Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention
SINGAPORE PAPERS Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention is part of a series of publications on oceans law and policy associated with the Center for Oceans Law and Policy, University of Virginia School of Law. This volume is based on presentations made January 9-10, 2008 at the Center’s 32nd Annual Conference which was held in Singapore and primarily co-hosted with the S. Rajaratnam School of International Studies, a graduate school of Nanyang Technological University. Other sponsors included the Law of the Sea Institute of Iceland, the United States Naval War College and the Center for Oceans Policy and Law at Xiamen University.
CENTER FOR OCEANS LAW AND POLICY
Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention Edited by
Myron H. Nordquist, Tommy T.B. Koh, and John Norton Moore
LEIDEN • BOSTON 2009
This book is printed on acid-free paper.
ISBN 978 90 04 17359 0 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the 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 in the netherlands
TABLE OF CONTENTS
CD Table of Contents ............................................................................ x Preface................................................................................................... xv Acknowledgements ........................................................................... xxii Welcoming Remarks Dean Barry Desker .....................................................................3 S. Rajaratnam School of International Studies, Nanyang Technological University Professor John Norton Moore ....................................................7 Director, Center for Oceans Law and Policy, University of Virginia School of Law H.E. Patricia L. Herbold .......................................................... 11 US Ambassador to Singapore Keynote Addresses Navigational Freedom and Other Contemporary Oceans Issues ............................................................................. 17 S. Jayakumar, Deputy Prime Minister, Singapore The South China Sea: the Long Road Towards Peace and Cooperation............................................................... 25 Hasjim Djalal, Ambassador, Indonesia Panel I: Background on the Freedom of Navigation John Norton Moore, Moderator Remarks on the Legal Status of the Exclusive Economic Zone .......................................................................... 53 Tommy T. B. Koh v
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An Introduction to the Regime of Passage Through Straits Used for International Navigation and Through Archipelagic Waters .................................................................. 57 Satya N. Nandan Remarks on the Concept of “Freedom of Navigation” .............. 65 Hasjim Djalal Freedom of Navigation and Navies [Abstract & PowerPoint only] ...................................................77 RADM Nora Tyson, USN Freedom of Navigation: New Challenges.................................. 79 Rüdiger Wolfrum Comments and Q & A ............................................................... 95 Panel II: Scientific Research and Hydrographic Surveys in the EEZ Barbara Moore, Moderator Hydrographic Surveying and Marine Scientific Research in Exclusive Economic Zones ..................................105 Sam Bateman Regulating Marine Biodiscovery in Sea Areas Under Coastal State Jurisdiction ......................................................... 133 Ronán Long Marine Data Collection: Methods and the Law ....................... 171 Capt. J. Ashley Roach, JAGC, USN (Ret.) Marine Scientific Research and Hydrographic Survey in the EEZs: Closing Up the Legal Loopholes? ...................... 209 Guifang “Julia” Xue Comments and Q & A ............................................................. 227 vi
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Panel III: Military Activities in the EEZ Myron H. Nordquist, Moderator Military Activities in and over the Exclusive Economic Zone ........................................................................ 235 Capt. Raul “Pete” Pedrozo, JAGC, USN Military Activity in the EEZ: Exclusive or Excluded Right? ....................................................................... 249 Capt. Alexander S. Skaridov, RFN (Ret.) China and the Law of the Sea .................................................. 265 Zhiguo Gao Comments and Q & A ............................................................. 297 Panel IV: Transit Passage Through Straits Used for International Navigation Mary Seet-Cheng, Moderator PSSAs and the Jurisdiction of Coastal States over Ship-Source Pollution in the EEZ and in Straits used for International Navigation..................................................... 311 Robert Beckman Compulsory Pilotage in the Torres Strait ................................ 339 Capt. Patrick J. Neher, JAGC, USN Transit Passage and Users’ Contributions to the Safety of the Straits of Malacca and Singapore .................................. 357 Hiroshi Terashima Comments and Q & A ............................................................. 369
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Panel V: Archipelagic Sea Lanes Passage Sir Michael Wood, Moderator Archipelagic Sea Lanes Passage Designation: The Indonesian Experience ...................................................... 385 Arif Havas Oegroseno Archipelagic Sea Lanes Passage and the Philippines Situation .................................................................................. 393 Alberto A. Encomienda Navigation Through Archipelagos: Current State Practice ..... 413 Martin Tsamenyi, Clive Schofield, & Ben Milligan Comments and Q & A ............................................................. 455 Panel VI: Vessel Source Pollution and Protection of the Marine Environment Chao Hick Tin, Moderator Vessel Source Pollution and Protection of the Marine Environment ................................................................ 467 Capt. Charles D. Michel, USCG Vessel Source Pollution and Protection of the Marine Environment in the Taiwan Strait ............................... 483 Kuen-Chen Fu IMO, ICS and Environmental Compliance ............................. 493 Peter Hinchliffe Comments and Q & A ............................................................. 503
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Panel VII: Non-Flag State Enforcement and Protection of the Marine Environment Gudmundur Eiriksson, Moderator Particularly Sensitive Sea Areas and the Law of the Sea ......511 Cmdr. James Kraska, JAGC, USN Protecting the Marine Environment: Non-Flag State Enforcement and IUU Fishing ................................................. 573 Rosemary Rayfuse Comments and Q & A ............................................................. 601 Editors’ Special Supplement Navies and Maritime Security: A Republic of Singapore Navy Perspective .................................................... 607 Submitted by Col. Dexter Chia, RSN Combating Piracy and Armed Robbery in Asia: Boosting ReCAAP’s Role .......................................................619 Lt. Col. Joshua Ho, RSN
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CD Table of Contents Note: Several presenters included slides, maps, or other visuals, most of them in PowerPoint presentations. Instead of incorporating all visuals in the printed text, the editors chose to include a CD that is found in the pocket inside the back cover of this book. The CD features the color Microsoft PowerPoint presentations given at the Conference, biographies of the moderators and panelists, and a limited selection of relevant law of the sea documents and reports. The editors hope that the readers will find it particularly helpful that the additional source materials on the CD include the 1982 UNCLOS treaty; the UN Fish Stocks Agreement; and a current list of Parties to the Convention and the Agreement. An especially important extra feature is a draft of the Cumulative Index to the multi-volume series United Nations Convention on the Law of the Sea 1982: A Commentary (1985-2002), provided courtesy of H.E. Satya N. Nandan. Also included are important maritime security research materials such as the SUA Convention (both original and amended versions), the US National Strategy for Maritime Security (and six of its supporting plans), IMO materials, and reports on the US Merchant Marine as well as the US Cooperative Strategy for 21stCentury Seapower. PowerPoint Presentations Bateman, Sam Beckman, Robert Chia, Dexter Fu, Kuen-Chen Gao, Zhiguo Hinchliffe, Peter Kraska, James Long, Ronán Michel, Charles Neher, Patrick Oegroseno, Arif Havas Pedrozo, Raul (Pete) x
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Rayfuse, Rosemary Roach, Ash Tersahima, Hiroshi Tsamenyi, Martin Tyson, Nora Xue, Guifang (Julia) Additional Materials and Documents Biographies of the Moderators and Speakers Cumulative Index to the multi-volume series United Nations Convention on the Law of the Sea 1982: A Commentary, Myron H. Nordquist, Editorin-Chief, (Martinus Nijhoff Publishers, 1985-2002) ITLOS 2003 Select Bibliography (PICT) Documents and Reports: (1) UNCLOS & Related Documents: Official text of the United Nations Convention on the Law of the Sea, signed at Montego Bay, Jamaica, on 10 December 1982, and the Agreement Relating to the Implementation of Part XI of the Convention, adopted by the UN General Assembly on 28 July 1994 [1982 Convention]; General Assembly Resolution 48/263 and Agreement relating to the implementation of Part XI; Final Act of the Third UN Conference; List of signatories; Resolution 2749 (XXV) on Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond Limits of National Jurisdiction (2) UNCLOS Statements: Bernardo Zuleta, Javier Pérez de Cuéllar, Tommy Koh, Satya Nandan, and Madeleine Albright (3) Fish Stocks Agreement: 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 xi
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Straddling Fish Stocks and Highly Migratory Fish Stocks. A/Conf. 164/37, 8 Sept. 1995 [The UN Fish Stocks Agreement]; Statement of the Chairman, Satya N. Nandan; and Final Act of the UN Conference on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (4) List of Parties to the Convention and the Related Agreements as of 16 July 2008 (5) 2007 US Senate report on UNCLOS (Exec. Rpt. 110-9) (6) Lifeline of the Nation: the US Merchant Marine in the 21st Century (7) Maritime Security Policy National Security Presidential Directive NSPD-41 (8) Resources on the International Maritime Security and ISPS Code (IMO) (9) Resources on Piracy and Armed Robbery at Sea (IMO) (10) US Navy Counter-Piracy Operations Incident form and checklist (Kraska) (11) SUA Convention, including both the 1988 original and SUA as amended by the 2005 Protocol, in addition to the Adopted Protocols, Diplomatic Conference Report, and the SUA Protocols Treaty Document 110-8 (12) US National Strategy for Maritime Security, including the International Outreach & Coordination Strategy; National Plan to Achieve Maritime Domain Awareness; the Maritime Infrastructure Recovery Plan; the Maritime Transportation System Security Recommendations; Domestic Outreach Plan; and the Maritime Commerce Security Plan (13) US Cooperative Strategy for 21st Century Seapower
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(14) Identification and Protection of Special Areas and Particularly Sensitive Sea Areas: List of PSSAs (IMO MEPC 57/7/1/Corr.1) (15) Designation of the Papahānaumokuākea Marine National Monument as a Particularly Sensitive Sea Area (IMO MEPC 56/8) (16) Designation of the Papahānaumokuākea Marine National Monument as a Particularly Sensitive Sea Area (IMO MEPC 56/INF.2) (17) Maritime Security Primer from the Multilateral Planners Conference VI (May 2008): Global Maritime Security Cooperation in an Age of Terrorism and Transnational Threats at Sea
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PREFACE The Thirty-Second Annual Conference sponsored by the Center for Oceans Law and Policy (COLP), University of Virginia School of Law was held in Singapore on January 9 and 10, 2008. The local host and primary co-sponsor with COLP was the S. Rajaratnam School of International Studies (RSIS), a graduate school of Nanyang Technological University in Singapore. Additional sponsorship was provided by the Law of the Sea Institute, Iceland, United States Naval War College and the Center for Oceans Policy and Law, Xiamen University, China. The title of the Conference, "Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention" was especially appropriate for a Singapore venue where the sea is its lifeline. The agenda for the Conference included two keynote addresses and seven panels on the general theme of international navigation and the 1982 Convention. The keynote address that kicked off the gathering was given by the Deputy Prime Minister of Singapore, S. Jayakumar, who is also the Coordinating Minister for National Security and Minister for Law. One point he made was that the 1982 Convention strikes a careful balance between the "navigational rights of vessels in the different parts of maritime space and the rights of coastal States to regulate and preserve the environment." The Minister also described the cooperation underway between Indonesia, Malaysia and Singapore with respect to the Straits of Malacca. His last major point focused on Singapore's experience in balancing economic development and protection of the marine environment. The second keynote invitee was Ambassador Hasjim Djalal, Member of the Indonesian Maritime Council, Senior Advisor to the Indonesian Minister for Maritime Affairs and Fisheries and the Indonesian Naval Chief of Staff. Dr.
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Djalal (who earned his PhD at the University of Virginia) has formally led the complex and politically sensitive ASEAN negotiations to foster peace and cooperation in the South China Sea. In his written address, he describes the "several decades of disputes and confrontation" in this strategic area of the world's oceans, where multiple claims are made to islands in the South China Sea, most notably in the Spratly group. Ambassador Djalal details the "workshop process" beginning in 1990 up to the Sixteenth session in late 2006. No one is better qualified than he to comment upon the preventive diplomacy and the principles employed in managing the potential conflicts in the South China Sea. This keynote paper is a significant contribution to scholarly literature on the law of the sea. The first Panel was moderated by Professor John Norton Moore and was directed towards background on freedom of navigation. The lead off speaker was Ambassador Tommy T.B. Koh who, among many other distinguished positions, served as the President of the Third UN Conference on the Law of the Sea. His remarks were on the fundamental issue of the legal status of the Exclusive Economic Zone (EEZ). He concluded that the EEZ is neither territorial sea nor high seas but is a sui generis zone in the world’s oceans. No State may subject the EEZ to its sovereignty and the residual rights and jurisdictions belong neither to the coastal State nor to the international community. Ambassador Koh then read a paper prepared by H.E. Satya N. Nandan, Secretary-General of the International Seabed Authority. Ambassador Nandan (who was unable to attend the Singapore Conference at the last minute) had co-chaired the key negotiations at the Third Conference on the regime of passage through straits used for international navigation and through archipelagic sea lanes. His comments on the actual accommodations made in the 1982 Convention text are as balanced as they are authoritative. Ambassador Djalal also participated as a panelist on Panel I xvi
Preface and proffered remarks on freedom of navigation. He explained that with all the modifications, the "old concept of freedom of navigation has now become obsolete." A different perspective was offered by Rear Admiral Nora W. Tyson, USN, who warned against tipping the balance between global mobility and coastal State sovereignty found in UNCLOS. The last panelist was Judge Rüdiger Wolfrum, President of the International Tribunal for the Law of the Sea, who spoke on new challenges to freedom of navigation. One of his insightful observations was that "multilateral actions are being supplemented by measures taken on the basis of bilateral agreements…." Panel II, moderated by Barbara Moore of the US State Department and NOAA, focused on "scientific research and hydrographic surveys in the EEZ". The first presentation was by Dr. Sam Bateman, a Senior Fellow and Adviser to the Maritime Security Program at RSIS. He spoke on hydrographic surveying in the EEZ and concluded that the coastal State ought to apply a consent regime. The second panelist was Dr. Ronan Long of the Marine Law and Ocean Policy Centre, National University of Ireland Galway. His purpose was "to identify the principal legal elements in the 1982 United Nations Law of the Sea Convention that are applicable to marine biodiscovery." Captain J. Ashley Roach (USN-ret.), Office of Legal Adviser, US Department of State, sought to bring some clarity to various aspects of marine data collection. His thesis was that "there is no single set of rules of law that governs the collection of information about the oceans. Rather, the applicable rules of law depend upon the means, methods, locations and purposes for the collection of that information." Professor Guifang (Julia) Xue, Director of the Institute for the Law of the Sea, Ocean University of China, then looked at closing the legal loopholes in marine scientific research and hydrographic surveys. She commented that the marine scientific research regime
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in the 1982 Convention is "largely undefined leading to conflicting positions regarding jurisdiction." The third panel on military activities in the EEZ was moderated by Professor Myron H. Nordquist of COLP. Captain Raul (Pete) Pedrozo the senior Staff Judge Advocate, US Pacific Command addressed excessive coastal State claims in the EEZ. He stressed that nothing in the 1982 Convention "changes the right of military forces of all nations to conduct military activities in the EEZ." Capt. Alexander S. Skaridov, Russian Navy (ret.) then suggested that the Incidents at Sea agreements negotiated by the former Soviet Union provided an instructive and successful model for dealing with military activities in the EEZs. The Executive Director of the China Institute for Marine Affairs (CIMA), Dr. Zhiguo Gao next reviewed the history of law of the sea development in China. He also provided a "panoramic overview of China's contemporary theory and practice on the law of the sea, as well as some of the major opportunities and challenges faced by the nation in the 21st ocean century." A substantively significant question and answer period followed Panel III. Panel IV under Moderator Mary Seet-Cheng of Singapore was on the subject of transit passage through straits used for international navigation. Professor Robert Beckman, Law Faculty, National University of Singapore, reviewed IMO's standard setting role in combating vessel source pollution. Despite the limited jurisdiction of littoral States over ships exercising transit passage, he believes that effective enforcement is possible by effective implementation of IMO conventions. Capt. Patrick J. Neher (USN) spoke on the compulsory pilotage requirement imposed by the domestic law of Australia in the Torres Strait. His clear opinion was that such a regime violates Article 42 of the 1982 Convention and subsequent enforcement through port State jurisdiction would be a violation of international law. The Executive Director of the Ocean xviii
Preface Policy Research Foundation, Hiroshi Terashima, discussed transit passage and user's contribution to the safety of the Straits of Malacca and Singapore. He explained in particular "the new mechanism of cooperation between the stakeholders in the Straits of Malacca and Singapore, including the coastal and user States, the shipping industries and others…." Thereafter a lively exchange of views followed especially between defenders of Australia's actions in the Torres Strait and both military and commercial critics of the compulsory pilotage policy. Sir Michael Wood moderated Panel V on archipelagic sea lanes passage. Indonesia's Director for International Treaties on Political, Security and Territorial Affairs, Department of Foreign Affairs, Arif Havas Oegroseno, outlined his country's experience in designating its three archipelagic sea lanes. He suggested how other archipelagic States might learn from Indonesia's process and offered comments on the latest developments in this regard. The second panelist was Ambassador Alberto A. Encomienda, Secretary-General, Maritime and Ocean Affairs Center, Department of Foreign Affairs, the Philippines. He explained new policy thinking in his government using internationally established protection measures for the marine environment of the Philippines while guaranteeing and facilitating freedom of navigation in lieu of designating archipelagic sea lanes. Professor Martin Tsamenyi on behalf of two colleagues, Clive Schofield and Ben Milligan at the University of Wollongong, NSW, Australia spoke on current State practice concerning navigation through archipelagos. Their contribution "provides an overview and analysis of the special rules applicable to archipelagos" and examines how the special regime in the 1982 Convention "has been implemented by States claiming archipelagic State status." Their comprehensive review "identifies, in the context of international and municipal law, how varied implementations of the Part IV regime affect the existence of navigational rights through waters of such States." xix
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Panel VI dealt with "Vessel Source Pollution and Protection of the Marine Environment" with the Attorney General of Singapore, Chao Hick Tin, as Moderator. Chao is one of the original gifted negotiators whose huge influence at the Third Conference was in inverse proportion to the size of the small Singapore delegation. The first panelist was Capt. Charles D. Michel who heads the Office of Maritime and International Law at US Coast Guard Headquarters. His emphasis was on enforcement tools such as port State control and penalties for failure to comply with legal obligations to dispose of shipboard wastes. Vessel source pollution in the Taiwan Strait was the topic chosen by Professor KuenChen Fu who directs the Xiamen University Center for Oceans Policy and Law. He pointed out a pressing need for better management of the marine environment in the strategic strait and urged both Mainland China and Chinese Taipei to cooperate for a more effective scheme of law enforcement against vessel source pollution. Peter Hinchliffe of the International Chamber of Shipping then introduced the role of his organization and its interface with the IMO on environmental compliance. He then commented upon current issues before the IMO and impediments to ratification and compliance with IMO conventions. The last session at the Singapore Conference was devoted to the topic of non-flag state enforcement and protection of the marine environment. Ambassador Gudmundur Eiriksson, a former judge of the International Tribunal for the Law of the Sea and a key negotiator at the Third Conference served as moderator. The first speaker on Panel VII was CDR. James Kraska (USN) who provided a comprehensive paper on particularly sensitive sea areas (PSSAs) and the law of the sea. The author substantiated the trend toward demarcating PSSAs extending into EEZs and the proliferation of "associated protective measures" within the cognizance of the IMO. He expressed concern over the potential for PSSAs to impair freedom of navigation and overflight for foreign flagged vessels xx
Preface and aircraft and argued for careful and deliberate scrutiny to maintain the balance in the 1982 Convention. The final speaker at the Conference was Professor Rosemary Rayfuse, Faculty of Law, University of New South Wales, who addressed the problem of illegal, unregulated and unreported (IUU) fishing and ineffective flag State jurisdiction. She identified a range of actions that might be taken by non-flag states in situations where flag States fail to enforce compliance due to IUU fishing. After the Singapore Conference concluded, two directly relevant papers came to light which the Editors decided to include in a special supplement. One submitted by Col. Dexter Chia on behalf of the Singapore Navy provides a Republic of Singapore Navy perspective on navies and maritime security. The other, by Lt. Col. Joshua Ho, describes the Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against ships in Asia (ReCAAP) and the establishment of ReCAAP’s Information Sharing Centre in Singapore.
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ACKNOWLEDGEMENTS The possibility of a joint conference was initially discussed between Myron H. Nordquist, Center for Oceans Law and Policy, University of Virginia School of Law and Robert Beckman, Faculty of Law, National University of Singapore. Singapore was an ideal venue for a law of the sea meeting in 2008 given the vital importance of the Straits of Malacca to the country of Singapore and the long standing, close personal relationships between the Center's Director Ambassador John Norton Moore on the one hand and Deputy Prime Minister S. Jayakumar and Ambassador Tommy Koh on the other. Agreement was readily reached on holding the Virginia Center's 32nd Annual Conference in Singapore focused on freedom of the seas, passage rights and the 1982 UN Convention on the Law of the Sea. A series of draft program agendas were exchanged with Ambassador Barry Desker, Professor Beckman and key experts in Singapore, including Lt. Col. Joshua Ho. Many constructive ideas were offered to the Virginia side by Captain Pete Pedrozo (USN) and his colleagues at the United States Naval War College. In addition, suggestions for topics and speakers were solicited from Tomas Heidar in Iceland and Cmdr. James Kraska (USN). A collegial effort was also made by the primary co-hosts in Singapore and it would be impossible to trace the source of all the various suggestions that led to the final program. The S. Rajaratnam School of International Studies under the leadership of Dean Desker was the official academic host in Singapore while its counterpart at the Center for Oceans Law and Policy was led by Director Moore. Professor Nordquist and Executive Administrator Donna D. Ganoe performed the bulk of the preparatory work for the Virginia Center working closely with Joshua Ho and Daisy Yeo in Singapore. Additional assistance in Singapore was provided by Jane Chan, Eugene Tan, Ben Ng, Tng Eng Cheong and others. Special mention must be made of the warm hospitality to the participants given by Attorney General and Mrs. Chao Hick Tin. The editors owe all a sincere thank you for their help in hosting a most successful Conference in the beautiful seaport of Singapore. In Charlottesville, Kay W. Wood and Kathy Wood provided invaluable administrative support while Judith A. Ellis coordinated communications with the authors, collected materials and their revisions, proofread, and put the manuscript in final form after editing for the publisher. Becky Gildersleeve also contributed typing and editing support. James Forbes and Kristin Poole, law students at the University of Virginia School of Law proofread and, in particular, prepared the question and answer transcriptions for editing.
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WELCOMING REMARKS
Opening Remarks Ambassador Barry Desker1 My warm greetings to Professor S. Jayakumar, Deputy Prime Minister, Coordinating Minister for National Security and Minister for Law (Singapore), Attorney General Chao Hick Tin, and Professor John Norton Moore. Welcome to the Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention Conference, jointly organized by the Center of Oceans Law and Policy, University of Virginia School of Law, and the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University, Singapore. Until quite recently in maritime history, seafarers did not have to worry much about the law of the sea. If their vessels were more than three miles offshore, they were largely free to go wherever they pleased and do whatever they liked. They did not have to be concerned about laws that the coastal State might have in force about marine pollution. Even in port, raw sewage could normally be discharged directly into the harbour. If the mariner was also a naval officer, his ship could generally conduct naval operations or exercises, almost indiscriminately, secure in the knowledge that he was simply exercising one of the freedoms of the high seas. Contemporary mariners now face a strict regulatory environment with laws and regulations emanating from a range of international and regional agreements, as well as national legislation from their flag States. In many areas of the sea, they dictate the shipping lanes mariners must use and when they are obliged to report the position of their ship. Naval officers must also consider the type of passage they are exercising, and what their ship can and cannot do. 1
Dean, S. Rajaratnam School of International Studies, Nanyang Technological University.
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However, issues of application and compliance with these laws and regulations often speak of a different story. Non-compliance will most definitely draw comments and criticisms, though often for different reasons. Some would see it as blatant violation of the law, and others would argue that the laws are no longer practical and that such criticisms are politically charged. The obligation in UNCLOS to preserve and protect the marine environment is now given much greater weight than it was hitherto. Over the course of the conference, these key issues and challenges will be highlighted in terms of the definition, application, compliance and enforcement of UNCLOS when dealing with passage regimes, activities in Exclusive Economic Zones and protection of the marine environment. We shall discuss historical perspectives on the relevant UNCLOS provisions. Separate panels will deal with different passage regimes in the region, focusing on transit passage through straits used for international navigation, and the regime of archipelagic sea lanes passage. This conference will also seek to address the rights and jurisdiction of both user states and coastal States to conduct and regulate activities in the Exclusive Economic Zones. Such activities include marine scientific research, hydrographic surveys and military activities. There is a need to deal with the problem of environmental degradation caused mainly by marine pollution if we are to continue utilising the vast resources of the sea. This conference will examine the jurisdiction of states to protect the marine environment and review different preventive measures which could be implemented. I am glad that a conference of this nature is being held in Southeast Asia. It provides an opportunity for the ASEAN region to showcase our efforts to enhance maritime safety and security. One example is the launching of a collaborative framework to enhance navigational safety and environmental protection amongst the littoral States of the Malacca and Singapore Straits during the IMO Meeting in Singapore September last year. It is the first concrete implementation of Article 43 of UNCLOS.
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Welcome Remarks Recent progress with cooperative management in the South China Sea provides a useful precedent, as well as lessons learned, for the establishment of effective cooperation in other parts of East Asia, which are also subject to disputed maritime claims. While the conflicting claims in the South China Sea are the most well known of the maritime jurisdictional problems in East Asia, it is striking that it is also a case study of progress which has been made in establishing effective functional cooperation. It is particularly significant that this meeting is being held in Singapore in view of the importance of the Straits of Malacca and Singapore to international shipping. Two examples suffice to make this point. First, oil flows through the Straits are three times greater than the Suez Canal/Sumed pipeline and fifteen times greater than oil flows through the Panama Canal. Secondly, two-thirds of the tonnage passing through the Straits consists of crude oil from the Persian Gulf bound for Japan, South Korea and, increasingly, China. More than half of the world’s shipping tonnage passes through the Straits. The IMO estimates that if for some reason the Straits were closed, all excess shipping capacity would be absorbed, “with the effects being strongest for crude oil shipments and dry bulk cargoes such as coal….. [which] could be expected to immediately raise freight rates worldwide.”2 Contemporary security concerns now dictate that cooperation should also extend to the maintenance of law and order at sea. This is necessary to prevent piracy, acts of maritime terrorism, and illegal trafficking of arms, drugs or people. It also extends to the provision of the navigational aids, hydrographic surveys, measures to preserve and protect the marine environment, and search and rescue (SAR) arrangements necessary for the safe and secure passage of shipping. I look forward to learning about issues which should be the focus of attention at the UNCLOS review conference. I am confident that this conference will contribute to the literature on the law of the sea and the 2
‘Protection of vital shipping lanes’, C 93/5 – Note by the Secretary-General, International Maritime Organisation, 7 October 2004.
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Ambassador Barry Desker
evolution of maritime security policy. We would like to welcome you to Singapore and hope that your deliberations will also result in an expanded Asian contribution to the network of scholars and analysts engaged in these studies. In closing, I would like to recognize the leadership of Professor Tommy Koh, Ambassador-at-Large within the community of scholars and analysts in Singapore engaged in the study of maritime issues. He played a major role in the convening of this conference in Singapore and has continued to pay close attention to issues related to the freedom of the seas, passage rights and the Law of the Sea Convention.
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Welcome Remarks John Norton Moore1 Professor Jayakumar, Ambassador Desker, Ambassador Herbold, Professor Koh, Attorney General Chao Tin, Excellencies and distinguished guests and participants, on behalf of the Center for Oceans Law and Policy of the University of Virginia, it is an honor and a pleasure to join Ambassador Desker in welcoming you to the 32nd Annual Conference of the Center. This Conference, focused on navigational and other freedoms of the seas under the 1982 United Nations Convention on the Law of the Sea, is in many respects a tribute to the Convention itself. The 1982 Convention, now in force for 154 nations and the European Union, is a milestone in development of the international rule of law.2 Indeed, the Convention, which entered into force in 1994, is one of the most important law-building conventions in history. It surely ranks in this respect with the Vienna Convention on the Law of Treaties, the 1949 Geneva Conventions on Protection of Non-Combatants, the Universal Declaration of Human Rights and its treaty progeny, the Statute of the International Court of Justice, and in some respects, even the United Nations Charter. The Convention has rightly been called, with only a little hyperbole, a Constitution for the World’s Oceans. Developed over a quarter century of negotiations with the participation of almost every nation on earth, it is a triumph of international cooperation. Nations large and small, coastal and landlocked, broad margin and narrow margin, understood that the common 1
Director, Center for Oceans Law and Policy, and Walter L. Brown Professor of Law, University of Virginia. 2 Update: at the time of publication there are currently 156 signatories as the Congo acceded to the 1982 Convention and the 1994 Agreement on Implementation on July 9th, 2008.
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interest of all would be served by establishment of the rule of law in the world’s oceans. Building on an early effort under the League of Nations in the 1930s, two previous UN Conferences in 1958 and 1960, and on extensive state practice, UNCLOS III produced a remarkable agreement on navigational rights, fisheries, the continental shelf, marine scientific research, the marine environment, archipelagic island nations, a regime for deep seabed mineral resources, and much more. In doing so it transcended the old thinking of a single controlling line in the ocean between coastal State interests and community interests focused on the territorial sea and it adopted a modern functional division of jurisdictions and responsibilities. It was, and is, a triumph of the rule of law for effective oceans management and stewardship. Today, the rule of law, as a core purpose of the Convention, is a broadly supported concept. National leaders understand that the rule of law serves to provide the stable expectations so necessary for economic development. They understand that it serves to protect community common interest against special interests and in this respect that it is a crucial check on arbitrary power. And they understand that the rule of law serves, through known and agreed rules, to lessen international tensions and conflict. But even this broad understanding may fail to capture the staggering real world importance of the rule of law and the Convention we honor. Let me share with you recently completed analogous research undertaken by the World Bank as to the importance of the rule of law for achievement of an important internationally shared goal. The World Bank last year completed a study of the relative importance of factors in economic development. In that study, building on a half-century of Nobel winning economic analysis, World Bank economists examined the relative importance of all principal factors in development, including natural resources, that is natural capital; machinery and equipment, that is produced capital; and education and human capital. But when the relative 8
Welcome Remarks
contributions were added up a high segment of human wealth, like dark matter in the universe, went unexplained. The answer to this missing segment, the World Bank economists found, were the rules and institutions we collectively refer to as the rule of law. This “rule of law” factor astoundingly contributed approximately 44% of total development. Its importance for development far outshone every other factor, including natural resources at only 5 %, produced capital at only 18%, and even education and human capital at somewhat over 33%. So the 1982 Convention is not just about fisheries, or oil and gas, or seabed minerals, or even crucial navigational freedoms. Its central contribution to mankind’s future is likely its contribution to the rule of law in the oceans. As we consider and apply the Convention, it would be wise to understand, respect, and protect the role of the Convention in providing a stable legal regime. Ladies and gentlemen, no introduction to this Conference would be complete without both thanking our wonderful Singapore hosts, and in a larger sense, thanking Singapore for its outsized contributions to the leadership which provided the 1982 Convention. In this respect Ambassador Tommy Koh, as President of the LOS Conference, and Professor Jayakumar and Attorney General Chao Tin, as participants in the Singapore delegation, made an indispensible contribution to the success of this Conference. It is clear that there is something in the Singapore air and culture with produces extraordinary leadership. On behalf of all of us, thank you Singapore for producing these magnificent leaders.
9
Welcome Remarks Ambassador Patricia L. Herbold 1 F
Deputy Prime Minister Jayakumar, Excellencies, distinguished guests, ladies and gentlemen—good morning. I’m so pleased to have been invited to make a few opening remarks at this important and timely conference. First, let me offer my special thanks to the co-hosts of the conference: Singapore’s Ministry of Foreign Affairs and the University of Virginia’s Center for Oceans Law and Policy. Thanks also to Myron Nordquist, the Associate Director at the Center, who invited me to participate when a mutual friend of ours told Myron that I was hanging out in Singapore these days. The subject of this conference is “Freedom of the Seas, Passage Rights and the 1982 Law of the Sea Convention” and these are issues that are very important to the United States. As both a Pacific and an Atlantic nation, the United States has basic and enduring national interests in the oceans. We believe that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. The consistent cornerstone of US oceans policy of each US Administration since the 1960s has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Many of you may recall President Ronald Reagan’s words in 1983: The United States has long been a leader in developing customary and conventional law of the sea. Our objectives have been consistently to provide a legal order that will, among other things, facilitate peace, international uses of the oceans, and provide for the equitable and effective 1
US Ambassador to Singapore.
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Ambassador Patricia L. Herbold
management and conservation of marine resources. The United States also recognizes that all nations have an interest in these issues. As you all know, the United States did not sign the 1982 United Nations Convention on the Law of the Sea because, in President Reagan’s words: Several major problems in the Convention’s deep seabed mining provisions are contrary to the interests and principles of industrialized nations and would not help attain the aspirations of developing countries. However, President Reagan also said that his administration would support ratification of a convention if it met six basic objectives, and in 1994 those objectives were achieved. The Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, with Annex—adopted on July 28, 1994—fundamentally changed the deep seabed mining regime of the Convention in ways that met the objections to Part XI previously expressed by the United States and other industrialized nations. Following the entry into force of the Convention in 1994, and of the Implementing Agreement in 1996, an internationally recognized regime for mining of the deep seabed has evolved to respond to future demand for minerals. The Convention and Implementing Agreement were submitted to the US Senate for its advice and consent in 1994. In 2004, the Senate Foreign Relations Committee favorably reported them. The Senate did not act on that recommendation during the 108th and 109th sessions of Congress but, pursuant to President Bush’s request last May, the Senate Foreign Relations Committee held hearings during this past September and October. On October 31, 2007 the Committee again voted to recommend that the Senate give its advice and consent. 12
Welcome Remarks
Just three weeks ago, on December 19th, the Committee’s Executive Report on the Convention and Implementing Agreement was filed with the Senate, and they are on the Senate’s Executive Calendar for the second session of this 110th Congress. We look forward to the full Senate voting on these treaties in the next few months. Turning to another theme of this conference, the United States has long been a leader in the protection of navigational rights and freedoms. The United States has consistently promoted and facilitated peaceful international uses of the oceans. The United States recognizes that all nations have an interest in—and responsibility for—protecting those rights and freedoms. In 1983, President Reagan stated that the Convention “contains provisions with respect to the traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states.” Since then, the United States has accepted and acted in accordance with the balance of interests reflected in the Convention relating to traditional uses of the oceans—such as exercising and asserting navigation and overflight rights—and has recognized the rights of other states in the waters off their coasts. Also, for the past quarter century, the United States has not acquiesced in unilateral acts of other states that are inconsistent with the Convention and that seek to restrict the rights and freedoms of the international community in navigation and overflight and other related high seas uses. This conference provides a timely opportunity to review and assess the balance of interests reflected in the Convention. I see from the program that the distinguished speakers who are participating in this conference will be addressing these issues. I wish all of you a productive conference. For those of you who don’t live in Singapore, I hope you’ll occasionally have a break from these important discussions so you have an opportunity to experience the 13
Ambassador Patricia L. Herbold
beauty, warmth and vitality of Singapore and its people. This is a remarkable country with lots to offer visitors. I’m very happy to welcome you to Singapore and am sure you’ll enjoy your stay here. Thank you very much.
14
KEYNOTE ADDRESSES
KEYNOTE ADDRESS S. Jayakumar1 Excellencies, distinguished guests, ladies and gentlemen. I am very pleased to join you this morning for the 32nd Oceans Conference on “Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention” jointly organised by the S. Rajaratnam School of International Studies and the University of Virginia School of Law’s Center for Ocean Law and Policy. I have very fond memories of doing my sabbatical at the Center in Charlottesville, Virginia, of course many years ago before entering politics. A few years ago in 2005, I gave the keynote address in this series of conferences in Xiamen, China, and I am glad to be still associated with this important series of conferences organised by my good friends and colleagues in the “law of the sea community” namely Professors John Norton Moore and Myron Nordquist. I also welcome other long time friends, as well as newcomers, to Singapore. A quarter century has passed since the United Nations Convention on the Law of the Sea (UNCLOS) was adopted as a groundbreaking treaty. It was hailed as a "constitution for the oceans" and as its preamble stated, it was intended to establish a legal order for the seas and oceans which will facilitate international communication, promote the peaceful uses of the oceans, the equitable and efficient utilisation of their resources, the conservation of their living resources, and the study, protection and preservation of the marine environment. 1
Deputy Prime Minister, Coordinating Minister for National Security and Minister for Law, Singapore
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S. Jayakumar
UNCLOS was also notable, in my view, for establishing a compulsory dispute settlement system for States to resolve their disputes in a peaceful manner. UNCLOS, which introduced the innovative regimes of transit passage for straits used for international navigation and the Exclusive Economic Zones (EEZs), has played a crucial role by providing a stable legal framework for navigational rights, while respecting the rights of States to exercise lawful jurisdiction over their territorial waters and exploit the resources in their economic zones. Today, UNCLOS has gained almost universal acceptance with 156 Parties and we are hoping that the United States will be the 157th State Party. Navigational Freedom, World Trade and Energy Security The world has seen enormous changes in the 25 years since UNCLOS was adopted. The Cold War came to an end. The global economy has witnessed a sustained period of growth and prosperity aided by the IT revolution, trade liberalisation and globalisation. Here in Asia, we have seen unprecedented growth in the last several decades. The rise of China and India has added new momentum to the Asian growth story. The navigational freedoms and passage rights which are guaranteed by UNCLOS have, in my view, underpinned this unprecedented period of global economic growth and prosperity brought about by globalisation and international division of labour. In order for a company to optimise its production processes by locating different parts of its supply chain in various parts of the world, it goes without saying that it must be able to ship its components rapidly, smoothly and safely between many countries. The navigational rights are therefore indispensable not only to shipping and maritime nations, but to all nations engaged in international trade and manufacturing. This is because international shipping is responsible for moving 90% of world trade and annually
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Keynote Address
transports over 7 billion tonnes of cargo over a distance of some 4 million miles. Today, navigational freedom is also vital to the energy security of States given that much of the world's energy resources are transported around the globe by sea. For example, two-thirds of the world's liquefied natural gas (LNG) which are traded and half of the world's oil shipments pass through the Straits of Malacca and Singapore. As the key maritime route linking East Asia to South Asia, Europe, the Middle East, Africa and the Americas, the volume of traffic through the Straits of Malacca and Singapore is likely to keep growing as a result of these increasing trade flows and energy demands in Asia and the rest of the world. As such, it becomes critical that the freedom, safety and security of navigation through these Straits and other regional sea lanes continue to be preserved and protected. Linked to energy security concerns is the continuing threat of terrorism. Post-9/11, the spectre of maritime terrorism has been a major concern. Nightmare scenarios include the hijacking of an oil or LNG tanker to attack key ports thereby leading to the disruption of global commerce. The reality of the threat was demonstrated by the attack on a French oil tanker off the coast of Yemen in 2002, in which a small boat rigged with explosives rammed into the tanker. Another instance of maritime terror occurred in February 2004, when terrorists from the Abu Sayyaf Group detonated a bomb planted on board the M/V SuperFerry shortly after it had left Manila Harbour. The subsequent fire sank the ferry and resulted in the loss of some 116 lives. In the face of these real risks, we must therefore continue to exercise vigilance and strengthen cooperation to prevent and combat such new maritime security threats and concerns.
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Climate Change, the Marine Environment, and Lessons in Cooperation Another major global concern relates to reports about the melting of the Polar ice-caps and extreme weather phenomena such as floods, heat waves and tropical storms in different parts of the world. Although the scientific community may be divided in its opinion on the exact causes of climate change, such erratic and unprecedented changes in weather patterns and conditions suggest that global warming has the potential to become one of the world’s most serious threats to humanity. Scientists tell us that rising sea levels could wipe entire countries off the map. The melting of the ice caps also may open up new routes for commercial navigation but there are already indications that this is starting to lead to a race among States for the previously inaccessible natural and mineral resources in the Arctic and Antarctic, which is reminiscent of the scramble for resources in the deep seabed beyond national limits, which as you all recalled led to the convening of UNCLOS. Those of us involved in the early negotiations of UNCLOS would recall that concerns about the environment were already very much on our minds, even at that time. As such, UNCLOS is the only international legal framework in place that has provisions for the protection of the marine environment alongside provisions for the sovereign rights of States to exploit their marine resources and the rights of States to use the high seas for trade and transportation. For example, as stated in Article 193, "States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment". Indeed, the range of environmental issues covered in UNCLOS has led some to declare that UNCLOS "probably contains the most comprehensive and progressive international environmental law of any modern international agreement". 20
Keynote Address
But in so doing, the Convention struck a careful balance between the navigational rights of vessels in the different parts of maritime space and the rights of coastal States to regulate and preserve the environment. For example, States bordering a strait used for international navigation may only adopt certain categories of laws and regulations relating to transit passage through such straits as specifically laid down in Article 42. A similar need to strike an appropriate balance between environmental and economic interests is also present in the forthcoming Climate Change negotiations, in relation to efforts to reduce greenhouse gas (GHG) emissions. It has been pointed out that bunker fuels used by ships contribute significantly to global GHG emissions. As a result, many port cities in the world have recently enacted laws which require ships to use less polluting fuels when they approach the ports. Bearing in mind that ships carry more than 90% of the world's merchandise, a balance should be found in GHG emission reduction by ships, the need to maintain freedom of navigation and growth of world trade and economic development. A holistic approach is also necessary in addressing the problems of marine pollution. According to the UN Environment Programme (UNEP), about 80% of the pollution load in the oceans originates from land-based sources and activities such as municipal, industrial and agricultural wastes and run-off as well as atmospheric deposition. Estimates show that almost 50% of the world's coasts are threatened by development-related activities. With one billion of the world's population living in coastal urban areas, the potential socio-economic disruption could reach catastrophic levels if the intense pressures being placed on coastal systems are not alleviated. It is therefore not sufficient to look only at ship-based sources of pollution, but also important to address landbased sources of pollution as well.
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S. Jayakumar
Let me now share with you how the three littoral States of the Straits of Malacca and Singapore have cooperated in accordance with the spirit of UNCLOS. Since the 1970s, Indonesia, Malaysia and Singapore have been cooperating on improving navigational safety and control of oil spills in the Straits of Malacca and Singapore through what is known as the Tripartite Technical Experts Group and the Tripartite Revolving Fund Mechanism respectively. More recently, the three littoral States have worked closely with all the users of the Straits to establish the Cooperative Mechanism for navigational safety and environmental protection in accordance with Article 43 of UNCLOS. This was done through a series of IMO meetings on the Straits, under IMO Secretary-General Mr. Mitropoulos’ "Protection of Vital Shipping Lanes" initiative. That led to the formal launch of the Cooperative Mechanism at the Singapore-IMO meeting last year. The Cooperative Mechanism is a landmark development in charting a new framework of international cooperation in the Straits. It provides a transparent and inclusive platform for dialogue and cooperation among the three littoral States and all interested stakeholders on the safety of navigation and environmental protection in the Straits. For example, through the Cooperation Forum, littoral States can articulate their needs and interests, while the user States and other stakeholders can consider areas where they can, on a voluntary basis, give support, provide capacity building and functional cooperation. I am happy to note that the Cooperative Mechanism has got off to an excellent start with strong support from the international maritime community. Australia, China, Greece, Japan, South Korea, the United Arab Emirates, the United States, the Nippon Foundation and INTERTANKO have all pledged to make concrete contributions. We look forward to other major maritime stakeholders, such as countries in Europe and the Middle East, joining in this important undertaking. 22
Keynote Address
Balancing Economic Development and Protection of Marine Environment - The Singapore Experience Singapore's own experience shows that it is possible to maintain our marine biodiversity while at the same time becoming the world's busiest trans-shipment port. Let me briefly elaborate. Singapore’s waters harbour some 250 species of hard corals, or about 32% of the world's 800 species. Of the 106 coral genera existing worldwide, 55 genera have been documented in Singapore waters. There are likely to be more coral species and genera per hectare of reef in Singapore waters than there are in the Great Barrier Reef. In July of last year, we initiated a Coral Nursery programme. Its objective is to enhance our coral reefs using fragments of corals that have been naturally broken off from their parent colonies. We have achieved this by strictly controlling both land and seabased sources of marine pollution. One of our key instruments for protecting our marine environment is the rigorous system of Environmental Monitoring and Management Plans (EMMP) for marine developmental works. The EMMP essentially allows these activities to be carried out in close proximity to sensitive marine habitats while ensuring adherence to a stringent set of environmental quality objectives. These techniques have also been successfully adopted for the environmental management of other dredging and reclamation projects in the region, including projects in Bintulu and Kota Kinabalu in Malaysia and Bali Turtle Island in Indonesia. Singapore’s experience, and indeed, the experience of our region, and other success stories like Xiamen’s successful Integrated Coastal Management project, all show that protecting the marine environment, maintaining navigational freedoms as well as pursuing economic development are not mutually exclusive. Each of these activities need not be pursued at the expense of the other as long as a careful balance is
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S. Jayakumar
struck as has been done in the comprehensive framework which UNCLOS represents. I hope that over the next two days of this conference more ideas can be exchanged and concrete proposals identified on how we can maintain and promote this important balance. Conclusion To conclude, let me say that UNCLOS has served the international community well over these years and I am sure that it will continue to do so in the future. Those of us who spent many years of our lives negotiating UNCLOS and working in different interest groups understand that UNCLOS could only be concluded as a comprehensive package that balanced the competing interests of so many diverse States. Today, these competing interests or challenges include trade liberalisation, promoting international shipping flows, protecting vital maritime installations and securing safety of passage as well as protecting the marine environment. All these competing interests are not necessarily at odds, nor should they be viewed as a zero sum game as demonstrated by the examples that I have just mentioned. Clearly those earlier negotiations involved many delicate compromises of competing interests. We will need to maintain that careful balance. Together with a new generation of scholars and practitioners who are present here this morning, I believe that we can continue to protect UNCLOS’ integrity in ensuring that States are faithful in their interpretation and application of the Convention. That in my view will help preserve UNCLOS' position as the key instrument for international cooperation in safety, security and environmental protection of the international oceans and seas.
24
The South China Sea: The Long Road Towards Peace and Cooperation Hasjim Djalal1 BACKGROUND The long road towards peace and cooperation in the South China Sea (SCS) started back in the late 1980s. This was after several decades of disputes and confrontation that began soon after the end of the Second World War when countries around the SCS first started making claims to sovereignty over features within the sea. In the late 1980s and before the conclusion of the Cambodian war through the Peace Agreement in Paris in 1991, I recognized that prospects for peace and cooperation may finally have come to Southeast Asia, although there was still potential for worrying developments and conflicts in the SCS. The countries around the SCS have a long history of confrontation and very little experience with cooperation. Armed clashes between China and Vietnam have occurred primarily since 1974 with the latest in 1988. Multiple territorial claims to islands existed, as well as claims to national maritime zones of jurisdiction, particularly in and around the Spratly islands group. The island disputes were bilateral, trilateral or even in some instances, multilateral. The rapid economic development of the countries around the SCS, particularly China, led to a scramble for the natural resources of the SCS, both living and non-living. Strategic issues were also at stake. The strategic significance of the SCS to non-littoral countries could not be ignored. The sea-lines of communications through the area are significant both for the region and 1
Member of Indonesian Maritime Council, Senior Advisor to the Indonesian Minister for Maritime Affairs and Fisheries and Indonesian Naval Chief of Staff.
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Hasjim Djalal
for world trade and the global economy. Consideration needed also to be given to increasing problems of pollution and the safety of navigation as well as to the protection of the marine environment and fragile marine ecosystems. Then there were political factors that inhibited the process of cooperation. The SCS is surrounded by countries that are vastly different from one another, in land size, population, per capita income, employment in fisheries, fish catch and consumption of fish per capita. Political systems also markedly varied from the communist/socialist countries of the northern littoral, namely China and Vietnam, to the non-communist southern and eastern insular countries (Malaysia, Singapore, Indonesia, the Philippines, and Brunei Darussalam). There was also the complicating factor of Taiwan/Chinese Taipei as a claimant. An important geographical fact is that the insular countries control maritime approaches to and from the coasts of the mainland SCS countries. THE INTERESTS OF MAJOR POWERS The SCS is one of the most strategic waterways in the world. The approaches to the SCS, especially the Straits of Malacca-Singapore, Sunda-Karimata, Balabac, Mindoro, Bashi and Taiwan Straits are located in non-communist countries. These approaches are important for the passage of military and commercial vessels, including and especially oil tankers. The Soviet Union placed great importance on the right of "transit passage" through the Malacca and Singapore Straits, as well as through the surrounding waters in the SCS area, primarily because these passages were important for communication between western and eastern Russia through the warm waters of the South Seas. For Japan, the SCS and its approaches, especially the Straits of Malacca and Singapore, are extremely important since more than 80 percent of its oil imports are transported through these 26
The South China Sea
waterways. These waterways are also extremely important for Japanese trade with Southeast Asia, South Asia, Africa, the Middle East and Europe. Japanese interest in the preservation of peace and cooperation in the SCS may increase as the result of its new orientation and increasingly intensive economic, trade and investment relations with ASEAN, South Asian and Middle-Eastern counties. The United States has always been interested in the area because it offers the shortest route from the Pacific to the Indian Ocean, and because it is essential for the movement of United States fleets, both for its own global strategy or for defending its allies in the region. The United States also has large trade, economic and investment relations with the countries around the SCS. In May 1995, the US Department of State announced the US policies on the South China Sea which basically were as follows: a. The United States urges peaceful settlement of the issue by the states involved in a manner that enhances regional peace, prosperity and security; b. The United States strongly opposes the threat or use of military force to assert any nation's claim in the South China Sea, and would view any such use as a serious matter; c. The United States takes no position on the legal merits of competing sovereignty claim and is willing to help in the peaceful resolution of the competing claim if requested by the parties; d. The United States has a strategic interest in maintaining maritime lines of communication in the region and considers it essential to resist any maritime claim beyond those permitted by UNCLOS; and e. The United States strongly supports multilateral security dialogue and, in particular, Indonesia's on-going effort to develop a peaceful solution to the South China Sea disputes, and urges all 27
Hasjim Djalal
involved to work diligently within the framework provided by Indonesia.2 CONFLICTING
TERRITORIAL
AND
JURISDICTIONAL
CLAIMS Both China and Vietnam claim territorial sovereignty over the Paracel group of islands situated south-east of Hainan. It was occupied by the former regime of South Vietnam until China took it by force in 1974. Vietnam still maintains a claim over islands in spite of its occupation by China. Both China and Vietnam rely on historical records to support their respective territorial claims to the Paracels. Except for its possible impact on the situation in the SCS as a whole, the Paracels are generally regarded as a bilateral matter between China and Vietnam. The Spratly islands are the main source of territorial dispute. Some of the islands, rocks, and reefs in the group are presently occupied by Vietnam (22), the Philippines (11), China (14), Malaysia (10), and Taiwan (1). Brunei Darussalam claims certain portions of the nearby sea as its EEZ or continental shelf but does not occupy any feature. China claims the South China Sea islands for historical reasons. It has also based its claim on a map produced in 1947 by the Republic of China, indicating nine undefined, discontinued and dashed lines. This claim was renewed in 1958 in which China proclaimed a 12 nautical miles territorial sea and declared that "no foreign vessels for military use and no foreign aircraft may enter China's territorial sea and the airspace above it 2
These policies were mentioned in the House of Representatives Resolution No. 114 of the 104 Congress, First Session, submitted by Congressman Gilman of the Foreign Affairs Committee, and in the Statement of the US Department of State on the Spratlys and the South China Sea on May 10, 1995.
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The South China Sea
without the permission of the government of the PRC"3. China claims all the features encompassed by those nine undefined and dashed lines, although it began to occupy some of them only recently. There was no definition of those dashed lines, nor were their coordinates stated. Therefore the legality and the precise locations indicated by these lines are not clear. It was presumed, however, that China’s claim, at least initially, was limited to the islands, the rocks, and perhaps the reefs, but not the whole sea enclosed by those nine undefined-dashed lines. Some recent Chinese writers seem to imply that China also claims the "adjacent sea" of the islands and rocks but again, the concept of "adjacent sea" has not been clearly defined. Taiwan's claim in the South China Sea was basically similar to that of China. The Chinese claim was originally described in the Taiwanese/KMT map of 1947. Therefore, the positions of the participants from China and Taiwan in the SCS Workshops were sometimes very similar. Taiwan has occupied Itu Aba, the largest island in the group, since 1956. Vietnam's claim is also basically historical. It claims the Paracel islands as well as the whole Spratly group together with all its continental shelf. Again, the boundary lines of the claim are not clearly identified, either by description or by coordinates. The claim also covers quite an extensive area of the South China Sea, and Vietnam has also occupied a considerable number of features. The Philippine claim is based on the so-called "proximity" principle and "discovery" of the islands concerned by Philippine explorer Thomas Cloma in the 1950s. Unlike the Chinese claim, the Philippine claim clearly defines the coordinates and therefore is quite identifiable. However, the coordinates are not measured from base points on land, but from fixed positions at sea. The Philippines has also occupied a number of islands and rocks. 3
Point 3 of the Declaration of the People’s Republic of China on China’s Territorial Sea, dated September 4, 1958. This point was repeated in Article 6 of the Chinese Law No. 55/1992 on Territorial Sea and the Contiguous Zone of China, passed by the 24th meting of the Standing Committee of the 7th Congress of the PRC on February 25, 1992.
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Hasjim Djalal
The Malaysian claim is primarily based on the continental shelf principle and is clearly defined by coordinates. It occupies islands that it considers to be situated on its continental shelf. Equally, Brunei's claim seems to have been based also on the principle of EEZ and continental shelf, although the boundary lines are drawn almost parallel from, and are the continuation of two points at sea at the 100 fathoms depth contour that were announced in 1958 by the British as the continental shelf boundaries between Brunei and Sarawak and north Borneo (Sabah). All or most of these claims overlap with one another and some of them with several other claims. All the claimants, with the exception of Brunei, have occupied several rocks and reefs. There is no clear pattern of occupation. Some Chinese occupations have been quite far to the south. The significance of the various conflicting claims is very clear. It is basically a scramble for space and resources, either living or oil and gas, which are believed to be abundant in the area. Exploration efforts are continuing for oil and gas and fishery resources are being exploited. Conflicts have arisen in the past and may arise again in the future. INDONESIAN INITIATIVE Indonesia is not a claimant to any islands or rocks in the Spratly group. But if the Chinese/Taiwanese dashed lines of 1947 are taken into consideration and continuously connected, then the Chinese/Taiwanese claims could also intrude upon Indonesia’s EEZ and continental shelf as defined in the 1982 UN Law of the Sea Convention (UNCLOS), and as demarcated in the IndonesianMalaysian Agreement of 1969 and Indonesian-Vietnam Agreement of 2003. China, however, has assured Indonesia that they do not have any maritime boundary problems with Indonesia in the South China Sea. 30
The South China Sea
Indonesia took the initiative to try to manage the potential conflicts in the area and to promote actual cooperation among the claimants. Indonesia saw that the end of the Indochina war in 1989-1990 provided the opportunity to transform an environment of bickering and confrontation into one of cooperation. When the end of the Cambodian conflict was in sight in 1990, ASEAN and Indochina seemed ready for economic development and cooperative relations. Development efforts needed peace, stability and cooperation. Indochina later joined ASEAN. However, with regard to the SCS, it was essential to seek ways and means of preventing potential conflicts from erupting into armed conflagration. I thought that a sense of "community" in the South China Sea area should be developed. There was the basis of cooperation in UNCLOS, especially in the EEZ regime (Articles 61- 67) and the "Enclosed or Semi Enclosed Seas" concepts as stipulated in Article 123. That Article stated that; States bordering an enclosed or semi-enclosed sea should co-operate with each other in the exercise of their rights and in the performance of their duties under this Convention. To this end they shall endeavour, directly or through an appropriate regional organization: a. to co-ordinate the management, conservation, exploration and exploitation of the living resources of the sea; b. to co-ordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; c. to co-ordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; d. to invite, as appropriate, other interested States or international organizations to cooperate with them in furtherance of the provisions of this article. 31
Hasjim Djalal
It was difficult at that time to see whether ASEAN had a perspective on SCS. However there was a strong conviction in Indonesia and in ASEAN that we should concentrate on promoting development, particularly economic development, as well as the ASEAN and Southeast Asian principles of resilience and cohesiveness. We did not want to see a repeat of the disturbances that had occurred before in Southeast Asia and in the SCS area. At about the same time, the issues of Paracels and the Spratlys were attracting attention and posing a threat to Southeast Asian stability. In the meantime, I had developed contact with Professor Ian Townsend-Gault of the University of British Columbia in Vancouver who was willing to seek Canadian support to help manage potential conflicts in the South China Sea if the countries around the SCS were interested. The Canadian International Development Agency (CIDA) was later willing to support all the meetings. The South China Sea Informal Working Group (SCS-IWG) was established in Vancouver and the Center for Southeast Asian Studies, which I had established and directed in Jakarta, would collaborate and help develop the agenda for the meeting, prepare background papers, and arrange for the participation of “resource persons”. In view of this, at the end of 1989 I traveled around the ASEAN capitals to find out whether and what we could do together about the SCS within the context of preventive diplomacy. For that purpose, 1 prepared a basic working paper. Out of this trip, I found out that: • practically everybody thought that we should do something; • there was apprehension that territorial disputes could pose major difficulties in developing cooperative efforts; • in view of difficult and sensitive territorial issues, it would be better if the approach were informal, at least at the initial stage; and
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The South China Sea
• there was a notion that ASEAN members should coordinate their views and positions first before they engaged nonASEAN states in such efforts. Consequently, I felt that regardless of the territorial disputes, we should always try to find ways to manage potential conflict and to find an area or areas in which everyone could agree to cooperate, no matter how small or how insignificant it might seem. We should be guided by the idea that despite potential conflict, there was always an opportunity for cooperation. At that time, I had three basic objectives: • to manage the potential conflicts by seeking an area in which everyone could cooperate; • to develop confidence-building measures or processes so that the various claimants would be comfortable with one another, thus providing a conducive atmosphere for the solution of their territorial or jurisdictional disputes; and • to exchange views through dialogue on the issues involved in order to increase mutual understanding. It would be a major achievement for the region to work together to transform the habit of confrontation into a habit of cooperation. This could be achieved sooner if we had programs designed to achieve it. Therefore, it was important to find a common denominator, no matter how slow the process might be or how small was the result at the beginning. Patience was important then as it still is today. THE WORKSHOP PROCESS Despite many concerns and reservations at that time, all of us in ASEAN agreed to try to manage the potential conflicts in the SCS and to convert them as much as possible to cooperation. We all agreed informally to come to the First Workshop on the South China Sea in Bali in 1990. This was basically a meeting among ASEAN 33
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participants only. The following areas were identified for discussion at the first meeting: a) territorial and sovereignty issues, b) political and security issues, c) marine scientific research and environmental protection, d) safety of navigation, e) resources management, and f) institutional mechanisms for cooperation. We also discussed whether and how to include other non-ASEAN countries in the discussion on the South China Sea, particularly Vietnam, China, Taiwan (Chinese Taipei), Laos and Cambodia. The Workshop was acknowledged as a platform for policy oriented discussions, not only for an academic exchange of views. Each ASEAN country was asked to prepare a specific paper and to take a leading role in discussions. Malaysia was to lead the discussion on territorial and sovereignty issues; Singapore on political and security issues; Indonesia on marine scientific research and environmental protection; the Philippines on safety of navigation; Thailand on resources management; and Brunei Darussalam on institutional mechanisms for cooperation. Since this was the first exploratory meeting, there was no statement issued at the end of the meeting, although informal records were prepared by the organizer. The First Workshop laid the groundwork and it was apparent that there were quite a few areas where participants were prepared to cooperate. In preparing the Second Workshop, I thought that China and Taiwan should be included as they have claims in the SCS and also occupied some features in the area. But it was not easy at that time to bring China into the discussion, primarily because China considered that the SCS issues should not be "regionalized" or "internationalized", and that China would discuss whatever problems it had directly and bilaterally with the countries concerned. In China’s view, its claims to sovereignty over the SCS islands were "undisputable". In addition, it would be difficult for China to sit down with Taiwan in international meetings like the South China Sea Workshop, if these were "formal" meetings. But by the Second 34
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Workshop in Bandung in 1991, it had become an all "inclusive" group; not only Vietnam and China were invited and participated but also Taiwan (Chinese Taipei). Even land-locked Laos was invited. Cambodia was invited later after the political situation there became clearer. Thus, by the Second Workshop in Bandung in February 1991, we were able to bring China, Vietnam, Laos and Chinese Taipei into the Workshop Process. The Bandung meeting went into more detail with the topics mentioned above, including the problems of sovereignty over the Spratlys and the Paracels, the roles of major nonSCS powers in the region, as well as confidence-building measures. More technical discussions took place on marine scientific research, marine environmental protection, safety of navigation, and on resource management. Some ideas to establish a “secretariat” as well as to “formalize” the meeting were mentioned. More significantly, the participants attending the Bandung meeting agreed to issue a statement saying that the SCS disputes should be settled peacefully, that force shall not be used to settle the disputes, and that the parties to the disputes shall exercise restraint in order not to exacerbate the potential conflicts. This statement was a precursor to a much more formal ASEAN Declaration on the South China Sea in Manila in July 1992, which provided guiding principles for efforts to manage potential conflicts in the SCS through cooperation. By the Third Workshop in Yogyakarta in 1992, more specific discussions took place on the various topics. By this time, I felt that devising cooperative projects would have to be worked out in more detail by specific technical working groups (TWGs) and groups of experts meetings (GEMs). Thus, the meeting in Yogyakarta agreed to establish two TWGs, namely the TWG on Marine Scientific Research and the TWG on Resources Assessment. Some participants continued to consider it necessary to establish a secretariat for the workshop process as well as to formalize the process. There was no consensus to establish a secretariat because many participants were not yet willing to 35
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institutionalize or formalize the process. In addition, there were also many technical reasons for not establishing the secretariat. It was generally felt that the Center for Southeast Asian Studies (Pusat Studi Kawasan Asia Tenggara) in Jakarta should continue to be the focal point for the Workshop Process. With regard to formalizing the Workshop Process, some countries also had difficulties, particularly China, primarily due to its problems with sitting down with Taiwan/Chinese Taipei in a formal process. Thus, the informal set-up of the Workshop Process was a necessity and perhaps the only possibility for bringing in China and Chinese Taipei together. Moreover, it was generally thought that discussions and ideas could flow more freely in an informal process. In a more formal meeting participants would be extremely constrained by the policies of their respective governments. The Fourth Workshop in Surabaya in 1993 discussed the participation of non-SCS countries. It was agreed that non-SCS participation would be allowed on a case-by-case basis to implement specific agreed programs of cooperation. In the meantime, the TWG on Marine Scientific Research (TWG-MSR) had already begun discussions in Manila and the TWG on Resources Assessment (TWG-RA) had been convened in Jakarta. The Surabaya meeting also discussed the results and recommendations of the two TWG meetings, and further agreed to convene follow-up meeting of the TWG-MSR in Singapore. It also agreed to establish the TWG on Marine Environmental Protection (TWG-MEP), and the TWG on Legal Matters (TWG-LM) and discussed the possibility of establishing the TWG on Safety of Navigation, Shipping and Communications (TWG-SNSC). Finally, the participants also indicated that the workshop series had reached a stage where it would have to concretize programs or projects to realize cooperative efforts through a step-by-step approach. The Fifth Workshop in Bukittinggi in 1994 approved some specific projects, which had been formulated by the Technical Working 36
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Groups, particularly a program for cooperation on the study and conservation of biodiversity in the SCS. The Bukittinggi Workshop also agreed, among others, to authorize me to seek support and funding for the project proposal on biodiversity; to convene another meeting of the TWG on Marine Scientific Research to finalize proposals on sea-level and tide monitoring, and on a database, information exchange and networking; and to convene the first meeting of the TWG on Legal Matters in Thailand. The Workshop also further discussed confidence-building measures, including discussion in detail on the need for non-expansion of existing military presence in the South China Sea. The Sixth Workshop in Balikpapan in 1995 approved the two project proposals drawn-up by the TWG on Marine Scientific Research, namely "study on tides and sea level change" and "regional cooperation in the field of marine science data and information network in the SCS". The participants also agreed to forward these project proposals to their respective authorities for their consideration and support in their implementation. I was asked to solicit support from various sources for these projects. The Seventh Workshop in Batam in 1996 further discussed the problems of implementing the agreed project proposals. Since 1995 there were some difficulties in implementation, not only because of the financial problems but also because of political issues. Practically all countries in the SCS have indicated a willingness to participate in the implementation of the agreed programs either in providing expertise, facilities or some even financial support. But China believed that the implementation of the agreed programs should be left to national institutions alone, particularly due to the sensitive nature of the issues dealing with territorial and sovereignty claims. It was only at the Eighth Workshop meeting in Pacet, Puncak, in December 1997 that the participants agreed to jointly implement the agreed programs for cooperation. I was asked to continue to approach various international,
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regional and national agencies, governmental or non-governmental, to support the implementation of the agreed programs. The Ninth Workshop in Ancol, Jakarta, in 1998, continued discussion on implementing the agreed projects. A representative of the UNEP indicated to the meeting that UNEP could help with the implementation of some components of the Biodiversity Project. The Meeting also continued discussion on the Code of Conduct for the South China Sea. On the safety of navigation, the participants agreed to recommend to their respective authorities to consider ratification of the Rome Convention on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988, of the International Convention on Civil Liability for Oil Pollution Damage, 1992, of the International Convention on the Establishment of International Fund for Compensation for Oil Pollution Damage, 1992, and of the International Convention on Oil Spill Pollution and Preparedness, Response and Co-operation, 1990. The Tenth Workshop in Bogor in 1999 noted that the atmosphere of cooperation had improved, despite some difficulties. The Workshop also discussed and endorsed the recommendations of the various meetings of the TWGs and GEMs. The issues of the formulation of the Code of Conduct for the South China Sea and the issues of implementation, as well as linkages with other activities, continued to be the subject of discussion. In order to avoid difficulties with regard to implementation of biodiversity expedition in the South China Sea, it was agreed to conduct the expedition in and around the undisputed Indonesian islands of Anambas in the South China Sea. The Eleventh Workshop was held in Cengkareng in March 2001. This meeting, while discussing and endorsing the reports and recommendations of the various TWGs and GEMs, was also confronted with the decision by Canada, for reasons unknown to us, not to extend its financial support to the Workshop Process beyond the current support (early 2001). In view of this situation, the 11th Workshop decided
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unanimously to make all efforts to continue the process and to hold a Special Meeting to explore various options to continue the process. The Special Meeting, which took place in Jakarta in August 2001, agreed to continue the Workshop activities in an informal, unofficial and track-two way, focusing on building confidence and cooperation while avoiding controversial, political and divisive issues. The Workshop could continue to be held in Indonesia, but if Indonesia is not in the position to hold such a Workshop, it could be held in other places, at the expense of the host authorities concerned. With regard to funding, the Workshop process should seek voluntary donations from participating authorities, voluntary donations from the non-governmental organizations, foundations or private companies from the SCS region, and voluntary donations from the nongovernmental organizations, foundations or private companies, from outside the SCS region, provided no political conditions were attached. It was also decided that the Workshop process should function more as a “think tank” group and should develop implementable projects, taking into account the limited availability of financial and human resources. They also agreed to recommend the establishment of a Special Fund to be administered by Pusat Studi Asia Tenggara (the Center for Southeast Asian Studies) in Jakarta. In the meantime, the Anambas Expedition to study biodiversity in the South China Sea was conducted on 11-22 March 2002. The expedition discovered a number of marine species unknown before. The scientific results of the expedition were published in the Raffles Bulletin of Zoology in Singapore in March 2004. The Twelfth workshop in Jakarta in October 2002 agreed to continue efforts to manage the potential conflict in the SCS and to implement agreed projects by their own means and with voluntary support from various sources. They also agreed to establish the Special Fund for this purpose. The Thirteenth Workshop was held in Medan in September 2003. It discussed the preparation for the Palawan Biodiversity Expedition as a continuation of the Anambas Expedition. It continued discussion on the 39
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Database Information Exchange and Networking (coordinated by China), Sea Level and Tide Monitoring Project (coordinated by Indonesia), and Training Program for Marine Ecosystem Monitoring (coordinated by the Philippines). It was agreed to revise the projects in the light of comments by participants. The Workshop discussed further the development of the “Special Fund”. The Fourteenth Workshop held in Batam in November 2004 reviewed the projects so far planned, namely (1) Marine Science Data and Information Networking, (2) Biodiversity Studies, (3) Study of Tides and Sea Level Change, (4) Training Program for Marine Ecosystem Monitoring, (5) Training Program for Seafarers, (6) Fisheries Stocks Assessments, (7) Hydrographic Survey, and (8) Search and Rescue and Illegal Act at Sea including Piracy and Armed Robbery at Sea. China reported that it has convened a working group meeting in Hainan in September 2004 to discuss the Marine Database Program and in the light of the discussion, has revised the program. The Workshop decided to endorse the revised proposal and requested that China continue with preparation to implement the project. With regard to the Palawan Biodiversity expedition, the Philippines informed the workshop that it has changed the implementation of the expedition from a track-two activity to a track-one activity and has widened the area of the expedition to also include Luzon. This announcement created problems, and the workshop decided not to continue discussion on this matter since track-one activity is outside the purview of the workshop. As it turned out, some participants later withdrew their participation in the Luzon-Palawan expedition. The workshop also asked Indonesia to continue with the preparation for the study of Sea Level Rise and asked Malaysia to initiate works on cooperation with regard to Search and Rescue. At this occasion, Chinese Taipei proposed the establishment of South East Asian Ocean Network for Education (SEAONE) for training purposes to promote ocean science research. China has difficulties with this proposal, and due to lack of consensus, the proposal was not discussed further, noting that Chinese 40
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Taipei could initiate the program as its own by inviting all other participants to make use of it. The Fifteenth workshop was held in Anyer, Banten, in November 2005. The workshop discussed and endorsed the result of the TWG meeting on the Database Information Exchange and Networking project, held in Tianjin, China, on 11-12 October 2005. The workshop also discussed and endorsed the result of the TWG meeting on the Study of Tides and Sea Level Change and their impact on coastal environment in the SCS, held in Anyer, Banten, Indonesia, on 22-23 November 2005, and agreed to begin its implementation. All participants acknowledged the importance of the workshop process as a confidence-building measure and a preventive diplomacy mechanism which is still relevant to the current situation. In addition, after the implementation of the biodiversity project in Anambas (and later in Palawan), it encouraged China, Chinese Taipei, the Philippines, and Vietnam to consider the possibility of conducting biodiversity expeditions that will include the Northeast and Northwest area of the South China Sea in order to complete the picture of biodiversity in the SCS as a whole. The Sixteenth Workshop was held in Bali in November 2006. It discussed regional cooperation in the field of marine science and information, and China undertook to organize a technical training course on constructing a website and sub-website with data on the SCS area. Equally, Indonesia is continuing its preparation for cooperation on the study of sea level change and the coastal environment in the SCS affected by potential climate change. The participation of certain authorities, as in the 15th Workshop, was already covered by the Special Fund which was established in 2004. DIALOGUE BETWEEN THE PARTIES We have also encouraged more discussion and dialogue among parties to the territorial disputes to find the basis for a solution that would be acceptable to all concerned. The bilateral dialogue between 41
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China and the Philippines in August 1995 produced an eight-point code of conduct between them. Similarly, bilateral dialogue between Vietnam and the Philippines has also produced a nine-point code of conduct, which in many respects is similar to the China and the Philippines Code of Conduct. I understand there has also been dialogue between China with Vietnam and Malaysia, and between Malaysia and other claimants, although the dialogues have not led specifically to bilateral Codes of Conduct. In this context it is encouraging to note the signing of bilateral Agreements between China and Vietnam on December 25, 2000 regarding the maritime boundaries between the two countries in the Gulf of Tonkin, covering the boundaries of their respective Territorial Seas, EEZs and Continental Shelves, and another Agreement on Fishing Cooperation in the Gulf. There is no agreement yet, however, regarding the delimitation of contiguous zones between the two countries. The Fishing Cooperation Agreement is interesting because it establishes a "common fishing area", or some kind of "joint development zone" in the Gulf and a "buffer zone" for small fishing boats. The Agreement also covers the right of passage of Vietnamese vessels through the Qiangzhou Strait between Hainan and mainland China, which China so far has always regarded as part of its internal waters. Equally interesting, on the same day, the Foreign Ministers of the two countries signed a Joint Statement regarding relations between the two countries, which is tantamount to a bilateral code of conduct. In the statement, the two sides recalled their "time-honored traditional friendship", comprehensive cooperation, mutual trust, equality and mutual benefits between them. They reaffirmed that they will follow the guidelines and principles of the UN Charter, the five principles of peaceful co-existence, and the principles of international relations, independence, sovereignty, full equality, mutual respect and non-interference. They agreed to regularly hold high-level meetings, exchange visits, and continue to broaden 42
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cooperation in economic, commercial, scientific and technical cooperation. They also agreed to strengthen cooperation and coordination at multilateral, regional and international forums, to carry out multilevel military exchanges and expand cooperation in the security field, and many other areas of cooperation. Specifically on maritime issues, and apparently with the disputes in the SCS in mind, the two countries will continue to seek everlasting solutions acceptable to both sides through peaceful negotiation. Pending that solution, the two sides "will not take action to complicate or aggravate disputes, nor will they resort to force or threat of force". They will consult each other "in a timely manner in case of disputes and adopt a cool and constructive attitude to handle them properly in order not to allow disputes to impede the normal development of bilateral ties". It appears that in formulating any Code of Conduct, several elements should be included, such as: (1) Peaceful settlement of disputes; (2) Prohibition against the use of force or threats of force; (3) The exercise of self-restraint; (4) Development of CBMs; (5) Cooperation; (6) Consultation; (7) Transparencies;(8) Respect for International Law and Freedom of Navigation in the South China Sea; and (9) The area of application of the Code. JOINT DEVELOPMENT CONCEPT One of the most important issues in the South China Sea was the question of Joint Development (JD) or Joint Cooperation (JC). I personally supported this approach in overcoming the territorial problems. We even formed a Special Technical Working Group on Resources Assessment and Ways of Development (TWG-RA) to deal with this topic and the TWG met twice in Jakarta in July, 1993 and in 1999. The TWG-RA also established a Study Group (SG) to better understand the concept, and this SG had met twice in Vientiane in June 1998 and in Tabanan, Bali in July 1999. 43
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The TWG on Resources Assessment (TWG-RA) agreed that the JD had excellent potential, and that we should study the various concepts or models of joint development around the world and to learn from them what could be applied to the SCS area. I believed the concept should be formulated with agreement on at least four points: 1). The "zone" where the joint development will take place; 2). The "nature," the "subject" or the "topics" of the cooperation (fisheries, minerals, gas, oil, environment, marine scientific research, marine parks, etc.); 3). The "mechanism" for such joint development, which could be an Authority or a loose coordinative organization or arrangement; and 4). "Who" shall participate in such Joint Development or joint Cooperation activities, governments or companies or corporation. These four points, it seemed to me, were the sine qua non of joint development. In 1996 I suggested several principles for joint development and attempted to find out and define the "zone" where every participant, at least those having overlapping claims, could cooperate on the basis of UNCLOS. Theoretically this was that part of the SCS beyond 200 miles from undisputed coastlines or islands—the so-called “donut hole”. On the basis of various comments and reactions by participants, I submitted a revised proposal in 1998 to the participants directly concerned, which in essence reduced the zone and the number of possible participants. For some reason, discussion of the JD or JC concept stalled in the Workshop. However, some bilateral agreements have been reached on Joint Development, such as between Malaysia and Thailand and between Malaysia and Vietnam in the Gulf of Siam, and between China and Vietnam in the Gulf of Tonkin. 44
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CONCLUSIONS Preventive Diplomacy In view of our experience with developing cooperation to promote preventive diplomacy in the SCS, some conditions for successful efforts would seem to be: 1) Realization by the parties to the disputes that conflict, especially armed conflict, will not settle the disputes and will not bring benefits to any/either party; in fact they only bring mutual damage or loss to the parties. I feel that the parties to the disputes in the SCS are now aware of this. 2) Political will is required to settle the disputes peacefully and to prevent the disputes from escalating into armed conflicts. The parties must realize that their interests lie in finding a solution of the disputes rather than in prolonging them. I feel that we still have to do a lot to strengthen political will, although some progress has been made. 3) The parties should not legislate any territorial claims especially in areas where claims are clearly disputed. Legislating territorial claims and seeking support through public opinion tend to harden the position of all sides and make it more difficult to seek solutions or compromises, or even temporary solutions such as joint development. I feel that this point still needs to be appreciated. 4) There is a need to increase "transparency" in national policy, legislation and documentation with more frequent meetings among the legal officers of the various regional countries in order to exchange documentation and information, including with legislative planning. 45
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5) Successful efforts often begin with informal activities, either through the track-two informal or track-one processes. After such efforts have had some success, a more formal track-one approach could be attempted. This was the case with the Cambodian issue (which started with informal "cocktail parties"), the Southern Philippines and the South China Sea Workshops. Preventive diplomacy requires patience, tenacity and consistent efforts. 6) Preventive diplomacy should be undertaken by all parties who have an interest in the solution of problems, both regionally and internationally. Solutions that take into account only national and regional interests, but ignore the interests of states outside the region are not necessarily an effective solution for the long run. I feel that this point is slowly being appreciated. Basic Principles In managing potential conflicts, it is important to take into account several basic principles, such as: 1). Use an “all inclusive approach” and not exclude any directly interested countries or parties. 2). Start with less sensitive issues with which participants feel comfortable discussing without incurring the animosity of their respective governments or authorities. 3). The participants should be senior enough or eminent persons in their government although they are participating in the process in their private capacity. 4). The structure of the process should not be institutionalized by creating a permanent or well-organized mechanism. The process should be kept as flexible as possible. 5). Differences should not be magnified and cooperation should be emphasized. 46
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6). In view of the delicacy and sensitivity of some issues, it is wise to start with what is possible and follow a step by step approach and take into account the principles of cost effectiveness. 7). It should be understood that the process of managing potential conflicts is a long-term continuing process where lack of immediate concrete results should not be cause for despair and frustration. 8). Objectives should be kept clear and simple. The South China Sea Workshops have clear objectives: to learn how to cooperate; and to implement cooperation. The goal is to build confidence through dialogue and cooperative programs. 9). The roles of the initiator, the interlocutor, or the convener of the process, as well as the roles of disinterested supporters and sponsors, are very crucial. The key persons must be impartial, have patience and dedication, as well as tenacity and sufficient knowledge of the delicate issues involved, and be able to retain the respect and the continued support and cooperation of all participants. Current Prospects The current situation of the Workshop Process on managing potential conflicts in the SCS could be summarized as follows: (1) Discussion on territorial and jurisdictional issues, after several meetings, has stalled in the Workshop Process because of the objections of China and certain other participants. China and Vietnam, however, have reached bilateral agreement on maritime delimitation in the Gulf of Tonkin, and Indonesia and Vietnam have reached bilateral agreement on the delimitation of their continental shelf boundary in the SCS.
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(2). Discussion and bilateral dialogues among parties concerned have achieved results. As indicated above, there is already an eightpoint Code of Conduct between the PRC and the Philippines and a nine-point Code of Conduct between the Philippines and Vietnam. In fact the six-points basis for settlement of disputes agreed upon by the Second Workshop in Bandung in July 1991 and the five-points ASEAN Declaration on the SCS in Manila in July 1992 became elements for the formal ASEAN-China Dialogue resulting in the Declaration on the conduct of Parties in the South China Sea, adopted in Phnom Penh in 2002. (3). Discussion on confidence-building with regard to military activities has also slowed down, although there is still agreement to continue discussion on this matter. (4). Discussion on formulating cooperation in technical matters has made a lot of progress in the various Technical Working Groups. In fact, three projects of cooperation have been agreed, namely on biodiversity, climatic change and sea level monitoring, as well as on preparing a database and networking. A bio-diversity expedition took place in 2002 in Anambas area, followed by the Philippines bio-diversity expedition near the Palawan Island. (5). The efforts to develop cooperation through Joint Development have also produced concrete results, such as the Agreement between China and Vietnam on the Common Fishery Area in the Gulf of Tonkin in 2002. An agreement between China and Philippines to conduct a joint exploration survey for oil between the oil companies of the two countries, was signed in Beijing in 2004, and a similar agreement for three years on marine seismic undertakings between the oil 48
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companies of China, the Philippines and Vietnam, was signed on March 14, 2005. Throughout the discussion of South China Sea issues, China has played a key role. I am happy to note that China has moved away from being reluctant and skeptical to become an ardent supporter of the Workshop Process. China’s neighbors in the SCS area have responded positively, and the policy of the Southeast Asian countries of "constructive engagement" with China seems to be working. China and its neighbors in Southeast Asia may see closer relations and cooperation in the future. One of the successes of the efforts to manage potential conflicts in the SCS would be the absence or continued absence of armed conflict in the area. Yet, precisely the absence or the prolonged absence of conflicts in the area could also be one of the reasons for the argument that the Workshop Process would no longer be needed. This argument could also be used as an excuse not to implement agreed projects of cooperation, which have been so painstakingly discussed and formulated. I personally believe that this reasoning or argument is dangerous, because I do not share the view that we have to wait until disputes erupt into actual armed conflict before we do something about it. If disputes erupt into armed conflict, then the efforts to manage potential conflicts in the SCS would have failed. Concluding Remarks There are good opportunities for promoting cooperation in various areas and developing confidence-building measures and processes for the SCS. The more that discussion takes place on relevant issues, the better are the prospects for managing potential conflict in the area. The prognosis for the future would be much worse if South China Sea countries were not prepared to talk about the issues, and to transform them into actual cooperation. 49
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It has indeed been a long road towards peace and cooperation in the South China Sea but it has all been worthwhile. In this context, it is hoped that Indonesia, together with all its partners in the South China Sea Workshop, will continue to exercise wisdom and leadership in taking the initiative to promote peace, stability and cooperation in the SCS and South East Asia in general, for their own respective good and common interests. There are also good prospects for the model of the South China Sea workshops to be used to deal with similar problems, including in the East China Sea and the Sea of Japan (East Sea).
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PANEL I: BACKGROUND ON THE FREEDOM OF NAVIGATION
Remarks on the Legal Status of the Exclusive Economic Zone Tommy T. B. Koh1
The legal status of the Exclusive Economic Zone (EEZ) was another very contentious issue at the United Nations Conference on the Law of the Sea. On this issue there were also strongly held and opposing views. Some coastal States would like the status of the EEZ to approximate the legal status of the territorial sea. Many other states held the view that the rights of the coastal States and EEZ are limited to the exploitation of living and non-living resources and that the water column should be treated much like the high seas. On this issue, as in the case of straits, there was no agreement. What is remarkable is that at the Conference when an impasse like this occurred and the formal negotiating process was unable to break the impasse, the Conference leader or several leaders would rise and take on the burden of convening a negotiating group to try to find compromises. The leader of the Mexican delegation to the Conference was a very remarkable individual and friend, Dr. Jorge Castañada, who subsequently became the Mexican foreign minister. During the Conference colleagues 1
Ambassador-At-Large at the Ministry of Foreign Affairs, and Chairman of the Institute of Policy Studies and the National Heritage Board. He was formerly Dean of the Law Faculty at NUS. He served as Singapore’s Permanent Representative to the UN in New York and Ambassador to the United States of America, Canada and Mexico. He was also the President of the Third UN Conference on the Law of the Sea.
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often used an invitation to dinner as a subterfuge for making you work after dinner. At first I didn’t understand what was going on. I was getting so many dinner invitations—then I found when dinner was over they said maybe we should clear the table and proceed to work. On the evening of June 25, 1977, Jorge Castañada invited the leaders of 16 delegations (apart from himself) to dinner. Who were these 16 delegations? He invited Australia, Bulgaria, Canada, Egypt, India, Kenya, Nigeria, Norway, Peru, Singapore, the United Kingdom, Tanzania, the United States, the Soviet Union, and Venezuela. Once we began to work on the 25th of June the momentum was quite relentless. Castañada was a very tough leader. Between 25 June and 12 July we met on 13 occasions. At the end of the process the joint rapporteurs of this group, Castañada and a Norwegian colleague, submitted a compromise text to the Conference. The text was strongly debated, but found very wide acceptance. Not universal acceptance, but wide acceptance. There were friends on both sides who did not agree with the compromise text and held onto their strongly held initial positions. But at the Conference, on all these contentious issues, the middle ground prevailed. What was the middle ground on Part V of the Convention on three critical issues? First, we agreed in the Castañada group that the EEZ is neither territorial sea, nor part of the high sea, but was sui generis. This consensual view is expressed in Article 55 of the Convention. Second, we agreed that no state can subject the EEZ to its sovereignty; this is expressed in Article 58 and Article 89. You come to this conclusion, not directly, but by a slight detour. When you read these two articles in conjunction, 58 and 89, the conclusion is clear. This was the intention of the 17 negotiators, that no state could subject the EEZ to its sovereignty. Therefore, I am concerned that in recent years I find a tendency on the part of some coastal States of creeping jurisdiction, of seeking to assert their sovereignty in the EEZ. This in my view is not consistent with the 54
Remarks on the Legal Status of the EEZ
intention of those of us who negotiated this text and is not consistent with the correct interpretation of this part of the Convention. The third important issue is the residual rights and jurisdictions. With whom do they reside? Do they reside with the coastal State or do they reside with the international community? This was a huge battle. The compromise may not be very satisfactory. The compromise was not to say that the residual rights and jurisdictions belong either to the international community or the coastal States. What we did say in Article 59 is that each case has to be judged on its merits on a basis of equity and taking into account all the circumstances of each case. That is the compromise. Again, I would say that some coastal States in recent years have asserted the view that residual rights and jurisdictions belong to the coastal States. This position, in my view, is not consistent with the consensus arrived at in the Castañada negotiating group and not consistent with the intention of Article 59 of the Convention. One of the problems with the Third UN Conference on the Law of the Sea is that we have no travaux préparatoire. Because of this it is very hard for those who were not participants in the various negotiating processes to know what the background was which led to the many compromises which are embodied in the convention. The closest thing we have is the multi-volume series edited by my friend Myron Nordquist, the United Nations Convention on the Law of the Sea 1982: A Commentary. This is my bible. As John said, Professor Jayakumar and I had the privilege of writing a rather long chapter on the negotiating processes of the Conference. Thank you.
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An Introduction to the Regime of Passage Through Straits Used for International Navigation and Through Archipelagic Waters Satya N. Nandan1 An agreement on regimes relating to navigation and overflight through and over maritime areas falling under national jurisdiction of states was an indispensable condition for the adoption of a widely acceptable Convention on the Law of the Sea at the Third United Nations Conference on the Law of the Sea. A resolution of the passage regimes applicable to the territorial sea in general and in straits used for international navigation, as well as passage through archipelagic waters, in particular, through the archipelagic sea lanes, made it possible for the Conference to reach agreement on 12 nautical miles as the maximum breadth of the territorial sea and on the provisions concerning the Exclusive Economic Zone. The regime for passage through straits used for international navigation was the most contentious issue before the Conference. Very early in the negotiations at the preparatory phase for the Conference, states and groups of states began to stake out their position on a regime on navigation through straits. These positions reflected two major trends. States bordering straits took the position that since straits formed an integral part of the territorial sea there was no reason to separate the question of straits from that of the territorial sea. These States proposed a regime based on the concept of nonsuspendable innocent passage of ships identical in other respects to the regime in other parts of the territorial sea. 1
Secretary-General, International Seabed Authority. Repporteur of the 2nd Main Committee of UNCLOS III and Co-Chair of the informal group on Straits used for international navigation. The views expressed in this article are that of the author and do not reflect the views of any institution to which the author may be associated in anyway.
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Other states, in particular the major maritime powers, proposed separate regimes for territorial sea and for straits used for international navigation. They sought a regime of passage through those straits based on the freedom of navigation of the high seas for ships and freedom of overflight for aircraft under conditions that would safeguard the interests of States bordering straits. In their view, the preservation of the freedom of navigation through international straits was essential in order to maintain the flow of trade and communications and stable and peaceful international relations. For them, the community of interest with regard to international straits was far more vital than simply the right of passage in the territorial sea. They sought a regime which would minimize the possibility of conflict among nations arising from uncertainty as to legal rights and responsibilities. Such uncertainty would occur if a regime for straits used for international navigation could be subjectively interpreted by straits States. Given the strongly held positions of the two sides, it quickly became apparent to the Conference that the regime to be applied in straits used for international navigation was one of the cardinal issues on which the successful adoption of a convention would depend. The positions were so strongly held that they could not agree to a separate listing from territorial sea of an agenda item for the conference which would simply state “Straits used for international navigation”. When finally an agreement was reached to include a separate item on the agenda it was accompanied by two sub paragraphs: first, “innocent passage” and the second, “other related matters including the right of transit”. Variations on different approaches regarding the regime to be established for straits used for international navigation continued into the Conference and the issue was hotly debated by the two sides. Despite these differences there was broad agreement that the regime applicable to straits used for international navigation should balance the right of unimpeded navigation for the international community with legitimate interests of States bordering straits. This broad agreement 58
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on the key elements later formed the basis for the development of a specific regime. In order to assist the Conference to make progress on this issue a group of delegates who shared more moderate positions met informally without the two main proponents—those favoring free transit through straits and those favoring a modified nonsuspendable innocent passage. The result of the work of the informal group was reflected in a single common text which was eventually incorporated in the Convention as Part III, Articles 34-45. This part has three sections. The first contains General Provisions; the second establishes the Regime of Transit Passage and the third maintains Innocent Passage in straits excluded from the application of the Transit Passage Regime. The key provisions of the regime are contained in section II, Articles 37-44. Article 38 establishes the right of transit passage and inter alia states that “Transit passage means the exercise in accordance with this Part of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an Exclusive Economic Zone and another part of the high seas or an Exclusive Economic Zone”. Articles 39, 41 and 42 set out the correlative rights and duties of States bordering straits and user States whose ships and aircrafts are exercising the right of passage. These rights and duties are carefully balanced between the obligations of a vessel exercising transit passage and the powers of the State bordering the straits to provide for the safety of navigation and to regulate maritime traffic. Article 39, paragraph 2(a) requires ships to “comply with generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea”. Article 39, paragraph 2(b) creates the same obligation to “comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships”. Article 41 empowers States bordering straits to designate sea lanes and traffic separation schemes in straits used for international navigation 59
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where this is “necessary to promote the safe passage of ships”. That designation or prescription, as well as substitution for previously designated sea lanes or prescribed traffic separation schemes, shall be done after adoption by the competent international organization. Normally this is done by the International Maritime Organization (IMO), in agreement with the State(s) bordering the strait. Ships in transit are required to respect applicable sea lanes and traffic separation schemes “established in accordance with this article”. By implication there is no obligation under the Convention to respect sea lanes or traffic separation schemes unless they have been established in accordance with the conditions set out in this article. There is no corresponding provision for aircrafts which are regulated through the International Civil Aviation Organization. Article 42 enumerates the activities regarding which States bordering straits may adopt laws and regulations relating to transit passage for straits used for international navigation. It also provides that ships are to comply with such laws and regulations in exercising their right of transit passage. Further, international responsibility for any loss or damage resulting in the violation of these laws and regulations is to be borne by the flag State of a ship or the State of registry of an aircraft “which acts in a manner contrary to such laws and regulations”. Article 42, paragraph 1(b) authorizes States bordering straits to adopt laws and regulations relating to the prevention, reduction and control of pollution. This authority was a crucial issue for many of those States, which were concerned about discharges of oil and other pollutants from transiting ships. On the other hand, user States were concerned that unreasonable pollution-control regulations might be a means of impairing the freedom of transit through straits. These two conflicting viewpoints were accommodated by allowing States bordering straits to adopt laws and regulations on the prevention, reduction and control of pollution, but only by way of “giving effect to applicable international regulations”. Implicit in this provision is that States bordering straits are not free to adopt 60
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regulations that are substantially different from or more stringent than the applicable international standards. A limited enforcement jurisdiction is granted through Article 233 to enable States bordering straits to deal with actual or threatened major damage to the marine environment. Article 42, paragraph 2 contains two limitations on the action of States bordering straits under paragraph 1. The laws and regulations under paragraph 1 must not discriminate “in form or in fact among ships”. This provision has parallels in Article 24, paragraph 1(b) and Article 25, paragraph 3 concerning innocent passage in the territorial sea; Article 52, paragraph 2, concerning innocent passage in archipelagic waters; and Article 227 concerning non-discrimination with respect to foreign vessels in connection with protection of the marine environment. The second limitation contained in paragraph 2 is that the application of laws and regulations adopted by the State bordering straits must not have the practical effect of denying, hampering or impairing the right of transit passage as defined in Part III, section II. This is a further reinforcement of the conclusion that the jurisdiction provided for in Article 42 is prescriptive only. Ships exercising the right of transit passage may not be inspected, arrested, detained, seized, refused passage or subjected to other forms of control that would impair the right of transit passage. This principle relating to unimpeded passage is repeated in slightly different terms in Article 44 which requires that States bordering straits not to “hamper transit passage and to give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge. There shall be no suspension of transit passage”. The limitations imposed in Article 42 on States bordering straits, however, does not deny a State the right to exercise its jurisdiction if the ship should enter that State’s port or in some other way come within the State’s competence, to exercise its enforcement jurisdiction. As regards ships and aircrafts entitled to sovereign immunity which act in a manner contrary to the laws and regulations or other provisions of Part III, Article 42, paragraph 5, provides that the flag State 61
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of such ship or the State of registry of such an aircraft “shall bear international responsibility for any loss or damage which results to States bordering straits”. Article 43 contains important provisions concerning cooperation between user States and States bordering straits. They are required to cooperate “(a) in the establishment and maintenance in straits of navigational and safety aids or other improvements in aid or international navigation and (b) for the prevention, reduction and control of pollution from ships”. This provision addresses the concerns of States bordering straits that have to bear the economic burdens of installing and maintaining navigational aids, and of enduring pollution and threats to their fisheries, without receiving any corresponding benefit, since many ships transit straits bordered by those States enroute to ports in other states. Cooperation by user States is essential for safe and expeditious passage of their ships through some of the world’s busiest straits since apart from the duty to give “appropriate publicity to any danger to navigation or overflight within or over the straits of which they have knowledge” under Article 44, States bordering straits have no independent duties to set up a system of navigational and safety aids. Part IV, Articles (46-54) of the Convention establishes the regime for “archipelagic States”. The waters enclosed within the archipelagic baselines are denominated “archipelagic waters”. Agreement on an acceptable regime for the right of passage through the archipelagic waters was an essential condition for the acceptance of the concept of archipelagic waters. Article 52 prescribes the general rule for passage through archipelagic waters, which is innocent passage as set out in Part II, Section III (Articles 17-32), of the Convention. Subject to the provisions of Article 53, the right of innocent passage applies to all waters within the archipelagic baselines. Ships of all states enjoy the right of innocent passage through archipelagic waters in accordance with Part II. Article 53, paragraph 1, provides that an archipelagic State may designate sea lanes and air routes suitable for the continuous and 62
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expeditious passage of foreign ships and aircrafts through and over its archipelagic waters and adjacent territorial sea. Paragraph 3 defines archipelagic sea lanes as the “exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or the Exclusive Economic Zone and another part of the high seas or an Exclusive Economic Zone”. Article 53 elaborates on where and how the sea lanes shall be drawn and empowers the coastal State to prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. The archipelagic State is permitted to substitute other sea lanes or traffic separation schemes for those previously designated or prescribed by it. These sea lanes and traffic separation schemes shall conform to generally accepted international regulations. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them. Article 53 also provides that ships in archipelagic sea lanes passage shall respect applicable sea lanes and traffic separation schemes established in accordance with this article. It further provides that if an archipelagic State does not designate sea lanes or air routes the right of archipelagic sea lanes passage may be exercised through the routes normally used for international navigation. With respect to the duties of ships and aircrafts during their passage, research and survey activities, and the corresponding duties of the archipelagic State and the laws and regulations of the archipelagic State relating to archipelagic sea lanes passage, the Convention provides that Articles 39, 40, 42, and 44 concerning the regime for transit passage through straits used for international navigation shall apply mutatis mutandis to archipelagic sea lanes passage. 63
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Archipelagic sea lanes passage is the second element of the dual approach of which the regime of innocent passage through archipelagic waters as set out in Article 52 is the other element. Taken together the purpose of these provisions is to balance the legitimate interests of the archipelagic State with the requirements of global navigation. The regime for passage through archipelagic sea lanes is similar to the regime of transit passage in straits used for international navigation contained in Part III with adjustments to reflect the differences between the vast expanses of ocean often included within archipelagic waters and the narrow passages that comprise most straits used for international navigation.
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Remarks on the Concept of “Freedom of Navigation” Hasjim Djalal1 It is not easy to speak after Tommy Koh. I had difficulty choosing what to say after him especially since he felt that some of us were radicals concerning the UNCLOS Convention. But perhaps now the radicals were the most reasonable and therefore we were able to come to an agreement and understanding in achieving the consensus for the Law of the Sea Convention. I have been asked to speak on the freedom of navigation. I’m going to go back beyond the situation that Tommy was describing. In my mind, the issue of the freedom of navigation has been there for centuries. I understand from previous studies and research, even in the 15th, 16th, and 17th centuries the issue existed. When you go back, you are all familiar with, for instance, the papal decree resulting in the Treaty of Tordesillas in 1494. They simply divided the ocean between the two superpowers of the time, Spain and Portugal. We in Indonesia were victims of all this too, of this line of demarcation because the line of demarcation goes through the Atlantic Ocean to the North Pole and to the eastern part of Indonesia. Half of the known ocean belonged to Spain, the other half to Portugal. The end result of all this was not a very happy occasion for Indonesia. Indonesia was divided between the west, which was basically Portuguese, and the eastern part of Indonesia which was basically Spanish. This theory was challenged by the great leaders at the time. Hugo Grotius proclaimed the need for freedom of the seas because these two superpowers, particularly the Portuguese, dominated the Indian Ocean and 1
Member of Indonesian Maritime Council, Senior Advisor to the Indonesian Minister for Maritime Affairs and Fisheries and Indonesian Naval Chief of Staff.
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prevented the Dutch from trading with the eastern islands (Indonesia). In fact even the British had reservations at the time, and they tended to follow John Selden’s theory of mare clausum, particularly to prevent the Dutch from fishing the waters around Britain. But those are old stories concerning the division of the world’s oceans. Since the beginning of the 20th century, ocean issues have been dominated basically by the freedom of navigation, a conclusion that I personally draw. Coastal State sovereignty was limited to three miles from the coastline at that time. The end result for us is that this kind of freedom of navigation or freedom of the seas actually brought colonialism to Indonesia. The colonial powers roamed the seas between our islands and took away the fisheries resources, the maritime resources. The fish are not for the benefit of the local population, but are taken away by far distant fishing nations. Many of us in Indonesia feel that this kind of freedom of the seas is not to our liking. In the 20th and the beginning of the 21st century, more and more states are claiming more jurisdiction and territorial sovereignty over the seas around their coastlines. One is of course the birth of the 12-mile principle around the early beginning of the century, followed by drastic measures by some countries in South America who even claim 200-mile territorial seas. Now it is not difficult to understand that this extensive claim would affect the freedom of navigation because they would be subjected to control by the coastal State. Therefore toward the end of the 1950s an attempt was made to find a single breadth of the territorial sea to exercise territorial sovereignty, but that effort failed. The Canadian compromise proposal of a six-mile territorial sea plus a six-mile fishing zone was defeated by only one vote. It has never become a rule of international law. In retrospect that may have been a good situation because if it had been adopted in 1958, a six-mile territorial zone and a six-mile fishing zone, then perhaps we would have a bigger fight with 66
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Tommy Koh. He would probably consider me not only a radical, but perhaps a revolutionary. That 1958 attempt failed, and failed again in 1960. Since 1960 we have been very aware of maritime issues and maritime sovereignty. I will mention three or four of the most important issues. The first one is that after 1958 more and more new states have emerged—new developing states particularly in Africa—as more independent states came out of former French and British territories. These new states have thinking similar to Indonesia’s that whatever freedom of the seas principle dominated the world in earlier times, they have no desire for it now. They feel these earlier principles are simply not in their interest. They find that benefits, such as Exclusive Economic Zones, are not there. Economic benefits are taken away by distant countries. So these new countries struggle to find out how they can take advantage of the resources of the sea. The concept of economic zones can be problematic. Our friend from Kenya, Frank Njenga, for instance, talks about this, and the Tanzanians—they say that the sea around us must bring benefits to our whole people rather than to distant countries. They are intermediate between the three-mile claim and the 200-mile claims of territorial seas by suggesting that they are more interested in the economic resources of the sea. Indonesia could potentially join up our views with such countries as we struggle for recognition of our rights over the resources of the archipelagic waters of Indonesia. The second issue is much more related to us: the birth of the giant and super tankers especially after the onset of Middle East crises, etc. Consequently there is a lot of danger to the marine environment. This was accentuated by the problem of pollution caused by the Torrey Canyon incident in 1967 in the Strait of Dover that polluted mostly the coast of France. We wondered at the time what would happen to the Strait of 67
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Malacca if something like the Torrey Canyon incident happened here? What would happen to the Strait of Malacca, which stretches from northern Aceh to central Sumatra? People are beginning to think that something must be done about this. At the time it raised an awareness of the vulnerability of the Strait of Malacca as a result of this giant oil tanker incident in the Dover Strait. Later on the risks expanded to not just oil, but to other hazardous and noxious substances being transported by these vessels transiting the Strait. The third one is the new development in science and technology. We were at the time not fully aware of the possible impact of new technology with regard to the seabed mining. We heard this morning from her Excellency of the United States an address on the issue of seabed mining. At the time we were thinking “who owns the seabed mining, who owns those seabed minerals three or four thousand meters under the sea, way out in the middle of the oceans?” At that time the maritime powers, those who had the technology and science on seabed resources, said: “it belongs to anyone who can take it.” In Indonesia we began to think that if that is the case, it would result in new colonialism in the seabed area. In other words, the seabed resources will belong to those who are capable of taking it, and they can do anything they like with it. What would be the role of the majority of developing countries with no science, no technology, no capacity at the time? Will they just watch while others prospect in the future? As a result of this thinking, a new concept was born—the concept of the “common heritage of mankind”—that these resources belong to mankind as a whole. That was the origin of the notion of the international seabed area, that it is not only to be used by those countries who have the science, technology, capital, and capacity to deal with those resources, but the common heritage as a whole shall also be taken into account. Consequently, some countries later on have begun to develop a continental shelf regime. Remember in 1958 the continental 68
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shelf was limited to 200 meters isobath and then to the limits of the possibility of “exploitability”, which was not defined in the 1958 convention. Therefore, coastal countries with a very large margin like Australia, the United States, Canada, and some others like New Zealand and Norway, were beginning to say the seabed area beyond twelve miles belongs to them not just to a depth of 200 meters but out to the “outer edge of the continental margin”. Where is the continental margin? They say that the margin is the “natural prolongation of their land territory”. Where does it end? They say it goes as long as the land territory extends to the bottom of the ocean, but still, where does it end? We’ve struggled with the definition for some time; it has dominated the negotiations for quite some time. In the end, it will have an effect on the freedom of navigation as well. There are many other factors as well when dealing with this issue, but I will leave it here for now. The end result is that the Law of the Sea Convention formulated and agreed on a myriad of maritime zones. I counted at least nine maritime zones beginning from internal waters, territorial sea, archipelagic waters, straits used for international navigation, Exclusive Economic Zones, continental shelf, high seas, international seabed area, contiguous zone and so forth. I am excluding “security zones” and “defense identification zones” which were not regulated in the Convention, although some states do practice defense identification zones like the United States, Canada, and I think North Korea also has a defense identification zone. But these zones area not enshrined in the Convention. In my mind it would be very difficult now to say that the freedom of the sea is still as before. I would even say that the freedom of the sea has become a highly regulated sea. From all sides and all kinds of views there is highly regulated use. For example, even in the EEZ, where freedom of navigation and overflight are recognized, Tommy Koh was just saying that the EEZ under the Convention is not generally regarded as 69
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high seas, and even the exercise of the freedom of navigation in the Convention shall be for “peaceful purposes” and shall be exercised with “due regard” to the rights and duties of the coastal State and shall comply with the LOS regulations adopted by the coastal State in accordance with the Convention, etc. It is not as free as it was anymore. There is no more freedom of navigation or freedom of the seas in the archipelagic waters. We even struggled to define what should be the regime of navigation in the archipelagic waters. We came up with two definitions. One is innocent passage in all parts of the archipelagic waters, the second one is archipelagic sea lanes passage in specific areas normally used for international navigation. So there are two regimes. The Convention clearly defined what innocent passage is, what the state can and cannot do, what a passing vessel can and cannot do. It was very clearly defined in the Convention. Now Indonesia, on the basis of the Convention, has formally regulated innocent passage in Government Regulation #36 of 2002 which has been made public. “Archipelagic sea lane passage” is a new thing. There is a specific article in the Convention. What is archipelagic sea lane passage? Is it the same as the transit passage through straits used for international navigation? Does it have any freedom of navigation or not, and so forth? We had differing opinions at that time. In our minds, there are differences and therefore we have formulated it in different words. For instance, you use the word “unimpeded passage” for transit passage but in the archipelagic sea lane context we use the word “unobstructed.” Whatever the difference is up to us to interpret—but we use a different word in order to denote a different nature although the right of transit in archipelagic sea lanes is recognized with specific limitations, and so forth. How do we formulate the sea lanes? How do we agree on the sea lanes? The Convention made a stipulation on this. Indonesia has been painstakingly careful in its implementation and conducted intensive 70
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consultations in order to establish this with the maritime powers, including with IMO, the International Maritime Organization in London. We consulted the United States, Australia, United Kingdom, Japan and others. We have come to an agreement on three north-south sea lanes. We have also agreed on some rules. I should refer to what we call the “19 rules” of navigation through the sea lanes. This was adopted by the IMO. We later enacted legislation, adopting Government Regulation #37 of 2002 as a result of those consultations with IMO and the maritime powers. There is a remaining issue however. An east-west lane has not been established. There are three north-south lanes through the Indonesian archipelagic waters. First through the Indonesian part of the Natuna Sea, Strait of Karimata, Java Sea and Strait of Sunda; second, through the Strait of Macassar and Strait of Lombok; and third, sea lanes in the eastern part of Indonesia through the Moluccas Sea, Banda Sea with all its branches to the Arafura Sea, Timor Sea, and Sawu Sea to the Indian Ocean. The next limitation concerns the transit through the “straits used for international navigation”. The transit right recognized in the Convention is solely for the purpose of “continuous and expeditious transit” of the straits. What does this mean and how does it work in practice? The three coastal countries, Indonesia, Malaysia, and Singapore have been dealing with this problem for the last 35 years or so. I remember when I was here in Singapore in 1972, Tommy Koh and I were working on how this problem should be dealt with, namely the issue of transit passage through the Straits of Malacca and Singapore. We had agreed in 1971 that for the purpose of safety of navigation and environmental protection, the Straits of Malacca and Singapore are regarded as one strait. That was one basic understanding. That is why we’ve been cooperating for years, not for the purpose of territorial sovereignty, not for the purpose of resource exploitation, but only for the purposes of promotion of safety of navigation and environmental 71
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protection. Tommy has been explaining this. The latest meeting we had was in Singapore some time ago in which we agreed on a cooperative program and we are looking forward to the implementation of the agreed programs and of course cooperation by other countries that are using the strait. On the high seas, Tommy has been telling us already that there are a couple of problems. In my mind, the Convention already put up a lot of rules in international law. For instance, on fisheries, some people are arguing for the freedom of fishing on the high seas. Yes, it was recognized in Article 87, but is also mentioned in some articles that some high sea highly migratory species and some species of straddling stocks shall be managed by some kind of cooperative relationship through regional arrangements between the countries concerned. So, in fact, in the Indian Ocean, in the South Indian Ocean, in the Pacific Ocean, we have already several regional fisheries management in place. So, from my point of view, the implementation of the article of the Convention dealing with the fisheries issue is no longer as free as before. They are highly managed and regulated now. One of the new things is that fisheries management on the high seas now seems to be admitting the principle of “board and inspection,” and even the possibility of arrest that was enshrined in the 1995 Convention on the Fish Stocks Agreement. It was also enshrined in the Honolulu Agreement of 2000 with regard to the management of the western and central Pacific fisheries by the Western and Central Pacific Fisheries Commission (WCPFC). So there, the sovereign right of the state in the EEZ is sort of being connected to the high seas and EEZ with regard to fisheries in regional fisheries management areas. People are not free anymore to take the fish on the high seas in that “Convention area” as they like. This is a new precedent, but perhaps it is a very useful one that “board and inspection” and even the possibility of arrest are allowed now 72
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on the high seas for violating regional fisheries management arrangements and conservation measures. Another freedom has also been affected. Freedom to lay submarine cables and pipelines, for instance, are subjected already to the regime of the continental shelf that somehow has to consider the sovereign rights of the coastal State on its continental shelf. Also the freedom of navigation in the EEZ (Economic Exclusive Zone) is also becoming a major issue. In the past we have not paid enough attention to the question of what is the meaning of the freedom of navigation and overflight in and above the EEZ. We were brought to the realization of the problem when there was an EP-3 incident in 2001, a few months before the attacks of 9/11. There was an American military aircraft, supposedly in a military intelligence operation, south of Hainan and outside of 12 miles from the coast of Hainan, which was confronted by the Chinese military air force that resulted in an accident. Consequently, we wondered, what would be the rules for such an incident? Then there were many incidents after that, for example in the sea regions of Japan, North Korea, and the Mediterranean. As a result of these incidents, a group of law of the sea experts took the informal initiative, supported by the Japanese Ocean Policy Research Foundation and Nippon Foundation, to organize meetings of concerned law of the sea experts. We discussed what rules should apply to these types of incidents and if there are no rules, what should be done, what should be the guidelines. We organized five meetings—in Bali, Tokyo, Shanghai, Honolulu, and another in Tokyo. A lot of people participated from the region, including experts from Indonesia, South Korea, Japan, the US, Australia, China, India, Russia, even a judge from the International Tribunal of the Law of the Sea. We discussed the issues and in the end, in 2005, we were able to formulate some basic “Guidelines for Navigation and Overflight in the Exclusive Economic Zone” that could 73
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be recommended to governments concerning what should be done about the military and intelligence gathering activities in the EEZ (now available online at http://www.sof.or.jp/en/report/pdf/200509_20051205_e.pdf). My understanding is that the guidelines have been circulated by the Japanese experts to other governments as well as to the United Nations for consideration. I’m not sure what is currently going on with the guidelines. Some countries may not like them, but of course some countries support them. In a way, the regimes of the freedom of navigation and overflight in the EEZ may still be problems in the future unless we can come up with a basic agreement on what the guidelines should be and how to implement them. Finally, in recent years I’ve noticed some challenges that may or may not come to the freedom of navigation. One is of course, after the events of 9/11, the American suggestion (and Russian too) of the Proliferation Security Initiative (PSI). We have debated this back and forth. Is PSI a challenge to the freedom of the seas and freedom of navigation or not? From the point of view of the Americans it is not, but from the point of view of others it is or might be. Countries in our region are divided on this one. Japan, Singapore, Australia, and I think Thailand are supportive of it. But South Korea, China, Vietnam, Malaysia, India, and Indonesia are not so sure of it. A lot of things need to be done to see whether the PSI is a challenge or not to the freedom of navigation. In conclusion, the old concept of the freedom of navigation has now become obsolete. It has become highly regulated in all maritime zones established by the 1982 UNCLOS, including on the high seas itself, particularly in regard to fishing and environmental issues. The challenges to the old concept of freedom of navigation come from various sources, particularly from the countries that would like to protect their security or their own maritime zones and the resources extending from their maritime jurisdiction and territory. It may also be challenged by other countries that 74
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are concerned with the proliferation of the weapons of mass destruction (WMD). In the Law of the Sea Convention we recognized the ideas of the “economists”, “marginists”, and “territorialists”. The “economists” pressed for Exclusive Economic Zones, the “marginists” pressed for large continental margins, while the “territorialists” wanted large territorial seas. UNCLOS has given us a lot of guidance, but some important issues remain with regard to the issue of the freedom of navigation. Thank you.
