Declaration on Envi-

Approved by Resolution 8/83 of the FAO General Conference at its 22nd session, 1983; text available at . 29 Resolution C3/91, adopted by the FAO General Conference at its 26th session, 1991; ibid . ; see also Kerry ten Kate & Carolina Lasén Diaz, The Undertaking revisited: A commentary on the revision of the International Undertaking on Plant Genetic resources for Food and Agriculture, 6 RECIEL 1997, pp. 284-292. 30 Article 145(a) LOSC. 31 Article 145(b) LOSC. 32 Thus Leary, supra note 4, at pp. 99-100; Jonathan Verschuuren, Principles of environmental law. The ideal of sustainable development and the role of principles of international, European and national environmental law (Nomos, Baden-Baden 2003); Elisa Morgera, From Stockholm to Johannesburg: From corporate responsibility to corporate accountability for the global protection of the environment?, 13 RECIEL 2004, pp. 214-222; Lavanya Rajamani, From Stockholm to Johannesburg. The anatomy of dissonance in the international environmental dialogue, 12 RECIEL 2003, pp. 23-32. 33 11 ILM 1972, pp. 1416-1420. For comments on its impact then and now see Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 Harvard JIL 1973, pp. 413-515; Jutta Brunnée, The Stockholm Declaration and the structure and processes of international environmental law, in Myron H. Nordquist, John Norton Moore & Said Mahmoudi (eds.), The Stockholm Declaration and law of the marine environment (Martinus Nijhoff, The Hague 2003) pp. 67-84. 28


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ronment and Development 34 and the 2002 Johannesburg Summit on Sustainable Development 35 . Nor is the jurisdictional aspect it contains, in the form of a transfer of powers from the State to the commons, necessarily welcome at all times. Both the 1992 Convention on Biological Diversity 36 and the 2001 FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) 37 moved away from it, opting instead for the parallel concept of ‘common concern of humankind’ 38 . This is a discernible shift in emphasis away from a claim of outright ownership towards a much more balanced ap proach, where resources remain subject to the traditional allocation of State jurisdiction – or, indeed, a system of freedom of access thereto – but their management requires a holistic approach, which takes into account the general interest of humanity in their conservation and thus legitimises restrictions to the sovereign State’s powers to regulate or limitations placed upon

31 ILM 1992, pp. 876-880. For first reactions see David A. Wirth, The Rio Declaration on Environment and Development. Two steps forward and one back, or vice versa?, 29 Geor gia LR 1995, pp. 599-653; Joseph Sinde Warioba, The reform of the United Nations system in the context of the Law of the Sea and the United Nations Conference on the Environment and Development, 7 African JICL 1995, pp. 426-444; Douglas M. Johnston, UNCLOS III and UNCED: A collision of mind-sets?, in Lorne K. Kriwoken (ed.), Oceans law and policy in the post-UNCED era. Australian & Canadian perspectives (Kluwer, 1996) pp. 11-24. 35 See also in general Ulrich Beyerlin & Martin Reichard, The Johannesburg Summit: Outcome and overall assessment, 63 ZaöRV 2003, pp. 213-237; Virginie Barral, Johannesburg 2002: Quoi de neuf pour le développement durable?, 107 RGDIP 2003, pp. 415-432; Kevin R. Gray, World Summit on Sustainable Development. Accomplishments and new directions?, 52 ICLQ 2003, pp. 256-268. 36 31 ILM 1992, pp. 882-847; concluded during the 1992 Rio Conference on Environment and Development, the Convention boasts today 190 members; for the text and latest developments see . For an overview see Michael Bowman & Catherine Redgwell (eds.), International law and the conservation of biological diversity (Kluwer Law International, The Hague 1996); Catherine Redgwell, The Convention on Biological Diversity, 31 Thesaurus Acroasium 2002, pp. 340-396. See also Frédéric Jacquemont & Alejandro Caparrós, The Convention on Biological Diversity and the Climate Change Convention 10 years after Rio. Towards a synergy of two regimes?, 11 RECIEL 2002, pp. 169-180. 37 Adopted during the 31st FAO General Conference on 21 January 2001; text available at. For a thorough discussion of the history, the concept and the purpose of the new instrument see Ikechi Mgbeoji, Beyond rhetoric: State sovereignty, common concern and the inapplicability of the common heritage concept to plant genetic resources, 16 Leiden JIL 2003, pp. 821-837; Mary E. Footer, Agricultural biotechnology, food security and human rights, in Francioni & Scovazzi (eds.), supra note 15, pp. 257-284, especially at pp. 270-278. 38 For a full discussion of both the concepts and related notions see Jutta Brunnée, Common areas, common heritage and common concern, in Daniel Bodansky, Jutta Brunnée & Ellen Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford 2007) pp. 550-573, especially at pp. 562-565. 34

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access to common spaces 39 ; in other words, we move away from the question: who is the regulator? and, instead, concentrate on the question: how are we to regulate?. The fact that the new concept was better suited to the purpose of conventional provisions, which sought to call upon States to regulate in order to protect common goods perceived at peril rather than enter into a discussion of sovereignty, is further evidenced in the very first preambular paragraph of the 1992 UN Framework Convention on Climate Change (FCCC) 40 , which acknowledges that “[C]hange in the earth’s climate and its adverse effects are a common concern of humankind”;

or even at the same declaration in the preamble of the Convention on Biological Diversity 41 , which is further clarified with the explicit reaffirmation that “States have sovereign rights over their own biological resources” 42 .

It is certainly true that the notion of common heritage retains a certain allure, an almost romantic attraction 43 . It is also true that the structure created under the Law of the Sea Convention applies only to mineral resources 44 , whereas the original proposal covered all the natural resources, living and non-living, existing in the international sea floor beyond the 200-mile limit of coastal State jurisdiction 45 , thus reducing it, in the words of its instigator, Francioni, supra note 16, at pp. 15-16; see also Riccardo Pavoni, Biodiversity and Biotechnology: Consolidation and strains in the emerging international legal regimes, in Francioni & Scovazzi (eds.), supra note 15, pp. 29-57, especially pp. 31-39. 40 31 ILM 1992, pp. 849-873; concluded during the 1992 Rio UN Conference on Environment and Development, it entered into force on 21 March 1994. With 189 ratifications so far, the Convention enjoys almost universal membership; for the text and latest developments see . For an overview see Robin Churchill & David Freestone (eds.), International Law and global climate change (Graham & Trotman/Martinus Nijhoff, London/Dordrecht/Boston 1991); Laurence Boisson de Chazournes, The United Nations Framework Convention on Climate Change: on the road towards sustainable development, in Rüdiger Wolfrum (ed.), Enforcing environmental standards. Economic mechanisms as viable means? (Springer, Berlin/Heidelberg 1996) pp. 285-300. 41 Thus the third preambular paragraph of the Convention of Biological Diversity: “ Affirming that the conservation of biological diversity is a common concern of humankind, …”. 42 Fourth preambular paragraph of the Convention of Biological Diversity. 43 Ram Prakash Anand, Common heritage of mankind: Mutilation of an ideal, 37 Indian JIL 1997, pp. 1-18. 44 Article 133(a) LOSC. See also infra. 45 Tullio Scovazzi, Mining, protection of the environment, scientific research and bio prospecting: Some considerations on the role of the International Seabed Authority, 19 TIJMCL 2004, pp. 383-409, at pp. 386-387; Charles-Alexandre Kiss, La notion du patrimoine commun de l’humanité, 175 RCADI 1982-II, pp. 99-256. 39


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to “little short of a disaster” 46 . Often the discussion on the management of shared resources, and fisheries is perhaps the best example, reverts to the need to set up a centralised structure that would undertake the every-day function of the system in the common interest, raising prospects and fears for a creeping common heritage 47 . Overall, however, it seems that the world has moved away from novel concepts of common or joint ownership or jurisdiction towards new concepts of management 48 – including the recent proposal for the creation of an ombudsman for the oceans 49 . And therein lies the challenge for regulating the future in the deep seabed. 2. A N INSTITUTIONAL APPROACH? Be it a question of jurisdiction or management, the fact of the matter remains that the deep seabed has been removed from the jurisdictional claims of coastal States: the last strands of a certain tiding-up are taking place in the context of the Commission on the Limits of the Continental Shelf (CLCS), which employs a quasi-judicial process with a view to settle “final and binding” outer continental shelf limits beyond 200 miles 50 . Thus Arvid Pardo, The Convention on the Law of the Sea: A preliminary appraisal, 20 San Diego LR 1983, pp. 489-503, at p. 499. 47 Thus Erik Franckx, The 200-mile limit: Between creeping jurisdiction and creeping common heritage? 48 GYBIL 2005, pp. 117-149, at pp. 135-147; Moritaka Hayashi, Global governance of deep-sea fisheries, 19 TIJMCL 2004, pp. 289-298, at pp. 297-298; Yoshifumi Tanaka, Zonal and integrated management approaches to ocean governance: Reflections on a dual approach in international law of the sea: ibid., pp. 483-514, at pp. 506-512. 48 H.N. Schreiber (ed.), Law of the Sea. The common heritage and emerging challenges (Kluwer Law International, The Hague 2000); Edward Guntrip, The common heritage of mankind. An adequate regime for managing the deep seabed?, 4 Melbourne JIL 2003, pp. 376-405. 49 Report of the work of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its seventh meeting , UN Doc. A/61/156, 17 July 2006, paragraph 93; available at . 50 Article 76 paragraph 8 LOSC. Submissions have been made by the Russian Federation (2001), Brazil (2004), Australia (2004), Ireland (2005), New Zealand (2006), jointly by France, Ireland, Spain and the United Kingdom (2006), and Norway (2006); for the latest developments see . See, in general, Donald Rothwell, Building on the strengths and addressing the challenges: The role of the law of the sea institutions, 35 ODIL 2004, pp. 131-156, at pp. 133-135; Ron MacNab, The case of transparency in the delimitation of the outer continental shelf in accordance with UNCLOS article 76, ibid ., pp. 1-17; Philomène A. Verlaan, New seafloor technology and Article 76 of the 1982 United Nations Convention on the Law of the Sea, 21 Marine Policy 1997, pp. 425-434; Edwin Egede, Submission of Brazil and article 76 of the Law of the Sea Convention 1982, 21 TIJMCL 2006, pp. 33-55; Andrew Serdy, Towards certainty of seabed jurisdiction beyond 200 nautical miles from the territorial 46

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Under the Law of the Sea Convention all activities in the Area, including payments in compensation for any encroachment upon it sanctioned by the CLCS 51 , would fall under the jurisdictional powers of the International Sea bed Authority, “the organisation through which States parties shall …organise and control activities in the Area, particularly with a view to administering the resources of the Area” 52 .

This seemingly wide mandate, however, is severely curtailed upon closer inspection, as the definition of such resources refers only to “all solid, liquid or gaseous mineral resources in situ in the Area or beneath the seabed, including polymetallic nodules” 53 .

The ISA has already undertaken the task of regulating the parameters of ex ploration and exploitation for such matters. Thus in 2000 the Assembly ap proved the Regulations on Prospecting and Exploration for Polymetallic

sea baseline: Australia’s submission to the Commission on the Limits of the Continental Shelf, 36 ODIL 2005, pp. 201-217; Clive R. Symmons, The Irish partial submission to the Commission on the Limits of the Continental Shelf in 2005: A precedent for future such submissions in the light of the ‘disputed areas’ procedures of the Commission?, 37 ODIL 2006, pp. 299317; Alex G. Oude Elferink & Constance Johnson, Outer limits of the continental shelf and ‘disputed areas’: State practice concerning article 76(10) of the LOS Convention, 21 TIJMCL 2006, pp. 461-487; Alex G. Oude Elferink, Article 76 of the LOSC on the definition of the continental shelf: Questions concerning its interpretation from a legal perspective, ibid., pp. 269-285; Vicente Marotta Rangel, Settlement of disputes relating to the delimitation of the Outer Continental Shelf: The role of international courts and arbitral tribunals, ibid., pp. 347362; Myron H. Nordquist, John Norton Moore & Tomas H. Heidar (eds.), Legal and scientific aspects of continental shelf limits (Martinus Nijhoff, 2004). 51 Article 82 paragraph 1 LOSC reads: “The coastal State shall make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured”. For the practicalities of the matter, which has not been as yet implemented, see Michael W. Lodge, The International Seabed Authority and Article 82 of the UN Convention on the Law of the Sea, 21 TIJMCL 2006, pp. 323-333; George Mingay, Article 82 of the LOS Convention – Revenue sharing – The mining industry’s perspective, ibid., pp. 335-346. 52 Article 157 paragraph 1 LOSC. For an overview of what it was, what ended up being and what it may become see Shigeru Oda, International law of the resources of the sea, 127 RCADI 1969-II, pp. 355-484; Ugo Villani, Il regime di sfruttamento dei fondi marini, in Istituto Italo-Latinoamericano, Prospettive del diritto del mare all’alba del XXI secolo – Per spectivas del derecho del mar al alba del siglo XXI , Convegno italo-latinoamericano, 12-13 novembre 1998 (IILA, Roma 1999) pp. 149-171; Niels-Jürgen Seberg-Elverfeldt, The settlement of disputes in deep seabed mining. Access, jurisdiction and procedure before the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (Nomos, BadenBaden/Hamburg 1998). 53 Article 133(a) LOSC.


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Nodules in the Area 54 , the ‘Mining Code’. On that basis, the Authority was able to finally conclude the first exploration contracts with pioneer investors 55 . In view of the increasingly commercially-interesting presence of other sediments and structures, a similar effort is under way in order to conclude two separate sets of regulations 56 , namely on hydrothermal polymetallic sulphides 57 and cobalt-rich ferromanganese crusts 58 , with regulations on methane hydrates to follow. The Mining Code is further complemented by Recommendations for the guidance of contractors for the assessment of pos sible environmental impacts arising from exploration for polymetallic nodules in the Area 59 , in practice an environmental impact assessment manual for the deep seabed. The adoption of environmental regulations by the International Seabed Authority has also fuelled the debate as to the extent of its jurisdiction. Under article 145 of the Law of the Sea Convention, the Authority has indeed the obligation to protect and preserve the marine environment, albeit strictly “from harmful effects which may arise from activities in the Area” 60 ,

although such ‘activities’ would only cover Doc. ISBA/6/A/18, available at . For an overview see M.W. Lodge, International Seabed Authority Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, 20 JENRL 2002, pp. 270-295; idem., Environmental regulation of deep seabed mining, in Andrée Kirchner (ed.), International Maritime Environmental Law (Kluwer Law International, 2003) pp. 49-59; Jason C. Nelson, The contemporary seabed mining regime: A critical analysis of the Mining Regulations promulgated by the International Seabed Authority, 16 Colorado JIELP 2005, pp. 27-76. 55 These were consortia sponsored by China (COMRA); France (Ifremer-Afernod); the Government of India; Japan (DORD); the Government of the Republic of Korea; the Russian Federation (Yuzhmoreologiya) and Poland in cooperation with Bulgaria, Cuba, the Czech re public, the Russian Federation and Slovakia (ICM); as well as of 2005 the Federal Republic of Germany; for the latest developments see . For a overview see Günther Jänicke, Joint ventures for deep seabed mining operations, 55 ZaöRV 1995, pp. 329-338. 56 Doc. ISBA/10/C/WP.1/Rev.1, 3 May 2006. The Council eventually decided to proceed with two separate sets of regulations; Press release SB/12/12, 15 August 2006; both documents available at . 57 Defined as “hydrothermally formed deposits of sulphite minerals, which contain concentrations of metals including, inter alia, copper, lead, zinc, gold and silver”; draft regulation 1 paragraph 3(f), ibid. 58 Defined as “hydroxide/oxide deposits of cobalt-rich iron/manganese (ferromanganese) crust formed from direct participation of minerals from seawater onto hard substrates containing minor but significant concentrations of cobalt, titanium, nickel platinum, molybdenum, tellurium, cerium, other metallic and rare earth elements”; draft regulation 1 paragraph 3(b), ibid. 59 Approved on 4 July 2001 by the Legal and Technical Commission; Doc. ISBA/7/LTC/1/ Rev.1 of 10 July 2001, available at . 60 Article 145 LOSC. 54

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“all activities of exploration for, and exploitation of the [mineral] resources of the Area” 61 .

It is clear that the intention of both the framers of the Convention and of the 1994 Agreement relating to the implementation of Part XI of the UN Convention of the Law of the Sea was to grant to the Authority a preferential role of administrator in the Area, further endowed with all “incidental powers, consistent with [the] Convention that are implicit in and necessary for the exercise of its powers and functions with respect to activities in the Area” 62 .

In essence, the Regulations build upon the environmental standards set out in Part XII of the Law of the Sea Convention, as further developed over time by international instruments and the case-law of international courts and tri bunals 63 . On this basis, the Authority could well attempt an expansion of its powers, even those implied, to cover all pollution control in the Area, including pollution arising from or incidental to the exploration and exploitation of the biological resources of the deep sea. Indeed, a rather ingenious argument would read the increasingly bothersome light and noise impact of such activities into the term ‘energy’, included in the definition of pollution under article 1 paragraph 1(4) of the Law of the Sea Convention 64 , in a very pertinent example of the living-instrument nature of the Convention. It seems, however, that both the Authority and the member States are somewhat reluctant to delve into matters other than those strictly allocated to them under the Law of the Sea Convention 65 , thus significantly reducing the possible impact of their work on further developments in the Area. Article 1 paragraph 1(3) LOSC. Article 157 paragraph 2 LOSC in fine. 63 The same argument was made in Maria Gavouneli, From uniformity to fragmentation? The ability of the UN Convention on the Law of the Sea to accommodate new uses and challenges, in Anastasia Strati, Maria Gavouneli & Nikos Skourtos (eds.), Unresolved issues and new challenges to the Law of the Sea (Martinus Nijhoff, Leiden/Boston 2006) pp. 205-233, at p. 221; Scovazzi, supra note 15, at pp. 88-91; see also Haritini Dipla, The role of the International Court of Justice and the International Tribunal for the Law of the Sea in the progressive development of the Law of the Sea, ibid., pp. 235-250, especially at pp. 245-248. 64 Thus Leary, supra note 4, pp. 40-43; H.M. Dotinga & A.G. Oude Elferink, Acoustic pollution of the oceans: The search for legal standards, 31 ODIL 2000, pp. 151-182. 65 See Frida Mara Armas Pfirter, Legal implications related to the management of seabed living resources in the Area under the Law of the Sea Convention, paper submitted to the ISA Legal and Technical Commission in 2004, as quoted by Scovazzi, supra note 45, pp. 400-401; Ikechi Mgbeoji, (Under)mining the seabed? Between the International Seabed Authority Mining Code and the sustainable bioprospecting of hydrothermal vent ecosystems in the seabed area: Taking precaution seriously, 18 Ocean YB 2004, pp. 413-452. 61 62


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On the other hand, the Authority is well placed and fully authorised to remove from State action certain parts of the seabed, in effect creating deepsea marine protected areas. Under article 162 paragraph 2(x) of the Law of the Sea Convention, the ISA Council may “disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to the marine environment”.

The Secretary-General of the International Seabed Authority has repeatedly made noises indicating that this is a goal which the organisation may wish to pursue 66 , although again with characteristic circumspect reluctance. Already provisions referring to ‘preservation reference zones’ appear in both the Regulations on polymetallic nodules 67 and the draft regulations on sul phides 68 . The designation of such areas shall not directly restrict or control in any way other activities in the Area, such as bioprospecting or even deep-sea tourism 69 , but there is no doubt that protective regulation would also rever berate upon them. In fact, the Logatchev vent field in the mid-Atlantic has already been suggested as a possible such protected area 70 . Similar initiatives Statement by the Secretary-General of the International Seabed Authority to the Fourth Meeting of the Informal Consultative Process of the UN Convention on the Law of the Sea (UNICPLOS), 2003, available at . 67 Regulation 31(7) reads: “If the Contractor applies for exploitation rights, it shall propose areas to be set aside and used exclusively as impact reference zones and preservation reference zones. ‘Impact reference zones’ means areas to be used for assessing the effect of each contractor’s activities in the Area on the marine environment and which are representative of the environmental characteristics of the area. ‘Preservation reference zones’ means areas in which no mining shall occur to ensure representative and stable biota of the seabed in order to assess any changes in the flora and fauna of the marine environment”; see supra note 56. 68 Draft regulation 33(4) reads: “Contractors, sponsoring States and other interested States or entities shall cooperate with the Authority in the establishment and implementation of programmes for monitoring and evaluating the impacts of deep seabed mining on the marine environment. When required by the Authority, such programmes shall include proposals for areas to be set aside and used exclusively as impact reference zones and preservation reference zones. Impact reference zones’ means areas to be used for assessing the effect of each contractor’s activities in the Area on the marine environment and which are representative of the environmental characteristics of the area. ‘Preservation reference zones’ means areas in which no mining shall occur to ensure representative and stable biota of the seabed in order to assess any changes in the flora and fauna of the marine environment”; see supra note 56. 69 A developing industry, deep-sea tourism is currently bereft of any regulation under the Law of the Sea Convention and, consequently, a perfectly legal endeavour to “be conducted with reasonable regard for activities in the Area”; article 147 paragraph 3 LOSC. However, the ISA could well be competent to establish the parameters of such ‘reasonable regard’; thus also Leary, supra note 4, at p. 51. 70 Ibid., at p. 220. 66

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are also to be found on the national level and the regional level, covering areas within coastal State jurisdiction. Thus the Endeavour hydrothermal vents have been designated by Canada a ‘marine protected area’ under article 35 of the Oceans Act 1996 71 whereas the Lucky Strike hydrothermal vent field in the exclusive economic zone of Portugal is a candidate for specially protected area designation under Annex V of the OSPAR Convention 72 . Whichever way one approaches the issue, the fact remains that the jurisdiction of the International Seabed Authority, as defined in the Law of the Sea Convention, is clearly deficient when compared with the emerging new developments in technology and real life. All attempts to enlarge the strict limits of the common heritage of mankind concept and overcome its express link to the mineral resources of the seabed, so as to also encompass new activities in the deep sea area, would necessarily presume the consent of States to embark on what clearly constitutes a (tacit?) amendment of the Convention. A less charitable look could ascertain that “what we are trying to do is to make the law of another era fit the needs of today” 73 . Nevertheless, international law cannot have the luxury to change rules with the seasons, or even eras of development – more often than not, we have to make do with the tools available. Yet, in spite of what looks very much like a dispiriting first appearance, the task is not to be considered unattainable, especially when one is reminded that the Law of the Sea Convention is indeed a living instrument, capable both of change in order to accommodate new challenges and of construing novel associations of existing provisions, both in the text itself and in other international conventions, to support the evolving needs of the international community. Whether such an adjustment to emerging requirements would extend to a veritable ‘modification’ of the Convention remains an open question, which needs to be tackled not as an item of intellectual curiosity but as an important issue with immediate (and increasing verifiable) practical ramifications.

