Recent Developments in the Law of the Sea And China (Center for Oceans Law and Policy, 10)

RECENT DEVELOPMENTS IN THE LAW OF THE SEA AND CHINA XIAMEN PAPERS Recent Developments in the Law of the Sea and Chin...

Author: Myron H. Nordquist | John Norton Moore | Kuen-chen Fu

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RECENT DEVELOPMENTS IN THE LAW OF THE SEA AND CHINA

XIAMEN PAPERS

Recent Developments in the Law of the Sea and China 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 at the Center’s Twenty-Ninth Annual Conference co-hosted with the Center for Oceans Policy and Law in Xiamen, People’s Republic of China, March 9-12, 2005. Other sponsors for the conference include: Korea Forum on the Law of the Sea, Korea; Law of the Sea Institute, Iceland; Marine Law and Policy Research Center Istanbul, Turkey; National Institute for the South China Sea Studies, China; National Museum Underwater Archeology Center, China, and; Oceanic & Fisheries Bureau of Fujian Province, China.

CENTER FOR OCEANS LAW AND POLICY

RECENT DEVELOPMENTS IN THE LAW OF THE SEA AND CHINA

Edited by Myron H. Nordquist, John Norton Moore and Kuen-chen Fu

MARTINUS NIJHOFF PUBLISHERS LEIDEN/BOSTON

A C.I.P. record for this book is available from the Library of Congress.

The editors and the publisher apologize for the inferior quality reproduction of certain graphic materials in this book. We still included these materials since the information remains useful in spite of the imperfect presentation.

Printed on acid-free paper.

ISBN 90 04 14841 8 © 2006 by Koninklijke Brill NV, Leiden, The Netherlands Koninklijke Brill NV incorporates the imprints Brill Academic Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Academic Publishers 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 and bound in The Netherlands.

CONTENTS

Prefatory Note .............................................................................................................ix Note by the Editors................................................................................................... xiii Welcome Remarks John Norton Moore ..........................................................................................3 Director, Center for Oceans Law and Policy, University of Virginia Kuen-chen Fu ..................................................................................................5 Executive Associate Director, Center for Oceans Policy and Law, Xiamen University Zhu Chong-shi..................................................................................................7 President, Xiamen University Keynote Addresses UNCLOS: Two Decades On..........................................................................11 S. Jayakumar The Basic Position of China on the Settlement of Maritime Disputes Through Negotiations .....................................................................25 Liu Zhenmin Panel I: The United Nations and the Law of the Sea John Norton Moore, Moderator Emerging UN Law of the Sea Issues..............................................................35 Tomas H. Heidar A Review of the 2004 General Assembly Discussions on the Law of the Sea.....................................................................................47 Andrew J. Jacovides (presented by Myron H. Nordquist) Panel II: Integrated Coastal Zone Management Hong Huasheng, Moderator The Regulation of Marine Transportation and Integrated Coastal Management: Two Management Approaches in Need of Integration ..................................65 Aldo Chircop

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Table of Contents Ocean and Coastal Governance The European Approach to Integrated Management: Are There Lessons for the China Seas Region?.............................................85 Ronán Long and Anne Marie O’Hagan Panel III: Oil and Gas Developments and Environmental Protection in the South China Sea Zhu Da-kui, Moderator The Energy Security of China and Oil and Gas Exploitation in the Disputed South China Sea Area.........................................................145 Wu Shicun and Hong Nong A New Model of Joint Development for the South China Sea ....................155 Zou Keyuan Marine Environmental Protection in the South China Sea: An UNCLOS Paradigm ...............................................................................173 Alberto A. Encomienda Panel IV: Regional Fisheries Mary Beth West, Moderator Regional Fisheries Panel Introductory Remarks..........................................183 Mary Beth West Korean Response to Changes of the International Legal Framework for Fisheries in the Northeast Asian Seas .................................187 Park Pae Kuen Regional Co-management of Fisheries Resources in the South China Sea................................................................203 Huang Shuo-lin, Guo Wen-lu and Zhu Zhanhua Regional Fisheries Management in the East China Sea ...............................219 Moritaka Hayashi Panel V: Regional Maritime Enforcement John Norton Moore, Moderator Improving Comprehensive Management and the Efficiency of Law Enforcement at Sea ..................................................241 Xu Baozheng U.S. Maritime Law Enforcement Practices..................................................251 John E. Crowley, Jr. vi

Table of Contents Japan’s Role on Regional Security and Order Maintenance as Public Property Initiative for the Regional Security & Order Coalition.....................................................279 Hideaki Kaneda Panel VI: Global Developments in Marine Science Yuan Dong-xing, Moderator A U.S. Perspective on Global Developments in Marine Science ................................................................293 Barbara Moore The Conflict Between Jurisdiction of Coastal States on MSR in EEZ and Military Survey...........................................................317 Zhang Haiwen Panel VII: Commercial Shipping in the Region Myron H. Nordquist, Moderator Terror at Sea:Detection and Prevention — The New International Ship and Port Facility Security Code and the Amended SOLAS Chapter XI-2......................................................335 Nilüfer Oral Proliferation Security Initiative (PSI): Countering Proliferation by Sea...................................................................351 J. Ashley Roach Preventing & Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) .........425 Brad J. Kieserman Panel VIII: Underwater Cultural Heritage Protection Kuen-chen Fu, Moderator Legal Protection for the Underwater Cultural Heritage: The Immediate Challenge and Methods of Response..................................467 Sarah Dromgoole Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation ................................................483 Zhu Huayou and Ren Huaifeng

vii

Table of Contents International Protection of Underwater Cultural Heritage ...........................491 Robert C. Blumberg Closing Remarks John Norton Moore ....................................................................................................515

viii

Prefatory Note The Twenty-Ninth Annual Conference sponsored by the Center for Oceans Law and Policy of the University of Virginia School of Law was held on the campus of Xiamen University in Xiamen, China from March 9-12, 2005. The local host and primary co-sponsor was the Xiamen University Center for Ocean Policy and Law, China. Additional cosponsors included the Korea Forum on the Law of the Sea, Republic of Korea; Law of the Sea Institute, Iceland; Marine Law and Policy Research Center Istanbul, Turkey; National Institute for the South China Sea Studies, China; National Museum Underwater Archeology Center, China; and the Oceanic and Fisheries Bureau of Fujian Province, China. The title of the Conference was “Recent Developments in the Law of the Sea and China.” The agenda for the Conference consisted of two keynote addresses and eight panels on selected topics related to ocean policy and law in China. The highlight of the meeting was a gala dinner address by H.E. Shanmugam Jayakumar, Deputy Prime Minister and Minister for Law of Singapore. The Minister drew upon his personal experience at the Third UN Conference to comment upon what has transpired since the Convention was adopted 20 years ago and since it entered into force 10 years ago. He noted the balance in the Convention between numerous competing interests but went on to identify new developments and threats that pose new challenges such as piracy and terrorism. The second keynote speaker was by Director-General Liu Zhenmin, Department of Treaty and Law, Ministry of Foreign Affairs, China. Director-General Liu is widely regarded as China’s foremost expert on Law of the Sea. He stressed that China’s policy was to settle maritime disputes with it neighbors in a peaceful manner. Pending final settlement of disputes, the parties should shelve disagreements and cooperate in joint development in the Yellow Sea, East China Sea and South China Sea. The first panel on the United Nations and the Law of the Sea was focused on the issues that arose during the 2004 States Parties meeting held during the General Assembly session. Tomas Heidar represented Iceland during these discussions and he provided an overview of the UN forums dealing with traditional and emerging ocean and Law of the Sea issues. Ambassador Andrew J. Jacovides then reviewed nation by nation ix

Prefatory Note

the remarks made in New York concluding with the observation that the consideration of Law of the Sea was “substantive and full.” Panel II was devoted to integrated coastal zone management. Aldo Chircop, formerly of the World Maritime University in Malmo, examined the relationship between the domestic focus of integrated coastal zone management and the international standard setting required for effective regulation of marine transportation. The second written paper on this panel by Ronan Long and Anne Marie O’Hagen of the National University of Ireland, Galway, extensively details the largely unsuccessful European efforts to integrate coastal zone management as well as the relatively more successful programs in Canada and the United States. Attention in Panel III was on the oil and gas development in the South China Sea environment. Wu Shicun and Hong Nong of the National Institute for South China Sea Studies describe China’s growing energy security problem and the troublesome disputes that require greater cooperation by all states with ocean claims in the South China Sea. Zou Keyuan from the National University of Singapore argues that the complicated situation in the South China Sea calls out for regional cooperation and he proposes a new model for joint development based on a new political will among the claimants. The Secretary-General, Maritime and Ocean Affairs Center, Philippines Department of Foreign Affairs, Alberto A. Encomienda, followed with a recommendation that the littoral States adopt a comprehensive approach to marine environmental protection in the South China Sea. Mary Beth West of the United States Department of State moderated Panel IV on the subject of regional fisheries for which she provided a brief introduction. Park Pae Keun of Pusan National University then presented a written paper on how the Republic of Korea is responding to the changes in the legal regime for fisheries in the Northeast Asian seas as a result of the 1982 Convention. Three representatives of the Shanghai Fisheries University, Huang, Guo and Zhu, then covered regional co-management of fisheries resources in the South China Sea placing emphasis on cooperation among the bordering nations. Moritaka Hayashi from the School of Law of Waseda University in Tokyo explained how China, Japan and the Republic of Korea had shelved efforts to reach agreement on delimitation of their EEZs and commenced discussions on a provisional regime for fisheries. Regional maritime enforcement was the theme of Panel V under Moderator John Norton Moore. Xu Baozheng of the China Marine Police x

Prefatory Note

Academy, Ningbo, China spoke on the multiplicity of players in China that respond to the critical threats from multinational crime and terrorism in its ocean areas. The Judge Advocate General of the United States Coast Guard, John Crowley, then elaborated on the role of his agency in carrying out law enforcement at sea. An instructive appendix to his remarks contains selected international legal instruments that provide the legal basis for the Coast Guard’s police powers in the ocean. Director Hideaki Kaneda, Okazaki Institute, discussed Japan’s role in regional security arrangements and proposed an initiative for greater cooperation among like-minded nations in the region. Panel VI concentrated on global developments in marine science. Barbara Moore, Director, NOAA Undersea Research Program, National Oceanic and Atmospheric Administration, United States commented briefly on earth observations, ocean exploration and ecosystem approaches, including methane hydrates, hydrothermal vents, deep water corals, extreme environments and genetic resources. The Deputy Director General of the China Institute for Marine Affairs, Zhang Haiwen, tackled the controversial topic of the conflict between coastal State jurisdiction over marine scientific research and non-coastal State military surveys. Panel VII was directed to commercial shipping in the region. Nilufer Oral, Assistant Director of the Istanbul Bilgi Marine Law and Policy Research Center, brought participants up to date on the new international ship and port facility code embodied in post September 11, 2001 amendments to the International Convention for the Safety of Life at Sea. J. Ashley Roach, Office of Legal Adviser, United States Department of State, outlined the Proliferation Security Initiative. He also commented article by article upon a draft agreement between the United States and another nation concerning cooperation to suppress the proliferation of weapons of mass destruction, their delivery systems and related materials by sea. The Chief of the Operation Law Group in the United States Coast Guard, Brad J. Kieserman, then covered practical considerations in implementing the draft protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation that is designed to provide a more effective enforcement mechanism. The last group of speakers, Panel VIII, addressed the protection of underwater cultural heritage issues. Sarah Dromgoole of the University of Leicester, United Kingdom, identified means currently available to states to protect underwater cultural heritage prior to the time that the Convention for the Protection of Underwater Cultural Heritage becomes xi

Prefatory Note

an effective global regime. Zhu Huayou and Ren Huaifeng of the National Institute for South China Sea Studies stressed the need for regional cooperation to protect underwater cultural heritage being taken from disputed areas in the South China Sea. Robert C. Blumberg, an attorney in the United States Department of State, was critical of the gaps in the existing international legal regime and recommended several critical amendments to the Conventional regime to make it viable. Professor Moore closed the Conference noting that there was a strong, shared commitment to the Rule of Law in the oceans. Moreover, the speakers had made it clear that there was a strong, shared commitment to cooperative solutions over disputes within the framework of the 1982 Convention on the Law of the Sea.

xii

Note by the Editors China was a timely selection as the site for the 29th Annual Conference of the Center for Oceans Law and Policy. The reason is that China is undergoing a rapid transformation into perhaps the world’s most influential force in globalization. In the realm of Law of the Sea, for instance, China once focused almost exclusively on its status as a coastal State. Now, its leaders realize that freedom of navigation throughout the world’s oceans as well as through and over international straits are indispensable not only for its booming international trade but also for ensuring a steady stream of imported oil necessary to fuel its remarkably growing economy. Xiamen was also a logical choice for the conference on Recent Developments in the Law of the Sea and China. Since the days of Marco Polo, Xiamen’s strategic location on China’s coast has made it a gateway to other strategic ports in Asia and throughout the world. Moreover, Professor Kuen-chen Fu was well known at the University of Virginia School of Law since he earned his S.J.D. there. Professor Fu was successful in garnering enthusiastic support from top academics at Xiamen University and from senior local government officials to host this historic meeting. This allowed conference participants to enjoy a beautiful tropical campus in lovely Fujian Province. Through collective efforts of the Virginia and Xiamen conference organizers other sponsors provided various kinds of support. These included: Korea Forum on the Law of the Sea, Republic of Korea; Law of the Sea Institute, Iceland; Marine Law and Policy Research Center Istanbul, Turkey; National Institute for the South China Sea Studies, China; National Museum Underwater Archaeology Center, China; and Oceanic and Fisheries Bureau of Fujian Province, China. The smallest administrative details were carried out to perfection in Xiamen. As the Director of the Center for Oceans Law and Policy, Professor John Norton Moore, observed, Professor Kuen-chen Fu was the catalyst for the conference and Professor Fu’s cadre of students deserved special recognition for their conscientious assistance. Among those who assisted were Ms. Zhao Ya-juan, Ms. Zhang Xiang-jun, Mr. Zhang Jian, Mr. Wei Rong-hui, Ms. Wang Ray, and Ms. Wang Qing. As in the past, the contributions of the Center for Oceans law and Policy were led by Myron Nordquist while Donna Ganoe did her usual superb job in making xiii

Note by the Editors

administrative arrangements with the assistance of Kay W. Wood and Kathy H. Wood. Ms. Elyse hunter coordinated the preparation of the initial papers for the panels while David M. Edinger of the Virginia Center performed yeoman duties in technical editing the final camera-ready work product. The Editors from the Center for Oceans Law and Policy must emphasize that Xiamen University and Professor Fu were impeccable hosts. The Gala Dinner held in a gorgeous setting of Gulangyu Islet featuring a major substantive Law of the Sea address by Deputy Prime Minister of Singapore set a new standard of excellence for our Center’s annual conferences. The museum quality scrolls presented to key panelists in honor of Professor Fu’s recently deceased father are an example of Xiamen’s hospitality and these will be treasured forever. Finally, all visitors to China had to be impressed with the vitality of its people and the nation’s vibrant economy. We hope that the Xiamen Conference sparks additional cooperation and collaboration in China to promote the Rule of Law in the world’s oceans. THE EDITORS

xiv

INTRODUCTION AND WELCOMING REMARKS ________________________

Welcome Remarks John Norton Moore

President ZHU Chong-shi, Director LIU Zhenmin, Professor Kuenchen FU and distinguished participants: Welcome to the conference on “Recent Developments in the Law of the Sea and China.” The Center for Oceans Law and Policy of the University of Virginia School of Law is honored to be sponsoring this conference with the Center for Ocean Policy and Law of Xiamen University and to be in this beautiful and historic city of Xiamen. The center also greatly appreciates the co-sponsorship of six distinguished oceans centers: the Korean Forum on the Law of the Sea, the Law of the Sea Institute of Iceland, the Marine Law and Policy Research Center Istanbul, the National Institute for South China Sea Studies, the National Museum Underwater Archeology Center, and the Oceanic & Fisheries Bureau of Fujian Province. Almost two decades ago I had the pleasure of delivering a series of academic lectures at People’s University in Beijing on our common interest in the Law of the Sea. And I have cherished the memory, also on that occasion, of discussions about the Law of the Sea with the State Oceanic Administration in Beijing. I also cherish the memory from a decade earlier, of negotiations at the United Nations Conference on the Law of the Sea with the distinguished representative of China to that Conference. The United Nations Convention on the Law of the Sea, which emerged from the conference and which is now in force for 148 nations, is one of the greatest achievements in cooperative international lawmaking in history. That success was no accident. Nations understood at the highest level the crucial importance of the rule of law for the more than two-thirds of planet earth that is oceans. UNCLOS III was no technical legal exercise, it was a political recognition at the highest levels as to how resource, navigation and other oceans issues could be resolved in the common interest. Most simply, the treaty was a ringing endorsement that the oceans must unite the nations of the world, not divide them. Almost a quarter of a

Professor of Law and Director, Center for Oceans Law and Policy, University of Virginia School of Law.

3

John Norton Moore

century later that is indeed the legacy of the Convention. While some issues remain, and inevitably new issues emerge, the 1982 Convention has established a rule of law in the oceans in the common interest of all nations. It has also provided a framework for cooperative resolution of oceans problems, such as protection of the environment and management of fish stocks. This conference is privileged to have drawn together many of the world’s top oceans experts to discuss important oceans issues affecting China. We will, in turn hear eight panels of experts – as well as keynote addresses from the Honorable LIU Zhenmin, the Director of the Department of Treaties and Laws of the Chinese Ministry of Foreign Affairs, and His Excellency Shanmugam Jayakumar, the Deputy Prime Minister of Singapore.

4

Welcome Remarks Kuen-chen Fu *

Before the start of this conference we received several letters of congratulations. Mr. Vice Minister Zhou Wen-zhong of the Ministry of Foreign Affairs said the following in a March 2, 2005, letter to Zhu Chong-shi, President of Xiamen University: Thank you for your letter dated on February the 25th, inviting me to the international conference on ‘Current Developments in the Law of the Sea and China.’ I regret very much that because of my already decided tight schedule, I will not be able to attend. I do believe this academic conference will help promote the research level of the studies in the law of the sea in China, and also help the Xiamen University’s academic endeavors. Heartily I am bringing to you all my best wishes for a very successful conference. The Ministry of Education, Mr. Vice Minister Zhang Xin-sheng, and Madam Vice Minister WU Qi-di, have also sent congratulatory letters. In these letters both expressed their warmest congratulations to the conference and wished the conference participants all the best success. They both expressed their regrets for not being able to join us on this occasion as well. This conference on “Recent Developments in the Law of the Sea and China,” in the spirit of objectivity and rationality, will not only examine the current developments in the United Nations concerning the law of the sea and the global developments in marine science, but also many other important matters concerning the law of the sea and China. These include integrated coastal zone management, oil and gas developments and environmental protection in the South China Sea, regional fisheries, *

Kuen-chen Fu, a.k.a., Lawrence K.C. Fu, Professor of Law, Xiamen University Law School; Executive Associate Director, Xiamen University Center for Oceans Policy and Law; Arbitrator, Taiwan, Xiamen, Wuhan, Russia (Far Eastern Region), and China Maritime Arbitration Commission (CMAC).

5

Kuen-chen Fu

regional maritime law enforcement, commercial shipping in the region, and protection of underwater cultural heritage. In the past twenty-three years, China, as a relatively geographically disadvantaged country, has tried to implement the United Nations Convention on the Law of the Sea as have many other countries in the world. But, obviously, we have found that many provisions in the Convention are ambiguous and confusing. In this conference we might not be able to find all of the final answers to these questions, but I know that the theories and teachings of our distinguished participants will be helpful. They will certainly be read and pondered by the judges in the ICJ and ITLOS, for the participants in this conference are certainly “the most prominent publicists of the various nations,” as provided for in the Statutes of ICJ. On behalf of the Xiamen University Center for Oceans Policy and Law, the Xiamen University Law School, and the College of Oceanography and Environmental Science, I want thank you very much for your enthusiastic attendance and, again, welcome you to Xiamen.

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Welcome Remarks Zhu Chong-shi *

On the grand occasion of the commencement of this conference on “Recent Developments in the Law of the Sea and China” on the picturesque campus of Xiamen University, which is backed by mountains and faces the sea, I have the pleasure of extending, on behalf of Xiamen University, our warmest welcome to all distinguished leaders, experts, and scholars who have traveled from all over the world to be with us. Our special thanks also goes to Professor John Norton Moore, Director of the Center for Oceans Law and Policy of the Virginia University School of Law, who has made this conference a reality with his unwavering devotion. About 700 years ago, Marco Polo, an Italian traveler, started his great journey from Quanzhou, a city only 100 km away from Xiamen. He introduced mysterious Oriental culture to Western societies. This is of special significance to our gathering. History indicates that communication is of vital importance to the progress of mankind. Thus, I am very pleased that this conference will provide a great opportunity for an exchange of academic experience as well as friendship. China is a country with a long coastline. All worldwide problems related to the sea also face China. Protection of the ocean environment, fishing, exploitation of oil and gas, and ocean shipping are all closely bound with our way of life. As a country with a long history, many of China’s ancient boats and cargos are still lying in the deep seabed around the world. We have long focused on the protection of China’s underwater cultural heritage, which I am happy to see is a topic included in this conference. We welcome and appreciate advice on this issue from all of *

President, Xiamen University.

7

Zhu Chong-shi

the experts in attendance at this conference. This year marks the 600th anniversary of Zhenghe’s sea travel to the Atlantic. Zhenghe was China’s great navigator during the Ming Dynasty. The sea has provided an indispensable platform for human communication since ancient times. In today’s shrinking world, it is playing an even more important role in promoting intercultural communications in all walks of life, making us more open-minded with one another and allowing friendships to form. I have had the pleasure of visiting a number of universities around the world. I have to say that universities so closely linked with the ocean are rare. However, Xiamen University is among these rare universities. Xiamen University, known as the “Strength of the South,” was founded on April 6, 1921, by Mr. Tan Ka-kee, the famous patriotic overseas Chinese leader. In 84 years, Xiamen University has developed into one of the most prestigious universities in China, with an ambitious goal of making itself a high-level research university well known both at home and abroad. Since its first day, Xiamen University has emphasized the subject of ocean study, which has become a featured discipline of uniqueness. The Center for Oceans Policy and Law of Xiamen University originated from Xiamen University Law of the Sea Center in May 2003. The Center, combining the interdisciplinary study of ocean sciences and law, has achieved outstanding results. Promoting international academic cooperation and communication is Xiamen University’s fine tradition. I believe that this conference provides a precious opportunity for us to learn from one another and help Xiamen University to bring its research on ocean sciences to a higher level. In closing, I would like to remind our dear friends to enjoy our wonderful island city and beautiful campus, taste our food and feel the hospitality of the Xiamen people. Thank you.

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KEYNOTE ADDRESSES ______________________

UNCLOS: Two Decades On Keynote Speaker S. Jayakumar *

LOOKING BACK AT UNCLOS 1982 UNCLOS is the most comprehensive and unified codification of the Law of the Sea. It broke important new ground in several of the following areas: x

It promulgated the Exclusive Economic Zone (EEZ) regime, which reflected the interests of coastal States for jurisdiction over resources in the maritime areas off their coasts.

x

It established transit passage through straits used for international navigation as well as archipelagic sea-lanes passage, reflecting the interests of the international community that rights of navigation be unimpeded.

x

It laid down the regime for exploitation of the resources of the deep seabed.

x

It created important dispute mechanisms, including ITLOS.

x

The Convention entered into force in 1994, and as of January 31, 2005, 148 states were parties.

resolution

regimes

and

UNCLOS did not come about as a result of a clear, predetermined plan to redefine and modernize the Law of the Sea. What sparked the move for UNCLOS was a modest but important project in the UN General Assembly to prevent a mad scramble among nations for the rich mineral and other resources in the deep seabed, beyond national limits. These *

Deputy Prime Minister and Minister for Law, Singapore. 11

S. Jayakumar

resources were declared to be the “common heritage of mankind,” and a UN Seabed Committee was established to work out the rules for management of the deep seabed area. However, it became clear that it was neither practical nor politically acceptable to discuss the area beyond national limits without international consensus on the definition of permissible limits. This happened at a time when the old Law of the Sea was breaking down as a result of conflicting claims by coastal States regarding the breadth of their territorial seas, fishery zones, continental shelves, etc. For example, there were clashes at sea, including a “cod war” between Iceland and the United Kingdom. This led to skilful diplomacy and lobbying, especially by countries with long coastlines, urging for a comprehensive reform of the Law of the Sea to legitimise their vested interests in extended maritime jurisdiction. Before long, deep seabed issues were relegated to just one component of a much wider, comprehensive review of the entire range of Law of the Sea issues. OCEANS LAW AND POLICY INVOLVE RECONCILIATION OF COMPETING CLAIMS AND INTERESTS

Negotiations in UNCLOS were complicated, difficult and protracted because there were many competing national interests and interest groups. Professor Tommy Koh and I have written elsewhere the following 1 : The politics of UNCLOS III generated the emergence of new alliances and groupings. It is true that the traditional groups operating in the United Nations, such as the regional groups, also existed and operated in the Conference. But on substantive matters they were not the dominant groups at the Conference. Instead, interest groups emerged which were unique to the Conference and were very influential in the negotiations. They were unique because they cut across geographical ties, the traditional division of developed versus developing country, and even ideological ties. Some of these new special interest groups that emerged were:

x The coastal States group. 12

UNCLOS: Two Decades On

x The group of land-locked and geographically x x x x x x x

x x x x

disadvantaged states (LL/GDS). The territorialist group. The group of straits States. The group of archipelagic States. The broad-shelf States or margineers. The Oceania group. The group of EEC countries. The group favouring the median line (equidistance) principle as the method of delimitation of economic zones or continental shelves between states with opposite or adjacent coasts. The group favouring the equitable principles method for delimitation of economic zones or continental shelves between states with opposite or adjacent coasts. The group of land-based producers. The group of five comprising the United States, the Union of Soviet Socialist Republics, United Kingdom, France and Japan. The coordinating group of five comprising the United States, United Kingdom, France, Federal Republic of Germany and Japan.

Apart from these special interest groups, there also emerged informal private negotiating groups whose membership cut across the various special interests. These informal groups attempted to contribute to the process of making compromises. UNCLOS 20 YEARS ON Over two decades have passed since the Convention was adopted, and over a decade has passed since it entered into force. The Convention continues to serve us well today, however, new issues and concerns require us to examine whether the legal regime is sufficiently flexible to permit the international community to respond to these new challenges. Those of us who were closely involved in the negotiations are now an 13

S. Jayakumar

“endangered species!” But as one of them, I recall that UNCLOS had to balance numerous competing interests. We had to strike a balance, for example, between the interests of coastal States in exercising sovereignty and jurisdiction over their territorial seas with the equally important interests of other states in freedom of navigation. These old tensions still exist and will not disappear. However, they are being tested by changes in the interests of the international community due to advances in technology and shifts in the geopolitical environment. In this regard, we should note two developments: x

The sheer volume of international shipping has increased dramatically:

x In 1980, global container volume totalled 34.8 million TEUs, while the corresponding figure for 2003 was 274.4 million TEUs. This represented an eight-fold increase in a period of 23 years. 2

x In Singapore alone, there was an even more dramatic 19fold increase over the same period. We handled only 1.0 million TEUs in 1980, but container volumes at our port in 2003 reached 18.4 million TEUs. In 2004, our port handled 21.3 million TEUs. 3 x

There are new threats and concerns after 9/11:

x The threat of terrorism and recourse by terrorists to maritime space for their terrorist acts.

x The risk of proliferation of WMD through maritime transportation.

x Security of Sea Lanes of Communication (SLOC), (eg, Straits of Malacca) has become more important with the growing demand for oil and other energy resources.

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In addition, there have been other recent developments posing new challenges to the international community. I list among them the use of vessels for large-scale trafficking in people, as well as oil spills, such as the one off the coast of Spain involving the Prestige, which has revived concerns about international policy and regulation of older, single-hulled tankers. THE OCEANS IN SOUTHEAST ASIA AND ASIA Nearly all of the interests and concerns mentioned earlier as features in the UNCLOS negotiating process, as well as the more recent challenges, are also present in the Asian region. In our region, we have: x x x x x x

States with extensive coastlines; Landlocked States; Archipelagic States; States bordering straits used for international navigation; Geographically disadvantaged States; and Critical sea-lanes, the most important being the Straits of Malacca and the Straits of Singapore.

THE IMPORTANCE OF THE STRAITS OF MALACCA AND STRAITS OF SINGAPORE The maritime space in Southeast Asia, East Asia and the Pacific is important not only to the countries in the region, but also to the international community. Many shipping lanes and trade routes criss-cross these waters. They connect the South China Sea, the Indian Ocean and the countries bordering them to Europe, the Americas and the Middle East. Consider the Straits of Malacca and Straits of Singapore. About one quarter of international commerce and half of the world’s oil pass through the Malacca and Singapore Straits. Some 50,000 ships travel through the two Straits every year. Clearly, anything that jeopardizes unimpeded and safe navigation in these vital sea lanes will have serious economic consequences not only for coastal States but for the commerce of many countries and indeed the global trading system. What are the threats that we are particularly concerned about? One is piracy. The other is international terrorism. 15

S. Jayakumar

PIRACY Piracy has always been a source of concern, and incidences of piracy remain common around the world. The International Maritime Bureau (IMB) reports that there were 325 cases in 2004 compared with 90 cases a decade ago - a tripling of the number of piracy incidents. A third of these occurred in waters around the region. Our concern is not just the increase in absolute numbers, but in the nature of the incidents. Physical violence and the use of firearms appear to be the norm in recent cases of piracy. In 1994 there were no fatalities, but by 2004 pirates had caused 30 deaths at sea. In 1994, there were seventeen instances where pirates used firearms. In 2004 there were 87 such instances. Hostages taken by pirates increased more than ten-fold from 11 in 1994 to 148 in 2004. Kidnapping of crew for ransom and the hijacking of vulnerable tugs and barges for their valuable cargo suggest that organised elements are creeping into what was previously the domain of opportunistic thuggery. Today, the threats to maritime safety cannot be seen as merely traditional “skull and bones” piracy – rather, the threats have become more sophisticated. Piracy has become a high-tech international enterprise. TERRORISM: TERRORIST ATTACKS AGAINST SEAGOING VESSELS IN OUR REGION ARE NOT HYPOTHETICAL Let me now turn to terrorism in relation to maritime security. In an October 7, 2004, note from the International Maritime Organisation (IMO) Secretary-General, Efthimios Mitropoulos, on Protection of Vital Shipping Lanes at the Council’s 93rd Session, said of the Malacca Straits: Given the nature of and volume of trade passing through the Straits, the Straits are considered by many to be a prime target for terrorists intending to disrupt international commerce and a strategically important shipping lane, and there have been indications that that will be the case. In March 2005, speaking at the ASEAN Regional Forum Conference on Regional Cooperation in Maritime Security in Singapore, Mr. Mitropoulos said: 16


[The] overall cost of a major terrorist attack on shipping in a strategic location would likely be measured in the tens of billions of dollars. There are just a handful of such locations in the world and it does not take a great strategic mind to understand ... that the Straits of Malacca and Singapore are amongst them. Singapore has experienced directly the threat to maritime security posed by terrorists. In November 2001, some two months after 9/11, we uncovered and arrested a terrorist group in Singapore known as the Jemaah Islamiyah. Members of the group had been planning to launch terrorist attacks in or around Singapore. The following is a chilling account from the White Paper published by the government of Singapore on the “Jemaah Islamiyah Arrests and the Threat of Terrorism”: A fairly well developed plan by Fiah Ayub was an attack against U.S. naval vessels off Changi and Pulau Tekong. One of the items found in Fiah Ayub leader Khalim’s possession was a topographical map with markings indicative of targeting and operational planning. Analysis of the markings indicated that detailed planning had been made for a sea-borne bomb attack using a small vessel against U.S. ships travelling eastwards from Sembawang Wharf via Pulau Tekong. The markings identified a strategic “kill” zone where the channel was narrowest and where the ship would have had no room to avoid a collision with a suicide vessel. It also took advantage of the geography of the areas to hide the attack vessel from radar and visual detection until the very last minute. Investigation showed that the JI members had been exploring such an attack and had monitored the route and patrol schedule of the Police Coast Guard in the area from a location across the Straits in Johor. JI members also revealed that they observed the naval vessels at Sembawang Wharf from a restaurant in Johor across the Straits. Apparently, these plans which were made sometime from around the mid-1990s were not pursued as the Singapore JI members lacked the operational capability to mount such an attack. As in the case of the other significant plans, the Singapore JI members saw their role as supportive of actions to be mounted by foreign 17

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terrorists. The Singaporeans provided the “leg-work” while the foreign elements would mount the actual attack. In early 2001, these plans were re-visited when two unidentified Middle-Easterners approached Faiz for information on US military vessels in Singapore. Faiz then instructed members of another operations cell, Fiah Musa, to survey both Sembawang Wharf and Changi Naval Base. They video-recorded what they observed and a copy of the video was later given to the MiddleEasterners in Kuala Lumpur. 4 I should also mention an incident in March 2003 when ten armed men hijacked a tanker and steered the vessel for about half an hour in the Malacca Straits. They neither plundered nor harmed the crew. Security analysts vary in their assessments on the likelihood of terrorists using a “floating bomb” to disrupt global trade. In my opinion, it does not matter who is right. What is important is that awareness of such a threat has been raised, and efforts are being made to combat this possibility. It has provided a new urgency for greater international cooperation and responses by the international community to more effectively deal with the twin threats of piracy and maritime terrorism. Two challenges arising from these threats are: x

The need to ensure that the legal regime under UNCLOS and other international law instruments remains adequate to meet these new challenges; and

x

Governments of the coastal States immediately concerned must have the political resolve and commitment to take the necessary precautionary measures, in collaboration with other stakeholders.

Are Legal Norms in UNCLOS and Other International Law Instruments Adequate? It is important that the way we interpret and apply the legal regime in UNCLOS enables the international community to meet these new challenges and developments. The emergence of new challenges will, no doubt, test the limits of existing international norms. In addition, new 18


balances have to be struck in reconciling the interests of individual littoral States asserting sovereignty and jurisdiction with the broader interests of the international community to ensure international maritime security and to combat international terrorism. This exercise will require new emphasis on the concept of cooperation. The notion of cooperation in matters affecting the interests of two or more states already finds expression in many parts of UNCLOS. This cuts across many areas, from cooperation in navigational safety in straits used for international navigation embodied in Article 43, to marine scientific research and the protection of the marine environment. In particular, Article 100 of UNCLOS makes it a duty for all states to cooperate in the repression of piracy on the high seas. Indeed, cooperation between nations is one of the main threads running through UNCLOS. Whether on the high seas or territorial waters, the scourges of piracy and maritime terrorism are threats to navigational safety, to the safety of lives at sea, and to the very lifelines of global trade. Maritime security is therefore a matter of concern to the international community. It calls for a similar level of cooperation among all stakeholders. We can learn from the experience of the IMO. The IMO was originally established with the intention of addressing maritime navigational and environmental issues. However, it has ably risen to more recent challenges of international maritime security with its promulgation of the International Shipping and Port Facilities Security (ISPS) Code. It has evolved, and thus continues to be relevant to the evolving world and its new challenges. Existing frameworks can therefore be robust enough to actively adapt and stay relevant and applicable today, as we bear in mind what the spirit and substance underlying those frameworks are. This requires a combination of legal and political resolve. Actions Taken by Countries in the Region and Other Stakeholder Nations to Deal with Terrorism and Piracy While respecting the fundamental territorial interests and sovereignty of coastal States, there is clearly a need for bilateral, regional and international cooperation to better manage the threats and concerns I have highlighted. In this regard, Singapore, her fellow littoral States in the Straits of Malacca and Singapore, and other stakeholders including international organisations, have taken several initiatives, which include the following: 19

S. Jayakumar

x Coordinated patrols among the navies of Indonesia, Malaysia and Singapore; x Bilateral cooperation in combating trans-border crime; x Maritime security workshops and confidence-building measures under the aegis of the ASEAN Regional Forum (ARF), the most recent being the ARF Conference on Regional Cooperation in Maritime Security, hosted by Singapore from March 2-4, 2005; and x An IMO-sponsored conference on safety, security and environmental protection of the Straits of Malacca and Singapore, to be held in Jakarta later in 2005. I should also mention the Regional Cooperation Agreement on AntiPiracy in Asia (ReCAAP), adopted November 11, 2004, the key features of which are as follows:

x It enhances cooperation among ASEAN+3 countries, India, Sri x x x

x

Lanka and Bangladesh, to combat piracy. It provides for information exchange, cooperative enforcement action, capacity building and other cooperative arrangements. It supplements UNCLOS by providing a mechanism to enhance the protection and safety of ships. A key pillar of ReCAAP is the Information Sharing Centre (ISC). This is a centre for piracy reporting, studies of piracy incidents, issuance of piracy alerts and information sharing among ReCAAP members. Hosted by Singapore, the ISC will be an international organisation. It aims to facilitate communications and information sharing among national focal points of member countries, as well as to improve the quality of statistics and reports on piracy in the region. It will also serve to enhance cooperation among ReCAAP member countries on anti-piracy efforts.

Apart from formal cooperative frameworks like ReCAAP, individual user States are taking an active interest in the security of the Straits of Malacca and Singapore. One good example of this is China. At a recent 20


Conference on the Straits of Malacca in Malaysia, China noted the following: The sea lanes of communication and sea-borne commerce have become increasingly important for China. 90% of China's trade pass through regional waters. More than 80% of China's energy imports pass through the Straits of Malacca. China has a vital stake in keeping the Straits secure and free. 5 China has joined other stakeholders such as the United States and Japan in active engagement in regional and international maritime cooperation, including an MOU with ASEAN to cooperate on nontraditional security issues (2004), and has shown strong support for maritime security cooperation within the ARF framework. This bodes well for the international cooperation that will be needed if we are to ensure safety and security in not just the Malacca Straits, but in all straits used for international navigation. Let me conclude by recalling that no single State has the resources to deal effectively with the threats of piracy and terrorism alone. In regional waterways used for international navigation, the primary responsibility for safety and security lies with bordering coastal States, but they are obviously not the only stakeholders. Many other users have an interest in keeping such waterways secure, and it is, therefore, also the responsibility of the international community to play a part in making this so. Speaking on another occasion some nine years ago in 1996, I said: Preserving the Straits of Malacca and Singapore is an international responsibility and cannot be just that of the littoral States alone. The two Straits are not mere geographic points. They are also geo-political and geo-economic chokepoints that allow a great flow of trade between different regions and oceans. The lifelines and prospects for economic growth of both littoral States and non-littoral trading countries are intertwined in the two Straits. It is in the interests of all countries to help preserve and protect the Straits of Malacca and Singapore. 6 I believe that what I said almost a decade ago still holds true today. The various new challenges, not just in areas such as combating piracy and terrorism, but also the recent unprecedented international 21

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humanitarian and relief efforts for the tsunami tragedy of December 2004, underscore the urgency of the need for international cooperation in the management of our oceans and seas. In this regard, UNCLOS, in establishing a legal framework for cooperation, has enabled states to cooperate in combating new dangers.

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Notes 1

Tommy T. B. Koh and Shanmugam Jayakumar, “The Negotiating Process of the Third United Nations Conference on the Law of the Sea” in Vol. 1, United Nations Convention of the law of the Sea, 1982, A Commentary p. 54, (Center for Oceans Law and Policy, University of Virginia). 2 Statistics from Containerisation International website: <www.ci-online.co.uk>. 3 Statistics from Maritime and Port Authority of Singapore. 4 Command Paper 2, January 7, 2003, presented to Parliament of Singapore. 5 Zhao Jianhua, Counsellor, Asian Department, Ministry of Foreign Affairs of the People's Republic of China, Paper entitled “The Straits of Malacca and Challenges Ahead: China's Perspective,” presented at Conference on “The Straits of Malacca: Building a Comprehensive Security Environment,” October 11-13, 2004, Kuala Lumpur. 6 Professor S. Jayakumar, in keynote address entitled “Straits of Malacca and Singapore: Meeting the Challenges Ahead,” presented at IPS-IMO Conference on “Navigational Safety and Control of Pollution in the Straits of Malacca and Singapore: Modalities of International Co-operation,” September 2-3, 1996, Singapore. Paper also published in (1998) S'pore Journal of Int'l & Comparative Law vol.2 pp.427-432.

23

The Basic Position of China on the Settlement of Maritime Disputes Through Negotiations Keynote Speaker Liu Zhenmin *

It gives me great honor to deliver the keynote speech at this luncheon. I’d like to take this opportunity to share with you some elements of China’s position on the settlement of maritime disputes through negotiations. China is a coastal State with a coastline of more than 18,000 kilometers and is adjacent or opposite to eight neighboring countries surrounding the Yellow Sea, the East China Sea and the South China Sea. The eight countries are the Democratic People’s Republic of Korea (DPRK), the Republic of Korea (ROK), Japan, Vietnam, the Philippines, Malaysia, Brunei and Indonesia. China and Japan have disputes on the sovereignty over the Diaoyu Islands. China, Malaysia, the Philippines and Vietnam have disputes on the sovereignty over the Nansha Islands. Along with the establishment of the new international order for the seas and oceans through the 1982 UN Convention on the Law of the Sea (UNCLOS), overlapping claims over the EEZ and continental shelf between China and these eight countries have emerged. In recent years, while making great efforts to safeguard its maritime rights and interests, the Chinese government has committed itself to resolving, with its maritime neighbors, the disputes over the islands as well as disputes over the delimitation of other sea areas. Now I’d like to elaborate on three points.

*

Director-General, Department of Treaty and Law, MFA, China. 25

Liu Zhenmin

CHINA’S EFFORTS IN ESTABLISHING A LEGAL REGIME FOR SEA AREAS WITHIN ITS NATIONAL JURISDICTION When the People’s Republic of China was founded in 1949, the Chinese government inherited from the former government a territorial sea regime of 3 nautical miles. In 1958, due to the need to safeguard its security in coastal areas and with the encouragement of the first United Nations Conference on the Law of the Sea, the Chinese government enacted a declaration on its territorial sea, announcing that China would adopt a territorial sea regime of 12 nautical miles. After UNCLOS was adopted in 1982, China signed the Convention and successively promulgated a number of laws, including the Law on the Protection of Marine Environment, the Law on Fisheries and the Law on Maritime Safety, starting the process of extending its maritime jurisdiction beyond the territorial sea without indication of specific limits. In 1992, in order to meet the dawn of the entry into force of UNCLOS, China promulgated the Law on the Territorial Sea and the Contiguous Zone, determining that China would establish a territorial sea regime of 12 nautical miles and a contiguous zone regime of 12 nautical miles. With UNCLOS coming into force in 1994, China gave its ratification in 1996 and announced the baselines of part of its territorial sea adjacent to the mainland and those of the territorial sea adjacent to the Xisha Islands. In 1998, China promulgated the Law on the EEZ and the Continental Shelf, establishing the relevant legal regimes. At the same time, in order to fulfill the relevant provisions of the Convention, the Chinese government has amended a number of laws, including the Law on the Protection of Marine Environment and the Law on Fisheries, and has promulgated the Law on the Utilization of Sea Areas, the Regulation on the Management of the Foreign-related Marine Scientific Research and the Regulation on the Management of Marine Natural Reserves. The enactment and implementation of these laws and regulations have contributed significantly to China’s efforts in establishing the legal regime for the sea areas within its national jurisdiction in accordance with UNCLOS. These have also played a very important role in promoting the exploration and 26

The Basic Position of China on the Settlement of Maritime Disputes

exploitation of the seas and the protection of the marine environment and its resources. THE BASIC POLICY OF CHINA IN SOLVING THE DISPUTES OVER THE DIAOYU ISLANDS AND THE NANSHA ISLANDS THROUGH NEGOTIATIONS The Chinese government has always stood for negotiated settlement of international disputes through peaceful means. In this spirit, China has solved, through bilateral negotiations, questions regarding territory and land boundaries with 12 neighboring countries out of its 14 bordering neighbors. This position also applies to the Diaoyu Islands and the Nansha Islands. The Chinese government has always maintained that the Diaoyu Islands and their adjacent islands have been part of the Chinese territory since ancient times. At the same time, the Chinese government advocates the settlement of disputes with Japan over the Diaoyu Islands through negotiations. Pending settlement of the dispute, the two sides may shelve the dispute and go in for joint development. The Chinese government has also maintained that China has indisputable sovereignty over the Nansha Islands and their adjacent waters. However, China is committed to working with the countries concerned for proper settlement of the disputes through peaceful negotiations in accordance with international law. This was explicitly written into the Joint Statement issued at the China-ASEAN informal summit in 1997. The Chinese government has put forward the proposition of “shelving disputes and going in for joint development.” China is ready to shelve disputes and to conduct cooperation with the countries concerned pending dispute settlement. This is not only what China stands for but also what China does. Whether during dialogues with ASEAN or in the cooperation between China and Malaysia, the Philippines, and Vietnam, respectively, China has always engaged in the promotion of joint development.

27

Liu Zhenmin

CHINA’S POLICY AND PRACTICE IN SOLVING THE ISSUE OF MARITIME DELIMITATION THROUGH NEGOTIATIONS Regarding the overlapping claims of the sea areas between China and its eight neighboring countries, the Chinese government has always maintained that said disputes should be settled through negotiations in accordance with the equitable principle. If the disputes cannot be settled for the time being, the parties concerned may shelve the disputes and commence joint development. In accordance with these principles, China has been carrying out consultations or negotiations on matters concerning the Law of the Sea and maritime delimitation with its neighboring countries since 1996. Some positive progress has been achieved in this regard. Through many rounds of negotiations, China and Vietnam signed the Agreement on the Delimitation of the Beibu Gulf and the Agreement on Fisheries Cooperation in Beijing on December 25, 2000. The two agreements entered into force simultaneously on June 30, 2004. The Beibu Gulf is a semi-closed sea surrounded by the coastlines of China and Vietnam and has a total area of 128,000 square kilometers. While realizing the delimitation of the territorial seas, EEZs and continental shelves in the Beibu Gulf, China and Vietnam also agreed on the joint conservation and management of fishery resources in the Common Fishery Zone within the Beibu Gulf by signing the Agreement on Fisheries Cooperation. The two parties also agreed to cooperate, through friendly consultations, in the exploitation of any unknown reserves of petroleum and natural gas or other mineral resources that might be deposited as a single structure across the delimitation line. The significance of the Agreement on the Delimitation of the Beibu Gulf is that it has established the first line of maritime delimitation between China and its neighboring countries. This proves that the signing of the Agreement was successful for both China and Vietnam in accommodating both countries to the new order of the Law of the Sea by equitably solving maritime delimitation problems. It is also a manifestation of China’s position that it is willing to solve maritime 28


delimitation problems with all of its neighbors through negotiations. Furthermore, the Agreement provides a good example for China to follow in peacefully settling maritime disputes in the future. In order to solve the issues concerning the Yellow Sea and the East China Sea, China has established bilateral consultation mechanisms on issues concerning the Law of the Sea with the Democratic People’s Republic of Korea (DPRK), the Republic of Korea (ROK) and Japan, respectively. Consultations have been held since 1996 on issues of maritime delimitation and other related issues on the Law of the Sea. As the preliminary achievement of the consultations, China and Japan signed the Fisheries Agreement in 1997, which entered into force in 2000. And in 2000, China and the Republic of Korea signed the Fisheries Agreement, which entered into force in 2001. These two fisheries agreements are provisional arrangements between the parties concerned, are prior to the maritime delimitation resolution, and have played an important role in maintaining the order of fishing activities in the Yellow Sea and the East China Sea. China wishes to solve issues of maritime delimitation with the Democratic People’s Republic of Korea, the Republic of Korea and Japan through ongoing negotiations. As for the difficult issues that could not be resolved during the delimitation negotiation, China proposes to shelve the disputes and to go in for joint development. On issues concerning the South China Sea, the Chinese government attaches great importance to dialogue and cooperation with the countries surrounding the South China Sea. China advocates the enhancement of cooperation among the parties concerned in ensuring freedom of navigation in the South China Sea, promoting maritime cooperation and facilitating joint development. For these purposes, China has engaged in the following activities: Firstly, China has been actively engaged in the Workshop on Managing Potential Conflicts in the South China Sea (SCS) hosted by Indonesia since 1991. The Workshop has been held annually for last 14 years, providing the parties surrounding the South China Sea with an important forum, though informal and non-official, for promoting exchange of views, cooperation and enhancing mutual trust. China has 29

Liu Zhenmin

sent experts to participate in the Workshop process and has hosted several meetings of the relevant Working Groups and Expert Groups. China also made financial contributions to the Workshop and has played an important role in ensuring the smooth progress of the Workshop Process. Secondly, with regard to cooperation at the regional level, China signed with ASEAN the Declaration on the Conduct of Parties in the South China Sea (DOC) in 2002. At a Senior Officials Meeting between China and the ASEAN on the implementation of the DOC held in 2004, it was decided that the Working Group on the implementation of the DOC would be established to study the concrete projects for future cooperation. Thirdly, with regard to cooperation at the bilateral level, China has maintained consultations on all issues concerning the South China Sea with Malaysia, the Philippines and Vietnam. China and the Philippines have held talks in the framework of a Working Group on Confidence-Building at Sea. China and Vietnam have held talks within the Working Group on Maritime Issues. China is also carrying out consultations with the parties concerned on joint development of the resources in South China Sea. The Chinese government believes that, pending an agreement on the settlement of the South China Sea disputes through negotiations, “shelving the disputes and going in for joint development” is the best way, for the time being, to deal with the South China Sea disputes and to ensure the stability in the area. Fourthly, there has been very good news that a Tripartite Agreement on the Joint Seismic Undertaking in the Agreed Area in the South China Sea has been initialed in Hanoi among three oil corporations from China, the Philippines and Vietnam. This would be the first project aimed at joint development among the parties in the South China Sea region and would set a good example for other cooperative projects. CONCLUSION In conclusion, I would like to reiterate that it is China’s consistent policy to peacefully settle maritime disputes with its neighbors. We hope to continue the dialogues and consultations with all of our neighbors and 30


will make every effort to solve the maritime disputes through negotiations. It is our view that each party concerned should adopt a restrained attitude in case a conflict occurs. Pending the settlement of the disputes, the parties concerned should strive to make appropriate provisional arrangements, shelving disputes and carrying out cooperation so as to jointly safeguard the peace and stability in areas of the Yellow Sea, the East China Sea and the South China Sea. Let’s all work for that purpose.

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PANEL I: THE UNITED NATIONS AND THE LAW OF THE SEA ___________________________

Emerging UN Law of the Sea Issues Tomas H. Heidar

INTRODUCTION I was approached by a law student in Reykjavík, Iceland, who is currently selecting a specialized field of law for further study. He told me he was quite interested in the Law of the Sea, but asked me whether or not it was a stagnant area of law and whether he should perhaps choose the fashionable European law or international human rights law instead. I replied that, in my view, the Law of the Sea was still alive and kicking, and as Legal Adviser and practitioner in various meetings at the United Nations, I could indeed confirm that more and more attention is given, and more and more time devoted, to the oceans and the Law of the Sea at the United Nations. I shall attempt to identify some of the emerging Law of the Sea issues and trends at the United Nations and simultaneously give a brief overview of the various UN fora dealing with oceans and the Law of the Sea. MEETING OF STATES PARTIES TO THE UN CONVENTION ON THE LAW OF THE SEA (SPLOS) As you are all aware, not least those of you that actually took part in the Third UN Conference on the Law of the Sea – and that includes my two co-panelists and dear friends, John Norton Moore and Myron Nordquist – the Law of the Sea Convention is without a doubt one of the biggest achievements in the history of the United Nations. It is the first and only comprehensive treaty in this field and covers in principle, all uses of the oceans and the seas, as well as their superjacent air space and subjacent seabed and subsoil. The Convention thus provides the legal framework for all deliberations on the oceans and the Law of the Sea. Keep in mind that the conclusions of the Third Conference were regarded as a package, individual States prevailing in some areas but having to

Legal Adviser, Ministry for Foreign Affairs of Iceland, and Director of the Law of the Sea Institute of Iceland. The views expressed in this paper are those of the presenter and do not necessarily reflect the views of the Ministry for Foreign Affairs of Iceland. 35

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compromise on others. Therefore, it is imperative that the integrity of the Convention is preserved and issues that were settled upon at the Conference not be reopened. The Law of the Sea Convention is gradually reaching the goal of universal participation. The States Parties to the Convention are currently 148, the most recent additions being Denmark, Latvia and Burkina Faso. Unlike many other international agreements, the Law of the Sea Convention attributes only a limited role to the Meeting of States Parties.1 According to Article 319, paragraph 2 (e), the Secretary-General shall “convene necessary meetings of States Parties in accordance with this Convention.” This language suggests that it is intended that the Meeting of States Parties only concern itself with the tasks explicitly attributed to it in the Convention. The Convention explicitly accords only a role to the Meeting of States Parties with respect to administrative and financial matters. This concerns the election of the judges of the International Tribunal for the Law of the Sea and the members of the Commission on the Limits of the Continental Shelf, as well as financial arrangements with respect to the Tribunal. The Meetings of States Parties, which have been held annually in recent years, have, in practice, focused on issues related to the Tribunal and the Commission and have avoided expanding their agendas to address wider Law of the Sea related issues. As I will elaborate on in a moment, the UN General Assembly has, since the entry into force of the Law of the Convention in 1994, undertaken an annual review and evaluation of the implementation of the Convention and other developments related to oceans and the Law of the Sea. In this way, the General Assembly has taken a role, which under many other treaties would be fulfilled by a conference of the parties. This has been possible because the Law of the Sea Convention did not assign such a role to the Meeting of States Parties. According to Article 319, paragraph 2 (a), of the Convention, the Secretary-General shall “report to all States Parties, the [International Seabed] Authority and competent international organizations on issues of a general nature [that have arisen] with respect to this Convention.” It is interesting to note that such a report has only been issued once, in 1996. In contrast, the Secretary-General has, since the adoption of the Convention and at the request of the General Assembly, annually prepared a comprehensive report on oceans and the Law of the Sea and submitted it to the Assembly. The Secretariat has confirmed that, although it has not 36

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been specified in the comprehensive annual report, it also contains information submitted pursuant to article 319 of the Convention. In the last Meetings of States Parties, there was a growing divergence of views on the role of the Meeting and it seems that more and more States Parties want to accord a more substantive part to it. At the 10th Meeting in 2000, Chile proposed that the Meeting consider issues relating to the implementation of the Convention and that it should receive an annual report from the Secretary-General under article 319 on issues of a general nature that have arisen with respect to the Convention. The proposal received considerable support, but was opposed by States Parties such as Iceland, Japan, Norway, Russia and the United Kingdom, as well as the non-Party the United States. The issue has been discussed at each subsequent meeting with delegations maintaining their various positions. The agenda item had the neutral title “Matters related to article 319 of the United Nations Convention on the Law of the Sea.” After extensive deliberations at the 14th Meeting of States Parties in 2004, a compromise proposal was accepted, containing a new item to be included in the agenda of the next Meeting, entitled “Report of the Secretary-General under Article 319 for the information of States Parties on issues of a general nature relevant to States Parties that have arisen with respect to the United Nations Convention on the Law of the Sea.” At the 15th Meeting of States Parties, which was held from June 16 – 24, 2005, discussions on the role of the Meeting continued, but the most time-consuming agenda item was the election of seven judges to the Tribunal. At the States Parties Meetings the three institutions established under the Convention provide information on their activities. The International Tribunal for the Law of the Sea has already adjudicated a number of disputes in this field but has not yet been able to develop its full potential as the specialized organ for the settlement of maritime disputes. The International Seabed Authority is gradually preparing for future exploitation of mineral resources in the international seabed area. The main focus now is on the Commission on the Limits of the Continental Shelf, which has already received three submissions regarding the establishment of the outer limits of the continental shelf beyond 200 nautical miles, from Russia, Brazil and Australia. A number of coastal States, including my own country (Iceland), have advised of their intention to make submissions within the next years and it must be ensured that the Commission will be able to fulfill the functions entrusted 37

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to it under the Convention. It is also important to facilitate the preparation of submissions to the Commission by developing States. For example, by means of financial contributions to the Trust Fund established for that purpose. UN GENERAL ASSEMBLY As previously mentioned, the General Assembly is the global forum that has the competence to undertake an annual review and evaluation of the implementation of the Convention and other developments related to oceans and the Law of the Sea. 2 This is greatly facilitated by the comprehensive annual report of the Secretary-General to the Assembly. Each fall, the General Assembly devotes one or two days to a debate on the item “Oceans and the Law of the Sea.” There, representatives of states, the three aforementioned institutions, and other bodies make their own statements on the issue, but usually no significant dialogue takes place. However, this occasion allows the Assembly to adopt resolutions on the oceans and the Law of the Sea that are not only addressed to the member States of the organization but also invites specialized agencies to consider specific action. In recent years, two resolutions have been adopted annually, one of a general nature, called the “omnibus resolution”, and the other is a fisheries resolution. They are thoroughly negotiated in informal consultations earlier in the fall. The texts of the resolutions are more extensive every year and the informal consultations take up more and more time. For instance, last year’s informal meetings for this purpose were held almost daily for a period of six weeks. Although there are obvious disadvantages to this development, for example, a possible lack of focus, it bears witness to the increasing attention the oceans and the Law of the Sea are getting in the work of the United Nations. This growing interest is due to many reasons, including increasing environmental awareness, all-embracing globalization and scientific and technical developments. The oceans and Law of the Sea issues dealt with by the General Assembly substantially vary. The focus areas of the Meetings of the General Assembly facilitator, the UN informal consultative process on oceans and the Law of the Sea (UNICPOLOS), which I will mention later, illustrate this. Obviously, it is not possible to stipulate on all these issues here. Instead, I will attempt to shed light on a couple of trends in the 38


deliberations of the General Assembly on oceans and the Law of the Sea in recent years – from an Icelandic perspective. My first point regards substantive differences – a growing tension between those in favour of exploitation of living marine resources on one hand and those in favour of their protection on the other. I have received a growing number of calls for what I would call overly protective measures that are not to be taken on a case-by-case basis, do not have a scientific basis or are not in accordance with international law. For example, there are calls to establish marine protected areas in order to cover a certain percentage of an ocean area, calls protect a certain marine species without regard to the status of their different stocks and calls for a moratorium on the use of certain types of fishing gear or practices without regard to their harmfulness or the existence of vulnerable ecosystems in need of protection. As repeatedly stated in the General Assembly, my country adheres to the principle of the sustainable use of living marine resources, taking into account, of course, ecosystem considerations. This principle has two sides: On one hand each country has the duty to conserve and ensure the sustainability of the resource in question. On the other hand, each country has the right, and in many cases even the obligation, to exploit all its living marine resources in a sustainable manner. Any decision on restrictions on the use of marine resources needs to be taken on a case-by-case basis, have a scientific foundation and be in accordance with international law. My second point concerns different emphases and approaches. There is concern in Iceland over a growing tendency in the General Assembly toward global fisheries management. While global instruments, such as the Law of the Sea Convention and related agreements, are called for, it is my view that the responsible management of living marine resources is best carried out at the local or regional level, as appropriate, in partnership with those who are closest to and depend on the resources for their livelihood. The General Assembly should focus on specific issues that have global implications, and not on issues that fall within the purview of the sovereign rights of States or the responsibility of regional fisheries management organizations. The General Assembly should address issues that are global in nature and can only be solved through global cooperation. Thus, it should address marine pollution, which respects no boundaries and must therefore be met with global action. It should also address the need to set a level playing field for the fisheries sector that 39

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encourages sustainable fisheries globally, such as the need to remove fisheries subsidies. Sustainable utilization of living marine resources is, on the other hand, a local and regional matter. It is not acceptable to open the door for global micro-management of fisheries, which are subject to the sovereign rights of states or under the responsibility of regional organizations. That being said, states and regional fisheries management organizations must realize that the most meaningful way to avoid global interference, including by the General Assembly, is to ensure that their fisheries management is responsible. Closely related to the trend of global interference with fisheries management is the tendency of unjustified generalizations in the General Assembly on the status of fish stocks in the world and the harmfulness of individual types of fishing gear or practices. To illustrate the aforementioned trends, there was the proposal that was submitted in the informal consultations on the two oceans and the Law of the Sea resolutions last fall, for a global moratorium on bottom trawling on the high seas. In light of the views I have expressed, we were quite satisfied with the outcome of this issue, which was by far the most difficult and time consuming in the consultations. Firstly, the proposal for a global moratorium was turned down. Secondly, the relevant paragraphs of the two resolutions do not apply categorically to bottom trawling but to destructive practices that have adverse impacts on marine biodiversity and ecosystems. And thirdly, the resolutions recognize that it is for the relevant States or regional fisheries management organizations, as appropriate, to regulate these destructive practices and take decisions on any interim and long-term management measures. Iceland had already taken some measures for the protection of vulnerable habitats on the seabed, both directly within its exclusive economic zone and through the North East Atlantic Fisheries Commission, NEAFC, in cooperation with other members, beyond their national jurisdiction. UN INFORMAL CONSULTATIVE PROCESS ON OCEANS AND THE LAW OF THE SEA (UNICPOLOS) Following an initiative by the Commission on Sustainable Development (CSD), and in order to respond to the growing interest in oceans and the Law of the Sea, the General Assembly decided in 1999 to 40


establish the United Nations open-ended informal consultative process on oceans and the Law of the Sea (UNICPOLOS). Its function is to facilitate the annual review by the General Assembly of developments in ocean affairs by considering the Secretary-General´s annual reports on oceans and the Law of the Sea and by suggesting particular issues to be considered by the General Assembly. The consultative process is expected to apply an integrated approach to ocean issues. Such an approach involves an overview of various sectors related to the oceans and seas, consideration of transsectoral issues and, most importantly, an integration of various relevant aspects of oceans and seas, including political, legal, economic, social, environmental, scientific and technical aspects. Participants in the meetings of the consultative process include policy makers, legal experts, scientists, academics and representatives of industries, intergovernmental organizations and nongovernmental organizations. The consultative process holds its annual meetings in the spring or early in the summer. After the initial three-year period, the process ran out in 2002 and the General Assembly decided to continue the process for an additional three years. Its sixth meeting will be held from June 6–10, this year and will focus on two topics, “Fisheries and its contribution to sustainable development” and “Marine debris.” Previous meetings of UNICPOLOS have focused on the following areas: x x x x x x x x

Responsible fisheries and illegal, unreported and unregulated fisheries: Moving from principles to implementation; Economic and social impacts of marine pollution and degradation, especially in coastal areas; Marine science and the development and transfer of marine technology as mutually agreed upon, including capacity-building; Coordination and cooperation in combating piracy and armed robbery at sea; Protection and preservation of the marine environment; Capacity-building; Protecting vulnerable marine ecosystems; Safety of navigation, for example, capacity-building for the production of nautical charts; and 41

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x

New sustainable uses of the oceans, including the conservation and management of the biological diversity of the seabed in areas beyond national jurisdiction.

Toward the end of each meeting of the consultative process, consultations take place between participating States regarding a so-called “negotiated text” containing elements to be suggested to the General Assembly for consideration under its agenda item entitled “Oceans and the Law of the Sea.” This text usually carries some weight in the consultations on the two resolutions in the fall, and in light of that it has been criticized that little time is allocated to negotiating it. The General Assembly will probably decide to continue the consultative process next fall. In my view, the process has worked reasonably well. This is due, inter alia, to its informal character and the broad participation in its meetings that should be maintained. INFORMAL CONSULTATIONS OF STATES PARTIES TO THE UN FISH STOCKS AGREEMENT The Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 on the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, also referred to as the UN Fish Stocks Agreement, is of paramount importance, as it considerably strengthens the framework for conservation and management of those stocks by regional fisheries management organizations. In many ways, the provisions of the Agreement strengthen the relevant provisions of the Law of the Sea Convention and some of the provisions represent development of international law in this area. However, and this cannot be overstated, the effectiveness of the Agreement depends on its wide ratification and implementation. 52 States have ratified the Agreement, most recently Kenya. It is particularly relevant that the big fishing countries, such as China, Japan and Korea, join the Agreement. Since the entry into force of the UN Fish Stocks Agreement in December 2001, informal consultations of States Parties to the Agreement have been held annually. In this informal forum, views have been exchanged regarding the implementation of the Agreement and the foundation laid for an Assistance Fund under Part VII of the Agreement to assist developing States Parties in the implementation of the Agreement. 42


The fourth round of informal consultations of States Parties was held from May 31 – June 3, this year. The meeting focused on preparations for the review conference of the Agreement which, according to Article 36, paragraph 1, of the Agreement, shall be convened four years after its entry into force, probably in the spring 2006. In this context, it is worth mentioning that the Government of Canada is hosted a Conference on the Governance of High Seas Fisheries and the UN Fish Stocks Agreement in St. John´s from May 1-5, this year. One of the objectives of the Conference was to provide input to the review conference. According to Article 36, paragraph 2, of the Agreement, the review conference shall “review and assess the adequacy of the provisions of [the] Agreement and, if necessary, propose means of strengthening the substance and methods of implementation of those provisions in order better to address any continuing problems in the conservation and management of straddling fish stocks and highly migratory fish stocks.” The review conference will therefore first conduct a review and assessment of the adequacy of the provisions of the Agreement, presumably on the basis of a comprehensive report made by the SecretaryGeneral in cooperation with the Food and Agriculture Organization of the United Nations. If necessary, the Conference will then propose means of strengthening the substance and methods of implementation of those provisions. This means that the review conference will focus on policy issues and does not have any decision-making powers. Its conclusions will be of a recommendatory nature. In case of proposed amendments to the Agreement, these would have to be considered by an amendment conference in accordance with Article 45 of the Agreement. It is difficult at this stage to predict the outcomes of the review conference. It seems that there may be gaps that need to be filled, like the management of so-called discrete high seas fish stocks. These stocks fall outside the scope of the Agreement but it would be desirable, in my view, to recognize in some manner that the relevant provisions of the Agreement, in particular the general principles of Articles 5 and 6, should apply to them. However, I would maintain that the UN Fish Stocks Agreement is, generally, a very good tool as it is and that even more important than refining it through amendments would be to achieve its wide ratification and implementation. In any event, care must be taken not to discourage 43

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non-parties from ratifying the Agreement by untimely or unnecessary amendments. DIVISION FOR OCEAN AFFAIRS AND THE LAW OF THE SEA (DOALOS) It is appropriate to mention here briefly the Secretariat´s Division for Ocean Affairs and the Law of the Sea (DOALOS), now under the direction of Vladimir Golytsin who, unfortunately, was not able to be with us here. Apart from preparing the annual report on oceans and the Law of the Sea, DOALOS has a variety of important functions. They include providing advice, studies, assistance and research on the implementation of the Law of the Sea Convention, on issues of a general nature, and on specific developments relating to the legal regime for the oceans, providing service to all the aforementioned fora and support to the organizations of the UN system and providing training and fellowships and technical assistance in the field of the law of the sea and ocean affairs. SPECIALIZED AGENCIES, OTHER UN BODIES AND THEIR COORDINATION AND COOPERATION Finally, it should be mentioned that several UN specialized agencies and bodies are heavily engaged in work on ocean affairs. Some of these agencies are: x x x

x

The Food and Agriculture Organization of the United Nations (FAO), the global organization responsible, inter alia, for fisheries issues; The International Maritime Organization (IMO), the global organization responsible for improving maritime safety and preventing pollution from ships; The Intergovernmental Oceanographic Commission of UNESCO (IOC), which provides a mechanism for global cooperation in the study of the ocean; The United Nations Environment Programme (UNEP), which is the designated authority of the UN system in environmental issues at the global and regional level; and

44


x

The Commission on Sustainable Development (CSD), which is mandated by the General Assembly to monitor the implementation of Agenda 21, including Chapter 17.

In light of the great number of UN bodies involved in ocean affairs, the General Assembly in its “omnibus resolutions” in 2002 and 2003 called for strengthened inter-agency coordination and cooperation by requesting the Secretary-General to establish an effective, transparent and regular inter-agency coordination mechanism on oceans and coastal issues within the UN system. In response to this call a new mechanism, the Oceans and Coastal Areas Network (UN-Oceans), has been established.

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Notes 1

On the role of the Meeting of the States Parties see Alex G. Oude Elferink, “Reviewing the Implementation of the LOS Convention: The Role of the United Nations General Assembly and the Meeting of States Parties”, in Oceans Management in the 21st Century: Institutional Frameworks and Responses, eds A.G. Oude Elferink and D.R. Rothwell, Koninklijke Brill NV, 2004, pp. 295-312. 2 On the role of the General Assembly in this respect see ibid.