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Freedom of Navigation and Navies RADM Nora W. Tyson1 Abstract Today’s navies are faced with a number of challenges in today’s maritime environment. These challenges include transnational criminal threats, environmental considerations, and ever-changing technologies in a dynamic political landscape. Freedom of navigation is essential for all navies to maneuver efficiently through these real challenges and threats. The sea is a vast maneuver space where the presence of maritime forces can be adjusted as conditions dictate to enable flexible approaches to escalation, de-escalation and deterrence of conflicts. Freedom of navigation allows coordinated force commanders a range of response options in their missions. The delicate balance between global mobility and coastal State sovereignty is well recognized. Tipping the scale one direction has rippling effects on commerce, global security, populations throughout the world, and diplomatic relations. While sovereignty must always be respected, it should not overshadow the equal importance of the inherent freedoms of the sea enjoyed by all nations. Freedom of navigation does not threaten internationally recognized sovereignty claims, but validates those rightfully recognized by the international community. Military operations use freedom of navigation to deter the ambitions of regional aggressors, assure timely humanitarian aid and disaster relief, provide assurance to friends and allies, and protect our citizens. Freedom of navigation is essential for navies across the world to sustain global order.
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US Navy. The admiral’s very busy schedule unfortunately did not permit her to submit a written paper for this volume. Admiral Tyson’s PowerPoint presentation may be viewed on the accompanying CD.
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Freedom of Navigation: New Challenges Rüdiger Wolfrum1 Abstract
Freedom of navigation is one of the oldest and most recognized principles in the legal regime governing ocean space. The UN Convention on the Law of the Sea makes ample reference thereto such as in Article 36 (freedom of navigation in straits used for international navigation), Article 38 (transit passage), Article 58 (freedom of navigation in the Exclusive Economic Zone), Article 78 and Article 87 (high seas). Nevertheless, this right which is qualified as a right of states is being challenged for several reasons and on the basis of different sources. Coastal States have jurisdiction to adopt laws and regulations relating to navigational safety and ship source pollution by foreign ships in their Exclusive Economic Zone. They also have powers in this respect concerning their territorial sea and their archipelagic waters although ships under a foreign flag enjoy the right of innocent passage in these maritime areas. Special regimes apply, though, for major international shipping routes through straits used for international navigation even if such straits are within the territorial sea of the coastal State. Further, the IMO has the authority to impose conditions on ships exercising the right of transit passage through straits used for international navigation or the right of archipelagic sea lanes passage through archipelagic States. The IMO provides for the establishment of sea lanes and traffic separation schemes as routing measures under the International Convention for the Safety of Life at Sea. Rule 10 of the Convention on the 1
Director at the Max Planck Institute for Comparative Public Law and International Law and President of the International Tribunal for the Law of the Sea
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Rüdiger Wolfrum International Regulations for Preventing Collisions at Sea provides for rules concerning the movement of ships in or near traffic separation schemes adopted by the IMO. Finally, the IMO has developed the system of Particularly Sensitive Sea Areas. The presentation will discuss whether measures by coastal States or international organizations taken together are likely to spoil the balance between freedom of navigation and environmental and security interests of coastal States as well as the international community. I. Introduction Freedom of navigation is one of the oldest and most recognized principles in the legal regime governing ocean space. It may safely be said that, since it was enshrined in the chapter ‘De mare liberum’ (‘On the freedom of the sea’) in the treatise—actually it was a legal opinion—of Hugo Grotius ‘De iure praedae’ of 1609, this principle constitutes one of the pillars of the law of the sea and was at the origins of modern international law.2 It is still worth re-emphasizing the arguments Grotius advanced in defence of this principle. Amongst other things, he stated that the sea was the fundamental avenue for communication and cooperation among states and therefore such avenue should be free and not controlled by one state—in his time, this would have been Spain or Portugal. He further argued that a resource or an area which could be used by all without deterioration or depletion should not be monopolized by one state but should be open to all. And finally he argued that a state could only claim an area which it was able to administer and control effectively, emphasizing that no state could control the sea permanently and effectively. This latter argument may not be as convincing today as it was
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For the principle of freedom of navigation, see: M.A. Becker, The shifting public order of the oceans: freedom of navigation and the interdiction of ships at sea, Harvard
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Freedom of Navigation: New Challenges at the beginning of the 17th century. Still, it is worth remembering. In particular, John Selden argued against the freedom of the sea as a principle in his treatise ‘De mare clausum’ of 1635 but in fact he meant the freedom to fish, also proclaimed by Hugo Grotius, rather than the freedom of navigation. The United Nations Convention on the Law of the Sea (hereinafter “the Convention”)3 makes ample reference to the freedom of navigation, for example in Article 36 (freedom of navigation in straits used for international navigation), Article 58 (freedom of navigation in the Exclusive Economic Zone), Article 78 and Article 87 (high seas). In this context, the right of innocent passage in the territorial sea and through archipelagic waters as specified in Articles 17 to 26 and 52 of the Convention should also be mentioned, as well as the freedom of transit passage in straits used for international navigation (Article 38 of the Convention). The freedoms in these Articles mean the same—freedom of movement of ships. What distinguishes them is the different influence coastal States may exercise on the freedom of movement. It is impossible to go through all the challenges faced by or limitations placed on the freedom of movement of ships. This presentation will concentrate on two, namely environmental considerations and attempts to strengthen security at sea, for example against the threat of terrorism and the proliferation of weapons of mass destruction. What makes implementation of measures restricting the freedom of movement so problematic is that they are undertaken multilaterally, by involving competent international organizations, as well as unilaterally or bilaterally. Such measures are not easy to harmonize since they have different legal bases. Furthermore, it is their cumulative impact on the freedom of navigation/right of innocent passage/transit passage which should be cause International Law Journal 46/1 (2005), pp. 131-230; see also: C.-G. Hasselmann, Die Freiheit der Handelsschiffahrt: Eine Analyse der UN-Seerechtskonvention, 1987. 3 United Nations Convention on the Law of the Sea, December 10, 1982; ILM 21 (1982), pp. 1261-1354.
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Rüdiger Wolfrum for concern as regards the legal framework established by the United Nations Convention on the Law of the Sea. II. The distribution of jurisdictional powers concerning movements of ships under the United Nations Convention on the Law of the Sea The United Nations Convention on the Law of the Sea establishes a legal regime which is based on maritime zones. Coastal States’ competences decrease, generally speaking, as the distance from the coast increases and, additionally, they are less comprehensive as regards navigation than as regards the exploration or exploitation of the natural resources of the sea. In addition to this territorial or rather zone-based jurisdiction, coastal States may exercise jurisdiction over foreign merchant ships on the basis of international agreements and/or established international standards and practices. Article 218 of the Convention, for example, accords to port States jurisdictional power over vessels which is not rooted in the territorial principle. Coastal States have jurisdiction to adopt laws and regulations relating to navigational safety and vessel-source pollution from foreign ships in their Exclusive Economic Zone (legislative jurisdiction)—where vessels enjoy the freedom of navigation—and they have far-reaching enforcement jurisdiction. The jurisdictional competences—legislative as well as enforcement jurisdiction—of coastal States are broader as concerns their territorial sea and archipelagic waters, although ships under a foreign flag enjoy the right of innocent passage in these maritime areas. As far as national legislation in the territorial sea is concerned, states can roughly be divided into four categories. The first category includes those States which have closely followed Article 21, paragraph 1, of the Convention which allows coastal States to adopt regulations relating to innocent passage. The second category comprises those States claiming prescriptive competences over a series of matters that deviate from Article 21, paragraph 1, of the Convention. The third group addresses their claims only in a general way by stressing that foreign vessels shall observe promulgated laws and regulations. The last category consists of those States which either have not mentioned legislative jurisdiction in their
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Freedom of Navigation: New Challenges legislation on the territorial sea or have not as yet enacted any special laws and regulations. Special regimes apply, however, for major international shipping routes through straits used for international navigation even if such straits are within the territorial sea of the coastal State. The transit passage regime implies that navigation is not governed by the regime concerning innocent passage but by a particular regime which is more liberal as regards navigation. The transit passage regime has been described as ranging between the freedom of navigation and innocent passage.4 Under the transit passage regime, freedom of navigation and the right of overflight exist for vessels and aircraft operating in their normal mode. While the coastal States’ jurisdictional powers are limited by the Convention, they may still impose controls on navigation. III. Measures taken to enhance the safety of navigation and to protect the marine environment (a) Measures taken by coastal States under the Convention The ambiguity prevailing at the time concerning coastal States’ legislative competences as regards innocent passage was meant to be clarified by Article 21 of the Convention. This provision tries to establish a delicate balance between the interests of international navigation and the right of coastal States to regulate the passage of foreign ships in the territorial sea. Only a handful of actions are qualified as not being protected under the notion of innocent passage in Article 19, paragraph 2, of the Convention, e.g., any act of wilful and serious pollution contrary to the Convention (Article 19, paragraph 2(h)). The coastal State may regulate innocent passage in respect of a wide range of matters under Article 21, paragraph 1, of the Convention, in conformity with the Convention and other rules of international law. Paragraphs 1(a) and 1(b) of Article 21 in particular refer to the safety of navigation, the regulation of maritime traffic, and the protection of navigational aids, while paragraph 1(f) relates to the preservation of the marine environment and the prevention, reduction and control of pollution thereof. Paragraph 1(g) 4
E.J. Molenaar, Coastal State Jurisdiction over Vessel-Source Pollution, 1998, p. 287.
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Rüdiger Wolfrum refers to Article 245 of the Convention, which accords to coastal States an exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea, and paragraph 1(h) refers to custom, fiscal, immigration and sanitary matters. In short, Article 19 of the Convention excludes certain actions from the protection accorded by the notion of innocent passage, whereas Article 21 of the Convention opens the possibility for coastal States to limit further the freedom of navigation. However, this option is limited. According to Article 21, paragraph 2, of the Convention, national laws and regulations shall not apply to the design, construction, manning or equipment of foreign ships unless they give effect to generally accepted international rules and standards. This is a significant restriction concerning the prescriptive power of coastal States. It reflects a basic concept incorporated throughout the Convention, namely to protect the integrity of global maritime navigation and to minimize interference from coastal State jurisdiction. As already indicated, while the coastal States’ jurisdictional powers concerning navigation through international straits are limited by the Convention, coastal States may still impose controls on such navigation. Article 42 of the Convention prescribes the limits for such coastal State jurisdiction. States bordering international straits may adopt laws and regulations relating to transit passage in respect of the safety of navigation, the regulation of maritime traffic and the prevention, reduction and control of pollution (Article 42, paragraphs 1(a) and (b), of the Convention). According to Article 41 of the Convention, States bordering straits may prescribe sea lanes and traffic separation schemes, provided they conform to international regulations and are submitted to the International Maritime Organization (IMO) for adoption (Article 41, paragraphs 3 and 4, of the Convention). The rules concerning passage through archipelagic sea lanes are similar but not completely identical. But here again the involvement of the IMO is required (Article 53, paragraph 9, of the Convention). (b) Measures which may be taken by coastal States on the basis of specific international instruments International agreements, in many cases established under the auspices of the IMO, mandate coastal States, including States bordering 84
Freedom of Navigation: New Challenges international straits, to adopt further measures for the management and control of international navigation. Such measures may be taken unilaterally or in conjunction with the IMO. This system is still in the stage of development and some uncertainty exists in this respect. Among many international conventions having a bearing on coastal State jurisdiction over foreign shipping in the territorial sea, four contain provisions that allow for the adoption of rules and standards applicable to foreign merchant ships. These include the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (COLREG)5 which provides for the possibility of traffic separation schemes. The other international instruments are: the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78),6 the International Convention for the Safety of Life at Sea, 1974 (SOLAS),7 and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989.8 MARPOL obliges coastal States to enforce the ensuing obligations by prohibiting infractions and punishing offenders. However, sanctions against violations may not include hampering innocent passage unless otherwise permitted under international law.9 Ships’ routing is governed by Regulation V/10 of the Annex to SOLAS, which was incorporated in 1994. It is clear from the text that, on the one hand, the regulation tries to emphasize the role of the IMO in the establishment of mandatory ships’ routing and, on the other, it recognizes, albeit indirectly, that coastal States may also establish such routing systems alone. This is all the more relevant when the systems are located within the territorial sea. States are not under an obligation to submit the 5
Convention on the International Regulations for Preventing Collisions at Sea (COLREG), October 20, 1972; BGBl. 1976 II, p. 1017. 6 International Convention for the Prevention of Pollution from Ships (MARPOL), November 2, 1973, as amended by the Protocol June 1, 1978; ILM 12 (1973), pp. 13191444; ILM 17 (1978), p. 246 et seq. 7 International Convention for the Safety of Life at Sea (SOLAS), November 1, 1974; UNTS Vol. 1184 (1980), pp. 2-453. 8 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, March 22, 1989; ILM 28 (1989), pp. 657 et seq. 9 See article 24, paragraph 1, of the Convention.
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Rüdiger Wolfrum establishment of such systems in the territorial sea to the IMO for adoption but they may do so. This is in line with Article 22 of the Convention. Although the involvement of the IMO is not mandatory, its harmonizing role should not be underestimated. Regulation 11 of the Annex to SOLAS focuses on the subject of mandatory ship-reporting systems. However, coastal States are also entitled to establish such reporting systems unilaterally in the territorial sea provided this does not result in undue interference with innocent passage of foreign ships. The Basel Convention, which entered into force in 1992, is a cornerstone at the international level in the regulation of transboundary movements of hazardous wastes and their disposal. In addition, coastal States are entitled to introduce appropriate national legislation to prevent and punish illegal traffic of such waste. Coastal States have absolute power in defining hazardous wastes. (c) Other measures initiated by the IMO Apart from measures provided for in international conventions, certain restrictions upon the freedom of navigation may be based upon measures taken by the IMO. Through Annex 2 to IMO Resolution A.927(22), the IMO may designate Particularly Sensitive Sea Areas (PSSAs). These are areas which need special protection through the IMO owing to their recognized ecological, socio-economic or scientific significance and because they may be vulnerable to damage as a result of international shipping activities. The legal basis of such power of the IMO may be sought in Articles 192 and 194 of the Convention as well as in Article 211, paragraph 1, thereof. It is to be noted that the designation of a Particularly Sensitive Sea Area as such has no binding effect. However, the PSSA Guidelines10 require the adoption by the IMO of “associated protective measures”. The type of measures that may be adopted is left to the IMO. To date the IMO has prescribed ships’ routing measures and ships’ reporting systems under SOLAS, under MARPOL and a range of other 10
See: International Maritime Organization/Marine Environment Protection Committee, Particular Sensitive Sea Areas, Compilation of official guidance documents and PSSAs adopted since 1990, 2007 edition.
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Freedom of Navigation: New Challenges measures adopted through its own resolutions. Insofar as such measures are based upon existing international agreements, the resulting infringements upon freedom of navigation may be considered justified.11 But the view is also held that whatever is decided by the IMO is to be considered as conforming to the Convention.12 In this context the introduction of a mandatory pilotage system has become a controversial issue. Denmark, for example, is seeking the introduction of mandatory pilotage in parts of the Baltic Sea. In its application Denmark has stated: Denmark is aware of the fact that introducing mandatory pilotage directly on ships transiting international waters is not possible. However, Denmark holds the view that it is possible and not in conflict with international law to ensure the use of pilots for certain types of vessels in certain areas if all the Baltic Sea States introduce the proper and similar provisions in their national legislation aimed at national shippers and recipients of special ships carrying certain cargoes.13 Australia and Papua New Guinea attempted to have a mandatory pilotage system introduced in the Torres Strait in connection with the designation of that strait as a Particularly Sensitive Sea Area by the IMO. 11
Regarding PSSAs see: J. Roberts / M. Tsamenyi / T. Workman / L. Johnson, The Western European PSSA Proposal: a “politically sensitive sea area”, Marine Policy 29 (2005), pp. 431-440; K.M. 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, Proceedings of the Expert Workshop held at the International Academy for Nature Conservation, BfN-Skripten 43, German Federal Agency for Nature Conservation, 2001, pp. 123-131. 12 See DOALOS LEG 87/16/1WP.3. 13 See page 3, Note by Denmark “Mandatory Pilotage in Certain Areas of the Baltic Sea” of 11 May 2001; Helsinki Commission – Baltic Marine Environment Commission, Expert Group to prepare for the Extraordinary HELCOM Ministerial Meeting, First Meeting Copenhagen, Denmark, 21 May 2001; HELCOM EXTRA PREP 1/2001, Document No. 7.
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Rüdiger Wolfrum The issue seems to have been intensively debated within the IMO and it is safe to say that the majority of States seem to have been reluctant to concede to the IMO the right to introduce a mandatory pilotage system in an international strait. This issue is certainly open for further legal reasoning.14 These are not the only examples where states may be seen to attempt to limit the freedom of navigation, either through legislative or enforcement measures beyond that, which is foreseen in Articles 211 and 220 of the Convention. IV. Measures for the protection of security at sea (a) Measures taken on the basis of multilateral agreements The 2005 Protocol15 to the 1988 Rome Convention (SUA Convention)16 is one of those recent legal instruments which may, in the future, provide a basis for limiting the freedom of navigation. The Protocol introduces a new article, Article 8bis, concerning the procedures to be followed if a State Party desires to board a ship flying the flag of another State Party, outside the territorial sea of any state, when the requesting Party has reasonable grounds to suspect that the ship or a person on board the ship is, has been, or is about to be, involved in the commission of an offence under the Convention. The authorization and
14
For details see: R.C. Beckman, PSSAs and Transit Passage – Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS, Ocean Development and International Law 38 (2007), pp. 325-357. 15 Protocol of 2005 to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, October 14, 2005. This international agreement, which supplements the Rome Convention, was developed in direct response to the events of 11 September 2001. For its legislative history see: C. Tiribelli, The time to update the 1988 Rome Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Sri Lanka Journal of International Law 18 (2006), pp. 149-166. 16 IMO Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation and Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms on the Continental Shelf, March 13, 1988, entered into force on March 1, 1992; IMO Doc SUA/CONF/15; ILM 27 (1988), pp. 672-684.
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Freedom of Navigation: New Challenges cooperation of the flag State is required before such boarding can take place.17 Such authorization may be made in general or on an ad hoc basis. (b) Measures taken on the basis of bilateral arrangements The multilaterally mandated measures against the maritime transport of weapons of mass destruction are being supplemented by measures having a bilateral basis, namely the Proliferation Security Initiative (PSI). It is the objective of the PSI to interdict the “transfer or transport of weapons of mass destruction, their delivery systems, and related materials to and from states and non-state actors of proliferation concern”.18 Most problematic is subparagraph 4.d of the PSI Statement of Interdiction Principles,19 which calls on PSI participants: To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, or contiguous zones (when declared) vessels that are reasonably suspected or carrying such cargoes to or from states or non-state actors of proliferation concern and to seize such cargoes that are identified; and (2) to enforce conditions on vessels entering or leaving their ports, internal waters or territorial seas that are reasonably suspected of carrying such cargoes, 17
Article 8bis paragraph 4(b) of the 2005 Protocol. See, regarding this initiative: M. Byers, Policing the High Seas: The Proliferation Security Initiative, AJIL 98 (2004), pp. 526 et seq.; C. Schaller, Die Unterbindung des Seetransports von Massenvernichtungswaffen, SWP-Studie, 2004; W. Heintschel von Heinegg, The Proliferation Security Initiative – Security vs. Freedom of Navigation, Israel Yearbook on Human Rights vol. 35 (2005), pp. 181 et seq.; M. Malirsch / F. Prill, The Proliferation Security Initiative and the 2005 Protocol to the SUA Convention, ZaöRV 67 (2007), pp. 229-240; J.I. Garvey, The International Institutional Imperative for Countering the Spread of Weapons of Mass Destruction: Assessing the Proliferation Security Initiative, Journal of Conflict & Security Law 10 (2005), pp. 125-147; S.E. Logan, The Proliferation Security Initiative: Navigating the Legal Challenges, Journal of Transnational Law & Policy 14 (2004-2005), pp. 253-274. 19 Available at http://www.whitehouse.gov/news/releases/2003/09/20030904-11.html (last visit in April 2008). 18
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Rüdiger Wolfrum such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry. Intercepting ships suspected of carrying weapons of mass destruction without the consent of the flag State raises the question of the compatibility of such action with the law of the sea, at least as a matter of principle. Under the Convention, the competence to intercept a vessel depends on where such action is undertaken: in the internal waters or territorial sea of a State; in the Exclusive Economic Zone; or on the high seas. As long as the interception of a vessel under a flag different from the intercepting State takes place in the internal waters of and by the coastal State concerned, such act cannot be contested from the point of view of the law of the sea. The situation is more complicated in the territorial sea. According to Article 25 of the Convention, coastal States may take action only against passage which is not innocent. The provisions of the Convention concerning innocent passage are to be considered customary international law. According to Article 19, paragraph 1, of the Convention, passage is not innocent if it is “prejudicial to the peace, good order or security of the coastal State”; the activities which shall be considered to be prejudicial to the peace, good order or security are listed in Article 19, paragraph 2, of the Convention. Taken literally, Article 19 of the Convention excludes the coastal State’s limiting the exercise of passage with the view to protect the interest of the community of States; it may act in its own interests only. Although Article 21 of the Convention gives the coastal State the authority to adopt laws and regulations in accordance with international law, this competence is limited. None of the issues which may be regulated on that basis would cover the mere transit of weapons of mass destruction. It should be noted in this context that the transport of nuclear substances is, according to Article 23 of the Convention, not counter to the principle of innocent passage.20 Finally, Article 27 of the Convention cannot, at least not in itself, serve as a basis for controlling ships in transit. 20
It is astonishing that this article is rarely referred to and that it is rarely stated that this is an article insisted upon by the United States.
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Freedom of Navigation: New Challenges Here again, either the coastal State’s action has to be taken in defence of its own interests (Article 27, paragraph 1(a) and (b)) or it has to be taken at the request of the master of the ship or of the flag State or for suppression of illicit traffic in narcotic drugs or psychotropic substances (Article 27, paragraph 1(c) and (d)). It has been argued that coastal States may declare the transport of weapons of mass destruction and the relevant software a crime under their national criminal law and take enforcement action on the basis of Article 27 of the Convention.21 Those advocating this position would have to argue that the crime had been committed on board the ship passing through the territorial sea and that this crime is of a kind to disturb the peace of the country or the good order of the territorial sea,22 or that the consequences of the crime extend to the coastal State.23 This interpretation constitutes a problematic circumvention of the inherent limits of Article 27 of the Convention. On the same basis, the transport of nuclear waste or the transport of dangerous goods could be prohibited in its entirety. (c) The involvement of the Security Council It has been argued that passage can be considered to be not innocent if the conditions of S/RES/1540 (2004) of 28 April 2004 are met.24 It has further been argued that states may, on the basis of S/RES/1540, enact national legislation declaring the transport of weapons of mass destruction through their territorial sea a criminal offence which would allow the coastal State concerned to take action, as prescribed in Article 27, paragraph 1, of the Convention. Certainly S/RES/1540 provides that the proliferation of weapons of mass destruction constitutes a threat to international peace. Even if it is accepted that the Security Council may exercise such quasi-legislative power, this does not render the transit of such material automatically non-innocent.25 21
W. Heintschel von Heinegg (see note 18) at p. 193; S.E. Logan (see note 18) at p. 263. Article 27 paragraph 1(b) of the Convention. 23 Article 27 paragraph 1(a) of the Convention. 24 W. Heintschel von Heinegg (see note 18), at p. 194. 25 See the definition in Article 19 of the Convention. 22
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Rüdiger Wolfrum The legal situation in respect of international straits raises particular problems, given the enhanced status of international navigation. Whether ships carrying weapons of mass destruction which are not targeted against a particular state may be interdicted on the high seas by warships of another state without the consent of the flag State concerned is a matter of controversy.26 The exclusive jurisdictional relationship between a flag State and one of its vessels on the high seas is well-rooted in customary international law. In the Lotus case, the Permanent Court of International Justice held that “vessels on the high seas are subject to no authority except that of the State whose flag they fly”.27 Article 92 of the Convention codifies this principle. Several exceptions are provided for: a waiver by the flag State if the vessel is without nationality, or if the vessel is engaged in piracy, slavery or unauthorized broadcasting.28 Accordingly, there is a strict limit against boarding and inspection of a vessel under a flag different from that of the investigating vessel. As already stated, Security Council Resolution S/RES/1540 (2004) affirms that “proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security” and requires, inter alia, all states to “adopt and enforce appropriate effective laws which prohibit any non-State actor to […] transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.”29 The central question which remains is whether every state may take relevant countermeasures. Measures taken in the face of the threat of terrorism may result in a temporary limitation of the freedom of navigation. Several Security Council resolutions, in particular S/RES/1373 (2001), form the necessary international law basis for maritime interception operations undertaken by various naval units in the Indian Ocean and off the coast of Somalia.30 26
See W. Heintschel von Heinegg (see note 18), at p. 194; S. Kaye, The Proliferation Security Initiative in the Maritime Domain, Israel Yearbook on Human Rights 35 (2005), pp. 205-229, at p. 223. 27 PCIJ Series A 1927 No. 9 at p. 25. 28 See article 110 of the Convention. 29 Preamble and paragraph 2 of S/RES/1540. 30 See S/Res. 1816 (2008) which, under certain restrictions, opens temporarily the territorial waters of Somalia to enforcement actions by foreign navies against pirates and acts of terrorism.
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Freedom of Navigation: New Challenges Flag States may not object to ships under their flags being investigated by warships of other States, as long as the measures taken are proportionate. These measures mandated multilaterally, namely by the Security Council, are to a certain extent supplemented by precautionary measures taken by port authorities in an attempt to provide stricter control of ships’ cargoes. The container security initiative set up by the United States of America attempts to extend the security zone outwards by shifting security and screening activities to the border of the exporting country.31 On 19 September 2002, Singapore became the first country to sign an agreement with the United States allowing US customs inspectors to ensure that cargo shipping containers bound for that country are not used for terrorist attacks. Several other port authorities have agreed to join the US container safety programme and more have joined. Such an initiative is to be considered in the context of freedom of navigation too, since container ships which have not undergone this procedure face repercussions in US ports. V. Tentative conclusions As indicated in the introduction, measures having the effect on or even intending to limit the freedom of navigation, transit passage or innocent passage are being taken multilaterally, namely by the IMO and the Security Council, and on the basis of bilateral arrangements as well as unilaterally. There is no doubt that the objectives pursued, namely the protection of the marine environment and protection against the proliferation of weapons of mass destruction and against terrorism are, at least in principle, valid ones. Nevertheless, there are some concerns. It is worth considering whether the IMO or the Security Council really has a sound legal basis for acting as legislators, a function they exercise de facto in the cases mentioned in the context of this presentation. I hope I have been able to demonstrate that multilateral actions are being supplemented by measures taken on the basis of bilateral arrangements (PSI, Container Security Initiative, agreements on the 31
For the details, see M. Florestal, Terror on the High Seas, Brooklyn Law Review 72 (2007), pp. 385-447.
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Rüdiger Wolfrum interception of vessels) or even unilaterally (unilaterally declared mandatory pilotage). The reasons for the development of such supplementary measures are dissatisfaction with the results achieved multilaterally and the desire for unilaterally tailored solutions. For vessels, however, this mixture of restrictions which seems to lack coherence is difficult to cope with. At present, the limitations faced may still be tolerable but if this trend prevails—and there are clear indications that it will—a reassessment may be called for.
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Edited Transcript of Question and Answer Session Panel I: Background on the Freedom of Navigation Professor John Norton Moore: Thank you President Wolfrum. I would like to make a couple of comments before opening it up for questions on some issues that I have been provoked about. But first I might say that, Ash Roach, you have an invitation to talk a little bit about PSI in the second panel—I hope you will, since that has been raised by a number of speakers. I’d like to simply comment on one general theoretical point and that is one of the great points of genius of this negotiation was to break through the 400 years of dispute between coastal States who were primarily interested in an extension of jurisdiction because of coastal fish stocks and the international community that understood that the right way to deal with shipping was, in fact, community freedom of shipping. For 400 years we thought about this in a very simplistic way—you need one line in the ocean—and how are you going to do that? Do you push out the territorial sea or do you push it in? This conference broke through that by adopting a functional division, which was the key to efficient and modern use of ocean space. The core political compromise behind this entire package was an expansion of coastal State resources and economic interests in the EEZ in return for navigational freedom in the zone. That was, again, absolutely the core political compromise behind the whole package. There would never have been a treaty without that key compromise and functional division, which makes such good sense in modern oceans law. So on this Ambassador Koh is absolutely correct. Let me just endorse this. The Exclusive Economic Zone is an area that is not under the sovereign jurisdiction of the coastal State nor is it simply an area of high seas freedom. It is sui generis but on this—and this is the point I would particularly like to stress—it is easy to jump to the point
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that somehow then these are less than the two things that have been given to the two parties and that is simply not so. The coastal State does emphatically have sovereign rights over resources, not less than sovereign rights over resources. Article 56 is very clear: sovereign rights for the purpose of their own resources. And it works exactly the same way on the other side of the political equation. It is full freedom of navigation and overflight for the international community in the EEZ—not less than full freedom and navigation and overflight—but full freedom of navigation, etc. There are some very powerful reasons for that; I don’t have time to go into a long discussion with my good friend, Ambassador Djalal, about the importance of freedom of navigation today. By the way, I found Indonesia in the negotiations to be a very reasonable partner in the overall negotiations. But I am somewhat saddened to hear the, what seems to me, radical position in relation to saying that freedom of navigation is dead. In my judgment, freedom of navigation is vital and alive and just as important as the day it was negotiated. This is that core, again, political accommodation. It’s in straits, it’s in archipelagic sea lanes passage and it is also in relation to the EEZ. So Ambassador Djalal, I hope they’ll give you an opportunity to respond here to that if you would like. But let’s open it up at this point for questions. Martin Chemenya: University of Wollongong in Australia. I’m going to make a comment and then ask a question to the panel. Ambassador Koh, I am not going to debate the Torres Strait issue if you want to feel relaxed about that. I listened to the presentations, particularly from Ambassador Koh and he several times mentioned the words “package deal” and “struck a delicate balance”. I was thinking and I looked back at my own law school days and I started doing the law of the sea when the third law of the sea conference had started, and I guess you can guess my age by working back. I had a professor who was part of the national delegation and he
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would disappear for about six weeks and he would come back and we would have classes on Saturdays and Sundays. The law of the sea, I learned in the 1970s, was basically what was going on in the different meetings, who was having lunch with whom and who had dinner with whom. I realize that there are three generations of law of the sea scholars at the moment. The first group is those who made it happen, and they continue to talk about a delicate balance, a package deal. If you go to a conference the way you can distinguish them is basically they are the ones who present without PowerPoints. They are passionate about what they negotiated and the compromises. The second group, and I belong to that group, are those who learned it from those who made it happen. We got it first-hand from those who made it happen. The third group, the most unfortunate group, is the one we taught. We gave it to them second-hand. That raises a real problem and that is my question to the panel. To what extent should the interpretation and application of the Convention in the twenty-first century be governed by the delicate balance struck by the first group in the 1970s? And to what extent should the interpretation of the Convention be seen as a dynamic process regulated or directed by things not foreseen by that group? I was actually struck by Ambassador Djalal’s comment. He was at the conference and he made a different point. Professor John Norton Moore: Very interesting comment and question. What I would like to do is put one other question on the table and then very briefly, allot one minute for each of the panelists to comment. Ms. Foo Chi Hsia: My name is Foo Chi Hsia from the Ministry of Foreign Affairs of Singapore. I would like to follow up and offer a hypothetical question as well. In light of the fact that this is an academic conference, and this is certainly not a position I would advocate, given that the panelists have all shared with us their great experience, if the Law
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of the Sea was negotiated today—taking into account your hindsight and your experience, the challenges that many of the speakers have spoken about through the Law of the Sea, as well as the changing geopolitical context we are in today—would we have reached the same package that we did 25 years ago? Professor Tommy Koh: Can I just answer one question? In reply to Martin, I of course do not claim that those of us who negotiated the text have a monopoly of wisdom. We have a point of view which I hope is valuable, in a sense that we were the people who took part in the negotiations, who crafted this compromise text. I wish there were a travaux préparatoire. But unfortunately there is not. But the Convention does not belong to us. The Convention belongs to the world community, and for all time. Therefore the authoritative interpretation is not necessarily by the veterans of the conference. The authoritative interpretation will come eventually when there is a difference of opinion which results in a dispute which then is taken to arbitration or adjudication. This is why in my earlier remarks I expressed the hope that countries that don’t agree on how to interpret a provision might consider taking this to arbitration or adjudication in order to get an authoritative interpretation. Ambassador Hasjim Djalal: On the interpretation, I suppose in any legislation one would have to interpret in the the spirit of a text that has been formulated. It may develop, though, from time to time, and I agree with Tommy here, that we should leave it to Judge Rüdiger Wolfrum to answer how he is going to adjudicate should a case arise in court on that one. I take a view that the feeling and the sentiments and the process should be taken into consideration. The second question is what would happen if the text was negotiated today. My feeling is that the one we
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have achieved is probably the maximum compromise that could have been achieved. There may have been problems before, around the 1990s, when the United States was adamant with regard to the regime of seabed mining. Remember, we took four years negotiating the implementing agreement without amending it. But we devised some kind of legal mechanism by having an implementing agreement negotiated for four years and in the end agreed with the text by accommodating some of the interests of the maritime powers and the industrial countries, which enabled them to become parties to the Convention. Therefore I will come to the statement by the American ambassador this morning that we may see a bright future this year in the sense that the Americans will, finally, after 25 years since adoption of the Convention, come to the international community by adopting and ratifying the Convention. So, if we negotiated today, I don’t think it will be much more change to it. There have been some moves to find some difficulties with the Convention which are being handled in UN processes, but I am not sure it will end up in any new version of the Convention. Rear Admiral Nora Tyson: I’m not sure if I can add a whole lot more to what the two ambassadors say, not having been at any of the conferences prior to this or being in any of the discussions about agreement on the text. If we were to start all over again from ground zero right now, I like to think that probably we would end up in the same place we are now. There are still a few minor things that we need to agree on. From my opinion as an operator, we have come to a pretty good agreement across the board allowing us to operate and also for nations to take advantage of their resources. Professor Rüdgier Wolfrum: Thank you very much. First, on the interpretation, I appreciate the views of the previous speakers. Those who
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have participated in the negotiations are not the owners of this Convention. Judge Koh has said that very clearly, and if anybody would have standing to say it’s his convention, it’s he. But if he says “no”, then nobody else can claim that. I have a solid basis for claiming that. According to the rules of the Vienna Convention on the Law of Treaties, historical interpretation in international law has a different meaning in some national systems. It is only for some particular purposes when we can use it. And if we would sit together, Professor Djalal and me for a long time on the same committee, if we would report about what we have been experiencing at that committee, the memory might differ since we were on opposing sides of the table to a certain extent. Therefore we should not overestimate the legislative history. We should accept that the Convention is a living instrument and has to be interpreted by those who use it in the moment. End of the story. Now, one has to start, as the Vienna Convention puts it, with the black letter of the Convention. However, the Convention has been referred to, and rightly referred to, as a constitution. It is phrased in broad terms; in some instances, particularly those dealing with protection of the submarine environment, it has really opened the door for further development. These can and should be used. One is by subsequent agreements. We have such subsequent agreements. The second is by mandating international organizations such as IMO. We should use that mechanism. We should use that however properly. The general terms of the Convention can be filled up and made more concrete by subsequent agreements and by the actions of the competent international organizations. Finally, one has to deal with the fact that there may be new facts. Nobody anticipated, for example, genetic resources of the deep seabed when Part XI was negotiated. Nobody knew about it. Here we have certain legal techniques to accommodate the necessity to deal with these issues. First of all, the common heritage principle is phrased quite broadly. Secondly, we can perhaps have a 100
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subsequent agreement and thirdly, we may use a technique of analogy. I leave it open as to what one can use. Finally, as it has been put by some, at the end of the story we have a very detailed and sophisticated dispute settlement system. There is one prerequisite. Bring the cases. Otherwise you will never get the clarity you seek.
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PANEL II: SCIENTIFIC RESEARCH AND HYDROGRAPHIC SURVEYS IN THE EEZ
Hydrographic Surveying in Exclusive Economic Zones – Is it Marine Scientific Research? Sam Bateman1 Abstract This paper considers whether hydrographic surveying in an Exclusive Economic Zone (EEZ) should now constitute marine scientific research. There are no specific provisions in the 1982 UN Convention on the Law of the Sea (UNCLOS) dealing with hydrographic surveying although it can be argued that it is separate from marine scientific research and part of the high seas freedoms available in an EEZ. However, this paper postulates that trends with technology, the utility of hydrographic data for purposes much wider than just the safety of navigation, and State practice, suggest that hydrographic surveys in the EEZ should now be under the jurisdiction of the coastal State. In this regard, military surveys in an EEZ might be distinguished from hydrographic surveys because military survey data is collected for military purposes and does not have the same economic value and utility to the coastal State as do hydrographic data. Hence it may be preferable to refer to military surveys as ‘military data collection’ and avoid the link with hydrographic surveys. 1
Dr. Sam Bateman is a Senior Fellow and Adviser to the Maritime Security Program at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University in Singapore. After retiring from the Royal Australian Navy in 1994, he became the first Director of the Centre for Maritime Policy (now the Australian National Centre for Ocean Resources and Security) at the University of Wollongong in New South Wales where he remains a Professorial Research Fellow. The author’s PowerPoint presentation may be viewed on the accompanying CD.
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INTRODUCTION This paper addresses the relationship between hydrographic surveying and marine scientific research in the Exclusive Economic Zone (EEZ). It recognises differences of view on whether or not another state might conduct hydrographic surveys in an EEZ without the prior authorization of the coastal State. It argues that trends in recent decades with technology, the utility of hydrographic data for purposes much wider than just the safety of navigation, concern for the health of the marine environment, and the increased significance of integrated coastal zone management (ICZM), as well as much State practice, suggest that hydrographic surveys in the EEZ should now be regarded as marine scientific research, and thus fall within the jurisdiction of the coastal State in accordance with the provisions of Parts V and XIII of the 1982 UN Convention on the Law of the Sea (UNCLOS). This would be in accordance with the view of most hydrographers that their discipline constitutes marine scientific research. Just like most forms of marine scientific research, hydrographic surveys in the EEZ yield data that has clear economic value to the coastal State. This value lies in the utility of the data for many purposes associated with the rights and duties of the coastal State in its EEZ, including ocean engineering, the exploration and exploitation of marine resources, and the development of arrangements for the protection and preservation of the marine environment. These are all additional to the traditional requirement of hydrographic surveys for the safety of navigation. This paper argues that to collect hydrographic data without the involvement of the coastal State would not be acting with due regard to the rights and duties of that State. 106
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Some data conducted for military purposes in the EEZ through the medium of what the United States refers to as ‘military surveys’ can be distinguished from hydrographic surveys because such data is collected for military purposes only and does not have economic value to the coastal State. Due to developments with the utility of hydrographic data to the coastal State, difficulties arise now when military surveying is likened to hydrographic surveying. This potentially has the consequence of bringing some military activities within the jurisdiction of the coastal State and could lead to misunderstandings between the surveying country and other states. This paper concludes that some other term such as military data collection or data gathering should be used to distinguish this military activity from hydrographic surveying. THE EEZ REGIME The EEZ regime, as established under UNCLOS, brought nearly one-third of the world’s oceans under coastal State jurisdiction. Most of this area had previously been high seas and the nature of the EEZ regime was a major source of disputation between coastal States and the major maritime powers when it was being negotiated at the Third UN Conference on the Law of the Sea (UNCLOS III). The former states wished to maximise their rights within the zone with some of these states viewing it virtually as an extension of their territorial sea while the latter states sought to preserve maximum high seas rights and freedoms within the zone. With some justification, the maritime powers viewed the new zone as potentially becoming a major source of ‘creeping jurisdiction’ by coastal States.2 2
W. S. Ball, ‘The Old Grey Mare, National Enclosure of the Oceans’, 27 Ocean Development and International Law, Nos 1-2, 1996, p. 103.
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The result was a zone that is sui generis and fundamentally different in character from both the territorial sea and the high seas.3 It is a zone of shared rights and responsibilities. A coastal State has sovereign rights for the purpose of exploiting, conserving and managing the living and non-living resources of the EEZ and jurisdiction, as provided for in relevant provisions of UNCLOS, in relation to the establishment of artificial islands, installations, and structures, marine scientific research and the protection and preservation of the marine environment.4 However, other states also have rights and duties in the EEZ related to freedoms of navigation and overflight and the laying of submarine cables and pipelines, and other internationally lawful uses of the sea, related to those freedoms.5 In exercising its rights and duties in its EEZ, a coastal State is required to have ‘due regard’ to the rights and duties of other States,6 while in turn other states are required to have ‘due regard’ to the rights and duties of the coastal State.7 Now over twenty-five years since UNCLOS was opened for signature, the EEZ regime continues to be a source of dispute between coastal States and the major maritime powers. It has been described as ‘a zone of tension between coastal State control and maritime State use of the sea’.8 And as Oxman has observed, the ‘essence of the EEZ is its substantive balance’, and that balance ‘is particularly vulnerable to the territorial temptation because the EEZ is already perceived in quasi 3
R.R. Churchill and A.V. Lowe, The Law of the Sea, 3rd ed., (Manchester, Manchester University Press, 1999), p. 166. 4 UNCLOS Article 56(1). 5 UNCLOS Article 58(1). 6 UNCLOS Article 56(2). 7 UNCLOS Article 58(3). 8 G. V. Galdorisi and A.G. Kaufman, ‘Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict’, 32 Californian Western International Law Journal, 2002, p.257.
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territorial terms’.9 Thus the political ‘tug of war’ over the nature of the EEZ has not gone away. The main difficulties and sources of dispute arise from defining the balance between the rights and duties of the coastal State and those of other states,10 and in devising operational tests to distinguish between actions that have due regard to the rights and duties of the other party, and those that do not. Particular differences of view have emerged with regard to the rights of other states to conduct certain activities such as military operations, military surveying, intelligence collection and hydrographic surveying in the EEZ of a coastal State without the permission of that State. Some coastal States require that their consent be given to such activities while others, particularly the United States, argue strongly that the activities are part of the freedoms of navigation and overflight that are available to other states in the EEZ of a coastal State. UNCLOS PROVISIONS Part XIII of UNCLOS sets out the international regime for the conduct of marine scientific research in the oceans and seas of the world. UNCLOS Article 56(1)(b)(ii) provides that the coastal State has jurisdiction over marine scientific research in its EEZ. However, UNCLOS does not define the key terms ‘marine scientific research’, ‘survey activities’, ‘hydrographic survey’ or ‘military survey’.11 While UNCLOS Part XIII has established a clear regime for marine scientific 9
B.H. Oxman, ‘The Territorial Temptation: A Siren Song at Sea’, 100 American Journal of International Law, 2006, p. 839. 10 Churchill and Lowe, The Law of the Sea, p. 175. 11 G.V. Galdorisi and K.R. Vienna, Beyond the Law of the Sea - New Directions for U.S. Oceans Policy (Westport, Praeger, 1997), p. 164.
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research, there is no specific provision in the Convention for hydrographic surveying. The maritime powers claim that ‘survey activities’ are not marine scientific research. They point out that UNCLOS distinguishes between ‘research’ and ‘marine scientific research’ on the one hand, and ‘hydrographic surveys’ and ‘survey activities’ on the other, primarily because these are sometimes referred to separately in the Convention.12 UNCLOS Article 19(2)(j) includes ‘research or survey activities’ among the activities that are contrary to the right of innocent passage. Article 21(1)(g) authorises the coastal State to adopt laws and regulations relating to innocent passage through the territorial sea in respect of ‘marine scientific research and hydrographic surveys’. This article is linked to Article 245, which gives a coastal State the exclusive right to ‘regulate, authorise and conduct marine scientific research’ in its territorial sea. Article 40, entitled ‘Research and survey activities’ provides that foreign ships, including ‘marine scientific research and hydrographic survey ships’, exercising the right of transit passage through a strait used for international navigation may not carry out ‘any research or survey activities’ without the prior authorisation of the States bordering the Strait. This article extends also to archipelagic sea lanes passage under the provisions of UNCLOS Article 54. It may well be an over-reading of the Convention to claim that it distinguishes ‘marine scientific research’ and ‘surveys’ as distinctly different activities. The use of separate terms provides a ‘catch-all’ phrase for the types of research activities that are either prohibited or require the 12
J.A. Roach and R.W. Smith, Excessive Maritime Claims, International Law Studies, Vol.66, (Newport, RI, Naval War College, 1994), p. 247; and A.H.A. Soons, Implementation of the Marine Scientific Research Regime in the South Pacific – Final Report, FFA Report 95/14 and SOPAC Joint Contribution Report 101, Honiara, Forum Fisheries Agency, 24 October 1994, p. 7.
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authorization of the coastal State in particular circumstances. It may also be significant that all these references to surveying activities are in the context of the passage regimes in UNCLOS. Commentaries on UNCLOS and the various sessions of UNCLOS III throw little light on why ‘hydrographic surveying’ was introduced into Articles 21(1)(g) and 40 (only ‘survey’ in Article 19(2)(j)). At the earlier Sea-Bed Committee, there were several related proposals all concerned with the activities of warships, including one by the Soviet Union at the 1972 session of the Committee, providing that warships in transit were not, inter alia, ‘to undertake hydrographical work’.13 While the coastal State may regulate marine scientific research in its EEZ and on its continental shelf, the United States believes that hydrographic survey and military survey activities are freedoms that the coastal State cannot regulate outside its territorial sea.14 They are freedoms captured by the expressions ‘other internationally lawful uses of the sea’ related to freedoms of navigation and overflight in Article 58(1) of UNCLOS and ‘inter alia’ in Article 87(1) of the Convention. MARINE SCIENTIFIC RESEARCH ‘Marine scientific research’ is the general term most often used to describe activities undertaken in ocean and coastal waters to expand scientific knowledge of the marine environment. Marine scientific research includes oceanography, marine biology, fisheries research, scientific ocean drilling and coring, geological/geophysical scientific surveying, as well as other activities with a scientific purpose.15 There is a 13
S.R. Nandan and S. Rosenne (eds), United Nations Convention on the Law of the Sea – A Commentary (Dordrecht, Martinus Nijhoff, 1993), pp. 350-351. 14 Roach and Smith, Excessive Maritime Claims, p. 249. 15 Roach and Smith, Excessive Maritime Claims, p. 248.
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tendency in practice to use the term ‘marine scientific research’ loosely when referring to all kinds of data collection (research) conducted at sea. In this loose sense of the term, hydrographic surveying must be seen as part of marine scientific research. It is fair to observe that hydrographers generally regard their surveying activities as part of marine scientific research, and most contemporary hydrographic surveys outside the immediate confines of a port are not restricted purely to the collection of hydrographic data.16 They employ similar equipment to that used in other forms of oceanographic research. Modern oceanographic and hydrographic survey ships are both fitted with multi-beam, wide-angle precision sonar systems that make it possible to chart continuously a broad strip of ocean floor. Not all data collection conducted at sea necessarily comes within the scope of the marine scientific research regime established by UNCLOS. Some argue that other activities, such as resource exploration, prospecting and hydrographic surveying are governed by different legal regimes.17 However, these activities may be difficult to distinguish in practice. Coastal States understandably will have reservations about any form of survey or research being conducted in their EEZ without their consent. A former Director of the International Hydrographic Bureau has argued that there is an anomaly as to ‘what is research, where can it be undertaken, who is responsible for conducting the research and to whom 16
An earlier discussion of issues arising from the conduct of hydrographic surveying in an EEZ may be found in S. Bateman, ‘Hydrographic Surveying in Exclusive Economic Zones: Jurisdictional Issues’, 5 International Hydrographic Review, No. 1 (New Series), April 2004, 24-33; and S. Bateman, ‘Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research’, 29 Marine Policy, 2005, 163-174. 17 A.H.A. Soons, Marine Scientific Research and the Law of the Sea, (The Hague, Kluwer, 1982) p. 157.
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does the data belong’.18 He went on to claim that while some will argue that certain types of research, and specifically hydrographic data gathering, were not intended to be considered as marine scientific research, it is exceedingly difficult to exclude them and it is also impossible to implement relevant articles of UNCLOS without this research being undertaken and made available.19 HYDROGRAPHIC SURVEYING The arguments in this paper largely depend on an appreciation of the process of hydrographic surveying and how it is currently undertaken. Hydrographic surveying is a particular form of research that invariably requires the ship conducting the survey to follow a regular pattern of sounding lines sometimes as little as 100 feet apart. The basic requirements of hydrographic surveying are the abilities to fix the position of the surveying platform accurately and to take bottom soundings. A ship on passage through an EEZ and taking soundings along her route cannot be regarded as conducting a hydrographic survey because the work lacks the completeness normally associated with a hydrographic survey. Aircraft may conduct hydrographic surveys using Light Detection and Ranging (LIDAR) or Laser Airborne Depth Sounding (LADS) systems to obtain water depths but again they will be flying fixed patterns. Conceivably remotely operated vehicles (ROVs) could conduct a hydrographic survey but a free floating or drifting buoy could not because of the lack of both completeness and positive control over its movements. 18
Rear Admiral Neil Guy, ‘Rights and Responsibilities – Time for a Rethink’, Paper presented at 4th Biennial ABLOS Conference Marine Scientific Research and the Law of the Sea: The Balance between Coastal State and International Rights, Monaco, 10-12 October 2005, p. 1. 19 Ibid., p. 2
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The International Hydrographic Dictionary published by the International Hydrographic Organization (IHO)20 defines a hydrographic survey as: A survey having for its principal purpose the determination of data relating to bodies of water. A hydrographic survey may consist of the determination of one or several of the following classes of data: depth of water, configuration and nature of the bottom; directions and force of currents; heights and times of tide and water stages; and location of topographic features and fixed objects for survey and navigation purposes. It will be noted that this definition does not relate hydrographic surveying specifically to navigational purpose. The focus of the definition is on the nature of the data collected rather on the purpose of the data collection. MILITARY SURVEYS The argument that ‘military surveys’ are one of the rights and freedoms of navigation and overflight available in an EEZ may have more strength than the argument that hydrographic surveys can be conducted in an EEZ without the consent of the relevant coastal State. Military surveys are activities undertaken in ocean and coastal waters involving marine data collection (whether or not classified) for military purposes. Such data is important, even essential, for effective submarine operations, anti 20
The International Hydrographic Organization (IHO) is a technical organization that provides national hydrographic services. The IHO evolved from the International Hydrographic Bureau established in 1921. It is not part of the United Nations. The IHO is focused on maintaining the highest standards of hydrography and charting, and ensuring common standards of nautical charting.
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submarine warfare, mine warfare and mine countermeasures, particularly in waters such as the South and East China Seas where oceanographic and underwater acoustic conditions vary widely with uneven bottom topography, fast tidal streams and a relatively high level of marine life. While the means of data collection used in military surveys may sometimes be the same as that used in marine scientific research, information from such activities, regardless of security classification, is intended not for use by the general scientific community, but by the military.21 Military surveying is an expression largely coined by the United States, but the United Kingdom talks about ‘military data gathering’ in a similar vein. It is an argument of this paper that the latter term is less problematic because it does not include the word ‘survey’. These terms are not specifically addressed by UNCLOS and there is no language stating or implying that coastal States may regulate their conduct in any manner by coastal States outside their territorial sea or archipelagic waters.22 Thus the United States ‘reserves the right to engage in military surveys outside foreign territorial seas and archipelagic waters’, and that to ‘provide prior notice or request permission would create an adverse precedent for restrictions on mobility and flexibility of military survey operation’.23 Similarly the United Kingdom believes that states have a right to engage in military data gathering anywhere outside foreign territorial seas and archipelagic waters without prior notice to, or permission from the coastal State.24 21
Roach and Smith, Excessive Maritime Claims, p. 248. Ibid.,, p. 248. 23 Ibid., p. 249. 24 Email dated 21 November 2003 from Mr. Chris Carleton, Head, Law of the Sea Division, United Kingdom Hydrographic Office. 22
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In accordance with UNCLOS Articles 58 and 88, the EEZ should be reserved for peaceful purposes. This of itself does not exclude military operations in the EEZ as the argument is well accepted that provided such operations are not aggressive, involving the threat or use of force against the coastal State, they are consistent with the UN Charter.25 However, some military hydrographic surveys are not for peaceful purposes. Beach surveys or rapid military assessments to support possible amphibious landings or littoral operations against the coastal State would fall within the category of activities that constitute a threat to the coastal State. Some military intelligence collection activities conducted in the EEZ might also be considered as coming within the scope of ‘scientific research’, and thus within the scope of the marine scientific research regime in UNCLOS. However, the United States and other maritime powers are strongly of the view that while these activities are within the scope of research, they are associated with the freedoms of navigation and overflight in the EEZ and not under the jurisdiction of the coastal State. Intelligence collection data is only used for military purposes and is not released for public purposes. Again the boundaries between ‘military surveys’ and ‘intelligence collection’ may be difficult to determine, and one vessel may concurrently undertake both activities although the external appearance of the vessel (e.g. the aerials on a signals or electronic intelligence vessel), the equipment it is operating (e.g. the type of sonar), and its movements (e.g. whether it is manoeuvring, stopping or continually underway) might give a good lead on the nature of its data collection. It is not surprising that incidents have already occurred in the AsiaPacific region, involving disputes between coastal States and other states 25
Churchill and Lowe, The Law of the Sea, p. 231.
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over their respective rights and duties in an EEZ. Research vessels claiming to be conducting military surveys have been warned out of the EEZs of some coastal States; a Chinese fighter aircraft crashed after colliding with a US intelligence collection aircraft in China’s EEZ off Hainan in April 2001; and alleged ‘spy ships’ have been pursued out of Japan’s EEZ with one vessel even being sunk after hot pursuit into China’s EEZ. There are regular press reports of protests over the activities of research vessels of one country in the claimed EEZ of another. Based on current and planned naval and defence acquisitions in the Asia-Pacific region, particularly the growth of regional submarine fleets, military surveying and intelligence-gathering activities in EEZs will increase in the future. These activities might also become more controversial and more dangerous in the region. This trend reflects the increasing demands for technical intelligence; rapidly expanding weapon and sensor acquisition programmes, including electronic warfare capabilities; and widespread moves to develop information warfare capabilities. The growth and wider use of submarine forces creates a need for better oceanographic knowledge. REGIME CLARITY Problems arise from ambiguities and some lack of clarity in the EEZ regime. The problem with identifying activities that may or may not have due regard to the rights and duties of other states has already been noted. These difficulties may become more acute in the future, particularly in the Asia-Pacific region where wide oceanic and sea areas are claimed as EEZ, navies are growing rapidly, and countries are showing increased interest in marine scientific research. With respect to military uses of the EEZ, UNCLOS does not make clear whether military activities, including military surveys or data 117
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collection, are included in the freedoms of navigation and overflight and other internationally lawful uses of the sea available under Articles 58 and 87 of UNCLOS.26 It has been said that UNCLOS ‘is replete with ambiguity concerning military uses of the sea’.27 Without having to list explicitly their military rights within the EEZ, the maritime powers sought to ensure during UNCLOS III negotiations that the new EEZ regime would not exclude naval operations in the zone. This led to the so-called ‘Castaneda compromise’ with the somewhat over-stated but ambiguous language evident, for example, in Articles 58 and 87 of UNCLOS.28 Practical problems arise because terms such as ‘military activities’, ‘military exercises’ and ‘military surveying’ are not particularly precise. As Kaye has noted, UNCLOS ‘does not deal with security issues to a significant extent’ and ‘almost completely avoids consideration of the laws of naval warfare’.29 The basic due regard principle ‘requires states engaging in military activities not to unreasonably interfere with the exercise of the right of the coastal state to explore and exploit the natural resources of the EEZ’.30 Non-interference with the coastal State’s duty to preserve and protect the marine environment of the EEZ should be added to that principle. For example, scheduling a military exercise in an area of intensive fishing activity declared by the coastal State, or in a marine park or marine protected area declared by the coastal State under Article 194(5) 26
Churchill and Lowe, The Law of the Sea, p. 427. D. G. Stephens, ‘The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval/Military Operations’, 29 Californian Western International Law Journal, 1998-1999, 283. 28 Galdorisi and Kaufman, ‘Military Activities in the Exclusive Economic Zone’, p. 271. 29 S. Kaye, ‘Freedom of Navigation in a Post 9/11 World: Security and Creeping Jurisdiction’, in D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea: Progress and Prospects (Oxford, Oxford University Press, 2006), pp. 347-364. 30 R. Beckman, ‘Military Activities in the Exclusive Economic Zone: Towards a Common Understanding’ in Y.R. Kassim (ed.), Strategic Currents (Singapore: Institute of Defence and Strategic Studies, Nanyang Technological University, 2006), p. 42. 27
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of UNCLOS,31 could be considered not to have due regard to the rights and duties of the coastal State. Likewise, the military activities of other states should not interfere with the legitimate surveillance and enforcement activities of the coastal State aimed at protecting its rights or preventing pollution in the EEZ. It might be regarded as inappropriate, for example, for military forces of another State to order away a bona fide surveillance aircraft of the coastal State from their area of operations. DEVELOPMENTS POST-UNCLOS Over the past twenty-five years or so since UNCLOS was opened for signature, there have been developments that strengthen the conclusion that hydrographic surveying in the EEZ constitutes marine scientific research in that zone. These include: • greater coastal State interest in EEZ management and offshore resource exploration and exploitation; • increased awareness of responsibilities with regard to the preservation and protection of the marine environment, including the development of ICZM; • developments in technology; and • the growth of State practice with regard to the conduct of hydrographic surveys in the EEZ.
31
This article requires the coastal State to take the measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.
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GREATER EEZ INTEREST Coastal States around the world are now showing greater interest in their rights and duties in the EEZ. Resource scarcities and the increased need for energy security have led coastal States to focus their attention on the resource potential of the EEZ. While the safety of navigation was traditionally the purpose of hydrographic surveys, coastal States are now also concerned with the need for hydrographic data to facilitate the exploration and exploitation of marine resources, the determination of seaward limits of national jurisdiction, coastal zone management, national development (including building new ports and harbour facilities), and the delimitation of national boundaries.32 Bathymetric charts providing a description of seabed topography are a routine output of hydrographic surveys and a basic tool of resource exploration and exploitation that are unambiguously the sole prerogative of the coastal State in its EEZ. A similar drive has been evident in the rather more controversial moves by coastal States to expand their authority in the EEZ to embrace marine archaeology.33 Hydrographic surveys are also necessary to determine the features that constitute territorial sea baselines or basepoints and their geographical positions. With the advent of the twelve nautical mile territorial sea, the EEZ and the extended continental shelf, many more maritime boundaries are now necessary than was the case when a coastal State’s maritime jurisdiction extended only to a three nautical mile territorial sea. This has led to markedly increased requirements by coastal States for accurate hydrographic surveys of their adjacent waters, including their EEZs. 32
J. Maschke, ‘The International Hydrographic Organization – an effective international regime?’, Maritime Studies107, July-August 1999, p. 9. 33 Oxman, ‘The Territorial Temptation’, p. 840.
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MARINE ENVIRONMENTAL PROTECTION UNCLOS was formulated in a period when there was less concern for the health of the marine environment than there is at present. Modern international environmental law was largely underdeveloped at the time of UNCLOS III. Norms and principles for the preservation and protection of the marine environment have multiplied exponentially over the last two decades, reflecting the general obligation of states in UNCLOS Article 192 to preserve and protect the marine environment. Since UNCLOS was drafted nearly thirty years ago, the major developments with the law of the sea have arisen from increased awareness of the importance of fulfilling this obligation. With respect to the EEZ, it is the coastal State that has the leading responsibility for the preservation and protection of the marine environment in that zone, including the implementation of relevant international environmental instruments. ICZM is a particular manifestation of the coastal State’s obligation to manage its coastal environment effectively, The objective of ICZM is ‘through more efficient management, to establish and maintain the best use and sustainable levels of development and activity (use) in the coastal zone, and, over time, to improve the physical status of the coastal environment’.34 The coastal zone is regarded as the interface between the coast and the sea. The seaward limit of the coastal zone is not fixed but certainly extends beyond the territorial sea and perhaps to the entire EEZ as the impact of land activities could extend well into that zone. To practice effective ICZM, and more generally to fulfil its obligation to preserve and protect the environment of the EEZ, a coastal 34
From the European Commission’s definition as given in ‘Principles of ICZM’ at: http://www.biodiversity.ru/coastlearn/iczm-eng/introduction.html
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State requires extensive hydrographic knowledge of its maritime domain. This knowledge provides the basis of appropriate management arrangements, including particularly sensitive sea areas (PSSAs), marine parks and marine protected areas. These measures are all now widely accepted tools of ocean management. These requirements for hydrographic data by the coastal State both for resource exploitation and marine environmental protection have all increased significantly since the EEZ regime was initially agreed. They are clearly related to the rights and duties of the coastal State in its EEZ. They also make it much more difficult to argue that hydrographic surveys are an international freedom in the EEZ associated with the high seas freedoms of navigation available in that zone. TECHNOLOGICAL DEVELOPMENTS Many of the technologies now used for hydrographic surveying and marine scientific research are both similar and relatively recent innovations. Furthermore, technological developments with marine scientific research equipments in recent decades have made this similarity even more the case than it may have been at the time of UNCLOS III. Both marine scientific research vessels and dedicated hydrographic surveying vessels use precise navigation systems, multibeam sonars, current meters, seabed sampling devices, etc. Most hydrographic surveying vessels have a capability to conduct oceanographic research and indeed will routinely do so as part of hydrographic surveying, e.g. bottom sampling and the collection of data on currents and tidal streams. Indeed it makes no practical sense to suggest that the modern hydrographic surveying vessel will be restricting its operations purely to information required for the safety of navigation. 122
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Until the advent of the Navstar Global Positioning System (GPS) in 1994 and the later Differential GPS (DGPS), it was extremely difficult, if not impossible, for an accurate hydrographic survey to be conducted without the support of the adjacent coastal State(s). The hydrographic surveyor had to be able to fix the position of the surveying platform accurately. Early hydrographers were dependent on precise astronomical navigation to fix their position but this was insufficiently accurate and later hydrographic surveyors used shore control to fix their position more precisely. While astronomical observations might still be used to determine the position of shore stations, much greater accuracy could be obtained with astronomical observations on land than was possible from a ship at sea. Once a system of triangulated shore stations was established on land, the survey vessel could then accurately fix her position by horizontal sextant angle observations between the shore stations. The introduction of electronic navigational systems such as Loran and Decca Navigator after World War Two facilitated position fixing for offshore surveys but initially these systems had insufficient accuracy for detailed surveys. Systems, such as Lambda and Hi-Fix, were introduced to provide more accurate position fixing but these systems also required the establishment of fixed stations in the proximate vicinity of the survey area, With shore control essential for accurate hydrographic surveys until GPS and DGPS were available, it was probably sufficient that that UNCLOS dealt with hydrographic surveys in the territorial sea and archipelagic waters without bothering with hydrographic surveys further offshore. Ships within the territorial sea and most archipelagic waters could accurately fix their position by terrestrial navigation but not so in much of an EEZ. It is possibly not a coincidence that hydrographic surveying in the EEZ has only become controversial over the last decade or so with the introduction of GPS that has allowed ships to accurately fix their position 123
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without shore control. It should be noted however, that shore stations are still required in the survey area for collecting tidal information. Thus clearance and permission of the coastal State is a requirement although the U.S. Naval Oceanographic Office is researching a technique that might obviate the requirement for on or near shore tide gauges.35 However, until that technique is proven, it remains the case that offshore surveys, using present procedures, cannot meet IHO accuracy standards for hydrographic surveys without access to shore stations.36 STATE PRACTICE Not only state practice but also discussion in expert bodies would seem to support the argument that hydrographic surveying in the EEZ should now be regarded as marine scientific research. Both Australia and Canada are understood to seek permission of the coastal State before conducting hydrographic surveys in the EEZ of another state, and other countries, including China, have specific legislation on the issue. Although a thorough analysis has not been undertaken of state practice, a survey conducted in the 1980s by the United Nations of national legislation covering marine scientific research in waters under national jurisdiction showed that national legislation does not normally distinguish between marine scientific research and hydrographic surveying.37 35
M.F. van Norden, E.N. Arroyo-Suarez, and A.S. Najjar, ‘Hydrographic Surveys to IHO Standards without Shore Stations using the Real-Time Gipsy (RTG) Global Positioning System (GPS)’, Naval Oceanographic Office, Stennis Space Center, paper available at http://www.cctechnol.com/uplooads/NAVO_CNAV.pdf 36 Ibid., p. 4. 37 United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: National Legislation, Regulations and Supplementary Documents on Marine Scientific Research in Areas under National Jurisdiction, New York, United Nations, 1989, pp. 143-154.
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The IHO has always been concerned about the implications of the law of the sea and the rights and duties of states with regard to the conduct of hydrographic surveys. While the IHO, perhaps for political reasons has not made a clear pronouncement on the topic, it is clear from its practice that it regards hydrographic surveying as part of marine scientific research and thus subject to the regime for marine scientific research established in Part XIII of UNCLOS. Various papers at the 2005 Conference of the IHO’s Advisory Body on the Law of the Sea (ABLOS) were clearly of this view,38 which was not disputed by other participants. The IHO now views hydrographic knowledge of adjacent waters as part of national infrastructure and sustainable development.39 Nautical charts both provide for the safety of navigation and facilitate maritime economic activity generally, including fishing, tourism, and oil and gas exploration and exploitation. Hydrographic data in the EEZ clearly has economic value to the coastal State and that State should be in a position to manage and control the release of such data, regardless of how and by whom it was collected. It is virtually impossible now to identify any hydrographic data, including that conducted by military surveying ships, which does not pose potential economic value for the coastal State. This trend is also reflected in the attention the IHO has been giving to the issue of copyright over hydrographic data. Navigational and hydrographic information on nautical charts issued by one country can no longer be freely copied by another state on to its own nautical charts. In 38
International conference on ‘Marine Scientific Research and the Law of the Sea: the Balance between Coastal State and International Rights’, organized by ABLOS, International Hydrographic Bureau, Monaco, 10-12 October 2005. Paper and proceedings available at http://www.gmat.unsw.edu.au/ablos/#ABLOS'05 39 See for example the discussion in Chapter 1 – The Need for a Hydrographic Service in IHO publication M2 – National Maritime Policies and Hydrographic Services, International Hydrographic Bureau, Monaco, 2001 (available at http://iho.shom.fr/PUBLICATIONS/download.htm).
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these days of economic rationalism, the market economy and globalization, the free exchange of hydrographic data is not regarded as an acceptable way of doing business. The distinction between hydrographic surveying and marine scientific research has also been an issue with the Advisory Body of Experts on the Law of the Sea (ABE-LOS) established by the Intergovernmental Oceanographic Commission (IOC) but no conclusion has been reached. When the issue was discussed at the First Session of ABE-LOS in Paris in June 2001 discussion came down to a debate between the representatives of the United States and the other delegates. The US representatives were arguing that surveying activities were not subject to coastal State control while other delegates argued to the contrary, with some questioning both the tone and content of the presentation by the United States.40 The ‘Guidelines for Navigation and Overflight in the Exclusive Economic Zone’ produced by the Ocean Policy Research Foundation of Japan are another relevant development that supports state practice. 41 The aims of these guidelines were to clarify the rights and duties of both coastal States and user states in an EEZ, and to provide an important regional maritime confidence and security building measure (MCSBM). The guidelines set out broad principles of common understanding regarding certain aspects of navigation and over flight in the EEZ, including military and intelligence gathering activities. They recognise that the arguments for military surveys in the EEZ, being outside the 40
International Oceanographic Commission, ABE-LOS, Report of the First Session, Paris, 11-12 June 2001. 41 The Guidelines are available online at: . A discussion of the Guidelines, along with the composition of EEZ Group 21, may also be found in Sam Bateman, ‘Prospective Guidelines for Navigation and Overflight in the Exclusive Economic Zone’, Maritime Studies 144, September/October 2005, pp. 17–28.
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jurisdiction of the coastal State, appear stronger than those for hydrographic surveys because the considerations that apply to the rights to conduct hydrographic surveys and military surveys in an EEZ are essentially different. Military surveys might be more easily argued as an ancillary activity to the high seas freedoms of navigation and overflight available in the EEZ. The data collected is for military purposes only and is not normally released to the public, whereas hydrographic data, virtually by definition, has utility and economic value to the coastal State. CONCLUSIONS The information collected during a hydrographic survey now has many more applications rather than just being for the safety of navigation. The functional use of the data (e.g. whether it is for military or economic purposes) is the main criterion that establishes whether or not the coastal State should have jurisdiction. Any differences lie in the use (both actual and potential) of the knowledge and the results of the activity rather than in the nature of the activities themselves. The economic value of marine scientific research data is reflected in the principle that the coastal State has jurisdiction over such research in its EEZ; and given developments over the last few decades discussed above, it would now seem logical to extend that principle to hydrographic surveys in the EEZ. To conduct these surveys without the consent of the coastal State would not be acting with due regard to the rights and duties of that State. In view of the developments with the value and utility of hydrographic surveys, it would now be in the best interests of the United States to drop the argument that military surveys are similar to hydrographic surveys and thus part of the high seas freedoms of navigation and overflight available in the EEZ. The view that the coastal State cannot regulate hydrographic surveys conducted beyond its 127
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territorial sea, or require notification of such activities, is no longer tenable given developments with technology and the utility of hydrographic data. State practice also supports the contrary view. The term ‘military data gathering’ adopted by the United Kingdom would appear much more acceptable provided the data collected has no economic utility to the coastal State. Dropping the term ‘military surveys’ would help remove some of the ambiguity concerning hydrographic surveys in the EEZ, and could also be a significant MCSBM that would help clarify the rights and duties of different states in the EEZ.
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BIBLIOGRAPHY Ball, W.S., ‘The Old Grey Mare, National Enclosure of the Oceans’, Ocean Development and International Law 27, Nos 1-2, 1996, pp. 97-124. Bateman, S., ‘Hydrographic Surveying in Exclusive Economic Zones: Jurisdictional Issues’, International Hydrographic Review 5, No. 1 (New Series), April 2004, pp. 24-33. Bateman, S., ‘Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research’, Marine Policy 29, 2005, pp. 163-174. Bateman, S., ‘Prospective Guidelines for Navigation and Overflight in the Exclusive Economic Zone’, Maritime Studies 144, September/October 2005, pp. 17–28. Beckman, R., ‘Military Activities in the Exclusive Economic Zone: Towards a Common Understanding’ in Y.R. Kassim (ed.), Strategic Currents, Singapore: Institute of Defence and Strategic Studies, Nanyang Technological University, 2006, p. 40-44. Churchill, R.R. and A.V. Lowe, The Law of the Sea, 3rd ed., Manchester: Manchester University Press, 1999. Galdorisi, G.V. and A.G. Kaufman, ‘Military Activities in the Exclusive Economic Zone: Preventing Uncertainty and Defusing Conflict”, Californian Western International Law Journal 32, 2002, pp. 253-301.
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Galdorisi, G.V. and K. R. Vienna, Beyond the Law of the Sea – New Directions for U.S. Oceans Policy, Westport: Praeger, 1997. International Hydrographic Organization, IHO publication M2 – National Maritime Policies and Hydrographic Services, International Hydrographic Bureau, Monaco, 2001 (available at http://iho.shom.fr/PUBLICATIONS/download.htm) International Oceanographic Commission, ABE-LOS, Report of the First Session, Paris, 11-12 June 2001. Kaye, S., ‘Freedom of Navigation in a Post 9/11 World: Security and Creeping Jurisdiction’, in D. Freestone, R. Barnes and D. Ong (eds), The Law of the Sea: Progress and Prospects, Oxford: Oxford University Press, pp. 347-364. Maschke, J., ‘The International Hydrographic Organization – an Effective International Regime?’, Maritime Studies107, July-August 1999, pp. 9-19. Nandan, S. and S. Rosenne (eds.), United Nations Convention on the Law of the Sea – A Commentary, Dordrecht: Martinus Nijhoff, 1993. Oxman, B.H. ‘The Territorial Temptation: A Siren Song at Sea’, American Journal of International Law 100, 2006, pp. 830-851. Roach, J.A. and R.W. Smith, Excessive Maritime Claims, International Law Studies, Vol. 66, Newport RI: Naval War College, 1994. Soons, A.H.A., Implementation of the Marine Scientific Research Regime in the South Pacific – Final Report, FFA Report 95/14 and SOPAC Joint 130
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Contribution Report 101, Honiara, Forum Fisheries Agency, 24 October 1994. Soons, A.H.A., Marine Scientific Research and the Law of the Sea, The Hague: Kluwer, 1982. Stephens, D.G., ‘The Impact of the 1982 Law of the Sea Convention on the Conduct of Peacetime Naval/Military Operations’, Californian Western International Law Journal 29,1998-1999, pp. 283-311. United Nations Convention on the Law of the Sea (UNCLOS), done in Montego Bay, Jamaica, 10 December 1982, in force 16 November 1994. United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: National Legislation, Regulations and Supplementary Documents on Marine Scientific Research in Areas under National Jurisdiction, New York: United Nations, 1989. Van Norden, M.F., E.N. Arroyo-Suarez, and A.S. Najjar, ‘Hydrographic Surveys to IHO Standards without Shore Stations using the Real-Time Gipsy (RTG) Global Positioning System (GPS)’, Naval Oceanographic Office, Stennis Space Center, paper available at http://www.cctechnol.com/uplooads/NAVO_CNAV.pdf ‘Principles of ICZM’ at: http://www.biodiversity.ru/coastlearn/iczmeng/introduction.html
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Regulating Marine Biodiscovery in Sea Areas Under Coastal State Jurisdiction Ronán Long1 Abstract Marine biodiscovery is the examination of marine biological material for features that may be of value for commercial purposes. These features may include chemical compounds, genes and their products or, in some cases, the physical properties of the material in question. One of the principal attributes of biodiscovery is the commercialisation of the research or the intellectual property derived from the research. As it stands, many coastal States maintain an open access approach to marine biodiscovery. That is to say, no attempt is made to exclude the access of others or to control the collection and the subsequent use of material for the purpose of biodiscovery. There is some evidence however to support the view that biodiscovery will be most effective when governed by a range of international and national laws. Accordingly, the purpose of this paper is to identify the principal legal elements in the 1982 United Nations Law of the Sea Convention that are applicable to marine biodiscovery. The paper explores the key challenges and recommendations for the establishment of an appropriate governance framework governing biodiscovery activities in sea areas under the jurisdiction of a coastal Member State of the European Union. 1
Dr. Ronán Long is the Research Director at the Marine Law and Ocean Policy Centre, Martin Ryan Institute, National University of Ireland Galway. He also holds the Jean Monnet Chair of European Commercial Law at the School of Law, National University of Ireland, Galway. The research for this paper was supported by the Maine Institute in Ireland under the National Development Plan on Marine Research, Technology, Development and Innovative Measure 2000-2006. The views expressed in this paper may not in any circumstance be regarded as statements of official policy of the Marine Institute. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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Introduction The ocean is the largest habitat on earth and the biodiversity of the sea is extraordinary with 34 of the 37 phyla of life represented in the ocean. This may be contrasted with the 17 phyla that occur on land. Thus it is unsurprising that the relentless quest for new scientific knowledge coupled with the rapid development of new deep-ocean exploration technology has placed the spotlight on the legal regime governing the conduct of scientific research in the marine environment. This is particularly the case in relation to scientific activities that entail the collection of biological and geo-chemical material from the ocean and the subsequent screening of this material for information and features that may be of value for commercial purposes. These features may include chemical compounds, genes and their products or, in some instances, the physical properties of the material in question. This type of research is sometimes referred to as “chemical prospecting”, “pharmaceutical prospecting”, or “genetic prospecting” in the scientific literature.2 As will be seen below, there is now a tendency to refer to this type of research as simply “bioprospection” or “biodiscovery”. In recent years much of the debate on this subject has focused on the legal status of marine genetic resources in sea areas beyond national jurisdiction with particular emphasis on the regime that ought to 2
“Chemical prospecting” was defined by Reid et al. in 1993 as “the exploration of biodiversity for commercially valuable genetic and biochemical resources”, see W. V. Reid, Laird SA, Meyer CA, Gámez R, Sittenfeld A, Janzen DH, Gollin MA and Juma C (eds.) (1993) A new lease on life. In: Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, pp 1–52. World Resources Institute, USA. On the use of the terms “pharmaceutical prospecting” and “genetic prospecting” see inter alia: Aylward BA (1993) The Economic Value of Pharmaceutical Prospecting and its Role in Biodiversity Conservation London Environmental Economics Centre, London, Discussion Paper DP 93-05, IIED; Krattiger AF and Lesser WH (1995) The ‘Facilitator’: proposing a new mechanism to strengthen the equitable and sustainable use of biodiversity. Environmental Conservation 22(3): 211–215
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apply to deep ocean hydrothermal vent sites, cold water seeps, deep-water corals and seamounts.3 In contrast, there has been little discussion of the legal regime that ought to apply to similar activity in sea areas under coastal State jurisdiction.4 This is surprising because much of the material that has yielded valuable genetic and biochemical information has been taken from the coastal environment. In many instances, access to this material is unregulated and little reward is derived by the coastal State when commercial products are developed from marine biodiversity. Accordingly, the aim of this paper is to identify the key challenges and recommendations for the establishment of an appropriate governance framework governing biodiscovery activities in sea areas under the jurisdiction of a coastal Member State of the European Union. The paper begins by presenting some background information on biodiscovery in general. This is followed by a review of some important definitions and an assessment as to whether it is possible to distinguish biodiscovery from the more traditional forms of scientific research such as taxonomy. The paper concludes by looking at some of the key issues that need to be addressed in designing a framework for biodiscovery in the sea area of a coastal member State of the European Union, namely Ireland.
3
See Y. Tanaka, “Reflections on the Conservation and Sustainable Use of Genetic Resources in the Deep Seabed Beyond the Limits of National Jurisdiction” in (2007) Ocean Development and International Law Vol. 39(2) (in press) The term “genetic resources” is defined in Article 2 of the Convention on Biological Diversity as “genetic material of actual or potential value”, and in turn defines the term “genetic material” as “any material of plant, animal, microbial or other origin containing functional units of heredity”. 4 Coastal State jurisdiction is defined as: internal waters, the territorial sea, the Exclusive Economic Zone and the continental shelf where that extends to distance greater than 200 miles measured from the baselines. Coastal State jurisdiction also applies to archipelagic waters in the case of archipelagic States under Part IV of the 1982 LOS Convention.
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The contextual background Before delving into the legal regime that ought to apply to biodiscovery activities in sea areas under coastal State jurisdiction it may be appropriate to provide some background information on the rapid development of biodiscovery as a distinctive field of scientific inquiry. One of the best examples from an early research programme (albeit a terrestrial programme) was the discovery of two anti-cancer agents (vincristine and vinblastine) in the Madagascar Rosy Periwinkle plant (Catharanthus roseus) by scientists from the pharmaceutical firm Eli Lilly & Co in the late 1950s.5 These agents became standard medicines in the treatment of childhood leukemia and Hodgkin’s disease. Similarly, the discovery of the antibiotic Ertthromycin and the development of the Cyclosporin A anti-rejection drug which was isolated from a soil fungus sample (Tolypocladium inflatum) collected in the Hardangarvidda National Park in 1969 had a major impact on organ transplants and is now used in the treatment of AIDS.6 Significantly, at the time that the original samples of the source material were collected in Madagascar and Norway, neither country had a benefit sharing agreements in place and thus derived no direct commercial benefit from the discoveries. There were also some remarkable finds in the marine environment in the 1950s and 1960s.7 An early success was the discovery of the new 5
Juma C. (1989) The Gene Hunters. Biotechnology and the Scramble for Seeds. Zed Books; London Princeton University Press, Princeton. 6 See, inter alia: Thali M (1995) Cyclosporins: immunosuppressive drugs with anti-HIV-1 activity. Molecular Medicine Today 1(1): 287–291; H. Varstad, H. Chr. Bugge, S. Dhillion “From Norway to Novartis: cyclosporin from Tolypocladium inflatum in an open access bioprospecting regime” in Biodiversity and Conservation 9: 1521–1541, 2000. 7 See F. Flam, “Chemical Prospectors Scour the Sea for Promising Drugs”, 266 Science 1324 (1994) Also see the authorities cited by P. Feist in “A Tale from the Sea to Ara–C” at www.pfeist.net/ALL/arac/ (accessed July 15, 2007). These include, inter alia: D. J. Newman, G. M. Cragg (2004), Advanced Preclinical and Clinical Trials of Natural Products and Related Compounds from Marine Sources, Current Medicinal Chemistry,
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compound spongothymidine in a species of marine sponge (Cryptotethia crypta) which grew in coastal waters Florida and the subsequent development of the Ara–C (cytosine arabinoside) oncology drug from this compound in the 1950s.8 This drug is still used to treat cancer and there is some support in the scientific that spongothymidine is one of the precursors of all nucleoside drugs.9 Many of pioneering marine biodiscovery programmes in the United States and elsewhere focused on sea anemones. More recently, much study has been undertaken on invertebrates, algae and marine microbes. This study is greatly facilitated by automated screening techniques, new scientific disciplines such as bioinformatics as well as advances in genomic research. In 1982, for example, a methane producing marine microorganism (Methanococcus jannaschii) was fully sequenced by scientists. Less than half of the organism’s genome shared similarities to the genomes of previously studied prokaryotes (bacteria) and eukaryotes (fungi, plants and animals), which comprise the two other major branches of life. This meant that a large proportion of the microbe’s genome was new to science. In 1996, researchers at The Institute for Genomic Research confirmed that the Archaea represented a third major branch of life on Earth. Today much of July 2004, vol. 11, no. 13. pp. 1693-1713 (21); A. M. S. Mayer, “Marine Pharmacology in 1998: “Antitumor and Cytotoxic Compounds”, The Pharmacologist, Vol. 41, No. 4, 1999, p. 159; Modern Drug Discovery, on the web, ACS Publications, Nature’s pharma sea, MDD lab, Jan. 2002, vol. 5, no. 1, pp. 32-38; S. S. Yang, G. M. Cragg. D. J. Newman, and J. P. Bader, Natural Product-Based Anti-HIV Drug Discovery and Development Facilitated by the NCI Developmental Therapeutics Program, Journal of Natural Products, 200, vol. 64, no. 2; G. Schwartsmann, A. Brondani da Rocha, R. GS Berlinck and J. Jimeno, “Marine organisms as a source of new anticancer agents”, Lancet Oncol 2001; 2: 221-5; A.J.S. Ray. Online on The Scientist.com, Oceans: Medicine Chests of the Future?, The Scientist 13 [19]1, Sep. 27, 1999; A. Kijjoa and P. Sawangwong Marine drugs review article on the web, Drugs and Cosmetics from the Sea, Mar. Drugs 2004, 2. 8 See S.S. Cohen, “Sponges, Cancer, Cellular Aging”, Perspectives in Biology and Medicine, Winter (1963) 6(2):215–227. 9 Suckling, C. J. Chemical approaches to the Discovery of New Drugs. Sci. Prog. 1991, 75, 323-359.
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the research focuses on a broad range of macro and micro-organisms including bacteria, archae, fungi, yeasts and viruses. In 2007, the Report of the Secretary–General of the United Nations on the Oceans and the Law of the Sea noted that proteins and in particular enzymes (biochemical cataclysts) are prime candidates for biodiscovery. New marine species are regularly being discovered under international research programmes such as the Census of Marine Life. These include shrimp and other life forms living in extreme environments including at hydrothermal vent sites where temperatures have been recorded at 407°C, the hottest marine temperature ever recorded. Zooplankton have been discovered 5 km below the surface of the Sargossa Sea and a single litre of common seawater taken from the Atlantic was found to have over 20,000 kinds of bacteria floating in it.10 Many of these discoveries have led to the development of new commercial products.11 The range of applications varies enormously from fibre–optic cables to cosmetic and skin care products. Some of the most exciting developments are in the medical domain where considerable research has been undertaken by specialist institutes in the United States.12 Much of the research has focused on the identification of anti–cancer compounds as well as compounds to treat Alzheimer’s disease, asthma, pain, and viral infections. As mentioned above, many of the early research programmes were focused on shallow tropical water mainly because of ease of access. More recently, the focus has shifted towards the exploration of the continental shelf and the deep–ocean floor where various forms of life live in extreme environments.13 The main 10
See www.comlr.org US Dept of Commerce/NOAA, Discovering Earth’s Final Frontier: A US Strategy for Ocean Exploration. The Report of the President’s Panel on Ocean Exploration 43 (2000). 12 The National Cancer Institute in the USA, the Centre for Marine Biotechnology and Biomedicine at Scripps Institution of Oceanography, and at the Division of Biomedical Marine Research at Harbor Branch Oceanographic Institution in Florida. 13 See B. Moore “A U.S. perspective on Global marine science in Recent Developments in the Law of the Sea and China (Martinus Nijhoff, Leiden/Boston, 2006), pp. 293-316. 11
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characteristic of deep-ocean species is their tolerance to extreme conditions and their very peculiar physiology. Levels of endemism in the deep-ocean habitats are very high (more than 90 per cent in the case of hydrothermal vent sites). There appears to be no general rule regarding which marine organisms are most likely to be the focus of biodiscovery programmes. However, there is some support for the view that: The majority of marine-derived compounds are obtained from either microorganisms or stationary organisms such as corals, sponges, and tunicates. Because stationary organisms cannot evade predators through movement, they rely heavily on chemical defense mechanisms to protect themselves. 14 These mechanisms generate compounds that frequently show significant bioactivity, or effects on living cells or organisms, such as those which cause human ailments.15 It should also be borne in mind that microbes can be collected more quickly and more cost-effectively than larger organisms. Their removal has little impact on the natural environment and in most instances they can be cultured in large quantities. However, few countries (other than Japan, The Russian Federation, the USA and France) have the technical expertise to undertake manned exploration of the deep-ocean with a view to collecting samples from extreme environments such as hydrothermal vents. Other countries such as Ireland, will be depend on unmanned exploration (ROV) which do not require such levels of technical expertise. Furthermore as noted by two of the leading experts, “when it comes to investigation of the samples and then particularly the further development to a drug, there is only one country, the USA, where 14
Faulkner, JD. 2002. Marine natural products. Natural Products Review 19: 1-48. Mill S. et al., Medicines from the Deep, The Importance of Protecting the High Seas from Bottom Trawling (Natural Resources Defense Council, issue paper: March 2005) Available at http://www.nrdc.org/water/oceans/medicines/medicines.pdf 15
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the government funds materials through to clinical trials (and then only in the case of cancer and AIDS). In all other cases, industrial involvement is necessary and, again, only a few groups can go all the way without involving others.”16 One final point that is relevant in this context is that product development entails very high costs over an attenuated period. In the case of new drugs this may be up to USD 1.7 billion and it may take up to 15 years to produce results.17 Furthermore, only 1 to 2 per cent of preclinical candidates actually reach the market place.18 Neither is it possible to be definitive on how long it will take to make the initial discovery because the testing of old samples with new technology sometimes demonstrates scientific potential that was not evident when the sample was initially screened for activity.19 Unsurprisingly, the advent of metagenomic libraries, genome shotgun sequencing, as well as rapid advances in deepocean exploration technology have all accelerated the discovery process. Accordingly, technical expertise, industry lead partnerships, cost, and the long lead-in-time before commercialisation are important factors to be taken into consideration in establishing an appropriate governance programme.
16
See J. Newman and G.M. Cragg, “Political, legal, scientific and financial aspects of marine biodiscoery programmes” in Deep Sea 2003: Conference on the Governance and Management of Deep-sea Fisheries. Part 2: Conference poster papers and workshop papers, (Rome, FAO, 2006) pp. 447-454. 17 The United Nations estimates that the cost of research and development of a new drug (not necessarily one related to marine biotechnology) presently range between USD 231 / USD 500 million to USD 800 million / USD 1.7 billion. See para. 108 of the Addendum to the Report of the Secretary-General to the United Nations General Assembly on the Oceans and the Law of the Sea, 15 July 2005, AD /60/63/Add.1. 18 Ibid. 19 See, inter alia: Shu, Y.-Z. Recent Natural Products Based Drug Development: A Pharmaceutical Industry Perspective. J. Nat. Prod. 1998, 61, 1053-1071; Young, R. N. Importance of Biodiversity to the Modern Pharmaceutical Industry. Pure Appl. Chem., 1999, 71, 1655-1661.
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Little consensus on definitions One of the first problems for the lawyers is that there is no universal definition of the terms “biodiscovery” “or “bioprospection” in international or European law. Neither term is mentioned in the 1982 LOS Convention or in the 1992 Convention on Biological Diversity. This omission is compounded by the tendency of scientists and lawyers to use the terms interchangeably. Accordingly, both terms merit further consideration here. The term “biodiscovery” is a hybrid term and is a combination of the words “biological” and “discovery”. The term is used in the domestic law on a number of States which have specific legislation aimed at controlling the use of biodiversity for the purpose of commercial research.20 A notable example is the Biodiscovery Act 2004 of Queensland, Australia, which defines “biodiscovery” to mean: “biodiscovery research; or the commercialisation of native biological material or a product of biodiscovery research”.21 “Biodiscovery research” in turn is defined in the same Act to mean “the analysis of molecular, biochemical or genetic information about native biological material for the
20
Diversity is a measure of difference and marine biodiversity may thus be understood as a measure of biological difference in the marine environment including both ecological and genetic diversity. The classical definition of “biological diversity" as a term of art is provided in the 1992 Convention on Biological Diversity which defines the term in Article 2 to mean “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems” see M. Lodge, “Improving International Governance in the Deep Sea”, 19 International Journal of Marine and Coastal Law 299-316 (2004) at p.302, n.12. 21 Schedule, Biodiscovery Act 2004. For an excellent analysis of the legal framework governing and the law in a number of coastal States including Australia (and the Biodiscovery Bill 2003), see D. Owen, “A Study into the Legal Framework for Marine Biotechnology Development in the United Kingdom”, Foresight Marine Panel (Report: FMP MBG–01 2004), available at: http://www.defra.gov.uk/science/project_data/DocumentLibrary/ME1403/ME1403_1275 _FRP.pdf
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purpose of commercialising the material”.22 One key component in this definition is that “native biological resource” is limited in scope to “nonhuman living organism or virus indigenous to Australia and sourced from State land or Queensland waters; or a living or non-living sample of the organism or virus.”23 In other words, the application of the legislation is limited to resources that are only found in Australia. The term “commercialisation” of native biological material is defined in the Act as “using the material or property in any way for gain”.24 The term does not include using the material to obtain financial assistance from a State or the Commonwealth, including, for example, a government grant (for research purposes).25 Similar to the word “biodiscovery”, the term “bioprospecting” is a combination of the two words “biological” and “prospecting”.26 The term appears in the domestic law of several States that have enacted legislation to implement the 1992 Convention on Biological Diversity. A good example is the law in the Philippines which defines “bioprospecting or prospecting” to mean “the research, collection and utilization of biological and genetic resources for the purposes of applying the knowledge derived therefrom for scientific and/or commercial purposes”.27 Similarly, there are many references to the term “bioprospecting” in the specialist literature on genetic resources. In 2003, for example, the Subsidiary Body on Scientific, Technical and Technological Advice of CBD defined “bioprospecting” to mean “the exploration of biodiversity for 22
Ibid. Id. 24 Id 25 Id. 26 E. Asebey, J. Kempenaar, "The Intellectual Property Perspective on Biodiversity: Biodiversity Prospecting: Fulfilling the Mandate of the Biodiversity Convention" (1995) 28 Vanderbilt Journal of Transnational Law 703. 27 Department Administrative Order No.96-20. These regulations contain a very broad list of definitions for terms such as: “academic research agreement”, “benefit sharing”, “biological diversity”, “commercial research agreement”, “genetic material”, “genetic resources”, “prior informed consent” and “sustainable use”. 23
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commercially valuable genetic and biochemical resources” and as “the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products”.28 We can make a number of very general points about these definitions: Firstly, “marine biodiscovery” refers to the examination of marine biological resources (e.g. plants, animals, micro-organisms) for features that may be of value for commercial development.29 These features may include chemical compounds, genes and their products or, in some cases, the physical properties of the material in question.30 Secondly, the precise range of activities covered by biodiscovery may be wide-ranging and extend from the initial sampling of organisms in the marine environment to its subsequent investigation in the laboratory.31 The initial phase of research is more often than not undertaken at sea by scientists embarked on research vessels that may be deployed in sea areas under foreign state jurisdiction or in areas beyond national jurisdiction. In other cases it may involve the initial harvesting of organisms from the
28
This definition is important because it is provided in their study on the relationship between the CBD and the 1982 LOS Convention with regard to the conservation and sustainable use of genetic resources on the deep sea-bed. See Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev. 1 of 22 February 2003, para. 49. 29 See “Bioprospecting in New Zealand - Discussing the Options”. Available at: www.med.govt.nz/ers/nat-res/bioprospecting/ 30 Ibid. 31 See D. Owen, “A Study into the Legal Framework for Marine Biotechnology Development in the United Kingdom”, Foresight Marine Panel (Report: FMP MBG–01 2004), available at: http://www.defra.gov.uk/science/project_data/DocumentLibrary/ME1403/ME1403_1275 _FRP.pdf
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marine environment and their culture in the laboratory for the purpose of further investigation or for commercial production.32 Thirdly, the means of collection may vary and include the collection of samples by means of a submersible.33 Marine biodiscovery may be the focus of a particular research programme which aims to obtain a particular organism for analysis or it may be more exploratory and involve the screening of a wide range of organisms for unusual features or properties. In some instances, organisms may be sought exclusively for their genetic information and in other cases they may be sought for a biochemical or molecular process that has a commercial application.34 Fourthly, many contemporary definitions of biodiscovery place emphasis on the search of biodiversity for valuable genetic and biochemical information found in wild plants, animals and microorganisms (emphasis added).35 Accordingly it is the information that is important and not the source material per se. Fifthly, a principal attribute of biodiscovery is the commercialisation of the research or the intellectual property derived from the research. This characteristic is emphasized in a number of authoritative reports on the subject of marine genetic resources.36 32
Ibid. Id. 34 Id. 35 See W. Reid et al, "A New Lease on Life" in W. Reid et al, eds., Biodiversity Prospecting: Using Genetic Resources for Sustainable Development, (Washington, DC, World Resources Institute, 1993). 36 For example, the United Nations University–Institute of Advanced Studies Report on Bioprospecting of Genetic Resources in the Deep Seabed: Scientific, Legal and Policy Aspects states that “bioprospection” involves research for commercial purposes” at p.15. This study goes on to suggest that the possible elements of a definition of bioprospecting include: the systematic search, collection, gathering or sampling of biological resources for the purposes of commercial or industrial exploitation; the screening, isolation, characterization of commercially useful compounds; the testing and trials; and further 33
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Essentially, commercialization entails converting the results of research projects into marketable products or services. In nearly all instances this takes place long after the original source material was acquired or after the material has been stored in a culture collection or reference library. Moreover, many scientific breakthroughs are serendipitous and have not come about as a result of targeted research programmes. However with advances in biotechnology, genomics, bioinformatics, as well as other scientific disciplines, biodiscovery is now ensuring that the commercialisation of marine products is happening more rapidly. Commercialisation has important legal consequences as it clearly distinguishes biodiscovery from the more traditional forms of marine scientific research (examined below) such as taxonomy which is the systematic identification and classification of living organisms according to their genetic and morphological characteristics. On this point, it is important to keep in mind that there is a fundamental link between biodiscovery and taxonomy as the former is very much dependent on the reliable classification of marine living organisms in the first instance. Indeed, one impediment to the successful implementation of biodiscovery programmes at an international level is the shortage of suitably qualified taxonomists capable of correctly identifying and classifying marine organisms for research purposes.37 Moreover, one of the direct benefits of biodiscovery is the enhancement of knowledge about marine biodiversity generally and about marine organisms in particular. Sixthly, it is clear from the specialist literature that there is no consensus on the precise meaning of the terms “biodiscovery “or application and development of isolated compounds for commercial purposes, including large–scale collection, development of large scale culture techniques, and conduct of trials for approval for commercial sale (emphasis added). 37 See Report of the work of the United Nations Open-ended Informal Consultative Process on Oceans and Law of the Sea at its eight meeting, UN General Assembly A/62/169, 30 July 2007, para.101. Available at: http://www.un.org/Depts/los/consultative_process/consultative_process.htm
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“bioprospection”. On the one hand, they may be understood as describing the entire research and development process from sample extraction in the marine environment through to the full scale commercialisation and marketing of a new product or process.38 One expert, on the other hand, has made the interesting distinction that the phase of initial research and gathering of information could be referred to as “biodiscovery”, while the term “bioprospecting” could cover the subsequent phases of collection of the resources for purposes of further investigation and eventual commercial application.39 Irrespective of whether one accepts this distinction or not, it is clearly evident that both terms embrace a very broad range of disciplines including ecology, biology, biochemistry, organic chemistry and pharmacology, as well as the subsequent commercial process of taking the new product or process to the market place. Finally and solely for the purpose of this paper, “biodiscovery” is understood to refer to the collection of small amounts of marine biological material and their subsequent screening to identify bioactive compounds that may be used for commercial purposes. This definition has three key features: it entails the collection and use of small amounts of biological/geochemical material, its subsequent screening, and the application of knowledge for commercial purposes (emphasis added).
38
See United Nations University, An Update on Marine Genetic Resources: Scientific Research, Commercial Uses and a Database on Marine Bioprospection, United Nations Informal Consultative Process on Oceans and the Law of the Sea, 8th Meeting, United Nations, New York, 25-29 June 2007. 39 See paper by D. J. Newmann Deep Sea 2003, an International Conference on Governance and Management of Deep-sea Fisheries, Fisheries Report No. 772, (Rome, Food and Agriculture Organization of the United Nations, 2005); D. J. Newman, G. M. Cragg and K. M. Snader, “Natural products as sources of new drugs over the period 1981-2002”, Journal of Natural Products, vol. 66, No. 7 (2003).
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Relevant provisions in the 1982 LOS Convention The 1982 LOS Convention does not refer expressly to biodiscovery or bioprospection. There are however extensive provisions on MSR in the Convention which are set out in Part XIII and are summarised in Table 1 below. 40
40
For detailed analysis of negotiation of the MSR provisions in the 1982 LOS Convention, see Myron H. Nordquist, Shabtai Rosenne and Alexander Yankov, United Nations Convention on the Law of the Sea 1982: A Commentary, Vol. IV (Dordrecht: Nijhoff, 1991). The first major monograph on the subject was undertaken by Professor Soons at the Netherlands Institute on the Law of the Sea, Utrecht University and published the same year the Convention was signed (1982) and twelve years before the Convention came into force in 1994. See, A. Soons, Marine Scientific Research and the Law of the Sea (Deventer, Netherlands: Kluwer Law, 1982). Subsequently, a useful summary of the principal provisions in the Convention was published by Alexander Yankov, a member of USSR delegation and since a Judge at the International Tribunal on the Law of the Sea, and who as Chairperson of the Third Committee had first–hand knowledge of the negotiations of the MSR provisions in the Convention, see A. Yankov, “A General Review of the New Convention on the Law of the Sea: Marine Science and its Application,” 4 Ocean Yearbook 150-175 (1983). In 1991, the United Nations published a useful guide which is now somewhat dated, see United Nations, Guide for the Implementation of the Relevant Provisions of the UN Convention on the Law of the Sea (United Nations, Office for Ocean Affairs and the Law of the Sea, New York, 1991). There have also been a number of insightful journal articles including inter alia: P. Birnie, “Law of the Sea and Ocean resources: Implications for Marine Scientific Research,” 10(2) International Journal of Marine and Coastal Law 229-251 (1995); J. Ashley Roach, “Marine Scientific Research and the New Law of the Sea,” 27 Ocean Development and International Law 59-72 (1996). Also see, R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press, Manchester, 1999), pp. 400–420; In recent years, two comprehensive works have been completed on MSR by Montserrat Gorina-Ysern, An International Regime for Marine Scientific Research (Ardsley, NY: Transnational Publishers, 2003); and by Florian H.Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and other Platforms in International Law (Leiden: Nijhoff, 2005). In Ireland, see, C. R. Symmons, P. Gardiner, 1983. “Marine Scientific Research in Offshore Areas, Ireland and the Law of the Sea Convention”. Marine Policy, 7(4), 291–231; C. Symmons, Ireland and the Law of the Sea (2nd. ed., Dublin, Round Hall Sweet and Maxwell, 2000),391-406; R. Long, Marine Resource Law (Dublin, Thomson Round Hall, 2007), 684–722.
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Subject
Article 245
Marine scientific research in the territorial sea
Article 246
Marine scientific research in the EEZ and on the continental shelf
Article 247 Article 248
Marine scientific research projects undertaken by or under the auspices of international organisations Duty to provide information to the coastal State
Article 249
Duty to comply with certain conditions
Article 250
Communications concerning marine scientific research projects
Article 251
General criteria and conditions
Article 252
Implied consent
Article 253
Suspension or cessation of marine scientific research activities
Article 254
Article 256
Rights of neighbouring land-locked and geographically disadvantaged states Measures to facilitate marine scientific research and assist research vessels Marine scientific research in the Area
Article 257
Marine scientific research in the water column beyond the EEZ
Article 255
There are a number of general points that may be made about Part XIII. Firstly, it should be noted that all States and competent international organisation (irrespective of their geographical location) have the right to 41
Reproduced from R. Long, Marine Resource Law (Dublin, Thomson Round Hall, 2007), 684–722.
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conduct MSR subject to the rights and duties of other States as provided for in the 1982 LOS Convention.42 Indeed, the Convention places an express duty on states and international organisations to promote and facilitate the development and conduct of MSR.43 Several principles apply under the Convention to the conduct of MSR including the requirement that it is conducted exclusively for peaceful purposes, with appropriate scientific methods and means compatible with the Convention.44 In addition, it must not unjustifiably interfere with other legitimate uses of the sea that are compatible with the Convention and must be duly respected in the course of such uses.45 MSR must be conducted in compliance with all relevant regulations adopted in conformity with the Convention including those for the protection and preservation of the marine environment.46 Importantly in the context of designing a framework for marine biodiscovery activities, MSR must not constitute the legal basis for any claim to any part of the marine environment or its resources.47 The Convention aims to promote international cooperation and create favourable conditions for the conduct of MSR and calls for the conclusion of bilateral and multilateral agreements with a view to integrating the efforts of scientists in studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them.48 Surprisingly, there is little evidence of state practice in this regard since the coming into force of the Convention in 1994. Apart from a number of memoranda of understanding that have been concluded between scientific institutes there appears to be few bilateral or multilateral agreements aimed at creating favourable conditions for MSR. 42
1982 LOS Convention, Art.238. Ibid., Art.239. 44 These principles are set out in Art.240(a) to (d). 45 Ibid. 46 Id. 47 Art.241. 48 Art.243. 43
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The rights and duties of all States and international organisations vary in the different maritime jurisdiction zones that come under the sovereignty and jurisdiction of a coastal State. In the case of Ireland, these zones include internal waters, the territorial sea, the Exclusive Economic Zone, and the continental shelf. The rules that apply to foreign MSR are relatively straight forward and are briefly reviewed here.49 In the exercise of sovereignty, the coastal State has the exclusive right to conduct, authorise and regulate MSR in the territorial sea.50 Although the Convention is silent on the matter, the coastal State has the exclusive right to conduct, authorise and regulate MSR in “internal waters” and this includes in the sea area on the landwards side of straight baselines. MSR may only be conducted by foreign research vessels in the territorial sea/internal waters with the express consent of the coastal State. Seaward of the territorial sea, the coastal State has jurisdiction over MSR and this includes the right to conduct, authorise and regulate MSR in the EEZ and on the continental shelf subject to the standards and qualifications set down by the 1982 LOS Convention.51 Essentially, the Convention differentiates between two types of research—the first type relates to research carried out exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. For this type, the coastal State must in normal circumstances grant consent for MSR projects by other states or competent international organizations in the EEZ or on the continental shelf.52 The coastal State is also obliged to establish rules and procedures ensuring that such consent will not be delayed or denied unreasonably.53 In practice, few states have specific legislation governing MSR and the general preference appears to be for the establishment of administrative 49
See R. Long, Marine Resource Law (Dublin, Thomson Round Hall, 2007), pp. 684– 722. 50 1982 LOS Convention, Art.245. 51 Ibid., Arts 246–255. 52 Id. Art.246(3). 53 Ibid.
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schemes for controlling foreign MSR in sea areas under national jurisdiction.54 The second type relates to research on natural resources in the EEZ or on the continental shelf. For the second type, the costal State has discretion to withhold consent if: the research project is of direct significance for the exploration and exploitation of the living or non-living resources;55 involves drilling into the continental shelf; involves the use of explosives or the introduction of harmful substances into the marine environment; or entails the use of artificial islands, installations, or structures.56 In certain circumstances, the coastal State may deny consent if the researching State has not provided accurate information or has outstanding obligations in relation to previous research projects.57 Consent is also granted subject to a number of conditions including the coastal State’s right under the Convention to participate in the project, to have access to data and samples and to assistance in the interpretation of data and results, and to have the results of the research project internationally available as soon as practicable.58 This is without prejudice to the conditions established by the laws and regulations of the coastal State for the exercise of its discretion to grant or withhold consent including requiring prior agreement for making internationally available the research results of a project of direct significance for the exploration and exploitation of natural resources. Slightly different rules apply to MSR on the outer continental shelf, that is to say on the part of the shelf that extends beyond 200 miles 54
See replies to Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) questionnaire no. 3. Available at http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=45&Itemi d=56 55 Under Art.246(6), coastal States may only withhold their consent in relation to this ground in areas of the continental shelf beyond 200 miles that are publicly designated as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. 56 Ibid., Art.246(5)(a)–(c). 57 Ibid., Art.246(5)(d). 58 Ibid., Art.249.
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measured from the baselines. In such areas, the coastal State may not exercise its discretion to withhold consent in respect of MSR projects outside of those specific areas which are publicly designated as areas in which exploitation or detailed exploratory operations focused on those areas are occurring or will occur within a reasonable period of time.59 Coastal States must give reasonable notice of the designation of such areas, as well as any modifications thereto, but shall not be obliged to give details of the operations therein. The 1982 LOS Convention sets down a number of general and specific duties on both the coastal State and the researching State. Thus, for example, MSR activities must not unjustifiably interfere with activities undertaken by coastal States in the exercise of their sovereign rights and jurisdiction provided for in the 1982 LOS Convention. The researching State or States and competent international organizations which intend to undertake the MSR must provide considerable information when requesting consent to undertake research in the EEZ or continental shelf. This information must include a full description of: (a) the nature and objectives of the project; (b) the method and means to be used, including name, tonnage, type and class of vessels and a description of scientific equipment; (c) the precise geographical areas in which the project is to be conducted; (d) the expected date of first appearance and final departure of the research vessels, or deployment of the equipment and its removal, as appropriate; (e) the name of the sponsoring institution, its director, and the person in charge of the project; and
59
Art.246(6)
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(f) the extent to which it is considered that the coastal State should be able to participate or to be represented in the project. MSR beyond the limits of national jurisdiction is a high seas freedom. The specific issues associated with biodiscovery on the high seas are beyond the scope of this paper. The different rules that apply to MSR in these zones under the Convention are briefly summarised in Table 2 below. Biodiscovery projects may be undertaken by or under the auspices of international organisations that have competence in marine scientific research. There are a number of reasons for this including the cost of undertaking deep–ocean science as well as the limited number of institutions worldwide who own or operate vehicles that are able to reach areas deeper than 1,000 metres below the oceans’ surface and can therefore be actively involved in deep seabed research. There is a specific provision (Article 247) in the 1982 LOS Convention dealing with MSR projects undertaken by or under the auspices of international organizations.60 This article provides that a coastal State which is a member of or has a bilateral agreement with an international organization, and in whose EEZ or on whose continental shelf that organization wants to carry out a MSR project, directly or under its auspices, shall be deemed to have authorized the project to be carried out in conformity with the agreed specifications if that State approved the detailed project when the decision was made by the organization for the undertaking of the project, or is willing to participate in it, and has not expressed any objection within four months of notification of the project by the organization to the coastal 60
See inter alia: B. H. Oxman, “The Third United Nations Conference on the Law of the Sea: The 1977 New York Session” (1978) American Journal of International Law, pp. 57–83, at 77–78; United Nations, Guide for the Implementation of the Relevant Provisions of the UN Convention on the Law of the Sea (United Nations, Office for Ocean Affairs and the Law of the Sea, New York, 1991), pp. 14-15.
