Our world is culture, technology, biology, economics, politics and finite resources. Technology based on fossil fuels produces candy as well as poisons and enables huge human populations which directly and indirectly destroy marine environments. Technology, in the context of modern society also provides the only way forward. However, policies and goals need to change if technology is to provide that way forward. Meeting immediate societal needs as cheaply as possible is unsustainable as it depletes resources and pollutes. Food production depends on turning limited resources into fertilizer, growing plants and converting them into human food. Excess fertilizer and waste damage fresh and marine environments reducing useful productivity. Microbes, including pathogens, thrive on waste, exacerbate algal blooms which use up the oxygen in water and make dead zones killing fish and shellfish. We are running out of sources of chemicals for synthetic fertilizer. We are promoting pathogen contamination of surface and ground water threatening human health and food security. Developing technology that removes poisons, converts waste into clean water for drinking and recharging aquifers and producing fertilizer for growing food is a necessary next step to meet demands for food and to help restore marine environments. unclos has the structure to address these concerns.
This paper provides an analysis of the challenges associated with a mass rescue operation (mro) at sea. In particular, the challenges associated with the coordination and conduct of an mro offshore, with limited resources readily available to render assistance to possibly hundreds, if not thousands of persons in distress. While government agencies and regulatory bodies continue to improve standards and regulations to prevent disasters at sea, search and rescue (sar) authorities must still assess the risk, plan and conduct response preparedness activities for these low probability, high consequence disasters that may result in a significant loss of life. This paper will discuss the imperative for mro response planning and preparedness, identify lessons learned from previous maritime disasters and mros, and challenges sar authorities must consider when planning, coordinating and conducting maritime mros.
The past 25 years have witnessed an impressive range of activity in the field of ocean law and policy. This article offers some reflections on illustrative examples of work in this field, and on the motivations that spurred such initiatives, and considers how effective and lasting these efforts and their results may turn out to be. The international community—governments, stakeholders, intergovernmental organizations, and others—has devoted considerable efforts to make marine fisheries more sustainable in the face of growing worldwide demand for seafood and improved fishing technology. Despite these efforts, the record of success in this endeavor is mixed at best. For the Asia-Pacific region, which relies significantly on seafood for protein, this raises serious concerns. The Arctic Ocean offers a fascinating case for testing how well nations can cooperate in managing the full range of human activities in a specific marine environment. Until recently, nations did not really need to cooperate extensively in the Arctic Ocean, as the year-round extent of ice coverage made most human activities there difficult if not impossible. But conditions have changed profoundly due to the warming of the region. Arctic States—and other States with significant interests in the region—have in the past decade found ways to cooperate on Arctic Ocean issues, despite serious geopolitical tensions. The ocean and its challenges have attracted unprecedented high-level attention in recent years. High-profile conferences on ocean matters have sprung up in the past decade, including the Our Ocean Conferences, the UN Ocean Conferences relating to Sustainable Development Goal 14, the Economist Ocean Summits and similar gatherings. Are these making a significant difference? And where are they—and we—headed?
The South China Sea (scs) is an area where lots of accidents occur from time to time, and the Search and Rescue (sar) operations play a significant role in rendering assistance to persons in distress. As a semi-enclosed sea, the scs is surrounded by six neighbouring States which have disputes on the sovereignty of certain maritime features. Furthermore, there is no regional agreement on the establishment of Search and Rescue Regions (srrs) in this area. Indeed, the sar operations in the scs can be both an opportunity for cooperation and a source of conflict. This situation makes it imperative to establish an effective and efficient sar cooperation mechanism in the scs. This paper first examines the current global and regional regulatory framework for the establishment of a sar cooperation mechanism in the scs, and then identifies the challenges in this framework for furthering the construction of a regional sar cooperation mechanism in the scs. It is arguable that reaching a regional sar treaty in the scs might be a feasible way forward.