46

A Review of the 2004 General Assembly Discussions on the Law of the Sea Andrew J. Jacovides

The annual debate on “Oceans and the Law of the Sea” (item 49 (a) and (b) of the Agenda) took place in the General Assembly on November 16 and 17, 2004. It was a joint debate on sub items: (a) Oceans and the Law of the Sea (i) Reports of the Secretary General A/59/62, A/59/62/Add.1, A/59/63 and A/59/126; (ii) Report of the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea at its fifth meeting, A/59/122; and, (iii) the omnibus draft resolution A/59/L.22; (b) Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks and related instruments (i) Report of the Secretary General, A/59/298 and (ii) draft resolution, A/59/L.23. The day the debate commenced, November 16, coincided with the 10th anniversary of the entry into force of the 1982 Law of the Sea Convention, an event marked by a ceremonial session in Kingston, Jamaica, ten years earlier where I had the privilege of participating and speaking as the head of the Cyprus delegation (text attached Annex I). Many of the delegates who participated in the General Assembly’s debate highlighted the importance of the anniversary. For example, the delegate from the Netherlands, speaking for the European Union, stressed that the Convention and its implementing Agreement were milestones in the efforts to manage the planet’s ocean affairs. Looking back on the achievements of the Third United Nations Conference on the Law of the

Ambassador Andrew Jacovides was the head of the Cyprus delegation to the Law of the Sea Conference (1973-1982) and a former Ambassador of Cyprus to the United States, the United Nations and the Permanent Secretary of the Ministry of Foreign Affairs, Nicosia. 47

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Sea, he said that not only did the Convention deal with a wide variety of issues, but its text proved flexible enough to address problems that had emerged during the decade since it entered into force. The two integrated documents proved to be useful tools for the governance of the world oceans, they stood the test of time and there was no need for additional provisions at the time. The debate, which carried on to a second day, November 17, was entered by some 40 delegations that included the Prime Minister of Norway, the Minister of Fisheries and Oceans of Canada, the representative from Brazil speaking for the Rio Group, the representative from the Netherlands speaking on behalf of the European Union, the representative from Barbados speaking for the Caribbean Community (CARICOM), and the representative from Samoa speaking for the Pacific Islands Forum. Substantive statements were also made by the SecretaryGeneral of the International Seabed Authority, the President of the International Tribunal for the Law of the Sea and the Observer of the International Union for the Conservation of Nature. The Omnibus Draft Resolution on Oceans and the Law of the Sea (L.22) was introduced by Brazil and the Draft Resolution on Sustainable Fisheries (L.23) was introduced by the United States. Both had been, as customary, negotiated at informal meetings over a period of several weeks prior to their introduction and each had wide co-sponsorship of member States. While one cannot fail to recognize the variety and complexity of the topics covered in each of these resolutions and the fact that this practice has been followed over the preceding years, one must pause and think about the advisability of continuing the practice in light of the current debate on United Nations reform (doc. A/59/565). Resolution L.22 is 17 pages long and includes 103 operative paragraphs in addition to 19 preambular paragraphs, while Resolution L.23 is 16 pages long and has 84 operative paragraphs and 26 preambular paragraphs. For instance, L.23 devotes two preambular and two operative paragraphs (73 and 74) to the protection of sharks (“recognizing further the economic and cultural importance of sharks in many countries, the biological importance of sharks in the marine ecosystem, the vulnerability of some shark species to over-exploitation… and the International Plan of Action for the Conservation and Management of Sharks” adopted by the FAO in 1999, which was implemented by “only a small number of countries”). While one can readily recognize the relevance of preservation of all God’s creatures and the desirability of not disturbing the balance of nature, can 48

A Review of the 2004 General Assembly Discussions on the Law of the Sea

one not reasonably question the emphasis on the “economic and cultural [sic] importance of sharks” and perhaps be reminded (if I could be permitted the flippancy) of the proverbial joke about lawyers being well treated by sharks out of “professional courtesy?” Topics dealt with during the debate included navigational rights, territorial sea limits, economic jurisdiction, the legal status of seabed resources beyond national jurisdiction, conservation and limits of living marine resources and the protection of the marine environment. Main themes included the need to tackle the problem of overfishing through two methods. The first is sustainable resource management and fighting against illegal, unreported and unregulated fishing, especially through the action of the flag States of vessels engaging in such fishing. The second is through an immediate moratorium on bottom trawl fishing in all high sea regions, as well as within the zones of national jurisdiction. Another major concern was piracy and robbery at sea. Half of the yearly 400 incidents reported worldwide have occurred in the Asian region. Additionally, maritime transportation of radioactive materials and the transport of weapons of mass destruction on the world’s waterways were prominent themes. Support was expressed for Security Council Resolution 1540 (2004) on the prevention of the proliferation of nuclear weapons, a significant recent instance of the exercise of legislative power by the UN Security Council. The Prime Minister of Norway stressed that shipping interests must be weighed against environmental considerations and the legitimate interests of the world’s coastal populations, while recognizing them as important for world trade, energy efficiency and as an ecologically sound mode for freight transportation. He noted that there had been several environmental catastrophes caused by shipping accidents and welcomed new measures adopted by the IMO (International Maritime Organization) to prevent oil pollution from vessels, including the decision to speed up the phasing out of single-hull tankers. It was also stressed that shipping security was internationally linked with flag States shouldering their responsibilities and that this could only be done through a genuine link between flag States and the ships flying their flag. The delegate from Barbados, speaking for the CARICOM, referred to two separate arbitration proceedings currently under way in the Caribbean (between Barbados and Trinidad & Tobago, Guyana and Suriname) in order to settle, amicably and definitely, the respective maritime 49

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boundaries of the states concerned and to other bilateral negotiations to conclude delimitation agreements. This topic, alluded to also by other delegations (notably by Mexico), refers to cooperative efforts at the national as well as the regional level for the settlement of boundary and delimitation issues, especially in the Caribbean. More specific and very useful information on state practice, maritime claims and the delimitation of maritime zones ten years after the entry into force of the Convention is provided in paragraphs 20 to 39 of the Secretary General’s Report (A/59/62) and paragraphs 31 to 40 of its Addendum (A/59/62 Add.1). Included are important recent developments in the area affecting my own country, Cyprus. The Agreement Between the Republic of Cyprus and the Arab Republic of Egypt on the Delimitation of the Exclusive Economic Zone, was signed on February 17, 2003, ratified on March 7, 2004 and enacted on April 2, 2004. It provides for the proclamation of the contiguous zone and for the proclamation of the EEZ of the Republic of Cyprus. Other important developments include the submission of requests to the Commission on the Limits of the Continental Shelf by the Russian Federation, Brazil and Australia. These are to be followed by additional requests currently under preparation, with DOALOS assistance, regarding the limits of the continental shelf beyond 200 miles from the baseline from which the breadth of the territorial sea is measured. The Minister of Fisheries and Oceans of Canada, after stating that according to FAO estimates, 70 percent of the world’s fisheries were depleted or nearly depleted, and that illegal, unreported and unregulated fishing was estimated to represent 30 percent or more of the world’s total catch, stressed that now is the time to act before it is too late. The Minister announced that a high seas ministerial task force was being set up, chaired by the U.K.’s Minister of Environment and that Canada would kick start the effort with an international conference on the Governance of High Seas Fisheries from May 1-5, 2005. The representative from Kenya stressed that a balance must be struck between the need for economic exploitation and the need for conservation. He announced that his Government had established a technical interministerial committee to consider delimitation of his country’s maritime zones and, in compliance with the Convention, to carry out a comprehensive review of Kenya’s maritime laws and other laws relating to the exploration and exploitation of natural and mineral resources within its maritime zones. This is a good example to follow, especially by 50


developing countries, in light of the frequent call (repeated in paragraph two of L.22) on all states to “harmonize, as a matter of priority, their national legislation with the provisions of the Convention…..” The delegate from Egypt stressed the importance of UNCLOS, called on others to accede, and emphasized the need to protect fisheries from exploitation. The delegate from Indonesia, referring to terrorism at sea, announced that Indonesia has intensified joint patrol activities in the Malacca strait, along with Malaysia and Singapore. The delegate from Tunisia expressed the concern that most Mediterranean countries have of seeing their fauna and flora threatened by pollution originating from both land and sea sources. The delegate from India indicated the importance of navigation, conservation and management of living marine resources and the conservation and management of biological diversity of the seabed in areas beyond national jurisdiction. India was also concerned with piracy an armed robbery against ships and announced its active involvement with Japan in establishing a regional cooperation agreement against piracy. The delegate from Iceland, as the current chair of the Arctic Council, stated that the Arctic Climate Impact Assessment showed that the warming climate would bring about shifts in ocean ecosystems, including changes in fish populations and the Arctic coastline. With this in mind, a Marine Strategic Plan had been prepared on an integrated ecosystembased approach to sustainable ocean management. Iceland also announced generous financial contributions to Law of the Sea related activities, including the newly established Assistance Fund for the Fish Stocks Agreement. The representative from the United States introduced the Draft Resolution on Sustainable Fisheries (L.23), stressing that the key element was to protect sensitive underwater features and vulnerable marine ecosystems from destructive fishing practices. Concerning the wider question in the Law of the Sea Resolution, he said that one of the highlights was the group working on the issues of marine biological diversity beyond national jurisdiction, since these presented particular legal and logistical challenges for the international community. The representative from China expressed his country’s position on the Global Marine Assessment mechanism that should operate within the United Nations framework and should make use of existing global and regional assessment mechanisms to avoid overlap. Its activities should be consistent with the Law of the Sea Convention and should respect the sovereign rights and jurisdiction of the coastal States. He also indicated 51

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that China actively participated in regional activities of the 1995 Fish Stocks Agreement, which provided the underlying framework for regional fishery management mechanisms. Uganda, a landlocked developing State, urged that the International Seabed Authority, in partnership with States, investors and the scientific community, explore the potential for cobalt-rich ferromanganese crusts and polymetallic sulphides while being cautious to minimize the environmental impact arising from such exploration. She also suggested that the lessons from UNCLOS could be helpful toward the management of inland bodies of water such as Africa’s Lake Victoria, an important source or food, commerce and transport in East Africa. The representative from Japan made specific reference to the very recent Regional Cooperation Agreement on Combating Piracy and Armed Robbery against ships in Asia that, he hoped, would not only enhance cooperation and information sharing among Asian States, but would also serve as a good example of regional cooperation for other parts of the world. Japan, as a fishing State and a State surrounded by sea, attaches great importance to the preservation of the marine environment. Japan was seriously concerned about illegal, unreported and unregulated fishing, and actively supported the Conventions and initiatives to this end. Speaking also for the Pacific Islands Forum, the representative from Samoa expressed concern over the length of the two oceans-related draft resolutions and the growing number of issues covered. At the same time, she said this showed the commitment to address these issues and to manage the global marine environment and its resources. She referred to the forthcoming meeting of the Western and Central Pacific Tuna Commission and to the Mauritius International Meeting, stressing that illegal, unreported and unregulated fishing is one of the greatest threats to the sustainability of the marine resources and the environment in the region. This theme was also stressed by the representative from Chile. He said that in addition to the adverse impact of illegal, unregulated and unreported fishing, practices destructive to vulnerable marine ecosystems and especially high-seas bottom-trawling are also of great concern. He called for urgent action in this regard, including interim prohibitions of such practices and expressed support for the Conference of Maritime Delimitation in the Caribbean. Fiji also addressed the concerns of illegal, unregulated and unreported fishing and bottom-trawling fishing practices. Stressing that oceans and 52


seas were at the very core of island nations’ existences, he stated that protecting the Pacific Ocean had always been central to Fiji’s policymaking and aimed to ensure that all states of the region got the maximum returns from the important regional tuna fishery. Similar views were expressed by the Federated States of Micronesia. The representative from the Republic of Korea stressed that trafficking in weapons of mass destruction, narcotics and even humans via maritime transport were of grave concern to the international community. Equally stressed were the concerns of piracy, robbery and terrorism at sea. He called for intensified flag and port State cooperation to combat them and noted that his government was implementing measures to ensure the protection of the ocean environment, including phasing out 80 single-hull tankers. The representative called for other flag and port States to take appropriate measures to prevent the operation of sub-standard vessels. The representative from Bangladesh also stressed his country’s commitment to combating illegal fishing, piracy and other crimes at sea. He considered the evolution of the concept of the exclusive economic zone (EEZ) as one of the most significant developments resulting from UNCLOS. Its resources are among the richest in the world in terms of biodiversity and energy potential and yet are threatened by pollution caused by land-based activities and ocean-going vessels. He urged greater international cooperation for the conservation, management and sustainable use of marine living resources. Ukraine talked about the same themes as a geographically disadvantaged nation bordering a sea poor in living resources and suffering from the depletion of fish stocks in its exclusive economic zone. The representative from Bolivia concentrated on his country’s claim for a free, useful and sovereign outlet on the Pacific Ocean and referred to the 1904 Treaty (now 100 years old) that caused the loss of 400 kilometers of coastline. He complained that Chile had not complied with its commitment to allow free transit to Bolivia. This last point was later disputed by the representative from Chile, who stated that free transit was a daily practice, that his country complied with the 1904 Treaty and that the matter could be discussed bilaterally between Chile and Bolivia. There was also a further exchange between the two delegations through rights of reply. Evidently, this is not a multilateral Law of the Sea issue. The representative from Nigeria considered the top priority to be the implementation of the plan of action against illegal, unregulated and unreported fishing in areas under national jurisdiction and on the high 53

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seas. He called for measures to prevent the reflagging of fishing vessels to states that did not comply with the Fish Stocks Agreement. He also stated that his country would soon present its submission on the outer limit of the continental shelf. New Zealand’s representative also referred to its commitment to address destructive fishing practices and bottom-trawling saying that unsustainable fishing activities should be managed through appropriate fisheries management structures and mechanisms. The representative from Vietnam commended the positive developments in implementing the Law of the Sea Convention. He stated that the Declaration on the Conduct of Parties in the South China Sea, signed by ASEAN members two years ago, was an important step toward building a Code of Conduct for the South China Sea. He then referred to his country’s commitment to implement the Declaration as guided, he said, by its policy of the peaceful settlement of disputes and respect for international law. Australia’s representative announced that his country had just lodged its submission on the continental shelf, the third received by the Commission on the Limits of the Continental Shelf. He also announced that Australia had concluded a maritime delimitation agreement with New Zealand. With regard to fisheries, he welcomed the enforcement of the Convention and Management of Highly Migratory Fishstocks in the Western and the Central Pacific Ocean, with wide participation, including states with distant fishing interest in the Convention Areas, regulating the sustainable exploitation of tuna. He expressed concern that so much attention was devoted to bottom-trawling. Australia recognized that although some practices damage biodiversity, other practices that do not damage such diversity in the high seas might be unduly penalized if too broad of an approach is taken. He differentiated between destructive and non-destructive measures and would allow fishing conducted responsibly and with observer coverage. This issue was also addressed by Palau which urged urgent action to prevent destruction of the magnificent diversity of the deep seas and stated that it is essential to take immediate and effective action this year to protect the deep sea from destructive fishing practices. The representative expressed the need for an immediate moratorium on bottom-trawl fishing in all high seas regions, as existed in the past (1989 and 1991), and for consensus resolution on large scale pelagic driftnet fishing on the high seas. 54


In a broad statement, the representative from Poland covered many of the main themes of the debate, including issues of piracy and armed robbery, terrorism, and maritime transport of weapons of mass destruction. He referred also to the activities of the Baltic Marine Environment Protection Commission and supported the establishment of a European coastguard service. The representative from Uruguay stressed the importance of all states regulating all their activities in the oceans in strict compliance with the Law of the Sea Convention and all of its provisions. He joined the generally expressed concern about bottom trawling, over-fishing and illegal fishing, and trafficking of drugs and people. During the continuation of the debate on November 17, 2004, the representative from Russia stated that the Convention on the Law of the Sea and its Implementation Agreement was a just and balanced reflection of the interests of all states and called on all states to accede to it as soon as possible. He stressed the need to strengthen state oversight of vessels by the governments whose flags they fly. He recalled that Russia had recently deposited its submission on the continental shelf, and foresaw that 10 or more such submissions would be made in the coming years. Argentina underlined that the Convention provided the legal framework for activities involving the oceans, which are multifaceted, complex and of great interest to his country. This was echoed by Cuba, which stressed that the Convention was still as relevant and valid as ever and remained the benchmark for global ocean affairs as well as for international peace and security. He called for increasing cooperation from developing countries to ensure that UNCLOS is fully implemented. The last speaker from a state was the representative from Guyana who said that the major effect of UNCLOS was the more equitable distribution of worldwide maritime resources. He illustrated this by referring to the extension of the territorial sea, the creating of the exclusive economic zone, the codification of the rules governing the continental shelf and the recognition of the existence of the common heritage of mankind beyond the limits of national jurisdictions. The General Assembly was, as customary, addressed by the SecretaryGeneral of the International Seabed Authority, Satya N. Nandan, who put emphasis on the conduct of the Authority in putting together technical workshops by bringing together internationally recognized scientists, experts, researchers and representatives of the mining industry and of 55

Andrew J. Jacovides

member States. Marine scientific research is an essential tool for ocean governance since, despite progress, the knowledge of the oceans remains insignificant. More is known, he said, about the surface of the moon than about the oceans from which life on earth depends. Turning to fisheries he referred to the review conference for the Fish Stock Agreement scheduled for 2006. He noted that neither the Agreement nor any of the regional fisheries management organizations are equipped to deal with the problem of allocation of high seas resources. Mr. Nandan was followed by the President of the International Tribunal for the Law of the Sea, Mr. L. Dolliver M. Nelson, who discussed the Tribunal’s work in the preceding year. Certain legal and judicial matters were dealt with in the course of two sessions, although no new cases had been submitted. He said that during its eight year existence, the Tribunal dealt with 12 cases in which it delivered six judgments and issued 26 orders. Thus the Tribunal is making its contribution to the development of international law with regard to such issues as the nationality of claims, reparation, use of force in law enforcement, hot pursuit, and the question of the genuine link between vessel and flag State. He acknowledged that the Tribunal has not been put to full use by prospective litigants and has, therefore, not been able to develop its full potential as the specialized organ for the settlement of maritime disputes. (The relationship between the Law of the Sea Tribunal, the International Court of Justice and ad hoc arbitral tribunals is, of course, a much wider question, which is by itself a major topic for discussion). Mr. Nelson also referred to some administrative and financial aspects affecting the Tribunal, including the question of expenses and arrears. Earlier, the Observer for the International Union for Conservation of Nature also addressed the General Assembly, providing some weighty observations from IUCN’s perspective. She reminded them that 70 percent of harvested fish stocks worldwide were fished at or beyond their sustainable limit. In deep-sea areas, she said, bottom-trawling had destroyed vital coral communities and depleted target fish stocks. Scientific evidence increasingly shows that maritime species do not recover from overfishing once it has stopped. While the General Assembly had implicitly recognized bottom trawling as a destructive fishing practice and a threat to vulnerable marine ecosystems, she said, it was regrettable that more forceful action had not been agreed upon to prohibit it on an interim basis. 56


This concludes the summary presentation of the views stated during the debate last year. I apologize in advance that because of time constraints, I did not do justice to all of the points expressed during this very full debate.

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Commentary The draft resolutions were adopted by the General Assembly with a recorded vote of 141 in favour, 1 against (Turkey) with two abstentions (Venezuela and Colombia) in the case of A/59/L.22 on Oceans and the Law of the Sea; and without a vote in the case of A/59/L.23, on Sustainable Fisheries. There were explanations of vote, before the vote, on L.22 by Turkey, which every year has voted against because of objections it always had to UNCLOS (no adequate provision for special geographical situations and no provision for making reservations for specific articles); Venezuela, also every year (because of “historical reservations” about UNCLOS); Chile, even though it voted for the draft resolution; and by Peru, which also voted in favour, each interpreting in their way operative paragraph 66. There was also an explanation of vote on L.23, after the vote, by Italy (which would have preferred if operative paragraph 7 had contained a reference to UNCLOS and to the UNESCO Convention on Underwater Cultural Heritage); and by Iran (disassociating itself from preambular paragraph 17), although neither asked for a vote or was prepared to block the consensus. As I earlier indicated, both of the adopted Resolutions (now A/RES/59/24 and A/RES/59/25) consisted of very extensive texts, both preambular and operative, covering in detail all aspects of their respective topics. For full understanding it is necessary to study them paragraph-byparagraph. For the purposes of this presentation, suffice it to say that the General Assembly, in the omnibus resolution on oceans and the Law of the Sea, called on all states that had not done so to become parties to the 1982 Convention (currently 148). It also called for the harmonization of national legislation with the provisions of the Convention. It also decided to establish an Ad Hoc Open Ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond the areas of national jurisdiction. And, in the resolution on sustainable fisheries, the General Assembly deplored overfishing of straddling and highly migratory fish stocks in many parts of the world. The Assembly also expressed concern that illegal, unreported and unregulated fishing seriously threatened to deplete certain fish species and to damage marine ecosystems to the detriment of sustainable fisheries, as 58


well as food security and the economies of many states, particularly developing states. As a footnote, to note in the omnibus resolution, operative paragraph 15 on the Hamilton Shirley Amerasinghe Memorial Fellowship and operative paragraph 33 in reference to the Conference on Legal and Scientific Aspects of Continental Shelf Limits, held in Reykjavik, Iceland, from June 25 – 27, 2003. United Nations, General Assembly, A/Res/59/24, February 4, 2005. By and large, the 2004 consideration of the Oceans and the Law of the Sea item was substantive and full. It acquires a broader significance if one considers that in the same session of the General Assembly two other events of major significance in the international legal field also occurred. One was the significant call at the opening of the General Assembly Session in September by the Secretary-General Kofi Annan to all states represented in the General Assembly to strengthen respect for the rule of law. The other was the publication of the Report on UN Reform (A/59/565, December 2, 2004) that addressed many aspects of international law, including the legal regulation of the use of force and international terrorism. These, together with the other international legal activity during the 2004 General Assembly Session, with the Report of the International Court of Justice, with the work of the Sixth Committee and the Meeting of the Legal Advisers to Foreign Ministries, make up an impressive array of activities in the United Nations toward the shared objective to promote and strengthen international law among nations.

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Annex

Statement by Ambassador A.J. Jacovides Head of the Cyprus Delegation at the Inaugural Meeting of the General Assembly of the International Seabed Authority (Upon the Entry Into Force of the 1982 Law of the Sea Convention) Kingston, Jamaica, November 16, 1994

Mr. President, Distinguished Delegates, The coming into force to-day of the 1982 Law of the Sea Convention is an event of historic significance. It marks the fruition of what has been rightly described as the most important multilateral lawmaking undertaking since the Charter of the United Nations and as a veritable constitution for the seas and oceans. All those who value international legal order and who toiled long and hard to bring about this result deserve the satisfaction they justly derive for this major accomplishment. Cyprus, an island state located in the Mediterranean at the crossroads of three continents, is vitally concerned with the legal regulation of the uses of the sea in a just and orderly manner, ensuring fairness and predictability. According to legend, it was off the coast of Cyprus that Aphrodite, the Goddess of love and beauty, was born rising from the foam of the glittering sea. According to history, our sea-faring tradition and involvement with the sea go back to more than three thousand years and to-day shipping is a major industry. Our past, present and future are inexorably meshed with the sea and its uses. It is right and fitting that this historic occasion takes place in Jamaica, another island state with which we are related by bonds of friendship and cooperation. We take particular satisfaction in the fact that we were among the first to have supported back in 1974 our host country’s claim to provide the site of the Seabed Authority. I would like to take this opportunity, in the dual capacity as head of the Cyprus delegation to the Law of the Sea Conference from its beginning and as my country’s representative to Jamaica since 1973, to say how gratified I am to be here, in the same dual capacity, to congratulate the Government and people of 60


Jamaica at the beginning of this new major chapter and to thank them for their warm hospitality and excellent facilities they provided for our work. While this is not the occasion to attempt even a cursory analysis of the provisions of the Convention which has just entered into force (320 articles and 9 annexes), I might be permitted a brief look back – because of sentiment as well as reason – and to view in broad perspective our aims and objectives twenty years ago when the Conference started and to what extent these have been met, both in terms of substantive provisions on the issues of primary concern to Cyprus and in terms of the peaceful settlement of disputes arising from these provisions. Looking back to these positions, it can be said with conviction, and perhaps with a degree of satisfaction, that these aims and objectives have to a large extent been met, both from the point of view of our national interest and from the broader perspective of the interests of the international community as a whole. To very briefly indicate some of these aspects of concern to us, I would cite the issue of the extent of territorial waters (which, under Article 3 of the Convention, entrenches the 12-mile general rule, as Cyprus had done already in 1964); the position of islands (which, under Article 121, part VIII, clearly vindicates our strongly held view that islands are fully entitled to all the zones of maritime jurisdiction viz. territorial sea, contiguous zone, exclusive economic zone and continental shelf, no less than other land territory); the question of enclosed and semienclosed seas, the question of delimitation of zones of maritime jurisdiction between states, the coasts of which are opposite or adjacent to each other; questions of the protection of the environment; and questions of the protection of and the jurisdiction over archaeological and historical objects found at sea. Likewise, the system of the peaceful settlement of disputes – very important, especially for the protection of small states – while not as far reaching as we would have preferred, marks a significant advance from the previously existing situation. We look forward to the early establishment of the Law of the Sea Tribunal in the great maritime city of Hamburg and to the major contribution this tribunal is expected to make in interpreting the Convention and further developing its rules. It is for all those reasons that Cyprus was among the first to sign and ratify the 1982 Law of the Sea Convention and we have signed the recent Agreement on the Implementation of Part XI in the hope and expectation that this will make possible the universal participation in the Convention. 61

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We look forward to playing a role in the future activities of the Seabed Authority. That this universal legal regime for the seas and oceans has been made possible is a tribute to the many dedicated individuals – too many to mention by name, several of whom are present at this historic occasion as is only right and fitting – as much as to the collective wisdom and moderation of the international community. This has been a victory not of individual states or groups of states but of reason, the rule of law and humankind as a whole. It has been demonstrated that, through a process of compromise and consensus, in most instances a judicious balance was reached between the new and revolutionary approach required by the technological, political and economic trends of our times and the retention of those positive rules of traditional international law which have stood the test of time and have served well the needs of the international community. It has also been demonstrated that the newly independent and developing states, in particular, are fully capable of contributing constructively to the development of international law and can show a sense of responsibility and moderation for the wider common good. To conclude, Mr. President, let me say that, in evaluating the outcome of so many years of work, we must see it in proper perspective. The 1982 Convention and the recent Agreement on Chapter XI could not and do not fully satisfy all delegations in each and every respect. One could point to ambiguities where there should have been clarity, to complexities where there could have been streamlining and to exceptions where there should be a general rule. But it has to be accepted that compromises, necessitated by the objective of reaching an overall agreement by consensus, are the price to (be) paid for the successful conclusion of a complicated and ambitious undertaking. By definition, law and order are preferable to chaos and the law of the jungle and, as current events in many parts of the world harshly remind us, there is dire need for the rules of international law to be observed. The Law of the Sea Convention and its dispute settlement system goes a long way, in an imperfect world, in meeting this need. The entry into force of the 1982 Law of the Sea Convention is good for Jamaica, good for Cyprus, good for the United Nations on the eve of its 50th anniversary and good for the world as a whole. It is indeed an important achievement for which we should all be proud. Thank you Mr. President. 62

PANEL II: INTEGRATED COASTAL ZONE MANAGEMENT _______________________

The Regulation of Marine Transportation and Integrated Coastal Management: Two Management Approaches in Need of Integration Aldo Chircop *

INTRODUCTION The preamble of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) espoused integration as one of the most important principles of ocean management, namely that “the problems of ocean space are closely interrelated and need to be considered as a whole.” 1 In addition to the treatment the problems received in the Convention, Integrated Coastal Management (ICM) has emerged as a widespread planning and management paradigm for coastal zones around the world.2 A coastal zone is a spatially and jurisdictionally defined regulatory space that coincides with the area of interface between land and sea. ICM promises to operationalize the integration vision of UNCLOS while facilitating the domestic implementation of many parts of that instrument. ICM is concerned with multiple-use planning in coastal and marine areas within national jurisdiction, and there is an assumption that marine transportation, as a coastal and ocean use, is, or should be included in integrated planning and management. After all, marine transportation, as used by commercial shipping, is a significant use of the coastal zone. At the same time, marine transportation is subject to global standards and, in this respect, it is unclear how its management should relate to ICM. 3 International navigation is easily one of the most fundamental issues of UNCLOS, and a complex system of compromises was built into the Convention to safeguard it in national maritime zones. Domestic ICM initiatives frequently struggle in attracting interest from marine transportation industry actors and regulators. Traditionally, marine transportation has been regulated on a dominantly sectoral basis and its standard-setting has occurred at an international level through the International Maritime Organization (IMO). There is much in marine transportation that needs to be managed on a sectoral basis; at the same *

Dalhousie Law School, Halifax, Nova Scotia, Canada; formerly at the World Marititme University, Malmö, Sweden. 65

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time there are navigation issues that engage other coastal and ocean users and interests. The IMO is increasingly being seized of ports, shipping and navigation-related matters affecting coastal and marine interests other than shipping. 4 In particular, the ongoing debates in the IMO concerning places of refuge for ships in distress and on particularly sensitive sea areas (PSSAs) have implications for ICM. Yet ICM is not given central consideration in those debates, as will be discussed in this paper. The actions that a coastal manager may take to protect coastal zone interests and avoid or minimise multiple-use conflicts may have a bearing on international shipping and are likely to be subject to regulatory opportunities and constraints under the international law of the sea. The current divide between flag States and coastal States on the degree of coastal State jurisdiction that may be exercised over foreign ships in EEZs is a critical issue in the relationship between international regulation and ICM. This paper addresses the relationship between marine transportation and ICM and how sectoral and multisectoral management and regulatory approaches might relate to each other. The paper speaks to both maritime administrators, the professionals traditionally responsible for the administration of a state’s shipping and marine transportation concerns, and coastal managers, a new breed of professionals responsible for envisioning, designing and applying an integrated approach to coastal and ocean management. It discusses the ways in which domestic ICM needs can contend with obligations arising out of the international regulation of marine transportation, and how that regulatory effort can be more effectively involved in ICM. In the interest of clarity, this paper uses the following terminology: the terms “shipping” and “maritime transport” refer to the shipping industry; the term “navigation” refers to the generic use of the oceans for movement at sea, which includes commercial navigation (by merchant shipping) and other users; and the term “marine transportation” refers to navigational uses for shipping purposes. The IMO is concerned with safety regulation of navigation and marine transportation. Although related to marine transportation, port and related activities are treated as a separate, albeit connected and relevant, cluster of uses.

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The Regulation of Marine Transportation

CHARACTERIZING THE RELATIONSHIP The relationship between marine transportation and ports on the one hand, and other ocean uses on the other, can be described as both spatial and functional. Marine transportation and ports use space in exclusive and non-exclusive ways. The infrastructure needed to support shipping is in the form of harbour and port infrastructures, as well as other physical structures that enable ships to undertake loading and unloading of cargo. The latter may include permanent structures outside a port, floating surface structures and sub-sea structures. Offshore loading and unloading structures may also be located at a distance from the coast. Marine transportation utilizes roadsteads and anchorages, which are located in sheltered areas in the vicinity of harbours or other coastal areas. Marine transportation is spatially exclusive when issues of safety and security are concerned. Thus, terminals in ports will tend to be reserved exclusively for terminal operators and their clients. Shipping and port exclusivity is now particularly present in the aftermath of the International Ship and Port Facility Security Code. 5 In this exclusive sense, marine transportation and ports tend to elbow away other oceans users, especially when it comes to the utilization of scarce harbour space. In particular, the advent of containerization has created an unprecedented and ongoing spatial demand on ports for the safe stacking of containers and operation of equipment. Commercial cargo traffic in and out of ports may compete with other uses in a harbour, such as ferry services, sightseeing and recreational boating. There are increased risks of collisions and accidents in confined and crowded spaces. Marine transportation, through the use of traffic separation schemes and heavy traffic in busy trading regions, such as the North Sea and the Baltic, can also occupy significant stretches of ocean space. Although not formally spatially exclusive in the sense of allocation of ocean space for exclusive use, navigation regulations and volume of traffic do significantly restrict alternative uses of the same coastal and ocean areas. 6 Marine transportation has functional impacts on other coastal uses in various ways, including from public health and environmental perspectives. In former days, ships arriving in port may have had to be quarantined to guard against the spreading of infectious diseases and other threats. 7 In harbour areas, atmospheric emissions from ships may impair the air quality of residential areas clustered around ports. 8 There have 67

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been accidents or incidents involving explosions or hazardous substance emissions with serious consequences for adjacent harbour populations. 9 Before the prohibition of the use of tributyltin (TBT) in anti-fouling paints, the slow releases of toxic substances from ships while in port was a concern in itself. 10 The introduction of exotic species in ballast water has been, and continues to be a problem in inland, internal and inshore waters in several parts of the world. 11 Although illegal, there continue to be oily discharges in prohibited quantities and areas, with consequent mortality of seabirds and adverse impacts on wildlife and the quality of coastal amenities. 12 Perhaps the most widely publicized negative functional impact of marine transportation on other coastal zone uses is of casualties resulting from oil tanker accidents. The recent maritime casualties of the Erika and Prestige have yet again highlighted coastal State concerns regarding the protection of their interests against international navigation in their coastal zones. Shipping and marine transportation do not interact with other uses only in negative ways. It was marine transportation that prompted the introduction of a concerted approach to safety of life at sea, the introduction of the “rules of the road” and related safety zoning. International regulation has raised safety standards for many types of craft at sea and has also raised the competence standards of those operating them. This is important because all ocean uses raise safety concerns. The rules of the road are vital for collision avoidance, and in harbours and coastal areas navigated by international marine transportation there usually exist traffic separation schemes and vessel traffic management services. Separation schemes are vital for navigation safety and efficiency. But the most significant benefit of shipping and marine transportation is that the two service the bulk of maritime trade. The level of economic wealth and high standard of living in many parts of the world would not exist without shipping and marine transportation. Coastal zones are in high demand for other uses. Coastal residential areas tend to be the most highly valued properties. Other large and exclusive spatial users, such as aquaculture, oil and gas development, windfarming and coastal engineering works are increasingly using nearshore navigable waters. Aquaculture and windfarming are expected soon to experience accelerated growth and to require wider use of marine space respectively as a result of declining wild fish stocks and compliance with Kyoto Protocol commitments in response to climate change. In turn, these new uses have started to elbow out navigation and other marine uses as 68


exclusive or quasi-exclusive uses of some coastal waters. 13 For instance, windfarms are likely to cause malfunction of shipboard radar on ships proximal to coastal windfarms, which could in turn affect compliance with collision avoidance regulations. 14 Cicin-Sain and Knecht provide another instructive example of a marine transportation and aquaculture conflict in Dalian, China. 15 The expansion of anchorage sites conflicted with encroaching mariculture activities in Dalian Bay. This resulted in a decrease of available anchorage sites, increase of berth days for ships, loss of income to the local port authority, and entanglement of aquaculture rafts in ships’ rudders. Fishermen and aquaculturists complained of poor water quality resulting from anchoring. TWO MANAGEMENT APPROACHES A Tale of Two Cultures? Marine transportation is probably the first marine use ever to be regulated, both domestically and internationally. Initial regulation of activities in inland waterway shipping and navigation has gone on for millennia. 16 Prior to the nineteenth century, its regulation focused primarily on the carriage of goods by sea in support of maritime trade, and secondarily on support institutions such as general average, salvage and wreck. With the nineteenth century, and especially with the advent of the steam engine aboard ships, sectoral regulation expanded to navigational safety, including the first set of rules of the road. 17 The original concern was mainly with safety of navigation between ships, in particular to avoid collisions, but in the twentieth century this was expanded to address a broad range of safety issues connected with navigation. The Safety of Life at Sea conferences in 1914, 1929, 1948, 1960 and 1974, and numerous subsequent amendments to the key international instruments adopted in those conferences, continued to develop a safety culture in navigation, which has applied primarily, but not exclusively, to marine transportation. 18 With the establishment of the Intergovernmental Maritime Consultative Organization in 1948 (IMCO, known as the IMO since 1982), the international regulatory approach took a more structured and institutionalised form, but again the mandate of the facilitating institution was narrowly defined to focus on traditional maritime topics. 19 The purposes of the organization in the Convention on the International Maritime Organization, 1948, as amended, are stated as follows: 69

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(a) To provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade, and to encourage the general adoption of the highest practicable standards in matters concerning maritime safety, efficiency of navigation and prevention and control of marine pollution from ships; and to deal with administrative and legal matters related to the purposes set out in this Article; (b) To encourage the removal of discriminatory action and unnecessary restrictions by Governments affecting shipping engaged in international trade so as to promote the availability of shipping services to the commerce of the world without discrimination; assistance and encouragement given by a Government for the development of its national shipping and for purposes of security does not in itself constitute discrimination, provided that such assistance and encouragement is not based on measures designed to restrict the freedom of shipping of all flags to take part in international trade; (c) To provide for the consideration by the Organization of matters concerning unfair restrictive practices by shipping concerns in accordance with Part II; (d) To provide for the consideration by the Organization of any matters concerning shipping that may be referred to it by any organ or specialized agency of the United Nations; (e) To provide for the exchange of information among Governments on matters under consideration by the Organization. 20 The marine pollution concern in purpose (a) was added to the IMO’s responsibilities in the wake of “Torrey Canyon” in 1967. The amendment to that purpose was adopted in 1975, and it entered into force in 1982. 21 “Torrey Canyon” was important in softening the sectoralization of shipping. The marine pollution and liability issues that emerged led to the establishment of the Legal Committee, and environmental issues began to be addressed by a subcommittee of the Maritime Safety Committee. 22 In 1975 the Marine Environment Protection Committee (MEPC) was 70


established. 23 These developments had the effect of broadening the regulatory relationship between marine transportation and other uses of the marine environment, but the core of the mandate remained essentially sectoral. Despite this, and occasionally propelled by further maritime casualties, the workload of the IMO increasingly encroached on matters other than shipping and marine transportation. Today, international shipping is regulated at and through the IMO, setting the pattern for domestic regulation. No other ocean use is so regulated on a global basis. In contrast to the longevity of sectoral management in shipping, ICM is a newcomer. Today, ICM is a multisectoral and holistic approach to the planning and management of coasts and oceans. Its principles are not set in any one international instrument, and their identification, interpretation and application varies considerably among proponents. 24 Emerging in the form of a concern over the management of coasts and oceans in the wake of the Stratton Commission’s report in the United States in 1969, 25 which led to the adoption of the Coastal Zone Management Act of 1972 in that country, 26 ICM promised (but offered little) integration in its first few years of existence and operation. 27 At the international level, the integrated approach to environmental management, including for the marine environment, was first advocated at the United Nations Conference on the Human Environment, convened in Stockholm in 1972, which produced an important declaration of principles bearing the same title. 28 Integration was proposed in Principle 13 as follows: “In order to achieve a more rational management of resources and thus to improve the environment, States should adopt an integrated and co-ordinated approach to their development planning so as to ensure that development is compatible with the need to protect and improve the environment for the benefit of their population.” 29 In reality, there was little integration following the adoption of the Stockholm Declaration. On the contrary, in many countries environmental concerns were packaged as new sectoral mandates of newly created ministries or departments of the environment. UNCLOS provided a framework for multiple sea use management, stipulating generic and holistic duties for environment protection and preservation, as well as sectoral prescriptions concerning vessel-source pollution. But other than an inference drawn from combating pollution from land-based activities, and references for the territorial sea baseline delineation purposes, it contained nothing on the interface between land and sea and the related management implications. 30 Coastal management would see little development outside the United States, at least until the 71

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1980s. But, a significant surge in practice was discernible in the 1990s, especially after the 1992 United Nations Conference on the Environment and Development. 31 That conference adopted Agenda 21 Programme of Action, which, in Chapter 17, recognised that UNCLOS “requires new approaches to marine and coastal area management and development, at the national, subregional, regional and global levels, approaches that are integrated in content and are precautionary and anticipatory in ambit, as reflected in the following programme areas.” 32 Hence, a new programme area entitled “Integrated Management and Sustainable Development of Coastal Areas, Including Exclusive Economic Zones” was adopted, further stimulating the adoption of ICM policies, legislation and programmes in many parts of the world. 33 Chapter 17 was further reinforced by the 1995 Global Programme of Action for the Protection of the Marine Environment from Land-Based Activities, 34 and the Jakarta Mandate on Marine and Coastal Biological Diversity, 35 both of which advocated ICM. However, in contrast to the hard law that largely regulates marine transportation, many of the instruments prescribing or advocating ICM are at best soft law. Unlike shipping matters, there is no global overseeing regulatory body through which member States set global standards for ICM. Although there are some agreements providing regional legal and policy frameworks, ICM tends to be pursued on a domestic basis. 36 Even when pursued on a domestic basis, ICM encounters difficulty in being truly integrative in coastal and ocean planning and management. The integration of major ocean users that have their own well-established and unique management cultures, such as the fisheries, oil and gas and shipping industries, has proven difficult in most cases. Among these management cultures, shipping stands out because the regulatory effort focuses largely on safety of life at sea, a topic that cuts across all other ocean uses when navigation is involved. And yet there is general recognition that the sustainable use of coasts and oceans requires an integrated approach, at least in the interest of coordination of decisionmaking related to the various human uses. Overlapping Concerns of Maritime Administrators and Coastal Managers in the Law of the Sea There is “regulatory convergence” between the management of marine transportation and ICM concerning the regime of international navigation, 72


in particular regarding coastal waters where the right of international navigation persists, such as in the territorial sea (including international straits) and archipelagic waters. These are maritime zones that involve the area of interface between land and sea. The hands of both coastal managers and maritime administrators are tied and intertwined in the extent to which they may affect international navigation in their management plans and regulatory efforts. Article 21 of UNCLOS authorises coastal States to legislate in relation to innocent passage through the territorial sea in accordance with the Convention and other rules of international law, which presumably include customary international law. 37 The authority to legislate in this regard is limited to specific topics, namely: (a) Navigation safety and maritime traffic regulation; (b) Protection of navigation aids and facilities, and other facilities or installations; (c) Protection of cables and pipelines; (d) Living resource conservation; (e) Prevention of infringement of fisheries laws and regulations; (f) Environment preservation and pollution prevention, reduction and control; (g) Marine scientific research and hydrographic surveys; and (h) Prevention of infringement of customs, fiscal, immigration and sanitary laws and regulations. 38 The legislation is further limited in that it “shall not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards.” 39 In a modern ICM context, several of those legislative ideals are accomplished by the functions of coastal area management, and thus coastal managers have to be conversant with the pertinent IMO standards. Similarly, in Article 22, whereunder coastal States may require foreign ships exercising innocent passage to use designated sea lanes and adhere to traffic separation schemes, including, in particular, the passage of tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials, maritime administrators and coastal managers have to take into account, inter alia, the IMO recommendations. 40 As a type of servitude, innocent passage cannot be hampered, denied or impaired, except to the extent permitted by 73

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UNCLOS. It can only be suspended for national security purposes, and temporarily so, 41 but cannot be suspended in international straits. 42 Thus coastal managers are well advised to consider these restrictions in zoning efforts or in measures they may take to avoid or manage multiple use conflicts. It may be argued that international navigation enjoys a certain privilege over other uses of the coastal zone in the territorial sea. 43 Thus, whereas the coastal State may introduce charges for other uses, it may not do so in relation to “foreign ships by reason only of their passage through the territorial sea.” 44 It may only levy charges “as payment only for specific services rendered to the ship” and without discrimination.45 SPECIFIC ISSUES Since its inception, and especially since the expansion of its mandate to include vessel-source pollution, the IMO has considered and decided upon numerous issues that impinge on ICM. Before the advent of the integrated approach, it was understandable that decision-making was sectoral. Since then, however, decision-making has continued to be sectoral, including in those areas that bring shipping into close interaction with other coastal and ocean uses and the marine environment. It should be expected that to the extent that the international regulation of marine transportation concerns ocean use, the principal attention of the regulator is and will continue to be on that ocean user. At the same time, issues have been surfacing at the IMO that cannot be fully addressed on an exclusively sectoral basis. Two cases in point concern the discourses on places of refuge for ships in need of assistance and the designation of PSSAs. Places of Refuge for Ships in Need of Assistance The requesting of a place of refuge for a ship in need of assistance and the coastal State’s decision to grant or deny such a request raises a question as to whether the latter decision ought to be purely a sectoral one. Following a series of incidents involving ships in distress, some of which resulted in major maritime casualties, the IMO considered and adopted the 2003 Guidelines on Places of Refuge for Ships in Need of Assistance. 46 What may appear to be a mere technical process of decision-making by the coastal State is actually a significant ICM concern. The Guidelines frame the issue as a marine transportation and safety of navigation concern, with emphasis placed on sectoral actors. The applicable 74


international conventions are thus maritime. There is no reference to key international environmental law conventions containing pertinent rights and obligations, such as the Convention on Biological Diversity, 1992, 47 and the Ramsar Convention on the Protection of Wetlands of International Importance, 1971, 48 which should also guide decisions on identification of places of refuge. Admittedly, the list of pertinent instruments is inclusive, not exclusive, but the indication of instruments considered relevant is purely maritime. The risk assessment process opens up the list of considerations to non-shipping issues. What is particularly noticeable in the list is the reference to a few ocean sectors or issues, and the absence of any mention of integrated coastal management plans for areas that might host a ship in distress. The Guidelines do not anticipate that a coastal State might already have a “big-picture” structured approach to multiple sea use management and environmental conservation in the affected area. This absence is perplexing, but perhaps to be expected if the paradigm for the discourse on the Guidelines in the IMO is essentially sectoral. To some extent, the slightly earlier but related E.U. Directive 2002/59 on a Community Vessel Traffic Monitoring and Information System suffers from similar sectoral bias and consequent limitations.49 There is little, if any link between the European Union’s efforts and ICM as generally promoted in the European Union. 50 Particularly Sensitive Sea Areas PSSAs are a second example of the lack of integration between marine transportation and ICM concerns. The IMO adopted Guidelines for the Identification and Designation of PSSAs in 1991, which were amended twice and are currently being considered by an inter-sessional group of the IMO’s Marine Environment Protection Committee for further amendment. 51 PSSAs concern coastal and marine ecosystems that are considered particularly sensitive to the impact of international navigation activities, such as the act of navigation itself, anchoring, and the potential for casualty. Several PSSAs have been designated by the IMO, including the Great Barrier Reef, 52 Sabana-Camaguey Archipelago, 53 Wadden Sea, 54 Florida Keys, 55 Malpelo Island off Colombia, 56 Paracas National reserve in Peru, 57 and Western European Waters consisting of large portions of the EEZs of Belgium, France, Ireland, Portugal, Spain and the United Kingdom. 58 There are others that were designated as PSSAs, in principle, in 2004 and await further action before the IMO formally adopts 75

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them. 59 The significance of designation is the accompanying appropriate protective measure (or measures), which depends on the area in question and have included, for adopted PSSAs, one or more of the following: compulsory pilotage, mandatory ship-reporting system, restricted navigation areas, routing systems for ships transiting the area, notification of entry into and departure from the area, discharge restrictions, area to be avoided (as a buffer zone), and incident reporting. In a document designed to assist states in the consideration of appropriate measures, the IMO has suggested the following measures: “designated anchorage areas and methods; no anchorage zones; closure of routes to certain types of vessels or cargoes; speed restrictions; compulsory pilotage or tug escort to ensure safe navigation in or near PSSAs; prohibitions/restrictions on cargo transfer; required submission of pre-filed passage plans and adherence to time schedules; special under-keel clearance restrictions; regulation of offshore bunkering; prohibition of intentional discharges, including ballast waters; seasonal closures to protect migrating marine mammals.” 60 The measures adopted with PSSA designation must be approved by the IMO and comply with UNCLOS. 61 Similar to the situation of ships in distress, the designation of PSSAs and accompanying protective measures is treated as a marine transportation issue in terms of the impact of international navigation on the marine environment. The actual discussion of appropriate management measures does not take place within an ICM framework, but purely through deliberations in the IMO’s Marine Environment Protection Committee and the NAV Sub-Committee of the Maritime Safety Committee. Indeed, the criteria for PSSA designation, although consisting of clusters of ecological, social, cultural, economic, scientific and educational criteria, make no reference to the possible existence of an ICM framework overlapping with the proposed PSSA. It is expected that proposals indicate which protective measures are already being undertaken by the proponent States. 62 The limitation here is that the Guidelines are limited to actions within the purview of the IMO, thus significantly reinforcing the predominantly sectoral nature of consideration of a PSSA proposal. Other Shipping Issues Relevant to ICM There are several other issues in shipping that are of larger ICM interest, two of which should be mentioned. Perhaps because of their potentially close relationship to PSSAs, Special Areas adopted under the 76


IMO Guidelines for the Designation of Special Areas under MARPOL 73/78 are a case in point. 63 Several semi-enclosed seas have been designated as special areas for the purposes of Annexes I, II and V and as emission control areas under Annex VI. 64 The significance of these designations is the raising of marine environmental discharge standards for ships operating in those waters. Another area where such sectoralization occurs is compensation for damage resulting from accidental oil pollution through the International Oil Pollution Compensation Fund (IOPCF). 65 The compensation scheme is operated within a shipping framework, even though numerous non-shipping interests may be affected. Despite its direct concern with marine environmental and user economic losses, the IOPCF is strictly a compensation mechanism and therefore is not related to the ICM framework. 66 In part, this reflects the need to craft a balance between two major public policy concerns: the need to compensate victims of vesselsource pollution damage, while at the same time protecting shipping interests (through limitation of liability) for the benefit of international maritime trade. From the perspective of the shipping industry and regulators, and as a scheme to compensate victims of oil pollution damage, the IOPCF system has generally worked well. For some claimants, however, including some coastal States, the fund is considered insufficient in the amount of compensation available and the restrictive approach adopted in assessing natural resource damage in the coastal zone that is not easily quantifiable. From an integrated perspective, the IOPCF should be seen as a potentially important conflict management tool in an ICM multiple use context, as well. CONCLUSION: ARGUING INTEGRATION There is no question that the international regulation of marine transportation, albeit on a sectoral basis, and considering shortcomings, has produced impressive results. Generally, the IMO is considered to be an efficient international organization with a fairly successful record of regulation. Shortcomings in the international standard-setting system have tended to lay with states that have not become party to the international maritime conventions or fully implemented the obligations they have undertaken. IMO mechanisms and structured processes have enabled the building of consensus, and when this has not been possible, have always provided State Parties and accredited non-state actors opportunities to 77

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influence the decision-making process. Thus, marine transportation is likely to continue to be sectorally regulated at both national and international levels. But, should this prevent enhanced sectoral consideration within the larger multisectoral context of ICM? The shipping industry and its regulators need to be more centrally involved in ICM. There are a number of ways in which this integration could be achieved. As has been demonstrated herein, the mandate of the IMO in its constitutive instrument is sectoral, but perhaps it is possible to interpret that mandate as having a bearing on the role of marine transportation in ICM. By providing a mechanism for international cooperation on all matters affecting shipping, the IMO is in a position to facilitate consideration and better integration of marine transportation into multipleuse planning in ICM. In effect the MEPC has skirted this through the consideration of PSSAs. In order for the IMO to facilitate this integration, it may well need some ICM capacity within the secretariat, notably in the Marine Environment Division. National delegations to the MEPC should also include ICM expertise to enable appreciation of how international standard-setting for marine transportation might interrelate with national ICM efforts. This entails closer cooperation between national maritime administrations and the lead national institutions domestically responsible for ICM, and consequently between the maritime administrators and coastal managers. In the continued absence of such coordination, sectoralism at the national level will continue to be reflected in the sectoralization of discussions in the IMO. From an ICM perspective, and especially in multiple-use planning, zoning and marine-protected area development, there is much to be said for greater utilization of the IMO standards and the IMO standard-setting processes. The increasing congestion of coastal waters as a result of multiple uses and the conflicts that arise with navigational activities may slowly, but surely, be leading to implementation of more vessel traffic management systems and traffic separation schemes. In the Baltic there is growing discussion of the need for “motorways of the sea,” and if this turns out to be the beginning of a new trend, one day we could see a system of global ocean highways. This would have far-reaching implications for ICM. In the more immediate future, and considering that the IMO’s PSSA Guidelines are under revision, the international PSSA designation process could be better integrated into the MPA designation process at the national level, and vice versa. How this could be done is 78


reflected to some extent in the Greater Barrier Reef, Sabana-Camaguey and Malpelo Island PSSAs. From an ICM perspective, the advantage of using the IMO standard-setting is the global recognition it carries, the consequential annotation of navigation restrictions on navigation charts and the consequent publicity. For enforcement purposes, there is likely to be greater legitimacy in acting against culprit vessels. It is possible that the IMO standards could be used as drivers for ICM. At the same time, coastal managers have to better recognise the special status of marine transportation as an ocean use and the international constraints that accompany it.

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Notes 1

United Nations Convention on the Law of the Sea (hereafter UNCLOS), Montego Bay, December 10, 1982, UN/Doc. A/CONF.62/122, October 7, 1982, Preamble. 2 See Jens Sorensen, Baseline 2000 Background Report: The Status of Integrated Coastal Management as an International Practice (2nd Iteration, August 26, 2002), online: (accessed on March 15, 2005). 3 For instance, WWF-UK has noted that “New directions in some sectors, such as the desire to accommodate larger vessels in ports and harbours, and the emergence of the offshore renewable energy industry, are part of the continuous development of the marine-related economy. However, all of this is taking place in the absence of any overall framework for integrated planning and management of marine activities.” See “Marine Spatial Planning: A Down to Earth View of Managing Activities in the Marine Environment for the Benefit of Humans and Wildlife,” WWF-UK Marine Update (June 2004), 4, online: <www.wwf.org.uk/filelibrary/pdf/mu55.pdf> (accessed on April 11, 2005). 4 For a general and up to date overview of the IMO’s work agenda, refer to the organization’s Website: . 5 The International Ship and Port Facility Security Code (IMO, London, 2003). 6 For instance see Convention on the International Regulations for Preventing Collisions at Sea, London, October 20, 1972, 1050 U.N.T.S. 16, Reg. 10 on traffic separation schemes. 7 See NOVA Science Programming on Air and Online, “History of Quarantine,” online: (accessed on March 15, 2005). See also George Rosen, A History of Public Health (Baltimore, Johns Hopkins University Press, 1993). 8 See: “MARPOL Annex VI Sets Sulphur Test,” Lloyd’s List (February 16, 2005); “Lines Could Face Air Quality Lawsuits on US West Coast,” Lloyd’s List (March 7, 2005), 6. 9 One of the best known incidents occurred in 1917 in Halifax, Canada, when a collision between two ships, one of which was loaded with ammunition for the war led to the largest human-made explosion prior to the nuclear age. A large part of the city was destroyed and many people in the harbour area died. Online: (accessed on April 11, 2005). In 1985, smoke and chemical fumes on board a ship in Mogadishu, Somalia, forced the evacuation of part of the port area. See HELCOM Response Manual vol. 2 (December 1, 2002), Annex 3: Case Histories of Marine Chemical Accidents. 10 See IMO, “Anti-fouling Systems,” online: (accessed on April 11, 2005). 11 IMO, Global Ballast Water Management Programme, online: (accessed on April 11, 2005). 12 For example, continued illegal oily discharges in Canada’s EEZ in the Northwest Atlantic off Newfoundland have resulted in regular massive seabird mortality. Canada has responded by passing Bill C-15 in 2005, thereby strengthening criminal sanctions in the enforcement of the Migratory Birds Conservation Act, 1994 and the Canadian 80

The Regulation of Marine Transportation Environmental Protection Act, 1999. See Environment Canada, online: http://www.ec.gc.ca/press/2005/050519_b_e.htm (accessed on June 5, 2005). 13 For instance see Jim Newton, “Wind Turbines Interfere with Ship Radar – MCA,” Fairplay (January 10, 2005), 14. 14 Newton refers to a U.K. Maritime and Coastguard Agency report that “MCA radar tests at a wind farm off the coast of North Wales established that wind farms can create interference for shipborne radar up to 1.5 nm away, particularly by reducing the amplitude of other received signals such as smaller ships and buoys.” Quoting the report, in some circumstances “this could affect a vessel’s ability to fully comply with international regulations for the prevention of collisions at sea.” Ibid. 15 Biliana Cicin-Sain and Robert W. Knecht, Integrated Coastal and Ocean Management: Concepts and Practices (Washington, D.C., Island Press, 1998), 24. 16 The Code of Hammurabi (circa 1780 B.C.) contained a few provisions on the subject. Hammurabi’s Code of Laws, online: (accessed on January 30, 2005). For an overview of the history of maritime transport, see Edgar Gold, Maritime Transport: The Evolution of International Marine Policy and Shipping Law (Lexington Mass., Lexington Books, 1981), especially Chapter 1. 17 Gold, ibid. 18 The current SOLAS regime is governed by International Convention for the Safety of Life at Sea, 1974, London, 1 November 1974, 1184 U.N.T.S. 2.; as amended on 17 February 1978, 1276 U.N.T.S. 237 and 11 November 1988, U.S. Treaty Doc. 102-2. 19 Convention on the Intergovernmental Maritime Consultative Organization, London, 6 March 1948, 289 U.N.T.S. 48 (hereafter IMO Convention); amended several times. For an explanation of the amendments, see IMO, (accessed on April 11, 2005) (hereafter IMO Convention overview). 20 IMO Convention, ibid., Art. 1. 21 IMO Convention overview, supra note 19. 22 IMO Convention overview, ibid. 23 IMO Convention overview, ibid. 24 For an overview of different terminology and approaches, see Sorensen, supra note 2. 25 Our Nation and the Sea: A Plan for National Action, Report of the Commission on Marine Science, Engineering and Resources (Washington, D.C., United States Government Printing Office, January 1969). 26 Coastal Zone Management Act of 1972, 16 U.S.C.1451-1464, Chapter 33, as amended. 27 Cicin-Sain and Knecht, supra note 15, 33. 28 Declaration of the United Nations Conference on the Human Environment, Stockholm, June 16, 1972, online: (accessed on April 11, 2005). 29 Ibid. 30 UNCLOS, supra note 1, Arts. 207 and 213 on pollution from land-based sources and Arts. 5-16 on baseline delineation. 31 Sorensen, supra note 2.

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Agenda 21, Chapter 17, para. 1, online: (accessed on April 11, 2005). 33 Aldo Chircop, “Legislating Coastal Governance: Practices, Trends and Strategies in Coastal Law-Making,” in R. J. Johnston, ed., The Coastal Society: 19th International Conference Proceedings, Newport, Rhode Island, 23-26 May 2004 (CD-ROM Format). Chircop identifies a global trend in the adoption of national legislation consisting of dedicated coastal management statutes. 34 Global Programme of Action for the Protection of the Marine Environment from LandBased Activities, 1995, online: (accessed on April 11, 2005). 35 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992 (hereafter Biodiversity Convention), online: (accessed on April 11, 2005). The Jakarta Mandate on Marine and Coastal Biological Diversity was adopted by COP Decision II/10 on Conservation and Sustainable Use of Marine and Coastal Biological Diversity (Jakarta), 1995, online: (accessed on April 11, 2005). 36 For example, the 1995 amendments to the Convention for the Protection of the Mediterranean Sea against Pollution, 1975 re-oriented that instrument towards coastal area protection and re-named it Convention for the Protection of the Marine Environment and Coastal Region of the Mediterranean. See Final Act of the Conference of Plenipotentiaries on the Amendments to the Convention for the Protection of the Mediterranean Sea against Pollution, to the Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft and the Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean Sea, 1995, Resolution II, 51 et seq., online: (accessed on April 13, 2005). 37 UNCLOS, supra note 1, Art. 21. 38 UNCLOS, ibid., Art. 21(1). 39 UNCLOS, ibid., Art. 21(2). 40 UNCLOS, ibid., Art. 22. 41 UNCLOS, ibid., Art. 25. 42 UNCLOS, ibid., Art. 44. 43 UNCLOS, ibid., Art. 24. 44 UNCLOS, ibid., Art. 24(1)(a). 45 UNCLOS, ibid., Art. 26. 46 Guidelines on Places of Refuge for Ships in Need of Assistance, IMO Doc. A 23/Res.949, March 5, 2004. 47 Biodiversity Convention, supra note 35. 48 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar, Iran, 2 February 1971, online: (accessed on April 11, 2005).

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The Regulation of Marine Transportation 49

Directive 2002/59/EC of the European Parliament and of the Council of June 27, 2002 Establishing a Community Vessel Traffic Monitoring and Information System and Repealing Council Directive 93/75/EEC, Official Journal, L208 (August 5, 2002), 10-27. 50 Directive 2000/60/EC of the European Parliament and of the Council of October 23, 2000 establishing a framework for Community action in the field of water policy, Official Journal, L 327 (December 22, 2000), 1-73; Recommendation 2002/413/EC of the European Parliament and of the Council of May 30, 2002 concerning the Implementation of Integrated Coastal Zone Management in Europe, Official Journal, L148 (June 6, 2002), 24-27. 51 Guidelines for the Designation of Special Areas under MARPOL 73/78 and Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas, IMO Doc. A 22/Res 927, January 15, 2002. 52 Identification of the Great Barrier Reef Region as a Particularly Sensitive Area, IMO Doc. MEPC.44(30), November 16, 1990. The PSSA area was extended to include the Torres Strait; see Report of the Marine Environment Protection Committee on its FortyNinth Session, IMO Doc. MEPC 49/22, August 8, 2003. 53 Identification of the Archipelago of Sabana-Camaguey as a Particularly Sensitive Sea Area, IMO Doc. MEPC.74(40), September 25, 1997. 54 Designation of the Wadden Sea as a Particularly Sensitive Sea Area, Submitted by Denmark, Germany and The Netherlands, IMO Doc. MEPC 48/7/2, June 28, 2002 55 Designation of the Marine Area around the Florida Keys as a Particularly Sensitive Sea Area, Submitted by the United States, IMO Doc. MEPC 46/6/2, January 19, 2001 56 Designation of Malpelo Island as a “Particularly Sensitive Sea Area,” Submitted by Colombia, IMO Doc. MEPC/44/7, December 3, 1999; Additional Information for the Designation of Malpelo Island as a “Particularly Sensitive Sea Area,” IMO Doc. MEPC 46/6/3, February 16, 2001. 57 Designation of the Marine Area of the Paracas National Reserve as a “Particularly Sensitive Sea Area” Submitted by Peru, IMO Doc. MEPC 48/7, April 18, 2002. 58 Designation of a Western European Particularly Sensitive Sea Area, Submitted by Belgium, France, Ireland, Portugal, Spain and the United Kingdom, IMO Doc. MEPC 49/8/1, April 11, 2003. 59 For example see: Designation of the Waters of the Canary Islands as a Particularly Sensitive Sea Area, Proposal Submitted by Spain, IMO Doc. MEPC 51/8, October 24, 2003; Designation of the Galapagos Archipelago as a Particularly Sensitive Sea Area, Submitted by Ecuador, IMO Doc. MEPC 51/8/2, December 24, 2003; Designation of the Baltic Sea Area as a Particularly Sensitive Sea Area, Submitted by Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland and Sweden, IMO Doc. MEPC 51/8/1, December 19, 2003. 60 Additional Protection for Particularly Sensitive Sea Areas (PSSAs), IMO Doc. MEPC 46/6/1, January 19, 2001, para 2.4.10. For additional suggestions, see also Draft Guidance Document on Associated Protective Measures for Particularly Sensitive Sea Areas, Submitted by WWF, IMO/MEPC 49/8/2, May 8, 2003. 61 PSSA Guidelines, supra note 51, para. 3.1. 62 PSSA Guidelines, ibid., para. 7.6. 63 Supra note 51. 83

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Annex I: Mediterranean Sea; Baltic Sea; Black Sea; Red Sea; Gulfs area; Gulf of Aden; Antarctic area (south of 60 degrees latitude); North West European Waters (comprising the North Sea, Irish Sea, Celtic Sea, English Channel and part of the NorthEast Atlantic west of Ireland). Annex II: Baltic Sea; Black Sea; Antarctic area. Annex V: Mediterranean Sea; Baltic Sea; Black Sea; Red Sea; Gulfs area; Antarctic area; North Sea (including the Skagerrak and English Channel); Wider Caribbean. Annex VI: Baltic Sea; North- West European Waters. For a commentary, see Aldo Chircop, “Particularly Sensitive Sea Areas and International Navigation Rights: Trends, Controversies and Emerging Issues,” in Iwan Davies, ed., Issues in International Commercial Law (Aldershot, UK, Ashgate Publishing, 2005), 217-243. 65 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, December 18, 1971, 1110 U.N.T.S. 57; as amended by the following protocols of November 19, 1976, 16 I.L.M. 621, May 25, 1984, 23 I.L.M. 195, November 27, 1992, 1996 A.T.S. 3. A similar point may be made with reference to the sister instruments on hazardous and noxious substances and bunker fuel. 66 In general, see the IOPCF Claims Manual (IOPCF 1992, London, November 2002), online: (accessed on April 11, 2005).