So designated on 7 March 2003, after an initial ‘pilot’ period; for further information see . For an early discussion see Lyle Glowka, Bioprospecting, alien invasive species and hydrothermal vents: Three emerging legal issues in the conservation and sustainable use of biodiversity, 13 Tulane ELJ 2000, pp. 329360, at pp. 353-354. 72 Michael Lodge, Improving international governance in the deep sea, 19 TIJMCL 2004, pp. 299-316, at p. 310. For a similar experience in another context see Ronán J. Long & Anthony Grehan, Marine habitat protection in sea areas under the jurisdiction of a coastal mem ber State of the European Union: The case of deep-water coral conservation in Ireland, 17 TIJMCL 2002, pp. 235-262. 73 Thus Leary, supra note 4, at p. 34. 71


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3. MANIFESTATIONS OF THE FREEDOMS OF THE HIGH SEAS In the absence of an explicit provision in the Law of the Sea Convention, covering the genetic resources of the deep sea and conferring jurisdiction upon them, enlightenment must necessarily be sought to other rules and regulations. The most readily available suggestion would be to equate the prospecting for genetic resources to fishing and apply therein the rules relating to conservation and management of the living resources of the high seas. Bioprospecting thus becomes yet another manifestation of the freedoms of the high seas and the jurisdictional conundrum is further clarified: rather than operating within the quasi ‘territorial’ jurisdiction of the Area, the flag State of the prospector would assume (or resume) the primary responsibility of regulating such activities, even when conducted in the deep sea. The simplicity of this approach, however, is negated by the complexity of bioprospecting activities. Although both fishing and bioprospecting necessitate the removal of living organisms from their natural environment, any similarity stops there. Unlike the massive and permanent character of extraction from the natural environment that characterises fishing, bioprospecting requires often minute quantities of living resources, on the basis of which an intangible superstructure of intellectual effort (and property 74 ) may be erected – a process mainly governed by the 1977 Budapest Treaty on the international recognition of the deposit of microorganisms for the purposes of patent procedure 75 . The collection of genetic material is but a first step in the overall effort required for the exploitation of the genetic resources of the sea and cannot be equated neither in fact not in law with fishing. It has to be noted, however, that the distinction argument concentrates on a difference between fishing and bioprospecting, which appears to be qualita For an overview of intellectual-property issues related to genetic resources – although not necessarily marine – see Ian Walden, Intellectual property rights and biodiversity, in Bowman & Redgwell (eds.), supra note 36, pp. 171-189; Sam Johnston & Yamin Farhana, Intellectual property rights and access to genetic resources, in John Mugabe (ed.), Access to genetic resources (African Centre of Technology Studies, Nairobi 1997) pp. 245-269; Rüdiger Wolfrum & Peter-Tobias Stoll (eds.), Access and benefit sharing, intellectual property rights, ex-situ collections, European Workshop on Genetic Resources. Issues and related sub jects, Heidelberg 1999 (Schmidt Verlag, Berlin 2000); Graham Dutfield (ed.), Intellectual property rights, trade and biodiversity. Seeds and plant varieties, The IUCN Project on the Convention on Biological Diversity and the International Trade Regime (Earthscan, London 2000); OECD, Genetic inventions, intellectual property rights and licensing practices. Evidence and policies (Paris 2002). 75 Adopted on 28 April 1977 and amended on 28 September 1980, it entered into force on 19 August 1980 and for the amendments on 24 May 1984; text available at ; Leary, supra note 4, pp. 172-175. 74

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tive rather than quantitative: indeed, it pertains to the very nature of the genetic resources of the deep seabed as fundamental elements of biodiversity on earth. On the basis of our present knowledge, this clearly seems to be the case. Nevertheless, the irreverent thought must be expressed: Is it true that the genetic resources of the deep seabed, subject as they are to pollution and ultimately extinction, are different in nature than the (ultimately numerable) species of fish in the sea or it is just our ignorance – and thus our awe in their encounter – that leads us to treat them differently than mere food? The same rationale underlies the second attempt at regulating such activities as yet another protected category of marine life. Nevertheless, even this seemingly more appropriate analogy, drawing on the similarities between the genetic resources of the deep seabed and the sedentary species, allocated by article 77 of the Law of the Sea Convention to the jurisdiction of the coastal State as part of is powers over its continental shelf, has also proven to be unsatisfactory. Defined as “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 sea bed or the subsoil”76 ,

sedentary species do not necessarily share the natural characteristics of the deep sea creatures. It has been suggested, however, that the territorial element of their continental-shelf affiliation may serve as a blueprint for any future arrangement applicable on the living resources of the Area 77 , thus preserving the fundamental allocation of jurisdiction of the Law of the Sea Convention in the deep seabed. Another approach would be to equate bioprospecting with marine scientific research, a traditional freedom of the high seas, even though not ex pressly mentioned as such in the 1958 High Seas Convention 78 . Instead, issues of marine scientific research were addressed in the 1958 Geneva Convention on the Continental Shelf 79 , which demonstrated a distinct preference for ‘pure’ scientific research, prohibiting “any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication” 80 ,

and further instructing the coastal State not to “normally” withhold its consent,

Article 77 paragraph 4 LOSC. 77 Scovazzi, supra note 45, at pp. 83-84. 78 Article 2 of the 1958 Convention on the High Seas; 450 UNTS 82. 79 499 UNTS 311. 80 Article 5 paragraph 1 of the 1958 Geneva Convention on the Continental Shelf; ibid . 76


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“if the request is submitted by a qualified institution with a view to purely scientific research into the physical or biological characteristics of the continental shelf” 81 .

The Law of the Sea Convention does not include a definition of research activities or types thereof, although it does contain a long list of specific provisions on the conduct of marine scientific research 82 . Although never actually naming the distinction, article 243 of the Law of the Sea Convention refers to what would amount to a definition of ‘pure’ research 83 in setting the standard of cooperation required; and the Convention proceeds to address in a different manner the two different aspects of research activities. The question would then arise: which of the two distinct sets of rules would apply to bioprospecting, as an expression of marine scientific research? Given the ex plicit lucrative nature of bioprospecting, any similarities would rather have to concentrate on the parallel existence of an element of commercial exploitation in marine research, the ‘applied’ or ‘resource-oriented’ category of scientific research 84 . Thus, under the general rules of the Law of the Sea Convention, marine scientific research carried out in areas under the jurisdiction of the coastal State “exclusively for peaceful purposes and in order to increase scientific knowledge in the marine environment for the benefit of all mankind” 85

will be granted authorisation almost automatically; indeed, coastal States are obligated to “establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably” 86 .

Article 5 paragraph 8 of the 1958 Geneva Convention on the Continental Shelf; ibid . For the system of marine research in general under the Law of the Sea Convention see Monserrat Gorina-Ysern, An international regime for marine scientific research (Transnational Publications, New York 2003); Elie Jarmache, Sue quelques difficultés de la recherche scientifique marine, La mer et son droit. Mélanges offerts à Laurent Lucchini & Jean-Pierre Quéneudec (Pedone, Paris 2003) pp. 303-314; J. Ashley Roach, Marine scientific research and the new Law of the Sea, 27 ODIL 1996, pp. 59-72; A.H.A. Soons, Marine Scientific Re search and the Law of the Sea (Kluwer, Deventer 1982). 83 Article 243 LOSC reads: “States and competent international organisations shall cooperate, …, to create favourable conditions for the conduct of marine scientific research in the marine environment and to integrate the efforts of scientists in studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them”. 84 Note, however, Giselle Verhoosel, Prospecting for marine and coastal biodiversity: International law in deep water, 13 TIJMCL 1998, pp. 91-107, at p. 100, who seems to consider bioprospecting as pure research. 85 Article 246 paragraph 3 LOSC. 86 Ibid. 81 82

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In contrast, the coastal State may withhold consent, if the project to be carried out in their exclusive economic zone or continental shelf “is of direct significance for the exploration and exploitation of natural resources, whether living or non-living” 87 .

In the marine areas beyond national jurisdiction, flag State jurisdiction is reinstated and thus all States have the right to carry out research in the Area – where, in an interesting interplay, article 256 stipulates that such research must be carried out “in conformity with the provisions of Part XI” whereas article 143 LOSC explicitly states that it must be carried out “in accordance with Part XIII”! The freedom to conduct marine research is still made sub ject to the application of the general principles enumerated in article 240 of the Law of the Sea Convention, which include the obligation to conduct all research for peaceful purposes 88 ; as well as the obligation reiterated in article 143 specifically for the Area with the added parameter to ensure “the benefit of mankind as a whole” 89 . It is important to note in this respect that this communal obligation applies to all marine research activities carried out in the Area and not just those related to mineral resources found therein. Indeed, the international scientific community seems to have realised the need to further expand the principles under which it operates so as to also include considerations of environmental protection, including a rudimentary environmental impact assessment: It is in this context that a draft Code of Conduct for the sustainable use of hydrothermal vent sites has been (privately) elaborated, to be further complemented with a set of Operating Guidelines, both general and specific for certain sites, for use by organisations and individuals operating there 90 . I am not aware of any official attempts to comprise a similar set of regulations: the regulation of marine scientific research remains firmly within the attributes of the coastal State, with little leeway given to any meaningful intervention by the international community. The same rules apply in the Area: jurisdiction remains with the flag State but the Authority is granted a central coordinating role with a view Article 246 paragraph 5(a) LOSC. Article 240(a) LOSC. 89 See in general Lyle Glowka, Genetic resources, marine scientific research and the international seabed area, 8 RECIEL 1999, pp. 56-66; Éric Canal-Forgues, Les ressources génétiques des grands fonds marins ne relevant d’aucune juridiction nationale, 8 ADM 2003, pp. 99-110. 90 For a brief presentation see Leary, supra note 4, pp. 196-198; Lyle Glowka, Putting marine scientific research on a sustainable footing at hydrothermal vents, 27 Marine Policy 2003, pp. 303-312. 87 88


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“to promote and encourage the conduct of marine scientific research in the Area and … coordinate and disseminate the results of such research and analysis when available” 91 .

The point of dissemination of the product created by others lies at the crossroads between the freedom of scientific research and the concept of the common heritage of mankind. If the notion of scientific research is widely understood to also encompass bioprospecting 92 , then clearly the International Seabed Authority would have an important role to play in coordinating bio prospecting activities in the Area and serve “as a forum for the discussion and development of principles for the better im plementation of the existing legal regime for marine scientific research in the Area and the management of biodiversity in the Area” 93 .

It was with this approach in mind that the International Seabed Authority participated in the 2006 inaugural meeting of the Ad hoc Open-ended Informal Working Group set up by UN General Assembly resolution 59/24 of 17 November 2004 to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction 94 , where its leading role was particularly highlighted. In that context, the Authority has continued to organise a series of workshops with a view to further enhance the collection and dissemination of data among the scientific community, the offshore mining industry and relevant contractors and eventually the member States in four priority areas, which include levels of biodiversity, species range and gene flow in abyssal nodule provinces; disturbance and recolonisation processes at seafloor following mining track creation and plume resedimentation; minimum plume impacts on the water column ecosystems; and natural variability in nodule province ecosystems 95 . The understanding behind this coordination and dissemination exercise is to effectively level the playing field, providing to scientists worldwide the necessary pri Article 143 paragraph 2 LOSC. Scovazzi, supra note 45, at pp. 86-88; Yoshifumi Tanaka, Obligation to cooperate in marine scientific research and the conservation of marine living resources, 65 ZaöRV 2005, pp. 937-965, at pp. 943-945. 93 Report of the Secretary-General of the International Seabed Authority to the Assembly of the Authority, Doc. ISBA/9/A/3, 4 June 2003, paragraph 63; available at . 94 Report of the Secretary-General of the International Sea-bed Authority to the Assembly of the Authority, Doc. ISBA/12/A/2, 26 June 2006, paragraphs 51-52; available at . 95 ISA, Report of the Secretary-General of the International Seabed Authority under Article 166 paragraph 4 of the UN Convention on the Law of the Sea, Doc. ISBA/10/A/3, 31 March 2004, paragraph 128; text and recent developments available at . See also ISA, Prospects for international collaboration in marine environmental research to enhance understanding of the deep-sea environment . Proceedings of the ISA’ workshop held in Kingston, Jamaica, 29 July to 2 August 2002 (ISA, Jamaica 2006). 91 92

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mary information they need in order not to be excluded from operations in the Area – and thus ensure their continued access to the resources of the common heritage of mankind – without, at the same time, preventing those able and willing to pursue further research and invest upon the prospecting, development and exploitation of any newly identified genetic resources of the deep seabed. In the alternative, if marine scientific research were to be considered denuded of any financial aspect, then the only legal regime applicable on the (unstoppable) future development of bioprospecting and associated activities would be to revert to an unfettered freedom of the high seas, where the flag State would be able to authorise operations in the deep seabed with virtually no consideration of the evolving needs of the international community, which ultimately do constitute a common concern of humankind under the Biodiversity Convention 96 . Even in these infant years of the deep seabed industry, this option offers an unacceptable solution – not least because the general principles of deep seabed management might have attained the status of customary law 97 . In an attempt to find a way out of this conundrum, the international community seeks recourse to other regulatory systems, which, either standing alone or, better still, in conjunction with the constitutional system of the Law of the Sea Convention, may well prove to be better suited to the exigencies and particularities of the biological resources of the deep seabed – and the bonanza expectations surrounding them. 4. PARALLEL JURISDICTIONS IN THE DEEP SEA The Law of the Sea Convention is not the only instrument naturally applicable upon the genetic resources of the deep sea. The general objective of the 1992 Convention on Biological Diversity may seem to have been drafted with genetic resources and bioprospecting in mind, referring to: “the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilisation of genetic resources, including by appropriate access to genetic resources and by Thus also Rosemary Rayfuse, Biological resources, in Bodansky, Brunnée & Hey (eds.), supra note 38, pp. 362-393. 97 Arcangelo Travaglini, Reconciling natural law and legal positivism in the deep seabed mining provisions of the Convention on the Law of the Sea, 15 Temple ICLJ 2001, pp. 313334; Stephen Vasciannie, Deep seabed mining in customary international law. Reconsidering aspects of the evidence, 27 West Indian LJ 2002, pp. 149-183; Ian Bezpalko, The deep seabed: Customary law codified, 44 NRJ 2004, pp. 867-905. 96


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appropriate transfer of relevant technologies, taking into account all rights over these resources and to technologies, and by appropriate funding” 98 .

Genetic resources are defined in this context as “genetic material or actual or potential value”99 , the latter being “any material of plant, animal, microbial or other origin containing functional units of heredity” 100 .

The general provisions are further specified in article 15 of the Biodiversity Convention, which makes access to genetic resources subject to mutually agreed terms and prior informed consent, as well as the 2002 Bonn Guidelines on Access to genetic resources and the fair and equitable sharing of the benefits arising out of their utilisation101 . The Biodiversity Convention operates on the territoriality principle for components of biological diversity found in areas within the limits of national jurisdiction and reverts to flag State jurisdiction for processes and activities carried out beyond the limits of national jurisdiction 102 . It has been argued that the provisions relating to genetic resources apply only to marine areas within the areas of national jurisdiction, as they premise marine scientific research, and presumably also bioprospecting, on the prior informed consent 103 on the contracting party, where such resources are situated. Consequently, the CBD provisions on access and benefit sharing are considered not applicable beyond the limits of national jurisdiction 104 . This, however, appears to be a very restricted reading of both the notion of ‘bioprospecting’ and the Biodiversity Convention. Although the genetic resources of the deep sea clearly constitute ‘components of biological diversity’, it is equally undisputable that their harvesting is accomplished through processes and activities carried out beyond the limits of national jurisdiction but well under Article 1 of the Biodiversity Convention; supra note 36. 99 Article 2 of the Biodiversity Convention, ibid. 100 Ibid. 101 Decision VI/24, Access and benefit-sharing as related to genetic resources, adopted during the 6th Conference of the Parties to the Biodiversity Convention (COP 6), 2002; text available at . See in general M.I. Jeffery, Bioprospecting: Access to genetic resources and benefit-sharing under the Convention on Biodiversity and the Bonn Guidelines, 6 Singapore JICL 2002, pp. 747-808; David Farrier & Linda Tucker, Access to marine bioresources: Hitching the conservation cart to the bioprospecting horse, 32 ODIL 2001, pp. 213239; Lyle Glowka, Emerging legislative approaches to implement Article 15 of the Convention on Biological Diversity, 6 RECIEL 1997, pp. 249-262; Charles Lawson, Implementing an objective of the Convention on Biological Diversity. Intellectual property, access to genetic resources and benefit sharing in Australia, 22 Env’l & Planning LJ 2005, pp. 130-157. 102 Article 4(b) of the Biodiversity Convention. 103 Article 15 paragraph 5 of the Biodiversity Convention. 104 Thus Glowka, supra note 71, at p. 359. 98

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the jurisdiction of the State, whose nationals carry them out. Indeed, this ap proach seems to constitute the rule of the Biodiversity Convention – as the member States also assume responsibility for the actions of their nationals everywhere in the sea space 105 . It is a principle further elaborated in the general obligation to cooperate under article 5 of the Biodiversity Convention and certainly in the classic formulation of the ‘no harm’ rule in article 3 thereof, which reads: “States have, … the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.

The irony of finding a complete regulatory arsenal for the utilisation of deep sea resources outside the Law of the Sea Convention has not escaped the attention of commentators 106 . On the other hand, the two conventions, although clearly complementary in the marine environment, do not share the same outlook. Indeed, nowhere is the contrast more pronounced than in the treatment of the marine living resources. Where the Law of the Sea Convention regulates ‘exploitation’ and ‘management’, the Biodiversity Convention concentrates on the protection of species and habitat 107 . The Biodiversity Convention is explicitly based on the precautionary principle 108 – although the International Tribunal on the Law of the Sea had considerable trouble to read it through the lenses of a (slightly modifying but still modifying) precautionary approach 109 . Instead of Thus also Scovazzi, supra note 15, at pp. 91-92; see also Rüdiger Wolfrum, The Convention on Biological Diversity: using State jurisdiction as a means of ensuring compliance, in Wolfrum (ed.), supra note 40, pp. 373-393. 106 Lyle Glowka, The deepest of ironies: Genetic resources, marine scientific research and the Area, 12 Ocean Yearbook 1996, pp. 154-178; Donald K. Anton, Law of the sea’s biological diversity, 36 Columbia JTrans’l L 1998, pp. 341-371; Christopher C. Joyner, Biodiversity in the marine environment: Resource implications for the law of the sea, 28 Vanderbilt J. Trans’l L. 1995, pp. 635-687. 107 Giuseppe Cataldi, Biotechnology and marine biogenetic resources: The interplay between UNCLOS and the CBD, in Francioni & Scovazzi, supra note 15, pp. 99-109, at p. 99; Rüdiger Wolfrum & Nele Matz, The interplay of the United Nations Convention on the Law of the Sea and the Convention on Biological Diversity, Max Planck YBUNL 2000, pp. 445480, at p. 477. 108 Thus the seventh preambular paragraph to the Biodiversity Convention: “Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimise such a threat, …”. 109 ITLOS, Southern Bluefin Tuna cases, Australia v. Japan, New Zealand v. Japan, provisional measures, 1999, paragraphs 77-79; available at ; Simon Marr, The Southern Bluefin Tuna cases. The precautionary approach and conservation and management of fish resources, 11 EJIL 2000, pp. 815-831; Alan Boyle, Further development of the Law of 105


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the profits-oriented ‘common heritage of mankind’ of the Law of the Sea Convention, the Biodiversity Convention opts for the burden-sharing concept of ‘common concern of humankind’ 110 . At the end of the day, these are treaties belonging to different eras of law-making, different eras of law tout court . And yet, there is no doubt that the application of the two treaties is almost indispensable in matters relating to the genetic resources of the deep sea. The possibility of a conflict, although generally acknowledged as theoretical, remains nevertheless realistic. The Biodiversity Convention includes a conflicts rule in article 22, which reads: “ 1. The provisions of this Convention shall not affect the rights and obligations of any contracting party deriving from any existing international agreement, except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity. 2. Contracting parties shall implement this Convention with respect to the marine environment consistently with the rights and obligations of States under the law of the sea”.

At first sight, the Biodiversity Convention accords precedence to the Law of the Sea Convention, as further required by article 311 paragraph 3 of the latter. However, a closer look reveals that this is not a blanket rule granting unconditional priority to the Law of the Sea Convention. Such priority is accorded only to the extent that it conforms to a ‘no-harm-to-biodiversity’ rule and provided, moreover, that the Biodiversity Convention is applied consistently with the general rules of the law of the sea rather than the specific provisions of the Law of the Sea Convention111 . This reading of the conflict clause may eventually result in the Biodiversity Convention overriding the Law of the Sea Convention; as indeed it should be. Unless the widest possi ble latitude is given to the conduct compliant with the general principles enunciated in the two treaties, the innovations of the Biodiversity Conventhe Sea Convention: Mechanisms for change, 54 ICLQ 2005, pp. 563-584, at pp. 573-574. See also in general Simon Marr, The precautionary principles in the Law of the Sea: Modern decision-making in international law (Martinus Nijhoff, The Hague 2003); D. Vanderzwaag, The precautionary principle and marine environmental protection: Slippery shores, rough seas and rising normative tide, 33 ODIL 2002, pp. 165-188; A. Trouwborst, Evolution and status of the precautionary principle in international law (Martinus Nijhoff, The Hague 2002); Pascale Martin-Bidou, Le principe de précaution en droit international de l’environnement, RGDIP 1999, pp. 631-666. 110 Scovazzi, supra note 45, at p. 406; Françoise Burhenne-Guilmin & Susan CaseyLefkowitz, The Convention on Biological Diversity: A hard-won global achievement, YBIEL 1992, pp. 43-59. Even the transition from ‘mankind’ to ‘humankind’ is worth noting. 111 Wolfrum & Matz, supra note 107, at p. 476; see also Jonathan B. Warner, Using global themes to reframe the bioprospecting debate, 13 Indiana Journal of Global Legal Studies 2006, pp. 645-671.