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State. Essentially, this article foresees the establishment of a special consent regime for projects undertaken by or under the auspices of international organizations when such projects can only be executed meaningfully when access is available to the EEZs of several coastal States. In particular, it foresees a simplified and less bureaucratic procedure for projects which involve regional or global intergovernmental organisations. The procedure envisaged by Article 247 is aimed at enabling long–term planning by scientists and could be used by any international organisation with competence in marine scientific research.61 At the time of writing, only one international organisation, the Intergovernmental Oceanographic Commission has adopted an internal procedure for the implementation of Article 247. The procedure has been described as quite cumbersome and it has been questioned by one leading expert in the field who played a major role in its drafting whether it will be ever implemented by the IOC.62 Importantly, states and competent international organisations are responsible for ensuring that MSR, whether undertaken by them or on their behalf, is conducted in accordance with the 1982 LOS Convention.63 In this context, they are responsible and liable for any measure they take in contravention of the 1982 LOS Convention with respect to research by other states, their natural or juridical persons, or by competent international organisations and are obliged to provide compensation for damage resulting from such measures.64 They are also liable for damage caused by pollution of the marine environment arising out of MSR.65
61
Ibid. See A. Soons, “The Legal Regime of Marine Scientific Research: Current Issues” in M. Nordquist, R. Long, T. Heidar, J. Norton Moore eds., Law, Science and Ocean Management (Leiden/Boston, Martinus Nijhoff, 2007), p.158. 63 Ibid., Art.263(1). 64 Ibid., Art.263(2). 65 Ibid.,, Art.235. 62
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Rights in relation to MSR
Internal waters / territorial sea
Coastal States have the exclusive right to regulate, authorise and conduct MSR including biodiscovery
Exclusive Economic Zone/ Coastal States have the exclusive right to regulate, authorise and conduct MSR continental shelf (within 200 miles) including biodiscovery. ¾ Must grant consent in normal circumstances to other states and competent international organisations for MSR projects that are carried out in accordance with the Convention exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind. ¾ Have discretion to withhold their consent to the conduct of MSR of another state or competent international organisation if the project is inter alia of direct significance for the exploration and exploitation of natural resources whether living or non-living. Outer continental shelf (beyond 200 Right of the coastal State to authorise and regulate MSR in the specific areas miles from the baselines) which it may publicly designate as areas in which exploitation or detailed 155
Ronán Long exploratory operations focused on those areas are occurring or will occur within a reasonable period of time. Water column beyond the EEZ/ All States and competent international organisations have the right to conduct International seabed area MSR
Can we distinguish biodiscovery from the more traditional forms of marine scientific research? As mentioned previously, the term “marine scientific research” is not defined in the 1982 United Nations Convention on the Law of the Sea and there is considerable debate at an international level as to the precise range of activities that may be considered as MSR for the purpose of the Convention. In particular, different views have been expressed on whether routine operational oceanography data collection and hydrography come within the scope of the provisions in the Convention on MSR.66 Broadly speaking, MSR involves gathering information, data, or samples and their subsequent analysis. In many instances it may not initially be undertaken with a view to economic gain, although the research results generated may be commercially valuable. MSR may involve cooperation between participating scientists, dissemination of data, exchange of publicly and privately owned samples between researchers, as well as the publication of research results. Some commentators have drawn a distinction between fundamental scientific research which is undertaken exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for the benefit of all mankind and applied marine scientific research which is
66
See A. Roach “Defining Scientific Research: Marine Data Collection”, Law, Science and Ocean Management (Leiden/Boston, Martinus Nijhoff Publishers, 2007), 541–573.
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undertaken on natural resources for commercial purposes.67 There is also some support for this view in the expert reports on the subject of marine genetic resources. For example, the report undertaken by the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA) of the Parties of the Convention on Biological Diversity points out that: Marine scientific research activities are characterized by their transparency and openness, the obligation to disseminate information and data obtained therefrom, as well as the subsequent publication of results of the research. Marine scientific research has, therefore, to be distinguished from other investigative marine activities with any kind of commercial component, such as prospecting, exploration, or fish stock assessment, which may involve confidentiality or proprietary rights. Under the United Nations Convention on the Law of the Sea, marine scientific research is primarily aimed at furthering mankind’s knowledge of the marine environment, its resources and various phenomena, and is not a vehicle for searching for natural resources for commercial purpose.68 Elsewhere in this report it is suggested that: In the absence of a formal definition, marine scientific research could be defined as an activity that involves collection and analysis of information, data or samples aimed at increasing mankind’s knowledge of the environment, and is not under-taken with the intent of economic gain. Since the object is the enhancement of knowledge, marine scientific research is characterized by openness, dissemination of data, exchange of samples, as 67
Arts 246(3) and 246(5), 1982 LOS Convention. On this point see, R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press, Manchester 1999), p.405. 68 SBSTTA Report, Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev. 1 of 22 February 2003, para. 39,
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well as publication and dissemination of research results as provided for in Part XIII.69 There are many problems associated with this somewhat theoretical distinction between pure and applied research. Indeed it may be argued that this distinction is more illusory than real because in many cases the source material used in biodiscovery may have been obtained and analysed as part of a marine scientific research project which was not undertaken exclusively for economic gain. In some cases, it may only become apparent at a much later stage that the knowledge, information and useful materials collected during such projects have a commercial application. It should also be noted that government and European Union sponsored research programmes often encourage marine researchers to pass organisms and related discoveries to industry as a form of technology transfer. Even where this is not required, organisms and environmental samples, such as water and sediment samples may be passed to industry by marine scientific researchers under material transfer agreements. At a practical level, it is often difficult to draw a firm line between fundamental research and research that may at some point be significant in terms of the commercial development of a product. Indeed, primary research and sampling in the marine environment will often be the first step in the long process that ultimately leads to product development and commercialization. As noted in the UN Secretary–Generals Report on the Oceans and the Law of the Sea, the difference between scientific research and biodiscovery/bioprospecting therefore seems to lie in the use of knowledge and results of such activities, rather than in the practical nature of the activities themselves.70 69
Ibid., para.47. Professor Scovazzi has argued that the SBSTTA provides not a definition, but an interpretation of the notion of marine scientific research as used in the 1982 LOSC. 70 Report of the Secretary–General on the Oceans and the Law of the Sea, A/60/63/Add.1. para. 202.
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In summary, marine biodiscovery, if it is resource related, requires the express consent of the coastal State and this consent may be withheld at the discretion of the coastal State if the research is of direct significance for the exploration and exploitation of natural resources. In this context, it is important to recall that under the Convention, MSR must not constitute the legal basis for any claim to any part of the marine environment or its resources (emphasis added).71 Indeed, one commentator has pointed out that the current international regime for MSR under the Convention does not deal with proprietary title over MSR data results.72 Results made available to the public often lead to developments of new marine products or processes which require protection as an intellectual property right. Such rights are regulated by private agreements rather than under international regulation and may thus constitute a "claim" under Article 241. Therefore it would seem prudent that this issue is addressed by coastal State authorities prior to granting consent for foreign MSR activity in sea areas under national jurisdiction. In particular, consent for applied marine scientific research could be made subject to specific provisions addressing the commercialisation of the research. Furthermore, the coastal State ought to seek consultation and precise information regarding any proposals for the patent protection of inventions concerning microorganisms, micro-biological and non-biological processes. Are the provisions in the Convention on “natural resources” applicable to biodiscovery? The search and collection of macro-organisms plants, animals, fungi or micro–organisms may constitute natural resource exploration and exploitation if it is accepted that the organisms which are the focus of biodiscovery are covered by the term “natural resources” as used in the 71
Art. 241 of the 1982 LOS Convention. See Y. Montserrat Gorina-Ysern, An International Regime for Marine Scientific Research (Ardsley, NY: Transnational Publishers, 2003), pp. 353-460 passim. 72
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Convention. This term has four separate meanings under the Convention depending in which maritime jurisdictional zone the resources are found.73 Importantly, under the provisions on the EEZ, the coastal State has sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil.74 In this context, the term “natural resources” undoubtedly includes macroorganisms plants, animals, fungi or micro–organisms found in the EEZ. Similarly, the natural resources governed by the provisions on the continental shelf are the “mineral and other non-living resources of the seabed together with sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil”.75 The meaning of the phrase "...living resources belonging to sedentary species..." is not free from controversy.76 The rationale for the inclusion of the sedentary species in the provisions dealing with continental shelf in the Convention is apparently their attachment to the seabed, expressed in terms of limited mobility at the harvestable stage. Clearly, it may be argued that sedentary species includes the biotic 73
See A. Roach, “Defining Scientific Research, Marine Data Collection” in M. Nordquist, R. Long, T. Heidar, and J, Norton Moore (eds.) Law, Science and Ocean Management (Leiden/ Boston, Martinus Nijhoff Publishers, 2007), p. 545. 74 1982 LOS Convention, Art. 56(1)(a) 75 1982 LOS Convention, Art. 77(4) 76 See inter alia: R.R. Churchill and A.V. Lowe, The Law of the Sea (3rd ed., Manchester University Press, Manchester 1999),p.152.; D. Attard, The Exclusive Economic Zone in International Law (Clarendon Press, Oxford, 1987), pp.190–191; B. Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (Martinus Nijhoff Publishers, Dordrecht, 1989),pp.74-78; S.V. Scott, "The Inclusion of Sedentary Fisheries within the Continental Shelf Doctrine" (1992) 41 I.C.L.Q. 788, V. Prescott, "Resources of the Continental Margin and International Law" in Continental Shelf Limits: The Scientific and Legal Interface (Peter J. Cook and Chris M. Carleton, eds., Oxford University Press, Oxford, 2000), pp. 64–83 . On sedentary species in areas beyond national jurisdiction see, F. M. Armas Pfirter, The Management of Seabed Living Resources in “The Area” under UNCLOS (Report completed for the Tenth Session of International Seabed Authority, 24th May-4th June 2004).
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components associated with the benthic species, as well as the fauna and flora of the continental shelf.77 Accordingly, the coastal State may exercise sovereign rights for the purpose of exploring and exploiting the natural resources of the continental shelf.78 Both within and beyond the Exclusive Economic Zone (EEZ) limits, the rights of the State over the continental shelf resources are exclusive in the sense that no one may exploit these resources without the consent of the State.79 Moreover, under international law, continental shelf rights are not dependent on occupation, effective or notional, or on any express proclamation.80 In the case of fishery resources, however, Ireland similar to other Member States of the European Union has ceded certain powers to manage, conserve and allocate these resources to the EC under the common fisheries policy (CFP). The same is not true in relation to the deepwater ecological resources such as deep-water corals to the west of Ireland.81 These are not European resources for the purpose of management or the allocation of user-related rights, or indeed for undertaking marine scientific research without the express and prior consent of the Irish government. 82 In sea areas within the EEZ limits, the coastal State has a duty to manage and conserve these resources. Beyond the EEZ, the State may authorise the exploration and exploitation of these resources as far as the outer limits of the continental shelf.83 Accordingly, whether an organism on the continental shelf beyond 200 miles is sedentary or not will have important legal consequences since the State’s sovereign rights are limited to biological resources that satisfy this requirement, if they do not they are subject to the regime of the high seas. 77
On this point see See R. Long, Marine Resource Law, paras 3–98 to 3–103. 1982 LOS Convention, Art. 77(1). 79 Art.77(2) of the 1982 LOS Convention. 80 Ibid., Art.77(3). 81 On the protection of deep–water coral see R. Long, Marine Resource Law, paras 10– 143 to 10–151. 82 See R. Long, Marine Resource Law, paras 11–24 to 11–38. 83 Art. 77(1) of the 1982 LOS Convention 78
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This will always entail both a factual and legal analysis on whether these resources satisfy the sedentary species test. As noted in one authoritative study on this subject: …the application of the sedentary species test to microfauna is at best problematic and at the worst farcical. Moreover, allocating conservation and management authority on a species–by–species basis, according to which organisms meet the sedentary species test, will almost certainly preclude an ecosystem management approach….84 The third category of natural resources mentioned in the Convention are the natural resources of the deep seabed beyond the limits of national jurisdiction which is simply referred to as the Area. The regime of the Area is governed according to Part XI of the 1982 LOS Convention and by the 1994 Implementation Agreement relating to the Implementation of Part XI of the United Nations Law of the Sea Convention of the December 1982.85 The resources of the Area are defined by the 1982 Convention as “solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed including 84
See C. Allen, “Protecting the Oceanic Garden of Eden: International Law issues in Deep–Sea Vent Resource Conservation and Management” in 16 Georgetown International Environmental Law Review 563 at 659. 85 The Agreement relating to the Implementation of Part XI of the United Nations Law of the Sea Convention of the December 1982 was adopted in 1994. Under this Agreement, the original provisions of Part XI of the 1982 Convention relating to the setting of production levels and for the transfer of technology to developing States do not apply. Ireland ratified the 1994 Implementation Agreement in 1996. At the time of writing Ireland has not adopted any regulatory measures pertaining to the “Area”. On Ireland’s approach to the negotiation of the provisions in the 1982 LOS Convention, see 309 Dáil Debates Col.1574. For a comprehensive review of the 1982 LOS Convention and the 1994 Agreement, see S.N. Nandan, M. Lodge and S. Rosenne, United Nations Convention on the Law of the Sea 1982 A Commentary (Martinus Nijhoff Publishers, The Hague/London/New York, 2002) Vol. VI.
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polymetallic nodules”.86 Resources, when recovered from the Area, are referred to as ‘minerals’”.87 Clearly, living resources are not mineral resources and do not come within the scope of the resource definition in Part XI of the Convention. However, it should also be noted that under the Convention the ISA has the authority and the duty in some instances to prevent any damage to the marine flora and fauna which may arise from activities in the Area. The functions of the Authority extend in a limited extent to environmental protection and marine scientific research in the Area. The fourth category of “natural resources” is the provisions in the Convention concerning the “living resources of the high seas”.88 In the main, these provisions deal with fisheries and marine mammals. Although the Convention lacks specific provisions on marine genetic resources, living resources of the high seas by definition includes genetic material extracted from fish, marine mammals and from microbes in the water column. In this context, as noted above, it is important to bear in mind that marine genetic material is often collected from fish and a broad range of other vertebrates and invertebrates including squid, sea snails etc. As a matter of practice, marine genetic research will normally only require small quantities of samples for laboratory analysis and may thus be distinguished from fishing which is always aimed maximising the catch. There is however some evidence in the specialist literature that this is not always the case. For instance, the report of the UN Secretary General on the Oceans and the Law of the Sea cites the example of 2,400 kg of sponge yielding less than 1 mg of spongistatin.89 It should also be noted that a number of scholars have pointed that it would be illogical to apply 86
Art.133(a), 1982 LOS Convention. Art.133(b), 1982 LOS Convention. 88 Arts 116 to 120, 1982 LOS Convention. 89 See “Recent Trends in Biological Prospecting,” Information Paper submitted to the 29th meeting of the Antarctic Treaty Consultative Meeting, Document IP116 cited in UN Doc. A/62/ p.35. On the use of spongistatin as a marine natural product, see, Molecular Pharmacology, Volume 44, Issue 4, pp. 757-766, 10/01/1993. 87
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the rules of the LOSC relating to fishing and conservation and management of the living resources of the high seas (Arts. 116 to 120) to activities directed at the acquisition of genetic material from organisms or microbes found in the sea.90 Nevertheless, it should not be forgotten that some of the most successful forms of biodiscovery have been targeted at higher forms of marine life such as tooth fish in the Southern Ocean.91 For this reason, it may not be that easy to draw a distinction between fishing activity and biodiscovery. It should also be noted that the domestic law of several common law countries such as Ireland define “fish” and “fishing” rather broadly and this term could include the collection of fish species for biodiscovery.92 For convenience Table 3 below presents a brief summary of the law which applies to the exploration and exploitation of natural resources in sea areas under coastal State jurisdiction.
90
See, for example, T. Scovazzi, “Mining, Protection of the Environment, Scientific Research and Bioprospecting: Some Considerations on the Role of the International Seabed-Authority” 19 International Journal of Marine and Coastal Law pp.383-409 at p.400. 91 For example, Arctic/Antarctic fish have antifreeze properties which are of interest to marine scientists. One commentator has also pointed out that genetic material may be extracted from fish and marine mammals, see D. Owen, “A Study into the Legal Framework for Marine Biotechnology Development in the United Kingdom”, UK Foresight Marine Panel Report: FMP MBG – 01, January 2004, p. 113. 92 See, for example, s.6 of the Sea-Fisheries and Maritime Jurisdiction Act 2006 in Ireland which defines “fish” and “sea-fish” to include “anadromous and catadromous species and all crustaceans and mollusks found in the sea and the brood and spawn of fish, and references to a fish are to be read as including references to part of that fish”.
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Regulating Marine Biodiscovery Table 3: Consent regime that applies to the exploration of natural resources in sea areas under coastal State jurisdiction Maritime Jurisdictional Zone
Rights of coastal State in relation to resources under the 1982 LOS Convention
Internal waters / territorial sea
Sovereignty over all natural resources
Exclusive Economic Zone
Sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters column and seabed.
Continental shelf (both within and Sovereign rights for the purpose of exploring it and exploiting its natural beyond 200 miles) resources. The natural resources consist of the mineral and other nonliving resources of the seabed and subsoil together with living organisms belonging to sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil. High seas
In principle high seas freedom
International seabed area
Common heritage of mankind
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Case study: regulating marine biodiscovery in sea areas under Ireland’s jurisdiction. Ireland is a useful case study where it may be possible to establish a governance framework for marine biodiscovery. There are several reasons why it may be prudent to establish such a framework. Firstly, Ireland is an island on the Atlantic margin of the Europe Union with a broad continental shelf and abundant biodiversity. The marine sector in Ireland is worth approximately EUR3 billion per annum to the economy. Ireland has a dynamic and well-resourced marine scientific research community which grown rapidly over the last decade. This growth is set to continue under the national development plan with a targeted investment of EUR600 million in the marine sector over the period 2007 to 2011. A key component in this plan is the development of a marine biodiscovery/biotechnology research programme. This is significant because it will move Ireland from its current position of a coastal State where research is carried out by scientists embarked on foreign flagged research vessels to a State which will have primary interest in its own national biodiscovery programme. In addition, Ireland has its own oceangoing research vessel and Irish scientists are very much part of the broader community of European scientists. The second reason why it may be prudent to establish a legislative framework for biodiscovery relates to the large number of foreign research vessels which undertake research in sea areas under Irish jurisdiction.93 For example, there were over 500 foreign MSR vessels which undertook research in this area during the period 1992 to 2007. The origin of these vessels varies considerably with over 260 visits by vessels flying the flag of the United Kingdom, and several visits by vessels from the other Member States of the European Union, the United States, The Russian Federation and Norway. Although the majority of the research cruises are 93
For a detailed of the law applicable to MSR in Ireland, see R. Long, Marine Resource Law, chapter 1, pp. 684-723.
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focused on fisheries research, there is also a considerable number of cruises that collect samples and data on the fauna and flora of the seabed. The consent process for foreign research vessels is essentially an administrative exercise. At the time of writing, it generally takes a number of weeks (sometimes less than 6) to process a foreign research vessel cruise application form. Ireland does not have a rigorous system of oversight regarding the activities of foreign research vessels with scientific observers participate in approximately 3 cruises per annum. Up until relatively recently, Ireland had no facilities for sample storage and little effort was made to evaluate if foreign research projects were being undertaken for commercial purposes. In designing a framework governing foreign biodiscovery, a key challenge for Ireland is to continue to work within the normative framework established by the 1982 Law of the Sea Convention and to uphold its duty to promote and facilitate MSR. One of the key issues to be resolved in relation to foreign MSR is to ensure that the acquisition of samples does not become a covert claim to resources in sea areas under national jurisdiction. In this context, it is important to recall that Ireland has considerable discretion under the Convention regarding the conditions that may be applied to foreign research vessels if their activity is of direct significance for the exploration and exploitation of natural resources in sea areas under national jurisdiction.94 There are several methods which may be used in designing a governance framework for foreign MSR. The most obvious one relates to the enactment of specific regulatory measures protecting the marine bioresource and implementing in domestic law the provisions codified in the 1982 LOS Convention. Any such regulation should have specific provisions dealing with ownership of MSR data, samples and the results of MSR. Alternatively, it is also possible to adopt measures for the establishment of marine protected areas. Ireland already has such 94
Arts 246, 248 and 249 of the 1982 LOS Convention.
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measures in place for the protection of deep-water coral in the EEZ. Similarly, Canada and Portugal have established MPAs for the protection of hydrothermal vent sites. The designation of areas as MPAs facilitates the adoption of codes of practice governing MSR. In the European context, considerable work has been undertaken in this regard within the framework of the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic. The principle difficulty regarding the establishment of a specific governance regime for biodiscovery is how to reconcile the various rights and duties that arise under international treaties including inter alia: the 1982 LOS Convention, the 1992 Convention on Biological Diversity, the Convention on International Trade in Endangered Species of Wild Flora and Fauna, as well as the Agreement on Trade Related Aspects of Intellectual Property, Including Trade in Counterfeit Goods. This task is compounded by the many aspects of European law that are relevant to such a framework. Nevertheless, such a framework should aim to: promote and facilitate MSR; respect the balance between coastal State rights and researching State/international organisations interests; retain favourable conditions for the acquisition of data and the collection of samples from the marine environment. The framework should also place an emphasis on the monitoring of research perhaps through the establishment of a database and the registering of all biodiscovery related activities including the patenting of inventions. Although MSR should not form the basis of any claim to the marine environment or its resources, this risk should not be overemphasised or used as a reason to curtail MSR. Indeed, in order to address concerns regarding property rights it may be prudent to address this issue through the medium of intellectual property law at the point of commercialisation. In Ireland, one of the issues to be resolved in this context is whether there should be the same regime in place for nationals and non-nationals. Clearly in the context of European law any future
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measures cannot discriminate on the grounds of nationality in relation to scientists from other Member States of the European Union.
Conclusion The MSR provisions in the 1982 LOS Convention have served the international community well since the Convention has come into force over two decades ago. In Ireland, the implementation of these provisions by means of an administrative system has not posed any particular problem. Nevertheless, with advances in ocean science and with the development of a national marine biodiscovery programme it may be prudent for Ireland to bring forward national legislation to implement Part XIII of the 1982 LOS Convention. Apart from conforming with international & European law, any such legislation should aim to provide a transparent and stable regime governing the conservation, mapping, sampling and utilisation of biodiversity. Only such an approach will ensure clarity and certainty for all.
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Marine Data Collection: Methods and the Law Capt. J. Ashley Roach, JAGC, USN (Ret.)1 Abstract This paper seeks to bring some clarity to the various aspects of marine data collection. The thesis of this paper is that there is no single set of rules of law that governs the collection of information about the oceans. Rather, the applicable rules of law depend on the means, methods, locations and purposes for the collection of that information. The Law of the Sea Convention gives coastal States regulatory authority over some but by no means all forms of data collection in and of the marine environment; the flag State has exclusive regulatory authority over other such activity at sea. Put another way, what the activity is factually determines the legal regime governing the activity—whose permission, if any, is required to conduct and report on the activity. There are four general categories of marine data collection: marine scientific research, surveys, operational oceanography, and exploration and exploitation. The Law of the Sea Convention addresses all but operational 1
Office of the Legal Adviser (L/OES), US Department of State. The author’s PowerPoint presentation can be viewed on the accompanying CD. The author has been a member of the US delegation to the UNESCO/IOC Advisory Body of Experts on the Law of the Sea (ABE-LOS) since its first meeting in 2001. ABE-LOS continues to grapple with the issues raised in this paper. See . This paper revises and updates the author’s paper presented at the 30th oceans conference in Dublin, June 2006, that appears under the title ‘Defining Scientific Research: Marine Data Collection,’ in: M. H. Nordquist, R. Long, T. H. Heidar & J. N. Moore (eds.), Law, Science & Ocean Management, Center for Oceans Law and Policy, 30 (Leiden/Boston: Martinus Nijhoff Publishers, 2007), pp. 541-573. The author would like to thank Dr. Stephen Pietrowicz, Mrs. Margaret Hayes, Ms. Connie Arvis, Ms. Elizabeth Tirpak and Ms. Kenli Schaaf for their very constructive suggestions. Any errors remain the responsibility of the author.
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oceanography. The rules vary with the maritime zone in which the data collection takes place. Marine data are collected by satellites, equipment on civilian and military aircraft and ships, and various instruments deployed from ships, such as balloons, profiling floats, moored and drifting buoys, expendable bathythermographs (XBTs) and remotely operated vehicles (ROVs). The types of marine data collected include physical data (e.g., waves, currents, ice cover and thickness); chemical data required to understand physical processes (e.g., temperature and salinity as a function of depth); geological and geophysical data (e.g., bathymetry, gravimetric, magnetic, sediment composition and thickness); ecological data (e.g., chlorophyll, nutrients; species composition and abundance); and atmospheric data at the air-sea interface (e.g., winds, sea level pressure, dew point). The uses to which portions of this data are placed are quite varied. Some are used for the making of navigational charts and for safety of navigation. Some are used for monitoring and forecasting of ocean conditions, weather, and climate prediction. Some are used for military purposes. Others are used for the exploration and exploitation of living or nonliving natural resources. Still others are used for the location of shipwrecks. The means of data collection are often the same. The data collected may be the same or different. The parameters and intended uses distinguish the forms of marine data collection and thus the relevant rules. In some cases this is difficult to achieve. For the analysis that follows I have found it useful to use the generic term “marine data collection,” a term without legal content, as the umbrella under which to consider the various activities for which the law
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of the sea does provide varying regimes depending on the maritime zone involved. Under “marine data collection” I list the following four categories, with seven subcategories: • Marine scientific research (MSR) • Surveys o Hydrographic surveys o Military surveys • Operational oceanography o Ocean state estimation o Weather forecasting o Climate prediction • Exploration and exploitation2 of o Natural resources o Underwater cultural heritage (shipwrecks). The relevant maritime zones where these activities take place are the territorial sea, the contiguous zone, the Exclusive Economic Zone (EEZ), the continental shelf, the deep seabed beyond the limits of national jurisdiction (the Area), straits used for international navigation, and archipelagic sea lanes. This paper examines what is involved in each of these activities, reviews the applicable legal regimes, and demonstrates that surveys, operational oceanography, and exploration and exploitation are not marine scientific research regulated by Part XIII of the Law of the Sea Convention;3 rather they are subject to separate legal regimes. 2
The term “exploitation” is used in the sense of resource development and management. The resolution of advice and consent, recently approved by the Senate Foreign Relations Committee in again recommending United States accession to the Law of the Sea Convention, includes the following understanding: (5) The United States understands that “marine scientific research” does not include, inter alia,(A) prospecting and exploration of natural resources; 3
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Definitions and Distinctions Even though none of these four categories and seven subcategories is defined in the law of the sea, including the Law of the Sea Convention, it is necessary to understand what they each factually entail if we are to appreciate the legal regime applicable to each. The most heavily regulated is the first category, marine scientific research (MSR). The Law of the Sea Convention devotes a whole part, Part XIII, containing 28 articles in six sections, to the subject of MSR. Although not defined in the Convention, marine scientific research is the general term most often used to describe those activities undertaken in the ocean and coastal waters to expand scientific knowledge of the marine environment and its processes.4 In this paper, the term “marine scientific research” applies only to that form of marine data collection regulated by Part XIII of the Law of the Sea Convention. (B) hydrographic surveys; (C) military activities, including military surveys; (D) environmental monitoring and assessment pursuant to section 4 of Part XII; or (E) activities related to submerged wrecks or objects of an archaeological and historic nature. Congressional Record, December 19, 2007, p. S16004, available through the link at http://thomas.loc.gov/r110/r110.html; Senate Committee on Foreign Relations, Convention on the Law of the Sea, Executive Report 110-9, at 21 (2007), online at . Further, the Executive Report provides that this “is an illustrative list; therefore, there are other activities, such as operational oceanography, that are not considered marine scientific research.” Id. at 13. These understandings are identical to those contained in the 2004 Senate Executive Report on the Convention, Executive Report 108-10, p. 19. 4 Compare LOS Convention Articles 243 (“scientists … studying the essence of phenomena and processes occurring in the marine environment and the interrelations between them”) and 246(3) (“to increase scientific knowledge of the marine environment for the benefit of all mankind”). Accord, A.H.A. Soons, Marine Scientific Research and the Law of the Sea (The Hague: Kluwer Law and Taxation Publishers, 1982), p. 124. Japanese law does not define MSR. See A. Takada, ‘Marine Scientific Research in the Exclusive Economic Zone and Japan-China Agreement for Prior Notification (19952001),’ Japanese Digest of International Law JD(III)3, in Japanese Annual of International Law, No. 44, 2001 (Tokyo: The International Law Association of Japan, 2002), p. 134.
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For the purposes of this analysis, there are two forms of surveys, hydrographic surveys and military surveys. Hydrographic surveys are activities undertaken to obtain information for the making of navigational charts and for the safety of navigation. Hydrographic surveys include the determination of the depth of water, the configuration and nature of the sea floor, the direction and force of currents, heights and times of tides and water stages, and hazards to navigation. This information is used for the production of nautical charts and similar products to support the safety of navigation, such as Sailing Directions, Light Lists and Tide Manuals for both civil and military use.5 Military surveys involve the collection of marine data for military—not scientific—purposes. The data collected may include oceanographic, hydrographic, marine geological/geophysical, chemical, acoustic, biological and related data. The data collected may be in classified or unclassified form. The data is not normally available to the public or the scientific community unless it is unclassified and was collected on the high seas.6 My third category of marine data collection is operational oceanography. Operational oceanography is the routine collection of ocean observations, such as temperature, pressure, current, salinity and wind, in all maritime zones. It may be conducted in the oceans, at the airsea interface, and in the atmosphere. This data is used for the monitoring and forecasting of weather (meteorology), climate, and ocean state (e.g., 5
Cf. Definition 46, in International Hydrographic Bureau, A Manual on Technical Aspects of the United Nations Convention on the Law of the Sea - 1982, Special Pub. No. 51, (4th ed., 2006), Appendix 1, at Appendix 1-16, online at http://www.iho.shom.fr/publicat/free/files/S-51_Ed4-EN.pdf 6 See U.S. Chief of Naval Operations, OPNAV Instruction 3128.9D, Diplomatic Clearance for U.S. Navy Marine Data Collection Activities in Foreign Jurisdictions, 5 April 2000, online at http://www.usa-federal-forms.com/usa-fedforms-dodopnavinst/dod-opnavinst-3128-9d-nonfillable.pdf, and U.S. Naval Oceanographic Office, Military Survey Capabilities of the Naval Oceanographic Office, online at https://www.navo.navy.mil/survey/survey_cap.htm
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surface currents and waves). The data is transmitted from sensor to shore in near real-time and is made available to the public in near real-time. The components of operational oceanography are described in some detail below. The fourth category of marine data collection is exploration and exploitation of natural resources and of underwater cultural heritage. Exploration and exploitation of natural resources involves the searching for and removal of living or non-living natural resources found in the oceans or beneath the seabed. The term “natural resources” has four separate meanings in the law of the sea, depending on the maritime zone where they are located. The natural resources governed by the EEZ regime are the living and non-living natural resources (not further expressly defined) located within the EEZ.7 The natural resources governed by the continental shelf regime are the mineral and other nonliving resources of the seabed and subsoil, together with the living organisms belonging to sedentary species.8 The natural resources of the deep seabed beyond the limits of national jurisdiction (the Area) are all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules;9 this definition does not include living marine resources. The natural resources of the high seas regime are referred to as “the living resources of the high seas” and include fish and marine mammals.10 Exploration and exploitation of underwater cultural heritage involves the search for, recording of, and removal of items of cultural heritage, such as artifacts from shipwrecks. These items are, of course, not natural but are man-made resources. 7
LOS Convention, Article 56(1)(a). LOS Convention, Article 77(4). Sedentary species are those organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant contact with the seabed or subsoil. Id. 9 LOS Convention, Article 133. When recovered from the Area, these resources are referred to in the Convention as “minerals”. 10 LOS Convention, Part VII, section 2, Articles 116-120. 8
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As will become evident from the following discussion of the legal regime applicable to each category and subcategory, and what is involved in each, neither form of survey or of exploration and exploitation, nor operational oceanography is MSR. Legal Regimes MARINE SCIENTIFIC RESEARCH (MSR) Marine scientific research is regulated by Part XIII of the Law of the Sea Convention. MSR may not be conducted in the territorial sea,11 the exclusive economic zone,12 or on the continental shelf13 without the permission of the coastal State. MSR may not be conducted while in 11
LOS Convention, Article 245, requires the express consent of and under the conditions set by the coastal State for the conduct of MSR in its territorial sea. 12 LOS Convention, Articles 246, 248, 252-253 set the conditions for the conduct of MSR in the EEZ. In particular six months advance request is required and the results of the research cannot be distributed publicly until the results of the research are compiled and shared with the coastal State. Further, the coastal State may, in its discretion, withhold consent to the conduct of a MSR project of another State in its EEZ or on its continental shelf if the project, inter alia, is of direct significance for the exploration or exploitation of its natural resources, whether living or non-living, within its EEZ. LOS Convention, Article 246(5)(a). The United States does not require its permission to conduct MSR in the US EEZ unless any portion of the research is conducted within the US territorial sea, any portion of the research within the US EEZ involves the study of marine mammals or endangered species (16 U.S. Code § 1374(c)), any portion of the research within the US EEZ requires taking commercial quantities of living marine resources (16 U.S. Code § 1857(2) & (4)), or any portion of the research within the US EEZ involves contact with the US continental shelf (43 U.S. Code § 1340). For further information see http://www.state.gov/g/oes/ocns/rvc (MSR authorizations); http://www.state.gov/g/oes/ocns.rvc/3504.htm (authorizations to conduct MSR in foreign EEZs); http://www.state.gov/g/oes/ocns/rvc/3503.htm (authorization to conduct MSR in US EEZ); and imbedded links. The requirements of other countries may be viewed at http://www.state.gov/www/global/oes/oceans/notices.html (notices to research vessel operators 1976-1999) and http://www/state/ogv/g/oes/ocns/rvc/24243.htm (country specific requirements). See also the Handbook for International Operations of U.S. Scientific Research Vessels published by the University--National Oceanographic Laboratory System (UNOLS) at http://www.gso.uri.edu/unols/for_cln.html 13 LOS Convention, Article 252 sets similar conditions for the conduct of MSR on the continental shelf.
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transit passage through a strait used for international navigation without the prior authorization of the States bordering the strait.14 Similarly, MSR may not be conducted while in archipelagic sea lanes passage without the prior authorization of the archipelagic State.15 Only in the case of MSR in the EEZ or on the continental shelf, is the coastal State required, in normal circumstances, to grant consent.16 On the other hand, Article 256 provides that all States have the right to conduct MSR in the Area in conformity with Part XI, including Article 143, and the Annex to the Implementing Agreement, sections 1(5)(h) and 2(1)(b).17 The conduct of MSR in the high seas (i.e., the water column seaward of the outer limit of the EEZ, including the water column above the continental shelf beyond 200 nm) is a high seas freedom guaranteed by Articles 78(1), 87(1)(f) and 257 of the LOS Convention.18
14
LOS Convention, Article 40. As archipelagic waters are under the sovereignty of the archipelagic State, Article 49, that State’s consent should be a prerequisite for the conduct of MSR in its archipelagic waters. 15 LOS Convention, Article 54 incorporating Article 40. 16 LOS Convention, Article 246(3). Normal circumstances may exist in spite of the absence of diplomatic relations between the coastal State and the researching State. Id., Article 246(4). Paragraph 5 sets out three circumstances in which a coastal State may, in its discretion, withhold its consent. Paragraph 6 qualifies that discretion regarding MSR projects on the extended continental shelf beyond 200 nautical miles. As Article 246(3) has not been implemented in practice by coastal States, researchers have not been willing to exercise their right under the implied consent regime detailed in Article 252. 17 LOS Convention, Article 256. 18 See further, UN Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Marine Scientific Research--A Guide to the Implementation of the Relevant Provision of the United Nations Convention on the Law of the Sea, UN Sales No. E.91.V.3 (1991); R. R. Churchill and A.V. Lowe, The Law of the Sea, chapter 16 (Manchester: Manchester University Press, 3rd ed. 1999); Soons, supra note 4; M. Gorina-Ysern, An International Regime for Marine Scientific Research (Ardsley NY: Transnational Publishers, 2003); and F. H. Th. Wegelein, Marine Scientific Research: The Operation and Status of Research Vessels and Other Platforms in International Law (Leiden/Boston: Martinus Nijhoff Publishers, 2005).
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Part XIII is silent on MSR conducted from above the surface of the ocean.19 SURVEYS Like the other six forms of marine data collection, hydrographic surveys are not mentioned in Part XIII of the LOS Convention; surveys are, however, addressed in other Parts of the Convention. The Convention places some restrictions on the conduct of hydrographic surveys in closein waters. Prior authorization is required from the coastal State to conduct hydrographic surveys in its territorial sea,20 from the States bordering straits used for international navigation to conduct surveys while in transit passage through the straits,21 and from the archipelagic State to conduct surveys while in archipelagic sea lanes passage.22 Hydrographic surveys are not mentioned in the Parts of the LOS Convention governing the EEZ, continental shelf, high seas or the Area. Therefore, the conduct of hydrographic surveys in these areas is a high
19
See the discussion in Wegelein, supra note 18, at 247-270, 353, 356, 357 (“Part XIII is of no relevance to research activities from space”). Wegelein, at 269, concludes that “observations from space are akin to operational oceanography and thus are not covered by the provisions of the 1982 LOS Convention to begin with”. 20 LOS Convention, Articles 19(2)(j) and 21(1)(g). The same rule applies to ships in innocent passage in archipelagic waters. LOS Convention, Article 52(1). 21 LOS Convention, Article 40. 22 LOS Convention, Article 54 incorporating Article 40. The Convention is silent on the conduct of hydrographic surveys in archipelagic waters. As archipelagic waters are under the sovereignty of the archipelagic State, Article 49, that State’s consent should be a prerequisite for the conduct of surveys in its archipelagic waters.
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seas freedom associated with the operation of ships and aircraft.23 Hydrographic surveys are not MSR.24 Military surveys, per se, are not mentioned at all in the LOS Convention. Because they are “surveys”, the collection of marine data for military purposes in the territorial sea,25 and on the continental shelf when they involve exploration or exploitation of natural resources of the continental shelf,26 requires coastal State permission. Seaward of the territorial sea, the conduct of military surveys is a high seas freedom, as
23
LOS Convention, Articles 58(1) and 87. On the other hand, Articles 7, 41(2) and 51(2) of the Surveying and Mapping Law of the People’s Republic of China, as amended August 29, 2002, purport to preclude “foreign organizations and individuals” from surveying seaward of the territorial sea of “other sea areas under the jurisdiction of the People’s Republic of China” without authorization from the relevant Chinese authorities. See http://www.gov.cn/english/laws/2005-10/09/content_75314.htm 24 Department of State telegram, April 19, 1999, excerpted in M. Pickering, S. Cummins and D. Stewart (eds.), Digest of United States Practice in International Law 1989-1990 (Washington: International Law Institute, 2003), p. 479. The United Kingdom has stated that “hydrographic surveys are not, and should not be, governed by UNCLOS Part XIII.” British Yearbook of International Law 1997, 68 (Oxford: Clarendon Press, 1998), pp. 608-609. Accord B. H. Oxman, ‘The Regime of Warships Under the United Nations Convention on the Law of the Sea,’ 24 Va. J. Int’l L., 1984, pp. 809, at 846; Soons, supra note 4, at 157; Wegelein, supra note 18, at 80-81. Contra, Sam Bateman, ‘Hydrographic Surveying and Marine Scientific Research in Exclusive Economic Zones,’ supra this volume, and Guifang (Julia) Xue, ‘Marine Scientific Research and Hydrographic Surveys in the EEZs: Closing up the Legal Loophole?’ supra this volume. Japan appears to consider hydrographic surveys as MSR. See ‘Japanese Digest of International Law JD(VIII)1,’ 49 Japanese Annual of International Law 2006, (Tokyo: International Law Association of Japan, 2007), pp. 98, 100 (“The MSR is a hydrographic survey to study sea bottom topography in the South-west sea area of Japan Sea”). 25 LOS Convention, Article 19(2)(j). The sovereignty of a coastal State extends, beyond its land territory and internal waters, inter alia, to the adjacent territorial sea as well as to its bed and subsoil. LOS Convention, Article 2. The sovereignty of an archipelagic State extends, beyond its land territory and internal waters, inter alia, to its archipelagic waters and the adjacent territorial sea. LOS Convention, Articles 48 and 49(1). 26 LOS Convention, Article 77(2), which provides that the coastal State’s rights are exclusive and no one may undertake exploration or exploitation of its natural resources without the express consent of the coastal State.
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they too are associated with the operation of ships and aircraft.27 Military surveys are not MSR.28 OPERATIONAL OCEANOGRAPHY Likewise, operational oceanography is also not mentioned in the LOS Convention. It should be recalled that the Third UN Conference on the Law of the Sea decided that the collection of marine meteorological data is not marine scientific research regulated by Part XIII of the Law of the Sea Convention.29 Clearly analogous to the collection of marine meteorological data is the routine collection of ocean observations that are distributed freely and openly, and are used for the monitoring and forecasting of ocean state, weather (meteorology), and climate. The various operational oceanography programs and data collection instruments are next described to facilitate a better understanding why they are, for the most part, conducted in the exercise of the high sea freedoms of navigation and overflight. Nevertheless, some coastal States remain concerned that some or all of this data collected within their EEZs may be of direct significance for the exploration and 27
S.J. Cummins and D.P. Stewart (eds.), Digest of United States Practice in International Law 2001 (Washington: International Law Institute, 2002), pp. 698-699. See G. V. Galdorisi and A. G. Kaufman, ‘Military Activities in the Exclusive Economic Zone’, 32 Cal. W. Int’l L.J. 2002, pp, 253, 294-295. A different view of military activities in the EEZ is set out in a proposed voluntary ‘Guidelines for Navigation and Overflight in the Exclusive Economic Zone’ prepared by a group of “senior officials and analysts primarily from countries of the Asia-Pacific region participating in the personal capacities,” sponsored by the Japanese Ocean Policy Research Foundation, available at . See also Wegelein, supra note 18, at 93-98, for a discussion of the possible interpretations. 28 Oxman, supra note 24, at 847; Senate Executive Report 110-9, supra note 3, at 13; U.S. talking points delivered to Republic of Korea Ministry of Foreign Affairs and Trade on December 3, 2001, State Department telegram 206366, November 30, 2001, American Embassy Seoul telegram 06429, December 7, 2001, excerpted in S. Cummins and D. Stewart (eds.), Digest of United States Practice in International Law 2001 (Washington: International Law Institute 2002), pp. 698-699.
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exploitation of natural resources, whether living or non-living, within their EEZs30 and thus wish to have some say as to the collection and use of that data. OPERATIONAL OCEANOGRAPHY PROGRAMS Operational oceanographic programs all have the same characteristics: sustained, systematic, reliable and robust mission activities, with an institutional commitment to deliver appropriate, costeffective products and services. Moored Buoy Program One example of an operational oceanographic program is the multi-national Tropical Atmosphere Observation (TAO) project for improved detection, understanding and prediction of El Niño and La Niña conditions in the tropical Pacific Ocean. The TAO/TRITON31 array consists of nearly 70 deep-ocean moorings, telemetering oceanographic and meteorological data to shore in real-time via the Argos satellite system.32 The array is a major component of the El Niño/Southern Observing System, the Global Climate Observing System (GCOS), and the Global Ocean Observing System (GOOS). Development of this array was motivated by the 1982-1983 El Niño event, the strongest of the century up to that time, which was neither predicted nor detected until nearly at its peak. The event highlighted the need for real-time data from the tropical Pacific for both monitoring, prediction, and improved understanding of El Niño. The system has been operational since 1994. The operationally supported measurements of the TAO/TRITON array consist of winds, sea surface temperature, relative humidity, air 29
See attachment 2. Cf. LOS Convention, Articles 56(1)(a) and 246(5)(a). See note 12 above. 31 TRITON is the acronym for the Triangle Trans Ocean Buoy Network, located west of 165ºE and maintained by the Japan Agency for Marine-Earth Science and Technology (JAMSTEC). The TAO array east of 165ºE is maintained by NOAA’s Pacific Marine Environmental Laboratory (PMEL). France’s Institut de recherché pour le developpement provides additional contributions. 32 For more information on Argos, see http://www.cls.fr/html/argos/welcome_en.html 30
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temperature, and subsurface temperature at 10 depths in the upper 500 meters. Five moorings along the equator also measure ocean velocity. Additional moorings and/or enhancements to the basic measurement suite are often incorporated in the operational array to support research studies to understand specific physical processes not well measured by the existing network.33 Global Drifting Buoy Program Another example of an operational oceanography program is the global array of approximately 1,250 surface drifting buoys deployed to maintain buoys on a 5ºx5º grid in most areas of the world’s oceans. Surface drifting buoys measure surface currents, sea level barometric pressure, sea surface temperature, and may measure wind speed and direction, salinity and/or ocean color. The data is transmitted in near realtime via the Argos satellite system and has multiple uses.34 Argo Profiling Float Program The global array of over 3,000 free-drifting profiling floats (Argo) measures the temperature and salinity of the upper 2000 meters of the oceans. This allows, for the first time, continuous monitoring of the temperature, salinity and velocity of the upper ocean, with all data being relayed and made publicly available within hours after collection.35 Global Sea Level Observing System (GLOSS) One operational component of the Global Ocean Observation System (GOOS) is the Global Sea Level Observing System (GLOSS). GLOSS is an international component of GOOS,36 a network of high quality global and regional sea level stations for application to climate, oceanographic, and understanding coastal sea level processes. The main component is a “Global Core Network” (GCN) of 290 sea level stations around the world for long-term climate change and oceanographic sea 33 34 35 36
See http://www.pmel.noaa.gov/tao/ See http://www.aoml.noaa.gov/phod/dac/gdp_drifter.html See http://www.argo.ucsd.edu/ See http://www.jcommweb.net
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level monitoring. Applications of such data include prediction and detection of storm surge inundation and tsunami. Ship of Opportunity Program (SOOP) The primary goal of the Ship-of-Opportunity Program (SOOP) is to fulfill the requirements for collection of upper ocean data which have been established by GOOS and GCOS, and which can be met at present by measurements from ships of opportunity (SOO). SOOP is establishing itself as an operational program and is therefore participating in JCOMM and particularly in its Ship Observations Team.37 Data management is taken care of through the Global Temperature Salinity Profile Program. The SOOP is directed primarily towards the continued operational maintenance and co-ordination of the XBT ship of opportunity network. As described in greater detail below, an XBT is an expendable temperature and depth profiling system that collects upper ocean thermal data in support of weather and climate prediction and ocean state estimation systems that are communicated in real-time to oceanographic and meteorological services primarily via the GTS under JCOMM. Other types of measurements are being made (e.g., conductivity, current profiles; pCO2; chlorophyll concentration). This network in itself supports many other operational needs (such as for fisheries, shipping and defense) through the provision of upper ocean data for data assimilation in models and for various other ocean analysis schemes. One of the continuing challenges is to optimally combine upper ocean thermal data collected by XBTs from Ships of Opportunity with data collected from other sources such as the TAO/TRITON array, Argo floats and satellites. However, it is considered most important to have the SOOP focused on supporting climate prediction in order to ensure the continued operation of the present network.38 37
The SOT includes the implementation panels for SOOP, VOS, and a program with the acronym ASAPP which launches radiosondes (weather balloons) from ships. 38 See http://www.brest.ird.fr/soopip/ and the JCOMMOPS website www.infremer.fr/ird/soopip/ See also S. Cook and A. Sy, ‘Best Guide and Principles
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COORDINATION OF PROGRAMS An international infrastructure has been established to coordinate, liaise, and/or interact with these operational implementation programs: JCOMM The Intergovernmental Oceanographic Commission (IOC) of UNESCO and the World Meteorological Organization jointly coordinate implementation of operational oceanographic programs through the Joint WMO-IOC Technical Commission for Oceanography and Marine Meteorology (JCOMM), as the scope and effort of global oceanographic observations exceeds the budget and mandate of the individual intergovernmental organizations and individual Member Countries. JCOMM coordinates, regulates and manages a fully integrated marine observing, data management and services system that uses stateof-the-art technologies and capabilities, is responsive to the evolving needs of all users of marine data and products, and includes an outreach program to enhance the national capacity of all maritime countries.39 JCOMM encourages real-time or near real-time reporting of data, and the full and open exchange of data through oceanographic data centers. Such collaboration occurs because observational data contribute to the prediction of meteorological conditions and other natural events.40 The global scale of observations necessary to establish accurate predictions of natural events is necessarily beyond the capability of any coastal nation. Thus international cooperation is essential if individual nations are to benefit from the data collected.
Manual for the Ships of Opportunity Program (SOOP) and Expendable Bathythermograph (XBT) Operations,’ March 2001, at www.brest.ird.fr/soopip/doc/manuals/best_guide/SOOP_best_guide.pdf 39 See http://www.ioc.unesco.org/jcomm/ 40 See http://ioc.unesco.org/goos/
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Global Ocean Observation System (GOOS) The Global Ocean Observation System (GOOS) is a permanent global system for observations, modeling and analysis of marine and ocean variables to support operational ocean services worldwide. GOOS provides accurate descriptions of the present state of the oceans, including living resources; continuous forecasts of the future conditions of the sea for as far ahead as possible; and the basis for forecasts of climate change.41 GOOS forms the ocean component of the Global Climate Observing System (GCOS)42 and the marine coastal component of the Global Terrestrial Observing System (GTOS).43 A fundamental principle of GOOS is that all data acquired by the operational systems are freely and openly available in real-time to any potential user through distribution via the GTS44 and/or Data Distribution Centers (DACs) such as the two DACs supporting the global array of Argo profiling floats.45 Data Buoy Cooperation Panel (DBCP) JCOMM also coordinates contributions to the Data Buoy Cooperation Panel (DBCP). Principal objectives of the DBCP are: (i)
review and analysis of requirements for buoy data;
(ii)
co-ordination and facilitation of deployment programs to meet requirements;
(iii)
initiation and support of action groups;
41
See http://www.ioc-goos.org/ See http://www.wmo.ch/web/gcos/gcoshome.html The US Global Climate Observing System Program is described in the U.S. Detailed National Report to the Conference of the Parties to the United Nations Framework Convention on Climate Change (August 2001) available at http://www.eis.noaa.gov/gcos/soc_long.pdf 43 See http://www.fao.org/gtos/ 44 See http://www.wmo.ch/web/www/TEM/gts.html 45 See http://www.argo.ucsd.edu/ and http://w3.jcommops.org/cgi-bin/WebObjects/Argo 42
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(iv)
improving the quantity and quality of buoy data distributed onto the Global Telecommunication System (GTS);
(v)
information exchange and technology development; and
(vi)
liaise with relevant international and national bodies and programs.46 DATA COLLECTION PLATFORMS AND INSTRUMENTS47
Data about the lower atmosphere and sea surface is collected from ships, balloons, visual observations, aircraft and satellites, while data about the water column is obtained from satellites, moored buoys, drifting buoys, profiling floats and eXpendable BathyThermographs (XBTs).48 The US National Oceanic and Atmospheric Administration (NOAA) is involved in the collection of marine data through programs involving five different types of data collection instruments or platforms: • surface moorings; • global drifters; • Voluntary Observing Ships (VOS); • XBTs, deployed under several operational protocols; and • Argo profiling floats. Surface Moorings Surface moorings such as those employed in the TAO/TRITON Program measure surface winds, air temperature, relative humidity, sea surface temperature, and ten subsurface temperatures from a 500 meter long thermistor cable. Measurements to determine salinity are also made on moorings in the TAO/TRITON program and are capable of being made 46
See http://www.dbcp.noaa.gov/dbcp/index.html The information in this section is taken from http://www.aoml.noaa.gov/goos/goosoperational.php 48 See http://www.aoml.noaa.gov/goos/goos-operational.php 47
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on fixed moorings in generally. Daily-mean data are telemetered to shore in near real-time via satellites. A small subset of hourly values (2-3 per day) coinciding with satellite passes are also transmitted in real-time. Hourly values of surface data are internally recorded and available after mooring recovery. Subsurface Acoustic Doppler Current Profiler (ADCP) moorings are deployed at a few equatorial sites. These data are available only after the moorings are recovered. Upper ocean currents are also measured at 4 to 5 discrete depths in the upper 300 meters using point Doppler current meters on nearby TAO surface moorings.49 Surface Drifting Buoys NOAA, at its Atlantic Oceanographic and Meteorological Laboratory (AOML), operates a global Drifting Buoy Center that annually deploys, via Voluntary Observing Ships (VOS), research vessels and US Navy aircraft, over 400 Drifters50 in all three ocean basins. These drifters are tracked daily via the ARGOS satellite system through which their positions and sea surface temperatures (and sometimes other parameters) are processed and inserted on to the Global Telecommunications System (GTS) for global distribution.51 Approximately 630,000 sea surface temperatures are collected annually via this program. Additionally, the Center performs the added function of a Data Acquisition Center (DAC) for the Global Drifter Program (GDP). When the deployed Drifters are verified as operational they are reported to the DAC. This effort insures that research quality Drifter data is available from other organizations and countries programs. The Global Drifter Program is a participating member of the IOC--WMO Data Buoy Co-operation Panel (DBCP) and, as such, represents NOAA in this international forum.
49
See http://www.pmel.noaa.gov/tao/index.shtml and links. For a detailed description of these drifters, see http://www.aoml.noaa.gov/phod/dac/gdp_drifter.html 51 See http://www.aoml.noaa.gov/phod/dac/gdp.html for the location of these drifters. 50
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Voluntary Observing Ships (VOS) Meteorological information has been gathered by ships at sea for over 150 years. The International Convention for the Safety of Life at Sea, 1929, and its successor adopted in 1974 and subsequently amended, have encouraged the collection of meteorological data by ships at sea.52 The data is collected by Voluntary Observing Ships (VOS) coordinated by the WMO. The data gathered pertains to the atmosphere above the sea (temperature, dew point, cloud, weather, visibility and pressure) and to the surface of the sea (temperature, waves, currents and ice). The data is collected for the preparation of forecasts and warnings to help route ships and avoid severe weather conditions, for the preparation of forecasts and warnings for offshore industries, for global models of the future state of the atmosphere, to monitor the state of the oceans, for climatological data banks serving many purposes, and to build long-term records to monitor changes in the climate of the earth.53 The IMO has noted the critical importance of VOS meteorological reports to the provision of meteorological services to the mariner and encouraged increased participation in the scheme.54 NOAA GOOS Center operates a global fleet of about 400 domestic and foreign commercial vessels. The GOOS global fleet mostly represents a subset of the larger National Weather Service VOS fleet consisting of over 1500 vessels. These vessels voluntarily collect sea surface meteorological, sub-surface expendable bathythermograph, shipboard thermosalinograph or atmospheric observations. They deploy drifting buoys and highly instrumented Argo and Argo-type floats and sometimes tow continuous plankton recorders. The GOOS global VOS fleet is the mechanism used to collect observations and deploy 52
The current provision appears in regulation 5, Meteorological services and warnings, of chapter V of SOLAS, 1974, the text of which appears in attachment 3. 53 See http://www.bom.gov.au/jcomm/vos/vos.html and http://www.vos.noaa.gov/ 54 IMO Circular MSC/Circ.1017, 11 June 2001, ‘Participation in the World Meteorological Organization Voluntary Observing Ships’ Scheme’, online at http://www.imo.org/home.asp
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instrumentation that transmit, in real-time, data to US National Centers such as the National Center for Environmental Prediction.55 In any given year this network provides the following approximate number of observations: 630,000 Sea Surface Temperature Observations from Drifting Buoys 200,000 Meteorological Observations 30,000 Thermosalinograph Observations 14,000 Expendable Bathythermograph Observations Expendable Bathythermographs (XBTs) While many nations deploy XBTs locally or regionally, NOAA/AOML operates a global XBT program56 that utilizes approximately 70 Voluntary Observing Ships (VOS) to monitor, on a monthly basis, 26 transects in all three ocean basins. Participating vessels utilize a Shipboard Environmental Data Acquisition System (SEAS) hardware/software installation to collect, quality control and transmit in real-time subsurface oceanographic observations (about 14,000 per year) and sea surface meteorological observations (about 200,000 per year).57 The XBT is an expendable temperature probe that is manually launched from vessels approximately 4 times per day, along certain scientifically selected shipping lanes. The data transmitted via the wire link from the XBT probe is stored on the SEAS computer where it is processed and formatted for satellite message transmission. The transmitted data is routed to the GOOS Center where it is further quality controlled and then inserted on to the Global Telecommunication System (GTS) for global distribution. The National Centers for Environmental Predication (NCEP) use these data for weather and climate forecasting as well as for seasonal, 55 56 57
See http://www.ncep.noaa.gov See http://www.aoml.noaa.gov/goos/uot/ See http://seas.amverseas.noaa.gov/seas
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interannual and decadel climate research. The XBT program is a participating member of the IOC-WMO Ship of Opportunity Program Implementation Panel (SOOPIP) and, as such, represents NOAA in this international forum. High Density XBTs Certain regions of the oceans require more observations than a volunteer ship's crew can adequately supply. Along these routes, scientific crew ride the VOS and sample the ocean with much higher spatial resolution. These high density lines (HDX) resolve ocean features with more detail than the standard low density (LDX) sampling scheme.58 NOAA’s Atlantic Oceanographic and Meteorological Laboratory (AOML) runs five HDX lines with the following three objectives: •
to measure the upper ocean thermal structure in the center of the subtropical gyre in the North Atlantic and the South Atlantic;
•
to investigate the meridional structure at the subtropical gyre and Gulf Stream in the North Atlantic; and
•
to characterize both the mean and the time-dependent upper ocean properties of the tropical portion of the Meridional Overturning Circulation and of the shallow Subtropical Cell in the Tropical Atlantic.
Argo Profiling Floats59 Since October 31, 2007, Argo is now a global array of 3,000 freedrifting profiling floats that measures the temperature and salinity of the upper 2000 meters of the ocean. This allows, for the first time, continuous 58
See http://www.ncep.noaa.gov/phod/hdenxbt The factual information contained in this section is derived from the Argo home page, http://www.argo.ucsd.edu/ For information on how Argo floats work, see http://www.argo.ucsd.edu/FrHow_Argo_floats.html 59
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monitoring of the temperature, salinity, and velocity of the upper ocean, with all data being relayed and made publicly available within hours after transmission. This program was started in 1999 to meet the challenge posed by the lack of sustained observations of the atmosphere, oceans and land that hindered the development and validation of climate models. This array is providing approximately 9,000 vertical profiles of temperature and salinity a month throughout the world’s oceans to be made available to operational centers world-wide and is free and open to anyone either via the Global Telecommunications System (GTS) or via two Global Data Assembly Centers (GDACs) in France and the United States. Argo has revolutionized the ability to observe the oceans providing, for the first time, global, synoptic pictures of the thermodynamic structure of the open ocean and some understanding of circulation; together with remotelysensed data, model ocean circulation and ocean climate; and allowed scientists to dramatically improve their understanding of the coupled ocean-atmosphere system for weather and climate prediction. There is increasing concern about global change and its regional impacts. Sea level is rising at an accelerating rate of 3 mm/year, Arctic sea ice cover is shrinking and high latitude areas are warming rapidly. Extreme weather events cause loss of life and enormous burdens on the insurance industry. Globally, 8 of the 10 warmest years since 1860, when instrumental records began, have been in the past decade. These effects are caused by a mixture of long-term climate change and natural variability. Their impacts are in some cases beneficial (lengthened growing seasons, opening of Arctic shipping routes) and in others adverse (increased coastal flooding, severe droughts, more extreme and frequent heat waves and weather events, such as severe tropical cyclones). Understanding and eventually predicting changes in both the atmosphere and ocean are needed to guide international actions, to optimize governments’ policies, and to shape industrial strategies. To make those predictions Argo was created to provide the information to 192
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develop improved models of climate and of the entire earth system (including socio-economic factors). Argo deployments began in 2000; a total of 3056 Argo floats were in place on January 31, 2008.60 The Argo array can be maintained at the level of 3000 as long as national commitments provide about 800 floats per year. The need for global Argo observations will continue indefinitely into the future, though the technologies and design of the array will evolve as better instruments are built, models are improved, and more is learned about ocean variability. The final array of 3000 floats provides 100,000 temperature/salinity profiles and velocity measurements per year distributed over the global oceans at an average 3-degree spacing. Floats cycle to 2000m depth every 10 days, with 4-5 year lifetimes for individual instruments. All Argo data are publicly available in near real-time via the GTS and Global Data Assembly Centers (GDACs) in Brest, France61 and Monterey, California62 after an automated quality control (QC), and in scientifically quality controlled form, delayed mode data, via the GDACs within six months of collection. NOAA/AOML’s Physical Oceanography Division provides the data management and real time quality control of profiling float data from the global Argo program.63 SUMMARY The world’s oceans exhibit wide variability on both spatial and temporal scales. While designated by basins (e.g., Atlantic, Pacific, Indian, Southern), boundaries used to delineate them are geographical and somewhat artificial as the oceans interact on global as well as regional
60 61 62
http://wo.jcommops.org/cgi-bin/WebObjects/Argo http://www.coriolis.eu.org/ http://www.usgodae.org/argo/argo.html
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scales. For example, changes in overturning circulations (North Atlantic, Southern Ocean) eventually will impact all of the ocean basins thereby manifesting changes regionally. Like the atmosphere, the oceans do not recognize geopolitical boundaries. Similarly, the oceans’ interactions with the atmosphere often manifested through changes in weather and storm patterns are global processes, reflected regionally. Understanding of the global ocean provides the context for understanding and predicting regional and coastal variability. The key to understanding is observations, observations of the oceans globally, regionally and locally. The operational ocean observing system will allow nations to: • Monitor, understand and predict weather and climate; • Describe and forecast the state of the ocean, including living resources; • Improve management of marine and coastal ecosystems and resources; • Mitigate damage from natural hazards and pollution; • Protect life and property on coasts and at sea; and • Enable scientific research.64 In view of the United States, operational oceanography is not This author submits that the large-scale programs of MSR. 65
63
For additional information on Argo, see http://www.argo.net, http://www.aoml.noaa.gov/phod/ARGO/HomePage, and the Argo Information Center http://wo.jcommops.org/cgi-bin/WebObjects/Argo 64 These six bullets are what GOOS is designed to do. See http://www.iocgoos.org/content/view/12/26/ “Enable” means observe from which hypotheses are developed and tested, not conduct scientific research. 65 Senate Committee on Foreign Relations, ‘Convention on the Law of the Sea’, Executive Report 110-9, at 13 (2007), supra note 3, (“there are other activities, such as operational oceanography, that are also not considered marine scientific research”). Wegelein, supra note 18, at 116, notes that the procedures for advance access request to a coastal State is “impracticable” and the “scientific value of their measurements would be significantly impaired if drifters had to be retrieved before they enter foreign waters and not be re-released before permission is obtained; conversely, the exact date of entry can usually not be predicted …, neither which foreign waters it may stray into.”
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oceanographic data collection, described above, that operate independently from the users of the data distinguish operational oceanography from MSR. The IOC/ABE-LOS is considering the implications for the conduct of this form of marine data collection in the EEZ.66 Exploration and Exploitation The Law of the Sea Convention contains separate regimes for exploration and exploitation of natural resources and of underwater cultural heritage. As noted above, the term “natural resources” has four separate meanings in the law of the sea, depending on the maritime zone. Part V of the LOS Convention regulates exploration for and exploitation of the living and non-living natural resources located within the EEZ separately from the conduct of MSR within the EEZ.67 Part VI of the Convention governs exploration for and exploitation of the mineral and other non-living resources of the seabed and subsoil, i.e., the continental shelf, together with living organisms belonging to sedentary species.68 Part VI does not address MSR at all.69 Thus it follows that, even though exploration and exploitation in both maritime zones are subject to exclusive coastal State control, those activities are not MSR.70 Part XIII of the Convention and its Implementing Agreement regulate exploration for and exploitation of all solid, liquid or gaseous 66
See the report of the seventh meeting of ABE-LOS through the link at http://ioc3.unesco.org/abelos/, at pages 4-9. 67 Compare LOS Convention Articles 56(1)(a) and 56(1)(b)(ii). 68 LOS Convention, Article 77. 69 MSR in the EEZ and on the continental shelf is regulated by Part XIII, Article 246 of the Convention. 70 Because they directly implicate exploration or exploitation of the natural resources of the continental shelf, Article 246(5) permits a coastal State to withhold its consent to the conduct of a MSR project on its continental shelf, inter alia, if (a) it is of direct significance for the exploration and exploitation of natural resources, whether living or non-living, (b) involves drilling into the continental shelf, or (c) involves the construction, operation or use of artificial islands, installations and structures.
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mineral resources in situ in the deep seabed beyond the limits of national jurisdiction at or beneath the seabed, including polymetallic nodules. Exploration and exploitation in the Area are subject to regulation by the International Seabed Authority. Article 256 provides that MSR in the Area is to be conducted in conformity with Part XI, particularly Article 143. Hence, exploration and exploitation of mineral resources in the Area is not MSR. Part VII, Section 2, governs the conservation and management of the living resources of the high seas. Exploration for and exploitation of all forms of natural resources is not MSR. On the other hand, underwater cultural heritage (UCH), principally shipwrecks, are not natural resources as that term is variously defined in the LOS Convention. UCH is addressed in only two articles of the LOS Convention, Article 303 with regard to the contiguous zone, and Article 149 with regard to archaeological and historical objects found in the Area. UNESCO has sought to provide a regulatory scheme for UCH found at sea.71 However, the UNESCO Convention sought to provide coastal States authority to regulate the search for and recovery of UCH located seaward of a declared contiguous zone, contrary to the allocation of rights and duties in the LOS Convention.72 Exploration for UCH is not MSR.73 71
Convention on the Protection of Underwater Cultural Heritage, Paris, 2001, 41 ILM 40 (2002), http://unesdoc.unesco.org/images/0012/001232/1232783.pdf As of November 24, 2007, the following 16 States have deposited their instruments of ratification or accession (in chronological order): Panama, Bulgaria, Croatia, Spain, Libya, Nigeria, Lithuania, Mexico, Paraguay, Portugal, Ecuador, Ukraine, Lebanon, Saint Lucia, Romania and Cambodia. . The convention will enter into force three months after the deposit of the 20th instrument of ratification, acceptance, approval or accession. 72 See R. Blumberg, ‘International Protection of Underwater Cultural Heritage,’ in: M. H. Nordquist, J. N. Moore and K. Fu (eds.), Recent Developments in the Law of the Sea and China, Center for Oceans Law and Policy, 29, (Leiden/Boston: Martinus Nijhoff Publishers, 2006), pp. 491-511, online at http://www.state.gov/g/oes/rls/rm/51256.htm
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Conclusions This paper has demonstrated that not all methods of collection of data about the oceans are marine scientific research regulated by Part XIII of the Law of the Sea Convention. The means of data collection are often the same, and may appear indistinguishable from MSR. The data collected may be the same or different. The parameters collected and their intended use distinguish MSR from surveys, operational oceanography, and exploration and exploitation of resources.74 The paper has also demonstrated that proposals that all forms of marine data collection should be under coastal State control would deprive the people of all nations of the benefits of free and open access to data that enhance safety and environmental protection. While the lack of agreed definitions of the various methods for marine data collection has resulted in differences of views on the legal regimes governing them, this paper sought to provide clarification and further understanding. Attachment 1 summarizes the regulatory authority for each of these activities in the various maritime zones. This paper has also sought to demonstrate that the collection of data by operational oceanographic instruments and programs is not MSR75 because: • the data is immediately available to all nations for their benefit; • the sum of the systems is greater than their parts and therefore nations must facilitate access and data sharing if each country is to benefit from conclusions that can be drawn from the large scale data sets (both in terms of size and time); and See also http://www.history.navy.mil/branches/nhcorg12.htm and http://www.thc.state.tx.us/belle/ 73 Accord, Wegelein, supra note 18, at 218-219. 74 See the discussion in Wegelein, supra note 18, at 82-83. 75 Accord, Wegelein, supra note 18, at 181, 227 (“marine scientific research only begins where operational oceanography ends”).
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•
whether or not one agrees that operational oceanography is or is not MSR, Part XIII still encourages countries to collaborate and facilitate access to EEZs for such large-scale initiatives.76
Since most coastal States are members of IOC, which sponsors these operational programs, they should consistently support them in their national policy.77
76 77
LOS Convention, Articles 242, 244(1) & 246(3). Accord, Wegelein, supra note 18, at 358-359.
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ATTACHMENT 1 Regulatory Authority Activity
Territorial sea Coastal State
EEZ/Continental Shelf Coastal State
High Seas Flag State
The Area
Straits/ASL
Flag State/ ISBA
Coastal State
Flag State
Flag State
Flag State
Military survey
Coastal State
Flag State
Flag State
Operational oceanography
Flag State/ Coastal State Coastal State
EEZ: Flag State; Shelf: coastal State Flag State
Strait State/ Archipelagic State Strait State/ Archipelagic State Flag State
Flag State
Flag State
Flag State
Coastal State
Flag State
ISBA
Flag State
Flag State
Flag State
Strait State/ Archipelagic State Strait State/ Archipelagic State
Marine scientific research Hydrographic survey
Explore/exploit natural resources Explore/exploit UCH
Coastal State
ISBA= International Seabed Authority.
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ATTACHMENT 2 Resolution 16 (Cg-VIII) adopted by the World Meteorological Organization at its eighth congress in Geneva in April/May 1979 UN document A/CONF.62/80, 9 August 1979 Official Records of the Third United Nations Conference on the Law of the Sea, Volume XII, page 56 (1980) The Congress, Noting (1) Resolution 2750C(XXV) of the United Nations General Assembly of 17 December 1970, by which the United Nations decided to convene the Third United Nations Conference on the Law of the Sea, (2) The informal composite negotiating text prepared by the Conference, in particular part XIII, entitled “Marine scientific research”, (3) Action taken by the Executive Committee and the SecretaryGeneral to ensure that the meteorological interests are adequately safeguarded during the consideration of relevant articles of the negotiating text, Recalling that activities of the members of the World Meteorological Organization in the oceans fall under the following two major categories: (1) Operational activities such as the collection of meteorological information from voluntary observing ships, buoys, other ocean platforms, aircraft and meteorological satellites, (2) Research activities, both meteorological and oceanographic, such as those carried out during the Global Weather Experiment, Considering (1) That an adequate marine meteorological data coverage from ocean areas, in particular from those areas in the so-called “exclusive economic zone”, is indispensable for the issue of timely and accurate storm warnings for the safety of life at sea and the protection of life and property in coastal and off-shore areas,
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(2) That the International Convention for the Safety of Life at Sea, of 1960 specifies that the contracting Governments undertake, inter alia, to issue warnings of gales, storms and tropical storms and to arrange for selected ships to take meteorological observations, (3) That members of the World Meteorological Organization have undertaken the responsibility of issuing warnings for the high seas and coastal waters according to internationally agreed procedures, Expresses the hope that the legal provisions specified in the informal composite negotiating text which govern marine scientific research will not result in restrictions to operational meteorological and related oceanographic observational activities carried out in accordance with international programmes such as World Weather and the integrated Global Ocean Station System; Appeals to members to ensure that their delegations to the United Nations Conference on the Law of the Sea are made aware of the vital need for observational data from sea areas for the timely issue of weather forecasts and storm warnings, Requests the Secretary-General to follow closely the developments in the Conference, in particular by ensuring representation at sessions of the Conference, as appropriate. **** Extract from the Oral Report of the Chairman of the Third Committee to the Third Committee at its 46th meeting, 20 August 1980 Official Records of the United Nations Third Conference on the Law of the Sea Volume XIV, pages 102-103 (1982) The Chairman, Mr. A. Yankov (Bulgaria) 4. [] announced that he had received from the World Meteorological Organization a letter in which it referred in particular to the work of the Eighth World Meteorological Organization held in 201
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Geneva. On that occasion, the organization had expressed its interest in research activities conducted in the oceans and, in particular, in the “exclusive economic zone”. In a resolution which had been adopted by the Congress and had been distributed to the participants in the Conference (A/CONF.62/80), the organization had referred to some of its activities, including the collection of meteorological information from voluntary observing ships, and meteorological and oceanographic observational activities carried out in accordance with international programmes such as the World Weather Watch and Integrated Global Ocean Station System. Now that the Third Committee had completed the negotiation on the substantive questions before it, it was in a position to reply to the Secretary-General of the World Meteorological organization. 5. Since the formulation of draft articles on the legal regime for the conduct of marine scientific research came under his mandate as Chairman of the Third Committee, he was able to share the view of the Eighth Meteorological Congress that adequate marine meteorological data coverage, including that from areas within the exclusive economic zone, was indispensable for timely and accurate storm warnings for the safety of navigation and for the protection of lives and property in coastal and offshore areas. In his opinion, the provisions on marine scientific research would not create any difficulties and obstacles hindering adequate meteorological coverage from ocean areas, including areas within the exclusive economic zone, carried out both within the framework of existing international programmes and by all vessels, since such activities had already been recognized as routine observations and data collecting which were not covered by Part XIII of the negotiating text. Furthermore, they were in the common interest of all countries and had undoubted universal significance. He informed the Committee that he intended to send a letter to the Secretary-General of the World Meteorological Organization along those lines. (Emphasis added.)
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**** Extract from the Report of the Chairman of the Third Committee Document A/CONF.62/L.61, 25 August 1980 Official Records of he Third United Nations Conference on the Law of the Sea,Volume XIV, pages 133-134 (1982) 8. At the end of the 46th meeting of the Committee on 20 August, I referred to a letter addressed to me by the Secretary-General of the World Meteorological Organization (A/CONF.62/80) in which was expressed the concern that some provisions on marine scientific research might have direct consequences on operational and research activities of the World Meteorological Organization over the oceans, particularly in areas off the coast of the coastal States, including the exclusive economic zone. The World Meteorological Organization had specifically in mind activities carried out under its Voluntary Observation Ships’ Scheme which is an important element of the World Weather Watch and activities carried out under the projects and programmes of organizations such as the Marine Meteorological Services, the Tropical Cyclone Project and the Integrated Global Ocean Station System. The letter expressed concern that some provisions on marine scientific research might have a restricting effect on those activities of the World Meteorological Organization. I informed the Committee that in my reply to the Secretary-General of the World Meteorological Organization I will state that in my view the pertinent provisions of the second revision of the text on marine scientific research would not create any difficulties or obstacles hindering adequate meteorological coverage from the ocean areas, including areas within the exclusive economic zone since such operational and research activities have already been recognized as routine activities within the terms of reference of the World Meteorological Organization and are of common interest to all countries with an undoubted universal significance. (Emphasis added.) 203
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**** Extract from the Official Records of the 134th Plenary Meeting of the Resumed Ninth Session of the Third United Nations Conference on the Law of the Sea, 25 August 1980, Volume XIV, page 15 (1982) The Chairman of the Third Committee, Mr. A. Yankov (Bulgaria) 43. At the end of the 46th meeting of the Committee, he had referred to a letter which he had received from the Secretary-General of the World Meteorological Organization (A/CONF.62/80) expressing concern that some provisions in the negotiating text on marine scientific research might have a restricting effect upon certain operational and research activities of the Organization. He informed the Committee that, in his reply to the Secretary-General of the Organization, he would that in his view the provisions of the second revision of the negotiating text on marine scientific research would not hinder adequate meteorological coverage from ocean areas, including areas within the exclusive economic zone, since such operational and research activities had already been recognized as routine activities within the Organization’s terms of reference and were of common interest to all countries. (Emphasis added.)
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ATTACHMENT 3 SOLAS REGULATION V/5 (2002) Meteorological services and warnings 1 Contracting Governments undertake to encourage the collection of meteorological data by ships at sea and to arrange for their examination, dissemination and exchange in the manner most suitable for the purpose of aiding navigation.* Administrations shall encourage the use of meteorological instruments of a high degree of accuracy, and shall facilitate the checking of such instruments upon request. Arrangements may be made by appropriate national meteorological services for this checking to be undertaken, free of charge to the ship. 2 In particular, Contracting Governments undertake to carry out, in co-operation, the following meteorological arrangements: .1 to warn ships of gales, storms and tropical cyclones by the issue of information in text and, as far as practicable graphic form, using the appropriate shore-based facilities for terrestrial and space radiocommunications services. .2 to issue, at least twice daily, by terrestrial and space radiocommunication services**, as appropriate, weather information suitable for shipping containing data, analyses, warnings and forecasts of weather, waves and ice. Such information shall be transmitted in text and, as far as practicable, graphic form including meteorological analysis and prognosis charts transmitted by facsimile or in digital form for reconstitution on board the ship's data processing system. .3 to prepare and issue such publications as may be necessary for the efficient conduct of meteorological work at sea and to arrange, if practicable, for the publication and making available of daily weather charts for the information of departing ships.
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.4 to arrange for a selection of ships to be equipped with tested marine meteorological instruments (such as a barometer, a barograph, a psychrometer, and suitable apparatus for measuring sea temperature) for use in this service, and to take, record and transmit meteorological observations at the main standard times for surface synoptic observations (i.e. at least four times daily, whenever circumstances permit) and to encourage other ships to take, record and transmit observations in a modified form, particularly when in areas where shipping is sparse. ________________________________ * Refer to the Recommendation on weather routeing adopted by the Organization by resolution A.528(13). ** Refer to regulations IV/7.1.4 and IV/7/1.5.
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.5 to encourage companies to involve as many of their ships as practicable in the making and recording of weather observations; these observations to be transmitted using the ship's terrestrial or space radiocommunications facilities for the benefit of the various national meteorological services. .6 the transmission of these weather observations is free of charge to the ships concerned. .7 when in the vicinity of a tropical cyclone, or of a suspected tropical cyclone, ships should be encouraged to take and transmit their observations at more frequent intervals whenever practicable, bearing in mind navigational preoccupations of ships' officers during storm conditions. .8 to arrange for the reception and transmission of weather messages from and to ships, using the appropriate shore-based facilities for terrestrial and space radiocommunications services. .9 to encourage masters to inform ships in the vicinity and also shore stations whenever they experience a wind speed of 50 knots or more (force 10 on the Beaufort scale). .10 to endeavour to obtain a uniform procedure in regard to the international meteorological services already specified, and as far as practicable, to conform to the technical regulations and recommendations made by the World Meteorological Organization, to which Contracting Governments may refer, for study and advice, any meteorological question which may arise in carrying out the present Convention. 3 The information provided for in this regulation shall be furnished in a form for transmission and be transmitted in the order of priority prescribed by the Radio Regulations. During transmission “to all stations” of meteorological information, forecasts and warnings, all ship stations must conform to the provisions of the Radio Regulations. 4 Forecasts, warnings, synoptic and other meteorological data intended for ships shall be issued and disseminated by the national 207
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meteorological service in the best position to serve various coastal and high seas areas, in accordance with mutual arrangements made by Contracting Governments, in particular as defined by the World Meteorological Organization’s System for the Preparation and Dissemination of Meteorological Forecasts and Warnings for the High Seas under the Global Maritime Distress and Safety System (GMDSS).
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Marine Scientific Research and Hydrographic Survey in the EEZs: Closing up the Legal Loopholes? Guifang (Julia) Xue1 Abstract The United Nations Convention on the Law of the Sea (UNCLOS) concluded in 1982 has been regarded as a remarkable achievement in successfully balancing the maritime interests of all nations. The UNCLOS provides a general framework for marine scientific research (MSR) in the world’s oceans, but some drawbacks exist in the UNCLOS regarding the MSR regime in the Exclusive Economic Zone (EEZ). Regarding MSR in the EEZ, coastal States may in their discretion decide whether to grant or withhold their consent for such activities. However, the UNCLOS does not define MSR on the basis of the activity. Nor does it define the operational methods and means of MSR. Neither does it establish objective criteria to determine the purposes and motivation of MSR activities. The MSR regime in the EEZ is largely undefined leading to conflicting positions regarding jurisdiction. Due to the lack of definition and specific distinction between the term MSR and other marine data collection 1
Director and Professor, Institute for the Law of the Sea, Ocean University of China
(Qingdao), email:
[email protected]. The author’s PowerPoint presentation can be viewed on the accompanying CD. The work is part of the research projects sponsored by the National Foundation for Social Science (05BFX048) and the Grant for Key Research Bases for Humanity and Social Science of the State Education Ministry of PRC (5JJDZH24). The views expressed herein are solely those of the author and do not necessarily reflect those of the Chinese government.
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activities, such as hydrographic survey or surveys conducted by military vessels (hereinafter called military survey), there have been some practical problems in applying these general definitions and legal frameworks. Disagreement is widened regarding the jurisdictional control of hydrographic/military survey in the EEZ. This has made the MSR regime in the EEZ complicated and problematic. The paper argues that if hydrographic survey and military survey were to be excluded from the scope of MSR, these surveys could be carried out in the EEZ without any restrictions. This would eventually lead to a collapse of the present MSR regime in the EEZ. Further, MSR activities are very diverse. Its processes, operations, characteristics, and goals cannot be captured by this simple term, and it is difficult to differentiate MSR from hydrographic survey activities. Besides, the technology of MSR is advancing. The development of aerial and space-based remote sensing platforms makes it more difficult for the coastal State to apply jurisdiction and control over MSR in the EEZ. The paper concludes that hydrographic/military survey conducted in the EEZs should be regulated by the same MSR regime and subject to costal States’ jurisdiction. It is suggested that procedures and guidelines may be developed to close up legal loopholes and to enhance ocean management. Keywords: Marine Scientific Research, Hydrographic Survey, Military Survey, EEZ, UNCLOS, costal States
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A Revisit of the MSR Regime The United Nations Convention on the Law of the Sea (UNCLOS) concluded in 1982 has been regarded as a remarkable achievement in successfully balancing the maritime interests of all nations. However, in one important area, disagreements have existed in the international community, particularly from state practice regarding the UNCLOS regime on marine scientific research (MSR). The very term MSR began to gain legal attention in the debates of the United Nations Conference on the Law of the Sea (UNCLOS III). In 1982, the final draft of the UNCLOS adopted this regime to regulate the conduct of non resource-related scientific activities in the world oceans, and it formally entered into force for the parties to the UNCLOS in 1994.2 The general regime regulating MSR in the world oceans is set forth dominantly in Part XIII of this “Ocean Constitution” through Articles 238 to 265. Within this regime, all states, irrespective of their geographical location (i.e., both coastal and land-locked States), and competent international organizations have the right to conduct MSR subject to the rights and duties of other states as provided for in the UNCLOS (Art. 238). States are obliged to promote and facilitate the development and conduct of MSR (Art. 239). MSR is to be conducted for peaceful purposes only, with appropriate scientific methods compatible with the UNCLOS, not to unjustifiably interfere with other legitimate uses of the sea, and in accordance with national regulations adopted in conformity with the UNCLOS including those for the protection and preservation of the marine environment (Art.240). MSR activities shall not constitute the 2
The UNCLOS entered into force on 16 November 1994, 12 months after its 60th ratification. See http://www.un.org/Depts/los/reference_files/chronological_lists_of_ratifications.htm#
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legal basis for any claim to any part of the marine environment or its resources (Art. 241). The UNCLOS sets forth particular provisions for MSR conducted in various maritime zones including the territorial sea (Art. 245), international straits and archipelagic waters (Arts 40 & 54). Article 21 (1) (g) provides that a coastal State can regulate MSR and hydrographic survey in its territorial sea. Access and the conditions of access to the territorial sea for these activities are under the exclusive control of the coastal State (Art. 245). Article 40 provides that during transit passage of international straits, MSR and hydrographic survey ships “may not carry out research or survey activity without the prior authorization of the States bordering the straits”. Article 54 incorporates Article 40 for archipelagic sea lanes passage. The UNCLOS provisions for MSR conducted on the high seas and in the Area are provided in Articles 87, 143, 256 and 257. MSR is to be carried out on the high seas and in the Area, but exclusively for peaceful purposes. Part XIII plus some provisions in Part V of the UNCLOS provide a regime for MSR in the EEZ and on the continental shelf (Arts 246-253). The EEZ is the most creative part of the UNCLOS, and it constitutes a major area of attention to state sovereign rights and jurisdiction. Coastal States are granted sovereign rights over resource-related matters and exclusive jurisdiction over artificial islands, MSR and protection of the marine environment in the EEZ adjacent to their coasts up to 200 nautical miles (Art. 56). Coastal States enjoy the right to formulate and implement relevant national laws and regulations, and the right to exercise supervision, board and monitor any MSR platforms in its EEZ and on the continental shelf (Art. 246). Access for MSR by other States or competent 212
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international organizations to the EEZ and continental shelf is subject to the consent of the coastal State. Coastal States are required to grant their consent for MSR projects in normal circumstances to be carried out in accordance with the UNCLOS to increase scientific knowledge of the marine environment for the benefit of all humankind. Article 246 lists five situations when the coastal State may at its discretion withhold consent to certain MSR activities. Grounds for denial of consent from the coastal States include: if the MSR is of direct significance for resource exploration or exploitation, whether living or non-living; involves drilling into the continental shelf, the use of explosives or the introduction of harmful substances into the marine environment; involves the construction, operation or use of artificial islands, installations and structures (Art. 246). Consent may also be withheld if inaccurate information regarding the nature and objectives of the project was supplied to the coastal State; or if the researching State or international organization has outstanding obligations to the coastal State from a prior research project (Art. 246). By providing these reasons, the UNCLOS emphasizes the sovereign rights of the coastal State for natural resources and its exclusive jurisdiction over MSR in the EEZ and continental shelf. The consent of the coastal State can be granted either expressly or impliedly (implied or tacit consent). Four months after the request by international organizations to which the coastal State is a member (Art. 247) or six months after request by foreign states (Art. 252), if no objection from the costal state concerned, it is deemed as implied consent. When conducting MSR in a coastal State’s EEZ, the foreign state has obligations to provide information to the coastal State (Art. 248); to comply with certain conditions (Art. 249); and to be responsible and liable 213
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for any damage resulting from MSR measures (Art. 263).
Implementation of the MSR Regime Viewed from above, the general principles of the MSR regime envisaged in Part XIII of the UNCLOS are functional. State practice in general is consistent with the UNCLOS requirements. For example, many States have enacted national legislations to prescribe the procedures necessary for conducting MSR by any foreigner or international organization and to strive toward advancement in marine science and marine technology through efficient management and publication of research data.3 Some of which have set up standard templates for the application of MSR. However, as far as implementation is concerned, considerable ambiguities have been experienced in the interpretation and implementation of the UNCLOS provisions regarding the MSR in the EEZ of coastal States, and clarification is needed concerning the MSR regime in the EEZ.4 The Intergovernmental Oceanographic Commission (IOC) of UNESCO deals with the implementation of the MSR regime through its Advisory Body of Experts on the Law of the Sea (ABE-LOS). It has produced several documents in recent years reviewing the general 3
For more national legislations, such as China (Regulations of the People's Republic of China on the Management of foreign-related Marine Scientific) and Norway (Regulations relating to foreign marine scientific research in Norway’s internal waters, territorial sea and economic zone and on the continental shelf) etc., see: http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=49&Itemid=33 4 For a summary of the Practices of Member States, see: http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=25&Itemid=40
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practices of its member States with respect to MSR. 5 It is generally observed that some developing coastal States lack capacity to effectively implement the MSR regime in accordance with the UNCLOS. These coastal States hold high expectations for the Part XIII regime and tend to extend their jurisdiction and control over their EEZs. They have been frustrated by the lack of adequate means to study and understand their adjacent ocean spaces, but they are reluctant to authorize, in the framework of Part XIII, other countries to engage into MSR in their waters.6 Problems exist for some coastal States to respond to applications from foreign researchers for a survey approval permit. The coastal State in general shows a lack of regulatory framework to fulfill Article 250 of the UNCLOS requirement concerning clear identification of official channels for the communication of MSR projects. On many occasions, coastal States do not respond to the MSR request of foreign researching States, sometimes, they even denied the permission until the last minute. Foreign researchers have also been frustrated by the requirements such as data to be provided prior to departure, data to be held in confidence and not placed in public domain, cruise reports to be submitted in local language, a number of observers to be on board cruise vessels, and money or other compensation to be paid. Another difficulty has been that data received from foreign research projects have not been properly archived due to various reasons. On the other hand, the EEZ originated from the high seas, and some states find it difficult to accept the fact that MSR is within the scope of 5
For more details of IOC- ABE-LOS, see http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=15&Itemid=29 6 For more details on MSR implementation, see IOC website: http://www.unesco.org/ioc http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=19&Itemid=33
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coastal State jurisdiction. As researching States, they are reluctant to cope with the incorporation of complex conditions of the coastal State to get permission for MSR and to hand out their MSR results and related information.7 Some of the planned research may also be in conflict with coastal States’ national research programs. Some research applications do not contain enough information for the coastal State to make an informed decision regarding the issuance of a permit. Issues as such can easily lead to conflict and a “lose/lose” situation.
Practical Issues Although the UNCLOS provides a general regime for MSR, and one third of the provisions related to MSR, it does not provide any definition for the term. As a result, issues emerge concerning the application of MSR regime, particularly in the EEZ. The lack of definition for the MSR has caused heated debate about the relationship between MSR and hydrographic survey including surveys conducted by military vessels. The crucial part of the debate concerns whether the latter conducted in the EEZ 7
The UN General Assembly and the IOC Executive Council both adopted Resolutions that required the IOC to draft and issue a Questionnaire to survey the practice of States with respect to Parts XIII (MSR) and XIV (TMT) of the UNCLOS. The Resolutions embodied that requirement include: UN General Assembly– A/RES/56/12th IOC Executive Council 35 Session– EC –XXXV.7 (Paris 4-14 June 2002). The purpose of the survey and the subsequent data compilation and analysis was to assess the problems encountered in the implementation of the MSR regime as established by Part XIII of UNCLOS; to assist States in establishing generally accepted guidelines, criteria and standards for the transfer of marine technology (TMT) in accordance with Art. 271 of UNCLOS; and to inform the international community as to the status of MSR and TMT and practical issues raised in their implementation. On IOC’s Advisory Body of Experts on the Law of the Sea (IOC/ABE-LOS) IV, a considerable number of countries interested in receiving guidance/assistance in updating or creating legislation for MSR. Most countries listed security as the rationale for not employing the implied consent regime.
See http://ioc3.unesco.org/abelos/index.php?option=com_content&task=view&id=45&Itemid=40 for more details.
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should be put under the jurisdiction of the coastal State as MSR. To trace the root problem of the MSR regime, clarification is provided below for these terms and the various aspects of their application. In general, MSR refers to any activities undertaken in the ocean and coastal waters with the purpose to expand scientific knowledge of the marine environment and its processes.8 MSR activities include physical and chemical oceanography, marine biology and chemistry, fisheries research, scientific ocean drilling and coring, geological and geophysical surveying, as well as any other activities with a scientific purpose. MSR is of great significance as an important component of contemporary natural science, and it has a key role to play in supporting the long term utilization of marine resources and sustainable ocean development. Thus the MSR regime is a very important issue. The results of MSR are generally made publicly available. Hydrographic survey refers to activities with the purpose of collecting data for the production of navigational charts to support safety of navigation, such as the depth of water, configuration and nature of the natural bottom, directions and force of currents, height and times of tides, and hazards for navigation.9 Military activities have attracted greater attention and much-deserved discussion in recent years, but the UNCLOS is silent about regulating activities of this kind. This situation has made the regime of MSR in the 8
For a detailed discussion on this term, see Zhang Haiwen, The Conflict between Jurisdiction of Coastal States on MSR in EEZ and Military Survey, in M. H. Nordquist , J. N. Moore, and K. Fu, eds., Recent Developments in the Law of the Sea and China, Martinus Nijhoff Publishers, Leiden, 2006, 317-331. 9
For various aspects regarding the definitions of hydrographic survey, see http://en.wikipedia.org/wiki/Hydrographic_survey, http://www.msq.qld.gov.au/Home/Waterways/Hydrographic_survey_standards/, and http://chartmaker.ncd.noaa.gov/hsd/hydrog.htm
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EEZ more complicated and problematic. Disagreement is widened regarding military survey conducted in the EEZ of a coastal State. Military survey is generally understood to refer to activities undertaken in the ocean and coastal waters involving classified and unclassified marine data collection conducted by military vessels for military purposes. Military survey can include oceanographic, hydrographic, marine geological, geophysical, chemical, biological, acoustic and related data that may not be normally available to the public. There is hot debate over the term “military survey” and its legal implications; however, it has escaped from both international and national laws. Some believe that fundamentally “military survey” bears the same nature as MSR and should be regulated by the MSR regime of the UNCLOS. Others argue that military survey should not be regarded as MSR, as it is conducted for military, not scientific, purposes. Practical problems arising from these terms involve the determination of the intended use of the data collected, or the distinction between MSR and hydrographic/military survey. Based on Part XIII of the UNCLOS, people may argue that the methods of the data collected and their motives or intended use constitute the primary differences between MSR and hydrographic/military survey and thus distinguish whether the marine data collection activities are MSR and subsequently determine the relevant applicable rules. Then some questions are more difficult, such as how can the motives for MSR and hydrographic/military survey be determined? What constitutes “scientific purpose” and “military purpose” and who determines it? When does information for “making of navigational charts and safety of navigation” become a military survey and not hydrographic survey? These questions are especially difficult to answer in a general climate of mistrust and suspicion. Ultimately, it is difficult to distinguish 218
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hydrographic/military survey from MSR as the methods of data collection are often the same, no matter the data type and intended use.10 In many cases, the same data collected from the marine environment may be used for different purposes and thus produce various values.11 For instance, the data from a hydrographic survey can apply to much wider purposes than just making navigational charts for safety navigation. Some are also used for monitoring and forecasting of ocean state estimation, weather, and climate prediction. Some are used for military purposes. Others are used for the exploration and exploitation of living or nonliving natural resources. In these cases, hydrographic data collected in an EEZ has clear economic value to a coastal State and should not be granted permission as MSR.12 Along with the advancement of technology in recent decades, tremendous capabilities have been employed to collect large amounts of marine data by various instruments deployed from ships, such as balloons, profiling floats, moored and drifting buoys, and remotely operated vehicles, and from offshore or near-offshore fixed platforms. The data for MSR can also be collected by satellite or by equipment on civilian and military aircraft and ships. More and more research projects use remote sensing technologies located outside the jurisdictional waters of coastal States. The coastal State can be very frustrated in distinguishing between 10 Quite often, hydrographic survey is regarded as MSR, see Atsuko Kanehara, Rikkyo University, Faculty of Law, Marine Scientific Research in the Sea Zones Where Claims of Two States for the Exclusive Economic Zone Overlap under the United Nations Convention on the Law of the Sea, The 7th Conference of Science Council of Asia Conference Workshop D: Security of Ocean in Asia, available from: http://www.scj.go.jp/en/sca/pdf/7th_kanehara.pdf, at p.5. 11 See Sam Bateman, Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research, Marine Policy, Vol. 29, Issue 2, March 2005, Pages 163-174. 12 See Chang-Wee Lee (Daejeon University) & Chanho Park (Pusan University), Joint Marine Scientific Research in Intermediate/Provisional Zones between Korea and Japan, The 7th Conference of Science Council of Asia Conference Workshop D: Security of Ocean in Asia, available from: http://www.scj.go.jp/en/sca/pdf/7th_weepark.pdf
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hydrographic/military survey and MSR in an EEZ.
Legal Implication MSR has been an important trigger for legal development, supporting states in advancing their political and economic interests in the ocean domain. Emerging issues have brought forth legal implications of the MSR regime of the UNCLOS in recent years. Such issues relate to the implementation of some provisions of Part XIII, such as the confusion over which marine data collection activities come within the scope of MSR regime. Under the UNCLOS, coastal States are authorized the jurisdiction to regulate MSR in their EEZ. However, the UNCLOS has failed to provide specific provisions on the jurisdiction over hydrographic survey and military survey. It is noted that “survey activities” are primarily dealt with in Parts II, III, XI, and Annex III of the UNCLOS rather than in Part XIII. This may be taken as an indication that survey activities do not fall under the MSR regime in Part XIII. Although it is clear that coastal States’ permission is required for both MSR and survey activities in the territorial sea (Arts 19(2) j, 21(1) g), straits used for international navigation (Art. 40), and archipelagic sea lanes passage (Art. 54), views are different on whether or not hydrographic survey in an EEZ needs the prior authorization of the coastal State. Uncertainties and different interpretations arise on whether the MSR regime applies to hydrographic survey and military survey. Some believe that not all marine data collection activities are regulated by MSR regime in Part XIII, and some go against that.13 13
Countries such as Argentina and Japan support this view, whereas the United States and the United Kingdom are against it. At the 39th IOC Executive Council’s meeting in June 2006, the United Kingdom took the view that the routine collection of data by Argo floats should not be considered as MSR but rather as an operational activity that should
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There have been some problems in applying the legal framework of MSR due to the lack of agreed definition and specific distinction between the term MSR and hydrographic/military survey. One particular example happened between the United States and China regarding the two terms. The United States has been a world leader in most areas of global affairs. To ensure its national interest, US has been expanding and strengthening its marine scientific research globally. The US Navy is progressively concentrating its support with national security implications. Some large military vessels have a global reach and operate for significant periods of time conducting missions through multiple regions. Its military vessels operating in the EEZ of China in recent years has caused some arguments.14 The uncertainty and limited details of the UNCLOS regime regarding jurisdictional rights to MSR and hydrographic/military survey have resulted in many cases of disagreement in practice involving the different concepts. This situation has resulted in different views on the legal regimes governing particular forms of marine data collection activities such as hydrographic/military survey in the EEZ. Some countries be treated in a similar way to meteorological activities. (IOC/EC-XXXIX/3, page 37, Para 262). Japan and Argentina disagreed. They considered that the Argo floats are tools of marine scientific research and that the data collected by them are of benefit to marine meteorology (id. Para 263).
14 One example of the correspondence happened at 1500-1600 hrs, 7-8 September 2006, in the EEZ of China. The law enforcement vessel of China Maritime Surveillance Ship No.27 had VHF correspondence with Ships of US Navy, SUMNER/Mary Sears (Coordinates: 28°32.93’N, 124°19.65’E). No.27: “You are in China’s EEZ and conducting MSR, thus subject to the Chinese laws on MSR.” “This is SUMNER/Mary Sears, I’m engaged in lawful military activities in international waters. I’m not engaged in marine scientific research. I’m operating with due regard for the safety of others and facility and in accordance with international law.” For more on this account, see http://www.chinanews.com.cn/gj/news/2007/04-10/912056.shtml For discussions on this account, see Military and Intelligence Gathering Activities in the Exclusive Economic Zone: Consensus and Disagreement II, ed. by M.J. Valencia and K. Akimoto, Marine Policy, Vol. 29, Issue 2, March 2005, Pages 95-187.
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intentionally make distinctions between these terms so as to avoid the jurisdiction of the coastal State. They recognize hydrographic/military survey as high seas freedoms separate from MSR, and not subject to coastal State consent otherwise applicable to MSR in foreign EEZs and on foreign continental shelves. However, the international community has a common understanding of the concept of sovereign rights and jurisdiction, and not all nations accept this interpretation. If “hydrographic survey” or “military survey” were to be excluded from the scope of MSR, “hydrographic survey” and “military survey” could be carried out in coastal States’ EEZ without any restrictions. Eventually, this would lead to a collapse of the present MSR regime in the EEZ. This was certainly not what the UNCLOS regime intended. The increased importance of EEZ management and State practice suggest that hydrographic/military survey in the EEZ should be under the jurisdiction of the coastal State. Further, MSR activities are very diverse. The processes, operations, characteristics, and goals of MSR cannot be captured by this simple term. From the perspective of coastal States, it is difficult to differentiate MSR from hydrographic/military survey. Besides, the technology of MSR is advancing. The development of aerial and space-based remote sensing platforms will make it more challenging for the coastal State to apply its jurisdiction and control over MSR in the EEZ. Moreover, the UNCLOS has already excluded the EEZ from the high seas, and the residual freedoms in the EEZ are no longer freedoms of the high seas in its traditional sense. It is true that the EEZ area of the ocean was considered high seas some decades ago. UNCLOS, as a “package deal”, reaffirms the century-old principle for the freedom of the sea and maintains such freedoms for navigation and overflight in the EEZ (Art. 222
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58). The compromises reflect the substantial conceptual change in the freedom of the seas and the balance of jurisdictional functions among states to constant modification to the solution of new problems. 15 UNCLOS has achieved a balance between the ocean enclosure by coastal States on the one hand and the desire for maintaining freedom of other states on the other. UNCLOS has also maintained balanced rights and duties between developing costal states and maritime powers.16 Maritime powers emphasize the principle of freedom of the seas and hope to maximize the freedom, while developing coastal States stress sovereignty and security.17 Although being criticized for excessive expectations of the MSR regime, coastal States have expanded their control in the EEZ by exercising jurisdiction over non-resource-related activities, including many military activities. Over the years, more restrictions have been imposed on the freedom of the seas by the international community, in the UNCLOS and other rules of international law.18 When states exercise the freedoms in a foreign EEZ, they are required not to contravene the regime of the EEZ, to have due regard to the rights and duties of the coastal State, and to comply with the laws and regulations of the coastal State (Art. 58).
Concluding Remarks It is obvious that some drawbacks exist in the UNCLOS regarding 15
O’Connell, International Law of the Sea, vol. I, 1983, pp.796-797. Extract from the Official Records of the 134th Plenary Meeting of the Resumed Ninth Session of the Third United Nations Conference on the Law of the Sea, 25 August 1980, Volume XIV, page 15 (1982). 17 Wang yi-zhou, International Politics, Shanghai People Publication, 1995, p. 80. 18 Extended jurisdiction of costal States is observed from the evolution of the laws of the sea, the four Geneva Conventions adopted in 1958, the crystallization of EEZ regime, and the implementation of the MSR regime and associated discussions in the IOC/ABE-LOS of UNESCO. 16
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the MSR regime in the EEZ. It does not define MSR on the basis of the activity. Nor does it define the operational methods and means of MSR. Neither does it establish objective criteria to determine the purposes and motivation of MSR activities. The MSR regime in the EEZ is largely undefined leading to conflicting positions regarding jurisdiction. It is expected that common ground may be found in addressing the regulatory gap and implementation concerns of the MSR regime. However, a long way still lies ahead to build a practical and realistic system as the MSR regime involves a great variety of new issues. Along with the development of science and technology, more and more marine data collection activities will be conducted in the world’s oceans. To better protect the oceans and their resources, the lack of legal provisions to regulate marine data collections, such as the hydrographic/military survey, the difficult procedures to follow in some cases and the low promotion of the UNCLOS will have to be resolved. For a coastal State, it is necessary to develop its national legislations to enhance its control over its EEZ and to improve its enforcement over marine data collection activities.19 For the international community it is also essential to resolve the major issues regarding the MSR regime. Among these issues: should all marine data collection activities be regulated in the EEZ? Are there means to capture diversified MSR activities including surveys in terms of processes, operations, 19
It is suggested that China is to strictly control foreign MSR and hydrographic/military survey in its jurisdictional waters. To expand the administrative scope of its EEZ of 200 nautical miles, the MSA of China will increase its future input in science and technology and further improve its maritime administrative methods. More vessels and aircraft of different models will be made in the coming years, to be used for tri-dimensional inspection and control over the sea, and an Internet Vessel Reporting system will also be put into use. See Xinhua News Agency, February 12, 2003, http://www.china.org.cn/english/China/55774.htm
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characteristics, and motives? Should the advanced technology, changed circumstances, and emerging issues be incorporated into the MSR regime? Can cooperation be promoted through faithful implementation of the MSR regime with good will without taking advantage of this general framework? Can a code of conduct or practical guidelines be developed for MSR and surveys to diminish the existing disagreement and potential conflicts? Advances of knowledge and skill also make it necessary to update the MSR legal regime of the UNCLOS to close up legal loopholes. These challenges can best be addressed through cooperative action instead of confrontation such as the promotion of peaceful use of the ocean. A proper way to make full use of the ocean without abusing the right for MSR granted by the UNCLOS may also include the development of practical guidelines to govern particular forms of MSR activities such as hydrographic/military survey.
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Edited Transcript of Question and Answer Session Panel II: Scientific Research and Hydrographic Surveys in the EEZ
Mrs. Barbara S. Moore: We now have about ten minutes for some discussion, so the floor is open. Professor Guifang “Julia” Xue: Actually, I would like to add a few comments before I answer the question about marine scientific research and its definition. We talk about the lack of definition in the law of the sea regime. Without a definite definition for this term, it gives us flexibility to add more ocean, marine data collecting activities, along with the development of marine science and technology. Regarding the cases there in the Chinese EEZ, I don’t think there is resolution. It is an ongoing issue. It had been there since late 2000. I read these questions, but I don’t know the answers. I have been asked inside China many times by my colleagues from the maritime civilians, and they ask me to give them from the legal perspective an explanation of the terms the US Navy has been using. I’m bringing this question here for the experts in this room to help us resolve the issue. It has been such a long time, you know, since the frequent appearance of US Navy vessels there. You can see how frustrating lack of definitions are for the Chinese maritime civilians and personnel. I am sorry I cannot give you a definite answer. I don’t really know if China had any practice in the EEZ of other coastal States because I don’t see any literature on that. But I know the Chinese coast is very attractive to other states. There are vessels conducting hydrographic surveys from our maritime neighbors and also from the United States. Quite often they really have come a long way to get to the Chinese coast. I have been wondering what they are really doing there for such a long time and what kind of data they are collecting. Regarding the national legislation, we do have a different set of laws regarding marine scientific research and also mapping/surveying. The surveying is also related in the 227
Q & A: Panel II regulations on marine scientific research in China. Because they have the interrelationship, you can’t really distinguish them from each other. Like I mentioned in my presentation, if you do want to do that, you can tell the intention from the use of the data. That’s my answer to the first question. Captain J. Ashley Roach: Let me try and answer Bob’s (Professor Beckman) question. To me it really has two parts. One question: was I aware of any particular things that I could point to in the negotiating history of the Convention with regard to what “associated” means? I am not aware of any on this subject. What is important is what I tried to set forth in my comments, and it relates back really to what Mr. Tommy Koh said to us earlier. It’s not that anybody owns the Convention; it’s rather that the Convention sets forth what was agreed. If there is anything I have learned in the 20 plus years that I have been working with the Law of the Sea Convention, it is that you have to read the Convention completely on all relevant subjects. I have seen many occasions when people have tried to paraphrase the Convention in an attempt to give part but not all of the relevant provisions. That does a disservice to the Convention and the balance—if I can use that term—because there is a balance of interests that is set forth in the Convention. There may be differences in terminology dealing with the same subjects. As Bernie Oxman would often say, even though he chaired the English language group, he wasn’t able to reconcile all the differences because he had, in effect, three or perhaps four committees operating in parallel and each would come to conclusions in such a way and in such a time that the Delegates weren’t able to necessarily harmonize all the texts. It is important to understand what those dynamics were beyond those that we heard from Tommy Koh this morning. That then leads me to the more direct answer to the second part of your question, Bob. In Part V, it doesn’t talk about surveys. The absence of talking about surveys says enormous amounts to me about what’s meant. It only talks about marine scientific research in terms of what the jurisdiction is of the coastal State. From all of the things I have 228
Q & A: Panel II been able to learn and read, there are not inadvertent omissions. The terms were used to provide guidance and rules with regard to particular subjects. If you have surveys talked about in one set and marine scientific research (MSR) is not in that part, there is a meaning to be drawn from that. The meaning to be drawn from that is that in the EEZ, surveys, whatever they are, are not MSR because they have been treated differently in different parts of the Convention. I just frankly think it is wrong to suggest that MSR covers all forms of marine data collection. It is simply not what the Convention says. Now having said that, it is important to do what we all strive to do; that is, how do we make these differences work in a practical sense? I know in the context, as I mentioned in my prepared remarks, we have been trying to do that in ABE-LOS. What is interesting —I didn’t get to say it then, but I would like to add here —is that we had one or two countries’ delegates who were very strong on initially saying that the gathering of this routine data that I talked about under the rubric of operational oceanography was in fact MSR. When I pressed him—and in fact the breakthrough occurred almost two years ago in Dublin, for those of you who were there, you may remember an exchange I had with the delegate from Argentina—he said that the concern wasn’t so much that it was MSR, it was concern for the ability to protect the sovereign rights that the coastal State has in its EEZ. That’s opened up a very useful dialogue that we’ve been having over the last couple of years. Maybe in Paris in April we will be able to take it further. There is no doubt in anybody’s mind that there is a legitimate interest that a coastal State has in protecting its natural resources from misuse by others. How you manage that balance in a context where there has been so much talk about how it’s formed this category, we’ve gotten past that, and I think that is a good thing. I was thinking while Tommy Koh was talking to us this morning about how the informal negotiations would take place on a particular subject and they’d try to work things out. If their experience then has been my experience in this and other negotiations, you really have to keep talking to each other to find out what the core interests are that you are 229
Q & A: Panel II trying to deal with. Once you can identify what the core interests are, then you can work out how to accommodate them. When people talk in terms of labels, using terms that have particular conflicting meanings, you are not engaged in a useful discussion. You are talking past each other. That’s what I am hoping that we will be able to accomplish over the next couple of years in this context. It is very clear when you are talking about operational oceanography, for example, that the data that is collected is done in ways that are very different from how the MSR regime is constructed. Yet there is also no doubt that as increasing amounts of data of different kinds are collected that it can be put to use, which may in fact have a potential for an impact on the coastal States’ economic interests. How one works that out is going to evolve as we develop a greater mutual understanding of what’s involved and what the greater good is. The results of the work that is already being done or has been done over the years in the operational oceanographic area are of enormous importance to everyone in this room and to every country around the world. It is enabling us to do things that we have not able to do in the past, and that is have an understanding of how natural forces are working and what they do to us, what they do to the weather, what they do to the ocean state, and to enable to forecast to provide safety and warnings of all kinds of weather phenomena. Because that “common good” is so important for everybody, we do have to do the kinds of cooperative things that are suggested in an MSR context in Part XIII. Bob, I hope that answers your question. Mrs. Barbara S. Moore: We have time for one last comment from Dr. Bateman. Dr. Sam Bateman: First, let me say that I agree entirely with what Ash just said that all forms of marine data collection are not marine scientific research. To some extent that is just common sense. My specific topic is hydrographic survey, and I will argue that the hydrographic survey is now part of the marine scientific research for a number of reasons that I’ve 230
Q & A: Panel II mentioned. There is a real risk here of making the issue more difficult than it need be. We are creating a bit of a smokescreen to some extent with all of these different concepts floating around, such as operational oceanography, etc. Addressing hydrographic surveying in a pure sense, hydrographic, would see the work as being part of marine scientific research. The fundamental need of a hydrographic survey is to be able to fix the position of your ship accurately. Now that’s not necessarily true of other forms of marine scientific research. You have to be able to fix the position of your collecting platform accurately. Now until very recently, that was only possible with the consent and cooperation of the coastal State because you had to have the shore stations to give you the necessary control to fix the position of your ship. That changed, of course, with GPS. I suggest that there was an assumption—I’m just coming to Bob’s question—that during the negotiation of UNCLOS in the 1970s, it would have been inconceivable for a hydrographic survey to contemplate doing a survey in the EEZ without the cooperation of the coastal State because GPS was not in existence at the time. The other fundamental issue—and Ash in his presentation gave the old definition of hydrographic survey as purely related to the safety of navigation—now that quite fundamentally has changed. Hydrographic data has a wide range of applications, particularly in the context of oceans engineering, coastal zone management, and resource exploitation. There is a recognition through international organizations that hydrographic data has monetary value, it has utility. It is not just about the safety of navigation. Now I am going to ask a question that I don’t really have the answer to or don’t know the answer to. We have in this room Singapore’s hydrographer. I would anticipate if we were to ask him the question on how much of his surveying work is related to the safety of navigation these days, he would say some are, yes. But a whole lot of these other activities would be related to these other activities, which are clearly related to the coastal State’s rights and obligations. The differences lie in the use of the knowledge and results of the activity rather than the nature of the activities 231
Q & A: Panel II themselves. That is a consideration now with hydrographic surveying. We have to think of the utility of the data, the use of the data to the coastal State. We just don’t look at it in terms of the purpose of the activity, military purpose, etc. We have to recognize that hydrographic data, albeit narrowly confined, has that utility to the coastal State. Mrs. Barbara S. Moore: With that it is time to conclude this panel.