84

Ocean and Coastal Governance The European Approach to Integrated Management: Are There Lessons for the China Seas Region? Ronán Long * and Anne Marie O’Hagan †

Integrated Ocean Management is not only the most appropriate framework for achieving long-term goals for oceans and seas development, but also a necessary one to assure a proper sustainable development of the oceans and seas within the normative structure established by the United Nations Convention on the Law of the Sea. Statement on behalf of the European Union, H.E. Mr. José Antonio De Yturriaga Barberán. Sixth Committee (Legal Affairs), United Nations, April 11, 2002

INTRODUCTION The terrible events and human tragedy of the tsunami in the Indian Ocean on December 26, 2004, brought home to the world the unpredictable nature of the ocean in relation to affairs of mankind. It was a timely reminder of the fragility of the coastal zone when faced with the awesome power of the sea. 1 These catastrophic events demonstrate the importance of planning and management in coastal and ocean regions. They also provide us with a salutary lesson regarding the need for a coherent approach to the challenges posed by coastal and ocean use. Against this background, it is significant that a number of international organisations have called upon states to adopt an integrated management *

Manahan Law of the Sea Research Fellow, Director Marine Law and Ocean Policy Centre, National University of Ireland, Galway. The authors wish to thank their colleagues in the Martin Ryan Institute: Dr. Yoshifumi Tanaka and Prof. Clive Symmons for their comments on this subject. Additional information was provided by a number of specialist lawyers and scientists in the European Commission. † Research Fellow, Marine Law and Ocean Policy Centre, National University of Ireland, Galway. 85

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approach to manage human interactions with the ocean (IOM). 2 While the concept of integrated coastal zone management (ICZM) is well established in the domestic law of several states, 3 both IOM and ICZM are relatively new concepts for policy development in the European Union (E.U.). 4 This paper traces the background to these developments and assesses whether any lessons may be derived from the European experience that may benefit countries in other ocean regions, such as the China Seas region. At the outset, it needs to be pointed out that the European Union still lags behind many other states and has only taken a number of tentative steps to introduce ICZM and IOM in coastal and ocean areas adjacent to the European land mass. 5 These steps have been taken with a view to improving resource exploitation and environmental protection in coastal areas. Despite this progress, the European Union still lacks a coherent legal framework to ensure that the various sector policies that regulate shipping, the marine environment, marine scientific research, energy, fishing activity and international trade are consistent with each other and achieve the same goals. In particular, the European Union does not have instruments similar to the United States Coastal Zone Management Act of 1972 or Canada’s Oceans Act of 1996 to unify the conflicting approaches adopted by the member States to coastal and ocean issues. Neither has the plethora of conflicting claims by member States to the various maritime jurisdiction zones such as the exclusive economic zone and the continental shelf facilitated the implementation of ICZM and IOC at a supra-national level. The European Union has, however, placed protection of the marine environment at the top of the political agenda and has a sophisticated institutional framework capable of policy development and conflict resolution. Though far from ideal, this framework may allow the European Union to follow the approach currently being pursued by the United States, Canada, Australia and New Zealand to ocean and coastal management. For convenience, this paper is divided into three parts. Part I describes briefly the European Union, the legal order underpinning European integration, and the recent progress in adopting an integrated approach to the management of the coastal zone and ocean areas contiguous to the European landmass. For comparative purposes, Part II looks at the move toward the adoption of an integrated ocean governance model in a number of countries outside of the European Union. A number of obstacles that need to be overcome if the European Union is to successfully implement 86

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ICZM and IOM are identified in Part III. This part also identifies a number of issues that may be relevant to other regional areas outside of the European Union such as the China Seas region. Before turning to Part I, there are two other preliminary points. Firstly, much of the terminology describing ICZM and IOM is inconsistent and doesn’t sit comfortably with the precise nature of the 1982 United Nations Convention on the Law of the Sea (hereinafter the “LOS Convention”). Consequently, this paper deals with ICZM and IOM concurrently. This perspective is justified on the grounds that both topics are interrelated and European documents seldom specify the precise geographical boundaries that separate the application of either concept. On a simple level, it may be argued that IOM applies the principles underpinning ICZM further offshore. Secondly, it also needs to be emphasised that the European approach to both ICZM and IOM is very much in a state of evolution and progress, which suggests that there is considerable scope within the European legal order to embrace and apply these concepts. Furthermore, it is also foreseeable that the implementation of these concepts will lead to policy elaboration and the adoption of legislative instruments in due course. The acquis communuataire [the settled law of the European Community], international law in general, and the law of the sea, in particular, will tailor any such instruments. In this context, this paper contends that the LOS Convention is the key normative framework for future policy and legislative developments implementing ICZM and IOM. PART I THE EUROPEAN APPROACH The European Union The European Union is a regional integration organisation and is made up of 25 States, 6 20 of which are coastal States. 7 As an international organisation, 8 the European Union has no territory and only exercises jurisdiction over the territory and sea areas under the sovereignty and jurisdiction of the member States in accordance with the powers vested in the European Union by the E.C. Treaties. Two oceans border Europe: the Atlantic and the Artic. European member States share a large continental shelf in the north-east Atlantic and the European coastline, which is effectively the coastline of the member States, stretching from the Gulf of 87


Bothnia in the Baltic Sea as far as the Aegean Sea in the eastern Mediterranean. Several European member States are islands, most notably the United Kingdom, Ireland, Malta, and Cyprus. The European Union is bordered by two semi-enclosed seas of great significance: the Mediterranean Sea in the south, which is mainly a high seas area 9 ; and the Baltic Sea in the north, which is largely within the sovereignty and jurisdiction of seven member States. 10 In addition, there are several regional seas such as the North Sea, the Irish Sea, and the Adriatic Sea that are in many ways unique from a geomorphologic and oceanographic perspective. Access to and from these semi-enclosed seas and regional seas is through international straits such as the Straits of Gibraltar and the English Channel, which act as pivotal points ensuring the smooth flow of international trade and commerce. In the north, Finland, Latvia, Lithuania, Estonia and Poland have access to the Atlantic Ocean through the Baltic Sea. Likewise, in the south, Italy, Greece, Malta and Slovenia only have access to the Atlantic through the Mediterranean Sea. Accession negotiations have commenced with Bulgaria, Romania, Croatia and Turkey. 11 Three of these states have extensive coastlines on the Black Sea. An application has also been received from the Former Yugoslav Republic of Macedonia to become a member of the European Union. In terms of size, the sea area under the sovereignty and jurisdiction of the member States is equivalent in size to the European land mass. 12 Obviously, the size of sea areas under the jurisdiction of individual member States varies enormously. In the case of Ireland, for example, the extended continental shelf measures thirteen times the landmass of the island of Ireland. 13 The European coastline is both long and diverse in terms of human activity, climate and ecosystems. 14 More than 70 out of the 455 million citizens of the enlarged European Union, or 16 percent of the E.U. population, live in coastal municipalities. 15 This proportion is increasing, and there are some estimates that suggest that approximately half the population of the member States (225 million) live within 50 kilometres of the sea. 16 The benefit derived from the ecosystem(s) in coastal zones is estimated as exceeding the value of the national gross domestic product (GDP) in many of the smaller member States. 17 European ports such as Rotterdam, Hamburg, London, Lisbon and Liverpool act as gateways for international trade and link the European hinterland with the sea through a complex network of canals and rivers that bisect the continent. Several European countries such as Greece and Sweden have a large number of offshore islands that are popular holiday 88


destinations. In contrast with the South China Sea region, there are no archipelagic states in the European Union. Europe’s geographical diversity is matched by a unique legal order that has evolved considerably over the last fifty years. This legal order may be traced back to the Treaty of Rome and a number of other international treaties concluded by five States in the 1950s. 18 In addition to these “foundation treaties,” other Treaties, Protocols and Acts delimit the powers and jurisdiction of the European Union. 19 The objective of the European Union is “to promote economic and social progress and to achieve balanced and sustainable development.” 20 In short, the European Union is an exercise in economic and political integration. Under the E.C. Treaties, the European Union has legal personality and common institutions (the European Parliament, the Council of Ministers, the European Commission, and the European Court of Justice) that bind the member States. 21 Periodically, the heads of the member States sit collectively as the European Council and issue directions on general policy matters. The common institutions have issued forth a veritable tide of secondary legislation in the form of directives, regulations, decisions, and resolutions. Many of these instruments impinge and regulate activities in sea areas under the sovereignty and jurisdiction of the member States. In general, European law is an extra-territorial source of law binding in certain circumstances on the member States. Unsurprisingly, given the range and diversity of the member States, the European Union has adopted more than forty “common policies” and twelve member States share a single currency, the Euro. Furthermore, while many of the member States do not share a common legal tradition and have different forms of national, regional and local government, E.C. law in many instances is supreme and takes precedence over the law of the member States. 22 The supremacy of E.C. law over national law is well established, and member States are obliged to take all appropriate measures to fulfil community obligations. Lawmaking in the European Union is complex and entails the European Commission initiating a legislative proposal, consultation with various committees and, in some instances, with the European Parliament, depending on the content of the proposal. Draft proposals do not become law until they receive the requisite votes in the European Council, which is made up of the ministers representing the member States. 23 Lawmaking in the European Union is not straightforward, and this poses particular problems for the development of new normative initiatives such as those underpinning ICZM and IOM as explained in Part III of this paper. 89


Recently, member States of the European Union have concluded a treaty elaborating a Constitution for the European Union. This treaty, which will have to be ratified by all member States, does not contain any express references to ICZM or IOM. 24 The Constitution does, however, bind the European Union to prudent and rational use of natural resources. 25 Furthermore, the Constitution clearly states that the European Union has exclusive competence in the conservation of marine biological resources under the common fisheries policy. 26 In other areas the European Union shares competence with the member States. 27 Importantly, the European Union and all of the member States with the exception of Estonia are party to the United Nations Law of the Sea Convention. 28 The institutions of the European Union are increasingly active in the regulation and management of marine activities beyond the traditional domain of sea fisheries. 29 In the context of the law of the sea, the European Union is an actor in its own right and the Declaration of the European Community on signature of the LOS Convention records the significance of the Convention as a major effort in the codification and progressive development of international law. 30 The European Union has used the LOS Convention as a backdrop for the development of community policies and for the development of its institutional role within international organisations such as UNEP and the IMO. Traditionally, European law has regulated marine-related activities on a sector basis and there was little scope for the coordination or integration of policies for fisheries, transportation, environment, energy and regional development. 31 This shortcoming is compounded by the nature and extent of the legislative competence of the European Community, which, in some instances, is shared with the member States. 32 The exercise of the competence that the member States have transferred to the community under the treaties is, however, by its very nature, subject to continuous change. 33 Other than the LOS Convention, the European Union is party to many international and regional treaties that regulate and manage the marine environment as well as the living resources of the sea. A full review of these treaties is not possible here. 34 As evident from the statement (cited above) delivered on behalf of the European Union to the United Nations Legal Affairs Committee on April 11, 2002, the European Union is committed to establishing an integrated approach to ocean management in accordance with the normative framework set out by the LOS Convention. 90


Integration A number of questions may be posed regarding the concept of “integration.” The first obvious question is: What is integration? The term “integration” is not defined per se in international law and is used by some specialist commentators to describe the bringing together of various parts of the planning and management activities into a single unified system. 35 Agenda 21 of UNCED describes the need for new approaches to marine and coastal management that “are integrated in content.” 36 From a legal perspective there is little doubt but that the term is ambiguous and open to a number of meanings. 37 In the case of ICZM, integration is a management concept that allows a range of issues to be taken into consideration in decision-making regarding the use, development and regulation of the coastal zone. The European Commission Communication on ICZM states that: Integrated Coastal Zone Management (ICZM) is a dynamic, multidisciplinary and iterative process to promote sustainable management of coastal zones. It covers the full cycle of information collection, planning (in its broadest sense), decision making, management and monitoring of implementation. ICZM uses the informed participation and cooperation of all stakeholders to assess the goals in a given coastal area, and to take actions toward meeting these objectives. ICZM seeks, over the long-term, to balance environmental, economic, social, cultural and recreational objectives, all within the limits set by natural dynamics. ‘Integrated’ in ICZM refers to the integration of objectives and also to the integration of the many instruments needed to meet these objectives. It means integration of all relevant policy areas, sectors, and levels of administration. It means integration of the terrestrial and marine components of the target territory, in both time and space. 38 Another feature of ICZM is that it is flexible in order to facilitate the implementation of different policies in different coastal areas. According to a report published by GESAMP, 39 an integrated framework should contain the following elements: law, international cooperation, resource 91


management principles, a policy process, devolved institutional arrangements, stakeholder participation in decision making, financial and educational programmes. 40 There is general consensus in the specialist literature that the implementation of coastal zone management is a prerequisite for sustainable resource use in the coastal zone. 41 The second question that may be posed is: Why is it necessary for the European Union to adopt an integrated approach? The answer to this question appears to vary. In the case of ICZM, the European Council has outlined a number of reasons why Europe needs to adopt and implement this management concept. 42 The principal reason is based on the view that the coastal zone is of central importance for the protection of the environment, economic, social, cultural and recreational interests in the member States. 43 Also, there is general consensus that the coastal zone possesses a unique biodiversity in terms of flora and fauna. Unsurprisingly, the high population density and industrialisation in the coastal zone has placed a strain on the natural resources and the coastal environment. Recent studies indicate that European fisheries are greatly depleted and many European rivers are polluted and of poor ecological quality. 44 Furthermore, about 85 percent of the European coastline is threatened by development. 45 In global terms, the European Union is a major contributor to global warming and climate change. 46 Good ocean stewardship and coastal zone management are prerequisites to addressing the problems associated with climate change. In the European context, a recent report by the European Environment Agency estimates that climate change is resulting in: the rise of sea levels, an increase in the sea surface temperature, and changes in the marine growing seasons and species composition. 47 More specifically, the report estimates the current rise in sea level is 0.8–3.0 mm per year. The report tabulates increases in sea surface temperature in basins such as the Baltic Sea and the North Sea. This has resulted in an increase in phytoplankton biomass, a northward movement of indigenous zooplankton species by up to 1,000 km, and an increasing presence and number of warm-temperate species in the North Sea. Growth in the population in the coastal zone has also lead to an increase in pollution of the sea from land-based sources. Many coastal activities are in decline and no longer support employment in remote regional areas of the European Union such as Ireland, Portugal and Spain. In some instances, new economic activities such as offshore energy installations and aquaculture are creating new opportunities for coastal development. Another particular reason for adopting an integrated 92


approach is that there is considerable disparity in the planning law and administrative structures of the member States that apply to the coastal zone. In other words, integration will facilitate the approximation of the law applicable to the coastal zone. Surprisingly, while there appears to be a credible case supporting ICZM, few member States other than France and Spain have introduced specific legislation governing ICZM at a national level and this, perhaps, has provided the European institutions with impetus for taking European measures. Furthermore, much of the European regulatory framework currently applicable to the coastal environment was not enacted for this particular purpose and it is now evident that the traditional terrestrial approach to the regulation of the marine environment is no longer sufficient to ensure the sustainable development of coastal activities. Further offshore beyond the coastal zone, IOM is identified by a number of international bodies as an essential tool to address crosscutting issues such as sustainable fisheries, degradation of the marine environment, promotion of marine scientific research and the safety of navigation. 48 This shift towards integration is also evident in E.C. law where considerable effort is now being made to tackle trans-boundary issues through the medium of the common policies (the fisheries, transport and environmental policies in particular). The scope of these policies, in many instances, extends as far as the remit of the member States under international law. These policies remain in most cases sector policies that contain few integrated elements. The shift toward integration at E.C. level appears to be motivated by a need to achieve policy coherence at six different levels: environment, economic, social, spatial, temporal, scientific, and institutional. 49 Similarly, a recent commentary has suggested that the recent call for an integrated approach to ocean management could be achieved at three different levels: ecological, normative, and the implementation level. 50 The rationale supporting the adoption of an integrated approach appears to be based upon a presumption that the current frameworks (jurisdictional and otherwise) are inadequate to resolve conflict, achieve cooperation, and manage the exploration and exploitation of marine resources while ensuring the protection of the environment. There is little doubt that the adoption of structures and regulatory provisions at a European level, in extremis, will ultimately usurp the role and powers of the member States in relation to ocean use. Integration may thus be viewed as a push for greater European control over the management of offshore resources that are under the 93


sovereignty and jurisdiction of the member States. At a European level, the adoption of an integrated approach may be justified on the grounds that there is increased plurality of legal norms and parallelism in treaties concerning the sea. This is most evident in international conventions concerning the marine environment that, in many instances, contain provisions that are part of European law. 51 Consequently, an integrated approach to international and European legal obligations will facilitate the coordination and implementation of a broad range of legal measures at the multilateral, regional, and local levels. The “Soft Law” Route Towards Integration The E.C. Treaties do not contain any express provisions on ICZM or IOM. Indeed, one particular feature of the European approach to ICZM has been the preference for “soft law” in the form of European Council resolutions, communications, and recommendations, none of which has legal effect and is thus not binding on the member States. One eminent jurist has described “soft law” as “all that is not law”. 52 The European Union has taken several measures towards committing the member States to adopt an integrated approach in both the coastal zone and further offshore. Some of these measures are sketched here. Integrated Measures for the Coastal Zone The origin of ICZM in Europe may be traced back to two resolutions taken by the European Council of Ministers in 1992 and 1994. 53 Both resolutions called upon the European Commission to establish a strategy for the establishment of an integrated approach to coastal zone management in the member States. Subsequently, the European Commission established a sizeable number of experimental projects in the coastal zones of 13 countries with a view to assessing the suitability of ICZM as a management tool. Collectively, these projects became known as the European Demonstration Programme in ICZM. On completion of the programme, the European Commission established six thematic studies to synthesize the results and published two reports that set out the general principles and policy options underpinning ICZM. 54 After completing a public consultation process, the European Commission sent a Communication to the European Council of Ministers and the European Parliament setting out a European strategy on ICZM. 55 Communications 94


per se do not have legal effect and are only a means of providing background information to the European institutions on a particular subject. 56 This particular communication, nevertheless, pointed out that there is no simple legislative solution to the complex problems associated with coastal zone managment. In light of this conclusion, the European Commission advocated the adoption of a strategy that would also reflect the physical, economic, cultural and institutional diversity in the member States. This strategy would also aim to discharge the European Union’s obligations under international agreements such as Chapter 17 of Agenda 21. Significantly, the strategy defines the role of the European institutions as one of providing leadership. Consequently, implementation of ICZM was to be undertaken by the member States, at a local, regional, and national level. Importantly, the European Commission also proposed that the member States should retain complete flexibility in selecting the specific means to implement ICZM. The Commission noted that this approach mirrors the U.S. Coastal Zone Management Act of 1972 that has resulted in the adoption of ICZM programmes at state level, which cover 99 percent of the U.S. coast. The European ICZM strategy also places considerable emphasis on applying existing legal instruments as a means to implement coastal zone mangement. One of the core elements in the strategy was the adoption by the Council and the Parliament of a Recommendation inviting the member States to implement the principles of good coastal zone management. 57 (a). (b). (c). (d). (e). (f). (g). (h).

A Broad "Holistic" Perspective (Thematic and Geographic) A Long Term Perspective Adaptive Management (responding to new information and conditions) During a Gradual Process Local Specificity Working with Natural Processes Participatory Planning Support & Involvement of all Relevant Administrative Bodies Use of a Combination of Instruments designed to facilitate coherence between sector policies and planning and management. 58

One noticeable feature of these principles is that they place considerable emphasis on procedural matters and neglect to provide guidance on the substantive measures that should be adopted by member States to 95


implement ICZM. Ostensibly, the aim of the Council Recommendation is to move coastal zone management away from project-led initiatives and toward a non-regulatory scheme based upon partnerships between local stakeholders in coastal zones and the relevant regional authorities. Whether this course will result in the successful implementation of ICZM is debatable. In the words of one commentator: “At the end of the day, the partnerships depend on the political will and commitment of individual government bodies and private individuals, all of which have different and often conflicting priorities.” 59 Furthermore, under the E.C. Treaty, Council Recommendations are not legally binding on the member States and have “no legal force.” 60 This means that the provisions in the Recommendation are dependent upon the political commitment of the Member States and the regional authorities to embrace the concept of ICZM. 61 Tellingly, efforts by the European Parliament to introduce a more robust legal framework for ICZM were rejected by both the European Commission and the Council of Minister. 62 Other than advocating a strategic approach and setting down the aforementioned principles, the Recommendation requires Member States to undertake a national stocktaking exercise reviewing the actors, laws, and institutions influencing the management of the coastal zone. 63 Based on the results of this stocktaking, each member State, in partnership with the regional authorities and inter-regional organisations, is to implement the principles of coastal zone management. Member States are also encouraged to implement existing conventions/treaties with neighbouring countries, including non-member States in the same regional sea area. This is aimed at establishing mechanisms for better coordination of cross-border issues. With a view to ensuring adequate follow-up action at a European level, member States are obliged to report to the European Commission on their experience in implementing the Recommendation by February 2006. The European Commission, in turn, is obliged to provide the European Council and Parliament with an evaluation report and a proposal for E.C. legislation, if appropriate, by January 2007. 64 Other than pursuing the soft law route on ICZM, the European Union has given considerable financial support to fund coastal zone management projects at a local level. 65 Since the adoption of the ICZM Recommendation, there have also been a number of other developments in European law that will have a major bearing on the implementation of ICZM in the member States. Most notably, the European Union has adopted a Water Framework Directive that sets out a comprehensive 96


policy for the management of European rivers, estuaries and coastal waters. 66 This Directive is aimed at reducing land-based pollution into the marine environment. 67 Implementation of the Directive will require all member States to manage the water resource in the coastal environment in a sustainable manner. Integrated Measures Further Offshore The soft-law route toward IOM is evident in a number of recent initiatives aimed at the adoption of both a European marine environment strategy and a maritime policy covering all marine sector activities. These initiatives have their origin in the 6th Environment Action Programme that aims to protect and conserve the European marine environment. 68 Regionally, the European marine environment extends as far as the Arctic, Northeast Atlantic, Baltic, Mediterranean, and Black seas. 69 The 6th Environment Action Programme identifies a number of threats to the quality of this environment including commercial fishing, oil and gas exploration, shipping, pollution, and the extraction of sand and gravel from the seabed. In 2002, the European Commission Communication published a blueprint outlining the principal elements in a strategy for the protection of the marine environment. 70 This Communication was discussed at a Stakeholder Conference in Køge, Denmark, in 2002 and at a European Council meeting which requested the European Commission, inter alia, to do the following: a.

b.

c. d.

Base its proposal for a marine strategy on an integrated approach, which should include, where appropriate, relevant qualitative and quantitative targets and timetables, against which the foreseen measures can be measured and evaluated, as well as identify actions for its implementation (emphasis added); Guide the development and implementation of the ecosystem approach including the further development of biological and environmental targets and benchmarks; Recommend further measures for the integration of environmental aspects in other Community policies; Enhance and facilitate the coordination and cooperation with and between the Regional Seas Conventions and agreements, the European Environment Agency, the European Maritime 97


e.

Safety Agency and other relevant fora and to provide for a coordination and streamlining of monitoring and assessment to achieve the highest synergistic effect; Invite neighbouring countries to participate in the process and develop partnerships, particularly in the Baltic, the Mediterranean and the Black Sea.

Subsequently, 34 European countries and 30 international governmental and non-governmental organisations participated in a series of meetings on topics related to the strategy. 71 In 2004, a second stakeholder conference on the development of a European marine strategy took place in Rotterdam. At this conference, the European Commission and several international organisations such as the International Council for the Exploration of the Seas (ICES) presented a broad range of documents including a paper entitled: “Thematic Strategy for the Protection and Conservation of the European Marine Environment.” 72 Many of these documents set out guidance on the application of the ecosystem approach in the marine environment. The Barcelona, Black Sea, Helsinki and OSPAR Commissions presented reviews on current regional schemes to protect the marine. In an address to the conference, a senior representative of the European Commission expressed the view that the European marine environment strategy will consist of a common vision with the overall goal of ensuring that “future generations can enjoy biologically diverse and dynamic oceans and seas that are safe, clean, healthy and productive.” 73 This common vision will be accompanied by a long-term political commitment to achieve a number of agreed objectives: the protection of marine ecosystems; the phasing out of some types of pollution in the marine environment within a defined timeframe; and the development of marine goods and services in a sustainable manner. The European Commission also emphasised the need for Europe to adopt an integrated approach to the management of the marine environment based upon three things: the ecosystem approach, the precautionary principle, and involvement of the various stakeholders in the policy process.74 Significantly, at the Rotterdam conference the various parties in attendance all expressed broad support for further integration and coherence of E.U. policies. Other than stating the obvious, that integration is required at all levels (multilateral, regional and state levels), many of the conference documents are vague in how this is to be achieved in practice. There were some suggestions by delegates at the conference that 98


horizontal legal instruments such as the Water Framework Directive, the Habitats Directive, the Environmental Impact Assessment Directive and the Strategic Environmental Impact Assessment Directive could be used for the purpose of integration. 75 This suggestion is particularly surprising as many of these instruments have been drafted from a terrestrial perspective and contain few provisions that are directly related to the marine environment. Nevertheless, the European Commission signalled their intent to propose a specific thematic strategy on the protection of the marine environment in 2005. Furthermore, the newly appointed President of the European Commission, Mr. Barroso, has indicated that the Commission will develop a concerted maritime policy and that one commissioner, Mr. Borg, will be responsible for the coordination of all the maritime activities within the College of Commissioners. The thematic strategy on the protection of the marine environment will thus form a major component of the wider maritime strategy that is also likely to be proposed in 2006. In the interim period, the European Commission is preparing a Green Paper setting the principal elements for such a strategy. Green Papers are generally aimed at promoting public discussion and seldom provide information on the precise content of legislative measures. In addition to the European measures to develop a coherent European approach to the marine environment, several member States of the European Union are engaged in marine spatial planning exercises in response to commitments made at the 5th North Sea Conference and under the OSPAR framework. 76 Marine spatial planning has been identified by a number of organisations in the United Kingdom as a panacea to the management difficulties encountered in managing conflicting uses of the sea. 77 Germany has also taken several measures to spatially manage areas of the North Sea and the Baltic Sea with a view of reconciling offshore energy developments, maritime transport and nature conservation. 78 There are, however, many practical difficulties to be overcome before marine spatial plans become the norm for marine management, including: the scope of the plan; the scale of the plan; the information and data requirements; responsibility for the plan; stakeholder involvement; and responsibilities for implementation, enforcement, and compliance. There have also been a number of suggestions in the United Kingdom regarding the establishment of a “pilot scheme” prior to the development of concrete proposals regarding marine spatial planning. 79 Early indicators suggest, nevertheless, that marine spatial planning may evolve as a planning and management tool for ICZM and IOM. 99


PART II COMPARATIVE LAW: MOVING TOWARDS INTEGRATED GOVERNANCE Background As noted above, the law as it applies to sea areas under the jurisdiction and sovereignty of the member States of the European Union is tailored largely by developments in both public international law and the law of the European Community. Two of these states, Ireland and the United Kingdom, share a common legal heritage with a number of other common law jurisdictions with distinctive oceans and coastal policies. A brief review of recent developments in the United States, Canada, Australia and New Zealand is undertaken here with a view to provide some comparative context by which progress in Europe may be gauged. 80 This is followed by a description of some of the legislative measures adopted by China aimed at establishing a coherent framework regulating marine related activities. The United States The United States has provided leadership in the development of the law of the sea and oceans policy since the 1940s. 81 The Commission on Marine Science, Engineering, and Resources (the “Stratton Commission”) has undertaken seminal work during the 1960s. 82 More recently, in response to increased concerns regarding the pressures and opportunities regarding marine resource use,83 the United States Congress enacted the Oceans Act 2000, which provided a legislative basis for the president to appoint a U.S. Commission on Ocean Policy made up of 16 independent experts in a range of maritime disciplines. 84 The mandate of the Commission extended to holding public meetings and submitting a report to Congress and the president regarding an oceans policy for the United States. 85 The Commission’s report is elaborate and makes more than 200 recommendations regarding ocean stewardship, the establishment of monitoring programmes, and public education on the values of ocean management and ocean stewardship. 86 These recommendations were subsequently endorsed by the non-governmental Pew Oceans Commission (an independent organisation) that has recommended the adoption of a National Ocean Policy Act as a cornerstone for the development of a United States policy in relation to the sea. 87 These recommendations 100


foresee the establishment of spatial planning in oceanic areas as well as a comprehensive network of marine protected areas. In particular, the Oceans Commission proposed the following: (a).Creating a new national ocean policy framework to improve decision-making; (b).Strengthening science and generating high-quality, accessible information to inform decision makers; (c).Enhancing ocean education to instil future leaders and informed citizens with a stewardship ethic. Importantly, the Oceans Commission recommended that the United States accede to the LOS Convention; a National Oceans Council be created and be chaired by an assistant to the president; and a Presidential Council of Advisors on Ocean Policy in the Executive Office of the President be established. The Commission also recommended establishment of a range of subsidiary bodies, including, a Committee on Science, Education, Technology, and Operations; a Committee on Ocean Resource Management; and Regional Oceans Councils. The debate in Congress in relation to the recommendations received cross-party support. Ultimately, the outcome of the move towards the adoption of an integrated oceans policy in the United States may well depend on political support for the Oceans Commission’s proposals. Significantly, many of the difficulties regarding accession to the LOS Convention have been overcome in the Senate’s Committee on Foreign Relations, and this ought to pave the way for the adoption of an elaborate oceans policy as envisaged by the Oceans Commission. 88 Australia Australia exercises jurisdiction over eight million square kilometres of ocean and is a world leader in many areas of ocean planning, scientific research, and industry practices. Australia’s status as a world leader has been facilitated by the implementation of a distinctive oceans policy since the late 1990s. 89 The policy was established under the auspices of the Department of Environment, Sports and Territories (referred to as Environment Australia), with a view to provide a framework, inter alia, for the development of marine science, technology, and industry. 90 Initial proposals to adopt an integrated management approach to ocean issues 101


were opposed by several marine-based industries that sought to retain a sector driven approach to the management of offshore activities. Despite the initial reluctance of industry to support the policy, one of the outcomes of the broad consultation and policy formulation process pursued by Environment Australia is that the oceans policy has a range of objectives that hinge on the support of government, the private sector, scientific bodies, and the public for their implementation. 91 The leitmotiv of the policy is stated as follows: “Healthy oceans, cared for, understood and used wisely for the benefit of all, now and in the future.” 92 One of the drawbacks in the Australian oceans policy has been the failure of the Commonwealth Government to involve fully the State and Territory Governments which have legislative power for the sea area within 3 nautical miles of the baselines under the Offshore Constitutional Settlement of 1983. 93 From a comparative perspective, the most important aspect of Australian policy is the institutional arrangements that have been established for implementation and management of the policy (illustrated in Figure 1 below).

National Oceans Ministerial Board

Commonwealth-State Coordination Through ANZECC

National

National

Oceans

Oceans

Advisory

Office

Regional Marine Plan Steering Committees

Group

Figure 1: Oceans Planning and Management in Australia: Key National Elements.

102


The key Australian institutional arrangements include the establishment of a National Oceans Ministerial Board made up of the Commonwealth Ministers for the environment, industry, resources, fisheries, science, tourism and shipping. Other Ministers are co-opted as necessary, such as defence and foreign affairs. The Board has a broad ranging remit including the following: the coordination of cross-sector issues; consultation on priorities for programme expenditure; consideration of marine research priorities; and guidance of the actions of the National Oceans Office. The Board is advised by the Oceans Advisory Group made up of members with non-government interest, such as industry, science and conservation, who are selected for their expertise in ocean affairs. The National Oceans Office provides the Board with a secretariat, technical support and programme delivery in consultation with other Commonwealth agencies. Australia has also established regional marine plans and steering committees have been appointed by the Board to oversee the development of the plans. State and Territory Agencies participate in the steering Committees where they are involved with the plans. The initial budget to implement the policy was $50 million over a three-year period (approximately € 25 million). 94 One evaluation of developments in Australia has suggested that the success of the policy is largely dependent on reconciling sector interests with the new institutional arrangements. 95 The policy implementation followed to date is illustrated in Figure 2. At a local level, there has been considerable follow-up action including the re-designation of areas of the Great Barrier Reef for conservation as well as a range of actions to improve stakeholder and industry support for the policy. 96

103


Figure 2: Steps followed by Australia in establishing the institutional structures to implement the Oceans Policy. New Zealand New Zealand exercises jurisdiction and sovereign rights over an extensive sea area. 97 New Zealand commenced developing an oceans policy in the late 1990s as a means to harmonise national policies and to implement international obligations. A Coastal and Oceans Task Force undertook much of the initial work under the auspices of the Department of the Prime Minister and Cabinet. 98 This Task Force has developed the policy in three stages as shown in Figure 3 99 These stages entail defining the vision, designing the tools to deliver the vision, and delivering the vision. Considerable emphasis is also placed on public and Maori consultation. 100

104


Figure 3. The vision for the oceans policy is stated as follows: Healthy Oceans: New Zealand understands marine life and marine processes and accordingly take responsibility for wisely managing the health of the ocean and its contribution to the present and future social, cultural, environmental and economic well being of New Zealand. 101 A special Oceans Policy Secretariat was established in 2000 to undertake strategic policy work. 102 Unexpectedly, progress was stalled for a considerable period between 2002 and 2004 because of difficulties in integrating the Treaty of Waitangi 1840 into the policy.103 This Treaty protects Maori rights in New Zealand, including their interests in the foreshore and the marine environment. 104 The foreshore issues were largely resolved under the direction of the Department of the Prime Minister and with the enactment of the Foreshore and Seabed Act in 2004. Stage three of the process that entails designing the policies, tools, and processes for delivering the vision will integrate both the Treaty of Waitangi principles and the full range of New Zealand’s international obligations into the policy. The Oceans Policy Secretariat was stood-down while the Maori foreshore and seabed rights were being resolved, and there has been considerable delay in the adoption of framework legislation and the appointment of an Oceans Minister within the government. Other than the Treaty of Waitangi and obligations that stem from international 105


treaties, New Zealand has broad range of domestic legislation and policy initiatives such as the Resource Management Act 1991, the New Zealand Coastal Policy Statement, the Fisheries Act 1996 and the New Zealand Biodiversity Strategy, which will have to be incorporated into the oceans policy. Furthermore, New Zealand’s Environmental Court may prove to be an appropriate forum for dispute resolution in relation to marine issues. Overall, New Zealand appears to be fully committed to establishing both ICZM and IOM, even if the precise legislative architecture of the policy is still on the drawing board. Canada Canada has a long and turbulent history in relation to the law of the sea and on occasion has resorted to unilateral action to defend its national interests in the Atlantic, Pacific and Arctic Oceans. 105 The division of legislative powers between the Federal and Provincial Governments in relation to marine resource use and management has exacerbated difficulties. In response to international developments and the failure of a number of domestic policies, Canada developed an oceans policy in the 1990s that aims to ensure healthy, safe, and prosperous oceans for the benefit of current and future generations of Canadian citizens. 106 In order to give effect to the policy, the Government of Canada enacted the Canada Oceans Act in 1996. 107 The Act authorised the Minister of Fisheries and Oceans Canada (the Minister) to put together a national oceans strategy guided by the principles of sustainable development, the precautionary approach and integrated management. 108 In 2002, the Minister published Canada’s Ocean Strategy, which provides a strategic approach to oceans management for the 21st century and sets out the government policy statement for the management of estuarine, coastal and marine ecosystems. 109 The essence of the Strategy is to support policy and programmes aimed at understanding and protecting the marine environment, supporting sustainable economic opportunities, and providing international leadership. In 2005, Canada commenced the first phase of an Oceans Action Plan aimed at developing integrated management plans for large ocean areas on all three coasts with a view of preserving the health of marine ecosystems. Surprisingly, prior to the enactment of the Oceans Act in 1996, Canada’s policy for the management of the ocean was described as “piecemeal, fragmented and scattered” and summarised by the Canadian 106


National Advisory Board on Science and Technology (the Board) as “haphazard” and “ad hoc”. 110 The genesis of primary legislation (an Oceans Act) lies in a report submitted by the Board to the Prime Minister. Subsequently, the Prime Minister expressed the view that prudent management of the ocean was needed as a tool for long-term regional development. 111 The Oceans Act 1996, aims to make Canada the world leader in oceans and marine management, and was considered by the Canadian Parliament as the first step toward recognising the importance and potential of sea areas under Canadian jurisdiction. As a framework instrument, the Act seeks to address the following: regulatory duplication; conflict and inadequacies that result in inefficiencies; failure to protect the marine environment adequately; and impediments to marine development. Under the Act, Canada proclaimed an exclusive economic zone and declared Canada’s jurisdiction over the contiguous zone. 112 As well as providing the legal basis for the implementation of an oceans management strategy, the Act re-orientates the organisational structure for the provision of coast guard services, marine sciences, and hydrographical services. 113 The Strategy is largely complementary to the Act and has included a comprehensive range of actions to implement the policy, including the following: the appointment of two Ministerial Ocean Ambassadors; the establishment of a Minister’s Advisory Council, an Ocean Management Research Network, and an Oceans Task Group; as well as the establishment of marine-protected areas and a number of large ecosystems initiatives. A policy framework has also been adopted for integrated management in the coastal zone. 114 Arguably, one of the most significant aspects of the Oceans Strategy is the redefinition of Canada as a maritime country and the emphasis upon wise development of the sea. While the Canadian framework is often held up as a panacea for the difficulties encountered in ocean management, there have been a number of recent commentaries on the effectiveness of Canada’s ocean policy and the implementation of the Act that indicate that the institutional arrangements are inadequate to realise the prescribed objectives. 115 Progress toward implementation has been hampered by interagency tensions and interdepartmental conflicts as well as the absence of appropriate budgets for programme implementation.

107


China China is one of the largest coastal States in the world with a coastline 18,000 kilometres in length. China became party to the Law of the Sea Convention in 1996. 116 Since then, China has promulgated the Law on the Exclusive Economic Zone and Continental Shelves on June 26, 1998, and is committed to implementing both ICZM and IOM. This commitment is evident from the statement on the oceans and the law of the sea, delivered by H.E. Mr. Wang Yingfan, Permanent Representative of China to the United Nations, marking the 20th anniversary of the signing of the Convention in 2002. 117 This statement noted that the Chinese government supported the strengthening of integrated ocean management that, in their opinion, should be focused on enhancing integrated coastal area management during the first phase of implementation. 118 In this regard, China urged all coastal states to take effective measures to implement both ICZM and IOM. 119 China’s Ocean Agenda 21 (1996) and its Marine Development Program (1998) could count as a management framework for Integrated Coastal Zone Management, however, the contents of these documents emphasise general CZM topics and only very superficially provide guidelines for future management. 120 This commitment to integration is not surprising, as China’s coastal zone area measures approximately 285,000 km2 and this area is susceptible to pollution and many other problems associated with coastal zone development. 121 Since 2000, China has completed a number of demonstration experiments to test the suitability of ICM and to promote sustainable development policies in the coastal zone. 122 A considerable body of legislation concerning maritime matters further offshore has complemented these initiatives.123 Considerable emphasis has also been placed on ensuring that the content of domestic laws and administrative regulations are consistent with the Law of the Sea Convention. The formulation and implementation of these laws, rules, and regulations are aimed, on the one hand, at protecting China's state sovereignty and marine rights and interests. Many of the initiatives are also tailored to promote, on the other hand, the rational development of marine resources and the effective protection of the marine environment. The Chinese law on the Use and Management of Sea Areas (2001) holds special relevance as it is the only law explicitly relating the management of certain activities in newly defined coastal areas. It also regulates the jurisdiction over marine zoning between the State Oceanic Administration, the Fishery Department and the Maritime 108


Safety Administration. Furthermore, there are amended versions of laws that deal with the coastal zone or coastal related sectors, e.g. the Fisheries Law from 1986 (amended 2002) and the Marine Environmental Protection Law from 1982 (amended 1999). As a result of these legislative measures, sea areas under the sovereignty and jurisdiction of China are now regulated by a comprehensive legal code. This code, however, lacks a framework instrument similar to Canada’s Ocean Act of 1996. Furthermore, China has favoured bilateral agreements governing fisheries and marine scientific research in the China Seas Region. 124 Joint development of offshore hydrocarbons with neighbouring states in disputed areas has proven unsuccessful and it remains to be seen if states in the China Seas region are committed to adopting an integrated approach to resolve outstanding issues at a regional level. 125 Specific CZM related projects in China were started by the Xiamen demonstration site for CZM. Apart from the Bohai Sea Project, which is of inter-provincial nature, and a project on biodiversity protection in Fangchenggang/Guangxi, Yangjiang/Guangdong and Qingangang/Hainan in the north of the South China Sea, Xiamen remains the only city with its own CZM project. Instructively, it is also reported that China is unlikely to adopt a Coastal Zone Management Act before the end of 2005. 126 Summary of Developments in Comparative Law and Policy As is evident from the discussion above, outside of the European Union, several countries have responded to the growing challenge of marine resource use by adopting an integrated management approach. More specifically, Canada, Australia, and New Zealand (as shown in Figure 4), which are party to the LOS Convention, are actively pursuing an integrated oceans policy approach that seeks to integrate science into decision-making regarding marine resource use and marine spatial planning. The United States, which considers many of the provisions of the LOS Convention to be rules of customary international law, is also embarking on a process that may lead to the revision of the established structures for ocean governance. In contrast to these countries, progress in the European Union has been dilatory and initiatives at member State level are constrained by the cumbersome division of competence between the European institutions and the member States in relation to ocean affairs (examined in Part III). Surprisingly, Norway, which has made little effort, has been made to move away from the sector driven approach to 109


marine regulation and management. In a number of countries, research is ongoing regarding the lessons that may be derived from the experience in the Antipodes and in North America. 127 As noted above, China has yet to adopt a framework instrument, although there have been a number of indicators that suggest a national commitment to implement both ICZM and IOM.

Country

Oceans Strategy Cross Cutting Structures

Oceans Act

Oceans Policy

Oceans Act 1996 No 133

Yes

Yes

Yes

Yes

New Zealand 131

No 134

Under Development

Under Development

United States 132

Ocean Act 2000 (establishing Oceans Commission)

Proposed by Oceans Com. & endorsed by Pew Com.

Under Discussion

Canada

128

Australia 130

China

No

Elements

Elements

Jurisdictional Framework

TS, CZ, EEZ, CS 129 TS, CZ, EEZ, CS 135 TS, EEZ, CS 136

TS, CZ, EEZ, CS.

TS, CZ, 137 EEZ, CS 138

Figure 4. PART III THE EUROPEAN EXPERIENCE IN INTEGRATED MANAGEMENT: ARE THERE LESSONS FOR COUNTRIES IN THE CHINA SEAS REGION? Obstacles to Integrated Management The European Union, as a sophisticated regional integration organisation, is a useful paradigm for testing the feasibility of applying an integrated approach to the management of the coast and ocean. There are, however, a number of impediments that must be overcome if the European Union is to successfully apply these concepts in land and sea areas under the sovereignty and jurisdiction of the member States. These obstacles pertain to maritime jurisdiction, institutional structures, legal competence, 110


and strategic frameworks. It is now proposed to elaborate on how these issues will impede the application of ICZM and IOM with a view to determine a number of lessons for countries in other ocean regions. An Incomplete Jurisdictional Framework Clearly, integrated management requires a coherent approach by states to the maritime jurisdictional framework as set out in the LOS Convention. In Europe, the authors of this paper believe that there are several matters that will lead to difficulty in the application of ICZM and IOM in practice, including: (a).

Several member States have not implemented the LOS jurisdictional framework in a consistent manner and have failed to enact legislation asserting their maritime jurisdiction to the maximum possible extent permissible under international law. This is evident from the data displayed in Figure 5, which lists the various maritime jurisdictional zones claimed by the littoral member States of the European Union. While Portugal, Spain, France, Belgium, the Netherlands, Germany, Sweden, and Norway have claimed exclusive economic zones, neither Ireland nor the United Kingdom has proclaimed such a zone. This is all the more surprising as both of these states have significant maritime interests as well as extensive sea areas under their sovereignty and jurisdiction. Nor have these states established a contiguous zone adjacent to the territorial sea to facilitate the exercising of extended customs, fiscal immigration and sanitary jurisdiction. There is a cogent case, which does not require detailed elaboration here, supporting the view that all maritime States ought to establish both a contiguous zone and EEZ where geographical and political circumstances permit. In this context, it needs to be stressed that both Irish and British legislation, establishing jurisdiction over fisheries, continental shelf, and pollution control activities, does not address adequately the wide range of new economic and technology related activities that will be undertaken in sea areas under their respective jurisdiction in the coming years. In particular, the proposed establishment and use of artificial islands, installations and structures on the seabed for marine scientific research and other purposes, the deployment of structures for the 111


production of energy from the water, current and winds, as well as the exploration and exploitation of new resources, will all impinge on the state’s sovereign rights, jurisdiction and responsibilities. This failure by Ireland and the United Kingdom to assert their full maritime jurisdiction may be contrasted with the approach taken by the countries with progressive policies in relation to ocean (such as those in mentioned in Part II above) that have maximised their jurisdiction zones in accordance with the LOS Convention. 139 (b).

The baseline legislation of several north-Atlantic States does not comply with the letter or indeed with the spirit of the LOS Convention. 140 This is significant as the maritime limits of several jurisdictional zones including the limits of the territorial sea, the exclusive fishery zone, the contiguous zone, the exclusive economic zone, and the continental shelf in certain circumstances 141 are projected from the baselines. Other than impinging upon the navigation freedoms protected by the LOS Convention, this failure may also have a number of European law implications. The implementation of the water framework directive in the marine environment is, for example, linked to the baseline. 142 In effect, this means that the LOS Convention and many European legal instruments that apply to the marine environment will not be applied by the member States in a consistent manner.

(c).

Similar to the South China Seas, there are many outstanding disputes regarding maritime boundaries in the north Atlantic, such as the dispute over the Rockall Bank and the adjacent sea area (see Figure 6). In the absence of delimitation agreements it is difficult to perceive how states will be able to adopt an integrated approach to the management of marine-based activities in these areas. Indeed, it is significant that the request for advice from the European Commission TO ICES regarding the identification of eco-regions for the implementation of an ecosystem approach in sea areas adjacent to Europe was based upon the need to identify boundaries based upon biogeographic and oceanographic features while taking into account political, social, economic, and management divisions (see Figure 7). 143 ICES presented this advice without prejudice to the existing boundaries of states, their 112


territorial seas, their exclusive economic zones (or similar jurisdictions), or their continental shelves. 144 In light of the diverse approach of European States to maritime jurisdiction, it will be interesting to see if states will be able to resist from using the ecosystems approach as an argument for extending their jurisdiction. These difficulties ought not to be underestimated as two eminent commentators have already pointed out that management along political boundaries cannot account properly of the ecosystems spatial interactions and transboundary effects and, conversely, that the management on the basis of ecosystem boundaries does not lead to elective decision-making. 145 (d).

The absence of common definitions and understanding regarding the meaning of many of the key terms in the integrated approach may lead to difficulties in the implementation of both ICZM and IOM. In particular, there is no definition of the coastal zone in European law. Inexplicably, for the purposes of the European Demonstration Programme that tested the feasability of establishing ICZM, the coastal zone was defined as a strip of land and sea of varying width, depending on the nature of the environment and management needs. This definition does not correspond to the framework provided by the LOS Convention and certainly does not correspond to the administrative and planning boundaries that are currently established in the member States. The European Commission expressed the view that the coastal zone may well extend beyond the limit of the territorial sea and many kilometres inland. 146 While there is no uniform definition in European law regarding the extent or the size of the coastal zone and no consensus on how far landward or seaward such a zone should extend, it is entirely foreseeable that the baseline may be used at some future date as the obvious datum to measure such a zone. The blurring of definitions and the absence of a consistent approach to the baseline will undoubtedly undermine the ability of the member States to implement both ICZM and IOM in a uniform manner.

In view of the above, it may be argued that the capacity of the member States to implement ICZM and IOM is restricted by the absence of a common approach to maritime jurisdiction and the failure of several 113


states to assert their jurisdiction to the maximum permissible extent under international law. Furthermore, while there is precedence for European Member State coordination in establishing fisheries jurisdiction zones, 147 there is no legal obligation placed on member States under the E.C. Treaties or elsewhere to maximise their jurisdiction under the LOS Convention. 148 Such a step could in any case exacerbate existing boundary disputes between States. In particular, there is considerable potential for dispute in the Mediterranean Sea that remains high seas.

114


Figure 5: Claims of Maritime Jurisdictional Zones by member States of European Union (Breadth in Nautical Miles). 149 Belgium* Cyprus Denmark* Estonia Finland* France* Germany* Greece* Iceland* Ireland* Italy* Latvia* Lithuania* Malta* The Netherlands* Norway* Poland* Portugal* Spain* Slovenia* Sweden* United Kingdom*

TS 12 12 12 12 152 12 12 12 6 154 12 12 12 12 12 12 12

CZ 24 24

12 12 12 12

24

12 12 159

14 24

EEZ DBC 200 200 DBC

FZ + 150 200 151 DBC

200 153 DBC 200 200 DLM DLM

24

24 24

+ 158 200 160

EXP 200d/EXP/CL 200d/EXP 200d/EXP 200d/EXP 200d/EXP 200d/EXP CL DBC/CL 200d/EXP 200/CL

25

200d/EXP 200d/EXP

200 155

CL

DBC 200 DLM 200 200 156

CS

EXP +

157

200 or 12 161

200d/EXP DBC/CL

TS: territorial sea CZ: contiguous zone EEZ: exclusive economic zone FZ: fisheries zone CS: continental shelf *: party to the UN Convention on the Law of the Sea CL: States that may claim the continental shelf beyond 200 nautical miles DBC: defined by coordinates 200d: depth of 200 metres EXP: exploitability test 115


Figure 6: Overlapping Continental Shelf Claims in the North-Atlantic.

Iceland – Blue Danish – Red UK – Yellow Ireland - Green

116


Figure 7: Proposed eco-regions for the implementation of the ecosystem approach in European waters.

117


Inadequate Institutional Structures The European institutions do not have appropriate centralised structures for implementing and overseeing ICZM and IOM. 162 This is most apparent in relation to the coastal zone where spatial planning law regulating the physical environment is almost exclusively exercised by the administrative and planning authorities in the member States. Moreover, in most member States, the power to make planning decisions is devolved down to local planning authorities, which often do not have the technical expertise, financial or political will to fully embrace planning and management restrictions in the coastal zone. 163 Further offshore, many of the key decisions to protect the marine environment have been implemented through the regional seas programmes. In particular, the European Union has used the Barcelona process, the OSPAR, HELCOM and the North Sea Conferences as frameworks for cooperation in the regional sea areas adjacent to the Europe. If the integrated approach is to work in practice, these regional organisations may have to adjust their institutional structures and policy objectives to reflect the push by the European Union to implement ICZM and IOM. Similarly, the European Union will have to adopt some type of centralised organisational structure to coordinate work in relation to the formulation of a coherent policy pertaining to the sea. Much of the work completed to date has been taken without the assistance of an “Oceans Office” in the European Commission. In the absence of such an office, the several different directorates within the European Commission have discharged the legislative and administrative burden. Considerable demands are also placed on the executive functions of several external agencies and other bodies. Indeed, with a view to coordinating action in relation to the ocean, the European Commission tasked a directorate with specific responsibility for maritime affairs in 2005. This function is now placed in the fisheries directorate that has been renamed as the “Fisheries and Maritime Affairs Directorate.” The specific duties of this directorate are unclear at the time of writing and may not include ICZM as this has heretofore been within the remit of the Environment Directorate. As noted above, the appointment of a specific commissioner with responsibility for maritime affairs is a step in the right direction and may lead to the establishment of integrated structures within the European institutions in due course. The first significant development has been the appointment a Maritime Task 118


Force within the European Commission, which will draft the Green Paper on a future European Union Maritime Policy in 2005. 164 Split Legal Competence Should the European Community resolve the current difficulties regarding the institutional structures, the precise limits of E.C. power to adopt binding legal instruments governing ICZM and IOM may well remain unresolved because of the crosscutting nature of many sector policies. While it is not feasible for reasons of space to undertake a sectorby-sector analysis of which areas are within or outside European competence, there is, nevertheless, considerable scope for policy integration at a European level. In particular, the exclusive competence exercised by the European Union in relation to fisheries matters will facilitate the adoption of IOM measures governing the fishing activity in sea areas under the sovereignty and jurisdiction of the member States, as well as over the activities of E.U. vessels operating elsewhere. This is not the case in relation to the non-living resources of the continental shelf as the member States retain exclusive sovereign rights to explore and exploit the non-living resources of the seabed in sea areas under their jurisdiction or sovereignty. The exploitation of these resources is, however, subject to compliance with E.C. law, and offshore oil and gas companies are obliged to adhere to E.C. measures that apply to the marine environment. 165 Indeed, there is an expanding body of European legislation that applies to the marine environment and there have been considerable efforts made through the medium of E.C. law to integrate environmental considerations into the fisheries, transport, agriculture, energy, and trade policies. 166 The European environmental policy may thus act as a Trojan horse for the introduction of ICZM and IOM. While the E.U. environmental policy presents an obvious route toward integration, spilt legal competence and the failure of the E.U. institutions and the member States to adopt a unified approach may undermine the implementation of integrated measures in the long-term. This failure was evident at the time of the Prestige oil spillage off the northwest coast of Spain. 167 In response to this and similar incidents (the Braer in the Shetlands in 1993, and the Erika in France in 1999), a number of European States sought to use the IMO process as a means to designate the entire northwest coast of Europe as a particularly sensitive sea area (PSSA). 168 While the European institutions had little control over the 119


action of the member States within the IMO, the European Council, nevertheless, adopted a regulation that banned the transport of heavy fuel oil in single-hull carriers to and from E.U. ports while speeding up withdrawal of single-hull oil tankers. In contrast to this twin approach to pollution control, the establishment of the European Maritime Safety Agency after the Erika incident in 1999 has a clear basis in European law. 169 The principal task of this Agency is to achieve “a high uniform and effective level of maritime safety and prevention of pollution from ships.” 170 The division of legal competence between the European institutions and the member States is also evident in a number of high profile law of the sea disputes. In the Mox Plant dispute, for example, Ireland sought a remedy in a number of international fora outside of the framework provided by E.C. law. 171 This dispute illustrates the complexity of E.C. and international law that applies to law of the sea issues, as well as the proliferation and overlapping jurisdiction of international fora for dispute resolution. Significantly, as a result of the legal proceedings taken by the European Commission against Ireland, it is anticipated that the European Court of Justice will rule on whether Ireland has failed to uphold its obligation to seek redress within the framework of E.C. law. This decision is also expected to clarify the division of competence between the European Community and the member States regarding their respective roles under the LOS Convention. 172 Ultimately, the outcome of these proceedings may offer useful guidance on how member States should resolve future law of the sea disputes concerning matters that do not come within the exclusive competence of the law of the European Union. Therefore, this may have some practical consequences for the future implementation of IOM by the member States and the institutions of the European Union. Absence of a Strategic Framework In the context of identifying barriers to good ocean governance at the national level, the Report of the Independent World Commission on the Oceans expresses the following view: National ministries and agencies responsible for fisheries and aquaculture, off-shore oil, ports and harbours, marine transport, tourism, and the environment, all have an interest in ocean use, but 120


the exercise of their mandates is rarely coordinated. Protection of the marine environment has not yet been subsumed into sectoral concerns of national strategies, even in the cases where the attainment of development goals is dependent on environmental integrity. There are additional deficiencies in inter-ministerial arrangements for addressing conflicts of use in coastal areas, with marine objectives often failing to receive the attention they deserve. The expansion of international legal instruments makes it increasingly difficult for governments and the general public to obtain and to maintain a clear picture of national objectives and commitments. 173 This observation resonates true for many coastal States that are endeavouring to take economic advantage of the sea areas under their jurisdiction. This task is compounded by the difficulties encountered by many countries in generating awareness of how national and international goals can generate meaningful local benefits. This has resulted in some states, such as those identified in Part II, adopting a new approach to ocean policy issues with a view of improving decision-making at a national and local level. Experience in these States indicates that a solid legislative basis and integrated governance structures are necessary to address the challenges encountered in modern ocean management. In particular, these structures provide a framework for ensuring that the knowledge derived from marine scientific research is taken into consideration in decision-making at the highest political level within national administrations. In contrast to developments elsewhere, and despite having jurisdiction over one of the largest marine spaces in the world, Europe has been slow to develop an over-arching policy framework or a primary legislative instrument to guide decisions with respect to the sea. Moreover, there is little scope within the current European structures for addressing the concerns of the different stakeholders groups in an integrated manner. 174 Thus, there appears to be a cogent case supporting the adoption of framework legislation at a European level in the form of primary legislation similar to Canada’s Oceans Act of 1996 and the U.S. Coastal Zone Management Act of 1972. 175 The rationale for the introduction of European instruments governing both ICZM and IOM include the following: the increasing number and diversity of marine resource users; the need for increased coordination at a national level to 121


ensure the sustainable economic development of the marine resource; the need for increased coordination to meet Europe’s international obligations; and the need to involve local communities and other stakeholders in the decision-making process. Arguably, Council and European Parliament Directives appear to be the most suitable legal instruments to achieve this task as these instruments are directed at member States and normally oblige them to act in a certain way. Under the E.C. Treaty, directives are considered flexible instruments because although they are binding on member States on the result to be achieved in a particular domain or policy area, they leave the form and method of how this is to be achieved to the member States. 176 Directives addressing both IOM and ICZM would provide the strategic framework for European policy and act as a plinth for decisions regarding the future economic development of land and sea areas under the sovereignty and jurisdiction of the member States. The directives could also provide a mechanism for putting the results of marine scientific research and innovation to good use in the policy process by addressing the increasingly complex issues pertaining to sustainable marine resource use. Such legislation could act as a conduit for science-based decision-making and for the establishment of integrated governance structures. In particular, the directives could affirm the role of scientific research in understanding oceanic and atmospheric processes, the functioning of ecosystems, as well as the role of science in maximising economic and social opportunities in the member States. The need for the adoption of framework instruments at a European level will become more apparent as expanding scientific knowledge, new technology, and market forces put the current legislative regime for marine resource use under increased pressure to resolve conflicts and to manage future uses of the sea in a responsive and flexible manner. In this context, the directives could aim to provide certainty for existing marine resource users and provide a framework for accommodating new developments in ocean use without compromising the needs of present or future generations. This legislation would have to reflect the diverse nature of the European coastal and ocean areas and should be sufficiently flexible to allow member States to adopt appropriate measures at a national level, which could then be tailored for local circumstances. Experience outside the European Union suggests that the move toward the integrated management approach requires political leadership, crosscutting governance structures, stakeholder support, resources, and a shared vision at all levels of the nature and importance of the marine 122


affairs agenda. 177 The magnitude of this task should not be underestimated. Significantly, Australia has not adopted framework legislation to implement its national oceans policy and has nevertheless made remarkable progress in implementing a national oceans governance strategy. This policy-driven approach has provided a stable regime for the future growth of marine industries in Australia by ensuring that these industries are internationally competitive and ecologically sustainable. Importantly, governance structures in Australia allow for various levels of national administration to respond to the changing needs of the sector in a flexible and responsive manner. In Europe, however, framework legislation (as opposed to a policy-driven approach) will ensure that the commitment to policy formulation and implementation is not subject to the vagaries of political and local imperatives. Furthermore, framework legislation and integrated decision-making structures will facilitate coordination and cooperation at a time when there is a pressing need for a focal point to guide decisions with respect to the sea. The adoption of framework instruments will move the European Union toward the establishment of a solid legislative framework that will guide the future growth of the marine sector. Such an initiative would also indicate a move toward a consensus-based approach to marine resource management undertaken for the benefit of the European citizens as a whole. Other Obstacles to Integration While the issues of maritime jurisdiction, legal competence, institutional structures and the absence of a strategic framework will clearly impede the European Union in adopting an integrated approach to the management of coastal and ocean issues, there are also wellestablished normative constraints in European law that may well impede progress. More specifically, any measure taken to promote either ICZM or IOM will have to be reconciled with the principles of subsidiarity and proportionality as prescribed in the E.C. Treaties. 178 Essentially, the principle of subsidiarity provides that in areas that are not within its exclusive competence, the European Community shall only take action if the proposed action cannot be achieved by the member States and by reason of scale and effects be better achieved by the community. The proportionality principle requires that E.C. action in a particular domain should not go beyond what is necessary to achieve the objectives of the E.C. Treaty. As noted by one commentator, “these principles impose some 123


practical limitations on the potential scope of E.C. legislation for ICZM [and presumably for IOM], since any measure would need to be general in nature and leave sufficient flexibility to accommodate the diverse coastal environments of … [the] Member States.” 179 While European directives look like an obvious solution to the current difficulties encountered in ocean management, it should also be recalled that many member States also have a poor track record of transposing European directives into national law. 180 This has particularly been the case in relation to directives that are aimed at giving effect to environmental policy. 181 Furthermore, proper transposition and implementation of the directives will require the establishment and coordination of appropriate structures in the member States to ensure enforcement and compliance. There is, however, little information available regarding the effectiveness of the legislation in place to manage and regulate marine resource use. Furthermore, there are many state bodies and agencies responsible for marine law enforcement at sea and for the implementation of marine scientific monitoring programmes. This aspect of marine resource development in Europe requires further research and analysis that is beyond the scope of this paper. At a practical level, perhaps the most serious impediment to the adoption of an integrated approach in Europe is the absence of definitive scientific data for applying sophisticated tools to implement the ecosystems approach to marine resource management. While there is little doubt that marine scientific research provides the analytical framework for policy choices, there appears to be an absence of a political commitment at a European level to promote marine scientific research. This is most evident in the projected proposal for the Seventh Framework Research Programme, which, at the time of writing, does not have a specific marine programme. 182 The absence of such a programme may undermine the capability of the European maritime strategy to deliver tangible results in the long-term. Are There Lessons from the European Experience for Countries in the East and South China Seas Region? While it may be too early to determine with any certainty if there are any lessons that may be derived from the European experience aimed at adopting ICZM and IOM, a number of trends are evident that may be useful for the future application of these concepts in other regional areas. 124


The first lesson that may be derived from the experience is that Europe lacks a solid legal basis for ICZM such as that provided in the United States by the Coastal Zone Management Act of 1972. For obvious reasons, the member States are reluctant to cede competence to the European Union over coastal resources and offshore energy resources in particular. Consequently, much of the emphasis has been placed on harmonising national measures and the coordination of E.U. policies. The success of this approach will become more apparent when the European Commission publishes its report on ICZM in 2006. In principle, however, the European experience to date suggests that coastal zone management should be undertaken at the state and local level. This also appears to accord with the approach adopted successfully in the United States under the Coastal Zone Management Act of 1972. Coastal zone management undertaken at a local level can also reflect economic, political and cultural diversity of regional areas. Further offshore, the shift toward IOM by the European Union may have come about by the failure of the sector policies to deliver sustainable ocean use. There is also a proliferation of international instruments regulating marine resource use and this in itself demands a more sophisticated approach to the regulation and management of the different sector interests, such as fisheries, transport, energy, and marine scientific research. Ideally, the enactment of a primary legislative instrument similar to Canada’s Oceans Act of 1996 may facilitate the coordination of European decision-making with respect to the sea. Without such an instrument there is considerable scope for states in regional areas to enact legislation that is fragmented and does little to reduce conflicts between different marine resource users and between users of the land and the sea. Significantly, while member States of the European Union appear to be rejecting the “hard law” options for ICZM and IOM, 183 experience in Australia suggests that the absence of such an instrument may not be fatal to states wishing to implement a coherent approach to oceans policy. The second aspect of the European experience that is significant is the considerable confusion over terminology, and there is little agreement between lawyers and scientists on key definitions such as the extent of the coastal zone. 184 While the authors of this paper contends that the coastal zone should be defined in terms of the baseline in order to assist states in implementing the jurisdictional frameworks under the LOS Convention, there is little consensus on this point. As noted above, the European 125


Commission has suggested that the coastal zone may in some circumstances extend beyond the limits of the territorial sea. This confusion over definitions and the fragmentation of jurisdictional zones is compounded by the failure of states to implement the maritime jurisdictional framework set out in the LOS Convention. Furthermore, the different approach of states to implementing the LOS Convention will make the application of ICZM and IOM difficult in practice. The third lesson that may be drawn from the European experience is the importance of undertaking marine scientific research. There is little doubt that new scientific and technology initiatives are central to developing the knowledge base for ICZM and IOM and for providing decision-makers with an analytical framework for making decisions in the planning process. In the long-term the development of marine resources in regional areas will not be sustainable unless there is good quality scientific advice that is put to use in the policy process. The fourth lesson is that European institutions, member States, regional bodies and neighbouring states are working toward solutions for applying new tools for ocean governance such as the ecosystems approach. Experience suggests that these tools are complementary and not a replacement for established structures and frameworks under international, regional and European law. More specifically, these tools will only be applied within the normative framework established by the LOS Convention. The successful application of these tools will thus require cooperation and coordination of actions by all states within a regional area. This approach also acknowledges one of the central considerations in the LOS Convention, which is that the problems of ocean space are closely interrelated and need to be considered as a whole. 185 Finally, it should be pointed out that ICZM and IOM pose new challenges that should only be addressed through the medium of law. Experience in other areas of E.C. law such as the common fisheries policy tell us, however, that sustainable development does not automatically flow from the adoption of a common policy. One of the principal failures of common policies has come about as a result of poor compliance or no compliance in some instances. 186 Integrated management should not be seen as a panacea that will deliver sustainable development but as an iterative process that may facilitate ocean and coastal management in geographically complicated areas. Ultimately, prescription will have to be matched with rigorous implementation and compliance with the scheme of law set out in the LOS Convention. 126


Notes 1

The European landmass does not have history of tidal waves or tsunamis. Southern Europe is, however, located on the western side of the Eurasian/African Plate that runs through the Mediterranean Sea. Sudden movements along the plate boundaries create shock waves that are sometimes felt in southern Europe as boundaries. 2 See, United Nations General Assembly Resolutions: 56/12, para.48, November 28, 2001; 57/261, February 27, 2003; Chapter 17 of Agenda 21. Also, Report of the United Nations Open-ended Informal Consultative Process, A/57/80, July 2, 2002, p.4, para.4. A number of commentators have identified and discussed this development, see, inter alia: Y. Tanaka, “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a dual Approach in International Law of the Sea,” (2004) International Journal of Marine and Coastal Law, Vol. 19, No. 4, pp. 483-514; G. Chao, “Moving from International ‘Good Steward’ to Domestic Integrated Manager: Challenges of Importing Principles of Integrated Coastal and Ocean Management into Canada’s Ocean Law,” Ocean Yearbook, (Chicago, University of Chicago, 2002), 16:421-462. 3 For a discussion of the concepts, see, inter alios: B. Cicin-Sain, R.W. Knecht, Integrated Coastal and Ocean Management. Concepts and Practices, (Washington DC, Island Press, 1998); R. Beckman, B. Coleman, “Integrated Coastal Zone Management: The Role of Law and Lawyers,” (1999) 14 International Journal Marine and Coastal Law pp. 491-522. On the practical aspects of ICZM, see, A. Vallega, Fundamentals of Integrated Coastal Management, (Dordrecht/Boston/London, Kluwer Academic Publishers, 2001); T. Bealtley, D. J. Brower, A. K. Schwab, An Introduction to Coastal Zone Management, 2nd Ed., (Washington/Covelo/London, Island Press, 2002); 4 The terms “European Union” (“E.U.” in its abbreviated form) and “European Community” (E.C.) are used interchangeably in the literature. The term E.U. came into being as a result of the Maastricht Treaty on the European Union in 1992 and is used in this paper. The E.C. is used to refer to all matters where the Member States have relinquished part of their national sovereignty to the E.U. institutions under the E.C. Treaties. 5 Recent developments in coastal zone management in the European Union are discussed in Coastal Management, Vol. 31, No. 2, 2003. Therein, see, inter alia: P. Burbridge, S. Humphrey, “Introduction to Special Issue on the European Demonstration Programme on Integrated Coastal Zone Management,” pp. 121-126; J. Gibson, “Integrated Coastal Zone Management Law in the EU,” pp. 127-137; S. Humphreys, P. Burbridge, “Sectoral and Territorial Cooperation in the European Demonstration Programme on ICZM,” pp. 155163. S. Humphreys, P. Burbridge, & C. Blatch, “U.S. Lessons for Coastal Management in the EU,” (2000) Marine Policy, Vol. 24, pp. 275-286. On international progress, see, J. Sorensen, “The International Proliferation of Integrated Coastal Zone Management Efforts,” (1993) Ocean and Coastal Management, pp. 2145-2180. For earlier material, see: S. Mullard, “Towards an EU strategy for integrated coastal zone management,” (1995) European Law Review Vol. 4, pp. 16-20; D.J. Huggett, “Progressing coastal management in Europe: a case for continental zone planning and management” in J. Taussik et al., Partnerships in Coastal Zone Management, (Cardigan, Samara Publishing Ltd., 1996), pp. 47-56. 127

Ronán Long and Anne Marie O’Hagan 6

Austria, Belgium, Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and the United Kingdom. 7 Austria, Czech Republic, Hungary, Luxembourg, and Slovakia are land-locked. 8 For the purpose of allowing the EEC to sign and ratify the LOS Convention (Article 305 and Annex IX), “international organization” means: an intergovernmental organization constituted by States to which its member States have transferred competence over matters governed by the Convention, including the competence to enter into treaties in respect of those matters. 9 A number of coastal States in the Mediterranean Sea such as Spain, Cyprus and Croatia have claimed jurisdictional zones beyond their territorial sea. Spain, for example, adopted Royal Decree 1315/1997 on August 1, 1997, which provides for the establishment of a “fishing protection zone” in the Mediterranean. 10 Jurisdiction over the Baltic Sea is shared with the Russian Federation by Sweden, Finland, Latvia, Lithuania, Estonia, Poland, Germany and Denmark. 11 Accession negotiations with Croatia were suspended in 2005 pending the establishment of full-cooperation by Croatia with the UN war crimes tribunal. 12 The territory of the European Union is estimated to measure 3.9 million square kilometres. 13 See, R. Long et al., Ireland’s Maritime Limits, (Galway, Marine Law Centre), (forthcoming). 14 A number of different figures have been suggested indifferent publications for the length of the European coastline. The European Commission estimate that it measures in the region of 68,000 kilometres. See, <www.europa.com.int/comm/fisheries/maritime/fishe1-en.pdf> This figure suggests that the European coastline is relatively short when compared with the Canadian coastline which measures 243,797 kilometres and the coastline of the United States which measures approximately 88,000 miles. 15 See, address by Director-General, DG Environment, European Commission, Catherine Day, at the Marine Strategy - Second Stakeholder Conference, Rotterdam, November 1012, 2004. Copy at <www.forum.europa.int>. 16 <www.oceanatlas.org>. See also the European Commission estimate at: <www.europa.com.int/comm/fisheries/maritime/fishe1-en.pdf>. 17 See, “An assessment of the socioeconomic costs and benefits of integrated coastal zone management,” (Firn Crichton Roberts, November 2000). Copy available: . 18 Treaty establishing the European Economic Community 1957. Prior to 1957, five European States (France, Germany, the Netherlands, Belgium and Luxembourg) ratified both the Treaty establishing the European Atomic Energy community (1957) and the Treaty establishing the European Coal and Steel Community (1951). 19 Treaty on European Union (1992), OJ C 191 of July 29, 1992; Treaty establishing the European Community OJ C 340 of November 10, 1997. Treaty of Amsterdam, OJ C 340 of November 10, 1997; Single European Act (1986), OJ L 169 of June 29, 1987; Greenland Treaty (1984), OJ L 29 of February 1, 1985; Protocol on the Statute of the 128

Ocean and Coastal Governance European Investment Bank (1975), OJ L 91 of April 6, 1978; Treaty amending certain financial provisions (1975), OJ L 359 of December 31, 1977; Treaty amending certain budgetary provisions (1970), OJ L 2 of January 2, 1971; Merger Treaty (1965) OJ 152 of July 13, 1967; Protocol on the Netherlands Antilles (1962), OJ 150 of October 1, 1964. 20 Treaty of the European Union, Article 2. 21 For a discussion of the European institutional structure, see, inter alios: J. Steiner, L. Woods, L. Textbook on EC Law, 8th Ed. (Oxford, Oxford Higher Education, 2003); P. Craig, & G. de Burca, The Evolution of EU Law (Cambridge, Cambridge University Press, 1999); and by the same authors, EU Law Cases and Materials 2nd Ed. (Cambridge University Press, 2002). 22 Article 10, European Community Treaty. The supremacy of E.C. law over national law has been underpinned by a long line of decisions since Case 6/64, Costa v ENEL [1964] ECR 585. 23 For a description of how the Council makes decisions and the operation of the qualifies majority voting system, see, <www.eurounion.org/infores/euguide/Chapter2.htm>. 24 By March 2005, only one Member State (Spain) had completed ratification of the Constitution. 25 European Constitution, Article 1II-233 1(c). 26 European Constitution, Article 1-13, 1(d). 27 European Constitution, Article 1-14, 2(d). 28 See Table 5 infra. Under Article 5(2) of Annex XI of the LOS Convention, member states of international organisations are obliged to make a declaration at the time they ratify or accede to the Convention or when the international organisation deposits its instrument of formal confirmation or of accession to the Convention, specifying matters which governed by the Convention in respect of which it has transferred competence. The European Community submitted its instrument of formal confirmation to the Convention in 1998 and submitted a declaration on the matters that member States had transferred competence. Previously, 12 member States had made declarations that they had transferred matters governed by the Convention to the European Community. See, Council Decision of March 23, 1998 concerning the conclusion by the European Community of the United Nations Convention of December 10, 1982 on the Law of the Sea and the Agreement of July 28, 1994 relating to the implementation of Part XI thereof (98/392/EC), OJ L 179/1, June, 23, 1998. 29 For a comprehensive assessment of State practice in the European Union in relation to the law of the sea, see, T. Treves, L. Pineschi (eds.), The Law of the Sea: The EU and its Member States, (The Hague, Martinus Nijhoff, 1997). 30 See, Council Decision No 98/392 of March 23, 1998, OJ L 179, June 23, 1998, 129133. 31 Environmental protection must be integrated into Community policies, however, with a view to promoting sustainable development. On how this is being achieved, see, L. Krämer, “Legal Aspects of Integrated Environmental Requirements,” 5th Ed., EC Environmental Law, (London, Sweet & Maxwell, 2003), pp. 348-369. 32 The term “competence” is commonly used in European law and literature to refer to the power of the European institutions to prescribe law or what lawyers versed in the common law tradition refers to as legislative jurisdiction. Considerable care, however, 129

Ronán Long and Anne Marie O’Hagan needs to be exercised with the term as many of areas of Community law such as sea fisheries where the Community competence is said to be “exclusive” is not completely exclusive in the sense that enforcement jurisdiction remains largely with the member States. The Declaration of Competence published by the European Community at the time of their formal confirmation of the LOS Convention contains a detailed list of all Community legislation relevant to the 1982 Convention. See, “The Law of the Sea: Declarations and statements with respect to the United Nations Convention on the Law of the Sea and to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea,” (United Nations publication, Sales No. E.97.V.3). 33 See, Part III, ante. Difficulties regarding the areas where the European Union shares competence with the member States is examined by R. Churchill, J. Scott, “The MOX Plant Litigation: the first Half-Life,” Vol. 53, The International and Comparative Law Quarterly, pp. 643-676, (especially 660-660). 34 The following treaties were listed by the European Community in the Declaration lodges with the UN at the time of their formal conformation of the Convention in 1998: Convention for the prevention of marine pollution from land-based sources, Paris, June 4, 1974 (Council Decision 75/437/EEC of March 3, 1975, published in OJ No L 194, July 25, 1975, p. 5); Protocol amending the Convention for the prevention of marine pollution from land-based sources, Paris, March 26, 1986 (Council Decision 87/57/EEC of December 28, 1986, published in OJ No L 24, January 27, 1987, p. 47); Protocol for the protection of the Mediterranean Sea against pollution from land-based sources, Athens, May 17, 1980 (Council Decision 83/101/EEC of February 28, 1983, published in OJ No L 67, March 12, 1983, p.1); Convention for the protection of the Mediterranean Sea against pollution and the Protocol for the prevention of the pollution of the Mediterranean Sea by dumping from ships and aircraft, Barcelona, February 16, 1976, (Council Decision 77/585/EEC of July 25, 1977, published in OJ No L 240, September 19, 1977, p. 1); Protocol concerning cooperation in combating pollution of the Mediterranean Sea by oil and other harmful substances in cases of emergency, Barcelona, February 16, 1976 (Council Decision 81/420/EEC of May 19, 1981, published in OJ No L 162, June 19, 1981, p. 4); Convention on long-range transboundary air pollution, Geneva, November 13, 1979, (Council Decision 81/462/EEC of June 11, 1981, published in OJ No L 171, June 27, 1981, p. 11); Protocol of April 23, 1982 concerning Mediterranean specially protected areas, Geneva, April 3, 1982, (Council Decision 84/132/EEC of March 1, 1984, published in OJ No L 68, March 10, 1984, p. 36); Agreement for cooperation in dealing with pollution of the North Sea by oil and other harmful substances, Bonn, September 13, 1983, (Council Decision 84/358/EEC of June 28, 1984, published in OJ No L 188, July 16, 1984, p. 7); Cooperation agreement for the protection of the coasts and waters of the north-east Atlantic against pollution, Lisbon, October 17, 1990, (Council Decision 93/550/EEC of October 20, 1993, published in OJ No L 267, October 28, 1993, p. 20); Basel Convention on the control of transboundary movements of hazardous wastes and their disposal, signed in Basel on March 22, 1989, (Council Decision 93/98/EEC of February 1, 1993, published in OJ No L 39, February 16, 1993, p. 1).