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tion would be set aside by the oldest rules of the Law of the Sea Convention and the true meaning of article 311 LOSC, which purports to safeguard the backbone of the law of the sea principles, will be lost. In essence, the conflict clauses in both treaties send the same message: the two systems are complementary and mutually reinforcing as they exist in parallel. Indeed, a true picture of the law of the sea today would require consideration of both regulatory regimes and harmonisation of both the national and regional measures taken in their implementation. This is understood by the International Seabed Authority, which has already suggested alternative solutions, including a protocol to the LOS Convention with a view to add management of the biological resources of the Area to the mandate of the Authority or even a less formal ‘agreed interpretation’ of the Convention that would extend its coverage over such resources as well 112 and could even allow for some type of benefit-sharing in accordance with the precepts of the Biodiversity Convention 113 . The wider question remains: Can the Law of the Sea Convention address needs and challenges that were clearly beyond the scope of the Convention as originally drafted but certainly not beyond its subject-matter? Would a potential evolution through interpretation also cover an extension or, even worse, a change in the allocation of jurisdictional powers to States and the international community as a whole? A negative answer, probably more correct on the basis of a strict legal argument, would fail to realise that the system created by the Law of the Sea Convention is susceptible – and indeed purposefully built – to influence subsequent law-making in matters affecting the subject-matter of the Convention 114 . On the other hand, such latter-day agreements add layers of nuance to the backbone of the mother Convention, thus slowly but securely modifying it. As this never-ending process progresses, it would become difficult to identify the original contractual obligation and distinguish it from glossae irrupting from and erected upon it, most of them acquiring a separate life of their own in another contractual arrangement. At the same time, the living instrument that is the Law of the Sea Convention would be able to better adjust to new realities and remain relevant in the future.

Thus SBSTTA, Report , supra note 12, paragraphs 122-123; Scovazzi, supra note 15, at pp. 96-97. 113 For such a suggestion see Leary, supra note 4, at pp. 175-181. 114 Boyle, supra note 109, at p. 580. Note also the comment by Budislav Vukas, The Law of the Sea Convention and the law of treaties, Liber amicorum Günther Jaenicke zum 85. Geburtstag (1998) pp. 631-654, at p. 649: “[the Law of the Sea Convention] pretends to play a role similar to the one of article 103 of the UN Charter”. 112

CHAPTER 6

CHALLENGES TO JURISDICTION IN THE HIGH SEAS The freedom of navigation in the high seas has been one of the most hallowed principles of international law. Understood at first as an expression of the laissez faire principles of an era of economic and political expansion, the system operates on the dual parameters of equality of access to the high seas coupled with an obligation of reciprocal respect for the exclusive jurisdiction of the flag State. In the words of Sir William Scott in the Le Louis case: “All nations being equal, all have an equal right to the uninterrupted use of the unappropriated parts of the ocean for their navigation. In places where no local authority exists, where the subjects of all States meet upon a footing of entire equality and independence, no one State, or any of its subjects, has the right to assume or exercise authority over the subjects of another ” 1 .

The underlying tension between the shrinking part of open spaces and the ever encroaching coastal State jurisdiction is already evident in this early formulation of the principle – and it will survive until the present day, long after the tortuous negotiations on the Law of the Sea Convention has been concluded. The starting point would also include an almost manichaeic understanding of the high seas as an area not subject to regulation, as compared to the regulated parts closer to shore, is, however, considered undisputed. That absolute freedom would only be fettered in later years, where the notion of community welfare would appear, first as an obligation to abstain from certain morally reprehensible and ultimately illegal acts at sea, the natural example being piracy iure gentium; and ultimately, as a positive obligation to safeguard the common good, such as the sustainable management of fisheries, the protection of the marine environment or even the common heritage of mankind. The open seas would then be viewed not as an area beyond regulation but rather as a common resource, to which access must be secured on equal terms for the common benefit. Thus the great ideological exposition in the 1960s would set out the principle as follows: High Court of Admiralty, Le Louis, [1817] 165 Eng. Rep. 1464, at 1475 (my emphasis); for a brief discussion see Thomas D. Lehrman, Enhancing the Proliferation Security Initiative: The case for a decentralised non-proliferation architecture, 45 Virginia JIL 2004, pp. 223-276, at pp. 229-230. 1

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“The great bulk of the oceans of the world should be maintained as a common resource, freely open to all peoples upon a basis of complete equality in cooperative pursuit of the greatest possible production and sharing of values” 2 .

This subtle change in perception, in words resonant of the era, did not prevent the freedoms of the high seas, as best exemplified in the freedom of navigation, to acquire even more emblematic status. During the negotiations for the Law of the Sea Convention, the notion of ‘excessive claims to jurisdiction’ 3 came to counterbalance the strong pressure from coastal States to expand seawards – indeed, in 1979 the United States established the ‘Freedom of Navigation’ programme as a shift through which all claims to extended jurisdiction would pass 4 . The Law of the Sea Convention eventually reiterated the customary freedom of the high seas, expressed both in positive terms, namely enumerating at least some of the protected activities 5 , and in a negative manner 6 , but it also, crucially, apportioned jurisdiction in a manner that guaranteed some element of control over acts undertaken therein. In practice, the flag State retains full powers to act in the high seas as it sees fit, a liberty mitigated only by the general obligation not to abuse such power, the outer limits of which are delineated by the respective powers of the other States; in the words of the Convention: “Those freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also

Myres S. McDougal & William T. Burke, The public order of the oceans – A contemporary international law of the sea (1962) at ix. 3 For the proponents and content of the notion see J. Ashley Roach & Robert W. Smith, Excessive maritime claims (1994). 4 For the presentation of the system see Marian Nash Leich, Contemporary practice of the United States relating to international law: Law of the Sea (US Digest, Ch. 7, §1) United States ocean policy, 77 AJIL 1983, pp. 619-620; George Victor Galdorisi, The United States Freedom of Navigation Program. A bridge for international compliance with the 1982 UN Convention on the Law of the Sea?, 27 ODIL 1996, pp. 399-408; John E. Noyes, The United States, the Law of the Sea Convention and freedom of navigation, 29 Suffolk Transn’l LR 2005, p. 1-24. 5 Article 87 LOSC refers, “inter alia”, to the freedom of navigation, freedom of overflight, freedom to lay submarine cables and pipelines, freedom to construct artificial islands and other installations, freedom of fishing and freedom of scientific research. For the most recent overview see David Anderson, Freedoms of the high seas in the modern law of the sea, in David Freestone, Richard Barnes & David Ong, The Law of the Sea. Progress and prospects (Oxford 2006) pp. 327-346; Tullio Scovazzi, The evolution of international law of the sea: New issues, new challenges, 286 RCADI 2000, pp. 39-244. 6 Article 89 LOSC reads: “No State may validly purport to subject any part of the high seas to its sovereignty”. 2

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with due regard for the rights under this Convention with respect to activities in the Area” 7 .

This balance between freedom of action and responsibility for control, once considered sacrosanct, has been challenged recently as new exigencies come to fore – or, simply, old needs are perceived to have acquired increased importance. Whether such claims would succeed to modify the customary allocation of jurisdiction in the high seas, as further reiterated in the Law of the Sea Convention, remains an open question. 1. THE LIMITS OF FLAG STATE JURISDICTION It is clear that, under the Law of the Sea Convention, the order of the high seas was entrusted primarily to the flag State, whose exclusive jurisdiction could only be challenged “in exceptional cases expressly provided for in international treaties or in this Convention” 8 .

These circumstances would include piracy 9 and slave-trafficking 10 , both offences under universal jurisdiction 11 , but exclude any other interference with the ship without the consent of the flag State – at least in times of peace and absent any action by the Security Council, acting under chapter VII of the Charter 12 . Indeed, at closer inspection, one could find the text of the Conven-

Article 87 paragraph 2 LOSC. For the exercise of such rights in practice see Enzo Cannizzaro, Pouvoirs discrétionnaires des États et proportionnalité dans le droit de la mer, 106 RGDIP 2002, pp. 241-268. 8 Article 92 paragraph 1 LOSC. 9 Article 105 LOSC. 10 Article 99 LOSC. 11 See also the discussion supra, Part I, chapter 1.3. 12 Operations restricting freedom of navigation in the high seas under conditions of use of force constitute a different universe, which I will not discuss here. For the briefest of overviews see George Politakis, Modern aspects of the laws of naval warfare and maritime neutrality (London/New York 1998); Angelos Yokaris, ‘’,   ,       (2.8.1990-2.3.1991) [=Embargo in the sea and the air and air and naval operations against Iraq], in L. Divani, L.-A. Sicilianos & A. Skordas (eds.),       .      [=International crises and intervention by the international organisation. Persian Gulf and ex Yugoslavia] (Athens 1994) pp. 55-109; Wolff Heintschel von Heinegg, Naval blockade, International Law across the spectrum of conflict. Essays in honour of Professor L.C. Green on the occasion of his eightieth birthday (Naval War College, Newport 2000) pp. 203-230; L. McLaughlin, United Nations mandated naval interdiction op7

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tion riddled with safeguards of the high seas freedom 13 , even in these wellestablished cases of possible intervention by third States. Thus, although under article 105 of the Convention, “every State may seize a pirate ship”, it does so at the risk of being liable for compensation to the flag State for any loss or damage suffered therefrom, if such seizure “on suspicion of piracy has been affected without adequate grounds” 14 .

The definition of piracy, reflecting the customary offence of piracy iure gentium, remains also limited: It covers only the commission – and ancillary offences thereto – of: “(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, another ship or aircraft, or against persons or property on board such ship or aircraft; (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State” 15 .

Even the right of boarding, the ancient right of visit and search already codified under article 22 of the 1958 Convention on the High Seas 16 , which apparently also includes the right to approach in order to ascertain the nationality of the ship without the actual examination of papers or the boarding of the ship 17 , is strictly applicable under the Law of the Sea Convention only when: “ (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade;

erations in the territorial sea?, 51 ICLQ 2002, pp. 249-278; L.-A. Sicilianos, L’authorisation par le Conseil de securité de recourir à la force, 106 RGDIP 2002, pp. 5-50. 13 For a comprehensive list of acts of permissive and non-permissive interference with ships in the high seas see Michael A. Becker, The shifting public order of the oceans: Freedom of navigation and the interdiction of ships at sea, 46 Harvard ILJ 2005, pp. 131-230, at pp. 172-175. 14 Article 106 LOSC. 15 Article 101 LOSC. 16 Convention on the High Seas, 450 UNTS 82; Anderson, supra note 5, at pp. 341-343. 17 For a thorough discussion on this point see Angelos Syrigos, Interdiction of vessels in the high seas, in Anastasia Strati, Maria Gavouneli & Nikolaos Skourtos (eds.), Unresolved issues and new challenges to the law of the sea. Time before and time after (Martinus Nijhoff, Leiden/Boston 2006) pp. 149-201, at pp. 154-156; R. Reuland, Interference with non-national ships in the high seas: Peacetime exceptions to the exclusivity rule of flag jurisdiction, 22 Vanderbilt J Transn’l L 1989, pp. 1161-1229, at pp. 1169-1171.


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(c) the ship is engaged in unauthorised broadcasting and the flag State of the warship has jurisdiction under article 109 [on jurisdiction to prosecute 18 ]; (d) the ship is without nationality; or (e) through flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship” 19 .

In all cases, the basis of such action is found in a deficiency of flag State control and supervision or, even more directly, in a possible lack of proper link with the flag State, as in the case of flagless and thus Stateless ships 20 . Any other intervention on a vessel on the high seas is strictly dependent upon the consent of the flag State. That is also true for the illicit traffic in narcotic drugs or psychotropic substances, where, in spite the explicit instruction to the States to cooperate with a view to its suppression, any attempt at verification and arrest of a suspect ship is made conditional upon the authorisation of the flag State 21 . It is undoubtedly true that such requirements did not preclude the conclusion of a rich network of treaties policing activities in the high seas: they include old and new bilateral agreements for the suppression of arms trafficking 22 or formal and informal arrangements for the interdiction of the drugs trade 23 . On the other hand, it is worth noting that even such specialised agreements retain the primacy of flag State jurisdiction in the high seas. Thus, in a typical example, the 1988 UN Convention against illicit traffic in narcotic drugs and psychotropic substances authorises search and seizure of vessels engaged in narcotics trafficking on reasonable grounds, whereupon:

Such jurisdiction is vested to the flag State of the ship, the State of registry of the installation, the State of which a person is a national, any State where the transmissions can be received, or any State where authorised communication is suffering interference; article 109 paragraph 3 LOSC. 19 Article 110 LOSC. 20 R.R. Churchill & A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press 1999) at pp. 213-214; A.W. Anderson, Jurisdiction over stateless vessels on the high seas: An appraisal under domestic and international law, JMLC 1981-1982, pp. 323-343. 21 Article 108 LOSC. 22 See, for instance, the 1919 and 1925 Conventions on Arms Traffic between Great Britain and France, as stated in Anna van Zwanenberg, Interference with ships on the high seas, 10 ICLQ 1961, pp. 785-817, at p. 791. 23 J. Siddle, Anglo-American co-operation in the suppression of drug smuggling, 31 ICLQ 1982, pp. 726-747; William C. Gilmore, Narcotics interdiction at sea: UK-US cooperation, 13 Marine Policy 1989, pp. 218-230; J.D. Stieb, Survey of United States jurisdiction over high seas narcotics trafficking, 19 Georgia JICLQ 1989, pp. 119-147; Christina C. Sorensen, Drug trafficking on the high seas: A move toward universal jurisdiction under international law, 4 Emory ILR 1990, pp. 207-230. 18

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“a party should notify the flag State and request authorisation from the flag State to take appropriate measures in regard to the vessels” 24 .

The primacy, if not exclusiveness, of flag State jurisdiction has become thus the cornerstone on which the public order of the high seas is erected. Consequently, the strength of the overall regulatory system would necessarily rest upon the effectiveness of flag State jurisdiction. And therein lies the problem as the well-known deficiencies of flag State jurisdiction may put the overall security of international law at sea at risk. Instances of increased ‘disorder’ 25 abound, not necessarily limited to inefficient enforcement of fisheries regulations 26 or an ineffective system of marine pollution control 27 , but rather extended to questions of State security stricto sensu. The exalted status of such concerns impacts disproportionally upon the stability of the system, both in terms of wider institutional arrangements and in the more specific area of bilateral relations. The international community is naturally painfully aware of this state of affairs. Although it certainly condones a certain degree of flag State ‘indifference’, yet it has increasingly developed mechanisms of control, whereby the actions – or inaction, as the case may be – of the flag State is directly or indirectly subjected to scrutiny, without at any time diverging from the principle of flag State exclusivity. Such initiatives typically originate in the International Maritime Organisation, which coordinates the parallel revision of existing instruments and the adoption of new ones with a view to enhance security in the high seas, under the additional impetus created by the threat of terrorism28 . The IMO Diplomatic Conference on Maritime Security in December 2002 resulted in a series of measures 29 , which share two characteristics: first, they impose upon the flag State additional obligations, with a view to make its purview of the ship and its activities, especially in the high seas, more transparent and, consequently, capable of review; second, they create a comprehensive system of risk assessment for both the ship and the port, thus Article 17 of the Convention; adopted as ECOSOC Doc. E/Conf.82/15 of 19 December 1988, 28 ILM 1989, pp. 497-526. 25 For the opening salvo see William Langewiesche, Anarchy at sea, Atlantic Monthly, September 2003, at p. 63. 26 See supra Part II, chapter 4. 27 See, for instance, Carmen Casado, Vessels on the high seas. Using a model flag State com pliance agreement to control marine pollution, 35 California Western ILJ 2005, pp. 203-236. 28 See IMO General Assembly Resolution A.924(22), Review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships, November 2001; available at 29 For a comprehensive presentation see ; Hartmut Hesse & Nicolaos Charalambous, New security measures for the international shipping community, 3 WMUJMA 2004, pp. 123-138, also available at . 24


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effectively sharing the burden of control between the flag State and the port State, in fact expanding coastal State jurisdiction over the ship. It is true that primacy is accorded at all times to the flag State but it is significant that the IMO Maritime Safety Committee felt compelled in December 2004 to issue to all States a reminder of their obligation to notify flag States when exercising control and compliance measures 30 . The first category of innovations concentrated on practical arrangements, enhancing the effectiveness of the flag State. Thus, under Regulation 19 of Chapter V of the 1974 International Convention on the Safety of Life at Sea (SOLAS) 31 , adopted in 2000, all ships of 300 gross tonnage upwards engaged in international voyages, cargo ships of 500 gross tonnage upwards and all passenger ships must be fitted with ‘automatic identification systems’ (AIS), capable of providing automatically information about the ship to other vessels and, crucially, to the coastal authorities 32 . The amendments to Chapter V ‘Safety of navigation’, adopted during the 2002 Conference of Contracting Parties to SOLAS and entered into force on 31 December 2004, further expanded that obligation to ships, other than passenger ships and tankers, of 300 gross tonnage upwards but less than 50.000 gross tonnage, thus allowing for their long-range identification and tracking 33 . Such a tracking device does not only allow the flag State to trace the movements of its vessels in the high seas but it also enables the coastal State to survey foreign ships in a radius of over 200 nautical miles offshore, clearly beyond its jurisdictional powers in an exclusive economic zone 34 . In addition, Regulation XI-1/3 has See IMO MSC/Circ.1133 , Reminder of the obligation to notify flag States when exercising control and compliance measures, 14 December 2004, available at 31 Adopted on 1 November 1974 and entered into force on 25 May 1980, SOLAS has been repeatedly amended; for the text and latest developments see . 32 For the text and further developments see . See also the Guidelines for the installation of a shipborne Automatic Identification System (AIS), agreed by the SubCommittee on the Safety of Navigation at its 48th session (8-12 July 2002) and approved by the Maritime Safety Committee at its 76th session (2-13 December 2002); IMO SN/Circ.227, 6 January 2003; see also IMO General Assembly Resolution A.956(23) Amendments to the Guidelines for the onboard operational use of shipborne automatic identification systems (AIS), both available at . 33 Ships are also fitted with a Ship Security Alert System (SSAS), which would enable seafarers to notify the authorities and other ships of a possible terrorist highjacking: see also IMO MSC/Circ.1072, Guidance on provision of ship security alert systems, 26 June 2003; IMO Resolution MSC.147(77), Adoption of the Revised performance standards for a ship security alert system; both available at ; see also Hesse & Charalambous, supra note 29, at p. 128. 34 Letitia Diaz & Barry Hart Dubner, On the problem of utilizing unilateral action to prevent acts of sea piracy and terrorism: A proactive approach to the evolution of international law, 32 Syracuse JICL 2004-2005, pp. 1-50, at pp. 19-22. 30

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been modified to require ships’ identification numbers to be permanently marked and clearly visible on the ship’s hull or infrastructure 35 . A new Regulation XI-1/5 requires all ships to be provided by the flag State with a Continuous Synopsis Record (CSR), a black box which will include an on-board record of the history of the ship 36 . Moreover, in a display of coordinated action, the International Labour Organisation revised the 1958 Seafarers’ Identity Documents Convention 37 , further enhancing the security overview of the flag State over vessel-centred operations. The second volley of measures concentrated on the adoption of the International Ship and Port Facility Security Code (ISPS Code) as Regulation XI2/2 of the new Chapter XI-2 ‘Special measures to enhance maritime security’ added to SOLAS 38 . The ISPS Code becomes thus part of the contractual arrangement and is therefore binding upon the contracting parties to SOLAS 39 , although strictly speaking only Part A of the Code is mandatory while Part B contains guidance on how to comply with the mandatory requirements. In practical terms, the Code requires all flag States to ensure that their ships are provided with a ship security alert system and issued with an International Ship Security Certificate (ISSC) 40 . If the coastal State, which is obligated to follow similar security arrangements in its ports facilities and produce an approved Port Facility Security Plan (PFSP) 41 , has clear grounds for believing that the ship is not in compliance, it enjoys a wide variety of See also IMO General Assembly Resolution A.600(15), IMO ship identification number scheme, available at 36 See IMO General Assembly Resolution A.959(23), Format and guidelines for the maintenance of the Continuous Synopsis Record (CSR); Diaz & Dubner, supra, at p. 19. 37 The Seafarers’ Identity Documents Convention (Revised), C185, was adopted on 19 June 2003 and entered into force on 9 February 2005; text and latest developments available at ; see also Hesse & Charalambous, supra note 28, at pp. 130-131. 38 Adopted in December 2002, the ISPS Code entered into force on 1 July 2004; for the text and latest developments see . 39 By March 2007, there were 158 member States to SOLAS, covering 98,8% of the world tonnage; information available at . In December 2006, during its 82nd session, the IMO Maritime Safety Committee began consideration of issues relating to the security aspects of smaller ships, not falling within the ambit of the ISPS Code; ibid . 40 See IMO MSC/Circ.1111, Guidance relating to the implementation of SOLAS Chapter XI-2 and the ISPS Code, 7 June 2004, including in Annex I: Guidance relating to the implementation of SOLAS Chapter XI-2 and the ISPS Code; and Annex II: IMO Resolution MSC.159(78), Interim guidance on control and compliance measures to enhance maritime security, 21 May 2004; available at . See also Regina Asariotis, Implementation of the ISPS Code. An overview of recent developments, 11 JIML 2005, pp. 266-287; Hesse & Charalambous, supra note 29, at p. 127. 41 Ibid ., at pp. 128-129. Information on which ports do have such a plan may be found in ISPS Code Database, created by the IMO as part of its Global Integrated Shipping Information System (GISIS), available at . 35


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options: it may detain the ship until such time as it acquires such a certificate; it may expel the ship from port; it may refuse the entry of the ship to port – although the latter only when there are clear grounds for believing that the ship poses an immediate thereat to the security or safety of persons or of ships or other property and there are no appropriate means for removing the threat. The implementation of the Code becomes thus yet another item in the long list of the port State control procedures 42 and further enhances the jurisdictional powers of the port State. The human parameters of port security, covering the entire port area and not just designated port facilities, are addressed in the 2004 jointly elaborated and approved ILO/IMO Code of Practice on Security in Ports 43 . Although these arrangements follow the allocation of jurisdiction between the flag State and the coastal (and port) State agreed in the Law of the Sea Convention, there is no doubt that their impact upon the traditional freedom of the high seas is immediate and severe. The free movement of ships and cargo with frequent unannounced diversions, which characterised a whole era of international law and maritime practice, is effectively contained and tracked at all times. It is significant that the latest amendments to SOLAS Chapter V, making mandatory from 1 January 2008 the introduction of a Long-Range Identification and Tracking (LRIT) system on passenger and cargo ships, including high-speed craft of 300 gross tonnage upwards and mobile offshore drilling units, allowing both the flag State and the coastal State access to tracking information, specifically stated that they do not create or affirm any new rights of States over ships beyond those existing in international law, particularly the UN Convention on the Law of the Sea, nor does it alter or affect the rights, jurisdiction, duties and obligations of States in connection with the Law of the Sea Convention 44 . 2. EXPANDING JURISDICTION? In the quest to remain true to the primacy of flag State jurisdiction in the high seas, the Law of the Sea Convention has perhaps stayed too close to Hesse & Charalambous, supra note 29, at p. 127; see also supra Part I, Chapter 2, 3. 43 The Code was adopted by the ILO Governing Body in March 2004 and the IMO Maritime Safety Committee in May 2004; text and latest information available at ; Hesse & Charalambous, supra note 28, at p. 131; Diaz & Dubner, supra note 32, at p. 21. 44 SOLAS Regulation V/19-1, text and further information available at . See also IMO Resolution MSC.211(81), Arrangements on the timely establishment of the long-range identification and tracking system, 19 May 2006; IMO MSC/Circ.1219, Interim LRIT technical specifications and other matters, 9 January 2007; ibid . 42