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PANEL III: MILITARY ACTIVITIES IN THE EEZ
Military Activities In and Over the Exclusive Economic Zone Capt. Raul (Pete) Pedrozo, US Navy1 Abstract The Exclusive Economic Zone (EEZ) was created for the purpose of giving coastal States greater control over the resources adjacent to their coasts out to 200 nautical miles (nm). Unfortunately, over the years, some coastal States have sought to expand their jurisdiction in the EEZ by attempting to exercise control over non-resource-related activities, including many military activities. These excessive coastal State claims in the EEZ have no basis in customary international law or the United Nations Convention on the Law of the Sea (UNCLOS). The United States has diplomatically protested these excessive claims, as well as conducted operational challenges under the US Freedom of Navigation Program. State practice, prior to and subsequent to the adoption of UNCLOS, confirms that military forces routinely conduct military activities seaward of the 12-nm territorial sea without coastal State notice or consent. A number of international instruments, such as the IMO/IHO World-wide Navigational Warning Service and Annex 15 to the Chicago Convention regarding Aeronautical Information Services, recognize that military activities at sea are lawful. Nothing in UNCLOS changes the right of military forces of all nations to conduct military activities in the EEZ. While UNCLOS places limits on military activities in a few narrow circumstances, such as when 1
Captain Raul (Pete) Pedrozo, US Navy has served in the military for over 32 years and is currently the Staff Judge Advocate, United States Pacific Command. The views expressed in this paper are those of the author and do not represent the official views of the United States Government, the Department of Defense or United States Pacific Command. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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ships are engaged in innocent passage, transit passage and archipelagic sea lanes passage, similar restrictions do not appear in Part V of the Convention. Additionally, although the coastal State may exercise environmental jurisdiction in the EEZ, Article 236 of UNCLOS makes clear that sovereign immune vessels and aircraft are exempt from the environmental provisions of UNCLOS. Finally, reliance on the “peaceful purposes” provisions of the Convention (i.e., Articles 88, 141 and 301) to regulate military activities in the EEZ is also misplaced. UNCLOS clearly distinguishes between “threat or use of force” and other military activities at sea that are consistent with Article 2(4) of the UN Charter, such as military exercises, weapons testing, use of ordinance, surveillance and intelligence collection, flight operations, military marine data collection and hydrographic surveys. The paper will conclude by addressing the views expressed by some that the international community should develop guidelines to regulate military activities in the EEZ. Such guidelines are unacceptable even as a starting point for further discussion because they are aimed at restricting maritime freedoms set forth in UNCLOS and other international instruments. What the international community needs is strict adherence to the provisions of UNCLOS, which carefully balance coastal and maritime State interests in the EEZ. Retrenchment of these rights and freedoms by agreeing to guidelines would seriously upset that careful balance, which was the product of complex and lengthy negotiations. Introduction The Exclusive Economic Zone (EEZ) is a creature of the 1982 UN Convention on the Law of the Sea (UNCLOS) and was created for the purpose of giving coastal States greater control over the resources adjacent to their coasts out to 200 nautical miles (nm).2 Coastal States were also 2
UNCLOS, Art. 56, 57.
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granted jurisdiction in the EEZ over artificial islands and structures, marine scientific research (MSR), and protection and preservation of the environment. 3 Unfortunately, over the years, some coastal States have sought to expand their jurisdiction in the EEZ by attempting to exercise control over non-resource-related activities, including many military activities. These illegal State restrictions in the EEZ take many forms, including prohibitions on military marine data collection (military surveys) and hydrographic surveys; requiring prior notice and/or consent to conduct military activities; environmental restrictions on sovereign immune vessels and aircraft; and national security restrictions. The EEZ encompasses a large area of the ocean—nearly 30 percent—that 20 years ago was considered to be high seas. This is particularly apparent in the Asia-Pacific region, where we have a number of overlapping 200 nm EEZ claims. Therefore, coastal State efforts to impinge on internationally lawful uses of the sea in the EEZ are of particular concern to the maritime nations. In the Asia-Pacific region, India, Malaysia, Burma, Indonesia, People’s Republic of China (PRC), Bangladesh, Maldives, Mauritius and North Korea purport to regulate military activities in the EEZ in one form or another.4 Examples of recent interference with US military activities in the EEZ in the Asia-Pacific region include:5 • PRC challenges to US military survey vessels in, and US reconnaissance flights over, China’s claimed EEZ. • Indian challenges to US military survey vessels in India’s claimed EEZ. • Malaysian and Indonesian opposition at the ASEAN Regional Forum meeting in Manila to a Singaporean proposal to conduct a maritime security exercise in the Indonesian EEZ. 3
UNCLOS, Art. 56. DOD 2005.1-M, Maritime Claims Reference Manual http://www.dtic.mil/whs/directives/corres/html/20051m.htm 5 Personal knowledge of the author. 4
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•
Indonesian interference with US warships operating in the Indonesian EEZ. • Burmese and Indian interference with US military aircraft in their respective Flight Information Regions (FIR) over their claimed EEZs. These excessive EEZ claims have no basis in customary international law or UNCLOS. Accordingly, the United States has diplomatically protested these claims, as well as conducted operational challenges with ships and aircraft under the US Freedom of Navigation (FON) Program. Military Activities over the EEZ Coastal States lack competency to regulate military activities in the airspace about the EEZ. Article 2 and Article 49 of UNCLOS make clear that the airspace above the territorial sea and archipelagic waters is national airspace subject to coastal State/archipelagic State sovereignty. Similar language is found in Article 1 of the Convention on International Civil Aviation of 1944 (Chicago Convention) with regard to the territorial sea. Note that, unlike warships transiting the territorial sea, there is no right of innocent passage through national airspace for military aircraft.6 There is, however, a right of archipelagic sea lanes passage for military aircraft over archipelagic waters.7 Beyond the 12-mile limit is international airspace. Neither UNCLOS nor the Chicago Convention grant coastal States any authority over military aircraft operating in international airspace above the EEZ. Coastal State sovereign rights in the EEZ are limited to the seabed and its subsoil and to the waters superjacent to the seabed, with one exception— the coastal State has sovereign rights with regard to the production of energy from the winds.8 Therefore, nothing in UNCLOS provides a legal 6
Chicago Convention, Art. 3. UNCLOS, Art. 53. 8 UNCLOS, Art. 56. 7
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basis to regulate military activities in the airspace above the EEZ. UNCLOS does, however, clearly provide that, in the EEZ, all states enjoy, inter alia, freedom of navigation and overflight and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships and aircraft. The only caveat is that, in exercising their high seas freedoms in the EEZ, states shall have “due regard” to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal State in accordance with the provisions of UNCLOS and other rules of international law in so far as they are not incompatible with Part V of UNCLOS (emphasis added). 9 Similarly, the provisions of the Chicago Convention do not apply to state aircraft, which includes all aircraft used in military, customs and police services. The only requirement is that state aircraft fly with “due regard” for the safety of navigation of civil aircraft.10 The EP-3 Incident The EP-3 incident between the United States and China provides a good example of why a clear understanding of coastal State and other states rights in the EEZ is necessary to avoid conflict.11 On the morning of 1 April 2001, two Chinese F-8 fighter aircraft intercepted a US EP-3 that was conducting a routine reconnaissance flight about 70 miles south/southeast of Hainan Island. After making several close approaches to the US aircraft, one of the F-8s lost control and collided with the EP-3. The F-8 was chopped in half, while the nosecone and the number one propeller of the EP-3 were severely damaged. The Chinese pilot ejected, but was never found and presumed dead. The EP-3 was forced to make an emergency landing at the Lingshui military airfield on Hainan. The cause 9
UNCLOS, Art. 58. Chicago Convention, Art. 3. 11 CAPT Pedrozo served as the legal advisor to the US delegation that was sent to China to negotiate the release of the US aircrew and return of the EP-3 aircraft. Facts recited in this section are based on personal knowledge of the author. 10
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of the collisions is still a matter of dispute. The PRC claims that the EP-3 swerved into the flight path and rammed the F-8. The United States claims that the F-8 ran into the larger, slower and less maneuverable EP-3. Without going into the details, I would simply say that the laws of physics do not support the Chinese position and leave it at that. Some of the legal issues raised by this incident that are relevant to this panel include: (1) the legality of surveillance/reconnaissance flights over the EEZ; (2) the validity of coastal State security interests in the EEZ; and (3) the applicability of the due regard requirement when conducting air intercepts. The PRC position that the freedom of overflight reflected in UNCLOS Article 58 is a narrow right and includes only the right to transit the airspace above the EEZ is clearly misplaced. The PRC position is not supported by UNCLOS, other international agreements or state practice. On the contrary, the negotiating history of UNCLOS, and state practice before, during and after UNCLOS, support the conclusion that freedoms of navigation and overflight in the EEZ are broad freedoms, while coastal State rights in the EEZ are narrowly limited. UNCLOS Article 58 is quite clear—all states enjoy the freedoms of navigation and overflight and other internationally lawful uses of the seas related to these freedoms, such as those associated with the operation of ships and aircraft. Long-standing state practice supports the position that surveillance and reconnaissance operations conducted in international airspace beyond the 12-nm territorial sea are lawful activities. Since the end of World War II, surveillance and reconnaissance operations in international airspace have become a matter of routine. Many nations, including the PRC, engage in such activities on a routine basis. Moreover, UNCLOS Article 19.2.(c) prohibits intelligence gathering activities by ships engaged in innocent passage through the territorial sea. A similar prohibition is not contained in Part V of UNCLOS. Therefore, surveillance and reconnaissance activities are permitted in the EEZ and the PRC has an obligation under UNCLOS Article 56 to exercise its limited resource-related rights in the EEZ with 240
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due regard for the rights of other states to engage in lawful military activities, including surveillance and reconnaissance operations, in the EEZ. The PRC position that military activities in the EEZ require coastal State consent is also misplaced. Again, nothing in UNCLOS or state practice support this position and proposals during the Third UN Conference on the Law of the Sea (UNCLOS III) to include residual coastal State security interest rights in the EEZ were considered and rejected.12 Finally, PRC reliance on UNCLOS Article 301 to support their position is also misplaced. Article 301 provides that “in exercising their rights and performing their duties under this Convention, States Parties shall refrain from any threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the principles of international law embodied in the Charter of the United Nations.” Identical language can be found in Article 2(4) of the UN Charter and UNCLOS Article 19.2.(a). Military surveillance and reconnaissance operations in international airspace, however, do not equate to a “threat or use of force against the territorial integrity or political independence of any state.” Long-standing state practice, as well as UNCLOS, supports the conclusion that such operations are lawful and consistent with the UN Charter. Of particular note, UNCLOS Article 19 makes a clear distinction between a “threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State” and “any act aimed at collecting information to the prejudice of the defense or security of the coastal State.” 13 Both are prohibited in the territorial sea for ships engaged in innocent passage, but they are clearly distinct and independent activities.
12
United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. II, pp. 521-544. 13 Compare Art. 19.2.(a) and Art. 19.2.(c).
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Military Activities in the EEZ Let me begin with two basic propositions. First, nothing in UNCLOS changes the right of military forces of all nations to conduct military activities in the EEZ. Second, state practice prior to and subsequent to the adoption of UNCLOS confirms that military forces routinely conduct military activities seaward of the 12-nm territorial sea without coastal State notice or consent. These activities include: task force maneuvering, flight operations, military exercises, weapons testing and firing, surveillance and reconnaissance operations (and other intelligence gathering activities), and military marine data collection (military surveys). Military uses of the seas are clearly a recognized right under international law. For centuries, the navies of the world have operated and trained in waters seaward of another nation’s territorial sea without constraints or consent of the coastal State. This extensive state practice confirms that military activities at sea are lawful under customary international law and consistent with Article 2(4) of the UN Charter. UNCLOS reaffirms this conclusion by limiting military activities in only a few narrow circumstances while ships are engaged in innocent passage, transit passage and archipelagic sea lanes passage (ASLP). 14 Other international instruments also support the position that military activities at sea are lawful. For example, the International Maritime Organization (IMO)/International Hydrographic Organization (IHO) World-wide Navigational Warning Service specifically recognizes military activities at sea, such as naval exercises and missile firings, as a proper activity to issue a Naval Area (NAVAREA) warning.15 Annex 15 to the Chicago Convention regarding Aeronautical Information Services similarly
14 15
UNCLOS, Art. 19, 20, 39, 40, 52 and 54. IMO/IHO World-wide Navigational Warning Service, para. 4.2.1.3.12.
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provides that military exercises that pose hazards to civil aviation are appropriate subjects for Notice to Airmen (NOTAM).16 Nothing in UNCLOS changes the right of military forces of all nations to conduct military activities in the EEZ. As previously discussed, the EEZ was created to grant coastal States greater control over the resources in waters adjacent to their coasts, not to regulate military activities. UNCLOS Article 56 makes clear that coastal States have limited sovereign rights in the EEZ for the purpose of exploring, exploiting, conserving and managing the natural resources of the zone and with regard to other activities for the economic exploitation and exploration of the zone. The coastal State also has limited jurisdiction with regard to the establishment and use of artificial islands, installations and structures, MSR, and the protection and preservation of the marine environment. In exercising its rights and performing its duties in the EEZ, the coastal State shall have due regard to the rights and duties of other states and shall act in a manner compatible with the provisions of UNCLOS. 17 Pursuant to Article 58 of UNCLOS, all states have high seas freedoms of navigation and overflight referred to in Article 87 of UNCLOS and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships and aircraft. As evidenced by long-standing state practice, the term “other internationally lawful uses” is not solely limited to navigation and overflight rights, but includes all lawful military activities. The only limitation on the user state’s rights and freedoms is a reciprocal due regard requirement. Although coastal States enjoy environmental jurisdiction in the EEZ, application of environmental controls on foreign warships and other government-owned or operated non-commercial vessels and aircraft operating in the EEZ is strictly limited. Article 236 makes clear that the 16 17
Chicago Convention, Annex 15, Aeronautical Information Services, para. 5.1.1.1.(l) UNCLOS Art. 56.
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provisions of UNCLOS “regarding the protection and preservation of the marine environment do not apply to any warship, naval auxiliary, other vessels or aircraft owned or operated by a state and used, for the time being, only on government non-commercial service.” The only requirement is that such vessels and aircraft act in a manner consistent with the environmental provisions of UNCLOS, so far as is reasonable and practicable to do so, and to the extent that doing so does not impair operations or operational capabilities of such vessels and aircraft. It is also important to note that UNCLOS does place certain limitations on military activities at sea, but these restrictions are limited to ships engaged in innocent passage, transit passage and ASLP. For example, Article 19 limits certain military activities in the territorial sea, such as threat or use of force, use of weapons, intelligence gathering, acts of propaganda, launching and landing of aircraft and other military devices, and marine data collection (hydrographic surveys and military surveys). Article 52 applies these same limitations to archipelagic waters. Articles 20 and 52 provide that submarines must navigate on the surface in innocent passage in the territorial sea and archipelagic waters. Articles 39 and 54 prohibit threat or use of force when ships are engaged in transit passage or ASLP. Finally, Articles 40 and 54 prohibit survey activities for ships engaged in transit passage or ASLP. Similar limitations are not included in Part V of UNCLOS and therefore do not apply to foreign warships, military aircraft and other sovereign immune ships and aircraft in and over the EEZ. This conclusion is confirmed by the negotiating history of UNCLOS, which reveals that efforts to include “security interests” as a protected coastal State interest in the EEZ failed.18 Finally, let me reiterate my earlier point that reliance on the “peaceful purposes” provisions of UNCLOS to regulate military activities in the EEZ is clearly misplaced.19 State practice since the adoption of 18
United Nations Convention on the Law of the Sea 1982, A Commentary, Vol. II, pp. 521-544. 19 UNCLOS Art. 88, 141 and 301.
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UNCLOS confirms that the “peaceful purposes” provisions do not create new rights or obligations, nor do they impose restraints on traditional military operations at sea that are consistent with international law, including the UN Charter. These provisions simply require states to exercise their rights and perform their duties under UNCLOS in accordance with their duty under Article 2(4) of the UN Charter to refrain from the threat or use of force against the territorial integrity or political independence of any state. As discussed above, UNCLOS Article 19(2) clearly distinguishes between “threat or use of force” and other military activities at sea that are consistent with Article 2(4) of the UN Charter, such as military exercises, weapons testing, use of ordinance, surveillance and intelligence collection, flight operations, military surveys and hydrographic surveys. Marine Data Collection in the EEZ Although coastal States can clearly regulate MSR in the EEZ, marine data collection is much broader than MSR. Marine data collection is a general term used when referring to all types of collection activities at sea, including MSR, military surveys and hydrographic surveys. UNCLOS applies different rules to each of these activities, depending on where the activities take place. MSR is the general term used to describe those activities undertaken to expand scientific knowledge of the marine environment and its processes. Classes of data collected could include oceanography, marine biology, fisheries research, scientific ocean drilling or coring, and geological or geophysical studies. The data collected is usually shared among the public and scientific communities. Hydrographic surveys, on the other hand, are conducted to support safety of navigation. The data collected is normally used to produce nautical charts and similar products. Hydrographic survey is not MSR. Similarly, a military survey is not considered to be MSR because it is conducted for military, not scientific, 245
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purposes. The data collected may be either classified or unclassified and is normally not released to the public or scientific community unless it is unclassified and was collected on the high seas. Classes of data collected could include oceanographic, hydrographic, marine geological or geophysical, chemical, acoustic, and biological. Although the means of data collection are often similar and to the coastal State may appear indistinguishable from MSR, it is the military or safety use to which the data is put that distinguishes military surveys and hydrographic surveys from MSR. Based on these distinctions and the plain language of UNCLOS, military surveys and hydrographic surveys remain a high seas freedom and may be conducted in foreign EEZs and on foreign continental shelves without coastal State notice or consent. Coastal State consent is only required for such survey activities in territorial seas and archipelagic waters. The following provisions of UNCLOS support this conclusion: • Research or survey activities are inconsistent with innocent passage (Article 19(2)(j)); • Ships in transit passage or ASLP may not carry out research or survey activities (Articles 40 and 54); and • Part XIII applies only to MSR and does not refer to survey activities. Are Guidelines Necessary? Let me conclude by addressing the views expressed by some that the international community should develop guidelines to regulate military activities in the EEZ. Such guidelines are unacceptable even as a starting point for further discussion because they are aimed at restricting maritime freedoms set forth in UNCLOS and other international instruments. To illustrate, let me use the Nippon Foundation Guidelines as an example.20 20
Nippon Foundation/Ocean Policy Research Foundation Guidelines for Navigation and Overflight in the Exclusive Economic Group, 16 Sep 05.
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The Nippon Foundation Guidelines were developed by a group of individuals acting in their personal capacities between 2002 and 2005. They are non-binding voluntary principles that are premised on the grounds that Navies are expanding and technology is advancing while coastal States are exercising increasing control over their EEZs. The group believes that these opposing trends will result in a higher frequency and intensity of incidents in the EEZ. Accordingly, the guidelines proposed that military activities in the EEZ should not, inter alia: • stimulate or excite the defensive systems of a coastal State; • collect information to support the use of force against a coastal State; or • involve deployment of systems that prejudice the defense or security of a coastal State, or • interfere with or endanger the right of the coastal State to protect and manage its resources and environment. The guidelines further suggest that Navies should pre-notify major military exercises in a foreign EEZ and invite observers from the affected coastal State. Alternatively, the guidelines suggest that all military exercises should occur outside the EEZ in adjacent high seas areas. Some additional measures proposed by the guidelines include, inter alia: • military activities should not cause pollution or negatively affect the marine environment or marine living resources, including mammals; • there should be no live fire of weapons, underwater explosions or creation of sound waves that may harm marine life or cause marine pollution; and • there should be no military activities in marine parks and marine protected areas. Such guidelines are not helpful and would severely restrict maritime freedoms set forth in UNCLOS. What the international community needs is strict adherence to the provisions of UNCLOS, which carefully balance 247
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coastal and maritime State interests in the EEZ. Retrenchment of these rights and freedoms by agreeing to guidelines that unreasonably restrict military activities in the EEZ would seriously upset that careful balance, which was the product of complex and lengthy negotiations. Accordingly, US warships, military aircraft and other sovereign immune ships and aircraft will continue to exercise their rights and freedoms in foreign EEZs in accordance with international law. Conclusion The proliferation of excessive coastal State restrictions on military activities in the EEZ should be a growing concern to all maritime nations. Such restrictions are inconsistent with UNCLOS and customary international law, and erode the balance of interests that was carefully crafted during the nine-year negotiations that led to the adoption of UNCLOS. All militaries must remain engaged, both domestically and internationally, to preserve our operational flexibility and ensure that the balance of interests reflected in UNCLOS is not eroded any further. Bottom line, coastal States may regulate resource activities in their EEZ, but they cannot interfere with legitimate military activities in the EEZ, which include much more than just navigating through or overflying the EEZ.
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Military Activity in the EEZ: Exclusive or Excluded Right? Alexander Skaridov1 Abstract “Uncertainty” is probably the best word to describe the status of “military activity” in the modern Law of the Sea. The 1982 UNCLOS could not be considered an appropriate instrument to resolve all controversial issues, particularly in regard to EEZs and continental shelf claims. Because of this, critical issues like combat exercises, intelligence gathering, and hydrographic survey are very much dependent on coastal States’ interests and regional ambitions. The concept of “freedom of navigation,” the longstanding unchangeable principle for most navies, conflicts with coastal States’ concerns that such uninvited military activities in close proximity to their territories could threaten their national security or undermine their resource sovereignty. The inclusion of issues like environmental protection, illegal activities at sea, and resource management and protection necessitates acceptance of broader responsibilities and different priorities by military authorities. Recent international naval developments are marked by a sense of compromise. In some cases, compromise is successful; in others, what began as compromise has turned into near disaster as navies scramble to find a workable balance among blue-water and littoral responsibilities, homeland security, counterterrorism, and modernization. Moreover, for most coastal States the range of naval forces’ responsibilities has expanded and now they are not only responsible for maritime security, but also have duties for law enforcement, safety, environmental protection, and resource management, in addition to the traditional practices related to military defense. Also, navies aspire to global capability by building 1
Admiral Makarov State Maritime Academy, Russia. The views expressed in this article are those of the author and do not reflect the official policy or position of any Russian governmental agencies. Dr. Skaridov is a retired Captain in the Russian Navy as well as a Professor of Law.
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warships capable of carrying out duties in the coastal zones (for example: littoral combat ship program (LCS) in the US). In other words, in naval practice there is no indication of states’ willingness to reduce naval power or naval activity, but on the other hand the coastal States’ approach to exclude foreign military activity in littoral waters is quite evident. Even if the modern Law of the Sea is not well-adapted for “naval use,” it should be considered a fundamental pillar for the everyday use of naval force. It is a keystone for maritime security and at the same time should be the legal basis respected by the coastal States to limit their ambitions about the foreign naval activity in their EEZ. Otherwise states will not be able to find a balance of interests at sea either globally or regionally. To be able to reach this balance, gaps of uncertainty in the regulation of the naval activity in the ocean, especially in the EEZ, should be closed. To achieve this objective, keeping freedom of navigation as the basic principle of ocean use, the description of naval activity limitations in the foreign EEZ should clearly be determined within the framework of a regional or global agreement on prevention of unlawful military use of the foreign EEZ. Along with this, the key terms for the organization of the military activity (such as: “peaceful uses/purposes,” “threat of force,” “other internationally lawful uses of the sea,” “due regard,” navigation and overflight in the “normal mode”, “hostile intent,” and “abuse of rights,” etc.) should also be more clearly defined. The draft of such an agreement could be based on the highly effective 1972 Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics in the Prevention of Incidents On and Over the High Seas. The Incidents at Sea Agreement now has almost 35 years of successful application history along with principles recently developed by several groups of experts.
Mankind has always connected its well-being with owning territories. With great efforts, throughout wars and numerous sacrifices, the world went through space redistribution. Some 100 years ago it would not occur to anybody to put into operation some restrictions on the usage of the sea spaces which stretched not less than a sail day for a sailing-ship.
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Agreements, if they were concluded, were also oriented towards giving the maximum freedom to navigation and trade. 2 Feeble 3-mile attempts to take in hand only littoral waters ended in 1982 in a fiasco for those who consider it vital to keep the ocean free as much as possible. As is well known, the 1982 Convention on the Law of the Sea (UNCLOS) establishes international consensus on the extent of jurisdiction that states may exercise off their coasts and allocates rights and duties among states in all marine areas. It provides for a territorial sea of a maximum breadth of 12 nautical miles, within which the coastal State may generally exercise plenary authority as a function of its sovereignty. The Convention also establishes a contiguous zone of up to 24 nautical miles from coastal baselines, in which the coastal State may exercise the limited control necessary to prevent or punish infringements of its customs, fiscal, immigration, or sanitary laws and regulations that occur within its territory or territorial sea. It also gives the coastal State sovereign rights for the purpose of exploring and exploiting, conserving and managing natural resources, whether living (e.g., fisheries) or non-living (e.g., oil and gas), in an Exclusive Economic Zone (EEZ) that may extend to 200 nautical miles from the coast. In addition, the Convention accords the coastal State sovereign rights over the continental shelf both within and beyond the EEZ where the geological margin extends.3 The author is not going to review the history of EEZ development, but it could be useful to recall that the first attempts to expand national jurisdiction at sea were made by states traditionally supportive of the freedom of navigation. The statement of the US President, made in
2
For example, paragraph 2 of “Trade and Navigation” agreement concluded between Russia and Japan in 1895 (came in to force on July 5, 1899) gave “a full freedom of ship and cargo entrance to all places; ports and rivers on the other country’s territory”. 3 Testimony of William H. Taft IV, Legal Adviser US Department of State before the Senate Committee on Foreign Relations on October 21, 2003 concerning accession to the 1982 Law of the Sea Convention and ratification of the 1994 agreement amending Part XI of the UNCLOS [Senate treaty document 103-3 9].
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September 19454 was followed two years later in 1947 when Chile5 and Peru6 declared authority over ocean zones extending 200 miles from their coasts.29 Both States, like the United States, based their assertion of control on the protection of natural resources and fisheries. Whatever politicians and scientists say about the current balance of legal regime of sea spaces, practice proves that the introduction by the 1982 Law of the Sea Convention of the EEZ and expanded continental shelf jurisdiction will have a greater pressure on “freedom” of navigation in proportion to states’ ambitions concerning ocean resources. And, who is the disturber of those freedoms? Naval forces is the most popular answer. Over the past 10-12 years, military use for ocean spaces has become “the talk of the town.” On different political and diplomatic levels, military activity in the ocean, particularly in the close proximity of foreign coasts, has been criticized because of its dangerous nature even when this activity could be qualified as “innocent navigation”. Scholars are also working hard trying, artificially in my view, to expand the text of UNCLOS narrowing, 4
Presidential Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf, 10 Fed. Reg. 12303 (Sept 28, 1945) (President Harry S. Truman); Presidential Proclamation No. 2668, Policy of the United States with Respect to Coastal Fisheries in Certain Areas of the High Seas, 10 Fed. Reg. 12304 (Sept 28, 1945) (President Harry S. Truman). In Proclamation No. 2667, the United States declared: “Having concern for the urgency of conserving and prudently utilizing its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States, subject to its jurisdiction and control.” In Proclamation No. 2668: “In view of the pressing need for conservation and protection of fishery resources, the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale. Where such activities have been or shall hereafter be developed and maintained by its nationals alone, the United States regards it as proper to establish explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States.” 5 Presidential Declaration Concerning Continental Shelf of 23 June 1947. 6 Presidential Decree No. 781 of 1 Aug 1947.
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as much as possible, the freedom of military navigation. But before we blame the military for all faults, we have to agree that naval presence in the ocean spaces is not because of their morbid curiosity. The need for nations to be able to protect their strategic interests over water has led to the military being responsible for gathering much of the knowledge we now have concerning the sea. The great voyages of discovery, probing the depth of the ocean’s floor, our knowledge of physical ocean processes and the characteristics of the sea all have their genesis in the activities of the military. For centuries military activity at sea involved the routine use of ocean spaces. For training or security purposes, hundreds of naval warships and auxiliary crafts “hit the oceans” involving thousands of sailors and making full time jobs ashore for hundreds of thousands of others such as government officials, researchers, shipyard workers, engineers and cartographers. Military and other enforcement agencies remain the major players in terms of practical contributions to positive environmental and social outcomes through fisheries protection, maintenance of quarantine barriers, search and rescue efforts, charting for safe navigation, and research. Along with these, military forces have much more ability than other agencies for search and rescue operations at sea and are much more organized in efforts for the protection of the marine environment. Navies are also responsible for survey not only in littoral waters, but in all spaces where they are operating for security missions. Provision of highly accurate charts and related navigational products is fundamental to maintaining the safety of all vessels at sea. Correct charting of the coastline greatly reduces the likelihood of commercial and pleasure craft grounding, one of the most common marine accidents which causes both physical and oil spill damage to reefs and coastlines. Accurate charting is also vital to development of environmental plans managing marine activities in marine ecosystems permitting sustainable management. Military vessels also generally represent the only 253
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significant maritime capability for interception and apprehension of vessels and their crews that are conducting illegal activities. If conservation of high seas biodiversity is to include surveillance, interception, and apprehension capability, then thought must be given to the legal prerogative for these actions. Whatever negative we will find in naval activities, presently it remains one of the principal sources of information about the biophysical maritime environment mainly through hydrographic, biophysical, and acoustic research7 sponsored by navies worldwide.8 Along with positive contributions to our knowledge about the ocean, we have to agree that the navies’ mission in order to assist in maintaining state sovereignty and to contribute to the security remains the same—to "fight and win”. This involves a wide range of activities at sea and ashore, across a spectrum of roles from peacetime surveillance patrols to war fighting. In peacetime, the continuous involvement of naval forces around foreign coastlines and within the offshore EEZs remains a key maritime enforcement option. “Do all your training, whatever is necessary to follow the military objectives in high sea spaces”—this is the most regular advice that used to come from some coastal States’ authorities. Certainly whenever possible naval planners set out the most secure areas for the combat exercises, but this is possible only when it is feasible, as 200 nautical miles is a rather long distance to plan and conduct routine training activities.9 That is why 7
Colin Trinder and Lieutenant Commander Steve Cole, RANR, “Military activities and high seas biodiversity conservation,” available at . 8 For example, the Russian submission to the Commission on the Limits of the Continental Shelf would not be possible without naval efforts to collect scientific data on the Arctic for about 50 years. 9 It’s quite evident that 200 miles is a space which could not be ignored or avoided. For example the deployment of the Russian Navy from Vladivostok or Kamchatka to the Indian Ocean reasonably could be exercised only through the EEZs of the coastal States. The author believes that other navies have the same examples.
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most training occurs in close proximity to bases in order to conserve fuel and maximize training value through minimizing deployment time. Together with this, it should be understood that each hour and each day at sea is so valuable for crew training that even during routine transit, including through a foreign EEZ, “maritime school” never closes—day or night, weekdays or holidays. So, warships could not stop their duties and be frozen while they are passing somebody’s EEZ. They will continue normal training procedures that are constantly underway on such ships, and certain naval maneuvers, including even the occasional launching of a plane from an aircraft carrier or the takeoff of a helicopter from other warships. Each time I read or hear about the necessity to restrict intelligencegathering activities and military hydrographic surveys, I am asked questions about whether we are able to make a legal definition for those terms and how the coastal State can blame the flag State for violations. One may call it an “intelligence-gathering”—another name for collecting appropriate data for military use. For example, the hydrological picture of the water at any particular time is vital for the use of submarines. The naval vessels collect this data using devices which might be visible to the coastal State or might not. How do we clarify this activity? Do we have to try to identify unlawful activity or acts which need to have some precise characters? What we have clearly stated is that in some cases the maneuvering of a warship, using the onboard equipment and air planes/helicopter or other devices should be conducted in a nonthreatening manner. We could go much further, by focusing on such activity as firing guns, torpedoes, missile launching or testing of other weapons. However, engaging in any live-fire military exercises creates dangers and requires the establishment of warning zones to protect other users of the ocean spaces. But how many and what are those navies which currently could disturb coastal States in their EEZs? Currently conducted naval operations 255
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indicate that on a regular basis only the US Navy is deployed in different spaces of the world ocean. Only a few navies are periodically enforcing NATO joint task forces in the Mediterranean and Persian Gulf. The Australian Navy is patrolling spaces in the South part of the Pacific and Russia has restored its presence in the Atlantic and Indian Ocean. So, generally speaking, for now few navies theoretically could be involved in operations in foreign EEZs and could potentially be blamed by coastal States for violating EEZ rules. But that is only for now. Some experts believe that in the coming years China will regularly patrol waters more than a thousand miles from the Chinese coast. The capabilities of the Indian Navy are equal to that government’s desires to patrol waters close to the Malacca Straits. The smell of Arctic oil could move Canadian and Norwegian navies into blue water areas. If this happens more and more “players” could change their objectives from just “coastal” to “ocean” and UNCLOS’s “due regard” will become an outward vector. Moreover, for most coastal States, the range of naval forces’ responsibilities tends to expand and now they are not only responsible for maritime security, but also have duties for law enforcement, safety, environmental protection, and resource management, in addition to the traditional practices related to military defense. Also, navies must have global capability and build warships capable of carrying out duties in the coastal zones (for example, consider the littoral combat ship program (LCS) in the United States). In another words, in naval practice, there is no indication of states’ willingness to reduce naval power or naval activity. On the other hand the coastal States approach to exclude foreign military activity in their littoral waters is quite evident. One of the most important reasons is on the surface: ocean spaces and the ocean floor are more and more becoming arenas of economic interests and disputes. It is not incidental that last September [2007] during the US Senate Hearing on the Law of the Sea, the Deputy Secretary of the US
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Department of State Mr. Negroponte10 testified in favor of US ratification of UNCLOS, twice mentioning as an argument that as a party of the Convention, the ability to influence the decisions of the Commission on the Limits of the Continental Shelf, in particular on Russian excessive claims in the Arctic, will be much higher and participation will protect the US national interests in these discussions. So, whatever politicians and scholars say or write about the harmony of the legal regime of the ocean spaces, practices of ocean use demonstrate that the establishment by the 1982 Law of the Sea Convention of a 200 nautical mile EEZ and expanded continental margin will place more and more pressure on the “freedom of navigation” in proportion to states’ ambitions on the ocean resources. Practically all conditions related to “military activities” remain uncertain in the Convention as the “due regard” formula creates grounds for further dispute and discussions, as well as for double standards. For coastal States it is a basement for “specific rights claims”; for others a sacramental right of navigation freedom. But each maritime state could easily find itself coastal and would also like to enjoy the coastal State benefits, especially in protection of its resources. In light of the creation and acceptance of the EEZ and the recognition of coastal State resource rights, limitations on the freedoms of navigation and over flight must not be accepted. These limitations have a political and economic nature related in one way to the security concerns of coastal States, and in another way are derived from state sovereign rights over the resources of the EEZ. Article 59 provides that conflicts between coastal and maritime States regarding activities in the EEZ are to be resolved “on the basis of 10
Written testimony of John D. Negroponte, Deputy Secretary, U.S. Department of State Before the Senate Foreign Relations Committee on September 27th, 2007 “Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention” [Senate Treaty Document 103-39].
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equity and in the light of all the relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.” Article 31 makes it clear that countries are liable for the harms caused by their warships that are inconsistent with the requirements of the Convention. But, regrettably, these disputes will generally not be resolvable through the dispute resolution procedures established in the Convention, because Article 298(1)(b) allows countries to exempt “disputes concerning military activities” from these procedures. These disputes must, therefore, be addressed and resolved through the sometimes chaotic and unruly process whereby countries assert and defend their positions through state practices, followed by protests by disagreeing countries, and then eventually by the give and take of diplomatic negotiations. Sooner or later a consensus will emerge through this disorderly process. Already many sailors, pilots, and fishermen have died as nations assert their sometimes conflicting positions and jockey to put forward their views. It is to be hoped that violent conflicts can be kept to a minimum during the remainder of this law-making process. For all the foregoing reasons “uncertainty” is probably the best word to describe the status of “military activity” in the modern Law of the Sea. The 1982 UNCLOS is not an appropriate instrument to resolve controversial issues, particularly, in regard to EEZs and continental shelf claims. Because of this, the most critical issues like combat exercises, intelligence gathering, and hydrographic survey are very much dependent on the particular coastal States’ interests and regional ambitions. The UNCLOS could not in the near term be reconstructed in a way to meet all the needs of a consensus approach for military activity, including the EEZs. To prevent misunderstanding and dangerous military activity in foreign EEZs, the 1982 Convention should be developed and implemented on the basis of the Incidents at Sea Agreements. The Incidents at Sea Agreement was the next step after the Hot-Line Systems Agreement established in 1963 the grounds for confidence 258
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building measures between the United States and the Soviet Union. The means for the agreement arose in the late 1960s when the level of incidents between the United States and the Soviet navies became dangerously high. 11 The Agreement was signed during the Moscow summit meeting in 1972 and has successfully been implemented for more than 35 years. 12 Afterwards the United States entered into similar arrangements with a dozen other States, which include States from the North Atlantic, Baltic, Mediterranean and Pacific Ocean regions. The Incidents at Sea Agreement serves to enhance mutual knowledge and understanding of military activities; to reduce the possibility of conflict by accident, miscalculation, or the failure of communication; and to increase stability in times of both calm and crisis. The 1989 Agreement on the Prevention of Dangerous Military Activities developed the legal basis for military-to-military relationships and established measures to improve communication in times of crisis. It also created areas of special caution where US and Soviet forces were operating in close proximity; outlawed the dangerous use of lasers; prohibited interfering with command and control communication networks by jamming; and agreed to treat minor territorial incursions as accidental rather than automatically threatening greater consequences. 11
We have to mention as a precursor, the Accidents Measures Agreement (1971) which was designed to reduce the likelihood of nuclear accidents and to minimize the chance of war should such an accident occur. Both sides were urged to undertake measures to improve the safety and security of the US and USSR nuclear activities, and to notify one another immediately of unauthorized or accidental nuclear weapons detonations. Among other provisions, the agreement provided for advance notice of missile test launches in the direction of the other party. 12 The Agreement on the Prevention of Incidents at Sea (1972), updated the existing international guidelines to prevent collisions at sea. During the 1960s and early 1970s, Soviet and American naval commanders engaged in various forms of mutual harassment. These included an occasional game of chicken in which two rival warships threaten to ram one another, and wait for the other to turn away; buzzing an enemy ship with aircraft; aiming one’s large guns at an opponent’s ship; and nudging or shouldering hostile ships. Both sides recognized the obvious need to expand the traditional rules of the road to reduce these incidents and prevent an actual military engagement.
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Russia entered into agreements with this format with Canada, Greece, Italy, China, Japan and some other States. In April 1996, China, Russia, Kazakhstan, Kyrgyzstan and Tajikistan signed the Agreement on Confidence-Building in the Military Field Along the Border Areas. This agreement provided that military forces deployed in the border areas shall not be used to attack each other and each party shall refrain from staging military exercises directed against the other; shall impose restrictions on military exercises in terms of scale, area and the number of such exercises; and shall require notification of other parties in the vicinity of all important military activities of one party in the areas between the border and 100 kilometers from the border line. In November 1996, China and India signed the Agreement on Confidence-Building Measures in the Military Field Along the Line of Actual Control in the China-India Border Areas. The provisions of this agreement could also be projected onto the EEZ regime. The agreement provides that each side not engage in military activities that threaten the other side and that each side refrain from staging military exercises directed against the other in close proximity of the line of actual control in the border areas. It also restricts the scale of military exercises and provides prior notification to the other of such exercises. In January 1998, China and the United States signed the Agreement on Establishing a Consultation Mechanism to Strengthen Military Maritime Safety. To some extent, the US-China “Consultation Mechanism Agreement” of 1998 could be considered as a development of the Incidents at Sea Agreement. This Agreement was also built on the basis of trying to promote common understanding regarding activities undertaken by maritime and air forces of both parties. The level of consultation (by Defense Ministers), and the consultation mechanism, as well as its confidence and dispute resolution procedures also reflect the provisions of the Incidents at Sea Agreement. So, generally speaking we can confirm that several maritime States have had enough experience in developing measures to prevent high levels 260
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of tension. This could occur, for example, when one warship is tasked with intercepting a foreign warship or even with “bumping” it out from the EEZ. It could also arise when the mission is to force a foreign warship to deploy to another space of the high sea. In this case a pre-established regime between regional states or even a global naval agreement on prevention of incidents and dangerous activity could have a practical use in filling the regulatory gap which exists in modern international law, almost all of which is related to the use of naval forces in time of peace. The key provisions of such agreement could be as follows: (1) definitions for most of the important terms already agreed upon such as “threat of force,” “hostile intent,” and “use of force”; (2) steps to avoid collision, such as not interfering in the "formations" of the other party, avoiding maneuvers in areas of heavy sea traffic, and requiring surveillance ships to maintain a safe distance from the object of investigation so as to avoid "embarrassing or endangering the ships under surveillance"; (3) requirements to use accepted international signals when ships maneuver near one another; (4) prohibitions on simulating attacks at, launching objects toward, or illuminating the bridges of the other parties ships; (5) requirements to inform vessels when submarines are exercising near them; and (6) requirements that aircraft commanders use the greatest caution and prudence in approaching aircraft and ships of the other party and not permit simulated attacks against aircraft or ships, perform aerobatics over ships, or drop hazardous objects near them. The agreement should also provide for: (a) notice in advance, as a rule, of any projected actions that might "represent a danger to navigation or to aircraft in flight"; (b) information on incidents to be channeled through naval attachés assigned to the respective capitals; and 261
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(c) annual meetings to review the implementation of the Agreement. Probably the process of mutual consultation, openness, and sharing of concerns and information needed will preclude future misunderstandings and build mutually beneficial relations, especially in the military maritime domain. CONCLUSION Military activity at sea is a routine use of ocean spaces and typically there is a military presence in different parts of the world’s oceans to protect the respective nations and to prevent unlawful maritime activity. The development of world navies indicates that the “blue water club” is going to grow while on the other hand countries traditionally developing oceangoing navies will start to build vessels with coastal resources control abilities. Spaces of the coastal EEZs are too big not to be used for deployment to different parts of the world’s oceans and EEZs cannot be excluded from the routine combat training and exercises. “Uncertainty” is probably the best word to describe the status of “military activity” in the modern Law of the Sea. The 1982 UNCLOS is not an appropriate instrument to resolve controversial issues, particularly, in regard to EEZs and continental shelf claims. Because of this, the most critical items like combat exercises, intelligence gathering, and hydrographic surveys very much depend on the coastal States’ interests and regional ambitions. For about a century almost all international legal agreements used the formula that their provisions did not apply to warships or naval vessels. It is predictable that the states will fulfill international obligations through individual internal acts. This diversity will create gaps in internationally accepted definitions and regulations which could apply to naval activity. The situation should be changed. This becomes more evident while 262
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coastal States strive more and more in their attempts to adopt rules and regulations (some contain quite evident restrictions for foreign military activity) which all users should follow in their EEZs. At the same time it would be naïve to think that maritime States will cease using foreign EEZs for deployment or combat exercises. At the same time, it is also quite evident that while economic activity in their own EEZs and continental shelf increases, maritime States will become more and more concerned with the adoption of stricter rules and regulations for foreign military activity. UNCLOS will not in the near future be reconstructed in a way that meets all the needs for adopting a consensus approach for military activity, especially in the EEZs. To prevent misunderstanding and dangerous military activity in foreign EEZs, states should develop legal frameworks on a military-to-military (or government-to-government) basis where the compromise in “regulated freedom of navigation” for warships can be reached by adoption of special provisions mutually accepted by coastal and ocean-going States. The most effective and quickest way, keeping the principal provisions of the UNCLOS as the foundation for all activities at sea, is to negotiate and adopt a special agreement. Such an agreement governing military activities ought to be universally applied in all ocean spaces, including foreign EEZs and continental shelves. The starting format for such an agreement could be the Agreements for Prevention of Incidents and Dangerous Military Activity (which have almost 35 years of successful application history) and the principles recently developed by several groups of experts (such as the "Delphi group"13 or the “EEZ Group 21”14).
13
In late 2006, as part of its multifaceted effort to help the US Chief of Naval Operations develop a new, contemporary maritime strategy for the nation, the US Naval War College convened a "Delphi group" of experts—in this case, in international law—to provide the maritime strategy development team with a candid assessment of the probable state of the global legal order in 2020. The workshop, chaired by Craig H. Allen,
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the Charles H. Stockton Professor of International Law, was held 31 October-1 November 2006 at the Center for Naval Warfare Studies in Newport, Rhode Island. 14 “EEZ Group 21” is a group of senior officials and analysts drawn primarily from countries of the Asia-Pacific region. They participated in their personal capacities in a series of meetings (mostly sponsored by Japan’s Ocean Policy Research Foundation) held from 2002 - 2005. At the last meeting they adopted a document, which puts forward proposed "Guidelines for Navigation and Overflight in the Exclusive Economic Zone." The Guidelines are a set of non-binding, voluntary principles intended to provide the basis for a common understanding and approach to issues arising from the implementation of the EEZ regime. The principles claimed to be based on the 1982 UNCLOS, state practice, and emerging 'soft' law.
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China and the Law of the Sea Zhiguo Gao* Abstract As one of the largest costal countries with the greatest population in the world, China began to play a more active role in international affairs by participating in the Third United Nations Conference on the Law of the Sea (LOS Convention) in the early 1970s and ratified the United Nations Convention on the Law of the Sea in 1996. The country has increasingly become an active member of the international community in terms of the law of the sea issues and activities. This paper begins with a review of the history of the law of the sea development in China, including its attitude toward the four Geneva Conventions concluded in 1958; and recalls China's positions during the Third United Nations Conference on the Law of the Sea (UNCLOS III) negotiations, and its ratification and evaluation of the LOS Convention. The paper goes on to offer a brief introduction to China's legislation and current practice on the law of the sea issues; and discuss some of the constraints that affect China's maritime jurisdiction and interests in the wake of the implementation of the LOS Convention. Finally, the discussion concludes with some policy suggestions and recommendations by the author. This paper attempts to provide a panoramic overview of China’s *
B.A., LL.M., LL.M. and J.S.D., Executive Director, China Institute for Marine Affairs (CIMA) and Vice-President, Chinese Association of the Law of the Sea. The views expressed in the paper are solely those of the author. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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contemporary theory and practice on the law of the sea, as well as some of the major opportunities and challenges faced by the nation in the 21st ocean century.
Ι. General Background A brief introduction to China's maritime characteristics and its national interests is necessary for a better understanding of the position China took during the UNCLOS III negotiations. China has a long coastline of 18,000 kilometers. When compared with the world's 142 coastal States, China has the 10th longest coastline,1 China also has a wide continental shelf, which is the 7th largest in the world, following Canada, Indonesia, Australia, the USA, the USSR and Argentina.2 China's offshore waters are abundant in both living and non-living resources. It has been suggested that China's offshore area could be another Persian Gulf'.3 From the beginning of statehood in 1949, China began to establish its navy, and now has developed the third largest navy in the world. Although the Chinese navy is one of the biggest, it differs substantially from those of the USA and the USSR in that it is mainly a coastal defensive force rather than an offensive one. Security interests are always given first consideration in the formulation of China's marine policy. In the recent past, China has made an effort to develop its distant-water fishing and merchant fleet, and has now emerged as a maritime power. All these maritime characteristics had direct impacts on China's positions during the law of the sea negotiations. 1
John King Gamble Jr, Global Marine Attributes, Bollinger, Cambridge, MA, 1974, p. 54. 2 Ibid., p. 62. 3 S.S. Harrison, China, Oil and Asia: Conflict Ahead?, Columbia University Press, New York, 1970, p. 42.
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II. History of the Law of the Sea in China After its return to the United Nations in late 1971,4 China joined in the work of the United Nations Committee on the Peaceful Uses of the Seabed and the Ocean Floor beyond the Limits of National Jurisdiction (the Seabed Committee) and later participated in all the negotiations at UNCLOS III. PR China made, for the first time, a contribution to the creation of a new international convention—the United Nations Convention on the Law of the Sea (LOS Convention). Historically, China did not attribute as much attention as it should to the sea or to sea power, which was thought to be irrelevant to the maintenance of a great land empire. This is sometimes referred to in the Chinese literature as having seas but no defense. As a result, China suffered foreign invasions six times, all of which came from the sea. Although in ancient China there were rules and practices which were developed within the Chinese civilization equivalent to Western international law and practice, they were not truly international in the modern sense. 5 The concept of modern international law was first introduced to China in the 17th century. The earliest known actual invocation of modern international law related to the law of the sea occurred in 1864. In that year, the principles of international law governing maritime territory were invoked by China in concluding a peace
4
On 15 October 1971 the United Nations General Assembly voted to recognize the People's Republic of China (PRC) as the official representative of China. This paved the way for China to expand its role in the international negotiations on issues about which it had previously had little, if any, say. For example, China had not participated in either the first or second United Nations Conferences on the Law of the Sea held respectively in 1958 and 1960. 5 Greenfield, China and the Law of the Sea, Air and Environment, Sijthoff & Noordhoff, Alpen aan den Rijn, the Netherlands, 1979, p. 3.
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treaty with Prussia.6 It was after that time that the 'inner oceans', a Chinese term referring to territorial waters under China's jurisdiction, were specifically provided for in all the peace treaties between China and foreign nations.7 It appeared from this that China acknowledged the concept of territorial waters in international law. It should be noted that the extent of territorial waters claimed by the imperial governments of China before the 1911 revolution was unclear. A Sino-Mexican Treaty of Friendship, Commerce and Navigation of 1899, provided for a distance of three leagues (about nine nautical miles) as 'the limit of their territorial waters'.8 The 1934 Customs Preventive Law of the Republic of China claimed jurisdiction extending 12 miles for the purposes of enforcing customs laws9 International negotiations on the development of the law of the sea date back to 1930. The first attempt to codify international law was made at the first Conference on the Progressive Codification of International Law held at the Hague in 1930. Among the three subjects discussed during the conference, the most important was to codify the law of territorial waters. It was at this conference that the then Republic of China officially asserted a three-mile territorial sea measured from the low water mark along the coast.10 Due to disagreement among the 42 delegates regarding the breadth of the territorial sea and the nature of the right to be exercised by States over the 6
Ibid., p. 17. Ibid.; I.H.Y. Hsu, China's Entrance into the Family of Nations, Harvard University Press, Cambridge, MA, 1960, p. 133. 8 Jinsen Yang and Zhiguo Gao, Marine Policy in the Asian-Pacific Region, Ocean Press, Beijing, 1990, p. 123 (in Chinese). For the text' of the treaty, see Article 2 of the Sino-Mexican Treaty of Commerce and Navigation of 1899, in Wang Tieya, Sino-Foreign Treaties Before 1949, Vol. 1, 1981, p. 936 (in Chinese)6 9 See English translation, in United Nations, The Law and Regulations of the Regime of Territorial Sea, New York, 1957, pp. 113-4 10 Jinsen Yang and Zhiguo Gao, op. cit., Ref 8; Hungdah Chiu, 'China and territorial sea, The Annual of the Chinese Society of International Law, Vol. 13, 1976, p. 144; C.J. Colombus, International Law of the Sea, Longman, London, 1967, p. 757. 7
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territorial sea, the Hague conference was unable to agree on a territorial sea treaty.11 The First United Nations Conference on the Law of the Sea was convened in 1958 in Geneva. Four Conventions were eventually adopted by the conference; the Convention on Territorial Sea and Contiguous Zones, the Convention of the High Seas, the Convention on the Fishing and Conservation of the Living Resources of the High Seas and the Convention on the Continental Shelf. 12 The second United Nations Conference on the Law of the Sea was convened to deal with two issues that had been left unresolved during the first conference: the breadth of the territorial sea and fishery jurisdiction. Once again the 88 States attending the conference failed by a single vote to reach an agreement on these issues.13 At the time of the first and second conferences on the law of the sea, China was excluded from the United Nations, played no role in the formulation of these Conventions, and was not a party to any of them. In general, its attitude toward the four Conventions was negative. Although no official statements have been made, it seems that China's dissatisfaction with the four Conventions may be briefly summarized as follows. The 1958 conference was manipulated by a few big maritime powers, the outcome of the conference was essentially a product of the colonial era. The four Conventions were not appropriate for contemporary international 11
E.R. Jones, Law of the Sea: Oceanic Resources, Southern Methodist University Press, Dallas, TX, 1972, pp. 34-5. 12 The four conventions came into force respectively in 1964, 1962, 1966 and 1964 after having being ratified by 22 States. 13 A.H. Dean, ‘The second Geneva Conference on the Law of the Sea’, American Journal of International Law, Vol. 54, 1960, p. 752.
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maritime relations, it is true that at the time of the conference many developing countries had not gained their independence. Among the 80 participants, only half were Asian, African and Latin American countries. After 1960, many newly independent States began to question the validity of the existing international law of the sea on the basis that they had little or no say in formulation of the ocean law, and the four Conventions were created by a few big countries to serve their own interests. In China's view, the four Conventions did not reflect the interests of developing countries, but primarily those of the large maritime powers and the more developed nations. Hence, they were no longer generally accepted international law. Among the aspects that China felt to be objectionable was the age-old concept of the 'freedom of the sea' in the Convention on the High Seas. The open sea was regarded by China as an area enjoyed by a few strong maritime powers. 14 China's representative pointed out in the seabed committee in 1973 that half the operative part of the relevant Geneva Convention was really designed to protect the freedom of the seas at the expense of coastal States. 15 'The freedom of the seas' was unduly stressed in the Convention. The maritime powers were criticized because they had been trying to maintain the 'freedom of the high seas' in order to secure maritime domination and take possession of the fishery and seabed resources of other countries.16 The Continental Shelf Convention was criticized,17 particularly the criterion of exploitability provided for in the Convention. It was firmly believed that this criterion was completely in favor of the technologically advanced States. Developing countries were unable to take advantage of 14
Speech given by Chiao Kuanhua (Vice Foreign Minister), at 28th UN General Assembly, October 1973; Peking Review, No 40, 5 October 1973, pp. 15-16. 15 Shen Weiliang, Peking Review, 15 April 1973, pp. 14-5. 16 UN Doc A/AC 138/SC II/SR 57, 1973, pp. 103-5 17 Greenfield, op. cit., Ref 5, p. 121.
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this criterion since most did not even have the capabilities to exploit the continental shelf within 200 meters. Some Western countries also shared the same view as China. One leading US writer correctly stated that 'Agitation about the deficiencies of the convention, particularly about the so-called rubber boundary provision in Article 1, began shortly after the convention was ratified and came into force in1964'.18 A 1984 UN publication pointed out that: 'The inadequacy of the1958 treaty law had become patent within a decade, particularly as regards the continental shelf and the sea-bed',19 'Innocent passage' was regarded as another major defective area by China. Article 14 of the Convention on the Territorial Sea and Contiguous Zone, dealing with innocent passage through territorial seas, was particularly attacked on the basis that it implicitly included military vessels by using the phrase of 'ships of all States'. This provision, in China's view, was in contradiction with existing national practice. Article 16, which provided the unsuspendable innocent passage of foreign vessels passing through straits used for international navigation, was objected to for provisions depriving the coastal States of the right to exercise sovereignty in their own territorial seas.20 The only convention escaping China's criticism was the Convention on Fishing and Conservation of the Living Resources of the High Seas. This is probably because China was a near-shore fishing country and had no capability for distant-water fishing operations, so it was not much concerned about provisions on the conservation of the living resources of the high seas. To sum up, China held an unfavorable view towards the four Geneva 18
W.T. Burke, International Law of the Sea: Documents and Notes, 6th ed, Washington Law School, WA, 1986, p. 21. 19 UN Department of Information, A Quiet Revolution - UN Convention on the Law of the Sea, New York, 1984, p. 5. 20 0p. cit., Ref 14.
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Conventions which, it said, contained many unjustifiable provisions. This outdated law of the seas was thought mainly to preserve the vested interests of a few countries. China, therefore, called for 'a fair and reasonable new law of the sea' to satisfy the changed circumstances and to meet the contemporary needs.21
III. China and the LOS Convention 1. China's Position during the UNCLOS III China took part in all the UNCLOS III negotiations. Its policy and position on the major issues were first made public in the two working papers submitted by the Chinese delegation to the Seabed Committee in1973: 'Working Paper on Sea Area within National Jurisdiction'22 and 'Working Paper on Sea Area beyond National Jurisdiction’.23 The two most significant physical features of China's geography, the length of its coastline and the size of its continental shelf, naturally led China to adopt a position favoring extensive coastal State jurisdiction. In terms of the territorial sea and its limit, China's position was that the determination of the breadth of the territorial sea was a unilateral matter, and should be defined simply under State sovereignty.24 The reason for China holding such a position was to oppose the three-mile limit insisted upon by a few traditional maritime powers, including the USA and the UK. The three-mile limit rule had become obsolete, and States claiming 12 miles and more had become a majority by the time of the conference.25 21
Samuel S. Kim, China, the United Nations and World Order, Princeton University Press, NJ, 1979, p. 3. 22 UN DOC A/AC 138/S0 II/L 34, 1973. 23 UN DOC A/AC 138/S0 II/I 45, 1973. 24 UN Doc A/AC 138/S0 II/SR 55, 1973;A/AC 138/S0 II/k 34, 1973. 25 By the time of the Caracas gathering in1974, 66 of the 116 maritime States were claiming a 12-mile limit, traditional three-mile States number 25, 15 others claimed between four and ten miles, eight States claimed 200 miles, op. cit., Ref 16, p. 16.
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During the negotiations, China was very much concerned with the right of innocent passage. It is China's view that only non-military vessels were entitled to the right of innocent passage; no consensus had been reached on the innocent passage of warships. Thus, 'a coastal State may, in accordance with its laws and regulations, require military ships of foreign states to tender prior notification to, or seek prior approval from, its competent authorities before passing through its territorial seas'.26 The question of transit through straits used for international navigation was closely related to passage through territorial seas. Some maritime powers demanded an assured free transit through all straits used for international navigation, including straits becoming territorial waters under a 12-mile territorial sea limit.27 China was highly critical of the position taken by these States,28 and insisted that 'a strait lying within the territorial sea, whether or not it is frequently used for international navigation, forms an inseparable part of the territorial sea of the coastal State' 29 Foreign military vessels must obtain prior notification or authorization of the strait State before passing through the straits within territorial seas. As mentioned above, China was in favor of extensive and exclusive jurisdiction over sea areas for the coastal State. Thus, China supported the position of the majority of developing States which claimed a 200-mile Exclusive Economic Zone (EEZ). In its working paper, China pointed out 'A coastal State may reasonably define an Exclusive Economic Zone beyond and adjacent to its territorial sea in accordance with its geological conditions, the state of its natural resources and its need of 26 27 28 29
UN Doc A/AC 138/S0 II/L 234, 1973. J.A.C. Gutteridge, 'The UN and the Law of the Sea', in Churchill, Vol. III, p. 320. UN Doc A/AC 138/S0 II/SR 36, 1973, p. 21. UN Doc A/AC 138/S0 II/L 34, 1973.
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national economic development'.30 A maximum limit of 200 nautical miles was provided for in the working paper. As for the legal status of this zone, China opposed the opinion that the Exclusive Economic Zone should be regarded as part of the high seas. It was argued that 'if the economic zone were truly part of the high seas, then it would make no sense talking about the establishment of such a zone'.31 However, it was not a part of the territorial sea either.32 It was a new zone with specific legal status. The rights of the coastal State in this zone, as stated by China, were the right to protect, use, explore and exploit all the natural resources in the zone, to adopt necessary measures and regulations to prevent the resources from being plundered, encroached on, damaged or polluted, and to exercise overall control and regulation of the marine environment and scientific research within the zone.33 As far as the rights of the other States in the Exclusive Economic Zone were concerned, China stated that normal navigation and over flight would not be affected. The delineation of the course of laying cables and pipelines on the sea-bed of the zone should be subject to the consent of the coastal State.34 Prompted by the problems of boundary delimitation with all the adjacent and opposite neighboring countries in the Yellow Sea, East China Sea and South China Sea, China showed keen concern with the continental shelf issue. China's fundamental position on the issue was that the continental shelf was the natural prolongation of the coastal State. China proposed in its working paper that: By virtue of the principle that the continental shelf is the natural prolongation of the continental territory, a coastal 30
Ibid. UN DOC A/CONF 62/WP 10/Add I, 1977. 32 UN DOC A/AC 138/SC II/SR 55, p. 85. 33 UN Official Records of the Third United Nations Conference on the Law of the Sea, Vol II, 1974, p 187; see also UN Doc A/AC138/SC II/L334, 1973. 34 UN Doc A/AC 138/SC II/L 34, 1973. 31
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State may define, according to its specific geographical conditions, the limits of the continental shelf under its exclusive jurisdiction beyond its territorial sea, or economic zone. The maximum limits of such a continental shelf may be determined among states through consultations.35 Unlike some other States that put forward definitions of the continental shelf, China did not propose any specific outer limit in its working paper, but seemed to support the geomorphologic criterion.36 Speaking on the question of delimitation, the Chinese working paper provided in principle that 'states adjacent or opposite to each other, the continental shelves of which connect together, shall jointly determine the delimitation of the limits of jurisdiction of the continental shelves through consultation on equal footing'.37 China preferred settlement of boundary disputes through consultation and negotiation between the States concerned. It refused to accept the principle of median line or equidistance as a delimitation criterion.38 China voiced its strong support for the principle of the 'Common Heritage of Mankind' during the negotiations, and maintained that 'the seas and oceans as well as their submarine resources beyond the limits of territorial seas and national jurisdiction are in principle commonly owned by all the peoples of the world'.39 China supported the establishment of a strong international authority and the working paper provided that 'the exploration, exploitation and all other activities conducted in the seabed, ocean floor and their subsoil of the international sea area shall be governed by the international regime and international machinery to be 35
Ibid. Greenfield, op. cit., Ref 5. 37 UN Doc A/AC 138/SC II/L34, 1973. 38 J. R. Stevenson and B.H. Oxman, 'The Third UN Conference on the Law of the Sea: the 1975 Geneva Session', American Journal of International Law, Vol. 69, 1975, p. 767. 39 UN Doc A/AC 138/SC II/L 45, 1972. 36
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established'.40 The functions of the machinery 'should not be limited to handling matters of registration, license-issuing and co-ordination of matters pertaining to the sea-bed', 41 China also insisted on a halt to sea-bed exploitation pending the establishment of an international regime. Two notable features of China's position during UNCLOS III should be mentioned here. One was that China's proposals were very often 'broad policy outlines or general principles rather than specific regulations'.42 The other was that China maintained its position un-changed on most of the issues throughout UNCLOS III. 2. China's Evaluation of the LOS Convention Together with 118 other States, China signed the LOS Convention on 10 December 1982. The Convention—which enters into force 12 months after 60 States have ratified it—has been ratified by 155 States plus the European Union to date.43 In China's view, 'the adoption of the LOS Convention is a victory of the long-term struggle of the third world countries for equal maritime right and against the superpowers' maritime hegemony'.44 For almost half the nations of the world, particularly those that became independent after 1945, the LOS Convention represents their first active involvement in the making of an international law of the sea that they are prepared to accept. The unique value of the LOS Convention is the way in which it seeks to meet the widely varying needs of the individual States as well as those of the world community. The LOS Convention takes care of the interests of both developing countries and developed countries, coastal countries and 40 41 42 43 44
Ibid., 1973 UN Doc A/AC 138/SC I/SR 66, pp. 46-47. Greenfield, op. cit., Ref 5. UN Office for Ocean Affairs and the Law of the. Sea, Law of the Sea Bulletin, 2008. Renmin Ribao (People's Daily, in Chinese), 4 May 1982 (author's translation).
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land-locked countries. Hence, 'this is, comparatively speaking, an international convention on the law of the sea acceptable to the majority of the states'.45 The new Convention on the law of the sea, on the whole, has achieved much progress compared with the old law of the sea. It stipulates a number of important legal principles and regimes for safeguarding the common heritage of the mankind and the legitimate rights and interests of nation states, and breaks up the situation that the old law of the sea was unilaterally advantageous to a few big powers.46 China regards the new Convention as part of the establishment of a new international economic order, and an important step toward the establishment of the new legal order of the oceans.47 China is interested in both legal and economic aspects of the Convention as well as the political ramifications that the Convention will bring about in the years to come.48 On the other hand, China is not entirely satisfied with the Convention.49 The head of the Chinese delegation pointed out at the final session that 'there are quite a number of articles in the LOS Convention which are imperfect or even have serious drawbacks'. 50 Among the imperfect articles are those on innocent passage, definition of continental shelf, boundary delimitation of the EEZ and continental shelf, and the international seabed regime.51 45
Ibid. Shen Weiliang and Shu Guangjian, 'The Third UN Conference on the Law of the Sea and the Convention on the Law of the Sea', Chinese Yearbook of International Law, 1983, p. 434 (in Chinese). 47 Ibid., p 433; Renmin Ribao, op. cit., Ref 53. 48 Paul C. Yuan, 'The UN Convention on the Law of the Sea from a Chinese Perspective', Texas International Law Journal, Vol.19, 1984, p. 417. 49 Renmin Ribao, 11 December 1982. 50 Shen Weiliang and Xu Guangjian, op. cit., Ref 46. 51 Ibid. 46
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Due to the comprehensiveness of the LOS Convention and its spirit of compromise, no State is completely satisfied with all the provisions. Every country has to cede on one point before gaining on another. So despite its dissatisfaction with some of the articles in the Convention, China ratified it in 1996.
IV. China's Legislation and Practice on the Law of the Sea After 1949, the People's Republic of China did not accept the generally accepted principle of State succession to treaties. It was determined to recognize, annul, revise or re-conclude the treaties or agreements concluded by the previous governments with foreign countries, depending on their contents. China therefore refused to recognize the three-mile territorial sea and other zones declared by the former governments. Much of China's early practice on the law of the sea was found in specific laws and regulations concerning the control and jurisdiction over foreign vessels in Chinese waters, and in a number of treaties on commerce and navigation or bilateral agreements on fisheries concluded with neighboring countries.52 In the early statehood of China, the exact breadth of territorial sea was not clear. It was nevertheless believed that China preferred, and actually controlled, a wide range of territorial sea. China did not establish its territorial sea regime until the official 'Declaration of Chinese Territorial Sea' on 4 September 1958,53 which declared, inter alia, that: 1. The breadth of China's territorial sea shall be twelve nautical miles. This breadth applies to all territories of China, including Taiwan and its surrounding islands, and the islands in the South China Sea. 52 53
Greenfield, op. cit., Ref 5, p. 18. Peking Review, No 28, 1958, p. 21.
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2. The straight base line method was adopted for establishing the territorial sea limit. 3. Bohai Bay and Qiongzhou Strait (Hainan Strait) were Chinese inland waters. 4. No foreign military vessels or aircraft may enter China's territorial area and the air space there above without prior permission. China's declaration was protested against by a few countries on grounds of unilateral extension of territorial waters and use of the straight baseline, and of invalidity under international law.54 In response to these protests, China claimed that they constituted an 'unreasonable intervention' in the exercise of sovereignty. It would be fair to say that the Chinese claim in 1958 was a reflection of what was to become an irreversible trend.55 Following the promulgation of the declaration, China enacted Regulations Concerning the Passage of Foreign Non-military Vessels through Qiongzhou Strait in 1964.56 According to this regulation, no foreign military vessels were allowed to pass through the Strait, but foreign commercial vessels might pass through the Strait with permission requested 48 hours in advance and only during daytime. In addition to the 12-mile territorial sea, there are at present several special zones for the purposes of fishery conservation and military operation. These zones were first established in the China-Japan Fishery
54
Peking Review, No 32, 1958, pp. 19-20; 'US rejection of the declaration', Survey of International Affairs, Royal Institute of International Affairs, Oxford University Press, 1956-1958, London, 1962, p. 568. 55 Cf. Greenfield, op. cit., Ref 5. 56 Regulations concerning the passage of foreign non-military vessels through Qiongzhou Strait, 1964' (in Chinese). For the English text, see S.H. Lay, R. Churchill et. al., New Directions in the Law of the Sea, Vol II, Oceana Publications, New York,1973, p.549.
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Agreement (non-governmental) concluded in 1955 57 Two new agreements were concluded in 1963 and 1965, both of which were revised versions of the first one. These two agreements were also non-governmental, but China treated them as if they were treaties. In 1975, a new governmental agreement on fisheries was concluded between China and Japan, which was similar in many respects to the previous ones.58 In this agreement, one fishing conservation zone, two fishery-suspension areas, two fishery protection areas and two military zones were provided for. The conservation zone is the motor trawler prohibition zone along the coastal waters in the Yellow and East China Seas. In this zone, trawling by fishing vessels with engine capacity of more than 600 horse-power from both China and Japan is banned. In the two suspension areas, fishing vessels are not allowed to enter during the period from 1 September to 30 November. In the protection areas, the number of fishing vessels of each party during specified seasons shall not exceed the maximum number agreed upon by the two governments. The two military zones are: (1) the military warning zone west of the strait line in the northern part of the Yellow Sea, in which vessels are not allowed to enter except with the permission of the Chinese authorities concerned; (2) the military operation zone in the water north of Taiwan and south of 27° N, in which vessels are advised at their risk not to fish. The 1975 governmental agreement remains in force today and so too do the above zones and areas. The 1958 declaration and the 1964 regulation and the Sino-Japanese fishing agreements were the basic documents that established China's initial territorial sea regime. Up until the early 1990s, this regime has not 57
For information on the treaty, see Japanese Annual of International Law, The Japan Branch of the International Law Association, Tokyo, 1959, p. 109. 58 Agreement on Fisheries between the Government of Japan and the Government of PRC of 1975 (in Chinese). For English text, see Greenfield, op. cit., Ref 5, pp. 298-313.
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been changed, except that foreign commercial vessels are now allowed to pass the Qiongzhou Strait in both daytime and nighttime. The initial territorial sea regime of China was significantly amended and supplemented by the subsequent developments of and promulgation of new national legislation on the law of the sea in China. To bring its national legislation in more conformity with the LOS Convention to be entered into force, ‘The Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone’, was promulgated and entered into force on February 25, 1992.59 The law provides that the breadth of the territorial sea of China is 12 nautical miles, the method of straight baselines shall be employed in drawing the baselines of the territorial sea (Art. 3). The breadth of the contiguous zone is twelve nautical miles (Art. 4). Foreign ships for non-military purposes shall enjoy the right of innocent passage through the territorial sea, but foreign ships for military purposes shall be subject to approval by the Chinese Government for entering the territorial sea of the People's Republic of China ( Art. 6). The Government of the People's Republic of China has the right to take all necessary measures to prevent and stop non-innocent passage through its territorial sea. In the case of violation of the laws or regulations of the People's Republic of China by a foreign ship for military purposes or a foreign government ship for noncommercial purposes when passing through the territorial sea of the People's Republic of China, the competent authorities of the People's Republic of China shall have the right to order it to leave the territorial sea immediately and the flag State shall bear international responsibility for any loss or damage thus caused (Art.10). Hot pursuit against the foreign ship violating the laws or 59
“The Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone”, February 25, 1992.
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regulations of China is also provided in the law (Art. 13). Another important piece of legislation on the law of the sea in China is the ‘Law of the Peoples Republic of China on the Exclusive Economic Zone and the Continental Shelf’. It was promulgated on June 26, 1998,60 two years after the country ratified the LOS Convention. The Major operative articles of the law are summarized into the following points: 1. The EEZ of China extending as far as 200 nautical miles measured from the baseline used for calculating the breadth of the territorial sea (Art. 2). 2. The continental shelf is all natural extensions following the land territory of the State, extending as far as the bed and subsoil of the undersea area on the outer fringe of the continent; or extending as far as 200 nautical miles in case where it is not more than 200 nautical miles measured from the baseline (Art. 2). 3. Where the claim of China for the EEZ and the continental shelf overlaps with that of other country adjacent or opposite in their seacoasts, a boundary shall be determined under the principle of equity and based on the international law (Art. 2). 4. Marine scientific research by any international and foreign organization as well as individuals in the EEZ and the continental shelf of China must be subject to the approval of the Chinese competent authorities, and must conform to the laws and regulations of China. 5. All countries, provided they observe international law and laws and regulations of China, enjoy the freedom of navigating in and flying over the EEZ of China. 6. China has the power to take necessary measures against acts violating laws and regulations in the EEZ and the continental shelf, investigate for legal liabilities 60
“The Law of the Peoples Republic of China on the Exclusive Economic Zone and the Continental Shelf”, June 26, 1998.
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according to law, and may exercise the right of hot pursuit (Art. 12). 7. No provisions of this Law can prejudice historical rights of the People's Republic of China (Art. 14). In accordance with the Law of the Territorial Sea and Contiguous Zone adopted in 1992, China announces the baselines of its territorial sea adjacent to the mainland and those of the territorial sea adjacent to its Paracles (Xisha in Chinese) Islands on 15 May 1996. The baselines are composed of all the straight lines joining the 49 adjacent base points from Shandonggaojiao to Junbijiao. The baselines of the territorial sea adjacent to the Xisha Islands are composed of all the straight lines joining the 28 adjacent base points encircling the Xisha Islands. With respect to the Chinese base points and baselines, two observations can be made. First, the present baseline announced by China is incomplete, since they are the baselines of part of its territorial sea adjacent to only the mainland, and surrounding one of its major islands groups; second, the last section of the northern line in the North Yellow Sea and the final section of the southern line in the Beibu (Tokin) Gulf are left open, due perhaps to security and other concerns. However, China has clearly indicated that it will announce the remaining baselines of the territorial sea at proper times. To sum up, China's legislation on the law of the sea is now, by and large, complete. Its practice in this respect has been far more active and substantive than ever before. Among the maritime zones under national jurisdiction provided for in the LOS Convention, China has yet to declare its position on the outer continental shelf beyond 200 miles. More importantly, China’s current positions and practices on some of the most recent developments of the international law of the sea issues, such as military and intelligence gathering activities, are not only worth observing, 283
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but also require careful study in order to have an in-depth and panoramic view of China’s maritime policies.
V．Some of the Major Issues and New Challenges 1. Innocent Passage Innocent passage of warships through the territorial sea poses a major constraint on China's ratification of the Convention. As to the right of innocent passage, the new Convention simply provides that 'ships of all States' enjoy the right of innocent passage through the territorial sea. It makes no improvement on the old article in the 1958 convention. The phrase 'Ships of all States' has been criticized by China, for it is subject to multiple interpretations. In China's opinion: 'During the past 100 years or so the right of innocent passage of foreign warships through the territorial sea has never been generally recognized'.61 Foreign commercial vessels might enjoy the right of innocent passage through the territorial waters of other States. The passage of foreign warships is, however, entirely different in nature from that of foreign commercial vessels. 'Coastal States have the right, according to their internal laws and regulations, to require prior authorization or notification before foreign warships pass through territorial seas'62 A Chinese writer recently asserted that the general customary rule on the passage of warships through the territorial sea is: ‘Coastal States may grant foreign warships innocent passage through the territorial sea without special requirements or make the passage subject to previous notification or authorization, or to some other requirements’.63 This assertion may be 61
Shao Jin, 'The question of innocent passage of warships after UNCLOS II1', Marine Policy, Vol. 13, No 1, January 1989, p. 67. 62 0p. cit., Ref 55. 63 Shao Jin, op. cit., Ref 62.
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true in both theory and practice. Such a position is, however, contrary to the provisions of the Convention. Therefore, it poses a major problem for China if it wishes to stay within the framework of the Convention. No right of innocent passage for warships through the territorial sea has been China's consistent navigation policy. This policy has been reiterated in the 1983 Maritime Traffic Safety Law of the People's Republic of China, which provides that 'no military vessels of foreign nationality may enter the territorial seas of the People's Republic of China without being authorized by the Government thereof'.64 It is suggested that China needs to amend its legislation on the issue of innocent passage since the legislation as it now stands is inconsistent with the provisions of the Convention.65 This can probably be done, as a first step, by shifting the requirement from prior authorization to prior notification for foreign warships wishing to pass through Chinese territorial waters. Such a policy is probably a workable compromise between the current Chinese navigation policy and the innocent passage provisions in the LOS Convention and may be viewed as a movement towards the new Convention.66 2. Definition of the Continental Shelf The issue of the continental shelf involves China's vital interests. The present definition of the continental shelf provided for in the Convention is basically based on the principle of natural prolongation, 64
Article 11, Maritime Traffic Safety Law of the People's Republic of China, Beijing,1983, p. 13. 65 W.T, Burke, 'Chinese perceptions of the law of the sea', The Law of the Sea: What Lies Ahead?, proceedings of the 20th Annual Conference of the Law of the Sea Institute, 21-24 July 1986, Miami, Florida, The Law of the Sea institute, Honolulu, 1988, p. 160. 66 Zhiguo Gao, 'China's navigation policy in its territorial sea', ibid., p. 163.
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which is inconformity with China's consistent position on the issue. China holds that the present definition, however, has room for further improvement. It is suggested that the provision on the composition of the continental margin should be more flexible than it now stands. More specifically, that 'the continental margin composes the shelf, the slope and the rise' should be revised to 'the continental margin generally comprises the shelf, the slope and the rise'.67 This implicitly means the case in the East China Sea, where Japan's narrow continental shelf runs abruptly into the Okinawa Trough without any slope and rise in the normal sense. China raised this proposal during the negotiation, but it attracted little attention at the conference. 3. Boundary Delimitation With regard to the delimitation principle of the EEZ and continental shelf, Articles 76 and 83 of the new Convention provide that the delimitation of the EEZ and the continental shelf be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice (ICJ). In China's view, the rules embodied in Article 38 of the ICJ Statute such as international treaties and customs, judicial decisions, opinions of the most highly qualified writers and the general principles of law recognized by civilized nations—are subject to various interpretations. These rules are so broad that they provide no principles upon which states can rely to solve their disputes. The provisions concerning boundary delimitation in the new Convention, as it now stands, create problems rather than solve them: 'It is not only too flexible and indeterminate, but it also generates a host of new problems
67
Shen Weiliang and Xu Guangjian, op. cit., Ref 46, p. 417.
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for certain countries with different political system and ideologies'. 68 China holds that the continental shelf is the natural prolongation of the land territory; delimitation of the continental shelf should, taking into account all relevant circumstances, be effected through consultation and negotiation between states concerned in order to achieve an equitable solution. 4. The Regime for the “Area” The international deep sea-bed regime is a completely new creation of the Convention. The significance of the deep sea-bed regime lies in the fact that, first, for the first time in history, the international sea-bed and its resources have been recognized as the 'common heritage of mankind' and the common interest of the peoples of the world in the deep sea-bed have been confirmed. Second, the deep sea-bed regime sets up a number of important rules and regulations for protecting and exploiting the common heritage. Third, the deep sea-bed regime imposes some restrictions on unilateral exploration and exploitation, and creates some opportunities for developing countries to exploit the deep sea-bed resources. Thus, the 'international deep seabed regime is the best result that the developing countries can achieve under the present conditions'.69 Generally speaking, China's view towards the deep sea-bed regime is favorable, but it is felt that “it is inept that some of the provisions of the deep seabed regime have given too much advantage to a few industrialized countries”70 For instance, the provision on the composition 68
Paul C. Yuan, op. cit., Ref 48. Gao Zhiguo, “On the issues of the international seabed regime', Journal of China University of Political Science and Law, 1984, p. 78 (in Chinese). 70 Ibid. 69
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of the Council provides for a number of guaranteed seats for the major industrialized powers. 5. Military Activities in the EEZ In addition to the above more traditional issues of the law of the sea, China is also confronted with at least two more new challenges in the wake of the LOS Convention’s entry into force. The first of this kind of issue is military activities in the EEZ. The country has been plagued over the past decade by frequent foreign vessels conducting military activities in its EEZ. In September 2002, China reportedly filed protest with the US government charging that the USNS Bowditch had conducted monitoring and reconnaissance activities without its approval in its EEZ. In fact, the Chinese near-shore waters have been frequently visited even to date by a number of US Navy research vessels, which are sometimes escorted by US naval destroyers. The vessels are often engaged in hydrographic surveys as near as 60 miles off the Chinese coast. The Chinese patrol boats and planes will normally issue warnings for the US vessels to leave its EEZ area.71 The United States takes the position that the conduct of surveys in the EEZ of a foreign coastal State is an exercise of the freedom of navigation and other internationally lawful uses of the sea under Article 58(1), and therefore not subject to coastal State regulation. The United States has responded along these lines to other States which have questioned such survey activities in their EEZ. The US Department of the Navy also states that coastal nations cannot regulate hydrographic surveys or military surveys conducted beyond their territorial sea, nor can they require 71
The Regime of the Exclusive Economic Zone: Issues and Responses. Background Materials for the Tokyo Meeting, 19–20 February 2003, pp. 2-12.
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notification of such activities.72 China, on the other hand, appears to believe that ‘military hydrographic survey’ activities in the EEZ are, in a military sense, a type of battlefield preparation and thus a threat of force against the coastal State, thus violating the principle of peaceful use of the sea.73 With a view to safeguarding its jurisdiction against the challenge of hydrographic and military surveys in its EEZ, China enacted on June 18, 1996, as amended in December 2002, ‘Regulations of the People’s Republic of China on the Management of Foreign-related Marine Scientific Research’, elaborating on its 1998 law on the EEZ, which provides that ‘marine scientific research activities by the foreign side in the internal sea and territorial sea of the People's Republic of China shall be carried out in cooperation with the Chinese side. In other sea areas under the jurisdiction of the People's Republic of China, the foreign side may conduct such activities by itself or in cooperation with the Chinese side.’ ‘Any marine scientific research activities … shall be subject to approval from the competent authority … and shall comply with the relevant laws and statutes of the People's Republic of China’ and further, ‘any survey or mapping activities’ cannot involve State secrets or hurt the State, and that all such surveys must have prior permission.74 6. Intelligence Gathering Activities over the EEZ On April 1, 2001, there was a serious incident of a mid-air collision over the South China Sea between the United States and the People’s 72
Department of Navy, The Commander’s Handbook on the Law of naval Operations, 1995, Section 2.4.2.2. 73 Ibid., pp. 52-5. 74 Art. 4 of Regulations of the People’s Republic of China on the Management of Foreign-related Marine Scientific Research.
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Republic of China. The incident involved a collision between a US plane on a routine reconnaissance mission and a People’s Liberation Army (PLA) fighter conducting what is usually a normal interception over the Chinese EEZ in the South China Sea. The US Navy EP-3E (Aries II) turboprop reconnaissance aircraft from Kadena Air Base in Okinawa, Japan, carrying a crew of 24 military service men and women and a People’s Liberation Army Navy (PLAN) F-8II jet fighter accidentally collided in international airspace about 70 miles off the PRC’s Hainan Island. After surviving the near-fatal accident, the US crew made an emergency landing of their damaged plane onto the island at the PLAN’s Lingshui airfield, and the PRC subsequently detained the 24 crew members for 11 days. The PLAN’s F-8 fighter crashed into the sea and the pilot, Wang Wei, was lost.75 China and the United States disagreed over a number of important aspects of the incident, such as the cause of the accident, China’s right to inspect the EP-3, the US ‘apology’ for the incident, the legitimacy of the overflight, and the amount of damage compensations, etc. The two sides also disputed on an important issue of international law. The United States argued that the US aircraft had the right to fly in ‘international airspace’ about 70 miles off the Chinese coast. China, however, contended that the performance of reconnaissance in its EEZ constitutes an abuse of the right of overflight.76 Finally, there has been a remaining issue of payment for expenses involved in the incident. In July of 2004, China calculated a bill for the United States of about USD 1 million for expenses and compensation, including services rendered, assistance provided, and some damage compensation, which the United States official called ‘highly exaggerated’ 75
Ren Xiaofeng, Legal Issues of the Military and Intelligence Activities in the EEZ and Its Above Air Space. 76 Ibid.
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charges. The United States ‘independently’ arrived at a ‘fair figure’ of USD 34,567 falling far short of China’s demand, which the country rejected as ‘unacceptable’. The issue of payment has never been settled to date.77
VI. Some Analysis and Policy Suggestions It is apparent that the 1982 LOS Convention had established a new order of the international oceans. At the same time, it also gives rise to new uncertainties and diversifying theory and practices. The new regimes of EEZs and continental shelf introduced by the LOS Convention represents both opportunities for some countries and challenges to others. This is particularly true in the Northeast Asia region, where the political, social and economic as well as historical backgrounds are so rich and diverse. The frequent visit by foreign naval survey vessels and routine flight of military intelligence planes over the EEZs of the coastal States in the region certainly represents a major source of tension and instability. There is all the likelihood for them to cause surface and air traffic control problems, and increase the chances of accidents, if not conflicts. Countries subject to these intrusive navigation and overflights off their coastal waters are likely, if not inevitably, to take counter-measures to safeguard their maritime jurisdiction and interests. “Military and intelligence gathering activities will likely become more intensive, intrusive, controversial and dangerous. They will generate tensions and more frequent crises; they will produce defensive reactions and escalatory dynamics; and they will lead to less stability in the most affected regions, especially in Asia”, a well-known writer of marine policy in the region 77
Ibid.
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recently wrote.78 The mid-air collision over the EEZ between China and the United States in 2001 is but a perfect example of this developmental trend. In addition to different state practices in this respect, there have also been some academic endeavors to look seriously into the issues. It seems that there is at least some agreement on the conduct of military and intelligence gathering activities, that is, the exercise of the freedom of navigation and overflight in and above EEZs should not interfere with or endanger the rights of the coastal State to protect and manage its own resources and its environment, and should not be for the purpose of marine scientific research. And the exercise of such freedoms of navigation and overflight should not interfere with the rights of the coastal States with regard to their establishment and use of artificial islands, installations and structures in the EEZ. On the other hand, there is also disagreement regarding these issues. Some of the disagreements relate to the different interpretations of the relevant provisions of the LOS Convention, namely, the meaning of ‘freedom’ of navigation and overflight in and above the EEZ. Of course, there also continues an argument whether military surveys and hydrographic surveys are scientific research and, therefore, should be subject to a consent regime. The United States and other maritime powers argue that military and hydrographic surveys are distinct from marine scientific research (MSR) and are therefore not restricted by the provisions of the LOS Convention nor the regulation of the coastal States jurisdiction. In addition to the question of consent, there is the debate of peaceful purpose as provided in Article 88 of the LOS Convention. All these recent developments demonstrate that the LOS Convention, as the Charter of the world oceans, is not squarely perfect. And they also 78
M.J. Valencia, Report of the Tokyo Meeting and Progress.
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suggest that some of the provisions in the Convention, formulated some 25 years ago in a very different political and technological context, be revisited in the light of the new circumstances such as that of the Post-Cold War era and the “9/11” terrorist attacks. In the course of the recent developments and discussions on the above issues, the Chinese scholarly writings and positions can be briefly summed up as follows: z ‘Freedom of navigation and overflight‘ in and over the EEZs belongs no longer to the freedom of high seas in a traditional sense, because the LOS Convention has clearly excluded the EEZ from the high Seas; and the LOS Convention provides in explicit terms that ‘States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and regulations adopted by the coastal States.’ (Art. 58 ( 1 and 3); z ‘Freedom of navigation and overflight’ in and over the EEZs are by no means tantamount to freedom of military and maritime reconnaissance. As stated, freedom of navigation and overflight in and over the EEZs is now a freedom under the limitations of the relevant provisions of the LOS Convention. In addition, military reconnaissance activities runs counter to the term ‘peaceful uses’ or ‘peaceful purposes’ as provided in the Convention. The LOS Convention provides that the high seas and the EEZ shall be reserved for peaceful purposes (Arts. 88 and 58(2)). z The relevant provisions of the LOS Convention on marine scientific research (MSR) is, to some extent, seriously flawed, in terms of splitting control and management over scientific research activities in the 293
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z
z
EEZ into several categories. Hydrographic surveys and military surveys should be considered as falling into the broad category of marine scientific research. Deliberate exclusion of the hydrographic and military surveys from the scope of MSR will leads to a damaging outcome, i.e., any kind of marine scientific research operations can be conducted under the name of hydrographic and military surveys in the EEZs without any limitation by the coastal States. This will potentially give rise to the collapse of the regime of marine scientific research as provided in the Convention. Military hydrographic survey and intelligence gathering activities in and over the EEZ by foreign vessels and aircraft are military and battlefield preparation in nature, and thus constitutes a threat of force against the coastal State, as well as violating the principle of peaceful use of the sea as required under the Convention.
VII. Concluding Remarks China played no role at the first two United Nations Conferences on the Law of the Sea since it was excluded from the United Nations before 1971. As a result, its evaluation of the four Geneva Conventions is low-key. China's practice and legislation on the law of the sea has been limited since its founding in 1949, considering its status as a big maritime power. China views the LOS Convention with considerable favor in spite of some of its imperfect provisions, and has been making continuous efforts in the International Seabed Authority, the conference of the Parties, and other relevant organizations to bring the constitution for the oceans into force and full operation. It is China's view that the Convention is only the 294
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first step towards the establishment of a new international legal order for the oceans. As observed, some of the provisions of the LOS Convention are either weak or even imperfect. However, the improvement and enforcement of the Convention still needs the international community to make continuous and joint efforts. China could be expected to play an increasingly important role in this marine revolution for mankind after it ratified the Convention in 1996. China has been active in terms of its national legislation and practice on the law of the sea. Many of the provisions of the LOS Convention have been actively transformed into national legislation. Thus, a legal framework for the maritime zones under China’s jurisdiction has been brought into place. Now the country faces the task of bringing these laws and regulations into faithful implementation and enforcement. On a final point, China seems to be the testing ground of some of the emerging trends such as military and intelligence gathering activities in and over its EEZ and continental shelf. The country and its law of the sea communities seem to work hard in search for some diligent approaches. One of the ways to deal with these issues is through national legislation, such as the regulations on marine scientific research. China is also looking forward to dialogues with its counterpart(s) with a view to clarifying each other’s positions and agreeing upon some possible conflict avoidance mechanisms.
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Edited Transcript of Question and Answer Session Panel III: Military Activities in the EEZ
Professor Myron H. Nordquist: We have time left because the speakers showed great restraint. We welcome comments and questions for our speakers, but because there was some truncation of the morning and the speakers are so terrific, if anyone didn’t get a chance to say something this morning, we can try to accommodate that as well. Dr. Sam Bateman: I have some questions for Pete Pedrozo. Pete, you reject the concept of guidelines, but where do you draw the line? Does any form of military activity not have to regard the interests of the coastal State? Would you, for example, schedule a live firing exercise in a marine protected area declared by the coastal State? I am not talking about Particularly Sensitive Sea Areas, I am talking about Marine Protected Areas, such as those of the United States, France, etc. Would that be an activity that would not have to give due regard to the coastal State? And my last question is, does the United States promulgate any guidelines to its commanders with regard to what activities might not have to give regard to the interest of the coastal State? Captain Raul “Pete” Pedrozo: Well, first, on the issue of guidelines, as I mentioned, I don’t think that they’re useful in their current context. As Alexander mentioned, consider the Incidents at Sea Agreement. If you look at this Agreement, the focus was not about saying whose maritime claims are right and whose maritime claims are wrong. It was all about how we should behave when we have an encounter at sea. We put aside our differences of opinion on what the law of the sea was, and came to an understanding on how we would act if we had an encounter at sea. If we are going to come up with guidelines, I would suggest that the guidelines should be aimed with that type of focus, not on trying to determine who’s right and who’s wrong and then trying to limit what UNCLOS allows, or 297
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to give coastal States greater control in the EEZ than they have right now. In my view, that is what these current “guidelines” are doing. They are going 180 degrees out from what UNCLOS says and trying to go back to the negotiating positions of some countries to get what they weren’t able to achieve with 150 countries present. Instead, they get 21 nations together and then they reach consensus because they all have a like mind. On the issue of due regard for military activities, there is an obligation on the part of the user states to exercise due regard for coastal State interests. If there is a legitimate coastal State interest, let’s say for example, exploring for oil and gas, you would not engage in a military exercise that interferes with that ongoing exploration. So, yes, there are going to be limited circumstances where the user states are going to have to exercise due regard for coastal State rights. But that is very limited and not a broad-based exception. With regard to “guidelines” on due regard, I am not aware of any. Pat, I don’t know if you are familiar with any specific guidelines on due regard. I am not aware of anything that we provide to our ship captains or our aviators on what is or what is not due regard. Captain Patrick J. Neher: There is a public document, a Department of Defense instruction, that defines due regard in the aviation context. It is fairly specific. In the surface warfare context, there really is nothing more than general guidance which simply repeats the obligation; it doesn’t really get into the operational specifics. I have a couple of questions for Dr. Gao. First, it has been widely reported in the press, complete with videos and photographs, that Chinese military vessels have engaged in military survey activity within the Japanese EEZ. Is that in fact true? Is it the position of China that it would not conduct military survey activities in a foreign EEZ without the prior permission of the coastal State? The second question concerns your last slide; it concerns seeking an advisory opinion from ITLOS or the ICJ. I note that China has taken the military activities exemption under Article 298, subparagraph 1 of the Convention. Presumably, China would not agree to allow any dispute concerning its 298
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military activities to be subjected to dispute resolution. Is that accurate, or would the Chinese government be amenable to dispute resolution for a dispute concerning its military activities? Professor Gao Zhiguo: Thank you for the good questions. Regarding your first question about the Chinese scientific survey research vessels in the EEZ of Japan, I would like to clarify what is reported in the media. There have been overlapping claimed areas between China and Japan. The Chinese research vessels have always carried out any research activities in the EEZ claimed by China. Now, I hope I have made my point clear or answered your question. Second, China has traditionally refused any third-party assistance in terms of settling disputes. I mentioned this in my last slides when I indicated a possible approach in terms of advice for opinions, either through the International Tribunal for the Law of the Sea or the International Court of Justice. I am presenting an academic assumption. It is not on behalf of the Chinese government. I quite agree with you that in the near future, and even in the longer run, I do not think that China will change its traditional position. Professor Dr. Hasjim Djalal: I have two questions. One is from the explanation given by the speakers. It looks very clear that the positions are very much opposed to each other and heading toward confrontation. The guidelines that some of us formulate together were precisely intended to avoid that confrontation by a clear understanding of what it is. Now, I would like to ask Pete what we should do to avoid that confrontation, aside from complete acceptance of the US view? That’s the first one. The second one is an easy question for Dr. Gao. Dr. Gao referred to the EP-3 incident in the EEZ of China. Please pardon me for the very sensitive questions. How does it tally with the traditional Chinese view? The South China Sea is an historical thing for China. Does it mean that the Chinese now have limited their sovereignty to the normal 12 miles and outside of it is EEZ, rather than what we used to hear in the past that the South China 299
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Sea is some kind of Chinese traditional right, and so forth? It’s not really an easy question for me to ask and I don’t really know what it is. Captain Raul “Pete” Pedrozo: Again, in response to your question about how we would avoid confrontation, we can turn back to the Incidents at Sea Agreement and the Dangerous Military Activities agreement that we had with the Soviet Union. They provide a perfect example of how you avoid confrontation, as they have successfully done so for three decades or more since the Incidents at Sea Agreement was signed and, subsequently, when the Dangerous Military Activities Agreement was signed. Again, how do you behave when you have an encounter at sea when you are engaged in an activity which the other side believes is inconsistent with their view on the Law of the Sea? These Agreements provide a perfect example of how you avoid confrontation. We have procedures that deal with unalerted encounters at sea and how you should behave when that happens in a military-to-military encounter at sea. That is how you avoid confrontation. You don’t avoid confrontation by developing guidelines that basically are coastal State oriented, which is how I view the guidelines that have been developed by the Nippon Foundation. Professor Gao Zhiguo: Dr. Djalal certainly raised more or less a very sensitive issue. The Chinese position on the South China Sea has been consistent and clear all the time. We all recognize there are broken lines in the South China Sea, but China only claims all the islands and surrounding near-shore waters that belong to China. Secondly, China claims certain types of historic rights, such as traditional fishing rights. China has never claimed the water column or the airspace above the South China Sea as something internal. My personal opinion is to assure the South China Sea has been open to freedom of navigation and overflight all the time. I hope I answered your question. I shall touch a little now on the guidelines. We have heard comments—negative comments and 300
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positive comments—on the guidelines produced by the group effort. An independent academic assessment from my point of view is that that set of guidelines can serve as a good working point, starting point, rather than starting from nothing. I offer that point to the floor. Captain Alexander S. Skaridov, R.F. Navy (Ret.): To answer the first question, some experts believe that a few years from now, China will have a blue water navy with the same objectives as the US Navy, and probably the Russian Navy. Once that happens, China will change her mind and will support the freedom of navigation even in the Northern Sea Route or Arctic Ocean because it will be important to the Chinese Navy to know everything about this area, as well as about the Indian Ocean. Sir Michael Wood: I am Michael Wood from London. I really wanted to ask Dr. Gao about his intriguing reference to advisory opinions, but that question was asked and a very clear answer given. I would just make a comment on it, though. The advisory opinion procedure is not a particularly good one for clarifying the law. A contentious case based on actual facts is much more likely to lead to sound conclusions on the law than asking abstract questions from an international tribunal. I do have a question, however, for Professor Gao. You emphasized towards the end of your presentation that China was now implementing national legislation, and this was the important stage. Of course, national legislation can only be implemented in so far as it is consistent with international law and, in this case, with the Convention. Is part of the idea you had in mind when you emphasized national legislation that by legislating and implementing legislation, you are engaging in state practice that may influence the eventual interpretation of the Convention? Professor Gao Zhiguo: Regarding the advisory opinion guidelines, I can perhaps think of one useful case which also relates to the Law of the Sea Convention. When we talk about the removal of offshore platforms, the 301
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provisions of the Law of the Sea Convention are ambiguous on that issue. It is in the International Maritime Organization that produced the set of guidelines in the early 1990s which were widely accepted by the international community of coastal States. We have a problem here. Of course, we have different approaches or different ways to approach solving the problem. The advisory opinion is just one of the ways, but it is not the traditional way preferred by China. I raise it as one of the possibilities for us to consider. A second reason I raise that point is that I know the President of ITLOS is here. Of course, it requires a procedure. ITLOS will not automatically produce anything. ITLOS has to be responding to something, some initiative. It is up to the international community to put forward an initiative. What is the second question? Sir Michael Wood: It was about national legislation and the reason for emphasizing it. Professor Gao Zhiguo: China has been struggling forward as we transform our economy from a planned economy to a market economy. We have so many problems. We have problems, of course, with interpretation or understanding of the Law of the Sea Convention. China has to find, one way or another, an approach to define its national interest. National legislation as a unilateral action is perhaps one of the approaches. Certainly I quite agree with you that as a big country—not a strong country—the state practice by China will perhaps more or less be influential or set an example. That is, perhaps, at least in my personal view, what we hoped or looked forward to. We wish that we can have an active role, an influential role to play in the formation of a just, equitable, international legal order for the oceans, rather than the old order that is unilaterally beneficial to a group of countries, rather than to the international community as a whole.
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Professor John Norton Moore: This question is also for Professor Gao. I would like to preface this, however, by saying how much I appreciated very much the candid presentation of the materials by Professor Gao. That was a real service for us. Let me also suggest that I suspect that the level of questions, Dr. Gao, that you are getting reflects the feeling of all of us of the great importance of China. We are hoping that we can have positions that are similar and all built on the rule of law in relation to the Convention. With that preface, I was struck really by the forms of argumentation that were being made under the Convention because that clearly indicates as well, very properly, your indication of the possibility of accepting compulsory dispute settlement; that you accept that China agrees that this is based on the Law of the Sea treaty. Really, we should look at what is an appropriate interpretation of the Convention and the rule of law. In that respect, two core arguments struck me. One was the argument based on the peaceful purposes language in the Convention. The history of that language is actually very clear. That language some years ago—as Alex [Skaridov] would testify—came from an old, thenSoviet notion that did have a broad conception. But when it went into the Law of the Sea Convention, that had been set aside. The Soviet Union at that time indicated that it had a very different meaning and meant nothing more than applying to settings that would violate Article 2, subparagraph 4 of the UN Charter. The Secretary General of the United Nations at one point confirmed that interpretation; specifically, that it is not an interpretation counter to military activities of any kind. Indeed, were it such an interpretation, all military activities, all warships on the world’s oceans would now be illegal under the Law of the Sea Convention. Surely, it is not China’s position that, for example, your own warships could not travel through the Exclusive Economic Zones of other countries of the world. I am personally somewhat troubled by that argumentation based on peaceful purposes. A second form of argumentation, it seems to me, is turning the EEZ into a de facto security zone. The overall fundamental accommodation in the treaty was an extension of coastal 303
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State resource jurisdiction in return for full navigational freedoms and high seas freedoms otherwise beyond those limited areas of coastal State jurisdiction. To my knowledge, the notion of efforts to have security zones beyond the territorial sea of any kind have been rejected at every single effort internationally in the Law of the Sea negotiations, starting back in the 30s and also in the 1958 and 1960 Conventions. Very definitely, there was no security zone concept beyond the territorial sea, and even there it was with the exception of the innocent passage in the territorial sea. Surely, if there is any kind of sea that we might call a lawful security zone today, it does not go beyond the territorial sea. It is not even the contiguous zone, where we know specifically that that has very limited functional purposes. I find myself troubled by the breadth of the argumentation. It would also seem to very much undercut even present Chinese naval interests and military interests in the world’s oceans. Professor Gao Zhiguo: One of my personal achievements in attending this conference is that I finally had the opportunity to make an acquaintance with Professor John Norton Moore. I have been looking forward to this opportunity for a long time. Against the backdrop that I have personal relationships with many of the American authorities, you are certainly one of the authorities. I am afraid I will not be able to handle your questions squarely perfect. The peaceful purpose or peaceful uses provisions appears quite a few times in the Convention. At least we can see two sets of interpretations: one largely by the developing industrialized countries, and the other line of argument is by the smaller developing countries. I think that is the current situation of development. Professor Moore mentioned that the growing Chinese navy possibly will have the same difficulties in the future and won’t be able to travel through the EEZs of other coastal States. This could be the case in the future, but one thing I would like to recall is that the Chinese Navy has been traditionally defensive in nature. At the present, the Chinese Navy does not have blue water capability. The other thing I want to add is part of my 304
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answer to your question. I see there are two sets of issues. One set of issues is the freedom of navigation and overflight for military vessels and airplanes in the EEZ and over the EEZ of the coastal State. There is no limitation. Many of the coastal States, including China, have no objections to that normal operation. What China and many of the other smaller developing countries are annoyed about or concerned or worried about is that military activities conducted in and over the EEZ. Consider the case that I mentioned with the US boardage that seems to come frequently. Even to date, there are foreign naval survey vessels operating in our coastal waters and they are collecting military intelligence information. Perhaps they can deduce the exit of the Chinese submarines with these intelligence gathering activities, which is also provocative. This is not a normal transition or overflight; you come with a purpose. I think there are two situations. I personally see there is a sharp difference or division between the two types of activities, and most of us from the developing world are concerned with the military activities, such as the hydrographic surveys, which can be useful for military purposes, such as for battlefield preparation. Captain Alexander S. Skaridov, R.F. Navy (Ret.): China announced its ambitions to send its own space equipment and space shuttles out from Earth and probably to Mars. If that happens, it needs several special vessels to be deployed in the Indian Ocean and the Pacific Ocean, probably even to the northern part of the Earth, just to have the ability to gather the information for all of these space devices. In this case, it is quite evident that China would send these specialized vessels through the Malacca Straits and through the EEZs of foreign states. Perhaps those vessels could be warships, not civilian warships. In this case, it is quite evident that it is not just speaking about the military use of ocean spaces. It is necessary sometimes to have an ability to collect all the appropriate data for different spaces of the high sea and probably the EEZ also since it is 200 miles to sea. By the way, it’s too big. It almost covers, for 305
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example, the Black Sea. It will pretty much cover the Baltic Sea. It is too big, 200 miles, to reward these spaces for your interests. Once China has ambitions, as you said, for a blue water navy, China will have to use foreign EEZs. I am not sure that we could identify those activities as “not peaceful” because it is agreed that “peaceful” was invented mostly by the Soviet Union for some political specific purposes and did not relate to activity of the navy. There is no indication that use of navies in foreign EEZs means “not peaceful” use of the ocean spaces. We could be involved in different kinds of activities, as we already discussed, in surveys, hydrographic surveying, gathering different kinds of data, and hydrological data of the water, which is extremely important for the submarine forces. When China has more and more submarines, it will have to research the hydrographic quality of the water in different spaces because you can’t use submarines just near the ports. Submarines, perhaps unfortunately, have to be in different kinds of spaces performing different kinds of tasks. In my opinion, once you have the objective of use for the ocean, like a strategic objective, you have to have strategic attitude to the ocean spaces. It means certainly to preserve it for peaceful purposes, but military activity in times of peace does not disturb the peace of EEZ spaces of the foreign state. Once your military is involved in some kind of dangerous activity—like using your torpedoes or whatever—it could be considered dangerous. But if you are just passing through the EEZ using helicopters, being involved in rescue operations, it is peaceful in my mind. Captain J. Ashley Roach: I have a comment and two quick questions. I look forward to reading Professor Skaridov’s paper because in particular some of the comments on incidencts at sea would be extremely useful for this region and for East Asia, not just for incidents in EEZs, but in particular areas of overlapping claims and in sovereignty disputes. This could add a contribution that could help. A quick question to Pete. If the Chinese were to decide to conduct military exercises in the PSSA in 306
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Hawaii, would that be lawful? And a quick question to Professor Gao, you mentioned twice national waters and activities in national waters. Does China include the EEZ in their “national waters”? That is not a legal term of art. As a follow up to that, I have glanced at your domestic legislation on the EEZ and it seems very consistent with the Law of the Sea Convention. My question would be, do you accept Article 56 that you have no jurisdiction other than that articulated in Article 56, and you have no jurisdiction over military activities in the EEZ? Captain Raul “Pete” Pedrozo: A very quick answer. The answer to your question is yes. Currently, there is no PSSA yet because it has not been to the IMO yet. But, there is a national monument that is in existence, and it has an exemption for military activities and for law enforcement activities. It says they will be conducted in accordance with international law, which means that we would not regulate foreign military activities in the national monument. Professor Gao Zhiguo: I believe I just made a mistake when I carelessly used the word “national waters.” I should have used a more legal term, which is maritime zones and national jurisdiction. If I say national waters, it will refer only to territorial sea and internal waters. Professor Myron H. Nordquist: This concludes Panel III and a very revealing and worthwhile exchange.
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PANEL IV: TRANSIT PASSAGE THROUGH STRAITS USED FOR INTERNATIONAL NAVIGATION
The Regulation of Ship-Source Pollution in Straits Used for International Navigation Robert C. Beckman1 Abstract The legal regime governing the regulation of ship-source pollution in straits used for international navigation is set out in the 1982 UN Convention on the Law of the Sea, but it is inextricably linked to the instruments of the International Maritime Organization (IMO) on ship-source pollution and the safety of navigation. Part III of UNCLOS gives all ships the right of transit passage through straits used for international navigation. It also places an obligation on ships exercising the right of transit passage to comply with the generally accepted IMO instruments for safety at sea and for the prevention, reduction and control of pollution from ships. Therefore, as the IMO adopts new conventions and updates existing conventions, they automatically apply to ships exercising the right of transit passage once they have been generally accepted. The power of littoral States to unilaterally adopt and enforce laws and regulations on foreign ships exercising transit passage is severely restricted in favour of IMO laws and regulations adopted by the IMO and enforced by flag States and port States. Littoral States can only give effect to certain types of IMO laws and regulations on safety and ship-source pollution, and they can only enforce such laws and regulations if a violation causes or threatens major damage to the marine environment of the straits.
1
Robert C. Beckman is an Associate Professor of Law at the National University of Singapore (NUS). The author’s PowerPoint presentation can be viewed on the accompanying CD.
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Despite their limited jurisdiction over ships exercising transit passage, littoral States can cooperate with one another in various ways to enhance safety and protect the marine environment from ship-source pollution. They can propose the adoption of measures by the IMO, they can establish cooperative mechanisms with user States under Article 43, and they can cooperate with each other in the ratification and effective implementation of the IMO conventions. Littoral States can also lobby at the IMO for the adoption of more stringent international regulations on ship-source pollution and more stringent enforcement of those regulations by flag States and port States. These options should be sufficient to protect the legitimate interests of littoral States in preventing, reducing and controlling ship-source pollution, while at the same time ensuring that ships on international shipping routes do not have to comply with onerous national regulations adopted by littoral States. Introduction Straits used for international navigation are vitally important links on routes normally used for international navigation by merchant ships and naval vessels. The legal regime governing straits used for international navigation is set out in the United Nations Convention on the Law of the Sea, 19822 (UNCLOS). Most of the world’s oil that is carried by sea passes through these narrow choke points. Because oil tankers and ships carrying hazardous and noxious substances pose a significant risk to the marine and coastal environment of States bordering straits used for international navigation, it is critically important to examine the various measures that can be taken to protect the marine and coastal environment in straits used for international navigation from ship-source pollution. 2
Adopted in Montego Bay, Jamaica, on 10 December 1982, entered into force on 16 November 1994. As of 16 July 2008, there were 156 Parties to the Convention, including the European Community. Text and status are available online at <www.un.org/Depts/los/index.htm>, (hereafter UNCLOS).