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See, inter alia: R. Kay, J. Alder, Coastal Planning and Management, (London and New York, E & FN Spon, 1999), pp. 49-51;R.A. Kenchington, D. Crawford, “On the meaning of integration of coastal zone management” (1993) 21 Ocean and Coastal Management 109-127 36 Agenda 21, Paragraph 17.1 37 From a scientific perspective, there also appears to be considerable ambiguity regarding the definition of ICZM, see, A. Vallega, Fundamentals of Integrated Coastal Management, (Dordrecht/Boston/London, Kluwer Academic Publishers, 2001), p. 16 38 Commission of the European Communities, “Communication from the Commission to the Council and European Parliament on integrated coastal zone management: A strategy for Europe.” COM (2000) 547 final. Brussels, p. 25. 39 GESAMP is made–up of experts from the IMO/FAO/UNESCOIOC/WMO/WHO/IAEA/UN/UNEP. Their principle task is to provide scientific advice concerning the prevention, reduction and control of the degradation of the marine environment to the Sponsoring Agencies. See, Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) and Advisory Committee on Protection of the Sea, 2001, “A Sea of Troubles,” Rep. Stud. GESAMP No. 70. 40 More specifically: Legislation to provide the legal basis for the management of seas and coasts and defines the conditions under which natural resources are to be used and conserved; International co-operation to identify areas of common interest; Principles which are central to managing the resources of the seas and coasts responsible such as precautionary approach, the principle of preventative action, the polluter pays principle, and the principles of equity; Policy process which regularly sets goals and objectives for managing the marine environment…; Policy process that ensures there is adequate and meaningful information informing the decision-making process; Institutional arrangements which provides for devolved management to the lowest level practicable…and allows for the participation of stakeholders in the decisions that affect them; Procedures in the policy process which will provide timely notice of environmental change due to human activities; Policy process which fosters effective communication between experts, policy-makers and the public; A readiness to evaluate the range of policy instruments, and apply the most appropriate ones; Financial mechanisms that make it possible to attain the goals and address the priorities; and Educational programmes to ensure informed public participation (emphasis added). This list is taken from the GESMAP Report, “A Sea of Troubles,” 2001, Rep. Stud. GESAMP No. 70, p. 30. 41 See the authorities cited in fn 5 op. cit. 42 Recommendation of the European Parliament and of the Council of May 30, 2002 concerning the implementation of Integrated Coastal Zone Management in Europe (2002/413/EC), OJ L 148/24, June 6, 2002. (hereinafter referred to as Recommendation (2002/413/EC) ). 43 These are some of the reasons outlined in the recitals to Recommendation (2002/413/EC). 44 See, OSPAR Commission for the Protection of the Marine environment in the NorthEast Atlantic, “Quality Status Report for the North-East Atlantic” and the authorities cited therein, (London, 2000). On the decline of European fish stocks, see, European 131

Ronán Long and Anne Marie O’Hagan Commission, Green Paper on the Future of the Common Fisheries Policy, Brussels, March 20, 2001, COM(2001) 135 final. 45 For a recent overview, see, Report prepared by F. Breton for the European Environment Agency, State of the Coasts in Europe, Towards an EEA Assessment Report,” (Universitat Autonoma de Barcelona, 2004), 46 See, European Environment Agency Report No 2/2004, Impacts of Europe's changing climate, (Copenhagen, 2004) 47 Ibid. 48 See, fn 4 op cit. 49 Laffoley, D.d’A, Maltby, E., Vincent, M.A, Mee, L., Dunn, E., Gilliland, P., Hamer, J, Mortimer, D., & Pound, D., 2004. The Ecosystem Approach. Coherent actions for marine and coastal environments. A report to the UK Government. Peterborough, English Nature. 68pp. 50 See, Y. Tanaka, “Zonal and Integrated Management Approaches to Ocean Governance: Reflections on a dual Approach in International Law of the Sea,” (2004) International Journal of Marine and Coastal Law, Vol. 19, No. 4, pp. 483-514. 51 In addition to the Law of the Sea Convention, for example, the European Union adheres to the following treaties, many of which have protocols which are also binding on the European Community: Barcelona convention on the Protection of the Mediterranean Sea against pollution, Council Decision 77/85, [1977] OJ L 240/1; Bonn Agreement for co-operation in dealing with pollution of the North Sea by oil and other harmful substances, Council Decision 84/358 [1984] OJ L 188/7; Co-operation Agreement for the protection of the coastal and waters of the north-east Atlantic against pollution, Council Decision 93/550, [1993] OJ L 267/20; Helsinki Convention on the protection of the marine environment of the Baltic Sea area, Council Decision 94/156 [1994] OJ L 73/1; Helsinki Convention on the protection of the marine environment of the Baltic Sea, Council Decision 94/157 [1994] OJ l 73/19; Paris Convention for the protection of the marine environment in the north-east Atlantic (OSPAR Convention), Council Decision 98/392, [1998] OJ L 197/1. 52 Judge Wolfrum Vice-President of the International Tribunal on the Law of the Sea. 53 Council Resolution of February 25, 1992, on the future Community Policy concerning the European coastal zone, OJ C 59/1; Council Resolution of May 6, 1994, on a Community strategy for integrated coastal zone management, OJ C 135/2. 54 Commission of the European Communities: “Lesson’s from the European Commission’s Demonstration Programme on Integrated Coastal Zone Management”; “Towards a European Integrated Coastal Zone Management Strategy: General Principles and Policy Options,” 1999. . 55 Commission of the European Communities, “Communication from the Commission to the Council and European Parliament on integrated coastal zone management: A strategy for Europe.” COM (2000) 547 final. Brussels. 56 Communications are discussion papers published by the Commission on a specific policy area and often provide an impetus for subsequent legislation. 57 Commission of the European Communities, Recommendation of the European Parliament and of the Council of May 30, 2002, concerning the implementation of

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Ocean and Coastal Governance Integrated Coastal Zone Management in Europe (2002/413/EC), OJ L 148/24, June 6, 2002. 58 Recommendation 2002/413/EC, Chapter II, ibid. 59 P. Burbridge, S. Humphrey, “Introduction to Special Issue on the European Demonstration Programme on Integrated Coastal Zone Management,” 2003 Coastal Management, Vol. 31, No 2, p. 125 60 European Community Treaty, Article 249. 61 There is scope however for a national Court to refer a question to the European Court regarding their interpretation or validity of a Recommendation, see, Case C-322/88, Grimaldi [1989] ECR 6399. For annotation, see, D. Martin, (1990) Revue de jurisprudence de Liège, Mons et Bruxelles p.330 ; D. Simon, (1990) Journal du Droit International p.459 ; S. Neri, (1990) Affari Sociali Internazionali No. 3, pp.189-198 ; A. Arnull, (1990) European Law Review pp.318-321 62 See, European Parliament, Report of the Committee on the Environment, Public Health and Consumer Policy on the proposal for a European Parliament and council recommendation concerning the implementation of integrated coastal zone management in Europe, A5-0219/2001, Strasbourg; Common position with a view to the adoption of a recommendation of the European Parliament and of the Council concerning the implementation of integrated coastal zone management in Europe. C5-0698/2001, Strasbourg. 63 Council Recommendation 2002/413/EC, Chapter III, op.cit. fn 59. 64 In accordance with the Recommendation (2002/413/EC), OJ L 148/24, June 6, 2002, the European Commission is obliged to report and make recommendations to the European Council and European Parliament by 2006 on the following: ¾ The result of the national stocktaking exercise; ¾ The national strategy for implementing ICZM; ¾ Present a summary of the actions taken to implement the national strategy; ¾ An evaluation of the expected impact of the strategy on the status of the coastal zone; ¾ An evaluation of the implementation and application of Community legislation and policies that have an impact on coastal areas. 65 Financial support is provided through a number of regional programmes and through the European 6th Framework Research Programme. 66 European Council Directive 2000/60 establishing a framework for Community action in the filed of water policy [2000] OJ L 327/1. 67 For commentaries and reports on the Directive, see, inter alia: H. Bloch, The EU Water Framework Directive: taking European water policy into the next millennium, (1999) Water Science Technology, Vol. 10, pp. 67-71; D. Grimeaud, “Reforming EU Water Law: Towards Sustainability,” (2001) European Environmental Law Review Vol. 41, pp.125- ??? ; K. Irvine et al., Review of monitoring and research to meet the needs of the EU Water Framework Directive (200-DS-M1) Final Report, (Wexford, Environmental Protection Agency, 2002); P.A. Chave, The EU Water Framework Directive. An Introduction, (London, IWA Publishing, 2001); C. Demke, Implementation and Enforcement of the Council Directive Establishing a Framework for Community Action in the Field of Water Policy in the Member States of the EU, Ex-ante study 133

Ronán Long and Anne Marie O’Hagan commissioned by the Federal Ministry of the environment, Nature and Nuclear Safety, (Maastricht, European Institute of Public Administration, 1999). 68 In addition, under the 6th Environment Action Programme, the European Community decided to develop thematic strategies for soil protection, the urban environment, the use of pesticides, the use of natural resources, the recycling of waste and air pollution. De facto these thematic strategies are sector action programmes which are underpinned by specific legislative measures. 69 See, the Report on the Outcomes of the Second Stakeholder Conference on the Development of a European Marine Strategy, November 10-14, 2004 (copy with the authors). 70 ‘Towards a strategy to protect and conserve the marine environment,’ COM(2002)539. 71 These meetings sought to work-on the following subjects: strategic goals and objectives, ecosystem approach to management of human activities, European marine monitoring and assessment: hazardous substances. 72 Copies of these documents may be viewed at <www.fourum.eu.int>. 73 See, address by Director-General, DG Environment, European Commission, Catherine Day, at the Marine Strategy - Second Stakeholder Conference, Rotterdam, November 1012, 2004 . Copy at <www.forum.europa.int>. 74 Ibid. 75 The SEA Directive requires that plans and programmes regarding the building and location of large-scale infrastructure such as gas terminals, deep-water ports, and offshore energy installations will undergo environmental impact assessment and that public consultation takes place. The SEA Directive came into effect in July 2004 applies to a wide range of plans and programmes which impinge on marine activities including, agriculture, forestry, fisheries, energy, industry, transport, fisheries, water management, telecommunications, tourism, town and country planning or land use as well as projects listed in Annexes I and II to Directive 85/337/EEC. SEA may be distinguished from EIA, which is carried out for an individual project or activity. In the United Kingdom, SEA is currently performed for hydrocarbon activities on the United Kingdom continental shelf and is being rigorously implemented by the United Kingdom Department of Trade and Industry. Significantly, the application of SEA in the United Kingdom extends to inshore bays and inshore areas even though these are not open for hydrocarbon licensing with a view to ensuring that the assessment applies to marine environment as a whole as far as the high water mark. See, <www.offshore-sea.org.uk>. 76 OSPAR Marine Spatial Planning Workshop, January 8-9th, 2004. See also conclusions of OSPAR Biodiversity Committee Meeting, February, 2004. 77 See Conference Proceedings, “Spatial Planning in the Coastal and Marine Environment: Next Steps to Action.” Conference sponsored by English Nature, Royal Society Protection Birds, and World Wildlife Fund. 78 See, OSPAR Commission, Spatial Planning. Secretariat Paper to the BDC Meeting of OSPAR. BDC 03/4/10-E(L), (London, 2003). 79 Conference, Coastal Futures 2004, Review and Future Trends, University of London, January 21-22nd, 2004. 80 For comparative studies, see, inter alia: L. Juda, “Changing Approaches to Ocean Governance: The United States, Canada, and Australia,” 2003 Ocean Development and 134

Ocean and Coastal Governance International Law, Vol. 34, pp. 161-187; R. Peart, Report completed for Conservation International (copy with the authors). 81 This may be traced back to the President Truman proclamation on the continental shelf in 1945. 82 In particular the report of the Stratton Commission provided a road map for the development of a coherent Ocean’s policy in the United States. See, Commission on Marine Science, Engineering, and Resources, Our Nation and the Sea (1969). 83 On recent developments in the United States, see, inter alios: B. Cicin-Sain, R.W. Knecht, The future of U.S. Ocean Policy: Choices for the New Century, (Washington D.C. Island Press, 2000); L. Juda, “Changing Approaches to Ocean Governance: The United States, Canada, and Australia,” 2003 Ocean Development and International Law, Vol. 34, pp. 161-187. The United States Senate has also noted the complexity of the legal and bureaucratic framework relating to the ocean and the absence of a common mechanism for establishing a common vision or set of objectives. See, United States Senate, “Oceans Act of 2000,” Report of the Committee on Commerce, Science and Transportation, May 23, 2000. 84 Oceans Act of 2000, S.2327. 85 Section 2, Oceans Act of 2000 sets out the purpose and objectives of the Commission which is to make recommendations for coordinated and comprehensive national ocean policy that will promote: 86 Report U.S. Commission on Ocean Policy. 87 The Pew Commission was established to support the passage of the Oceans Bill through Congress as well as to promote greater public awareness regarding ocean issues. See, Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change, (Arlington, Pew Oceans Commission, 2003). 88 See, paper presented by M. Mattler, Deputy Chief Counsel, U.S. Senate Committee U.S. Senate Committee Foreign Relations, Conference International Energy Policy and the Law of the Sea, St. Petersburg, June 23-26, 2004. 89 Australia signed and ratified the LOS Convention in 1994. For a description of Oceans policy in Australia, see, inter alios: D.R. Rothwell, M. Haward, D. Vanderzwaag, B. Davis, “Australia and the Law of the Sea: Recent Developments and post-UNCED Challenges” in L.K. Kriwoken et al. (eds.), Ocean Law and Policy in the Post-UNCED Era: Australian and Canadian Perspectives, (London, Kluwer Law International, 1996); M. Howard, “Institutional Framework for Australian Ocean and Coastal Management,” (1996) Ocean and Coastal Management, Vol. 33, pp. 19-39; E.G. Foster, M. Howard, “Integrated management Councils: A Conceptual Model for Ocean Policy Conflict Management in Australia,” (2003) Ocean and Coastal Management, Vol. 46, pp.547563. 90 For further background information, see, Consultation Paper, Australia’s Oceans: New Horizons, (March 1997); Australia’s Oceans Policy – An Issues Paper (May 1998); Australia’s Oceans Policy (Canberra, Australia’s Oceans Policy, 1998). On a seminal report which set the context, see, L.P. Zann, “The State of the Marine Environment Report for Australia (SOMER): Process, Findings and Perspectives,” (1996) Ocean and Coastal Management, Vol. 33, pp. 63-86. The political, institutional and legal background concerning development of the policy is reviewed by G. Westcott, “The 135

Ronán Long and Anne Marie O’Hagan Development and Initial Implementation of Australia’s ‘Integrated and Comprehensive’ Oceans Policy,” (2000) Ocean and Coastal Management, Vol. 43, pp. 853-878. 91 These objectives include: - To exercise and protect Australia’s rights and jurisdiction over offshore areas, including offshore resources; - To meet Australia’s international obligations under the LOS Convention and other international treaties; - To understand and protect Australia’s marine biological diversity, the ocean environment and its resources, and ensure ocean uses are ecologically sustainable; - To promote ecologically sustainable economic development and job creation; - To establish integrated oceans planning and management arrangements (emphasis added); - To accommodate community needs and aspirations; - To improve expertise in ocean-relate management, science, technology and engineering; - To identify and protect Australia’s natural and cultural heritage; - To promote public awareness and understanding. See, Government of Australia, Australia’s Ocean Policy, (Commonwealth of Australia, 1998), p. 4. 92 See, <www.oceans.gov.au>. 93 See, D. Norton, Review of the Implementation of Oceans Policy, Final Report, TGF International Pty Ltd., (2002). 94 Commonwealth of Australia, Australia’s Ocean Policy, (Canberra, Environment Australia, 1998) 95 See, G. Westcott, “The Development and Initial Implementation of Australia’s ‘Integrated and Comprehensive’ Oceans Policy,” (2000) Ocean and Coastal Management, Vol. 43, pp. 853-878. 96 Contemporaneous with the development of Australia’s Oceans Policy the Commonwealth Government endorsed a Marine Industry Development Strategy. This Strategy is now perceived as part of a multi-track approach to marine resource utilisation and an essential component of the Oceans Policy. Initiatives undertaken include; the establishment of marine industry associations and networks to strengthen the representative capacity of marine industries; the raising of public awareness of the contribution made by marine industries to the economy and sustainable development; and the establishment of a strategy for the development of a National Marine Data Programme. The Oceans Policy is thus seen as one of the means to ensure the future growth and competitiveness of the marine industry and related services in Australia. See, Marine Industry Development Strategy (Canberra, Australian Marine Industries and Sciences Council, 1997), Marine Science and Technology Plan (Canberra, Department of Industry, Science and Tourism, 1999). 97 The ocean area under New Zealand’s jurisdiction is approximately ten times larger than the land area. Furthermore, New Zealand’s exclusive economic zone is the fourth largest in the world. This area does not include the continental margin under which New Zealand has potential jurisdiction under Article 76 of the LOS Convention. See, Report completed by the Institute of Geological and Nuclear Sciences Ltd., “New Zealand’s Continental 136

Ocean and Coastal Governance shelf and UNCLOS Article 76,” (Wellington, Institute of Water and Atmospheric Research, 2003). An enthralling account of the ecology and resources of the sea area adjacent is presented by P. Batson in Deep New Zealand, Blue Water, Black Abyss, (Canterbury, Canterbury University Press, 2003). An excellent account of the legal and institutional problems to be overcome is presented by Angela Foster, “New Zealand’s Ocean Policy,” 2003 Victoria University of Wellington Law Review, Vol. 34, pp. 469-496. For comprehensive account of the law pertaining to the environment and resource management in New Zealand, see, D. Williams (ed.), Environmental and Resource Management Law in New Zealand, 2nd Ed., (Wellington, Butterworths, 1997). 98 See, inter alia: Parliamentary Commissioner for the Environment, Setting Course for a Sustainable Future, The management of New Zealand’s Marine Environment, (Wellington, 1999). 99 The then New Zealand Minister Responsible for Oceans Policy, the Hon. P. Hodgson, MP, chaired an ad hoc Ministerial Group charged with developing New Zealand’s Oceans Policy. The Group was made up of Ministers of Foreign Affairs and Trade, Conservation, Fisheries, Maori Affairs, Commerce and the Environment. 100 The results of the consultation were published in a report by the Ministerial Advisory Committee on Oceans Policy, Healthy Sea: Healthy Society; Towards an Oceans Policy for New Zealand, (Wellington, 2001). 101 See, . 102 See, eleven working papers produced by the Oceans Policy Secretariat. Also, G. Willis et al., Oceans Policy Stocktake Part I – Legislation and Policy Review, (Wellington, Oceans Policy Secretariat, 2002) 103 See, decision of New Zealand Court of Appeal (June 2003) regarding Maori entitlement to seabed and foreshore. 104 The Treaty also creates a special fiduciary relationship between the British Crown and Maori communities. Under the Treaty, the Maori ceded sovereignty to the British Crown which undertook to protect Maori lands, forests and fisheries. See, R. Boast, A. Erueti, D. Mc Phail, and N.F. Smith, Maori Land Law, (Wellington: Butterworths, 1999); A. Alston, et al., Guide to New Zealand Land Law, (Wellington: Brooker’s, 2000), Chapter 4. 105 See, for example, Arctic Waters Pollution Prevention Act, 1971; amendment to the Coastal Fisheries Protection Act 1995. On unilateral action, see, P. Curran, R. Long, “Unilateral Fishery Law Enforcement: The Case of the Estai,” (1996) Irish Journal of European Law, Vol. 5, No. 2, pp. 123-163. 106 See, inter alia: C.L. Mitchell, “Sustainable Oceans Development the Canadian approach,” (1998) Marine Policy, Vol. 22, No 4-5, pp. 393-412; L. Hildebrand, A. Chircop, “Integrated Coastal and Ocean Management in Canada,” (Vancouver, 2000); G. Chao at fn 4 op.cit. For an early perspective on the policy, see, D.Day, “Public Policy and Ocean Management in Canada,” (1995) Marine Policy, Vol. 19, No 14, pp. 251-256. 107 The Oceans Act, 1996, c.31, received Royal Assent in the House of Commons on December 18, 1996, and came into force on January 31, 1997. 108 Section 29, Oceans Act, 1996.

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See, Canada’s Ocean Strategy, Our Oceans, Our Future, (Ontario, Fisheries and Oceans Canada, 2002) 110 Notes for an Address by the Honourable Brian Tobin, Minister of Fisheries and Oceans, House of Commons, Second Reading, The Canada Oceans Act, September, 1995. 111 Ibid. 112 Sections 10 through to 16, Oceans Act, 1991. 113 Part 111, Oceans Act, 1991. 114 Government of Canada, Policy Operational Framework for Integrated Management of Estuarine, Coastal and Marine Environments in Canada, (Ottawa, Fisheries and Oceans, 2002). 115 See, for instance, L. Juda, “Changing Approaches to Ocean Governance: The United States, Canada, and Australia,” 2003 Ocean Development and International Law, Vol. 34, pp. 161-187. 116 China ratified the LOS Convention on June 7, 1996. On China and the law of the sea, see, inter alia: J. Greenfield, China’s Practice in the Law of the Sea, (Oxford, Clarendon Press, 1992); M. Valencia, Sharing the Resources of the South China Seas, (The Hague/London, Kluwer Law International, 1997) 117 See, <www.china-un.ch/eng/gjhyfy/hflygz/t85690.htm>. 118 Ibid. 119 Id. 120 M. Lau, “Integrated Coastal Zone Management in the People’s Republic of China – An assessment of structural impacts on decision-making processes”, Ocean and Coastal Management Vol. 48, pp. 115-159. 121 See, inter alia: S. Chen, J.I Uitto, “Governing Marine and Coastal Environment in China: Building Local Government Capacity Through International Cooperation,” China Environmental Series, Issue 6, pp.67-80. 122 Four projects were undertaken in Xiamen in Fujian Province, Fangcheng in the Guangxi Zhuang Autonomous Region, Yangjiang in Guangdong Province, and Wenchang in Hainan. 123 For example, the National People's Congress has adopted the Law of the People's Republic of China on Its Territorial Seas and Adjacent Zones, Marine Environmental Protection Law of the People's Republic of China, Maritime Traffic Safety Law of the People's Republic of China, Fisheries Law of the People's Republic of China, Mineral Resources Law of the People's Republic of China and other related laws. The State Council has promulgated administrative regulations, encompassing the Regulations on the Exploitation of Offshore Petroleum Resources in Cooperation with Foreign Enterprises, Regulations on the Administration of Sino-Foreign Oceanographic Surveys, Regulations Governing the Laying of Submarine Cables and Pipelines, and Procedures for the Registration and Administration of Mineral Resources Survey Zones and Sectors. See, . 124 See, Z. Keyuan, “Governing Marine Scientific Research in China,” (2003) Ocean Development and International Law, 34:1-27; M.J. Valencia, Y. Amae, “Regime Building in the East China Sea,” (2003) Ocean Development and International Law, 34:189-208. 138


On hydrocarbon issues, see, Kuen-chen Fu, “China’s Energy Policies and the Law of the Sea” in M. H. Nordquist et al. (ed), International Energy Policy, the Arctic and the Law of the Sea, (Leiden/Boston, Martinus Nijhoff Publishers, 2005), pp.41-62. 126 See, M. Lau, “Coastal Zone Management in the People’s Republic of China: A Unique Approach?,” China Environmental Series, Issue 6, pp. 120-123. 127 See in particular report commissioned by Conservation International on Integrated Ocean Management, (copy with the authors). 128 Ratifies LOS Convention in 2003. 129 The Canada Oceans Act, 1996. TS – Territorial Sea; CZ – Contiguous Zone; EEZExclusive Economic Zone; and CS-Continental Shelf. 130 Ratified LOS Convention in 1994 131 Ratified LOS Convention in 1996 132 Ratification pending outcome of deliberations in the United States. 133 Australia utilises Commonwealth Constitutional Powers to enact laws relating to the oceans and their management. Under the Coastal Water States, Powers and title Act 1982, the States have primary responsibility over coastal waters out to three nautical miles. 134 The basis for New Zealand’s oceans policy may be traced back to recommendations made in New Zealand Biodiversity Strategy and in the report of the Parliamentary Commissioner entitled Setting Course for a Sustainable Future: The Management of New Zealand’s Environment. See, inter alia: “Memorandum for the Cabinet Policy Committee: Oceans Policy,” July 17, 2000; CAB(00) M23/2C, para. 7; Ministerial Advisory Committee, Healthy Sea: Healthy Society – Towards an Oceans Policy for New Zealand, (Oceans Policy Secretariat, Wellington, 2001) 135 Seas and Submerged Lands Act 1973 (Australia). 136 Territorial Sea, Contiguous Zone and Exclusive Economic Zone Act, 1977. New Zealand is currently preparing a submission for the Commission on the Limits of the Continental Shelf. 137 Law of the People's Republic of China on the Territorial Sea and the Contiguous Zone. Adopted: February 25, 1992. 138 Law on the Exclusive Economic Zone and the Continental Shelf of the People's Republic of China. Adopted: June 26, 1998. 139 See, for example, the zones claimed by Canada, United States, Australia, New Zealand, as indicted in Figure 4 above. 140 See, for example, the application of straight baselines by Denmark in relation to the Faroe Islands. For commentary, see, J.A. Roach, United States Responses to Excessive Maritime Claims, 2nd Ed., (The Hague, Nijhoff, 1996) passim. The International Court of Justice applied the provisions in the LOS Convention on straight baselines in its judgement of March 16, 2001, Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain Merits, ICJ Reports 2001, para’s 212-215. 141 The 350 nautical mile constraint line under Article 76 of the LOS Convention. 142 Directive 2000/60/EC establishing a framework for Community action in the field of water policy on October 23, 2000, O.J. L 327/1, December 22, 2000. Into force December 22, 2000. Under Article 2(6) of this Directive, coastal waters are defined in the context of the baseline. 139


A copy of this report is available at: <www.forum.europe.eu.int>. ICES response to E.C. request for information and advice about appropriate ecoregions for the implementation of an ecosystem approach in European waters, paragraph 3.7. 145 See, S. M. Garcia, M. Hayashi, “Division of the ocean and ecosystem management: A contrastive spatial evolution of marine fisheries governance,” (2000) Ocean and Coastal Management Vol. 43, pp. 445-474 (at pp. 470-472). 146 See, European Commission, web page ICZM, . 147 In 1976 the EEC member States agreed to take concerted action to extend the fishery jurisdiction of the member States in the northeast Atlantic and the North Sea to 200 nautical miles. See, Council Resolution on certain external aspects of the creation of the 200-mile fishing zone in the Community with effect from the January 1, 1977, OJ C 105/1, May 7, 1981. 148 On this point, see, D. Freestone, “Some institutional Implications of the Establishment of Exclusive Economic Zones by EC Member States,” Ocean Development and International Law, Vol. 23, pp. 97-114, at 107 and 108. 149 Compiled by Dr. Y. Tanaka, Marine Law and Ocean Policy Centre, National University of Ireland, Galway. 150 Coterminous with the exclusive economic zone. 151 For Greenland and Faeroe Islands. 152 In some parts of the Gulf of Finland, defined by coordinates. 153 Applies to the North Sea, the English Channel and the Atlantic Ocean from the Franco-Belgian border to the Franco-Spanish border, Saint Piere and Miquelon, French Guiana, Réunion, New Caledonia, French Polynesia, French Southern and Antarctic Lands, Wallis and Futuna, Tromelin, Glorioso, Juan de Nova, Europa and Bassad da India Islands, Clipperton Island, Mayotte, Guadaloupe and Martinique. 154 Ten-mile limit applies for the purpose of regulating civil aviation. 155 Jan Mayen and Svalbard. 156 In the Atlantic Ocean. 157 In the Mediterranean Sea. 158 To be determined by agreement or up to equidistance line. 159 Also, three nautical miles. (Three nautical miles in Anguilla, Guernsey, British Indian Ocean Territory, British Virgin Islands, Gibraltar, Monserrat and Pitcairn; 12 nautical miles in United Kingdom, Jersey, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, St. Helena and Dependencies, South Georgia, South Sandwich Islands, and Turks and Caicos Islands.) 160 Bermuda, Pitcairn, South Georgia and South Sandwich Islands. 161 12 nautical miles in Guernsey; 200 nautical miles in United Kingdom, Anguilla, British Indian Ocean Territory, British Virgin Islands, Cayman Islands, Falkland Islands, Monserrat, St. Helena and Dependencies, and Turks and Caicos Islands. 162 On the difficulties regarding the implementation of cross-cutting environmental themes into E.C. policies, see, L. Krämer, “Legal Aspects of Integrated Environmental Requirements,” 5th Ed., EC Environmental Law, (London, Sweet & Maxwell, 2003), pp. 348-369. 144

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Indeed, as pointed out above both the European Council and the European Commission rejected attempts in the European Parliament to introduce a binding legal framework for ICZM. See, European Parliament, “Common position with a view to the adoption of a recommendation concerning of the implementation of integrated coastal zone management in Europe,” C5-0698/2001, (2002, Strasbourg). For commentary on this decision, see J. Gibson, “Integrated Coastal Zone Management Law in the EU,” pp. 127-137; Coastal Management, Vol. 31, No 2, 2003. 164 The need to develop such a policy was set out by Dr. Borg in an address to the IMO Maritime Law Institute, Malta April 4, 2005, (European Commission, Speech/05/196). See, discussion on the absence of a strategic framework, infra. 165 On this point see the decision of the High Court in the United Kingdom in The Queen v. The Secretary of State for Trade and Industry ex parte Greenpeace Limited, High Court of Justice Queen’s Bench Division, November 5, 1999. 166 See, fn 25 op.cit. 167 A single-hull tanker, the Prestige, sank off the coast of Galicia in Spain in November 2002. A large quantity of fuel oil was released into the sea and caused over one billion Euro worth of damage. The European Commission endeavoured to map out a strategy to improve the transport of oil and other substances by sea and to improve safety at sea. See, European Commission Report to the European Council on action to deal with the effects of the Prestige disaster, COM (2003) 105 of March 5, 2003. 168 See. Julian Roberts et al., “The Western European PSSA proposal: a political sensitive sea area,” Marine Policy (in press). 169 Council Regulation No. 1406/2002, OJ L 208/1, 2002. 170 Ibid. Article 1 171 Of the two sets of proceedings commenced by Ireland, only those taken within the framework provided by the OSPAR Convention at the Permanent Court of Arbitration have been concluded. For commentary on this case, see, T. Mac Dorman, “Access to information under Article 9 of the OSPAR Convention (Ireland v. United Kingdom): OSPAR Arbitral Tribunal, July 2, 2003: arbitral award regarding duty to provide access to information about nuclear facility under treaty on marine environmental protection,” (2004) American Journal of International Law, Vol. 98, pp. 330-339; D. Devine, Provisional Measures ordered by the International Tribunal for the Law of the Sea in the Area of Pollution : the MOX Plant Case (Ireland v. United Kingdom) ITLOS Case No 10, December 3, 2001, (2003) South African Yearbook of International Law, Vol. 28, pp. 263-275 / 2003;M. Tanaka, Lessons from the protracted MOX plant dispute : a proposed protocol on marine environmental impact assessment to the United Nations Convention on the Law of the Sea, (2004) Michigan Journal of International Law, Vol. 25, pp. 337-428. 172 See, R. Churchill, J. Scott, “The MOX Plant Litigation: the first Half-Life,” Vol. 53, The International and Comparative Law Quarterly, pp. 643-676. 173 Report of the Independent World Commission on the Oceans, The Ocean Our Future, (Cambridge, Cambridge University Press, 1998), p. 148. 174 A recent initiative to resolve this difficulty has been the establishment of Regional Advisory Councils under the common fisheries policy. See, Council Decision of July 19, 2004 establishing Regional Advisory Councils under the Common Fisheries Policy, OJ L 141

Ronán Long and Anne Marie O’Hagan 256/17, August 3, 2004. These Councils will allow representatives of the fishing industry, scientists and other stakeholders to participate in the policy process. This limited role does not, however, entail vesting the Councils with any executive or legislative functions. Nonetheless, these Councils may demonstrate the utility of involving a wide range of stakeholders in the policy process and could thus form a useful precedent for the establishment of similar type structures for the implementation of ICZM and IOM. 175 A number of ICZM experts have called for the introduction of such legislation, see, inter alios: S. Humphreys, P. Burbridge, & C. Blatch, “U.S. Lessons for Coastal Management in the EU,” (2000) Marine Policy, Vol. 24, pp. 275-286; D.J. Huggett, “Progressing coastal management in Europe: a case for continental zone planning and management” in J. Taussik et al., Partnerships in Coastal Zone Management, (Cardigan, Samara Publishing Ltd., 1996), pp. 47-56; and D. Huggett, “The role of federal government intervention in coastal zone planning and management,” (1998) Ocean and Coastal Management, Vo. 39, pp. 33-50. 176 E.C. Treaty, Article 249. 177 See, discussion regarding Canada’s Oceans Act 1996 supra. 178 E.C. Treaty Article 5. 179 See, J. Gibson, “Integrated Coastal Zone Management Law in the EU,” 2003 Coastal Management, Vol. 31, No 2, 2003. pp. 127-137 at 130. 180 For a detailed exposition of E.C. Directives, see, S. Prechal, Directives in EC Law, 2nd Ed., (Oxford, Oxford University Press, 2005), passim. 181 L. Krämer, “Legal Aspects of Integrated Environmental Requirements,” 5th Ed., EC Environmental Law, (London, Sweet & Maxwell, 2003), passim. 182 The European framework programmes are the EU's main instrument for funding international collaborative research projects. 183 See Part I supra. 184 On difficulties regarding definitions in Canadian legislation, see, G. Chao, “Moving from International ‘Good Steward’ to Domestic Integrated Manager: Challenges of Importing Principles of Integrated Coastal and Ocean Management into Canada’s Ocean Law,” Ocean Yearbook, (Chicago, University of Chicago, 2002), 16:421-462, at 448. This commentator points out that coastal waters may be comprised of harbours, bays, estuaries, other inland waters, and the territorial sea, typically under the provincial jurisdiction. Offshore waters consist of the contiguous zone, the EEZ, and the continental shelf, typically under federal jurisdiction. 185 Third recital, Preamble, LOS Convention. 186 See, R. Long, P. Curran, Enforcing the Common Fisheries Policy, (Oxford, Blackwell Science, 2000), passim.

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PANEL III: OIL AND GAS DEVELOPMENTS AND ENVIRONMENTAL PROTECTION IN THE SOUTH CHINA SEA ___________________________________

The Energy Security of China and Oil and Gas Exploitation In the South China Sea Wu Shicun * and Hong Nong †

INTRODUCTION With the sustaining development of China’s economy, energy security has become an urgent issue for China. The South China Sea (SCS) abounds in gas and oil deposits, which is of great significance for the countries and regions in the SCS area. However, due to the intricate political situation of the SCS area, oil and gas exploitation will undoubtedly become a sensitive issue that not only might bring about conflict, but also might create many other problems, such as high exploitation costs and high risks to exploiters. Hence, determining how to set up an effective model of joint exploitation has become an urgent task, which if completed, will not only avoid conflict, but also help to create a harmonious, cooperative atmosphere. A workable exploitation model for the SCS area can only be set up when the disputing parties reach an agreement on mechanisms of cooperation and conflict management. Additionally, the parties must be assured of necessary political stability and financial support. To develop cross-Strait cooperation, one will not only have to consider its feasibility, but also, to a larger extent, the protection of Chinese interests in the SCS area. Petroleum is has been called the “blood” of industry, which is directly related to the economic development, political stability and national security of the state. One common comment among the energy experts of the world is that “Petroleum remains the principal energy provider among all the available resources in the 21st century.” Before an alternative energy is found, most countries have to face a series of urgent issues, such as how to increase oil supply and assure import security in order to ensure the sustainability of economic and social development. The competition *

Professor, Dr. Wu Shicun, President of National Institute for the South China Sea Studies, China. † Hong Nong, Assistant Researcher of National Institute for the South China Sea Studies, China. 145

Wu Shicun and Hong Nong

for oil in the international community has become fierce in the twenty-first century, which might lead to political and military conflict. The Spratly Islands, which are claimed by seven parties, and which abound in oil and gas, which are key factors leading to conflict over fishing and oil resources. The demand for oil and gas in the Spratly Sea area is increasing sharply given the present economic development of neighboring countries and regions. Some countries have started exploitation in the disputed areas, disregarding the objection of other involved countries. Some have even started joint development with foreign companies aiming to internationalize the disputes over the Spratly Islands. Considering the complexity of the situation, how to achieve joint exploitation of oil and gas in the disputed areas has become an urgent question for China. This paper starts by analyzing the energy security of China, and then commences discussion of a model of joint exploitation and conflict regarding oil exploitation in the SCS. This paper concludes with a discussion of cross-Strait cooperation in the SCS, with regard to the interests of Chinese people. CHINA’S ENERGY SECURITY SITUATION In the current era of globalization, the energy security of a state is more than just an economic issue. It is a political and military issue as well that is closely related to the domestic demand and supply contradiction, the state’s dependence upon the world, and the state’s diplomatic and military influence in regions that abound in energy resources. With China’s joining the WTO and its efforts toward economic globalization and regional integration, its production and consumption have impacted the global energy deployment system while its energy security has impacted the international community, as well. Therefore, China’s energy security critically interacts with changes to the world’s energy security situation. According to American economic experts, GDP of the United States will drop about 2.5 percent when the international oil price increases by one time. If oil prices increase by 10 dollars a barrel, the United States will suffer a one percent GDP loss of 50 billion U.S. dollars, while economic growth will decrease by a half of a percent. In addition, America enjoys highly powerful political and military control over the regions with abundant oil resources and over sea lanes to the United States. However, the Chinese navy is still unable to ensure the 146

The Energy Security of China and Oil and Gas Exploitation

security of Chinese sea navigation. China also has to highly depend on oil imports from the Middle East and Africa, which demonstrates the fragility of China’s oil procurement infrastructure. Since China adopted its policy of reform and opening up to the world in the early 1970s, its continuous economic development has led to a great change in its energy infrastructure. Coal consumption has dropped from 70 percent in the early 1980s to 56 percent in 2000, while petroleum consumption has increased by 15 percent. The increasing optimization of energy infrastructure has promoted the stability and continuation of China’s economic development. However, on average every Chinese person can only use 10 tons of available petroleum, which is only one-fifth of the world per capita consumption average. With China’s economic development, its oil consumption is increasing far beyond this procurement capacity. Since 1984, annual oil production has increased by 1.7 percent, while consumption has increased by 4.9 percent. Hence, China is facing the problem of how to ensure adequate oil supply and guarantee oil import reliability. China is the fifth highest oil producing country. The annual production was over 1.2 billion barrels in 2002. The proportion of oil extraction capacity to available reserves is 1:12, while the world proportion is 1:45. These figures indicate that China lacks oil reserves. Although some achievement has been made in West China and the sea area, there are no large-size oil fields among these areas. In addition, there is no oil pipeline connecting west and east China, which also restricts the supply of petroleum in China. China cannot depend on its current oil production given rapid economic growth. China has been a net oil importer since 1993. It imported 513.1 million barrels of petroleum in 2002. Authorities estimate that China may produce 1.3 billion barrels of oil in 2005, but nearly 660 million barrels will have to be imported. So far, China has not set up a complete oil reserve mechanism. The current oil reserve mechanism was formulated in the 1970s. During the Middle East War in 1973, the Arabian countries started oil embargoes against Western countries and thus arose the first oil crisis. Henceforth, most countries have implemented oil reserve mechanisms. With the increase of oil importation and the lack of a strategic oil reserve mechanism, China is influenced by such factors as the global oil price change, war crisis in the Middle East and war crisis in important sea lanes. Either drops of international market supply or sharp increases of oil price 147


will greatly influence the Chinese economy, society and national defense. Statistics from the State Financial Ministry of China indicate that by 2005 China will consume approximately 1.9 billion barrels of oil per year, 48 percent of which will be imported. By 2015, oil importation will cover 50 percent of the total consumption. The International Energy Agency (IEA) predicted in a report in September 2002, that by 2030, net oil import will increase from 2 million barrels to 9.8 million barrels per day. The report stated that the increase of China’s oil consumption accounts for 25 percent of whole-world increase over the past ten years. Based on the figures above, China should set up an oil reserve mechanism in order to depend less on oil importation. The energy security situation of China now demonstrates that China not only needs to change its current energy security policy and lean toward multiple sources of energy importation, but also needs to speed up offshore oil exploitation. Termed “the second Persian Gulf,” the SCS abounds in resources critical for China’s national security and sustainable development. It is obvious that some countries have started oil exploitation in the disputed areas in the SCS, hence, the next step for China is to set up a detailed development strategy in view of its sovereignty and energy security. THE OIL AND GAS SITUATION IN THE DISPUTED SCS AREA AND DEVELOPMENT According to decades of research, there are 13 large and medium sediment bans, with a total area of 619.5 thousand km2, among which 417 thousand km2 is within China’s U-shaped line. This area is estimated to contain over 172 billion barrels worth of oil and 10 trillion stere of natural gas. There is also a large quantity of gas hydrate (also known as ‘flammable ice’) in the SCS area. Gas hydrate is regarded as a strategic resource with great business potential for the twenty first century due to its features of high density, extensive distribution and large scale. Experts believe that gas hydrate will be developed and utilized in a large scale in 15-20 years. The National Natural Science Foundation of China affirmed the existence of some projects examining gas hydrate in the late 1990s. In 1996, a research project was carried out with the name of “Prospect and Methodology Research on Gas Hydrate in the West Pacific”. “Research on Gas Hydrate Survey in China’s Sea Area” was completed in 1998. In 1999, 148


Guangzhou Marine Geological Survey discovered gas hydrate in the Paracel Islands in the SCS and continued an earthquake survey in the same area in 2000. The initial survey shows that 8000 km2 area may contain gas hydrate, an amount equal to 586.4 billion barrels of oil, covering 50 percent of the current total oil reserve of China. Nevertheless, China is still in the process of research and survey, leaving drilling, exploitation and development yet to be done. In early 1980’s, China started oil surveys in the Spratly Islands, though only touching physical geography reconnaissance. In 1992, China National Offshore Oil Corporation signed a contract with Creston Energy Corporation of America in joint development of gas and oil at Wan’an Tan. However, this deal could not be implemented due to counteraction by Vietnam. So far, China has not yet exploited any oil in the Spratly Islands. Ever since the 1970s, some Association of South East Asian Nations (ASEAN) countries, including Vietnam, the Philippines, Malaysia, Indonesia and Brunei, have made use of their geographic advantage and sped up exploitation of gas and oil in the SCS by means of introducing foreign oil companies, especially from Western countries. Vietnam used to be one of the poorest countries in Southeast Asia. Oil has helped this country to get rid of its poverty. In order to reconstruct its economy after 30 years of civil war and the loss of oil assistance from the former Soviet Union, Vietnam has endeavored to develop onshore and offshore oil. Vietnam has signed 33 contracts with more than 50 foreign oil companies since it opened its oil exploitation market to the world. Statistics show that the annual oil exploitation in the SCS continental shelf has reached over 80 million barrels, and that Vietnam has increased its oil and natural gas exportation gradually. It exported 88.7 million barrels of oil in 1998 and increased to over 106 million barrels in 1999, thus earning two billion U.S. dollars. According to the updated figures issued by the Energy Information Agency of America in May 2002, the daily oil production capacity of Vietnam in the SCS area reaches 356 thousand barrels. The annual production of natural gas amounts to 19 billion cubic feet. In 2000, Vietnam exported 133 thousand barrels of oil per day, most of which is exploited from the SCS area. Oil exportation thus has become the major source of foreign exchange of Vietnam. The discovery of oil in the SCS gives the Philippines, 95 percent of whose oil is imported, hope to reduce oil import proportion percentage down to 85 percent. It started to exploit oil at Liletan jointly with foreign 149


oil companies in 1976. The Philippines is currently trying to jointly develop the natural gas field located northwest of Palawan Island with the Shell Company. This natural gas field is estimated to produce 120 million barrels of oil in 20 years. According to the Energy Information Agency of America (May 2002), the Philippines exploited 9,460 barrels of oil and one billion cubic feet of natural gas per day in the SCS area. The Philippine press also reports that the country plans to extend its continental shelf from 200 nautical miles to 350 in order to further scramble for oil in the SCS area. The International Law Research Institute of the National University of the Philippines has requested the Senate to fund this proposal in order to collect related data. Different from Vietnam and the Philippines, Malaysia refuses to involve countries outside of the SCS region in SCS disputes and opposes the internationalization of the SCS dispute. However, it has also participated in oil exploitation and thus gained profits. In recent years, Malaysia has built manpower facilities in its occupied islands and reefs as an excuse to establish facilities for scientific research purposes. Besides, it has sped up oil exploitation in the SCS. Up to the present, Malaysia has developed 18 oil fields and 40 gas fields within the U-shaped line of China. In 2000, its total daily oil production only amounted to 690 thousand barrels; however, its daily oil production in the SCS reached 668 thousand barrels, covering 89.07 percent of the total. The report from the Energy Information Agency of America in May 2002 indicates that the daily oil production of Malaysia in the SCS amounts to 750 million barrels and natural gas of 1437 billion cubic feet. Indonesia, as an OPEC country, is a main oil producer and exporter. Energy is the leading industry of Indonesia, which has been paid great attention to by both the central government and local governments. The energy and mineral resources industries cover 25-30 percent of the total tax income for the whole country. Liquefied natural gas covers one-third market share of the Asia Pacific area, which hosts powerful competition. Indonesia has gained much profit from the exploitation of the Natuna Gas Field in the SCS disputed area. Natuna Gas Field, jointly developed by Indonesia National Oil Corporation and America Exxon Corporation, is located within the U-shaped line of China and has available capacity of 1,600 billion cubic meters. This project, with a cost of 40 billion U.S. dollars, has been designed to produce six million tons of liquefied natural gas every year once completed. Indonesia is now concerned with China’s 150


claim over rights to the sea area of Natuna Archipelago, which will impact this gas exploitation project. Indonesia produced 1.22 million barrels of oil every day in 2001, 20 percent of which was exploited from the SCS area. At present, Indonesia produces 215 thousand barrels of oil per day in the SCS area and 12 billion cubic feet per year. Brunei is the main oil producing country in the Asia-Pacific area and one of the largest oil exporters in the world. Its main exploitation area is situated at the Shaba Basin. Oil and gas exploitation is the principle economic resource of the Brunei people. However, current oil and gas field exploitation can only last 25 years. Hence, the Brunei government feels the urgency to develop new off-shore oil fields in order to maintain its current prosperity. Nantong Reef is located within the U-shape line of China. Once it occupies the Nantong Reef, Brunei has the right to develop the oil contained in the continental shelf in this area. Brunei has daily production of 195 thousand barrels of oil in the SCS and annual production of 334 billion cubic feet of natural gas. COOPERATIVE MODEL AND CONFLICT The special features of the disputed area make it possible for conflicts to happen unavoidably while exploitation is being carried out. Therefore, the claiming parties may take the following actions: 1.

2.

3. 4.

Unilateral action, namely conflict, means that the claiming party takes action alone, ignoring the protest of the other parties involved; Bilateral cooperation means that the two parties concerned develop cooperation in a bilateral disputing area in order to avoid conflict; Multilateral cooperation is normally taken in the multilateral disputed area and; Frozen behavior means laying aside the dispute and freezing the development activities in the disputed area.

The following are various models currently at work in the disputed area:

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1. 2. 3.

4.

The supranational management model, such as the mutual development case of Thailand and Malaysia; The joint management model between two governments such as in the case of Australia and Indonesia; The agent model, such as the agreement between Qatar and Abu Dhabi of 1965 and the agreement between Saudi Arabia and Bahrain of 1968 and; The mutual operating model among joint ventures, such as the agreement on jointly developing the East Sea continental shelf between Japan and South Korea of 1974.

No matter what model is considered toward development in the disputed area, it must be regarded as a kind of temporary interest arrangement based on existing disputes and conflicts. The agreement of cooperation is based on the compromise between political entities that have acknowledged the existence of dispute and have reached an agreement through political negotiation aiming to reach consensus on interest share. However, these kinds of temporary arrangements can be easily influenced by various factors. The Timor Agreement signed by Australia and Indonesia came to an end due to the independence of East Timor. Within the framework of geopolitics and economic security with the national interest as the priority, a temporary interest arrangement could work as a “safety valve”, but may lead to conflict as well. Multilateral development is more difficult to achieve than bilateral development due to the intricacies of interest division and political compromise. Therefore, the cooperative model can only be set up after the parties concerned reach an agreement on the mechanism of cooperation and conflict management, including necessary political guarantee and financial support. The proposal put forward by China of “shelving disputes and going in for joint development” includes these features. Currently, the oil and gas exploitations in the disputed SCS area are mainly unilateral actions. The SCS dispute caused by oil and gas has existed for decades. With the purpose of creating a friendly and harmonious atmosphere with the neighboring countries and to release the tension in the SCS area, the Chinese government has endeavored to develop a friendly cooperation with the ASEAN and has initiated the proposal of “shelving disputes and going in for joint development.” The proposal has taken into consideration the practical interest of the parties 152


involved and helps to find a way to eventually resolve the SCS dispute. This demonstrates the good will and sincerity of China on this issue. China has worked with some countries on cooperation in oil, fishing, marine environment protection and marine weather, etc., which will help China seek a resolution model together with the parties involved, aimed at furthering cooperation and accumulating harmonious experiences. China has signed a series of agreements with ASEAN, such as the Declaration on the Conduct of Parties in the South China Sea, Joint Declaration of ASEAN-China on Cooperation in the Field of the Non-traditional Security Issues, Treaty of Amity and Cooperation in Southeast Asia, through which the parties have built up mutual confidence. Additionally, China and ASEAN have expanded economic development through the establishment of a free trade zone. It is believed that the proposal of ‘‘shelving disputes and going in for joint development’’ will be more conceivable in the international community upon the promotion of similar such actions. Due to political confrontation and the cross-Strait tension, China Mainland and Taiwan still face obstacles on economic cooperation. Since they share common interests in the SCS, both parties should seek a way toward mutual understanding and cooperation with an aim to protect the rights and interests of the Chinese people. In spite of the political difference, China Mainland and Taiwan have stepped forward on oil cooperation in the SCS. In 1997, Taiwan Petroleum Company and China National Offshore Oil Corporation signed a cooperation contract on the physical survey of nearby Pratas Island, which helps set up the groundwork for the further cross-Strait cooperation. CONCLUSION The cooperation on oil and gas exploitation relies on political understanding and cooperation among all the parties concerned, as well as a favorable environment of diplomacy and security, with economic development as the core. Since the signing of the Declaration on the Conduct of Parties in the South China Sea, China has actively and responsibly been doing as promised. Several times, Chinese leaders have visited southeast Asia, signing a series of political declarations and agreements and utilizing various platforms on different occasions to maintain a posture of political dialogue and cooperation with the other 153


parties concerned. Moreover, China has taken substantive steps in order to carry out the Declaration and has sought measures to establish an inter-trust system. Although consensus on cooperation, development and win-win agreements have been reached, security problems still exist in the SCS area. Despite the signing of the Declaration, affairs such as spitefully arresting and driving away the other countries’ legally-working fishermen by military force continually takes place. To avoid this, each party concerned should keep their promises and maintain the security of the SCS for establishing an advantageous international situation and improving the sustainable development of the entire regional economy. China has made its own contribution to security maintenance of the SCS. During the 11th APEC Economic Leaders' Meeting, Chinese Chairman Hu Jintao put forward the policy of building good-neighborly relationships and partnerships with our neighbors for the first time, appealing to carry forward the spirit of solidarity and to achieve common prosperity. On November 2, in the Boao Forum for Asia, Chinese Premier Wen Jiabao pointed out that China’s Asian policy aims at achieving peace, security, cooperation and prosperity. One has every reason to believe that a dynamic, strong and prosperous China, a China that is dedicated to world peace and development and a China that never seeks hegemony for itself, will make a fresh contribution to Asia’s rejuvenation and renewal. All of this indicates that in the face of economic globalization and regional integration, China is doing its best to promote further cooperation on economics, security, and politics via practical foreign policies of maintaining friendly, safe and win-win neighborly relationships. The policy that China has adopted is a constructive one in which the nation’s interests are considered within the framework of international settings instead of without. As a country with responsibility, China’s actions will have consequential and far-reaching influence on settling the disputes over the SCS and realizing permanent peace in the SCS area.

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A New Model of Joint Development for the South China Sea Zou Keyuan *

Natural resources in the South China Sea are abundant. In addition to marine living resources, mineral reserves (including oil and gas) have huge potential. Scientists estimate that there are five sedimentary basins in the northern part of the South China Sea with an area of 420,000 km2. As of 1997, 56 oilfields or structures had been discovered, containing 700 million tons of oil and 310 billion cubic meters of gas. 1 In the Spratly area, there are eight sedimentary basins with an area of 410,000 km2, of which 260,000 km2 are within China’s unilaterally claimed U-shaped line. 2 An incomplete estimate from China shows that these eight sedimentary basins contain 34.97 billion tons of petroleum reserves, including the discovered 1.182 billion tons of oil and 8,000 billion cubic meters of gas. Additionally, oily sedimentary basins around the Paracel Islands exist, though no proven hydrocarbon resources have been discovered. Thus the South China Sea is sometimes called a second “Persian Gulf.” But, unlike the Chinese estimation, the general view outside of China is less optimistic. A 1993-94 figure provided by the U.S. Geological Survey estimated the sum total of discovered oil reserves and undiscovered resources in the offshore basins of the South China Sea at 28 billion barrels. 3 However, if this figure is added to the reserves of natural gas, which, according to the U.S. Geological Survey, account for 60 to 70 percent of the total potential hydrocarbon resources in this region, 4 the overall picture of petroleum exploration and development is still very encouraging, even given the conservative estimation. The Natuna gas field has been used as an indicator to presume that the potentials in the South China Sea could be very significant. However, unilateral exploration activities often cause conflicts with and among interested countries. Taking the Crestone Concession case as an example, we can see how a unilateral act seriously affected the normal relations between the two countries concerned. In May 1992, China signed a contract with the U.S. firm Crestone to search for oil near the Spratly *

Senior Research Fellow, East Asian Institute, National University of Singapore. 155

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Islands in an area that Vietnam claimed as its continental shelf. In December 1993 Vietnam demanded that Crestone cancel this offshore oil development. In 1994, Crestone joined with a Chinese partner to explore China’s Wan’ Bei-21 (WAB-21 block). While Vietnam protested that the exploration was in Vietnamese waters in their blocks 133, 134, and 135, China offered to split Wan’ Bei production with Vietnam as long as China retained all sovereignty. In August of that year, Vietnamese gunboats forced a Chinese exploration ship to leave an oilfield in a region claimed by the Vietnamese. In April 1996, Vietnam leased exploration blocks to the U.S. firm Conoco and ruled out cooperation with U.S. oil firms that signed Chinese exploration contracts in disputed waters. Vietnamese blocks 133 and 134 cover half the zone leased to Crestone by China. China protested. In March 1997, the Vietnamese issued a protest after the Chinese Kantan-3 oil rig drilled near the Spratly Islands. The drilling was conducted offshore from Da Nang in an area Vietnam calls Block 113. The block is located 64 nautical miles off Chan May Cape in Vietnam, and 71 nautical miles off China’s Hainan Island. The diplomatic protests were followed by the departure of the Chinese rig. In December 1997, the Vietnamese protested after the Exploration Ship No. 8 and two supply ships entered the Wan’ Bei exploration block. All three vessels were escorted out of the area by the Vietnamese navy. In September 1998, the Vietnamese protested after a Chinese report stated that Crestone and China were continuing their survey of the Spratly Islands and the Tu Chinh region (Wan’an Bei in Chinese). This case illustrates thepractical difficulty of implementing a unilateral petroleum activity. In addition, conflicts over resources in the South China Sea also occur between other claimants, such as Brunei and Malaysia, based on their conflicting EEZ claims. The reason behind this is simple: extraction by a single state can deplete the fluid deposit in which other adjacent states are entitled to share. 5 Sometimes even a unilateral extraction fully within the area of a state may cause international conflict. The Chunxiao Gas Field incident illustrates this. China has conducted gas extraction activities in the Chunxiao Gas Field in the East China Sea, but invited protests from Japan because the gas field is located only five kilometers from the boundary line claimed by Japan. Though the two sides have held talks, 6 the issue remained unresolved at the time this paper was written. For that reason, joint development seems feasible only for petroleum resources in the disputed areas. 156

A New Model of Joint Development for the South China Sea

JOINT DEVELOPMENT FOR THE SOUTH CHINA SEA The concept of joint development appeared in international law in the 1970s. Joint development is defined as “an agreement between two States to develop so as to share jointly in agreed proportions by inter-State cooperation and national measures the offshore oil and gas in a designated zone of the seabed and subsoil of the continental shelf to which both or either of the participating states are entitled in international law.” 7 This definition is broad enough to cover all relevant situations in which a joint development is needed and/or required. Generally speaking, the concept of joint development contains several characteristics: 1. It is an arrangement between two countries; 2. It is usually concerned with an overlapping maritime boundary area; 3. It can be used as a provisional arrangement pending the settlement of the boundary delimitation disputes between the countries concerned; 4. It is designed to jointly develop the mineral resources in the disputed area or in a defined area shared by two countries. In this sense, a joint development is a most feasible mechanism to shelve disputes and pave the way for cooperation pending settlement of territorial and/or maritime disputes over a certain sea area due to overlapping claims. The LOS Convention provides a legal basis for joint development in disputed maritime areas pending the settlement of maritime boundary delimitation. Articles 74 (3) and 83 (3) provide that pending an agreement between the parties on the delimitation of the EEZ and continental shelf, the states concerned, in a spirit of understanding and cooperation, are required to “make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement.” This legal norm has been reflected in many cases and can apply to the South China Sea. However, the LOS Convention leaves other options open to the states concerned about whether to develop jointly after definite maritime boundary delimitation. As early as 1969 the International Court of Justice (ICJ) touched on this issue in the North Sea Continental Shelf cases by stating that “if… the delimitation leaves to the Parties areas that overlap, there are 157

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to be divided between them in agreed proportions or failing agreement, equally, unless they decide on a regime of joint jurisdiction, use, or exploitation for the zone of overlap or any part of them.” 8 Finally, it should be noted that peaceful resolution of international disputes is one of the fundamental principles in international law, as stipulated both in the Charter of the United Nations and the LOS Convention. Joint development is one of the options for states to reach peaceful resolution to conflicts in the maritime domain. In state practice, there are many such precedents that set forth joint development arrangements. The first of this kind was made between Kuwait and Saudi Arabia in 1922. Based on the 1922 Aqeer Agreement, the two countries were co-tenants in the Neutral Zone, holding shares equally and jointly. Later, they consented to joint development by their concessionaires. 9 There are generally three types of joint development schemes: 1. Those devised with the maritime boundary delimited, such as the Bahrain-Saudi Arabia Agreement concerning the Delimitation of the Continental Shelf of February 22, 1958; the France-Spain Convention on the Delimitation of the Continental Shelves of the Two States in the Bay of Biscay of January 29, 1974; the SudanSaudi Arabia Agreement Relating to the Joint Exploration and Exploitation of the Natural Resources of the Seabed and Subsoil of the Red Sea in a Defined Area of the Two Countries in the Red Sea of May 16, 1974; and the Iceland-Norway Agreement on the Continental Shelf between Iceland and Jan Mayen of October 22, 1981; 2. Those made for the purpose of unitizing hydrocarbon deposits that straddle a boundary line, such as the Norway-United Kingdom Agreement Relating to the Delimitation of the Continental Shelf between the Two Countries of March 10, 1965, and subsequent agreements for the exploitation of Frigg Field gas and Statfjord Field and Murchison Field petroleum, respectively; and 3. Those to be worked out with the issue of boundary delimitation shelved or kept unresolved, such as the Japan-Korea Agreement Concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries of January 30, 1974; the Malaysia-Thailand Memorandum of Understanding on the Establishment of a Joint Authority for the Exploitation of 158


Resources of the Seabed in a Defined Area of the Two Countries in the Gulf of Thailand of February 21, 1979; and the AustraliaIndonesia Treaty on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia of December 11, 1989. 10 This third type is linked to the provisional arrangements stipulations under the LOS Convention. Some existing joint development models are conducive to the initiation and development of a similar one for the South China Sea. They actually exist all over the world from the North Sea Model to the Arabic Sea, and from Asia to Latin America. 11 In the East Asian region, joint development is also a mode of bilateral cooperation between the countries concerned, such as the Japan-South Korea Arrangement in the Sea of Japan and the East China Sea in the 1970s, the Malaysia-Thailand Joint Development Area in the Gulf of Thailand and the Australia-Indonesia Joint Development Zone for the Timor Gap. 12 There are some existing studies on joint development in the South China Sea. A book published by the British Institute of International and Comparative Law lists the South China Sea as one of the potential areas for joint development. 13 In the 1980s there were two workshops organized by the East-West Center, Hawaii, discussing the possibilities of joint development in the South China Sea. While the majority of the presented papers were within the geological and technical fields, several papers did address joint development from a legal perspective. 14 However, though in favor of regional cooperation in the South China Sea, most of the presented papers focused on geology, geophysics and hydrocarbon potential in the region. In the 1980 workshop, the panel on “Precedents for Joint Development” contained five papers: one addressing joint development in the North Sea by William T. Onorato; one addressing joint development in the Persian Gulf by Fereidun Fesharaki; a paper addressing joint development in the East China Sea by Choon-ho Park; a paper addressing joint development in the Gulf of Thailand by Prakong Polahan; and a paper addressing legal aspects by Masahiro Miyoshi. The panel on “Joint Research, Investigation, and Development” in the 1983 workshop contained several papers on joint development, including, inter alia, “The Malaysian Philosophy of Joint Development” by Datuk Harun Ariffin, “The Japan-South Korea Agreement on Joint Development of the Continental Shelf” by Masahiro Miyoshi, “Reaching Agreement on International Exploitation of Ocean Mineral Resources” by Willy Østreng 159

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and “Joint Jurisdiction and Development in the Southeast Asian Seas” by Mark J. Valencia. Although the discussions during these two workshops were very preliminary, they provided pioneer work for possible joint development in the South China Sea. The Law of the Sea Institute’s 29th Annual Conference held in Bali, Indonesia, in 1995 had a panel on joint development. The most relevant presented paper was “Is Joint Development Possible in the South China Sea?” 15 It raised the question of whether a multilateral joint development arrangement was possible for the South China Sea. Since there had been no precedent for such a multilateral arrangement, the paper made references to existing multilateral regimes, including the following: the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies; the international seabed regime established by the LOS Convention; and the 1988 Convention on the Regulation of Antarctic Mineral Resource Activities. However, while the author of that paper may know they are international regimes, they all govern the common heritage of mankind, which is substantially different in nature from the resources in the South China Sea. 16 Another paper presented by Robert Smith also touches on possible joint development in the Spratly Islands. According to the author, after freezing the territorial claims, the claimants would draw hypothetical equidistant lines between the disputed islands and the surrounding littoral States. Within the zones created by these equidistant lines, the states concerned could seek to establish various “joint zones” within the framework of joint development, limited joint development or non-development. 17 The non-development zones could be made into marine sanctuaries, such as for the purpose of protecting coral reefs or as applicable to “areas where the number of competing claims is the greatest.” Scholars and governmental officials in the ASEAN countries have also expressed their views on joint development in the South China Sea. Hasjim Djalal, a senior Indonesian diplomat, once wrote a paper on the relevance of joint development in the South China Sea. 18 Another Southeast Asian perspective was reflected in a paper published by two Philippine scholars as they argued that “interest in the concept of joint development stems not only from its relevance to the large number of bilateral maritime boundary disputes in the region, but also from its possible usefulness in the seemingly intractable multiple claim area of the Spratlys.” 19 160


Other proposals relevant to joint development are those concerning possible resolution to Spratly Islands issue. The typical proposal is put forward by a number of American scholars in a book titled “Sharing the Resources of the South China Sea.” 20 They advocated that “[c]reating a regional multinational resource agency to govern at least part of the Spratly area appears to be the best solution to the present stalemate.” 21 After discussing existing models of multinational cooperation and having provided five scenarios for the allocation option regarding the South China Sea and its resources, the authors proposed to establish a “Spratly Management Authority” in which three allocation options regarding the shares for each claimant are provided: China and Taiwan: 52, 37 or 32 percent; Vietnam: 28, 20 or 32 percent; Philippines: 11, 28 or 32 percent; Malaysia: 8, 14 or 4 percent; and Brunei: 1 percent or nothing. 22 The Authority has several organs: the Council consisting of the claimants, regional non-claimants and global maritime powers; below the Council, relevant chambers, secretariat, technical committees and a fiscal committee. 23 The intention of such a proposal is very obvious: to internationalize the South China Sea issue. While it is constructive for the resolution of the Spratly dispute, it may not be acceptable to relevant claimants or other ASEAN members. On the other hand, this proposal is general and not very meaningful in the discussion of joint development in the South China Sea. SEEKING A NEW MODEL The complicated situation in the South China Sea indicates that joint development may be the only feasible means for regional cooperation for offshore oil and gas development. 24 Though difficulties in realizing joint development in the South China Sea exist, and though it will take a long time to reach such an agreement among the interested countries, there are some positive signs that favor a possible joint development in the disputed areas there. The first significant development regarding the South China Sea is the pledge by China and all ASEAN member States of the Declaration on the Conduct of Parties in the South China Sea (December 2002) to explore or undertake cooperative activities in the South China Sea as follows: 1. Marine environmental protection; 2. Marine scientific research; 161