This presentation examines common interests among the United States and countries in the Asia-Pacific region, as well as prospects for continued and increased cooperation. It focuses on the notable progress that has already been made in conducting military exercises, counter-piracy operations, and disaster response, and efforts to continue to strengthen our collaboration in these areas. The remarks also highlight the importance and mutual benefits of cooperation to ensure peace, stability, effective communication, and economic prosperity in the Asia-Pacific maritime environment.
The era of addressing at-sea challenges exclusively with a navy warship or coast guard cutter has evolved into a more distributed response environment. The maritime enforcement spectrum now includes a number of government departments, such as the military, law enforcement, health, treasury, and the diplomatic corps. More agencies are involved because threats are more complex, authorities are more widely allocated, and the end-state is often the courtroom or regulatory action. These agencies, however, frequently operate under different chains of command. As such, information may not always be shared and responses not synchronized. Decisions such as how to respond to malware on a tanker plying the high seas; logistics details related to how captured pirates will be transported from a warship to a prosecuting State; and the response to a vessel with a passenger possibly infected with a lethal contagion almost always involves multiple agencies. This article focuses on the emergence of whole-of-government frameworks, supported by checklists, to better position States to collaboratively identify and confront contemporary maritime security challenges.
China opened the disputed Paracel Islands to marine and cruise tourism in April 2013. Although the cruise route was established for a variety of purposes, helping assert China's territorial and maritime claims to the disputed islands in the South China Sea is considered an important one with political and diplomatic implications. This type of so-called "patriotic tourism" has the potential to increase tensions in the South China Sea. It also gives rise to problems for successful implementation of the 21st Century Maritime Silk Road Initiative. This chapter explores the idea of promoting joint marine and cruise tourism in the disputed South China Sea areas so that peace, stability and prosperity can be enhanced through maritime cooperation and development in this important East Asian semi-enclosed sea.
This paper examines the conflation between "fisheries crime," a term that is increasingly being used in international fora, and illegal, unreported, and unregulated (iuu) fishing. "Fisheries crime" obscures the different legal responses necessary to address fisheries violations (as opposed to crimes that may be associated with iuu fishing), focuses on illegal fishing over unreported and unregulated fishing, and risks moving primary responsibility for addressing iuu fishing on the international level away from Regional Fisheries Management Organizations (rfmos) with expertise in fisheries management. Ultimately, this paper concludes that the use of "fisheries crime" to encompass and expand the concept of iuu fishing is counterproductive to efforts to understand and address iuu fishing in an international fisheries management context.
The UN General Assembly decided to convene in 2018 a Diplomatic Conference for the development of an internationally legally binding instrument for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. This development followed conclusion in 2017 of the work of a two-year Preparatory Committee. This chapter brings up to date through the first intergovernmental conference in September 2018 the author's chapter in the Center for Ocean Law and Policy's book on its annual conference in Yogyakarta in mid-2017, "Update on the BBNJ Negotiations," in Legal Order in the World's Ocean: UN Convention on the Law of the Sea.
It has been endorsed by the international community that taking a environmental impact assessment prior to approval or conduction of a planning activity which may have harmful effects on the environment has become part of customary international law. The treaties on marine environment protection and preservation have an important role in the develop of environmental impact assessments. Articles 204-206 of the United Nations Convention on the Law of the Sea (unclos) do not name environmental impact assessments directly but can be regarded as the specific application of environmental impact assessment in the law of the sea. Overall, article 206 is very vague and inoperable, but it contains elements of environmental impact assessment. The Espoo Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) and the Draft Articles on the Prevention of Transboundary harm from Hazardous Activities adopted by the International Law Commission in 2001 (Articles on Prevention) are general rules that have significant influence on marine environmental impact assessment. The judicial practice of the International Court of Justice and the International Tribunal for the Law of the Sea have interpreted the rules of environmental impact assessment, thus facilitating the development of these rules.