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This chapter first summarizes how ship-source pollution is regulated under UNCLOS and gives an overview of the legal regime governing straits used for international navigation. It then outlines the laws and regulations on ship-source pollution that must be followed by ships exercising the right of transit passage through straits used for international navigation. It then examines the jurisdictional powers of littoral States to act unilaterally to regulate ships exercising transit passage. It then examines what additional measures can be taken by littoral States to reduce the threat of ship-source pollution in straits used for international navigation: (a) when acting together with the IMO; (b) when acting in cooperation with each other; and (c) when acting in cooperation with user States and other stakeholders. Finally, it examines whether particularly sensitive sea areas (PSSAs) are a useful tool to prevent, reduce and control ship-source pollution in straits used for international navigation. International Legal Regime Governing Ship-Source Pollution The starting point for analysing the international legal regime governing ship-source pollution is UNCLOS. It establishes a legal framework setting out the rights, jurisdiction and duties of flag States, coastal States and port States in the various maritime zones. It recognizes that coastal States have an interest in protecting and preserving their marine and coastal environment from the threat of ship-source pollution. At the same time it recognizes the interests of user States and the international community in ensuring the safe and secure passage for ships on routes normally used for international navigation. Exactly how the balance is struck between the interests of the coastal States and the international community is different in the various maritime zones. The UNCLOS provisions on ship-source pollution are inextricably linked to the instruments of the International Maritime Organization (IMO) on ship-source pollution. The main IMO instrument for the 313
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prevention, reduction and control of ship-source pollution is the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (MARPOL 73/78).3 UNCLOS makes numerous references to IMO instruments but it does not refer to either the IMO or its instruments specifically by name. However, it is accepted that the phrase ‘competent international organization,’ when used in the singular in UNCLOS, refers to the IMO, the specialized agency within the United Nations system that is responsible for the regulation of international shipping.4 UNCLOS refers to IMO instruments through phrases such as the following: (a) generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships;5 (b) generally accepted international rules and standards established through the competent international organization or general diplomatic conference;6 (c) generally accepted international rules and standards;7 and (d) applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances8. UNCLOS provisions also provide that States have different rights or obligations with respect to the IMO instruments when adopting laws and regulations. For example, States may be required to ‘comply with’ or ‘conform to’ the IMO regulations, procedures and practices.9 States may also be required to adopt laws and regulations ‘that at least have the same effect as’ the IMO rules and 3
4 5 6 7 8 9
MARPOL 73/78, entered into force on 2 October 1983, 146 States Parties as of 31 March 2008. Summary Status of the Conventions as of 31 March 2008 is available at http://www.imo.org/home.asp?topic_id=161 Text of the Convention and Annexes are available on the home page of the IMO under Information Resources at http://www.imo.org Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, 26 January 2005, IMO Doc. LEG/MISC/4, 2. UNCLOS, Art. 39, para. 2(b) and Art. 94, para.5. UNLCOS, Art. 211, paras. 2 & 5. UNCLOS, Art. 21, para. 2. UNCLOS, Art. 42, para. 1(b). UNCLOS, Art 39, para. 2.
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standards.10 States may also be limited to adopting laws and regulations ‘conforming to and giving effect to’ the IMO rules and standards.11 The UNCLOS provisions setting out the rights and obligations of States to regulate ship-source pollution are linked to the international instruments of the IMO through the above phrases. Exactly which IMO instruments the above phrases refer to will depend upon the wording of the UNCLOS provision and its context. Which IMO instruments come within each phrase may change over time as IMO instruments are amended and new instruments are developed. This was obviously the intent of the drafters in using these vague phrases, as they enable the provisions in UNCLOS to incorporate changes and developments in IMO conventions and other instruments. The main obligation to deal with ship-source pollution rests with flag States. Flag States have an obligation to adopt laws and regulations on ship-source pollution which have at least the same effect as the ‘generally accepted international rules and standards established through the competent international organization or general diplomatic conference’.12 Flag States have the major responsibility for regulating ship-source pollution in areas outside the sovereignty of coastal States. The Exclusive Economic Zone (EEZ) is a resource zone between 12 and 200 nautical miles adjacent to the coast which is outside the sovereignty of the coastal State. Coastal States have the sovereign right to explore and exploit the natural resources of the EEZ, and other States enjoy high seas freedoms such as the freedom of navigation in the EEZ.13 The right of coastal States to regulate ship-source pollution from ships exercising freedom of navigation in their EEZ is severely restricted. The general principle is that the coastal State may only adopt laws and regulations for vessel source pollution by giving effect to ‘generally 10 11 12 13
UNCLOS, Art. 211, para. 1. UNLCOS, Art. 211, para 5. UNCLOS, Art. 211, para. 2. UNCLOS, Arts. 56 and 58.
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accepted international rules and standards established through the competent international organization or diplomatic conference.’14 UNCLOS also gives port States the power to ensure that ships on international shipping routes comply with applicable international regulations and standards or even stricter standards. Port States have the power to establish particular requirements for the prevention, reduction and control of ship-source pollution as a condition of entry for foreign ships entering their ports or internal waters.15 Regulation of Ship-Source Pollution in the Territorial Sea The territorial sea is a 12-nautical-mile belt of sea adjacent to the coast in which the coastal State has sovereignty. However, their sovereignty is subject to the provisions of UNCLOS and other rules of international law.16 One important limitation on the sovereignty of coastal States in their territorial sea is that ships of all States have the right of innocent passage through the territorial sea. Innocent passage is continuous and expeditious passage through the territorial sea that is not prejudicial to the peace, good order or security of the coastal State.17 Coastal States may adopt laws and regulations on ships exercising the right of innocent passage in their territorial sea so long as they do not have the practical effect of hampering innocent passage.18 However, such coastal State laws may not apply to the design, construction, manning and equipment of foreign ships unless they are giving effect to ‘generally accepted international rules or standards’.19 In other words, a coastal State can impose strict regulations on the discharge of oil from the operation of ships exercising innocent passage in their territorial sea, provided such 14 15 16 17 18 19
UNCLOS, Art. 211, para. 5. UNCLOS, Art. 211, para. 3. UNCLOS, Art. 2. UNCLOS, Arts. 17-19. UNCLOS, Arts. 21 & 24. UNCLOS, Art. 21, para. 2.
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regulations do not have the practical effect of hampering innocent passage. However, a coastal State may not prohibit the passage of single hull tankers through its territorial sea because such a requirement relates to the design of foreign ships. An act of wilful and serious pollution by a foreign merchant ship in the territorial sea would make the passage of the ship not innocent,20 and the coastal State would have the right to intercept and arrest the ship and charge it with a pollution offence. Article 218 of UNCLOS sets out other circumstances in which a coastal State can take action against ships that have violated international rules and standards for the prevention, reduction and control of pollution from ships while navigating in its territorial sea. Legal Regime on Straits Used for International Navigation Part III of UNCLOS is intended to ensure that ships and aircraft have a right of unimpeded passage through and over straits used for international navigation that are within the territorial sea of littoral States.21 The States bordering straits used for international navigation, commonly referred to as the ‘littoral States’, have sovereignty in the waters comprising the straits because they are within their territorial sea. However, the sovereignty of the littoral States must be exercised subject to the provisions in Part III of UNCLOS.22 20 21
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UNCLOS, Art. 19, para. 2(h). On the legislative history of Part III, see M. H. Nordquist, S. N. Nandan & S. Rosenne (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume II, (Leiden/Boston: Martinus Nijhoff Publishers, 1993); Straits Used for International Navigation, Legislative History of Part III of the United Nations Convention on the Law of the Sea, Volume II, (U.N. Division of Ocean Affairs and the Law of the Sea, United Nations, New York, 1992); and S. N. Nandan & D. H. Anderson, ‘Straits Used for International Navigation: A Commentary on Part III of the United Nations Convention on the Law of the Sea 1982’, 60 Brit Y.B. Int’l L. (1989) 159-204. UNCLOS, Art. 34.
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The main limitation on the sovereignty of littoral States in straits used for international navigation is that ships and aircraft of all States enjoy the right of transit passage through and over the strait.23 The right of transit passage is a more liberal right of passage than innocent passage, and it differs from the right of innocent passage in several respects. First, transit passage includes the right of overflight, whereas innocent passage includes only the right of navigation.24 Second, transit passage may never be suspended, whereas innocent passage may be temporarily suspended.25 Third, during transit passage submarines may pass in their normal mode of transit (submerged), whereas during innocent passage submarines must surface and fly their flag.26 Fourth, the right of the littoral States to adopt laws and regulations on the exercise of transit passage is more restrictive than the right of coastal States to regulate ships exercising innocent passage.27 IMO REGULATIONS ON SHIPS EXERCISING TRANSIT PASSAGE With respect to the regulation of ship-source pollution by ships exercising the right of transit passage, Article 39, paragraph 2 (b) of UNCLOS provides that ships in transit passage must comply with “generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships”. This obligation is not dependent on whether the flag State or the littoral States are members of IMO or parties to the relevant IMO instruments. The obligation in effect requires that all ships exercising transit passage comply with MARPOL 73/78, including all of its annexes that have been generally accepted. It seems reasonable to conclude that the phrase 23 24 25 26 27
UNCLOS, Art. 38. UNCLOS, Arts. 38 & 18. UNCLOS, Art. 44 & Art. 25, para. 3. UNCLOS, Art. 39, para. 1(c) & Art. 20. UNCLOS, Arts. 42 & 21.
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‘generally accepted’ would include, at a minimum, any MARPOL annex that has been accepted by States representing at least 90% of the world’s tonnage of ships. As of 31 March 2008, the status of the annexes to MARPOL 73/78 is as follows:28 MARPOL 73/78 Annex
Entry into States Force Parties Annex I/II. Oil & Noxious 02-Oct-83 146 Liquid Substances Annex III. Harmful 01-Jul-92 128 substances in Packaged Form Annex IV. Sewage 27-Sep-03 118 Annex V. Garbage 31-Dec-88 134 Annex VI. Air Pollution 19-May-05 49
% World Tonnage 98.73 94.50
75.70 96.52 79.30
Therefore, it can be argued that ships exercising transit passage through straits used for international must comply with Annexes I, II, III and V of MARPOL 73/78, whether or not the State whose flag they fly is a party to those annexes, and whether or not the littoral States whose territorial sea they pass through are parties to those annexes. The rationale for Article 39 seems to be that since ships exercising transit passage are navigating on routes normally used for international navigation, they should be subject to the evolving regulations, procedures and practices of the IMO on shipsource pollution once they have become generally accepted by States. Article 39, paragraph 2 also requires ships exercising passage to comply with ‘generally accepted international regulations, procedures and practices for safety at sea, including the International Regulations for Preventing Collisions at Sea.’ The conventions on safety of navigation 28
Summary Status of Conventions as of 31 March 2008, IMO home page, http://www.imo.org/home.asp?topic_id=161
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that ships exercising transit passage are bound to comply with should include not only the Convention on the International Regulations for Preventing Collisions at Sea, 197229 (COLREGs 1972). It should also include all of the IMO conventions on safety of navigation that have been accepted by more than 90% of the world’s tonnage of shipping. This would include the following IMO conventions on the safety of navigation:
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30
31
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International Convention for the Safety of Life at Sea, 1974 (SOLAS 1974)30;
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Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, 197431 (SOLAS Protocol 1978);
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Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 197432 (SOLAS Protocol 1988);
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International Convention on Load Lines, 196633 (Load Lines 1966);
COLREGs 1972, adopted on 20 October 1972, entered into force on 15 July 1977. As of 31 March 2008, there were 151 States Parties, representing 98.05 % of the world’s tonnage of shipping. IMO Summary Status of Conventions, . For text, see Australian Treaty Series, 1980 No. 5, http://www.austlii.edu.au/au/other/dfat/treaties/1980/5.html SOLAS 1974, adopted on 1 November 1974, entered into force on 25 May 1980. As of 31 March 2008, there were 158 States Parties, representing 98.80 % of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1983 No. 2, http://www.austlii.edu.au/au/other/dfat/treaties/1983/22.html Protocol of 1978 to SOLAS 1974, adopted on 17 February 1978, entered into force on 1 May 1981. As of 31 March 2008, there were 113 States Parties, representing 95.92 % of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1983 No. 28, http://www.austlii.edu.au/au/other/dfat/treaties/1983/28.html Protocol of 1988 to SOLAS 1974, adopted on 11 November 1988, entered into force on 3 February 200. As of 31 March 2008, there were 89 States Parties, representing 90.14 % of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 2000 No.3, http://www.austlii.edu.au/au/other/dfat/treaties/2000/3.html
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•
International Convention on Tonnage Measurement of Ships, 196934 (Tonnage 1969); and
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International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 197835 (STCW 1978).
This list is similar the list in the latest version of the IMO study on implications of UNCLOS for the IMO.36 Ships exercising transit passage would not only be bound by the provisions of these conventions, but also by sea lanes, vessel traffic systems, ship reporting systems and routing measures adopted by the Maritime Safety Committee (MSC) of the IMO
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Load Lines 1966, adopted on 5 April 1966, entered into force on 21 July 1968. As of 31 March 2008, there were 158 States Parties, representing 98.77 % of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1968 No. 23, http://www.austlii.edu.au/au/other/dfat/treaties/1968/23.html Tonnage 1969, adopted on 23 June 1969, entered into force on 18 July 1982. As of 31 March 2008, there were 148 States Parties, representing 98.80 % of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1982 No. 15, http://www.austlii.edu.au/au/other/dfat/treaties/1982/15.html STCW 1978, adopted on 7 July 1978, entered into force on 28 April 1984. As of 31 March 2008, there were 151 States Parties, representing 98.77 % of the world’s tonnage of shipping. Summary IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1984 No. 7, http://www.austlii.edu.au/au/other/dfat/treaties/1984/7.html Implications of the United Nations Convention on the Law of the Sea for the International Maritime Organization, IMO Doc. LEG/MISC/4, 26 January 2005, 10-11. These documents are listed with respect to the obligations of a flag State under Article 94, but they should apply equally to Article 39 because they both refer to ‘generally accepted’ IMO instruments on the safety of navigation. However, the IMO list does not include the Protocol of 1988 to SOLAS, even though it has been accepted by States representing more than 90% of the world’s tonnage of shipping, and it does include the International Convention on Search and Rescue, 1979 (SAR 1979), even though the number of States parties to that convention represents only about 50 % of the world’s tonnage of shipping.
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under Chapter V of SOLAS 1974 on Safety of Navigation37 or traffic separation schemes adopted by the MSC under COLREGs 1972. ENFORCEMENT OF IMO REGULATIONS ON SHIPS EXERCISING TRANSIT PASSSAGE The transit passage provisions in Part III of UNCLOS rely primarily on flag States and port States to ensure that ships exercising transit passage comply with generally accepted international standards. Flag States have an obligation to ensure that ships flying their flag carry the certificates required by MARPOL 73/78 and that the ships are subject to periodic inspections. Flag States are also under an obligation to undertake an immediate investigation when it is alleged that a ship flying their flag committed a violation of MARPOL 73/78, and where appropriate, flag States have an obligation to institute proceedings in respect of the alleged violation. Flag States also have an obligation to ensure that the penalties for such violations are adequate in severity to discourage violations wherever they occur.38 Port States may make the presentation of MARPOL certificates a condition of entry of foreign ships into their ports. They also have a right to subject ships voluntarily entering their ports to inspections. When a ship is voluntarily in port, and there is evidence of a discharge in violation of MARPOL 73/78, the port State may undertake investigations, and where the evidence so warrants, institute proceedings in respect of the discharge. This power applies no matter where the unlawful discharge took place. However, the port State may not institute proceedings unless requested to do so by the flag State or by a State damaged or threatened by the discharge violation.39
37 38 39
The text of SOLAS Chapter V on Safety of Navigation is available at US Coast Guard Navigation Center, http://www.navcen.uscg.gov/marcomms/imo/default.htm UNCLOS, Art. 217. UNCLOS, Art. 218.
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The general obligation of littoral States with respect to ships exercising transit passage is that they shall not hamper transit passage.40 Therefore, they have no right to intercept and arrest ships that have committed minor violations of international regulations while exercising transit passage through the strait. Regulatory Measures by Littoral States with Approval of the IMO There are a number of measures that littoral States can take, acting together with the IMO, to enhance the safety of navigation through straits used for international navigation and thereby reduce the risk of shipsource pollution. Under Article 41 of UNCLOS, sea lanes and traffic separation schemes can be adopted for straits used for international navigation. Proposals for sea lanes and traffic separation schemes must be made by the littoral States to the IMO. Once they are adopted by the IMO, they must be respected by all ships exercising the right of transit passage through the strait. Under Article 39, paragraph 2, ships in transit passage must comply with “generally accepted international regulations, procedures and practices” for safety at sea. This would include not only COLREGs, but also ships’ routing measures, ship reporting systems and vessel traffic services adopted by the IMO under Chapter V of SOLAS on Safety of Navigation.41 Therefore, littoral States can propose that the IMO adopt such measures in a strait used for international navigation if they deem it necessary to enhance safety. Once adopted by the IMO, all ships exercising transit passage through the strait will be bound to comply with them.
40 41
UNCLOS, Art. 44. SOLAS, Chapter V, supra note 36.
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Indonesia, Malaysia and Singapore have proposed the adoption of all of these measures for the Straits of Malacca and Singapore. The IMO has formally adopted sea lanes and traffic separation schemes, routeing measures, vessel traffic systems and a mandatory ship reporting system for the Straits of Malacca and Singapore. 42 These measures have greatly improved the safety of navigation through the straits and thereby reduced the threat of marine pollution from a collision or grounding. A controversy has arisen over the question of whether a compulsory pilotage system could be proposed by the littoral States and adopted by the IMO in a strait used for international navigation. Doubts on the legality of such a measure have arisen in conjunction with the proposal by Australia and Papua New Guinea for the imposition of a system of compulsory pilotage in the Torres Strait. Several States have argued that the IMO must first amend Chapter V of SOLAS to provide a
42
On 14 November 1977 the IMCO Assembly adopted Resolution A.375(X) on Navigation through the Straits of Malacca and Singapore. The resolution mandated a new routeing system for the Straits which included: traffic separation schemes; deep water routes; and rules for relating to under-keel-clearance for deep-draft vessels. It also endorsed the recommendation that all oil tankers navigating through the Straits be adequately covered by relevant insurance and compensation schemes. Annex V of the Resolution contained the “Rules for Vessels Navigating through the Straits of Malacca and Singapore”. In 1998 the three littoral States proposed to the MSC that the traffic separation scheme for the Straits be amended to facilitate the safe and efficient flow of traffic through the Straits. At its 69th session in 1998 the MSC approved the amendment of the traffic separation scheme so that as of 1 December 1998, the traffic separation scheme extends for more than 260 nautical miles, from One Fathom Bank, off Port Klang, the main port for Kuala Lumpur, through the southern half of the Malacca Strait and the entire Singapore Strait, to the Horsburgh lighthouse area in the South China Sea. In 1998 the three littoral States also proposed to the IMO that a mandatory ship reporting system be adopted in the Straits. The Maritime Safety Committee of the IMO (MSC), acting in accordance with Regulation V/8-1(h) of SOLAS, adopted resolution MSC.73(69) on 19 May 1998, establishing the mandatory ship reporting system known as “STRAITREP” for the Straits.
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clear legal basis for the adoption of compulsory pilotage systems before it can impose a compulsory pilotage system.43 Regulatory Jurisdiction of Littoral States over Ship-Source Pollution Article 42, paragraph 1 prescribes the jurisdiction of littoral States to adopt laws and regulations governing ships exercising the right of transit passage. With respect to the prevention, reduction and control of pollution from ships, Article 42, paragraph (1) (b) provides that coastal States may adopt laws and regulations that give effect to “applicable international regulations regarding the discharge of oil, oily wastes, and other noxious substances.” Therefore, littoral States are limited to adopting laws and regulations that give effect to MARPOL 73/78 and Annexes I, II and III, but arguably not Annex IV on sewage, Annex V on garbage or Annex VI on air pollution. The prescriptive jurisdiction of littoral States over ship-source pollution is limited to adopting laws and regulations that give effect to MARPOL 73/78. This is in contrast to foreign ships exercising innocent passage in the territorial sea, where coastal States have the power to adopt laws and regulations that are more strict than MARPOL 73/78, so long as they do not have the practical effect of hampering innocent passage, and so long as they do not apply to the design, construction, manning or equipment of foreign ships.44 The prescriptive jurisdiction of littoral States to adopt laws and regulations on the safety of ships exercising transit passage is similarly circumscribed under Article 42, paragraph 1 (a). The only laws and regulations that littoral States can adopt are those designating sea lanes
43
44
R. C. Beckman, ‘PSSAs and Transit Passage—Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS’, 38 Ocean Development & International Law (2007) 325-357 at 343-348. UNCLOS, Arts. 21 & 24.
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and traffic separation schemes, provided that such schemes conform to IMO regulations and are adopted by the IMO.45 The provision authorizing the littoral States to enforce laws and regulations adopted pursuant to Article 42 is contained in Part XII of UNCLOS on Protection and Preservation of the Marine Environment. Article 233 provides that littoral States may take enforcement action against ships violating laws and regulations referred to in Article 42, paragraph 1 (a) and (b) if the violation causes or threatens major damage to the marine environment of the strait. It seems odd that this article is included in Part XII on Preservation and Protection of the Marine Environment rather than in Part III on Straits Used for International Navigation. One commentator has suggested that it was placed in Part XII because this issue arose after agreement had been reached at the Conference on the provisions in Part III, and there was a reluctance to reopen negotiations on Part III once a consensus had been reached on its provisions.46 In any case, the text of Article 233 was agreed upon in private negotiations between Malaysia, the United States and other States that were most directly concerned with transit passage in straits used for international navigation and who were instrumental in reaching agreement on the provisions in Part III. When agreement was reached by this group of States in 1977 on the text of what is now Article 233, the President of the Conference proposed that it be incorporated into the Informal Composite Negotiating Text (ICNT). Although proposals for amendments to the article were subsequently made, the text remained unchanged thereafter, save for stylistic changes proposed upon recommendation of the Drafting Committee.47 45 46
47
UNCLOS, Art. 41 & Art. 42, para. 1(a). B. H. Oxman, ‘Environmental Protection in Archipelagic Waters and International Straits—The Role of the International Maritime Organization,’ 10 International Journal of Marine and Coastal Law, Vol. 10, No. 4, 467 at 477-478. M. H. Nordquist, S. Rosenne & A. Yankov (eds.), United Nations Convention on the Law of the Sea 1982: A Commentary, Volume IV (Dordrecht/Boston/London: Martinus Nijhoff Publishers, 1991), 386-387.
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Nevertheless, as the text of UNCLOS was being finalized the littoral States of Indonesia, Malaysia and Singapore were concerned about how Article 233 would apply to the Straits of Malacca and Singapore. Therefore, they entered into consultations with delegations from major user States in order to confirm a common understanding on how Article 233 would apply to those straits. They were able to reach an understanding with the major user States. The statement of understanding relating to Article 233 was appended to a letter sent to the President of the Conference by the Chairman of the delegation of Malaysia on 28 April 1982. The delegations of Indonesia, Singapore, France, United Kingdom, United States, Japan, Australia and Federal Republic of Germany then sent letters to the President confirming the contents of the letter and the statement. The statement of understanding makes it clear that laws and regulations relating to traffic separation schemes in Article 42, paragraph 1 (a) included regulations on under keel clearance, and that the littoral States may take appropriate measures under Article 233 to enforce this requirement, including preventing a vessel violating the under keel clearance requirement from proceeding through the Straits of Malacca and Singapore.48 Article 42, paragraph 1 (a) should be read wide enough to include any additional measures adopted by the IMO under Chapter V of SOLAS 1974 or COLREGs 1972 to enhance the safety of navigation through the sea lanes and traffic separation schemes that have been adopted by the IMO for a particular strait used for international navigation. As in the Straits of Malacca and Singapore, routeing measures such as deep water routes, under keel clearance requirements, vessel traffic systems and ship reporting systems can be adopted by the IMO to enhance the safety of 48
Letter dated 28 April from the representative of Malaysia to the President of the Conference, Third United Nations Conference on the Law of the Sea, Document A/CONF.62/L,145, Official Records, Vol. XVI, Eleventh Session, New York, 8 March-30 April 1982, 250-251. Nordquist, Rosenne & Yankov, ibid., 338-390. The full text of the statement of understanding is attached as appendix to this chapter.
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navigation through the sea lanes and traffic separation schemes in a particular strait used for international navigation. Since such measures are adopted by the IMO upon the recommendation of the littoral States to enhance the safety of navigation, the interests of user States and the international community are adequately protected. Therefore, if a littoral State adopts laws and regulations requiring foreign ships to comply with such IMO requirements, and a foreign merchant ship exercising transit passage violates such laws and regulations causing or threatening major damage to the marine environment of the strait, the littoral State should be able to take appropriate measures under Article 233 against that ship. Cooperative Measures by Littoral States on Ship-Source Pollution Despite the limitations in UNCLOS on their right to regulate ships exercising transit passage, littoral States can take various measures to protect their marine and coastal environment from ship-source pollution. One of the most important measures littoral States can take is to ratify and effectively implement MARPOL 73/78 and its annexes, including its provisions requiring that coastal States ensure that adequate reception facilities are available in their ports, and that regular inspections are conducted on ships entering their ports to ensure that they comply with the requirements in MARPOL 73/78. Second, littoral States can ratify and effectively implement the other IMO conventions on pollution from ships, which are as follows: • International Convention on Oil Pollution Preparedness, Response and Co-Operation, 1990 (OPRC 1990);49
49
OPRC 1990, adopted on 30 November 1990, entered into force on 13 May 1995. As of 31 March 2008, there were 92 States Parties, representing 66.62% of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1995 No. 12, http://www.austlii.edu.au/au/other/dfat/treaties/1995/12.html
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50
51
52
53
54
•
Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous and Noxious Substances, 2000 (OPRC/HNS 2000);50
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International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC 1992);51
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International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (Fund 1992);52
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International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001 (Bunkers 2001);53 and
•
International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (Ballast Water 2004).54
OPRC HNS 2000, adopted on 15 March 2000, not yet in force. As of 31 March 2008, there were 19 Contracting States, representing 19.28% of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, [2003] ATNIF 9, http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2003/9.html CLC 1992, adopted on 27 November 1992, entered into force on 30 May 1996. As of 31 March 2008, there were 120 States Parties, representing 95.89% of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1996 No. 2, http://www.austlii.edu.au/au/other/dfat/treaties/1996/2.html Fund 1992, adopted on 27 November 1992, entered into force on 30 May 1996. As of 31 March 2008, there were 102 States Parties, representing 92.96% of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, 1996 No. 3, http://www.austlii.edu.au/au/other/dfat/treaties/1996/3.html Bunkers 2001, adopted on 23 March 2001, not yet in force. As of 31 March 2008, there were 21 Contracting States, representing 24.04% of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see Australian Treaty Series, [2002] ATNIF 25, http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2002/25.html Ballast Water 2004, adopted on 13 February 2004, not yet in force. As of 31 March 2008, there were 13 Contracting States, representing 3.62% of the world’s tonnage of shipping. IMO Summary Status of Conventions, supra note 28. For text, see
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OPRC 1990 and OPRC/HNS 2000 require contingency planning to deal with the threat of an accidental spill of oil or of hazardous and noxious substances. CLC 1992, Fund 1992 and Bunkers 2001 establish liability and compensation schemes for coastal States whose marine and coastal environment is damaged as a result of an accidental spill of oil from either from oil tankers or from oil carried as fuel for the ship (bunker oil). Ballast Water 2004 contains measures to prevent the potentially devastating effects on the marine environment of the spread of harmful aquatic organisms from other regions that are carried by ships' ballast water. Some straits used for international navigation, such as the Straits of Malacca and Singapore, are bordered by two or more littoral States. In such cases, it is usually in the common interest of the littoral States if they all become parties to 1982 UNCLOS and to all of the relevant IMO conventions. This ensures that they have a common legal framework which they can use as a basis for cooperation with each other and with user States. Littoral States bordering a particular strait used for international navigation could better protect their marine and coastal environments from ship-source pollution if they would cooperate in the following ways: • Use port State control procedures to inspect and prosecute any ship suspected of illegally discharging oil or oily waste into any part of the strait in violation of MARPOL 73/78; • Develop regional contingency plans under OPRC 1990 and OPRC/HNS 2000 for the straits used for international navigation so that they can coordinate their actions in the event of a major spill of oil or hazardous and noxious substances. Such plans should include private sector companies as well as government agencies;
Australian Treaty Series, [2005] ATNIF http://www.austlii.edu.au/au/other/dfat/treaties/notinforce/2005/18.html
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•
•
Develop plans and procedures for dealing with the liability and compensation issues under CLC 1992, Fund 1992 and Bunkers 2001 should a major oil spill damage the marine and coastal environment of two or more of the littoral States; and Harmonize their domestic legislation implementing the various IMO conventions.
Measures Under Article 43 on Ship-Source Pollution User States and other stakeholders also have a role to play in protecting and preserving the marine environment in straits used for international navigation. Article 43 of UNCLOS provides that littoral States and user States shall by agreement cooperate ‘for the prevention, reduction and control of pollution from ships’ and for ‘improvements in aid of navigation.’ In September 2007 Indonesia, Malaysia and Singapore formally announced the establishment of a cooperative mechanism to enhance navigation safety and environmental protection in the Straits of Malacca and Singapore.55 The cooperative mechanism was agreed upon after almost three years of negotiations and three IMO-sponsored meetings between the littoral States, user States and other stakeholders. This is the first time in which action has been taken to implement Article 43 for a strait used for international navigation. The IMO Secretary-General has stated that he viewed the new cooperative mechanism as “an historic breakthrough of great significance” and that the cooperative mechanism constituted “the first attempt to put in place a formal framework to
55
Singapore Statement on Enhancement of Safety, Security and Environmental Protection in the Straits of Malacca and Singapore, Singapore, 6 September 2007, IMO Doc IMO/SGP 1/WP.1, 5 September 2007. http://www.mpa.gov.sg/infocentre/newsreleases/2007/nr070906.htm
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promote implementation of the both the spirit and intent of Article 43 of the United Nations Law of the Sea Convention.”56 The cooperative mechanism for the Straits of Malacca and Singapore consists of three components. First, it establishes a Cooperation Forum that will enable user States and other stakeholders to meet on a regular basis with the three littoral States to exchange views on how to enhance safety and environmental protection in the straits. Second, it establishes an Aids to Navigation Fund for the maintenance and replacement of aids to navigation in the straits, and encourages user States and other stakeholders to make voluntary contributions to the Fund. Third, it establishes a mechanism for developing specific projects to be undertaken by the littoral States and user States to enhance safety and environmental protection in the straits. The projects enable interested user States to contribute by funding and participating in specific projects in which they have a particular interest or expertise. The cooperative mechanism for the Straits of Malacca and Singapore demonstrates that littoral States need not bear the sole burden of protecting the marine and coastal environment of straits used for international navigation from ship-source pollution. It also demonstrates that creative mechanisms can be established which enable user States and other stakeholders to share the burden. This is only fair, given that user States and other stakeholders are major beneficiaries from the passage of oil and other hazardous and noxious substances by ships through straits used for international navigation.
56
Opening Address by Mr. Efthimios E. Mitropoulos, Secretary-General, International Maritime Organization, Singapore Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection, Singapore, 4 September 2007, page 4, IMO Doc. IMO/SGP 1/INF.7.
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PSSAs and Straits Used for International Navigation One of the clear trends in recent years is a marked increase in the establishment of particularly sensitive sea areas (PSSAs) to protect and preserve the marine environment from ship-source pollution.57 The issue that arises is whether PSSAs would be a useful tool to protect the marine environment in straits used for international navigation. A PSSA is a management tool which enables States to propose that the IMO review a particular area of their territorial sea and/or Exclusive Economic Zone that is vulnerable to damage by international shipping with a view to adopting specific measures to address that vulnerability in order to protect the marine environment. In general, to be identified as a PSSA, three elements must be present: (1) the area must have certain attributes (ecological, socio-economic, or scientific); (2) the area must be vulnerable to damage by international shipping activities; and (3) there must be a measure with an identified legal basis that can be adopted by the IMO to prevent, reduce, or eliminate risks from these activities.58 If approved by the IMO, an area will be designated as a PSSA and the IMO will adopt one or more “associated protective measures” that ships must follow in the PSSA. The associated protective measures that can be adopted in a PSSA are the same type of measures that can be adopted by the IMO in a strait used for international navigation—sea lanes and traffic separation schemes, routeing measures, vessel traffic schemes and ship reporting systems.59
57
58
59
On PSSAs generally, see the IMO home page at www.imo.org. On the history of PSSAs, see G. Peet, ‘Particularly Sensitive Sea Areas—A Documentary History’, 9 Int’l J. Marine and Coastal L. (1966) 469-506. “Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas”, IMO Assembly Resolution A.982(24), IMO Assembly, 24th Sess., adopted on 1 December 2005. Ibid.
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The PSSA Guidelines contained no provisions on whether it would be possible to designate a PSSA within a strait used for international navigation and impose conditions on ships exercising transit passage through the strait. In any case PSSAs are not likely to become important tools in protecting the marine environment in straits used for international navigation. The associated protective measures that can be adopted by the IMO in a PSSA are the same as the measures that can be adopted by the IMO in straits used for international navigation under Part III of UNCLOS without the designation of a PSSA. Therefore, PSSAs would not give littoral States any additional powers or jurisdiction over ships exercising transit passage through a strait used for international navigation. Conclusions The legal regime governing the regulation of ship-source pollution in straits used for international navigation is set out in UNCLOS, but it is at the same time inextricably linked to the IMO instruments on shipsource pollution and the safety of navigation. Littoral States are given limited powers to regulate ships exercising transit passage under Article 42. They are also given the power under Article 233 to enforce those regulations if a violation causes or threatens major damage to the marine environment of the straits. However, the legislative power to adopt laws and regulations on ships exercising transit passage through straits used for international navigation rests primarily with the IMO rather than with the littoral States, and the primary responsibility to enforce those regulations rests with flag States and port States rather than with the littoral States. The rationale for this scheme seems to be that ships on routes used for international navigation should be governed by international rules established by the IMO, rather than by the national laws of the various States through whose waters they pass. One advantage of this scheme is that, as the IMO adopts new conventions and updates existing 334
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conventions, they will automatically apply to ships exercising the right of transit passage once they have been generally accepted, even if the flag State of the ship exercising transit passage is not a party to those IMO conventions. The continued success of the scheme requires that the IMO continues to develop its law and regulations to meet changing conditions and increased environmental consciousness. It also requires that ways and means be found to ensure that flag States and port States take their responsibilities seriously and enforce the international regulations developed by the IMO. Littoral States can cooperate with one another in various ways to enhance safety and protect the marine environment from ship-source pollution. They can propose the adoption of measures by the IMO, they can establish cooperative mechanisms with user States under Article 43, and they can cooperate with each other in the ratification and effective implementation of the IMO conventions. Littoral States can also lobby at the IMO for the adoption of more stringent international regulations on ship-source pollution, and for more effective enforcement of IMO regulations by flag States and port States. These options should be sufficient to protect the legitimate interests of littoral States in preventing, reducing and controlling ship-source pollution, while at the same time ensuring that ships on international shipping routes do not have to comply with onerous “local regulations” adopted by littoral States. Therefore, the legal regime governing ship-source pollution in straits used for international navigation is not only fair, but it is sufficiently flexible so that it can be continually developed to keep pace with changing perceptions and technological advances.
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Appendix: Statement relating to Article 233 of the draft convention on the law of the sea in its application to the Straits of Malacca and Singapore Document A/CONF.62/L,145, Official Records, Vol. XVI, Eleventh Session, New York, 8 March-30 April 1982, 251. Following considerations held among the delegation of States concerned, a common understanding regarding the purpose and meaning of article 233 of the draft convention on the law of the sea in its application to the Straits of Malacca and Singapore has been confirmed. This understanding, which takes cognizance of the peculiar geographic and traffic conditions in the Straits, and which recognizes the need to promote safety of navigation and to protect and preserve the marine environment in the Straits, is as follows: 1. Law and regulations enacted by States bordering the Straits under article 42, paragraph 1 (a) of the convention, refer to laws and regulations relating to traffic separation schemes, including the determination of under keel clearance for the Straits provided in article 41. 2. Accordingly, a violation of the provision of resolution A.375(X),* by the Inter-Governmental Maritime Consultative Organization adopted on 14 November 1977, whereby the vessels referred to therein shall allow for under keel clearance of at least 3.5 metres during their passage through the Straits of Malacca and Singapore, shall be deemed, in view of the peculiar geographic and traffic conditions of the Straits, to be a violation within the meaning of article 233. The States bordering the Straits may take appropriate enforcement measures, as provided in article 233. Such measures may include preventing a vessel violating the required under keel clearance from proceeding. Such action shall not constitute denying, hampering, impairing or suspending the right of transit passage in breach of articles 42, paragraph 2 or 44 of the draft convention. *
See Inter-Governmental Maritime Consultative Organization, Assembly, Tenth Session, Resolutions and Other Decisions. London, 1978.
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3. States bordering the Straits may take appropriate enforcement measures in accordance with article 233, against vessels violating the laws and regulations referred to in article 42, paragraph 1 (a) and (b) causing or threatening major damage to the marine environment of the Straits. 4. States bordering the Straits shall, in taking the enforcement measures, observe the provisions on safeguards in Section 7, Part XII of the draft convention. 5. Articles 42 and 233 do not affect the rights and obligations of States bordering straits regarding appropriate enforcement measures with respect to vessels no in transit passage. 6. Nothing in the above understanding is intended to impair: (a) the sovereign immunity of ships and the provisions of article 236 as well as the international responsibility of the flag State in accordance with paragraph 5 of article 42; (b) the duty of the flag State to take appropriate measures to ensure that its ships comply with article 39, without prejudice to the rights of States bordering the Straits under Parts III and XII of the draft convention and the provisions of paragraphs 1, 2, 3 and 4 of this statement.
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Compulsory Pilotage in the Torres Strait Capt. Patrick J. Neher, JAGC, USN1 Abstract The United Nations Convention on the Law of the Sea (UNCLOS) establishes a comprehensive legal regime on the passage of ships, submarines, and aircraft through, under, and over straits (and their approaches) used for international navigation. That regime applies when such straits connect one part of the high seas or an Exclusive Economic Zone (EEZ) to another part of the high seas or EEZ and are constituted at least in part of overlapping (or nearly overlapping) territorial seas. In such straits, all ships and aircraft enjoy the right of transit passage, defined as freedom of navigation and overflight solely for the purpose of continuous and expeditious transit in the normal modes of operation. The right of transit passage may not be suspended. Under Article 42 of UNCLOS, a State bordering a strait used for international navigation may adopt laws and regulations relating to transit passage, but only in four specific areas: the designation of sea lanes and traffic separation schemes done in conformity with generally accepted international regulations; the prevention, reduction, and control of pollution by giving effect to applicable international regulations regarding the discharge of oil, oily wastes, and other noxious substances in the strait; the prevention of fishing (with respect to fishing vessels); and the loading or unloading of any commodity, currency, or person in contravention of the customs, fiscal, immigration, or sanitary laws and regulations of such State.
1
The author’s PowerPoint presentation can be viewed on the accompanying CD.
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The authority of a State bordering an international strait to adopt laws relating to transit passage is prescriptive authority only, unlike the regime applicable to laws relating to the exercise of innocent passage through territorial seas. With one exception (under Article 233), there is no authority for a State bordering a strait used for international navigation to enforce its laws or regulations relating to transit passage against vessels or aircraft then engaged in transit passage. In addition, any such laws relating to transit passage must not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering, or impairing the right of transit passage. Coastal States enjoy sovereignty within their ports and other internal waters and, except in cases of force majeure or distress, they may deny port entry to any vessel for any reason. They may not, however, rely upon their sovereign authority to attempt to enforce, after the fact, laws or regulations relating to the passage of ships or aircraft in, under, or over straits used for international navigation, when such laws or regulations themselves do not comply with Article 42 of UNCLOS. That conclusion would apply in the case of a State bordering an international strait that purports to prescribe a compulsory pilotage regime in the strait. Such regime exceeds that allowed under Article 42 of UNCLOS as it does not fit into any of the four categories of permissible regulatory authority. It would be a violation of international law, therefore, for a State to threaten to arrest and detain a master that does not take a pilot while transiting the strait should he ever be present in the State, including entering a port with the consent of the State.
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Introduction On 16 May 2006, Australia notified the international community it had amended its domestic law to make it a strict liability offense for the master or owner of a merchant vessel to navigate the Torres Strait without first taking on board an Australian pilot.2 Australia thus became the first State bordering a strait used for international navigation [hereinafter strait State] to claim a right to prescribe and enforce compulsory pilotage over foreign flag vessels exercising their right of transit passage under Part III of the United Nations Convention on the Law of the Sea (UNCLOS).3 2
See Australian Maritime Safety Authority (AMSA) Marine Notice 8/2006, available at www.amsa.gov.au “A new compulsory pilotage area for the Torres Strait will be specified in Marine Orders Part 54…[s]ignificant penalties will apply to a master or owner who fails to comply with the compulsory pilotage requirements in Navigation Act and Marine Orders Part 54.” See also AMSA Marine Orders, Part 54, Issue 4, Order No. 10, coming into operation on 6 October 2006; AMSA Marine Notice 16/2006 of 3 October 2006; and Maritime Legislation Act 2006, [assented to 6 April 2006], by which the Parliament of Australia enacted amendment to Navigation Act 1912. Under Marine Orders Part 54, the Torres Strait was designated a compulsory pilotage area. Under the 2006 amendment to section 186I of Navigation Act 1912, the master and owner of a regulated ship commit strict liability offenses if their ship navigates in an area of compulsory pilotage without a pilot. As of this writing, the offense carries a penalty of 500 penalty units (which translates to a fine of AUD 55,000; but also see the Torres Pilots notice, which states the maximum penalty is AUD 100,000, at: http://www.torrespilots.com.au/compPilotage.html). A comment to section 186I notes the possibility that the fine could be increased fivefold (to AUD 275,000) if corporate criminal liability is established under subsection 4B3 of the Crimes Act 1914. Under amended section 3 of Navigation Act 1912, the Act does not apply to ships owned or operated by the Australian Defense Force or the naval, military, or air forces of countries other than Australia. In addition, under amended section 186K of Navigation Act 1912, there is a process whereby the AMSA can grant a master or owner of a regulated ship an exemption. Informal liaison with AMSA indicates that no exemptions have been granted to date. 3 United Nations Convention on the Law of the Sea, opened for signature 10 Dec 1982, Part III, 1833 UNTS 397 [hereinafter UNCLOS]. Australia does not deny that it is
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Australia’s compulsory pilotage regime in the Torres Strait has generated controversy and a rare rebuke at the International Maritime Organization (IMO),4 elicited diplomatic protest,5 and been subject to criticism from international legal scholars.6 regulating the exercise of transit passage by merchant vessels; in fact, it claims that its regulatory scheme enhances and promotes the exercise of the right of transit passage: “The carriage of an Australian pilot will have the effect of enhancing transit passage…,” Marine Notice 16/2006; “Australia unequivocally rebuts the assertion that its system of pilotage in the Torres Strait has the practical effect of denying, hampering, or impairing the right of transit passage. On the contrary, the system of pilotage promotes transit passage, by ensuring that the Strait remains open by significantly reducing the likelihood of grounding,” statement of the representative of Australia before the 77th Plenary Meeting of the United Nations General Assembly (UNGA), 18 Dec 07, A/62/PV.77, (pp.18-19). 4 See Report of the Marine Environment Protection Committee on its 55th Session, Agenda Item 23, paragraphs 8.8 -8.15, pp. 53-4, of 16 Oct 06 [hereinafter MEPC 55/23]; and IMO Assembly Report A 25/5(b)/2 of 29 Nov 07, paragraphs 54-58. 5 The United States, for example, has published the operative paragraphs of its diplomatic note protesting the Torres Strait compulsory pilotage scheme at: Digest of United States Practice in International Law 2006, pp. 810-812 (Int’l Law Inst. Oxford Univ. Press 2006), excerpts of which include: As is well known to the government of Australia, it is the firm position of the United States that there is no basis in the international law of the sea as reflected in the Law of the Sea Convention for the institution of a system of compulsory pilotage in a strait used for international navigation, such as Torres Strait, applicable to ships exercising the right of transit passage. . . . Accordingly, the United States urges the Government of Australia to conform its laws and regulations with the law of the sea and the understandings reached at the IMO. The Torres Strait compulsory pilotage scheme has also been the subject of debate at Plenary Meetings of the United Nations General Assembly in 2006 and 2007, resulting in the General Assembly calling upon States to ensure freedom of navigation and the rights of transit passage and innocent passage in accordance with international law, in particular the Convention. A/RES/61/22 par. 65; and A/RES/62/215, par. 72. Relevant statements from member States can be found at: 2007: A/62/PV.64 (am 10 December): US (p.4), EU (p.6), PRC (p. 20), India (p. 23) A/62/PV.65 (pm 10 December): Singapore (pp. 21-23)
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Australia, in turn, claims that IMO approved compulsory pilotage in the Torres Strait, at least implicitly, when it approved an extension of Australia’s Great Barrier Reef Particularly Sensitive Sea Area (PSSA) in 2005.7 Australia argues its compulsory pilotage scheme conforms to
A/62/PV.77 (pm 18 December): Russia (p. 8), ROK (p. 11), Sri Lanka (p. 13), Nigeria (p. 13), Australia (PP. 18-19), Singapore (pp. 19-20). 2006: A/61/PV.68 (am 7 December): US (p. 5), EU (p. 12), PRC (p. 22), Singapore (pp. 24-27), Sri Lanka (p. 28) A/61/PV.69 (pm 7 December): Guatemala (pp. 1-2), Australia (p. 4), Japan (p. 9), Mexico (p. 15), Viet Nam (p. 17), Indonesia (p. 20), Uruguay (p. 22) A/61/PV.71 (am 8 December): Russia (p.2), Singapore (p. 12), Australia (pp. 12-13), A/61/PV.83 (pm 20 December): Nigeria (p.21) 6
See Robert C. Beckman, PSSAs and Transit Passage-Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS, Ocean Development & International Law, vol. 38, Issue 4, pp 325-327(2007); Julian Robert, Compulsory Pilotage in International Straits: The Torres Strait PSSA Proposal, Ocean Development & International Law, vol. 37, pages 93-112 (2006); Robert Beckman, Australia’s Pilotage System in the Torres Strait: A threat to Transit Passage?, IDSS Commentaries 125/2006, 7 December 2006, reprinted in The Straits Times (Singapore), December 8, 2006, online at http://www.ntu.edu.sg/rsis/publications/Perspective/IDSS1252006.pdf; Robert Beckman, Regime of Transit Passage Holds, The Straits Times (Singapore), 15 December 2006; Robert Beckman, IMO didn’t approve Australia’s move, The Straits Times (Singapore, 23 December 2006), online at Forum Dec 23 2006; Stuart B. Kaye, Regulation of Navigation in the Torres Strait: Law of the Sea Issues, in Navigational Rights and Freedoms and The New Law of the Sea 119, at 125-126 (Donald R. Rothwell & Sam Bateman eds. 2000); Stuart B. Kaye, The Torres Strait 124-125 (International Straits of the World, vol. 12, 1997). See also the letter of Chan Beng Seng, Director (Sea Transport), Singapore Ministry of Transport, Aussie view of Unclos, IMO positions incorrect, The Singapore Times, 28 December 2006. 7 AMSA Marine Notice 8/2006: “On 22 July 2005, the IMO’s Marine Environment Protection Committee approved the extension of the Great Barrier Reef Particularly Sensitive Sea Area (PSSA) to include the Torres Strait. As one of the associated protective measures for the area, the Committee also adopted Australia’s proposal to extend the system of pilotage within the Great Barrier Reef to the Torres Strait. Australia has operated a system of compulsory pilotage within the Great Barrier Reef since 1991.”
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UNCLOS because it is not enforced against a vessel then engaged in transit passage, but rather only against the owner or master if they later enter an Australian port.8 Australia also rejects the argument that its action serves as precedent for other States to impose compulsory pilotage in straits used for international navigation.9 A Particularly Sensitive Sea Area (PSSA) is an area that needs special protection through action by the International Maritime Organization (IMO) because of its significance for recognized ecological or socio-economic or scientific reasons and which may be vulnerable to damage by international maritime activities. At the time of designation of a PSSA, associated protective measures (APMs) must have been approved or adopted by the IMO to prevent, reduce, or eliminate the threat or identified vulnerability. Guidelines on designating a PSSA are contained in IMO Resolution A.982(24) Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs). 8 AMSA Marine Notice 8/2006: “In accordance with UNCLOS Articles 42.2 and 44, Australian authorities will not suspend, deny, hamper or impair transit passage and will not stop, arrest or board ships that do not take on a pilot while transiting the Strait. However, the owner, master and/or operator of the ship may be prosecuted on the next entry into an Australian port…” 9 See remarks of Mr. Adam McCarthy, Ass’t Sec., Int’l Legal Branch, DFAT, presented before the Australia-New Zealand Society of International Law, on “Protecting the Environment and Promoting Safe Navigation: Compulsory Pilotage in the Torres Strait,” available at: http://law.anu.edu.au/cipl/conference8SawyerLecture/2007 First, arguments have been made that Australia’s system of pilotage in the Torres Strait sets a precedent for other straits around the world. The Torres Strait, however, is unique. The language of the MEPC resolution, referring specifically to “Australia’s system of pilotage”, was carefully negotiated in good faith and by consensus so that it would not form a precedent. Since Australia was granted approval by the IMO to apply its system of pilotage to the Torres Strait, the IMO has made the criteria for declaring particularly sensitive sea areas (PSSA) stricter. As discussed later in this paper, the IMO has categorically rejected the above argument, and has now twice confirmed that it only approved a recommendatory (vice compulsory) system of pilotage in the Torres Strait in 2005. However, if Australia were correct in its argument above, to wit, that compulsory pilotage in a strait used for international navigation is lawful under UNCLOS, at least if approved by IMO as an associated protective measure to a PSSA, then it would be especially difficult to understand why Australia would be so adamant in
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This short paper will review whether compulsory pilotage in a strait used for international navigation is lawful under UNCLOS as a general matter, or specifically, as IMO-approved compulsory pilotage in the Torres Strait. It will conclude there is no basis in international law for a strait State to unilaterally impose compulsory pilotage in a strait used for international navigation (a conclusion that Australia shared in 2001),10 and its argument that it has not established a precedent. Certainly if other members of IMO desire to request approval of compulsory pilotage in straits used for international navigation, they should not only be able to rely on Australia’s action in Torres Strait as precedent, but they should also be able to count on Australia’s support within IMO. 10 See Review of Ship Safety and Pollution Prevention Measures in the Great Barrier Reef, July 2001, [hereinafter 2001 GBR Review] posted at the AMSA website at: http://www.amsa.gov.au/Shipping_Safety/Great_Barrier_Reef_and_Torres_Strait/GBR_ Review_Report/ That review contained the following observations: 3.16 Due to concerns about rights of transit passage through international straits, however, implementing compulsory pilotage for the Torres Strait poses complex questions of international law and foreign relations. 3.17 Under Articles 38-44 of the UN Convention on the Law of the Sea (UNCLOS), ships of all nations enjoy the right of transit passage through international straits, which shall not be impeded. A coastal State has a right to designate sea lanes and traffic separation schemes through an international strait, and to adopt laws relating to the safety of navigation. However, such laws shall not have the practical effect of denying, hampering or impeding the right of transit passage. 3.18 Many IMO member States are adamantly opposed to the concept of compulsory pilotage regimes within international straits, as they regard it as a clear contravention of UNCLOS provisions. Accordingly, action to extend compulsory pilotage in an international strait, which requires the approval of the IMO, is likely to be a difficult and time consuming process. Torres Strait 7.17 Legal advice indicates that Australia cannot extend the compulsory pilotage within Australia's EEZ beyond the existing defined areas without further reference to the IMO. {Citing to advice by Office of International Law, Attorney-general’s department on 10 November 2000.] 7.20 In the Torres Strait, there is a more complex application of international law because this is an international navigation strait for shipping and a shared boundary with Papua New Guinea. UNCLOS provides that foreign flagged
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that IMO approved only a recommendatory (vice compulsory) system of pilotage for the Torres Strait in 2005.11 Discussion UNCLOS establishes a comprehensive legal regime on the passage of ships, submarines, and aircraft through, under, and over straits used for international navigation.12 That regime applies when such straits connect ships have the right of transit passage in an international strait which shall not be impeded. This means that foreign ships have freedom of navigation for the purpose of continuous and expeditious transit of a strait between one part of the high seas or an EEZ and another part of the high seas or an EEZ. 7.21 UNCLOS limits the ability of bordering States, such as Australia, to control shipping transiting a strait to specific matters. These include the designation of sea lanes and prescription of traffic separation schemes for safe passage of ships. A bordering State also may adopt laws for pollution prevention, control of fishing and loading and unloading of commodities. Compulsory pilotage in Torres Strait 7.22 Torres Strait is identified as a navigationally hazardous region with an environment vulnerable to harm from marine pollution, and which is important culturally and economically for local indigenous communities. Compulsory pilotage has been identified as a significant risk reduction measure in this region. Australia's ability to impose a mandatory pilotage requirement on ships transiting the Torres Strait is circumscribed because of the UNCLOS provisions regarding transit passage of ships through an international strait. The 2001 GBR Review was carried out by senior officials from the Federal and Queensland Governments following the grounding of the Bunga Teratai Satu in November 2000. On 25 July 2002, the Australian government accepted the review “in principle, although some recommendations will require multilateral negotiation through the International Maritime Organization (IMO).” See Deputy Prime Minister statement A96/2002 at: http://www.minister.infrastructure.gov.au/ja/releases/2002/july/A96_2002.htm 11 See Resolution MEPC 133.(53); and MEPC 55/23 and A25/5(b)/2, supra, note 3. 12 See United Nations Convention on the Law of the Sea 1982, A Commentary, M. Nordquist, ed., Center for Oceans Law and Policy, University of Virginia Law School.; Volume II, pp. 279-399 (Martinus Nijhoff Publishers, 1993) [hereinafter UVA Commentary]. As the UVA Commentary notes:
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one part of the high seas or an Exclusive Economic Zone (EEZ) to another part of the high seas or EEZ and are constituted at least in part of overlapping (or nearly overlapping) territorial seas.13 In such straits, all ships and aircraft enjoy the right of transit passage, defined as freedom of navigation and overflight solely for the purpose of continuous and expeditious transit in the normal modes of operation.14 The right of transit passage may not be suspended.15 Under Article 42 of UNCLOS, a State bordering a strait used for international navigation may adopt laws and regulations relating to transit passage, but only in four specific areas: 16 the designation of sea lanes and Part III of UNCLOS (articles 34 to 45) sets out the regime for straits used for international navigation with regard to passage of ships through those straits and aircraft over them. Maintenance of a regime of unimpeded passage though such straits is an important component of the overall “package” of the Convention, and reflects the significance of global navigation in the negotiation of UNCLOS III. Acceptance of this regime made it possible for the Conference to reach agreement on 12 nautical miles as the maximum breadth of the territorial sea, and on the provisions concerning the exclusive economic zone. UVA Commentary, Vol. II, p. 279. 13
UNCLOS, supra note 2, Article 34. UNCLOS, supra, note 2, Article 38. 15 Id., Art. 44. 16 One of the most debated subjects during the long negotiations over UNCLOS, was whether strait States should have greater regulatory authority over vessels engaged in transit passage. Numerous proposals were submitted to grant strait States greater authority and all were rejected. Thus, in the UVA Commentary, it is definitively stated that, with regard to Article 42, “the legislative history indicates that the list in paragraphs 1(a) to 1(d) is exhaustive, none of the suggested changes having been accepted. “ UVA Commentary, Vol. II, supra, note 12, p. 375. 14
Of the many proposals considered, and rejected, the most relevant to the Torres Strait was a proposal made by Malaysia to recognize special authority for “Protection of straits with special peculiarities.” See UVA Commentary, Vol. II supra note 12, section 42.6, p. 373, discussing Malaysia’s draft Article 40 bis (RSNT II), submitted informally in 1976, which provided in pertinent part: Article 40 bis (RSNT II)
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traffic separation schemes done in conformity with generally accepted international regulations;17 the prevention, reduction, and control of pollution by giving effect to applicable international regulations regarding the discharge of oil, oily wastes, and other noxious substances in the strait;18 the prevention of fishing (with respect to fishing vessels); and the
Protection for straits with special peculiarities 1. Notwithstanding the provisions of paragraph 2 of articles 40 and 42 of this Chapter, where the navigational and hydrological peculiarities of, and the density of the traffic in the strait so determine, the State bordering the strait may establish and enforce non-discriminatory laws and regulations limiting the right of transit passage of vessels, which because of their insufficient under-keelclearance, constitute a grave danger to safety of navigation or to the marine environment of that State. Such laws and regulations shall be made in consultation with the competent organization. The above draft article from Malaysia, reads very much like the underlying rationale relied upon by Australia for the Torres Strait. Although Malaysia’s draft Article 40 bis was not accepted, Malaysia was able to gain a concomitant level of protection against the threat posed by deep draft vessels transiting the Straits of Malacca and Singapore while acting in conformity with UNCLOS Articles 41 and 42. Malaysia and Singapore consulted with the Inter-Governmental Maritime Consultative Organization (IMO’s previous title) in 1977 and succeeded in gaining adoption of under keel clearance requirements. They then gained understandings from key maritime States that the under keel clearance requirements could be enforced under Article 233 of UNCLOS without violating Article 42.2 of UNCLOS. Eventually, the under keel clearance requirements and traffic separation schemes were adopted by IMO in accordance with Article 41 of UNCLOS. See Roach and Smith, Excessive Maritime Claims, U.S. Naval War College, International Law Studies, Volume 66, pp.195-97 (1994). 17 Article 42.1(a) of UNCLOS provides that the strait State may adopt laws and regulations relating to, “the safety of navigation and the regulation of maritime traffic, as provided in article 41.” Article 41, in turn, permits designation of sea lanes and traffic separation schemes done in conformity with generally accepted international regulations. Hence, Article 42.1(a) of UNCLOS is characterized in the main body of this paper as permitting the strait State to designate sea lanes and traffic separation schemes done in conformity with generally accepted international regulations. 18 International regulations regarding discharge of oil, oily wastes, and other noxious substances are found in the International Convention for the Prevention of Pollution from
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loading or unloading of any commodity, currency, or person in contravention of the customs, fiscal, immigration, or sanitary laws and regulations of such State. A strait State’s attempt to unilaterally impose compulsory pilotage in a strait would exceed that allowed under Article 42.1 of UNCLOS, as it would not fit into any of the four categories of permissible regulatory authority. Sea lanes and traffic separation schemes in a strait used for international navigation require conformity with IMO regulations and approval by that organization;19 the applicable international regulations regarding the discharge of oil, oily wastes, and other noxious substances do not include authority for compulsory pilotage in straits used for international navigation nor have they ever been amended to include such authority;20 and obviously the regulation of fishing by fishing vessels and the customs, fiscal, immigration and sanitary authorities listed under Article 42.1 are inapplicable. Thus, it would be a violation of international law for a strait State to threaten to arrest and detain a master or owner of a vessel that does not take on board a pilot while transiting the strait, should such master or owner ever be present in the State, including entering a port with the consent of the State. The authority of a strait State to adopt laws relating to transit passage is prescriptive authority only,21 unlike the regime applicable to laws relating to the exercise of innocent passage through territorial seas.22 With one exception (under Article 233), there is no authority for a strait Ships, 1973 [MARPOL] and its Annexes I and II. MARPOL, its protocols and annexes are published in a consolidated edition by IMO (IMO Publication sales number IC520E, London, 2006). 19 UNCLOS, supra note 2, Article 41.3; see also Ships' Routeing, International Maritime Organization Doc. IC927E, (9th ed. 2008). There is no provision for pilotage, let alone compulsory pilotage, within IMO General Provisions on Ships Routeing or in IMO regulations dealing with Safety of Navigation under Chapter V of the Safety of Life at Sea Convention (SOLAS). 20 MARPOL Article 9, in fact, cuts the other way. 21 See UVA Commentary, supra note 12, Vol. II, section 42.10(g). 22 See, for example, Articles 21, 25, 211 and 220 of UNCLOS, supra note 2.
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State to enforce its laws or regulations relating to transit passage against vessels or aircraft then engaged in transit passage.23 In addition, any such laws relating to transit passage must not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering, or impairing the right of transit passage.24 Coastal States enjoy sovereignty within their ports and other internal waters and, except in cases of force majeure or distress, they may deny port entry to a vessel.25 They may not, however, rely upon their sovereign authority to attempt to enforce, after the fact, laws or regulations relating to the passage of ships or aircraft in, under, or over straits used for international navigation, when such laws or regulations themselves do not comply with Article 42 of UNCLOS.26 As noted earlier, in 2001 and 2002, the Australian government was of the view that it lacked authority to unilaterally impose compulsory pilotage in the Torres Strait.27 It also then recognized that, [M]any IMO member States are adamantly opposed to the concept of compulsory pilotage within 23
Article 233 limits enforcement authority by a strait State to violations of its laws and regulations, which have been properly prescribed under Article 42.1(a) and (b) of UNCLOS, only if such violations cause or threaten to cause major damage to the marine environment of the straits. 24 UNCLOS, supra note 2, Article 42.2. Compulsory pilotage, by practical definition, constitutes a hampering of the exercise of the right of transit passage. In addition to having to pay pilotage fees and meeting administrative requirements related to pilotage services, the vessel must modify its transit in order to take on board a pilot. 25 UNCLOS, supra note 2, Articles 2, 8, 11, and 218. The United States takes the view that, “subject to ancient customs regarding the entry of ships in danger or distress (force majeure) and the exception noted below [UNCLOS Article 8(2)], the Convention does not limit the right of the coastal State to restrict entry into or transit through its internal waters, port entry, imports, or immigration,” and “a port State has the right to refuse to permit foreign ships from entering or remaining within its internal waters.” Message from the President of the United States transmitting the United Nations Convention on the Law of the Sea of 1982, S. TREATY DOC. NO. 103-39, at 14 (1994). 26 See discussion at UVA Commentary, supra note 12, section 42.10g. 27 See discussion at note 9 supra.
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international straits, as they regard it as a clear contravention of UNCLOS provisions. Accordingly, action to extend compulsory pilotage in an international strait, which requires the approval of the IMO, is likely to be a difficult and time consuming process.28 Nonetheless, Australia believed it worth pursuing at IMO, and therefore in 2003 it proposed to the IMO an extension of the Great Barrier Reef PSSA to encompass the Torres Strait, including a series of associated protective measures: a two-way shipping route in the Torres Strait, compulsory pilotage in the Torres Strait, and improvements to the existing GBR ship reporting system.29 In 2004, the IMO Safety of Navigation subcommittee noted the opinion of a number of delegations that there was no clear legal basis to adopt a compulsory pilotage regime in international straits, and accordingly, the matter was referred to the IMO Legal Committee for resolution.30 The Legal Committee considered the question but was unable to conclude that there was legal authority under UNCLOS to impose compulsory pilotage in straits used for international navigation.31 It returned the issue to the Maritime Safety Committee (MSC) in late 2004 with the legal issue unresolved.32 MSC 79 met in December 2004 and in view of the unresolved legal debate, Australia agreed to modify its proposal. The Australian modification changed the operative paragraph of the draft resolution as follows: “RECOMMENDS that Governments recognize the need for effective protection of the Great Barrier Reef and Torres Strait region and
28
See paragraph 3.18 of the 2001 GBR Review, supra note 10, which was approved by the Government in July 2002. 29 See MEPC 49/8 paragraphs 5.1-5.16. 30 See NAV 50/19, par. 3.29.16 and LEG 89/16, paragraphs 222-241. 31 LEG 89/16, paragraphs 222-241. 32 Id., at 241: “In the final analysis, the Committee remained divided on resolving the legality of compulsory pilotage in straits used for international navigation.”
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inform ships flying their flag that they should act in accordance with Australia’s system of pilotage . . .”33 The negotiating history of the modified draft resolution made clear that there was no intention to have the proposed resolution provide an international legal basis for compulsory pilotage in a strait used for international navigation. The MSC Committee chair emphasized that the Committee was no longer considering a proposal for compulsory pilotage.34 At MEPC 53, the Committee considered the modified Australian proposal. In supporting the modified proposal, the United States delegation stated, in pertinent part: . . . it must be recognized that this resolution was recommendatory and provided no international legal basis for mandatory pilotage for ships in transit in this or any other strait used for international navigation. The United States could not support the resolution if this Committee took a contrary view.35 Several delegations supported the statement by the United States and the delegation of Australia indicated that it did not object to the statement.36 The resolution was then adopted by consensus on 22 July 2005.37 The plain language of the consensus resolution adopted by MEPC in July 2005 is unmistakable: it describes a recommendatory pilotage scheme. IMO members are recommended to inform their ships that they should comply with Australia’s system of pilotage. Despite that plain language, and the negotiating history underlying it, including the statement of the United States to which Australia offered no objection, 33
MSC 79/23, paragraphs 10.11-10.16. Id. 35 MEPC 53/24, paragraph 8.5. 36 Id., at paragraph 8.6. 37 Resolution MEPC.133(53), at MEPC 53/24/Add.2. 34
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Australia imposed a compulsory (vice recommendatory) pilotage regime in Torres Strait in 2006, as noted earlier. Moreover, it cited the consensus resolution itself as the sole international legal basis for imposing compulsory pilotage in the Torres Strait. It was as if there had never been a referral to the Legal Committee, or a return to MSC 79 without resolution of the legal issue, or a negotiated modification of the draft resolution by Australia, or the discussion by the United States and Australia at MEPC 53. Needless to say, the IMO revisited the matter in 2006 and 2007. At MEPC 55 in 2006, the Chairman stated that: [H]istorically, when the Committee adopts resolutions with an operative paragraph beginning with the word “RECOMMENDS”, the content of that paragraph is of a recommendatory nature; therefore, any different interpretation would necessitate the revision of all resolutions adopted by the MEPC. The Chairman requested the Committee to agree that on adopting resolution MEPC.133(53) the Committee was adopting it on a recommendatory basis.38 As it is noted in the MEPC 55 report, the Committee agreed with the Chairman that resolution MEPC.133(53) is of a recommendatory nature.39 Singapore, in turn, strongly urged Australia to review its positions in Marine Notices 8/2006 and 16/2006 to bring them in line with the understanding of the Committee. Twenty-two delegations associated themselves with Singapore’s position.40 In 2007, the matter was again revisited, this time at IMO Assembly, its highest body. As reflected in the Report of the Technical
38
MEPC 55/23, paragraph 8.10 Id. 40 Id., at paragraph 8.12. 39
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Committee to the Plenary,41 the Assembly considered the 2006 decision of MEPC 55 to confirm its understanding that the 2005 resolution MEPC.133(53) supported only a recommendatory (vice compulsory) system of pilotage in Torres Strait. Singapore again emphasized that the resolution provided no international legal basis for mandatory pilotage in the Torres Strait or any other strait used for international navigation, and it called upon Australia to align its action with the understanding agreed at MEPC 55. Thirty-one delegations associated themselves (or expressed their wish to be associated with) the statement of Singapore.42 The Assembly recalled the debate on the matter at previous sessions of MEPC, and especially MEPC 55, and taking into account the overwhelming majority of delegations expressing their support for the position of Singapore and the United States, the Assembly re-affirmed the decision reached at MEPC 55 that resolution MEPC.133(53) is recommendatory in nature.43
Conclusion In 2005, the IMO adopted a consensus resolution authorizing a recommendatory system of pilotage in the Torres Strait. In 2006, Australia unilaterally imposed a compulsory system of pilotage in the Torres Strait in violation of Articles 42 and 233 of UNCLOS. In 2006 and 2007 the IMO confirmed that it had adopted a recommendatory, and only a recommendatory system of pilotage in the Torres Strait. Australia’s refusal to accept the plain meaning of a consensus resolution has the potential to cause lasting harm to the IMO process, and its stated intent to rely on its port control authority to extend jurisdiction, after the fact, over vessel masters and owners who previously exercised 41
A 25/5(b)/2, paragraphs 54-58. Id., at paragraph 54. 43 Id., at paragraph 58. 42
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navigation rights guaranteed under international law, has the potential to cause harm to both the navigation provisions of UNCLOS and customary international law relating to port State control. Perhaps even more serious, however, are the potential security and economic implications of allowing strait States to require foreign flag vessels to take on board pilots—nationals of the strait States—as condition precedent to transiting key oceanic chokepoints. Fortunately, Australia can easily put its system of pilotage in the Torres Strait into conformity with UNCLOS and the decisions of IMO, while still retaining a compulsory element. It need only clarify that for vessels heading directly to an Australian port on the same voyage as their transit of Torres Strait, the pilotage regime is compulsory and enforceable as a matter of port State control; but for vessels exercising their right of transit passage in Torres Strait that are not proceeding directly to an Australian port, the pilotage regime is recommendatory in nature. This approach would mirror the approach recently proposed by the United States and adopted by IMO with regard to ship reporting in the Northwest Hawaiian Islands PSSA. For vessels entering the PSSA and intending to make a port call in the United States during the same voyage, the ship reporting system is mandatory, but for other vessels it is merely recommendatory.44
44
See Resolution MSC.248(83), adopted 8 Oct 07, at MSC83/28/Add.3.
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Transit Passage and Users’ Contributions to the Safety of the Straits of Malacca and Singapore Hiroshi Terashima1 Abstract UNCLOS provides that user States and states bordering a strait should by agreement co-operate in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation, and for the prevention, reduction and control of pollution from ships. However, although the agreement to cooperate based on Article 43 has been in effect for 13 years, it has yet to be put into practice. A historic breakthrough was accomplished when the Cooperative Mechanism proposed by the littoral States, consisting of the Co-operation Forum, the Project Co-ordination Committee, and the Aids to Navigation Fund was agreed to at the ‘Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection’ by the representatives from the littoral States, user States, the shipping industry, and many other stakeholders who participated in this meeting in September 2007.
1
Executive Director, Ocean Policy Research Foundation. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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This agreement not only realizes the intent of Article 43 for the first time, but surpasses the content of cooperation envisioned at the time UNLCOS was adopted. Most notably, it portends a new kind of cooperation on the part of the direct beneficiaries of straits passage, the shipping industries, who are considering voluntary cooperation as part of their corporate social responsibility (CSR), a 21st century concept. The author will focus on the new mechanism of cooperation between the stakeholders in the Straits of Malacca and Singapore, including the littoral and user States, the shipping industries and others, and discuss its contents in detail.
1.
Article 43 of UNCLOS and Cooperation between Littoral and User States
The breadth of the territorial sea was defined as up to 12 nautical miles by UNCLOS, which entered into force in 1994. Thus, in the center of more than 100 straits, international waters that were once high seas under the traditional three-mile rule were lost. As a result, there was a shift in the legal principle applicable to vessels, from freedom of the high seas to innocent passage of territorial seas, and a new regime of international straits was adopted in UNCLOS to avoid inconvenience from the change as well as to secure freedom of over-flight. UNCLOS stipulates that all ships and aircraft enjoy the right of transit passage, which shall not impede continuous and expeditious transit and over-flight of the straits used for international navigation between one 358
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part of the high seas or an Exclusive Economic Zone and another part of the high seas or EEZ. Giving consideration to the states bordering a strait whose sovereignty is restricted by that provision, UNCLOS provides that user States and states bordering a strait should by agreement co-operate in the establishment and maintenance in a strait of necessary navigational and safety aids or other improvements in aid of international navigation, and for the prevention, reduction and control of pollution from ships2. In other words, this provision requires user States to cooperate in the establishment and maintenance of safety aids for navigation and other necessary measures in return for using the territorial seas of littoral States for international navigation. The phrase ‘should by agreement cooperate’ in Article 43 is generally interpreted as recommending cooperation by agreement. This kind of proactive cooperation article regarding safety of navigation and pollution prevention in international straits was not stipulated in the 1958 Territorial Sea and Contiguous Zone Convention. However, although the agreement to cooperate based on Article 43 has been in effect for 13 years, it has yet to be put into practice. In the following, I would like to talk about cooperation between the stakeholders in the Straits of Malacca and Singapore, including the littoral and user States, the shipping industries and others.
2. Importance of the Straits of Malacca and Singapore and Japan’s Initiative on the Safety, Security and Environmental Protection of the Straits 2
UNCLOS Article 43.
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The Straits of Malacca and Singapore, connecting the Indian Ocean and the East China Sea, are areas of vital importance to world maritime transport. They are especially important as the transport route for oil from the Persian Gulf to Northeast Asia, representing a lifeline for the continued growth of the East Asian economies, especially those highly dependent on Persian Gulf oil, including Japan, Korea, and China, whose oil imports have soared in recent years. An example of user-littoral States cooperation urged in Article 43 can be seen in the cooperation for navigational safety, environmental conservation, etc., between Japan as the principal user State of the Straits of Malacca and Singapore and the three littoral States. The littoral States of Malaysia and Indonesia declared territorial waters of 12nm in the Straits from around 1970, asserting their rights in opposition to the internationalization of the Straits. At that time the main user State, aside from the littoral States, was Japan, who then began to cooperate with the littoral States in navigational safety, anti-pollution, and anti-piracy initiatives necessary to ensure safe and smooth navigation in this essential route for transporting oil from the Middle East. Japan, a non-littoral but main user State of the Straits, has consistently provided financial and technical cooperation on hydrographic surveys, developing nautical charts, removing sunken ships, building and maintaining aids to navigation, donating buoy tender ships, oil spill response measures and others to the littoral States since 1969. The total amount of financial cooperation up to now is more than USD150 million, of which eighty per cent is from the Nippon Foundation. It could also be said that these cooperative arrangements became the international cooperation model after UNCLOS. 360
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Japan has also taken the lead in regional anti-piracy initiatives by hosting the Meetings of Heads of Marine Law Enforcement Authorities in Asia and by advocating the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia.
3. Growth and Change in Straits Usage and Developments in Measures for Navigation Safety, Environmental Conservation, and Security
From the 1990s to the early 21st century, usage of the Straits of Malacca and Singapore entered a new stage. Along with the increase in number, tonnage and size of ships passing through the Straits as the Asian economies grew, there was also more variety in vessels, with tankers, container ships, and ro-ro carriers increasing. Table 1 Growth and Change in the Straits’ Usage3 ●Number
estimate 75,061 93,755 +25% ●Dead Weight Tonnage (DWT 1000M/T) 2,503,755 3,989,321 +59% ● Average Size of Vessel 33,000
43,000 +28%
141,000 +60% 6,400,000
+50%
45,000
+13%
The end of the 20th century also saw big changes in the increase in use by Northeast Asian countries such as China, and Korea, by littoral 3
Ministry of Land, Infrastructure and Transport, Japan ‘Survey of Traffic through the Straits and Japanese perspective on International Cooperation’ 2006.
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States, and by European countries. Japan was no longer the sole major user State. For countries such as China and Korea, whose oil imports from the Middle East increased dramatically, the importance of the Malacca and Singapore Straits as oil import lifelines became a common concern. Beginning in the 1990s, frequent collisions due to overcrowding began to occur, making navigational safety again an issue of major concern. The amount of oil spilled in the collisions was of a magnitude greater than that spilled in the 1970s, with serious consequences for the environment. In response to these conditions, the 1990s also saw major improvements in measures for navigational safety, environmental conservation, and security in the straits. To guarantee safety in the Straits, in 1998 the Traffic Separation Scheme (TSS) established in 1981 was extended to 500 kilometers, covering most major areas of the Straits. The Vessel Traffic Information System (VTIS) came into effect at the same time. On the occasion of the TSS extension, navigational channels were re-surveyed, new navigational aids were put in place, and replacement of buoy-tender ships necessary to maintain the navigational aids were built. However, the resulting expenditures for these measures to improve safety in the Straits continued to rise, imposing a great financial burden on the littoral States. For some states, the costs became prohibitive. It was against this background that the lack of burden sharing or contribution for safety measures by user States and the shipping industry brought the question of cooperation between the littoral States and user States and users back to the forefront. 362
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In the 1990s the number of piracy incidents also rose sharply in the Straits, and, while peaking in the first years of the 21st century, imposed additional burdens on littoral States and international society. Furthermore, since the 9/11 terrorist attacks, the strengthening of security measures in the Straits has become a common concern for both littoral and user States. 4. The Meeting of the Straits of Malacca and Singapore: Enhancement of Safety, Security, and Environmental Protection
It is against this background that the three littoral States of Indonesia, Malaysia, and Singapore have been cooperating with the IMO since 2005 to hold the ‘Meeting on the Straits of Malacca and Singapore: Enhancing Safety, Security and Environmental Protection.’ Following on the Jakarta Meeting in 2005 and the Kuala Lumpur Meeting in 2006, the Singapore government, in cooperation with the IMO, hosted another meeting in September 2007. Representatives from the littoral States, user States, the shipping industry, and many other stakeholders participated in this meeting. Building on the gains made at the previous two meetings and enjoying active participation by the attendees, it was agreed that the Cooperative Mechanism proposed by the littoral States, consisting of the Co-operation Forum, the Project Co-ordination Committee, and the Aids to Navigation Fund, should be supported and encouraged. It was also agreed that the user States, the shipping industry, and other stakeholders should seek to and endeavor to contribute, on a voluntary basis, to the works of the Co-operative Mechanism, and that the projects presented at 363
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the Kuala Lumpur Meeting or parts thereof which have not yet attracted sponsors should be supported. ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
Table 2 The Projects Proposed by Littoral States Project 1: Removal of wrecks in the Traffic Separation Scheme in the Straits of Malacca and Singapore Project 2: Co-operation and capacity building on Hazardous and Noxious Substance (HNS) preparedness and response in the Straits of Malacca and Singapore Project 3: Demonstration Project of Class B automatic identification system (AIS) transponder on small ships Project 4: Setting up a tide, current, and wind measurement system for the Straits of Malacca and Singapore to enhance navigation safety and marine environment protection Project 5: Replacement and maintenance of aids to navigation in the Straits of Malacca and Singapore Project 6: Replacement of aids to navigation damaged by the tsunami incident in December 2004
Six concrete Projects for navigation safety and environmental protection, promoted under the aegis of the Cooperative Mechanism, received declarations of support from many countries and stakeholders, based on their respective assessments of the situation. As for details of the cooperation, while there is still a need for further discussion, various expressions of support have been made for projects other than Project 1. 364
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Table 3 Status of support by different countries for the projects proposed by the Littoral States •
China：Support for Projects 2, 4, and 6（work already begun on 2 and 6）
• • • • • •
Japan：Declaration of support for Projects 3 and 5 Korea：Declaration of support for Projects 3 and 5 Australia：Declaration of support for Projects 2 and 3 United Arab Emirates：Declaration of support for Project 5 United States：Support for Projects 2 and 4（along with China, work already begun on 2） Nippon Foundation：Declaration of financial support for Project 5
Especially noteworthy among these declarations are the following: a. Declaration of financial support for Project 5 by the oil-producing United Arab Emirates. This is noteworthy as it is the first case of a producer country whose resources are transported through the Straits to explicitly identify itself as a user State, thus expanding the definition. b. The Declaration by the Nippon Foundation of financial support for project 5 to the amount of 1/3 of the budget for the first 5 years, on the condition that members of the international shipping 365
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industry also make contributions based on their responsibility as corporate citizens.
5. A Historic Breakthrough and Landmark Achievement in Co-operation
As noted in the Singapore Statement, the establishment of the Co-operative Mechanism brings to realization the spirit and intent of Article 43 of UNCLOS. This agreement not only realizes the intent of Article 43 for the first time, but surpasses the content of cooperation envisioned at the time UNLCOS was adopted. Its practical accomplishments are: a. The participation by not only the littoral and user States but also the shipping industries and a variety of other stakeholders. b. A focus on contributions by the direct beneficiaries of the straits passage, the shipping industry, especially as it paves the way for businesses to make voluntary contributions as part of their social responsibilities. c. The establishment of the Aids to Navigation Fund to secure the extensive financial support necessary to maintain and replace navigational aids. The role of this fund will be to serve as a pool for voluntary contributions by a variety of stakeholders including oil producing countries and the shipping industries. Furthermore, we cannot overlook the significance of Japan’s Nippon Foundation, which has contributed so much in the past towards 366
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safe navigation measures in the Straits. In its unique capacity as a public welfare oriented grant-making organization, the Nippon Foundation declared financial support for the Aids to Navigation Fund, encouraging the direct beneficiaries of the straits passage, the shipping industry, to actively participate and cooperate in the Cooperative Mechanism. Also, encouraged by the Nippon Foundation’s efforts for navigation safety, INTERTANKO, ICS, BIMCO, and other international shipping organizations have expressed their support for the Cooperative Mechanism. Also, the Nippon Foundation’s initiatives led to the establishment of the Aids to Navigation Fund, an important factor in providing momentum for not only the shipping industries but also user States to actively participate in the Cooperative Mechanism.
6. Shipping Industry’s Corporate Social Responsibility Activities and Voluntary Contributions
The Cooperative Mechanism that was agreed upon has since captured the imagination of many people, especially as it portends a new kind of cooperation on the part of the direct beneficiaries of Straits passage—the shipping industry, which considers voluntary cooperation part of corporate social responsibility (CSR), a 21st century concept. Along with increasing economic globalization, more and more people around the world are becoming dependent on safe and smooth passage through the Straits. The unprecedented amount of goods and materials passing carried through the Straits by the shipping industry thus provides sufficient financial resources to allow them to address Straits issues as part of their CSR. 367
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However, the shipping industry is especially worried that their response in the Malacca and Singapore Straits might easily set precedents for other straits. If the burden sharing were to be made mandatory we believe their cooperation would be much more difficult to obtain. The issues involved are complex, so that even voluntary cooperation requires much discussion and analysis on the part of the shipping industry to sort out all the difficulties. Given this, the voluntary contribution as part of their CSR would be a wise option for cooperation and their current positive consideration towards cooperation is most welcome. From this perspective, the efforts by the Nippon Foundation to encourage voluntary cooperation from the shipping industry as part of its CSR activities, and the timely response and arrangement to this by the littoral States deserve much respect. This agreement to build a Cooperative Mechanism through the cooperation of such a variety of stakeholders is an important first step towards making the mechanism for cooperation among the littoral States, user States, shipping industry, and other stakeholders a reality. I look forward to rapid concrete implementation of this worthy goal in the near future.
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Edited Transcript of Question and Answer Session Panel IV: Transit Passage through Straits Used for International Navigation
Mrs. Mary Seet-Cheng: The three speakers have raised many issues that we can debate. We also need to take into account the Panel I introduction by our luminaries of UNCLOS that provided background on the freedom of navigation provisions of UNCLOS, particularly the fact that this was all a carefully balanced package of compromises between the rights of coastal States and user States, the importance of respecting the legacy and integrity of this careful balance, and also raising the concerns about threats of creeping jurisdiction by coastal States for regimes like the straits used for international navigation, archipelagic waters, the EEZ, and of course the very useful article contributed by Mr. Satya Nandan on the background. So, I would invite questions and comments. Dr. Sam Bateman: Predictably, I am going to provide a comment on the Torres Strait. I should wear my Australian hat here and say that my association is the University of Wollongong. The main fear with the critics of the Torres Strait pilotage regime seems to be that it creates a precedent for other straits around the world. That, of course, makes the presumption that all straits are the same. Yet UNCLOS itself of course recognizes in Article 35 and 38 that all straits are not the same. Straits differ greatly in terms of navigational difficulty, width, depth, environmental sensitivity, level of shipping traffic, and so on. There is no doubt that the Torres Strait, particularly the route that goes through Prince of Wales channel and up the Great Northeast Channel—which is the one that the Transit Passage Regime applies to, which has a relatively low level of shipping traffic—especially that particular route, is one of the most navigationally difficult passages in the world routinely used by large vessels. Now if anybody should question that, I just happen to have a 369
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chart of the Torres Strait with me and could well point out—particularly to the seafarers—just how difficult navigation through the Torres Strait is. I’d like to refer in particular to one characteristic of the Torres Strait that separates it from most other international straits; that is that there has been a pilotage service available in the Torres Strait for something like 125 years. The pilotage service, particularly up the Great Northeast Channel route, was set up in the 1880s. Ships until quite recently, perhaps, say 20 or 30 years ago, ships using that Great Northeast channel routinely took a pilot. It has only been in the last couple of decades that it has dropped off. The factors that explain the dropping off are relevant to our consideration of the regime; things like growing concerns about countries accepting flag State responsibility for the navigation or safety of their ships, concerns about the environment, and the economic imperative of ships’ owners. Those kinds of factors lay behind the fact that to some extent navigational safety has dropped down the list to some extent. When you couple that also with increasing concern around the world about the human effect or the human error in ship accidents, You have some of the background lying behind Australia’s concern for this decline in the number of ships through that Great Northeast channel and the decline in the number of the ships that are actually accepting a pilot. Mrs. Mary Seet-Cheng: That seemed like a comment with no questions attached to it. Would the panel like to comment on the comment? Professor Robert Beckman: I note that he doesn’t make a legal argument. The issue on the Torres Strait is that many of us are very sympathetic to the environmental concerns of Australia. The real question is whether you can meet your needs on promoting compliance with the pilotage system in a manner that is consistent with international law. My view is that Australia jumped the gun by acting unilaterally in an unlawful way before exhausting all means. You’re taking measures now to have a full VTS in the system. There would have been room to, through the 370
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shipping organizations, through other coastal States and flag States, to get compliance with the pilotage system to the point where it was almost 100 per cent. It was just easier for you to take the route to make it mandatory. One other comment in response to Patrick’s comment on the port State jurisdiction. In my mind, it is very clear that Australia is acting unlawfully when it passes regulations that say if you go through the Torres Strait without a pilot and you come back into an Australian port voluntarily any time within three years, you are subject to a fine of AUD 250,000. This is an unlawful use of port State control. Port State control under the Convention is regulated by Article 218. Other than 218, which concerns illegal discharges, the only thing you can do is prevent entry into your port of a ship that goes through the Torres Strait without taking on a pilot. You cannot two years later allow them in and then have an outrageous fine. Again, the law is inconsistent with UNCLOS. Australia has no authority under UNCLOS to pass a law making it a crime under Australian law to fail to take on a pilot. You are limited by Article 42. Captain Patrick J. Neher: The only comment I would add is I agree with Sam, in part at least, about the creeping coastal State jurisdiction in international straits and the EEZ, which is reflected in my last slide, which quotes from the EC Green Paper. In large measure, that creeping jurisdiction is caused by the failure of flag States to exercise what is expected of them under the Convention. I agree with that. I don’t agree that the solution for a lack of responsible flag State action is for coastal States to exceed their authority under the Convention to try to unilaterally assert control at the expense of navigational rights and freedoms. I mean it’s obvious. It’s not just the Torres Strait. Every strait is different, but every strait is the same under the law. The precedent is not that someone with a different strait that is arguably less environmentally sensitive than the Torres Strait might have a little less authority to violate the Convention. It is not a sliding scale of violation based on environmental sensitivity. The precedential worry we have, Sam, is that when Australian 371
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ships—and not just navy ships (sovereign immune vessels), but regular commercial vessels—are taking supplies to reinforce our folks on the ground in CENTCOM, they’ve got to go through a couple of straits. Do we want to set a precedent that allows States bordering straits to assert regulatory control that puts one of their nationals on the ship as a condition to exercise your right of transit passage? I mean, it’s “no”! We don’t. Do we? Dr. Sam Bateman: The main concern with the Torres Strait—and yes it is an environmentally sensitive area—is that navigational safety and the navigational difficulty of the Strait are key factors. It can be argued, and indeed Australia has argued, that in fact, you are enhancing navigational safety for the reasons I’ve mentioned by implementing that compulsory pilotage service. It is a fact that enhances safety of navigation. Captain Patrick J. Neher: What I am hearing you say, Sam, and I don’t want to put words in your mouth, but I think I just heard you say that you are in compliance with 42 subparagraph 1. It’s a safety of navigation basis. But that takes you to Article 41. I’m sorry, but the record is clear. IMO did not approve compulsory pilotage even if they had the authority to approve compulsory pilotage, which we don’t think they have the authority to do. Are you saying that it’s a sea lane traffic separation scheme measure approved by IMO? Is that the argument? Professor Robert Beckman: No, what he is saying that if we do anything to improve the environment or navigational safety, they can do it. Captain Patrick J. Neher: Believe me, I know what it is like dealing with environmentalists. Mrs. Mary Seet-Cheng: Okay, before I ask Michael and the lady out there, perhaps we should just follow through with the current discussion 372
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on the Torres Strait first. If your question is on the Torres Strait I will allow it. Who else would like to comment on the Torres Strait? I will give preference to Mr. Martin Tsamenyi. Professor Martin Tsamenyi: I am not going to get into legal arguments on this point. Any of you who have worked on a marine environment would know that the Law of the Sea exists in at least two respects. You can be very legalistic about the Law of the Sea and ignore where reality is. If you are a policymaker or a marine manager, you tend to take a different perspective. You balance the legal regime and harmonize it with environmental outcomes. From what Bob said, I got the impression that he would have been happier for Australia to go through a diplomatic process, drag it on for ten years (until there is a disaster) and then address it. Why didn’t Australia wait and go through the process that didn’t take into account the consequences of environmental damage? To me, that is a purely legalistic argument, which I accept, but you have got to balance the Law of the Sea legal interpretation with practical realities of managing the marine environment, which is not easy. Basically, that’s the comment I need to make. Mrs. Mary Seet-Cheng: Let me ask Tommy Koh. Captain Patrick J. Neher: Can we respond to that though? Mrs. Mary Seet-Cheng: Hang on, Patrick. Can we let Tommy Koh say his piece first? Ambassador Tommy Koh: Thank you. I speak as someone who had the privilege of chairing both the UN Conference on the Law of the Sea and the negotiations at the Earth Summit. I care equally for the freedom of navigation and for the protection of the maritime environment. I believe that it is possible to reconcile the two. The disappointment with Australia 373
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is based partly on my respect for Australia as a law-abiding country and as a country which participated in the small negotiating group which produced the consensus text on straits. Instead of acting as a guardian of that text, Australia has acted in a manner which is not consistent with it. In addition, Australia has also not acted in a manner consistent with the IMO’s decisions on the matter. My question to Australia is whether it is willing to reconsider its position on compulsory pilotage. I would also like to ask Mr. Terashima whether the shipping industry would participate in the cooperative mechanism created by Indonesia, Malaysia and Singapore, pursuant to Article 43 of UNCLOS regarding the Straits of Malacca and Singapore. The cooperation mechanism was adopted at an IMO meeting held in Singapore in September 2007. Mrs. Mary Seet-Cheng: I would just like to ask the lady whether her point is about Torres Straits. Yes? Please. Ms. Penny Burtt: I apologize for being yet another Australian to take the floor this morning. I would like to thank both Sam and Martin for their comments and, of course, Ambassador Koh and the speakers this morning. I just wanted to take the opportunity to put the view of the Australian government on the record on the Torres Strait. I don’t want to extend that debate unnecessarily and go over ground that has already been touched on this morning; I simply want to note that the Australian government does not accept the view that its system of compulsory pilotage in the Torres Strait is illegal as implied by Professor Beckman. As Professor Koh has just said, we are actually law-abiding citizens in Australia, and we do believe that what we are doing is consistent with international law, including UNCLOS. We don’t believe that the system has actually got the practical effect of denying, hampering, or impairing the right of transit passage. As Sam Bateman just pointed out, these are very narrow and difficult waters, and we believe the system we have introduced actually assists in passage and promotes transit passage by ensuring that the Torres 374
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Strait remains open. For any further details on the Australian government’s position, I would refer you to our submission to the IMO. Mrs. Mary Seet-Cheng: Now I would like us to consider the panel’s response on Tommy Koh’s points or to counter any of the points that have been made on the Torres Strait, after which Mr. Terashima would please answer the questions on the corporation mechanism. Professor Robert Beckman: I’d like to respond to Professor Koh’s comment. There is clearly an irreconcilable dispute in this in that Australia now has what it wants. It has taken action of questionable legality, but reports are that there is almost 100% compliance with the pilotage system. So it is not in a position where it is going to want to bargain and back away from that. We are back to Session I where we talked about how you have a dispute as to interpretation or application of the Convention. The options for the States that oppose it are obvious. You can let it be and, therefore, there will be this questionable legality. Enough bells have been rung that the IMO is never going to approve a similar situation again, so you’ll have a one-off precedent. But if you want to stand on principle, your only option is to resort to dispute settlement under Part 15. There is a very strong case. We’re back to the issue that some day Law of the Sea disputes may be like trade disputes. When there are honest differences, when people take action of questionable legality because for domestic political reasons they believe are necessary, or are politically expedient, or politically necessary, and they act illegally, then someone has to be in a position to challenge them. If they do not challenge them, the unlawful action will become a precedent for others because others will say if Australia did it then we can do it, and so on. So it is really a question, you negotiated Part 15 on dispute settlement, the most complex dispute settlement system in any convention, but there is an extreme reluctance to use it. If you don’t use it, the status quo remains. 375
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Mrs. Mary Seet-Cheng: Patrick, your comments please on the issue of bilateral consultations between the United States and Australia. Captain Patrick J. Neher: Yes, we have had bilateral consultations. At one point, we thought we were making process. We don’t feel that way anymore. Of course, we are always going to continue to dialogue with such a good friend and ally as Australia. I have three comments to make. First is the question of what are your options to try to ensure compliance with international law. Now this is going to sound ironic coming from the United States, but hang with me here folks. I think we’re going to accede to the Convention this year. I have spent the last year of my life—along with Ashley and a couple other colleagues of his at the State Department—really leaning into Senate accession. The Senate Foreign Relations Committee voted out the Convention 17 to 4 in favor on the 31st of October. It is now on the Executive Calendar for the majority leader of the Senate. I don’t want to get out of my lane and predict what the Senate is going to do, but I read the score sheet that the State Department Senate Liaison Officer maintains. Right now, if there was a vote, we’d be a member. It is going to be interesting to see what happens over the next couple of months. Are we going to get a vote and if we get a vote, what happens? I am optimistic. Now, why am I mentioning that? The briefs we have been given over on the Hill feature the Torres Strait front and center as an example of how we in the United States are disadvantaged by not being a member to the United Nations Convention on the Law of the Sea. When you are not a member of the Convention, you cannot avail yourself of the peaceful dispute resolution procedures. What are the tools that are left in your toolkit at that point? Diplomatic discussion, which we are pursing with limited success, or military freedom of navigation assertions. I don’t think we are going to take the 7th Fleet and sail it into Sydney to try to compel Australia to rollback its unlawful Torres Strait compulsory pilotage regime. So realistically, what do you have left? I 376
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also can’t speak for the United States government on whether we are going to bring a case against Australia. But I can tell you this, I have been briefing Senators and on the Hill and I have been telling them that if we become a party to the Convention, we and the Defense Department are going to push as our first order of business to bring a case against Australia. I cannot underestimate how important the compulsory pilotage regime is in Torres Strait. This is potentially the beginning of the end of the balance that was struck under the Convention. It cannot be overstated how important this is. Now, on the issue of if I were an environmentalist I’d have a different perspective—well, maybe I would. I happen to agree with Ambassador Koh that you can achieve navigational freedom and environmental protection. I am not as optimistic as Bob that this would be a one-off not to be repeated. Get on the Internet and look at the environmental networks that are out there. Everyone is watching the Torres Strait. They know that the Torres Strait stands for something and it is part of a desire, as reflected in the Green Paper, to extend coastal State authority in the EEZ and over ships engaged in transit passage. I am very worried that if environmental protection develops as an independent source for regulatory control over navigational rights, extra-judicial—that is, in the sense of outside the Convention—that there is a movement in customary international law to move beyond the Convention and allow environmental protection to support coastal State regulatory control at the expense of high seas freedoms in the EEZ or transit passage in straits used for international navigation. I am very concerned about the security implications for that and the economic implications for that. We can argue about whether globalization is a good thing or a bad thing. I don’t know, I just know it’s real. Freedom of navigation underpins the global prosperity that we all enjoy right now. It also underpins the security that we all enjoy right now. You cannot lead and nurture an international coalition of coast guards and navies dedicated to maintaining security against the 21st-century threats we face if navigation is subordinated to
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coastal State authority in straits used for international navigation and the EEZ. It’s just that simple. Mrs. Mary Seet-Cheng: The Australians now have a case to push for the Americans not to join UNCLOS. We still need Mr. Terashima to answer Tommy Koh’s question on the corporate mechanism. Hiroshi Terashima: The shipping industries are very positive in their efforts to participate in the corporate mechanisms. The shipping companies anticipate that the mechanism adopted by America and Singapore might easily set a precedent for other straits. Mrs. Mary Seet-Cheng: So the answer is that the shipping industry is thinking about coming into the corporation mechanism? Hiroshi Terashima: Yes. The Nippon Foundation and the shipping industry have been meeting. Mrs. Mary Seet-Cheng: Tommy has also asked what the Nippon Foundation can do to get the Europeans involved. Hiroshi Terashima: Yes, the Nippon Foundation is very positive about inviting the shipping industry together with the Nippon Foundation for the establishment of the navigation regime in the Malacca Straits. Mrs. Mary Seet-Cheng: Okay, the littoral States and the Nippon Foundation will work together on that. Now Michael Richardson has been very patient. I hope his question concerns something other than the littoral States because we should end our discussion on the littoral States. Mr. Michael Richardson: Thank you, Mary. My question is for Patrick Neher, and it is on the Proliferation Security Initiative. You mentioned 378
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that in the space of barely four years, the open support base for the PSI has grown from 11 to 88 states, almost half the total membership of the United Nations. Assuming the United States itself, as you hope, ratifies UNCLOS —sooner rather than later, hopefully within the next few months—and that the United States and other strong advocates of the PSI can persuade other states, among them India, Indonesia, and Malaysia, that could clearly play a very important role in the PSI process, to join and ultimately support and work with it. At what point would the PSI support base reach the kind of critical mass of sovereign State support that would allow you, if you wish to do so, to roll it back from being a partnership or coalition of the willing, into the United Nations framework, perhaps within the IMO, and thereby give it greater legitimacy, international legitimacy, and creditability, and, like a snowball rolling downhill, further increase the support for it? Captain Patrick J. Neher: Great question. A couple of things I would like to say are sort of related to that. I can’t predict what the magic number of countries is to achieve that critical mass, but again not being a party to UNCLOS also hurts us in the PSI. It is so ironic. Here we have a legal regime, UNCLOS, which grants authority to do interdictions and then recognizes, both in the preamble and in the opening clause of Article 110, that there are additional authorities that derive from powers confirmed by treaty. It is a complimentary system of interdiction, flag State consent, port State control, interdictions on the high seas with flag State consent, etc. We have PSI, which requires compliance with UNCLOS, and yet because the United States, one of the leading PSI countries, is not a party to UNCLOS, it makes it very difficult to persuade countries that they should join. Right now, I have to say trust me; when I say that this is all done in accordance with UNCLOS, you just have to trust me. We all know the state of the credibility of the United States these days. We have dug ourselves a pretty good hole over the last few years and we’re trying to get out of that hole. So “trust me” doesn’t work 379
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today the way it did years ago. We’re making progress. If we become a party to UNCLOS, we will then expand the number of countries, if not as endorsing States, we will at least get some folks here regionally to become more involved in observing exercises or participating as non-endorsing states in some of the meetings and exercises. Would we be interested one day in formalizing this to gain additional legitimacy? That is kind of outside of my lane. I have to punt that to Ash Roach. I can tell you my personal view is that I wouldn’t have a problem with that. The maritime security operations in the future are going to require that nations accept the fundamental truth that no nation can control what happens across its borders or in its offshore waters today the way they could before. The only way to maintain credible maritime security in the future will be through cooperation with other countries. By definition, that means accepting that each nation has its own political limitations, its own constraints, its own authorities, and the art of maritime security operations in the future will be to figure out how to respect those differences, minimize them to the extent you can, build capacity so that there is commonality in approach to the extent you can, and to the extent that you can achieve universal legal understandings to underpin those activities; all that is a step in the right direction. It would be great if we could get enough countries on board to formalize it and make it easier for other nations to participate even more than they do now, but I can’t predict what that critical mass is. Mrs. Mary Seet-Cheng: We are running out of time and I want to give the last word to the lady in pink. Dr. Charlotte Breide: My question is for Patrick Neher and perhaps Bob Beckman. It concerns another example of creeping jurisdiction, which is the directive on ship source pollution. Our firm has been representing the industry coalition headed by INTERTANKO. My personal view is that I don’t like what the EU is trying to do. Given Patrick’s strong views about 380
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what Australia is doing in the Torres Strait, it would be very interesting to hear non-EU member states’ views on what the EU is trying to do and the effect it will have on non-member states and foreign vessels. Mrs. Mary Seet-Cheng: Okay, the question is regarding the EU directive on ship source pollution. Captain Patrick J. Neher: I don’t know what EU intends to do. I understand the specific proposals, I read their reports, I get a sense that they want to move customary international law beyond that allowed in the Convention. That gives me concern. They’re getting creative in the way that they want to address what they see as the limitations set forth in UNCLOS. A broader answer to your question is, we’re very concerned that the EU is very much interested in pushing the law beyond UNCLOS. Ship source pollution is just one of a laundry list of probably a dozen topics that they have in one way or another stated a desire to assert regulatory authority. Professor Robert Beckman: The shipping industry has a legitimate concern about what they would call the criminalization of sea-farers and the legislation reaching out to try to put masters in jail for negligent acts that cause pollution. This should be looked at very carefully and it should be challenged. I look at what the EU is doing as trying to impose its values on the rest of the world in the sense of the environmental movement. It is on one hand pressuring the IMO to make the rules on ship source pollution stricter and stricter with the threat that it will either pull out of the IMO system or go unilateral. Usually, it’s the Americans that do things like that, but they’re learning. That is a very dangerous development, and it is up to the Asian states and other states at the IMO to try and draw the line. My own view on the INTERTANKO case is that they took the wrong case to fight the battle. The Advocate General’s opinion—which I’ve been sent—is that they may have wasted a little bit 381
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of money challenging this one because they’ve interpreted it as to be consistent with UNCLOS, which is a good development. Some of the actions taken by the EU countries, such as the escorting of ships out of the Exclusive Economic Zones, were grossly illegal and a great interference with freedom of navigation. Mrs. Mary Seet-Cheng: Okay, we’ve run out of time. I’m sure this issue will resurface in our next panels when we talk about ship-based pollution, but I think today’s session on transit passage regime indicates just the points that Professor Tommy Koh had brought up yesterday in Panel I: that this is a very carefully balanced package, the importance of maintaining its legacy and integrity, and the concerns about creeping jurisdiction, which will upset the balance. We’ve seen how controversial the Torres Strait pilotage scheme is. That is going to be a continuing saga with very important positions taken by the Department of Defense of the United States, which we will all watch with a lot of interest.
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PANEL V: ARCHIPELAGIC SEA LANES PASSAGE
Archipelagic Sea Lanes Passage Designation: The Indonesian Experience Arif Havas Oegroseno* Abstract The 1982 United Nations Convention on the Law of the Sea (UNCLOS), which gave birth to a new legal regime at sea, has been regarded as a constitution of the sea that strikes a balance between the interests of coastal States and the international community. Part of this delicate balance is the recognition that the waters among the islands of archipelagic States that previously were international waters now fall within the sovereignty of the archipelagic State with a balance that the relevant archipelagic State shall guarantee freedom of navigation through its archipelagic waters. Ships navigating through archipelagic waters are guaranteed the right of transit passage, while the relevant archipelagic States have the obligation to designate archipelagic sea lane (ASL) passage. Indonesia, being the largest archipelagic State in the world, has designated major archipelagic sea lanes passages which were all encapsulated in the Government Regulation No. 37/2002. Those sea lanes passages were designated as ASL I for the navigation between the South China Sea and Indian Ocean, ASL II for the navigation between the Sulawesi Sea and Indian Ocean and ASL III for the navigation between Timor Sea to the Pacific Ocean. The process of designating such lanes was done in several different stages within a certain time frame involving surveys, national coordinating meetings, consultation with relevant neighboring and other interested *
Director for International Treaties on Political, Security and Territorial Affairs, Department of Foreign Affairs Republic of Indonesia. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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States which culminated in the acknowledgement of Indonesia’s designation in the International Maritime Organization (IMO) processes. Recent developments have necessitated that Indonesia review the existing ASL passages which were regulated under the Government Regulation No. 37/2002. In this regard, the paper attempts to generally describe Indonesia’s experience in designating its ASL passages, how other archipelagic States may learn from the process, and the latest developments that may necessitate a review of those existing ASL passages.
1.
One of the most difficult and contentious issues that was deliberated over during the Conference on the Law of the Sea was the status of the waters between the islands of archipelagic States. In the past, the status of the waters between the islands of such an archipelagic State was governed under the regime of international sea. Such a condition is very disadvantageous to the interests of the archipelagic State. The waters between these archipelagic islands, instead of becoming a uniting element of the nation, in fact became the barrier of the unity and integrity of the archipelagic State. Compounded with the limited breadth of territorial sea, the then-existing geopolitical structure of an archipelagic State was a state with many pockets of sovereignty separated by international waters whereby other nations could exploit the adjacent waters for various purposes ranging from economic exploitation to security objectives.
2.
It was due to these circumstances that lndonesia proclaimed itself as an archipelagic State, Negara Kepulauan, on 13 December 1957 by virtue of the Prime Minister Djuanda Kartawidjaja Declaration, known as the Djuanda Declaration, which was followed by a promulgation of the Law 4/PRP/1960 on Indonesian Waters. It was 386
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seen as a controversial move by many countries in the world, including Indonesia’s neighbors. Many countries challenged that such a proclamation is contrary to the existing international law. However, the Indonesian position was firm as the territorial unity of Indonesia, an archipelagic State whereby its territories should be united, not separated by sea, was a fundamental question for the survival of a nation. 3.
On the other hand, the interests of other states to navigate in those waters need to be taken into account. The final result of the painstakingly long process of negotiation is the carefully balanced principle of archipelagic States in the 1982 Convention of the Law of the Sea whereby the interests of the archipelagic State to maintain its unity is respected but at the same time the interests to navigate through the archipelagic waters are also guaranteed. The Convention dedicated a comprehensive chapter on archipelagic States, i.e Part IV of the Convention, which contains nine articles (Articles 46-54). This balance was acknowledged as an essential element within the 1982 Convention.
4.
The recognition of the political and territorial unity of an archipelagic State was encapsulated in Article 49 of the Convention whereby it is stipulated that the sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines as well as the airspace, seabed, subsoil and the resources in the seabed and subsoil of the archipelagic waters. On the other hand, the interests for navigation are provided for in the form of archipelagic sea lanes passage which is rather similar to the transit passage in the straits used for international navigation. The 1982 Convention also provides a specific provision to cater to the interests of countries whose territories may be affected by the existence of archipelagic waters. Under the 1982 Convention, an archipelagic State shall 387
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respect existing agreements with other States, existing cables and recognize traditional fishing rights and other legitimate activities. 5.
The acceptance of the concept of an archipelagic State as a legal principle in international law can be essentially considered as the second proclamation of Indonesia. The first proclamation of Indonesia was the proclamation of its independence from the Dutch colonial power in 17 August 1945. Under the principle of uti possidetis juris, Indonesia inherited the Dutch territories, which were land territories in the form of islands across the Indonesian archipelago from Rondo Island in the north west of Aceh to the Province of Merauke of Papua with some territorial waters enclosing each and every island. The Dutch did not have waters between those islands, thus Indonesia did not acquire those waters by virtue of the principle of uti possidetis juris. The adoption of UNCLOS 1982 was indeed a second proclamation of Indonesia whereby Indonesia, as an archipelagic State, is guaranteed by international law to exercise sovereignty over the waters between its islands enclosed within its archipelagic baselines.
6.
In this regard, the balance that Indonesia would need to maintain in the acceptance of the archipelagic concept as international legal principle is to designate an archipelagic sea lane passage as envisaged in Article 53 of the 1982 Convention. It is indeed true to conclude that the designation of archipelagic sea lanes passage is not a mandatory exercise as demonstrated by the operative word “may” in Article 53.1 of UNCLOS 1982. However, due to the strategic location of Indonesia between two continents, Asia and Australia, and two great oceans, the Indian Ocean and the Pacific Ocean, and also the fact that a number of strategic straits are located in Indonesia, i.e., the Straits of Malacca and Singapore, the Sumba Strait and the Lombok Strait, there is a need to have sea lanes which 388
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are not duplicative so that it would enhance the safety of navigation, protection of the environment and the security of the maritime domain. 7.
Indonesia commenced the designation of archipelagic sea lanes passage in its waters in 1994 by conducting national surveys and completed national inter-agency coordination in 1995. In 1996 Indonesia held consultation with the International Hydrographic Organization (IHO) and began consultation with interested user states, such as Australia, Japan, the United States, and the United Kingdom on the designation of such archipelagic sea lanes passage. Indonesia also started its submission on the designation of the archipelagic sea lanes passage in the International Maritime Organization (IMO) in the same year, 1996. The 67th Meeting of Maritime Safety Committee of the IMO began the deliberation of the Indonesian archipelagic sea lanes passage designation. In 1998, during the 67th Meeting of the Maritime Safety Committee, the IMO adopted the designation of Indonesian archipelagic sea lanes passage.
8.
The Indonesian archipelagic sea lanes that were adopted by the IMO in 1998 consist of three north-south axes, namely the archipelagic sea lanes passage I (ASL I), the archipelagic sea lanes passage II (ASL II), and the archipelagic sea lanes passage III (ASL III) which were later officiated with a governmental decree, i.e., the Government Decree No. 37/2002 on the Indonesian Archipelagic Sea Lanes Passage. The ASL I has two branches, namely ASL I and I A which is located in the Karimata Strait. ASL I is intended to facilitate navigation from the Sunda Strait to the Natuna Sea and finally to the South China Sea. ASL II is intended for navigation from the Lombok Strait to the Makassar Strait and then to the Sulawesi Sea. ASL III has a couple of branches serving to facilitate 389
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navigation from the Timor Sea and the Arafura Sea to the Pacific Ocean through the Seram Sea and the Moluccas Sea. (Figure 1).
Figure 1: Indonesian Archipelagic Sea Lanes Passages
9.
The time after adoption of those three ASL saw an important development that could affect the existing ASL, namely the coming of East Timor as a new independent country. This new political development requires an adjustment of the designated ASL. In addition, there is growing thinking domestically to see the possibility of designating the east-west axis. The main reason for this thinking is that currently there are different versions of “routes used for international navigation” in the east-west axis, which vary from one user to another. This needs a thorough deliberation because the existing differing versions could create overlapping 390
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lanes that may not be conducive to the safety of navigation and protection of environment. 10.