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3. Safety of navigation and communication at sea; 4. Search and rescue operation; and 5. Combating transnational crime, including but not limited to trafficking in illicit drugs, piracy and armed robbery, and illegal traffic in arms, pending a comprehensive and durable settlement of the disputes in the South China Sea. 25 The modalities, scopes and locations with respect to bilateral and multilateral cooperation should be agreed upon by the parties concerned prior to their actual implementation. 26 They should promise to resolve their territorial and jurisdictional disputes by peaceful means, without resorting to threats or the use of force. It is worth mentioning that the informal workshop on Managing Potential Conflict in the South China Sea, sponsored by Canada and Indonesia and involving all claimants, had discussed the need for joint development or joint cooperation in the disputed area since 1990. At its second meeting in Bandung in 1991, the workshop stated that “in areas where conflicting territorial claims exist, the claimant states may consider the possibility of undertaking cooperation for mutual benefit, including…joint development.” 27 The Technical Working Group on Resources Assessment and Ways of Development established within the workshop found the need “to define clearly the area that could be subjected to joint effort in the multiple claims area around the Spratly Islands groups, without prejudice to the various territorial or jurisdictional claims in the area,” and “to collect and analyze as much as possible the various concepts of joint development that are already existing, particularly in the region, and to use them, as far as practicable, as models for developing joint efforts regarding the multiple claims area.” 28 In June 1998, a meeting on non-living resources was convened in Vientianne, where various models of joint development and possibilities were discussed. They included the Malaysia-Thailand and Malaysia-Vietnam agreements, the Indonesia-Australia agreement, the China-Japan fisheries agreement in the East China Sea, the Argentine-United Kingdom agreement in the southwest Atlantic, and the Antarctic Treaty. 29 Those models indicate that once an agreement is reached on point, it will take a lot of time and effort to conclude the joint development arrangement. 30 The Vientianne meeting also observed that the concept of joint development should not be limited to the development of non-living resources. There were attempts from 1993-1994 to determine an “area of a 162


zone” for joint development. After several consultations, some claimants were happy with the suggestion, some had reservations but were willing to discuss it, and some rejected it immediately. 31 After all of these constructive discussions, it appears possible that the “area” could start with a relatively small area involving not so many parties,32 based on a non-official arrangement, including private commercial companies. Joint cooperation in less controversial matters, such as marine scientific research, marine environmental protection and ecotourism, can lead to joint resources exploration and exploitation. 33 However, through the discussions at the workshop it is clear that some difficulties exist in joint cooperation and development, such as the difficulty in clearly defining the disputed area since it is difficult to know precisely which areas are being claimed by certain countries, and the difficulty in interpreting the concept of joint development. Claimants often feel that joint development should not be attempted in an area that a claimant believes to be his own, and that the concept should only be used in an area claimed by others or for an area outside of the claimant’s claims. 34 Despite difficulties, the discussions in the workshop have provided some basis for further discussions among the interested parties regarding a possible joint development arrangement in the South China Sea. Second, China’s position on joint development is very favorable. Encouraged or triggered by relevant developments in East Asia, China has also put forward the idea of joint development in the disputed sea areas. As early as the 1980s, Deng Xiaoping, the former paramount Chinese leader, made the famous statement regarding China’s policy toward disputed areas in China’s adjacent seas by joint development. Deng regarded joint development as one of the two most important peaceful means for international dispute resolution. 35 Since then, China has been pushing very actively to realize the goal of joint development and has reiterated its proposal on many occasions. In 1990, during his visit to Malaysia, Li Peng, former Chinese Prime Minister, expressly put forward the joint development proposal as “shelving the disputes and developing jointly” (gezhi zhengyi, gongtong kaifa). 36 Since that time the Chinese government has reiterated this proposal on many occasions when the Spratly issue was raised; this position has remained unchanged up to date. For example, when Wu Bangguo, Chairman of the National People’s Congress, visited the Philippines in August 2003, he proposed to his Philippine counterpart that the two nations jointly develop petroleum in the South China Sea. 37 163

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China’s efforts proved not to be a waste in the end. On November 11, 2003, the CNOOC and the Philippine National Oil Company agreed to jointly explore oil and gas in the South China Sea through a letter of intent between the two sides. A joint committee will be set up to help select exploring areas in the South China Sea. They also agreed to a program to “review, assess and evaluate relevant geographical, geophysical and other technical data available to determine the oil and gas potential in the area.” 38 The Philippine side said the joint exploration will be conducted in the Northwest Palawan offshore area, “not even close enough to the Spratlys.” 39 While there is an initial agreement between the two countries, there is still a chance that such an agreement might not be executed in practice or will fail in the end. China and Russia signed an agreement to build an oil pipeline from Angarsk in East Siberia to Daqing in Northeast China, but the Russian side may change its original position by canceling this project. 40 It remains to be seen whether the agreement between China and the Philippines will encounter the same potential fate as the Angarsk-Daqing proposed project. Third, in addition to the joint development arrangements addressed above, East Asian countries also have concluded bilateral agreements concerning maritime boundary delimitation and fishery management, which can provide some basis for possible joint development arrangements. China, for example, has concluded three fishery agreements, one with Japan in 1997, another with South Korea in 2000, another with Vietnam in 2000, and a maritime boundary agreement with Vietnam in 2000. All three fisheries agreements have established joint fishery management zones in the Yellow Sea with South Korea, the East China Sea with Japan and the Gulf of Tonkin with Vietnam. 41 The cooperative experiences accumulated from fishery resource management will no doubt enhance joint cooperation in the management of non-living resources. The initial step for the joint development arrangement between Australia and Indonesia in the Timor Sea was the conclusion of the MOU for provisional fisheries surveillance and enforcement in October 1981. 42 In this sense, bilateral fisheries arrangements can become the basis for further bilateral agreement between countries concerned with joint development arrangements. More significant are agreements concerning maritime boundary delimitation, since joint development is usually invoked in state practice as a provisional measure pending the settlement of boundary delimitation. 164


In this sense, the 2000 Agreement on the Maritime Boundary Delimitation in the Gulf of Tonkin between China and Vietnam is notable. In addition to the permanent settlement of the maritime boundary issue in the Gulf of Tonkin, it reflects the idea of joint development of mineral resources in the gulf: In case any single geophysical structure of oil and gas or other mineral deposits straddles the demarcation line as provided in Article 2 of this Agreement, the Parties shall, through friendly consultation, reach an agreement on develop [sic] the structure or deposit in the most effective way as well as on equal sharing of the profits resulting from the development. 43 It indicates that although there is currently no imminent prospect for the two sides to carry on with any type of joint development of petroleum resources in the Gulf, there is a possibility they will cooperate in the future through the boundary agreement. The early Sino-Vietnamese boundary negotiations in the 1970s, initiated by Vietnam, were actually triggered by the prospect of oil and gas in the Gulf when Vietnam intended to grant the exploration right for some sedimentary blocks in the Gulf to an Italian oil company. In the 1980s Vietnam proposed that the two countries undertake a joint development program in the Gulf of Tonkin. 44 With the July 1, 2004, entry into force of the Agreement, a joint development arrangement for non-living resources in the Gulf of Tonkin can be made at any time if the two sides consider such a need based on the above provision. There are also further concerns and considerations relating to the joint development idea. China’s behavior sometimes worries Southeast Asian countries. Whether or not the smaller claimant countries “will have the confidence to negotiate a settlement of the disputes, enter into provisional cooperative arrangements, or feel the need instead to beef up their defense capabilities and unilaterally strengthen their respective positions, depends in large part on what they see as China’s policy and posture towards the issue.” 45 In fact, China’s previous insistence in bilateral talks on the Spratlys issue has prevented seeking any possible joint development on a multilateral basis. However, China’s recent change of posture from sticking to bilateral talks to accommodating the whole ASEAN region has paved the way for reaching a joint development arrangement in the future. With some reluctance, China has realized that regionalization of the 165

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Spratlys issue is inevitable and may help break the deadlock in the resolution of the disputes. Another concern is that joint development is used mainly as an interim measure pending the settlement of territorial and/or maritime disputes. Joint development can help stabilize the status quo of the disputed area, and may finally lead to a permanent dispute resolution. Unless such a resolution materializes, the disputes will continue to exist. It may, on the other hand, affect from time to time the effective implementation of any joint development arrangement. It should also be noted that all claimant States surrounding the South China Sea are developing countries with rapid economic growth, which will be accompanied by an increasing demand for energy. It is estimated that oil demand for Asian nations will increase from about 14.5 million barrels per day in 2000 to nearly 29.8 million barrels per day by 2025. 46 The demand for energy and increased energy consumption will definitely make claimants more actively involved in oil and gas exploration and exploitation in the South China Sea. This may cause more conflicts among the claimants if any of them conduct unilateral petroleum activities in the disputed maritime area; but it could create a window of opportunity for joint development when the claimants have realized that the unilateral act is a costly, disturbing and unfeasible option. It is also clear that problems occur with joint development between two States in the areas with multiple claims. This was the case when Japan and South Korea signed the joint development agreement for the East China Sea, resulting in furious protests from China. The recent move between China and the Philippines regarding the possible joint development in the South China Sea was met with protests from Vietnam and possibly others. For that reason, joint development in the South China Sea launched by only two claimant countries is not a wise option. On the other hand, joint development proposals at the bilateral level may not always be welcome by relevant claimants. China once proposed to have a joint development with Vietnam for the Vanguard Bank, where part of the area was a concession given to Crestone by China, but Vietnam rejected China’s proposal on the grounds that the area is close to Vietnamese coastlines and within the limits of its continental shelf. A new model for potential joint development in the South China Sea can thus be designed, being comprised of China, including Taiwan, as one party, and ASEAN, including all ten member States, as the other party. This model is based on the existing formula of the Declaration on the 166


Conduct of the Parties in the South China Sea, which has been signed by China and ASEAN members. If this can stand, then bilateral cooperation with multiple parties can be formulated between China and ASEAN in the South China Sea. Some scholars, however, have already expressed concerns about whether the interests and rights of China, including Taiwan, can be guaranteed in the future joint development scheme, as Hurng-yu Chen, a Taiwanese scholar, warned: “[w]hat Chinese should remember before they enter into any joint development agreement is that Taipei and Peking occupy far fewer islands then either Vietnam or the Philippines, and joint development with these countries might well prejudice Chinese rights and interests.” However, with a cooperative framework between China and ASEAN, the interests of all parties concerned may well be assured. The bilateral scheme of joint development is foreseeable and supported by a number of favorable factors. On the Chinese side, both mainland China and Taiwan have on most occasions taken similar political and legal positions on the South China Sea issue based on the same historical evidence and reasons and have never launched a challenge against each other regarding the territorial sovereignty over the South China Sea islands. The presence of mainland China (PRC) in the Spratly Islands is largely due to Taiwan (ROC) having occupied Taiping, the largest island within the Spratlys. On the other hand, cooperation has already begun between the two sides across the Taiwan Strait regarding the petroleum exploration and exploitation. As early as July 1996 the Taiwan Chinese Petroleum Corporation and the mainland China Offshore Oil Corporation signed an agreement on exploration in the Tainan Basin and Zhaoshan sunken area, which was finally approved by both sides in April 1998. 47 As for the utilization of the mineral resources in the South China Sea, the two sides across the Taiwan Strait can have cooperation and consultation based on their previous joint development experiences in the Taiwan Strait as well as in the sea areas around the Pratas Islands. On the ASEAN side, a concerted and unified policy toward the South China Sea has been in place since 1992, when ASEAN member States issued the Declaration on the South China Sea, which expressed their resolve to explore the possibility of cooperation in the South China Sea and to establish a code of international conduct there. 48 In 1995, the ASEAN foreign ministers reiterated the letter and spirit of the 1992 Declaration. 49 ASEAN as a whole signed the 2002 Declaration with China. Following this trend, joint development such as that between China and 167

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ASEAN could be one of the feasible options for the South China Sea claimants to seriously consider. Even if there is a chance of joint development in the South China Sea, difficulties still remain. The creation of such a mechanism and means of reflecting the representation of each claimant in joint management authority remain problems at the technical level. South China Sea literature has posed questions such as whether the authority includes an equal number of representatives from each claimant State, or whether the allocation of rights and profits should be based on the number of islands each nation occupies, or whether they should be divided equally. It is pointed out that the “process of identifying the common interests of the claimant states is an essential prerequisite to the consideration of JDZ (joint development zone) proposals.” CONCLUSION It is predicted that some form of joint development can be arranged for the disputed area in the South China Sea, provided that all interested parties have such an intention and good will so that they can exert necessary efforts in reaching the agreement. The existing state practices in East Asia concerning joint development, in particular the tripartite practice in the Gulf of Thailand, show that joint development is not totally alien in East Asia. While there are a number of difficulties and issues to be resolved, the window of opportunity remains. Based on the recently signed Declaration between China and ASEAN countries, the window is now even wider. Once a form of joint development has been reached among concerned countries, long-term peace and security in the South China Sea can definitely be guaranteed, which may lead to a final settlement of the territorial and maritime disputes in the area.

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Notes 1

See Zhao Huanting et al, Geomorphology and Environment of the South China Coast and the South China Sea Islands (Beijing: Science Press, 1999) (in Chinese), at 484. 2 For details of this line and its legal implications, see Zou Keyuan, “The Chinese Traditional Maritime Boundary Line in the South China Sea and Its Legal Consequences for the Resolution of the Dispute over the Spratly Islands,” International Journal of Marine and Coastal Law, Vol.14 (1), 1999: 27-55. 3 See “South China Sea Region,” Country Analysis Briefs, September 2003, at (accessed October 4, 2004). 4 Ibid. 5 Masahiro Miyoshi, “The Joint Development of Offshore Oil and Gas in Relation to Maritime Boundary Delimitation,” Maritime Briefing, Vol.2 (5), 1999, at 5. 6 The talks were held October 25, 2004, without result. See “FM: talks with Japan on sea border advance,” China Daily, October 26, 2004. 7 British Institute of International and Comparative Law, Joint Development of Offshore Oil and Gas: A Model Agreement for States for Joint Development with Explanatory Commentary (London: British Institute of International and Comparative Law, 1989), at 45. 8 North Sea Continental Shelf Cases, Judgement of February 20, 1969, ICJ Report, 1969, at 3. 9 See Ibrahim F.I. Shihata & William T. Onorato, “Joint Development of International Petroleum Resources in Undefined and Disputed Areas,” in G.H. Blake, M.A. Pratt & C.H. Schofield (eds.), Boundaries and Energy: Problems and Prospects (London: Kluwer Law International, 1998), 436-437. 10 Masahiro Miyoshi, “Is Joint Development Possible in the South China Sea?” in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman (eds.), Sustainable Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21 (Honolulu: the Law of the Sea Institute, University of Hawaii, 1997), 613-614. 11 For details of some existing cases, see Miyoshi (1999), supra note 5, 7-41. 12 For details, see Shihata & Onorato, supra note 9, 438-441. 13 See British Institute of International and Comparative Law, supra note 7, at 160. 14 The two conference proceedings were later published in Energy, Vol.6 (11), 1981 and Vol.10 (3/4), 1985 as special issues. 15 Miyoshi (1997), supra note 10, 610-624. 16 For the concept of common heritage of mankind, see Zou Keyuan, “The Common Heritage of Mankind and the Antarctic Treaty System,” Netherlands International Law Review, Vol.38 (2), 1991, 173-198. 17 Robert W. Smith, “Joint (Development) Zones: A Review of Past Practice and Thoughts on the Future,” in Mochtar Kusuma-Atmadja, Thomas A. Mensah and Bernard H. Oxman (eds.), supra note 10, at 661. 18 Hasjim Djalal, “The Relevance of the Concept of Joint Development to Maritime Disputes in the South China Sea,” Indonesian Quarterly, Vol.27 (3), 1999, 178-186.

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Aileen S.P. Baviera and Jay L. Batongbacal, “When Will Conditions Be Ripe? Prospects for Joint Development in the South China Sea,” Chronicle, Vol.4 (1-2), 1999, at (accessed November 1, 2004). 20 Mark J. Valencia, Jon M. Van Dyke and Noel A. Ludwig, Sharing the Resources of the South China Sea (The Hague: Martinus Nijhoff Publishers, 1997). 21 Valencia, Van Dyke and Ludwig, ibid., at 1. 22 See Valencia, Van Dyke and Ludwig, ibid., 211, 220-221. 23 Valencia, Van Dyke and Ludwig, ibid., at 207. 24 In a document released in 2002 by the Philippines military, the Philippines realized that it could develop oil deposits in the Kalayaan Island group because “no sensible foreign investor would come in because the government cannot guarantee a climate of security to underwrite their investments.” See “China accused over disputed Spratly Islands,” Energy Compass, July 18, 2002, at (accessed February 24, 2004). 25 Text of the Declaration on the Conduct of Parties in the South China Sea is available at (accessed July 2, 2003). 26 Ibid. 27 Hasjim Djalal, supra note 19, 1999, 180-181. 28 Cited in Djalal, ibid., at 182. 29 Djalal, ibid., at 183. 30 Djalal, ibid., at 183. 31 Djalal, ibid., at 185. 32 Participants in the joint development plan should be those which are directly interested parties and which are maintaining presence in the area. Djalal, ibid., at 185. 33 See Djalal, ibid., at 185. 34 See Djalal, ibid., at 186. 35 The other is “one country, two systems.” See Selected Works of Deng Xiaoping, Vol.3, at 87. 36 See People’s Daily (in Chinese), December 14, 1990. 37 “Wu Bangguo proposes a multiple cooperation for oil in the Spratly Islands,” Lianhe Zaobao, September 1, 2003. 38 “Chinese, Philippine firms join forces to look for oil in South China Sea,” Agence France Presse, November 13, 2003. 39 “RP-China oil exploration,” BusinessWorld, Manila, November 12, 2003. 40 See Xie Ye, “Crude-oil quandary causes concern,” China Daily, February 24, 2004. 41 For relevant details, see Zou Keyuan, “Sino-Vietnamese Fishery Agreement for the Gulf of Tonkin,” International Journal of Marine and Coastal Law, Vol.17 (1), 2002, 127-148; and “Sino-Japanese Joint Fishery Management in the East China Sea,” Marine Policy, Vol.27 (2), 2003, 125-142. 42 Text is reprinted in Jonathan I. Charney and Lewis M. Alexander (eds.), International Maritime Boundaries (Dordrecht: Martinus Nijhoff Publishers, 1993), Vol.1, 1238-1239. 43 Article 7 of the 2000 Boundary Agreement. An unofficial English version of this Agreement is attached to Zou Keyuan, “Sino-Vietnamese Agreement on the Maritime 170

A New Model of Joint Development for the South China Sea Boundary Delimitation in the Gulf of Tonkin,” Ocean Development and International Law, Vol.36, 2005, 22-24. 44 See Epsey Cooke Farrell, The Socialist Republic of Vietnam and the Law of the Sea: An Analysis of Vietnamese Behaviour within the Emerging International Oceans Regime (The Hague: Martinus Nijhoff, 1998), 251. 45 Aileen S.P. Baviera and Jay L. Batongbacal, “When Will Conditions Be Ripe? Prospects for Joint Development in the South China Sea,” Chronicle, Vol. 4 (1-2), 1999, at (accessed November 1, 2004). 46 See “South China Sea Region,” Country Analysis Briefs, September 2003, at (accessed October 4, 2004). 47 See People's Daily (in Chinese), June 1, 1998. 48 “ASEAN Declaration on the South China Sea,” Manila, Philippines, July 22, 1992, at (accessed October 27, 2004). 49 “Recent Developments in the South China Sea,” March 18, 1995, at (accessed October 27, 2004).

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Marine Environmental Protection in the South China Sea: An UNCLOS Paradigm Alberto A. Encomienda *

INTRODUCTION My specific topic under this panel is about “Oil and Gas Developments and Environmental Protection in the South China Sea.” However, I would like to focus on wider concerns relating to the marine environment in the South China Sea that would in fact subsume the foregoing subject. “Oil and Gas Developments,” after all, is but one of a few serious threats to the marine environment of the South China Sea (SCS), albeit one of increasing concern due to heightened activity in the field. Among the other more serious threats are those arising from ports and shipping activities; from human activities, inasmuch as the South China Sea has heavily populated coastal communities; and from the influence of the Mekong River System. The recommendation of this paper, therefore, is a comprehensive and all-encompassing approach to marine environmental protection in the South China Sea, on a normative basis. The protection of the marine environment is not only desirable, but also cooperation among littoral States is compelled under UNCLOS Part IX in the particular situation of enclosed and semi-enclosed seas. AN “ENCLOSED OR SEMI-ENCLOSED” SOUTH CHINA SEA The South China Sea certainly fits the description of an enclosed or semi-enclosed sea, defined in UNCLOS Article 122 as “a gulf, basin or sea surrounded by two or more States and connected to another sea or the ocean by a narrow outlet or consisting entirely or primarily of the territorial seas and exclusive economic zones of two or more coastal States.” In such a setting, UNCLOS Article 123 imposes upon states bordering enclosed or semi-enclosed seas the obligation to “cooperate with each other in the exercise of their rights and in the performance of their duties under this Convention . . . directly or through an appropriate *

Ambassador; Secretary-General, Maritime and Ocean Affairs Center, Department of Foreign Affairs, Republic of the Philippines. 173

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regional organization.” A clear reading of this obligation is that it is all encompassing in every aspect of rights and duties of states under UNCLOS. Specific examples of areas of cooperation are contained in its Article 123(a) to (d): (a) To coordinate the management, conservation, exploration and exploitation of the living resources of the sea; (b) To coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment; (c) To coordinate their scientific research policies and undertake where appropriate joint programmes of scientific research in the area; and (d) To invite, as appropriate, other interested states or international organizations to cooperate with them in furtherance of the provisions of this article. Examples, (a) to (c) in particular, serve as highlight activities. They impact marine environmental protection (MEP) and in turn emphasize the importance of MEP in an enclosed and semi-enclosed seas setting. Part IX, a seemingly nondescript provision of UNCLOS, is tailormade to address the peculiar and particular maritime concerns, including MEP, of the Asia-Pacific region, in general, and the SCS, in particular. It specifically provides for a holistic MEP scheme for the SCS in that it addresses all concerns in a joint, collaborative and cooperative manner, and engages all stakeholders, whether coastal/regional States, extraregional maritime States, or international organizations. Its Article 123, as previously cited, is wide enough to cover all aspects of the broader definition of maritime safety and security (piracy and terrorism included), and the specific concern of MEP (including threats to the marine environment posed by shipping activities). Significantly, this call for cooperation under Part IX would necessitate burden-sharing if “other interested States” and international organizations are brought into the picture by inviting all of them as participants under paragraph (d) of Article 123. This would obviate any need to invoke UNCLOS Article 43, with its accompanying controversies. Complementing Part IX in this respect are Parts XIII and XIV of UNCLOS, which, if implemented, would also result in “burden sharing” and promote cooperation in capacity-building. Within the aforesaid 174

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cooperative framework, it is expected that even non-governmental organizations (NGOs) of good international repute may be engaged in supporting the cooperating states. HOW THE SCHEME WILL WORK IN THE SCS According to the World Wildlife Fund for Nature (WWF), on a scale of one to five, the marine environment straddling the Southeast Asian subregion rates as a five and among a very few all over the world in this highest category. This sub-region cradles the so-called “coral triangle,” the spawning grounds of many important fish and aquatic species, as well as straddling and highly migratory fish stocks, and encompasses nesting and feeding grounds of endangered sea turtles and other marine mammals. Moreover, the geographic circumstances and geological configuration of the SCS also create MEP and other issues not just between coastal States and maritime States, but also between and among regional States. How, then, can the aforesaid circumstances and special concerns best be addressed by a comprehensive MEP scheme under Part IX of UNCLOS? A proposed implementing vehicle for the above purpose would be the establishment of a seamless, continuous network of sea lanes of communication (SLOCs), complete with hydrographic survey and charting, in the SCS, with a view to establish a similar network in the entire maritime region of Southeast and East Asia shortly thereafter. The geological/geomorphological setting of the SCS and the volume of international and regional commercial shipping traffic in the region compel this establishment. This would be a joint undertaking among regional States, extra-regional powers such as “other interested States,” and international organizations to establish a region-wide network of sea lanes, with accompanying protective measures prescribed by and being implemented under the auspices of the International Maritime Organization (IMO). This region-wide network of sea-lanes must be complemented with a modern, comprehensive, fully-coordinated and integrated Monitoring, Control and Surveillance (MCS) system, especially adapted and designed for region-wide reach and coverage. “Fully coordinated” and “integrated” are largely self-explanatory terms. “Comprehensive” refers to applications that impact safety of navigation, such as the Vessel Monitoring System, Vessel Traffic System, Vessel Traffic Separation and Management, Search and Rescue and Marine Electronic Highway and Charting. In this 175


light, MCS, although generally associated with safety and security of navigation, can be seen as a preventive MEP measure as well. The proposed comprehensive MCS system would address MEP concerns in addition to other maritime safety and security concerns. Such concerns include certain relevant aspects of the implementation of the International Ship and Port Facility Security Code and, in general, the Safety of Life at Sea Convention, the International Maritime Dangerous Goods Code, and an Automatic Identification System for ships. The MEP component of the MCS should also encompass fisheries and ocean resources conservation, and meteorology applications, all of which are equally important to the uniqueness of the marine environment in the SCS and interconnected Exclusive Economic Zones of the seas of Southeast and East Asia. Needless to say, the entire arrangement will make the SCS and the seas of Southeast and East Asia a comprehensively protected marine environment sub-region. Implementation of UNCLOS Part IX can be brought about through either of two modes: 1) a regional conference for the purpose of establishing a maritime regional organization through which Part IX cooperation is carried out; or 2) the bringing together and integrating of all ongoing existing bilateral or multilateral programs within the Southeast Asian sub-region, whether track 1 or 2, into a cohesive/integrated program for the governance of the vast marine environment of the SCS. PARALLEL MEASURES FOR ARCHIPELAGIC PHILIPPINES The IMO defines a Particularly Sensitive Sea Area (PSSA) as “an area which needs special protection through action by the IMO because of its significance for recognized ecological or socio-economic or scientific reasons and which, because of current concerns, may be vulnerable to environmental damage by maritime activities.”1 The declaration of PSSAs within its territorial jurisdiction and in the SCS deserves the full attention of the Philippines. In this regard, the semi-enclosed sea environment of the Philippines must be taken into consideration in order to come up with sound, consistent, complementary and compatible measures for the protection of the environment that can be promoted region-wide. Advanced studies on the matter should be conducted before any recommendation can be made before the IMO. The aforesaid measures will assist in enhancing the country’s ability to regulate international shipping activities, especially in areas that comprise 176


sensitive marine ecosystems. In fact, if these measures were not an IMO prescription, the Philippines, because of its peculiar and highly vulnerable situation attributed to its geographic, geologic, and geomorphological characteristics, would have to invent and implement them. Failing invention, the country could adopt several recommendations being implemented by other states to protect their own PSSAs, which may include some of the following: (a) Closure of certain shipping routes or imposition of speed restrictions; (b) Planning of oil (and other hazardous substances) spill response; (c) Introduction of environmental fees; (d) Prohibition of transfer of cargo from vessel to vessel in or near PSSAs; (e) Control of ballast water discharges; and (f) Prohibition and regulation of naval activities around PSSAs. In early 2004, guided by UNCLOS Part IX, the Philippines started undertaking initiatives related to MEP and marine scientific research (MSR) in a large marine ecoregion. The launching of these initiatives is called the Exercise Luzon Sea (ELS), under the auspices of the Maritime and Ocean Affairs Center of the Department of Foreign Affairs. Phase I of ELS was held March 16-28, 2004, and covered the eastern coast of southern Palawan. Three other regional countries participated: Malaysia, Thailand and Vietnam conforming to Article 123 (d) of Part IX of UNCLOS. Additionally, international organizations, Conservation International (CI) and the WWF participated. ELS II, covering northern Palawan and Mindoro, is scheduled to be conducted in September 2005. A joint bilateral initiative in the implementation of UNCLOS Part IX is the Philippines-Vietnam Joint Oceanographic Marine Scientific Research Expedition in the South China Sea (JOMSRE-SCS). JOMSRESCS was originally conceived as a confidence-building activity between the two countries through cooperation in marine science. It is aimed at increasing understanding of the natural processes of the marine environment and resources of the South China Sea. The first JOMSRESCS was in 1996, with the second in 2000. In 2003, the Philippines and Vietnam, acknowledging the value of JOMSRE-SCS I and II, agreed to institutionalize the activity. This third expedition was focused more on pure marine scientific research under UNCLOS Part IX looking to 177


practical applications in furtherance of MEP and Integrated Coastal Zone Management. In April 2005, the third JOMSRE-SCS was hosted by the Philippines. To further complement the aforesaid initiatives, and inspired by the success of the Philippines-Malaysia jointly managed Turtle Islands Heritage Protected Area, the Philippines plans to propose for the region the establishment of a “maritime cross-border peace park” in the same area and its immediate maritime vicinity. The Philippines looks to JOMSRE-SCS and ELS, which investigated the initial building blocks in a regional effort that shall be melded into future governance activities for the SCS and, possibly in the future, the Asia-Pacific region. From them, the country hopes to proceed to other aspects of ocean management including: MEP; designation of sea lanes of communication with accompanying protective measures under the IMO; hydrographic survey; and, most importantly, a regional monitoring, control and surveillance system (MCS) that is fully integrated and comprehensive and, to take into account contemporary events, would include meteorological forecasting capabilities for events such as typhoons, tsunamis, etc. CONCLUSION While it may be true that UNCLOS could not have anticipated all of the challenges posed by MEP in our modern times, it is submitted that the paradigm in UNCLOS Part IX offers itself and projects the end result of a comprehensive MEP scheme for the SCS that would eventually subsume related initiatives, schemes, programs and projects involving states in the Southeast Asian sub-region. The search for a framework to deal with MEP in the SCS could, possibly, end in its adoption under UNCLOS Part IX principally, and Part XIII and XIV, complementarily.

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Note __________________________ 1 International Maritime Organization. Marine Environment Protection Committee. Guidelines for the Designation of Special Areas and the Identification of Particularly Sensitive Sea Areas. Resolution A.720(17). November 6, 1991.

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PANEL IV: REGIONAL FISHERIES ______________________

Regional Fisheries Panel Introductory Remarks Mary Beth West

Let me begin by taking a few moments to set the stage. First, the East and South China Seas, which we are discussing this morning, have been extremely productive areas for fisheries. Influenced by warm currents, the East China Sea has been classified as a “Class One,” highly productive ecosystem. Numerous economically important species migrate through or are found in these waters, and the area is heavily fished. Likewise, the fertile South China Sea contains a variety of biological subsystems and habitats. In recent years, this sea has provided approximately 10 percent of the global fisheries catch, and is surrounded by seven of the world’s top fishing nations and entities. The resources of both areas are critical not only for export, but also as a source of food protein for peoples in the region. Both areas, however, are facing significant and increasing stress from over-fishing, unnecessary bycatch and discards, and in some cases, destructive fishing practices. Many stocks are depleted or are becoming depleted. Heavy fishing mortality has, in some situations, resulted in a shift from traditional species to faster-growing, smaller and lower-value species. In addition to over-fishing, however, these areas also face natural and anthropogenic changes from increasing water temperatures, pollution from land-based sources, and other factors. These changes have caused concern about reduction in ecological diversity and consequent harm to critical marine organisms and fisheries resources. In fact, in 2001, UNEP announced a 32 million dollar project, funded by the Global Environment Fund, China, Cambodia, Indonesia, Malaysia, Philippines, Thailand and Vietnam, to protect the marine environment of the South China Sea. As we are all aware, fish – whether highly-migratory or not – do not respect jurisdictional boundaries. Thus, conserving and managing those resources – and the ecosystems in which they thrive – requires

State Department Chair on the faculty of the Industrial College of the Armed Forces at the National Defense University in Washington, D.C. The views expressed herein are the views of the author and do not necessarily represent the views of the United States Department of State or the United States Armed Forces. 183

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cooperation among coastal States and entities, and those who are fishing in the area. Articles 63 and 64 of the Law of the Sea Convention explicitly call for such cooperation, either directly or through appropriate subregional or regional organizations. In fact, I want to highlight a recent successful example of international cooperation creating a system to conserve and manage highly-migratory stocks in the Pacific — the Western and Central Pacific Fisheries Convention (WCPFC). The negotiations for this treaty, which took place over approximately a fouryear period, involved a broad array of countries, territories and fishing entities, many with differing interests and objectives. They included coastal States and territories, concerned about control and protection of the resources of their exclusive economic zones, as well as distant water fishers, concerned about exploitation of the resource. The areas of the oceans in which highly-migratory species needed regulation were vast – including waters subject to conflicting jurisdictional claims. In addition, this was one of the first regional fisheries agreements to be negotiated after completion of the UN Fish Stocks Agreement and to put that agreement into practice, we were forced to deal with some new, and sometimes very difficult issues, such as high seas boarding and inspection. Despite these challenges, the Western and Central Pacific Fisheries Convention was completed, signed, and entered into force last year. China and Korea are parties, and others such as Japan, the Philippines and the United States are moving forward on ratification. Some of the authors in this book, including Ambassador Encomienda and Director Liu Zhenmin, were involved in those negotiations and can take pride in their successful result. The WCPFC is an example of what can be done – even in the face of significant obstacles – when the will is there. Achieving and implementing the necessary cooperative arrangements in the East and South China Seas is complicated by a number of factors – the number of coastal players, the number of fishing States and entities, and, perhaps most importantly, competing jurisdictional claims to islands and waters in the region. To the extent that cooperation has been initiated in the past in the region at issue here, it has often been bilateral. Yet, we know that fisheries issues can rarely be addressed most effectively on a bilateral basis alone. First, most fish are found in the waters of more than two coastal States and exploited by fishers from more than two states or entities. Second, it is increasingly clear that effective conservation and management of fisheries must take into account the ecosystems in which they live. We can no 184

Regional Fisheries Panel Introductory Remarks

longer look at fisheries narrowly, focusing only on one fish stock and the commercial fish harvesters of that stock, as in the past. Instead, we must look at the resource more broadly, including the marine ecosystems on which fisheries depend. Most governments agreed at the World Summit on Sustainable Development to apply an ecosystem-based approach to fisheries within 10 years. In addition, the Code of Conduct for Responsible Fisheries, which was adopted a number of years ago, also called for a holistic approach to fisheries research and management that takes account of and incorporates ecosystem considerations into responsible fisheries conservation and management. In fact, the ecosystem approach is not a revolutionary change in the way we currently manage fisheries. Rather, it is evolutionary. Numerous examples of fisheries management already show progress toward an ecosystem-based approach. For example, consider the use of marine protected areas as management tools and the efforts to take into account the effects of environmental variability in stock assessment. In addition, fishery management processes in many places have become more transparent and inclusive of more stakeholders, and the precautionary approach is applied widely. In many ways, we have already begun to apply an ecosystem-based approach, and we simply need to continue to evolve more completely to fulfill the Code of Conduct, and to meet the expectations of society for healthy and sustainable resources and for the maintenance of the ecosystems on which they depend. This clearly calls for something beyond the bilateral – in other words, for wider, regional approaches. The seven-party agreement signed in connection with the UNEP program in the South China Sea is an important step toward broader international cooperation. States and organizations in the region – such as ASEAN – have also been working constructively to promote the framework for regional cooperation. In an area other than fisheries – but a very current and important area – many nations in the Asia-Pacific Region are working together as part of the Regional Maritime Security Initiative (RMSI). This is not a treaty or alliance, but a partnership of nations willing to contribute their resources to enhance maritime security by identifying and intercepting transnational maritime threats under existing international and domestic laws. The WCPFC, which I mentioned earlier, is also an important example of regional cooperation. Regional cooperation in the East and South China Seas will hopefully be continued and strengthened. Numerous other possibilities for 185

Mary Beth West

cooperation in the fisheries area have recently been noted in the literature. These include joint ventures, joint multilateral conservation and management authorities or arrangements, and multi-party agreements to work together, setting aside jurisdictional disputes without prejudice. I am sure other examples exist, as well. The views of two experts view on the challenges in the region, and various methods to address those challenges cooperatively are presented as follows.

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Korean Response to Changes of the International Legal Framework for Fisheries in the Northeast Asian Seas Park Pae Keun

INTRODUCTION Three northeast Asian States; Republic of Korea (Korea), China, and Japan, ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) soon after it entered into force in 1994,1 meaning that they became parties to the LOS Convention. Therefore, with respect to the fisheries in the sea areas around these states, adjustments have been made in their relations in accordance with the LOS Convention. According to the UNCLOS provisions on exclusive economic zones (EEZ), the East China Sea, the Yellow Sea, and the East Sea/Sea of Japan, which are surrounded by the three states, North Korea, and Russia, should be divided into EEZs for each coastal State. This would leave no high seas between the EEZs, as the breadth of these seas are not longer than 400 nautical miles.2 However, as with EEZ issues elsewhere, it is not easy to reach an agreement on the EEZ boundary delimitations between these states, and consequently they have chosen to conclude provisional arrangements to deal with the fisheries problems in these seas.3 The changes to international fisheries order in this region, brought about by UNCLOS and the adoption of bilateral fisheries agreements of the three states, has made it so they cannot exploit fisheries resources in this region as freely as before. Additionally, in return for recognizing exclusive jurisdiction over EEZs, more responsibilities are imposed on them as coastal States with regard to the conservation of living resources. The parties are well aware of these increased restrictions on fisheries and the greater responsibility for the conservation of living stocks, and are taking necessary measures to cope with changes in the fisheries environment in the region. The purpose of this paper is to review, among the three states, how Korea is accepting the challenges emanating from the changed legal framework for fisheries. The Korean government has taken various measures to manage GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG

PhD., professor of International Law at the Law College, Pusan National University, Republic of Korea. 187

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Korean fisheries. Some measures include licensing fisheries, clean-up of fishing grounds, restrictions on fishing periods and mesh size, and temporary closures of fishing areas. However, when Korea was going to conclude a multilateral fisheries agreement with Japan and China, it was pointed out that Korea should reform its marine fisheries structure and also reorganize its fisheries industry to accommodate management of living resources.4 In this light, the two most important measures taken by the Korean government are the reduction in number of fishing vessels and the introduction of the Total Allowable Catch (TAC) system. REDUCTION IN NUMBER OF FISHING VESSELS General Reduction Around the mid-1980s, fishing grounds for Korean fishermen deteriorated seriously and marine resources began to deplete rapidly. Accordingly, the amount of fish caught by marine fisheries began to decrease after it peaked in the early 1990s (table 1). Rising labor costs and oil prices caused many difficulties to fisheries management in Korea. Faced with this situation, the Korean government decided to carry out its plan for the reduction of fishing capacity to enable Maximum Sustainable Yield (MSY) in fisheries. 5 Table 1. Fisheries Production in Korea Year Total Amount Caught (A) Amount Caught by Marine Fisheries (B) Marine Fisheries / Total Ratio (B/A)

1980

1985

1990

1995

2000

2001

2002

2003

2,410

3,103

3,275

3,348

2,514

2,665

2,476

2,487

1,372

1,495

1,542

1,425

1,189

1,252

1,096

1,097

56.9

48.2

47.1

42.6

47.3

47.0

44.3

44.1

Units: metric ton, % Sources: Korean Ministry of Maritime Affairs and Fisheries, 2004 Statistical Yearbook of Maritime Affairs and Fisheries G

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Korean Responses to Changes of the International Legal Framework

The Special Measures for Agriculture and Fishery Development Act Law No. 6223 para. 1 No. 1 (Kor.) provides that, for the sake of fisheries structure reorganization, the Minister of Maritime Affairs and Fisheries has the authority to devise policies and assistance measures adjusting the number of fishing vessels to protect living marine resources and to increase fisheries’ competitiveness. Article 52 of the Fisheries Act Law No. 6656 para. 1 No. 2 (Kor.) also provides that, for the adjustment of fisheries, the number of fisheries vessels can be limited by Presidential Order. On the basis of these provisions, in 1993, the Marine Fisheries Structure Reorganization Plan was made. Under this plan, 13 kinds of marine fisheries vessels and unlicensed vessels, including surrounding net, long bag set net, stow net vessels and bottom trawl vessels, were chosen as the objects of reduction. These were the kinds of fisheries that were thought to deplete living resources and expected to experience hardship when the marine products market opened to the foreign fisheries industries. For the reduced vessels, 100 percent compensation for the vessels’ residual value was given from national funds. Fishermen who abandoned fisheries as their businesses were compensated 50 percent of three years’ average revenues from national funds. The continuously changing fisheries environment and necessity of international regulations reduction (to be explained below) compelled the general reduction plan to be revised three times. Originally, it was planned that from 1994 to 2001, 6,673 fishing vessels (104,000 in tonnage) should be reduced, using approximately $203 million6 from the budget. However, due to the poor results, it was decided in 1995 that this plan should be extended to 2004, and the number of vessels to be eliminated changed to 7,133 (130,000 in tonnage), using $286 million. This plan was changed one more time in 1996. Finally, through the culmination of three revisions to the plan, the target of vessel elimination curtailed sharply from 6,673 vessels to 2,990, though the budget for ship owners taking compensation swelled from $203 to $820 million. The assumption is that the original plan and its first revision were made on unrealistic assumptions.

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Table 2. General Reduction Plan Division

Coastal Fisheries

Vessels Tonnage Budget (in millions)

Off-shore Fisheries


Unlicensed Vessels


Total


Original plan Aug. 1993 1,159 6,495

1st revised plan Dec. 1995

2nd revised plan May 1996

3rd revised plan Jan. 2001

1,159 6,459

1,159 6,520

712 -

$49

$49.1

$88.2

$65.9

1,514 77,327

1,674 110,730

1,876 108,519

2,278 -

$118

$197.8

$346.7

$754.5

4,000 20,000

4,300 21,500

4,300 21,500

-

$36.3

$39.1

$39.1

-

6,673 103,822

7,133 129,725

7,335 136,519

2,990 -

$203.3

$286

$474

$820.4

Source: Korean Ministry of Maritime Affairs and Fisheries, Maritime and Fisheries White Book 1996-2001, 477, (2002). Budgets are approximately converted (at the rate of one dollar to 1100 won) from won to U.S. dollar. International Regulation Reduction In addition to the general reduction explained above, in 1999, the Korean government prepared another track for the reduction in number of fishing vessels to accommodate its fishing capacity with respect to the narrowing of fishing grounds that was, and would be, brought into force by the multilateral fisheries agreements with Japan and China. This special track of reduction has been called “international regulation reduction,” as it was made inevitable by the conclusion of international fisheries agreements between Korea and neighboring States. In 1999, the Korean government enacted the Special Act for the Assistance of Fishermen and the Like in Accordance with the Conclusion of Fisheries Agreements and for the Fishery Development Law No. 7207. Basically, this law is to be applied to the fishermen whose fisheries activities were restricted by agreements concluded by Korea with another state or states. G

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See id Art. 1. However, it is provided that this law is specially applied to the fishermen whose fisheries activities were restricted by fisheries agreements between Korea and Japan or between Korea and China. Id at Art. 3. On the basis of the law, the Korean government was to buy fishing vessels and fishing gear from the fishermen who decided to quit fisheries, Id. at Art. 4, para. 1 No. 1, and dispose of them Art. 27. In addition, about 90 percent of the three years average revenues, as aforementioned, are to be paid from national funds. Id at Art. 4, para. 1 No. 1. The international regulation reduction that continued from 1999 to 2002, is now finished. The plan of reduction is summarized in Table 3. Table 3. International Regulation Reduction Plan Year(s)

1999-2000

2001

2002

Vessels Budget (in millions)

685

547

164

320

215

83

Source: Korean Ministry of Maritime Affairs and Fisheries, Comprehensive Countermeasures for the Structural Reorganization of Coastal and Off-shore Fisheries 26 (2002). Budgets are approximately converted (at the rate of one dollar to 1100 won) from won to U.S. dollar. Compared to the general reduction, the planned international regulation reduction is a far more concentrated one. Though the planned numbers of reduction are almost the same between general reduction and international regulation reduction, the budget allotted for the latter exceeds that of the former by approximately three times. The specific results of these two tracks of reduction are not available. The available data regarding concrete results of the reductions are shown in Table 4.

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Table 4. Reduction Results Kinds of Fisheries

Reduction Plan

Result

Accomplish ment Ratio (result/plan)

1994-2004

1994-2001

2002

2003

Total

Coastal

712

502

43

36

581

81.6

Offshore Total

2,278

1,661

299

62

2,022

88.8

2,990 2,163 342 98 2,603 87.1 Units: vessels, % Sources: Korean Ministry of Maritime Affairs and Fisheries, Maritime and Fisheries White Book 1996-2001, 477 (2002), and Martime and Fisheries White Book 2002-2003, 423 (2004). The result of the year 2003 was confirmed through the phone call to the Ministry of Maritime Affairs and Fisheries. The figures in Table 4 show that the planned reduction has not been fully accomplished, in spite of the drastic cut in aimed reduction. They also show that, mainly, the vessels reduced were for off-shore fisheries. The transition of the fishing fleet in Korea is shown in Tables 5 and 6.

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Table 5. Transition of Fishing Fleet – Total Year

1980 1985 1990 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

Power Vessels Gross Number Tonnage 51,113 740,266 71,836 836,633 79,365 954,977 70,082 930,076 71,041 951,213 69,206 965,276 73,780 958,155 82,803 971,704 87,502 986,339 89,294 917,963 89,347 880,467 89,327 812,629 88,521 750,763

Non-Power Vessels Gross Number Tonnage 26,461 30,422 19,134 21,838 20,293 21,754 7,309 10,246 5,760 7,386 6,038 6,532 7,220 6,316 8,194 6,630 7,350 5,617 6,596 5,136 5,588 4,386 5,061 3,935 4,736 3,676

Total Gross Number Tonnage 77,574 770,688 90,979 858,471 99,658 976,731 77,391 940,332 76,801 958,599 75,244 971,808 81,000 964,471 90,997 978,334 94,852 991,956 95,890 923,099 94,935 884,853 94,388 816,563 93,257 754,440

Sources: Korean Ministry of Maritime Affairs and Fisheries, Statistical Yearbook of Maritime Affairs and Fisheries, (1980 – 2003 eds.) G

Table 6. Transition of Fishing Fleet—Off-shore Fisheries Year 1980 1985 1990 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003

Power Vessels Gross Number Tonnage 7,596 290,214 6,955 329,128 6,939 330,994 6,536 329,098 6,563 323,391 6,292 319,369 6,344 315,228 6,164 302,323 5,935 291,600 5,287 247,275 5,014 231,909 4,541 204,200 4,166 185,773

Non-Power Vessels Gross Number Tonnage 38 280 111 1,911 18 107 5 34 4 16 1 1 1 1 1 1 2 7 0 0 0 0 0 0 0 0

Sources: Id. G G

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Total Gross Number Tonnage 7,634 290,464 7,066 331,038 6,957 331,101 6,541 329,211 6,567 323,407 6,293 319,370 6,345 315,229 6,165 302,324 5,937 291,607 5,287 247,275 5,014 231,909 4,541 204,200 4,166 185,773

Park Pae Keun G

The figures in Table 5 and Table 6 show that although the number of non-power vessels has decreased substantially during the planned years of reduction, the number of power vessels shows little change since 1999, concurrently the tonnage of the vessels has shrunk only slightly. Specifically, Table 6 tells us that the number of power vessels engaging in off-shore fisheries tend to be diminishing continuously in both number and size. At the same time, it can be inferred from Table 6 that the majority of Korean fishing vessels are being engaged by coastal fisheries. Generally speaking, the effects of the reduction of fishing vessels in preserving living resources cannot be estimated with precision due to so many variables. Nevertheless, it is estimated that the reduction in number of fishing vessels by the Korean government did not yield the expected effect of restoring living resources. The reasons for this undesirable result are as follows: x

x x

Even though a fishing vessel is eliminated, when the license for a fishery is not terminated, the license enters into an idle state and after some years revives again and increases fisheries efforts; The fish stocks not caught by eliminated vessels are still cropped by other types of fishery vessels; and Vessels engaging in illegal fisheries are excluded from the object of reduction and are still at work depleting marine resources.7

At present, another program to reduce the number of fishery vessels is being implemented in Korea. On a budgetary basis of $492 million, 6,300 coastal fishery vessels are to be eliminated from 2004 to 2008.8 In the first year of the program (2004), 653 coastal fishery vessels and 72 off-shore fishery vessels were eliminated.9 TOTAL ALLOWABLE CATCH SYSTEM Decision and Allotment of TAC Introduction of the Total Allowable Catch (TAC) system is another most conspicuous feature of fisheries policies taken by the Korean government under the influence of UNCLOS and bilateral/multilateral G

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fisheries agreements. In order to implement Article 61 and other relevant provisions of UNCLOS, and to preserve living resources within its EEZ, Korea decided to adopt a TAC system. Article 54-2 of the Fisheries Act Law No. 6656 para. 1 provides that the Minister of Maritime Affairs and Fisheries, the mayors, or the governors of provinces have the authority to decide the TAC when they recognize the necessity to do so in order to preserve and manage marine living resources. It is also provided that, in deciding the TAC, the primary concern should be the state of object species as a resource. Id at para. 2. Upon the legal basis of the Fisheries Act, the TAC Deliberation Committee sets up the tentative TAC and the plan for the management of the TAC. The tentative TAC and plan for management are then transferred to the Central Marine Products Adjustment Committee, a deliberating and advisory organization for the Minister of Maritime Affairs and Fisheries. This Committee then finally decides the TAC. In the process of deliberation and decision of the TAC by the two committees, the National Fisheries Research and Development Institute provides scientific assessment of the resources that are the objects of TAC. Once the TAC is decided, 70 percent of it is allotted to the metropolitan cities and provinces, and the mayors and governors of these cities and provinces again allot the TAC to individual fishermen. The reserved 30 percent of the TAC is allotted to individual fishermen when they have exhausted more than 80 percent of the originally allotted TAC. Content of TAC Implemented The TAC system was implemented on a trial basis in 1999, and after two years, it was implemented in its entirety. Tables 7 and 810 show the contents of the TAC during the trial period. Table 7. TAC, 1999 Fishing Type Large Purse Seine Off-shore Trap

Species

TAC

Catch

% Taken

Common Mackerel Pacific Sardine Jack Mackerel Red Snow Crab

133,000 13,800 22,660 39,000

152,640 6,499 9,533 25,249

115 47 42 65

Unit: metric ton G

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Table 8. TAC, 2000 Fishing Type Large Purse Seine Offshore Trap

Species

ABC

Common Mackerel Pacific Sardine Jack Mackerel Red Snow Crab

132,000197,000 3,5009,200 17,00034,000 15,00034,000

TAC

Catch

% Taken

2000/1999

170,000

83,629

49

54.8

13,800

9,376

68

144.3

22,600

661

3

6.9

39,000

20,362*

52

80.6*

Catch:

Units: metric ton, % *According to the Basic and Annual Implementation Plan of TAC published after 2002 by the Korean Ministry of Maritime Affairs and Fisheries, the amount of Red Snow Crab caught in 2000 is recorded as 30,362 tons. This figure seems to be erroneous as 52 percent of 39,000 tons is 20,362. The ratio of 2000 catch to 1999 catch of Red Snow Crab also is corrected by this author from 120.3 percent to 80.6 percent. Since the year 2000, statistics of TAC have included Accepted Biological Catch (ABC). Table 8 shows that estimations of ABC have aG wide range and are not precise. The TACs of Pacific Sardine and Red Snow Crab were decided to exceed the ABC. When the TAC system began to be fully implemented in 2001, three species — the Purple Washington Clam, Pen Shell and Spiny Top Shell — were added to the object species of TAC.

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Table 9. TAC, 2001 Fishing Type

Species

ABC

Large Purse Seine

Common Mackerel Pacific Sardine Jack Mackerel

132,000197,000 3,5009,200 17,00034,000

Red Snow Crab

Offshore Trap

Diving

Village Fishery

TAC

Catch

% Taken

2001/2000

165,000

156,081

94.6

186.6

10,600

9,335

90.26

99.6

19,000

125

0.66

18.9

15,00034,000

28,000

19,319

69.0

63.6

Purple Washington Clam

-

9,500

6,051

63.7

-

Pen Shell

15,00018,000

4,500

1,499

32.9

-

Spiny Top Shell

1,700

2,150

1,938

90.2

-

Catch:

Units: metric ton, % In 2002 and 2003, snow crab and blue crab were added as new species of TAC respectively.

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Species

ABC

TAC

Catch

% Taken

2002/2001

Common Mackerel

157,000188,000

160,000

126,502

79.1

81.0

Pacific Sardine

9,00020,000

10,600

10,593

99.9

113.5

Jack Mackerel

17,00021,000

17,000

0

0

0

Off-shore Trap

Red Snow Crab

13,00025,000

28,000

17,996

64.3

93.2

Off-shore Trap and Gill Net

Snow Crab

1,0001,300

1,220

947

77.6

-


7,0009,000

9,000

5,319

59.1

87.9

Pen Shell

3,7005,500

2,500

1,426

57.0

96.4

Spiny Top Shell

1,9002,000

2,058

1,965

95.5

101.4

Large Purse Seine

Catch:

Diving

Village Fishery

Units: metric ton, %

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Species

ABC

TAC

Catch

% Taken

2003/2002

Common Mackerel

125,000158,000

158,000

116,226

73.6

91.9

Pacific Sardine

7,00010,500

11,000

10,979

99.8

103.6

Jack Mackerel

-

13,000

2

0

-

Off-shore Trap

Red Snow Crab

16,50022,000

22,000

20,328

92.4

113.0

Off-shore Trap and Gill Net

Snow Crab

800-1,000

1,000

611

66.1

64.5


9,460

9,000

4,677

52.0

87.9

Pen Shell

3,5005,000

2,500

1,635

65.4

114.7

Village Fishery

Spiny Top Shell

1,6302,170

2,150

1,951

90.7

99.3

Coast Trap, Off-shore Trap and Gill Net

Blue Crab

13,800

13,000

4,889

37.6

-

Large Purse Seine

Diving

Units: metric ton, %

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Table 12. TAC 2004 Fishing Type

Species

Off-shore Trap Off-shore Trap and Gill Net Diving Village Fishery Coast Trap, Off-shore Trap and Gill Net

TAC

Pacific Sardine Jack Mackerel Red Snow Crab

120,000155,000 6,800-10,200 14,000-21,000

Snow Crab

800-1,000

1,000

Common Mackerel Large Purse Seine

ABC

155,000 10,000 5,000 21,000

Purple Washington Clam Pen Shell Spiny Top Shell

8,019

8,000

4,877 1,846-2,335

2,500 2,150

Blue Crab

13,800

13,000

Units: metric ton, % The amounts caught in 2004 were not available to the author. These tables show that there is a tendency for estimation of ABCs. According to the tables, both the ABC and the TAC of each species tend to decrease across time. Catch Per Unit Effort (CPUE) for most species of the TAC also tends to decrease, as shown in table 13, which means that, in spite of the implementation of the TAC system, recovery of resources is not successful and fisheries management has become more difficult for the fishermen. Table 13. CPUE Changes of TAC Species Species Common Mackerel Pacific Sardine Jack Mackerel Red Snow Crab Snow Crab Purple Washington Clam Pen Shell Spiny Top Shell Blue Crab

CPUE change Decreasing Stable Low level Decreasing Fluctuating Decreasing Decreasing Decreasing Fluctuating

Source: Korean Ministry of Maritime Affairs and Fisheries, Basic Plan of TAC and 2005 Year’s Implementation Plan 1 (2004) G

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Problems to Be Solved G

The TAC system implemented in Korea is estimated not to have brought the expected result of preserving and recovering marine resources. The reasons for this poor outcome are as follows: x x

x

As pointed out above, TACs of many species have exceeded their ABCs; The TAC system is not properly linked with other traditional methods of fisheries control. In preserving and recovering living resources, relying only on the TAC may cause a “raceto-fish” scenario, which is the very competitive fishing among fishermen to exhaust the allotted TAC ahead of others; and The scientific estimation of the amount of living stocks is still imprecise. Presently, five different levels of data are used to figure out ABC and TAC. However, because the necessary data for the determination of ABC and TAC are not well enough accumulated, ABC and TAC of most species are decided on the basis of low-level data.11

Table 14. Data Level for the Decision of ABC and TAC Data Level

Necessary data

1 2

X, F, XMSY, FMSY, F 35%, M X, F 35%, X 35%, M

3 4 5

X, F, M Catch per year, CPUE per year Catch per year

Species Common Mackerel, Pacific Sardine, Purple Washington Clam, Pen Shell Blue Crab Snow Crab Red Snow Crab

F: Instantaneous coefficients of fishing mortality. FMSY: Instantaneous coefficients of fishing mortality for the maximum sustainable yields. F 35%: Instantaneous coefficients of fishing mortality to maintain 35% of female spawning biomass. M: Instantaneous coefficients of natural mortality. X: Amount of stock. XMSY: Amount of stock enabling maximum sustainable yields. X 35%: Amount of stock to maintain 35% of female spawning biomass. G

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Notes _________________________ 1

Korea, China and Japan ratified the LOS Convention on January 29, 1996, June 7, 1996 and June 20, 1996 respectively and became parties to the Convention on the 30th day after their ratifications according to the Article 308, para. 2 of the Convention. 2 Article 57, LOS Convention. These seas are thought to be the semi-closed seas in the meaning of the article 122 of the LOS Convention. 3 Korea – Japan Fisheries Agreement, concluded on November 28, 1998 and entered into force on January 22, 1999; China – Japan Fisheries Agreement, concluded on November 11, 1997, and entered into force on June 1, 2000; Korea – China Fisheries Agreement, concluded on August 3, 2000, and entered into force on June 30, 2001. For the backgrounds and contents of these bilateral agreements, see Hee Kwon Park, The Law of the Sea and Northeast Asia - A Challenge for Cooperation (The Hague – London - Boston, Kluwer Law International, 2000), pp. 49-75. See also, Sun Pyo Kim, “The UN convention on the law of the sea and new fisheries agreements in north East Asia,” 27 Marine Policy, No. 2, 2003, 97-109; Joon-Suk Kang, “The United Nations convention on the law of the sea and fishery relations between Korea, Japan and China,” 27 Marine Policy, No. 2, 2003, 111-124. Although these agreements are provisional ones in the meaning of Article 74, para. 3 of the 1982 Convention, few seem to be thinking that these agreements will soon be substituted by the 1982 Convention with the delimited EEZs. 4 For example, Jae-Young Park and Jong-Hwa Choi, “Evaluation and Future Tasks of the Korea-China Fisheries Agreement” (original title and text are Korean), 31 Soosan Kyungyoung Ronjip (Journal of Fisheries Management), 2000, 83 ff. 5 In addition to the deteriorated marine environment and consequent decrease of living resources and worsened fisheries management situation, the start of Doha Development Agenda negotiation, prospected conclusion of Free Trade Agreements with many states and the adoption of Code of Conduct for Responsible Fisheries by the Food and Agriculture Organization (FAO) in 1995 are thought to necessitate the reduction of fishing vessels. Chung Hee Cho, Chung Kon Rhyu, Sang Min Lee and Jae Hyun Ahn, International Comparison of Fisheries Vessels Reduction and Its Political Implications (original title and text are Korean), Korea Maritime Institute Study Report, 2003, 6-13. 6 Every amount of money in this text is approximately converted (at the rate of one dollar to 1100 won) from won to dollar. 7 Korean Ministry of Maritime Affairs and Fisheries, Maritime and Fisheries White Book 2002-2003, 2004, 423-424. 8 Source: Korean Ministry of Maritime Affairs and Fisheries. 9 This number is directly confirmed from the Korean Ministry of Maritime Affairs and Fisheries on April 20, 2005 by the author. 10 All the tables of TAC below are compiled from each year’s “Basic and Annual Implementation Plan of TAC” published by the Korean Ministry of Maritime Affairs and Fisheries. 11 Do Hoon Kim, “Problems of TAC system and Plan for the Improvement” (original title and text are Korean), Korea Maritime Institute, 2003, 7-11.