This paper outlines the perspectives of the United States and China in the South China Sea dispute, including their divergent legal interpretations on navigation regimes associated with the concept of freedom of navigation, and discusses the relationship between military activity and freedom of navigation. The debate on the legitimacy of military activities in a foreign country's Exclusive Economic Zone reflects the competing interests of two groups, the user States and the coastal States inspired by the doctrine of Mare Liberum and Mare Clausum respectively. This paper compares the US Freedom of Navigation Operation Program (fonop) practice in the South China Sea and the Arctic. It raises a question: is the legal substance and function of freedom of navigation lost in translation when it has become a central point of major power competition and an instrumental role in broader strategic debates?
In 2017 the International Maritime Organization (imo)'s Maritime Safety Committee included a scoping exercise on Maritime Autonomous Surface Ships (mass) in its work agenda. The mass concept includes commercial vessels that may be fully or partially automated and includes crewless but remotely operated ships. The technologies that make this possible are on the horizon and expected to be developed and operationalized soon. Given that the appropriate crewing of vessels is a requirement in the United Nations Convention on the Law of the Sea, 1982, International Convention on Safety of Life at Sea, 1974 and other international maritime conventions, it is unclear at this time how these new technologies will be accommodated by the existing legal frameworks and the changes needed, as well as what is desirable from a social responsibility perspective. This presentation will explore the legal issues and discuss how existing rules could be adapted through interpretation or amendment to accommodate mass.
Alleged violation of unclos Article 83(3) by unilateral hydrocarbon activities may fall into the scope of Article 298(1)(a)(i), according to which "disputes concerning interpretation or application of Article 83 relating to sea boundary delimitation" shall be excluded from adjudication or arbitration but submitted to a compulsory conciliation. In the Ghana/Cote d'Ivoire case (2017), the Special Chamber of itlos does not regard violations of unclos Article 83(3) as "disputes concerning maritime delimitation"; in the South China Sea Arbitration (2016), the tribunal is of the view if submissions are not "disputes concerning maritime delimitation", Article 298 will not limit the tribunal's jurisdiction. None of these cases involves such an actual jurisdictional objection, but the reasoning of the Chamber and the tribunal does not do favor to the interpretation that Article 298(1)(a)(i) limits their jurisdictions over questions of Article 83(3). Timor-Leste and The Commonwealth of Australia (2018) is the first case of compulsory conciliation, whose proceedings are initiated pursuant to Article 298(1)(a)(i). The Compulsory Conciliation Commission in its Decision on Competence firmly holds that it has jurisdiction on a question of Article 83(3) (the question of transitional arrangements pending a final delimitation). This decision can only be made by interpreting Article 298(1)(a)(i) to the extent that such a question has been excluded from compulsory procedures entailing binding decisions. This interpretation is a direct answer to the jurisdictional question in the application of Article 83(3) as to which compulsory venue it shall be subjected to under Article 298(1)(a)(i). The interpretation is by no means less authoritative, given that the Commission has the power to determine its competence by interpreting Article 298 and its Decision on Competence is binding on the Parties. The substance of violation of unclos Article 83(3) by unilateral hydrocarbon activities is considered in Ghana/Cote d'Ivoire, some ten years after the Guyana/Suriname tribunal decided on the same subject (2007). In Guyana/Suriname, the tribunal takes the nature of the unilateral activities as a factor necessarily linked to the decision on the violation of the obligation "not to jeopardize or hamper the reaching of the final agreement" in the second half of Article 83(3) as far as they occurred in the disputed area that both sides can lay overlapping claims. Guyana's hydrocarbon activities that bring about physical changes, lead to the finding of its violation. In Ghana/Cote d'Ivoire, the nature of Ghana's hydrocarbon activities (resulting in physical change) is no longer decisive and the Special Chamber does not find such a violation merely by the occurrence of such activities. Judge Paik in his Separate opinion considers that, apart from the nature and type, the allegation of Ghana's violation is to be further restricted by considering the time and location of its unilateral hydrocarbon activities, to the extent that such activities are in dispute "were, and should have been" clear to Ghana. This approach can also be found in the Special Chamber's reasoning on the question whether Ghana's unilateral activities pending delimitation violate Cote d'Ivoire's sovereign rights. As a result, the restricted geographic and temporal scope for the violation of pre-delimitation obligations will make some unilateral hydrocarbon activities permissible even though they occur in the disputed area in which both sides can lay overlapping claims. This indicates a need of balance on the consideration of the interest of the States in pursuing economic development in a disputed area pending delimitation. In this regard, Judge Paik's approach is certainly warranted.