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customary solutions clearly inadequate for the present circumstances. There is no doubt that this choice was made consciously by the drafters. This is not a case of subsequent developments in technology revealing a gap in the Convention; rather it constitutes an attempt to rein in developments, existing at the time of the negotiation, which the drafters did not consider appropriate or welcome. A possible expansive construction of the relevant rules becomes therefore almost an exercise in contra legem interpretation of the Convention. Invariably, and true to form, the States parties to the Convention have sought to complement the missing parts by resorting to new contractual arrangements. The typical example remains piracy – yet again. Under the Law of the Sea Convention, the definition of piracy retains the traditional elements of a twovessel requirement and an attack perpetrated “for private ends”. Any attempt to read into attacks “against a ship, aircraft, persons or property in a place outside the jurisdiction of any State” 45

a single-ship capacity has been rebuffed, as the formulation aspires to a total lack of jurisdiction, reminiscent of an era of res nullius, rather than a discussion on the particular subject to jurisdiction 46 . Equally unsuccessful, but not for want of trying, were attempts to consider all political acts of unauthorised violence, undertaken “without any other object than to gratify his lawless appetite for mischief” 47 , as piracy. Consequently, the Law of the Sea Convention was clearly unable to address a terrorist situation in 1988, where persons known or unknown highjacked the Achille Lauro, a ship they had boarded posing as tourists, and threatened the passengers, eventually killing one of them. In the aftermath of that attack, the IMO took the initiative48 to have the Convention on Suppression of Unlawful Acts against the Safety of Maritime

Article 101(a)(ii) LOSC. Thus also José Luis Jesus, Protection of foreign ships against piracy and terrorism at sea: Legal aspects, 18 TIJMCL 2003, pp. 363-400, at p. 377. 47 Thus Justice Story in United States v. Brig Malek Adhel , 43 US (2 How.) 210, at p. 232 (1844). See also the discussions of the International Law Commission on the preparation of the 1958 High Seas Convention: “The intention to rob (animus furandi) is not required. Acts of piracy may be prompted by feelings of hatred or revenge, and not merely by the desire for gain”, 2 YBILC 1956, at p. 282. 48 The IMO had already reacted to the incident adopting IMO General Assembly Resolution A.585(14), Measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crew, 1985; and IMO MSC/Circ.443, Measures to prevent unlawful acts against passengers and crews on board ships, 1986; both available at . 45 46


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Navigation to Certain Piratical or Armed Robbery Acts (the SUA Convention) 49 concluded. The SUA Convention undertook a major expansion exercise in respect of the scope of activities brought within its regulatory coverage. The offence becomes disassociated from the two-vessel requirement and concentrates rather on activities directly against the ship, its cargo, its safe navigation, persons on board and maritime navigational facilities supporting it 50 – the entire vessel-centred universe. The geographical scope of the offence is also expanded, this time using rather old-fashioned wording: Instead of referring to the ‘high seas’ or ‘areas outside the jurisdiction of any State’, as the Law of the Sea Convention does, the SUA Convention applies summarily to ships navigating “through or from waters beyond the outer limit of the territorial sea of a single State, or the lateral limits of its territorial sea with adjacent States” 51 .

Zones in the sea thus being summarily set aside, the allocation of jurisdiction is also expanded beyond the flag State to also include a multitude of other States with direct or indirect connection to the offence: the State in the territory of which the offence occurred, including its territorial sea; the State

1678 UNTS 29004; Malvina Halberstam, Terrorism on the high seas: The Achille Lauro, piracy and the IMO Convention on maritime safety, 82 AJIL 1988, pp. 269-309; Tullio Treves, The Convention for the suppression of unlawful acts against the safety of maritime navigation, 2 Singapore JICL 1998, pp. 541-556. 50 Article 3 of the SUA Convention reads: “1. Any person commits an offence, if that person unlawfully and intentionally: (a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; or (b) performs an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ships; or (c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; or (d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship; or (e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if any such act is likely to endanger the safe navigation of a ship; or (f) communicates information which he knows to be false, thereby endangering the safe navigation of a ship; or (g) injures or kills any person, in connection with the commission or the attempted commission of any of the offences set forth in subparagraphs (a) to (f). 2. Any person also commits an offence if that person: (a) attempts to commit any of the offences set forth in paragraph 1; or (b) abets the commission of any of the offences set forth in paragraph 1 perpetrated by any person or is otherwise an accomplice of a person who commits such an offence; or (c) threatens, with or without a condition, as is provided for under national law, aimed at compelling a physical or juridical person to do or refrain from doing any act, to commit any of the of fences set forth in paragraph 1, subparagraphs (b), (c) and (e), if that threat is likely to endanger the safe navigation of the ship in question”; text also available at . 51 Article 4 of the SUA Convention. 49

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of nationality of the offender; or the State of the nationality of the victim; or even any other State, “when the offence is committed in an attempt to compel that State to do or abstain from doing any act” 52 .

In so doing, the SUA Convention uses the full house of the traditional bases of jurisdiction, in essence bypassing the exclusive jurisdiction of the flag State for activities undertaken in the high seas. It is fair to say that the SUA Convention was not a splendid example of immediate legislative success. Once the immediate reasons for its conclusion were forgotten, the Convention was put to hibernation with almost no other instances of application. It was again resurrected with the resurgence of the terrorist threat in 2001, as part of the international arsenal available for the fight against terrorism 53 . The resulting review exercise was undertaken not in light of the law-of-the-sea instruments anymore but rather under the influence of the increasing corpus of anti-terrorism conventions. And it is mostly in this light that any attempt to evaluate its impact has been so far undertaken. The 2005 Protocol to the SUA Convention adds to the definition of the offence two new parameters. First, it includes a general hold-all clause penalising any act, whose “purpose … by its nature or context, is to intimidate a population or to compel a government or an international organisation to do or to abstain from doing any act” 54 .

Second, it expressly adds the new offence of transportation of biological, chemical and nuclear (BCN) weapons of mass destruction (WMD), with the exception of activities carried out by States parties to the relevant treaties 55 : amid them the Treaty on the Non-Proliferation of Nuclear Weapons 56 , the Article 6 of the SUA Convention. Note also UN General Assembly Resolution 55/7, Oceans and the Law of the Sea, 27 February 2001, paragraph 37, urging States to become party to the SUA Convention and further ensure its effective implementation; UN Doc. A/RES/55/7, text available at ; see also Sean D. Murphy, UN Security Council on non-proliferation of WMD, 98 AJIL 2004, pp. 606-608. 54 Article 3bis of the SUA Protocol; IMO Doc. LEG/CONF.15/DC/1, 13 October 2005; it opened for signature on 14 February 2006; also available at . For a first reaction see Françoise Odier, Convention relative à la répression d’actes illicites contre la sécurité de la navigation maritime, 10 ADM 2005, pp. 299-306; Nathalie Klein, Legal implications of Australia’s maritime identification system, 55 ICLQ 2006, pp. 337-368, at pp. 348-349. 55 Ibid . 56 Concluded in London, Moscow and Washington on 12 June/1 July 1968 and entered into force on 5 March 1970, 7 ILM 1968, pp. 809-817. The NPT has been reviewed twice in 1995 52 53


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Convention on the development, production and stockpiling of bacteriological and toxic weapons and on their destruction 57 , the Convention on the prohibition of development, production, stockpiling and use of chemical weapons and on their destruction 58 . In so doing, it complements the definitions of and 2000 and a third major review conference is being prepared for 2010; for further information and developments see . See also Mohamed Ibrahim Shaker, The evolving international regime of nuclear non-proliferation, 321 RCADI 2006, pp. 9-202; Tuiloma Neroni Slade, The 1995 review and extension of the Treaty on the non-proliferation of nuclear weapons, 5 RECIEL 1996, pp. 246-252; Miguel Marín Bosch, The Non-Proliferation Treaty and its future, in Laurence Boisson de Chazournes (ed.), International law, the International Court of Justice and nuclear weapons (Cambridge 1999) pp. 375-389; James F. Keely, Compliance and the Non-Proliferation Treaty, in Canadian Council on International Law (ed.), Treaty compliance: Some concerns and remedies (Kluwer Law International, The Hague 1998) pp. 21-34; Maurice Andem, The Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Some reflections in the light of North Korea’s refusal to allow international inspection of its nuclear facilities, 64 Nordic JIL 1995, pp. 575-590; Raven Winters, Preventing repeat offenders. North Korea’s withdrawal and the need for reviions to the Nuclear NonProliferation Treaty, 38 Vanderbilt J Transn’l L 2005, pp. 1499-1529. 57 Concluded in London, Moscow and Washington on 16 December 1971/10 April 1972, it entered into force on 26 March 1975, 1015 UNTS 163, 11 ILM 1972, pp. 309-315; text and latest developments available at . For an early overview see Eric Stein, Im pact of new weapons technology on international law: selected aspects, 133 RCADI 1971-II, pp. 223-387; see also Onno Kervers, Strengthening compliance with the Biological Weapons Convention. The draft protocol, 8 Journal of Conflict & Security Law 2003, pp. 161-200; Marie-Isabelle Chevrier (ed.), The implementation of legally binding measures to strengthen the Biological and Toxin Weapons Convention (Kluwer, Dordrecht 2004); Robert D. Pinson, Is nano-technology prohibited by the Biological and Chemical Weapons Conventions?, 22 Berkeley JIL 2004, pp. 279-309; Maurizio Martellini, Kathryn MacLaughlin & Piers Millett, Poisoning humanity. Bioterrorism, biological weapons and non-State actors, 61 La Communità internazionale 2006, pp. 65-92. 58 Concluded in Paris on 13 January 1993, it entered into force on 29 April 1997, 32 ILM 1993, pp. 800-873; the Convention has currently an almost universal adherence with 182 member States and is administered by the Organisation on the Prohibition of Chemical Weapons; for more information and developments see . For an overview see Walter Krutzsch & Ralf Trapp, A commentary on the Chemical Weapons Convention (Martinus Nijhoff, Dordrecht 1994); Daniel Bardonnet (éd.), La Convention sur l’interdiction et l’élimination des armes chimiques. Une percée dans l’entreprise multilatérale du désarmement (Martinus Nijhoff, Dordrecht 1995); Natalino Ronzitti, La Convention sur l’interdiction de la mise au point, de la fabrication, du stockage et de l’emploi des armes chimiques et sur leur destruction, RGDIP 1995, pp. 881-928; J.P. Perry Robinson, Implementing the Chemical Weapons Convention, 72 International Affairs 1996, pp. 73-89; Kevin J. Fitzgerald, The Chemical Weapons Convention: inadequate protection from chemical warfare, 20 Suffolk Transn’l LJ 1997, pp. 425-448; Michael Bothe (ed.), The new Chemical Weapons Convention. Implementation and prospects (Kluwer Law International, The Hague 1998); Douglas S. Scott, The compliance regime under the Chemical Weapons Convention. A summary and analysis, in Canadian Council on International Law (ed.), supra note 56, pp. 87132; Birnal N. Patel, The accountability of international organisations: A case study of the Organisation for the Prohibition of Chemical Weapons, 13 Leiden JIL 2000, pp. 571-597; Urs A. Cipolat, The new Chemical Weapons Convention and export controls: Towards greater

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biological and chemical weapons to be found in the Bacteriological and Toxin Convention and the Chemical Weapons Convention, respectively: both sets of definitions remain compatible: indeed, the SUA Protocol seems to use the conventional definitions as headlines 59 although it avoids a wholesale reference to them. At the same time, the new transport offence covers a wider range of possible chemical weapons and their uses that those envisaged in the original convention while it allows for its transfer in circumstances not directly involving warfare. Thus, the transfer of chemical weapons intended for “… (C) military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; or (D) law enforcement, including domestic riot control purposes; …” 60 ,

remains excluded from the scope of the SUA Convention, as amended by the 2005 Protocol. In contrast the definition of ‘biological weapons’ is a copy of the original one and encompasses: “… (1) microbial or other biological agents, or toxins whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; or (2) weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.” 61

It is significant, however, that even in that context, the SUA Protocol retains the exclusive flag State jurisdiction in the high seas. The new Article

multilateralism?, 21 Michigan JIL 2000, pp. 393-444; Megan Eshbaugh, The Chemical Weapons Convention: with every step forward, we take two steps back, 18 Arizona JICL 2001, pp. 209-244; Matthew Meselson & Julian Perry Robinson, A draft convention to prohibit biological and chemical weapons under international criminal law, 28 Fletcher Forum of World Affairs 2004, pp. 57-71; Ramesh Chandra Thakur & Ere Haru (eds.), The Chemical Weapons Convention. Implementation, challenges and opportunities (UNUP, New York 2006). 59 Compare article II of the Chemical Weapons Convention, which reads: “’Chemical weapons’ means the following, together or separately: (a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; (b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which could be released as a result of the employment of such munitions and devices; (c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b)”; ibid. 60 Article 1(d)(ii) of the SUA Convention as amended by the SUA Protocol. 61 Article 1(d)(i) of the SUA Convention as amended by the SUA Protocol and article I of the Bacteriological Weapons Convention; supra note 35.


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8bis establishes a right of boarding “on reasonable grounds to suspect” 62 , along the lines of the Law of the Sea Convention, upon authorisation by the flag State. There is certainly a nuance in the strong obligation to cooperate “to the fullest extent possible to prevent and suppress unlawful acts covered by [the] Convention, in conformity with international law, and shall respond to request pursuant to this article as expeditiously as possible” 63 .

Indeed, the requirement of the prior consent of the flag State may be eliminated altogether: States so indicating at the time of ratification are presumed to have accorded their consent for such boarding, “if there is no response … within four hours of acknowledgement of receipt of a request to confirm nationality” 64 .

It is therefore clear that even under circumstances where the Law of the Sea Convention is – by choice – deficient, the international community, having acknowledged the need to react, prefers to remain within the boundaries set up by it. The exclusive jurisdiction of the flag State in the high seas has maintained its attraction and, ultimately, its usefulness, at least at the level of collective responses. 3. LIMITATIONS TO FLAG STATE EXCLUSIVITY? Flag State jurisdiction in the high seas does not preclude any contractual arrangements on cooperation or even a delegation of the powers to exercise such jurisdiction to another State. Indeed, article 110 of the Law of the Sea Convention, delineating the exclusivity of flag State jurisdiction, starts with an overriding clause: “Except where acts of interference derive from powers conferred by the treaty, ….”.

The latest cooperative effort along those lines is the Proliferation Security Initiative (PSI) 65 , announced in May 2003 as an attempt to prevent the prolif Article 8bis paragraph 4 of the SUA Convention as amended by the SUA Protocol; see also the standard for boarding established in article 110 LOSC: “…unless there is reasonable ground for suspecting …”. 63 Article 8bis paragraph 1 of the SUA Convention as amended by the SUA Protocol. 64 Article 8bis paragraph 5(d) of the SUA Convention as amended by the SUA Protocol. 65 For an overview see Michael Byers, Policing the high seas: The Proliferation Security Initiative, 98 AJIL 2004, pp. 526-545; Ian Patrick Barry, The right of visit, search and seizure of foreign-flagged vessels on the high seas pursuant to customary international law. A defence of the Proliferation Security Initiative, 33 Hofstra LR 2004, pp. 299-330. 62

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eration of weapons of mass destruction (WMD) by sea, land and air. It assumes the form of a Statement of intentions, rather than a formal treaty, whereby a number of States 66 undertake to abide by a set of ‘Interdiction Principles’ 67 . The participating States have thus undertaken the obligation to adopt effective measures to combat WMD proliferation, delivery systems or related materials 68 , cooperate on information exchange and coordination of such activities 69 , review domestic law to strengthen these efforts and further “work to strengthen when necessary relevant international laws and frameworks in appropriate ways to support these commitments” 70 .

Amid the measures employed to pursue these objectives, the participating States undertake the obligation: “[a]t their own initiative or at the request and good cause shown by another State, to take action to board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial sea of any other State, that is reasonably suspected of transporting such cargoes to or from States or non-State actors of proliferation concern and to seize such cargoes that are identified” 71 .

This reciprocal authorisation to exercise the jurisdictional powers of the flag State is certainly not new in international law. Indeed, it has been repeatedly used in the coordination efforts on drug trafficking mandated by the Law of the Sea Convention: a total of 23 bilateral agreements have been agreed between the US and Caribbean and Central American States, including agreements with Haiti 72 , Honduras 73 , Nicaragua 74 and Guatemala 75 . Some of these

Whereas the original parties were Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States, the current list is considerably more extensive; available at . Note also the support offered by the European Union, with an express reference to the need for Security Council action: Council of the European Union, EU Strategy against proliferation of weapons of mass destruction (2003), text available at . 67 Full text available at . 68 Interdiction Principles, paragraph 1, ibid. 69 Ibid ., paragraph 2. 70 Ibid ., paragraph 3. 71 Ibid., paragraph 4(b). 72 Agreement between the United States of America and the Republic of Haiti concerning cooperation to suppress illicit maritime drug traffic, concluded on 17 October 1997; 1997 UST Lexis 128. 73 Agreement between the United States of America and the Republic of Honduras concerning cooperation for the suppression of illicit maritime traffic in narcotic drugs and psychotropic substances, concluded on 29 March 2000; 2000 UST Lexis 159. 66


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treaties are ‘ship-rider agreements’, whereby an official of the host State is placed aboard a US Coast Guard vessel, thus being at hand to authorise interdiction of ships flying the host’s flag in the high seas and/or pursue such ship in the host’s territorial waters 76 . Indeed, in a streamlining effort further fuelled by the wish to avoid the risks of bilateralism, the Organisation of American States has even proposed a multilateral model ship-rider agreement 77 . The PSI framework being just that, the US actively pursued the drug agreements template to conclude specific mutual boarding agreements with all the major flag States with an open registry. The first such agreement was concluded with Liberia 78 , which has the second largest shipping registry in the world but no navy! Nevertheless, although reciprocity would be difficult to achieve in practice 79 , the agreement remains perfectly legal. Indeed, the same pattern was followed 80 with similar agreements with Panama 81 , Belize 82 , Agreement between the Government of the United States of America and the Government of the Republic of Nicaragua concerning cooperation to suppress illicit traffic by sea and air, concluded on 1 June 2001; 2001 UST Lexis 63. 75 Agreement between the Government of the United States of America and the Government of the Republic of Guatemala concerning cooperation to suppress illicit traffic in narcotic drugs and psychotropic substances by sea and air, concluded on 19 June 2003; text available at . 76 See Byers, supra note 65, at pp. 538-539. 77 Draft Agreement concerning cooperation in suppressing illicit maritime trafficking in narcotic drugs and psychotropic substances in the Caribbean Sea, OAS Doc. OAS/ser.L/XIV 2.28 (2000), available at ; see also Lehrman, supra note 1, at p. 251. 78 Agreement between the Government of the United States of America and the Government of the Republic of Liberia concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems and related materials by sea, done on 11 February 2004 and entered into force on 9 December 2004; text available at . 79 For a vehement critique see Timothy C. Perry, Blurring the ocean zones: The effect of the Proliferation Security Initiative on the customary international law of the sea, 37 ODIL 2006, pp. 33-53, who talks of a “Potemkin village” and the creation of ‘docile bodies’, at p. 40; the “almost farcically diluted conceptions of consent and flag State” and a “new multilateralism” representing “a hawkish unilateralist device in dove’s clothing”, at p. 43. 80 See also Fabio Spadi, Bolstering the Proliferation Security Initiative at sea. A comparative analysis of ship-boarding as a bilateral and multilateral implementing mechanism, 75 Nordic JIL 2006, pp. 249-278. 81 Amendment to the Supplementary Arrangement between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement between the Government of the United States and the Republic of Panama for support and assistance from the US Coast Guard for the National Maritime Service of the Ministry of Government and Justice, done on 12 May 2004 and entered into force 1 December 2004; text available at . 82 Agreement between the Government of the United States of America and the Government of Belize concerning cooperation to suppress the proliferation of weapons of mass de74

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the Marshall islands 83 , Croatia 84 and – quite recently – Cyprus 85 and Malta 86 . All these agreements include simplified procedures for the granting of consent to board 87 , limiting reaction time from 2 hours in the Liberia88 and Panama 89 agreements to 4 hours in the Marshall islands 90 , the Malta 91 or the Cyprus 92 agreements. Comprehensive though this network becomes, the mutual exchange of flag State jurisdiction may only extend to boarding rights – not the right to seize the cargo of the vessel. A suitable legal basis must therefore be sought elsewhere. On 28 April 2004 the Security Council unanimously adopted resolution 1540 on the prevention of WMD to non-State actors93 , which obligates

struction, their delivery systems and related materials at sea, done on 4 August 2005; text available at . 83 Agreement between the Government of the United States of America and the Government of the Republic of the Marshall islands concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems and related materials at sea, done on 13 August 2004 and entered into force on 24 November 2004; text available at . 84 Agreement between the Government of the United States of America and the Government of the Republic of Croatia concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems and related materials, done on 1 June 2005; ext available at . 85 Agreement between the Government of the United States of America and the Government of the Republic of Cyprus concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery system and related materials by sea, done on 25 July 2005 and entered into force 12 January 2006; text available at . 86 Agreement between the Government of the United States of America and the Government of Malta concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery system and related materials by sea, done on 15 March 2007; text available at . 87 For further discussion on the content of such agreements see Becker, supra note 13, at pp. 181-186; Stuart Kaye, Freedom of navigation in a post 9/11 world: Security and creeping jurisdiction, in David Freestone, Richard Barnes & David Ong, The Law of the Sea. Progress and prospects (Oxford 2006) pp. 347-364, at pp. 358-359. 88 Article 4 paragraph 3(b)-(c) of the Liberia Agreement, supra note 78. 89 Article 4 paragraph 3(b)-(c) of the Panama Agreement, supra note 81. 90 Article 4 paragraph 3(b)-(d) of the Marshall islands Agreement, supra note 83. 91 Article 5 paragraph 3(b)-(c) of the Malta Agreement, supra note 86. 92 Article 4 paragraph 3(b)-(c) of the Cyprus Agreement, supra note 85. 93 UN Doc. S/RES/1540 (2004); text available at . Note also that for the purposes of the resolution, a non-State actor is any “individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of [the] resolution”; ibid . For a general overview of the resolution, its drafting history and scope see Serge Sur, La résolution 1540 du Conseil de sécurité (28 avril 2004): Entre la prolifération des armes de destruction massive, le terrorisme et les acteurs non étatiques, RGDIP 2004, pp. 855-882.