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Regional Co-management of Fisheries Resources In the South China Sea Huang Shuo-lin, Guo Wen-lu and Zhu Zhanhua

ABSTRACT It is common practice for nations to co-develop and co-manage the natural resources in disputable areas, and there are also some joint management precedents. Regional fisheries co-management meets the needs of bordering nations to conserve resources. It is also a requirement of some international agreements, conventions, and resolutions, for example, the United Nations Convention on the Law of the Sea and the Code of Conduct on Responsible Fisheries. Over decades, as politically mutual trust has been emphasized among the nations of the South China Sea region, cooperation at different levels has been exercised. Cooperation among the countries directly bordering the sea has been promoted as a way to develop and conserve natural resources, including marine resources. Cooperation has also been exercised in the fisheries field, and the same or similar management measures have been implemented. Hence, it is necessary and feasible to conduct co-management of fisheries resources among bordering nations. But there are some problems, such as disputes about sovereignty over islands and the related sea jurisdiction, the vagueness in fisheries resources, and the discrepancy in management and law enforcement of fisheries. This paper is dedicated to the study of regional co-management of fisheries resources in South China Sea from two perspectives: short-term and long-term objectives. The short-term objective is for bordering nations to strengthen communication in order to gain mutual understanding. Starting from the bilateral cooperation over fisheries resources in South China Sea, all parties will achieve multilateral cooperation when the timing is proper. Concerning the fisheries management measures, all will agree to unify the steps and standards gradually and implement them jointly. The cooperation and communication will also be conducted in law enforcement, science and technology, and investigation of fisheries resources. The long-term

Shanghai Fisheries University, Shanghai, China. 203

Huang Shuo-lin, Guo Wen-lu and Zhu Zhanhua

objective is for all sides to try to achieve agreement on regional cooperation over fisheries and to establish the regional fisheries management organization in which the cooperation in fisheries management and law enforcement will be exercised. This should be done on the basis of bilateral cooperation among bordering nations, through consultation and negotiation. THE NECESSITY OF REGIONAL CO-MANAGEMENT OVER FISHERIES RESOURCES IN THE SOUTH CHINA SEA It is the International Practice to Co-develop and Co-manage the Natural Resources in Disputable Sea Areas There are precedents for nations to give priority to the development and management of the resources associated with unsettled disputes over island sovereignty and sea jurisdiction. The general practice is codevelopment. There are two types of co-development modes concerning disputable sovereignty. One is to recognize the island sovereignty and codevelop the resources, such as with the Svalbard Islands, in which Norway possesses the island sovereignty while nations including Norway, Sweden, Denmark, Russia, Great Britain and the United States of America all share the right to enter the islands and co-develop their natural resources. There are now usually four kinds of co-development and management modes over disputable sea waters. First, the super-national management mode, in which both parties agree to transfer jurisdiction over the co-development zones to a supernational management institution from which the operation license will be given to the applicants. A case in point is the co-development of Thailand and Malaysia. Second, the co-management mode by both governments, where instead of granting jurisdiction to a super-national management institution, both signatory sides divide the management organization of codevelopment zones into two parts: the Ministers’ Council and the Joint Administrative Bureau. In this mode the decision-making body has been separated from the operational management. The true co-development power centers upon both governments’ decision-making body, whereas the Joint Administrative Bureau develops and manages the resources. Thus both governments can instruct the development of the co204

Regional Co-management of Fisheries Resources

development zones directly, e.g. the co-development of Australia and Indonesia. Third, the agent system mode in which one signatory party acts for the other to manage the resources development in a disputable maritime space with the payment of the profits to the other side, e.g. the cooperation of Bahrain and Saudi Arabia. Fourth, the co-management mode by joint organization in which both signatory governments grant the right to the leaseholder to enter the codevelopment zones. The leaseholder must sign the agreement on comanagement, namely to explore and develop the natural resources in codevelopment zones in the form of joint organization, e.g. the codevelopment of Japan and Korea. There is no denying that most of the co-development and comanagement of natural resources in sea areas under dispute focus on mineral resources such as oil and natural gas, and the like. However, before the settlement of disputes over islands and sea waters, there were examples of co-management and co-conservation of fisheries resources. Examples of the following: the fisheries agreements were signed respectively by China with Japan, South Korea, and Vietnam; and the fisheries agreement between Japan and South Korea. The Necessity of Fisheries Resources Conservation in the South China Sea The South China Sea, due to its closure as a semi-enclosed area, enjoys a high level of independence in its environment and the living resources in its area. To a greater degree than an open sea, the extent of the resources depends on their primary productivity since the resources cannot be complemented by other sea waters if they deteriorate. In addition, the fisheries resources in the South China Sea are characterized by tropical, warm-ocean organisms different from those in the Yellow Sea, Bohai Sea and East China Sea in the following aspects: there are multiple species in the resources; there is co-habitation of various species; there is a relatively smaller quantity in each group; and the deficiency for most single fishes is no more than one percent of the total catch. The uniqueness of the South China Sea leads to its dependence on the reasonable development and conservation of fisheries resources by bordering nations and areas. Meanwhile, its migratory fisheries require the 205


cooperation of bordering nations to conserve and manage such mobile resources. The South China Sea (excluding the North Gulf) has long been a traditional fishery for bordering nations. The nations and districts that develop and harness the fisheries resources in the South China Sea include the following countries: China (including Hong Kong, Macao, Taiwan), Vietnam, the Philippines, Malaysia, Indonesia, Brunei, Thailand and Singapore. Most of the fisheries resources have been utilized by nations such as China, Indonesia, Thailand, Vietnam, the Philippines and Malaysia. Therefore, all these bordering nations and districts are obligated to co-manage and co-conserve the fisheries resources in the sea. The Requirements of Some Related International Conventions, Agreements and Decisions The 1982 United Nations Convention on the Law of the Sea opens a new page in world marine management in which one of the important items is the establishment of a system of the exclusive economic zones with fisheries management as the core. To ensure the conservation of the living resources, the Convention provides that “[t]he coastal State, taking into account of the best scientific evidence available to it, shall ensure through proper conservation and management measures that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation.” (Article 61) This is the most fundamental obligation of bordering nations – to shoulder the living resources assigned by the system of the exclusive economic zone. From a legal perspective, the article does not make clear at which level the living resources will be maintained and which living resource will be maintained at that level. From the perspective of the fisheries, this article undoubtedly refers to the proper conservation and management measures from bordering countries, ensuring that the living resources will not be endangered by over-catches and over-exploitation. To make sure the implementation of this basic obligation is met by all bordering nations, the Convention also provides that “[a]s appropriate, the coastal State and competent international organizations, whether subregional, regional or global, shall co-operate to this end.” (Article 61) The Convention also says that all related states sharing resources shall “seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary to co-ordinate and 206


ensure the conservation and development of such stocks without prejudice to the other provisions of this Part.”(Article 63) Moreover, it is shown in the Part VII of the Convention that states bordering an enclosed or semienclosed sea shall endeavor directly or through an appropriate regional organization to coordinate the management, conservation, exploration and exploitation of the living resources of the sea. For the resources in disputed sea areas, the Convention requires that before the formal agreement on delimitation of the exclusive economic zones between states with opposite or adjacent coasts, “the States concerned, in a spirit of understanding and co-operation, shall make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardize or hamper the reaching of the final agreement. Such arrangements shall be without prejudice to the final delimitation.” (Article 74) In this provisional arrangement, it is important to develop, utilize and conserve the resources, namely to reasonably develop, utilize and conserve the natural resources, including the living resources in disputed sea waters or overlapped areas. Concerning the straddling fish stocks, the Convention states that “[w]here the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks in the adjacent area shall seek, either directly or through appropriate subregional or regional organizations, to agree upon the measures necessary for the conservation of these stocks in the adjacent area.” (Article 63) The obligations of coastal States in exclusive economic zones to conserve the living resources are not only meant to ensure that the maintenance of the living resources in the exclusive economic zone is not endangered by over-exploitation. As qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, it is the responsibility of coastal States to “maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.”(Article 61) Marine living resources are migratory. In order for a coastal State to conserve the living resources in its exclusive economic zones, it must understand the status of the resources in its exclusive economic zones and obtain substantial scientific intelligence and information about fisheries 207


production. For this purpose, the Convention requires the following of all coastal States: “Available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organizations, whether subregional, regional or global, where appropriate and with participation by all States concerned, including States whose nationals are allowed to fish in the exclusive economic zone.” (Article 61) The Code of Conduct on Responsible Fisheries adopted by the FAO Council on December 31, 1995, requires that states and all those engaged in fisheries management adopt measures for the sustainable catches of fisheries resources for present and future generations through an appropriate policy, legal and institutional framework. Any short-term considerations should not compromise these objectives. Within areas under national jurisdiction, states should seek to identify domestic parties that are developing, utilizing and managing the fisheries resources and gain their collaboration in achieving responsible fisheries. Fisheries management should be concerned with the whole stock unit over its entire area of distribution and conserve and manage fish stocks throughout their range. Long-term management objectives should be formulated as a fishery management plan or other management framework in order to be translated into management actions. For transboundary fish stocks, straddling fish stocks, highly migratory fish stocks and high seas fish stocks, the states concerned should cooperate to ensure effective conservation and management of the resources. Hence, the mechanisms for monitoring, controlling and implementing the fisheries regime should be established. THE FEASIBILITY OF REGIONAL CO-MANAGEMENT OF FISHERIES RESOURCES IN THE SOUTH CHINA SEA The Strengthening of Mutual Trust in Politics Among Bordering Nations and the Establishment of the Co-operational Framework at Various Levels Indonesia, Thailand, the Philippines, Vietnam, Malaysia, Cambodia, Singapore and Brunei are ASEAN (“Association of South East Asian Nations”) countries. Ever since the founding of the ASEAN, all member States have achieved effective cooperation on politics, economics, society 208


and culture. To this end, The Treaty of Amity and Cooperation (“TAC”) in Southeast Asia was signed in Bali Island in 1976 by five initial member States. It is the first accepted document with legal norms after the founding of the ASEAN and has been considered the agreed code of conduct for all member States. The main principle of the agreement is to promote regional peace and stability by enhancing regional resilience. Regional resilience shall be achieved by cooperating in all fields based on the principles of self-confidence, self-reliance, mutual respect, cooperation, and solidarity, which constitute the foundation for a strong and viable community of nations in Southeast Asia. China established a diplomatic relationship with all ASEAN countries in 1991. Since then, the friendly relationships and cooperation has increased between China and ASEAN. In December 1997, China and ASEAN leaders released a joint declaration, deciding to establish the twenty-first century-oriented mutual trust partnership. Both sides fully agreed to put the Charter of the United Nations and the TAC in Southeast Asia as the basic principle in dealing with relationships. In the following years the relationship between China and ASEAN has been further promoted. Cooperation in mutual benefits has been enforced, economic interactions have been gradually closed and greater cooperation has been achieved. Both parties agreed upon the Declaration on the Conduct of Parties in the South China Sea, achieving a common view on peaceful solutions to disputes and cooperation in the South China Sea. In June 2003, the standing committee of the NPC formally decided to agree upon the TAC in Southeast Asia and it was signed formally in October. China, therefore, has become the first leading power outside of Southeast Asia to accede to the treaty. It symbolizes the substantial progress China has made in developing political relationships with ASEAN, in strengthening mutual trust in politics and in entering a new stage the relationship between China and ASEAN. During the China and ASEAN leaders’ summit of November 28-30, 2004, Chinese Prime Minister Wen Jiabao advocated the guiding principle for long-term development of mutual relationships: “equality, mutual trust, cooperation and double win.” He outlined ten points for cooperation in fields such as politics, trade, security, and culture. Some of the points included the follow-up of the implementation of the Declaration on the Conduct of Parties in the South China Sea, holding senior officials’ talks, founding the working team and the start-up of the cooperation in the South China Sea. On the basis of mutual respect, equality and mutual benefit, 209


China shall explore with other nations methods for co-development in disputed sea areas in the South China Sea. All of these proposals struck a responsive chord in the hearts of ASEAN leaders, many of who believed in their feasibility and showed determination to cooperate with China. Furthermore, with the rapid development of the relationship between China and ASEAN after the 1990s, both cooperation organisms have been established and perfected, forming the co-operational framework of multidirection at various levels: (1) leaders’ talks; (2) conferences of foreign ministers; and (3) the working organism. So far China has set up six working organisms with ASEAN. With regard to the bilateral relationship, in December 2002, China signed an agreement of delimitation of the territorial sea, exclusive economic zone and continental shelf with Vietnam in the North Gulf, solving the long-time disputes over the North Gulf’s sovereignty. China also signed the agreement on fisheries cooperation in the North Gulf. In the Joint Communique of October 8, 2004, signed in Hanoi, both parties thought highly of the two agreements going into effect simultaneously on June 30, 2004, and felt satisfied with their implementation, emphasizing closer cooperation in conducting the regulations in the agreements. Both sides agreed to strictly comply with the senior officials’ agreements and principles in the Declaration on the Conduct of Parties in the South China Sea. The agreements and principles are as follows: to keep cool-headed, to avoid taking any one-sided actions that may result in the complication or magnification of the disputes, to avoid resorting to force or threatening with force (including not taking military action on fishing boats) and to maintain the stability of the South China Sea with actual deeds. The Joint Communique stresses retaining the negotiating organism over sea issues and adding more peaceful negotiations from which the accepted, fundamental and long-run solutions can be found. Before the resolution of the issues, both parties shall bear in mind that all things are difficult before they are easy; they should continue to strengthen cooperation in fields of low-sensitivity, which are of mutual interest and gradually explore more cooperation in other fields. In sum, over several decades, China has successfully made great progress in developing relationships with ASEAN countries. The relationship between China and ASEAN has entered a new stage with the establishment of co-operational framework of multi-direction at various levels. Through cooperation in various fields, both parties have made achievements, which will be the political basis for regional co210


management and co-conservation of fisheries resources among bordering states. Cooperation in Developing and Conserving Marine Resources Among Bordering Nations So far bordering nations have had some cooperation in the development and conservation of marine resources. In September 2004, China and the Philippines agreed upon the co-exploration of oil in the South China Sea. One of the measures in the Declaration on the Conduct of Parties in the South China Sea is to co-study the oil resources in the South China Sea in three years. Aside from the bilateral cooperation between countries, there is also some multilateral cooperation, which has been conducted through attending or setting up marine resources conservation organizations. Although some are government organizations and some are nongovernment institutions, all have played an important role in developing and conserving marine resources and establishing a basis for regional comanagement and co-conservation of fisheries resources among bordering nations in the South China Sea. Cooperation in Fisheries Among Bordering Nations Bordering nations of the South China Sea have had some cooperation in fisheries. China and Vietnam’s cooperation is an example. From the independence of Vietnam Democratic Republic in 1954 to the reunification of Vietnam in 1975, China and Vietnam have signed fisheries agreements on the North Gulf three times and cooperated in many fields, including fisheries, settlement of disputes, offer of haven, mutual rescue, investigation of fisheries resources and other provisions. Although after 1975 the relationship between China and Vietnam worsened, it has improved in recent years. In accordance with the Convention, the two countries signed the agreement of delimitation of territorial sea, exclusive economic zone and continental shelf in the North Gulf, and the agreement on fisheries cooperation in the North Gulf in December 2000. The agreements came into effect on June 30, 2004. In April 2001 China and Indonesia signed a memorandum to cooperate in fisheries fields regarding such matters as catch, processing, education, harbor, and fishing boats. On July 16, 2004, the Ministry of Agriculture in 211


China and Indonesia’s Marine Affairs and Fisheries Ministry signed an agreement on exploitation of the fisheries in the EEZ of Indonesia. In November 1996, the former Chinese President Jiang Zemin and former Philippines President Fidel Ramos achieved a common understanding on the South China Sea issues to shelve the disputes and to start cooperation. With respect to the South China Sea, both sides discussed the consultation organism of cooperation, including three working teams on fisheries cooperation, marine environmental protection and the establishment of trust measures. It is also reported that during the conference of ASEAN foreign ministers in 1999, the Philippines foreign minister declared the signing of a fisheries agreement with China in the South China Sea, advocating the further development of the agreement into one for all bordering nations and regions in the South China Sea. The agreement is for the conservation of fisheries resources, not to mention sea sovereignty. In April 2001, China and the Philippines held their third round of discussions in Manila on founding a working team for trust measures. Both promised not to let bilateral disputes influence the development of a mutual relationship. They agreed that both would not take any action that may cause complications and magnification of the affairs in this area and that they would strengthen cooperation in fields such as fisheries, military, science and research. On September 1, 2004, during Philippine President Gloria Macapagal Arroyo’s visit to China, both signed an agreement on bilateral fisheries cooperation. Countries in Southeast Asia also cooperate in fields such as fisheries manufacturing, fisheries science and technology. A case in point is the agreement on fisheries and aquiculture between Vietnam and Indonesia for the purpose of strengthening cooperation in fisheries manufacturing, aquatic product processing and fisheries management. Identical or Similar Fisheries Management Policies and Measures Implemented by Bordering Nations After the adoption of the 1982 LOS Convention, the bordering nations in the South China Sea took some measures to enforce the conservation and management of marine fisheries resources. Ever since the 1980s, China has taken a series of important measures to develop and protect living resources in its bordering sea areas. The measures are to:

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1. Adjust the national fisheries development policy. Since 1985 the fisheries development policy has been changed into a policy “that calls for simultaneous development of aquaculture, fishing and processing, with special emphasis on aquaculture and with priority given to different pursuits in accordance with local conditions”; 2. Amplify fisheries laws and regulations. The Fisheries Law of the People’s Republic of China was amended in 2000, to apply a catch quota system in Chinese fisheries; 3. Set targets to limit the number of fishing vessels and their engine power; 4. Implement a summer closure in the East China Sea and the Yellow Sea since 1995 and in the South China Sea since 1999; 5. Carry out a “catch zero increase program” since 2000; and 6. Take some measures to increase fisheries resources. Vietnam promulgated an Ordinance on Fisheries Resources Protection and Development in April 1989 and the Decree on the Implementation of the Ordinance on Fisheries Resources Protection and Development in June 1992, which provided for a fishing licensing system and the preparation of reports on prohibited species and fishing operation, among other things. In 1998, the Philippines adopted the Philippine Fisheries Code of 1998, which provided for catch limitation, establishment of closed season, and a fishing licensing system. The Malaysia Fisheries Act of 1963 was repealed and replaced by the Fisheries Act of 1985. This act, adopted on January 1, 1986, provides for the management, conservation and optimum utilization of the fisheries resources in Malaysian fisheries waters. Management measures taken in fisheries management include fishing licensing, setting of prohibited areas and prohibiting some fishing methods. Indonesia promulgated Government Decree No. 15/1984 or Regulation Number 15 on Fisheries Resources Management in the Indonesian Exclusive Economic Zone in 1984. Indonesia also promulgated the Fisheries Act in 1985. Management measures include the setting of Total Allowable Catch, fishing licensing, limits on fishing gear, fishing methods and fishing vessels, and the setting of closed seasons and areas. Thailand, Brunei, Singapore and China Taiwan also made some changes in their development and utilization of fisheries resources, emphasizing resource conservation. 213


PROBLEMS CONFRONTED IN REGIONAL CO-MANAGEMENT AND COCONSERVATION OF FISHERIES RESOURCES IN THE SOUTH CHINA SEA As described previously in this paper, the nations bordering the South China Sea signed and ratified the 1982 Convention and pay close attention to the rational utilization and conservation of fisheries resources. All of these nations have taken a series of policy measures regarding fisheries management, and some measures are identical or similar. In addition, the South China Sea is a semi-enclosed sea and its geographical features make the entire range of the sea good for regional cooperation in the conservation and management of fisheries resources. However, there are some difficulties for regional co-management of fisheries resources in the South China Sea: (1) There are conflicts over islands and surrounding waters among nations bordering the South China Sea. These conflicts involve not only six nations or seven parties in this area, but also other large countries outside of this area to a different degree, including the United States, Russia and Japan, which makes for a complicated conflict. As a result, it is not easy to settle these sovereignty and jurisdiction conflicts at present. See map below. (2) Nations bordering the South China Sea have not cooperated to carry out research on the distribution of the primary productivity, the standing stock, and the available catch of demersal and epipelagic fishes, and the cephalopod and shrimp resources. It is not a matter of science to decide the total available catches. There is little information on the fisheries resources in the South China Sea, especially on the abundance and the migration of populations in the middle part and around the Nansha Islands. Border nations also have not fully discussed the problems on the exploitation and conservation of the fisheries resources. That is, they have not reached a unified recognition of the problems, much less taken collective actions. (3) Less direct cooperation has been carried out in fisheries science and technology cycles among the bordering nations on the investigation of fisheries resources, the circulation of fisheries statistical data and the standardization of fishing efforts. 214


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(4) There are some discrepancies in management and law enforcement of fisheries among the bordering nations, such as in the inspection and boarding of fishing vessels. (5) Although China and Vietnam have signed the Agreement of Fisheries Cooperation in North Gulf, there are no other bilateral or multilateral fisheries cooperation agreements among the bordering nations, which means they lack an adequate cooperation mechanism. (6) The fisheries conflicts of the South China Sea may become more serious, especially in the Nansha areas. Recently, the fishing activities of Chinese fishers in this area were violently disturbed by Vietnam, the Philippines, Malaysia and Indonesia. Since 1989, Vietnam, the Philippines and Malaysia have strengthened their fishing activities in this area. The fishing ground west of Nansha now is under the control of Vietnam, and Philippine fishing vessels have reached the middle part of Nansha Islands. STUDY OF PROGRAMS OF REGIONAL CO-MANAGEMENT AND COCONSERVATION OF FISHERIES RESOURCES IN THE SOUTH CHINA SEA Studies are merited about the bordering nations’ differences in decision-making policies, politics, societies, economics, science, technology and cultures, as well as short-term and long-term objectives in regional co-management of fisheries resources in the South China Sea. The Short-Term Objective (1) Implementing the Input Control Measures of Fisheries Management Nations bordering the South China Sea are now aware of the necessity and urgency for the conservation of fisheries resources, and have taken some input control measures in fisheries management such as implementing a closed season, distributing fishing licenses, exercising fishing effort control, limiting fishing gears and establishing a minimum catch size. Some differences do exist in the standards and steps to implement these input control systems. In order to promote further 216


conservation of fisheries resources, it is necessary to unify these standards and steps through negotiating and signing cooperation agreements. (2) Enhancing the Communication and Cooperation in Fisheries Supervision and Law Enforcement For now, nations bordering the South China Sea have the ability to supervise the conduct of fisheries and law enforcement, and also have carried out enforcement activities in the South China Sea. Thus, it is possible for the nations involved to enhance communications and cooperation in fisheries superintendence and law enforcement to supervise and manage fisheries activities. To do that, markers of fishing vessels should be made uniform and nations should be authorized to visit and examine the fishing vessels of others. If any illegal behavior is found, it should be reported to the flag nation as soon as possible, but any detainment and punishment should be avoided. The flag nation has exclusive rights to punish the illegal fishing vessel. If conditions permit, joint law enforcement should be carried out. (3) Enhancing Cooperation in Fisheries Science and Technology and the Circulation of Fisheries Statistical Data According to the principles of mutual profit and equality advocated by the United Nations Convention on the Law of the Sea, cooperation in fisheries science and technology should be carried out. Cooperation may include the investigation of the stock status and the migration distribution of fisheries resources, stock assessment, fisheries biology, marine ecology, research on the effect of natural and factitious factors on fishes, and the standardization of fishing efforts. At the same time, the data on catch, fishing areas and fishing vessels should be mutually reported. The Long-Term Objective The main long-term objective is as follows: On the basis of bilateral cooperation among bordering nations in the South China Sea, through consultation and negotiation, a regional fisheries cooperation agreement ought to be signed and the regional fisheries management organization in the South China Sea ought to be established. This organization should have a standing agency that copes with routine tasks, offers fisheries 217


consultation to nations, and collects and analyzes fisheries statistical data, including fishing efforts and catches. The regional organization ought to make common fisheries policies and adjust them in line with the stock abundance, for example, in determining available catch, number of fishing vessels, fishing zones and fishing gear on the basis of current fisheries conditions of the nations and regions bordering the South China Sea. As for management measures, the TAC system ought to be the principal system. The regional organization ought to determine the fish species, catches and quotas of nations or regions, and take corresponding management measures. Though it is difficult to implement TAC in the South China Sea as one of the effective measures to conserve fisheries resources, the TAC system has been a development tendency in international fisheries management. The quantitative management of fisheries resources has been included in the provisions of the Agreement of Fisheries Cooperation in North Gulf, which have come into effect. With regard to law enforcement, the regional organization ought to dispatch observers and even authorize officials of its member States to station the fishing vessels of any nation, or to visit any illegal suspect fishing vessel to check fishing gear, catch and fishing logs. The observer could not order or force the fishing vessel or crew to an appointed destination. The flag State has exclusive rights to punish illegal fishing vessels, and the flag State should report the result of its punishment to the regional organization as soon as possible. All member States should implement ratification, authorization and license systems in managing its fishing vessels, and the fishing vessels ought to be required to abide by international standards on fishing vessel building, communication devices, fishing gear markers and monitoring devices. The fishing crew ought to be trained in line with international standards and international uniform qualifications. The fishing vessels ought to be required to fill in fishing logs truthfully and report accurate catch data to the regional organization. The provisions of the regional fishing agreements and resolutions of the regional organization also ought to apply to non-member States.

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Regional Fisheries Management in the East China Sea Moritaka Hayashi

INTRODUCTION The East China Sea, particularly its northern part, is largely an area where fishermen from the three neighboring countries, i.e., China, Japan and Korea, enjoyed freedom of fishing on the high sea until the mid1990s. Although Japan established its 200 nautical mile exclusive fishery zone (EFZ) in 1977, it did not cover part of the Sea of Japan closer to the Republic of Korea (ROK) and the East China Sea. It also refrained from applying the new regime, which was adopted as a provisional measure, to fishing vessels of China and the ROK. Thus these fishing vessels, as well as those of Japan, were able to conduct fishing in principle in the waters near the coasts of the other two countries just outside their territorial sea. As fishing patterns of the three countries changed over time, rapidly expanding fishing operations close to the territorial seas often caused frictions with the local fishermen and government. A major change in the legal regime came in 1996, when the three countries ratified the UN Convention on the Law of the Sea (LOS Convention). Japan and the ROK adopted the exclusive economic zone (EEZ) in the same year, while China enacted its EEZ law in 1998. Since the distance between the coasts of the three countries in the northern part of the East China Sea is considerably less than 400 nautical miles, no high seas exist in that area. None of the three countries have agreed upon bilateral delimitation of their EEZs. Nor have they agreed on the tri-junction of their EEZs. The lack of progress in this area was mainly a result of the different government positions on the principles to be applied to delimitation. While Japan insisted on applying the median line principle, the ROK

Professor at the School of Law of Waseda University in Tokyo, was previously Assistant Director-General in charge of Fisheries Department of the Food and Agriculture Organization of the UN (FAO) in Rome, Italy, and Director of the Division for Ocean Affairs and the Law of the Sea at UN Headquarters. He had also served the Japanese government as Counselor and subsequently Minister at the Japanese Mission to the United Nations in New York. 219

Moritaka Hayashi

apparently stressed the need to take into account various factors such as the semi-enclosed seas principle. 1 China stressed the “equitable principle,” which will be discussed later. The ROK and China have been specifically against the use of Danjo Gunto, a detached group of islets situated some 100 nautical miles to the southwest of Nagasaki, as part of Japan’s baseline. In the Sino-Japanese relations further south in the East China Sea, the Japanese claim to the Senkaku Islands (which China calls Diaoyu) has been disputed by China. The two governments have excluded the waters surrounding the islands in their fishery talks, since it may well be assumed that the territorial issue would inevitably affect the efforts to conclude a delimitation agreement regarding the area. China, Japan and the ROK thus have shelved their efforts to reach bilateral agreements on the delimitation of their EEZs and commenced their talks on the provisional regime on fisheries. The three countries finally succeeded in adopting three separate agreements on the bilateral basis in the late 1990s. Each of these bilateral agreements will be discussed below. The Agreement between China and Japan China and Japan established their diplomatic relations in 1972 and concluded the first fisheries agreement in 1975. Until that time, fisheries relations were based on a non-governmental agreement concluded in 1955 between the Japan-China Fisheries Council in Japan and the China Fisheries Council. The agreement was subsequently replaced by two similar agreements. These agreements made it possible for Japanese fishing vessels to operate with a degree of certainty on the high seas near Chinese coastlines in the East China and Yellow Seas, despite various restrictive measures unilaterally imposed by China, such as the military warning zone and other fishing restriction zones. 2 The 1975 agreement formalized the fisheries relations between the two countries for the sake of maintaining an order of normal fishing operations, as well as the conservation and management of fishery resources. However, it followed some of the main features of the 1955 agreement, and Japan recorded its reservations with respect to some of the restrictive measures. 3 Moreover, the agreement was already becoming outdated in light of the rapidly emerging global trend to establish EEZs or EFZs. In 1977, as discussed previously, Japan established its EFZ of 200 220

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nautical miles, though it did not cover the East China Sea and exempted Chinese (and Korean) fishermen from the license requirement in the EFZ. In 1996, when the two governments were preparing for the ratification of the LOS Convention, China and Japan began consultations on a new fisheries agreement based on the Convention regime. China first wished to conclude an agreement on EEZ delimitation. This proved to be difficult, however, owing to the clearly incompatible positions of the two countries with regard to the basic principle to be applied to such delimitation. While Japan stressed the median line principle, China adhered to the “equitable principle,” claiming that the delimitation should be based on the land of the coastal State and take into consideration all relevant factors in the area, including the length of the coastline, shape of the coastline and the difference between a continent and an island. 4 The two countries thus agreed to conclude a fisheries agreement on the condition that negotiations on EEZ delimitation would continue. 5 The new Agreement on Fisheries between the two countries 6 was signed on November 11, 1997, and entered into force on June 1, 2000. A key feature of the agreement is the creation of a large Provisional Measures Zone (PMZ) in the central part of the East China Sea, where the EEZ claims of the two countries overlap. The roughly square zone is located between 30°40ƍ north latitude and 27° north latitude, with the western and eastern limits at a distance of approximately 52 nautical miles from the coasts of China and Japan, respectively. The northern limit is approximately the latitude that goes through the trilateral equidistant point between Japan, China and the ROK. 7 Within the PMZ, each party does not exercise sovereign rights against nationals and fishing vessels of the other party, with enforcement powers exclusively in the hands of the flag State of the vessels. The conservation measures within the PMZ are to be decided by the Japan-China Joint Committee on Fisheries, established under the agreement. Each party may bring to the other’s attention any alleged violation of such measures, and the other party must take necessary measures and notify the former of the results of such measures (Articles 6 and 7). No provision is made concerning measures to be taken with regard to third party vessels in the PMZ. According to Japan’s interpretation, this is a matter for the Joint Committee to discuss, and each party is responsible for enforcement measures according to international and domestic law if the Joint Committee decides upon no measures. 8 221

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The EEZ areas outside the PMZ consist of three zones where different rules apply: (1) The EEZs of the parties in general except for (2) and (3); (2) The area south of 27° north latitude and west of 125°30ƍ east longitude (excluding China’s EEZ in the South China Sea); and (3) The area north of the PMZ. First, in the EEZs outside the PMZ, except for the adjacent areas to the north and the south of the zone, each party shall permit the nationals and fishing vessels of the other party to operate fishing based on the principle of mutual interests (Article 2 (1)). On a yearly basis, each party shall determine the operational conditions within its own EEZ for the nationals and fishing vessels of the other party, such as the species to be caught, catch quotas, and permitted fishing areas. Such determination, however, must “respect” the result of consultations in the Joint Committee (Article 3). Each party enforces its laws and regulations within its own EEZ. If there is an arrest or detention of the other party’s vessels, the other party shall be promptly notified. Arrested or detained vessels and their crews, however, shall be promptly released upon the posting of appropriate bond or other security (Article 5). In the second area south of 27° north latitude, the agreement has taken no new measure; each party applies its own laws and takes necessary measures in its own EEZ. However, in an exchange of letters on the same day as the signature of the agreement, each party recorded its “intention not to apply its relevant laws and regulation on fisheries” to the nationals of the other party “on the condition that both [countries] are in the cooperative relations in order to ensure that the maintenance of marine living resources is not endangered by over-exploitation.” 9 It is also expected that the Joint Committee will consult and make recommendations to each government on conservation and management measures in the area and that each party will respect the recommendation (Article 11 (2)). This area in the south of 27° north latitude comprises complicated waters, including the Senkaku Islands, 10 the zones that China has regarded as militarily sensitive, and the waters surrounding Taiwan. The third area, north of 30°40ƍ north latitude, is an open-ended area with no limits defined in the agreement in three other directions. In the Agreed Minutes signed on the same day as the agreement, the parties 222


simply “expressed their intentions” that, in this area, given the traditional and cooperative fishing relations between the two countries in implementing the agreement and establishing the fishing relations with the third country, which is presumably the ROK, both parties would “respect the current fishing operations” in that area of the East China Sea. The minutes also stated that both parties should pay due regard to the traditional fishing of the other party and the resource situation of the area, and “not unduly damage the interest of fishing” of that other country in the area. 11 Subsequently, on February 27, 2000, when the agreement was not yet in force, the ministers in charge of fisheries for the two governments reached a common view that (1) in the area north of the PMZ between 124°45ƍ east longitude and 127°30ƍ east longitude, the two countries should take measures so that fishing vessels of either party are able to operate without carrying the other party’s license card, and (2) they should make efforts to ensure that the maintenance of resources is not endangered by over-exploitation through such measures as limiting the number of its vessels and exchanging information concerning catch. The northern limit of this so-called Intermediate Zone was considered to be the northern limit of the East China Sea. The Intermediate Zone was apparently agreed upon on the basis of the above-mentioned Agreed Minutes of 1997, which had recorded the intentions of the parties with respect to the current fishing operations in the area of the East China Sea north of the PMZ. 12 It should be noted that the Southern Provisional Zone established by the 1998 Fisheries Agreement between Japan and the Republic of Korea, to be discussed later in this paper, is located almost completely within the Intermediate Zone of Japan and China. Lastly, the agreement has established the Japan-China Joint Committee on Fisheries, consisting of two members from each party. The Committee consults and makes recommendations on matters related to fishing operations within the EEZs of the parties outside the PMZ, and the zone south of 27° north latitude, including the species that may be caught, catch quotas and other conditions for the nationals and fishing vessels of the other party, the maintenance of an order of fishing operations, and the cooperation of fishing between the parties. With regard to the PMZ, the Committee consults and makes determinations on matters related to the zone. The parties must take necessary measures “respecting” such recommendations and “subject to” such determinations (Article 11). 223

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The Agreement between Japan and the ROK Upon their normalization of diplomatic relations, in June 1965 Japan and the ROK concluded the Agreement on Fisheries between the two countries. The agreement recognized the right of each party to establish an EFZ beyond the territorial sea, up to 12 nautical miles from the baselines, and to exclude fishing vessels of the other party from that zone (Article 1). Beyond the 12-mile zone of the ROK, the Joint Regulation Zones were established, where the two governments would take provisional measures, such as limiting the number and the size of fishing vessels (Articles 2 and 3). No such zones were established off the coasts of Japan. Each party exercised its jurisdiction over the vessels flying its flag beyond the 12mile zones, including the Joint Regulation Zones (Article 4). The establishment of the Joint Regulation Zones off the Korean coasts was the result of the fishing pattern prevailing at that time, where Japanese fishing vessels were engaged in extended activities in the offshore waters of the ROK. The situation, however, started to change in the 1970s, when Korean distant water fishing expanded rapidly in the offshore areas of Japan. The 1976 establishment of the USSR’s 200-mile EFZ also caused Korean vessels fishing in the Soviet coasts in the Northwest Pacific to shift their activities to the coastal areas of Hokkaido 13 . The Soviet action as well as the U.S. establishment of its EEZ prompted Japan to adopt its own EFZ law in 1977. However, taking into account the fact that the ROK and China had not established a 200-mile zone, Japan exempted fishing vessels from these countries from the application of the new law in the Sea of Japan and the East China Sea. All of these developments led to the rapid expansion of Korean fishing activities in the coastal waters of Japan, which also contributed to increased friction and incidents between the two countries. The situation remained basically the same after Japan established the EEZ in 1996 because the Enforcement Order of the new law on EEZ kept the same policy, for the time being, as that of the 1977 law regarding the basic exemption of Korean fishermen from the application of the law pending the conclusion of bilateral talks to settle the issues amicably. 14 Several rounds of negotiations were held between the two governments to revise the 1965 Agreement. Meanwhile, strong pressure mounted in Japan to terminate the agreement in order to enable the government to enforce its laws against Korean fishing activities in the EEZ. Japan finally gave notice on January 23, 1998, of its intention to 224


terminate the agreement on the basis of article 10, under which the termination would take effect one year after the notice. The negotiations were suspended by ROK but resumed after several months with the improvement in the bilateral relations under newly elected President Kim Dae Jung. The two governments finally signed the new Agreement on Fisheries between Japan and the ROK 15 on November 28, 1998, which entered into force on January 22, 1999, the day when the 1965 Agreement expired. The agreement is aimed at establishing a new order on fisheries between the two countries and to further develop the cooperative relations concerning fisheries “on the basis of the UN Convention on the Law of the Sea.” 16 The agreement applies to the EEZs of the two parties (Article 1). The EEZs are delimited by a set of three methods. First, in the middle zone with Tsushima Straits in the center, the demarcation line follows the line drawn on the median-line basis in the 1974 Japan-ROK agreement concerning the delimitation of the northern part of the continental shelf adjacent to the two countries. 17 In the northern part, the agreement has created a large area called the Northern Provisional Zone in Japan (the “Middle Waters in the East Sea” in Korea), where neither party can exercise exclusive sovereign rights. The main reason for creating such special zones was to avoid the delimitation of waters affecting the sovereignty over Kakeshima (Dok-do in Korean), an island situated midway between the coasts of the two countries, over which sovereignty is disputed by the two. The zone extends almost to the central part of the Sea of Japan, beyond the provisional EEZ limits of about 35 nautical miles from the baselines of the two countries. The zone includes Takeshima, but the island together with its territorial sea is excluded from the application of the agreement since the territorial issue was completely separated from the scope of its negotiations. Similarly, to the south of the central delimitation line, another special area called the Southern Provisional Zone (the “Middle Waters of the East China Sea” in Korea), has been established extending to the southern limit of the EEZ claimed by ROK. This was a compromised solution after the parties could not agree on a boundary line. Japan proposed using the northern section of the joint continental shelf development zone on which they had agreed in the 1974 Agreement concerning the southern part of the continental shelf, 18 which Japan considered the virtual equidistance line. 19 The ROK disputed the use of some of the baselines adopted by Japan, demanding that the equidistance line should be drawn closer to 225

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Japan. 20 Finally, they agreed to create the provisional zone, where the claims of the two parties overlapped in a roughly triangular shape. The areas situated on the side of each party of the middle zone delimitation as well as the northern and southern provisional zones, beyond the territorial sea, are regarded as its own EEZ (Article 7 and Annex II). It is agreed that the lines drawn are all provisional: the parties have recorded their intention to “continue to negotiate with each other in good faith for the early delimitation of the [EEZs]” (Annex I, para.1). Within its own EEZ, each party is to permit, on the basis of reciprocity, nationals and fishing vessels of the other to engage in fishing (Article 2). Each party makes a yearly determination of species, the amount of allowable catch, operation areas and other conditions concerning operations. In doing so, however, the parties must “respect the consultation results” by the bilateral Joint Fisheries Committee, discussed below (Article 3). Each party must take measures to ensure that its nationals and fishing vessels fishing in the EEZ of the other party comply with such conditions (Article 5). Enforcement of laws and conditions of fishing against fishing vessels of the other party shall be done only by the coastal State concerned. This includes arresting or detaining fishing vessels and crews, but the other party must be notified of such measures expeditiously through diplomatic channels, and such vessels and crews shall be released promptly upon the posting of reasonable bond or the submission of documents guaranteeing its posting (Articles 5 and 6). The agreement has established the Japan-ROK Joint Fisheries Committee, composed of one representative and one member from each party, with the task of consulting on such broad matters as concrete conditions of fishing operation, maintenance of the order in operation, the state of the marine resources, cooperation in the field of fisheries between the two countries, as well as other matters related to the implementation of the agreement (Article 12). The basic provisions on the management of resources within the EEZs do not apply with respect to the two provisional zones. In both provisional zones, one party shall not apply its own laws and regulations to the other’s nationals and vessels. The parties are to take necessary conservation and management measures for their respective nationals and fishing vessels, including the maximum number of vessels in terms of the types of fisheries. 21 With regard to the role that the Joint Fisheries Committee is to play, however, the agreement makes a clear distinction between the two 226


provisional zones. In the Northern Provisional Zone, the parties are to “[respect] the recommendations” of the Committee in determining such measures. 22 On the other hand, in the Southern Provisional Zone, the parties are to “[follow] the decisions” of the Committee in taking such measures. 23 Thus the Committee’s decisions are considered recommendations for the northern zone, while they are mandatory for the southern zone. According to Japanese Foreign Ministry officials, the parties agreed to have the Joint Committee decide the conservation and management measures in the southern zone “[s]ince the Southern Provisional Zone was next to the Provisional Measures Zone of the new Agreement on Fisheries between Japan and the People’s Republic of China.” 24 It was further explained that the Joint Committee would discuss how nationals and fishing vessels of third states should be treated in the provisional zones, including whether fishing by third states would be permitted. 25 For the Northern Provisional Zone, the power of the Joint Committee was made recommendatory because the ROK Government wished to avoid the impression that the two countries “take ‘joint’ measures with regard to the waters around Dok-do.” 26 The Agreement between China and the ROK During the Cold War, when there were no diplomatic relations between China and the ROK, Korean fishing vessels were kept off the socalled East China Motor Trawl Prohibition Line, which China had established in the early 1950s. After the mid-1980s, Chinese fishing vessels also became active and disputes involving vessels from the two countries started to occur frequently. Soon after the establishment of their diplomatic relations in 1992, the two governments began negotiations to conclude a fisheries agreement. The basic positions were sharply divided; while China wanted to create an extensive joint fishing zone comprising the waters outside the 12-mile territorial sea of both countries, the ROK proposed to apply the EEZ regime, with the joint fishing zone to be kept as small as possible. 27 While the negotiations continued, the ROK and China promulgated, respectively, the Exclusive Economic Zone Act in 1996 and the Exclusive Economic Zone and Continental Shelf Act in 1998. The Fisheries Agreement between China and the ROK was finally reached and initialed 227

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in late 1998, but it took a few more years before it was formally signed on August 3, 2000, and brought into force on June 30, 2001. 28 Similar to both the Japan-China Agreement and the Japan-ROK Agreement, the China-ROK Agreement does not establish EEZ boundaries between the two countries. Rather it lays down a provisional fisheries arrangement between them on the basis of the LOS Convention. Thus it is without prejudice to the final delimitation of the EEZ. 29 The main solution to fishery resources claims in the common waters between the two countries outside their territorial seas is also similar to the other two agreements, but with some innovation. The Sino-Korean Agreement has established two types of provisional zones. One, called the Provisional Waters (PW), is situated in the middle of the Yellow Sea. The northern limit of the PW is 37° north latitude and the southern limit is 32°11ƍ north latitude. The other, consisting of two Transitional Zones (TZs) of almost equal size with approximately 20 to 30 nautical miles in width, are located to the east and west adjacent to the PW, along the coasts of the two countries in the Yellow Sea. The coastal waters of each party beyond the territorial sea, around 50 to 60 nautical miles in width, up to the TZ on its own side belong to its EEZ. 30 The agreement has established a Sino-Korean Joint Fisheries Committee, with the power to decide on matters regarding conservation and management measures in the PW and the TZs. The Committee also makes recommendations on measures relating to mutual fishing access to the other party’s EEZ, including the fish species that may be caught, fishing quotas and fishing operation conditions. 31 In the PW and the TZs, the fishing vessels of the parties are subject to the jurisdiction of the flag State only. However, in cases where one party finds a fishing vessel of the other party engaged in fishing that violates the Joint Committee decisions in the PW or the TZs, the former may draw the attention of the vessel to the violation and notify the fact to the latter, and the latter must take necessary measures with regard to the vessel concerned and report to the former about the measure it has taken. The TZs are distinct from the PW in four points: (1) Each coastal party is expected to take necessary measures to implement EEZ fisheries regimes step by step in the TZ situated on its side, presumably on the basis of the Joint Committee decisions; 228


(2) Each party must notify a list of its nationals and fishing vessels fishing in the TZ situated on the other party’s side; (3) Each party must make efforts to reduce the degree of fishing activities of its nationals and fishing vessels in the TZ located on the other party’s side; and (4) Four years after the entry into force of the agreement, each of the TZs will become part of the area where each party can exercise its EEZ rights. In other words, as its name indicates, the TZ is to disappear and become part of the EEZ of the parties after June 30, 2005. In addition to the two clearly demarcated zones, there are two more special areas designated by the agreement and the accompanying Memorandum of Understanding. One is the so-called Current Fishing Pattern Zones, where the nationals and fishing vessels of both parties may continue their traditional fishing activities free from any control by the other party. Such zones are defined as “certain areas,” one of which is situated to the north of the PW, and the other to the south of the PW and the TZs, unless there is a special agreement to the contrary. Such special agreement is contained in the Memorandum of Understanding, which indicates that there are two areas where such free fishing patterns are not to be maintained. One of these areas is located on the Korean side to the north of the PW, and the other on the Chinese side to the south of the PW and the TZs. In these areas, the two parties shall respect the laws of the coastal parties and the two parties should take necessary measures to ensure that their respective nationals and fishing vessels observe such laws. The one in the north, called the Special Prohibition Zone, to which Korean laws apply, is situated near the Northern Limits Line 32 between South and North Korea. The exact location of the other, off the mouth of the Yangtse River on the Chinese side, was difficult to agree upon. In August 2000, the two parties reached a compromise whereby Korean fishermen would be allowed to fish in the area under a phase-out scheme within two years of the entry into force of the agreement on the condition that they could be allowed to fish again if the fishery stocks improve in the future. 33 The last point of difficulty was how far south the southern limits of the Current Fishing Pattern Zone should extend. The ROK argued that the limits should be drawn at 29°43ƍ north latitude, which is the limit of 200 nautical miles from Korea’s southernmost island of Mara-do. This means 229

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that the zone overlaps with a northern portion of the Provisional Measures Zone created by China and Japan, whose northern limit is set at 30°40ƍ north latitude. China and the ROK finally agreed to set the southern limits of their Current Fishing Pattern Zone at 29°40ƍ, with even larger overlap with the Provisional Measures Zone. 34 Overlapping Areas between the Three Agreements As discussed previously in this paper, there are three bilateral agreements for the conservation and management of fishery resources in the East China Sea. These agreements were negotiated bilaterally, without the involvement of third parties, including those states whose fishing vessels were engaged in fishing in the areas covered by them. Each agreement has established a common fishery zone or zones, permitting fishing by fishermen from the other party. Because of the fact that the three agreements were concluded independently from each other, they have created at least five overlapping zones in the East China Sea (See map below). They are the areas covered by the following: (a) The Intermediate Zone (created in 2000 by China and Japan) and the Southern Provisional Zone (created by Japan and the ROK); (b) The Intermediate Zone and the Transitional Waters on the Korean side (created by China and the ROK); (c) The Intermediate Zone and the Provisional Waters (created in by China and the ROK); (d) The Intermediate Zone and the Current Fishing Pattern Zone (created by China and the ROK); and (e) The Intermediate Zone and the ROK’s claim to EEZ. In addition, there appears to be another area of overlap between the Provisional Measures Zones (of China and Japan) and the Current Fishing Pattern Zone (of China and the ROK), whose limits are apparently not clearly defined. These overlapping areas are either causing or may cause complicated problems since the bilateral agreements contain no provision regarding fishing activities of the third parties, except for certain vague statements in some cases.

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More specifically, since area (a) is within the Intermediate Zone, Chinese vessels may continue to fish without license from Japan and could undermine the measures adopted by Japan and the ROK under the Japan-ROK agreement. In fact, Chinese officials say that the bilateral agreement encroaches on China’s sovereign rights over its EEZ in the border areas among the three countries, stating that China’s rights and interests in the EEZ and its fishing activities should not be subject to the limitation of that agreement. 35 Since area (b) is within the Intermediate Zone, Japanese vessels may fish without license from China, but could undermine the measures taken bilaterally by China and the ROK. It also appears that Japanese vessels need license from the ROK in order to fish in that area since it is presumably within its EEZ in relation to Japan. This situation will change in July 2005, when the Transitional Zone is to disappear and become part of the ROK’s EEZ. Once this happens, the legal situation will be the same as that of area (e). In area (c), Japanese vessels may fish without license from China under the Sino-Japanese agreement, but could undermine the measures taken jointly by China and the ROK. With respect to area (d), Japanese vessels may fish without license from China, but there are two potential conflicts with the ROK. First, the area in question is presumably part of the Current Fishing Pattern Zone under the Sino-ROK agreement, and thus Japanese vessels may injure the interests of the ROK. Secondly, the area could be at least part of the EEZ claimed by the ROK under the Japan-ROK agreement. The ROK challenged the legality of the northern limits line of the Provisional Measures Zone between China and Japan, stressing that Korea’s EEZ claims went further south beyond the line. 36 In fact, the ROK does not accept the Provisional Measures Zone allowing Japan and China to manage the resources bilaterally. 37 This position was taken before the Intermediate Zone was created even to the north of that line delimiting the northern limits of the Provisional Measures Zone. It may be assumed that the ROK’s claim with regard to part of the Intermediate Zone would be even stronger. Area (e) appears to be within the EEZ claimed by the ROK and also forms part of the Intermediate Zone, which was created by China and Japan after all other arrangements were in place. Thus Chinese and Japanese vessels may fish without license from the other country, but could be in conflict with the EEZ claim by the ROK. 232


CONCLUSIONS It is clear from this paper that the northern part of the East China Sea is a unique area of conflicting bilateral regimes on fisheries adopted one after another in the late 1990s and brought into force between 1999 and 2001, with a supplementary arrangement added in 2000 by China and Japan. The three bilateral agreements were concluded virtually independently from one another, and it appears few attempts have been made to solve the problems created by overlapping zones and other matters. The concern with such potential conflicts, however, was in the minds of the negotiators of these agreements. Certain unilateral “intentions” of governments are recorded for the parties to cooperate in order to avoid possible problems occurring in their relations with third countries. Thus, in the Agreed Minutes between Japan and the ROK, the latter government expressed its intention to cooperate with the government of Japan so that the fishing relationship Japan had established with a third country in any part of the East China Sea would not be undermined. The Japanese government expressed its intent to seek cooperation with the third country government so that ROK vessels could conduct fishing to a certain extent in certain parts of the East China Sea. The two governments would further consult through the Joint Committee on concrete measures to maintain a fishing order in that sea on the basis of the agreements on fisheries that the two countries would conclude with the third country. 38 In other words, the ROK government has made a moral commitment to respect the arrangements between Japan and China, while the Japanese government has made a similar commitment to cooperate with the Chinese government in allowing Korean vessels to fish in certain parts of the East China Sea. Similarly, both China and Japan expressed their intentions at the time of the adoption of the 1997 agreement that, in establishing fishing relations with the third country, they would respect the current fishing operations in the part of the East China Sea north of the Provisional Measures Zone, pay due consideration to the traditional fishing of the other country, and not damage unduly the interest of fishing of that other country in the said area.39 As explained above, this was the basis for the subsequent bilateral arrangement covering the Intermediate Zone. It may therefore be assumed that China is expected to respect the traditional fishing operations of Japan in areas (b), (c) and (d). At the same time, 233

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Japan is expected to respect the traditional fishing operations of China in area (a). The above-mentioned commitments, however, are all expressions of intent on the part of each of the three governments. It is hoped that the governments, particularly in the context of bilateral fishery commitments, will respect such commitments. . Nevertheless, no formal agreements have been reached to legally substantiate such commitments. As Zou has stressed, 40 it is highly desirable for the three governments concerned to negotiate a trilateral arrangement not only to settle fishery problems caused by the patchwork of overlapping areas but also to improve cooperation for a better conservation and management of fishery resources in the northern part of the East China Sea. Several arguments may be made in support of such an arrangement. First, the three bilateral agreements have all been concluded on the basis of, or in the spirit of, the LOS Convention. They are all characterized as “provisional arrangements of a practical nature” under article 74 of the Convention, concluded pending the agreement on the delimitation of the EEZs. Since the three countries have not been able to conclude bilateral delimitation agreements, it is even less likely for the three to agree on a single tri-junction. It is therefore most desirable for the three to agree on a common arrangement of a practical nature for the joint conservation and management of fishery resources. Secondly, the entire area concerned belongs to a large marine ecosystem, and many, if not all, of the fish stocks in the area migrate or mix without regard to the legally divided zones. Such “stocks or stocks of associated species occur within the EEZs of two or more coastal States,” as envisaged in article 63 of the LOS Convention. The states concerned are obliged under article 63, paragraph 1, to “seek, … to agree upon the measures necessary to coordinate and ensure the conservation and development of such stocks.” Thirdly, the area concerned forms part of a typical semi-enclosed sea, surrounded by Korea and China to the west, Korea and mainland Japan to the north, the chain of Japan’s islands to the east and Taiwan to the south. Under article 123 of the Convention, states bordering a semi-enclosed sea “should cooperate with each other in the exercise of their rights and in the performance of their duties under [the] Convention,” and they must “endeavour, … to coordinate the management, conservation, exploration and exploitation of the living resources of the sea.” (Article 123 (a)) 234


In addition, the FAO Code of Conduct for Responsible Fisheries, adopted by consensus, declares that where transboundary fish stocks are exploited by two or more states, the states concerned should cooperate to ensure effective conservation and management of the resources, and this should be achieved, where appropriate, through the establishment of a bilateral, subregional or regional fisheries organization or arrangement (Article 7.1.3). Such organization or arrangement should include representatives of states in whose jurisdictions the resources occur (Article 7.1.4). According to the Japanese Fishery Agency, there is a heavy concentration of fishing vessels in the area in question, and with the excessive fishing efforts it is of particular concern that the status of resources may deteriorate. 41 The Japanese government is well aware of the need to consider building an effective cooperative mechanism for the management of those stocks that are of common interest to the three countries in the South China Sea and other areas. 42 The three governments have recently initiated high-level talks among fisheries authorities, first in Indonesia in October 2003, then in the ROK on October 19, 2004. It is regrettable, however, that the three governments agreed merely “to develop the cooperative relationship in fisheries by implementing the agreements which they have concluded bilaterally,” and confirmed the increased cooperation among the research institutions of the three countries with a view of promoting sustainable utilization and conservation of fishery resources. 43 It is hoped that the three governments will start the necessary tripartite negotiations in accordance with the provisions of the LOS Convention and in pursuance of the spirit of the Code of Conduct, to which all of them have subscribed, before serious disputes occur and the state of fishery resources in the area further deteriorates.

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Notes 1

S. Sugiyama, “The Significance of the New Fisheries Agreement between Japan and the Republic of Korea,” Juristo, No. 1151 (March 1), 1999, 105, note 4 (in Japanese). 2 See, generally, M. Miyoshi, “New Japan-China Fisheries Agreement,” Japanese Annual of International Law, No. 41, 1998, 30-35. 3 See ibid., 33-34. 4 N. Kanehara and Y. Arima, “New Fishing Order: Japan’s New Agreements on Fisheries with the Republic of Korea and with the People’s Republic of China,” Japanese Annual of International Law, No. 42, 1999, 21. 5 Ibid., 20. 6 Agreement on Fisheries between Japan and the People’s Republic of China, Japanese Annual of International Law, No. 41, 1998, 122. 7 Kanehara and Arima, supra note 4, 22. 8 Ibid., 24. 9 Exchange of Letters concerning the area referred to in sub-paragraph (b) of Article 6 of the Agreement on Fisheries between Japan and the People’s Republic of China, November 11, 1997, Japanese Annual of International Law, No. 41, 1998, 128. 10 It is explained by Japanese government officials that the presence of the Senkaku Islands was not the reason for the two countries to have agreed on introducing no new measures in this area, since the purpose of the Agreement was to establish a fishing order and had no direct relationship with the territorial title of the Islands. Kanehara and Arima, supra note 4, 27. 11 Paragraph 2 of the Agreed Minutes of November 11, 1997, attached to the Agreement on Fisheries between Japan and the People’s Republic of China, Japanese Annual of International Law, No. 41, 1998, 127-128. 12 Masahiro Miyoshi, “Fisheries Problems between Japan and China,” in: C. Mizukami (ed.), The Law of the Sea Today (Tokyo, Yushindo, 2003) (In Japanese), p. 235. 13 Sun Pyo Kim, “The UN Convention on the Law of the Sea and New Fisheries Agreements North East Asia,” 27 Marine Policy, 2003, 98. 14 See M. Hayashi, “Japan: New Law of the Sea Legislation,” 12 International Journal of Marine and Coastal Law, 1997, 577. 15 Agreement on Fisheries between Japan and the Republic of Korea, Japanese Annual of International Law, No. 43, 2000, 253. 16 The preamble of the Agreement. 17 Agreement between Japan and the Republic of Korea concerning the Establishment of a Boundary in the Norhern Part of the Continental Shelf Adjacent to the Two Countries, signed at Seoul on January 30, 1974, entered into force on June 22, 1978. 18 Agreement between Japan and the Republic of Korea concerning Joint Development of the Southern Part of the Continental Shelf Adjacent to the Two Countries, signed at Seoul on January 30, 1974, entered into force on January 22, 1978. 19 Kanehara and Arima, supra note 4, 13-14. 20 Ibid., 14. 21 Annex I to the Agreement, paras. 2 and 3. 22 Ibid., para. 2 (2). 23 Ibid., para. 3 (2). 236

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Kanehara and Arima, supra note 4, 17. Ibid. 26 Kim, supra note 13, 100. 27 Ibid., 101. 28 Kim, supra note 13, 102. Joon-Suk Kang, “The United Nations Convention on the Law of the Sea and Fishery Relations between Korea, Japan and China,” 27 Marine Policy, 2003, 119-121. 29 Kim, supra note 13, 102. 30 Ibid., 102--104; Kang, supra note 28, 120. 31 Kim, ibid., 103; Kang, ibid., 120-121. 32 The Northern Limits Line, drawn between the North Korean coasts and five small islands held by the ROK, is disputed by the former as the border between the two countries. See J. van Dyke, M. Valencia and J. Garmendia, “The North/South Korea Boundary Dispute in the Yellow (West ) Sea,” 27 Marine Policy, 2003, 143. 33 Kim, supra note 13, 104; Kang, supra note 28, 120. 34 Kim, ibid., 105. 35 Zou Keyuan, “Sino-Japanese Joint Fishery Management in the East China Sea,” 27 Marine Policy, 2003, 137. 36 Kim, supra note 13, 105. 37 Kang, supra note 28, 122. 38 Kanehara and Arima, supra note 4, 19. 39 Agreed Minutes at the adoption of the China-Japan Fisheries Agreement, 1997, Japanese Annual of International Law, No. 41 (1998), 127-128. 40 Zou, supra note 35, 138. 41 http://www.jfa.maff.go.jp/kokusai/gaikouhakusyo.html#e (accessed January 30, 2005). 42 Ibid. 43 http://www.jfa.maff.go.jp/release/16.1021.01.htm (accessed January 30, 2005). Emphasis added. 25

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PANEL V: REGIONAL MARITIME ENFORCEMENT ______________________________________

Improving Comprehensive Management and the Efficiency of Law Enforcement at Sea Xu Baozheng

The ocean impacts a nation’s sovereignty, economy, and security. Thus, the rejuvenation of the Chinese nation depends on the vast surrounding ocean. All the following measures play an important role in the ocean management strategies of a nation: x x x

Obtaining a clear understanding of the maritime situation; Improving comprehensive maritime management and maritime law-enforcement; and Guarding the ocean space under the national jurisdiction according to the principles of both international and domestic laws. THE SITUATION AT SEA AROUND CHINA

The United Nations Convention on the Law of the Sea (UNCLOS), which was opened for signature in 1982 and became effective in 1994, marked the formation of a new international marine order. Since China ratified it on May 15, 1996, the marine situation around China has changed dramatically. An Extension of National Jurisdiction According to the traditional law of the sea, the national jurisdiction of China only extended to the territorial sea, an area of only 380,000 km2. The specific regime of the exclusive economic zone and the continental shelf set forth by UNCLOS has extended the national jurisdiction at sea.

Professor, China Marine Police Academy, Ningbo, China. 241

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Besides the territorial sea, it has added the ocean space and subsoil of the contiguous zone, the exclusive economic zone and the continental shelf, thus extending the area to 3,000,000 km2. This is equivalent to one-third of China’s territorial area on land. China has sovereignty over the territorial sea, the air space over it, its seabed and subsoil. In the contiguous zone, China exercises control rights over security, customs, fiscal affairs, immigration, and sanitation. In the exclusive economic zone and the continental shelf, China has sovereign rights to explore, exploit and utilize natural resources, as well as jurisdiction over artificial installations and the construction of such installations, marine scientific research and protection of the marine environment. Furthermore, China also has the rights to freedom of navigation on the high seas and to sharing of the resources on the international ocean floor. Defending Sovereignty Over the Sea Has Become More Pressing Realizing the importance of oceans to politics, military affairs, economic affairs and security, disputes about island sovereignty and delimitation of the territorial sea are occurring more frequently between China, North Korea, South Korea, Japan, Vietnam, Philippines, Malaysia, Brunei and Indonesia. According to a cursory estimate, the disputed ocean space covers more than 1,530,000 km2. In recent years, events obstructing our marine rights and interests have arisen in the exclusive economic zone and other disputed marine spaces. Our legal rights and interests, and even our nation’s sovereignty and pride are confronted with much opposition from abroad. For example, our islands are being invaded and occupied, our marine space is being dismembered, and our resources are being depredated. The scope of the situation is complex and international. New Marine Security Threats With further entrenchment of the principles, maritime public order situations are presented with a new series of problems. Though many cases of smuggling, illegal migration, trafficking in arms and in drugs 242

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have been discovered and handled, they never disappear; such cases are increasingly globalized and organized, becoming more sophisticated and sometimes violent. Maritime terrorism and pirate attacks are rampant in Southeast Asia, and their latent threats to our country are increasing. Maritime theft, racketeering, forced exchanges, and fights with weapons also arise from time to time. These also pose threats to the property and safety of the common people. Increasing Pressure on Marine Environment Protection Since China has opened its markets to the outside world, the types of maritime industries operating within the country have greatly increased. The scales of these industries have expanded rapidly, which has provided for new growth in the national economy. But along with it, ocean exploitation is in a state that is out-of-order, excessive, lawless and free of charge. This causes a lot of problems because as off-shore resources sharply decline, the water quality deteriorates, and disasters occur in high frequency.7KHParine environment is badly damaged, which severely threatens the existence and development of the nation. Present State of Affairs and Problems of Maritime Law Enforcement in China The functional departments responsible for the management of the sea in China include: the Ministry of Land and Resources, the Ministry of Communications, the Ministry of Agriculture, the Ministry of Public Security, Customs General Administration, State Environmental Protection Administration and the PLA Navy. Among them, the former five operate the maritime law-enforcement forces. However, the forces operate under separate agencies, with missions that overlap and orders that are given by different departments, all with low efficiency. This state of affairs is still a long way from being comprehensive management of the sea. 243

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Insufficient Defense For many years, because of a lack of comprehensive knowledge about the ocean, our maritime law-enforcement system has basically aimed at law-enforcement patrols in the territorial sea and the contiguous zone. As a result, in the territorial sea and the contiguous zone, the law-enforcement units are dispersed; but, in the area between the contiguous zone and the exclusive economic zone, law-enforcement could be strengthened. While some issues have yet to be noticed, others remain untouchable even though they have been noticed. Overlapping Missions and Low Efficiency At present, our maritime administration and law-enforcement agencies have been divided into many parts: x x x x

The Ministry of Communications is in charge of navigation safety, and maritime search and rescue; The Ministry of Agriculture in charge of fishery administration; The Ministry of Land and Resources is in charge of marine resources exploitation and environmental protection; The Ministry of Public Security is in charge of maritime public security, that is, stopping crimes at sea.

In addition, environmental units, sanitation units and the Army are also responsible for the management of marine affairs. Behind these rough divisions of responsibility, there are not only overlapping missions, but also gaps and omissions in law-enforcement coverage. Repeated Construction of Outdated Assets and Technology Maritime shareholders belong to different departments and do not report to each other, so there is a lack of uniform planning and 244


development of law-enforcement. Because of this, we cannot collect the resources of the whole country to build large cutters and handle important affairs. Dispersed investments and repeated construction in ships and assets, ports and coastlines, communications and navigation, maritime surveillance and control infrastructure result in each being weak and ineffective. There are no high-endurance garrison patrol cutters, multi-mission maritime rescue boats, and marine-comprehensive surveying boats offering good performance. Only some of the stakeholders are equipped with aircraft. This has an adverse effect on their action and response capability, and they cannot carry out effective management and control over the exclusive economic zone and the continental shelf. Difficulty in Carrying out Foreign Exchange and Cooperation According to the latest data, Japan and South Korea have renamed their maritime law-enforcement forces the Coast Guard; other countries such as Bangladesh, the Philippines, Vietnam and Malaysia have also reorganized their Marine Police into Coast Guards to enhance comprehensive management and uniform law-enforcement at sea. This was done to carry out reciprocal international exchange and cooperation abroad. In China, each maritime shareholder belongs to different departments, each with its own independent system of. There is always a need to put a group in charge of taking part in international exchange and cooperation. Thus, internally, it is difficult to coordinate and full of contradiction; externally, it’s hard to stand for the national interests. So it’s unfavorable to strengthen international cooperation in regards to marine affairs.

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BASIC COUNTERMEASURES Enhancing Ocean-Related Education to Strengthen the Nation’s Ocean Awareness Over a long period of time, our people have been used to life on land, with only a superficial awareness of the oceans’ importance, which has been the confinement factor of the strategy to “implement the exploration of the ocean.” Education is of vital and lasting importance. Time and tide wait for no one. We should seize the moment to spread propaganda and educate about the ocean, strengthening the nation’s ocean awareness. We should mobilize the whole of society, including professional and private associations, and individual volunteers to publicize the exploitation and protection of the ocean among the general public, both at home and abroad. We should deepen our understanding of the ocean for the following reasons: x x x x x

It is the basis upon which a nation exists and develops; It is an important arena of international political struggle; It is a treasury of resources; It is the most important domain for the development of advanced and new technologies; and It is the last space for the sustainable development of each country in the world.

We should raise awareness about our blue territory, foster national pride, and pursue the mission of building China into a marine power. Popularizing ocean knowledge and the ocean legal system should be brought into the national education plan. We should heighten the nation’s awareness of marine territory, marine economy, marine politics and marine defense, particularly among our children. We should attach great importance to the function of modern advanced media such as the internet, broadcast T.V. and give full play to them so that the common people far from the ocean can approach, know and guard the ocean, and that the 246


ocean can benefit our posterity all the better. Adjusting Ocean Development Strategies, Strengthening Maritime Laws and Regulations With fiercer competition at sea, we should try to improve and develop our ocean system. Firstly, sustainable development ocean strategies should be made. We should make overall, concrete and scientific plans for marine space, environment and resources, scientific investigation and research, exploitation and management, and should strengthen defense capability, in order to guide and standardize reasonable ocean exploitation and utilization. We should ensure the healthy and sustainable development of the ocean so that it can continuously provide us with food, energy, transportation and recreation, to serve the goal of building a well-off society in a comprehensive way. Secondly, the maritime legal system should be strengthened. Administration according to the law is the basic requirement for the performance of all levels of administration. Presently, our maritime legal system needs to be improved, especially in areas where maritime administrative laws and regulations are absent, thus resulting in an inability to effectively implement some management behaviors. In the near future, we should strengthen the legislation about the maintenance of the rights, interests, exploitation, and utilization to/of maritime resources, marine environmental protection, and maritime safety and security. We should issue a series of regulations within the basic marine laws framework to reduce behaviors that replace laws with professional management regulations. We should carry out the policy of managing the ocean with laws, and should enforce the laws for the interests of all people. Perfecting a Cooperation Mechanism and Giving Full Play to the Advantages of Law-Enforcement Comprehensive management of the ocean needs to target all maritime interests of the nation, through evolving strategies, policies, programs, 247

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divisions, legislation, enforcement and administrative supervision to make overall plans, implement, and coordinate management on the space, resources, environment, rights and interests of our maritime domain. By doing this our goals of improving the systematic efficacy of ocean exploitation and utilization, coordinating development of ocean economy, protecting the ocean environment and the nation’s ocean rights and interests will be realized. Most of the problems related to ocean management and law-enforcement at present are a result of the lack of a high-level coordinating mechanism and an authoritative national ocean management system to make maritime interests a priority. So an urgent task is to set up a high-level national coordinating mechanism, to change the decentralized management into a centralized one, to set up a correlative agency that is in charge of studying maritime policies and laws, to organize and make programs for ocean exploitation, to coordinate vital matters that go beyond departments and trades in action of ocean exploitation, and to deal with affairs involving foreign countries with relation to ocean exploitation and ocean investigation. Each maritime law-enforcement force, under an effective cooperating mechanism, should be active in the investigation and prosecution of illegal events on the sea and avoiding the phenomena of “all touch but none runs” that continues today. Over time, we can refer to the mode and experiences of the U.S. Coast Guard to build a modern unified maritime law-enforcement force named the China Coast Guard. Optimizing the Distribution of Resources to Improve the Technical Performance of Assets With ocean exploitation and utilization being aggressively pursued, the technical performance of the assets used in maritime management and law-enforcement should be improved accordingly. We must consolidate what we have to speed up the renewal of technical assets. Firstly, we must make full use of advanced technologies, such as satellite communication, remote sensing, telemetry and so on. By doing this, we will strengthen the all-weather monitoring and control system, be able to act in real-time, and 248


to improve early-warning capability at sea. Secondly, a comprehensive supervisory mechanism should be developed – one that includes command, control, communication, computer intelligence, surveillance and reconnaissance – to strengthen the comprehensive supervision of the exploitation and utilization of the halo bios, marine environment and resources, and of maritime security, and to improve emergency management. Thirdly, the work mode and work style should be ameliorated in order to give full play to the subjective initiatives of all law-enforcement personnel. The authority of maritime law-enforcement ships and persons should be assigned the right to manage all eventualities on the spot. Fourthly, we should improve the construct of law-enforcement assets. On the basis of overall assessment of maritime law-enforcement ships, we should plan in unison and redeploy, to build up a comprehensive law-enforcement fleet equipped with multi-mission cutter helicopter and land-based patrol aircraft, which possess large tonnage, high endurance and excellent performance, to implement aero-amphibious watch and control over the maritime domain, and to improve the quick response capability of law-enforcement. Expanding International Cooperation to Improve Mutual Trust Maintaining sustainable and healthy ocean development is the responsibility of every human. The correlative agency in the United Nations demands increased cooperation among the nations. In recent years, international cooperation around us has progressively increased, and the areas of cooperation are wider. For instance, consider the Northern Pacific Coast Guard Agencies Meeting, which was sparked by Japan. The main memberships included the U.S., Japan, Korea, Russia, Canada and China, and the cooperation between the parties has expanded from striking out at multinational crime and organizing combined marine search and rescue operations to protecting marine fisheries and the environment. After the events of September 11, 2001 marine operations against terrorism and marine safety have become critical. We should have an ample understanding that the security and stabilization of the periphery is the 249

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frontline to China’s security. So, we should take an active part in international cooperation in ocean investigation, ocean research, ocean resources exploitation, ocean environmental protection, ocean politics and military force. What’s more, we should build diplomatic channels, share information and intelligence, and strive for trust and support from the international community to create a good international environment for the strategy of “implementing ocean exploitation.”

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U.S. Maritime Law Enforcement Practices John E. Crowley, Jr. *

BACKGROUND I began in the Coast Guard as a Maritime Law Enforcement Boarding Officer in 1975. Since that time, I have seen the U.S. Coast Guard’s performance as the lead maritime law enforcement agency in the United States steadily improve. The best example of our improvement is in drug interdiction. I have memories of boarding vessels that had visible drugs on deck (depending on the master’s consent to go aboard), taking months to receive documentation of foreign flag vessels, and being required to explain before the courts that the accused intended to import drugs into the United States. Today, information is shared in order to detect drugs being moved in secret and by fast boats. We work with our legislature and the regional nations to establish jurisdiction, and we work with our Justice Department, our State Department, and our Defense Department to conduct successful prosecutions. Each year has become a record year. The Coast Guard conducts law enforcement operations to prevent illegal drug and migrant transit, to manage fisheries and other natural resources, and to ensure the security of our nation’s borders. For example, we have enjoyed a cooperative relationship with China to preserve fisheries resources. We are working hard to prevent maritime support of terrorism. HISTORY The Coast Guard has served as our nation’s federal Maritime Law Enforcement agency since 1790 when the Revenue Cutter Service was established. Treasury Secretary Alexander Hamilton promulgated the first “Regulations” in the form of a historic letter regarding the rights and freedoms guaranteed all Americans. An excerpt from this directive is as follows: *

Rear Admiral, Judge Advocate General, U.S. Coast Guard. 251

John E. Crowley, Jr.

While I recommend in the strongest terms to the respective officers, activity, vigilance, and firmness, I feel no less solicitude that their deportment may be marked with prudence, moderation and good temper. Upon these last qualities, not less than the former, must depend the success, usefulness and consequently continuance of the establishment in which they are included. . . . They will always keep in mind that their countrymen are freemen, and, as such, are impatient of everything that bears the least mark of domineering spirit. They will refrain, therefore, with the most guarded circumspection, from whatever has the semblance of haughtiness, rudeness, or insult. If obstacles occur, they will remember that they are under the particular protection of the laws and that they can meet with nothing disagreeable in the execution of their duty which these will not severely reprehend. This reflection, and a regard to the good of the service, will prevent at all times a spirit of irritation or resentment. They will endeavor to overcome difficulties, if any are experienced, by a cool and temperate perseverance in their duty -- by address and moderation, rather than by vehemence or violence. . . . It is not doubted that the instruction will be received, as it ought to be, and will have its due effect. And, that all may be apprised of what is expected you will communicate this part of your orders, particularly, to all your officers, and you will inculcate upon your men a correspondent disposition. While the foregoing language is dated, the principles expressed more than 200 years ago remain valid today. The significance of the rights and freedoms Secretary Hamilton addressed is underscored by his decision to devote his entire first letter to this topic. Mr. Hamilton could easily have chosen to emphasize the importance of stopping smuggling, which was literally siphoning away the lifeblood of the young nation because of lost revenues. Instead, he felt it more important to ensure the Revenue Cutter Service understood that enforcement of U.S. laws and treaties is second to 252

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protecting the constitutional rights of every individual entitled to such protection. The charge initially entrusted to the Revenue Cutter Service is as appropriate and challenging for today’s Coast Guard. Not only must the Constitution be conscientiously upheld, but also this priority must be accomplished while at the same time effectively detecting and apprehending those who would circumvent the laws of our nation for personal reasons and private gain. Thus, in the performance of their duties as federal law enforcement officers, Coast Guard personnel must remember they are public servants who are to be guided by the constitutional principles and protections designed to safeguard the freedoms of the American people. Alexander Hamilton directed us to observe the law, to work hard with trained personnel and to coordinate with all of the nation’s officers. These are the core tenets that I believe led to the improvements realized in drug interdiction, and in maritime law enforcement in general, and are what I will address during the remainder of this paper. THE LAW The Coast Guard must have the legal power to act and have specific statutory basis before taking law enforcement action. The Coast Guard may rely on one or more sources of authority to take law enforcement action. Title 14 of the U.S. Code in Section 89 is the principal source of Coast Guard enforcement authority (See Appendix I). It authorizes Coast Guard Officers to make inquiries, examinations, inspections, searches, seizures, and arrests in order to enforce U.S. laws. In the early 1980s we prosecuted drug traffickers under laws that prohibited the entry of illegal drugs into our country. However, the Coast Guard found it better to stop the movement of illegal drugs before they arrived at our maritime borders. To stop smugglers far from our shores we needed jurisdiction over both the act and the vessel. Using principles of international law we worked with Congress to revise the national law governing illegal drug importation. Congress passed the Maritime Drug Enforcement Act, section 1903 of Appendix to title 46 of the United States Code (See Appendix II). In addition to authority over U.S. vessels, Congress established jurisdiction for maritime transportation of illegal drugs, when authorized by the vessel’s flag State, and over vessels that were without nationality. 253


We pointed to the success of the 1981 Agreement with the United Kingdom that provided authority for the U.S. Coast Guard to board U.K. vessels and take law enforcement action if illegal drugs were found. We also pointed to the increasing practice of vessels claiming false or no registry, which caused operational delays at sea and jurisdiction problems at trial. Congress responded by defining which vessels could be subject to the jurisdiction of the United States and establishing a simplified process for proving communication with foreign governments with respect to authorization to board, consent to exercise jurisdiction, and denials of registry claims leading to the vessel being assimilated to stateless. In support of civil forfeiture proceedings, Congress provided examples of “intent” to engage in illicit drug trafficking by sea, such as the construction of secret compartments, the absence of equipment or people for the intended purpose of the vessel (such as no fishing gear on a fishing vessel), or operating the vessel without navigational lights. Treaties and international law lent additional support for this development of U.S. law. Article 108 of UNCLOS requires all nations to cooperate in the suppression of illicit traffic of narcotic drugs and psychotropic substances (See Appendix III). Article 17 of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances specifically targets “illicit traffic by sea.” It established a detailed framework for improving cooperation among nations, including the first detailed shipboarding regime in modern conventional international law. U.S. law reflects these international legal regimes. TRAINING The training of Coast Guard officers is a key to success and is consistent with the direction of Alexander Hamilton. Training ensures knowledge of the law, effectiveness of seizures and arrests, and safety of officers. Training is important for our credibility as well as performance. The U.S. Coast Guard has a training academy in Georgia that is located near our Department of Homeland Security’s Federal Law Enforcement Training Center. I assign a lawyer to the staff to assist in the development of training programs and teaching. The Coast Guard also holds Commanders responsible for continued training of their crews and for the approval of individual officers to carry firearms and to act as law enforcement personnel. The Coast Guard publishes a manual that provides all of the necessary information and guidance. Additionally, we deploy 254


Training Teams to address mission-specific laws and regulations, such as drug interdiction laws or regulations of Northern Pacific fisheries. A current and thorough knowledge of the law is becoming an increasingly difficult requirement for our officers. Coast Guard officers memorize their authority under Section 89 of Title 14, but that is not nearly enough. The Coast Guard also requires officers to have a basic understanding of international law. Concepts such as flag, port, and coastal State jurisdiction are important. One of the fundamental concepts of customary international law is the principle of exclusive flag State jurisdiction. This principle means that, except in certain limited cases, a vessel exercising freedom of navigation (FON) in international waters is subject only to the jurisdiction of the flag State. Such vessels are not subject to boarding, search, seizure or arrest by any nation other than their flag State, unless one of a limited number of jurisdictional exceptions applies. In cases where there is an applicable agreement that provides for boarding ships exercising freedom of navigation, Coast Guard policy is that law enforcement operations should be conducted under that agreement. The Coast Guard requires personnel to be familiar with and review the applicable agreements when there is a likelihood that operations will involve a person, vessel, or territory of a foreign nation with which the United States has entered into an agreement. New international agreements, such as the International Ship and Port Facility Security Code (ISPS), have been added to curriculums. In addition to mariner documents and vessel documentation, the Coast Guard now trains personnel to recognize vessel security certificates. Historically, the Coast Guard has been authorized to conduct law enforcement at sea. Today, it has received additional authority to conduct law enforcement and use force ashore at U.S. port facilities. Congress has specifically required that Coast Guard personnel exercising this authority or deploying to prevent or respond to acts of terrorism be “properly trained and qualified” to use this authority. Everyone wants to be successful. The Coast Guard must start with developing powers of observation in officers to note the condition of a subject vessel and its use. They must be trained to recognize instances when the condition and the use do not match what is recognized by mariners to be normal. (This is why all Coast Guard officers are trained as professional mariners as predicated to their law enforcement training.) Officers are trained to recognize a standard we refer to as “reasonable 255


suspicion.” Much of the success today in stopping drug trafficking is due to the ability to stop fast boats that refuse to stop when they are reasonably suspected to be carrying drugs. The Coast Guard has developed use of force procedures from helicopters and from fast patrol interceptors to force compliance with the order to stop. Certification requires accurate arms use, rigid adherence to warning procedures, and selective use of disabling fire. Training in various detection technologies is also provided. Finally, procedures for keeping evidence by statement or by photos or video are covered. Safety is always important. Safety might entail something as simple as proper entry into a confined space that may have toxic fumes. Being safe means climbing aboard a large merchant vessel on a Jacob’s ladder or jumping to a small and unstable boat. Safety also means identifying any safety hazards that may exist and ensuring the seaworthiness of the vessel being boarded. The Coast Guard teaches Basic Initial Safety Inspection as a quick and limited protective sweep of a vessel for boarding team safety. Since the basic safety inspection is conducted only for protective purposes and not to gather evidence, it is not based on either probable cause or reasonable suspicion. It is conducted upon initial boarding and is limited to identifying potential safety hazards and ensuring the vessel’s seaworthiness. But the essential ingredient to officer safety is training in the Coast Guard “use of force continuum.” This describes the range of force that may be used, not only to be effective, but also to defend the officer and crew. The continuum starts with “officer presence,” then moves to verbal commands, then to control techniques, then to aggressive response techniques, then to intermediate weapons, and finally to the use of deadly force. The Coast Guard requires practice in personal selfdefense measures. The Commanding Officer is required to test and certify that the officer has demonstrated judgment in the use of force. INTERAGENCY COOPERATION Although training and attention to the law are important, cooperation with other U.S. agencies and the international community has been instrumental in improving our performance since I began this work.