Indonesia is the world's largest and most important archipelagic State. Because it sits as the fulcrum between the Pacific Ocean and the Indian Ocean, passage through and over the Indonesian archipelago is critically important to naval powers and maritime commerce. Indonesia played a significant role in negotiating the modern law of the sea, especially the regimes governing archipelagic States and straits used for international navigation. As a major beneficiary of the new law of the sea, Indonesia recognises that it is in its national interest to promote the rules-based legal order established in the 1982 United Nations Convention on the Law of the Sea (unclos). Consequently, Indonesia continues to work with other States and with the International Maritime Organization (imo) to develop the legal regimes established in unclos. It has taken the lead in working with the imo on the designation of archipelagic sea lanes through its archipelagic waters, and it is now working with the imo to adopt measures to protect the marine environment and enhance the safety of navigation in the routes used for international navigation through its archipelago.
International courts and tribunals increasingly refer to the importance of the duty to cooperate in the protection and preservation of the marine environment, as in the mox Plant case, Land Reclamation case, Advisory Opinion on iuu fishing, and South China Sea Arbitration. How a State can fulfill this duty to cooperate, however, remains unclear. This paper examines the nature and content of the duty to cooperate under the United Nations Convention on the Law of the Sea namely the duty to negotiate or consult in good faith and the duty to cooperate through global, regional or subregional organizations.
The present Secretary-General of the International Seabed Authority (ISA) provides an overview of the current status of deep seabed mining. A lack of specific regulations defining the terms and conditions for exploitation has been a significant barrier to deep seabed mining, but the Council of the International Seabed Authority has fast-tracked the development of regulations. Near universal acceptance of the UN Convention on the Law of the Sea, increased confidence in the ISA, successful trial mining, increased demand for strategic metals and tightening supplies, among other factors, suggest seabed mining on a commercial scale will soon occur. Challenges include concerns over potential environmental damage and strategies to mitigate and, as far as possible, prevent harmful impacts and pollution.
Preparatory bodies play an important role in intergovernmental negotiation processes leading to the drafting of international treaties or the establishment of new institutions pertaining to the law of the sea. The paper offers some reflections on the evolution of the negotiations on an international legally binding instrument under the LOS Convention on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The paper traces the genesis of the Preparatory Committee 2016-2017 and reviews its unique role in advancing the negotiation process towards the convening of an intergovernmental conference in 2018. Special mention is made of the role of European Union in edging the preparatory phase towards a successful outcome. The paper also touches on how the preparatory phase of a new marine biodiversity instrument differed in some significant respects from previous law of the sea negotiations.
The international straits regime set out in Part III of the 1982 UN Convention on the Law of the Sea is universally recognized as one of the critical components of the overall package-deal that has led to the Convention being ratified by 168 States. The first part of this contribution will point out a number of continuing legal uncertainties concerning the unclos international straits regime including: if a waterway in question has the status of historic internal waters of a coastal State, can that waterway be a strait used for international navigation? - what constitutes a strait used for international navigation? - what are routes of similar convenience in the context of straits between an island and the mainland? As most attention on international straits in the Asia-Pacific region is on the Straits of Malacca and Singapore, the second part of this contribution will look briefly at some the other Straits in the region such as: the Jeju Strait (Korea); the Korean Strait ( Japan-Korea); and the Strait of Hainan/Qiongzhou (China).
In recent years Freedom of Navigation (fon) operations have become a regular feature of US naval operations in the South China Sea, drawing attention to a once obscure national security initiative to ensure free and open uses of the seas. This contribution to the volume mines declassified US government correspondence and, in particular, a major National Security Council Study completed by the administration of President Carter, to explore the US rationale for creation of the fon program and assess its early implementation. The chapter helps form a clearer image of the creation of the fon program and how it was implemented in its first half-decade.