Indonesia also experiences interesting interpretation of user states when they navigate within Indonesian archipelagic waters or within the ASL, namely the statement of some user states that when they are navigating or traversing in the archipelagic waters they often said that they are navigating in international waters. Clearly the legal status of archipelagic waters is within the sovereignty of the coastal State and the right of transit passage can not in any way affect that status. While Indonesia has been cautious in such situations, it has taken serious note of such interpretation. Indeed, a better understanding of the delicate balance that is so painstakingly negotiated is needed to avoid unnecessary confrontation.
11.
There is also a gap within the international law with regard to the legal principle of archipelagic waters. The Convention on International Civil Aviation 1944 (the Chicago Convention) has not been revised to reflect the current international law of the sea. Article 1 of 1944 Convention stipulates that every State has complete and exclusive sovereignty over the airspace above its territory. However, Article 2 of the 1944 Convention states that the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto. Clearly there is a need to revise the 1944 Convention to reflect the new development in spatial international law.
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Archipelagic Sea Lanes Passage and the Philippines Situation Alberto A. Encomienda1 Abstract The Philippines has not designated archipelagic sea lanes (ASLs) under UNCLOS although “in the box” thinking has been that the designation of archipelagic sea lanes is necessary for the orderly transit management of foreign vessels through archipelagic waters. A new policy thrust, however, takes the view that peace, good order, and security in its archipelagic waters, and in the State itself, may be better served through the application of, and focus on, internationally established protection measures for the marine environment while guaranteeing and facilitating freedom of navigation, in lieu of designation of archipelagic sea lanes. Specifically, the Philippines believes that the designation of the entire country as a Particularly Sensitive Sea Area (PSSA), and the consequent institution of associated protective measures (APMs) would address better the peculiar and particular circumstances of the Philippines as an archipelago and archipelagic State. Under UNCLOS Part IV, archipelagic States may or may not designate archipelagic sea lanes. In the latter case, foreign vessels may exercise the right of archipelagic sea lanes passage through routes normally used for international navigation. Moreover, transit passage through archipelagic waters cannot be confined to archipelagic sea lanes since foreign vessels can enter and exit archipelagic sea lanes at any time during the voyage, or navigate anywhere in archipelagic waters in the exercise of innocent passage. Declaring the country as a PSSA 1
Secretary-General. Maritime and Ocean Affairs Center, Department of Foreign Affairs, Republic of the Philippines.
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and instituting APMs to govern vessel transit in exercise of the right of archipelagic sea lanes passage and innocent passage would be a more practical arrangement in the Philippines for two reasons: 1) the entire archipelago is an ecosystem or eco-region by itself with delicate and rich marine biodiversity, and 2) the Philippines archipelago is composed of very closely-grouped islands such that practical application is impossible in regard to technical parameters under UNCLOS for designation of archipelagic sea lanes.
Introduction This Conference on the “Freedom of Seas, Passage Rights and the 1982 Law of the Sea Convention” is a forum to discuss key issues and challenges in dealing with passage regimes, activities in the Exclusive Economic Zone (EEZ), and protection of the marine environment in the context of the Southeast Asia maritime region. It bears highlighting that the geographic coverage of the Conference, a slightly enlarged version of which would include the three classic archipelagic States in the world, is an archipelagic continent with adjoining enclosed or semi-enclosed seas, traversed by regional and international shipping arteries. In this region of the world, the age-old and tradition-bound concept of freedom of navigation is critically tested against the transit passage of vessels under a variety of maritime jurisdictions, some recently established or refined under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Also in this region, customary rules relating to uses of the sea, especially navigation, have recently seen changes that may be considered as “progressive development.” We are all aware that these changes are not merely a matter of academic interest but rather relate to the pursuit of contending political and economic interests by the so-called maritime nations and coastal States. A balancing of interests is also needed in the matter of passage of 394
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vessels, specifically between freedom of navigation and the protection of the marine environment, and between the rights and duties of States in the EEZ. Regarding the latter, it might be useful for this Conference to take note of the results of a workshop sponsored by the Ocean Policy Research Foundation (OPRF) entitled the “EEZ Group 21 Workshop on the Regime of the Exclusive Economic Zone” held in September 2005 in Tokyo. Finally, further complicating the above ocean scenario is the existence of political flashpoints in the region, especially in the South China Sea. I shall limit myself to the subject of the exercise by foreign vessels of the right of archipelagic sea lanes passage, a new and as yet undeveloped regime under UNCLOS. This issue is of vital concern to the Philippines, as it impacts in a critical manner on the overall peace, security and good order of the archipelago due to special circumstances that I shall expound on later.
The Philippines Situation To give you a fair appreciation of the Philippines’ situation that defines its policy thrust, I wish first to illustrate the Philippines’ concern regarding the marine environment and the impact of shipping activities in its archipelagic waters. With all of its towns and cities located within a hundred kilometers from the coast, the Philippines may be considered as the quintessential coastal State.2 Sixty-two of its 71 provinces (78%), and 832 of its 1,541
2
The description of the Philippines as a quintessential coastal State is from the Partnerships in Environmental Management for the Seas of East Asia (PEMSEA).
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municipalities (54%) are coastal,3 and almost all of its major cities are situated along the coast.4 More than a coastal State, however, the Philippines is also an archipelagic State, conforming to the UNCLOS’ definition of said State as one “constituted wholly by one or more archipelagos and may include other islands.”5 What distinguishes the Philippines from other archipelagic States is the highly compact configuration of its islands and other geological features. In addition, the Philippines has been characterized as the “center of the center of marine biodiversity” in the world,6 and covers the greater part of the so-called “coral triangle”—an ocean space recognized by marine scientists as harboring one of the highest degrees of biological diversity.7 The country’s seas also embrace feeding and spawning grounds of the dugong (sea cow), butanding (whale shark), sea turtles, other endangered sea mammals and high-value commercial fish species such as 3
Department of Environment and Natural Resources, United Nations Development Programme, and Marine Environment and Resources Foundation, Inc. 2004. ArcDev: A Framework for Sustainable Philippine Archipelagic Development – Revaluing our Maritime Heritage and Affirming the Unity of Land and Sea. Philippines, 59 p. 4 Department of Environment and Natural Resources, Bureau of Fisheries and Aquatic Resources of the Department of Agriculture, and Department of the Interior and Local Government. 2001. Philippine Coastal Management Guidebook No.1: Coastal Management Orientation and Overview. Coastal Resource Management Project of the Department of Environment and Natural Resources, Cebu City, Philippines, 58p. Available at http://oneocean.org/download/db_files/crmguidebook1.pdf 5 UNCLOS, Article 46(a). See United Nations Convention on the Law of the Sea, Montego Bay, Jamaica, 10 December 1982, in force 16 November 1994. Retrieved from http://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf (hereinafter 1982 UNCLOS.) 6 Kent E. Carpenter and Victor G. Springer, "The Center of the Center of Marine Shore Fish Biodiversity: the Philippine Islands," Environmental Biology of Fishes (Springer), Vol. 72, No. 4, April 2005, pp. 467-480. 7 The Nature Conservancy, Southeast Asia Center for Marine Protected Areas. “Delineating the Coral Triangle, its Ecoregions and Functional Seascapes.” Report on an expert workshop, held at the Southeast Asia Center for Marine Protected Areas, Bali, Indonesia (April 30-May 2, 2003).
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tuna. The “tuna highway,” including important spawning grounds of certain species, traverses Philippine maritime jurisdictions. Whales and other cetaceans migrate seasonally to the warmer waters of the country. Recently, marine life forms previously undiscovered were found in the Celebes Sea, south of the Philippines.8 The country’s unique geographic, geological and maritime attributes, as described above, make it especially vulnerable to the risks associated with merchant and military shipping activities along the domestic and international shipping lanes that crisscross the archipelago. The potential impact of marine incidents and disasters on the Philippines is further amplified by the fact that 62% of the population is located in coastal areas,9 and coastal and marine resources are a vital source of livelihood in the country. The M/T Solar 1 incident of 200610 best illustrates the Philippines’ vulnerable situation, adversely affecting human health and livelihood, especially the fisheries and tourism industries, and thereby the national economy. The oil spill, though on a far smaller scale than the worst such disasters that have occurred around the world to date, nonetheless affected 20 communities in four municipalities of Guimaras Island, and threatened 27 and 17 communities, respectively, in the provinces of Iloilo and Negros Occidental. The initial economic valuation of the environmental, economic, and ecological damage to the country wrought by the spill,
8
Teves, Oliver. “Scientists Discover Rare Marine Species.” Associated Press, 16 October 2007. Available at http://news.yahoo.com/s/ap/20071016/ap_on_sc/new_marine_species 9 DENR, et. al. (2001). 10 The M/V Solar I, chartered by Petron, the Philippines’ largest oil refiner, was carrying 2.4 million litres of oil to the southern island of Mindanao when it sank on 11 August 2006 at Guimaras Island, several hundred kilometres south of the capital, Manila. The Philippines Coast Guard considered this incident as the worst oil spill in the country’s history. The spill has affected 20 communities in 4 municipalities in Guimaras, and was a threat to 27 communities in Iloilo province and 17 others in Negros Occidental.
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excluding the compensatory damages in terms of livelihood losses, is estimated at PHP 9,223.9 million.11
Sea Lanes Through Philippines Waters The Philippines is an archipelago of more than 7,100 islands.12 Located in the Western Pacific, between latitudes 21° 5’ N and 4° 23’ N, and longitudes 116° 00 E and 127° E, the country is surrounded by three prominent bodies of water: the Pacific Ocean on the east, the South China Sea on the west and north, and the Celebes Sea on the south. The country occupies a total marine area of 2.2 million sq. km., including its Exclusive Economic Zone (EEZ),13 with a coastline extending up to 17,460 sq. km.14 The Philippines has seven straits used for international navigation, namely, the Babuyan Channel, Balintang Channel and Luzon Straits in the north; the San Bernardino and Mindoro Straits in the mid-section of the archipelago; and the Surigao and Balabac Straits in the south. These are the only entry and exit points through the archipelago, leading to, from, and between the South China Sea and the East China Sea, the Straits of Malacca and Singapore, the Indian Ocean, and the Pacific Ocean. (See Annex A.) This network of routes presents threats to two of the most 11
Based on the initial estimates conducted by the Resources, Environment and Economic Center for Studies (REECS) in September 2006, the economic valuation of the impacts of the Guimaras oil spill to the ecosystem and to the population looking at four categories: loss of environmental services; loss in recreational values/tourism; clean-up costs; and health costs, is PHP 9,223.9 Million [or USD 192,164,583 @ 1 USD to PHP48]. This estimate excludes the compensatory damages in terms of livelihood losses. Available at http://www.psdn.org.ph/reecs/mv1_solar_oilspill_summary.pdf 12 UNCLOS defines archipelago as “a group of islands, including parts of islands, interconnectivity waters, and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic, and political entity, or which historically been regarded as such.” See Article 53, UNCLOS. 13 FAO. Fishery Country Profile-Philippines. Accessed on 10 July 2006 from http://www.fao.org/fi/fcp/en/PHL/profile.htm 14 Id.
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delicate marine biodiversity areas in the Philippines and the world: the Tubbataha Reef, a World Heritage Site; and the Verde Island Passage Marine Corridor, known as the center of shorefish biodiversity and a world hotspot of marine biodiversity.15 Yearly, more than half of the world’s oil tankers, carrying an estimated 353,420 barrels of oil, pass through the Straits of Malacca and Singapore, and the Sunda and Lombok Straits in Indonesia, with the majority continuing on to the South China Sea.16 This volume of shipping traffic in its vicinity helps to explain the 307 oil spill incidents that have been reported in the Philippines over the past 32 years, or an average of ten such incidents per year.17
Regime of Passage in Archipelagic Waters Under UNCLOS, an archipelagic State has the obligation to allow foreign vessels the exercise of rights of passage, to wit, (1) innocent passage, and (2) archipelagic sea lanes passage, in line with the following principles:
Under the regime of the archipelagic sea lanes passage, vessels traversing archipelagic waters can operate in their normal mode, whereas the exercise of innocent passage carries certain conditions imposed under international law;18
15
Carpenter, K.E. and V.G. Springer (2005). Olavario, Arturo P. “Oil Spill Response.” (Presentation). Proceedings of the National Workshop on the PSSAs and Other IMO Tools for Area Specific Management, Traders Hotel, Manila, 14-16 November 2007. (Unpublished). 17 Olavario, A.P (2007). 18 According to UNCLOS, passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Section 3 of UNCLOS provides an extensive list of conditions for innocent passage. See UNCLOS Arts. 17-26, 45, 52. 16
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Innocent passage may be suspended temporarily by an archipelagic State for security purposes,19 but under no circumstances can archipelagic sea lanes passage be suspended; In the designation of sea lanes for innocent passage, an archipelagic State is required to take into account, among other things, the “recommendation of the competent international organization” and the “channels customarily used for international navigation”; and In the designation of archipelagic sea lanes, an archipelagic State has to “refer” the proposal to the competent international organization, and such sea lanes should include all “normal routes for international navigation.”
The Right of Archipelagic Sea Lanes Passage An archipelagic State has the obligation to ensure that “(a)ll ships and aircraft…enjoy the right of archipelagic sea lanes passage in such (archipelagic) sea lanes…”20. The right of archipelagic sea lanes passage for foreign vessels is a new regime formulated as an adjunct to the regime of the archipelagic State established under UNCLOS Part IV, and defined as “…the exercise in accordance with [the] Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.” (UNCLOS, Part IV, Article 53(3)) In designating archipelagic sea lanes, an archipelagic State “… shall include all normal passage routes used as routes for international navigation.”21 Such proposals, however, must be referred to the competent 19
UNCLOS Article 52(2). UNCLOS Article 53 (2). 21 UNCLOS Article 53 (4). 20
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international organization for adoption.22 The International Maritime Organization (IMO) has been identified as the organization with technical competence to consider proposals for archipelagic sea lanes. In this regard, the Organization adopted the General Provisions for the Adoption, Designation and Substitution of Archipelagic Sea Lanes (GPASL) on 19 May 1998.23 Archipelagic sea lanes are to be defined by a series of continuous axis lines from the entry to the exit points of passage routes.24 Ships passing through the archipelagic sea lanes should not deviate more than 25 nautical miles to either side of these axis lines.25 Where an archipelagic State has not designated archipelagic sea lanes, “…the right of archipelagic sea lanes passage may be exercised through routes normally used for international navigation.”26
Archipelagic Sea Lanes Customary Development: the Indonesian Case On 30 August 1996, Indonesia submitted its proposed archipelagic sea lanes to the IMO,27 becoming the first, and to date, the only archipelagic State to do so. However, Indonesia’s submission only included three proposed north-south archipelagic sea lanes and did not cover east-west routes. This prompted the IMO to consider it as a “partial archipelagic sea lanes proposal,” a characterization not explicitly found in UNCLOS, but later defined by the IMO GPASL as a “proposal which does not meet the requirement to include all normal passage routes and navigational channels as required by the [Convention].”28 In such cases, 22
UNCLOS Article 53 (9). IMO Doc MSC 69/22/Add.I. 24 UNCLOS Article 53(5). 25 Id. 26 UNCLOS Article 53 (12). 27 IMO Doc MSC, Res No. MSC 71[69] 28 IMO Doc MSC 69022/Add.1. 23
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the right to archipelagic sea lanes passage would continue to apply in the still undesignated routes. The IMO decision to consider the proposal as “partial” would seem to negate the intention to give archipelagic States the leeway to designate their archipelagic sea lanes in order to ensure the “continuous, expeditious and unobstructed transit” of vessels.29 The Indonesian case also emphasized some concerns relating to the technical parameters for designating archipelagic sea lanes under UNCLOS. For instance, the provision on the use of a series of axis lines to designate archipelagic sea lanes were subject to differing interpretations30 and still lack clear guidelines for implementation. There is also the question of the suitability for archipelagic States with closely grouped islands of the provision requiring a 50-nautical mile navigational corridor, and how this requirement might impact the peace, security and good order of the concerned archipelagic States.
Designation of Particularly Sensitive Sea Area (PSSA): A Balancing Element for Use of the Ocean Let me make a candid observation at this point, that the “rules of the road” in international navigation had always been in favor of shipping, especially pre-UNCLOS. It was only with the advent of UNCLOS, which 29
As interpreted and as provided for in the IMO GPASL the designation of archipelagic sea lanes should include all normal passage routes and navigational channels as required by the [UNCLOS]. In effect, this prevents an archipelagic State to choose designated archipelagic sea lanes considering that it is obliged to designate all standing international navigation routes as archipelagic sea lanes. See IMO Doc MSC 69022/Add.1. 30 The United States and Australia, two of the user States of Indonesian archipelagic waters, have different interpretations as to where the axis line should be approximated. The US view is to position the axis line in such a way that the maximum sea area available for the user States’ vessels would be attained. Australia contended that the axis line should approximate the normal routes for international navigation and should comply with IMO safety requirements for maritime navigation.
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aims to “contribute to the realization of a just and equitable international economic order which takes into account…the special interests and needs of developing countries,”31 that marine environmental protection (MEP) was factored into shipping activities. This developmental thrust has been further expounded by the IMO, though freedom and safety of navigation clearly still remained on top of the agenda. In this vein, let me run through the recent developments in the IMO impacting freedom of navigation and marine environmental protection. PSSA designation is among a range of measures to preserve and protect the marine environment, as well as conserve and manage living resources, that are available to the IMO in discharging its mandate to safeguard safety of navigation. The concept was first considered way back in 1978 but only gained greater appreciation and practical application in the late 1980s and early 1990s. It goes without saying that this time lag between proposition and implementation had to do with the traditionally adversarial positions between coastal States and maritime (shipping) nations on possible regulatory mechanisms that can be seen to impede freedom of navigation. At present, however, PSSA designation is already generally accepted as a mechanism for safeguarding delicate or vulnerable sea areas, especially from shipping activities, and for expanding the scope of marine environmental protection measures even beyond national jurisdictions. Beyond gaining acceptance, PSSA designation, in varying degrees of maritime area coverage but tending towards an ecosystem or eco-region approach towards marine environmental protection and coastal and marine resources conservation and management, appears to have become the trend of the recent past. On 1 December 2005, the IMO adopted the Revised Guidelines for the Identification and Designation of PSSAs through Assembly Resolution A.982(24), according to which an area that is significant for “recognized 31
UNCLOS (Preamble).
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ecological, socio-economic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities”,32 may receive special protection through IMO sanction. The updated guidelines set out various criteria for recognition as a PSSA, including the following: ecological criteria, such as an ecosystem’s uniqueness, rarity, diversity, or vulnerability to degradation by natural events or human activities; social, cultural and economic criteria, such as the area’s significance as fishing grounds, or for tourism and recreation; and scientific and educational criteria, such as the area’s biological research or historical value. Identification and designation of a PSSA and the adoption of associated protective measures (APMs) require consideration of three integral components: (1) the particular attributes of the proposed area, (2) the vulnerability of such area to damage by international shipping activities, and (3) the availability of APMs within the competence of the IMO to prevent, reduce, or eliminate risks from these shipping activities.33 To date, the IMO has designated eleven (11) PSSAs around the world, as follows: 1) The Great Barrier Reef, Australia (1990); 2) The Sabana-Camaguey Archipelago, Cuba (1997); 3) Malpelo Island, Colombia (2002); 4) The Florida Keys, USA (2002); 5) The Wadden Sea, Denmark, Germany, and The Netherlands (2002); 6) Paracas National Reserve, Peru (2003); 7) Western European Waters, Belgium, France, Ireland, Portugal, Spain and UK (2004); 8) Torres Straits, Australia and Papua-New Guinea (2005); 9) Canary Islands, Spain (2005); 10) The Galapagos Archipelago, Ecuador (2005); and 32 33
IMO Assembly Resolution A.982(24), para. 1.2. IMO Assembly Resolution A.982(24), para. 1.5.
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11)
The Baltic Sea area, Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden (2005).
The PSSA “Scenic Route” Being a coastal/archipelagic State, the Philippines’ national interests and primary concern naturally lies in ocean governance that is designed territorially, and even regionally, transcending national jurisdictions, on account of the connectivity of the ocean especially in an enclosed and semi-enclosed seas setting such as that of Southeast Asia. An early perception that emerged from the Third United Nations Conference on the Law of the Sea was that the designation of archipelagic sea lanes would necessarily be beneficial and logical for an archipelagic State. The rationale was that designation of archipelagic sea lanes, even under constrained parameters, nevertheless confers upon the archipelagic State the right to confine the passage of foreign vessels in its archipelagic waters, and thus makes for better monitoring and management of vessel traffic. However, as will be seen later, this is not necessarily the case. The Philippines has not designated archipelagic sea lanes. Instead, what is emerging in the Philippines in so far as vessel traffic management and monitoring in its archipelagic waters is concerned, is a policy thrust which posits that peace, security and good order in its archipelagic waters, and in the State itself, may be better served through the application of, and focus on, protective measures for the marine environment that simultaneously guarantee and facilitate freedom of navigation, in lieu of designation of sea lanes. Specifically, there is an emerging inclination towards designating the entire country as a Particularly Sensitive Sea Area (PSSA), and instituting associated protective measures (APMs), to better address the peculiar and particular circumstances of the Philippines as an archipelago and archipelagic State.
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Instituting APMs to guide vessel transit in exercise of the right of archipelagic sea lanes passage (and, for that matter, innocent passage) would be a more practical arrangement for two reasons: 1) the entire archipelago, by itself, is an eco-system or eco-region with delicate and rich marine biodiversity; and 2) the technical parameters set out by UNCLOS for the designation of archipelagic sea lanes cannot be practically applied to the Philippine archipelago due to the closely knit configuration of its islands. The Philippines, with its narrow straits and passages, and closely grouped geological features, cannot accommodate navigational corridors fifty (50) nautical miles wide. It would also be impractical for the country to study and propose archipelagic sea lanes if these would need to cover all seven straits previously mentioned. Besides, even if the Philippines were to designate archipelagic sea lanes, foreign vessels may still circumvent these, and enter and exit or navigate near its archipelagic waters through non-designated routes by invoking their right to innocent passage.34 In the foregoing situation, and once again taking into account the country’s peculiar geological configuration, it is difficult to see any practical value in the Philippines designating archipelagic sea lanes. With the heightened awareness of the vulnerability of the country’s marine resources and marine environment to shipping activities, the Philippines’ effort is best focused on establishing protective measures for the marine environment while facilitating transit through its archipelagic waters. While this approach would add another layer of national rules and regulations, to which international merchant shipping activities and naval operations could be subjected, it would substantially simplify MEP efforts in the Philippines’ maritime jurisdictions that project to the South China Sea and its Pacific Ocean seaboard, and make MEP integral to the exercise of archipelagic sea lanes passage and other vessel transit regimes. 34
UNCLOS Article 52 para. 1.
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Objections to this approach would be difficult to justify since designation of archipelagic sea lanes does not prevent a State from instituting rules and regulations that it deems necessary within its archipelagic waters for the protection of its marine environment and living resources, as the Philippines has already begun to do.
National Self-Help Efforts for Marine Environmental Protection The Philippines has established various mechanisms for marine environmental protection (MEP) and marine resources conservation, impelled by its extraordinary circumstances and concerns as an archipelagic State with unique and high biodiversity. On 29 June 1992, the Philippines enacted Republic Act No. 7586, or the National Integrated Protected Areas System Act (NIPAS), which provides the legal basis for the establishment of marine protected areas (MPAs) in the country. Marine protected areas (MPAs) broadly refer to sites whose boundaries have been clearly identified in order to provide some level of management with the primary intent of protecting the sites’ natural resources.35 At present, the Philippines has established more than 600 MPAs, mostly in its archipelagic and inland waters.36 In recent years, President Gloria Macapagal-Arroyo signed Executive Order 578 dated 8 35
Department of Environment and Natural Resources, Bureau of Fisheries and Aquatic Resources of the Department of Agriculture, and Department of the Interior and Local Government. 2001. Philippine Coastal Management Guidebook No. 5: Managing Coastal Habitats and Marine Protected Areas. Coastal Resource Management Project of the Department of Environment and Natural Resources, Cebu City, Philippines, 106 p. Available at http://oneocean.org/download/db_files/crmguidebook5.pdf 36 The actual management status is known and documented for only 350. See White, A.T., PM Alino and A.T. Meneses. 2006. Creating and Managing Protected Areas in the Philippines. Fisheries Improved for Sustainable Harvest Project, Coastal Conservation and Education Foundation, Inc. and University of the Philippines Marine Science Institute, Cebu City, Philippines, p. 83. Available at http://www.iotws.org/ev_en.php?ID=2012_201&ID2=DO_TOPIC
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November 2006 “Establishing the National Policy on Biological Diversity, Prescribing its Implementation throughout the Country, particularly in the Sulu-Sulawesi Marine Ecosystem and the Verde Island Passage Marine Corridor.” The Philippines is also undertaking risk assessment in preparation for designating Marine Environmental High Risk Areas (MEHRAs) all over the country. As defined,37 MEHRAs are “comparatively limited areas of high sensitivity which are also at risk from shipping. There must be a realistic risk of pollution from merchant shipping.”38 As with PSSAs, the identification and designation of MEHRAs are based on environmental sensitivity and risk from shipping. Unlike PSSAs, however, MEHRAs are exclusively concerned with oil pollution and not with contamination from other hazardous cargo. Moreover, MEHRAs are applicable only in territorial (and archipelagic and internal) waters, and are primarily aimed at raising awareness, that is, calling the attention of mariners to where extra protection from shipping is desirable. Designation of MEHRAs do not need IMO approval but should be communicated to IMO so that they can be indicated in navigational charts for awareness purposes. The unique setting of the Philippines—with internal waters, archipelagic waters, territorial sea, Exclusive Economic Zone (EEZ), and continental shelf (and possibly, “extended” continental shelf (ECS)— coupled with the highest marine biodiversity in the world, entails the designation of both PSSAs and MEHRAs as complementary measures for MEP. Australia’s Great Barrier Reef is an example of a large PSSA that is complemented by MEHRAs both within and outside the same waters. PSSA and MEHRAs are essentially the same protective mechanism 37
MEHRAs are a UK national initiative first identified by Lord Donaldson in his report which was commissioned following the Braer oil spill in 1993. Lord Donaldson identified MEHRA as one mechanism to improve the safety of shipping and increase protection of the environment. 38 WWF/TWT (World Wildlife Fund/The Wildlife Trusts). “Particularly Sensitive Sea Areas (PSSAs) and Marine Environmentally High Risk Areas (MEHRAs).” September 2003.
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sharing the same rationale, but employing different legal regimes and applied to different maritime jurisdictions. In this view, ship routing could be subsumed under, or even stem out of, the MEHRA arrangement. Looking ahead and outwardly, another initiative that could be considered, initially by the so-called claimant States in the South China Sea (SCS), is the possible designation of a Transborder Marine Peace Park in this maritime area. A Transborder Marine Peace Park is an MPA agreed upon and set aside by States Parties for a set of specific activities in pursuit of common goals in the interest of marine environmental protection and marine resources conservation, among others. An SCS Transborder Marine Peace Park is a management measure that is appropriate, even necessary, to address alarming findings on the degraded state of the world’s seas,39 including the South China Sea. These findings are supported by the initial results of the Philippines-Vietnam Joint Oceanographic and Marine Scientific Research Expedition in the South China Sea (JOMSRE-SCS), which suggest declining marine resources in the southern part of the South China Sea close to the Philippines, the area covered by the expedition.40 The groundwork for establishing an SCS Transborder Marine Peace Park has already been laid down to some extent by the establishment, through a Memorandum of Understanding between the Philippines and Malaysia signed on 31 May 1996, of the Turtle Island Heritage Protected Area (TIHPA), the first and only transboundary protected area for marine turtles in the world.
39
Revkin, Andrew C. “Human Shadows on World’s Oceans,” NYT News Service reprinted in Times of India, 27 February 2008, p. 37. 40 Alcala, Angel C. “Presentation of the Highlights of JOMSRE-SCS IV.” RP-Vietnam 4th Meeting of the Joint Permanent Working Group on Maritime and Ocean Concerns (JPWG-MOC). Hanoi, Vietnam. 29 September 2007.
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Policy Challenges The policy thrust set forth in this paper is expected to encounter opposition, not in the least due to its trailblazing characteristics. Declaration of the entire country as a PSSA, for example, and the consequent adoption of associated protective measures (APMs) to manage the transit of foreign and domestic vessels in lieu of the designation of archipelagic sea lanes is an unprecedented and entirely novel approach. Indeed, while the PSSA Guidelines are silent on matter of restrictions in regard to the size of the area to be designated as a PSSA,41 size became a major issue in the application for PSSA designation of the Baltic Sea and Western European Waters. In fact, this concern on the size of the Western European Waters has led the United Nations Division on the Law of the Sea (DOALOS) to offer the following comment, to wit:42 …while it appears from this phrase that the area should in principle not include the entire Exclusive Economic Zones (EEZ), there is no maximum restriction on size. In fact if the entire EEZ were proven to be particularly sensitive and vulnerable to maritime traffic, it could be argued that it should be protected. (Emphasis supplied) Following this line of reasoning, no one can deny that the Philippines deserves to be designated as a PSSA in view of the following arguments:
41
With reference to the size, the PSSA Guidelines provides that, in assessing each PSSA proposal, the IMO should consider “whether the size of the area is commensurate with that necessary to address the identified need.” See PSSA Guidelines para. 8.2.3. 42 IMO, LEG 87/16/1.
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Ecologically, the Philippines is the “center of the center of biodiversity” of the world, and is part of the “Coral Triangle,” among others; Socio-economically, with 62% of its population dwelling along coastal areas, the population’s livelihood depends to a significant extent on coastal and marine resources; and Scientifically, the country lies within the global center of marine biodiversity, harboring several unique species, which makes it an area of high scientific interest. Moreover, optimism about the proposal to designate the Philippines archipelago as a PSSA stems from several recent positive developments relevant to the evolution of the PSSA regime, to wit: 1) the success of six EU States in having an expansive length of sea area adjacent to the Atlantic coast designated as a PSSA by the IMO; 2) the expansion in 2005 of the Great Barrier Reef PSSA to include the Torres Strait, on the joint proposal of Australia and Papua New Guinea;43 and 3) President George W. Bush’s designation of the Northwestern Hawaiian Islands as a marine National Monument in June 2006.44 The roughly 140,000 square miles of marine reserve surpasses Australia’s Great Barrier Reef Marine Park as the largest protected marine area in the world,45 and is about half of the total land area and maritime jurisdictions of the Philippines.
43
Particularly Sensitive Sea Areas. IMO. Available at (accessed 22 July 2007) . 44 The Northwestern Hawaiian Islands Marine National Monument: A Commitment to Good Stewardship of Our Natural Resources. 15 June 2006. The White House. Available at (accessed 22 July 2007) . 45 “Hawaiian Marine Reserve to be World’s Largest,” Washington Post. 15 June 2006, A01.
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It cannot be overemphasized that having the entire Philippine archipelago designated as a PSSA is not intended to restrict the freedom of navigation in the country’s archipelagic waters. Indeed, PSSA designation can facilitate the exercise of the freedom and security of navigation, including the right of archipelagic sea lanes passage. Instead of guaranteeing passage rights while protecting and conserving the marine environment, the Philippines simply seeks to preserve the marine environment while guaranteeing passage rights.
Conclusion The Philippines’ propositions in regard to passage through its archipelagic waters are as follows: It subscribes to UNCLOS; It reaffirms adherence to the concept of freedom and safety of navigation, and observance of obligations relating to transit passage of foreign vessels; and It endeavors to seek a suitable balance of the aforementioned premises consistent with its extraordinary circumstances as an archipelagic State. Finally, I wish to reiterate our appreciation for this Conference. It is better to test controversies in this more peaceable setting than in the actual maritime arena, where probing runs have been conducted by certain maritime States to test clear gaps in the regime of archipelagic sea lanes passage. Indeed, timeliness is the essence of this Conference, coming as it does when the Southeast Asia maritime region has seen and anticipates dramatic leaps in maritime activity resulting from increased shipping of goods and energy resources in a globalized world; police activities arising from piracy and armed robbery against ships, smuggling of arms and illegal narcotics, the trafficking of humans, and other transnational crimes; and not least of all, international terrorist activities. 412
Navigation through Archipelagos: Current State Practice Martin Tsamenyi,* Clive Schofield# and Ben Milligan^ Abstract Part IV of the United Nations Convention of the Law of the Sea of 1982 establishes a special regime applicable to archipelagic States. This chapter provides an overview and analysis of the special rules applicable to archipelagos before examining how the Part IV regime has been implemented by States claiming archipelagic State status. It also identifies, in the context of international and municipal law, how varied implementations of the Part IV regime affect the existence of navigational rights through waters of such States. INTRODUCTION One of the innovative aspects of the United Nations Convention on the Law of the Sea of 10 December 1982 (hereafter the LOSC)1 was the recognition given to the concepts of ‘archipelagic State’ and ‘archipelagic waters’ in international law. The compromise creating this new category of States with considerable maritime jurisdictional advantages, and the associated rights enjoyed by foreign states through and above the
*
Director, Professor of Law, Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong, NSW, Australia. The authors’ PowerPoint presentation can be viewed on the accompanying CD. # QEII Research Fellow, ANCORS, University of Wollongong, NSW, Australia. ^ Research Assistant, ANCORS, University of Wollongong, NSW, Australia. 1 United Nations, United Nations Conventions on the Law of the Sea, U.N. Sales No.E.97.V.10 (1983). See 1833 UNTS 3, entered into force 16 Nov. 1994, available at .
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archipelagic waters are governed by Part IV of the LOSC.2 Part IV has four distinctive aspects.3 First, it defines archipelagic status. Second, it provides the rules under which archipelagic States may draw straight ‘archipelagic baselines’ around their constituent islands.4 Third, it defines the legal character of waters enclosed by such archipelagic baselines as ‘archipelagic waters’.5 Fourth, and of particular relevance to this chapter, Part IV defines the navigational rights enjoyed by foreign states in the archipelagic waters. Two specific navigational rights are granted in the archipelagic waters. Apart from the traditional right of innocent passage through some parts of archipelagic waters,6 there is also the broader right of ‘archipelagic sea lanes passage.’ According to records of the United Nations, 20 States had claimed archipelagic State status as of 28 May 2008.7 State practice in the implementation of LOSC Part IV, particularly in respect of the right of archipelagic sea lanes passage, is undeveloped and incoherent. This Chapter provides an overview of Part IV of the LOSC before examining the nature of the navigational rights through and above the waters of States claiming archipelagic State status. Relevant state practice will be analysed under the following categories: first, those States which have claimed archipelagic State status and which have defined both archipelagic sea lanes and archipelagic baselines; second, States that have defined archipelagic baselines in accordance with LOSC Part IV but which have not designated archipelagic sea lanes; third, States which have claimed archipelagic State status but have determined their 2
See generally, R. Churchill and A. Lowe, The Law of the Sea (3rd Edition, Manchester: Manchester University Press, 1999), pp. 118-130. 3 Ibid., p. 120. 4 See LOSC, Article 47. 5 See LOSC, Articles 49, 51- 54. 6 Churchill and Lowe, supra note 2, p. 127. 7 See Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, Table of Claims to Maritime Jurisdiction (2008) available at .
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archipelagic baselines in a manner contrary to the requirements under LOSC Part IV; and fourth, States which have neither defined archipelagic baselines nor designated archipelagic sea lanes. THE DEVELOPMENT OF LOSC PART IV Although provisions specific to the peculiar requirements of what are now called archipelagic States were discussed in the context of the First United Nations Conference on the Law of the Sea, the proposal for a special regime for archipelagic States was not successful and was thus not included in the resulting Geneva Conventions of 1958.8 This was the case despite strong support for this proposal on the part of a number of States. Consequently, shortly after the conclusion of the Geneva Conventions, one of the interested coastal States, Indonesia, unilaterally declared that its territorial sea would extend seawards from baselines consisting of ‘straight lines connecting the outermost points on the low water mark of the outermost islands or part of such islands comprising Indonesian territory’—creating a system of baselines extending for over 8,000 nautical miles.9 This action was taken on the basis that ‘since time immemorial’ Indonesia has ‘constituted one entity’, that in the interests of the territorial integrity of the Indonesian State, all the islands and waters
8
Four Conventions emerged from the first United Nations Conference on the Law of the Sea, held in Geneva in 1958: Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964); Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); and Convention on Fishing and Conservation of the Living Resources of the High Sea, opened for signature 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966). 9 Indonesia, Act Concerning Indonesian Waters, Article 1, 20 January 1960. Reproduced in The Geographer, ‘Straight Baselines: Indonesia’, Limits in the Seas, No. 35 (Bureau of Intelligence and Research: Washington, DC, 1971).
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lying between these Indonesian islands ‘should be regarded as a single unit’.10 In June 1961 the Philippines followed suit,11 and State practice relating to archipelagos gradually grew.12 These claims drew protests, notably from the United States.13 For example, the United States responded to the claim of the Philippines by stating that ‘there is no recognition in international law of any special regime for archipelgoes [sic] ….’.14 However, by the time of the Third United Nations Conference on the Law of the Sea (UNCLOS III), lasting from 1974-1982 and eventually resulting in the conclusion of the LOSC, support for the establishment of a special regime to deal with archipelagos had become ‘irresistible’.15 The legal framework negotiated at UNCLOS III, unsurprisingly, reflects a compromise between the competing interests of archipelagic States and foreign States in those areas set to become archipelagic waters under the new regime. For archipelagic States, salient interests included security, access to and control over resources and environmental protection. For foreign States, such interests included the preservation of traditional fishing rights, the continuation of rights to lay and maintain submarine pipelines and cables and, critically, freedom of navigation through and above the waters which now constitute archipelagic waters. These competing interests were balanced by providing archipelagic States 10
Indonesia, Act No.4 of the President of the Indonesian Republic. Reproduced in The Geographer, supra note 9. 11 J. Roach and R. Smith, United States Reponses to Excessive Maritime Claims (2nd Edition, The Hague, Kluwer Law International, 1996). 12 See, H.W.Jayewardene, The Regime of Islands in International Law, (Dordrecht: Martinus Nijhoff, 1990), pp.113-142. 13 Such protests are routinely issued as part of the United States Freedom of Navigation Program, established in 1979, which is designed to counter what the United States deems to be excessive maritime claims. See, Roach and Smith, supra note 11, pp. 3-13. 14 Ibid., pp. 216-217. 15 J.R.V.Prescott and C.H.Schofield, The Maritime Political Boundaries of the World, (Leiden/Boston: Martinus Nijhoff Publishers, 2005), p.166.
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with full sovereignty over their archipelagic waters, thus addressing their security, resource and environmental concerns. The security interests of archipelagic States were also addressed by specifying a limitation on the distance from islands belonging to the archipelagic State that foreign vessels may navigate. Foreign State interests were, in turn, catered for through provisions relating to the protection of traditional fishing rights, submarine cables and other legitimate rights16 and importantly, navigational rights.17An important distinction was made between archipelagic waters and internal waters18 and the non-suspendable right of archipelagic sea lanes passage in the ‘normal mode’ as outlined below. LEGAL SUBSTANCE OF PART IV The legal substance of LOSC Part IV consists of three specific concepts, namely: archipelagic status, the drawing of archipelagic baselines and archipelagic waters. ARCHIPELAGIC STATUS Article 46 of LOSC provides that for the purposes of the present Convention: (a) “archipelagic state” means a state constituted wholly by one or more archipelagos and may include other islands; and (b) “archipelago” means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, 16
LOSC Article 51(1) provides: ‘Without prejudice to Article 49, an archipelagic State shall respect existing agreements with other States and shall recognise traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States in certain areas falling within archipelagic waters’. 17 LOSC Articles 52 and 53. 18 LOSC Article 50.
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economic and political entity, or which historically have been regarded as such. An important precondition was therefore established for the application of Part IV of the LOSC—that the special rules were only to be applied to island States and, in particular, groups of islands and the interconnecting water between them.19 This definition serves to exclude mainland States which may possess archipelagos off their coasts such as, for example, Ecuador’s Galapagos Islands, from benefiting from the new regime. Although a number of mainland coastal States with sovereignty over groups of islands offshore argued during UNCLOS III that the special rules applicable to archipelagos should also be applicable to their offshore island possessions, these proposals were unsuccessful.20 The inclusion of the phrase ‘parts of islands’ in Article 46(b) was in order to accommodate the circumstances of archipelagic States such as Indonesia which shares sovereignty over an island with another coastal State. In Indonesia’s case the island of Borneo is shared with the nonarchipelagic State of Malaysia.21 The definition of an archipelagic State in LOSC Part IV has both political and technical aspects. The political aspect of the definition allows States ‘constituted wholly by one or more archipelagos’ to claim archipelagic State status in political terms, without necessarily satisfying the technical criteria relating to the archipelagic baselines and the ratio of 19
It has been noted that the term ‘other natural features’ in Article 46(b) is somewhat obscure. However, this terminology can be taken to be a reference to drying reefs as mentioned in Article 47(1). See Prescott and Schofield, supra note 15, pp.167-168. 20 See, Jayewardene, supra note 12, pp. 140-42. It is worth noting in this context that a number of mainland States with islands have sought to circumvent their inability to invoke the Part IV regime by instead defining straight baselines around their offshore possessions. Such baselines are often reminiscent of archipelagic baselines. The baselines defined by Ecuador around the Galapagos Islands provide an example of this type of State practice. See Prescott and Schofield, supra note 15, pp.167. Such claims have, however, often met with international protests. See, Roach and Smith, supra note 11, pp. 112-122. 21 See Prescott and Schofield, supra note 15, p.169.
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water to land. This is the significance of the stipulation in the latter part of Article 46(b) that archipelagos should be ‘so closely interrelated that they ‘…should form an intrinsic geographical, economic and political entity.’ The important point here is that an archipelagic State in the political sense may not necessarily be entitled to claim archipelagic waters with the associated navigational freedom of archipelagic sea lanes passage. For example, whilst Kiribati qualifies as an archipelagic State under the definition in LOSC Article 46, it is unlikely to be entitled to archipelagic waters because of the difficulties associated with satisfying the technical elements contained in Article 47, notably the water to land ratio requirement in Article 47(1). Archipelagic State status also has a technical aspect relating to the drawing of archipelagic baselines, the permissible length of each baseline and requirements for land-water ratio within the archipelagic waters. From the point of view of navigation, these technical aspects are the most significant. It is not surprising, therefore, that most protests relating to State practice in the implementation of the Part IV regime tend to relate to apparent breaches of the rules relating to archipelagic baselines or in respect of the rights claimed within archipelagic waters, rather than whether a group of islands has archipelagic status or not (see below). The LOSC does not clarify whether archipelagic status is a question of fact, or is attained by declaration of a State satisfying the factual preconditions of Article 46. A Judgement of the International Court of Justice in the Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain,22 is consistent with the latter view: in the context of a maritime boundary dispute between Qatar and Bahrain, the Court declined to employ straight or archipelagic baselines to the
22
Case Concerning Maritime Delimitation and Territorial Questions Between Qatar and Bahrain (Qatar v. Bahrain) (Merits) [2001] ICJ Rep 40 available at .
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Bahraini coast, citing Bahrain’s failure to declare archipelagic status and thereafter define a system of archipelagic straight baselines.23 ARCHIPELAGIC BASELINES The provisions governing the drawing of archipelagic baselines in LOSC Article 47 appear to a considerable extent to have been inspired by the ‘prototype’ archipelagic baselines claimed by Indonesia in 1960. Article 47(1) provides that: An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of the archipelago provided that within such baselines are included the main islands and an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1. This represents the critical test of the validity of a system of archipelagic baselines.24 Article 47(7) provides clarification as to what may be reasonably regarded as water and land in order to aid in the computation of the crucial water to land ratio.25 The requirement that at least as much water as land area must be enclosed within a valid straight archipelagic baseline system seems to be designed to exclude coastal States dominated by a few large islands, such as the United Kingdom. Conversely, the nine to one water to land ratio limit appears to have the objective of excluding from consideration especially dispersed archipelagos and thereby limit the potential extent of 23
Ibid., [183], [212-215]. For a discussion of how the 1 to 1 and 1 to 9 ratios were arrived at, see Jayewardene, supra note 12, p. 145. 25 LOSC Article 47(7) provides: ‘For the purpose of computing the ratio of water to land under paragraph 1, land areas may include waters lying within the fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau.’ 24
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archipelagic waters that may be claimed. Kiribati, as alluded to above, represents an excellent example of the latter scenario.26 Article 47(2) stipulates that the length of such baselines ‘shall not exceed 100 nautical miles’, with the exception of three per cent of the total number of baselines enclosing the archipelago in question but that, in any case, the maximum length for any archipelagic baseline segment should be 125 nautical miles. The following paragraph of Article 47 states that ‘The drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.’ Furthermore, Article 47(4) provides that: Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar installations which are permanently above sea level have been built on them or where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the nearest island. There is clearly some variability in the practical utility of the tests set out in LOSC Article 47. For example, there is scope for different interpretations of which islands may constitute the ‘main islands’ of a particular archipelago, as well as in relation to the phrase the ‘general configuration of the archipelago’ and how a system of archipelagic baselines may, or may not, depart from that configuration to an undefined ‘appreciable extent’. Similarly, the stipulation that no more than three percent of baselines in a given system of archipelagic baselines may exceed 100 nautical miles is possible to overcome through the archipelagic State defining additional baseline segments. In contrast, the water to land ratio test is objective and unambiguous, as is the absolute length limit for any one straight archipelagic baseline segment of 125 nautical miles. LOSC Article 47(4) further guards against the arbitrary 26
The key challenges faced by Kiribati in this context are its limited land area (approximately 811 km2), in addition to the extremely disperse nature of its constituent islands.
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drawing of archipelagic baselines.27 Taken together these provisions provide a technically robust set of rules for the practical application of archipelagic baselines. Of the remaining provisions contained in Article 47, paragraphs 5 and 6 are aimed at protecting the rights of neighbouring States. Article 47(5) prohibits the application of archipelagic baselines ‘in such a manner as to cut off from the high seas or the Exclusive Economic Zone the territorial sea of another State’, whilst Article 47(6) seeks to preserve the rights of States adjacent to archipelagic States where the creation of archipelagic waters may lie between two parts of the neighbouring State.28 The final two paragraphs of Article 47 deal with publication of relevant charts and coordinates to publicize the existence of claimed archipelagic baseline systems.29
27
The provisions contained in LOSC Article 47(4) relating to low-tide elevations are analogous to LOSC Article 7(3) relating to the drawing of straight baselines for the territorial sea. 28 This provision was included in Article 47 in order to take into account situations such as that of Indonesia and Malaysia where Indonesian archipelagic waters occupy the shortest route between the two constituent parts of Malaysia—peninsula Malaysia and Sarawak and Sabah on the island of Borneo. 29 LOSC Article 47(7 and 8) establish an obligation for archipelagic States defining archipelagic baselines to adequately define the location of such baselines and give them due publicity. LOSC Article 47(8) provides that such baselines ‘shall be shown on charts of a scale or scales adequate for ascertaining their position. Alternatively, lists of geographical co-ordinates of points specifying the geodetic datum, may be substituted.’ LOSC Article 47(9) states that the archipelagic State claiming such baselines ‘shall give due publicity to such charts or lists of geographical co-ordinates and shall deposit a copy of each such chart or list with the Secretary-General of the United Nations.’ These obligations are analogous to those contained in LOSC Article 16 in respect of straight baseline claims made in accordance with Articles 7, 9 and 10. It is worth observing that, in general, coastal States have been slow to fulfil their obligation to deposit charts or lists of coordinates with the Secretary-General of the United Nations. See, for example, .
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ARCHIPELAGIC WATERS LOSC Article 49(1) provides explicitly that ‘the sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with Article 47.’ This is the case regardless of the depth of such waters or distance from the coast. Article 49(2) further provides that the archipelagic State has sovereignty not only over the archipelagic waters but also the air space above them, as well as to their seabed and subsoil and all the resources contained within them. Article 50 permits the definition of closing lines and creation of areas of internal waters within archipelagic waters. This is relevant to the calculation of the water to land ratio under Article 47(1) and also indicates clearly that archipelagic waters are distinct from internal waters. It is also stated in this article that the regime of archipelagic sea lanes passage shall not ‘in other respects’ affect the status of archipelagic waters, the exercise of the archipelagic State’s sovereignty over them, their associated airspace, seabed and subsoil and the resources therein. LOSC Article 51 qualifies in several respects the sovereignty enjoyed by archipelagic States over their archipelagic waters by specifically providing protection for existing agreements, traditional fishing rights and for existing submarine cables. Article 51(1) stipulates that, without prejudice to Article 49, the archipelagic State ‘shall respect’ existing agreements with others and, furthermore, ‘shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighbouring States’ in respect of certain areas falling within its archipelagic waters. The Article goes on to note that the terms and conditions for the exercise of such rights and activities ‘including their nature, extent and the areas to which they apply’, may be regulated through bilateral agreements between the States concerned, at the request of any of those interested States, but that such rights cannot be transferred to or shared with third States or their nationals.30 Article 51(2) 30 This provision appears to have been included in order to overcome any potential conflict between the terms of LOSC and previously existing bilateral agreements. A
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also places an obligation on archipelagic States to respect existing submarine cables laid by other States and to allow for their maintenance and replacement on receiving due notice that such work is required. NAVIGATIONAL RIGHTS IN ARCHIPELAGIC WATERS LOSC Part IV recognises two distinct navigational rights in archipelagic waters, namely: archipelagic sea lanes passage and innocent passage. It is important to note here that the existence of these navigational rights in archipelagic waters is predicated upon an archipelagic State satisfying the technical requirements in LOSC Article 47 as discussed above. ARCHIPELAGIC SEA LANES PASSAGE From a navigational point of view, the most significant and innovative feature of Part IV of the LOSC is the provision for archipelagic sea lanes passage as defined in LOSC Article 53(3).
salient example of this scenario, which it is understood strongly influenced drafting on this point, is the bilateral treaty between Indonesia and Malaysia, often called the Jakarta Treaty of 1982, which provides for navigational and overflight corridors through Indonesian archipelagic waters for Malaysian shipping and aircraft passing between peninsula Malaysia and the Malaysian parts of Borneo, Sabah and Sarawak. The agreement also protects submarine cables linking the two parts of Malaysia and allows Malaysian fishermen to fish areas east of the Anambas islands, using traditional methods. See, Prescott and Schofield, supra note 15, pp.11-12; Churchill and Lowe, supra note 2, pp. 126-127; and, M. Munavvar, Ocean States Archipelagic Regimes and the Law of the Sea (Dordrecht: Martinus Nijhoff Publishers, 1995), pp.161-162. The full name of the Jakarta Treaty is the Treaty Between Malaysia and the Republic of Indonesia Relating to the Legal Regime of Archipelagic State and the Rights of Malaysia in the Territorial Sea and Archipelagic Waters as well as in the Airspace above the Territorial Sea, Archipelagic Waters and the Territory of the Republic of Indonesia Lying Between East and West Malaysia, signed 25 February 1982, entered into force 25 May 1984. Full text available at, United Nations, Office for Ocean Affairs and the Law of the Sea, The Law of the Sea: Practice of Archipelagic States (New York: United Nations, 1992), pp.144-155.
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Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an Exclusive Economic Zone and another part of the high seas or an Exclusive Economic Zone. The right of archipelagic sea lanes passage can exist in one of two ways. The first is where an archipelagic State designates sea lanes and air routes above the archipelagic waters; and the second is where the archipelagic State fails to designate sea lanes and air routes in accordance with the requirements under LOSC Part IV. It is not compulsory for an archipelagic State to designate sea lanes through and air routes above its archipelagic waters.31 However, where an archipelagic State chooses to designate sea lanes and air routes, it must comply with the following requirements: (i) First, the sea lanes and air routes ‘must traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes uses as sea routes for international navigation or overflight through or over archipelagic waters.’32 (ii) Second, the ‘sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points.’33 (iii) Third, the designation of the sea lanes and air routes and any associated ship routing measures must conform to generally accepted 31
LOSC Article 53(1) provides that ‘[a]n archipelagic State may designate sea lanes and air routes thereabove…’ [emphasis added]. 32 LOSC Article 53(4). 33 LOSC Article 53(5) provides that foreign ships and aircraft exercising the right of archipelagic sea lanes passage are required ‘not to deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points bordering the sea lane’. For a discussion of State practice implementing LOSC Article 53(5) see Prescott and Schofield, supra note 15, pp.179-180.
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international regulations34 and are subject to adoption by the International Maritime Organization.35 Once archipelagic sea lanes have been designated in accordance with the requirements above, foreign States exercising the right of archipelagic sea lanes passage are under obligation to respect such sea lanes and traffic separation schemes established.36 The archipelagic State may also adopt laws and regulations in respect of safety of navigation and maritime traffic through the sea lanes designated37 and foreign States exercising the right of archipelagic sea lanes passage are required to comply with such laws and regulations.38 Where the archipelagic State chooses not to designate sea lanes through and air routes above its archipelagic waters, archipelagic sea lanes passage as defined under LOSC Article 53(3) may nevertheless be exercised by foreign ships and aircraft ‘through routes normally used for international navigation.’39 Article 53(3) does not provide any guidance on the determination of ‘routes normally used for international navigation.’ Because of this uncertainty, it would appear to be in the best interests of the archipelagic State if it takes the necessary steps to designate archipelagic sea lanes and 34
LOSC Article 53(8). LOSC Articles 53(9) provides: ‘In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organisation with a view to their adoption. The organisation may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.’ It is generally accepted that the phrase ‘competent international organisation’ refers to the International Maritime Organisation, which in 1997 agreed on a procedure for the designation and adoption of archipelagic sea lanes. See Churchill Lowe, supra note 2, p. 127 and Munavvar, supra note 30, p. 169. 36 LOSC Article 53(11). 37 LOSC Article 54, applying Article 42 mutatis mutandis to archipelagic sea lanes passage. 38 LOSC Article 53(11). 39 LOSC Article 53(12). 35
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the associated air routes through and above its archipelagic waters. This is the case even though the designation and maintenance of such sea lanes may represent a considerable burden on the archipelagic State in question. INNOCENT PASSAGE The second navigational right that can be exercised by foreign States in the archipelagic waters of an archipelagic State is the right of innocent passage40 in accordance with LOSC Part II, section 3 dealing with the territorial sea.41 Although not specified, it is clear that innocent passage through archipelagic waters would only apply to parts of the archipelagic waters which have not been designated as archipelagic sea lanes pursuant to LOSC Article 53(4) or which have not been normally used for international navigation pursuant to LOSC Article 53(12). Similar to the provisions regarding the territorial sea, the right of innocent passage through parts of the archipelagic waters would only be available to ships and not aircraft.42 Similarly, the ‘normal mode’ exceptions would not apply. For example, submarines exercising the right of innocent passage through relevant parts of the archipelagic waters would be required to ‘navigate on the surface and to show their flag.’43 ANALYSIS OF STATE PRACTICE As of 28 May 2008, 20 states had claimed archipelagic State status in accordance with Article 46 of the LOSC.44 This list is not necessarily an 40
LOSC Article 52. LOSC Articles 17-21. 42 LOSC Article 18. 43 LOSC Article 20. 44 These States are: Antigua & Barbuda, Bahamas, Cape Verde, Comoros, Dominican Republic, Fiji, Indonesia, Jamaica, Kiribati, Maldives, Marshall Islands, Papua New Guinea, Saint Vincent & the Grenadines, Sao Tome & Principe, Seychelles, Solomon Islands, The Philippines, Trinidad and Tobago, Tuvalu and Vanuatu. See Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, Table of Claims to Maritime Jurisdiction (2007) available at 41
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exhaustive one because the LOSC does not stipulate any time frame within which states may claim archipelagic State status. Certain states, such as Bahrain,45 would appear to satisfy the pre-requisites of archipelagic status set out in Article 46, but have yet to declare such status. Additionally, a number of mid-ocean archipelagos, such as the Canary Islands, would appear to satisfy the prerequisites of archipelagic status set out in Article 46 if they were to gain independence from the mainland State concerned.46 State practice in relation to LOSC Part IV may be analysed in terms of four categories. The first category consists of States which have claimed archipelagic State status and have defined both archipelagic baselines and archipelagic sea lanes in accordance with Article 47 of the LOSC. The second category comprises States that have defined archipelagic baselines in accordance with LOSC Article 47 but have not designated archipelagic sea lanes. The third category consists of States which have claimed archipelagic State status but have designated archipelagic baselines in a manner contrary to LOSC Article 47. The fourth category includes States which have neither defined archipelagic baselines nor designated archipelagic sea lanes. The following commentary will examine the relevant State practice under these four categories and assess their navigational implications. CATEGORY 1 CLAIMANTS To date, Indonesia is the only archipelagic State to have designated both archipelagic baselines and archipelagic sea lanes. As noted above, Indonesia made the first archipelagic baselines claim in 1960, through Act No.4/Prp/1960.47 More recently, Indonesia issued Act No.6 of 8 August . 45 See Qatar v. Bahrain, supra note 22. 46 The Canary Islands are a dependency of Spain. 47 See The Geographer, supra note 9.
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1996 that replaces the 1960 legislation.48 Act No.6 of 1996 deals with the definition of archipelagic baselines in general terms.49 Supplementary regulations, notably Peraturan Pemerintah [Government Regulations] No.61 of 1998 and No.38 of 2002, were subsequently issued, which provide for the specific designation of Indonesia’s archipelagic baselines.50 Curiously, neither the 1960 nor 2002 Indonesian archipelagic baseline designations provide for a system of baselines wholly enclosing the Indonesian archipelago. In the 1960 designation, a gap was left north of Timor Island in the vicinity of the Ombai and Wetar Straits.51 The designation of Indonesia’s archipelagic baselines made subsequent to the enactment of Act No.6 of 1996 is also only partial in nature. It is anticipated that a further designation of archipelagic baselines will be made in due course in order to complete Indonesia’s system of archipelagic baselines. Indonesia is also the only State to have designated archipelagic sea lanes and submitted relevant proposals to the International Maritime Organization (IMO). Indonesia has proposed three archipelagic sea lanes, broadly oriented north-south.52 These sea lanes were approved by the 48
See . 49 See Articles 6(2) and 25(1). 50 Government Regulation No. 61 of 1998 on the List of Geographical Coordinates of the Base Points of the Archipelagic Baselines of Indonesia in the Natuna Sea, available at . Government Regulation No. 38 of June 2002 . 51 J.R.V.Prescott, ‘The Question of East Timor’s Maritime Boundaries’, 7 Boundary and Security Bulletin, no.4 (1999–2000), pp. 72–81. See also, C.H.Schofield and I.M.A.Arsana, ‘The Delimitation of Maritime Boundaries: A Matter of ‘Life and Death’ for East Timor?’, in: D.Kingsbury, and M.Leach (eds), East Timor: Beyond Independence (Melbourne: MAI Press, 2007), pp.67-85. 52 Indonesian Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lane Passage through Designated Archipelagic Sea Lanes, 28 June 2002, available at . See generally C. Johnson. ‘A Rite of Passage: The IMO Consideration of the Indonesian Archipelagic Sea-Lanes Submission’, 15 International Journal of Marine and Coastal Law, 2000, pp. 317-332. 53 See International Maritime Organisation, Adoption, Designation and Substitution of Archipelagic Sea Lanes, T2-NAVSEC/2.7.1, SN/Circ.200/Add.1 (3 July 2003) at . 54 Act No. 6 of 8 August 1996 regarding Indonesian Waters, at and Indonesian Government Regulation No. 37 on the Rights and Obligations of Foreign Ships and Aircraft Exercising the Right of Archipelagic Sea Lane Passage through Designated Archipelagic Sea Lanes, 28 June 2002, at . 55 See IMO supra note 53 and Johnson, supra note 52.
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consequence of an incomplete or partial designation of archipelagic sea lanes is that foreign vessels are entitled to exercise their right of archipelagic sea lanes passage in other routes normally used for international navigation,56 in particular the east-west route. Also, the Indonesian Regulation would appear to be contrary to the LOSC by prescribing innocent passage through the non-designated sea lanes. This would only be the case after Indonesia has gone through a full process of sea lanes designation in accordance with LOSC Article 53(9). CATEGORY 2 CLAIMANTS Eight States, namely Antigua & Barbuda, Fiji, Jamaica, Papua New Guinea, São Tomé & Príncipe, Solomon Islands, Trinidad & Tobago, and Vanuatu have defined archipelagic baselines in accordance with LOSC Article 47 but have not designated archipelagic sea lanes. The practice of these States may be summarized as follows: Antigua and Barbuda: The Maritime Areas Act of 17 August 198257 provides for the designation of straight archipelagic baselines.58 Section 2B of the Act provides that ‘[t]he archipelagic waters of Antigua and Barbuda comprise the areas of the sea (other than internal waters) on the landward side of the baselines.’ A map specifying archipelagic base points has been submitted to the United Nations.59 Section 20C of the Maritime Areas Act provides for the designation of archipelagic sea lanes. To date, no archipelagic sea lanes have been designated. Section 15B of the Act establishes a right of archipelagic sea lanes passage through archipelagic sea lanes specified pursuant to Section 56
LOSC Article 53(12). See . 58 Ibid., Sections 18A, 4. 59 See United States Department of Defense Technical Information Centre, Maritime Claims Reference Manual: Antigua and Barbuda (2005) at <www.dtic.mil/whs/directives/corres/20051m_062305/Antigua_Barbuda.doc>. 57
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20C or, in the absence of designated archipelagic sea lanes, in respect of routes ‘normally used for international navigation’. Section 14 of the Act establishes a right of innocent passage in archipelagic waters. Section 14(2) prohibits foreign warships from navigating in archipelagic waters or the territorial sea without prior permission. As noted in diplomatic protests of the United States Government, the LOSC does not permit a coastal State to prohibit the passage of warships in this manner.60 Fiji: The Marine Spaces Act of 15 December 197761 provides for the designation of archipelagic baselines ‘in accordance with the rules of international law’.62 Archipelagic base points were specified by two executive orders in 198163 and were subsequently acknowledged in a maritime delimitation agreement with France.64 Section 4(1) of the Marine Spaces Act provides that the ‘archipelagic waters of Fiji’ comprise all areas of sea contained within the archipelagic baselines. Section 10(2) of the Act provides for the designation of archipelagic sea lanes ‘in accordance with rules of international law’. To date, no archipelagic sea lanes have been designated. Section 10(3) of the Act affords all ships and aircraft a right of archipelagic sea lanes passage in archipelagic sea lanes. In absence of designated archipelagic sea lanes, the right of archipelagic sea lanes passage exists in respect of ‘all routes
60
Ibid.. See also, Roach and Smith, supra note 11, pp. 251-260. See also LOSC Articles 17-32 regarding the right of innocent passage. 61 See . 62 Ibid., Section 4(2). 63 See Marine Spaces (Territorial Seas) (Rotuma and its Dependencies) Order (1981) at and Marine Spaces (Archipelagic baselines and Exclusive Economic Zone) Order (1981) at . 64 See Agreement between the Government of the Republic of France and the Government of Fiji relating to the Delimitation of their Economic Zone (1983) at .
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normally used for international navigation and overflight.’ Section 10(1) establishes a right of innocent passage in archipelagic waters. Jamaica: The Maritime Areas Act of 28 November 199665 declares Jamaica to be an archipelagic State.66 One would not at first glance view Jamaica as a potential archipelagic State but, by utilizing outlying rocks and cays, Jamaica has been able to capture enough water to satisfy the 1:1 water to land ratio test in Article 47(1) of the LOSC. Section 6(1) of the Maritime Areas Act provides that ‘[t]he archipelagic baselines shall consist of straight baselines joining the outermost points of the outermost islands and drying reefs of Jamaica.’ Waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.67 Section 26(1) of the Maritime Areas Act provides for the designation of archipelagic sea lanes. To date, no archipelagic sea lanes have been designated. Section 9 of the Act affords all foreign vessels and aircraft a right of archipelagic sea lanes passage in archipelagic sea lanes. Until such lanes are designated, the right of archipelagic sea lanes passage ‘may be exercised through the routes normally used for international navigation.’ Section 8(1) establishes a right of innocent passage in archipelagic waters. Papua New Guinea: The National Seas Act of 7 February 197768 permits the designation of archipelagic baselines.69 Waters enclosed by such baselines are attributed the status of archipelagic waters.70 Archipelagic base points were specified by executive declaration on 25
65
See . 66 Ibid., Section 3. 67 Ibid., Section 5(a). 68 See and . 69 Ibid., Sections 7, 8. 70 Ibid., Section 7(2).
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July 2002.71 The National Seas Act does not provide for the designation of archipelagic sea lanes and does not regulate passage through the archipelagic waters. São Tomé & Príncipe: Law No. 1/9872 specifies the coordinates of archipelagic baselines.73 In a similar manner to Jamaica, São Tomé and Príncipe does not appear to be an obvious candidate for archipelagic status. However, through the designation of multiple short segments together with two long archipelagic baseline segments joining the two main islands of the country, the water-to-land ratio requirement has been met and an arguably valid set of archipelagic baselines constructed. Article 3 provides that ‘[t]he waters that are enclosed by the baseline are the archipelagic waters in the Democratic Republic of São Tomé and Príncipe.’ Law No. 1/98 does not provide for the designation of archipelagic sea lanes. Article 7 provides that ‘[a]ll … States may enjoy the freedoms of navigation, overflight and installation of submarine cables, tubes, as well as the other internationally legitimate uses of the sea related to navigation and communication.’ Additionally, the preambular text of Law No. 1/98 suggests that the statute should be read ‘[t]aking into account the United Nations Convention on the Law of the Sea.’ This suggests that, with regard to navigation, São Tomé and Príncipe’s Law No. 1/98 may be read as being in accordance with the terms of Part IV of the LOSC. That is, in the absence of designated archipelagic sea lanes, the right of archipelagic sea lanes passage exists through routes normally used 71
See Declaration of the baselines by method of coordinates of base points for purposes of the location of archipelagic baselines, 25 July 2002 at . 72 Law No. 1/98 on delimitation of the territorial sea and the Exclusive Economic Zone (1998) at . An illustrative map may be viewed at . 73 Ibid., Article 2.
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for international navigation in accordance with LOSC Article 53(12) and that the right of innocent passage exists through archipelagic waters in accordance with LOSC Article 52. Solomon Islands: The Delimitation of Maritime Waters Act of 21 December 197874 provides for the designation of archipelagic baselines ‘in accordance with the rules of international law’.75 Archipelagic base points were specified by executive declaration in 1979.76 Waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.77 Section 10(2) of the Act provides for the designation of archipelagic sea lanes. To date, no archipelagic sea lanes have been designated. Section 10(3) of the Delimitation of Maritime Waters Act affords all ships and aircrafts the right of archipelagic sea lanes passage in archipelagic sea lanes and provides that, until such lanes are designated, the right of archipelagic sea lanes passage may be exercised ‘through and over all routes normally used for international navigation and overflight.’ Section 10(1) of the legislation further provides that ‘ships and aircraft of all States shall, in accordance with the rules of international law, have the right of innocent passage through and over the territorial seas and archipelagic waters.’ Trinidad and Tobago: The Archipelagic Waters and Exclusive Economic Zone Act of 11 November 198678 declares Trinidad and Tobago to be an archipelagic State.79 Section 6 of the Act provides for the 74
See . 75 Ibid., Section 4(2). 76 See Legal Notice No. 41 of 1979: Declaration of Archipelagic Baselines at . 77 See Section 4(1). 78 See . 79 Ibid., Section 3.
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designation of archipelagic baselines. Archipelagic base points were specified by executive order on 31 October 1988.80 Waters enclosed by archipelagic baselines are assigned the status of archipelagic waters.81 Section 32 of the Archipelagic Waters and Exclusive Economic Zone Act permits ‘[t]he designation of archipelagic sea-lanes passage’ by executive regulation. To date, no such designation has been made and no regulations have been promulgated regarding archipelagic sea lanes passage. Section 11 of the Act grants a right of innocent passage through the archipelagic waters. No mention is made of the right of archipelagic sea lanes passage through routes normally used for international navigation in the absence of designated archipelagic sea lanes in accordance with LOSC Article 53(12). Vanuatu: The Maritime Zones Act of 4 October 198282 specifies the coordinates of archipelagic baselines.83 Waters enclosed by the archipelagic baseline are attributed the status of archipelagic waters.84 Section 6(1) of the Act establishes a right of innocent passage in archipelagic waters. Although Section 6(2) of the Act provides for the designation of archipelagic sea lanes, no such sea lanes have been designated to date. The Act does not specify what navigational rights exist 80
Archipelagic Baselines of Trinidad and Tobago Order 1988: Notice No. 206 of 31 October 1988 at . The same set of coordinates are specified by the following document: Geographical Coordinates of Points Used for Determining the Archipelagic Baselines of Trinidad and Tobago Transformed to WGS84 Datum (as deposited by Trinidad and Tobago with the Secretary-General, in accordance with the United Nations Convention on the Law of the Sea, on 14 May 2004) at . 81 Supra note 78, Section 4. 82 See and . 83 Ibid., Schedule of the Act. 84 Ibid., Section 4.
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in the archipelagic sea lanes and ambiguously refers to ‘rights of navigation and overflight’ that exist until such time as archipelagic sea lanes are designated.85 NAVIGATIONAL IMPLICATIONS OF STATE PRACTICE: CATEGORY 2 CLAIMANTS Although the States in category 2 have defined their archipelagic baselines in accordance with LOSC Article 47, as we have seen, none of them have designated archipelagic sea lanes through and air routes above their archipelagic waters. As noted above, the right of innocent passage exists through archipelagic waters in accordance with LOSC Article 52. Additionally, in the absence of designated sea lanes, the right of archipelagic sea lanes passage exists through all routes normally used for international navigation in accordance with LOSC Article 53(12). The national legislation of Antigua and Barbuda, Fiji, Jamaica and the Solomon Islands is consistent with these provisions of the LOSC. That of Papua New Guinea, São Tomé and Príncipe, Trinidad and Tobago and Vanuatu either leaves some uncertainty of interpretation, is incomplete or inconsistent with the provisions of LOSC. CATEGORY 3 CLAIMANTS Four States, namely Cape Verde, the Dominican Republic, the Maldives and the Philippines have claimed archipelagic State status but have designated archipelagic baselines in a manner contrary to LOSC Article 47 and have not designated archipelagic sea lanes.
85
Section 15 provides: ‘Until such time as sea lanes or air routes are designated under the provisions of section 6(2) or any other law, rights of navigation and overflight may, subject to the provisions of this Act or any other law, be exercised through and over the routes normally used for international navigation and overflight.’ It may be implied that ‘rights of navigation and overflight’, which are not described in further detail by the Act, also exist in designated archipelagic sea lanes.
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Cape Verde: Law No. 126/77 of 1977 specified 14 archipelagic base points.86 The resulting baseline configuration contravened LOSC Article 47 in the following manner: First, two baseline segments exceeded the maximum permitted length of 125 nautical miles.87 Second, the water enclosed by the archipelagic baselines exceeded the maximum allowable water to land ratio of 9:1.88 The archipelagic baseline configuration established by Law No. 126/77 was protested by the United States Government in 1980.89 Law No. 60/IV/92 of 21 December 199290 contains an amended set of archipelagic base points.91 The new baselines have not attracted international protest and have been acknowledged in maritime delimitation agreements with Senegal and Mauritania.92 Waters enclosed by the resulting archipelagic baselines are attributed the status of archipelagic waters.93 Article 22 of Law No. 60/IV/92 provides for the designation of archipelagic sea lanes. To date, no such sea lanes have been designated. Article 5, which provides that ‘the Republic of Cape Verde shall respect 86
Roach and Smith, supra note 11, p. 215. Ibid., p. 125. 88 Ibid., p. 215. 89 Ibid. 90 See . 91 See, ibid., Article 24. See also, Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, Maritime Space: Maritime Zones and Maritime Delimitation: State Practice on the Internet: Africa at . 92 See Treaty on the Delimitation of the Maritime Frontier between the Islamic Republic of Mauritania and the Republic of Cape Verde at and Treaty on the Delimitation of the Maritime Frontier Between the Republic of Cape Verde and the Republic of Senegal 17 February 1993 http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/PDFFILES/TREATIES/C PV-SEN1993MF.PDF. Arguably, therefore, Cape Verde could be considered as a Category 2 State, although a technical analysis of Cape Verde’s new archipelagic baselines has yet to be undertaken. 93 Supra note 90, Article 2. 87
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any existing agreements which are related to activities in its archipelagic waters’, may reasonably be interpreted as permitting the exercise of archipelagic sea lanes passage in a manner consistent with the LOSC. Article 6 establishes a right of innocent passage in archipelagic waters. Dominican Republic: Act No. 186 of 13 September 196794 sought to enclose an extensive body of coastal waters within a system of straight baselines drawn in relation to coastal bays.95 The 1967 Act served to close ten bays – eight as ‘geographic’ bays and the remaining two as ‘historic bays’.96 The United States Government did not recognise these claims and has conducted a number of operational assertions against them.97 It is relevant to note that Article 4 of the 1958 Convention on the Territorial Sea and Contiguous Zone and LOSC Article 7 permit a coastal State to employ straight baselines only in localities where the coastline is deeply indented and cut into, or where a fringe of islands exists in the immediate vicinity of the coast.98 Law 66-07 of 22 May 2007 amends Act No. 186 of 13 September 1967 by proclaiming the archipelagic status of the Dominican Republic and designating geographical coordinates for the drawing of archipelagic 94
Act No. 186 of 13 September 1967 on the Territorial Sea, Contiguous Zone, Exclusive Economic Zone and Continental Shelf at . 95 Ibid., Article 2. 96 Ibid. See also, The Geographer, United States Department of State, Bureau of Intelligence and Research, Limits in the Seas No. 5 Straight Baselines: Dominican Republic (25 January 1970) . This analysis notes that four of the eight ‘geographic’ bays do not meet the semi-circle test set out in LOSC Article 10. With regard to historic bays, the US State Department’s analysis observes that three bays listed as historic bays in 1957 were claimed as geographic bays in the 1967 legislation and that the two historic bays claimed in the 1967 legislation were not mentioned in the Dominican Republic’s 1957 legislation. 97 See Roach and Smith, supra note 11, pp. 19, 78. See also United States Department of Defence Technical Information Centre, Maritime Claims Reference Manual: Dominican Republic (2005) at 98 Ibid., pp. 18-19.
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baselines.99 A definitive assessment of how Law 66-07 complies with the LOSC awaits publication of the Law in the United Nations Law of the Sea Bulletin. Nonetheless, considering the geographic configuration of the Dominican Republic, it appears highly unlikely that the system of archipelagic baselines established by Law 66-07 will enclose enough maritime space for the water: land ratio to exceed 1:1, as required by LOSC Article 47(1). Maldives: The Maritime Zones of Maldives Act of 1996100 specifies coordinates of archipelagic baselines101 and replaces a 1972 maritime claim to a rectangular area of water surrounding the Maldivian archipelago.102 Waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.103 According to the US Government, the baseline configuration established by the Act contravenes the LOSC in the following manner: Article 47.2 of the LOS Convention provides that the length of the baselines shall not exceed 100 miles, except that up to 3 per cent of the total number of baseline segments enclosing any archipelago may exceed that length, up to a maximum length of 125 miles. The Maldives archipelagic straight baseline system is composed of 37 segments, permitting only one segment to be 99
See Division for Ocean Affairs and the Law of the Sea, Office of Legal Affairs, United Nations, Maritime Space: Maritime Zones and Maritime Delimitation: State Practice on the Internet: Dominican Republic . 100 See . 101 Ibid., Schedule 1 of the Act. 102 This claim, defined by two parallels and two meridians, was protested by the United States Government. See Roach and Smith, supra note 11, pp. 132-134. See also, V. Forbes and P. Armstrong, ‘The Sector Principle: Two Indian Ocean Examples’, 2 Boundary and Security Bulletin, No. 4 (Winter), 1995, pp. 92-95. 103 Ibid., Article 3.
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over 100 miles long. However, three baseline segments exceed 100 miles in length (segments14-15, 28-29 and 36-37).104 Article 12 of the Maritime Zones of Maldives Act provides that foreign vessels have a right of ‘continuous and expeditious archipelagic passage in the sea lanes designated by the Government of Maldives from among international navigation channels.’ To date, no such sea lanes have been designated. Article 15 of the Maritime Zones of Maldives Act regulates the passage rights of foreign aircraft as follows: … (a) Except in accordance with international standards and applicable regulations in force in Maldives, no foreign aircraft shall engage in any overflight across the airspace or via air routes above the land territory, internal waters, archipelagic waters and territorial sea of Maldives. Except as provided above, no aircraft shall enter the foregoing airspace or air routes. (b) No foreign military aircraft shall engage in overflight across the airspace or air routes specified in subsection (a) of this section except with the authorization of the Government of Maldives. Except as provided above, no military aircraft shall enter the foregoing airspace or air routes. Article 15(a), by virtue of the phrase ‘in accordance with international standards’, may reasonably be interpreted as affording rights of archipelagic sea lanes passage and innocent passage to foreign nonmilitary aircraft. As noted in diplomatic protests of the US Government,105 Article 15(b) is inconsistent with the LOSC, which, as mentioned above, 104
United States Department of State, Bureau of Oceans and International and Scientific Affairs, Limits in the Seas No. 126 Maldives Maritime Claims and Boundaries (2005) at . 105 See United States Department of Defence Technical Information Centre, Maritime Claims Reference Manual: Maldives (2005) at .
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does not permit the suspension of archipelagic sea lanes passage in respect of foreign military aircraft. The Philippines: As a coastal State composed entirely of over 7,000 islands, the Philippines appears well placed to claim archipelagic status and declare archipelagic baselines. Accordingly, and well before the codification of archipelagic concepts under LOSC Part IV, the Philippines established baselines through Republic Act No. 3046 of 17 June 1961106 and subsequently amended them through Republic Act No. 5446 of 18 September 1968,107 which was entitled ‘An Act to Amend Section One of the Republic Act Numbered Thirty Hundred and Forty-Six, Entitled An Act to Define the Baselines of the Territorial Sea of the Philippines’. Although the baseline system so defined appears to be archipelagic in character it is somewhat unclear whether this was indeed what was being claimed as a number of inconsistencies exist in the claims of the Philippines. First, the relevant Philippines legislation refers to ‘straight baselines’ rather than ‘archipelagic straight baselines’.108 Second, the Philippines baseline designation includes a single baseline segment closing the Moro Gulf that measures approximately 141 nautical miles. If these baselines are indeed intended to be archipelagic straight baselines, the Moro Gulf closing line is clearly problematic as it is considerably longer than the maximum baseline length of 125 nautical miles laid down in Article 47(2). Third, pursuant to the 1973 Constitution of the Republic109 and the above Acts, waters enclosed by the Philippine baseline configuration are defined as ‘inland or internal waters of the 106
See . 107 See . See also Churchill and Lowe, supra note 2, pp. 128-129. 108 See supra notes 106 and 107. 109 Constitution of the Republic (in force since 17 January 1973), Article 1 at .
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Philippines’110 rather than archipelagic waters. Fourth, waters enclosed by archipelagic baselines are regulated in a manner akin to position of international law with regard to internal waters.111 Philippine law does not, for example, recognise a right of innocent passage or archipelagic sea lanes passage in waters enclosed by Philippine baselines.112 The Philippines has justified the above claims on the grounds that they are a valid exercise of territorial sovereignty conferred by the Treaty of Paris of 1898,113 under which Spain ceded sovereignty over the Philippines and a surrounding body of sea to the United States.114 This justification is highly questionable on a number of grounds: First, the specific grants of sovereignty set out in the Treaty of Paris are ambiguous,115 subject to subsequent international agreements including the LOSC, and are only binding on consenting or acquiescent States.116 Second, neither the LOSC nor relevant customary international law appear to provide a legitimate alternative to Part IV for the drawing of straight baselines connecting outer points of the outer islands of an archipelago. It is contended that this is notwithstanding the considerable variation in State
110
Act No. 3046 of 1961 provides: ‘Whereas, all the waters around, between and connecting the various islands of the Philippine archipelago, irrespective of their width or dimension, have always been considered as necessary appurtenances of the land territory, forming part of the inland or internal waters of the Philippines;’. 111 See Roach and Smith, supra note 11, pp. 400, 401. 112 Ibid., pp. 264, 400, 401. 113 A Treaty of Peace Between the United States and Spain, U.S. Congress, 55th Cong., 3d sess., Senate Doc. No. 62, Part 1 (Washington, Government Printing Office, 1899), pp. 5-11. The text of the Treaty may be viewed at . 114 See Roach and Smith, supra note 11, p. 216. 115 Ibid., 217. 116 For a discussion of principles of treaty interpretation and the concept of acquiescence, see M. Shaw, International Law (Cambridge, Cambridge University Press, 5th edition, 2003), pp. 810-860, 84-86. See also the Vienna Convention on the Law of Treaties, 1155 UNTS 331, entered into force 27 January 1980, available at .
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practice regarding claims to straight baselines on the basis of LOSC Article 7.117 A number of States have protested the failure of the Philippines to designate baselines compliant with LOSC Article 47118 and guarantee the rights of innocent passage or archipelagic sea lanes passage in waters enclosed by Philippine baselines.119 In response to an Australian objection, the Philippine Government has issued a declaration which indicates an intention to harmonize domestic legislation with the LOSC.120 The declaration also states that ‘The Philippine Government … wishes to assure the Australian Government and the State Parties to the Convention that the Philippines will abide by the provisions of said Convention.’121 In respect of navigation by warships, the Philippines has subsequently refused to recognise the existence of rights of passage in waters enclosed by its baselines, notwithstanding this commitment.122 It has long been understood that the Philippines is in the process of revising its legislation with the aim of claiming archipelagic baselines, such action has, however, been slow to materialize, largely because of tensions between the Philippines baselines and maritime claims under the LOSC regime and the country’s longstanding claims to the so-called ‘Treaty Limits’ on which they are superimposed.123 A Bill124 designed to redefine and update the baselines of the Philippines was considered by the 117
See, for example, Roach and Smith, supra note 11, pp. 57-144 and Prescott and Schofield, supra note 15, pp. 139-166. 118 See Roach and Smith, supra note 11, pp. 214, 216-217, 219-222. 119 Ibid., p. 403. 120 Ibid. 121 Ibid. 122 Ibid., pp. 27, 263. 123 The Philippines claims that the limits of its national territory, and consequently its territorial sea, are those laid down in its ‘Treaty Limits’, in particular those limits established under the Treaty of Peace between the United States and Spain, done in Paris, December 10, 1898. 124 See Senate Bill No. 2181 of 2008 at .
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Philippine Congress in 2008 but was not passed.125 Significantly, the proposed legislation did not seek to modify the existing regulation of navigation rights in Philippine waters. NAVIGATIONAL IMPLICATIONS OF STATE PRACTICE: CATEGORY 3 CLAIMANTS It is not entirely clear whether a failure to comply with the technical requirements of LOSC Article 47 deprives a State of archipelagic waters, which, as noted above, are defined by LOSC Article 49(1) as ‘waters enclosed by the archipelagic baselines drawn in accordance with article 47…’ Read narrowly, Article 49(1) would require, as a precondition of archipelagic waters, the complete enclosure of a body of water by baselines drawn in accordance with LOSC Article 47. A narrow reading of Article 49(1) would preclude the States identified in category 3 from claiming archipelagic waters. It would follow that no right of archipelagic sea lanes passage would exist in the waters of such States because the presence of archipelagic waters is a precondition of archipelagic sea lanes passage. It would also follow that such States would only be entitled to claim a territorial sea of no more than 12 nautical miles as measured baselines drawn around each constituent island.126 A right of innocent
125
The proposed legislation stimulated considerable debate. Proponents of the Bill have stressed that the establishment of archipelagic baselines is a necessary pre-requisite of advancing an extended continental shelf claim pursuant to the LOSC. Opponents of the Bill have argued that passage of the Bill would escalate an ongoing territorial dispute between the Philippines, Vietnam and China regarding the Spratly Islands. Relevant newspaper articles and press releases are available at: , , and , . 126 See LOSC Articles 3-14 regarding the drawing of non-archipelagic baselines.
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passage would exist in such territorial sea,127 with high seas navigational freedoms existing in each State’s Exclusive Economic Zone.128 Read broadly, LOSC Article 49(1) would permit the States identified in category 3 to claim archipelagic waters even if parts of their archipelagic baselines system failed to comply with the terms of LOSC Article 47 or were incomplete. Such a broad interpretation of Article 49(1) would appear to be consistent with current State practice: As outlined above, the ability of Indonesia to designate archipelagic sea lanes in archipelagic waters has achieved international acceptance notwithstanding the fact that the Indonesian archipelago is not wholly enclosed by archipelagic baselines. CATEGORY 4 CLAIMANTS Eight claimant States, namely: the Comoros Islands, the Bahamas, Kiribati, the Marshall Islands, Seychelles and Tuvalu and Saint Vincent & the Grenadines have either claimed archipelagic State status or are generally classified as such. This category of claimant States have neither defined their archipelagic baselines nor designated archipelagic sea lanes. Relevant State practice may be summarised as follows: Comoros: Law No. 82-005 of 6 May 1982129 provides that ‘[t]he sovereignty of the Comorian State extends to the waters enclosed by the baselines, described as archipelagic waters, regardless of their depth or distance from the coast.’ The Law does not specify base points or provide for the designation of baselines. A right of innocent passage is established in archipelagic waters and the territorial sea. 130 The Law does not provide 127
See LOSC Article 17. See LOSC Article 58, 87. 129 Law No. 82-005 Relating to the Delimitation of the Maritime Zones of the Islamic Federal Republic of the Comoros of 6 May 1982 at . 130 Ibid., Articles 2, 5. 128
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for the designation of archipelagic sea lanes, or the exercise of archipelagic sea lanes passage. Bahamas: The Archipelagic Waters and Maritime Jurisdiction Act of 1993131 provides for the designation of archipelagic baselines ‘in accordance with international law’.132 As of May 2006 no such baselines have been designated.133 This is despite the fact that it is generally understood that LOSC Article 47(7) was drafted with the Bahamas in mind. Article 47(7) of the LOSC provides that, for the purpose of computing the water to land ratio under Article 47(1), ‘…land areas may include waters lying within fringing reefs of islands and atolls, including that part of a steep-sided oceanic plateau which is enclosed or nearly enclosed by a chain of limestone islands and drying reefs lying on the perimeter of the plateau.’134 According to the 1993 Act, waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.135 Section 4(3) of the Act provides that, in absence of designated archipelagic baselines, ‘the baselines from which the breadth of the territorial sea of The Bahamas is measured shall be the low-water line along the coast of each island.’ Section 11(1) of the Act provides for the designation of archipelagic sea lanes passage above archipelagic waters. Section 11(2) establishes a right of archipelagic sea lanes passage in ASLs. In absence of designated 131
See . 132 Ibid., Section 3(2). 133 See N. Turnquest, Delimitation of The Maritime Boundary Between the Commonwealth of The Bahamas and The United States of America: A Case Study (2006) United Nations Nippon Foundation of Japan Fellowship Programme at . 134 Of particular note in this context is that LOSC Article 47(7) does not specify that such fringing reefs should stand above the low-water line. It remains uncertain precisely how this will be implemented in practice. For discussion on this point see, Prescott and Schofield, supra note 15, pp. 176-177. 135 Supra note 131, Section 3(1).
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ASLs, the right of archipelagic sea lanes passage may be exercised ‘through the routes normally used for international navigation.’136 Section 5 establishes a right of innocent passage in archipelagic waters and the territorial sea. Kiribati: The Marine Zones (Declaration) Act of 16 May 1983137 provides for the designation of archipelagic baselines ‘in accordance with the rules of international law’.138 To date, no such baselines have been designated. Waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.139 In absence of designated archipelagic baselines, baselines are drawn by reference to the ‘low-water line of the seaward side of the reef fronting the coast of any part of Kiribati or bounding any lagoon waters adjacent to any part of that coast or where a reef is not present the low-water line of the coast itself’.140 Section 9(2) of the Act provides for the designation of archipelagic sea lanes ‘through and over the archipelagic waters and the adjacent territorial seas’. Section 9(3) establishes a right of archipelagic sea lanes passage in archipelagic sea lanes. In absence of designated archipelagic sea lanes, the right of archipelagic sea lanes passage may be exercised ‘through and over all routes normally used for international navigation and overflight.’141 Section 9(1) provides that ‘[s]ubject to the succeeding provisions of this section, ships and aircraft of all States have, in accordance with the rules of international law, the right of free passage through and over the territorial seas and the archipelagic waters of Kiribati.’
136
Ibid., Section 11(5). See . 138 Ibid., Section 5(2). 139 Ibid., Section 5(1). 140 Ibid., Sections 2(1), 4 and 6. 141 Ibid., Section 9(4). 137
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Marshall Islands: The Maritime Zones (Declaration) Act of 17 August 1984142 provides for the designation of archipelagic baselines ‘in accordance with the rules of international law’.143 To date, no such baselines have been designated. Waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.144 In absence of designated archipelagic baselines, baselines are drawn by reference to ‘the low-water line of the seaward side of the reef fringing the coast of any part of the Marshall Islands or bounding any lagoon waters adjacent to any part of that coast, or where a reef is not present the low-water line of the coast itself’.145 Section 11(2) of the Act provides for the designation of archipelagic sea lanes ‘through and over the archipelagic waters and the adjacent territorial seas.’ Section 11(3) establishes a right of archipelagic sea lanes passage in archipelagic sea lanes. In absence of designated archipelagic sea lanes, the right of archipelagic sea lanes passage may be exercised ‘through and over all routes normally used for international navigation and overflight.’146 Section 11(1) provides that ‘[s]ubject to the succeeding provisions of this section, ships and aircraft of all States have, in accordance with the rules of international law, the right of free passage through and over the territorial sea and the archipelagic waters (if any) of the Republic.’ Seychelles: Section 3(1) of the Maritime Zones Act of 16 March 1999147 provides that ‘[t]he baselines for the purpose of this Act shall be: (a) The low-water line; or (b) Where the President has prescribed straight 142
See . 143 Ibid., Section 6(2). 144 Ibid., Section 6(1). 145 Ibid., Sections 2(1), 7. 146 Ibid., Section 11(4). 147 See .
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archipelagic baselines under subsection (2), the archipelagic baselines.’ To date, archipelagic baselines have not been designated. Waters enclosed by archipelagic baselines are attributed the status of archipelagic waters.148 Section 19 of the Act provides for the designation ‘sea lanes and air routes to be used for or in connection with the exercise of the right of archipelagic sea lanes passage under this Act’. Section 18 establishes a right of archipelagic sea lanes passage in archipelagic sea lanes. Section 18(5) provides: ‘Where no sea lanes or air routes through or over archipelagic waters have been designated under section 19, the right of archipelagic sea lanes passage may be exercised through lanes or routes normally used for international navigation.’ Section 16 of the Act establishes a right of innocent passage through the territorial sea and archipelagic waters. Foreign warships and vessels containing radioactive substances are prohibited from exercising the right of innocent passage without prior authorization.149 As noted in diplomatic protests of the US Government,150 the LOSC does not permit a coastal State to generally prohibit the passage of such vessels.151 Tuvalu: The Marine Zones (Declaration) Act of 1983152 provides for the designation of archipelagic baselines ‘in accordance with the rules of international law’.153 To date, archipelagic baselines have not been designated. Waters enclosed by archipelagic baselines are attributed the 148
Ibid., Section 6. Ibid., Sections 6(2), 6(4). 150 See, e.g., United States Department of Defence Technical Information Centre, Maritime Claims Reference Manual: Seychelles (2005) . See also, Roach and Smith, supra note 11, p. 259. 151 See Roach and Smith, supra note 11, pp. 251-259. See also LOSC Articles 17-32 regarding the right of innocent passage. See especially Article 23, entitled, ‘foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances’. 152 See . 153 Ibid., Section 6(2). 149
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status of archipelagic waters.154 In absence of designated archipelagic baselines, baselines are drawn by reference to the ‘low-water line of the seaward side of the reef fringing the coast of any part of Tuvalu or bounding any lagoon waters adjacent to any part of that coast, or where a reef is not present the low-water line of the coast itself’.155 Section 11(2) of the Act provides for the designation of archipelagic sea lanes ‘through and over the archipelagic waters and the adjacent territorial sea’. Section 11(3) establishes a right of archipelagic sea lanes passage in archipelagic sea lanes. In absence of designated archipelagic sea lanes, the right of archipelagic sea lanes passage may be exercised ‘through and over all routes normally used for international navigation and overflight.’156 Section 11(1) provides that ‘[s]ubject to the succeeding provisions of this section, ships and aircraft of all States have, in accordance with the rules of international law, the right of free passage through and over the territorial sea and the archipelagic waters (if any) of Tuvalu.’ Saint Vincent and the Grenadines: The Maritime Areas Act of 19 May 1983157 provides for the designation of archipelagic baselines. 158 The Act does not establish a means of defining maritime zones in absence of such baselines. To date, no archipelagic baselines have been designated. Section 12(1) of the Act provides for the designation of archipelagic sea lanes ‘through or over the archipelagic waters and the adjacent territorial sea.’ Section 12(2) provides that ‘[a]ll ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes’. The Act does not expressly permit nor prohibit the exercise of archipelagic sea lanes passage in absence of designated archipelagic sea lanes. Section 154
Ibid., Section 6(1). Ibid., Sections 2(1), 7(1). 156 Ibid., Section 11(4). 157 See . 158 Ibid., Section 16. 155
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10(1) establishes a right of innocent passage in archipelagic waters and the territorial sea.159 Section 10(2) prohibits foreign warships from navigating in archipelagic waters or the territorial sea without prior permission.160 NAVIGATIONAL IMPLICATIONS OF STATE PRACTICE: CATEGORY 4 CLAIMANTS The national legislation promulgated by the category four claimants outlined above is perhaps best termed enabling legislation, as none of the archipelagic States in question have defined archipelagic baselines and thus possess no archipelagic waters. At the time of writing therefore, while these States may be categorized as archipelagic States in the symbolic political sense, their archipelagic State status presently has no navigational consequences. Consequently, these States are only entitled to territorial seas around each island constituting the archipelago in accordance with LOSC Articles 5 and 7, with a right of innocent passage applying in the territorial sea and high seas freedoms relating to navigation and overflight applying through and above their Exclusive Economic Zones. A number of category four claimant States are likely to face considerable challenges in establishing a system of archipelagic baselines that comply with the technical requirements contained in LOSC Article 47. As previously noted, the limited territory of Kiribati allied to exceptionally dispersed configuration of its constituent islands makes it difficult, if not impossible, to envisage the construction of a system of archipelagic baselines complaint with LOSC Article 47 and, in particular, the requirement under Article 47(1) that no more than nine times as much water as land may be so enclosed. It seems likely that the Marshall Islands, Seychelles and Tuvalu may face similar challenges, although it is possible that all of these States may be able to draw LOSC Article 47 159 160
Ibid., Section 10(1). Ibid., Section 10(2).
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compliant baselines around limited parts of their archipelagos. The Bahamas faces different concerns in applying LOSC Article 47(7) in the construction of its archipelagic baselines system as there are uncertainties as to how this provision should be applied in practice.161 In contrast, there appears little reason to conclude that either the Comoro Islands or Saint Vincent and the Grenadines could not define a valid system of archipelagic baselines encompassing substantial portions of their archipelagos in accordance with LOSC Article 47.162 CONCLUSION The provisions in LOSC Part IV represent one of the innovative aspects of the Convention. In view of the State practice discussed above, it is apparent that archipelagic State status may exist in one of two contexts. First, an archipelagic State status may be claimed for symbolic political reasons without any navigational consequences. This is arguably the least analysed and understood aspect of LOSC Part IV. Second, and more significantly, a claim to archipelagic State status may be accompanied by the establishment of archipelagic waters through which the right of archipelagic sea lanes passage may be exercised. Archipelagic State claimants in the second context enjoy considerable advantages, notably through the claiming of potentially broad maritime areas as archipelagic waters enclosed by archipelagic baselines. However, the proper designation and maintenance of archipelagic sea lanes is likely to represent a considerable undertaking. As seen above, such archipelagic sea lanes need to encompass all the major routes used for international 161
Particularly regarding the standards to be applied in identifying waters ‘enclosed or nearly enclosed by a chain of limestone islands or drying reefs’ lying on the perimeter of a steep-sided oceanic plateau in accordance with Article 47(7). See, Prescott and Schofield, supra note 15, p.177. 162 A problematic political issue for the Comoro Islands in this context may be the existence of a territorial dispute with France over the island of Mayotte which, just prior to independence for the Comoro Islands, voted to remain part of France. See, Prescott and Schofield, supra note 15, p. 282.
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navigation and it is the responsibility of the archipelagic State to ensure that both surface and sub-surface navigation is safe in all such sea lanes. This may well require extensive, and expensive, hydrographic surveying efforts in order to provide modern nautical charting adequate to the task, as well as considerable investment in navigational aids along the routes of archipelagic sea lanes.163 Given current State practice, it appears that concerted international effort and assistance is required in order to achieve full implementation of the navigational regime established by LOSC Part IV. Thus far, the only archipelagic States entitled to claim archipelagic waters are developing States. In light of this fact it is not surprising that only one archipelagic State, Indonesia, has invested the effort to designate archipelagic sea lanes, and has done so only partially. International burden sharing in the implementation of the technical and navigational aspects of LOSC Part IV is in the interest of the international community as whole given the central role of international shipping in sustaining global commerce. A quarter of a century since the conclusion of the LOSC, it is clear that the conceptualization and implementation of Part IV are still in their infancy.
163
See Prescott and Schofield, supra note 15, pp. 13-14.
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Edited Transcript of Question and Answer Session Panel V: Archipelagic Sea Lanes Passage
Sir Michael Wood: Ambassador Djalal, who wanted to speak in the last panel, has asked for the floor. Professor Dr. Hasjim Djalal: I have questions and one remark. The remark is that Martin forgot to mention that in the establishment of sea lanes there is no need for double-routes of similar convenience. After very, very lengthy negotiations and discussions with Australia and the United States, we agreed, basically, that Banka (Bangka) Strait within the Banka islands and Sumatra actually is very similar to the other routes on the eastern side of the Banka islands. Originally, it was in the proposal, but then after some discussion we agreed with them. But I do admit that the east-west lanes are not yet enacted. That’s what Martin meant by partial. We understood at that time also that some day, some how, some time, after we finish with the survey and the study of that one, we’ll have to work on the establishment of the east-west lane. The IHO (International Hydrographic Organization) told us that if you designate and submit proposals, you must be very clear with the hydrographic data and information and so forth, so that the routes that we designate are safe. This is very important because in the original proposals of some of our people, the routes that were designated went through very shallow waters, went through banks, went through reefs, and so forth, so it was not safe. The IMO later on agreed with those proposals. The issue remaining is the east-west lane that we should establish. The other one is a question for Martin. Can normal continental countries, which are not archipelagic, apply archipelagic principles in some of their own coast lines? We have this problem in South East Asia. A lot of countries which are not basically archipelagic, are applying these 100 mile, 125 mile criteria for the determination of their own baselines. That is my question. The final 455
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point I’d like to make is that the coral reef initiative was not designed, as far as I know, to have any legal significance towards the archipelagic waters or even non-archipelagic waters. It is not a legal initiative, but it is a conservation initiative. We are looking into the coral part, not so much into the legal status of the waters. Timor-L’Este, for instance, is not an archipelagic State as such, but it is concerned with coral protection. I would like to explain the distinction between the coral initiatives that were launched in Bali and the legal nature of the waters. Sir Michael Wood: I invite Martin to respond to your first question. Professor Martin Tsamenyi: I thought you were going to ask more difficult questions than that. Now my reading of the Convention is that Part IV is designed especially for archipelagic States as defined. No continental archipelago would be an archipelagic State. They are required to use either Article 5 or Article 7 to delimit their baselines, but not to apply the archipelagic requirements in Article 47. That’s my view— unless someone wants to contradict it. I’m not sure whether or not there is a special case in mind. A number of these baselines that the United States has legitimately protested as excessive are not in accordance with Articles 5 and 7. Mr. Alberto A. Encomienda: Just to clarify, when I mentioned the coral reef initiative, I really don’t see the point that there was some connection with passage. When I cited the coral reef initiative of Indonesia, I precisely was trying to drive home the point that in a PSSA case, relating to quality and conservation, only one is enough justification for such a designation. Just to drive home the point about how the situation in the Philippines is in regard to these ecological aspects, marine biological aspects, and conservation, I tried to point out that in the coral triangle, the substantial part in fact is in the Philippines. I did not mean anything about the passage rights because of the coral triangle. 456
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Dr. Sam Bateman: This is just a quick operational question to Pete. It relates to the operations of organic aircraft. In your view, are ship-borne aircraft in their operations restricted to their operations within the archipelagic sea, or may they go outside? In some places the archipelagic sea lanes, and in Indonesia, they are quite narrow. I mean that must be a serious concern from a force protection point of view. Sir Michael Wood: I’ve heard of organic tomatoes, but organic aircraft? Captain Raul “Pete” Pedrozo: They must remain within the sea lanes. The aircraft must as the air space outside of the sea lane is national airspace and aircraft have to have the archipelagic State’s consent to fly in that air space. They have to remain in the 50 nautical mile sea lane. Captain J. Ashley Roach: Two points. On that last point, one of the main issues that we had to deal with in sorting out what were suitable sea lane locations was, in fact, to be able to get as much as possible in a 50mile width so that we would be able to accommodate the question you were just concerned about with regard to aircraft. I originally raised my question because of what Martin opened with in his listing of States that qualify for archipelagic States, or at least have claims listed on the DOALOS website. He may not be aware, but the Dominican Republic’s claim is very unusual. It is relatively recent—there has not been much written about it that’s public—but it has claimed the ability to draw archipelagic straight baselines from features that are not above water at high tide. It does not qualify as an archipelagic State. The United Kingdom and the United States have made that very clear to the Dominican Republic, and they’re reconsidering what they’ve done. There may be another category of archipelagic State and that is those that claim it but do not qualify for it.
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Sir Michael Wood: Tommy Koh has asked for the floor. Professor Tommy T.B. Koh: I’d like to ask Martin and Pete two questions. First, the Philippines claims to be an archipelagic State. Could you comment on whether the baselines that Alberto has shared with us are consistent or not consistent with UNCLOS? Secondly, could you comment on—if I read Alberto’s paper accurately—Alberto’s suggestion that the whole of the Philippines should be designated as a PSSA. Could you comment on that please? Professor Martin Tsamenyi: I am not an expert on baselines, but based on the reading I have done and the experts with whom I have spoken, I am assured that the Philippines baselines are straight baselines that were designated before the Law of the Sea Convention. On that basis my argument is that the Philippines doesn’t comply with the requirements in Article 47 and, consequently, the Philippines may not be an archipelagic State. This group I call “political archipelagic states” that may not be entitled to claim archipelagic waters. What are the navigational consequences if that is correct? The argument I propose was that each of the islands will have a 12 nautical mile territorial sea and they have freedom of navigation through those archipelagic waters. I am not sure whether Alberto would find comfort in that argument, but that is the logical conclusion from non-compliance with the baseline requirements. Captain Raul “Pete” Pedrozo: With regard to your second question about the PSSA, I guess I’ll mention the baselines. The official US position is that we do not recognize the baselines that have been drawn by the Philippines. As Martin alluded, what we do recognize are the 12 nautical miles around the islands, then basically high seas freedoms outside of the 12 nautical miles or the right of transit passage through the various international straits that Ambassador Encomienda mentioned. With regard to the second question on PSSAs and designating the whole 458
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country as a PSSA, I suggest that the designation of the PSSA in and of itself is really meaningless, unless you have associated protective measures for the concerns that you have with regard to shipping. What danger does international shipping pose to the area? And based on that fear, then, you should have protective measures to address that issue, whether it is a traffic separation scheme, mandatory ship reporting, or areas to be avoided. There are a whole slew of IMO-sanctioned routeing measures that can be used to protect an area, even if you don’t designate it as a PSSA. A PSSA designation isn’t really necessary for the entire Philippines. If they are concerned about a lot of traffic to the west, then they should address that through specific routeing measures that would alleviate those concerns, and not through a wholesale application to the IMO for designation of the entire Philippines as a PSSA. Mr. Alberto A. Encomienda: Firstly, about the baselines, I never said that those were archipelagic baselines. I said that we copied that mode of designating baselines from the decision of the International Court of Justice having to do, as correctly said by Professor Tsamenyi, with instituting straight baselines. So in those two senses we never claimed that these were archipelagic baselines. It was in the first place drawn way back in 1958, long before UNCLOS was signed and came into effect. Number two, as I said, we copied that from the decision of the International Court of Justice simply because there was no such thing as archipelagic baselines before. I merely mentioned that things being what they have been, the baselines that we drew in 1958 are pretty much accurate. If we are to put it in proportional terms, up to 90% of what it would have been had it been drawn under archipelagic baselines now. The only difference between the lines we drew in 1958 is that there are three lines that exceed 125 nautical miles as prescribed by the UNCLOS in terms of the longest stretch. The only point I want to say here is that archipelagic baselines or not, we never claimed it to be such, but it does almost comply with that of UNCLOS. We’re not saying that it confers 459
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any legitimacy to what we did; all I am saying is that in terms of projecting onto my principal point, we were not very far off in terms of drawing the limits to areas we want to protect. To close the point, it is the entire country that we want to declare an environmentally sensitive area. If you look at the three justifications under the revised guidelines of the IMO—having to do with economic social value, having to do with ecology, etc.,—and if we do that for the entire country, it will result anyway in a patchwork of interconnected MPAs. So rather than bring the whole system towards a song and dance routine, we would really rather just go straight to the point. The only issue we thought might be a problem is the size. But as I said just now, if you look at the Great Barrier Reef, the western European Union, the marine reserve recently declared by President Bush, the size is about the same as the Philippines. So we can’t see any real big issue here. Professor Tommy T.B. Koh: I want to pursue Alberto on this. Since the Philippines is a party to UNCLOS, why don’t you bring yourself into full compliance with the Convention? Mr. Alberto A. Encomienda: That is no problem if you talk about intention. That’s why I cited in my presentation that way back in 1987, well before UNCLOS came into force, we did attempt to pass legislation in Congress in order to get our archipelagic basepoints and baselines to conform to UNCLOS. That law did not pass because of political considerations not having to do with UNCLOS. It was a very bitterly fought, contested proceeding, such that there was no attempt again until about five years ago to have another run at getting legislation. Now, it is nearly five years in the making. It has passed the lower house of Congress, but it has yet to go to the Senate. But if you talk about intention, this is clear proof that we want and we are in the process of complying with UNCLOS.
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Sir Michael Wood: Of course, you should say that states should get their law in order before they become parties, as the United Kingdom did before we withdrew our fishery zone from Rockwell—which was very controversial. But we did that before we became a party. In fact, it delayed our becoming a party for some years. Professor Robert Beckman: I hate to pick on Ambassador Encomienda more, but in terms of your compliance with UNCLOS and your domestic law, I’d like to point out that your Constitution still provides the waters inside the baselines as the internal waters of the Philippines. You had made a declaration to that effect when you ratified the Convention. There were objections. Twenty years ago you said you would then bring your domestic law in compliance with the Convention. It still has not happened. If they are not archipelagic baselines within the 1982 Convention then they are probably illegal under Article 7. There is a great deal of uncertainty as to what you are claiming. In fact, I’ll give one other anecdote. I was a research person at a workshop for senior military officers from the region last year. This experience raises the issue of whether the domestic legislation is not consistent with UNCLOS. The Philippino admiral there was telling me that everything within the 1898 treaty limits of the square box was Philippine waters, internal waters, territorial waters. He wasn’t sure, but he knew no one else should be there, which I had to try to explain to him that no one in the world who was not a Philippine citizen would accept. So there is a fantastic amount of confusion in your own country about exactly what you are claiming. The problem with Indonesia having only the law in Act 37 with no eastwest sea lane is that your own officers only know of Act 37 – they don’t know of what Indonesia said at the IMO – so they believe every vessel going on the east-west route is somehow violating Indonesian law. It would help if Indonesia would clarify that with its navy as well.
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Mr. Alberto A. Encomienda: We are extremely sorry that we have confused the world, but there is no confusion within the country. Now I have to go into some refinement of my explanation about domestic issues. Yes, this issue utterly is what figured into discussions in the Congress into defining what we are. But policy-wise, this is why I had to open up by talking about who initiated the archipelagic concept anyway into international law: it was the Philippines. Policy-wise, we wanted to drive home the point when first the concept was accepted in international law and we got that in the Third Conference, which we tried to confirm ourselves. But there are lingering difficult domestic issues, for example, the nature of the Treaty of Paris waters. But my bottom-line answer to this is, in the case of our own situation in the government, we are working on received policies. Secondly, I could not imagine, being a Philippino especially, that our foremost constitutionalist, Senator Tolentino, who headed our delegation in the three UNCLOS Conferences, would do something that is unconstitutional. We did fashion these things as policy. He did commit to conforming everything within a timeframe, but you know how life is—sometimes you don’t meet it. But I don’t know whether you would want to add to the confusion by insisting on implementing the laws against us when we are trying to follow the spirit of the law. Sir Michael Wood: Havas, do you want to respond? Mr. A. Havas Oegroseno: Yes. I think there is no confusion in our navy on the east-west access. As a matter of fact, they are the ones who have the hydrographic services and they are the ones that did all of the surveys back in ’94. When we complete our discussion internally, then probably they will start surveying again for the east-west access. The delegation of Indonesia went to the IHO, acting mostly coming from the navy.
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Sir Michael Wood: We have time for just one more question or comment and Ash had asked for the floor. Captain J. Ashley Roach: I just had one question. I was intrigued by Alberto’s comment that new legislation has passed the House and is awaiting the Senate. Can you tell us anything about how that legislation, if it were enacted, would deal with those issues we just talked about regarding the Treaty of Paris, the archipelagic status, and the sea lanes? Mr. Alberto Encomienda: Yes, again, the author of those pieces of legislation—there were two that defined it way back in 1958—was again Senator Tolentino. Personally, I would describe him as brilliant in importing a concept that they were trying to push in international law, but unsuccessfully (yet has been implemented in the continental sense by the ICJ), and importing the concept into our situation. Now, that is a very sharp question asked now, but I have to immerse you somewhat more in our domestic aspects. If you look at the Treaty of Paris, it describes a squarish line and a rectangular line. The reason the baseline passed the Congress is that it has nothing to do with jurisdiction; it merely said that the territorial seas will be measured from this point. The Constitution is more of a problem on that score, but just talking about the Treaty of Paris and the baselines, in the way Senator Tolentino explained it, there is no inconsistency. We are just drawing the basepoints and baselines as far as it extends seaward. The Treaty of Paris has nothing to do with the baselines. I hope you understand that explanation. It is a bit complex. Sir Michael Wood: Please join me in thanking the members of the panel.