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Information Sharing The Coast Guard formed Joint Interagency Task Forces (JIATF) to provide better information collection and sharing among U.S. agencies. One task force headquartered in Key West, Florida, has responsibility for the Caribbean and the Eastern Pacific. There is also a task force headquartered in Honolulu, Hawaii, with responsibility for the Pacific. The Task Forces report to the Department of Defense, but Coast Guard Admirals are assigned as the officers in Command. In addition to Department of Defense and Coast Guard officers, the Task Forces include representatives from other law enforcement agencies such as the Drug Enforcement Agency and Customs. Liaison officers from cooperating nations are also invited to join. Together they are able to share operational law enforcement information and achieve domain awareness. Armed with valuable information, the Task Forces are responsible for conducting missions to detect and monitor illegal drug activity. As powerful as information technology has become, information sharing is more powerful. Operational Coordination The Department of Defense brought significant capability to the operational mission of drug interdiction. Additional aircraft were available as detection platforms, and additional vessels were available as boarding platforms. However, U.S. law prohibits defense forces from enforcing domestic law. Therefore, following the detection of an event, operational forces shift command to the Coast Guard. Law Enforcement detachments composed of specially trained Coast Guard personnel are assigned to Navy vessels to be responsible for the enforcement of domestic law. Naval vessels train and are certified to the level of Coast Guard units in supporting law enforcement actions. Detachments are also often assigned to partner nations on patrol in the area. Although it is a victory to stop vessels loaded with drugs, disrupting and dismantling drug trafficking organizations through successful prosecution is the ultimate goal. Prosecution requires the coordinated efforts of many U.S. agencies. The Justice Department is responsible for prosecuting criminal cases in U.S. courts. In 1986 I coordinated with the Justice Department by calling the prosecuting attorney and explaining that spotting a fishing vessel with no fishing gear was suspicious. Today, 257


prosecutions represent the work, expertise, and agreement of many partners. The State Department acquires authority from flag States for the Coast Guard to exercise jurisdiction, the Defense Department provides assets for detection, and the Justice Department puts the case together. Cooperation occurs in the field at Task Forces, and it occurs at Coast Guard Headquarters, where conference calls are held routinely to coordinate case decisions. Cooperation also occurs within the prosecution’s team. There is a Coast Guard attorney and investigative agent working for the main Department of Justice counter-drug task force prosecuting cases in Tampa, Florida. The result is a conviction with additional information obtained through the prosecution that starts the cycle over again at the JIATF. Regional Cooperation In 1981 there was a single agreement with the United Kingdom. Now there are 28 agreements in force, supporting U.S. drug, migrant, and proliferation security interdiction efforts. The agreements have grown from a simple declaration that provides jurisdiction to cooperation at many levels. The U.S. government has entered into multi-part bilateral maritime counter-drug agreements with the governments of most nations that border or have interests in the Caribbean and Eastern Pacific Ocean. The government’s frequent success in exercising these agreements has led to enhanced counter-drug program effectiveness in these regions. Although individual agreements are specifically tailored for each country, each generally contains all or some of the seven basic provisions. Some of the agreements are reciprocal, while others refer only to U.S. action in foreign waters or aboard foreign flag vessels. The seven basic provisions contained in these agreements are as follows: x x x x x x x

Ship Boarding Shiprider Pursuit Entry to Investigate Overflight Order to Land International Maritime Interdiction Support (IMIS) 258


The ship boarding provision provides standing authority or procedures for the Coast Guard to stop, board, and search vessels registered in that flag State. The vessels must be reasonably suspected of drug trafficking and be located seaward of any nation’s territorial sea. If drugs are found during such a search, the U.S. law enforcement asset will detain the vessel, cargo, and crew, preserving the flag State’s option to exercise or waive jurisdiction to prosecute the vessel and crew. Unless the agreement provides otherwise, the use of force up to and including warning shots and disabling fire to compel compliance with an order to stop is implied in the authorization to stop and board the vessel. The ship rider provision provides standing authority or procedures to embark foreign law enforcement personnel on Coast Guard cutters or on naval vessels with Coast Guard detachments aboard. The agreement empowers the ship rider to authorize the law enforcement vessel to board vessels registered in the same state as the ship rider, to take law enforcement action within that state’s waters, or to otherwise provide U.S. assistance to the ship rider in the exercise of his/her full authority. The pursuit and entry to investigate provisions authorizes U.S. law enforcement vessels, under very limited circumstances, to enter coastal State waters or airspace to take appropriate action against suspect vessels and aircraft. These provisions do not permit routine or random patrolling in coastal State waters or airspace. Rather, they permit entry, boarding, and search of suspect vessels in two specific situations as authorized by the coastal State under the terms of the agreement: x

x

To pursue suspect vessels or aircraft fleeing from international waters or airspace into coastal State waters or airspace when no coastal State asset or other unit with a ship rider is available to respond immediately; and To investigate suspect vessels or aircraft, located within the coastal State’s waters or airspace when no coastal State asset or other unit with a ship rider is available to respond immediately.

The overflight provision permits U.S. law enforcement aircraft to enter coastal State airspace, with appropriate notice to coastal State authorities, while conducting, or in support of, operations to suppress illicit drug traffic. Units shall follow required coastal State aviation safety procedures at all times. 259


The “order to land” provision provides standing authority and procedures for U.S. law enforcement assets to relay an order to land from the host nation to a suspect aircraft. Use of force by U.S. aircraft is not authorized to enforce such an order. The International Maritime Interdiction Support provision may include the following: x

x x

x

x

x

Transfer of third-party national detainees and a sample of contraband to an awaiting U.S. aircraft in the coastal State’s territory for further transfer to the U.S.; Expedited access to a dockside facility for law enforcement activities including searches of suspect vessels; Expedited access to a logistics capability facilitating support of vessels and expedited fly-in/fly-out procedures for transfer of personnel and equipment; Expedited procedures for the hiring of contractors, security, stevedores, crane, and lightering services as necessary, for offloading cargo to support completion of the dockside boarding of suspect vessels; A framework pertaining to disposition of seized assets, including storage of vessels in the coastal State, transfer of forfeited assets or equitable sharing of proceeds of their sale as a consequence of any operations undertaken pursuant to the agreement; and The parties of the agreement and the flag nation of the suspect vessel (if different) will decide jurisdiction over suspect vessels on a case-by-case basis before entry into any territorial seas.

The Coast Guard also coordinates its fisheries law enforcement operations with other nations. The purpose of the Coast Guard’s fisheries law enforcement program is to ensure compliance with federal fisheries laws, regulations and international agreements. The objectives that support this goal are as follows: x x x

Preventing illegal encroachment of the U.S. EEZ and territorial waters by foreign fishing vessels; Ensuring compliance with domestic living marine resource laws and regulations by U.S. fishers; and Ensuring compliance with international living marine resource agreements. 260


The fisheries law enforcement mission involves Coast Guard enforcement of regulations written by another agency. Enforcement priorities and violations are determined in consultation with other agencies. Because of these characteristics, it is essential that agencies develop appropriate relationships in order to set priorities, coordinate efforts and ensure consensus with respect to certain law enforcement actions. Treaties and international law lend additional support for the development of U.S. fisheries laws and application of those laws extraterritorially. Articles 55 through 75 of UNCLOS authorize coastal nations to establish an EEZ to protect natural resources. Article 118 of UNCLOS calls upon all nations to cooperate in the conservation of living marine resources. The 1991 U.N. Moratorium Prohibiting the Use of High Seas Driftnets calls for a worldwide ban on all large-scale driftnet fishing on the high seas. These international legal regimes are reflected in the U.S. statutory framework for this area. In implementing the U.N. Moratorium Prohibiting the Use of High Seas Driftnets, China and the United States concluded a memorandum of understanding for ship rider operations. This understanding is a great example of the success of bilateral agreements outside the context of drug interdiction. This agreement provides for cooperative visit and verification procedures. It also establishes conditions for ship riders of one nation to be used on the other’s vessel. It is being used and has been extended because of its phenomenal success. It is now the foundation for enhanced bilateral training between the fisheries law enforcement authorities of both Parties.(See Appendix III. C). RESULTS Mission commanders define success by the number of migrants intercepted, drugs seized, and intentional pollution cases prosecuted. These are valid measurements. However, I see other measures of success. The United States and the international community have better defined illicit conduct that will not be tolerated. Concurrence in operating procedures among various agencies in the United States, the various nations in regional spheres, and the international community has formed agreed terms of reference and has engendered trust among many parties. The trust in our collective adherence to the rule of law has resulted in 261


increased interceptions, seizures, and prosecutions, which in turn have undermined the transnational criminal activity that threatens the sovereignty of every nation.

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APPENDIX I. U.S. COAST GUARD MARITIME LAW ENFORCEMENT AUTHORITY Law Enforcement – 14 USC § 89 (2000) (a) The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship's documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized. (b) The officers of the Coast Guard insofar as they are engaged, pursuant to the authority contained in this section, in enforcing any law of the United States shall: (1) be deemed to be acting as agents of the particular executive department or independent establishment charged with the administration of the particular law; and (2) be subject to all the rules and regulations promulgated by such department or independent establishment with respect to the enforcement of that law. (c) The provisions of this section are in addition to any powers conferred by law upon such officers, and not in limitation of any powers conferred by law upon such officers, or any other officers of the United States. 263


APPENDIX II. U.S. MARITIME DRUG LAW ENFORCEMENT ACT Manufacture, distribution, or possession with intent to manufacture or distribute, a controlled substance on board vessels – 46 USC § App. 1903 (2003) (a) It is unlawful for any person on board a vessel of the United States, or on board a vessel subject to the jurisdiction of the United States, or who is a citizen of the United States or a resident alien of the United States on board any vessel, to knowingly or intentionally manufacture or distribute, or to possess with intent to manufacture or distribute, a controlled substance. (b) For purposes of this section, a "vessel of the United States" means: (1) A vessel documented under chapter 121 of title 46, United States Code, or a vessel numbered as provided in chapter 123 of that title; (2) A vessel owned in whole or part by-(A)The United States or a territory, commonwealth, or possession of the United States; (B) A State or political subdivision thereof; (C) A citizen or national of the United States; or (D) A corporation created under the laws of the United States or any State, the District of Columbia, or any territory, commonwealth, or possession of the United States; Unless the vessel has been granted the nationality of a foreign nation in accordance with article 5 of the 1958 Convention on the High Seas and a claim of nationality or registry for the vessel is made by the master or individual in charge at the time of the enforcement action by an officer or employee of the United States authorized to enforce applicable provisions of United States law; and (3) A vessel that was once documented under the laws of the United States and, in violation of the laws of the United States, was either sold to a person not a citizen of the United States or placed under foreign registry or a foreign flag, whether or not the vessel has been granted the nationality of a foreign nation. (c) (1) For purposes of this section, a “vessel subject to the jurisdiction of the United States” includes: 264


(A) A vessel without nationality; (B) A vessel assimilated to a vessel without nationality, in accordance with paragraph (2) of article 6 of the 1958 Convention on the High Seas; (C) A vessel registered in a foreign nation where the flag nation has consented or waived objection to the enforcement of United States law by the United States; (D) A vessel located within the customs waters of the United States; (E) A vessel located in the territorial waters of another nation, where the nation consents to the enforcement of United States law by the United States; and (F) A vessel located in the contiguous zone of the United States, as defined in Presidential Proclamation 7219 of September 2, 1999, and (i) is entering the United States, (ii) has departed the United States, or (iii) is a hovering vessel as defined in section 401 of the Tariff Act of 1930 (19 U.S.C. 1401). Consent or waiver of objection by a foreign nation to the enforcement of United States law by the United States under subparagraph (C) or (E) of this paragraph may be obtained by radio, telephone, or similar oral or electronic means, and is conclusively proved by certification of the Secretary of State or the Secretary's designee. (2) For purposes of this section, a “vessel without nationality” includes: (A) A vessel aboard which the master or person in charge makes a claim of registry, which claim is denied by the flag nation whose registry is claimed; (B) Any vessel aboard which the master or person in charge fails, upon request of an officer of the United States empowered to enforce applicable provisions of United States law, to make a claim of nationality or registry for that vessel; and (C) A vessel aboard which the master or person in charge makes a claim of registry and the claimed nation of registry does not affirmatively and unequivocally assert that the vessel is of its nationality. A claim of registry under subparagraph (A) or (C) may be verified or denied by radio, telephone, or similar oral or electronic means. The denial of such claim of registry by the claimed flag nation is conclusively proved by certification of the Secretary of State or the Secretary's designee. 265


(3) For purposes of this section, a claim of nationality or registry only includes: (A) Possession on board the vessel and production of documents evidencing the vessel's nationality in accordance with article 5 of the 1958 Convention on the High Seas; (B) Flying its flag nation's ensign or flag; or (C) A verbal claim of nationality or registry by the master or person in charge of the vessel. (d) Any person charged with a violation of this section shall not have standing to raise the claim of failure to comply with international law as a basis for a defense. A claim of failure to comply with international law in the enforcement of this Act may be invoked solely by a foreign nation, and a failure to comply with international law shall not divest a court of jurisdiction or otherwise constitute a defense to any proceeding under this Act. (e) This section does not apply to a common or contract carrier or an employee thereof, who possesses or distributes a controlled substance in the lawful and usual course of the carrier's business or to a public vessel of the United States, or any person on board such a vessel who possesses or distributes a controlled substance in the lawful course of such person's duties, if the controlled substance is a part of the cargo entered in the vessel's manifest and is intended to be lawfully imported into the country of destination for scientific, medical, or other legitimate purposes. It shall not be necessary for the United States to negative the exception set forth in this subsection in any complaint, information, indictment, or other pleading or in any trial or other proceeding. The burden of going forward with the evidence with respect to this exception is upon the person claiming its benefit. (f) Any person who violates this section shall be tried in the United States district court at the point of entry where that person enters the United States, or in the United States District Court of the District of Columbia. Jurisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense. All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge. 266


(g) (1) Any person who commits an offense defined in this section shall be punished in accordance with the penalties set forth in section 1010 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 960). (2) Notwithstanding paragraph (1) of this subsection, any person convicted of an offense under this Act shall be punished in accordance with the penalties set forth in section 1012 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 962) if such offense is a second or subsequent offense as defined in section 1012(b) of that Act. (h) This section is intended to reach acts of possession, manufacture, or distribution committed outside the territorial jurisdiction of the United States. (i) The definitions in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802) apply to terms used in this Act. (j) Any person who attempts or conspires to commit any offense defined in this Act shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

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APPENDIX III. SELECTED INTERNATIONAL LEGAL INSTRUMENTS (A) 1982 United Nations Convention on the Law of the Sea (Part VII) Article 108 ILLICIT TRAFFIC IN NARCOTIC DRUGS OR PSYCHOTROPIC SUBSTANCES 1. All States shall co-operate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the co-operation of other States to suppress such traffic. (B) U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 Preamble The Parties to this Convention, Deeply concerned by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings and adversely affect the economic, cultural and political foundations of society, Deeply concerned also by the steadily increasing inroads into various social groups made by illicit traffic in narcotic drugs and psychotropic substances, and particularly by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances, which entails a danger of incalculable gravity,

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Recognizing the links between illicit traffic and other related organized criminal activities which undermine the legitimate economies and threaten the stability, security and sovereignty of States, Recognizing also that illicit traffic is an international criminal activity, the suppression of which demands urgent attention and the highest priority, Aware that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all its levels, Determined to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing, Desiring to eliminate the root causes of the problem of abuse of narcotic drugs and psychotropic substances, including the illicit demand for such drugs and substances and the enormous profits derived from illicit traffic, Considering that measures are necessary to monitor certain substances, including precursors, chemicals and solvents, which are used in the manufacture of narcotic drugs and psychotropic substances, the ready availability of which has led to an increase in the clandestine manufacture of such drugs and substances, Determined to improve international co-operation in the suppression of illicit traffic by sea, Recognizing that eradication of illicit traffic is a collective responsibility of all States and that, to that end, co-ordinated action within the framework of international co-operation is necessary, Acknowledging the competence of the United Nations in the field of control of narcotic drugs and psychotropic substances and desirous that the international organs concerned with such control should be within the framework of that Organization,

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Reaffirming the guiding principles of existing treaties in the field of narcotic drugs and psychotropic substances and the system of control which they embody, Recognizing the need to reinforce and supplement the measures provided in the Single Convention on Narcotic Drugs, 1961, that Convention as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs, 1961, and the 1971 Convention on Psychotropic Substances, in order to counter the magnitude and extent of illicit traffic and its grave consequences, Recognizing also the importance of strengthening and enhancing effective legal means for international co-operation in criminal matters for suppressing the international criminal activities of illicit traffic, Desiring to conclude a comprehensive, effective and operative international convention that is directed specifically against illicit traffic and that considers the various aspects of the problem as a whole, in particular those aspects not envisaged in the existing treaties in the field of narcotic drugs and psychotropic substances, Hereby agree as follows: Article 17 ILLICIT TRAFFIC BY SEA 1. The Parties shall co-operate to the fullest extent possible to suppress illicit traffic by sea, in conformity with the international law of the sea. 2. A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose. The Parties so requested shall render such assistance within the means available to them. 3. A Party which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another Party is engaged in illicit traffic may so notify the flag State, request 270


confirmation of registry and, if confirmed, request authorization from the flag State to take appropriate measures in regard to that vessel. 4. In accordance with paragraph 3 or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties, the flag State may authorize the requesting State to, inter alia: (a) Board the vessel; (b) Search the vessel; (c) If evidence of involvement in illicit traffic is found, take appropriate action with respect to the vessel, persons and cargo on board. 5. Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State. 6. The flag State may, consistent with its obligations in paragraph 1 of this article, subject its authorization to conditions to be mutually agreed between it and the requesting Party, including conditions relating to responsibility. 7. For the purposes of paragraphs 3 and 4 of this article, a Party shall respond expeditiously to a request from another Party to determine whether a vessel that is flying its flag is entitled to do so, and to requests for authorization made pursuant to paragraph 3. At the time of becoming a Party to this Convention, each Party shall designate an authority or, when necessary, authorities to receive and respond to such requests. Such designation shall be notified through the Secretary-General to all other Parties within one month of the designation. 8. A Party which has taken any action in accordance with this article shall promptly inform the flag State concerned of the results of that action. 9. The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out, or to enhance the effectiveness of, the provisions of this article. 10. Action pursuant to paragraph 4 of this article shall be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. 271


11. Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal States in accordance with the international law of the sea. (C) Memorandum of Understanding Between the government of The United States of America and the Government of the People’s Republic of China on Effective Cooperation and Implementation of United Nations General Assembly Resolution 46/215 of December 20, 1991, and allied diplomatic notes. The Representatives of the Government of the United States of America and the Government of the People's Republic of China, Taking into account, in particular the necessity for effective cooperation and implementation of United Nations General Assembly Resolution 46/215 of December 20, 1991, entitled ”Large-Scale Pelagic Driftnet Fishing And its Impact on the Living Marine Resources of the World's Oceans and Seas” (“UNGA 46/215”), Have agreed to the following temporary Memorandum of Understanding (“Memorandum”): 1. Officials of one Party upon encountering on the high sea of the North Pacific Ocean a fishing vessel flying the others national flag, or claiming to be registered with the authorities of the other Party, that is found using or is equipped for use of a large-scale pelagic driftnet inconsistent with the provisions of UNGA 46/215, shall transmit to the appropriate officials of the other Party a request to conduct a cooperative visit and verification of said vessel. 2. A qualified official of each Party shall be entitled to be on board each high seas driftnet enforcement vessel of the other Party. Each such official shall embark and disembark the vessel at times and locations so as not to interfere with the schedule o£ the vessel. 3. If the authorized officials of the other Party are not able to join in the cooperative visit and verification, they shall so inform the requesting Party immediately and shall cooperate with and assist the authorized 272


officials of the requesting party in the conduct of the visit and verification. When the on-scene authorized officials of the requesting Party are informed that authorized officials of the other Party are not able to join in the visit and verification, if the authorized officials of the other Party do not so inform the requesting Party immediately, the authorized officials of the requesting Party shall initiate the visit and verification. 4. If the authorized officials of the other Party arrive within a reasonable span of time after receiving a transmission requesting a cooperative visit and verification of a fishing vessel found using or equipped for use of a large-scale Pelagic driftnet on the high seas of the North Pacific Ocean, the authorized officials of the two Parties shall jointly visit and verify the fishing vessel. 5. The visiting officials authorized may verify the fishing vessel's f1ag and registry, and may examine the vessel except for crew living areas and engineering spaces, together with its equipment and records, fishing gear, catch and logs, to determine whether the vessel has engaged in activities inconsistent with the provisions of UNGA 46/215. 6. At the time this Memorandum enters into force, each Party shall provide the other Party with examples of credentials that its authorized officials shall present, upon request to the captain of a visited vessel. 7. The results of visit and verification undertaken by the requesting Party on the high seas of the North Pacific Ocean with respect to vessels of the other Party found using or equipped for use of a large-scale pelagic driftnet inconsistent with the provisions of UNGA 46/215, including the evidence of any activities inconsistent with the provisions of UNGA 46/215, shall be provided to the appropriate officials of the other Party for further action. 8. If the results of the visit proved that the visited fishing vessel engaged in activities inconsistent with the provisions of UNGA 46/215 and that it was registered with the authorities of any Party to this Memorandum, the authorities of that Party shall take enforcement action with respect to the fishing vessel. In taking such enforcement action, that Party shall receive and take into consideration any evidence of activities 273


inconsistent with the provisions of UNGA 46/215 provided by the other Party and shall inform the other party of the enforcement actions taken. 9. If it is determined that the visited fishing vessel has engaged in activities inconsistent with the provisions of UNGA 46/215, and that the vessel was not registered with the authorities of either Party, the party that initiated the visit and verification may take enforcement action with respect to that vessel in accordance with applicable rules of international law and practice, and shall inform the other Party of any such action taken. 10. The authorized officials conducting the visit and verification shall conduct their operations in accordance with applicable rules of international law and practice so that the fishing vessels suffer the minimum interference and inconvenience. 11. Any problem, which occurs in the implementation of this Memorandum, shall be solved through consultation by the two Parties. 12. This Memorandum will enter into force on the date of signature and shall remain in force for one year from that date. This memorandum may be extended until a certain date agreed by the two Parties. DONE AT Washington, in duplicate, this third day of December 1993, in the English and Chinese languages, each version being equally authentic. FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA:

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THE EMBASSY OF THE PEOPLE'S REPUBLIC OF CHINA 2300 Connecticut Avenue, N.W. Washington, D.C. 20008

November 30, 1993 Ambassador David A. Colson Deputy Assistant Secretary for Oceans Bureau for Oceans & International Environmental Scientific Affairs U.S. Department of State, Washington, D.C. 20520 Dear Mr. Ambassador: Thank you for your letter of November 26, 1993, regarding the “Memorandum of Understanding Between the Government of the United States of America and the Government of the People's Republic of China on Effective Cooperation and Implementation of United Nations General Assembly Resolution 46/215 of December 20, 1991.” The People's Republic of China welcomes the opportunity to place qualified officials of the People’s Republic of China on board high seas driftnet fishing enforcement vessels of the United States. In this regard, I am honoured to accept, on behalf of the Government of the People's Republic of China, the list of Ship Rider Conditions proposed in the attachment to your letter.

Sincerely, //s// Li Daoyu, Ambassador E. & P.

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November 26, 1993 Ambassador Li Daoyu Embassy of the People's Republic of China 2300 Connecticut Avenue, N.W. Washington, D.C. 20008

Dear Mr. Ambassador: With regard to the implementation of the “Memorandum of Understanding Between the Government of the United States of America and the Government of the People's Republic of China on Effective Cooperation and Implementation of United Nations General Assembly Resolution 96/215 of December 20. 2991,” I am pleased to inform you that the United States would welcome qualified officials of the People's Republic of China to ride on board high seas driftnet fishing enforcement vessels of the United States, in accordance with the ship rider conditions contained in the attachment to this letter. These conditions shall become effective upon the receipt of a letter in response accepting these conditions on behalf of the Government of the People's Republic of China.

Sincerely, //s// Ambassador David A. Colson Deputy Assistant Secretary for Oceans Attachment United States - People's Republic of China Driftnet Fishing Memorandum of Understanding Ship Rider Conditions Fluent in English and Chinese (either Mandarin or any other dialect appropriate for fishermen); 276


Fisheries law enforcement official; Physically able to perform arduous duty at sea, including ability to climb and descend boarding ladders; Knowledgeable of People's Republic of China vessel registry documents, fishing licenses and other relevant official papers; Proficient in collecting and preparing evidence and documentation needed by People's Republic of China authorities to facilitate prosecution for fishing violations; Authority to issue decisions on violations of People's Republic of China fisheries laws and regulations; Ship riders from the People's Republic of China do not need to carry weapons. Conditions which shall be provided to all ship riders: Transportation expenses for the round trip from one country's departure point to the vessel embarkation point; Expenses for lodging, meals and items of essential daily need on the ship of the other country; Ship riders will be provided per diem upon their arrival in the host country. Advance amounts will be subtracted from reimbursement vouchers; Ship riders will be provided routine, customary and gratis medical attention on the same basis as other members of the vessel crew are entitled; Right to enjoy the same hours of rest or leave, recreation, and to communications privileges as working personnel of the other country who perform the same type of work;

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When the ship rider communicates with the appropriate organizations and reports on boarding and investigation results, the other party shall provide necessary assistance. The Ministry of Foreign Affairs of the People's Republic of China presents its compliments to the Embassy of the United States of America and has the honor to Acknowledge the receipt of the note from the Embassy dated August 24, 1998, which contains the following: “The Embassy of the United States of America presents its compliments to the Ministry of Foreign Affairs of the People's Republic of China and has the honor to refer to the memorandum of Understanding, signed at Washington December 3rd, 1993, as extended, between the government of the United States of America and the government of the People's Republic of China on Effective Cooperation and Implementation of the United Nations General Assembly Resolution 46/215 of December 31, 1991. The United States of America believes that the Memorandum of Understanding promotes the cooperation between the United States of America and the People's Republic of China on handling the illegal driftnets operations in the North Pacific Ocean. The Embassy, on behalf of the government of the United States of America, has the honor to propose that the Memorandum of Understanding which expired on December 31, 1998, be extended for a three-year period, to December 2001. If this proposal is acceptable to the government of the People's Republic of China, the Embassy further proposes that this note and the Ministry of Foreign Affairs' agreed note shall constitute an agreement between two governments, which shall enter into force on the date of the Ministry of Foreign Affairs' note in reply.” The Ministry of Foreign Affairs, on behalf of the government of People's Republic of China, confirms that it agrees to what has contained in the above note. The Ministry of Foreign Affairs of the People's Republic of China takes this opportunity to renew to the Embassy of the United States the assurance of its highest Consideration. Ministry of Foreign Affairs of the People's Republic of China Beijing, December 2nd, 1998. 278

Japan’s Role on Regional Security and Order Maintenance as Public Property Initiative for the Regional Security & Order Coalition Hideaki Kaneda *

SUMMARY 1. Security Environment of the Asia Pacific Region … its state and prospects. The region presents wider varieties and complexities unlike those of the Europe, and faces various traditional and untraditional threats for security and order. 2. Responsibilities and obligations of Japan in regional security and order maintenance with sympathizers as public property … needs and roles. a. Raised awareness of the needs of regional security and order maintenance. For regional “security and order,” how relevant countries take cooperative measures would be the urgent issues in terms of regional peace, stability and development. b. Regional security and order maintenance by Japan as “public property.” Japan has already been displaying its will and ability to act as regional public property on “security and order” maintenance, and would be welcomed to take the initiatives on regional “security and order” maintenance with sympathizers as public property, starting to share “common concerns” with others. c. “Maritime order” maintenance as the best regional issue of common concerns. “Maritime order” maintenance could be the most suitable regional “issue of common concerns,” and there will be no reason for regional countries to refuse cooperation on “maritime order” maintenance. 3. Developing concrete actions and the issues of future establishment of “Regional Security & Order Coalition.” The most appropriate approach will be to start “voluntarily” the cooperative activities based on “the spirit of serving the region” by those countries who have will and ability, then *

VADM (Ret); Director, Okazaki Institute. 279

Hideaki Kaneda

starting with “regional order coalition,” which would be the best way to step up to “regional security and order coalition,” aiming a goal of “regional united nations.” SECURITY ENVIRONMENT OF THE ASIA-PACIFIC REGION – ITS STATE AND PROSPECTS

The Asia-Pacific region encompasses a vast area consisted of the Asian Continent, islands, and oceans, which embraces large and major part of global population, all major religions, and many countries made up of many different ethnic groups. Their political regimes vary from democracies to military dictatorships, communism, and kingdoms, all with different historical backgrounds. Their views on security issue differ widely. Some countries view their domestic anti-government movement greater problem to national security than neighboring countries, while others perceive threats from different sources. Undoubtedly, the AsiaPacific region presents wider varieties and complexities totally unlike those of the European region. The region has experienced a substantial change in diplomatic relations since 1990’s, as many contentious bilateral relationships of the past improved significantly or normalized. In recent years, regional countries seem to further deepen and expand mutual dependencies, which have enhanced to the development and strengthening of bilateral and multilateral coalition and cooperative relationships, especially in economic aspect, including the proposal of free trade agreements (FTA). In this region, economic situation has a great influence over the security issues. Backed by their drastic economic growth, many regional countries have been able to develop and modernize their military forces by increasing defense budgets and introducing new equipment. In particular, China has intensively promoted the reform and opening policies to introduce a socialistic market economy, and as a result continues to expand its role as a major player of this region in politics and economics, while attaining the status of a major military presence that is worthy of attentions from other countries. 1 On the other hand, the financial and currency crisis of this region in 1997 made the region’s smooth economic development stagnant, and not a few countries experienced turmoil not only economically but also politically. Despite the basic trend of economic recovery, some regional countries are still in the process of improving governance capability in 280

Japan’s Role on Regional Security and Order Maintenance

order to grow out of political and social instability brought by the economic crisis. The expanding gap between poor and rich in this region, especially, is a huge negative factor for the stabilities of each country and between regional countries, leading countries to conflicts, and providing hotbeds for terrorists. This issue is particularly important for South East Asian countries. This is the region where many instability elements exist such as separation and independence movements and religious radicals. Many years of economic downturn and diminishing governance capability of governments because of it have resulted in the rise of international terrorist activities in this region, such as the terror bomb attacks of Indonesian Bali Island in October 2002 and of American hotels in Jakarta in August 2003. In addition, the region has seen increasing activities of pirates with possible links to international terrorist organizations mainly along internationally prominent Sea Lines of Communication, threatening the safety of maritime transportation. 2 Moreover, the Asia-Pacific region holds many historical problems of territorial disputes and unification issues. Military confrontation at the Korean Peninsula still lingers. The issue of China and Taiwan, which China considers their “domestic issue,” is, in view of relevant countries, a security issue that may threaten the peace and stability of the region. Furthermore, China’s forcible advancement to oceans has led to confrontations and disputes over territorial rights and ocean interests with ASEAN countries in the case of the South China Sea, and with Japan in the case of the East China Sea. 3 In addition, there is a rise of concerns in international community over the nuclear issue of North Korea since 2002. Due to their recent statement of intention leaving from Six-Party Talks and possession of nuclear weapons arsenals, combined with development and actual deployment of the ballistic missiles in North Korea, the issue has become a serious problem for the international community, not only in view of serious effects on security in the East Asia, but also in terms of non-proliferation of the weapons of mass destruction in the whole world. There are further concerns over North Korea that needs to be resolved under the cooperation of international community, such as spy ship activities. 4 In this situation, the quake off the coast of Sumatra and resultant Tsunami at the end of last year brought colossal damages unprecedented in their scope and scale. In the future, we need not only to provide rescue, relief, and recovery efforts to victims, but also to quickly introduce and 281

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utilize broader safety system to minimize disaster damages, by establishing an early warning and transmission system for Tsunami threats, and developing and executing evacuation manuals. Thus, concerted actions and cooperation of the regional community for security and order are required strongly. RESPONSIBILITIES AND OBLIGATIONS OF JAPAN IN REGIONAL SECURITY AND ORDER MAINTENANCE WITH SYMPATHIZERS AS PUBLIC PROPERTY – NEEDS AND ROLES Raised Awareness of the Needs of Regional Security and Order Maintenance As seen above, the Asia Pacific region is considered as a region prone to military conflicts, since it makes a part of “Arc of Instability” ranging from the Middle East to North East Asia of the Eurasian Continent. Under such strategic environment, the bilateral and trilateral alliances and friendly relationships centered on the U.S. continue to play a certain role as the foundation of peace and stability in the region. However, from the viewpoint of U.S. global deployment of its forces, the presence of U.S. forces in this region is not necessarily sufficient compared with other key areas, considering the region’s vast geographical extents and the instability in security. Therefore, U.S. forces in the region are attempting to increase their varied presences, whether permanent or temporal, in Central Asia, Indian Ocean and South East Asia through the fight against international terrorism, despite the considerable burden of deployment to Iraq to stabilize the situation there. 5 On the other hand, the rising influence of China in this region has led to subtlety in U.S. diplomacy toward ASEAN countries, while the U.S.led fight against international terrorism has provoked complex reactions from regional countries and nurtured the atmosphere among those that would not necessarily give unconditional welcome to the presence of U.S. forces there. Regional security alliance organizations other than those involving U.S. forces include “Five Power Defense Agreement” (entered into force in 1971) among Malaysia, Singapore, the United Kingdom, New Zealand, and Australia, which has demonstrated its presence through periodical joint exercises. In recent years, the region has seen various activities of the United Nations as well as regional own activities. In addition, the 282


opportunities for bilateral military exchanges among regional countries are increasing, while the efforts to maintain multilateral dialogue on regional “security and order” have been established, such as those seen in ASEAN Summit, ARF or ASEAN+3. Among these efforts, ARF is dominating the role of a key forum for dialogue on “security and order” to promote the nurturing of confidence throughout the region, and recently their member countries start to exchange candid opinions in “security” issue discussion among stakeholders, and discussions on North Korean nuclear issue and Myanmar situation. However, the multilateral dialogue such as ARF merely provides forum for dialogue and discussion among relevant countries, and has not been established as “security” organization that mandates obligations and measures with responsibilities for maintaining the peace and stability of Asia Pacific region as a whole. Therefore, in recognition of these forum's limited ability to resolve confrontation factors among relevant countries, regardless of the outcome of dialogue and discussion, and the risks embraced there to let conflicts and serious confrontation escalate further, there has been a rise of movement to pursue more effective regional “security” organization. 6 For the “order” maintenance, which involves problems common to regional countries and more imminent to them than “security” issue, such as piracy, drug and human trafficking, and international terrorism, regional countries have adopted various measures based on their individual policies. However, increasingly frequent occurrence of piracy activities at the Malacca and Singapore Strait and Islandal seas in recent years has led countries to recognize such problems as major “issues of common concerns” in the region, as they move for joint measures within a region, in recognition of the limit of individual country’s response. Under this trend, several attempts has been made to propose more expansive measures for regional “order” maintenance allowing the participation of “beneficiary countries from stable maritime security and order” to respond against the indefinite risks of maritime terrorisms. In this regard, the establishment of cooperative systems and role sharing among the “order” maintenance organization including navies, coast guards, and police forces, namely regional multi maritime agencies are required, in addition to legislative measures for the “order” maintenance of international waters. 283

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As seen here, for regional “security and order” maintenance, how relevant countries cooperate each other, and how they take appropriate measures would be the important issues in terms of regional peace, stability and development. Yet, there has not been any indication of a definite approach, and regional countries are still in the dark in search of a solution. In view of increased international terrorist activities, relevant countries are now pressed for immediate measures on regional “order” maintenance. Regional Security and Order Maintenance by Japan as “Public Property” Here, we find the roles of Japan. Faced with radical changes in international community since the end of the Cold War, Japan has gradually departed from the indecision on the use of its defense forces for the international cooperation, which persisted since the end of World War Second due to its constitution. It started to take more active role in such activities, and the acceptability of their shift in stance has improved considerably in the international community. Moreover, one of the most significant changes in the eyes of Japanese nationals is on the use of defense forces, which used to be extremely cautious in the past. Last December, the Government of Japan determined a new “National Defense Program Guideline,” in which Japan indicated the plan to subjectively and actively conduct international peacekeeping activities as a part of its diplomacy in international cooperation. Moreover, in recognition of the vital importance of stability in the region extending from the Middle-East to East Asia (that is, “Arc of Instability”) to Japan, the Guideline set the policies to promote overall cooperation with relevant countries for the common concerns in security, and to exert efforts to further stabilize the area. 7 In addition, Japan plans to continue elevating multilateral efforts in common regional concerns, such as terrorist and piracy activities, for which measures have been set in the region recently, and to take an appropriate role for building stable security environment in the region in cooperation with the U.S. as a close ally. As its future role of the Self-Defense Forces, Japan aim to subjectively and actively address the improvement of international security environment, in addition to the effective and practical response to new threats and various situations such as ballistic missile and international 284


terrorism, as well as the preparation for the situation of full-scale invasion. It will level up duties for international cooperation that used to be secondary to “major duties” and clearly indicated the policy to actively promote activities that benefit to the peace and stability of international community, such as security dialogue and exchanges among defense forces in peacetime, including various bilateral and multilateral exercises and trainings which have already executed repeatedly. As the cooperation for U.N. peacekeeping efforts in the region, Japan dispatched the Self-Defense Force troops to Cambodia in 1992 - 1993, East Timor in 1999 - 2000 and 2002 - 2004, and to Indonesia and Pakistan as international humanitarian relief efforts. Moreover, in the international emergency relief efforts, the Self-Defense Forces served to transport relief materials for the earthquakes in Northwest Turkey of 1999, in India of 2001, and in Southeast Iran of 2003. For the most recent Tsunami and earthquake off the coast of Sumatra, the Self-Defense Force troops have been dispatched for rescue, evacuee relief and restoration works. As regional measure against piracy, Japan has promoted regional cooperation in piracy measures mainly by Japanese Coast Guard since 2002. Thus, there should not be any fundamental problems, if Japan is to take the initiatives on regional “security and order” maintenance with the significance of “public property,” starting from the confirmation of “issues of common concerns” with the other sympathized countries, which have also will and ability as well as Japan. The security environment since the September 11, 2001 terrorist attacks has proved that even the military superpower of the United States has limits in its unilateral effort to achieve security. However, we must note that, if the countries that have the will and ability can mutually complement each other to cover any elements lacked in each country, they may be able to play the roles of “public properties” of regional security. Japan has sufficient “will and ability” to contribute to the region if asked. Moreover, Japan share consensus with other regional countries that regional stability is the one that directly links with their own national interests. Under such recognition, Japan has already exerted efforts to improve the regional security environment. Thus, whenever such activities were taken by Japan with full consideration to the intentions of the regional community, then such activities were essentially accepted and even welcomed by regional countries. Therefore, even for the future, if Japan is to take actions to 285

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demonstrate that its intention is just to address the issues of regional “security and order” in sincerity, based on its past significant involvement in these issues with almost full recognition of the characteristics of the regional community and in harmony with them, then Japan may be able to eliminate any doubts from the regional community and its actions will be accepted. “Maritime Order” Maintenance as the Best Regional Issue of Common Concerns Then, what should be the “issues of common concerns” among regional countries? “Maritime order” could be the most suitable regional “urgent issue of common concerns” within regional countries for the moment. There is a common interest among all relevant countries and their people in the maintenance of “maritime order” on regional waters, including the measures for piracy, drug and human trafficking, and indiscriminate terrorism including maritime terrorism, which is likely to be brought by the association of regional terrorists and international terrorism organizations, and environmental problems. There will be no reason for regional countries to refuse cooperation on the maintenance of “maritime order.” In fact, regional countries have steadfastly attempted the utmost cooperation in maintaining the maritime order. Nothing was better evidence that recent regional dialogue on the safety of navigating through Malacca Strait (among three coastal countries plus Japan, China and Korea). To face the reality, on the other hand, there are many countries in the region that can hardly provide sufficient maritime security and order maintenance activities in quantity and/or in quality, despite the presence of vast area including islands that requires considerable amount of patrolling efforts by multi maritime agencies including navies, coast guards or police forces. For instance, as recently reported, North Korea has been active in the sales of the weapons of small firearms or even small submarines to radical forces in Philippines (MILF) as well as the weapons of mass destruction into several concerned countries via regional sea routes. Therefore, there is room that countries, which have will and ability, can provide cooperation to regional countries in order to intercept such weapons transfer, on top of PSI (Proliferation Security Initiative) as a measure to 286


prevent the proliferation of weapons of mass destruction by their multi maritime agencies. 8 Regional cooperation at the large-scale disasters (Tsunami, large earthquake, storm, flood, etc.) can be also considered as an effort of maintenance of maritime order, that’s, “urgent issue of common concerns.” As seen in the quake and Tsunami off the coast of Sumatra, regional countries like Japan, the U.S., Australia, Singapore and others provided outstanding activities that the locals welcomed. In related this, at the U.N. Disaster Prevention Meeting held in Japan in mid-January, 2005, it was decided that Japan and the U.S. would immediately join efforts to establish early warning system for Tsunami in the Indian Ocean. As mentioned before, upon the revision of its National Defense Program Guideline last December, the Government of Japan stated more positive attitude toward the easing of three principles of weapons-trade prohibition, and was reported to be reviewing the export or supply of used surface combatants to Indonesia and Singapore for anti-piracy measures, as well as the export or supply of rescue flying boats of JMSDF, modified US-1A. If those pull through, then it would be first time Japan is to provide cooperation to other countries in the supply of defense-related assets after Three Principles on Arms Exports became effect. Moreover, in the future, Japan may be able to expand the scope of cooperation further in the field where Japan’s core technologies (ocean survey, natural disasters, etc.) can be applied. DEVELOPING CONCRETE ACTIONS AND THE ISSUES OF FUTURE ESTABLISHMENT OF “REGIONAL SECURITY & ORDER COALITION” Japan is undoubtedly a nation that has both essentiality and practicality to take a role of “public property,” cooperating with the other countries which have the will and ability to provide the foundation for the regional security and order in the Asia-Pacific region. Because of the diversity found in this region, however, there should be some sort of resistances in the pursuit of regional security and order. Thus, there will be hardly any possibility that Japan can take a role to establish an organization that has strong mandating power over the region like NATO or the European Union. Therefore, the most appropriate approach for Japan to win the expectation and understanding of regional countries will be, for the moment at least, to start “voluntarily” the cooperative activities based on 287

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“the spirit of serving the region” with other sympathized countries that have will and ability to do so. In other words, the coalition by the “volunteer union” will be the most suitable form. Further into the future, the situation may arise to allow the idea of “regional united nations” that has the mandating power similar to those in the alliance or the multilateral union (like the European Union). Before then, however, there will be many difficult problems that must be solved, as a matter of course. As a concrete approach, therefore, Japan should take initiative to expand and broaden the regional multilateral efforts to address the “urgent issues of common concerns,” that is, “maritime order” maintenance. For this, Japan must take first step to develop “common awareness” with sympathized countries in the region, through holding various opportunities, such as political summit meetings, strategic dialogues, maritime agencies including navies top and staff talks, staff exchanges, joint or cooperative exercises, and by preparing common doctrines and operating procedures in the form of multilateral maritime agencies. Once developed, then Japan with sympathized countries could initiate to establish and manage the regional security and order coalition. When the foundation of coalition is thoroughly solidified, then they can take next step to call other countries’ participation step by step. In the future, it may be possible to fully rely on North East and South East Asia countries, Oceanic countries, West Pacific Islandal countries, as well as South Asian and Indian Ocean Islandal countries. As mentioned repeatedly, Japanese government clearly demonstrated its policy to actively contribute to international peace cooperation activities, through the revision of its National Defense Program Guideline last December. Moreover, there have been active discussions in Japan to seek the revision of the Constitution, the elimination of ambiguity in the legislative position of the Self-Defense Forces under the Constitution, the stipulation of collective self-defense rights, and active utilization of the Self-Defense Forces in various activities to improve international security environment and to resolve humanity issues under the United Nations and the regional organizations. In relation to the September 11, 2001 terrorist attacks, Japan has dispatched the Maritime Self-Defense Force units to participate in the prevention of international terrorists activities on the ocean, which is still continuing in the Northern Indian Ocean, and has stationed the Ground Self-Defense Force units for the activities to support the Iraqi restoration in Southern Iraq. These activities further emphasize its policy to actively 288


use the Self-Defense Forces in the measures to improve the “security” situations of the international community. Furthermore, Japan has taken a policy to willingly improve the security and order environment of the Asian region, and advanced its cooperation to strengthen “maritime order” maintenance efforts in the ASEAN countries, which has been welcomed by regional countries. As regional measures against piracy, Japan has been promoting regional cooperation in piracy measures by Japanese Coast Guard since 2000. At the restoration activities for the Sumatra Quake and Tsunami disaster, Japan has been dispatching the largest number of Ground, Maritime, and Air Self-Defense Forces in its history, including the largest landing ships of aircraft carrier type, in a way to shoulder the U.S.’s restoration activities carried by its aircraft carrier units, which U.S. units have been attempting to downsize. Like the support activities by other countries, these Japanese activities have made favorable impression among regional countries. As a whole, Japan is likely to maintain longer and stable administrations, and is well aware of the essentiality of a stable security environment in the regional community to attain national objectives, as such an environment will conform to their national interests. Under such awareness, Japan with sympathized countries would be expected to actively and cooperatively promote a policy for the establishment and management of a “regional (maritime) order coalition,” which would be the best way to step up to “regional (maritime) security and order coalition,” aiming for actualization of the “regional united nations.” in the future.

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Notes 1

Defense of Japan, 2004, “Military situation in the Asia Pacific region,” JDA, 2004, p36. Ibid., p36. 3 Ibid., p36. 4 Ibid., p37. 5 Ibid., p38. 6 Ibid., p38. 7 www.jda.go.jp/e/index_.htm, Japan Defense Agency 8 www.state.gov/t/np/rls/other/34726.htm, U.S. Department of State 2

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PANEL VI: GLOBAL DEVELOPMENTS IN MARINE SCIENCE __________________________

A U.S. Perspective on Global Developments in Marine Science Barbara Moore

The year 2005 finds the field of marine science at the forefront of a number of important priorities. A series of broad global challenges are driving marine science today in directions that will shape the science and understanding of the future. In this presentation I would like to address this from two perspectives – the broad vision as it is being laid out by the international ocean community today, and a somewhat more specific discussion of some of the more interesting issues that contribute to this vision. The National Oceanic and Atmospheric Administration (NOAA), is the principal ocean agency in the United States. We have identified three significant challenges facing the global marine science community today. They arise from the need to understand global climate variability, the need to conserve and manage living marine resources and the desire to provide operational oceanographic products to a range of users. Many of these challenges, such as the need to understand climate variability and its more immediate shorter-range component, weather forecasting, are shared by all nations. These challenges lead to important priorities for the marine science community in the coming decades. They fall into three broad categories – earth observations, ocean exploration and ecosystem approaches. Let me comment briefly on each of these. EARTH OBSERVATIONS Earth observations, both satellite and in situ – have been at the heart of NOAA’s mission for more than 30 years. In fact, environmental information is our primary reason for existence. NOAA depends on

Director, NOAA Undersea Research Program, National Oceanic and Atmospheric Administration, USA. 293

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observing systems for virtually every activity it does, from fundamental research to long range operational forecasting and day-to-day regulatory decisions. It is estimated that more than 30 percent of the United States Gross Domestic product depends on weather and climate products and services, so it goes without saying that we, as a country, are big believers in earth observations. The premise behind the global earth observation system is simple – even if not necessarily easy to implement. There are currently thousands, if not millions, of observation points collecting data around the world. Unfortunately, they operate, for the most part, independently of one another. By establishing an integrated global system, participants seek to improve coordination of strategies and systems for observations of the earth – from in situ, aircraft, and satellite networks. Participants also hope to identify measures to minimize data gaps – all with a goal of moving toward comprehensive, coordinated, and sustained earth observation system or systems.

Earth Observations – Linking together many data collection systems. 294

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If successful, by fully networking the systems that exist and filling in gaps where they do not now exist, we will advance our understanding of the earth’s environment and improve our ability to address pressing policy issues. Let me describe several of the global systems already in place and under development. OCEAN EXPLORATION We are increasingly aware of our dependence on the oceans for healthy fisheries and clean beaches. Less well developed is our appreciation of the role of the oceans in climate, its potential for yielding the keys to new medicines and the ability to sustainably use its resources, including maritime heritage. Most of the oceans remain unexplored. Ocean exploration, as a general matter, is an area we must identify as a priority. The United States now has a dedicated program in ocean exploration. MARINE ECOSYSTEMS APPROACH TO MANAGEMENT Management of marine resources is in the midst of a major transformation globally. In the United States and in many other countries and international bodies, we are moving toward an ecosystem approach to management. While ecosystem based management has been an academic concept for many years, the application of this concept to management presents some very significant challenges. In other words, theoretically, we may understand what ecosystem based management means, practically; we really don’t know how to implement this complex concept. Ecosystem-based management is an emerging theme shared by the United States and many in the international community as we recognize the need to address marine resource management from a more holistic perspective. In NOAA we have defined the ecosystem approach to marine resource management as: 1. adaptive, 2. geographically specific, 3. takes into account ecosystem knowledge and uncertainties, 295

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4. considers multiple external influences, and 5. strives to balance diverse social objectives.

Ecosystem Approach to Management. Image Credit: Exxon Valdez Oil Spill (EVOS) Council’s Gulf of Alaska Ecosystem Monitoring and Research (GEM) Program

Having defined the terminology, our task now is to learn how to carry it out. Marine ecosystems are complex. They are affected by atmospheric, oceanographic and land-based processes as well as anthropogenic activities such as fishing, habitat alteration and pollution. Many of these processes and their effects are poorly understood and difficult to predict. Improving our understanding of those processes and how they interact

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with human uses of the oceans, will be a major challenge in the coming decades. A critical point here is that human communities are part of the ecosystem, and their values and motivations must be considered when designing an ecosystem-based approach to management. Our current approach to ecosystem management is both “bottom-up” and “top-down.” We are building upon traditional approaches to management, for example in fisheries, we are progressing from single species management to multi-species management, taking into account other factors such as bycatch and impacts of fishing on habitat. Top-down – at the other end of the spectrum, we are continuing to expand our ocean observations in order to understand ecosystems to be better equipped to consider fisheries within this larger context. Having presented a broad overview of the big picture developments in marine science, I turn at this point to a discussion of some of the most interesting and compelling issues that have captured the attention of the global marine science community today. This paper is written from a very privileged perspective. As director of a national research program that specializes in undersea research, I have been, for a number of years, in the midst of new and emerging ocean issues as they unfold. I work with those involved in attempting to understand their significance, both the scientists and the policymakers. The thoughts that follow are personal views that come to me as a result of this experience. In the 1970s, most ocean scientists believed that much of the seafloor was largely a featureless desert, punctuated with occasional underwater volcanoes, seamounts and a range of underwater mountains in the midAtlantic ocean that terminated in Iceland. Today we know that this mountain range that bisects the Atlantic Ocean is only part of a continuous geologic feature that encircles the globe and is but one of the many manifestations of the plate tectonics that form the basis of the geological underpinnings of the earth itself. The largest single geographic feature on the surface of the planet, this 56,000 mile continuous underwater mountain range, remained undetected from the beginnings of human history until barely 30 years ago. What else lies 297

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hidden within the vast expanses of the ocean and remains to be discovered? This paper discusses five topics that have captured our attention: (1) Methane hydrates, (2) Hydrothermal vents, seafloor spreading centers, seamounts and the other consequences of tectonic processes, (3) Deep water corals, (4) Ecosystems in extreme environments, and (5) The genetic resources of extremophiles. METHANE HYDRATES Methane hydrates are naturally occurring substances likely found throughout the world. At standard temperatures and pressures, methane is a gaseous hydrocarbon, the main component of natural gas. However, under conditions of relatively high pressure and low temperature, methane can be found as a solid frozen within a crystalline structure of water molecules. The structure is known geologically as a clathrate. Gas hydrates occur at many sites along continental margins and in the Arctic - wherever the temperature and pressure conditions permit. The temperature and pressure conditions that lead to hydrate formation are found typically in areas of permafrost (on land), and on the continental shelf and slope, under the sea in water depths to 5,000 meters. Hydrates are found buried beneath the sediment of the sea floor at depths varying from hundreds of meters to centimeters. Some hydrate deposits are exposed and sit like mounds of ice protruding from the sea floor. The issues surrounding hydrates are many and complex. Unfortunately, no single scientific discipline or government organization seems to deal with all aspects of hydrates, and most discussions tend to focus on one or two dimensions. In this discussion, I will attempt to provide a brief but broad overview of the many issues involved.

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Recovered GH Inferred GH Potential GH

Image Credit: USGS

Methane Hydrates are Important Because of the Immense Quantities Thought to Exist Hydrates store large amounts of methane, with major implications for energy resources and climate. Estimates of global resources of natural gas hydrate range from 100,000 to almost 300,000,000 trillion cubic feet (TCF). To put these quantities into context, estimates of the total global reserves and undiscovered resources of conventional natural gas total about 13,000 TCF. The amount of methane stored in hydrates is estimated at perhaps 3,000 times the amount in the atmosphere.

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Exposed Methane Hydrate Deposit on Sea Floor. Photo Credit: Ian R. MacDonald, Texas A & M University, Corpus Christi, Texas

Hydrates in Marine Sediments Influence the Physical Properties of the Sediment, Particularly Sediment Strength This has implications for sediment stability particularly as it relates to oil and gas drilling operations. Natural temperature increases or pressure decreases can cause hydrates to dissociate, converting a strong sediment into a weak, watery sediment. Such changes cause slides and seafloor collapse. Methane is a Greenhouse Gas Ten Times More Effective than Carbon Dioxide The release and absorption of large volumes of methane from seafloor hydrates may have major impacts in modifying the earth’s climate. When released from its condensed structure, the volume of methane gas is 160 times greater than that in the hydrate form. The volume of carbon contained in methane hydrates worldwide is estimated to be twice the amount contained in all fossil fuels on Earth, including coal. Thus, largescale releases of methane to the atmosphere, could have dramatic effects on climate. 300


Unique Biological Communities are Found in Connection with Hydrate Deposits As the hydrates dissociate, methane seeps through the sediments onto the sea floor. This provides a rich environment for highly diverse communities that make their energy chemosynthetically from the materials seeping from the sea floor. Organisms in hydrocarbon seep habitats rely on reduced carbon in the form of methane gas and crude oil in migrating seep fluids. Some of the seep organisms may be related to those occurring near hydrothermal vents. Chemosynthetic communities associated with seep habitats derive sulfide from microbes that reduce the sulfate to forms from which they take their energy.

Life Forms Existing at Methane Seep. The Gulf of Mexico hydrocarbon seep and methane hydrate habitats which are the most studied till this time, are colonized by dense mats of bacteria, vestimentiferan tubeworms, methanotrophic mussels, bivalves and methane-dwelling worms. These communities thrive in environments 301

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that would be highly toxic to most known organisms and function through chemosynthetic processes and interactions that we are only beginning to identify and understand. Until the 1960s, methane hydrate was considered an unusual and unnatural substance that occurred only in the laboratory or in natural gas pipelines. Discoveries, first in Polar regions, and then throughout the deep-water shelves of every continent, have shown that natural methane hydrate occurs on a truly staggering scale. In many areas the existence of natural methane hydrate is inferred only from indirect evidence from geophysical surveys or geochemical analyses of sediment samples. The immense volume of methane hydrates worldwide may be a potential resource of extraordinary richness. Our understanding of these resources is rudimentary. HYDROTHERMAL VENTS, SEAFLOOR SPREADING CENTERS, SEAMOUNTS AND OTHER CONSEQUENCES OF TECTONIC PROCESSES What are they? Mid-ocean ridges, back arc spreading centers, vents and seamounts are expressions on the earth’s surface of planetary-scale processes of ocean crust formation, plate separation, and global heat loss. These tectonic processes are responsible for a variety of phenomena that may one day lead to recoverable resources in the sea. In a very simplistic fashion, one could envision the surface of the earth broken into rigid plates. Twelve major plates plus a number of minor plates, 100 to 120 km thick, cover the earth’s surface. The plates sit on top of a softer, more plastic layer of mantle. They are all in constant motion, some moving faster than others. They move in different directions. Most of the earthquakes and volcanoes worldwide occur along narrow bands that correspond with the boundaries of plates. The most recent and dramatic evidence of just such motion was the December 26, 2004 Indian ocean tsunami which was generated by the massive water displacement caused by the shifting of two plates. A 1,320 km stretch of one plate off the coast of Sumatra, dropped 50 meters, displacing the tremendous amount of water that resulted in the devastating tsunami that occurred on December 26, 2004. 302


Where plate boundaries occur beneath the sea, water seeps through cracks in the seafloor caused by the moving plates, and is heated by molten rock deep below the ocean crust to as high as 400 degrees C. The hot fluid rises to the seafloor surface and carries with it dissolved metals (including Fe, Cu, Zn and it picks up H2S) and other chemicals from deep beneath the ocean floor. These hydrothermal fluids exit the seafloor, at many locations through vents that form chimneys. Vents have been found at almost every type of seafloor spreading boundary (slow, intermediate, fast); they have been found at hot spots and back-arc basins. Seemingly, everywhere that some type of mantle-driven activity occurs, scientists have found vents. Although less than 1 percent of the sea floor where hydrothermal vents are suspected has been investigated, hundreds of hydrothermal vent fields have been identified globally in the past few decades. Vents Vents occur whenever hot fluids carrying dissolved materials combine with Sulfur to form sulfides which, in turn, precipitate out when the superhot vent water meets surrounding deep ocean water, which is only a few degrees above freezing. Formation of a simple black-smoker begins as 303

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metal (e.g. iron, copper and zinc) and sulfide-rich, high temperature, acidic fluids mix with the surrounding cold, alkaline seawater, causing the metal sulfides to precipitate and form particle-rich “black-smoker” plumes. Columnar chimneys grow to heights of 10-20 meters, often with multiple high temperature openings at the top.

Active Vent. White smokers are those chimneys from which fluids at intermediate temperatures (100-300 degrees C) are emitted. At these lower temperatures, silica, anhydrite, and barite (BaSO4) precipitate as white particles. Black smokers are the hottest of the vents. They are composed primarily of iron and sulfide. Vents can occur at any depth. Some are as 304


deep as 3,600 meters, others are found at barely 30 meters off the coast of New Zealand. Underwater vent chimneys can form very rapidly. Nine meters in 18 months is not unusual. Mid-Ocean Ridges Mid –ocean ridges are underwater mountain ranges; that encircle the globe like seams on a baseball. They total more than 56,000 km. Midocean ridges are located at the boundaries between tectonic plates where sea floor spreading takes place. As plates are pulled apart by tectonic forces, hot, soft rock from deep in the earth rises to fill the gap between them. As it rises, the soft rock partially melts, feeding volcanoes that construct the ocean crust. This zone of crustal accretion is narrow, only a few kilometers wide at most, with an axial valley or trough that marks the spreading axis. The average rate at which the seafloor spreads apart at mid-ocean ridges is not uniform throughout the entire ridge system. Spreading rates can be characterized as slow (10-50 mm/yr), medium (50-90 mm/yr) and fast (more than 90 mm/yr). Almost 50 percent of the presently active ridges are slow spreading, including the Mid-Atlantic Ridge. The East Pacific Rise is the only presently active fast-to-superfast spreading-center. Back-arc Spreading Centers These form behind island arcs along active margins where thick, old ocean crust is undergoing subduction beneath a continental plate moving in the same direction. Where there is sufficient heat, crustal accretion takes place by upwelling of magmas. This mechanism of crust formation is very different from open ocean seafloor spreading and takes place periodically over a period of millions of years, rather than continuously as at mid-ocean ridges. Seamounts Seamounts form from hot springs on the sea floor that are not restricted to spreading centers along the mid-ocean ridges and island-arc 305

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systems. They occur wherever there is sufficient heat and porosity to drive hydrothermal convection producing active submarine volcanoes in the centers of plates. Thousands of seamounts rise from the sea floor, primarily in the Pacific. Some reach the ocean surface, like the islands of Hawaii. Others are hundreds of meters below the sea surface. Many, if not most, are uncharted. To underscore that point, recall the recent encounter (January 8, 2005) between an uncharted seamount and a U.S. submarine. The USS San Francisco was traveling at top speed in waters 350 miles south of Guam at a depth of about 1,500 meters, when it struck an uncharted seamount. The resulting collision killed one crewman and injured 23 others. Fortunately, the submarine was able to return to Guam where it is now undergoing repair. Because of the process by which they are formed, these features are the sites of rich deposits of minerals. They also support communities of living organisms that have evolved over time in the extreme environments surrounding them. The hydrothermal processes had been predicted. What was unexpected, however, was the existence of thriving communities at these sites. Active vents are transitory as are the ecosystems they support. When hot fluids ultimately cease to flow through a chimney, the metal sulfides slowly begin to oxidize, turning to iron oxyhydroxides, and the chimney’s matrix becomes soft and unstable. Dense hydrothermal communities on the chimneys die off and are often replaced by a few suspension feeding organisms which take advantage of the richer food supply delivered by currents strengthened by the resulting changes to local topography. Mining the mineral deposits resulting from hydrothermal processes may become a reality in the future. DEEP -SEA CORALS/COLD WATER CORALS Most are familiar with corals as they are commonly described in connection with coral reef systems that occur throughout the tropics. Few are aware, however, that a variety of corals also inhabit cold waters in the deep sea off all U.S. coasts, off the coasts of northern Europe and Australia, and most likely off all coasts globally. Deep-sea corals/cold water corals are members of the Class of animals called Anthozoa that 306


includes sea anemones, stony corals, soft corals and sea pens. Deep-sea corals inhabit the colder, deeper waters of the continental shelves and offshore canyons in waters ranging from 50-1,000 meter depth. They may occur as small growths of individual organisms, or where current and

Deep Sea Corals. Photo Credit: Stephen Cairns

substrates are suitable, they may form highly complex thickets or groves. They are slow growing and can reach ages of hundreds of years. The tropical corals that make up the familiar coral reefs contain a symbiotic algae (zooxanthellae) that relies upon sunlight for photosynthesis to supply the corals energy needs. Deep-sea corals do not contain these symbionts, and therefore do not rely upon sunlight for their energy. They can live at much greater depths, where light does not penetrate. They actively feed upon material suspended in the water. They may live on the deeper flanks of tropical coral reefs, or they may live far distant from reef structures in the cold waters of Alaska or the North Sea. Deep-sea corals may build reefs, or they may occur as solitary organisms. 307

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They are important for a number of reasons. Fish Habitat Just as tropical corals are essential habitat for tropical fish and important ecosystems, deep-water corals are habitat for deep-sea fish. The strong water current that deep-sea corals prefer is important for marine life

Deep Sea Coral as Habitat for Fish. because they increase water and nutrient flow. These strong currents also make survival more difficult, particularly for smaller life, such as juvenile fish. Coral outcrops and “forests” are important habitat for many fish and crustacean species and also for other marine life because they provide protection from these currents and predators. Fish rely on coral areas for food, protection, and a place to lay their eggs. We have yet to determine, however, if these areas are “essential” fish habitats. Records of Climate Change More recently we have begun to recognize that through their relatively slow growth rates and intermediate-to abyssal-depth habitats, these 308


species can record deep-ocean changes in chemistry and circulation at the sub-decadal time scale. For example, the species Desmophyllum cristaglli is a solitary coral that can be used to calibrate paleoceanographic tracers. Because corals live so long, and because some species grow in concentric rings, similar to tree rings, we are beginning to look to deep-sea corals for information about changes in ocean temperature and nutrient levels over the past several centuries - information important to understanding climate change.

Deep Sea Corals as Climate Records. Deep-sea corals exist around the world. Different types of deep-sea corals have been documented in the Atlantic and the Pacific oceans, and there is no reason to believe they do not exist in all oceans. They live at depths unaffected by storms and other large-scale natural disturbances. Little is known about the distribution of deep-sea corals, their ecological role and conservation status. Recent evidence suggests that fishing practices have had substantial impacts on these communities in both the North Atlantic and Pacific Oceans. Protected areas such as coral conservation areas have been established by a number of states in order to restrict destructive fishing practices and provide study areas.

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ECOSYSTEMS IN EXTREME ENVIRONMENTS Discoveries over the past 20 years have led to the realization that many organisms are capable of thriving in environments that are uninhabitable to not only humans, but also most of the living organisms with which we are familiar. These environments of extreme temperature or pressure or chemicals toxic to much life – or combinations of these factors, are known as extreme environments. I would like to describe a few. Hydrothermal Vents As noted earlier, the scientific community had predicted hydrothermal processes. What was unpredicted was the existence of thriving communities of lifeforms at these sites. An amazing group of organisms has evolved around hydrothermal vents. They range from tiny bacteria that feed off the chemicals spewing from the vents, to tube worms, giant clams and ghostly white crabs.