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“… all States [to] take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical or biological weapons and their means of delivery, including by establishing appropriate controls over related materials …” 94 .

Although the Security Council was at pains not to compromise in any way the effectiveness of the main weapons conventions, including especially the Non-Proliferation Treaty 95 and the concurrent obligation to pursue nuclear disarmament 96 , as reiterated by the International Court of Justice in the Advisory Opinion on the Legality of the threat or use of nuclear weapons 97 , the resolution leaves no doubt that the proliferation of nuclear, chemical or biological weapons is successfully penalised. However, Resolution 1540 (2004) does not refer to interdiction of vessels in the high seas or elsewhere: it only “[r ]ecognises that some States may require assistance in implementing the provisions of this resolution within their territories and invites States in a position to do so to offer assistance as appropriate in response to specific requests to the States lacking the legal and regulatory infrastructure, implementation experience and/or resources for fulfilling the above provisions” 98 ;

and further “calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery and related materials” 99 .

Ibid ., paragraph 3. Indeed, article VI of the Treaty on the Non-Proliferation of Nuclear Weapons reads: “Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early stage and to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control.”; see supra note 56. 96 For the briefest of overviews see Paul Dahan, La Conférence du désarmement : fin de l’histoire ou histoire d’une fin?, AFDI 2002, pp. 196-213; Serge Sur, L’entreprise du désarment au péril du nouveau contexte de sécurité, AFDI 2004, pp. 727-747; Peter Hulsroj, Jus cogens and disarmament, 46 Indian JIL 2006, pp. 1-11; Mark Searl, Natural law, international law and nuclear disarmament, 33 Ottawa LR 2001/2002, pp. 271-300; Nenne Bodel, Arms control and disarmament agreements, SIPRI Yearbook 2005, pp. 771-795. 97 ICJ, Legality of the threat or use of nuclear weapons, advisory opinion of 8 July 1996, ICJ Reports 1996, paragraph 99: “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely the pursuit of negotiations on the matter in good faith”. 98 Resolution 1540 (2004), supra note 93, paragraph 7 (second italics my emphasis). 99 Ibid., paragraph 10 (second italics my emphasis). 94

95

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It is quite clear that the retroactive 100 legitimisation thus requested is not entirely present although subsequent PSI ship boarding agreements explicitly refer to it. The foundation of all PSI cooperation and especially the PSI boarding agreements remains the will of the parties, which as flag States have consented to a mutual expansion of their jurisdictional powers in the high seas. There has been no authorisation to use force in pursuit of the ob jectives of either Resolution 1540 (2004) or the PSI machinery101 . Attempts to justify interdiction of ships in the high seas as a countermeasure undertaken in the collective interest seem somewhat excessive, irrespective of the dubious nature of the proposition 102 . Nor is there sufficient grounds for any State to take ‘lawful measures’, presumably including the right to visit and arrest a vessel, under article 54 of the Articles on State Responsibility 103 . In the present case, and in contrast to the fisheries regulations already discussed 104 , the obligation breached is not “owed to a group of States, including that State, and […] established for the protection of a collective interest of the group; or […] owed to the international community as a whole” 105 .

It has been suggested that, as the WMD proliferation constitutes a threat to peace and security, the category of ‘injured State’ covers all States, thus entitling them to employ countermeasures – and even engage in self-defence 106 – At the time of the adoption of the resolution, there have been already five rounds of talks in Madrid, Brisbane, Paris, London and Lisbon, after the initial announcement in Krakow, Poland on 31 May 2003; see Byers, supra note 40, at p. 528; Daniel H. Joyner, Proliferation Security Initiative: Nonproliferation, counterproliferation and international law, 30 Yale JIL 2005, pp. 507-548, at pp. 537-538. 101 Ibid ., at pp. 539-541. 102 Indeed the Commentary to the to the Articles on State Responsibility expressly states: “At present there appears to be no clearly recognised entitlement of States referred to in article 48 to take countermeasures in the collective interest”; Commentary, paragraph (6), in James Crawford, The international Law Commission’s Articles on State Responsibility. Introduction, text and commentaries (Cambridge 2002) at p. 305; Linos-Alexandre Sicilianos, La codification des contre-mesures par la Commission du droit international, 38 RBDI 2005, pp. 447-500, at pp. 463-465. 103 Articles on State Responsibility, approved by UN General Assembly resolution 56/83, UN Doc. /RES/56/83 (2001); text also available at . 104 See the discussion in Part II, Chapter 4, 3. See also Rosemary Rayfuse, Regulation and enforcement in the law of the sea. Emerging assertions of a right to non-flag State enforcement in the high seas fisheries and disarmament contexts, 24 Australian YBIL 2005, pp. 181-200; Robin Warner, Jurisdictional issues for navies involved in enforcing multilateral regimes beyond national jurisdiction, 14 TIJMCL 1999, pp 321-332. 105 Article 48 paragraph 1 of the Articles on State Responsibility. 106 Douglas Guilfoyle, Proliferation Security Initiative: Interdicting vessels in international waters to prevent the spread of weapons of mass destruction, 29 Melbourne ULR 2005, pp. 733-764, at pp. 750-760. For the briefest of a glimpse in the vast issue of self-defence, espe100


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in case of a possible breach 107 . However, the non-proliferation obligation set out in resolution 1540 (2004), binding as it may undeniably be, is not owed to any member of the world community but rather directly to the Security Council; indeed, any breach of the resolution would constitute a breach by the State concerned of its obligation to “accept and carry out the decisions of the Security Council” under articles 25 and 48 of the Charter 108 . Other considerations aside, for instance whether a coastal State may assert jurisdiction on a vessel passing in innocent passage for the purposes of PSI, the system of mutual authorisation has been considered sufficiently successful as to be offered for repetition in other contexts as well. They include not only the policing of other types of prohibited weapons 109 and environmental security 110, but also a possible application in the fisheries context 111 – a protocol to the Law of the Sea Convention has actually be suggested as an additional means to facilitate US accession to the Convention 112 . Suffice it to say, at this point, that whatever the eventual use of the PSI framework, the starting point remains the jurisdiction of the flag State. 4. A SOLID FOUNDATION The Law of the Sea Convention has consistently followed a path of innovation through adherence to accepted principles. At the end of the first generation of implementation, no other principle appears as solid, in law and in fact, as the venerable old horse of flag State jurisdiction in the high seas. cially against terrorist attacks, see Sean D. Murphy, Terrorism and the concept of ‘armed attack’ in article 51 of the UN Charter, 43 Harvard ILJ 2002, pp. 41-51; Christine Gray, International law and the use of force (Oxford 2000) at pp. 84-119; Andrea Gattini, La legittima difesa nel nuovo secolo: La sentenza della Corte internazionale di Giustizia nell’affare delle Piattaforme petrolifere, RDI 2004, pp. 147-170. 107 Thus Wolff Heintschel von Heinegg, The Proliferation Security Initiative: Security v. freedom of navigation?, 35 Israel YBHR 2004, pp. 181-203, at pp. 200-201; idem., The United Nations Convention on the Law of the Sea and maritime security operations, 48 GYBIL 2005, pp. 151-185, at pp. 184-185. 108 Thus also Douglas Guilfoyle, Interdicting vessels to enforce the common interest: maritime countermeasures and the use of force, 56 ICLQ 2007, pp. 69-82, at pp. 76-78. 109 See also Lehrman, supra note 1, at pp. 237-244. 110 Jon M. van Dyke, Applying the precautionary principle to ocean shipments of radioactive materials, 27 ODIL 1996, pp. 379-397; idem., Balancing navigational freedom with environmental and security concerns, 15 Colorado JIELP 2003, pp. 19-28; Marco Roscini, The navigational rights of nuclear ships, 15 Leiden JIL 2002, pp. 251-265. 111 Thus also Byers, supra note 65, at pp. 536-538. 112 Former Legal Advisers’ Letter on accession to the Law of the Sea Convention, 98 AJIL 2004, pp. 307-309.

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This is surprising to a certain extent because it was in that respect that the drafters of the Convention had shown their most recalcitrant and conservative face. They knowingly ignored the deficiencies of a system attached to an unregulated open space and promoted a formalistic adherence to the façade rather than a bold decision to transfer part of or even all the power traditionally held by the States to the world community as a whole – even under circumstances of decentralised enforcement, as in the present case. In so doing, they opted for consistency rather than innovation and a secure foundation for future action rather than precipitous action as an immediate response to op portunistic revendications. State practice has proved that the decision thus taken was actually for the better. It allowed the world community to address emerging exigencies and new priorities within the well-defined parameters of international law. In spite of unilateral revendications of jurisdictional powers in the high seas area or the (politically legitimate) pressure to accord priority to certain considerations, among which the non-proliferation of weapons of mass destruction and the combating of terrorism are paramount, the fundamental princi ples, on which the Law of the Sea was erected, have remained intact. This success was not due to the counter-pressure applied by the world community as a whole or any particular attachment to the legislative product of the Third UN Conference on the Law of the Sea. Rather, it constitutes evidence of the comprehensive and eventually flexible nature of the rule, which has proven to be both solid enough to reinforce security of law and subtle enough to accommodate the evolving and divergent needs of flag States, coastal States and the world community at large. A final comment is perhaps in order. The same conclusion of continuity through innovation holds true for the presence, continued impact and eventual usefulness of the Law of the Sea Convention. An intricate combination of bold novelties and well-established rules, the Convention has provided a solid foundation on which individual States and the world community as a whole were able to explore new approaches to emerging challenges. The adherence to traditional rules of jurisdiction and the perception of stability in the allocation of power facilitated the acceptance and almost immediate integration of novel concepts in the law of the sea. Understood as a major codification exercise, created a constitution for the oceans, 25 years later the Law of the Sea Convention has stood the test of time. It has proven to be solid yet flexible, constant yet adjustable, massive yet subtle – old and yet so new…

TABLE OF TREATIES 1794 Jay’s Treaty, 19 November 1794, 8 Stat. 116, 12 Bevans 13, at p. 27 1841 London Treaty for the Suppression of the African Slave Trade, 2 Martens Nouveau Recueil , ser. 1, p. 392 1890 Brussels General Act for the Suppression of the Slave Trade and Importation into Africa of firearms, ammunition and spirituous liquors, 27 Stat. 886 1926 International Slavery Convention, done in Geneva on 25 September 1926, it entered into force on 9 March 1927, 46 Stat. 2183, 60 UNTS 253; as amended by the Protocol signed in Geneva on 7 December 1953, approved by UN General Assembly resolution 794 (VIII) of 23 October 1953 and entered into force on 7 July 1955, 212 UNTS 17; both texts available at 1930 Hague Convention on certain questions relating to the Conflict of Nationality Laws, text available at 1937 International Convention for the prevention and repression of terrorism, concluded in Geneva on 16 November 1937, LN Doc. C.546.M.383.1937 1946 International Convention for the Regulation of Whaling, done on 2 December 1946 and entered into force on 10 November 1948, 161 UNTS 72, also available at 1949 Agreement and Rules of Procedure of the General Fisheries Council for the Mediterranean, approved by the FAO at its fifth session in 1949, available at

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Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field (Geneva I), 75 UNTS 31 Geneva Convention for the amelioration of the condition of wounded, sick and ship-wrecked members of armed forces at sea (Geneva II), 75 UNTS 85 Geneva Convention relative to the treatment of prisoners of war (Geneva III), 75 UNTS 135 Geneva Convention relative to the protection of civilian persons in time of war (Geneva IV), 75 UNTS 287 1950 Convention between the United States and Costa-Rica for the establishment of an Inter-American Tropical Tuna Commission, available at 1951 Agreement between the Parties to the North Atlantic Treaty regarding the status of their forces, done on 19 June 1951, TIAS no. 2846 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and institutions and practices similar to slavery, adopted on 7 September 1956 by ECOSOC resolution 608 (XXI), 226 UNTS 3 1957 Treaty establishing the European Community, originally established in 1957 and since repeatedly amended and codified, OJ C 321E, 29 December 2006; text also available at 1958 Convention on the High Seas, 450 UNTS 82 Convention on the Continental Shelf, 499 UNTS 311 Convention on the Territorial Sea and Contiguous Zone, 516 UNTS 205 Convention on Fishing and Conservation of the Living Resources of the High Seas, 559 UNTS 285 1965 Washington Convention on the Settlement of Investment Disputes between States and Nationals of other States (ICSID), approved on 18 March 1965 and entered into force on 14 October 1966, available at

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1966 International Covenant on Civil and Political Rights, adopted by UN General Assembly Resolution 2200A (XXI), UN Doc. A/6316 (1966), 999 UNTS 171, available at International Convention for the conservation of Atlantic tunas, signed on 14 May 1966 and entered into force on 21 March 1969, available at 1968 Treaty on the Non-Proliferation of Nuclear Weapons, concluded in London, Moscow and Washington on on 12 June/1 July 1968 and entered into force on 5 March 1970, 7 ILM 1968, pp. 809-817 1969 International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, adopted on 29 November 1969, it entered into force on 6 May 1975; initially amended by the 1973 Protocol thereto, which entered into force on 30 March 1983 and subsequent amendments in 1991, 1996 and 2002 revising the list of substances; available at Vienna Convention on the Law of Treaties, concluded in Vienna on 23 May 1969 and entered into force on 27 January 1980, 1155 UNTS 18232, 8 ILM 1969, pp. 679-735; also available at . 1971 Ramsar Convention on wetlands of international importance, especially as waterfowl habitat, done on 2 February 1971 and entered into force on 21 Decem ber 1975, 996 UNTS 245 1972 Convention on the development, production and stockpiling of bacteriological and toxic weapons and on their destruction, concluded in London, Moscow and Washington on 10 April 1972, 1015 UNTS 163, 11 ILM 1972, pp. 309-315; also available at Convention on the International Regulations for Preventing Collisions at Sea (COLREG), adopted on 20 October 1972, available at Convention concerning the protection of the world cultural and natural heritage, done in Paris on 21 November 1972 and entered into force on 17 December 1975, 11 ILM 1972, pp. 1358-1366, available at 1973 Convention on international trade in endangered species of wild fauna & flora (CITES), concluded on 3 March 1973 and entered into force on 1 July 1975, 993 UNTS 243

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Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, adopted by UN General Assembly Resolution 3166/1974 of 5 February 1974, UN Doc. A/RES/3166 (XXVIII); 13 ILM 1974, pp. 41-49 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978 relating thereto; it entered into force on 2 October 1983 (MARPOL 73/78), available at Annex I, Prevention of pollution by oil Annex II, Noxious liquid substances Annex V, Garbage Annex VI, Prevention of air pollution by ships (SOx Emission Control Areas) International Convention on the Suppression and Punishment of the Crime of Apartheid, 1015 UNTS 243 Protocol relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil, as repeatedly amended, available at 1974 International Convention on the Safety of Life at Sea (SOLAS), adopted on 7 November 1974 and entered into force on 25 May 1980, 1184 UNTS 2, available at 1977 Budapest Treaty on the international recognition of the deposit of microorganisms for the purposes of patent procedure, adopted on 28 April 1977 and amended on 28 September 1980, it entered into force on 19 August 1980 and for the amendments on 24 May 1984; text available at 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW), aopted on 7 July 1978 and entered into force on 28 April 1984, as completely amended in 1995 and entered into force on 1 February 1997, available at Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries; 1135 UNTS 369 1979 International Convention against the Taking of Hostages, 18 ILM 1979, pp. 1456-1463 International Convention on Maritime Search and Rescue (SAR), adopted on 27 April 1979 and entered into force on 22 June 1985, available at South Pacific Forum Fisheries Agency Convention, signed at Honiara, the Salomon islands on 10 July 1979 and entered into force on 9 August 1979 in the

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context of the South Pacific Forum Fisheries Agency; text available at US-Canada Agreement for a Cooperative Vessel Traffic Management System for the Juan de Fuca region, 19 December 1979, 32 UST 380, also available at 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), adopted on 20 May 1980 and entered into force on 7 April 1982, available at 1981 Agreement to facilitate the interdiction by the United States of vessels of the United Kingdom suspected of trafficking in drugs, 1285 UNTS 197 1982 UN Convention on the Law of the Sea, concluded on 10 December 1982 and entered into force on 16 November 1994, 1833 UNTS 396; 21 ILM 1982, pp. 1261-1354, also available at Protocol concerning Mediterranean Specially Protected Areas, done in Geneva, adopted on 3 April 1982 and entered into force on 23 March 1986, available at Memorandum of Understanding on Port State Control, Paris, 26 January 1982, as regularly amended; text available at 1983 Convention for the protection and development of the maritime environment of the wider Caribbean region, done in Cartagena de Indias on 24 March 1983 and entered into force on 30 March 1986, 22 ILM 1983, pp. 221-245. 1984 UN Convention against Torture and Other Cruel or Inhuman or Degrading Treatment of Punishment, adopted by General Assembly Resolution 39/46, 1465 UNTS 85, 23 ILM 1984, pp. 1027-1037 1985 Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Re public of Germany and the French Republic on the gradual abolition of checks at their common borders, OJ L 239, pp. 19-62, 22 September 2000; to which acceded Italy, ibid ., pp. 63-68; Spain, ibid., pp. 69-75; Portugal,

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ibid, pp. 76-82; Greece, ibid., pp. 83-89; Austria, ibid., pp. 90-96; Denmark, ibid., pp. 97-105; Finland, ibid., pp. 106-114; and Sweden, ibid., pp. 115-123 1986 UN Convention on Conditions for Registration of Ships, concluded in Geneva on 6 February 1986, 26 ILM 1987, pp. 1229-1250. 1988 IMO Convention for the Suppression of the Unlawful Acts against the Safety of Maritime Navigation (SUA), adopted on 10 March 1988 and entered into force on 1 March 1992, 1678 UNTS 29004 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, adopted in Vienna, ECOSOC Doc. E/Conf.82/15 of 19 December 1988, 28 ILM 1989, pp. 497-526 1989 International Convention on the Rights of the Child, adopted by UN General Assembly Resolution 44/25, UN Doc. A/RES/44/25, 12 December 1989, available at US-USSR Agreement on the Uniform Interpretation of Norms of International Law Governing Innocent Passage, 14 Law of the Sea Bulletin 1989, pp. 12-13 1990 International Convention on oil pollution preparedness, response and cooperation (OPRC), adopted on 30 November 1990 and entered into force on 13 May 1995, available at Protocol concerning specially protected areas and wildlife to the 1983 Cartagena de Indias Convention for the protection and development of the marine environment of the Wider Caribbean Region, done at Kingston on 18 January 1990, it entered into force on 18 June 2000, text available at . Treaty between the Kingdom of Spain and the Italian Republic to combat illicit drug trafficking at sea, 1776 UNTS 229 1991 Agreement between the European Community and the United States concluded on 23 September 1991, 30 ILM 1991, p. 1487. Protocol concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, done on 25 November 1991

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Protocol concerning Frontier Controls and Policing, Co-operation in Criminal Justice, Public Safety and Mutual Assistance relating to the Channel Fixed Link, done on 25 November 1991; documents available at Geoffrey Marston, UK materials in international law, 64 BYBIL 1993, pp. 579-758, at pp. 647-648 Protocol on environmental protection to the 1959 Antarctic Treaty, done in Madrid on 4 October 1991 and entered into force on 14 January 1998, 30 ILM 1991, pp. 1461-1486 1992 Acuerdo Latinoamericano sobre control del busques por el estado rector del Puerto, established in Viña del Mar in 1992, available at Convention on Biological Diversity, 31 ILM 1992, pp. 818-848 Fisheries Agreement between the European Community and the Morocco, OJ L 99, 31 December 1992 Framework Convention on Climate Change, 31 ILM 1992, pp. 849-873 International Convention on Civil Liability for Oil Pollution Damage, adopted on 29 November 1969 and entered into force on 19 June 1975, available at OSPAR Convention for the protection of the marine environment of the NorthEast Atlantic, done in Paris on 22 September 1992 and entered into force on 25 March 1998, 21 ILM 1993, pp. 1069-1100; available at Treaty establishing the European Union, OJ C 191, 29 July 1992; and since re peatedly amended and codified, OJ C 321E, 29 December 2006, text also available at 1993 Agreement for the establishment of the Indian Ocean Tuna Commission, adopted by the FAO Council at its 150th session in November 1993 and entered into force on 17 March 1996, available at Agreement to Promote Compliance with Consvervation Measures in the High Seas, approved by FAO Conference Resolution 15/93 on 24 November 1993 under Article XIV of the FAO Constitution, 33 ILM 1994, pp. 968-980, available at Asia-Pacific Memorandum of Understanding on port-State control in the AsiaPacific Region, Tokyo, done in 1 December 1993, Convention for the conservation of southern bluefin tuna; adopted in May 1993,it entered into force on 23 May 1994; available at Convention on the prohibition of development, production, stockpiling and use of chemical weapons and on their destruction, concluded in Paris on 13