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PANEL VI: VESSEL SOURCE POLLUTION AND PROTECTION OF THE MARINE ENVIRONMENT
Vessel Source Pollution and Protection of the Marine Environment Capt. Charles D. Michel, US Coast Guard1 Abstract The pollution of water has a serious impact on all living creatures and can negatively affect the use of water for drinking, household needs, recreation, fishing, transportation, and commerce. Despite the widespread implementation of international conventions and domestic legislation for several decades prohibiting many forms of environmentally damaging pollution emanating from vessels, there continues to be a significant number of vessels that fail to comply with their legal obligations to properly dispose of shipboard wastes. While accidental discharges do occur, a substantial number of cases involve knowing and willful acts of pollution. These are inevitably accompanied by unlawful engineering alterations, falsification of records and logs, and other attempts to obstruct law enforcement that are necessary to hide these activities. As both a major port State and flag State, the United States aggressively enforces environmental laws to protect the marine environment. Enforcement tools include informal corrective actions, port State control measures, civil penalties, and criminal enforcement. The choice of enforcement tool varies depending on the facts presented by each case and the appropriateness of the remedy for achieving the ultimate goal of compliance. Criminal prosecution of vessel owners and operators is generally 1
Captain Michel is currently the Chief of the Office of Maritime and International Law, US Coast Guard Headquarters, Washington, DC. The views expressed are those of the author and do not represent official Coast Guard policy. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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only sought when the facts of the case show the alleged violation involved intentional or culpably negligent conduct on the part of the responsible party. Employment of these enforcement tools will be demonstrated through discussions of recent actual cases. The pollution of water has a serious impact on all living creatures and can negatively affect the use of water for drinking, household needs, recreation, fishing, transportation, and commerce. Enforcement actions against persons or companies who violate marine environmental laws are a critical element in protecting the marine environment.2 Routine and deliberate vessel pollution has been estimated to cause as much as eight times the amount of oil pollution each year as catastrophic spills like the M/T Exxon Valdez oil casualty.3 The problem has led to the development of specific guidance and procedures to detect and respond to deliberate circumvention of required pollution prevention
2
The US Coast Guard is the primary federal agency responsible for the enforcement of environmental laws and treaties of the United States on the high seas, in the Exclusive Economic Zone (EEZ), in coastal areas, and in and along the navigable waters of the US. Shoreward of the baseline, the Coast Guard shares this responsibility with the Environmental Protection Agency (EPA). The US Coast Guard has two primary responsibilities with respect to protection of the marine environment: (1) Enforcing the applicable marine environmental protection statutes and implementing regulations with an eye toward preventing pollution incidents, and (2) Ensuring that a timely and effective response is initiated in response to actual pollution incidents. The primary concern when affecting a response or enforcing these laws, after the safety of people, is protection of the marine environment. 3 Organization for Economic Cooperation and Development, Cost Savings Stemming from Non-Compliance with International Environmental Regulations in the Maritime Sector 4 (OECD, 2002) (each year unscrupulous ship operators release more oil into the environment than all the spills from the maritime accidents over the last ten years), available at <www.oecd.org/dataoecd/4/26/2496757.pdf> ; Francis Wiese, World Wildlife Fund Canada “Seabirds and Atlantic Canada’s Ship-Source Oil Pollution” 11 (2002) (“On average, a minimum of 300,000 seabirds are killed every year in the waters of Atlantic Canada as a result of illegal activities of ship operators, a yearly seabird
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equipment and falsification of ship records.4 For its part, five major industry groups have acknowledged pervasive MARPOL non-compliance and called upon the industry to have “zero tolerance” for deliberate MARPOL violations and warned that “[e]very seafarer should be made fully aware of the severe legal consequences, both for the company and the seafarers themselves.”5 International law and agreements are a major source of the pollution prevention standards applicable to the maritime realm. Various international agreements establish a comprehensive framework for cooperation among nations in responding to significant pollution incidents. Most of the important international agreements were negotiated and adopted and/or administered under the auspices of the International Maritime Organization (IMO). Among the most important treaties for protection of the marine environment are the 1982 United Nations Convention on the Law of the Sea (UNCLOS)6, the International Convention for the Prevention of Pollution from Ships (MARPOL)7, and mortality equal to that caused by the Exxon Valdez disaster in Alaska in 1989.”), available at www.wwf.ca/NewsandFacts 4 The 25 Maritime Authorities of the Paris Memorandum of Understanding on Port State Control (Paris MoU) carried out a concentrated inspection campaign (CIC) with the purpose of ensuring that vessels entering the ports of the Paris MoU comply with the regulations in MARPOL Annex I. The CIC was conducted between 1 February 2006 and 30 April 2006. During the three-month campaign, 4,616 ships were inspected and 128 ships were detained for very serious deficiencies. On 86 ships, illegal overboard connections of sludge tanks were found. See http://www.parismou.org/ParisMOU/Whats+New/News/xp/menu.3941/default.aspx 5 “Shipping Industry Guidance on the Use of Oily Water Separators—Ensuring Compliance with MARPOL”, endorsed by Baltic and International Maritime Council, Intercargo, International Chamber of Shipping, International Shipping Federation, Intertanko, and Oil Companies International Marine Forum (2006) (specifically stressing the importance of insuring the accuracy of ship records); available at www.marisec.org/ows 6 1833 U.N.T.S. 397 (Dec. 10, 1982) 7 The 1973 International Convention for the Prevention of Pollution from Ships, 1340 U.N.T.S. 184, and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships. 1340 U.N.T.S. 61, 62. Together, the two treaties are generally referred to as MARPOL 73/78 (“MARPOL”).
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the London Convention.8 More than 95 percent of the world’s shipping tonnage is regulated under the flags of parties to MARPOL. Under UNCLOS and MARPOL, a vessel’s flag State has a duty to ensure that its vessels comply with international environmental rules and standards. If one of its vessels commits a violation of applicable rules and standards, the vessel’s flag State is obligated to immediately investigate the violation and, if appropriate, institute proceedings and assess penalties.9 However, when a foreign vessel is voluntarily in a port, the port State may investigate for pollution incidents and violations of law, including those involving the vessel that occurred outside the port State’s internal waters, territorial sea, or Exclusive Economic Zone (EEZ) as they relate to enforcement of international rules and standards. Similarly, under certain well-defined circumstances, a coastal State may also perform such investigations for foreign vessels operating in waters subject to its jurisdiction.10 The goal of MARPOL is “to achieve the complete elimination of intentional pollution of the marine environment by oil and other harmful substances and minimization of accidental discharge of such substances.”11 MARPOL imposes various regulations in order to achieve this objective, including a limitation on overboard discharges of oil, equipment requirements, and procedural requirements such as fully recording relevant operations in an Oil Record Book (ORB). Under MARPOL, waste oil from the vessel’s machinery spaces may be discharged only if two conditions are met: (1) the oil content of the effluent without dilution does not exceed 15 parts per million (“ppm”); and (2) the ship has “in operation” required pollution prevention 8
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, Dec. 29, 1972, 26 U.S.T. 2403. 9 UNCLOS Arts. 211 and 217. 10 UNCLOS Arts. 211, 218, and 220. 11 MARPOL Preamble (Add. 46).
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equipment (i.e., an Oily Water Separator, an oil content meter that determines when the effluent exceeds 15 ppm, and equipment that can automatically stop any discharge in excess of 15 ppm).12 An oil tanker’s overboard discharge of machinery space waste thus violates MARPOL if it exceeds the allowable concentration of oil (15 ppm) or if the required pollution prevention equipment is not in operation at the time of the discharge. MARPOL obligates parties to enforce the treaty,13 and authorizes all parties, including port States, to “cause proceedings to be taken in accordance with [their] law,”14 and enact “penalties . . . adequate in severity to discourage violations . . . and shall be equally severe irrespective of where the violations occur.”15 MARPOL specifically anticipates that the ORB will be relied upon and form the basis of enforcement actions.16 As a party, the United States has implemented MARPOL through the Act to Prevent Pollution from Ships (APPS), 33 U.S.C. §§ 19011915.17 APPS prohibits violations of MARPOL, APPS, and federal regulations promulgated pursuant to APPS.18 APPS provides criminal sanctions for knowing violations.19 APPS is typically enforced through port State control measures for foreign flag vessels.20 12
MARPOL, Annex I, Reg. 15; 33 C.F.R. § 151.10. MARPOL, Art. 1. 14 MARPOL Art. 4(2). 15 MARPOL Art. 4(4). 16 Regulations 17 and 36 provide that countries other than the flag State may make copies of the ORB, require that they be certified by the Captain as originals, and that the copies may be introduced in court in an enforcement action. 17 MARPOL contains six annexes relating to various types of pollution including oil, hazardous substances, sewage, garbage and plastics, and air pollution from ships. Annex I governing oil pollution was revised effective January 2007, modifying the numbers but not the substance of relevant regulations. 18 33 U.S.C. §§ 1907(a), 1908. 19 33 U.S.C. § 1908(a). 20 Jurisdiction under APPS depends on the nationality of the discharging vessel and the type of pollutant being discharged. The oil provisions of APPS generally apply to US 13
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APPS and its implementing regulations require the maintenance of an accurate ORB fashioned after MARPOL, which imposes virtually identical requirements,21 to record all shipboard oil transfer and discharge operations.22 The APPS ORB requirement applies to all oil tankers of 150 tons or above and to foreign-registered ships 400 tons or above while at a US port or while in the navigable waters.23 The Coast Guard has authority to inspect vessels in port to determine whether “the ship has discharged a harmful substance in violation of the MARPOL Protocol,”24 and whether “the condition of the ship and its equipment corresponds substantially with the particulars” of the ship’s International Oil Pollution Prevention certificate and its evidence of compliance with MARPOL.25 The Coast Guard has authority to inspect the ORB while a vessel is in port.26 APPS also authorizes the Coast Guard to refuse to allow a ship to enter or leave port or to refer a violation to the flag State of the vessel.27 Upon request of any party to MARPOL, the Coast Guard may also inspect a vessel flag ships beyond the baseline and in ports and terminals under US jurisdiction. APPS does not apply to US flag ships operating exclusively on internal waters, including the Great Lakes. For foreign flag vessels, the oil provisions of APPS apply only when the vessel is located in internal waters that are tidally influenced, or that in fact are, have been, or could, with reasonable improvements, be used as a highway for interstate or foreign commerce, and to the territorial sea (out to 3 nautical miles from the baseline), or in a terminal or port under US jurisdiction. Discharges of oil by foreign flag vessels beyond the 3 nautical mile US territorial sea are typically not covered by APPS, although if evidence of such discharges is discovered, it should normally be investigated. Public vessels are excluded from coverage. 21 MARPOL, Annex I, Regs. 17 and 36. 22 The ORB follows an internationally accepted format that records transfer operations in chronological order by coded and numbered entries. Ships are to keep the ORB on board for a period of three years after the date of the final entry. 23 33 U.S.C. § 1902; 33 C.F.R. §§ 151.09(a)(5), 151.25(a). 24 33 U.S.C. §§ 1907(c)(2)(A); 33 C.F.R. § 151.23(a)(3). 25 33 C.F.R. §§ 151.23(a)(1)-(2). 26 33 C.F.R § 151.23(c). 27 33 U.S.C. §§ 1908(e)-(f); see also 33 U.S.C. § 1228(a)(2) (conditioning use of United States ports and waters on compliance with United States law and treaties), 33 C.F.R. § 151.07 (conferring power to detain or deny entry to ships not in substantial compliance with MARPOL).
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while in port to determine whether the ship “may have discharged a harmful substance anywhere in violation of the MARPOL Protocol”28 (emphasis added), and provides for notice to the affected country if a violation is detected.29 All discharges and disposals of machinery space waste must be fully and accurately recorded in the ORB without delay.30 Entries are also required “[i]n the event of an emergency, accidental or other exceptional discharge of oil or oily mixture.”31 Key engine room operations “shall be fully recorded without delay in the ORB so that all the entries in the book appropriate to that operation are completed.” Each completed operation must be signed by the person or persons “in charge of the operations concerned.” 32 An ORB must also “be kept in a place as to be readily available for inspection.”33 A port State has unfettered jurisdiction to prosecute violations of its national laws that occur within its ports and internal waters34 and can 28
33 U.S.C. § 1907(c)(2)(B). Id.; 33 C.F.R. § 151.23(b). 30 33 C.F.R. § 151.25(d)(3) and 33 C.F.R. § 151.25(d)(4). 31 33 C.F.R. § 151.25(g). Emergency discharges of oil are permissible, 33 C.F.R. § 151.11, but must be accurately recorded in the ORB, 33 C.F.R. § 151.25(g). A discharge or even a “probable discharge” that is “other than as permitted” also must be reported without delay, to the fullest extent possible, and by the fastest available means. 33 C.F.R.§ 151.15. 32 33 C.F.R. § 151.25(h). 33 33 C.F.R. § 151.25(i). 34 See, e.g., United States v. Maine, 475 U.S. 89, 94 (1986) (the sovereignty of a state extends to internal waters, defined as those waters landward of a baseline which in turn is defined as the low-water line along the coast) (citing Convention on the Territorial Sea and Contiguous Zone, Apr. 29, 1958, 15 U.S.T. 1607); United States v. Louisiana, 470 U.S. 93, 98 (1985) (nation has same “complete sovereignty” over internal waters as over its land territory); Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 142 (1957) (“It is beyond question that a ship voluntarily entering the territorial limits of another country subjects itself to the laws and jurisdiction of that country.”); Mali v. Keeper of the Common Jail (“Wildenhus’ Case”), 120 U.S. 1 (1887) (United States had jurisdiction over Belgian national who killed countryman on board Belgian vessel moored at a New Jersey dock); United States v. Diekelman, 92 U.S. 520, 525 (1875) (merchant vessels of one country “visiting the ports of another . . . subject themselves to the law which 29
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condition port entry for foreign ships upon compliance with specified laws and regulations.35 The requirement to maintain fully an accurate ORB while in port establishes a condition for port entry for foreign ships doing business in the port State. When it inspects the ORB of a foreign-flag vessel at its port, the port State has a significant interest in learning whether and under what circumstances such discharges and disposals have occurred. This is equally true even where particular discharges and disposals recorded in the ORB occurred outside port State waters. Information regarding discharges as well as proper disposals in foreign ports—a required entry—is necessary to properly account for the anticipated production of waste. Truthful entries also may reveal governs the port that they visit, so long as they remain”); The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116 n.13 (1812) (“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute.”). 35 United States v. Petraia Maritime, Ltd., 483 F.Supp.2d 34 (D. Me. Apr. 6, 2007), specifically held that international law did not limit United States jurisdiction to bring a criminal prosecution under APPS for the failure to maintain an Oil Record Book while in port, even where the only falsity concerned discharges on the high seas. Id. at *5. The Petraia court reasoned that the gravamen of the offense was the Oil Record Book violation committed in port, not the discharges themselves. See also, United States v. Royal Caribbean Cruises, Ltd. (“Royal Caribbean II”), 24 F. Supp. 2d 155, 159-60 (D.P.R. 1998) (neither MARPOL nor customary international law divest the United States of criminal jurisdiction over conspiracy and false statement charges). Thus, because the deliberate failure to maintain and retain an Oil Record Book is a domestic law violation occurring in the United States, the United States has jurisdiction to enforce its domestic legislation. United States v. Ionia Mgmt. S.A., 498 F. Supp. 2d 477 at 48487 (D. Conn. 2007) recognized that, when the United States takes a criminal enforcement action against a foreign-flagged vessel that enters United States waters or ports with a falsified ORB, this is a prosecution for a violation of United States laws that occurred within United States territory. See also United States v. Kassian Maritime Navigation Agency, Ltd., No. 3:07-cr-48-J-25MCR (M.D. Fla. July 19, 2007) and United States v. Kiselyov, No. 2:07-cr-9-F3 (E.D.N.C. July 19, 2007). Two other district courts have ruled similarly without issuing a written opinion. United States v. Chian Spirit Mar. Enters., No. 06-CR-00076 (D. Del. 2007); United States v. Maniatis, No. CR S-0700024 (DLJ) (E.D. Cal. 2007). Conversely, another district court relied upon the decision being appealed in this case as a basis for a sentencing departure, while simultaneously retaining jurisdiction. United States v. Ntais (W.D. Wash. 2006) No. 3:06-CR-05661.
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MARPOL violations, result in a range of consequences while in port, and lead to a foreign referral. Accurate ORB entries can inform inspectors about problems with a vessel’s pollution prevention equipment and the possibility that similar discharges could recur in the waters of the port State. In any event, falsification of an ORB harms the port State by obstructing governmental investigation and preventing detection of alterations to pollution prevention equipment during inspections. In addition, port States also typically have an interest and responsibility as a party to MARPOL and other maritime treaties to support the system of international maritime regulation, which depends upon parties to monitor vessels’ documentation in order to ensure their compliance with a variety of international maritime laws. The APPS ORB, also required by MARPOL, is part of a comprehensive regime of international ship regulation. The APPS ORB offense occurs when the foreign-flagged vessel with an inaccurate ORB enters US waters, not when the extraterritorial discharges occur. 36 This is true even if all of the false entries and omissions relate to events that took place on the high seas. Indeed, if a foreign-flagged vessel enters US waters with an accurate ORB, regardless of the lawfulness of any discharges noted therein, an ORB offense has not occurred (although other MARPOL violations may have occurred). The “law of the flag” doctrine supports the exercise of jurisdiction by a port State, because the illegal conduct at issue—the knowing failure to maintain an accurate ORB while present in a port—is not limited to the internal interests of the ship, but rather, implicates important port State interests in protecting its ports and waters, fulfilling its treaty obligations, and conserving enforcement resources. 37 The “law of the flag” doctrine 36
See 33 U.S.C. § 1228; 33 C.F.R. § 151.07(b). Knowingly maintaining a false ORB in US navigable waters is a felony. 37 See Spector, 545 U.S. at 130 (“General statutes are presumed to apply to conduct that takes place aboard a foreign-flag vessel in United States territory if the interests of the United States or its citizens, rather than interests internal to the ship, are at stake.”).
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recognizes the primary role that flag States should exercise in regulating shipboard conduct that governs the internal affairs of a ship.38 The law of the flag State governs when the law affects only the internal matters onboard the vessel, but not in cases where crimes committed on board are of the character to disturb the “peace and tranquility” of a port State.39 Indeed, as the US Supreme Court recently observed in rejecting an argument that the “law of the flag” shielded foreign cruise ships from complying with the Americans with Disabilities Act (“ADA”), “general statutes are presumed to apply to conduct that takes place aboard a foreign-flag vessel in US territory if the interests of the United States or its citizens, rather than interests internal to the ship, are at stake.”40 No US court has held that foreign-flag ships, let alone those entering US ports, are automatically exempt from generally applicable or specifically applicable US laws merely because of their foreign registry. To the contrary, the US Coast Guard has plenary authority to enforce US law on foreign vessels, including the authority to inspect and seize ship records.41 38
See, e.g., McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963). 39 Wildenhus’ Case, 120 U.S. at 12. 40 Spector v. Norwegian Cruise Line, 545 U.S. 119, 130 (2005) (plurality) (citing Cunard, 262 U.S. at 127). In Spector, the Supreme Court recognized the authority of the United States to regulate foreign ships upon entry into United States ports and waters. Id. at 130. At issue was whether a generally applicable statute applied to foreign ships when it did not contain an express “clear-statement” that it was intended to reach foreign vessels. Even the dissent in Spector, which would require an express congressional statement applying to foreign ships, supports jurisdiction in the instant case. Unlike the ADA, APPS contains a specific and clear statement that it applies to foreign ships while in United States ports and waters. See 33 U.S.C. §§ 1902, 1907; 33 C.F.R. §§ 151.09, 151.23, 151.25. Furthermore, as the various opinions of the Justices in Spector note, the purpose of the clear-statement rule is to assure that oceangoing vessels are not subjected to port state laws conflicting with flag State or international obligations. Spector, 545 U.S. at 130-31 (plurality), 143 (Ginsberg, J., concurring), 146 (Thomas, J., concurring), 151-52 (Scalia, J., dissenting). The express purpose of APPS was to “administer and enforce” MARPOL, 33 U.S.C. § 1903(a), and the APPS ORB requirement is entirely consistent with a substantially similar MARPOL regulation. 41 See 14 U.S.C. § 89(a); 33 U.S.C. §§ 1228(a), 1907(c)(2)(A); 33 C.F.R. §§ 151.23(a)(1)-(4); see also, United States v. Williams, 617 F.2d 1063, 1074 (5th Cir. 1980)
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ORB violations fall within the ambit of both these principles: they have a detrimental impact on the port State, and they are a crime that does not depend on their location for the offense to occur. The falsified ORB, which may or may not have been penned outside port State waters, was designed to have and does affect the port State. This type of falsification and concealment can in some cases extend to illegal discharges within port State waters where the falsification includes concealment of the discharge location. The inability to rely on the truthfulness of mandatory documents, of course, has serious enforcement repercussions. The international maritime regulatory regime, embodied in numerous agreements ratified by the United States, depends upon the principle of reciprocity and truthfulness: all parties are assured of a ship’s compliance with international standards through the certification of the ship by the government of its own flag nation, and that certification is then respected and trusted by the other parties. The system of documentation is a harmonized one that follows a consistent pattern to have universal application in any port in the world and in order to facilitate international commerce and comity. The ultimate purpose is to assure compliance with various international standards through internationally consistent forms. This standardized system of survey, certification, and enforcement by all parties, not just flag States, occurs under various international treaties and applies to almost every aspect of vessel operations, including design and construction,42 safety equipment,43 crew member qualifications and certifications,44 security,45 (§ 89(a) provides Coast Guard with plenary power to search vessels); United States v. Postal, 589 F.2d 862, 884-85 (5th Cir. 1979) (same). 42 International Convention for the Safety of Life at Sea (“SOLAS”), Ch. II, Nov. 1, 1974, 32 U.S.T. 47, as amended, and the Protocol of 1978 relating to the International Convention for the Safety of Life at Sea, Feb. 17, 1978, 32 U.S.T. 5577, as amended through July 1, 1997, Int’l Maritime Org., Doc. Sales No. IMO-110E (1997), implemented pursuant to Exec. Order No. 12,234, 3 C.F.R. § 277, Ch II-1. 43 SOLAS, Chs. III, V. 44 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW Convention), July 7, 1978, Int'l Maritime Org., Doc. Sales No.
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pollution prevention,46 fire protection,47 carriage of cargos,48 vessel stability,49 communications,50 and navigation in general.51 The United States’ enforcement of APPS and MARPOL are an integral part of this international regime. As to the availability of referral to the flag State, APPS expressly makes this a supplementary alternative to an enforcement action by the United States, not a limitation on the United States’ enforcement authority.52 UNCLOS is not at issue in most port State enforcement efforts because the crimes occurred in port and because private individual criminal defendants typically lack standing to assert treaty rights or customary international law.53 For example, Article 230 does not apply to IMO-945E (1996) (entered into force Apr. 28, 1984), as amended by the Seafarers' Training, Certification and Watchkeeping (STCW) Code, July 7, 1995, Int'l Maritime Org., Doc. Sales No. IMO-945E (1996), implemented pursuant to 46 U.S.C. Subtitle II, Part E and 46 C.F.R. Parts 10-13. 45 SOLAS, Ch XI-2, International Ship and Port Facility Security Code, Int’l Maritime Org., Doc. Sales No. IMO-I116E (2003), implemented pursuant to the Maritime Transportation Security Act of 2002, 46 U.S.C. §§ 70101-70119; 33 C.F.R. Parts 101, 103-106. 46 E.g. MARPOL, Annexes I, II, III, and V. 47 SOLAS Ch II-2, International Code for Fire Safety Systems, IMO Maritime Safety Committee Resolution MSC.99(73), adopted Dec. 3, 2000, Int’l Maritime Org. Doc. Sales No. I155E (2001), implemented pursuant to Exec. Order No. 12,234, 3 C.F.R. § 277, Ch II-1. 48 MARPOL, Annexes I, II and III, SOLAS Chs. II-2, VI, VII, XII. 49 SOLAS, Ch II-1, International Convention on Load Lines, 1966, as modified by the 1988 Protocol thereto, 18 U.S.T. 1857, implemented pursuant to 46 U.S.C. Subtitle II, Ch. 51. 50 SOLAS, Ch. IV. 51 SOLAS, Ch. V, Convention on the International Regulations for Preventing Collisions at Sea, 1972 (“COLREGS”), implemented by the Coast Guard pursuant to 33 U.S.C. §§1601-1608 (2006). 52 33 U.S.C. § 1908(f) (United States “may refer the matter to the government of the country of the ship’s registry or nationality” or “tak[e] the actions required or authorized by this section,” which include criminal prosecutions for knowing APPS violations). 53 As of January 2008, the United States has not acceded to UNCLOS and UNCLOS has not yet been approved by the United States Senate. Thus, UNCLOS has no legal force in
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conduct inside the internal waters of a state.54 Article 230 addresses penalties for pollution “beyond the territorial sea,” and “in the territorial sea.”55 It does not address conduct occurring inside a country’s ports and internal waters.56 In addition, Article 230 applies only to individuals and the United States as a treaty pursuant to Article II of the US Constitution. Treaty rights and rights under customary international law generally accrue to sovereign nations, not to private persons, and enforcement of treaties and customary international law is a matter of international affairs, not judicial redress. See, e.g., United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir. 2001); United States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir. 1988). Accordingly, courts have precluded defendants in criminal proceedings from invoking treaty-based defenses. See, Jimenez-Nava, 243 F.3d at 195-196; United States v. Li, 206 F.3d 56, 60-61 (1st Cir. 2000) (en banc); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.1990); United States v. Mann, 829 F.2d 849, 852 (9th Cir. 1987). The only exception to the rule occurs in those cases in which a treaty is both self-executing and contains explicit language creating a private right of action or other judicially enforceable right. Because UNCLOS is not a treaty to which the United States is a party, and because it is not a self-executing treaty, and because it creates no private right of action or other judicially enforceable right, there is no applicable exception in this case. See United States v. Roberts, 1 F. Supp. 2d 601, 606 (E.D. La. 1998) (without implementing legislation, UNCLOS does not confer any rights on individuals). Because the United States is not a party to UNCLOS, the Convention is not a “treaty” under United States law and is therefore, by definition, not a self-executing treaty. 54 See United States v. Royal Caribbean Cruises, Ltd. (“Royal Caribbean I”), 11 F. Supp. 2d 1358, 1371 (S.D. Fla. 1998) (denying a motion to dismiss a false statement count arising from a falsified Oil Record Book, reasoning that “[b]ecause the gravamen of this action is not the pollution itself, or even the Oil Record Book violation occurring at that time, but the misrepresentation in port, this proceeding is not properly characterized as ‘in respect to a pollution incident’ such that UNCLOS, a convention addressing the law of the sea and appropriate protocols thereof, is applicable to this case.”). See also UNCLOS Art. 230(1)-(2) and UNCLOS Art. 2(1)-(3). 55 Article 230 addresses only what penalties are available, places no restriction on jurisdiction or criminal prosecution per se, and does not purport to address whether a country can bring a criminal enforcement action. Under UNCLOS Article 230.2, only monetary penalties may be imposed for violations of pollution laws in the territorial sea, but the article does not otherwise restrict prosecution of a seaman on a foreign flagged vessel by a coastal or port State. 56 The official United States interpretation of UNCLOS makes clear that, when and if the United States becomes a party to UNCLOS, Article 230 will not encumber United States jurisdiction inside its ports and internal waters. S. Exec. Rep. No. 108-10 at 20 (Record Excerpts of the United States, Tab 6) (“The United States understands that the Convention recognizes and does not constrain the long-standing sovereign right of a
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not to corporations.57 Furthermore, no other provision of UNCLOS constrains a nation’s sovereignty or criminal jurisdiction within its ports and internal waters which lie between land and the baseline from which its territorial sea begins. Finally, customary international law cannot preclude a port State from bringing criminal enforcement actions against foreign-flag vessels in its ports.58 59 State to impose and enforce conditions for the entry of foreign vessels into its ports, rivers [and] harbors . . . .”): The United States understands that sections 6 and 7 of Part XII [containing Art. 230] do not limit the authority of a State to impose penalties, monetary or nonmonetary, for, inter alia (A) non-pollution offenses, such as false statements, obstruction of justice, and obstruction of government or judicial proceedings, wherever they occur; or (B) any violation of national laws and regulations or applicable international rules and standards for the prevention, reduction and control of pollution of the marine environment that occurs while a foreign vessel is in any of its ports, rivers, harbors, or offshore terminals. S. Exec. Rep. No 108-10 at 19 - 20 (emphasis added) (Record Excerpts of the United States, Tab 6); see also S. Treaty Doc. 103-39, at 39, 34 I.L.M. 1393, 1418 (1995) (Record Excerpts of the United States, Tab 5) (Article 230 applies only to vessel source pollution, and then only when in or beyond the territorial sea). 57 The official United States interpretation of UNCLOS states that Article 230 applies only to individuals and not to corporations. S. Treaty Doc. 103-39, at 39, 34 I.L.M. 1393, 1418 (1995) (Record Excerpts of the United States, Tab 5) (“Article 230 applies only to natural persons aboard the vessel at the time of the discharge.”); S. Exec. Rep. No. 108-10 at 18 ) (Record Excerpts of the United States, Tab 6) (same). 58 Cf. Siderman de Blake v. Argentina, 965 F.2d 699, 715 (9th Cir. 1992) (“Customary international law, like international law defined by treaties and other international agreements, rests on the consent of states. A state that persistently objects to a norm of customary international law that other states accept is not bound by that norm, just as a state that is not party to an international agreement is not bound by the terms of that agreement.”) (citation omitted); Flores v. S. Peru Copper Corp., 414 F.3d 233, 252 (2d Cir. 2003) (“[W]here the customs and practices of States demonstrate that they do not
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Conclusion Jurisdiction to enforce knowing violations of MARPOL, including using criminal processes, is critical to the marine environmental protection and is necessary to fulfill the mandate of MARPOL.
universally follow a particular practice out of a sense of legal obligation and mutual concern, that practice cannot give rise to a rule of customary international law.”). 59 The United States Executive Branch has announced a contrary interpretation and, in practice, has repeatedly enforced the APPS ORB requirements by obtaining criminal convictions of corporations and individuals responsible for deliberate ORB violations for foreign-flag vessels in port. See United States v. Overseas Shipholding Group, Inc., 1:06-CR-00065, 10408, 10420-423 (C.D. Cal., N.D. Cal., D. Maine, D. Mass, E.D. N.C. 2007); United States v. Chian Spirit Mar. Enters., Inc., et al., 1:06-CR-00076 (D. Del.); United States v. Rodolfo Esplana Rey, 06-CR-00315 (C.D. Calif. 2006); United States v. Wallenius Ship Mgmt. Pte., Ltd., et al., 2:06-CR-00213 (D.N.J. 2006); United States v. Bottiglieri di Navigazione, 1:05-CR-00190 (S.D. Ala. 2005); United States v. Boyang (Busan) Ltd., et al., A-05-0035-CR (D. Alaska 2005); United States v. DST Shipping, et al., 04-CR-1608, 1728 and 05-CR-00473 (C.D. Calif. 2005); United States v. Evergreen Int’l, S.A., 2:05-CR-238, 291, 294, 305 and 306 (C.D. Calif., D. N. J., D. Ore., D.S.C., W.D. Wash. 2005); United States v. MK Shipmanagement Company Ltd., 2:06-CR-00307 (D.N.J. 2006); United States v. MSC Ship Mgmt., et al., 1:05-CR-10269, 10274 and 10351 (D. Mass. 2005); United States v. Panagiotis Kokkinos et al., 1:05-CR-00347 and 00750 (E.D.N.Y. 2005); United States v. Fairdeal Group Mgmt., SA, 1:05-CR-00750 (S.D.N.Y. 2005); United States v. First Marine Service Co., 05-CR-00243 (D. Oregon 2005); United States v. Oilmar Co. Ltd., 2:05-CR-00617 (D.S.C. 2005); United States v. MMS Co. Ltd., et al.,04-CR-00037 (C.D. Cal., N.D. Cal., D. Oregon 2004); United States v. Fujitrans Corp. of Japan, 04-CR-0000469 and 00531 (C.D. Calif., D. Oregon 2004); United States v. Schlussel Reederei KG, CR-04-00477 (D. Hawaii 2004); United States v. Sabine Transp. Co., 1:03-CR-00063 (N.D. Iowa 2003); United States v. OMI, 2:04-CR-00060 (D.N.J. 2004); United States v. Marmaras Navigation Ltd., 3:04-CR-01592 (W.D. Wash. 2004); United States v. Fairmont Shipping (Canada) Ltd. et al., 03-CR-00506 (D. Oregon 2003); United States v. Ta Tong Marine, 03-CR-05171 (W.D. Wash. 2003).
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Vessel Source Pollution and Protection of the Marine Environment in the Taiwan Strait Kuen-Chen Fu1 Abstract
For decades the Taiwan Strait has been an area of potential military conflicts. Its sensitive political environment has contributed to its marine environment not being properly managed. Due to economic booms and increased demand for navigation in this area, the Strait's strategic importance for not only economic but also political stability has increased. Vessel pollution incidents may easily destroy the marine environment and cause serious damage to the littoral provinces along the strait shores. This is particularly true when the Japanese are often shipping spent nuclear fuel through the Taiwan Strait. This presentation also examines the legal status of the Taiwan Strait and the feasibility of enforcing “generally accepted international rules and standards” (GAIRS) in the area. The recent universal move in expelling single-hulled tankers has been used as an example to indicate some of the ways for such enforcement efforts. Since Taiwan is not recognized by most of the members of the international community as a sovereign state, there is a real demand for cooperation between China Mainland and Chinese Taipei in this area for a more effective scheme of law enforcement against vessel source pollution. 1
Professor and Director of the Xiamen University Center for Oceans Policy and Law (XMU-COPL). The author’s PowerPoint presentation can be viewed on the accompanying CD.
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I am pleased to be here to discuss the topic of vessel source pollution and protection of the marine environment in the Taiwan Strait. I would like to begin with pointing out the area where I’m from—Jinmen (Quemoy) and Xiamen (Amoy), China—two small islands on the western side of the Taiwan Strait. It borders Quanzhou to the north and Zhangzhou to the south. Traveling the narrow waters between Jinmen and Xiamen takes 45 or 50 minutes. Ten boats sail up, and ten boats sail down every day. As a registered resident of Jinmen, Penghu, or Matsu, under the jurisdiction of Taiwan, we are entitled according to the laws of Taiwan to travel freely between these islands and China Mainland. This is the Strait I am going to talk about, the Taiwan Strait. There would be straight baselines as proclaimed by the PRC to enclose all three islands (Jinmen, Wuqiu and Matsu). In the Taiwan area there would be baselines as proclaimed by Taiwan to enclose Taiwan and the Pescadores or Penghu Islands in it (see map). Those three islands, Jinmen, Wuqiu and Matsu, occupied by Taiwan are all within the internal waters of China. But for all these three islands, there are always some space reserved for the Taiwanese vessels and airplanes to freely exit and enter the waters around them. There is an unspoken agreement with the undemarcated medium line exists so vessels of each side are not usually allowed to sail across the medium line in between. That is the basic situation. The Taiwan Strait situation can be discussed in four legally meaningful parts. One is the territorial sea waters area along the Chinese mainland coast and around the Taiwan islands and the Penghu Islands. The second part is the internal waters around Jinmen, Wuqiu and Matsu islands. Jinmen (Quemoy) and Matsu are very familiar, but Wuqiu is not—it is very small and part of Jinmen County for administrative purposes. Part three is the Penghu Channel internal waters area between the Penghu Islands and the coastal shore of Jaiyi County of the Taiwan Islands. A branch of strong currents lead from here to up to Okinawa 484
Protection of the Marine Environment: Taiwan Strait making the area important to navigation. Part four is the EEZ area in between the territorial sea waters measured from both Taiwan Island and China’s mainland. Students ask me often whether Taiwan Strait is a strait used for international navigation. The answer is yes, but the right of transit passage would not be applicable to Taiwan Strait. The reason is that there is a wide area of EEZ in this strait, making it not necessary to use the territorial sea areas for navigation. In 1949, in the Corfu Channel case in the ICJ, the court examined the legal concepts of necessary routes and alternative passage—eventually it was determined that the Corfu Channel was a useful route for international maritime traffic and a strait used for international navigation. So the task of essentiality was ignored. In 1958 and the 1982 Law of the Sea Conventions that basic principle was followed. Now in the Taiwan Strait area for management purposes the basic international norms are luckily in sync. They are two systems of territorial sea baselines promulgated by Taiwan authorities and the PRC. There are no overlapping or conflicting sections of the territorial seas. Taiwan proclaimed the territorial sea baselines around the islands including the Lan-yu Islet, the Lu-dao Island, and the Penghu Islands, but not the coastal areas of mainland China. Although they both have their own constitution law enacted and promulgated, both the constitutional law of Beijing and Taipei proclaim that there is only one China. When Beijing and Taipei proclaimed their baselines, they intentionally avoided conflict (with some personal help from me). So, there is really no conflict with the baselines. Therefore there is no space left for any potential violators to choose more favorable laws. The UNCLOS provisions were accepted by the PRC and Taiwan. PRC signed and then ratified it in 1994, but Taiwan has never been invited to sign it. But Taiwan, as I myself know as a legislator and the Executive
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Yuan consultant, intentionally included those provisions of UNCLOS into domestic laws and regulations so as to make them applicable to Taiwan. Eventually, the practices of both Taiwan and the PRC indicate that they both respect the internationally recognized freedom of navigation in a strait area, particularly for the EEZ area in the Strait. For Chinese jurisdiction over foreign vessels in the Taiwan Strait two sources of law should be examined. One is UNCLOS rules for territorial seas waters. Article 21 paragraph 2 of the Convention provides that coastal States may adopt laws and regulations relating to innocent passage through the territorial sea. For the EEZ area, Article 58 also provides that foreign vessels and aircraft enjoy freedom of navigation and some other rights on the high seas with due regard to the rights and the duties of the coastal State and should comply with the laws and regulations adopted by the coastal State. For law enforcement purposes, Article 211 paragraph 5 of UNCLOS provides that the coastal States may, in respect to their EEZ, adopt laws and regulations for the prevention, reduction and control of pollution from vessels conforming to and giving effect to the generally accepted international rules and standards established through a competent international organization or general diplomatic conference. Here we have the concept of “generally accepted international rules and standards” (GAIRS). Will these generally accepted international rules and standards be applicable rules for Taiwan and the PRC in a strait area? It would appear that the concept of GAIRS violates the traditional principle of law, the pacta tertiis principle, as provided for in the Vienna Convention on the Law of Treaties. But some might safely argue that because the contracting parties of UNCLOS agreed to the wording of these articles they have indirectly accepted those technical IMO agreements or conventions or rules.
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Protection of the Marine Environment: Taiwan Strait But the problem here left for us to examine is how general is general enough to make a GAIRS? The key problem here is the rules and standards themselves, not the documents themselves. The documents might not be accepted widely, but if the rules or standards are generally accepted they are GAIRS. For MARPOL 73/78 it is easy because these documents have been accepted by more than 130 party states and include more than 97% of the global tonnage of merchant marine shipping. So for us to say to expel single-hull tankers in accordance with MARPOL 73/78, amended 2003, is something straight forward and simplified because the law is already clear. I have noticed that the US Navy participants here at our Conference have tended to show the same map of ocean zones with EEZs marked above with the term “international air space.” I think the air space above the EEZ should still be the EEZ. The EEZ should be a legal concept which includes not only the seabed and the water column, but also the air space above it, because according to UNCLOS, the solar energy and wind energy generated from the wind and the sun should part of the natural resources enjoyed solely by the coastal State itself. It is a vertical concept including all those spaces. For generally accepted international rules and standards, it is like an umbrella, it covers all those technical rules. Once you accept UNCLOS you will be covered, you will be bound by the generally accepted international rules and standards. For the purpose of expanding on single-hulled tankers, which we will take as an example of vessel-source pollution and preservation of the in the marine environment in the Taiwan Strait area, let’s make a quick review. In 2002 the Prestige incident occurred, after that France and Spain declared that they would expel single-hulled tankers from all waters in their jurisdiction. Then, in the next year IMO amended MARPOL 73/78 with annexes. There are six Annexes, but numbers I and II are special
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because they are concerned with the management of toxic and dangerous materials and oil. Both these annexes embody general obligations for the contracting parties but not the other four annexes. The other four annexes are basically optional. On April 5, 2005, the annex with the 2003 amendments entered into force and a GAIRS was created. Is it binding for Taiwan? The answer is yes, although there is no international obligation. Taiwan is willing to accept it for its positive economic benefits. The PRC also officially accepted. A 1999 oceans environmental protection law of the PRC in its article 97 provides that if there is any conflicting provision in an international treaty with domestic law, the international treaty shall prevail. Article 64 mentions that all ships have to be equipped properly for the purposes of controlling, preventing, and diminishing pollution in the oceans. Logically MARPOL 73/78 constitutes a supplemental rule for the PRC oceans environmental protection law. What has to be examined here is whether the MARPOL rule should be self-executing or not self-executing. According to a general theory, if a norm is administrative in nature it should not be selfexecuting—usually you would need domestic legislation to make it enforceable by governmental agencies. But if it is civil in nature, then it is usually self-executing. Take for example, the United Nations convention regulating the law of international sale of goods. It is civil and selfexecuting in any court in China. The general provision of PRC law provides that if there are any conflicting provisions, the international law shall prevail. So, it is clear that here in China the MARPOL 73/78 2003 amendment is in need of some domestic legislation to make it applicable and enforceable on a daily basis by government agencies. Currently China has proclaimed that MARPOL 73/78 is binding. That proclamation has been conveyed to all the four state-owned shipping companies in China. They have all been ordered to obey it. No single-hulled tanker should be 488
Protection of the Marine Environment: Taiwan Strait allowed to sail in Chinese waters. But that is only an obligation fulfilled by China as a flag State. As a coastal State, up to now this new domestic legislation is for regulating foreign vessels, I mean foreign single-hulled vessels (tankers), in the EEZ of China. Interestingly, for inland river navigation purposes there is a regulation, an administrative regulation as promulgated by the Ministry of Communication and Transportation at the end of 2005, providing that all vessels—domestic or foreign—have to obey the international agreements accepted by China. That would logically include MARPOL 73/78 2003 amendment. According to article 4 paragraph 2 of MARPOL 73/78 it is a duty, an obligation, of all the contracting party States to fulfill the regulations, to punish and to control all those occurrences of single-hull tanker navigation or any other relevant violations within the national jurisdiction of that specific contracting party’s State. But China has not fulfilled that obligation up to now as a coastal State. One possible reason for this is that China badly lacks shipping capacity. 90% of imported oil is carried from export sites to Shanghai, Xiamen, etc., by foreign boats and chartered vessels. But that is no excuse for ignoring the obligations created by the generally accepted international rules and standards of MARPOL. Finally, let me offer some concluding remarks. For cross-strait cooperation in this endeavor of expelling single-hull tankers the only obstacle remaining is sheer politics. There is some mutual trust between the people in Taiwan and mainland China—they have very close contacts with each other and cooperate for business all around the world, particularly in the Singapore area. Two days again when I flew in from Xiamen, I sat next to a man from Fujian province who is coming to Singapore to board a Taiwanese fishing vessel to work for six months, then he will return to Fujian. It happens every day. Singapore is one of
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the main bases for Chinese and Taiwanese fishing vessels and merchant marines for logistic purposes. Singapore is an important key harbor city for the Chinese people. Other than that, I think it is fair to say that Beijing has treated Taiwan as a substantial entity. Up to now, Taiwan has enforced their laws and regulations all by itself. Taiwan even has its own troop and a general agency of coastal patrolling. For marine environmental protection purposes there should be no doubt—there is no conflict in the basic concept of one country two systems or one country, two constitutional laws. They are in sync. In the territorial sea areas, in the internal water areas of Taiwan and mainland China should be making their laws and enforcing them separately. For the Pescadores or the Penghu Channel area, it used to be a territorial sea area, but after 1998 it became part of the internal waters of Taiwan. The government of Taiwan has not stopped foreign vessels from sailing through that previous territorial sea area exercising the right of innocent passage. For the EEZ area there should be joint efforts for law enforcement. More sensitive zones should also be demarcated in the EEZ area of the Taiwan Strait. I have been a member of the board of directors of Taiwan’s Overseas Fisheries Development Council for 21 years. We have real concerns, for example, about the straddling stock of black fish (called Wu-yu), a kind of regional straddling stock which ranged in the past from the northern to the southern parts of the Taiwan Strait. This stock is seriously endangered today. If we can have some sensitive zones created in the EEZ area of the Taiwan Strait it would be very beneficial. Up until now we are able to fine tune basic jurisdictional principles already established. As in the case of the Eagle King both sides requested to exercise jurisdiction over that smuggling ship in the Taiwan Strait. But when one side of the strait did exercise its jurisdiction, the other side accepted and did not have any objection to it. That has been practiced. An 490
Protection of the Marine Environment: Taiwan Strait undemarcated medium line after the 1992 Singapore agreements reached here in this city between Taiwan and the China Mainland made it like that. In October 1992 the government of PRC proclaimed an order to all the vessels of itself that they should not cross the medium line. They should not enter into the waters within ten nautical miles of any island occupied by Taiwanese troops. Why ten nautical miles, not twelve nautical miles? It is clear, they don’t want to accept the concept of twelve nautical miles territorial sea, they want to take only ten nautical miles, similar to a territorial sea, but not a territorial sea—that is the limit for any PRC vessel sailing to any of the Taiwan islands. For airplanes there is a similar prohibition. Self-constraint has been exercised by the PRC. An unspoken agreement has been there since 1992. Now might be the right time for us to seriously think about creating between us a joint law enforcement zone and a uniform law system should also be seriously considered. For years, since I was a legislator in Taiwan for a long time, I tried on many occasions to promote the idea of a state of multi jurisdiction. That would demand a uniform system of laws. Take for example, the United States. Uniform law resolves many of the issues. We could easily do this for the Taiwan Strait area’s marine environmental protection because MARPOL 73/78 is already accepted uniformly by both of us. Eventually a single united law enforcement agency for the PRC is essential. For the past six years I’ve been a frequent flier across the Strait between the mainland and Taiwan. Very often I observed oil slicks or even reddish currents in the Strait. There is increasingly mindful cooperation, particularly because of the booming economy in the PRC. There are many other interests for us to preserve. To expel singlehull tankers is just one example. Out of that many other interests can be shared in common. Hopefully with further negotiations and discussions the nature of the Taiwan Strait could be changed from a battlefield, or a
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ground for political struggling, to a commonly preserved environmental preservation area. That would be beneficial not only for the Chinese people, but for all the people of the world. Thank you.
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IMO, ICS and Environmental Compliance Peter Hinchliffe1 Abstract This paper briefly introduces the role of the International Chamber of Shipping and the International Maritime Organization with respect to the protection of the Marine Environment. It then explains the relevance of globally applicable regulation to a unique international industry that cannot operate efficiently when faced with regional or national regulations whose requirements differ from the international baseline. The role of international shipping relative to globalization and to the continuing growth in world trade sets the background for discussion of the industry’s environmental performance, and ICS policy on environmental compliance is explained. Then using examples from IMO regulations, currently under debate, lessons are drawn on impediments to ratification and to compliance. In an attempt to streamline the IMO process some procedural proposals are offered for consideration and discussion.
The International Chamber of Shipping (ICS) is an association of associations whose origin can be traced back to 1928; our members are 37 national shipowner associations spread widely across the world. Of particular relevance, to this Conference it will be worth noting that the Singapore Shipping Association, the Australian Shipowners’ Association, the Japanese Shipowners’ Association and the Chamber of Shipping of America are all full members of ICS. 1
Marine Director, International Chamber of Shipping. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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These national associations in turn offer membership to shipowners operating in their own country. Thus ICS has established a worldwide membership of the main ship owning nations that qualifies us to represent around 75% of the world’s shipping tonnage and to speak with authority on the views of all sectors of the shipping industry – to look beyond sectoral needs and indeed sometimes to look beyond short term commercial expedience. ICS exists to develop an international consensus on issues of concern to shipowners worldwide and to represent those views in debate at the International Maritime Organization and on other platforms such as this one, and thank you for giving me this opportunity today. IMO is the specialised agency of the United Nations dealing with international maritime issues. Physically it is a secretariat of around 350 people based in London. The job of the secretariat is to facilitate meetings between the member governments, to draft the supporting documentation and to be the receptacle for information related to the conventions adopted by the Member States. Conceptually IMO is no more than the collective political will of its 167 member Governments. Working under the umbrella of the UN Convention of the Law of the Sea, it has an enviable reputation built upon consensus building and effective legislation that addresses the needs of the unique global industry that is international shipping. Taken as a whole, the IMO Conventions, SOLAS, MARPOL and the range of single subject conventions such as Anti-fouling and Ballast Water Management provide a legislative framework that regulates the design, construction and operation of the world’s merchant fleet and thereby protects the world’s environment and commercial well-being. But the framework of legislation depends entirely on individual IMO Member States taking the next step of incorporating the adopted convention text into national law and ratifying the convention. I do not need to tell this audience that such conventions cannot and do not enter into force until the ratification criteria (normally a number of countries whose combined 494
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tonnage total exceed a set percentage of the world tonnage total) has been achieved. It is worth pausing for a moment to think about the range of regulation already applicable to ships engaged in international trade. Rules to control the entire life cycle of the ship—from drawing board, through construction and operation to ultimate disposal—are contained in two basic conventions, SOLAS—concerned with the safety of life at sea—and MARPOL on the protection of the environment from the operation of ships; and a number of single subject dedicated conventions. Some of these are in force, some are in a state of limbo waiting for ratification and a couple are in the drafting stage. Let me make three general points. Firstly, any legislation that controls the safe operation of ships engaged in international trade not only safeguards the lives of the mariners on board but in my book also protects the environment. Secondly, when you are dealing with a unique industry that operates worldwide and carries 95% of the world’s raw materials and trading products you need an internationally agreed upon level platform on which to base sound operations. We struggle to operate ships safely and efficiently when the rules applicable in one port are markedly different from those applicable in the next port. We are seeing a growing trend for national and regional legislation that is not only beginning to effect the safe operation of ships but also the very design and construction. This is simply not efficient either for ship operators or for the protection of the environment. Thirdly, it is self evident that shipping is quite simply the most environmentally friendly transport mechanism available not in absolute terms but in terms of cargo carried per tonne mile. How else can 95% of the world’s trade be transported for an environmental cost of around 2% of the world’s CO2 emissions? I am certainly not claiming that reductions cannot be made; I am merely putting the shipping industry into the context of the balance between societal needs and environmental cost. Ultimately 495
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it is for the consumer to judge how to set that balance either by paying more for goods or by ceasing to buy them. ICS is actively working toward a situation where shipping will approach zero impact on the environment, but to be totally practical and realistic this is going to take time. It requires the active input of all stakeholders in the industry, not just the ship owners and operators but the designers, the builders, the insurance market, the classification societies, the regulators, the charterers, the governments of the trading nations and the consumers. We are working to achieve this industry-wide stake holding for the future. This fact explains why I get a little weary when people— politicians in particular—complain about the slow activity of the IMO. If Member States acted with alacrity in backing up their proposals and if Governments gave the parliamentary time to the ratification of conventions which had already been adopted then the whole maritime industry and the world’s environment would be the better for it. Industry does not condone conventions lying in limbo between the adoption of the text and the entry-into-force. Quite the reverse, this situation only leads to confusion within the industry; accusations of inefficiency—wrongly—against the IMO and accusations that the industry is somehow lagging the political agenda, a perverse charge. Industry, through ICS and other representative bodies, plays an active role in the development of international regulation. It contributes technical details to the debate and works to ensure that regulations that are ultimately adopted are workable and can be implemented with the least possible pain—either practical or financial—but that nevertheless the objectives of the regulation are met. MARPOL This Panel is on ship source pollution and therefore I should open with the position of ICS on protection of the marine environment. This has two elements: 496
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ICS has a policy of working toward zero environmental impact from ships and we have been doing some work on a ‘Clean Ship’ initiative. The first step in this process is to understand the potential areas where ships may have a negative effect on the environment, regardless of how minor these might be. Then we have to compare this with existing regulation to identify gaps in coverage and of course in enforcement. This is work in progress and we hope to take this to the IMO this year in partnership with one or two governments. Secondly, we have a policy of zero tolerance on non-compliance with pollution regulations and with MARPOL in particular. We recently published a pamphlet on environmental compliance stressing this point and making the direct connection between the actions of the ship’s crew and the Directors of the company. And this leads me to review just some of the applicable regulation by starting with the International Convention for the Prevention of Pollution from Ships, or MARPOL as it is universally known. The Convention comprises 6 annexes each on a different specific subject: oil pollution, noxious liquids, harmful substances, sewage, garbage and air pollution. This is already a comprehensive basis for environmental protection but throughout this part I will highlight shortcomings in the legislative process caused, not by the IMO, but by a failure on the part of Member States to play their part in bringing the legislation into force. Actually, for MARPOL annexes 1 to 5, the ratification status is notably good. What is not so good is the failure on the part of many states to comply with the general requirement to provide adequate port waste reception facilities. Without such provisions, ships are placed in an invidious position with regard to their own compliance. MARPOL ANNEX VI Annex VI of the MARPOL Convention, concerning air pollution from ships, is undergoing a very detailed review in the expectation that 497
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fairly major changes will be incorporated. This Annex was adopted in 1997 and it took over nine years for sufficient states to ratify to bring it into force. It should be no surprise to anybody that the provisions it contained fell into disrepute over those nine years. They had fallen behind technology and political expectation, but as you will be aware, you can’t change the text until the convention has been ratified. This was a situation where the lethargy of states in failing to ratify the annex expediently brought the IMO and industry into disrepute. Furthermore, this situation stifled innovation on the reduction of air emissions from a legislative point of view and caused a number of nations to begin to develop and apply national legislation that varied from the international standard. If only this energy had been applied toward ratification of Annex VI in the years immediately after 1997, the world would literally have been a better place. I suggest that we need to find a mechanism to encourage Member States to ratify instruments with much greater alacrity and I will make a proposal when I come to the end of this address. Annex VI has now been ratified by 44 States representing 74% of world tonnage. Since the current process is a ‘review’ there will be no ratification criteria—whatever is decided in the way of dates and specific emission limits will enter into force—and be enforceable—as written. As we work on new text for the revised annex it is interesting to note how the lack of ratification criteria is engaging the member Governments in particular. It introduces a crispness, an urgency and a measure of realism that was perhaps missing when the original annex was drafted in 1997. I expect that new regulations will be available for adoption in 2008 in accordance with the IMO’s published timetable. I am going to turn now to a couple of subject specific conventions starting with the International Convention on the Control of Harmful Anti-fouling Systems on Ships (AFS), 2001
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The Anti-fouling Convention has been caught between the adoption of the text and ratification for 6 years but it is very pleasing to report that with the ratification by Panama last September, the ratification criteria has been met. The Convention will enter into force, therefore, on 17 September 2008. It should be recalled that retrospective application can be expected from some port State control authorities and that therefore no ship should have applied a TBT-based anti-fouling coating after 1 January 2003 and that any TBT coating must be removed or sealed in from 1 January 2008. Effectively the industry has been self-regulating on TBT since the Convention text was adopted and I would be surprised if many ships will be caught with TBT on the hull once the Convention enters into force. Here is a clear case of the industry being ahead of the regulation. International Convention for the Control and Management of Ships' Ballast Water and Sediments, 2004 The text of the BWM Convention was adopted in February 2004, it has an entry into force criteria of 30 Member States representing at least 35% of the world tonnage total. Currently the Convention has been ratified by 10 states representing just 3.42% of world tonnage. It is not going to become effective in the foreseeable future but this in itself raises very serious concerns for shipowners. Like the Antifouling Convention it has fixed dates and in this case a number of dates that are likely to be passed long before the Convention enters into force. The most pressing operative date is 1 January 2009 (now less than 1 year away) after which ships of less than 5,000 cum ballast water capacity must be constructed with ballast water treatment equipment. There is no such type approved treatment equipment available and even the IMO, advised by the Ballast Water GESAMP group, agrees that it is unlikely to be available in commercial quantities by the end of this year. At the request of the IMO Secretary General, the IMO Assembly last month considered 499
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and adopted a Resolution calling on states not to apply this particular date after entry-into-force. The Resolution invites Parties to not apply the terms of the Convention to ships built in 2009 and further invites the MEPC Committee to consider whether a similar provision will be required for ships built in 2010. This is a case where an attempt was made through legislation to inspire scientists and equipment manufacturers to develop equipment that did not exist at the time that the Convention text was adopted. It was called (at the time of adoption) an aspirational Convention. There was little confidence in the shipping industry that such equipment could be developed so quickly, not because concepts for the cleaning of ballast water did not exist, but because it was not widely understood in the scientific community that vast quantities of water had to be treated relatively quickly to preserve the safety of the ship’s stability and using techniques that should not threaten the health and indeed the lives of the seafarers onboard. We very much hope that the lessons learned through experience with the Anti-fouling Convention and the Ballast Water Convention will prevent the use of fixed dates in future conventions. Furthermore such a move will encourage Member States to ratify as quickly as possible all adopted conventions in order to give the shipping industry the regulatory stability that it not only deserves but also depends upon. There is an unusually large number of guidelines associated with the Ballast Water Convention and demonstrably and understandably this has been an impediment to states’ ratification. Now I am pleased to report that 13 of the 15 associated guidelines have been formally adopted. The two outstanding ones are guidelines for port State control and more significantly guidelines on ballast water sampling. We expect final versions in 2008, thus removing another impediment to ratification. Developments with this important convention can be described as slow progress but progress nevertheless!
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With the help of this small group of examples I have highlighted a number of problems: 1. The shipping industry is pleased to be party to the development of practical and effective legislation but is hampered in compliance by unacceptable delay in entry-into-force because states cannot complete their obligation and ratify the convention. 2. It is a generally applicable principle of MARPOL that port States must put in place adequate reception facilities to ensure that ships can discharge the waste that they need to in the proper manner and not be forced into a position where illegal discharge on the high seas becomes and attractive option. Port State compliance with this principle is often poor. But I stress that illegal action is not condoned by ICS. 3. There are impediments to ratification by states. In the case of the BWM Convention there were two obvious impediments to ratification—the lack of suitable treatment equipment and the need for so many guidelines. States were quite right to hesitate—they needed to understand what they and their ships had to do before final commitment. In the face of these difficulties we must learn the lessons and ensure that entry-into-force of future conventions is much more predictable. As a principle, a convention with a large number of guidelines is probably a poor piece of legislation and the adoption of convention text prior to the development of guidelines is also unhelpful. I note that it is already stated that the guidelines to accompany the Recycling Convention (due for adoption in 2009) are not due for development until after 2009— perhaps this needs re-considering. The IMO Secretary General speaking at the IMO Assembly a few weeks ago on the BWM resolution noted that fixed dates should be approached with much greater caution in the future. ICS has argued for 501
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some time that fixed dates are unacceptable—they only introduce confusion—instead all dates should be relative to the actual entry-intoforce date of the Convention itself. I also feel that an encouragement to proceed to ratification should be given by setting a deadline after which adopted Convention text will be removed form the record. This proposal should be taken in the context of future regulation. I mentioned that the lack of a ratification process in the review of MARPOL Annex VI is already introducing a different approach amongst the participating governments. Perhaps one could envisage setting a period of five years after which if the convention had not been adopted it should be removed from the record. The ratification criteria itself perhaps needs much more careful thought. I am thinking in particular now of the forthcoming Recycling Convention whose effective enforcement will depend entirely upon application in the Recycling States. I do not doubt that other ideas will emerge to give a new impetus to early ratification and I will be pleased to hear them. What international shipping needs is a mechanism to ensure expedient entry-into-force, enforceability and stability for the industry and for environmental protection—which is surely what we are all striving for.
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Edited Transcript of Question and Answer Session Panel VI: Vessel Source Pollution and Protection of the Marine Environment Mr. Chao Hick Tin: Now, ladies and gentlemen, you have heard the three presentations, each from a different perspective. I now open the floor to any participants who would like to ask any questions of our panel speakers. Yes, please. Mr. Roach. Captain J. Ashley Roach: Peter, I wanted to thank you very much for your remarks; they were very enlightening. I have a couple of comments and a question. You rightly note that for new conventions, the entry into force takes much more time than any of us would wish. It is important for the audience to recognize that once, as you mentioned in the context of MARPOL Annex VI, an IMO convention has entered into force, amendments to those—with a couple of exceptions—can be done without the delay associated with the ratification process. That is something that ought not to escape anyone. There are, in fact, a whole lot more amendments made to IMO instruments that enter into force at a fixed time than the few instruments that we are concerned about here. With regard to your suggestion that fixed dates shouldn’t appear in new instruments, I take your point with regard to ballast water and anti-foulants. I have a question about that, but I wanted to first note that in the context of Annex VI, we did in fact have a fixed date with regard to engines. That fixed date was agreed with the concurrence of the engine manufacturers themselves. The engine manufacturers have, in fact, complied with that date. And they did that because they needed the certainty associated with the changes that needed to be made. I wasn’t involved in the ballast water or the anti-foulants conventions, so my question to you is was the industry in agreement with the fixed dates that were there or was it, as you had mentioned in the context of ballast water, purely aspirational on the part of
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governments seeking to force change rather than have industry agree with the change? Mr. Peter Hinchliffe: The issue is about fixed dates that are likely to pass before ratification has been achieved and so, therefore, the convention is not enforceable. That is really the fundamental point I am making. This was the problem with the Ballast Water Convention. We knew and we told them. In fact, the statement that ICS made is on record in the diplomatic conference saying States are not going to achieve this fixed date of January 2009 because the equipment is simply not going to be there. And here we are in 2008 having just adopted a resolution to ameliorate the problem—I won’t say solve. Does that answer your question because I missed a bit leading up to your question? Captain J. Ashley Roach: You’ve made the point that I was making that, in the context of MARPOL Annex VI with regard to marine diesel engines, the date of 1 January 2000, I think it was, which was for three years after the Convention was adopted and well before we thought it would enter into force, was agreed to by the manufacturers themselves because they believed that they could meet that date. The contrast you are drawing here in the context of ballast water is that you did not have that circumstance. A suggestion that you shouldn’t have fixed dates ever perhaps should be modified to say that you shouldn’t have aspirational dates where you don’t have the relevant industry commitment to meet those dates. But to the extent that you do have the relevant industry saying we can do this, I don’t see that you should turn that down. That’s the point I was trying to make, sir. Mr. Peter Hinchliffe: One of the things I learned when I first started working for ICS and I went to IMO was to ask for something beyond what you want and come back to the consensus, compromise, whatever you
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want to call it, afterwards, which is exactly supporting of what you are saying. Professor Robert Beckman: A question to Peter. I am very aware of your work with respect to IMO conventions. Your organization serves as good input in the shipping industry. But over the last two days, one of the underlying themes is that port State control is becoming more assertive and coastal States are feeling in need to take actions of questionable legality because flag States are not fulfilling their obligations. As a organization that represents a large number of ship owners, what are you doing to ensure that your members register their ships with responsible flags, use responsible classification societies, and fulfill their obligations under Article 94 of the UNCLOS? Mr. Peter Hinchliffe: Well, first of all there is a cycle. We are in the stage of the cycle at the moment where port State control is becoming more effective. We would encourage that. Port State control is the policeman of the industry and we need that to be efficient and effective to weed out the bottom end of the market that none of us wants. The cycle will then, inevitably, roll on. Because port State control is more effective and because they are more effective at targeting particular flag States and also class societies and, indeed, owners for that matter, we will come to a stage where flag States will realize that they have to do better, and the standards will improve. I hope that this is a continually upward moving spiral. You asked specifically what is ICS doing? Well, some years ago we wrote a booklet called “Flag State Guidelines.” The subtitle, if you will, of that booklet is for the ship owner to be able to choose the flag State which will give him the best service and the least points, if you will, on the US Coast Guard targeting matrix. We are encouraging ship owners to seek out the flag States that will support unimpeded trade for them. So the answer is that we are encouraging ship owners to go and find these flag States, and we are helping them quite considerably. 505
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Professor Myron H. Nordquist: I have a question for Captain Michel. If I understood you correctly, you referred to Article 228, 230 of UNCLOS being applied in the Texas case (U.S. v. Jho). What I am wondering is, since the US isn’t a party to the Convention, how are you applying this? Captain Charles D. Michel: The question really should be directed to the judge in Texas because it is not our position. Our position is that 228 and 230 don’t apply. As a matter of fact, UNCLOS doesn’t apply. I mean it applies as a matter of customary international law, but not as a binding treaty obligation. The magistrate judge in that particular case got it exactly right. We are not a party to this thing. It’s a crime committed in port; it was a false statement and falsified oil record book case. But the judge for whatever reason said, nope, UNCLOS applies, this relates to pollution therefore 228 and 230 apply, monetary penalty limitations in 238 apply because the discharges occurred offshore that were falsely captured in the log book. It’s a very strange case. I would encourage you to read the judges “rationale” for what he did. We are very confident that we are going to win in the Fifth Circuit. There are about half a dozen other federal cases out there, and the most notable is a Maine case, which gets it exactly right: that this is essentially a port State control crime on the sovereign territory of the United States, and these other arguments simply don’t apply. We think that’s right. Mr. Chao Hick Tin: I think in terms of time, I have just time for perhaps one more question from anyone from the floor. Professor John Norton Moore: Peter, I was very pleased at your reminding us of the importance of uniform standards for ship construction and operation and the difficulty, particularly, if we end up with a hundred and twenty separate standards, with coastal States and others trying to put them into place. One of the crucial issues that we faced in the original 506
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negotiation on the treaty was the great importance of not having coastal States have the ability to set ship construction and operation standards. There was an effort to turn the EEZ itself into some kind of generalized environmental zone. That was strongly opposed by a number of maritime States, including the United States. The struggle was won with a very clear indication not only in the EEZ, but, as you know, also in the innocent passage provisions, that coastal States generally for ships simply going through their territorial sea or their EEZ, as opposed to the port State approach, will not have the ability to set ship construction and operation standards. I continue to believe that that is an enormously important principle, both for general efficiency in shipping and, in addition to that, for crucial issues in protection of national sovereignty and an effective law of the sea. It isn’t just a matter, even, of the prevention of multiple standards for ships, but there is a very serious potential for conflict and other problems given that more than half of all coastal States are completely zone locked. What it would really mean for nations of the world to have coastal States with the ability to set standards for ships simply going off their coast, sailing on the world’s oceans, is that the potential for political use of this and to subtly discriminate against the shipping of one’s neighbor, for example, is very, very great. I don’t think a majority of all coastal States, if they would reflect on this, would like the idea that in essence they are ceding this control to other nations. I am troubled that one hears efforts emerging from Brussels, particularly, and the European Union, to reverse and roll back this very important principle of freedom of navigation with an overall lessening of conflict and global efficiency in shipping. That was a very hard fought battle in the law of the sea, and was won. Again, it seems to me this is a key rule of law issue. I just wanted to put it on the floor at this point. It is very important that we not forget these things, and that whoever the bureaucrats are in Brussels that are seeking to push this, that they be held accountable and that there be discussions that help people understand why in the first place this came out the way it did in UNCLOS. 507
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Mr. Chao Hick Tin: Would any panel members like to respond to this? Mr. Peter Hinchliffe: Well, it won’t surprise you at all that I completely agree. I am very grateful for you airing that point. I wonder if I can just very, very briefly extend it slightly. I was not really referring to that, although that is perfectly valid. What I was referring to is the issue of port State control where there is no problem with port States setting a port entry requirement. No problem at all, and the industry would not argue against that. There is a problem if that port entry requirement implies a change to the construction or the equipment of the ship, and that is the case with air emissions in Europe, and it is also potentially a problem with ballast water management in the United States, although we haven’t gotten to the US domestic legislation yet. That was the point I was making, but thank you for that, which I fully support. Mr. Chao Hick Tin: Thank you to all the panel speakers.
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PANEL VII: NON-FLAG STATE ENFORCEMENT AND PROTECTION OF THE MARINE ENVIRONMENT
Particularly Sensitive Sea Areas and the Law of the Sea CDR James Kraska, JAGC, USN1 Abstract The international community has developed several concepts that provide special status and enhanced regulation for environmental protection throughout large areas of the high seas and exclusive economic zones. These concepts include “special areas” under the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78), High Seas Marine Protected Areas (HSMPAs) and the nascent concept of Large Marine Ecosystems (LMEs). Since the advent of the first Particularly Sensitive Sea Area (PSSA) at the International Maritime Organization (IMO) in 1990, PSSAs have become ubiquitous. Any IMO member government may propose a PSSA for any area of the marine environment it considers in need of special protection because of the area’s significance due to ecological, socio-economic or scientific attributes. Since the approval of the Great Barrier Reef PSSA (Australia) in 1990, the trend toward demarcating PSSAs that extend into the exclusive economic zone has accelerated. The list of PSSAs now includes the archipelago of Sabana-Camagüey (Cuba), Malpelo Island (Colombia), the Florida Keys (United States), the Wadden Sea (Netherlands, Denmark and Germany), Paracas National Reserve (Peru), Western European Waters (Belgium, France, Ireland, Portugal, Spain, United Kingdom), Canary Islands (Spain), the Baltic Sea (Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland, Sweden), Galapagos Islands (Ecuador), the Torres Strait extension of the Great Barrier Reef (Australia and Papua New Guinea), and the Northwestern Hawaiian Islands (United States). 1
The author’s PowerPoint presentation can be viewed on the accompanying CD.
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A PSSA may be proposed only in conjunction with “associated protective measures” (APMs), which are within the cognizance of the IMO or which should be available as a generally applicable measure within the competence of IMO. Existing PSSA protective measures include traffic separation schemes (TSS), areas to be avoided (ATBAs), reporting obligations, discharge prohibitions, no anchoring areas, traffic monitoring, recommended routes and deep water channel routes, and the most controversial, recommendatory (or mandatory) pilotage and ship reporting. The growth in the number of PSSAs since 1990 and the trend toward increasing regulation gives rise to concern over the potential for PSSAs to impair freedom of navigation and overflight of foreign flagged vessels and aircraft. If not developed through consensus and carefully and responsibly managed by coastal States, APMs that arise from the PSSA process could lead to restrictions on the exercise of high seas freedoms in the Exclusive Economic Zone (EEZ), impair the right of transit passage through straits used for international navigation and weaken the right of innocent passage. The author participated in drafting the current IMO PSSA guidelines (released by IMO in 2005), and in sessions of the IMO Marine Environment Protection Committee, which resulted in approval of PSSAs for the Baltic Sea and the Northwestern Hawaiian Islands. These experiences suggest that differences in interpretation, deeply held views on the role of the IMO, different perspectives on the distribution of authority among flag States, coastal States and port States in the United Nations Convention on the Law of the Sea (UNCLOS), and competing national and international maritime priorities are converging to increase scrutiny in the process for identifying and approving PSSAs and adopting APMs. If not approached cautiously and deliberately, PSSAs could destabilize the careful balance of interests between coastal States and the international maritime community of nations reflected in UNCLOS.
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Outline of Contents: I. The PSSA Concept A. The PSSA Guidelines B. Enforcement of PSSAs II. Existing PSSAs A. The Great Barrier Reef and the Torres Strait (Australia and Papua New Guinea) B. Sabana Camagüey (Cuba) C. Malpelo Island (Colombia) D. The Florida Keys (United States) E. The Wadden Sea (Netherlands, Denmark and Germany) F. Paracas National Reserve (Peru) G. Western European Waters H. Canary Islands (Spain) I. The Galapagos Islands (Ecuador) J. The Baltic Sea Area K. Papahānaumokuākea PSSA (United States) III. Conclusion A. Annex I: Table of Associated Protective Measures B. Annex II: Revised PSSA Guidelines (2005) *** I. The PSSA Concept The contemporary concept of a “particularly sensitive sea area” (PSSA) is regarded as a management tool to eliminate or reduce the most damaging impact of merchant shipping activities on certain areas of the oceans requiring heightened environmental protection. The term “PSSA,” much like the term “marine protected area” (MPA), “Special Area” or “high seas large marine ecosystem” (LME) has generated a variety of 513
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meanings, although in 2005 the term “PSSA” was more fully developed. Most marine environmental pollution results from land-based and nonpoint sources, 2 such as agricultural run-off, but PSSAs are designed to protect designated areas from environmental harm from vessel traffic. Because PSSAs arise as ad hoc declarations from the International Maritime Organization (IMO) rather than from a binding treaty, they represent one of the least formal mechanisms for controlling marine pollution and, if not properly adopted and implemented, a new mechanism for diminishing freedom of the seas. Their informal nature and rapid growth in recent years has raised questions not only about their efficacy, but also about their impact on lawful uses of the seas beyond freedom of navigation. PSSAs are not produced as a product of a binding treaty and proponents would like for them to serve as a more flexible tool than formal agreements. Their emergence less than two decades ago, and their proliferation in recent years, raises the issue of how to best maintain the balance between the rights of the international community to exercise freedom of the seas with the important goal of ensuring environmental protection. Although they are adopted through the IMO rather than a bilateral or multilateral treaty, PSSAs join a pantheon of existing international agreements designed, at least in part, to ensure the protection of the marine environment. These instruments include the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1972 Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), the 1969 International Convention on Civil Liability for Oil Pollution Damage and the 1976 Protocol, the 1971 International Convention on the Establishment of an International Fund 2
See generally, Group of Experts on the Scientific Aspects of the Marine Environmental Protection (GESAMP) Reports and Studies, 71: Protecting the Oceans from Land-Based Activities, Land-Based Sources and Activities Affecting the Quality and Uses of the Marine, Coastal and Associated Freshwater Environment, IMO/FAO/UNESCOIOC/WMO/WHO/IAEA/UN/UNEP, The Hague (2001).
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for Compensation for Oil Pollution Damage, the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties and its 1973 Protocol, efforts to reduce the likelihood of an incident causing pollution through the 1974 Safety of Life at Sea (SOLAS) and its protocols and numerous amendments, the 1977 International Convention on Civil Liability for Oil Pollution Damage Resulting from the Exploration and Exploitation of Submarine Mineral Resources and the 1973/1978 International Convention for the Prevention of Pollution from Ships (MARPOL 73/78). In addition to these treaties with global application, there exist regional treaties such as the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area (Helsinki Convention). It may be noted that the Helsinki Convention influenced the creation of the UNEP Regional Seas Program as well as the negotiation of UNCLOS. Unlike Special Areas created within the context of MARPOL, PSSAs are created outside of the architecture of a binding treaty. In enclosed or semi-enclosed sea areas designated MARPOL Special Areas, operational discharges, releases, or emissions of oil, garbage, or sulfur oxides (SOx) in SOx Emissions Control Areas (SECAs) designated under Annex VI are restricted. Compared to PSSAs, Special Area designation involves a more rigorous process, requiring that the area satisfy several criteria, including oceanographic conditions, ecological conditions and vessel traffic characteristics. Furthermore, protective measures may be applied in Special Areas only for the purpose of prevention of ocean pollution from the specific vectors identified in the annexes to MARPOL 73/78. This includes pollution from oil (Annex I), noxious liquid substances (Annex II), sewage (Annex IV) and garbage (Annex V). A PSSA, on the other hand, need satisfy only one risk criterion for designation, such as heightened social or cultural importance or ecological sensitivity, and also be at risk from international shipping activities. Additionally, the evaluation of what it means for a proposed PSSA to be
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“at risk from international shipping” has become a fairly low bar in recent years, seeming to require only the rare presence of international shipping. Like much of the progress in international environmental law, the inception of the PSSA has its roots in Stockholm. During the 1960s many began to realize that ecology would touch all aspects of our lives and that the environment would affect and be influenced by every corner of society. In 1968 the United Nations General Assembly (UNGA) for the first time began to think about the environment within the context of social and political terms.3 Writing before the conference, economist Barbara Ward and the microbiologist René Dubos captured the prognosis of the times: “The two worlds of man—the biosphere of his inheritance, the technosphere of his creation—are out of balance, indeed potentially in deep conflict… . This is the hinge of history at which we stand, the door to the future opening to a crises more sudden, more global, more inescapable and more bewildering than ever encountered by the human species… .”4 The UNGA adopted Resolution 2398, which proposed to convene a UN Conference on the Human Environment in 1972 for the purpose of creating a framework within the UN for “comprehensive consideration” of the problems of the human environment. The Stockholm Conference convened from November 5-16, 1972 and was the first global intergovernmental conference dedicated solely to environmental issues. The final declaration found its influence and authority in tone, and in its dedication to the idea of establishing basic rules of international environmental law. 5 Embodying 26 general principles, 6 the Stockholm Declaration was hortatory in its essence but with the distinct hope that, like the UN Declaration on Human Rights that preceded it, it would
3
Problems of Human Environment, UNGA Res. 2398 (XXII) (Dec. 3, 1968). Barbara Ward and René Dubos, ONLY ONE EARTH 12 (1972). 5 Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 HARV. INT’L L. J. 423, 513-515 (Summer 1973). 6 UN Doc A/CONF.48/14/Rev.1 Jun. 16, 1972, 11 I.L.M. 1416 (1972). 4
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slowly assume increasing authority. 7 Rather than setting forth specific guidelines, the power of the Declaration was in its value as a symbol of inspiration. Fundamental Principle 1 set forth in sweeping aspirational language the key to the Declaration: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of quality that permits a life of dignity and well-being, and bears solemn responsibility to protect and improve the environment for present and future generations.” 8 Implicit in this definition was the concept of “sustainable development” or more simply, cost-benefit analysis conducted over time. The 1972 Stockholm Conference also turned attention toward the human impact on the global environment, including the marine environment. Principle 7 of the Declaration called on all States to “take all possible steps to prevent pollution of the seas by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea.” At the Third United Nations Conference on the Law of the Sea from 19731982, the approach embodied in Principle 7 became influential in the negotiations concerning development of text for protection of the marine environment. 9 The general obligation of States to protect the marine environment is reflected in Articles 192 and 194 of the Law of the Sea 7
Louis B. Sohn, The Stockholm Declaration on the Human Environment, 14 HARV. INT’L L. J. 423, 513-515 (Summer 1973). 8 UN Doc A/CONF.48/14/Rev.1 Jun. 16, 1972, 11 I.L.M. 1416 (1972). Principle 1 still represents a timeless statement on the condition of man, although its importance was reduced by saddling the Principle with political language on post-colonialism that immediately dates the environmental message and detracts from overall framework: “In this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination, colonial and other forms of oppression and foreign domination stand condemned and must be eliminated.” Id. 9 Identification of Particularly Sensitive Areas, Including Development of Guidelines for Designating Special Areas Under Annexes I, II and IV: The Legal Concept of Particularly Sensitive Sea Areas (Submitted by Australia), IMO Doc. MEPC 30/10/3, 19 Sep 1990.
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Convention, and the language promotes terms that were included in the Stockholm Declaration. The inception of the PSSA concept arose several years after Stockholm with the International Conference on Tanker Safety and Pollution Prevention in London in 1978. Resolution 9, “Protection of Particularly Sensitive Sea Areas,” invited the IMO “to initiate making an inventory of sea areas around the world which are in special need of protection against marine pollution from ships and dumping, on account of the areas’ particular sensitivity in respect of their renewable natural resources or in respect of their importance for scientific purposes.” The second part of the proposal was for the IMO to assess “extent of the need of protection, as well as the measures which might be considered appropriate, in order to achieve a reasonable degree of perfection, taking into account also other legitimate uses of the seas.” As an umbrella or framework treaty, UNCLOS recognizes that some regions may be considered for heightened standards of environmental protection. Moreover, some parts of the Convention are to be read as operative, directly complementary to IMO instruments. For example, the provisions on navigational rights and freedoms are complete and should be implemented by all States as operative provisions. Similarly, some of the environmental provisions of the Law of the Sea Convention contain operative language as well. “[T]he provisions on investigations of foreign vessels contained in Article 226 [for example, may be compared with] those of MARPOL, Article 5. Both articles indicate how certificates should be inspected, measures to be taken when things are not in order, etc.”10 10
Agustín Blanco-Bazán, Senior Deputy Director/Head Legal Office, Legal Affairs and External Relations Division, IMO, Paper presented at the Seminar on current maritime issues and the work of the International Maritime Organization, Twenty-Third Annual Seminar of the Center for Ocean Law and Policy, University of Virginia School of Law, January 6-9, 2000, available at: http://www.imo.org/InfoResource/mainframe.asp?topic_id=406&doc_id=1077
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Article 194(5) of the UNCLOS obligates state parties to take measures necessary to protect and preserve fragile marine ecosystems. Furthermore, Article 234 created a special dispensation for coastal States to prescribe and enforce certain regulations in ice-covered areas. Article 211 of the Convention provides for the “competent international organization” to “establish rules and standards to prevent, reduce and control pollution of the marine environment from vessels.” 11 More specifically, Article 211(6)(a) provides that in cases in which generally accepted standards are inadequate to protect the environment, Member States may work through a “competent international organization”—the IMO—to obtain approval for special measures to control vessel source pollution within the EEZ for recognized technical reasons. In such cases, the IMO has one year in which to study the matter and determine whether the coastal State may adopt the proposed measures. A. The PSSA Guidelines The IMO was also called upon to consider what action would be needed to enhance the protection of the marine environment from pollution from ships and dumping of wastes and to take action, when appropriate, in accordance with IMO procedure. After the 1978 London meeting, discussions on the PSSA concept continued from 1986 to 1991. During this time, there was an increasing appreciation for how the IMO and member states could navigate between extending greater protection to sensitive areas while preserving freedom of navigation for the international community. By 1990, there had been considerable development of both global and regional agreements to prevent or reduce the risk of pollution in the marine environment and the value in pursuing additional measures for areas determined to be particularly sensitive or at
11
Law of the Sea Convention, Art. 211(1).
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risk of international shipping. Finally, these efforts culminated in adoption of the first PSSA and initial PSSA guidelines in 1991.12 The guidelines that emerged in 1991 focused on four issues: (1) ensuring the process for designating PSSAs considered all interests (coastal State, flag State and the shipping communities); (2) develop considerations based on scientific, technical, economic and environmental information regarding the area (i.e. the criteria were not to be political in nature); (3) an assessment of the potential risk of environmental damage of the area from international shipping activities (in contrast to the risk of damage from coastal State vessels which may be addressed through coastal State enforcement of its registered fleet); and, (4) introduction of regulatory or protective measures into the area that might minimize the risk from international shipping. These guidelines were further clarified in 1999 and 2001, and were completely rewritten in 2005. Much of the work on the revised guidelines was conducted between meetings of the IMO Marine Environmental Protection Committee (MEPC) 52 and MEPC 53. Ms. Lindy Johnson of the National Oceanic and Atmospheric Administration in the U.S. Department of Commerce served as chairperson for the technical group that met to finish the work during MEPC 53. These efforts were successful in making the process of designating PSSAs more rigorous and ensuring that all “associated protective measures” (APMs) have a clear a basis in the law. At least one APM now must be included with the submission for a PSSA. The improved guidelines were adopted at Assembly 24. The 2005 Guidelines were intended to bring a greater degree of rigor to the process for designating PSSAs. After the IMO approved a number of PSSAs beginning in 2001, there was a sense among states that PSSA applications should be subject to meticulous validation. At the time it was clear further work was required to clarify and strengthen the criteria 12
IMO Res.A.720(17), Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive sea Areas (1991) (the 1991 PSSA Guidelines).
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for PSSA designation. The criteria for PSSA designation could be improved, as they were not as clear and meaningful as they should have been. MEPC 53 in 2005 made progress toward this goal by reaching agreement on a more extensive set of revised PSSA Guidelines.13 Under the new Guidelines, which are reproduced as Annex II of this chapter, each PSSA application should consist of two parts. Part I of the new Guidelines provides a detailed description of the proposed area, the recognized ecological, socio-economic or scientific attributes and a description of the particular international shipping activities that are causing or may be expected to cause damage to the proposed area.14 Part II proposes appropriate APMs and the IMO’s competence to approve or adopt them. 15 The Guidelines are designed to serve as a roadmap for conducting a comprehensive assessment whereby an identified vulnerability is linked with the most appropriate APM to prevent, reduce or eliminate that vulnerability. Such measures not only result in the protection of an area’s specific attributes, but also may improve safety and traffic management for international shipping activities. Article 211(6) of the Law of the Sea Convention recognizes that where international rules are inadequate to meet special circumstances and a coastal State has reasonable grounds to believe that a particularly defined area in the EEZ is required “for recognized technical reasons in relation to its oceanographical and ecological conditions,” coastal States may work through the IMO to adopt special rules applicable in the area.16 This process requires an IMO determination that the conditions in the area correspond to the special measures being requested by the coastal State. This coastal State authority, however, is narrower than the 2005 PSSA Guidelines, which permit adoption of special rules for reasons other than just oceanographical and ecological conditions, to include cultural, 13
IMO Res. 982(24). IMO Res. 982(24), para. 7.5.1. 15 IMO Res. 982(24), para. 7.5.2. 16 Law of the Sea Convention, Art. 211(6). 14
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economic and social criteria. Any rules promulgated in accordance with Article 211(6), moreover, shall not require vessels to observe “construction, design, equipment or manning” (CDEM) standards that are different than internationally accepted standards. Other than the provisions of article 211, the only authority for the establishment of PSSAs is the Guidelines, a form of “soft law” which is not legally binding on states. IMO member states are obligated, however, to ensure ships flying their flag comply with APMs. The technical authority of the IMO as a specialized UN agency may be utilized to adopt measures to enhance the safety of navigation, but such routing measures originally were applied to fairly specific localities. At MEPC 53 the Russian Federation expressed disappointment that the draft Guidelines would not accomplish the purpose of the revision, which was to curtail the growth of PSSAs and make designation less available to coastal States. At the same session that the Guidelines were completed, the MEPC approved a joint submission by Australia and Papua New Guinea to extend the Great Barrier Reef PSSA to include the Torres Strait, approved designation of the Canary Islands as a PSSA, approved designation of the Galapagos archipelago as a PSSA and approved designation of the Baltic Sea area as a PSSA. There was a sense of compromise that this basket of new PSSAs would be approved but that the new Guidelines would moderate the pace of new PSSA proposals. It is too early to tell if this is the case, but the evidence tends to point in the opposite direction. In current nomenclature, a PSSA is an area that needs special protection because of its significance for recognized ecological, socioeconomic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities.17 At the time of designation of a PSSA the coastal State is required to propose APMs that meet the 17
PSSA: PARTICULARLY SENSITIVE SEA AREAS COMPILATION OF OFFICIAL GUIDANCE DOCUMENTS AND PSSAS ADOPTED SINCE 1990, 1 (2007 ed.).
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requirements of an appropriate legal instrument establishing such measure and at least one APM must have been approved or adopted by the IMO to prevent, reduce, or eliminate the identified vulnerability. The interests of the coastal States, flag States and environmental and shipping communities are to be considered in the development and approval of PSSAs. Creation of a PSSA and adoption of APMs requires consideration of three integral components: the particular attributes of the proposed area, the vulnerability of the area to damage by international shipping and the availability of APMs within the competence of the IMO to prevent or reduce risks from shipping activities. Attributes of the proposed area may be ecological, socio-economic, or scientific. Designation of an area as a PSSA has no legal significance without further action. The only element that has practical or operational significance is the selection and application of one or more APMs. Since these measures result in changes to ships’ operations, they must have an identified legal basis and this legal basis must be specific in the PSSA application. Previous versions of PSSA guidelines permitted the practice of “designation in principle” in which a PSSA was identified and designated without consideration of APMs at the time of designation. This approach was abandoned in the 2005 Guidelines because it makes it impossible to determine whether the vulnerability is addressed, or to gauge whether anticipated APMs are appropriately tailored to accommodate other interests that are included in freedom of navigation and other lawful uses of the seas. Given the importance of linking the identified vulnerability to the most appropriate measures to address that vulnerability, it was critical that PSSA applications include proposed or existing APMs. The APMs, moreover, should be narrowly interpreted by the international community so that designation of a PSSA does not automatically exclude other high seas freedoms such as freedom of navigation, including the right of vessels to transit the area with irradiated nuclear fuel, plutonium and highlevel radioactive waste materials. 523
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Further refinements to the PSSA implementation process were adopted at MEPC 54 and 55. MEPC 54 adopted a uniform format for future MEPC resolutions for the designation of PSSAs. 18 The uniform format helped to standardize PSSA resolutions that had been promulgated in a diversity of shapes and sizes. MEPC 55 introduced a new PSSA Proposal Review Form.19 The requirement for coastal States proposing a new PSSA to complete a comprehensive and open-ended PSSA Proposal Review Form was a way to develop greater information and awareness about the proposal. The Proposal Review Form serves as a uniform format for submissions by coastal States and the form creates a more iterative process between the coastal State and the IMO, and it is a welcome departure from previous forms that relied on a checklist format that included “yes/no” questions devoid of context. There are three major criteria that apply to the identification of PSSAs with respect to adoption of measures to protect areas against damage from international shipping. In order to be identified as a PSSA, an area must meet at least one of the criteria. Moreover, at least one of the criteria must exist throughout the entire area of the proposed PSSA, but the same criterion does not have to be present throughout the entire area. These criteria coalesce around three broad categories—(1) ecological; (2) social, cultural and economic; and (3) scientific and educational. The criteria are intended to apply beyond the limits of the territorial seas, but may be used by national authorities for application within the territorial seas. The criteria include the following considerations: •
18 19
Ecological criteria—uniqueness or rarity, presence of critical habitat; an area of dependency in which ecological processes are dependent on biotically structured systems such as reefs, spawning or breeding grounds, fragility, naturalness (lack of human disturbance), integrity of IMO Doc. MEPC 54/21 (Annex 11). IMO Doc. MEPC 55/23 (Annex 20).
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the area (i.e. that it functions as a biological unit), exceptional biological diversity and bio-geographic importance, such as an area that is representative of unique or unusual biological, chemical, physical or geologic features.20 •
Social, cultural and economic criteria—social, cultural or economic dependency through use of living resources, including activities such as fishing, recreation, tourism or livelihoods and an area of significant cultural heritage, such as the location of traditional subsistence activity by the local population.21
•
Scientific and educational criteria—area of heightened research interest, an area used as a baseline for monitoring studies, an area that offers exceptional opportunity for education or an area of exceptional opportunity for education.22
These attributes must be at risk from international shipping, and this means more than just the presence or existence of international shipping in the area, but should include an examination of special circumstances that indicate why international shipping is a particular concern. B. Enforcement of PSSAs The principal mechanism for compliance with APMs associated with PSSAs is flag State enforcement. 23 The Guidelines indicate: “Member Governments should take all appropriate steps to ensure that ships flying their flag comply with the associated protective measures adopted to protect the designated PSSA. Those Member governments 20
IMO Res. A.982(24), paras. 4.4.1-4.4.11. IMO Res. 982(24), paras. 4.4.12-4.4.14. 22 IMO Res. 982(24), paras. 4.4.16 and 4.4.17. 23 IMO Res. 982(24), para. 9.3. 21
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which have received information of an alleged violation of an associated protective measure by a ship flying their flag should provide the Government which has reported the offence with the details of any appropriate action taken.” 24 The principle of flag State enforcement is reflected in the Law of the Sea Convention, and Article 211(2) says, “States shall adopt laws and regulations for the prevention, reduction and control of pollution of the marine environment from vessels flying their flag or of their registry.” Moreover, “[s]uch laws and regulations shall at least have the same effect as that of generally accepted international rules and standards established through the competent international organization or general diplomatic conference.”25 Flag States must conduct enforcement of flag State rules on vessels registered in the flag State. The fact that there are instances in which flag States have not executed this obligation seriously has tended to encourage or strengthen alternative processes, such as port State control regimes. Port states supplement the efforts of flag States to regulate shipping with an assertion of an independent authority over vessels entering their ports. Port states may establish requirements for the prevention, reduction and control of pollution of the marine environment as a condition of entry of foreign vessels into their ports, internal waters, or as a condition of calling at offshore terminals.26 In doing so, port States are required to publicize these rules and to inform the IMO.27 The rules pertaining to port States in Article 211 specifically do not apply to vessels exercising the right of innocent passage without intention to make port in the port State, but coastal States may adopt laws and regulations that apply to vessels conducting innocent passage so long as the rules do not deny, hamper, or impair that navigational right.28 24
Id. Law of the Sea Convention, Art. 211(2). 26 Law of the Sea Convention, Art. 211(3). 27 Id. 28 Law of the Sea Convention, Part II and Art. 211(4). 25
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In recent years, the trend toward port State regulation has accelerated, and now includes Enhanced Port State Control Regimes, such as those in SOLAS Ch. V and MARPOL Annexes I, II, V and VI. Another effort in this regard is the Regional Port State Memorandum of Understanding (MOU), in which port States agree to exchange results of vessel inspections. Flag State programs such as the voluntary audit scheme have developed in response to these enhanced port State initiatives.29 Under the voluntary audit scheme, flag States agree to subject their vessels to an external audit in exchange for the benefit of easing entry into cooperating ports. The Law of the Sea Convention also recognizes extraordinary circumstances or exceptional threats in which it may be appropriate for a coastal State to enforce against major environmental damage. The greatest consideration in understanding coastal State enforcement, however, is to maintain the distinction between prescriptive jurisdiction and enforcement authority. The authority of the coastal State to prescribe environmental regulations in the EEZ is broader than coastal State authority to enforce such regulations. Coastal States have authority to prescribe laws and regulations in the EEZ under Article 56 of the Law of the Sea Convention, provided those rules comply with the other rules of the Convention, such as Article 58 that protects the rights of all states to enjoy high seas freedoms in a coastal State’s EEZ. The architecture for coastal State enforcement is set forth in Article 220 of the UNCLOS. It is important to note that PSSA designation does not provide any additional authority for coastal State enforcement of 29
The IMO Assembly approved the Scheme in November 2003 when it adopted resolution A.946(23) Voluntary IMO Member State Audit Scheme. The resolution also mandated the further development of the scheme, to be implemented on a voluntary basis, and requested the IMO Council to develop 24th Assembly in November-December 2005, which adopted Resolutions A.974(24) Framework and Procedures for the Voluntary IMO Member State Audit Scheme and A.973(24) Code for the Implementation of Mandatory IMO.
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environmental regulation in the EEZ beyond what is provided in Article 220. Where a state has clear grounds (reasonable suspicion) that a vessel in the territorial seas has violated laws and regulations adopted in accordance with the Law of the Sea Convention or other applicable international rules and standards, the coastal State may undertake physical inspection of the vessel relating to the violation. The coastal State also may, where the evidence so warrants, institute proceedings, including detention.30 This action by the coastal State then triggers the provisions for detention and prompt release.31 Where a state has clear grounds that such a violation has occurred in the EEZ, the coastal State may require the vessel to give information regarding its identity and port of registry, last and next port of call and “other relevant information” to determine whether a violation has occurred.”32 In cases in which a state has clear grounds of a “substantial discharge causing or threatening significant pollution” in the EEZ, that coastal State may initiate a physical inspection if the vessel has refused to provide relevant information or if the information provided is “manifestly at variance” with the facts.33 In cases presenting “clear objective evidence” that a vessel in the EEZ or territorial seas has committed a violation causing “major damage or threat of major damage to the coastline” or marine resource, the coastal State may institute proceedings, including detention of the vessel.34 This action by the coastal State, however, would set in motion the provisions for posting of a bond or surety and release35.
30
Law of the Sea Convention, Article 220. Law of the Sea Convention, Arts. 292, 220(7) and 226 (1)(b). 32 Law of the Sea Convention, Art. 220(3). 33 Law of the Sea Convention, Art. 220(5). 34 Law of the Sea Convention, Art. 220(6). 35 Law of the Sea Convention, Art. 220(7). 31
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II. Existing PSSAs In less than twenty years, the PSSA concept has shifted from obscurity to an ascendant tool in coastal State environmental authority. Existing PSSAs include the Great Barrier Reef and Torres Strait, the area of the Northern coast of Cuba, the sea area around Malpelo Island, Colombia, the sea area around the Florida Keys in the United States, the length of the Wadden Sea along the coast of Denmark, the Netherlands and Germany, Paracas National Reserve in Peru, the vast Western European Waters PSSA stretching the length of Western Europe, the Canary and Galapagos Islands sea areas, nearly all of the Baltic Sea, and the area of the Northwestern Hawaiian Islands, extending 1,200 miles from Kauai in the East to beyond Midway Island in the West. A. The Great Barrier Reef and the Torres Strait (Australia and Papua New Guinea) In 1990 Australia sought the support of the IMO through the MEPC for identification of the Great Barrier Reef (GBR) as a PSSA.36 The GBR was the first marine area to be designated as a PSSA.37 The designation was made under the original guidelines approved by the MEPC for designating PSSAs. The GBR is an area of unique biological diversity and was placed on the World Heritage List.38 The area is protected in part by Australian domestic legislation and Australia sought additional protection through a 36
IMO Res. MEPC 30/19/4, Identification of the Great Barrier Reef as a Particularly Sensitive Area, 19 September 1990. 37 IMO Res. MEPC 44(3), Identification of the Great Barrier Reef Region as a Particularly Sensitive Sea Area, adopted 16 Nov. 1990. 38 IMO Res. MEPC 30/19/1.
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system of compulsory pilotage for vessels over 70 meters in length bound to or from an Australian port, as well as those transiting the coast within the inner route of the GBR. Most of this inner route, which extends between latitude 10 degrees 40 minutes South and latitude 16 degrees 40 minutes South, lies within Australian internal waters, landward of baselines which were proclaimed in 1983, with additional smaller areas lying within the territorial sea. Australia confirmed that all nations enjoy the right of innocent passage through the territorial seas, and extended that right within internal waters landward of the baselines. Australia had operated a system of recommendatory pilotage through the area in accordance with IMO Resolution A.619(15) for all ships 100 meters in length and over, and for all oil tankers and chemical carriers. Under the rules for the PSSA, flag States should inform ships flying their flag that they should act in accordance with Australia’s system of pilotage for merchant ships of 70 meters or carrying the specified cargo.
The Great Barrier Reef (Australia)
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In July 2005, MEPC 53 adopted a resolution to extend the Great Barrier Reef PSSA from Cape York throughout the Torres Strait and up to Papua New Guinea. The additional area is about 90 nautical miles wide and 150 nautical miles long and includes the Prince of Wales Channel and the Great North East Channel. The area of the Torres Strait is subject to the tidal influences of two oceans systems, resulting in anomalous tidal regimes affecting the regional biodiversity. The islands throughout the Strait are sparsely populated, with several thousand people living in small communities on Cape York and the adjacent islands. The passage involves navigation for long periods and within limited depths, and timing the “tidal windows” facilitates transit through the Strait. The area lies entirely within the territorial seas and EEZs of Australia and Papua New Guinea. Vessels bound for ports in Australia and Asia transit the Torres Strait. The MEPC resolution on the Torres Strait contained two APMs. The first was designation of a two-way route through the Strait. The second APM that was adopted was a scheme for recommendatory pilotage in the Torres Strait. This measure has since been implemented by Australia as a mandatory measure, which is inconsistent with the IMO action as well as the Law of the Sea Convention. The IMO actually approved a measure recommending that governments inform their ships flying their flag that the vessels should act in accordance with Australia’s system of pilotage. The purpose of the proposal was to heighten international awareness of the environmental sensitivity of the Strait and to facilitate safe and efficient shipping within the Strait. The resolution was recommendatory and provided no international legal basis for institution of a scheme of mandatory pilotage for ships in transit in the Strait. At MEPC 53, the US Government and many other states expressed a commitment to implementing recommendatory pilotage to the extent that doing so did not deny, hamper or impair the right of transit passage through the Torres Strait. The text of the US intervention was included in the report of MEPC and the position on this issue was joined by 531
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delegations from the Bahamas, Japan, Singapore, China, the Russian Federation and the Republic of Korea. The countries of Iran, the Russian Federation, Japan, and Singapore explicitly conditioned their support for the resolution on the fact that pilotage was recommendatory. In response to a question by the Chair of MEPC 53 as to whether Australia could accept a recommendatory pilotage scheme, the Australian representative said he could “live with that.” This might suggest that the IMO delegate accepted the recommendatory language at the session, but that the Australian Government then proved unwilling to do so. The day following adoption of the recommendatory scheme in July 2005, there appeared in Lloyd’s List an erroneous article reporting MEPC 53 had adopted a system of compulsory pilotage in the Torres Strait. The Chairman of MEPC 53 discussed the article in session and requested the IMO Media Office to contact the newspaper about the inaccuracy and request a retraction and correction. On July 21, 2005 Lloyd’s List issued a correction. In contrast to Australia’s recognition of the rights of the international community to freedom of navigation in the GBR and the fact that nearly all of the GBR transit routes are in internal waters, Australia’s interpretation of the extension of the GBR system to include the Torres Strait imposes a requirement of mandatory pilotage through the strait. This requirement by Australia is inconsistent with the right of transit passage through straits used for international navigation. The analysis conducted by Professor Robert C. Beckman on this issue in the peer-reviewed journal Ocean Development and International Law is dispositive on this point, and the issue is not addressed in detail in this chapter.39 Controversy over Australia’s scheme of pilotage in an international strait, however, persists. Enforcing a mandatory pilotage regime in an international strait without the imprimatur of the IMO is a potentially damaging precedent to transit 39
Robert C. Beckman, Transit Passage and PSSAs—Australia’s Pilotage System in the Torres Strait Challenges the IMO and UNCLOS, 38 OCEAN DEVELOPMENT AND INTERNATIONAL LAW 325-357 (October 2007).
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passage globally. One theory suggests Australia intentionally crafted a proposal that appeared recommendatory but which it knew it would implement as a mandatory measure in order to obtain international buyin. 40 Whatever the motivation, Australia has embarked on a tenuous course of action without a clear mandate from the IMO, raising concern that the enforcement of compulsory pilotage sets an adverse precedent for freedom of navigation through other international straits. Australia’s confident implementation of mandatory pilotage in the Torres Strait represents the elastic nature of even common understanding reached at IMO regarding the contours of APMs. Unfortunately, the pilotage scheme as implemented by Australia also undermines the PSSA concept itself since maritime users cannot now have confidence that what they approve at IMO will be what is actually implemented by the coastal State. B. Sabana Camagüey (Cuba) The Sabana Camagüey PSSA was adopted on September 25, 1997. Located along the northern tier of the island of Cuba, the area is part of the Wider Caribbean Region that was designated as a special area under MARPOL Annex V. Initially, the Sabana Camagüey PSSA was designated “in principle,” “recognizing that measures to be applied in the proposed area” would be further considered at future sessions of MEPC and the Marine Safety Committee (MSC). MEPC 48 approved three Traffic Separation Schemes (TSS) in territorial waters along the north coast of Cuba off Costa de Matanzas and within the territorial waters of the Sabana Camagüey geographic island archipelago. The traffic separation zones are one to two miles wide and are complemented by inshore traffic zones that affect mostly channel and port traffic. The PSSA 41
40
Julian Roberts, Compulsory Pilotage in the Torres Strait, 37 OCEAN DEVELOPMENT & INTERNATIONAL LAW 93-112, at 104-05 (2006). 41 IMO Res. MEPC 74(40).
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also includes three TSS in the Old Bahamas Channel that measure onehalf to two miles wide and features an inshore traffic zone. A further three TSS measuring between one to two miles wide are located off Punta Maternillos and an inshore traffic zone complements these measures. The PSSA contains an Area to be Avoided (ATBA) by all ships greater than 150 gross tons due to the unique biodiversity and beautiful scenery in the access routes to the ports of Matanzas and Cardenas. Finally, the PSSA is protected by regulations that prohibit the discharge of oil, oily mixtures, noxious liquid substances, garbage and other harmful substances from any vessel and prohibit the dumping of garbage from ships, which includes plastics, stowage and packing materials, glass, rags, metal, ceramics and other material. C. Malpelo Island (Colombia) The sea area around Malpelo Island located in the Eastern Pacific was recognized as a PSSA on March 8, 2002.42 Located off the coast of South America, the area was determined to be at risk of serious damage to the environment and to the economy of the area. Consequently, an ATBA was adopted that indicated all fishing vessels and all vessels in excess of 500 gross tons should avoid the area.43
42 43
IMO Res. MEPC 97(47). IMO Doc. SN/Circ.220.
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Malpelo Fauna and Flora Sanctuary (Columbia)
D. The Florida Keys (United States) The waters surrounding the Florida Keys contain a fragile, pristine coral reef ecosystem.44 Thousands of ships on international voyages pass through the Florida Keys each year, and the PSSA designation was designed to reduce the risk of potential damage of the coral reef caused by such ships. Coral in the area is subject to vessel damage from ship groundings and collisions, anchoring and vessel discharges. The Florida Keys PSSA is a 3,000 nm square area, and was the fourth PSSA, although the first designated in US waters. The designation expanded national efforts to protect the surrounding coral reefs, including the Florida Keys National Marine Sanctuary and the Tortugas Ecological Reserve. Associated protective measures that apply within the PSSA are three noanchoring zones and four ATBAs to discourage larger ships from 44
IMO Res. MEPC 98(47)
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transiting near coral reefs. The IMO Resolution adopting the PSSA indicated that, “mariners should exercise extreme care when navigating the area.”45 E. The Wadden Sea (Netherlands, Denmark and Germany) The Wadden Sea is a dramatic and highly dynamic tidal ecosystem extending from Denmark, along the coast of Germany and then to the Western boundary of the Netherlands.46 The area, which was designated a PSSA in 2002, is bordered on the landward side by main dikes and the springtime high-water line, and in rivers, by the brackish-water limit. The sand dunes, beaches, estuaries, bays, salt marshes and tidal flats are a habitat for seabirds, seals, shellfish and other species. Major shipping lanes in the vicinity of the area were excluded from the PSSA designation. Nearby lie some of the major shipping ports in Western Europe and the approaches to the Baltic Sea, both of which have great economic importance to the region. The entire Wadden Sea area is one of the most concentrated shipping areas in the world. There is an overlapping system of complementary protective measures from national governments, the European Community and several other international agreements, such as the Bonn Agreement for Cooperation in Dealing with Pollution in the North Sea. The North Sea is a MARPOL Special Area under Annex I and Annex V and all three countries are parties to MARPOL 73/78. All three countries also have instituted compulsory inshore and harbor piloting and made available deep-water pilotage. Germany and the Netherlands have comprehensive Vessel Traffic Services (VTS) and other measures including provision of information, collision avoidance and navigation assistance, radar surveillance and mandatory reporting. Since 1995, the area has been 45 46
Id. IMO Res. MEPC 101(48).
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protected by the application of the European Hazardous Material (HAZMAT) Directive 47 and measures for provision of port reception facilities.48 Because the area already was subject to a system of effective measures to protect it, no additional IMO measures were proposed. F. Paracas National Reserve (Peru) On July 18 2003, the IMO recognized the Paracas National Reserve PSSA. Located on the Eastern Pacific coastline of Peru, the area is a beautiful paradise with a subtropical desert climate.49 There is only a 6-8 degree variation in temperature between the hottest and coldest months. There is a stable cloud height of about 600 meters and a persistent warm wind. The sea in the vicinity of Paracas is one of the richest in the world, with an enormous diversity of species ranging from algae, plants, marine arthropods, anelides, mollusks, fish, reptiles, birds and mammals. The area also is protected primarily through a series of national measures and the adoption by the IMO of ATBAs that apply to ships greater than 200 gross tons carrying hydrocarbons and hazardous liquids in bulk.50
G. Western European Waters The Western European Waters PSSA encompasses a complex ocean space that includes the coastlines of the United Kingdom, France, Belgium, Ireland, Spain and Portugal, and the Shetlands Islands, Orkney Islands and the Hebrides. The PSSA was designated at MEPC 52 on October 15, 2004.51 The area encompasses the relatively shallow waters of 47
EC Directive 93/75/EEC (Hazmat Directive), entered into force in 1995. EC Directive 2000/59/EEC (Port Reception Facilities), entered into force in 2000. 49 IMO Res. MEPC 106(49). 50 IMO Res. MEPC 106(49) (Annex). 51 IMO Res. MEPC 121(52). 48
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Western Europe and also includes some of the world’s densest international sea routes, such as the English Channel. Twenty-five percent of the world’s shipping converges toward the English Channel, and this traffic includes large numbers of ships and quantities of dangerous goods carried by sea. There is a constellation of APMs that apply in the area, including 15 TSS, 3 deep-water routes, 8 ATBAs and 3 routing measures, the latter consisting of recommended traffic flow in the English Channel, recommended routes in the Fair Isle Channel and recommended navigation around the UK coast. There is a Mandatory Ship Reporting (MSR) system called WETREP that applies to all tankers greater than 600 tons deadweight carrying a cargo of heavy crude, heavy fuel oil or bitumen and tar. There has been opposition to the ship reporting system and a proposed ban on single hull tankers was rejected. The area also is protected by four coastal VTS such as coast radio and reporting facilities. One rationale for the Western Europe PSSA was that the European Union was ahead of the international community in advocating stringent measures to phase out carriage of heavy grades of oil in single-hull tankers.52 If individual states or groups of states in a particular region can act in concert to ignore internationally accepted standards, however, then the balances struck in the Law of the Sea Convention will be destabilized. 53 At the end of that process, prominent scholars who reviewed the Western European PSSA concluded that the PSSA was vulnerable to the impacts of international shipping and that at least parts of the area met the criteria in place at the time for designation as a PSSA.54 The problem, they suggest, was the manner of presentation and, especially, the spurious link between the stated risk and the proposed measures to 52
IMO Doc. MEPC 49/22 paras. 16.1-16.20. S. Jones, International Law in Jeopardy from EU, THE MOTOR SHIP, 18-19 (June 2003) . 54 Julian Roberts, Martin Tsamenyi, Tim Workman and Lindy Johnson, The Western European PSSA Proposal: A ‘Politically Sensitive Sea Area’, 29 MARINE POLICY 431440 at 440 (2005). 53
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address the risk. Consequently, they suggest maritime states and industry representatives would be inclined to more closely scrutinize future application and even to demand a higher standard of proof between the proffered risk and the measures to address it.55 H. Canary Islands (Spain) Located 100 kilometers off the West Coast of Africa, the Canary Islands are comprised of seven volcanic islands and six islets. These islands have steep mountains rising directly from the Earth’s mantle out of the sea and feature steeply sloping shores. The very narrow shelves are an ideal nesting location for birds. The surrounding waters contain 20 cetaceous species, including dolphins and large whales, over 500 species of fish and thousands of invertebrates. 56 The primary threat from international shipping to the area is the large number of oil tankers— estimated at 1,500 ships per year—that transit the area bound for the Arabian Gulf.57 The Canary Islands PSSA was among the basket of areas adopted at MEPC 53 in July 2005. Protective measures include TSS, precautionary areas, inshore traffic zones, ATBAs around cetacean breeding grounds and biosphere reserves applying to tankers over 500 gross tons and carrying oil or dangerous bulk cargo. 58 There is also mandatory ship reporting for oil tankers and vessels carrying bitumen, tar and their emulsions, and those weighing 600 deadweight tons or greater.59
55
Id. IMO Res. MEPC 134(53), para. 2.1.5. 57 IMO Res. MEPC 134(53), para. 2.3.2. 58 IMO Res. MEPC 134(53), Annex 2, Associated Protective Measures. 59 Id. 56
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I. The Galapagos Islands (Ecuador) The Galapagos Islands are located 500 nm off the coast of South America in the Eastern Pacific. Crossed by the equator, the islands are synonymous with biodiversity. The islands have an other-worldly character which has made them an object of fascination and an ideal laboratory for the study of the theory of natural selection.60 The islands are not only a UNESCO World Heritage site, but have been placed on the list of sites that face particular stress, “World Heritage in Danger.” Like the extension of the Great Barrier Reef PSSA into the Torres Strait, the Canary Islands PSSA and the Baltic Sea Area PSSA, the Galapagos PSSA was adopted at MEPC 53 in the summer of 2005.61 The islands are surrounded by an ATBA that is coterminous with the boundaries of the PSSA and that applies to ships carrying oil and potentially hazardous material and all ships of 500 tonnage or greater in transit. Mandatory ship reporting, which was later adopted in 2006, applies to all ships in the area. 62 The PSSA complements a series of national measures by Ecuador, including fully protected “no take” areas, areas permitting non-extractive uses only, areas regulating extractive uses and inhabited port areas.
60
Stan Stesser, Galapagos Under Siege, WALL ST. J. Jan. 5-6 2008 at p. W1, W6. IMO Res. MEPC 135(53). 62 IMO Res. MSC 229(82). 61
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The Galapagos Islands (Ecuador) J. The Baltic Sea Area (Regional) The final PSSA adopted at MEPC 53 is the Baltic Sea Area, which is a geologically young, shallow, and semi-enclosed sea. The Baltic Sea Area PSSA comprises the Baltic Sea proper, the Gulf of Bothnia, the Gulf of Finland, and the entrance to the Baltic Sea, but excluding those marine areas within the sovereignty of the Russian Federation or subject to the sovereign rights and jurisdiction of the Russian Federation.63 The water is cold and brackish. The exchange of water between the Baltic Sea and the North Sea is slow and limited, so there is a long residence time of water in the Baltic. Large parts of the Baltic are covered by ice during some of the year. There is a low level of biodiversity, but the area has unique fresh water and true brackish water species, and the shores of the Baltic are a breeding ground for coastal birds and waterfowl. Many of the aquatic species are threatened, and the disappearance of one of these species could 63
IMO Res. MEPC 136(53).
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disrupt the entire system. Consequently, the marine ecosystem is particularly sensitive to manmade disturbances. The Baltic Sea hosts some of the densest maritime traffic lanes in the world. More than 2,000 ships transit the area in an average day. The area is a particularly important route for oil tankers and 200 of these vessels are in the Baltic Sea daily. The Baltic Sea Area PSSA proposal was submitted by a consortium consisting of Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden. The Baltic Sea PSSA was approved by MEPC 53 and adopted at IMO Assembly 24. At MEPC 53, the Russian Federation initially objected to the designation of the area because it included waters under Moscow’s sovereign rights and jurisdiction. To complicate matters, the Russian Federation and other Baltic states were unable to agree on the precise coordinates that delineated Russian waters or areas under Russian jurisdiction. Your author participated in negotiations among the Baltic Sea countries to develop language that was inserted into Annex I of the Resolution that explicitly excluded from the PSSA marine areas under the sovereignty or jurisdiction of the Russian Federation—a practical compromise that resolved the issue. Furthermore, the Russian Federation received assurances that designation of the Baltic Sea Area PSSA did not prejudice its sovereignty or sovereign rights and jurisdiction in international law. This change accommodated Russia’s resistance to the proposal. Once the deadlock between Russia and the other Baltic states was broken, the Russian Federation did not object to the final resolution.64 The protective measures associated with the Baltic Sea PSSA are contained in Resolution MEPC 136(53) and include a new and amended TSS just south of Sweden between the areas of Gotland Island and Bornholm Island (Denmark).65 There also are several new ATBAs in the southern Baltic Sea, with the largest one located in the vicinity of Hoburgs 64 65
Russia did not block the PSSA at MEPC. IMO Res. MEPC 136(53).
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Bank (just south of Gotland Island). The ATBAs apply to all vessels of 500 gross tons or greater. K. Papahānaumokuākea PSSA (United States) The Papahānaumokuākea 66 PSSA is the world’s largest, rivaling the size of the Great Barrier Reef and the Western European PSSAs. Encompassing all of the islands of the Northwest Hawaiian Islands, the PSSA is vast, extending 1,200 miles in length and 100 miles in width and comprising 144,000 square miles.
Northwest Hawaiian Islands (USA) The area includes several APMs. First, the existing six ATBAs were expanded and two new ones were created. There also was established a ship reporting system for vessels transiting the area, which is 66
The term means literally, “broad place who gives birth to the islands.”
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mandatory for ships entering or departing a US port or place and recommendatory for other ships. The APMs were considered for final adoption by the IMO's Maritime Safety Committee in October 2007 and were implemented in the spring of 2008. The PSSA received final designation by the MEPC in April 2008. In 2007-2008 the MEPC approved recognition of the Papahānaumokuākea Marine National Monument PSSA surrounding the Northwestern Hawaiian Islands even though there is minimal international shipping transiting the area. 67 The US proposal indicates, “most traffic passes to the north of the island chain, following the great circle routes to and from ports on the west coast of North America and East Asia. Other trans-Pacific ships traveling from ports in Hawaii transit at least 100 miles south of the NWHI. Occasionally, vessels transiting from the south pass within the boundaries of the proposed PSSA.” 68 Furthermore, almost every vessel incident recorded by the United States in the vicinity of the Northwestern Hawaiian Islands was caused by a US-flagged vessel rather than a foreign-flagged vessel.69 The last known foreign-flagged vessel that is known to have created any extraordinary environmental impact was the Greek-flagged Anangel that had to dump 2200 pounds of kaolin clay to escape a reef nearly 30 years ago.70
III. Conclusion The number of PSSAs has expanded rapidly, despite the introduction of Guidelines in 2005 that were intended to bring greater rigor to PSSA proposals. As the number of PSSAs expands, there is a commensurate increase in APMs, and these measures should be crafted to 67
IMO Doc. MEPC 56/8, para. 1.3.1. Id. 69 IMO Doc. 56/INF.2, Annex I. 70 Id. 68
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accommodate freedom of navigation. Most ocean pollution is caused by land-based, non-point sources, such as agricultural run-off, so it is somewhat incongruous that such a relatively large degree of effort to control marine pollution has focused on regulating shipping. The disproportionate amount of attention to commercial shipping and the expansion in the number of PSSAs and the intrusiveness of APMs raises a cautionary flag. PSSAs can serve as an effective tool for ensuring environmental protection and resource conservation in areas requiring special protection, but they are not the only tool in the toolbox and protecting the marine environment is not an exclusive ocean interest. Freedom of navigation underpins national security and global prosperity. The oceans, wrote Professors McDougal and Burke, are a “spatial extension resource, principally useful as a domain for movement… .”71 With the increasing trend in global trade, exercising the freedom to navigate on the seas is becoming even more important. “Shipping lanes are getting busier,” reports the Wall Street Journal, “not just from Asia to North America and Europe, but within Asia … .”72 The initial rise of the globalized economy which began in mercantilist Europe can be attributed in large part to unimpeded ocean transit. Four hundred years ago, the legal scholar Hugo Grotius cogently set forth the commercial doctrine that fueled international trade. “For do not the ocean,” Grotius wrote, “navigable in every direction with which God has encompassed all the earth, and the regular and occasional winds which blow now from one quarter and now from another, offer sufficient proof that Nature has given to all people’s a right of access to all other peoples?”73 71
Myres S. McDougal & William T. Burke, THE PUBLIC ORDER OF THE OCEANS—A CONTEMPORARY INTERNATIONAL LAW OF THE SEA, at vii (1962). 72 Korean Shipbuilders Take Novel Construction Tack—Booming Business Inspires New Methods to Make Boats; Thinking Outside the Dock, WALL ST. J. June 12, 2007, at A8. 73 Hugo Grotius, FREEDOM OF THE SEAS OR THE RIGHT WHICH BELONGS TO THE DUTCH TO TAKE PART IN THE EAST INDIA TRADE (1609) (Translated and revised by Ralph Van Deman Magoffin, edited by James Brown Scott) (Carnegie: Washington, DC, 1916)
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The framework reflected in the Law of the Sea Convention to preserve freedom of the seas for use by the international community is under pressure from a coordinated effort by certain government agencies, coastal States and international and nongovernmental organizations to promote greater coastal State jurisdiction over the international water beyond the territorial sea. These efforts are driven by a number of motivations, including flagrant coastal State nativism or jingoism, good faith and deep concern over maritime environmental degradation, deliberate national military strategy, thinly veiled anti-capitalist and antiglobalist sentiment and aggressive assertion of claims to natural resources. The Member Governments of the IMO should ensure that the process for reviewing and adopting PSSAs remains science-based and avoids being captured by efforts to restrict freedom of navigation. If PSSAs are viewed as an extension of politics, they will lose credibility and any positive effect will decline. From its inception, interests have gathered to undo the compromises achieved in the Law of the Sea Convention—the balance between the interests of coastal States and the rights of the international community.74 It has been more than twenty-five years since Ambassador Tommy Koh indicated that the Convention will promote maintenance of international peace and security because it replaces a “plethora of conflicting claims by coastal States with universally agreed limits on the territorial seas, on the contiguous zone, on the EEZ and on the continental shelf.” 75 “The provisions of the Convention are closely interrelated,” 74
John Norton Moore, The Law of the Sea Negotiations and the Struggle for Law, in PROCEEDINGS OF THE CONFERENCE ON DEEP SEABED MINING AND FREEDOM OF THE SEAS 21, at 23 (F.T. Chen, ed. Remar Printing, 1981). 75 Remarks by Ambassador Tommy T. B. Koh of Singapore, A Constitution of the World’s Oceans, President of the Third United Nations Conference on the Law of the Sea, adapted from statements by the President on 6 and 11 December 1982 at the final session of the Conference at Montego Bay, and available at: http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.h tm
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remarked Ambassador Koh, “and form an integral package. Thus it is not possible for a state to pick what it likes and to disregard what it does not like.” 76 Furthermore, the Convention contains rights and obligations that go “hand in hand,” and “it is not permissible to claim rights under the Convention without being willing to shoulder the corresponding obligations.”77 In the coming years, if PSSAs serve as a mechanism to weaken the navigational regimes reflected in the Convention and if those regimes do not remain stable, the attraction of the Convention as a “package deal” could diminish for the maritime powers, states operating open registries, and national economies dependent on global trade. There is no guarantee that the Convention can continue to serve this function, and success depends on the outcome of the struggle to shape interpretations of UNCLOS. The fact that some countries that already belong to the Convention are trying to change it through reinterpreting the terms of the treaty shows that those states understand how to convert a struggle for power into a struggle to shape the law. These states may view the PSSA model as another mechanism to further their goal of limiting access by foreign shipping to the waters near the coastlines In the common law we require specific performance on real estate contracts because each piece of real property is entirely unique. Marine areas are the same; each piece of the seabed and the water column has unique character and is deserving of protection for conservation. There are now several enormous PSSAs, with more likely on the way. Every coastal 76
Central intelligence Agency, Intelligence Community Assessment, THE LAW OF THE SEA: THE ENDGAME (March 1996), available at: http://www.cia.gov/nic/special_endgame.html 77 Remarks by Ambassador Tommy T. B. Koh of Singapore, A Constitution of the World’s Oceans, President of the Third United Nations Conference on the Law of the Sea, adapted from statements by the President on 6 and 11 December 1982 at the final session of the Conference at Montego Bay, and available at: http://www.un.org/Depts/los/convention_agreements/convention_overview_convention.h tm
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State naturally has constituencies that do not want to sit on the sidelines as the trend unfolds. With the creation of the Great Barrier Reef PSSA a process was set in motion that risks locking up much of the world’s oceans to navigation. During the debate of the Western Europe PSSA, for example, “a number of delegations” to the IMO expressed concern over the vast size of the area and the damaging precedent that was about to be set for encouraging still larger and more restrictive PSSAs.78 Additionally, a “large number of states” stressed that the significant restrictions on freedom of navigation, and in particular, the prohibition of single hull tankers through international straits was contrary to international law.79 States also suggested there was no identified legal basis for the proposed protective measures. 80 At the time, the Government of the Russian Federation questioned whether there even existed a legal basis to designate an entire geographically wide sea region as Western Europe as a PSSA, noting that Article 8 of the Convention on Biological Diversity serves as a framework for establishing protected areas and that instrument does not recognize designation of wide sea regions. In response, these states were told that the precedence already was set in 1990 with the establishment of the Great Barrier Reef PSSA. 81 The concern that application of navigational restrictions and other special measures over large areas, however, still remains, with Russia even suggesting that their continued persistence could lead to the revision the Law of the Sea Convention—unraveling the worldwide consensus on the “package deal” so carefully constructed three decades ago.82
78
IMO Doc. MEPC 49/22, para. 8.14.1. IMO Doc. MEPC 49/22, para. 8.14.2. 80 IMO Doc. MEPC 49/22, para. 8.14.4. 81 IMO Doc. MEPC 49/22, para. 8.14.1. 82 IMO Doc. MEPC 49/22, para. 8.24.3. 79
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A. Annex I: Table of Associated Protective Measures Area
Associated Protective Measures
Great Barrier Reef and Torres Strait— Recommendatory pilotage system, Australia and Papua New Guinea (PNG) mandatory reporting (GBR), two-way route (Torres Strait) Archipelago of Sabana Camagüey—Cuba TSS, ATBA, discharge prohibitions Malpelo Island—Columbia ATBA Florida Keys—United States 4 ATBAs, 3 Mandatory No Anchoring Areas Wadden Sea—Netherlands, Denmark, Compulsory reporting and traffic Germany surveillance, TSS, deep water route, Recommended pilotage; MARPOL Special Area Paracas National Reserve—Peru ATBAs (ships > 200gt carrying hydrocarbons and hazardous liquids in bulk) Western Europe—Belgium, France, Reporting for single hull tankers Ireland, Portugal, Spain, United Kingdom carrying heavy grades of fuel oil Canary Islands—Spain
5 ATBAs, 2 recommended routes, MSR Baltic Sea Area—Denmark, Estonia, TSS, deepwater route, areas to be Finland, Germany, Latvia, Lithuania, avoided, reporting and pilotage Poland, Sweden systems and MARPOL Special Area, SOx Emission Control Area Galapagos Archipelago—Ecuador ATBAs Northwestern Hawaiian Islands—United ATBAs, voluntary ship reporting States
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Particularly Sensitive Sea Areas and Associated Protective Measures B. Annex II: Revised PSSA Guidelines (2005) IMO ASSEMBLY A 24/Res.982 6 February 2006 Resolution A.982(24) Adopted on 1 December 2005 REVISED GUIDELINES FOR THE IDENTIFICATION AND DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS THE ASSEMBLY, RECALLING Article 15(j) of the Convention on the International Maritime Organization concerning the functions of the Assembly in relation to regulations and guidelines concerning maritime safety, the prevention and control of marine pollution from ships and other matters concerning the effect of shipping on the marine environment, RECALLING ALSO resolution A.720(17) by which the Assembly adopted the Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas and requested the Marine Environment Protection Committee and the Maritime Safety Committee to keep the Guidelines under review, RECALLING FURTHER resolution A.885(21), by which the Assembly adopted “Procedures for the Identification of Particularly Sensitive Sea Areas and the Adoption of Associated Protective Measures” and “Amendments to the Guidelines Contained in Resolution A.720(17)” and also requested the Marine Environment Protection Committee and the
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Maritime Safety Committee to keep those Procedures and Guidelines under review, NOTING resolution A.927(22), by which it adopted: (a) new “Guidelines for the Designation of Special Areas under MARPOL 73/78”, as set out in annex 1 to that resolution, which superseded chapter 2 of the annex to resolution A.720(17) and (b) new “Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas”, as set out in annex 2 to that resolution, which superseded chapter 3 of the annex to resolutions A.720(17) and A.885(21); and by which it also revoked resolutions A.720(17) and A.885(21) and requested the Marine Environment Protection Committee and the Maritime Safety Committee to keep the new Guidelines under review, REAFFIRMING that these Guidelines are to be implemented in accordance with international law, RECOGNIZING the need to clarify and, where appropriate, strengthen certain aspects and procedures for the identification and subsequent designation of Particularly Sensitive Sea Areas and the adoption of associated protective measures through amendments to the Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, HAVING CONSIDERED the recommendations made by the Marine Environment Protection Committee at its fifty-third session: 1. ADOPTS the revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas as set out in the annex, which supersede those in annex 2 of resolution A.927(22);
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2. REQUESTS both the Marine Environment Protection Committee and the Maritime Safety Committee to keep the revised Guidelines under review; 3. REVOKES annex 2 of resolution A.927(22).
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ANNEX REVISED GUIDELINES FOR THE IDENTIFICATION AND DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS 1 INTRODUCTION 1.1 The Marine Environment Protection Committee (MEPC) of the International Maritime Organization (IMO) began its study of the question of Particularly Sensitive Sea Areas (PSSAs) in response to a resolution of the International Conference on Tanker Safety and Pollution Prevention of 1978. The discussions of this concept from 1986 to 1991 culminated in the adoption of Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas by Assembly resolution A.720(17) in 1991. In a continuing effort to provide a clearer understanding of the concepts set forth in the Guidelines, the Assembly adopted resolutions A.885(21) and A.927(22). This document is intended to clarify and, where appropriate, strengthen certain aspects and procedures for the identification and designation of PSSAs and the adoption of associated protective measures. It sets forth revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas (the Guidelines or PSSA Guidelines). 1.2 A PSSA is an area that needs special protection through action by IMO because of its significance for recognized ecological, socioeconomic, or scientific attributes where such attributes may be vulnerable to damage by international shipping activities. At the time of designation of a PSSA, an associated protective measure 83 , which meets the
83
The term “associated protective measure” or “measure” is used both in the singular and plural throughout these Guidelines. It is important to recognize that an identified vulnerability may be addressed by only one or by more than one associated protective
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requirements of the appropriate legal instrument establishing such measure, must have been approved or adopted by IMO to prevent, reduce, or eliminate the threat or identified vulnerability. Information on each of the PSSAs that has been designated by IMO is available at www.imo.org. 1.3 Many international and regional instruments encourage the protection of areas important for the conservation of biological diversity as well as other areas with high ecological, cultural, historical/archaeological, socioeconomic or scientific significance. These instruments further call upon their Parties to protect such vulnerable areas from damage or degradation, including from shipping activities. 1.4 The purpose of these Guidelines is to: .1 provide guidance to IMO Member Governments in the formulation and submission of applications for designation of PSSAs; .2 ensure that in the process all interests – those of the coastal State, flag State, and the environmental and shipping communities – are thoroughly considered on the basis of relevant scientific, technical, economic, and environmental information regarding the area at risk of damage from international shipping activities and the associated protective measures to prevent, reduce, or eliminate that risk; and .3 provide for the assessment of such applications by IMO. 1.5 Identification and designation of any PSSA and the adoption of associated protective measures require consideration of three integral components: the particular attributes of the proposed area, the vulnerability of such an area to damage by international shipping activities, measure and that therefore the use of this terminology in the singular or plural should not be taken as any indication to the contrary.
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and the availability of associated protective measures within the competence of IMO to prevent, reduce, or eliminate risks from these shipping activities. 2 INTERNATIONAL SHIPPING ACTIVITIES AND THE MARINE ENVIRONMENT 2.1 Shipping activity can constitute an environmental hazard to the marine environment in general and consequently even more so to environmentally and/or ecologically sensitive areas. Environmental hazards associated with shipping include: .1 operational discharges; .2 accidental or intentional pollution; and .3 physical damage to marine habitats or organisms. 2.2 Adverse effects and damage may occur to the marine environment and the living resources of the sea as a result of shipping activities. With the increase in global trade, shipping activities are also increasing, thus including greater potential for adverse effects and damage. In the course of routine operations, accidents, and wilful acts of pollution, ships may release a wide variety of substances either directly into the marine environment or indirectly through the atmosphere. Such releases include oil and oily mixtures, noxious liquid substances, sewage, garbage, noxious solid substances, anti-fouling systems, harmful aquatic organisms and pathogens, and even noise. In addition, ships may cause harm to marine organisms and their habitats through physical impact. These impacts may include the smothering of habitats, contamination by anti-fouling systems or other substances through groundings, and ship strikes of marine mammals. 555
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3 PROCESS FOR THE DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS 3.1 The IMO is the only international body responsible for designating areas as Particularly Sensitive Sea Areas and adopting associated protective measures. An application to IMO for designation of a PSSA and the adoption of associated protective measures, or an amendment thereto, may be submitted only by a Member Government. Where two or more Governments have a common interest in a particular area, they should formulate a co-ordinated proposal.84 The proposal should contain integrated measures and procedures for co-operation between the jurisdictions of the proposing Member Governments. 3.2 Member Governments wishing to have IMO designate a PSSA should submit an application to MEPC based on the criteria outlined in section 4, provide information pertaining to the vulnerability of this area to damage from international shipping activities as called for in section 5, and include the proposed associated protective measures as outlined in section 6 to prevent, reduce or eliminate the identified vulnerability. Applications should be submitted in accordance with the procedures set forth in section 7 and the rules adopted by IMO for submission of documents. 3.3 If, in preparing its submission for a PSSA proposal, a Member Government requires technical assistance, that Government is encouraged to request such assistance from IMO.
84
It is clear that the Guidelines recognize that an application for designation of a PSSA may be submitted by one or more Governments. For ease of drafting, however, the use of the word “Government” will be used throughout the text and it should be recognized that this term applies equally to applications where there is more than one Government involved.
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4 ECOLOGICAL, SOCIO-ECONOMIC, OR SCIENTIFIC CRITERIA FOR THE IDENTIFICATION OF A PARTICULARLY SENSITIVE SEA AREA 4.1 The following criteria apply to the identification of PSSAs only with respect to the adoption of measures to protect such areas against damage, or the identified threat of damage, from international shipping activities. 4.2 These criteria do not, therefore, apply to the identification of such areas for the purpose of establishing whether they should be protected from dumping activities, since that is implicitly covered by the London Convention 1972 (the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972) and the 1996 Protocol to that Convention. 4.3 The criteria relate to PSSAs within and beyond the limits of the territorial sea. They can be used by IMO to designate PSSAs beyond the territorial sea with a view to the adoption of international protective measures regarding pollution and other damage caused by ships. They may also be used by national administrations to identify areas within their territorial seas that may have certain attributes reflected in the criteria and be vulnerable to damage by shipping activities. 4.4 In order to be identified as a PSSA, the area should meet at least one of the criteria listed below and information and supporting documentation should be provided to establish that at least one of the criteria exists throughout the entire proposed area, though the same criterion need not be present throughout the entire area. These criteria can be divided into three categories: ecological criteria; social, cultural, and economic criteria; and scientific and educational criteria.
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Ecological criteria 4.4.1 Uniqueness or rarity – An area or ecosystem is unique if it is “the only one of its kind”. Habitats of rare, threatened, or endangered species that occur only in one area are an example. An area or ecosystem is rare if it only occurs in a few locations or has been seriously depleted across its range. An ecosystem may extend beyond country borders, assuming regional or international significance. Nurseries or certain feeding, breeding, or spawning areas may also be rare or unique. 4.4.2 Critical habitat – A sea area that may be essential for the survival, function, or recovery of fish stocks or rare or endangered marine species, or for the support of large marine ecosystems. 4.4.3 Dependency – An area where ecological processes are highly dependent on biotically structured systems (e.g. coral reefs, kelp forests, mangrove forests, seagrass beds). Such ecosystems often have high diversity, which is dependent on the structuring organisms. Dependency also embraces the migratory routes of fish, reptiles, birds, mammals, and invertebrates. 4.4.4 Representativeness – An area that is an outstanding and illustrative example of specific biodiversity, ecosystems, ecological or physiographic processes, or community or habitat types or other natural characteristics. 4.4.5 Diversity – An area that may have an exceptional variety of species or genetic diversity or includes highly varied ecosystems, habitats, and communities.
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4.4.6 Productivity – An area that has a particularly high rate of natural biological production. Such productivity is the net result of biological and physical processes which result in an increase in biomass in areas such as oceanic fronts, upwelling areas and some gyres. 4.4.7 Spawning or breeding grounds – An area that may be a critical spawning or breeding ground or nursery area for marine species which may spend the rest of their life-cycle elsewhere, or is recognized as migratory routes for fish, reptiles, birds, mammals, or invertebrates. 4.4.8 Naturalness – An area that has experienced a relative lack of humaninduced disturbance or degradation. 4.4.9 Integrity – An area that is a biologically functional unit, an effective, self-sustaining ecological entity. 4.4.10 Fragility – An area that is highly susceptible to degradation by natural events or by the activities of people. Biotic communities associated with coastal habitats may have a low tolerance to changes in environmental conditions, or they may exist close to the limits of their tolerance (e.g., water temperature, salinity, turbidity or depth). Such communities may suffer natural stresses such as storms or other natural conditions (e.g., circulation patterns) that concentrate harmful substances in water or sediments, low flushing rates, and/or oxygen depletion. Additional stress may be caused by human influences such as pollution and changes in salinity. Thus, an area already subject to stress from natural and/or human factors may be in need of special protection from further stress, including that arising from international shipping activities. 4.4.11 Bio-geographic importance – An area that either contains rare biogeographic qualities or is representative of a biogeographic “type” or
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types, or contains unique or unusual biological, chemical, physical, or geological features. Social, cultural and economic criteria 4.4.12 Social or economic dependency – An area where the environmental quality and the use of living marine resources are of particular social or economic importance, including fishing, recreation, tourism, and the livelihoods of people who depend on access to the area. 4.4.13 Human dependency – An area that is of particular importance for the support of traditional subsistence or food production activities or for the protection of the cultural resources of the local human populations. 4.4.14 Cultural heritage – An area that is of particular importance because of the presence of significant historical and archaeological sites. Scientific and educational criteria 4.4.15 Research – An area that has high scientific interest. 4.4.16 Baseline for monitoring studies – An area that provides suitable baseline conditions with regard to biota or environmental characteristics, because it has not had substantial perturbations or has been in such a state for a long period of time such that it is considered to be in a natural or near-natural condition. 4.4.17 Education – An area that offers an exceptional opportunity to demonstrate particular natural phenomena. 4.5 In some cases a PSSA may be identified within a Special Area and vice versa. It should be noted that the criteria with respect to the
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identification of PSSAs and the criteria for the designation of Special Areas are not mutually exclusive. 5 VULNERABILITY TO IMPACTS FROM INTERNATIONAL SHIPPING 5.1 In addition to meeting at least one of the criteria listed in 4.4, the recognized attributes of the area should be at risk from international shipping activities. This involves consideration of the following factors: Vessel traffic characteristics 5.1.1 Operational factors – Types of maritime activities (e.g. small fishing boats, small pleasure craft, oil and gas rigs) in the proposed area that by their presence may reduce the safety of navigation. 5.1.2 Vessel types – Types of vessels passing through or adjacent to the area (e.g. high-speed vessels, large tankers, or bulk carriers with small under-keel clearance). 5.1.3 Traffic characteristics – Volume or concentration of traffic, vessel interaction, distance offshore or other dangers to navigation, are such as to involve greater risk of collision or grounding. 5.1.4 Harmful substances carried – Type and quantity of substances on board, whether cargo, fuel or stores, that would be harmful if released into the sea. Natural factors 5.1.5 Hydrographical – Water depth, bottom and coastline topography, lack of proximate safe anchorages and other factors which call for increased navigational caution.
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5.1.6 Meteorological – Prevailing weather, wind strength and direction, atmospheric visibility and other factors which increase the risk of collision and grounding and also the risk of damage to the sea area from discharges. 5.1.7 Oceanographic – Tidal streams, ocean currents, ice, and other factors which increase the risk of collision and grounding and also the risk of damage to the sea area from discharges. 5.2 In proposing an area as a PSSA and in considering the associated protective measures to prevent, reduce, or eliminate the identified vulnerability, other information that might be helpful includes the following: .1 any evidence that international shipping activities are causing or may cause damage to the attributes of the proposed area, including the significance or risk of the potential damage, the degree of harm that may be expected to cause damage, and whether such damage is reasonably foreseeable, as well as whether damage is of a recurring or cumulative nature; .2 any history of groundings, collisions, or spills in the area and any consequences of such incidents; .3 any adverse impacts to the environment outside the proposed PSSA expected to be caused by changes to international shipping activities as a result of PSSA designation; .4 stresses from other environmental sources; and .5 any measures already in effect and their actual or anticipated beneficial impact.
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6 ASSOCIATED PROTECTIVE MEASURES 6.1 In the context of these Guidelines, associated protective measures for PSSAs are limited to actions that are to be, or have been, approved or adopted by IMO and include the following options: 6.1.1 designation of an area as a Special Area under MARPOL Annexes I, II or V, or a SOx emission control area under MARPOL Annex VI, or application of special discharge restrictions to vessels operating in a PSSA. Procedures and criteria for the designation of Special Areas are contained in the Guidelines for the Designation of Special Areas set forth in annex 1 of Assembly resolution A.927(22). Criteria and procedures for the designation of SOx emission control areas are found in Appendix 3 to MARPOL Annex VI; 6.1.2 adoption of ships’ routing and reporting systems near or in the area, under the International Convention for the Safety of Life at Sea (SOLAS) and in accordance with the General Provisions on Ships’ Routeing and the Guidelines and Criteria for Ship Reporting Systems. For example, a PSSA may be designated as an area to be avoided or it may be protected by other ships’ routing or reporting systems; and 6.1.3 development and adoption of other measures aimed at protecting specific sea areas against environmental damage from ships, provided that they have an identified legal basis. 6.2 Consideration should also be given to the potential for the area to be listed on the World Heritage List, declared a Biosphere Reserve, or included on a list of areas of international, regional, or national importance, or if the area is already the subject of such international, regional, or national conservation action or agreements. 563
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6.3 In some circumstances, a proposed PSSA may include within its boundaries a buffer zone, in other words, an area contiguous to the sitespecific feature (core area) for which specific protection from shipping is sought. However, the need for such a buffer zone should be justified in terms of how it would directly contribute to the adequate protection of the core area. 7 PROCEDURE FOR THE DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS AND THE ADOPTION OF ASSOCIATED PROTECTIVE MEASURES 7.1 An application for PSSA designation should contain a proposal for an associated protective measure that the proposing Member Government intends to submit to the appropriate IMO body. If the measure is not already available under an IMO instrument, the proposal should set forth the steps that the proposing Member Government has taken or will take to have the measure approved or adopted by IMO pursuant to an identified legal basis (see paragraph 7.5.2.3). 7.2 Alternatively, if no new associated protective measure is being proposed because IMO measures are already associated with the area to protect it, then the application should identify the threat of damage or damage being caused to the area by international shipping activities and show how the area is already being protected from such identified vulnerability by the associated protective measures. Amendments to existing measures may be introduced to address identified vulnerabilities. 7.3 In the future, additional associated protective measures may also be introduced to address identified vulnerabilities.
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7.4 The application should first clearly set forth a summary of the objectives of the proposed PSSA designation, the location of the area, the need for protection, the associated protective measures, and demonstrate how the identified vulnerability will be addressed by existing or proposed associated protective measures. The summary should include the reasons why the associated protective measures are the preferred method for providing protection for the area to be identified as a PSSA. 7.5 Each application should then consist of two parts. 7.5.1 Part I – Description, significance of the area and vulnerability .1 Description – a detailed description of the location of the proposed area, along with a nautical chart on which the location of the area and any associated protective measures are clearly marked, should be submitted with the application. .2 Significance of the area – the application should state the significance of the area on the basis of recognized ecological, socio-economic, or scientific attributes and should explicitly refer to the criteria listed above in section 4. .3 Vulnerability of the area to damage by international shipping activities – the application should provide an explanation of the nature and extent of the risks that international shipping activities pose to the environment of the proposed area, noting the factors listed in section 5. The application should describe the particular current or future international shipping activities that are causing or may be expected to cause damage to the proposed area, including the significance of the damage and degree of harm that may result from such activities, either from such activity alone or in combination with other threats.
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7.5.2 Part II – Appropriate associated protective measures and IMO’s competence to approve or adopt such measures .1 The application should identify the existing and/or proposed associated protective measures and describe how they provide the needed protection from the threats of damage posed by international maritime activities occurring in and around the area. The application should specifically describe how the associated protective measures protect the area from the identified vulnerability. .2 If the application identifies a new associated protective measure, then the proposing Member Government must append a draft of the proposal which is intended to be submitted to the appropriate Sub-Committee or Committee or, if the measures are not already available in an IMO instrument, information must be provided with regard to its legal basis and/or the steps that the proposing Member Government has taken or will take to establish the legal basis. .3 The application should identify the legal basis for each measure. The legal bases for such measures are: (i) any measure that is already available under an existing IMO instrument; or (ii) any measure that does not yet exist but could become available through amendment of an IMO instrument or adoption of a new IMO instrument. The legal basis for any such measure would only be available after the IMO instrument was amended or adopted, as appropriate; or (iii) any measure proposed for adoption in the territorial sea, or pursuant to Article 211(6) of the United Nations Convention on the Law of the Sea 566
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where existing measures or a generally applicable measure (as set forth in subparagraph (ii) above) would not adequately address the particularized need of the proposed area. .4 These measures may include ships’ routing measures; reporting requirements discharge restrictions; operational criteria; and prohibited activities, and should be specifically tailored to meet the need of the area to prevent, reduce, or eliminate the identified vulnerability of the area from international shipping activities. .5 The application should clearly specify the category or categories of ships to which the proposed associated protective measures would apply, consistent with the provisions of the United Nations Convention on the Law of the Sea, including those related to vessels entitled to sovereign immunity, and other pertinent instruments. 7.6 The application should indicate the possible impact of any proposed measures on the safety and efficiency of navigation, taking into account the area of the ocean in which the proposed measures are to be implemented. The application should set forth such information as: .1 consistency with the legal instrument under which the associated protective measure is being proposed; .2 implications for vessel safety; and .3 impact on vessel operations, such as existing traffic patterns or usage of the proposed area. 7.7 An application for PSSA designation should address all relevant considerations and criteria in these Guidelines, and should include relevant supporting information for each such item. 567
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7.8 The application should contain a summary of steps taken, if any, by the proposing Member Government to date to protect the proposed area. 7.9 The proposing Member Government should also include in the application the details of action to be taken pursuant to domestic law for the failure of a ship to comply with the requirements of the associated protective measures. Any action taken should be consistent with international law as reflected in the United Nations Convention on the Law of the Sea. 7.10 The proposing Member Government should submit a separate proposal to the appropriate Sub-Committee or Committee to obtain the approval of any new associated protective measure. Such a proposal must comply with the requirements of the legal instrument relied upon to establish the measure. 8 CRITERIA FOR ASSESSMENT OF APPLICATIONS FOR DESIGNATION OF PARTICULARLY SENSITIVE SEA AREAS AND THE ADOPTION OF ASSOCIATED PROTECTIVE MEASURES 8.1 IMO should consider each application, or amendment thereto, submitted to it by a proposing Member Government on a case-by-case basis to determine whether the area fulfils at least one of the criteria set forth in section 4, the attributes of the area meeting section 4 criteria are vulnerable to damage by international shipping activities as set forth in section 5, and associated protective measures exist or are proposed to prevent, reduce, or eliminate the identified vulnerability. 8.2 In assessing each proposal, IMO should in particular consider: 568
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.1 the full range of protective measures available and determine whether the proposed or existing associated protective measures are appropriate to prevent, reduce, or eliminate the identified vulnerability of the area from international shipping activities; .2 whether such measures might result in an increased potential for significant adverse effects by international shipping activities on the environment outside the proposed PSSA; and .3 the linkage between the recognized attributes, the identified vulnerability, the associated protective measure to prevent, reduce, or eliminate that vulnerability, and the overall size of the area, including whether the size is commensurate with that necessary to address the identified need. 8.3 The procedure for considering a PSSA application by IMO is as follows: .1 the MEPC should bear primary responsibility within IMO for considering PSSA applications and all applications should first be submitted to the MEPC: .1 the Committee should assess the elements of the proposal against the Guidelines and, as appropriate, should establish a technical group, comprising representatives with appropriate environmental, scientific, maritime, and legal expertise; .2 the proposing Member Government is encouraged to make a presentation of the proposal, along with nautical charts and other supporting information on the required elements for PSSA designation;
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.3 any technical group formed should prepare a brief report to the Committee summarizing their findings and the outcome of its assessment; and .4 the outcome of the assessment of a PSSA application should be duly reflected in the report of the MEPC; .2 if appropriate following its assessment, the MEPC should designate the area “in principle” and inform the appropriate Sub-Committee, Committee (which could be the MEPC itself), or the Assembly that is responsible for addressing the particular associated protective measures proposed for the area of the outcome of this assessment; .3 the appropriate Sub-Committee or Committee which has received a submission by a proposing Member Government for an associated protective measure should review the proposal to determine whether it meets the procedures, criteria, and other requirements of the legal instrument under which the measure is proposed. The Sub-Committee may seek the advice of the MEPC on issues pertinent to the application; .4 the MEPC should not designate a PSSA until after the associated protective measures are considered and approved by the pertinent SubCommittee, Committee, or Assembly. If the associated protective measures are not approved by the pertinent IMO body, then the MEPC may reject the PSSA application entirely or request that the proposing Member Government submit new proposals for associated protective measures. A proper record of the proceedings should be included in the report of the MEPC; .5 for measures that require approval by the Maritime Safety Committee (MSC), the Sub-Committee should forward its recommendation for approval of the associated protective measures to the MSC or, if the Sub570
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Committee rejects the measures, it should inform the MSC and MEPC and provide a statement of reasons for its decision. The MSC should consider any such recommendations and, if the measures are to be adopted, it should notify the MEPC of its decision; .6 if the application is rejected, the MEPC shall notify the proposing Member Government, provide a statement of reasons for its decision and, if appropriate, request the Member Government to submit additional information; and .7 after approval by the appropriate Sub-Committee, Committee, or, where necessary, the Assembly of the associated protective measures, the MEPC may designate the area as a PSSA. 8.4 IMO should provide a forum for the review and re-evaluation of any associated protective measure adopted, as necessary, taking into account pertinent comments, reports, and observations of the associated protective measures. Member Governments which have ships operating in the area of the designated PSSA are encouraged to bring any concerns with the associated protective measures to IMO so that any necessary adjustments may be made. Member Governments that originally submitted the application for designation with the associated protective measures, should also bring any concerns and proposals for additional measures or modifications to any associated protective measure or the PSSA itself to IMO. 8.5 After the designation of a PSSA and its associated protective measures, IMO should ensure that the effective date of implementation is as soon as possible based on the rules of IMO and consistent with international law. 8.6 IMO should, in assessing applications for designation of PSSAs and their associated protective measures, take into account the technical and 571
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financial resources available to developing Member Governments and those with economies in transition. 9 IMPLEMENTATION OF DESIGNATED PSSAs AND THE ASSOCIATED PROTECTIVE MEASURES 9.1 When a PSSA receives final designation, all associated protective measures should be identified on charts in accordance with the symbols and methods of the International Hydrographic Organization (IHO). 9.2 A proposing Member Government should ensure that any associated protective measure is implemented in accordance with international law as reflected in the United Nations Convention on the Law of the Sea. 9.3 Member Governments should take all appropriate steps to ensure that ships flying their flag comply with the associated protective measures adopted to protect the designated PSSA. Those Member Governments which have received information of an alleged violation of an associated protective measure by a ship flying their flag should provide the Government which has reported the offence with the details of any appropriate action taken.
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Non-Flag State Enforcement and Protection of the Marine Environment: Responding to IUU Fishing Rosemary Rayfuse* Abstract Despite more than ten years of international efforts to prevent and eliminate IUU (illegal, unregulated and unreported) fishing, it continues to cause severe economic, social, biological and environmental impacts. Adherence to the principle of flag State jurisdiction has proved ineffective in controlling IUU fishing and the international community continues to seek ways to restrain the IUU activities conducted by vessels and nationals of ‘irresponsible flag States’, or states who are unwilling or unable to comply with their flag State responsibilities. This article examines the legal basis for and content of flag State responsibility and actions that may be taken by non-flag states against IUU fishing vessels in circumstances where the flag State has failed to fulfill its responsibilities and suggests a range of possible actions. INTRODUCTION The marine environment is complex, dynamic and vast and knowledge of its processes and components is rudimentary. While the oceans have traditionally been considered inexhaustible, unlimited and capable of supporting any human activity or use, it is now clear that marine resources are exhaustible and that increasing and intensifying human activities and uses are pushing the oceans to the limits of their ecological carrying capacity. This is especially true in the case of fisheries where more than 75 percent of the world’s fish stocks are reported as *
Professor of International Law, Faculty of Law, University of New South Wales, Sydney, Australia. The author’s PowerPoint presentation can be viewed on the accompanying CD.
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already fully exploited or overexploited (or depleted and recovering from depletion)1 and increasing numbers of marine species are considered threatened or endangered.2 Inadequate management, destructive fishing practices such as bottom trawling, and illegal, unregulated and unreported fishing (IUU fishing) are to blame for a whole range of adverse effects on fish stocks and dependent and associated species and ecosystems. In particular, IUU fishing is seen as one of the main obstacles to the achievement of sustainable world fisheries and an ongoing threat to both the marine environment and human food security.3 IUU fishing occurs both on the high seas and in areas under the national jurisdiction of coastal States. Although often blamed on vessels flagged under ‘flags of convenience’, it is important to remember that IUU fishing is conducted by vessels flagged in many states, both members and non-members of regional fisheries management organizations (RFMOs), including those not traditionally associated with the terminology of ‘flag of convenience’. IUU fishing has been associated with organized crime, bribery, corruption, and even the use of armed resistance to surveillance and enforcement operations.4 The fundamental objection to IUU fishing is that it undermines conservation and management measures that have been adopted either by the coastal State or by the relevant RFMO. Evidence suggests that IUU operations are also more likely to undermine international rules governing safety of navigation, labor conditions and the well-being of fishers.5 Major factors contributing to the commission of IUU fishing include the inability of coastal States to exercise effective monitoring, control and surveillance (MCS) over fishing activities within areas under 1
FAO, 2006 State of World Fisheries and Aquaculture (SOFIA) (FAO, Rome, 2007) available at . 2 IUCN, 2007 Red List of Threatened Species, available at . 3 Report of the Secretary General on Oceans and Law of the Sea (Advance and unedited text) UN Doc A/63/50, 2008, paras. 98-101 and 247. 4 Ibid., para. 100. 5 Ibid.
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national jurisdiction and the economic benefits to be gained as a result of the continually increasing demand for fish and fish products. However, perhaps the greatest contributing factor has been the lack of effective control by states over fishing vessels flying their flag. Numerous international instruments provide a legal and policy framework to address IUU fishing, particularly through the articulation of flag State responsibilities including the requirement of effective exercise of flag State control. Yet, despite more than a decade of international efforts to encourage responsible and sustainable fisheries and to eliminate IUU fishing and related activities, it continues to cause severe economic, social, biological and environmental impacts. The international community continues to seek ways to restrain the IUU activities conducted by vessels and nationals of ‘irresponsible flag States’, or states who are unwilling or unable to comply with their flag State responsibilities. According to the 2008 Report of the Secretary General on Oceans and the Law of the Sea, ‘there is now a prevailing view that fishing vessels on the high seas which are not effectively controlled by their flag States are liable to sanctions by other states, should they happen to contravene international conservation and management measures’.6 The question thus arises as to what constitutes effective flag State control in the fisheries context. In 2007, the FAO Committee on Fisheries (COFI) requested FAO to convene an expert consultation to develop criteria for assessing the performance of flag States and to identify actions that can be taken against vessels flying the flag of states not meeting those criteria.7 The purpose of establishing detailed criteria for assessing flag State performance is two-fold. As a matter of principle, the underlying objective of any exposition of flag responsibilities must be to articulate 6
Ibid., para. 249. Report of the 27th Meeting of the FAP Committee on Fisheries, 5-9 March 2007; FAO Fisheries Reports R830 and UNGA Resolution on Sustainable Fisheries, UN Doc A/62/L.24, 28 November 2007.
7
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detailed content of the general duties of cooperation and effective control for the purposes of providing certainty, avoiding and minimizing conflict, and enhancing the robustness of international governance and respect for the rule of law in the international order. As a practical matter, the purpose is to establish the circumstances in which states other than the flag State (non-flag states) can take enforcement measures (non-flag enforcement) to protect either their interests or those of the international community in situations where a flag State has failed to effectively exercise its responsibilities. This article examines the legal basis for and content of flag State responsibility and the actions that may be taken by non-flag states against IUU fishing vessels and ‘irresponsible’ flag States. CRITERIA FOR ASSESSING FLAG STATE RESPONSIBILITIES The Legal Basis for Flag State Responsibility The legal basis for flag State responsibility originates in the ascription of the right of flag State jurisdiction as a means of ensuring public order on the oceans. Although generally referred to as a principle of ‘exclusivity’,8 the principle is more accurately described as one of ‘primacy’, the presumption being in favor of flag State jurisdiction unless a contrary rule applies.9 This contrary rule may be expressed in the LOSC (Law of the Sea Convention) as, for example, in the case of the rights of coastal States to exercise jurisdiction, in certain circumstances, over vessels within their territorial sea or Exclusive Economic Zone (EEZ), or in other treaties, or it may emerge as a matter of customary international law. In return for this grant of ‘immunity’ from interference by non-flag
8
LOSC Art. 92(1) provides that ‘Ships sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas’. 9 See, e.g., Report on Oceans and Law of the Sea of the Secretary General, UN Doc. A/53/456, November 1998, para. 220.
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states,10 the flag State is expected to exercise its jurisdiction over its vessels to protect humans and property and to prevent the high seas from ‘becoming a place of refuge for the commission of unlawful acts’.11 Ensuring the effective exercise of flag State jurisdiction, however, presupposes the clear delineation of what the exercise of such jurisdiction requires. At the global level, the LOSC sets out the basic framework for flag State responsibility. Flag States are required to exercise effective control over vessels flying their flag and, on the high seas, they are required to take, or cooperate with other states in taking, measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas.12 The 1993 FAO Agreement to Promote Compliance with International Conservation and Management Measures (the Compliance Agreement)13 sets out flag State responsibilities with respect to the flagging or reflagging of fishing vessels that are used or intended for use on the high seas,14 while the UN Fish Stocks Agreement (FSA)15 provides detailed content to flag State responsibilities,16 setting out the modus operandi for the operationalisation of the duty to cooperate and making it clear that only vessels whose flag States ensure they are fishing in accordance with conservation and management measures adopted by
10
A.W. Anderson, ‘Jurisdiction over Stateless Vessels on the High Seas: an Appraisal Under Domestic and International Law’ 13(3) Journal of Maritime Law and Commerce, 1982, 323 at 336. 11 D. Momtaz, ‘The High Seas,’ in: Dupuy and Vignes (eds.), A Handbook on the New Law of the Sea, vol. 1 (Dordrecht: Martinus Nijhoff Publishers, 1991) at 417. 12 LOSC Art. 117. 13 33 ILM 968 (1994). 14 Compliance Agreement Art. II. 15 1995 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, (1995) 24 ILM 1542, 8 ATS 2001. 16 FSA Art. 18.
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RFMOs are entitled to exercise their freedom free from non-flag state interference. 17 In addition, UN General Assembly Resolution 46/215,18 which established the global driftnet moratorium, establishes the responsibility of all states, flag or otherwise, to prohibit high seas driftnet activities and to take such action as is necessary to prevent its occurrence. The resolution can thus be said to define the responsibility of flag States in respect of large-scale high seas pelagic drift netting. At the regional and subregional level, RFMOs have adopted a range of measures delineating and entrusting important responsibilities to flag States. The non-binding 1995 FAO Code of Conduct for Responsible Fisheries19 and the 2001 International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing20 similarly provide guidance as to the content of flag State responsibilities. The Content of Flag State Responsibility Working out the responsibilities incumbent on flag States that are party to one or more of the binding treaties, while possibly tedious, is, in theory at least, not particularly difficult. Obviously, a flag State is obliged to comply with the terms of a treaty to which it is party; if it fails to do so it will be in breach of its international obligations and other states may be entitled to require the flag State to rectify that breach and take further action in the event of failure to rectify. Thus, the precise content of flag State responsibilities will prima facie depend on whether a flag State is party to the LOSC, the Compliance Agreement, the FSA and/or any relevant regional fisheries agreements or arrangements.
17
FSA Arts. 8 and 17. UN Doc. A/Res/46/215, 20 December 1991 calling for the moratorium came into effect as from 31 December 1992. 19 FAO, Rome, 1995. 20 FAO, Rome, 2001. 18
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Both the Compliance Agreement and the FSA oblige flag States to ensure, through various means such as vessel registers, fishing authorizations, and refusal of their flag to known IUU vessels, that their vessels do not engage in activities that undermine the effectiveness of international conservation and management measures including those adopted by RFMOs.21 The FSA further obliges flag States to, inter alia: establish and enforce licensing schemes and regulations for high seas fishing; establish a national register of vessels authorized to fish on the high seas; establish requirements and verification programs for marking vessels and gear, recording and reporting vessel position, and verifying catch of target and non-target species; adopt monitoring, control and surveillance measures including national, regional and global schemes, observer programs and the implementation of vessel monitoring systems (VMS); regulate high seas transshipment to ensure the effectiveness of conservation and management measures is not undermined; and regulate fishing activities to ensure compliance with regional, sub-regional and global measures. In addition, where a sub-regional, regional or global system of monitoring, control and surveillance exists, flag States must ensure that their measures are compatible with that system. 22 The point of articulating these flag State responsibilities is to ensure that flag States are able to ensure compliance by their vessels with international obligations. The Compliance Agreement makes this point by requiring parties to take enforcement measures against any of their vessels which act in contravention of the Agreement. This requires flag States to make contravention of the Agreement an offence under national law and to provide for sanctions of sufficient gravity to effect compliance and deprive offenders of the benefits accruing from their illegal activities. For serious offences, sanctions must include refusal, suspension, or withdrawal of the vessel’s authorization to fish on the high seas.23 21
Compliance Agreement Arts. III and IV; see also FSA Art. 18. FSA Art. 18. 23 Compliance Agreement, Art. II. 22
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The FSA seeks to ensure compliance not just with its own provisions but with measures adopted by RFMOs as well. Flag States are obliged to take enforcement action against their vessels for noncompliance with RFMO measures irrespective of where violations occur and must conduct immediate and full investigations of alleged violations and report on the progress and outcome of those investigations to the state alleging the violation and the relevant RFMO. They must require their vessels to provide information on the vessel’s fishing activities to the investigating authorities and where sufficient evidence of a violation exists, flag States are obliged to refer the case to their authorities with a view to instituting proceedings without delay and to ensuring that further fishing activities are not carried out until any outstanding sanctions are complied with. Investigations and judicial proceedings are to be carried out expeditiously and sanctions imposed are to be adequate in severity to be effective in securing compliance and to discourage violations. Sanctions shall also deprive offenders of the benefits accruing from their illegal activities. Flag States are obliged to ensure that masters and other officers of their fishing vessels risk refusal, withdrawal or suspension of their licenses if they fail to comply with the flag State’s obligations. In short, flag States are required to effectively enforce—and to enforce effectively.24 However, where a flag State is not party to all (or indeed any) of the binding agreements difficult questions arise as to what, precisely, are the responsibilities incumbent on it. In other words, it is necessary to determine whether there are any flag State responsibilities which are binding on all states as a matter of customary international law. It appears uncontroversial to suggest that there are two fundamental customary flag State duties: the duty to cooperate in the conservation and management of marine living resources, and the duty to effectively control vessels flying your flag. The question is: what do these duties entail? 24
FSA Art. 19.
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With respect to the duty to cooperate, under the LOSC, cooperation requires the establishment, where appropriate, of sub-regional or regional fisheries organizations.25 For parties to the FSA the duty to cooperate means not only the duty to establish RFMOs but also that only members of RFMOs or non-members who agree to abide by the conservation and management measures adopted by those RFMOs can access the fishery concerned.26 States that do not agree to abide by RFMO measures must refrain from fishing. If they do not they have breached their duty to cooperate. The difficult question here is whether the duty to cooperate or refrain can now be regarded as a rule of customary international law binding on all states? With respect to the duty to effectively control vessels, the LOSC requirement to ‘effectively exercise jurisdiction and control’27 includes the requirement for flag States to maintain a register of ships under their control. Article 18 of the FSA makes clear that states shall only authorize their vessels to fish on the high seas where they can exercise flag State responsibilities effectively. As noted above, both the Compliance Agreement and the FSA provide more detail as to what this effective exercise of flag State responsibilities entails; for example, they oblige flag States to ensure through various means such as vessel registers, fishing authorizations and refusal of their flag to known IUU vessels, that their vessels do not engage in activities that undermine the effectiveness of RFMO measures. The FSA goes further and obliges flag States to establish schemes for, inter alia: licensing, national register of authorized vessels, vessel and gear marking, vessel reporting and recording, verification of catch data, MCS, regulation of transshipment, and ensuring compliance with RFMO measures28
25
LOSC Art. 118. FSA Art. 8. 27 LOSC Art. 94. 28 FSA Arts. 18-19. 26
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A comprehensive review of state practice and opinio juris to definitively ascertain the customary status of these obligations is beyond the scope of this article. However, a cursory review of state practice by both members and non-members of RFMOs29 would seem to suggest that, at the very least, flag States are now considered, as a matter of customary international law, to have a duty to maintain a vessel register the contents of which are publicly available. Registration requirements should involve, at a minimum, verification of provenance and ownership of the vessel in order to ensure that known IUU vessels or vessels operated by known IUU operators are not admitted to the register. Arguably too, all flag States are now obliged not to accept vessels onto their register if they are not willing and/or able to exercise effective control over them. This willingness should be evidenced by acceptance and implementation in the domestic law of the flag State of relevant internationally agreed conservation and management measures, the establishment of an effective licensing regime which issues authorizations to fish only upon verification of a vessel’s aptitude to comply with relevant measures and the identification of the persons responsible for the vessel’s operation, and the existence of a national regulatory framework for monitoring, control and enforcement (MCE). This MCE framework should include binding requirements on the reporting of fishing data by vessels, requirements to monitor vessels through the use of vessel monitoring systems (VMS) and observer programs, at-sea and in-port inspection, and regulation of transshipments. In addition, it should provide for a system of sanctions adequate in severity to act as an effective deterrent, including the revocation of authorizations to fish.
29
See, e.g., R. Rayfuse, ‘To Our Children’s Children’s Children: From Promoting to Achieving Compliance in High Seas Fisheries,’ 20(3-4) International Journal of Marine and Coastal Law, 2005, 509-532 at 525-527.
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The Criteria for Assessing Flag State Responsibility Having identified the content of flag State responsibilities, it is possible to establish detailed criteria for assessing their fulfillment. In this respect it is important to start from the premise that the presumption that a flag State is responsible is a rebuttable one. While states may generally be taken to intend to fulfill their international obligations, the continuing incidence of IUU fishing is testament to their inability or unwillingness to always do so. In its final report, published in 2006, the Ministerially-led Task Force on IUU Fishing on the High Seas (The High Seas Task Force or HSTF) 30 proposed the adoption of guidelines on flag State performance with respect to the fisheries-related obligations of flag States. The proposed guidelines suggest a number of general criteria that should be assessed in determining whether a flag State is a responsible flag State. The first set of criteria relate to whether a state is party to the global fisheries agreements, the LOSC, UNFSA and the Compliance Agreement. Ratification of these treaties would provide prima facie, although not conclusive, evidence of responsibility. On the one hand, the presumption could be rebutted by instances of non-compliance. On the other hand, the presumption could be strengthened by evidence that even though a nonparty, a state is either ensuring compliance with RFMO measures or does not allow its vessels to fish. The second set of criteria relate to whether a state is party to or cooperating with the relevant RFMO/regional arrangement. A responsible flag State would be expected to implement the obligation to cooperate through ratifying any relevant regional agreement or participating in regional arrangements. Indeed, the FSA says that any state with a real interest in a fishery must either be a member of the RFMO or cooperate with it and comply with its measures in order to have access to a fishery. 30
High Seas Task Force, Closing the Net: Stopping Illegal Fishing on the High Seas, Appendix 4 (March 2006), available at .
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This, of course, requires determination of the vexed question of what constitutes a real interest. However, for present purposes, at the very least the real interest would include any state whose vessels fish in any way or at any time in the relevant fishery. Other aspects of this set of criteria are whether the flag State requires its vessels to comply with the conservation and management measures of the RFMO and whether the flag State itself complies with the obligations of membership or cooperation. A responsible flag State will do both. Whether a member of an RFMO or not, a flag State which does not ensure that its vessels comply with the regional conservation and management measures or which does not comply with its own obligations to implement the measures adopted, would prima facie be an irresponsible flag State. The third set of criteria mentioned by the HSTF relate to whether the flag State has domestic measures in place to ensure it exercises effective control over its vessels. In other words, does the flag State have a register of fishing vessels flying its flag? Are vessels required to obtain a license or authorization to fish from the national authorities? Does the flag State have standards for marking vessels and gear and for verification of catch and effort data? Does it have an MCE regime? And of course, do all these measures meet the internationally agreed minimum standards (assuming there are any)? The absence of a formal regulatory system would be prima facie evidence of lack of responsibility. However, this presumption would have to be rebuttable in the case of developing states lacking management and other capacities. In such cases it would be relevant to enquire whether technical or other assistance had been requested or not, requested and provided, requested but not provided, or offered and rejected. By the same token, the presence of a formal regulatory system would be prima facie evidence of responsibility as a flag State. However, this, too, would be rebuttable in the case of a state which demonstrated a consistent pattern of failure to utilize its powers to control its vessels. In this respect it is 584
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necessary to go beyond the HSTF guidelines and ask does the flag State have in place a system to sanction wrongdoing by its vessels? Does it use this system? Are its sanctions effective? Do they provide for punishment sufficient to discourage future violation, for example, withdrawal of fishing or seafaring authorization? Have the measures adopted by the flag State, in fact, discouraged violations or have the state’s vessels continued to engage in IUU activities? The Assessment Process Clearly, prior to a non-flag state taking action, there must be an assessment based on the identified criteria and a determination made as to whether, and if so what, action should be taken. Additional assessments may also be necessary to determine, on an on-going basis, whether there are additional rights to take action. In other words, the assessment will provide the basis for action against non-compliant vessels in individual situations or on-going action against vessels of flag States who demonstrate a consistent pattern of ‘irresponsibility’. This raises the issues of who assesses and what considerations and procedures should be followed to ensure ‘due process’ in the assessment process. ‘Who’ assesses will depend on the circumstances. Where the direct interests of an individual state are threatened, the assessment of flag State responsibility must fall to be determined by that state. Thus, by virtue of the allocation of rights, interests and duties under the LOSC, the assessment will be made by individual coastal States in whose EEZ noncompliant fishing is taking place; by individual coastal States whose interest in a straddling or highly migratory fish stock is affected; or by a member of an RFMO with vessels fishing for the particular stock. Alternately, the members of an RFMO may determine, on a collective basis, either through a compliance committee or other mechanism, that a flag State has not met its responsibilities. This determination may be made in respect of individual incidents, as in the current practice of listing vessels on IUU negative lists, or it may be made on the basis of a 585
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consistent pattern of ‘irresponsibility’, as is currently the practice in determining whether to recommend trade related measures against the vessels of recalcitrant flag States or against flag States themselves. Regardless of who makes the assessment, however, rigorous, fair, transparent, non-discriminatory and flexible assessment processes are needed, and these processes must be equally applicable to all states regardless of their membership or non-membership in a particular RFMO. A detailed analysis of the precise content of these due process requirements is beyond the scope of this article. However, it is possible to identify some guiding considerations. With respect to individual infringements by individual vessels it may be relevant to consider the following: • Is this the first breach by a vessel and its flag State or is there a pattern of non-compliance? A pattern of non-compliance will be evidence of lack of responsibility. • How serious is the breach? Where the vessel’s actions, although breaches of the RFMO, coastal State, or other internationally agreed measures, are not of sufficient gravity to undermine the effectiveness of those measures, then flexibility will be required. • Has the flag State been notified of the breach and given an opportunity to rectify it by forcing its vessel to comply or by taking action against the vessel itself? To be truly effective calls for compliance need to be contemporaneous with the violative conduct and must require immediate response. • Has the flag State, in fact, taken steps to force its vessel to comply either by taking steps itself or by authorizing another state to do so? • Has the flag State responded/acted within a reasonable time? Admittedly, what constitutes a reasonable time may be difficult to define, will undoubtedly depend on the circumstances of each case, and should possibly depend on factors such as past 586
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effectiveness of the flag State in controlling its vessels in general, or this vessel in particular, the seriousness of the violative conduct being engaged in by the vessel, and the vessel’s historical connections to the flag State. Article 21(6) of the FSA requires a flag State to respond to post-boarding and inspection notifications of violations within three working days. There may, however, be circumstances in which is it appropriate to seek more timely responses from a flag State in order to stop the violative conduct from continuing. In the maritime security context, response times of four hours may be required. Analogizing IUU fishing as a threat to food security with other threats to maritime security, it seems reasonable to suggest that shorter, almost contemporaneous, response times should be expected. When considering whether a flag State has demonstrated a consistent pattern of failure to implement its flag State responsibilities other considerations also arise. For example: • Is this the first time the flag State has been asked to comply? If so, then some flexibility should be demonstrated. Where, however, this is not the first time the flag State has been asked to ensure compliance by one of more of its vessels, or where a particular violation is a serious one, or where the vessel has only recently been flagged in the flag State and is known to have engaged in IUU activities under a previous flag, then a demand for immediate compliance should be considered reasonable and if not complied with it will constitute prima facie evidence of lack of responsibility. • Has the flag State ignored requests for compliance in the past? • Has the flag State purported to take action against its vessels in the past but in fact failed to do so? If it has then it may also have breached the general duty of good faith.
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•
Has the flag State given satisfactory guarantees of compliance and non-repetition or previously shown its willingness and ability to effectively investigate and, where appropriate, prosecute and penalize breaches by its vessels? If so, then a presumption should arise in favor of flag State pre-emption on request as opposed to action by a non-flag state. If the flag State has repeatedly failed in the past, then the flag State should be presumed to be ‘irresponsible’ and consequences follow for both it and its vessels. Far from radical, this proposition is already known in the LOSC, Article 228 of which provides for an over-ride of the right of flag State preemption with respect to proceedings for marine pollution matters where ‘those proceedings relate to a case of major damage to the coastal State or the flag State in question has repeatedly disregarded its obligation to enforce effectively the applicable international rules and standards to take proceedings and impose penalties in respect of violations committed by its vessels’.
NON-FLAG ENFORCEMENT AND IRRESPONSIBLE FLAG STATES The Definition of Non-Flag Enforcement Having determined that a flag State is not effectively exercising it responsibilities vis-à-vis its vessel or vessels, it is necessary to determine what action other states can take against the individual vessel. Given the parlous state of the world’s fisheries resources and the extractive nature of the activity, which distinguishes it from the shipping sector where port State action may be most effective, it is clear there is a need to be able to respond quickly to non-compliant behavior. Thus, the focus of the COFI mandate is on non-flag state actions against the vessel. Actions taken may relate to both the ‘control’ and ‘sanction’ aspects of enforcement. The former refers to the processes of invoking compulsion in order to achieve compliance. These actions are essentially policing activities and include 588
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surveillance, boarding and inspection, and detention pending further investigation. The later refers to the processes for the formal application of the law through judicial and other processes that have been initiated as a result of, and in support of, the control processes. These processes involve prosecution and punishment which may include arrest, and/or fine, and/or forfeiture of vessel, and/or catch, and/or loss of license.31 The nature of the action taken will depend on the identity of the relevant non-flag state, the location in which the action is taken, and the legal basis pursuant to which the action is taken. In other words, actions will include those taken at-sea, in port, or elsewhere, by coastal States, port States, market States, and member and non-member States of an RFMO. However, a distinction exists between the consequences of flag State failure to exercise responsibilities in respect of individual infractions by individual vessels, which may give rise to the right of non-flag states to take immediate action against the individual vessel, and the consequences of a consistent pattern of failure on the part of the flag State, which may result in longer term consequences such as the loss of the right for all its vessels to participate in fishing activities and action being taken by nonflag states against the flag State itself. It is therefore necessary to consider actions that might be taken against both individual vessels and against ‘irresponsible’ flag States and the legal bases for such actions. The Legal Basis for Actions by Non-Flag States It is trite law that non-flag enforcement is permitted with the consent of the flag State. That consent may be given in ad hoc cases or, in a more formal sense, in advance in a treaty. In this respect it is important to note that non-flag enforcement is not unknown to the law of sea.
31
R. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (Leiden/Boston: Martinus Nijhoff Publishers, 2003) pp. 328-329.
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Indeed, it already forms a significant part of the jurisdictional balances in the LOSC. 32 Within internal waters coastal States enjoy full territorial sovereignty33 over their own and other states’ vessels. In their territorial sea coastal States enjoy full sovereignty, including enforcement jurisdiction, subject to the right of innocent passage.34 Beyond the territorial sea and within the contiguous zone coastal States may exercise the control necessary to prevent infringements of their customs, fiscal immigration or sanitary laws by inbound vessels. They can also take enforcement action against outbound vessels which have committed infringements of those laws while in their territorial sea or internal waters.35 Additionally, within the Exclusive Economic Zone (EEZ) coastal States enjoy sovereign rights over, and enforcement jurisdiction in respect of, the exploration and exploitation of the living and non-living natural resources of the EEZ.36 Likewise, coastal States enjoy a measure of enforcement jurisdiction in respect of certain activities on the extended continental shelf.37 On the high seas the LOSC specifically provides for non-flag enforcement in cases of piracy, slave trading, unauthorized broadcasting, and stateless vessels.38 Other treaty and customary regimes allow for nonflag enforcement in cases of illicit drug trafficking, self defense, intervention in the case of accidents at sea, and in support of sanctions or 32
R. 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 Yearbook of International Law, 2005, 181-200. 33 LOSC Arts. 2 and 8. It should be noted that this is subject to the important limitation expressed in Art. 8(2) whereby within waters enclosed as internal waters by straight baselines drawn in accordance with Art. 7, which had previously not been considered as such, the right of innocent passage persists. 34 LOSC Arts. 2 and 17-19. 35 LOSC Art. 33. 36 LOSC Art. 56. 37 LOSC Arts. 76 and 77. 38 LOSC Art. 110.
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blockades adopted pursuant to Chapter VII of the United Nations Charter.39 The right of non-flag enforcement is also conferred by the LOSC on non-flag port States which are empowered to investigate and take proceedings against vessels voluntarily within their port in respect of any discharge by such vessel on the high seas in violation of applicable international rules and standards. In the fisheries context, fishing activities are specifically excepted from the innocent passage regime of the territorial sea and a coastal State may therefore arrest any vessel for violation of its fisheries laws within its territorial sea.40 In addition, the coastal State may take such measures as may be necessary to ensure compliance with its laws and regulations relating to the natural resources of the EEZ.41 In other words, the coastal State may take enforcement action against vessels from other states fishing illegally in its EEZ. This can include action taken within the EEZ by other states pursuant to an agreement such as the Australia-France Agreement on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAFF), Heard Island and the McDonald Islands.42 Port states, too, may take action against foreign flagged vessels. However, actions taken by a port State find their legal basis in the sovereign rights of states to control access to their ports and activities and persons within their territory.43 Admittedly, a natural corollary of the right 39
For a full discussion see Rayfuse, supra note 31, pp. 52-61. LOSC Arts. 19, 25 and 27. 41 LOSC Arts. 56 and 73. 42 Signed on 24 November 2003, and entered into force on 1 February 2005. The Treaty facilitates cooperation between Australia and France to tackle IUU fishing by establishing a framework for information exchange and cooperative surveillance and research activity by France and Australia in the Area of Cooperation, which includes the HIMI territorial sea and Exclusive Economic Zone and the territorial sea and Exclusive Economic Zone of the French territories of Kerguelen Islands, Crozet Islands, Saint-Paul Island and Amsterdam Island. 43 T. Lobach, Port State Control of Foreign Fishing Vessels, FAO Legal Papers Online No 2 (2002), available at , at 9, See also, 40
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to control is the right not to control. Thus, both the Compliance Agreement44 and the FSA45 articulate port State duties in respect of the control of IUU fishing. In addition, a number of RFMOs have adopted mandatory port State control schemes, the FAO has adopted a Model Scheme on Port State Control,46 and the international community is currently engaged in the negotiation of a global legally-binding agreement on port State measures to prevent, deter and eliminate IUU fishing.47 The requirements set out in these schemes can be seen as the minimum measures that should be taken by port States in fulfilling their own duty to cooperate and to promote the effectiveness of sub-regional, regional and global conservation and management measures. Port States remain, however, entitled, in the exercise of their sovereign rights, to take actions beyond those set out, so long as the actions taken do not discriminate in form or in fact against the vessels of any state. On the high seas, at the global level, the jurisdictional basis for non-flag enforcement may be found in Articles 20-23 of the FSA which provide the basis for non-flag enforcement both at-sea and in port. Importantly, the overall effect of the FSA is that all states are to cooperate to ensure compliance with and enforcement of the conservation and management measures adopted by RFMOs, regardless of whether they are themselves a member of the relevant RFMO. Where flag States fail to so cooperate, non-flag states may take certain enforcement action against their vessels. The jurisdictional basis for non-flag enforcement is also A.V. Lowe, ‘The Right of Entry into Maritime Ports in International Law’ 14 San Diego Law Review, 1977, 621; F. Orrego Vicuña, The Changing International Law of High Seas Fisheries (Cambridge: Cambridge University Press, 1999), pp. 259-264. 44 Compliance Agreement Art. V(2). 45 FSA Art. 23. 46 FAO, Rome, 2007. 47 See, Report of the Expert Consultation to Draft a Legally-Binding Instrument on Port State Measures, Washington DC, USA, 4-8 September 2007, FAO Fisheries Report No. 846 (2007) and Report of the Technical Consultation to Draft a Legally-Binding Instrument on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, FAO Doc TC-PSM/2008/2, April 2008.
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provided for in the constitutive treaties of a number of RFMOs,48 and in regimes adopted by RFMOs pursuant to their regulatory or general managerial or conservatory powers.49 Non-flag enforcement is also provided for in bilateral treaties such as the US-China Shiprider Agreement.50 However, these regimes only operate inter partes. The question arises, therefore, as to whether a general right of non-flag enforcement can be found. Clearly, non-flag enforcement can be taken where consent is given in ad hoc cases. For example, when requested by a non-flag state, a flag State might either consent to the action taken or agree to revoke its flag rendering the vessel stateless, thereby allowing further action to be taken.51 In addition, it is always open to all states to take non-flag enforcement action against stateless or suspected stateless vessels. This is not because statelessness is per se illegal, but, rather, because a stateless vessel lacks the protection of a flag State.52 Assuming its domestic legal processes are complied with, any state can apply its domestic laws to a 48
See, e.g., Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (16 June 1994), 34 ILM 67 (1994), Art. XI; Convention on the Conservation of Anadromous Stocks in the North Pacific Ocean (11 February 1992) 22 Law of the Sea Bulletin 21-29, Arts. IV and V. 49 See, e.g., Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (24 October 1978), 1135 UNTS 369, Art. XI(5); Convention on the Conservation of Antarctic Marine Living Resources (20 May 1980), [1982] ATS 9, Art. X; International Convention for the Conservation of Atlantic Tunas (14 May 1966), 673 UNTS 63, Art IX(3); Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (5 September 2001), 40(2) ILM 277, Arts. 25 and 32; Convention on the Conservation and Management of Fishery Resources in the South East Atlantic (20 April 2001) 41(2) ILM 257, Art. 16(3). 50 U.S.-China Memorandum of Understanding on Effective Cooperation and Implementation of United Nations General Assembly Resolution 46/215 of December 20, 1991, (3 December 1993). 51 As, for example, in the case of the Honduran flagged Arctic Wind. Honduras gave consent for the United States to arrest and prosecute the vessel which had been found fishing with driftnets in the North Pacific in violation of the UN Driftnet Moratorium. See Rayfuse, supra note 31, pp. 138 and 345. 52 Rayfuse, supra note 31, p. 57 and D.P. O’Connell, The International Law of the Sea, vol II (Oxford: Clarendon Press, 1984), p. 755.
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stateless vessel which may be denied entry into ports and territorial waters, or may be boarded and, if warranted, searched and arrested on the high seas and subjected to the jurisdiction of the arresting state.53 Beyond these situations, however, a general right of non-flag enforcement may be inferred from the very provisions of the LOSC. It is beyond dispute that all states have the right for their nationals to engage in fishing on the high seas.54 However, this right is subject to a number of oft-overlooked qualifiers; to wit, a state’s treaty obligations, the rights, duties and interests of coastal States as provided for in Articles 63(2) and 64 to 67, and the duties of conservation, cooperation and nondiscrimination set out in Articles 117-120. This right, which is given to states, not individuals, is therefore lost where a state refuses or fails either to comply with its treaty obligations or to comply with its duty to respect coastal State interests or to cooperate. If, as discussed above, the duty to cooperate includes the duty to effectively control your vessels, then, if a state fails in the exercise of that duty, it forfeits the right for its nationals to participate in the freedom of fishing.55 This gives rise to a corollary right in non-flag states to take action, on a non-discriminatory basis, either against the vessels of the flag State, or against the flag State, or both. Application of the general rules on state responsibility suggests that in such cases any state whose interests have been injured may take non-flag enforcement action.56 In other words, non-flag enforcement may be taken by affected coastal States or members of RFMOs in their individual or collective capacity. Non-injured states may also be entitled to take action, 53
LOSC Art. 110. LOSC Art. 116. 55 The suggestion was raised, but not answered in FAO, Technical Consultation on High Seas Fishing, Legal Issues Concerning High Seas Fishing FAO Doc FI/HSF/TC/92/8, June 1992. It is now confirmed in the FSA Arts. 8(4) and 17. 56 International Law Commission, Articles on Responsibility of States for International Wrongful Acts (ILC Articles), reproduced in J. Crawford, The International Law Commission’s Articles on State Responsibility (Cambridge: Cambridge University Press, 2002) Arts. 42 and 46. 54
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particularly if it is accepted that the duty to cooperate and the obligations of flag State responsibility exist to ensure the conservation and long-term sustainability of high seas fisheries for the international community as a whole. However, these states will be limited to seeking cessation of the breach and assurance of non-repetition, as well as reparation in the interest of the injured state or of the beneficiaries of the obligation breached. 57 Finally, it should be noted that, even in the absence of a legal basis for non-flag enforcement, non-flag states may be entitled to take non-flag enforcement action on the basis of the law of countermeasures or the doctrine of necessity58 in situations where a flag State is not effectively meeting its responsibilities. However, a valid invocation of these doctrines, which operate to excuse wrongfulness of otherwise unlawful acts taken in response to a prior unlawful act, presupposes acceptance of and agreement on the criteria of flag State responsibility. Actions Against Non-compliant Vessels Where the Flag State has Failed to Fulfill its Responsibilities Having identified the various legal bases for non-flag enforcement, it is possible to identify some of the actions which non-flag states might take. The first category of actions relates to those that may be taken against individual vessels. This category recognizes the need for prompt and sometimes immediate action to stop violative conduct such as fishing in contravention of coastal State EEZ rights or in a manner that undermines the effectiveness of conservation and management measures adopted by the international community either in general or by RFMOs. Many of these are already found in measures adopted by coastal States or in control and enforcement schemes adopted by RFMOs and it is not proposed to provide a comprehensive analysis here. Rather, some general indication of the types of measures that may be taken is offered. 57
ILC Articles, Art. 48. See R. Rayfuse, ‘Countermeasures and High Seas Fisheries Enforcement,’ 51 Netherlands International Law Review, 2006, 41-76. 58
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The first actions to be identified are those that may be taken by a coastal State in respect of violations by foreign vessels that infringe its EEZ rights. As noted above, the legal basis for these measures is found in the LOSC and the sovereign rights of coastal States over marine living resources in their EEZ. Measures envisaged in the LOSC include boarding, inspection, arrest of vessels, judicial proceedings, and the right of hot pursuit, subject only to the obligation of prompt release of the vessel upon payment of reasonable security and the requirement that violation of fisheries laws not be punished by imprisonment or corporal punishment.59 Additional or ancillary measures that may be taken include requiring a vessel to come into port, detention of suspect vessels pending further investigation, seizure of catch, and confiscation of vessel. These actions must, however, be consistent with national laws. To that end, states may need to adopt national laws to provide the domestic legislative basis for these actions. The next actions to be identified are those that may be taken by port States in the exercise of their right to control activities in their ports. As with coastal State actions in respect of the marine living resources of the EEZ, port State actions will have to be consistent with national laws and States may need to adopt national laws to allow them to implement port State measures. Actions that may be taken by port States include: designation of ports for unloading of fish, port entry advance notification requirements, inspection and investigation, prohibition of landing, transshipment or processing of fish unless the vessel has established that the fish were taken in a manner consistent with relevant conservation and management measures, and withdrawal of port services and port closure (to both ingress and egress). Actions may also include the sharing of information on vessel activities with relevant RFMOs, Interpol, and/or relevant coastal States. Port States may also detain vessels pending flag State response and the effective assumption by a flag State of its 59
LOSC Arts. 56 and 73.
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responsibilities and, where no such effective assumption is forthcoming, apply port State sanctions as appropriate. Such sanctions should be expeditious, taken within a reasonable time through appropriate mechanisms, and any penalties should be consistent with the internationally accepted criteria of proportionality and appropriateness. The next actions identified are those that may be taken on the high seas by affected coastal States or RFMO members. Actions taken here may be unilateral or collective and will depend on both the circumstances and the legal basis being invoked, but may include: a request for cooperation to the vessel and the flag State including a request to stop the violative conduct, recall the vessel to port, or to consent to non-flag action; notification to the relevant RFMO or coastal State that the vessel or flag State is non-compliant; establishment of a negative list of vessels which can be used to identify vessels against which action may be taken; prevention of non-compliant fishing activity, including transshipment, through actions targeted at the vessel, so long as those actions do not endanger life at sea; boarding and inspection; sealing of holds; arrest; detention; seizure; and, finally, prosecution and the application of relevant penalties. Mention should also be made of the actions that may be taken by market States. Denying IUU fishers the economic benefits associated with their activity is seen as a major element in the fight against IUU fishing. Thus, market States can play a significant role in eliminating IUU fishing by closing their markets to IUU fish. This may be achieved through, for example, participation in or cooperation with catch documentation schemes adopted by RFMOs and the adoption or promotion of national traceability or eco-labelling schemes which verify the provenance of the fish and fish products as having been taken by authorized fishers in a sustainably managed fishery.
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Actions Against ‘Irresponsible’ Flag States The second category of actions relate to those that may be taken against the flag State itself. If the obligation is one of flag State responsibility then it is necessary to consider the consequences of a breach of that responsibility for the flag State qua flag State and not only in respect of individual vessels and incidents. Where a flag State is determined to have exhibited a consistent pattern of failure to exercise its responsibility vis-à-vis its vessels this may be helpful in reacting to individual circumstances. However, beyond this, a pattern of consistent failure to effectively exercise flag State responsibilities may also result in the loss of the right for all its vessels to fish and in other consequences for the flag State. Measures against the flag State may be unilateral or collective. Unilateral measures encompass trade measures, diplomatic demarches or interventions, naming and shaming and even the institution of legal proceedings in international tribunals. These measures may also be taken on a collective basis by RFMOs who may also consider the withdrawal of quota from irresponsible states and the possible imposition of other sanctions. RFMOs might also consider the adoption of negative lists of irresponsible states, the purpose of which would be to establish a rebuttable presumption that all vessels flagged in listed states are prima facie undermining relevant conservation and management measures and are therefore denied the right to fish in the RFMO regulatory area and globally. Admittedly, it can be asked whether it is fair to place such onerous burdens and consequences on flag States, particularly when it is the nationals of other states who own and operate the vessels which engage in IUU fishing. Certainly, the need for all states to effectively exercise their jurisdiction in respect of any of their nationals who may be engaged in IUU fishing and related activities has been recognized. However, in a legal system premised on the ascription of flag State jurisdiction, it is flag States that bear the ultimate responsibility for ensuring that, in return for 598
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the rights granted to them, they comply with their flag State responsibilities including the obligation to effectively exercise control over their vessels. In the event a state is not able to do so, it should refrain from granting its flag and from authorizing its vessels to fish. If it does not, then it has breached its international obligations and other states have the right to act. CONCLUSION Freedom requires regulation if it is to be maintained. Regulation bespeaks restriction. Developing appropriate and acceptable restrictions on freedom is neither popular nor easy. It requires the difficult accommodation of multiple and complex competing interests. It is accepted that ‘restrictions on the independence of states cannot be However, where the free will of states evidences presumed’.60 developments in conventional and customary international law aimed at the regulation of co-existence and the achievement of common aims, then such restrictions may arise. The international community is agreed on both the deleterious effects of, and the need to prevent, deter, and eliminate, IUU fishing. The effective achievement of this goal requires the identification and progressive development of the customary content of flag State responsibilities which are binding on all states. It also requires the identification and implementation of rules relating to non-flag enforcement, or the actions that may be taken by non-flag states in situations where a flag State is unwilling or unable to comply with its flag State responsibilities. This article has attempted to identify the currently accepted content of flag State responsibilities, focusing on regulatory structures and the behavior of states, and to identify criteria that need to be considered in conducting assessments of flag State performance. A useful outcome of the COFI process would be a declaration or set of guidelines on the precise content of flag State responsibilities and the criteria by which adherence to these responsibilities should be assessed. 60
The Lotus case [1927] PCIJ (Ser. A) no. 10 at 79.
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This article has also identified a range of actions that may be taken by non-flag states in situations of flag State failure. It is clear that, as an exception to the general principle of flag State jurisdiction, actions taken by non-flag states should be subject to a range of limitations and safeguards. In all cases, a flag State will need to be informed early on and have the right to respond to the allegations. Clear guidance will need to be given to the flag State as to what needs to be done to rectify the situation. In addition, criteria and procedures for revoking any adverse determination will be needed, as will clear guidance and criteria for other states to assist them in determining what their obligations are to assist the flag State to bring itself back into the club of responsible states. Inevitably, it must be expected that disputes will arise between flag States and non-flag states regarding the precise content of applicable flag State responsibilities and the extent of compliance with them. The determination of these disputes will provide ongoing contributions to the development of the law of the sea, international fisheries law, and the protection of the marine environment and its most heavily exploited living resources.
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Edited Transcript of Question and Answer Session Panel VII: Non-Flag State Enforcement and Protection of the Marine Environment
Ambassador Gudmundur Eiriksson: Well, thank you very much both of you for your scholarly, yet not academic contributions. As I indicated in the beginning, both presentations rather point to the future and point out problems that we will have to address. I think it is a fitting end to this particular conference. Professor Dr. Hasjim Djalal: Thank you for the two papers. Firstly, I would like to know what are the real differences, or the legal differences, between the PSSAs, marine protected areas, marine parks, and so many other terminologies and their implications for navigation. That’s the first one. Some of these are within the jurisdiction of the FAO and some within the IMO. What is the coordination between FAO and IMO on the establishment of this area? And my final question is about the northwestern Hawaiian Islands PSSA. As you can see from the picture a very large area of the Pacific Ocean is covered. How does it affect international navigation in that area? Commander James Kraska: In my view, the problem with the terms PSSA, MPA, LMEs, is that there are no precise definitions. Of course, MARPOL has special areas and we know what those are, so that’s very discrete treaty language. But for the others, there really are no criteria. There are guidelines, I guess, for PSSAs, but there’s no legal distinction, you could call it whatever you wanted. None of them permit a single state or a collection of states or even the IMO, which is a technical organization as you know, sir, to go beyond the rules contained in UNCLOS. That’s my view. I have some thoughts on it, but I am not the best person to address the coordination between FAO and IMO. I’m just not aware of any that may take place. With regard to the third question, the 601
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northwestern Hawaiian Islands is the world’s largest PSSA, larger than the Great Barrier Reef. I think your question was, how is it affected by international shipping? I guess what I would say is that when states had an opportunity to pose that question at the IMO, only India did so, and not very energetically. The IMO as a collective then went on with the process, and now we are essentially on the cusp of designating that area as a PSSA. There were some figures contained in the US proposal for scrutiny by the international community, and through the review process, those figures were not challenged. Ambassador Gudmundur Eiriksson: I see a puzzled look on Ambassador Djalal’s face, but I’ve seen that before. Ash, would you like to contribute to this? Captain J. Ashley Roach: Yes, if I could. On the first question with regard to IMO/FAO coordination, the secretariats have increasingly made efforts to do that, and depending upon the subject matter that is involved, the secretariats will work together or they will have a joint FAO/IMO meeting of one sort or another of experts or governments. They do this same thing in the context now with the ILO and a lot of maritime work that’s being done. They recognize that because their jurisdictions are different and yet they are dealing pretty much with the same kinds of things, that they need to coordinate. The secretariats have been increasingly active in doing that and ensuring that the governments do the same. On your last question in regards to international shipping in the context of the northwestern Hawaiian Islands, that was one of the major questions that we had internally when we were staffing the proposal. What you heard referenced was basically the information that we had with regard to the shipping, which was contained in the proposal, was that there is very little shipping. It’s not on the Great Circle route; it’s not on the main routes. The few ships that are international shipping go through the one area that’s open. Most of the traffic comes to the south of that 602
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towards Hawaii itself, as opposed to the northwest Hawaiian Islands. If there had been, in our judgment, any greater impact on shipping, I think the proposal would have been different. It’s not an area that has a lot of traffic as far as we can tell. One of the reasons for the reporting system was to provide an opportunity to get even better real time data to see if there is, in fact, any impact on shipping. Then, if there is, I suspect we will obviously have to take another look at it. But the general concept was, no we weren’t shutting off high seas freedoms because there wasn’t any high seas traffic to deal with. Now conceptually whether or not that is the right approach, that’s in fact how we did it. Professor Dr. Hasjim Djalal: Does the area correspond to the Exclusive Economic Zone of Hawaii? Captain J. Ashley Roach: No, it’s basically 50 miles either side of the center line, so it’s all within the EEZ. But it’s not the whole of the EEZ. Professor Dr. Hasjim Djalal: Well, the follow-up question would be if the United States can do that in the middle of the ocean, why can’t others do that also? Captain J. Ashley Roach: I haven’t said they can’t, given what we’ve done. Ambassador Gudmundur Eiriksson: Yes, thank you for this contribution. Ash would you like to add to this? Captain J. Ashley Roach: Let me just add one more thing with regard to the ATBAs. You may have missed it in the presentation, but there were six ATBAs around the northwest Hawaiian Islands to the southeast of Midway and Kure that had been in place for over 20 years with apparently no impact on shipping. It had gone to the IMO, the original proposals had 603
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been modified by the IMO at the time, and it had been in place, as far as we call tell, with no adverse impact on shipping. At least there hadn’t been any complaints. We added two more to the north because the change in the status of Midway had occurred, so we added those. That’s all part of the chain, and it was the same thing—they are 50-mile diameter ATBAs. It seems to meet the balance between an area that is extraordinarily vulnerable, extraordinarily unique in the sense of what it is. Yet, to the extent that it has an impact on users, we try to take that into account.
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EDITORS’ SPECIAL SUPPLEMENT
Navies and Maritime Security – A Republic of Singapore Navy Perspective Submitted by Col. Dexter Chia1 for the Republic of Singapore Navy The Changing Strategic Environment The primary goals of Singapore's national security, as with any other country, are to safeguard its territorial integrity and ensure the safety and well-being of its citizens. This requires the close monitoring of all potential threats, maintaining credible defences to deter, and if and when necessary, to respond decisively should deterrence fail. These will remain as the basic building blocks of the national security strategy for Singapore and many other countries. However, the challenges of maintaining national security have become far more complex in recent years. Changes in our strategic environment call for a continuous reassessment of what needs to be done and the setting of new priorities if we want to enhance our national security. One element of this shift has been globalisation and its impact on maritime trade and energy flows. Nowhere in the world is this truer than in the Asia-Pacific Region. This is a region through which over 30% of the world's commerce, half the world's oil, and 80% of the oil bound for China and Japan are carried afloat. The Sea Lines of Communication in this region are hence critical lifelines not only for the regional littoral states, but also for stakeholders around the globe. However, globalisation has also greatly increased the potential effects posed by threats to maritime security. Most of us here would be familiar with the attacks on the USS Cole in Aden, the MV Limburg off the Yemeni coast and on the Al Basrah Oil terminal in Iraq. Specific to our region, the menace of 1
Project Director, Changi Naval Base Project Office, Republic of Singapore Navy (RSN). Colonel Chia’s PowerPoint presentation (pdf file) can be viewed on the accompanying CD.
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piracy and other threats to the security of merchant shipping had caused the Lloyd's Market Association to add the Malacca Straits to its list of war risk areas in 2004. Fortunately this was lifted later in 2006. The effects of the cost increases in the maritime and shipping industry were felt worldwide. These incidents serve to remind us that threats to maritime security carry both strategic and economic consequences, and have a ripple effect far beyond our immediate vicinity. A New Paradigm of National Security So, it is not surprising that keeping sea lanes safe and secure has taken on greater importance and has come into sharper focus. Maritime security is one critical issue that ranks high in Singapore's national security priorities, as with many countries around the world. Contemporary challenges to maritime security are trans-boundary in nature and multi-faceted in that they cut across traditional sectoral boundaries between enforcement agencies, port authorities and shipping associations. No single organisation or country has the wherewithal to tackle the plethora of maritime threats alone. Instead, we need to adopt a new paradigm of national security, one that is founded on strong interagency co-operation and even greater international collaboration. Navies play a crucial role in this. In fact, when it comes to interagency co-operation and international collaboration, navies in the world have a head-start. We have been co-operating and working well before the phenomenon of “globalisation” and “networking” became buzzwords. Navies can well appreciate one another's concerns and readily share best practices. Likewise, the Republic of Singapore Navy or RSN in short, plays a vital role in collaborating with others in fleshing out these new paradigms.
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Inter-Agency Co-operation A comprehensive maritime security solution starts with a shared dialogue at the national level. A dialogue amongst maritime and related agencies on where security risks may exist and how best to reduce these risks collaboratively is critical. Pooling the various domains of expertise, experiences and ideas can help overcome blind spots, unwitting gaps and lead to more risk reduction solutions. In Singapore, this dialogue takes place at the Maritime Security Committee or MSC for short. The MSC is an inter-Ministry and inter-agency set-up that comprises representatives from the Ministries of Defence, Foreign Affairs, Home Affairs and Transport as well as the intelligence and defence technology agencies. It develops the strategy for maritime security, identifies and implements the operational measures to reduce threat risks. It also helps to foster a tightlyknitted community of agencies concerned with maritime security. Singapore's maritime security strategy comprises a few key components, all centred on tight inter-agency co-operation as its primary building block. The first component is situational awareness. One can only respond when a threat is known to exist. Amidst the 1,000 ships that ply the Singapore Straits daily, we are building up capabilities to detect anomalies quickly in order to cue decisive responses effectively. The challenge, of course, is to collate seemingly insignificant data, translating them into a coherent situation picture, and then filtering the anomalies. In Singapore, the networking of sensors ashore and afloat from all agencies helps to track and monitor all shipping in our waters. Overlaid is a plethora of traffic control schemes prescribed by the port authority to limit vessels of concern to prescribed routes and anchorages. This enhances surveillance significantly. Any vessel that strays outside the designated routes and areas can be flagged for attention. Vessels carrying dangerous cargo such as LNG, LPG and chemicals are of concern, so are small craft including fast ferries, pleasure and trade craft that can be rapidly 609
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converted into a weapon of choice. In fact, to better track small boats that are not covered by the Automatic Identification System or AIS regime, Singapore has instituted a Harbour Craft Transponder System or HARTS, a tracking system installed on all Singapore-registered small craft below 300 GRT. In our ports, we also employ gamma-ray scanners to detect hidden compartments and other anomalies. Coupled with data mining and anomaly detection capabilities, the odd patterns may just stand out fast enough for us to mount a timely response. Singapore has always subscribed to the belief that an ounce of deterrence is worth more than a pound of cure. Any defensive measure taken by the maritime security forces must be visible and sends a strong deterrence message. A whole gamut of visible obstacles can thwart potential attempts. Even a suicidal terrorist would be deterred if his chances of success are deemed to be too slim. Active and regular presence at sea, bolstered by regular demonstrations of counter-terrorist tactics will show our preparedness, and address any perceived vulnerabilities. Today, the RSN works hand-in-glove with the Police Coast Guard to share the responsibility of showing presence and maintaining protection within our waters. Patrol sectors were aligned to provide better coverage for vital installations and anchorages for Man-of-War and High Risk Vessels. Selective escorts of merchant ships by maritime security forces are conducted on a daily basis to improve security. We even developed a seamarshal programme called Accompanying Sea Security Teams or ASSeT. These teams comprise highly trained personnel from the RSN and the Police Coast Guard, and are deployed onboard selected vessels within Singapore waters, to deter and prevent possible terrorist acts. Checks on small craft and trade craft are carried out prior to their port entry. Force protection measures at the naval bases are also enhanced. All these constitute collaborative initiatives by agencies to cast an effective deterrent presence in our waters. The end game is to deter and reduce the risk of maritime terrorism. In the process, these operational measures
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collectively also help to eliminate piracy, sea robberies and smuggling activities. But deterrence may not always work, hence the need for response. Yet, the spectrum of threats to maritime security demands the need for a range of flexible and calibrated capabilities. These encompass robust selfdefense measures, an array of non-lethal as well as lethal responses, and a range of board, search and seizure capabilities. These measures may be implemented proactively, reactively or as a consequence management action. Interestingly warships are traditionally designed and built for rather specific roles—frigates, patrol vessels, landing ships and so on. Given the wide spectrum of operations today, many of our ships have to undertake maritime security and other roles, which may not necessarily be what they were designed for. The detection and weapon systems against small boat threats and suicide bombers in force protection become as important as anti-missile defense suites. Sufficient modularity in ship design is now priced to enable naval ships to carry and launch a variety of capability modules for a range of threat responses, ranging from unmanned vehicles to rigid hull inflatables to non-lethal weapons. The ability to launch and operate unmanned surface vehicles to patrol, survey or even intercept a suspicious boat potentially on a suicide mission becomes an important capability proposition. The ability to network and share information directly with shore sensors and police boats becomes as important as conventional datalink requirements. The RSN, as with many other navies, will not have all the solutions nor should it. While we seek greater flexibility in mounting a range of responses and optimizing modular capabilities, we also continue to leverage on the combined resources of our partner agencies. By doing so, we can collectively maintain a sufficient wide range of flexible and calibrated responses for a whole range of maritime security situations.
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International Collaboration Maritime security, by its nature, is a transnational and collaborative effort. Maritime threats have no regard for national boundaries. Their effects are felt by the littoral States, as well as by all trading nations in the world. Collaboration between countries based on international law and conventions is a must, if we wish to deal with these threats effectively. The starting point of any collaboration again lies with dialogue. Multilateral dialogue, in particular, is an important process for defining and clarifying what we can pursue in the regional maritime security agenda. While countries may not always achieve full agreement on every issue, the areas of agreement are often significant. And where there is agreement, there is a basis to move forward in terms of collaboration. From shared perspectives, interests and agreement, we can move to the development of practical co-operation and capacity building to tackle the common maritime security threats. In the region where Singapore lies, the progression from dialogue to understanding, and then to action, is already taking place. Maritime security has been discussed extensively over the past two years in a number of fora, including the ASEAN Regional Forum, the Western Pacific Naval Symposium, the Five Power Defence Arrangements, and most significantly, at the Shangri-La Dialogue. The frank discussions have helped the region and partner nations to progress from understanding to collaboration proposals, and also better appreciated the sensitivities relating to sea lanes like the Malacca Straits. In the Shangri-la Dialogues, consensus was built for practical principles for maritime security cooperation. First, that the primary responsibility of maritime security in Malacca Strait lies with the littoral States. Second, that there is a role that international community, agencies like the IMO and major user States can play. And third, that whatever measures we take, have to be in accordance with international law and respectful of the sovereignty of the littoral States. 612
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With this consensus, we were able to move quickly from principles to cooperative action. In July 2004, Indonesia, Malaysia and Singapore bolstered existing bilateral arrangements with the launch of the trilateral Malacca Strait Sea Patrols. These provide a 24/7 naval presence in the Malacca and Singapore Straits and enhance coordination among the respective navies' ground units and operations centres. This was followed in September 2005 by the “Eyes in the Sky” maritime air patrols, an innovative idea for multinational air patrols that was raised by Malaysian Deputy Prime Minister and Defence Minister, Dato Sri Najib Tun Razak. The “Eyes in the Sky” patrols have an innovative design which ensures that the littoral States are in the driver's seat while opening up opportunities for the participation of non-littoral states in the future. Collectively, these two initiatives form part of the broader framework of the Malacca Straits Patrol or MSP. The numbers speak for its efficacy. The initiative has reduced the number of piracy incidents in the Malacca Straits from a high of 38 in 2004, to 11 in 2006, and still further to just 7 last year. This prompted the removal of the Malacca Straits from Lloyd's list of war risk areas in August 2006, two years after its initial inclusion. Riding on these concrete successes, an MSP Intelligence Exchange Group was formed among the three participating States in 2006 to support the sea and air patrols, leading to the development of an information sharing platform called the Malacca Straits Patrol Info-System or MSP-IS, of which Thailand is now also a partner. These info-sharing efforts were quick to bear fruit. In September last year, MT Kraton, a tanker hijacked in the waters off Sumatra, was successfully interdicted by the Indonesian authorities after the participating States shared information about the incident. Collaboration in the MSP is now proceeding to the next level as we continue operational info-sharing trials with the MSP-IS and look forward to Thailand's future participation in the patrols. Another way to build greater capacity for collaboration and nurture a foundation of trust is to extend the breadth and depth of the multilateral exercises amongst regional and extra-regional navies. The progress in this 613
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area in recent years has been encouraging. Four years ago, the Ministers of the Five Power Defence Arrangement agreed to expand the activities of the FPDA to address non-conventional threats. Since then, maritime security serials have been incorporated regularly in FPDA exercises such as Bersama Padu. The Western Pacific Naval Symposium (or WPNS) is another important forum for furthering maritime security co-operation. Bringing together 18 member and 6 observer Asia Pacific navies, the WPNS has contributed significantly to building capacity and developing interoperability for maritime security co-operation in the region. The frank dialogues at its various seminars and workshops have increased the level of confidence and mutual understanding among its members. Exercises such as the WPNS Multilateral Sea Exercise have allowed many participating navies from diverse backgrounds to gather and operate together out at sea. Regular WPNS Maritime Security Information Exchange Seminars have been conducted to share perspectives, knowledge and experience in the area of maritime security. Under the auspices of the WPNS, the RSN has developed and introduced the use of the Regional Maritime Information eXchange or ReMIX system, a secure Internet-based platform to facilitate real-time info-sharing and collaboration among the operational staff of WPNS navies. So it seems that good progress has been made in maritime cooperation. But we cannot afford to rest on our laurels. The truth is, despite these successes, we are still several steps away from achieving a comprehensive maritime domain awareness in the region—that is, being able to see and sense what is moving on the water. Such comprehensive awareness is vital for building the capacity to deal with more complex maritime security problems, which can involve a sophisticated enemy capable of slipping through the gaps where the jurisdiction of one nation ends and another begins. No single navy can achieve comprehensive 100% awareness alone. Yet the level of information sharing required to reach such a state of awareness will present a paradoxical tension—namely, the issue of 614
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information security. Info-sharing may reveal sensitive sources or capabilities that some partners may need to safeguard or make privy as a matter of national interest and sovereignty. Therefore, any info-sharing system must have inbuilt safeguards, based on mutually-accepted “ground rules”, such that partners can continue to engage one another in full confidence. Recognizing this need to balance maritime security demands with national sensitivities, the RSN is doing its part to facilitate collaborative info-sharing among navies and relevant maritime agencies. With feedback from the operational users of ReMIX, the system has been enhanced to include a regional situation picture, a shipping database, and a sensemaking tool. In fact, only in Jan 08 were operational users from WPNS navies given a preview of the enhanced ReMIX system at the WPNS ReMIX Training Seminar held in Singapore. The inclusion of the shipping database and sense-making elements in the enhanced ReMIX system are particularly salient in today's maritime environment. Since neutral commercial shipping makes up the bulk of maritime traffic and is also particularly vulnerable to becoming targets or instruments of illegal acts, the sharing of white-shipping database information greatly improves overall awareness of the situation at sea and may even help to pre-empt a maritime incident. To this end, the RSN is developing a database system designed to collate and fuse shipping information from open sources, info-sharing partners and other intelligence sources. Called OASIS, or the Open and Analysed Shipping Info-System, it will be capable of displaying both real-time and historical trend data in a common maritime picture. Once it is operational, the RSN will begin sharing this database with like-minded partners. However, without a tool to make sense of the vast volume of information available, one would be just as lost as if there were too little information. Hence sense-making is the other critical component of the info-sharing equation. As part of our efforts to help develop global sensemaking protocols, as well as to gain relevant expertise, Singapore has 615
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participated in three Limited Objective Experiments in collaboration with the US Joint Forces Command. The findings from these experiments will help to enhance the RSN's own Sense-Making, Analysis and Research Tool, or SMART, and complement the OASIS database as well. With the advent of more capable info-sharing systems, there must be complementary growth in the frameworks and facilities that enable closer multilateral cooperation. There are already a number of initiatives, involving both regional and external parties, that pave the way for further collaboration. Since 2002, the SEACAT series of exercises involving the USN and Southeast Asian navies have helped to enhance info-sharing and coordination of maritime security responses. Also, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, or ReCAAP, facilitates the exchange of information on piracy and armed robbery through its Information Sharing Centre based in Singapore. In addition, the Co-operative Maritime Forces Pacific system put forth by the USN during SEACAT and RIMPAC '06 promises muchimproved situational awareness during multilateral operations. In the same vein, and in order to provide a purpose-built regional geographical base for info-sharing and multilateral cooperation, Singapore will establish the Changi Command and Control Centre in 2009. The Changi C2 Centre will house an Information Fusion Centre, or IFC, and a Multinational Operations and Exercises Centre, or MOEC. Using the OASIS and SMART platforms, the IFC will facilitate the consolidation and distribution of operational knowledge shared by partner navies and maritime agencies. The MOEC will serve a complementary purpose as a dedicated base tailored to facilitate multilateral exercises and operations. The Changi C2 Centre represents Singapore's continued commitment to promoting regional security and, together with the support and participation of partners in the region, will serve our shared interests in maritime security.
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CONCLUSION In conclusion, the security and well-being of our countries are linked together more intimately than we could have imagined only a decade ago. The key to dealing with threats to maritime security lies in strong inter-agency cooperation and enhanced international collaboration. The complex and trans-boundary nature of modern maritime security threats also necessitates the sharing of information across national boundaries and requires a high level of interoperability for the effective engagement of threats. Moving ahead, Singapore and the RSN will continue to work together with like-minded countries and navies to strengthen maritime security in the region.
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Combating Piracy and Armed Robbery in Asia: Boosting ReCAAP’s Role1 Lt. Col. Joshua Ho2 Abstract The ReCAAP Information Sharing Centre (ISC) is an international organisation that comprises 14 member countries in the region to combat piracy. Despite its many advantages, the ISC has some weaknesses which should be addressed so that it can be a model for other regions. The Regional Cooperation Agreement on Combating Piracy and Armed Robbery Against Ships in Asia, or ReCAAP, comprises 16 member countries, which includes the ten ASEAN countries, China, Japan, South Korea, Bangladesh, India, and Sri Lanka. ReCAAP called for the setting up of an Information Sharing Centre (ISC) in Singapore and the Agreement has come into force since 4 September 2006. Subsequently the ISC was launched on 29 November in the same year in 1
This article was first published as a commentary at the S. Rajaratnam School of International Studies, Singapore. RSIS Commentaries are intended to provide timely and, where appropriate, policy relevant background and analysis of contemporary developments. The views of the authors are their own and do not represent the official position of the S.Rajaratnam School of International Studies, NTU. These commentaries may be reproduced electronically or in print with prior permission from RSIS. Due recognition must be given to the author or authors and RSIS. Please email:
[email protected] or call 6790 6982 to speak to the Editor RSIS Commentaries, Yang Razali Kassim. 2
Joshua Ho is a Senior Fellow at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University and leads the Maritime Security Programme. He is a serving Naval Officer with 21 years of experience and currently holds the rank of Lieutenant Colonel. He has served in a variety of shore and command appointments before joining RSIS.
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Singapore. The ReCAAP ISC is the first multilateral government-togovernment anti-piracy and armed robbery effort in the region. It has the status of an International Organisation (IO) with local staff and overseas secondees from the member countries. Besides the setting up of the ISC and the secretariat in Singapore, the Agreement allowed for the formation of the Governing Council with one representative per contracting party to oversee the operations of the ISC. The Agreement also called for a focal point per contracting party, which would act as the point of contact for the ISC. ReCAAP ISC is the platform for information exchange with the focal points being linked via the Information Network System (IFN), which is a web-based and secure network. Funding for the ISC comes from voluntary contributions from the contracting parties. Strengths of ReCAAP Being the first regional multilateral government-to-government effort, ReCAAP as an organisation has many strengths. Firstly, the requirement for each contracting party to have a focal point means that contracting parties which may not have a habit of interagency coordination would now have to look at its organisation to deal with armed robbery and piracy. This is because the focal points have several specified roles which include: (1) managing the piracy and armed robbery incidents within its territorial waters; (2) acting as a point of information exchange with the ISC; (3) facilitating its country’s law enforcement investigations; and (4) coordinating surveillance and enforcement for piracy and armed robbery with neighbouring focal points. As the focal points could be the country’s Coast Guard, Marine Police, Navy, Port Authority or Customs (Marine), the ReCAAP has in fact jumpstarted the processes for inter-agency cooperation in its member countries as they would have to look at how the various maritime agencies operate 620
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with each other. Another strength of ReCAAP is in its capacity-building programme. Many a time, maritime organisations within a country, not to mention those between countries, tend to operate in their own selfcontained silos with minimal interaction between the organisations. ReCAAP helps to break down these silos and inculcates a greater awareness between the contracting countries. It achieves this through capacity-building initiatives such as exercises, training workshops and technical assistance programmes that share best practices. Thirdly, ReCAAP is an inclusive organisation. Although piracy and armed robbery may affect governments, the shipping community are largely the ones that bear the brunt of its consequences. As a result, expertise on how to deal with the issue may not reside in the government departments alone, but could well reside in organisations that are outside of government. Recognising that other organisations have a role to play, ReCAAP enters into cooperative arrangements with a variety of organisations that may be interested in sharing information or in conducting capacity-building programmes. These may include governmental, intergovernmental, international, or non-governmental organisations, and research institutes. Some examples of partner organisations include the Asian Shipowners’ Forum (ASF), the Baltic and International Maritime Council (BIMCO), the International Maritime Organisation (IMO) and the International Independent Tanker Owners’ Organisation (INTERTANKO). Significantly, ReCAAP also recognises that knowledge could also reside in countries that are not currently parties to the Agreement. As such, ReCAAP is also open for accession by any state, which paves the way for ReCAAP to grow when more like-minded states decide to join it.
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ReCAAP’s Limitations Although ReCAAP has many strengths, there are also some limitations associated with its organisation and processes. Firstly, as both Malaysia and Indonesia have not ratified the Agreement and are not part of ReCAAP, the effectiveness of ReCAAP could be limited. This is because the major sea lanes in the region -- the Malacca Strait, the Sunda Strait and the Lombok Strait -- lie either partially or wholly within the territorial and archipelagic waters of Indonesia and Malaysia. As many of the incidents of armed robbery occur within Indonesian and Malaysian waters, information from these two countries would contribute greatly to the fight against piracy and armed robbery. To their credit, ReCAAP has been working hard to cover this gap by establishing links at the operational level with the Malaysian Maritime Enforcement Agency as well as its Indonesian equivalent, BAKORKAMLA. Hopefully, information from these two organisations will be forthcoming, as both Indonesia and Malaysia have expressed support for the ReCAAP at the Batam Meeting of the foreign ministers of the three countries in August 2005. Secondly, ReCAAP ISC does not have an operational role at present. This is because it receives information on piracy and armed robbery incidents from the focal points, which necessarily means a delay in reporting. To improve the timeliness of reports, ReCAAP ISC could engage the shipping industry and encourage ships to report directly to it. On receipt of the reports, ReCAAP could then cue the respective operations centres of its member countries that have responsibility for deploying patrol ships on the ground. This would improve the timeliness of reports tremendously and will also speed up the response to incidents. To perform the operations role, ReCAAP ISC would have to set up a small operations centre with the
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necessary communications equipment, and be linked to the respective operations centres of the member countries. Thirdly, besides the threat of armed robbery and piracy, shipping and hub ports also face the threat from maritime terrorism. In fact, many of the measures taken by ships to combat piracy and armed robbery also have the effect of reducing a ship’s vulnerability to maritime terrorists. With a regional network of focal points already established, ReCAAP ISC is also well placed to be the regional coordinator of maritime counterterrorist efforts. ReCAAP ISC can perform this role in very much the same way as it does anti-piracy and anti-armed robbery. It can be through sharing information of actual, attempted or potential maritime terrorist incidents, and building the capacity of regional countries to counter maritime terrorism through the sharing of best practices. ReCAAP’s Potential ReCAAP, as well as its ISC, can be seen as a building block to regional integration as it brings together regional countries to address a common security challenge -- that of piracy and armed robbery. ReCAAP does this through the sharing of information in three ways: the ISC-Focal Point Network; a capacity-building programme by building on contracting parties’ strength to share best practices; and by engaging in cooperative arrangement activities with like-minded organisations to strengthen the focal points’ ability to manage incidents at sea. ReCAAP ISC operates on the principles of respect for the sovereignty of member countries, offering value through effectiveness, and transparency of operations. This facilitates cooperation between the contracting parties. They could well serve as the blueprint for future functional cooperation in areas that are of interest to regional countries. ReCAAP ISC could also serve as the model for other regions that are faced with the scourge of piracy and armed robbery. 623