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January 1993 and entered into force on 29 April 1997, 32 ILM 1993, pp. 800-873, available at 1994 Agreement relating to the implementation of Part XI of the UN Convention on the Law of the Sea of 10 December 1982, adopted on 28 July 1994 and entered into force on 28 July 1996, having been approved by UN General Assembly Resolution 48/263 on 17 August 1994, UN Doc. A/RES/48/263/ Annex; 33 ILM 1994, pp. 1309-1327, also available at Convention on the conservation and management of pollock resources in the Central Bering Sea or the ‘Doughnut Hole’ Convention, adopted on 11 February 1994 and entered into force on 8 December 1995 Treaty of Peace between Israel and Jordan, 34 ILM 1995, pp. 46-66 1995 Agreement for Implementation of the provisions of the provisions of the UN Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of straddling fish stocks and highy migratory fish stocks, Opened for signature in New York on 4 December 1995, it entered into force on 11 December 2001; 34 ILM 1995, pp. 1542-1580 Agreement on illicit traffic by sea, implementing article 17 of the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, ETS no. 156, adopted in Strasbourg on 31 January 1995, available at Canada-European Community Agreed Minute on the Conservation and Management of Fish Stocks, on 20 April 1995, 34 ILM 1995, pp. 1260-1278 Protocol concerning Specially Protected Areas and biological diversity in the Mediterranean, done in Barcelona, in force since 12 December 1999, available at 1996 Carribean Memorandum of Understanding, established in 1996, available at ILO Convention on Seafarers’ Hours of Work and Manning of Ships (no. 180), adopted on 22 October 1996 and entered into force on 8 August 2002, available at 1997 Agreement between the United States of America and the Republic of Haiti concerning cooperation to suppress illicit maritime drug traffic, concluded on 17 October 1997; 1997 UST Lexis 128

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Convention of the law of non-navigational uses of international watercourses, adopted by UN General Assembly Resolution 51/229 on 21 May 1997, 31 ILM 1997, pp. 700-720, also available at Eurorean Convention on Nationality, ETS no. 166, adopted in Strasbourg on 6 November 1997, available at International Convention for the Suppression of Terrorist Bombing, adopted by UN General Assembly Resolution 52/164 of 9 January 1998 Mediterranean Memorandum of Understanding, established in Malta in 1997, available at Memorandum of Understanding between the European Union and the US concerning the US Helms-Burton Act and the US Iran and Libya Sanctions Act, concluded on 11 April 1997; 36 ILM 1997, pp. 529-530 OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 37 ILM 1998, pp. 1-11 1998 Agreement between the European Communities and the Government of the United States of America on the application of positive comity principles in the enforcement of their competition laws, 18 June 1998, OJ L 173, pp. 28-31 Indian Ocean Memorandum of Understanding, available at International Criminal Court Statute, adopted in Rome on 18 July 1998, UN Doc. A/Conf.183/9, 37 ILM 1998, pp. 999-1069 1999 Abuja Memorandum of Understanding, available at Barents Sea ‘Loophole’ Agreement between Iceland, Norway and Russia concerning certain aspects of cooperation in the area of fisheries, done in St. Petersburg on 15 May 1999, available at International Convention for the Suppression of the Financing of Terrorism, adopted by General Assembly Resolution 54/109 of 9 December 1999, also available at 2000 Agreement between the United States of America and the Republic of Honduras concerning cooperation for the suppression of illicit maritime traffic in narcotic drugs and psychotropic substances, concluded on 29 March 2000; 2000 UST Lexis 159 Black Sea Memorandum of Understanding, available at Convention on the conservation and management of highly migratory fish stocks in the Western and Central Pacific Ocean was signed on 5 September

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2000 and entered into force on 19 June 2004; also available at Framework Agreement for the Conservation of Living Marine Resources on the High Seas of the South Pacific (Galapagos Agreement), between Chile, Peru and Ecuador, available at Protocol on Preparedness, Response and Cooperation to Pollution incidents by Hazardous and Noxious Substances, adopted on 15 May 2000, which will enter into force on 14 June 2007; available at 2001 Agreement between the Government of the United States of America and the Government of the Republic of Nicaragua concerning cooperation to sup press illicit traffic by sea and air, concluded on 1 June 2001; 2001 UST Lexis 63 Convention on the conservation and management of the fisheries resources of the South East Atlantic Ocean, 41 ILM 2002, pp. 257-281; also available at Convention on the Protection of the Underwater Cultural Heritage, adopted by the UNESCO General Conference on 2 November 2001, 41 ILM 2002, pp. 40-56, also available at International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), adopted during the 31st FAO General Conference on 21 January 2001, available at 2002 Agreement establishing the Caribbean Regional Fisheries Mechanism, available at 2003 Agreement between the Government of the United States of America and the Government of the Republic of Guatemala concerning cooperation to suppress illicit traffic in narcotic drugs and psychotropic substances by sea and air, concluded on 19 June 2003; text available at Agreement between the Government of the United States of America and the Government of the Republic of Liberia concerning cooperation to sup press the proliferation of weapons of mass destruction, their delivery systems and related materials by sea, done on 11 February 2004 and entered into force on 9 December 2004; text available at Agreement between the Republic of Cyprus and the Arab Republic of Egypt on the delimitation of the delimitation of the exclusive economic zone, con-

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cluded in Cairo on 17 February 2003 and entered into force on 7 March 2004, available at Protocol amending the European Convention on the Suppression of Terrorism, ETS no. 190, adopted in Strasbourg, on 15 May 2003, available at Seafarers’ Identity Documents Convention (Revised) (no. C-185), adopted on 19 June 2003 and entered into force on 9 February 2005; available at 2004 Agreement between the Government of the United States of America and the Government of the Republic of the Marshall islands concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems and related materials at sea, done on 13 August 2004 and entered into force on 24 November 2004; text available at Agreement between the Government of the United States of America and the Government of the Republic of Liberia concerning cooperation to sup press the proliferation of weapons of mass destruction, their delivery systems and related materials by sea, done on 11 February 2004 and entered into force on 9 December 2004 Amendment to the Supplementary Arrangement between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement between the Government of the United States and the Republic of Panama for support and assistance from the US Coast Guard for the National Maritime Service of the Ministry of Government and Justice, done on 12 May 2004 and entered into force 1 December 2004; text available at 2005 Agreement between the Government of the United States of America and the Government of Belize concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems and related materials at sea, done on 4 August 2005; text available at Agreement between the Government of the United States of America and the Government of the Republic of Croatia concerning cooperation to sup press the proliferation of weapons of mass destruction, their delivery systems and related materials, done on 1 June 2005; available at Agreement between the Government of the United States of America and the Government of the Republic of Cyprus concerning cooperation to sup press the proliferation of weapons of mass destruction, their delivery sys-

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tem and related materials by sea, done on 25 July 2005 and entered into force 12 January 2006; text available at Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, CETS no. 198, adopted at Warsaw on 16 May 2005, available at Council of Europe Convention on the Prevention of Terrorism, CETS no. 196, adopted at Warsaw on 16 May 2005, available at International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by General Assembly Resolution 59/290 of 13 April 2005, available at Protocol on Suppression of Unlawful Acts against the Safety of Maritime Navigation to Certain Piratical or Armed Robbery Acts (SUA Protocol), IMO Doc. LEG/CONF.15/DC/1, 13 October 2005; it opened for signature on 14 February 2006; available at Regional Cooperation Agreement on combating piracy and armed robbery against ships in Asia, concluded on 28 April 2005, 44 ILM 2005, pp. 829-835 2006 Maritime Labour Convention, adopted on 7 February 2006, available at 2007 Agreement between the Government of the United States of America and the Government of Malta concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery system and related materials by sea, done on 15 March 2007; text available at .

TABLE OF DOCUMENTS AMNESTY INTERNATIONAL – AI all available at

Amnesty International, Universal Jurisdiction: 14 Principles on the Effective Exercise of Universal Jurisdiction, AI Index IOR 53/01/99, 1999 Amnesty International, Universal jurisdiction: The duty of States to enact and im plement legislation, AI Index IOR 53/002/2001 COMMISSION FOR THE CONSERVATION OF SOUTHERN BLUEFIN TUNA – CCSBT Resolution to establish the status of cooperating non-member of the Extended Commission and the Extended Scientific Committee COMMITTEE FOR THE CONSERVATION OF ANTARCTIC MARINE LIVING RESOURCES – CCAMLR all available at

Conservation Measure 118/XVI (1997): Scheme to promote compliance by noncontracting party vessels with CCAMLR conservation and management measures Conservation Measure 10-06 (2002): Scheme to promote compliance by contracting party vessels with CCAMLR conservation measures CONVENTION ON BIOLOGICAL DIVERSITY – CBD available at

Decision VI/24, Access and benefit-sharing as related to genetic resources, adopted during the 6th Conference of the Parties to the Biodiversity Convention (COP 6), 2002 COUNCIL OF EUROPE – CE Committee of Experts on Transnational Justice (PC-TJ), Final Activity Report , 20 December 2005, Doc. PC-TJ (2005) 10, available at

192


EUROPEAN COMMUNITY – EC / EUROPEAN UNION – EU all available at

Consultation Paper on the initiatives envisaged by the Commission to improve the fight of the European Community against illegal, unreported and unregulated fishing, 2006 Council of the European Union, EU Strategy against proliferation of weapons of mass destruction (2003) Declaration of the Ministerial Conference for the Sustainable Development of Fisheries in the Mediterranean, Venice, 25-26 November 2003 FOOD AND AGRICULTURE ORGANISATION – FAO all available at

Code of Conduct for Responsible Fisheries, adopted by consensus at the 28th session of the FAO Conference on 31 October 1995 International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing , adopted by consensus at the 24th session of the FAO Committee on Fisheries on 2 March 2001 and endorsed by the 120th session of the FAO Council on 23 June 2001 International Undertaking on Plant Genetic Resources, approved by Resolution 8/83 of the FAO General Conference at its 22nd session, 1983; as amended by Resolution C3/91, adopted by the FAO General Conference at its 26th session, 1991 Model Scheme on Port State Measures to Combat Illegal, Unreported and Unregulated Fishing , Annex E to the Report of the Technical Consultation to Review Port State Measures to Combat Illegal, Unreported and Unregulated Fishing, FAO Fisheries Report no. 759 (FAO, Rome 2004) State of the world fisheries and aquaculture (SOFIA) 2004 GENERAL FISHERIES COMMISSION FOR THE MEDITERRANEAN – GFCM available at

Report of the thirtieth session, Istanbul, 24-27 January 2006 (FAO, Rome 2006) INDIAN OCEAN TUNA COMMISSION – IOTC all available at

Resolution 02/04 on establishing a list of vessels presumed to have carried out illegal, unregulated and unreported fishing Resolution 02/05 concerning the establishment of a record of vessels over 24 metres authorised to operate in the IOTC Area

193

TABLE OF DOCUMENTS

INSTITUT DE DROIT INTERNATIONAL – IDI available at

Resolution on Universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes, 17th Commission (Christian Tomuschat, rapporteur) Session of Krakow, 2005 INTER-AMERICAN TROPICAL TUNA COMMISSION – IATTC all available at

Resolution C-03-07 on the establishment of a list of longline vessels over 24 metres authorised to operate in the Eastern Pacific Ocean, June 2003 Resolution C-00-06 on a Regional Vessel Register, August 2000 Resolution C-01-02 on fishing by vessels of non-contracting parties, June 2001 INTERNATIONAL CHAMBER OF COMMERCE – ICC available at

Policy Statement: Extraterritoriality & Business, Recommendation no. 1, Document 103-33/5 Final, 13 July 2006 INTERNATIONAL COMMISSION FOR THE CONSERVATION OF ATLANTIC TUNAS – ICCAT all available at

Resolution 97-02 on becoming a contracting party, entity or fishing entity Recommendation 02-22 concerning the establishment of an ICCAT Record of Vessels over 24 metres authorised to operate in the Convention Area Recommendation 02-23 to establish a list of vessels presumed to have carried out illegal, unreported and unregulated fishing activities in the ICCAT Area INTERNATIONAL LABOUR ORGANISATION – ILO available at

ILO/IMO Code of Practice on Security in Ports, adopted by the ILO Governing Body in March 2004 and the IMO Maritime Safety Committee in May 2004 INTERNATIONAL LAW ASSOCIATION – ILA all available at

Report of the Sixty-Ninth Conference, London 2000, Final Report of the Committee on coastal jurisdiction over marine pollution (London 2000) pp. 443-512

194


Report of the Sixty-Ninth Conference, London 2000, Committee on International Human Rights Law and Practice, Universal Jurisdiction (London 2000) pp. 403-431 INTERNATIONAL LAW COMMISSION – ILC all available at

Articles on Prevention of transboundary harm from hazardous activities, Report on the Work of the International Law Commission during its 56th session (2004), UN Doc. A/59/10, General Assembly Official Records, Suppl. No. 10 Articles on State Responsibility, UN Doc A/56/10 (2001), as approved by General Assembly resolution 56/83 of 12 December 2001 Draft Articles on Diplomatic Protection adopted by the ILC on first reading in 2004 (John Dugard, special rapporteur), Report on the Work of the International Law Commission during its 56th session (2004), UN Doc. A/59/10, General Assembly Official Records, Suppl. No. 10 Draft Articles on the Responsibility of International Organisations, provisionally adopted by the International Law Commission (Giorgio Gaja, rapporteur); ILC Report on the work of its 58th session (2006), UN Doc. A/61/10 (2006) Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on the work of its forty-eighth session (1996), UN Doc. A/51/10 INTERNATIONAL MARITIME ORGANISATION – IMO all available at

Draft Guidelines for Port State Control on Inspection of Seafarers’ Working Hours (2006) Draft Guidelines for Port State Control under the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (ex pected in 2008) General Assembly Resolution A.572(14), General provisions on Ships Routeing , 2003 General Assembly Resolution A.585(14), Measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crew, 1985 General Assembly Resolution A.600(15), IMO ship identification number scheme General Assembly Resolution A.682(17), Regional cooperation in the control of ships and discharges, 1991 General Assembly Resolution A.720(17), Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas, 1990

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General Assembly Resolution A.857(20),Guidelines for Vessel Traffic Services, 27 November 1997 General Assembly Resolution A.922(22), Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships, November 2001 General Assembly Resolution A.923(22), Measures to prevent the registration of phantom ships, November 2001 General Assembly Resolution A.924(22), Review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships, November 2001 General Assembly Resolution A.927(22), Guidelines for the designation of Special Areas under MARPOL 73/78 and Guidelines for the identification and designation of Particularly Sensitive Sea Areas, 29 November 2001 General Assembly Resolution A.946(23), Voluntary IMO Member State Audit Scheme, 27 November 2003 General Assembly Resolution A.956(23), Amendments to the Guidelines for the onboard operational use of shipborne automatic identification systems (AIS) General Assembly Resolution A.959(23), Format and guidelines for the maintenance of the Continuous Synopsis Record (CSR) General Assembly Resolution A.973(24), Code for the implementation of mandatory IMO instruments, November 2005 General Assembly Resolution A.974(24), Framework and Procedures for the Voluntary IMO Member State Audit Scheme, 2005 General Assembly Resolution A.982(24), Revised Guidelines for the identification and designation of Particularly Sensitive Sea Areas, 1 December 2005 Guidelines for the installation of a shipborne Automatic Identification System (AIS), agreed by the Sub-Committee on the Safety of Navigation at its 48th session (8-12 July 2002) and approved by the Maritime Safety Committee at its 76th session (2-13 December 2002) ILO/IMO Code of Practice on Security in Ports, adopted by the ILO Governing Body in March 2004 and the IMO Maritime Safety Committee in May 2004 IMO & UNHCR, Rescue at sea. A guide to principles and practice as applied to migrants and refugees (2006) International Code for the Safe Operation of Ships and for Pollution Prevention (ISM Code 2002), first adopted in 1991, it became mandatory in 1996 LEG 67/9, 13 October 1992 LEG 87/17, 2001 MERC 101/48, Identification of the Wadden Sea as a Particularly Sensitive Sea Area, 2002

196


MERC 106/49, Designation of the Paracas National Reserve as a Particularly Sensitive Sea Area, 2003 MERC 111/50, Annex 1, amending MARPOL 73/78, Annex I, Regulation G MERC 111/50, Annex 2, amending MARPOL 73/78, Annex I, Regulation H MERC 112/50 amending the Condition Assessment System MERC 121/52, Designation of the Western European waters as a Particularly Sensitive Sea Area, 15 October 2004 MERC 124/53, Designation of the Canary islands as a Particularly Sensitive Sea Area, 2005 MERC 135/53, Designation of the Galapagos Archipelago as a Particularly Sensitive Sea Area, 2005 MERC 136/53, Designation of the Baltic Sea as a Particularly Sensitive Sea Area, 2005 MERC 49/22, Report of the Marine Environment Protection Committee at its 49th session, 8 August 2003 MERC 49/8/11, Designation of a Western European Particularly Sensitive Area, 1 April 2003 MERC 52/8/4, Comments submitted by the WWF on MERC 52/8 on the Pro posed amendments to Assembly Resolution A.927(22) to strengthen and clarify the Guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs), 18 August 2004 MERC 53/24, Report of the Marine Environment Protection Committee at its 53rd session, 18-22 July 2005 MERC 74/40, Identification of the Archipelago of Sabana-Camagüey as a Particularly Sensitive Sea Area, 1997 MERC 97/47, Identification of the sea area around Malpelo Island as a Particularly Sensitive Sea Area, 2002 MERC 98/47, Identification of the sea area around the Florida Keys as a Particularly Sensitive Sea Area, 2002 MSC/Circ.1072, Guidance on provision of ship security alert systems, 26 June 2003 MSC/Circ.1111, Guidance relating to the implementation of SOLAS Chapter XI2 and the ISPS Code, 7 June 2004, including in Annex I: Guidance relating to the implementation of SOLAS Chapter XI-2 and the ISPS Code; and Annex II: IMO Resolution MSC.159(78), Interim guidance on control and compliance measures to enhance maritime security, 21 May 2004 MSC/Circ.1133 , Reminder of the obligation to notify flag States when exercising control and compliance measures, 14 December 2004 MSC/Circ.1219, Interim LRIT technical specifications and other matters, 9 January 2007 MSC/Circ.443, Measures to prevent unlawful acts against passengers and crews on board ships, 1986

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197

Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the “genuine link”, convened by the IMO on 7-8 July 2005 and discussed by the IMO Council at its 96th session on 19-23 June 2006; UN Doc. A/61/160, 17 July 2006 Resolution MSC.46(65), 16 May 1995 Resolution MSC.147(77), Adoption of the Revised performance standards for a ship security alert system Resolution MSC.167(78), Guidelines on the Treatment of Persons Rescued at Sea, May 2004 Resolution MSC.211(81), Arrangements on the timely establishment of the longrange identification and tracking system, 19 May 2006 SN/Circ.227, 6 January 2003 INTERNATIONAL SEABED AUTHORITY – ISA all available at

Draft Regulations on prospecting and exploration for hydrothermal polymetallic sulphides and cobalt-rich ferromanganese crusts, Doc. ISBA/10/C/WP.1/ Rev.1, 3 May 2006 Recommendations for the guidance of contractors for the assessment of possible environmental impacts arising from exploration for polymetallic nodules in the Area, approved on 4 July 2001 by the Legal and Technical Commission, Doc. ISBA/7/LTC/1/ Rev.1 of 10 July 2001 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area [The Mining Code], Doc. ISBA/6/A/18, 2000 Statement by the Secretary-General of the International Seabed Authority to the Fourth Meeting of the Informal Consultative Process of the UN Convention on the Law of the Sea (UNICPLOS), 2003 Report of the Secretary-General of the International Seabed Authority to the Assembly of the Authority, Doc. ISBA/9/A/3, 4 June 2003 Report of the Secretary-General of the International Sea-bed Authority to the Assembly of the Authority, Doc. ISBA/12/A/2, 26 June 2006 Report of the Secretary-General of the International Seabed Authority under Article 166 paragraph 4 of the UN Convention on the Law of the Sea, Doc. ISBA/10/A/3, 31 March 2004 Press release SB/12/12, 15 August 2006 ORGANISATION FOR ECONOMIC COOPERATION AND DEVELOPMENT – OECD all available at

Maritime Transport Committee, Policy Statement on Substandard Shipping , 2002

198


Committee on Fisheries: Final Report of the Ministerially-led Task Force on IUU fishing on the high seas, Closing the net. Stopping illegal fishing in the high seas, March 2006, text also available at OECD, Genetic inventions, intellectual property rights and licensing practices. Evidence and policies (Paris 2002) ORGANISATION OF AFRICAN UNITY – OAU Council of Ministers, Declaration on the Issues of the Law of the Sea, May 1973 ORGANISATION OF AMERICAN STATES – OAS all available at

Inter-American Juridical Committee, Opinion examining the US Helms-Burton Act , OAS Doc. CJI/SO/II/doc.67/96rev.5, 27 August 1996, 35 ILM 1996, pp. 1322-1334 Draft Agreement concerning cooperation in suppressing illicit maritime trafficking in narcotic drugs and psychotropic substances in the Caribbean Sea, OAS Doc. OAS/ser.L/XIV 2.28 (2000) SUBSIDIARY BODY ON SCIENTIFIC, TECHNICAL AND TECHNOLOGICAL ADVICE – SBSTTA all available at

Bioprospecting of genetic resources of the deep-sea bed , Doc. UNEP/CBD/ SBSTTA/2/15, 1996 Report prepared in response to Decision II/10 (1995) of the Conference of the Parties to the Convention on Biological Diversity, Doc. UNEP/CBD/ SBSTTA/ 8/ INF/3/Rev.1 of 22 February 2003 UNITED NATIONS – UN all available at

Security Council Resolution 1373/2001, UN Doc. S/RES/1373 (2001) of 28 September 2001, 40 ILM 2001, pp. 1278-1280 Security Council Resolution 1540/2004, UN Doc. S/RES/1540 (2004) General Assembly Resolution 55/7, Oceans and the law of the sea, UN Doc. A/RES/55/7, 27 February 2001 General Assembly Resolution 61/11, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba, UN Doc. A/RES/61/11, 5 December 2006 General Assembly Resolution 61/222, Oceans and the law of the sea, UN Doc. A/RES/61/222, 16 March 2007

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199

Articles on State Responsibility, Responsibility, approved by UN General Assembly Resolution 56/83, UN Doc. /RES/56/83 (2001) Declaration of Principles governing the seabed and the ocean floor and the sub soil thereof beyond the limits of national jurisdiction, jurisdiction, adopted by General Assembly Resolution 2749 (XXV), 1970 Universal Declaration of Human Rights, Rights , adopted by UN General Assembly Resolution 217A (1948), UN Doc. A/810, available at Report of the Secretary-General to the General Assembly, Oceans and the law of the sea, sea, UN Doc. A/59/62, 4 March 2004 Report of the Secretary-General to the General Assembly, Oceans and the law of the sea, sea, Doc. A/60/63 of 5 March 2005 Report of the Secretary-General to the General Assembly, Oceans and the law of the sea, sea, UN Doc.A/61/63/Add.1, 17 August 2006 Report of the Secretary-General to the General Assembly, Oceans and the law of the sea, sea, UN Doc. A/62/_/ (advanced and unedited text), 12 March 2007, paragraph 150, available at High-level Panel on threats, challenges and change, Towards development, security and human rights for all (UN, (UN, New York 2005) Report of the Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks Stocks prepared by the President of the Conference, UN Doc. A/CONF.210/2006/15, 5 July 2006 Draft Articles on Exclusive Economic Zone, Zone, proposed by Algeria, Cameroon, Ghana, Ivory Coast, Kenya, Liberia, Madagascar, Mauritius, Senegal, Sierra Leone, Somalia, Sudan, Tunisia and United Republic of Tanzania to the UN General Assembly Committee on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction, SubCommittee III, UN Doc. A/AC.138/SC.II/L.40, 16 July 1973, 12 ILM 1973, pp. 1246-1249 Rio Conference on Environment and Development (UNCED), 1992, Agenda 21, also available at Rio Declaration on Environment and Development, 31 ILM 31 ILM 1992, 1992, pp. 874-880 Stockholm Declaration on the Human Environment, 11 ILM 11 ILM 1972, 1972, pp. 1416-1420 DOALOS, Comments in connection with issues raised in document LEG 87/16/1 87/16/1,, IMO Doc. LEG 87/17, Annex 7, p. 1, available at General Assembly Consultative Group of Flag State Implementation, UN Doc. A/59/63 (2004) Kuala Lumpur Statement on enhancement of safety, security and environmental protection in the Straits of Malacca and Singapore, 20 September 2006,

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annexed to identical letters dated 15 November 2006 from the representatives of Indonesia, Malaysia and Singapore to the UN addressed to the Secretary-General, Doc. A/61/584, 17 November 2006 Report of the Ad Hoc Consultative Meeting of senior representatives of international organizations on the “genuine link”, link” , convened by the IMO on 7-8 July 2005 and discussed by the IMO Council at its 96th session on 19-23 June 2006; UN Doc. A/61/160, 17 July 2006 Report of the work of the UN Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its seventh meeting , UN Doc. A/61/156, 17 July 2006 UNITED NATIONS ENVIRONMENT PROGRAMME – UNEP available at

UNEP, Ecosystems UNEP, Ecosystems and biodiversity biodiversity in deep waters and high seas seas (2006) (2006) WORLD HEALTH ORGANISATION – WHO available at

International Health Regulations 2005 WORLD TRADE ORGANISATION – WTO all available at

Chile – Chile – Measures affecting the transit and importation of swordfish , Request for the establishment of a panel by the European Communities, WT/DS193/2, 7 November 2000 (00-4761) Chile – Measures affecting the transit and importation of swordfish , Agreement between the European Communities and Chile, Communication from the European Communities, WT/DS193/3, 6 April 2001 (01-1770) and WT/DS193.Add.1, 9 April 2001 MISCELLANEOUS Africa Legal Aid, The Cairo-Arusha Principles on Universal Jurisdiction in Re spect of Gross Human Rights Offences, Offences, 2002, available at Declaration of Santo Domingo, 11 ILM 11 ILM 1972, 1972, pp. 892-893 Harvard Research Draft Convention on Jurisdiction with Respect to Crime, 29 AJIL 1935, AJIL 1935, Spec. Suppl., at p. 443 Princeton Principles on Universal Jurisdiction, Jurisdiction, adopted in 2002, available at

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201

Protestation du Gouvernement français au sujet de l’établissement de la zone de protection de la pêche en Méditerranée du 22 septembre 1998, ADM 1997, p. 655 Redress Universal Jurisdiction Project ; available at

TABLE OF LEGISLATION ALGERIA

Décret législatif no. 94-13 du 28 mai 1994, Journal officielle de la République Algérienne no. 40 du 22 juin 1994 BELGIUM

Loi du 16 juin 1993 relative à la répression des infractions graves aux conventions internationales de Genève du 12 août 1949 et aux protocoles I et II du 8 juin 1977 additionne additionnels ls à ces conventio conventions, ns, Moniteur belge, belge, 5 août 1993; as amended by la Loi du 10 février 1999 relative à la répression des violations graves de droit international humanitaire, Moniteur belge, belge, 23 mars 1999, 38 ILM 1999, 1999, pp. 918-925 CANADA all available at

Coastal Fisheries Protection Act, RSC, ch. C-33 (1985), as amended by SC ch. 14 (1994), 33 ILM 33 ILM 1994, 1994, pp. 1383-1388 Arctic Waters Pollution Prevention Act (AWPPA), RSC, ch. A-12 (1993) Canadian Shipping Act (CSA), RSC, ch. S-9 (1993), first enacted in 1972 Oceans Act, ch. 31, 1996 SC §13(1) CROATIA

Decision of the Croatian Parliament for the extension of the jurisdiction of the Republic of Croatia in the Adriatic Sea, 3 October 2003, as amended on 3 June 2004 and in force since 3 October 2004; 55 Law of the Sea Bulletin 2004, p. 31; text available at CYPRUS all available at

Law 63(I)/2004 on a contiguous zone of 12 miles,            , Official Gazette of the Republic Annex I, no. 3831 of 5 April 2004

204


Law 64 (I)/2004 on an Exclsuive Economic Zone,              , Official Gazette of the Republic Annex I, no. 3831 of 5 April 2004 EUROPEAN UNION – EU / EUROPEAN COMMUNITY – EC all available at

Council Framework Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender procedures between the member States, OJ L 190, p. 1, 18 July 2002 Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of environment through criminal law, OJ L 29, p. 55, 5 February 2003 Council Framework Decision 2005/667/JHA of 12 July 2005 to strengthen the criminal-law framework for the enforcement of the law against ship-source pollution, OJ L 255, 255, p. 164, 30 September 2005 Decision of the Council and the Commission of 10 April 1995 concerning the conclusion of the Agreement between the European Communities and the Government of the United States of America regarding the application of their competition laws, OJ L 95, pp. 45-52, 27 April 1995 Directive 2001/106/EC of the European Parliament and of the Council of 19 December 2001, amending Council Directive 95/21/EC concerning the enforcement, in respect of shipping using Community ports and sailing in the waters under the jurisdiction of the member States, of international standards of ship safety, pollution prevention and shipboard living and working conditions (port State control), OJ L 19, p. 17, 22 January 2002 Directive 2005/35/EC of the European Parliament and of the Council of 7 September 2005 concerning ship-cource pollution and the introduction of penalties for infringements, OJ L 255, pp. 11-21, 30 September 2005 Joint Action 96/668/CFSP of 22 November 1996 adopted by the Council on the basis of Articles J.3 and K.3 of the Treaty on European Union concerning measures protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, OJ L 309, p. 7, 29 November 1996 Regulation (EC) 1726/2003 of the European Parliament and of the Council of 22 July 2003 amending Regulation (EC) 417/2002 on the accelerated phasingin of double- hull or equivalent design requirements of single hull oil tankers, OJ L 249, 249, pp. 1-4, 1-4, 1 October October 2003 Regulation (EC) 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon and resulting therefrom, OJ L 309, pp. 1-6, 29 November 1996

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Communication from the Commission to the European Parliament and the Council on the safety of the seaborne oil trading [Erika I], COM (2000) 142 final, 21 March 2000 Communication from the Commission to the European Parliament and the Council on a second set of Community measures on maritime safety following the sinking of the oil tanker Erika [Erika II], COM (2000) 802 final, 6 December 2000 Communication from the Commission on a Community Action Plan for the eradication of IUU fishing , COM (2002) 180, 28 May 2002 Communication from the Commission to the Council and the European Parliament laying down a Community Action Plan for the conservation and sustainable exploitation of fisheries resources in the Mediterranean Sea under the Common Fisheries Policy, COM (2002) 535 final, 9 October 2002 Communication on improving safety at sea in response to the Prestige accident , COM (2002) 681, 3 December 2002 Communication from the Commission on action to deal with the effects of the Prestige disaster , COM (2003) 105 final, 5 March 2003 Communication from the Commission on a third package of legislative measures on maritime safety I the European Union [Erika III], COM (2005) 585 final, 23 November 2005 Green Paper by the Commission of the European Communities, Towards a future maritime policy for the Union: A European vision for the oceans and seas, COM (2006) 275, 7 June 2006 FRANCE all available at

Code de l’environnement, Article L 218-29 as amended by article 6 of Loi no. 2001-380, JO of 4 May 2001; by article 4 of Loi no. 2003-346 of 15 April 2003, JO of 16 April 2003; and article 30 paragraphs 1 and 9 of Loi 2004204 of 9 March 2004, JO of 10 March 2004; as further specified in décret no. 95-411 of 19 April 1995, JO of 19 April 1995 Code de l’environnement, Article L218-21 as amended by article 3 of Loi no. 2003-346 of 15 April 2003, JO of 16 April 2003; and article 30 paragraphs 1 and 5 of Loi 2004-204 of 9 March 2004, JO of 10 March 2004 Loi no. 2003-346 du 15 avril 2003 relative à la création d’une zone de protection écologique au large des côtes du territoire de la République, JO du 16 avril 2003, modifiant Loi no. 76-665 relative à la zone économique au large des côtes du territoire de la République, JO 16 juillet 1976 Décret no. 2004-33 du 8 janvier 2004 portant création d’une zone de protection écologique au large des côtes du territoire de la République en Méditerranée, JO du 10 janvier 2004

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HOLY SEE Inter Caetera bull of Pope Alexander VI, done on 4 May 1493 ITALY Legge no. 61 di 8 febbraio 2006, Istituzione di zone di protezione ecologica oltre il limite esterno del mare territoriale, Gazzetta Ufficiale no. 52 del 3 marzo 2006; available at LIBYAN ARAB JAMAHIRIYA General People’s Committee Decision no. 37 of 1373 from the death of the Prophet (AD 2005) concerning the declaration of a Libyan fisheries protection zone in the Mediterranean Sea, annexed to the letter dated 29 March 2005 from the Chargé d’affaires a.i. of the Permanent Mission of the Libyan Arab Jamahiriya to the UN addressed to the Secretary-General, doc. A/60/68; available at MALTA Decision of 18 July 1978 extending the fishing zone to 25 miles, RGDIP 1979, p. 536 MOROCCO Dahir no. 1-81-179 of 8 April 1981 promulgating Law no. 1-81 of 18 December 1980 SLOVENIA Act on the Ecological Protection Zone and the Continental Shelf of the Republic of Slovenia, 22 October 2005, 60 Law of the Sea Bulletin 2006; available at SPAIN available at

Real decreto 1315 de 1 agosto 1997, BOE no. 204 de 26 agosto 1997, p. 25628, as amended by Real decreto del 31 marzo 2000, BOE no. 79 de 1 abril 2000 TUNISIA Loi no. 62-35 du 16 octobre 1962, Journal officielle de la République Tunisienne no. 53 des 12-16 octobre 1962

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207

Law 50/2005 of 27 June 2005, 58 Law of the Sea Bulletin 2005, also available at TURKEY Decree No. 86/11264 of the Council of Ministers on an exclusive economic zone in the Black Sea Official Gazette, 17 December 1986, available at UNITED KINGDOM all available at

The Offences at Sea Act (1536) 28 Hen. 8, ch. 15 The Bounty Act (1825) 6 Geo. 4, ch. 49 The Sexual Offences (Conspiracy and Incitement) Act 1996 The Sex Offenders Act 1997 UNITED STATES available at

Constitution, article I, Section 8 cl. 10 Anti-Terrorism and Effective Death Penalty Act (AEDPA) 1996, Pub. L. 104132, section 221, 110 Stat. 1214, 28 USC 1605 Cuban Liberty and Democratic Solidarity (Libertad) Act 1996 (Helms-Burton Act), Public Law 104-114, 22 USC 6021, 35 ILM 1996, pp. 357-378 Iran and Libya Sanctions Act 1996 (D’Amato-Kennedy Act), Public Law 104172, 50 USC 1701, 35 ILM 1996, pp. 1273-1279 Maritime Drug Law Enforcement Act 1986, Pub. L. 99-570, 100 Stat. 3302, 46 USC §3201-3202, as amended by Pub. L. 100-690 (1988), 102 Stat. 4294, USC §4802 and finally repealed by Pub. L 103-447, 108 Stat. 4694, USC §103 Oil Pollution Act (OPA) of 1990, Pub.L. No. 101-380, 104 Stat. 484 Omnibus Diplomatic Security and Antiterrorism Act 1986, Pub. L 99-399, 18 USC 2331 (1986) Uniting and Strengthening America by providing appropriate tools required to intercept and obstruct terrorism (USA Patriot Act) Act 2001, Pub.L. 107-56, as amended by the US Patriot Improvement and Reauthorisation Act 2005 Presidential Proclamation No. 2667, Policy of the United States with respect to the natural resources of the subsoil and the sea bed of the continental shelf , 28 September 1945, 10 Federal Registry 12303, [1943-48] 3 CFR §68 Presidential Proclamation No. 2668, Policy of the United States with respect to coastal fisheries in certain areas of the high seas , 28 September 1945, 10 Federal Registry 12304, [1943-48] 3 CFR §68

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TABLE OF CASES ARBITRAL AWARDS Behring Sea Fur Seals arbitration, Great Britain v. United States, Arbitration Award (Paris, 15 August 1893) 1 Moore’s International Arbitration Awards 1898, pp. 755-917; 1 International Environmental Law Reports 2000, pp. 43-88 Muscat Dhows case, France v. UK, award of 8 August 1905, XI UNRIAA 92, also available at North Atlantic Coast Fisheries case (1910), 11 UNRIAA 167, at p. 180, also available at Isle of Palmas arbitration, USA v. The Netherlands, (Max Huber, arbitrator) 4 April 1928, 2 UNRIAA 830, also available at Air Services Agreement of 27 March 1946 , United States v. France, 18 UNRIAA 1978, pp. 417-453 Guinea/Guinea Bissau maritime delimitation case, 77 ILR 1985 La Bretagne arbitration, Dispute concerning filleting within the Gulf of St. Laurence, Canada v. France, award of 17 July 1986, 90 RGDIP 1986, pp. 713-786 LOSC Annex VII Arbitral Tribunal, Southern Bluefin Tuna cases, Australia v. Japan, New Zealand v. Japan, award of 4 August 2000, also available at and COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES – ECJ all cases available at

Case 22/70, Commission v. Council [1970] ECR 263 Case 804/79, Commission v. UK [1981] ECR 1045 Case 203/80, Casati [1980] ECR 2595 Case 89/85, Ahlstrom Osakyhtio v. Commission, judgment of 27 September 1988 [1988] ECR 5193 Case C-327/91, French Republic v. Commission of the European Communities [1994] ECR I-3641 Case C-62/96, Commission v. Greece, judgment of 27 November 1997 Case C-226/97 Lemmens [1998] ECR I-13711 Case C-176/03, Commission of the European Communities supported by the European Parliament v. Council of the European Union supported by the

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Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Re public, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland , 13 September 2005 Opinion of Advocate-General Dámaso Ruiz-Jarabo Colomer, 26 May 2005 Case C-239/03, Commission of the European Communities v. the French Republic, judgment of 7 October 2004 Case C-266/03, Commission v. Luxembourg [2005] ECR I-04805 Case C-459/03, Commission v. Ireland , 30 May 2006 Opinion of the Advocate-General M. Poiares Maduro, 18 January 2006 Case C-440/05, Commission of the European Communities supported by the European Parliament v. Council of the European Union supported by the Portuguese Republic, the Kingdom of Belgium, the Republic of Finland, the French Republic, the Slovak Republic, the Republic of Malta; the Republic of Hungary; the Kingdom of Denmark, the Kingdom of Sweden, Ireland, the Czech Republic, the Hellenic Republic, the Republic of Estonia, the United Kingdom of Great Britain and Northern Ireland, the Republic of Latvia, the Republic of Lithuania, the Kingdom of The Netherlands, the Republic of Austria and the Polish Republic Case C-308/06, Reference for preliminary ruling from the High Court of Justice (England and Wales), Queen’s Bench Division (Administrative Court) made on 14 July 2006 – The Queen on the application of The International Association of Independent Tanker Owners (Intertanko), The International Association of Dry Cargo Shipowners (Intercargo), The Greek Shipping Cooperation Committee, Lloyd’s Register, The International Salvage Union v. The Secretary of State for Transport Ruling 1/78 (re Draft Convention on the Physical Protection of Nuclear Materials) [1978] ECR 2151 Opinion 2/91 (re ILO Convention no. 170) [1993] ECR I-1061 Opinion 1/94 (re WTO Agreements) [1994] ECR I-5267 Opinion 2/2000 on the Cartagena Protocol [2001] ECR I-09713 Opinion 1/2003 (Competence of the Community to conclude the new Lugano Convention on jurisdiction and enforcement of judgments in civil and commercial matters), 7 February 2006 EUROPEAN COURT OF HUMAN RIGHTS – ECHR all cases availabe at

Al-Adsani v. United Kingdom, Grand Chamber, 21 November 2001, App. No. 35763/97

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Bankovic v. Belgium, judgment of 12 December 2001 Loizidou v. Turkey (Preliminary Objections), Series A, No. 310, 1995 INTERNATIONAL COURT OF JUSTICE – ICJ all cases available at

Corfu Channel case, United Kingdom v. Albania, ICJ Reports 1949 Anglo-Norwegian Fisheries case, UK v. Norway, ICJ Reports 1951 The Nottebohm case, Liechtenstein v. Guatemala, ICJ Reports 1955 Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organisation, Advisory Opinion, ICJ Reports 1969 Case concerning the Barcelona Traction, Light and Power Company Limited , Belgium v. Spain, Second Phase, ICJ Reports 1970 Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971 Fisheries Jurisdiction cases, UK v. Iceland, ICJ Reports 1974; Federal Republic of Germany v. Iceland, ICJ Reports 1974 Aegean Sea continental shelf , Greece v. Turkey, ICJ Reports 1978 Continental Shelf Tunisia/Libyan Arab Jamahiriya, ICJ Reports 1982 Case concerning delimitation in the maritime boundary in the Gulf of Maine area, Canada v. USA, ICJ Reports 1984 Military and paramilitary activities in and against Nicaragua , Nicaragua v. United States of America, Merits, ICJ Reports 1986 Case concerning maritime delimitation in the area between Greenland and Jan Mayen, Denmark v. Norway, ICJ Reports 1993 Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1995 Legality of the threat or use of nuclear weapons, Advisory Opinion, ICJ Reports 1996 Case concerning the Gabcikovo-Nagymaros project , Hungary v. Slovakia, ICJ Reports 1997 Elettronica Sicula S.p.A. (ELSI), USA v. Italy, judgment of 20 July 1989, ICJ Reports 1989 Fisheries Jurisdiction case, Spain v. Canada, ICJ Reports 1998 Arrest Warrant of 11 April 2000, Democratic Republic of Congo v. Belgium, ICJ Reports 2002 Certain Criminal Proceedings in France, Congo v. France, ICJ Reports 2003

212


INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA – ICTY all cases available at

Prosecutor v. Dragoljub Kunarac et al., judgment, ICTY case no. IT-96-23-T & IT-96-23/1-T, 22 February 2001 INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA – ITLOS all cases available at

The M/V Saiga case, Saint Vincent & the Grenadines v. Guinea, 1997 The M/V Saiga (no. 2) case, Saint Vincent & the Grenadines v. Guinea, 1999 Southern Bluefin Tuna cases, New Zealand v. Japan; Australia v. Japan, Provisional measures, 1999 The Camouco case, Panama v. France, 2000 The Monte Confurco case, Seychelles v. France, 2000 Case concerning the conservation and sustainable exploitation of swordfish stocks in the South-Eastern Pacific Ocean, Chile v. European Community, 2000 The Grand Prince, Belize v. France, 2001 The Chaisiri Reefer 2 case, Panama v. Yemen, 2001 The MOX Plant case, Ireland v. UK, provisional measures, Order of 3 December 2001 The Volga case, Russian Federation v. Australia, 2002 The Juno Trader case, Saint Vincent & the Grenadines v. Guinea Buissau, 2004 PERMANENT COURT OF ARBITRATION – PCA all cases available at

In the matter of an Arbitration pursuant to an Agreement to arbitrate dated 3 October 1996 between the Government of the State of Eritrea and the Government of the Republic of Yemen, Award of the Arbitral Tribunal in the second stage of the proceedings (Maritime Delimitation), 17 December 1999 Eritrea-Ethiopia Boundary Commission, Decision on the delimitation of the border between Eritrea and Ethiopia, 13 April 2002 Award in the dispute concerning access to information under Article 9 of the OSPAR Convention, Ireland v. United Kingdom, 2 July 2003 Arbitration regarding the Iron Rhine (‘IJzeren Rijn’) railway, Belgium v. The Netherlands, award of 24 May 2005 Arbitral Tribunal constituted pursuant to Article 287 and in accordance with Annex VII of the UN Convention on the Law of the Sea, In the matter of an

TABLE OF CASES

213

arbitration between Barbados and the Republic of Trinidad & Tobago , Award, 11 April 2006 PERMANENT COURT OF INTERNATIONAL JUSTICE – PCIJ all cases available at

Oscar Chinn case, PCIJ, Series A/B, no. 63, 1923 Nationality Decrees in Tunis and Morocco case, advisory opinion, PCIJ, Ser. B, No. 4, 1923 SS Lotus, France v. Turkey, Judgment no. 9, PCIJ, Ser. A, No. 10, 1927 Free zones of Upper Savoy and the district of Gex, France v. Switzerland, PCIJ, ser. A/B, no. 46, 1932 BELGIUM The Sharon case, Abbas Hijazi et al. v. Sharon et al ., Cour de cassation belge, décision du 12 février 2003, available at FRANCE Conseil constitutionnel, décision du 11 février 1982, JORF 1982, p. 301 The Qadda fi case, Cour de cassation, arrêt du 13 mars 2001, RGDIP 2001, 473-491 ISRAEL Attorney-General of Israel v. Eichmann, Supreme Court of Israel, 29 May 1962, 36 ILR (1968) pp. 277-342 Attorney-General of Israel v. Eichmann, District Court of Jerusalem, 12 Decem ber 1961, 36 ILR (1968) pp. 5-276 SPAIN Guatemalan Generals case, Tribunal constitucional, resolución no. STC 237/2005 de 26 septiembre 2005, available at UNITED KINGDOM – UK High Court of Admiralty, Le Louis [1817] 165 Eng. Rep. 1464, at 1475

In re Piracy Iure Gentium [1934] AC 586 Compania Naviera Vascongado v. Cristina SS [1938] AC 485 Naim Molvan v. Attorney-General for Palestine [1948] AC 531, 15 Annual Di gest 1948, p. 115 R. v. West Yorkshire Coroner, ex parte Smith [1983] QB 335

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House of Lords, R. v. Bow Street Stipendiary Magistrate and others ex parte Pinochet Ugarte (Amnesty International and others intervening) (no. 3), judgment of 24 March 1999, available at High Court of Judiciary, HM Advocate v. Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, case no. 1454/99, judgment of 10 October 2000, available at UNITED STATES OF AMERICA – USA The Schooner Exchange v. Mac Faddon (1812), 7 Cranch 116 United States v. Furlong , 18 US (5 Wheaton) 184 (1820) United States v. Brig Malek Adhel , 43 US (2 How.) 210, at p. 232 (1844) Cutting case, in J.B. Moore, Digest of International Law (vol. II, 1906) pp. 228242; Whiteman’s Digest of US Practice in International Law 1976, at p. 339 US v. Aluminium Company of America (Alcoa), 148 F.2d 416 (1945) Lauritzen v. Larsen, 345 US 571, 73 S Ct 921 (1953) US v. The Watchmakers of Switzerland Information Center, Inc., 133 F.Supp. 40 and 134 F.Supp. 710 (1963) Hazeltine Research Inc. v. Zenith Radio Corporation, 239 F.Supp. 51 (1965), aff’d 395 US 100 (1969) Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (1976) Mannington Mills v. Congoleum Corporation, 595 F.2d 1287 (1979) United States v. Gonzalez, 776 F.2d 931 (1985) United States v. Yunis, 681 F. Supp. 896 (DDC 1988), aff’d 924 F.2d 1086 (DC Circ. 1991) Re Alvarez-Machain, 112 S. Ct. 2188, 31 ILM 1992, pp. 900-952 Hartford Fire Insurance Co. v California, 113 S. Ct. 2891 (1993) International Association of Independent Tanker Owners (Intertanko) v. Lowry, 497 F.Supp. 1484 (W.D. Washington 1996) aff’d in part, rev’d in part International Association of Independent Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Circ. 1998) Hoffmann-La Roche Ltd. V. Empagran S.A., 542 US 155 (2004) US v. Royal Caribbean Cruises Ltd ., 2003, file available at the US Coast Guard site at Federal Trade Commission v. Compagnie de Saint-Gobain-Pont-à-Mousson, 20 ILM 1981, pp. 597-617

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INDEX Actio popularis  21, 125

Archaeological zone  3, 10

Adriatic Sea  93

Archipelagic waters  3

Agenda 21  107

Area  3, 61, 136, 137, 142, 143, 144, 147, 148, 150, 152, 156, 159 Atlantic Ocean  94

Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea  144 Agreement on the Implementation of the Provisions of the UN Convention on the Law of the Sea relating to the Conservation and Management of Straddling Fish Stock and Highly Migratory Fish Stocks  109, 110, 112, 113, 118, 118, 119, 124, 127, 128, 130, 131, 133 Article 1  121 Article 3  109 Article 6  109 Article 7  109 Article 8  110, 118, 119, 128 Article 17  120, 121, 122, 128 Article 19  110, 111 Article 20  111 Article 21  111, 127 Article 22  114, 123 Article 33  118, 127 Review Conference  127 Albania  39 Algeria  61, 93 Antarctic Convention on the Conservation of Antarctic Marine Living Resources (CCMLR)  100, 120, 230

Australia  75, 118, 172 Authority  138, 143, 144, 145, 156 Barbados  100 Belgium  11, 16, 22, 54, 58, 83, 85 Law of 16 June 1993  22 Law of 10 February 1999  22 Belize  19, 173 Biodiversity  81, 108, 135, 148, 153, 155 Biological, chemical and nuclear (BCN) weapons  168, 169, 170 Bioprospecting  134, 135, 145, 147, 148, 149, 151, 152, 153 Bribery  14, 21 Canada  16, 34, 105, 146 Arctic Waters Pollution Prevention Act  31, 70 Canadian Shipping Act  31 Coastal Fisheries Protection Act  105 Oceans Act  146

276 Caribbean Sea  48, 115, 124, 172, 173 Cartagena Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region  81 Protocol concerning Specially Protected Areas and Wildlife in the Caribbean Region (SPAW)  81 CDEM standards  42, 46, 73, 74, 79, 86 Chile  2, 90, 118

INDEX Continental shelf  2, 3, 4, 11, 64, 65, 66, 148, 149 Convention on Biological Diversity (CBD)  63, 139, 140, 152, 154, 155 Article 1  153 Article 2  153 Article 4  153 Article 15  153 Article 22  155

CITES Convention  128

Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)  114, 116, 117

China  143

Council of Europe  13

Coastal state  1, 3, 4, 7, 33, 39, 40, 41, 42, 43, 44, 45, 53, 54, 59, 62, 63, 64, 65, 67, 68, 70, 71, 72, 73, 74, 75, 76, 77, 79, 82, 83, 84, 86, 88, 89, 90, 91, 92, 95, 97, 98, 100, 101, 102, 103, 104, 105, 110, 111, 128, 131, 132, 135, 140, 141, 146, 148, 149, 150, 158, 163, 165

Countermeasures  9, 10, 122, 124, 125, 126, 176

Commission for the Outer Limits of the Continental Shelf (CLCS)  132, 141, 142

Cuba  8, 9, 75, 143

Common concern of humankind  139, 140, 152, 155

Crimes against humanity  21, 24, 25, 28 Croatia  93, 174

Cyprus  94, 174 Delimitation  92, 93, 94, 100, 102

Common heritage of mankind  136, 138, 140, 141, 146, 151, 152, 157

Denmark  54, 76

Comoros Islands  185

Drug trafficking  27, 31, 38, 124, 161

Complementarity  14, 24

Ecological zone  60, 87, 88, 89, 92, 93

Congo  22

Ecosystem approach  102, 103, 108

Conservation  63, 102, 103, 104, 106, 107, 109, 112, 121, 122, 124, 127, 132, 147

Egypt  94

Contiguous zone  2, 3, 7, 10

Energy  11, 34, 63, 144

277

INDEX Environment  11, 21, 33, 34, 40, 41, 43, 44, 53, 54, 55, 60, 64, 69, 70, 73, 78, 79, 81, 82, 85, 87, 89, 95, 96, 100, 110, 111, 114, 131, 138, 143, 149, 154, 157 Eritrea-Ethiopia Boundary Commission  12

Code of Conduct on Responsible Fisheries  108 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA)  139 International Undertaking on Plant Genetic Resources  138

Étang de Berre case  56

Finland  54, 76

European Commission  52, 54, 57, 58

Fish stocks  104 Highly migratory  103, 104, 109, 110, 116, 120, 128 Shared  104 Straddling stocks  103, 109, 110, 120, 128

European Community  9, 11, 36, 49, 50, 51, 52, 53, 55, 56, 57, 58, 87, 92, 105 Convention implementing the Schengen Agreement  11 Directive 95/21/EC  49 Directive 2005/35/EC  42, 54 Regulation 1726/2003  86 European Court of Human Rights  6 Al-Adsani case  6 Loizidou case  13 European Court of Justice  42, 50, 52, 54, 55, 56, 58 European Union  9, 10, 12, 36, 49, 50, 51, 52, 54, 55, 58, 89, 91, 172 European Arrest Warrant  12 Framework Decision 2003/80/JHA  52 Framework Decision 2005/667/JHA  54 Exclusive Economic Zone (EEZ)  2, 3, 4, 11, 31, 39, 43, 44, 45, 54, 59, 61, 62, 65, 66, 68, 69, 71, 72, 73, 80, 83, 86, 89, 90, 91, 92, 93, 94, 95, 100, 101, 102, 103, 104, 105, 116, 134, 146 FAO  47, 107 Agreement to Promote Compliance with Conservation Measures in the High Seas  109

Fisheries  2, 40, 41, 47, 60, 65, 67, 89, 92, 93, 97, 98, 101, 102, 104, 107, 108, 109, 111, 114, 115, 118, 119, 120, 121, 124, 125, 126, 127, 128, 130, 141, 147 Preferential rights  99, 100 Flag state  7, 17, 18, 19, 26, 31, 33, 34, 35, 36, 37, 41, 45, 62, 86, 95, 105, 107, 108, 109, 110, 111, 112, 113, 117, 119, 121, 122, 123, 130, 131, 132, 147, 150, 152, 153, 158, 159, 160, 161, 163, 165, 167, 168, 170, 171, 174, 176, 177 Flagless ships  161 Flags of convenience  17 Framework Convention Change  63, 140

on

Climate

France  5, 19, 22, 54, 56, 83, 87, 88, 91, 93, 143, 161, 172 Geneva Convention on the Continental Shelf  3, 64, 66, 148, 149 Geneva Convention on Fishing and Conservation of Living Resources on the High Seas  98

278 Geneva Convention on the High Seas  3, 16, 26, 28, 148, 160

INDEX Indonesia  27 Innocent passage  39, 40, 41, 42, 44, 79

Geneva Convention on the Territorial Sea and the Continuous Zone  3, 39 Genuine link  16, 18, 19, 34

Internal waters  3, 45, 54 International Chamber of Commerce (ICC)  10

Genocide  21, 24, 25

Human rights  11, 13, 14, 25, 33, 67, 123

International Court of Justice (ICJ)  11, 62, 129, 130 Aegean Sea case  85 Anglo-Norwegian Fisheries case  11 Arrest Warrant of 11 April 2000  22 Barcelona Traction case  16, 125 Certain criminal proceedings in France  22 Constitution of the Maritime Safety Committee of the IMCO  15 Continental Shelf Tunisia/Libya  62 Corfu Channel case  39 ELSI case  16 Fisheries Jurisdiction case  34, 99, 105, 123 Gabcikovo-Nagymaros case  85, 126 Gulf of Maine case  99 Legality of the threat or use of nuclear weapons  85 Maritime delimitation in the area between Greenland and Jan Mayen case  99 Nicaragua case  68, 129, 130 Nottebohm case  14, 15 South-West Africa cases  85 Tunisia/Libya delimitation case  62

Hydrothermal vents  134

International crimes  13, 25, 26

Illegal, unreported and unregulated (IUU) fishing  47, 106

International Criminal Court  14, 24 Rome Statute  14 Article 4  24 Article 17  24

Germany  76, 83, 90, 172 Good faith  100 Grotius  1, 3, 20, 97 Guatemala  16, 23, 172, 173 Hague Conference for the Codification of International Law (1930)  2 Haiti  172 High seas  3, 7, 26, 31, 36, 38, 54, 59, 60, 62, 65, 66, 69, 73, 75, 81, 97, 98, 99, 104, 106, 107, 108, 109, 110, 111, 117, 118, 119, 121, 123, 128, 131, 135, 147, 152, 157, 158, 159, 160, 161, 165, 168, 170, 175, 176, 177, 178 Honduras  172 Hot pursuit  111

India  143

279

INDEX International Labour Organisation (ILO)  35, 47, 164, 165 Maritime Labour Convention  36 International Law Association  88 International Law Commission (ILC)  14, 84, 126 Articles on Prevention of transboundary damage from hazardous activities  84 International Maritime Organisation (IMO)  27, 35, 36, 37, 43, 46, 48, 72, 74, 77, 79, 87, 88, 163, 165, 166 Associated Protective Measures  77, 78 ISM Code  46 ISPS Code  164 International Ship Security Certificate (ISSC)  164 Port Facility Security Plan (PFSP)  164 PSSAs  74, 75, 76, 77, 78, 79 Guidelines  74, 75 International Seabed Authority (ISA)  132, 136, 137, 142, 143, 145, 146, 151, 156 Draft Regulations on Prospecting and Exploration for Polymetallic Sulphides and Cobalt-rich Ferromanganese Crusts in the Area  143, 145 Recommendations for the Guidance of Contactors for the Assessment of Possible Environmental Impacts Arising from Exploration for Polymetallic Nodules in the Area  143 Regulations on Prospecting and Ex ploration for Polymetallic Nodules in the Area – Mining Code  142, 143, 145 International Tribunal on the Law of the Sea (ITLOS)  17, 18, 57, 58, 67, 112, 113

The Camouco case  33, 112 The Chaisiri Reefer  33 The Grand Prince case  19, 33 The Juno Trader case  33 The Monte Confurco case  33, 112 The M/V Saiga case  33, 66, 67, 68 The M/V Saiga (no.2) case  18, 67, 68 The Southern Bluefin Tuna cases  108, 115, 121, 154 The Volga case  33, 112 International Whaling Commission (IWC)  114, 115 Iran  8, 10 Ireland  54, 56, 57 Iron Rijn case  58, 85 Israel  12 Italy  16, 88, 89, 93, 94, 124, 172 Ius cogens  24, 28, 123 Japan  143, 172 Jordan  12 Jurisdiction  3, 4, 13, 19, 21, 29, 30, 32, 34, 47, 53, 56, 64, 65, 88, 89, 91, 92, 98, 100, 103, 106, 110, 119, 131, 132, 133, 136, 143, 147, 148, 159, 165, 167, 178 civil  5, 11 creeping  59, 62 criminal  5, 11, 25 domestic  11, 101 enforcement  6, 11, 13, 45, 84, 116 exclusive  11, 37, 51, 92, 102, 104, 123, 131, 168, 170 executive  6 extraterritorial  8, 9, 10, 13

280

INDEX international  5 judicial  6 legislative  6 mandatory  45 objective territorial  7 permissive  25, 45 personal  13 prerogative  6 prescriptive  5 subjective territorial  7 territorial  10

Korea  143 Liability  47 Joint and several  53 Liberia  173

Marshall Islands  174 Mediterranean Sea  49, 87, 89, 92, 115 Protocol concerning Mediterranean Specially Protected Areas  81 Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean Sea  81 Mixed agreement  50, 55, 58 Morocco  93, 94 MOX Plant case  56, 57, 58 Nationality  6, 7, 13, 15, 17, 18, 19, 34, 89, 97, 106, 107, 154, 168 Navigation  41, 61, 65, 68, 70, 75, 81, 82, 85, 86, 89, 157, 158

Libyan Arab Jamahiriya  8, 10, 62, 93 Liechtenstein  15

The Netherlands  8, 11, 54, 58, 76, 85, 172

Luxembourg  11

New Zealand  118, 134

Malaysia  27

Nicaragua  172, 173

Malta  54, 93, 136, 174

North Atlantic Fisheries Organisation (NAFO)  105, 114, 116

Mar presencial  61 Marine Protected Areas (MPAs)  131, 145 Marine scientific research  2, 11, 40, 43, 64, 148, 149, 151, 153, 158 Applied  149 Pure  149 Resource-oriented  149

Offshore installations  11, 43, 64, 158 Organisation of African Unity  61 Organisation of American States (OAS)  173 OSPAR Convention  57, 80, 146 Panama  173, 174

MARPOL Convention  42, 44, 54, 73, 78, 86, 87, 88

Paris MOU  46, 48, 49

281

INDEX Passive personality principle  7, 29, 30, 32 Patrimonial sea  61 Permanent Court of Arbitration (PCA)  13 Isle of Palmas case  13 Permanent Court of International Justice (PCIJ)  11, 15 Free zones of Upper Savoy and the district of Gex  81 Lotus case  5, 11 Nationality Decrees in Tunis and Morocco  11, 15 Piracy  7, 21, 25, 28, 38, 157, 159, 160, 166 Pollution  31, 40, 41, 42, 43, 45, 48, 71, 82, 84, 86, 88, 92, 131, 144, 148 Port State  18, 33, 44, 45, 46, 47, 108, 163, 165 Portugal  54, 83, 91, 146, 172 Precautionary approach  84, 108 Precautionary principle  91, 109 The Prestige incident  79, 83 Prevention  41, 84, 87, 138

Regional Fisheries Management Organisations (RFMO)  112, 113, 117, 120, 122, 123, 124, 126, 128, 130 Resources  2, 7, 43, 71, 84, 97, 99, 120, 122 biological  134, 140, 144, 152, 156 genetic  138, 147, 148, 153 living  10, 41, 63, 67, 68, 99, 100, 106, 107, 124, 140, 154 mineral  140, 142, 144, 146 natural  61, 63, 67, 119, 138, 140 non-living  10, 63, 140 plant  138 renewable  61 shared  103, 119, 141 Rider Agreements  29, 173 Rio Declaration on Environment and Development  63 Russian Federation  76, 113, 143 Scotland  7, 8 Seabed  4, 63, 133, 134, 141, 143, 145, 146, 148 Self-defence  176 Shipping  27, 107 Singapore  27

Prompt release  33, 67

Slavery and slave trade  21, 27, 28, 38, 159

Protective principle  6, 7, 29, 30, 32

Slovenia  91, 93, 143

Provisional measures  22

SOLAS Convention  37, 42, 78, 79, 163, 164, 165

PSI Initiative  132, 171, 173, 176, 177

South-East Asia  26, 27

282 Sovereign rights  43, 63, 64, 65, 67 Sovereignty  1, 2, 5, 6, 39, 40, 41, 61, 64, 65, 90, 123, 140

INDEX Territorial sea  2, 3, 39, 41, 42, 45, 54, 65, 70, 71, 78, 84, 98, 167, 173 Terrorism  10, 21, 30, 32, 166

Spain  23, 34, 83, 92, 105, 123, 124, 172 Total Allowable Catch (TAC)  101 Special Area  71, 72, 73, 78 Specially Protected Areas (SPAs)  43 State responsibility  13, 18, 124, 125 Articles on State Responsibility  18, 124, 176 Article 1  18 Articles 2-11  34 Article 42  18, 125 Article 46  125 Article 48  176 Article 49  122 Article 50  122, 123 Article 51  122 Article 52  126 Article 54  125, 176 STCW Convention  35 Stockholm Declaration on the Human Environment  138 Straits  54 SUA Convention  27, 30, 32, 38, 132, 166, 167, 168, 170 Article 1  70 Article 3  167 Article 4  167 Article 6  168 Article 8bis  171 SUA Protocol  32, 38, 132, 168, 170, 171 Territoriality  6, 7, 11, 19, 90, 153

Treaty on the European Community  55 Article 10  55, 57 Article 174  55 Article 226  57 Article 292  56, 57 Article 300  55 Trinidad & Tobago  100 Truman Proclamations (1945)  2 Tunisia  61, 62, 93 Turkey  94 UN Charter  40, 123 Article 2  11, 15, 22 Article 25  177 Article 48  177 Chapter VII  159 UN Conference on Environment & Development (UNCED)  107 Rio Declaration  138 UN Conference on the Law of the Sea First (UNCLOS I)  2 UN Conference on the Law of the Sea Third (UNCLOS III)  1, 62, 65, 68, 70, 133, 178 UN Convention on the Law of the Sea 1982  1, 3, 4, 17, 19, 28, 29, 32, 33, 41, 42, 44, 54, 55, 57, 59, 60, 61, 66, 69, 77, 82, 85, 86, 89, 90, 95, 98, 100, 103, 105,

INDEX 107, 111, 118, 119, 120, 127, 131, 133, 135, 136, 146, 152, 154, 155, 156, 158, 165, 166, 171, 177, 178 Article 1  3, 136, 144 Article 2  3, 39 Article 8  3 Article 18  39 Article 19  39, 40, 43 Article 21  41, 42, 71, 114 Article 22  114 Article 24  41 Article 25  40 Article 26  42 Article 33  3, 10 Article 34  42 Article 44  70 Article 46  3 Article 47  3 Article 48  3 Article 49  3 Article 50  3 Article 51  3 Article 52  3 Article 53  3 Article 54  3 Article 55  3 Article 56  4, 11, 39, 43, 62, 63, 69, 90, 100 Article 58  62, 65, 66, 67, 68, 69 Article 59  62, 67 Article 60  11 Article 61  101, 102 Article 62  101, 103 Article 63  104, 110, 128 Article 64  104, 128 Article 69  103 Article 70  103 Article 76  1, 141 Article 77  148 Article 78  66 Article 80  11 Article 82  142

283 Article 86  3 Article 87  65, 158, 159 Article 89  158 Article 91  16 Article 92  159 Article 94  17, 18, 35, 37 Article 97  33 Article 98  37 Article 99  38, 159 Article 101  27, 160, 166 Article 105  25, 26, 159, 160 Article 106  160 Article 108  29, 38, 161 Article 109  38 Article 110  28, 38, 123, 161, 171 Article 112  107 Article 116  121 Article 117  110, 119, 121 Article 118  106, 119 Article 119  106 Article 133  140, 142 Article 135  136 Article 136  136 Article 137  137 Article 140  137 Article 141  137 Article 143  150, 151 Article 145  138, 143 Article 149  3 Article 157  142, 144 Article 162  145 Article 192  33, 74 Article 194 74 Article 195  86 Article 211  42, 43, 46, 71, 72, 73, 74 Article 218  44, 45 Article 219  46 Article 220  84 Article 234  71 Article 240  150 Article 243  149

284

INDEX Article 246  149, 150 Article 256  150 Article 287  57 Article 290  57 Article 292  33, 67, 84, 112 Article 294  84 Article 297  103 Article 303  3, 10 Article 311  107, 131, 155, 156 Part V  62 Part XI  137, 150 Part XII  33, 144 Part XIII  150

UN General Assembly  17 Resolution 2749 (XXV): Declaration of Principles Governing the Seabed and Ocean Floor  137 UN Security Council  172, 175, 177 Resolution 1540/2004  174, 175, 176, 177 Underwater cultural heritage  3 UNESCO  3 UNESCO Convention for the Protection of the Underwater Cultural Heritage  3 Article 15  48 Unilateralism  71, 82, 95, 178 United Kingdom  6, 26, 29, 39, 54, 124, 161, 172 United States of America (USA)  2, 4, 7, 9, 16, 26, 29, 32, 74, 80, 116, 124, 132, 158, 161, 172, 177 Anti-Terrorism and Effective Death penalty Act (AEDPA)  30 Constitution  26 D’Amato-Kennedy Act  8, 9, 10

Helms-Burton Act  8, 9, 10 Oil Pollution Act (OPA)  31, 82, 86 Patriot Act  10 Universal Declaration of Human Rights  14 Universal jurisdiction  6, 7, 19, 20, 21, 22, 24, 25, 27, 28, 30, 45, 159 Aut dedere aut iudicare  21, 45 Cooperative limited universality  20 Unilateral limited universality  20 Vienna Convention on the Law of Treaties  119 Article 2  121 Article 34  119 War crimes  21, 24, 25, 30 Weapons of Mass Destruction (WMD)  168, 172, 174, 175, 176 World Summit on Sustainable Development (WSSD)  139 World Trade Organisation  116 WWF  77

Functional Jurisdiction in the Law of the Sea (Publications on Ocean Development)

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