Tubeworms (left) and Crabs (right) from Vent Ecosystem. 310


Shrimp from Vent Ecosystem. Compared to the surrounding sea floor, hydrothermal vents boast a community of organisms that is 10,000 to 100,000 times denser. The reason for this is the sulfur-oxidizing bacteria as a food source either directly or through a cooperative arrangement between bacteria and some vent organisms. Sulfur-oxidizing bacteria and other forms of bacteria that gain energy from the metabolism of inorganic compounds are called chemoautotrophs. These bacteria are able to oxidize compounds such as hydrogen sulfide and store energy in the form of ATP (adenosine triphosphate) that is the universal energy molecule in all organisms. These bacteria use this energy to transform carbon dioxide into simple sugars and other molecules, just like plants, creating organic matter at the base of the food web for other organisms to use. While some hydrothermal vent organisms are adapted to high temperatures, it is the chemistry of hydrothermal fluids - not the heatthat sustains the chemosynthetic basis of life at vent ecosystems. Brine Seeps Brine seeps are another type of extreme environment. They occur along the base of the Florida Escarpment in the Gulf of Mexico and other ocean sites where pore waters are squeezed out of sediments by tectonic 311

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plate movement. Many of the invertebrates in these communities are taxonomically similar to those in hydrothermal vent communities. They are also chemoautotrophic. And, of the 211 seep species inventoried so far, 64 are symbiont-bearing species. When methane-rich seeps were first discovered, bacteria that acted as symbionts were presumed to be methanotrophic, but sulfide-oxidizing chemoautotrophs are often most prevalent. New seep sites are constantly being discovered (e.g. at mud diapirs along passive margins and at active convergent margins off New Zealand, Costa Rica, Japan and Alaska), adding to the geographic distribution of known seep communities and to the diversity of fauna. Seep communities are estimated to have longevity far surpassing that of most hydrothermal systems. Apart from chemoautrophic symbioses at diffusion sites, the most surprising organism discovered must be the ice worm, Hesiocacca methanicola, a 2 cm long polychaete that lives in high densities in icelike methane hydrates. GENETIC RESOURCES OF EXTREMOPHILES Extremophiles are the rule breakers in biology. These organisms live in the harshest environments on earth - boiling water holes in Italy, the ice of Antarctic seas, and hydrothermal vents at the bottom of the ocean. They not only survive, but also thrive under conditions previously thought to prohibit all forms of life. In recent years, scientists have begun to mine the genomes of extremophiles for information that might lead to new technologies, such as heat resistant molecules for commercial uses, and to breakthroughs in medicine and the environmental sciences.

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Tubeworms Surround Exposed Methane Hydrate Deposit. Photo Credit: Ian R. MacDonald, Texas A & M University, Corpus Christi, Texas

Ice Worms Live in Methane Hydrate Deposits. Photo Credit: Charles Fisher, Penn State University 313

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The first extremophile to be sequenced was Methanoccus jannaschii, an organism straight out of science fiction. The single-celled microbe lives near hydrothermal vents 2,600 meters below sea level, where temperatures approach the boiling point of water and pressure is sufficient to crush an ordinary submarine. There, Methanoccus jannaschii survives on carbon dioxide, hydrogen and a few mineral salts. It cannot tolerate oxygen and takes care of its energy needs by producing methane. The potential for biotechnological utilization of microbial species isolated from hydrothermal vents and other extreme environments is considerable. Bacterial bioremediation of waste sulfides from industrial processes has already been demonstrated on a laboratory scale. Hyperthermophilic (heat-loving) bacteria offer the prospect of a broad range of thermostable enzymes. The search for Archaea and bacteria with novel biochemical attributes is an entire field of marine research. I would like to conclude with two final points about genetic resources. First, marine organisms are much more productive than terrestrial organisms. In the search for new medicines and bioactive compounds, marine samples have a greater bioactivity, in comparison to terrestrial samples, most likely due to their higher chemical diversity. In general, for terrestrial samples, 1 out of 10,000 samples is a significant biomedical hit (i.e. forwarded for clinical trials). For marine samples, 1 in 5,000 samples is a significant hit. Our own recent experience with organisms from coral ecosystems shows even higher success rates.Second, when we discuss bioprospecting – or the search for genetic resources, we are not talking about harvesting large quantities of organisms. We are talking about taking small quantities for laboratory analysis. In most cases, the information that results will be used to reproduce the bioactive components in shore based laboratories or factories. It is information that is being “harvested”, not the organisms themselves. END NOTE We are regularly reminded of our arrogance in believing how much we know and understand about the oceans. Thirty years ago we were taught that life on earth is not possible without light or oxygen. The life forms we found living around ocean vents proved this is not so. Forty 314


years ago we believed the only resource of value on the seafloor were manganese nodules. The discoveries of ocean ridges and sulfide rich deposits have proven otherwise. Twenty years ago we thought the seafloor was a colorless, barren desert. Today we know it is dotted with oases rich with life - composed of ecosystems never envisioned before. Modern technologies revealed they existed. The point -- there is much we do not know about the ocean - what new resources and assets will we encounter as our means for getting out there and down there advance? I will admit that I don’t know, and I look forward to the surprises that await discovery. Whatever we find, however, I will wager, will not be what we are able to predict today. Aquarius – an Underwater Laboratory.

Photo Credit: NOAA

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The Conflict Between Jurisdiction of Coastal States on MSR in EEZ and Military Survey Zhang Haiwen ABSTRACT There is a long history of mankind navigating the oceans and putting efforts into their exploration and exploitation. Nonetheless, oceans remain one of the mysterious fields over which humans haven’t obtained a profound understanding. Recent developments in science and technology have provided the necessary qualifications and means to gain better understanding of oceans. On one hand, this will benefit all humankind, but on the other, will bring conflicts to human society. Although Part XIII of the United Nations Convention on the Law of the Sea (UNCLOS) has set up a specific regime on marine scientific research (MSR), as have other relevant provisions in the Convention, views on the relationship between jurisdiction on scientific research and military survey in the Exclusive Economic Zone (EEZ) differ among states and scholars. This article will analyze the relationship between jurisdiction of MSR in EEZ and military survey activities. Firstly, this paper is to analyze the original legislative intention of the MSR regime from the perspective of its evolution. The conclusion is that international Law of the Sea gives coastal States more jurisdiction in ever-enlarging areas, which jurisdiction is becoming stricter. Secondly, under the current level of modern science and technology development, there is no means to distinguish between “pure MSR” or “applied scientific research” from such activities as “hydrographic survey” and ”military survey”. The conclusion is that all activities for the purpose of increasing mankind’s knowledge of oceans and marine movement should be classified as MSR. The overall conclusion appears thirdly, where the author holds that, according to relevant provisions in the Convention, as well as to the position and practice of most developing countries, MSR conducted in EEZ must have prior consent of the relevant coastal States. The regime of MSR on this

Dr. Zhang Haiwen, Senior Research Fellow and Deputy Director General of the China Institute for Marine Affairs (CIMA). Secretary General of the China Society of the Law of the Sea. 317

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matter is clear. However, different views exist, and joint efforts need to be undertaken to reach understanding. FOREWARD The existence and sustainable development of human society is increasingly dependant upon oceans. Oceans have become significant space for research activities in the fields of geology, meteorology and outer space science. As a crucial part of the earth, oceans are getting more attention from human beings for their significance. Oceans are both research targets and space for new scientific research methods. They provide us with a magnificent multi-dimensional space, combining waters, lands, airspace, outer space, and underwater and underground spaces, and enable mankind to have more comprehensive, profound and complete recognition of the natural world. In this context, coastal States are putting more and more efforts toward marine research. Marine science has become a subject, implicating various subjects relevant to marine environment like physics, chemistry, geology, biology, hydrology, meteorology, etc. 1 There is a long history of navigation in human society, during which some navigators have paid close attention to marine observation, such as did the renowned navigator of China’s Ming Dynasty, Cheng-He. 2 As the West entered into capitalism, with rapid development of industries and broad application of science & technology, the scope and contents of MSR are increased exponentially. Nonetheless, the general view is that the history of marine science in the sense of modern science began with the global scientific research conducted by a British vessel, the Challenger, in the 1870s. But contemporary MSR started after the 1940s. MSR covers nearly all branches of natural science, and doesn’t cease to exploit new fields. With the rapid development of science and technology, the scope of MSR has expanded from just offshore to the far oceans, and the content of research has expanded from description of natural geography to survey of the environment and its resources, so as to serve marine exploration and exploitation efforts. The internationalization of MSR has caused jurisdictional issues, and a relatively comprehensive regime on MSR has taken shape with the series of conventions ratified on the peace conference in the Hague in 1907 and the provisions in UNCLOS.

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BRIEF REVIEW OF THE EVOLUTION OF THE LEGAL REGIME OF MSR Before 1958 MSR was encouraged by general international practice before 1958, and MSR vessels enjoyed neutral status with immunities. There were cases of protecting vessels for MSR at wartime as early as the 1700s, and it has become a general international practice that vessels operated for MSR purposes conducting no hostile activities enjoy immunities. 3 Some states integrated this practice into national legislation. For example, Article 247 of Italian 1877 Commercial Law provided that warships of belligerent states were allowed to enter or stay at its ports, anchorage ground or offshore areas, as long as they undertook scientific research. At the second Peace Conference in the Hague in 1907, the Italian delegation proposed that hostile vessels conducting science, religious and charity assignment should be free from arrest and detention. After careful discussion among participants, a consensus was reached to incorporate the Italian proposal into respective agreements. For example, Article 4 of the 11th Hague Convention stipulated that it is prohibited to attack or seize those vessels with religious, scientific or benevolent missions when they commit no hostile acts. Article 14 of the 13th Hague Convention provided that warships conducting only science survey and research were not restricted by the 24-hour stay regulation, and that those neutral scientific vessels employed or hired by hostile nations should not been considered as “conducting non-neutral assignment.” After the second Peace Conference in Hague, many countries established relevant neutral legislations. For example, in 1914, the Beijing government enacted the Neutral Regulations, which stipulated that belligerent warships undertaking scientific research may stay in China’s ports, not restricted with the 24-hour stay posed on regular warships or the regime that number of warships docked for replenishment of necessities shouldn’t exceed three at the same time. Also, the 1932 Seizure Regulation on Seas enacted by the Kuomingdang government stipulated that hostile vessels engaged in scientific research involving no military acts should not be seized. Many other nations’ domestic laws also contain similar provisions, as evinced by the 1938 Italy Law on Wars and an order enacted by the French government in 1934. 4 However, at this stage of history, although international practice and 319

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national legislation to protect vessels engaged in scientific research in times of war had come into being, they were all out of respect to science and religious undertakings and respect for humanity. The concept of freedom of MSR hadn’t been established. In 1926, the Vienna Conference of International Law Association put freedom of MSR together with navigation freedom, however, the concept of freedom of MSR wasn’t recognized or accepted by the international community during this period. 1958 Convention on High Seas and Convention on the Continental Shelves In four 1958 Geneva conventions, only the Convention on the Continental Shelves contained direct and explicit provisions regarding MSR. The ratification of the Convention on the Continental Shelves indicated that the modern regime of MSR started to be established, and that coastal States have jurisdiction on MSR activities in their juridical sea areas. In the draft clauses of the Law of the Sea passed at the eighth meeting of the International Law Commission in 1956, when listing “Freedom of the High Seas,” only navigation, fishery, right to lay submarine cables and pipelines, and overflight were included. Freedom of MSR was not. In the 1958 Convention on the High Seas, freedom of MSR was not included, either. However, in Article 2 of the notes for that Convention, the International Law Commission stated, “the freedom of high seas listed herein isn’t the whole part. The Commission has listed only four major freedoms…” The article specifically pointed out research freedom on the high seas, “due to any action which is against universal principles, and causes blight to nationals of other states, this freedom is restricted.” Although the 1958 Convention on the Continental Shelves contained direct provisions on MSR, it failed to apply the term “scientific research freedom” in any specific clause. On one hand, the Convention on the Continental Shelves kept the tradition of encouraging and supporting MSR, and it stipulated in Article 5(1) that research like fundamental oceanography shouldn’t be interfered with. On the other hand, it endowed coastal States with partial jurisdiction over MSR. Article 5(8) provided that any research about the continental shelves or research on the continental shelves should be consented to by the coastal States. By this 320


means, it established the “Consent Regime.” In fact, such a provision was based on the intention to classify the research on the continental shelves into two categories, namely, pure scientific research about the physical or biological characteristics of the continental shelves, and other types of research. Later practice proved that there was controversy regarding both the interpretation and implementation of that clause. 1982 United Nations Convention on the Law of the Sea It’s safe to say that before the Third United Nations Conference on the Law of the Sea, there were no disputes either theoretically or practically regarding MSR on the high seas. All states enjoyed the freedom of MSR on the high seas. Disputes were over the jurisdiction of coastal States on the MSR conducted on the continental shelves. The debates on MSR at the Third United Nations Conference on the Law of the Sea were basically a continuance of former ones, and the core issue was on the “Consent Regime” of MSR in national jurisdictional waters. The position of China on point is: x

x

x

“Any state which wishes to conduct MSR in the sea areas under other state’s jurisdiction, must have prior consent of that coastal state, and comply with its relevant laws and regulations.” 5 “Economic zones and continental shelves are the sea areas under national jurisdiction by nature, so it’s well-grounded that coastal states have exclusive jurisdiction over MSR conducted in these areas. The proposal of developing countries on the express consent by coastal states over MSR in their economic zones is based on the basic position to maintain security and lawful marine rights of the coastal states.” 6 “Scientific research installations deployed within the jurisdictional sea areas of the coastal states much be under the jurisdiction of the coastal state, except agreed otherwise. The deploying state should respect such jurisdiction of the coastal state, which is a significant principle.” 7

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Through more than 10 years of tedious discussion, UNCLOS became the most explicit international convention in terms of provisions on MSR issues, although MSR law is still somewhat ambiguous. The Convention has basically set up a complete legal regime on MSR by regulating MSR and marine technology transfer in Parts XIII and XIV, respectively. First of all, the Convention explicitly established the basic principles for MSR regulation as follows: x x x

x

MSR shall be conducted exclusively for peaceful purposes (Article 240(a)); MSR shall be conducted using appropriate scientific methods and means compatible with the Convention (Article 240(b)); MSR shall not unjustifiably interfere with other legitimate uses of the sea compatible with the Convention and shall duly respect such uses (Article 240(c)); MSR shall be conducted compatibly with all relevant regulations adopted in conformity with the Convention, including those for the protection and preservation of the marine environment (Article 240(d)).

MSR is classified into two categories in the Convention based on the sea areas where research is conducted. The first category is MSR in the sea areas within national jurisdiction, and the second is the scientific research conducted outside the sea areas of national jurisdiction. Regarding the regime of MSR within the national jurisdictional sea waters: x x x

MSR in territorial seas (internal waters and archipelagic waters) must obtain the “express consent” from relevant coastal States (Articles 19 and 245); MSR in international straits and archipelagic sea lanes must have “prior authorization” from relevant coastal States (Articles 40 and 54); MSR in the EEZ and on the continental shelves (contiguous zones) shall be consented to by coastal States (Articles 56, 58 and 246). Coastal States should, under normal circumstances, grant consent; however, coastal States may in their discretion withhold their consent to the conduct of an MSR project 322


under four circumstances (like the direct significance of the exploration and exploitation of natural resources (Article 246 (5)). MSR regime with regard to the areas outside national jurisdiction is as follows: x x

High Seas: the freedom of MSR is clearly listed in the freedoms enjoyed over high seas in the Convention (Articles 87 and 247); “Areas”: “Authority,” all states and competent international organizations have the right to conduct MSR, but research must be for peaceful purposes and for the benefit of all mankind (Articles 143 and 256). Brief Summary

From this development of a legal regime governing MSR, we can see that the jurisdiction of coastal States on MSR in their jurisdictional sea areas has experienced a change from zero regulation to present-day strict regulation requiring explicit prior consent. THE RELATIONS BETWEEN MSR AND ACTIVITIES SUCH AS SURVEY Relevant Terms The United Nations Convention on the Law of the Sea has not defined terms such as “marine scientific research,” “hydrographic survey “and “marine investigation,” and, therefore, different interpretations of these terms have occurred in theoretically discussion and in state practice. However, the definitions and interpretations are different even in dictionaries. Following are some definitions and interpretations in some dictionaries in China now. Survey The Modern Chinese Dictionary edited by the Dictionary Editorial 323

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Division of the Language Research Institute, Chinese Academy of Social Sciences, published by the Commercial Press in 2004, Beijing, (2002, supplementary edition, Big Character): “to determine the relevant numerical values of space, time, temperature, speed and functions with instruments.” The Word-Ocean Dictionary published by Shanghai Word-Ocean Dictionary Publishing House in 1999, Shanghai, Popular Edition, Book II, p.2598: “generally refers to the work on determining various kinds of physical quantities.” LONGMAN Dictionary of Science and Technology published by LONGMAN Press and Qinghua University in 1996: “(v.) Examine the relevant surface and spatial points that enable the natural or artificial elements to be scaled up on the drawing.” LONGMAN Dictionary of Contemporary English (English-Chinese) published by the Commercial Press in Jan. 2002, the 2nd Edition, Beijing, p.1556: “13. tech to measure and record on a map the details of (an area of land).” The Concise Oxford English Dictionary Edited by Judy Pearsael, Published by the Foreign Language Teaching and Research Press in May 2004, Revised tenth edition, Beijing, p.1443: “v. 2. examine and record the area and features of (an area of land) so as to construct a map, plan, or description. n. 2. an act of surveying.” The Paperback Oxford English Dictionary (English edition), edited by Catherine Soanes, published by the Foreign Language Teaching and Research Press in Dec. 2003, fifth edition, Beijing, p.843: “v. 2. examine and record the features of (an area of land) to produce a 324


map or description; n. 3. an act of surveying.” The English-Chinese Word-Ocean Dictionary edited and translated by Wang Tongyi, Published by the National Defense Industry Press in 1988, Beijing, Vol. M-Z, p.5305: “v. 2. conduct the measurement of the margin and angle, apply the principle of the geometry and trigonometry to determine and collate the features, scopes or locations of (an area of land, seacoast or port).” “n. 3a: examining activity of an area or an area of waters: reconnaissance of any parts of the surface of the earth (land or waters) or depiction of its outline, measurement of its area and determination of its location.” Concise Encyclopedia Britannica, Chinese Edition, published by Chian Encyclopedia Press in July, 1985, in Beijing and Shanghai, Vol.II, p.203: Surveying “(n.) A method that precisely measures the earth surface in a larger area. It includes how to define the measurements data, calculate and process these data so as these data can be in a usable form; reversely, it also includes how to define the relevant position and scale according these data. The purpose of all surveys, either plane survey or geodetic survey, is to precisely define the area and boundary of the ground surface or the waters.” Hydrographic survey Hydrographic Dictionary published by International Hydrographic Organization in 1990: “Hydrographic survey means survey with the purpose for measuring the data of water body. The hydrographic survey can be formed by the following measurement of one or several data: water depth, form and bottom materials of the sea floor, current direction and current speed, tidal height and tidal time, water level, reference position of the fixtures for measurement and navigation.” 325

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The Ocean Dictionary published by Liaoning Publishing House in 1998: “…survey and investigation of the seas, oceans, rivers as well as lakes conducted for guaranteeing military action of the fleet and safety of navigation. It includes harbor survey, coastal survey, near-shore survey and offshore survey. Data obtained during the survey are mainly used for compiling navigation charts. The basic contents of hydrographic survey include control survey, water depth survey, sweeping sea survey, bottom material detection, coastal zone topographic survey, marine hydrographic observation, measuring the navigation aid indicators and investigation on the data of the sea area, etc. With development of science and technology, the contents of hydrographic survey will develop to comprehensive survey.” Military Survey (MS) The Ocean Dictionary published by Liaoning Publishing House in 1998: “refers to the activities to collect oceanographic data in the ocean and coastal waters for military purposes. The data collected through military survey include marine geographic, geological, chemical, biological and acoustic data.” The Word-Ocean Dictionary published by Shanghai Word-Ocean Dictionary Publishing House in 1999, Shanghai, Popular Edition, Book I, p.1070: “…professional technical service to acquire, process, and provide geodetic results, image data, military maps and other military geographic information for the purpose of military use. It includes (1) to produce, store and supply the military geodetic results, and to complete the basic products of military mapping that meets the requirements of the standards, passes through special inspection and reception, and is supplied to the 326


armed forces according to the rules mainly through such processes as astronomic geodetic survey, Ătopographic survey, and oceanographic survey, etc.; (2) to provide military mapping information and results for armed forces commanding, military activities of arms, services and theaters, national defense scientific research, application of weaponry, manoeuvre of the forces, and to carry out quick field mapping and military topographic training.” Marine investigation The Ocean Dictionary published by Liaoning Publishing House in 1998: “Marine investigation means investigation and study on the physical, chemical, biological, geological, geomorphological, meteorological and other marine status at sea. Generally, it is divided into two categories: comprehensive investigation and specialized investigation. The primary tool used for marine investigation is marine research vessels. The observation equipment and instruments equipped onboard the ship are used to measure the marine environmental elements and their changes. With the development of science and technology, the stereo marine observation system composed of research vessels, buoys, aircrafts, satellites, submersible vehicles has been formed that can obtain data comprehensively in the marine environment from the air, surface and underwater.” Marine Scientific Research (MSR) The Ocean Dictionary published by Liaoning Publishing House in 1998: “Marine scientific research, in a broad sense, refers to any study or relevant scientific experiment that can increase knowledge of the mankind. It may involve scientific study under such disciplines as marine geology, marine biology, marine chemistry, marine hydrology, marine meteorology, as well as tidal current study.” 327

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THE RELATION BETWEEN MSR AND MS Marine scientific research is an important component of contemporary natural scientific research. The subject of marine scientific research is the ocean and the surrounding environment (the atmosphere, coast and seabed). The content of marine scientific research is all-embracing and mainly includes research on marine hydrometeorology, marine geology, marine biology, marine chemistry and marine physics. Theoretically speaking, just as may other natural sciences, marine scientific research may be divided into basic scientific research (some call it “pure” scientific research) and applied scientific research for different purposes. The purpose of basic scientific research is to fully understand the ocean, realize the most profound and general natural laws of mankind, and lay the foundation for opening of practical application. The purpose of applied scientific research is to find practical uses for application of known objective facts; it aims at commercial exploitation and utilization of marine resources. Just like other scientific research, however, basic scientific research, and applied scientific research are both correlated to but different from each other in regards to differentiating them from origin, technical means, technical approaches, or results. Besides, both of them serve economic, military and political purposes, directly or indirectly. As a matter of fact, the so-called “pure basic scientific research” that is isolated from social practice and social purpose does not exist. In sum, marine scientific research is a broad concept while other activities such as marine survey and investigation emphasize certain areas, which are used to substantially understand and know the ocean. MAJOR PROBLEMS Looking back on the process of development and evolution of the legal system on marine scientific research, I think that either as a product of the system or from the disputes that have occurred during the process of drafting the relevant international convention that stipulates this system and expresses the final article, disputes over jurisdictional rights of marine 328


scientific research have existed for two centuries. I think that we should look for the root of the problem, that is, the issue of imbalance of development, including the imbalance of the level of marine science and technology across nations. To look at it from the perspective of all humankind, the more profound knowledge that we have of the ocean, the more that people will understand the importance of the ocean and the more deeply they will understand the need to conduct more marine scientific research to benefit all mankind. However, to look at it from the specific perspectives of coastal States, both the nations’ development and the nations’ needs are imbalanced. On the one hand, the technologically-developed States make use of rapidly developing science and technology and have greatly increased the level of exploitation and utilization of the ocean, and their needs and desires for conducting marine scientific research grow even stronger. On the other hand, the developing countries have well understood the importance of the ocean to their national security and the sustainable development of their social and economic institutions. Limited by such factors as technology, human resources, and national strength, their capacity for marine scientific research and practical exploitation and utilization are comparatively weak. Therefore, they cherish and protect the waters under their jurisdiction all the more dearly, hoping to be capable of exploiting and utilizing ocean resources by themselves, and hope that their ocean resources are not threatened and damaged by other countries before they are capable of utilizing them. The issue of imbalance of development will continue to exist and will inevitably influence the field of marine scientific research. We have found the root of the problem, however, we cannot find the solution at the present time — a time during which the development of human society is unable to get balanced. Through decades of joint efforts, states have gradually developed and formulated the legal system on marine scientific research, with the provisions of UNCLOS at its core. The present provisions are basically explicit, with the exception of the following issues: whether military surveys are forms of marine scientific research; whether marine scientific research can be divided into pure marine scientific research and applied 329

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marine scientific research; and how to link the various legal systems established in the United Nations Convention on the Law of the Sea. That is, the relation between jurisdictional rights in the exclusive economic zone and freedom on the high seas, the immunity of military ships in the exclusive economic zone, and the application and implementation of the Convention and other international rules in the national laws of coastal States. The substance of these issues is caused by different national strengths, including the strength and interests of marine scientific research. CONCLUSION UNCLOS, for the most part, is very explicit regarding the MSR legal regime, except some blank spots in areas like definition, so if State Parties to the Convention have sincerity on implementation, the current legal regime is appropriate and practical. It’s hard to differentiate MSR from applied MSR and military survey from the development of science and technology. This is because the output of such activities may apply to many identical fields, such as scientific research, markets and the military. For the purposes of peaceful exploration and exploitation of the oceans, coastal States should strengthen contacts and exchanges, and make every effort to reach consensus and understanding.

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Notes 1

Liu Nanlai, etc. International Law of the Sea, Oceans Press, Beijing, 1986, P409. As early as in the first half of 1400s, Cheng-He led the “Seven Navigations to the Western Oceans,” passed the South China Sea, the Indian Ocean and the Red Sea, and reached as far as the North of Africa. He recorded hydrology, seawater movement and depth change in his voyage. 3 Same as reference 1, p. 412. 4 Same as reference 1, p. 413. 5 See the statements made by Chinese delegates, Official Records of the Third United Nations Conference on the Law of the Sea, Vol.II, P.344. July 19, 1974. 6 See the statements made by Chinese delegates, 1976, People’s Press, p. 183-184, September 14, 1976. 7 See the statements made by Chinese delegates, 1976, People’s Press, P. 76, April 17, 1975. , Wei Min, Vice-editor in Chief, Law Publishing House, 1987, p.316. Idem. 2

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PANEL VII: COMMERCIAL SHIPPING IN THE REGION ________________________

Terror at Sea: Detection and Prevention – The New International Ship and Port Facility Security Code and the Amended SOLAS Chapter XI-2 Nilufer Oral *

INTRODUCTION The terrorist attacks against the United States on September 11, 2001, had profound effects in most every aspect of life, including transport at sea. Immediately following the attack, the United States addressed the 22nd International Maritime Organization (“IMO”) General Assembly and called for the adoption of new measures to improve security on the seas. The IMO, with little haste, responded with the adoption of Assembly resolution A.924 (22), which called for a review of the existing international legal and technical measures to prevent and suppress terrorist acts against ships at sea and in port facilities, and to improve security aboard and ashore. 1 Shortly thereafter, a Diplomatic Conference on Maritime Security was held at the London headquarters of the International Maritime Organization (IMO) from December 9-13, 2002. The Diplomatic Conference resulted in the amendment of Chapter XI of the International Convention for the Safety of Life at Sea (SOLAS), 1974, as amended, introducing regulation XI-2, Special Measures to Enhance Security, and the new International Ship and Port Facility Security Code (ISPS Code). 2 The amended SOLAS regulation XI-2 and the new ISPS Code went into effect July 1, 2004. 3 Undoubtedly, implementation and State practice of the amended regulation and new Code will over time raise questions of both a legal and technical nature. Nevertheless, regulation XI-2 and the ISPS Code introduced for the first time measures intended to prevent the occurrence of a terror incident against a ship or a port facility. Given that some 80 percent of the world’s trade is carried by sea, the security of shipping is of the utmost concern for the world over. Yet, it was only until *

Dr. Oral is Assistant Director of the Istanbul Bilgi Marine Law and Policy Research Center. 335

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the adoption of regulation X-2 and the ISPS Code that measures designed to detect and prevent terror at sea were adopted. It is somewhat of a tragic irony that it was only as a result of a terror attack from the skies that the much-needed security reforms for shipping and port facilities were adopted. Yet, in reality, terror at sea had taken place on numerous occasions prior to the tragedy of September 11. This paper will review the development of international law concerning terror attacks at sea before the amended SOLAS reg. XI-2 and ISPS Code. Thereafter, the state of current international law will be analyzed. THE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION (SUA) AND THE PROTOCOL FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF FIXED PLATFORMS LOCATED ON THE CONTINENTAL SHELF The attack that prompted the adoption of the amended SOLAS reg. XI-2 and the ISPS Code occurred from the skies. However, in the past, there were other acts of terror that took place at sea. One of the most notorious of these was the 1985 Achille Lauro incident. The Achille Lauro was an Italian cruise ship carrying more than 400 persons that was hijacked off the coast of Egypt by a group of terrorists. 4 One of the passengers was shot and then thrown overboard. 5 The hijackers were eventually captured but not without controversy and international law implications concerning arrest, prosecution and jurisdictional issues. Other attacks at sea followed. Armed Chechen separatists hijacked a Turkish ferryboat off the coast of Sinop in the Black Sea with 200 passengers on board. More recently, just a year before September 11, 2001, the USS Cole, a U.S. military ship, was attacked by a small zodiac boat just off the coast of Yemen on October 12, 2000. 6 Two years later a similar attack took place against a French oil tanker, the 332 meter long Limburg, while in the Port of Mina al-Dabah in Yemen, also in the month of October. 7 Both attacks involved the use of small boats, loaded with explosives, ramming into the targets. The international community responded with new measures and international legal instruments. The Achille Lauro incident lead to the adoption of IMO resolution A.584(14) on Measures to Prevent Unlawful Acts which Threaten the Safety of Ships and the Security of their Passengers and Crews. 8 Furthermore, in 1986 the United Nations General 336

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Assembly addressed the problems of terrorism at sea with a request for a study of the problem of terrorism on board ships and recommendations on appropriate measures. Subsequently, in 1988 the IMO adopted the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (SUA) and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf (1988 SUA) 9 . However, the 1988 SUA narrowed its focus to the post-terror attack problems of jurisdiction, apprehension and prosecution when acts of terror are committed at sea in a multi-jurisdictional setting. In the case of Achille Lauro, the offense had occurred on an Italian flag ship while off the Egyptian coast and in the high seas. However, pursuant to a negotiated settlement the terrorists were taken into custody by Egypt but never arrested. When the United States demanded extradition of the terrorists, Egypt claimed to not know of their whereabouts. Nevertheless, as the alleged terrorists were later being secretly flown out of Egypt on an Egyptian jet, U.S. military jets intercepted and forced the Egyptian jet to land in Sicily where the Italians took the alleged terrorists into custody. The Italians refused to extradite the alleged terrorists to the United States and then later released their leader. The incident clearly highlighted the many problems of international terror, including the international legal aspects of asserting jurisdiction and prosecution over acts of terror. On the other hand, the 1988 SUA Rome Convention only included one provision relating to prevention of acts of terror. 10 It fell far short of providing any concrete measures. The international shipping industry remained one of the most vulnerable operations. Millions of tonnes of cargo was being stored in port facilities with little security control then transported in non-secure containers by ships lacking security equipment or security alert systems, manned by crewmembers with little or no background check. 11 Containerized shipping, while affording speed and cost efficiency, presents a security risk as containers can easily be used to hide their “real” contents. This lack of transparency was of concern to the United States in particular that had lobbied the IMO before the September 11, 2001, attacks to adopt the security measures eventually adopted afterwards. 12 In November 2001 the IMOadopted by unanimous vote IMO Assembly resolution A.924(22), which called for a review of measures and procedures to prevent acts of terrorism that threaten the security of passengers and crews and the safety of ships. After the adoption of this 337

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resolution the IMO Legal Committee undertook a revision of the 1988 SUA and its related Protocol and drafted two draft Protocols. A Diplomatic Conference is scheduled to be held in October 2005 for adoption of two Protocols that are intended to strengethen the SUA Convention and complement regulation XI-2 and the ISPS Code. The two Draft Protocols would include broadening the number of offenses that would fall within the purview of Article 3 of the Convention as well as introduce measures for the boarding of vessels suspected of being involved in acts of terrorism. However, despite the title of the Convention – Suppression of Unlawful Acts against the Safety of Maritime Navigation – substantively it provides little in terms of measures for the actual prevention of acts of terror. In addition to the 1988 SUA Convention and its related Protocol, the IMO has sought to address the problem of security with other instruments related to piracy, 13 passenger ferry security, 14 stowaways, 15 and smuggling of drugs, psychotropic substances and precursor chemicals. 16 However, none of these was directed toward the prevention of acts of terrorism at sea or port facilities used in international navigation. Although there is international law directly related to piracy and its prevention under international law, terrorism has proven more controversial. The 1958 Convention on the High Seas provides for a definition of piracy 17 that was adopted in its entirety by the 1982 LOS Convention. 18 Yet, neither Convention included a definition or express provision relating to terrorism at sea. There is no provision relating to the issue of “security.” There is debate as to whether terrorism committed at sea would fall within the meaning of “piracy,” 19 but the restrictive definition of piracy would exclude many incidents, such as the USS Cole and Lindberg, from acts of piracy. Consequently, terrorism at sea, despite its very real threat and potential impact on global security, remained virtually unregulated. In this regard the adoption of regulation XI-2 and the ISPS Code by the IMO was a significant step forward in filling this gap. SOLAS REGULATION XI-2 AND THE ISPS CODE The scholarly debates following the Achille Lauro incident focused on issues concerning piracy under international law 20 and the international law of jurisdiction. 21 The attacks against a French oil tanker and a U.S. military vessel may have raised concerns over security of maritime 338


transportation, but not until the air attacks ofSeptember 11, 2001, did international law redirect its attention toward addressing the need to adopt specific measures to prevent terror attacks at sea and at ports. The response came from the IMO with the adoption of an ostensibly “technical” regulatory scheme, defining itself as a risk-management measure and seeking to “…detect security threats and take preventative measures against security incidents affecting ships or port facilities used in international trade.” 22 SOLAS regulation XI-2 was amended to adopt specific measures toward the prevention of terrorism. Chapter XI-1, which provides for special measures to enhance safety at sea, was amended with regulation XI-2 with the heading of special measures to enhance security at sea, and the related International Ship and Port Facility Security Code (“ISPS Code”). The ISPS Code is divided into two parts: Part A provides for the mandatory provisions and Part B is a set of voluntary guidelines for implementation of regulation X-2 and the ISPS Code. The Code itself lists a number of objectives, including establishing an international framework involving cooperation to detect security threats and take preventative measures. . . . 23 The remaining objectives highlight the technical character of the Code, including among its objectives the establishment of the respective roles and responsibilities of the governments and related governmental units, the establishment of an early risk assessment system with early and efficient information collection to provide a methodology for security assessment, and finally to ensure confidence that “adequate and proportionate” security measures are in place. The Code also provides for functional requirements aimed at meeting the above objectives. Once again these functional requirements are technical in character. For example, the functional requirements include gathering and assessing information with respect to security threats, requiring maintenance of communication protocols for ships and port facilities, preventing unauthorized access to ships and port facilities, preventing the introduction of unauthorized weapons and explosives, establishing an alarm alert system in case of a security threat, requiring preparation of security plans for ships and port facilities, and training and drills for their implementation. The mandatory provisions of the Code apply to the following category of ships engaged in international voyages: (a) all passenger ships; (b) cargo ships 500 gross tonnes and over; and (c) mobile offshore drilling 339

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units as well as port facilities serving such ships on international voyages. 24 War ships, naval auxiliaries and non-commercial government ships belonging to contracting governments are excluded. The Code also applies the “no more favorable treatment” rule allowing contracting governments to hold non-contracting governments to the same requirements. The compliance date for fulfilling the requirements of the ISPS Code by all member governments was July 1, 2004. This required that within a relatively short period of time contracting governments were required to ensure that ships flying their flag that came within the scope of application of the ISPS Code were,inter alia, to be installed with the following: x x x x x

an Automatic Identification System (AIS) 25 ; a Continuous Synopsis Record (CSR) 26 ; an IMO Identification number 27 ; a Ship Security Alert System (SSAS) 28 ; and long-range ship identification tracking.

Furthermore, each ship was to have the following: x

x

a company security officer (CSO) designated by the company responsible for the implementation of the security measures on board the ship 29 ; and a ship security officer (SSO).

The ship also had to be assessed by a Recognized Security Organization (RSO) and have on board a Ship Security Plan (SSP) not available to public access. Upon approval of the SSP by the contracting government the ship would be issued an International Ship Security Certificate (ISSC) valid for five years but subject to verification every second and third year. In addition, with the objective of increasing transparency in one of the most non-transparent industries, Part A of the Code further requires that the master have available at all times the following information: x x

the responsible party for appointing the crew; the responsible party for deciding the employment of the ship; and 340


x

the names of the parties to the charter party, if one exists.

Part A also includes specific responsibilities of the contracting governments to set security levels as a mechanism to alert either incoming ships or port facilities of a possible security threat. 30 In setting the level of a security threat, where a higher level indicates a greater security threat, the Code provides specific criteria upon which such security levels are to take into account the following: x x x x

The degree of credibility of the threat; The degree of corroboration of the threat; The degree of imminence; and The potential consequences of a security incident.

One potential problem, however, is establishing a consistent or unified security level at the international level. According to the Code it is the responsibility of each contracting government to establish its own security level system. A high security level of one contracting government may not match the other and vice-versa, which risks diluting the effectiveness of the system. Nonetheless, notwithstanding this potential problem the Code introduces an interactive ship-to-port and port-to-ship security alert system that did not previously exist. Furthermore, the Code provides for a set of specific activities that are to be carried out depending upon the security level of the port facility 31 or ship. 32 However, the requirement that either ships or contracting governments of a port must comply with a request for Declaration of Security (DoS) appears to be a measure to minimize possible discrepancies between ship and ports or ship-to-ship interface setting of security level and measures taken in response. According to sub-section 5.4 of Part B of the ISPS Code, the purpose of a DoS is “to ensure agreement is reached between the ship and port facility or with other ships with which it interfaces as to the respective security measures each will undertake in accordance with the provisions of their respective approved security plans.” As an additional security precaution, regulation XI-2/9 provides that the contracting government may request certain information from ships as a condition of entry into its ports. For example, the contracting government may request information relating to the last ten ports the ship 341

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had visited, including any special or additional measures taken as conditions of entry into these ports or ship-to-ship activities and related records. 33 The contracting government may also request, as a condition of entry into its port, information contained in the CSR, location of the ship at the time the report is made, expected time of arrival, crew list, general description of cargo and passenger list. 34 Contracting States are also expected to report to other contracting governments information regarding any ship that was denied entry into its port, including the name of the ship, its flag, ship identification number, cargo, reasons for denying entry, nature of any security non-compliance, past ports, crew list and more. The most challenging aspect of the ISPS Code for most, if not all, of the contracting governments was the short period of time and the cost of meeting the compliance requirements by July 1, 2004. All ports and ships falling within the scope of the Code were to complete security assessments, prepare the required security plans, designate the required ship security officers, company security officers and port facility security officer. Contracting governments whose port facilities or ships failed to meet the July 1, 2004, deadline risked a very real economic consequence by being either being banned from entry into port facilities or not being allowed into port facilities, as denial of entry or expulsion from port facilities is one of the sanctions foreseen by the Code. The economic consequences for a non-complying country could be serious. However, by July 1, 2004, more than 50 percent of the contracting governments had met the deadline and the most recent tally reported by the IMO shows the percentage of contacting governments in compliance is more than 90 percent. 35 CONTROL AND COMPLIANCE Part B of the ISPS Code provides voluntary guidelines for implementation of regulation XI-2 and Part A of the Code. It provides guidelines as to, inter alia, setting security levels, preparing security plans for ships and port facilities, control and compliance measures and conducting port State control for compliance regulation XI-2 and Part A. Part B also provides a detailed set of guidelines for the steps to take if “clear grounds” exist for “suspecting” deficiencies in compliance with regulation XI-2 and the Code in two circumstances: (1) when a foreign ship is in the port of a contracting government and subject to port State 342


control inspection; and (2) a foreign ship is intending to enter the port of another contracting government. In both cases, if there are “clear grounds” to believe that a ship is not in compliance, the coastal State is allowed to take further measures. These measures include detention, arrest and even expulsion of the ship. 36 In addition, the Code allows the coastal State to require that ships intending to enter a port facility provide certain types of information so as to ensure compliance with regulation XI-2. Such required information includes confirmation that the ship has a valid International Ship Security Code, the security level of operation of the ship, the security level under which the ship had operated during past ten calls at port, any special or additional security measures taken in previous ports, any records of measures taken while visiting in a port facility, any DoS entered into with other ports or ships, affirmation that appropriate ship security procedures were maintained in ship-to-ship activities in the previous ten calls at port and any other “practical information.” In other words, the information would provide the necessary foundation to assess whether or not a ship poses a security risk. The “clear grounds” standard is found in the provisions of the 1982 LOS Convention Article 220 for enforcement by the coastal State of any violations of its rules and regulations adopted under the Convention itself or in accordance with applicable international rules and standards for the prevention, reduction and control of vessel-source pollution. According to article 220, if there are clear grounds for the coastal State to believe that the vessel has violated such rules in either its territorial waters or exclusive economic zone (and has refused to provide information when requested under subsection 3), the State can detain, inspect and institute proceedings against the ship. However, in cases where the violation occurred in the jurisdiction of another State, according to Article 218 on port State enforcement of vessel source pollution, the port State is restricted to beginning enforcement proceedings only where there has been a request by the other State where the illegal discharge occurred or where there is a threat of damage from the discharge. Clear demarcations have been made for enforcement of vessel-source violations within the national marine jurisdiction of the coastal State and for those that occur beyond. The same demarcations do not exist within the written provisions of regulation XI-2 and the ISPS Code. For example, according to Part B, which is meant only to serve as a “guideline” to implementation of the mandatory provisions, examples of “clear grounds” include the following in subsections 1 through 7: 343

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Subsection 1: “ Evidence from a review of the Certificate that it is not valid or it has expired.” Although not included as one of the reasons, no doubt such a review would also include evidence that the certificate was not authentic. Presumably, such review would occur during an inspection taking place within a port or off shore facility of the contracting government. Subsection 2: “Evidence or ‘reliable’ information that serious deficiencies exist in the security equipment, documentation or other arrangements required by chapter XI-2 and Part A of this Code.” The ISPS Code is drafted so as to be aligned with other regulations that are subject to control by port State control inspection. The language in this section, by employing the standard of “reliable” is consistent. Subsection 3: “Receipt of a report or complaint which, in the professional judgment of the duly authorized officer, contains reliable information clearly indicating that the ship does not comply with the requirements of Chapter XI-2 or Part A of this Code.” The discretionary authority of the duly authorized officer is highlighted in this provision, and once again is consistent with port State control procedure. Subsection 4: “Evidence of observation gained by a duly authorized officer using professional judgment that the master or ship’s personnel is not familiar with essential shipboard security procedures or cannot carry out drills related to the security of the ship or that such procedures or drills have not been carried out.” In this case, the duly authorized officer, instead of secondary information, provides clear grounds based on his/her direct observation of the listed deficiencies. This, of course, implies that the duly authorized officer has engaged in an inspection beyond that of review of the certificate, and has actually boarded the vessel and has had contact with the crew. Subsection 5: “Evidence of observation gained by a duly authorized officer using professional judgment that key members of ship’s personnel are not able to establish proper communication 344


with any other key members of ship’s personnel with security responsibilities on board ship.” Again, as in subsection 4 this provision would imply that the authorized officer boarded ship and engaged in an in-depth inspection of the crewmembers and on-board procedures. Subsection 6: “Evidence or reliable information that the ship has embarked persons or loaded stores or goods at a port facility or from another ship where either the port facility or the other ship is in violation of chapter XI-2 or Part A of this Code and the ship in question has not completed a Declaration of Security, nor taken appropriate, special or additional security measures or has not maintained appropriate ship security measures;” and Subsection 7: “Evidence or reliable information that the ship has embarked persons or loaded stores or goods at a port facility or from another source (eg., another ship or helicopter transfer) where either the port facility or the other source is not required to comply with chapter 37 XI-2 or Part of A of this Code and the ship in question has not completed a Declaration of Security, nor taken appropriate, special or additional security measures or has not maintained appropriate ship security measures.” This example of a situation of “clear grounds” is interesting as it raises potential questions under international law. Firstly, it extends the watch of the coastal State to foreign ports, ships and an undefined “other sources”, all of which lie beyond the State’s national jurisdiction. Thus, the violation that has occurred could theoretically be in a foreign jurisdiction or on the high seas. As stated above, the 1982 LOS Convention employs the “clear grounds” standards when the coastal State seeks to enforce its own regulations for vessel-source pollution when such violations have occurred within its own marine jurisdictions. For enforcement of violations beyond its national jurisdiction by port State control competence, Article 218 requires that there be a request by the State where the violation occurred or where there is a threat of damage from the illegal discharge. Clearly, it is recognized in the Code that the threat posed by a ship whose security is called into question because it is not in compliance with the Code or has had interaction with another ship, port facility or “other source” is serious enough to condone what could amount to an extraterritorial jurisdiction. 345

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In addition, if this tough-minded approach is justified because of the necessary security implications, one cannot help but query as to the implications for “innocent passage”? When would the scenario provided in subsections 6 and 7 call into question the “innocence” or “noninnocence” of the ship? These issues were recognized during the drafting of the amended Chapter XI-2 and ISPS Code. Although couched in a regulatory and “risk management” framework, the ISPS Code poses implications for law of the sea and international law—most notably the definition of “security” and the right of self-defense itself under international law. The right of a State to protect its territory against actual attacks or imminent threats is universally recognized as encoded in Article 51 of the Charter of the United Nations. The possible ramifications of the new security regulation prompted inclusion of Article 4.34 of Part B of the ISPS Code. The provision specifically recognized the “international law implications of regulation XI-2/9” and made it clear that it would “not prejudice the Contracting Government from taking measures having a basis in, and consistent with, international law to ensure the safety or security of persons, ships, port facilities and other property in cases where the ship, although in compliance with Chapter XI-2 and Part A of this Code, is still considered to present a security risk.” Consequently, a coastal State is not restricted from taking action against a vessel where it has reason to suspect that the ship is engaged in activities posing a threat to its security, even if the ship were technically in compliance with regulation XI-2 and the ISPS Code. For example, if a Contracting Government received information that a ship entering its internal waters or heading for a port was carrying terrorists from a terror organization known to be planning attacks against its national security, the fact that the ship was carrying an ISSC would not in any way restrict the rights of the Contracting Government to take actions as permitted under international law. This is consistent with the fact that the 1982 Convention is expressly limited to the “law of peace” and does not impair the rights of States under the “law of war.” CONCLUSION The amended SOLAS regulation XI-2 and the ISPS Code were muchneeded and long-awaited measures in the worldwide cooperative effort for 346


the protection against and, ultimately, prevention of acts of terror. International shipping and port facilities are especially vulnerable to potential attacks. However, despite the numerous acts of terror at sea in the past, the international measures adopted, i.e. the 1988 SUA Convention and its related Protocol, focused on post-attack problems such as jurisdiction, arrest and prosecution. Furthermore, although the 1982 LOS Convention included provisions relating to piracy, no parallel provisions for terror were included. This was a reflection of the stage of development of the terrorist problem at the time of the negotiations and the lack of agreement on the definition of “terror.” As a risk detection system the amended SOLAS regulation XI-2 and the ISPS Code involve enhanced information delivery requirements by use of AIS, CSR, and other technology. State-to-State cooperation is also an important aspect of the system. However, ultimately the implementation of the regulation and Code will depend upon the Contracting Governments. Each will be responsible for ensuring flag State control of compliance for their ships. However, through port State control measures, the coastal State will be able to exert significant influence in promoting compliance with the available sanctions of detention, arrest and expulsion from the port. If the ship is truly on a terror mission, these measures may or may not be practicable or sufficiently effective to protect against an attack. Nonetheless, at the very least they do have an overall deterrence value. Furthermore, the international law implications of the “control and compliance” measures in Regulation XI-2/9 were recognized, and care was taken to avoid in any way limiting the right of a Contracting Government to protect its security as permitted under international law. Clearly, a vessel engaged in passage of a hostile nature against the coastal State could be deemed to be engaged in non-innocent passage. The provisions of regulation XI-2 and the ISPS do not alter the right and duties of States to engage in self-defense under the U.N. Charter and customary international law. The new IMO measures are a positive step toward worldwide cooperation against terror. But clearly they should not be viewed as the sole solution. Vigilance in their implementation and international cooperation at all levels remains the sine non qua if the system is to be effective.

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Notes 1

The 22nd IMO General Assembly in November 2001 adopted resolution A.924(22) on the review of measures and procedures to prevent acts of terrorism which threaten the security of passengers and crews and the safety of ships. 2 H. Hesse, IMO Activities to Enhance Maritime Security <ehttp://www.imo.org/includes/blastDataOnly.asp/data_id%3D8802/IMOactivitiesonma ritimesecurity12-2003.doc> 3 Imo doc. MSC 78/7 Annex (Proposed Draft Amendment to SOLAS XI-2 Measures to Enhance Maritime Security) 4 The hijackers demanded the release of 50 Palestinian prisoners being held by Israel. 5 Leon Klinghoffer was a 69-year-old American passenger who was in a wheelchair at the time he was thrown overboard. 6 Two US sailors were killed in the attack which created a 40-foot by 40-foot gash in the port side of the Cole. . 7 The attack took place October 6, 2002. One crew member was killed in the attack and 90,000 tonnes of oil spilled. http://en.wikipedia.org/wiki/Limburg_tanker_bombing. 8 Adopted in November 1985. See . 9 Adopted March 10, 1988, in Rome. Entry into force March 1, 1992. . 10 Article 13 requires states to cooperate in the prevention of offenses by: (a) taking all practicable measures to prevent preparation in their respective territories for the commission of those offences within or outside their territories; (b) exchanging information in accordance with their national law, and coordinating administrative and other measures as appropriate to prevent the commission of offences set forth in article 3. See also, M. Halberstam, Terrorism on the high seas: the Achille Lauro, Piracy and the IMO convention on maritime safety, American Journal of International Law (1988). 11 For a detailed analysis of ship security problems and international law before the adoption of Reg. XI-2 and ISPS Code see, J.C.S. Mellor, “Missing the Boat: the Legal and Practical Problems of the Prevention of Maritime Terrorism” American University Law Review 341 (2002). 12 The United States adopted the “Contained Security Initiative” by which U.S. customs control would be conducted at the port of origin of the container where the contents could be searched before arriving at a US port. Ibid. , p. 356. 13 IMO doc. MSC/Circs. 622 and 623, as revised, on Guidelines for administration and industry on combating acts of piracy and armed robbery against ships. 14 IMO doc. MSC/Circ. 754 on Passenger Security. 15 IMO doc. Assembly resolution A.871(20). 16 IMO doc. Assembly resolution A. 872(20). 17 Article 15. 18 Article 101. 19 After the Achille Lauro incident there was debate as to whether the hijacking and taking of hostages aboard a ship would constitute an act of “piracy” under international law. See, Gooding, “Fighting Terrorism in the 1980’s: The Interception of the Achille Lauro Hijackers”, 12 Yale J. Int’l L. 158 (1987); G. P. McGinley, “The Achille Laura 348

Terror at Sea: Detection and Prevention Affair, Implications for International Law”, 52 Tenn. L. Rev 691 (1985); S.P. Menefee, “The ‘New Jamaica Discipline’ Problems with Piracy, Maritime Terrorism and the 1982 Law of the Sea”, 6 Conn. J. Int’l L. 127 (1990); T. Garmon’ “International Law of the Sea: Reconciling the Law of Piracy and Terrorism in the Wake if September 11th ,” 27 Mar. Law. 257 (2002). 20 M. Halberstam, Terrorism on the High Seas: the Achille Lauro, Piracy and the IMO Convention on Maritime Safety, AJIL 269 (1988); S.P.Menefee, Anti-Piracy Law in the Year of the Oceans: Problems and Opportunity ILSA 310 (1999). 21 R.A. Martin, “Problems in International Law Enforcement,” Fordham L. J. 519 (1991); L.A. McCullough, International and Domestic Criminal Law Issues in the Achille Lauro Incident: A Functional Analysis, Naval L.R. 53 (1986). 22 ISPS Code Part A, 1.2.1. 23 Article 1.2.1, ISPA Code, Part A. 24 Article 3.1 ISPA Code. Part A. 25 SOLAS Reg. XI-V/19, which applied to ships between 300-50,000 GT other than passenger ships and tankers. Ships over 50,000 GT and passenger ships as well as tankers are already required to be fitted with an AIS on or before July 1, 2004, under previous amendments made to SOLAS in 2000. 26 SOLAS Reg. XI-1/5. The CRS is to provide an on-board history of the ships including such information as its name of flag state, date of registry, IMO number, port of registration, name of registered owner(s) and address(es), name of registered bareboat charterers, name of company responsible for safety management of ship under SOLAS Reg. IX/1, name of all classification societies under which ship is classed, name of Administration that has issued the DOC for the ISM Code, name of Administration that has issued the SMC for the ISM Code and the name of Administration that has issued the ISSC for Part A of the ISPS Code. 27 SOLAS Reg. XI-1/3. 28 SOLAS Reg. XI-2/6. 29 SOLAS Reg. XI-2/4 and ISPS Code S.6-13. 30 The Code provides for three levels of security: Level “1” (lowest)- Level “3”(highest). Article 2 – “Definitions” provides the meaning to be accorded to each of the three levels. See, Article 2.1.9-2.1.11. 31 Article 14. 32 Article 7 for ship security. For example, in the case of a ship declaring security level 1the lowest level of security- activities that are to be performed include ensuring performance of all ship security duties. Control access to the ship, control embarkation of persons and their effects, monitor restricted areas, etc. 33 Part B, Articles 4.37 and 4.38. 34 Ibid., Article 4.39. 35 See, <www.imo.org>. 36 SOLAS reg. XI-9/3/3.3. 37 The terms “chapter” and “regulation” have been used interchangeably by the IMO in relation to XI-2 of SOLAS.

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Proliferation Security Initiative (PSI): Countering Proliferation by Sea J. Ashley Roach *

DEVELOPMENT OF THE PROLIFERATION SECURITY INITIATIVE (PSI) In December 2002, two events occurred that led to development of the Proliferation Security Initiative: the case of the Cambodian-flagged M/V SOSAN and the publishing of the U.S. National Strategy to Combat Weapons of Mass Destruction. The Case of the Cambodian-flagged M/V SOSAN On December 9, 2002, Spanish forces located 15 scud missiles, conventional warheads and rocket propellant under a cargo of cement after stopping in the Arabian Sea, this North Korean-owned vessel that had sought to conceal its true identity and nationality. Only the cement was manifested. The vessel was said to be headed for Socotra. After consultations at the highest levels, on December 11, the vessel was permitted to proceed to Yemen. 1 U.S. National Strategy to Combat Weapons of Mass Destruction In December 2002, the U.S. National Strategy to Combat WMD was published. 2 It declared that combating WMD was a top national security priority for the United States. It called for enhanced interdiction capabilities. Interdiction was defined broadly, including military, law enforcement and diplomacy. Thereafter, President Bush launched the PSI on May 31, 2003, during a speech in Krakow, Poland as a cooperative framework to coordinate national actions supporting interdiction. He said: The greatest threat to peace is the spread of nuclear, chemical and biological weapons. And we must work together to stop proliferation. . . . When weapons of mass *

JAGC, Captain USN (ret’d), Office of the Legal Adviser, U.S. Department of State. 351

J. Ashley Roach

destruction or their components are in transit, we must have the means and authority to seize them. So today I announce a new effort to fight proliferation called the Proliferation Security Initiative. The United States and a number of our close allies, including Poland, have begun working on new agreements to search planes and ships carrying suspect cargo and to seize illegal weapons or missile technologies. Over time, we will extend this partnership as broadly as possible to keep the world’s most destructive weapons away from our shores and out of the hands of our common enemies. 3 PSI thus began with 11 like-minded states (Australia, France, Germany, Italy, Japan, the Netherlands, Poland, Portugal, Spain, the United Kingdom and the United States). 4 Over the following three months these countries developed a Statement of Interdiction Principles to which they agreed on September 4, 2003, in Paris. 5 One year later, on May 31, 2004, 61 nations joined together in Krakow to express broader political support for the Initiative. 6 STATEMENT OF INTERDICTION PRINCIPLES The Statement of Interdiction Principles represents a political commitment by states to strongly use their national capabilities to interdict shipments of nuclear, chemical, and biological weapons, related materials, and their means of delivery that are of proliferation concern. The Statement of Principles specifically says that all actions will be taken consistent with national legal authorities and international law and frameworks. 7 While the Statement of Interdiction Principles does not list countries of proliferation concern, participants noted in a statement from the July 2003 meeting in Brisbane, Australia, that North Korea and Iran are of concern. 8 For its part, the United States has indicated publicly that Syria is also a country of concern. 9 Nevertheless, PSI efforts are not aimed at any one country, but at halting worldwide trafficking in WMD, delivery systems, and related materials. 10

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Proliferation Security Initiative (PSI): Countering Proliferation by Sea

Key Maritime Commitments The Statement of Interdiction Principles sets out the following policies and practices to prevent shipments by sea to or from states or non-state actors of proliferation concern:

x PSI participants commit not to transport or assist in the transport of WMD cargoes to or from states or non-state actors of proliferation concern; and x PSI participants commit not to allow any persons subject to their jurisdiction to do so. 11 In addition, the Statement of Principles addresses PSI participants in their separate capacities as flag States and as coastal and port States. As Flag States On their own initiative or at the request of other states after good cause has been shown, PSI participant flag States commit to board, search and seize cargo on any vessel flying their flag, in their own internal waters or territorial seas, or in areas beyond the territorial seas of any state. The standard for action is “reasonably suspected of transporting.” 12 In addition, a PSI participant flag State commits to seriously consider providing consent to the boarding and searching of its own flag vessels by other states, and to the seizure of such WMD-related cargoes in such vessels that may be identified by such states, under the appropriate circumstances. 13 The Statement of Principles acknowledges flag States’ constant flexibility to decide on the appropriate circumstances for consent to be granted to other states to board, search and seize, either in advance or on a case-by-case basis. As Coastal and Port States As coastal States, PSI participants commit to board and search vessels that are reasonably suspected of carrying such cargoes located in their internal waters, territorial seas, or contiguous zones (when declared), and to seize such cargoes that are identified. 14 As port States, PSI participants 353

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commit to enforce conditions on vessels entering or departing their ports, internal waters, or territorial seas that are reasonably suspected of carrying such cargoes, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry. 15 If their ports are used as transshipment points for shipments of such cargoes to or from states or non-state actors of proliferation concern, PSI participant States commit to inspect such vessels that are reasonably suspected of carrying such cargoes, and to seize such cargoes that are identified. 16 BILATERAL SHIP BOARDING AGREEMENTS At an October 2003 PSI meeting in London, the United States presented proposals to conclude bilateral shipboarding agreements, similar to its arrangements for counter narcotics shipboardings, to gain rapid consent to board vessels suspected of carrying WMD-related cargoes, consistent with the Statement of Interdiction Principles. PSI participants welcomed the effort, provided comments on the U.S. draft, and agreed that proceeding in bilateral manner would be most productive. In 2004, the United States concluded agreements with Panama, Liberia and the Marshall Islands. 17 Taken together, these four registries contain more than 30 percent of world’s gross tonnage of merchant ships. 18 Each of these countries indicated that signing the agreements was meant to signal that their registries were reliable and law-abiding. The United States is engaged in consultations and negotiations with more than 20 additional countries and the United Kingdom has indicated it is pursuing similar agreements with several countries. Operational Content of Agreements The agreements establish the basis for any PSI shipboarding by:

x Defining WMD as the basis for boarding vessels flagged by bilateral treaty partners; x Stating that only commercial and private vessels are covered; x Establishing reciprocal rights and obligations; x Providing that the standard for any PSI shipboarding is the presence of “reasonable grounds to suspect” the vessel is engaged in this conduct; and 354


x Limiting the application of the agreements to international waters, i.e., “seaward of any State’s territorial sea.” The agreements provide for communications between Competent Authorities who must be available at any time to receive, process and respond to requests for confirmation of nationality and boarding. The process would normally begin by alerting the Competent Authority of the treaty partner, requesting confirmation of the nationality of the suspect vessel, and if nationality is confirmed, requesting authorization to board and search. The agreements list the items to be included in the requests. The request may be oral, but must be followed up with a timely written request. The request would also include authorization to detain the vessel if evidence of proliferation by sea is found, as well as to detain the cargo and persons on board pending expeditious disposition instructions from the Competent Authority of the flag State. The agreements list the range of possible responses by the Competent Authority if the vessel’s nationality is confirmed:

x Conduct the boarding and search with its own security force officials; x Authorize the boarding by the requesting party; x Conduct the boarding and search together with the requesting party; or x Deny permission to board and search. To avoid delay and the potential for destruction of evidence, the agreements provide a short timeline for the Competent Authority to respond to the requests to verify nationality and for authorization to board and search. Depending on the capabilities and necessary internal procedures of the flag State, the requested party is to respond within a fixed time limit, two or four hours of acknowledging receipt of requests. The agreements also address what actions are permissible if, after acknowledging receipt of request, there is no further response to the request. A model PSI shipboarding agreement is set out in Appendix I along with a more detailed analysis of most of its provisions, including their consistency with the international law of the sea. 19 355

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REVIEW AND ASSESSMENT OF OPERATIONAL LAW Operational legal experts met during the operational experts meetings in Washington in December 2003, Ottawa in April 2004, Oslo in August 2004, and Sydney in December 2004 to review and share each country’s maritime authorities to take actions in support of the PSI. The reviews identified gaps in each state’s legal authorities and areas for training during operational exercises. The participants have agreed that it is not necessary for all states to have identical authorities; instead, a goal of the PSI is to maximize activity by calling on individual states with authority and capability suited to a given interdiction. MARITIME TRAINING EXERCISES One element of the Interdiction Principles is a commitment to maximize coordination among participants in interdiction efforts. 20 This is carried out, in the maritime context, in part through preparation for and participation in exercises. Of the 13 PSI exercises conducted from September 2003 until March 2005, the following 7 have been maritimebased:

x Australian-led exercise in the Coral Sea, September 10-13, x x x x x x

2003; Spanish-led exercise in the Mediterranean, October 13-17, 2003; French-led exercise in the Mediterranean, November 25-27, 2003; U.S.-led exercise in the Arabian Sea, January 11-17, 2004; Italian-led exercise in the Mediterranean, April 19-22, 2004; Japanese-led exercise in the Pacific near Tokyo Bay, October 25-27, 2004; 21 and U.S.-led exercise in the Caribbean Sea, November 8-18, 2004. 22 The U.S.-Liberia PSI shipboarding agreement was used during this exercise.

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In addition, the U.S. Naval War College hosted a maritime interdiction game September 27 through October 1, 2004, which tested many of the concepts that have been under review in the operational experts groups. Three maritime exercises are planned for 2005: a Portugese-led exercise in the Atlantic, April 8-11, 2005; a Singaporean-led exercise in the Western Pacific and the port of Singapore, August 15-18, 2005; and a British-led exercise in the Indian Ocean (Q4 2005). CASE STUDY – BBC CHINA The BBC China, a German-owned ship (flagged in Antigua and Barbuda), was suspected by the United Kingdom and the United States of carrying uranium centrifuge parts to Libya. In early October 2003 a request was made to the German government to search the ship. The German government agreed and had the owner, BBC Chartering & Logistic GmbH & Co., bring the ship in to the Italian port of Taranto, where centrifuge parts were removed by Italian customs before permitting the ship to continue on its itinerary. 23 In the context of PSI, the following points should be noted:

x Only four states participated, demonstrating that it is not x x x x x x

essential that all PSI participants be involved in an actual interdiction. Information was essential to the success of the interdiction. Cooperation of the owner of the vessel was essential. Cooperation of the Italian port authorities was also essential to the interdiction. All activities were consistent with international and national legal requirements. The successful interdiction was a factor in Libya’s decision to forego its nuclear weapons capabilities and to take key steps to rejoin the international community. The interdiction helped unravel the A.Q. Khan network in black-market nuclear technology. 24

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UN SECURITY COUNCIL RESOLUTION 1540 The Proliferation Security Initiative is part of an overall counterproliferation effort intended to apply intelligence, diplomacy, law enforcement, and other available tools to prevent transfers of weapons of mass destruction and related items to countries and entities of concern. UN Security Council Resolution (hereinafter, UNSCR) 1540, proposed by President Bush and adopted unanimously by the Security Council on April 28, 2004, calls on all states to take cooperative action to prevent trafficking in weapons of mass destruction. 25 UNSCR 1540 and the PSI Statement of Interdiction Principles are mutually reinforcing and are legally and politically compatible. UNSCR 1540 recognizes the threat to international peace and security posed by the proliferation of WMD and outlines concrete actions that states can take to counter this threat. Among other steps, operative paragraph 10 of UNSCR 1540 calls upon all states “in accordance with their national legal authorities and legislation and consistent with international law” to take cooperative action to stop, impede, intercept and otherwise prevent the illicit trafficking in these weapons, their means of delivery and related materials. The PSI and its Statement of Interdiction Principles identify steps that can produce the kind of cooperation called for in UNSCR 1540. Accordingly, PSI is completely consistent with the UNSC Resolution. Furthermore, UNSCR 1540’s decision under Chapter VII of the UN Charter that all states shall develop effective border, national export, transshipment, end-user and physical protection controls to prevent proliferation is consistent with and, in fact, bolsters the Statement of Interdiction Principles’ call for nations to “review and work to strengthen their relevant national legal authorities where necessary ... [and] international law and frameworks in appropriate ways to support these commitments.” 26 SUMMARY The growing WMD threat and recent proliferation trends require new, more proactive tools to counter proliferation. President Bush identified interdiction as a key tool and launched the PSI to build global support and capabilities. The PSI has established solid diplomatic and operational foundation for interdiction efforts. More than 60 countries support the PSI. More than 30 countries have participated in a series of air, land, and sea interdiction exercises. The United States is working with the other 358


participants on outreach to broaden international support and capabilities. 27 UNSCR 1540 recognizes that all states need to do more to counter proliferation, and calls on states to take cooperative action to prevent the proliferation of WMD. 28 Weapons of mass destruction – nuclear, biological and chemical – in the possession of hostile states and terrorists represent one of the greatest security challenges facing the international community. President Bush believes that “[i]n the new world we have entered, the only path to peace and security is the path of action.” 29 So long as the actions taken are consistent with the international law of the sea, they pose no threat to the international legal order governing the oceans or to the sovereignty of states in Asia or elsewhere in the world.

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APPENDIX I DRAFT AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF [....] CONCERNING COOPERATION TO SUPPRESS THE PROLIFERATION OF WEAPONS OF MASS DESTRUCTION, THEIR DELIVERY SYSTEMS, AND RELATED MATERIALS BY SEA 30 Opening The Government of the United States of America and the Government of [....] (hereinafter, “the Parties”); PREAMBLE First paragraph Deeply concerned about the proliferation of weapons of mass destruction (WMD), their delivery systems, and related materials, particularly by sea, as well as the risk that these may fall into the hands of terrorists; Second paragraph Recalling the 31 January 1992 United Nations Security Council Presidential statement that proliferation of all WMD constitutes a threat to international peace and security, and underlines the need for Member States of the UN to prevent proliferation; Commentary The UNSC Presidential Statement reads as follows: 360


NOTE BY THE PRESIDENT OF THE SECURITY COUNCIL, S/23500, 31 January 1992. At the conclusion of the 3046th meeting of the Security Council, held at the level of Heads of State and Government on 31 January 1992 in connection with the item entitled “The responsibility of the Security Council in the maintenance of international peace and security,” the President of the Security Council, His Excellency Dr. Boutros Boutros-Ghali, made a statement on behalf of the members of the Council. With regard to the issue of disarmament, arms control and weapons of mass destruction, the President of the Security Council stated: The members of the Council, while fully conscious of the responsibilities of other organs of the United Nations in the fields of disarmament, arms control and non-proliferation, reaffirm the crucial contribution which progress in these areas can make to the maintenance of international peace and security. They express their commitment to take concrete steps to enhance the effectiveness of the United Nations in these areas. The members of the Council underline the need for all Member States to fulfil [sic] their obligations in relation to arms control and disarmament; to prevent the proliferation in all its aspects of all weapons of mass destruction; to avoid excessive and destabilizing accumulations and transfers of arms; and to resolve peacefully in accordance with the Charter any problems concerning these matters threatening or disrupting the maintenance of regional and global stability. They emphasize the importance of the early ratification and implementation by the States concerned of all international and regional arms control arrangements, especially the START and CFE Treaties. The proliferation of all weapons of mass destruction constitutes a threat to international peace and security. The members of the Council commit themselves to working to prevent the spread of technology related to the research for or production of such weapons and to take appropriate action to that end. 361

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On nuclear proliferation, they note the importance of the decision of many countries to adhere to the NonProliferation Treaty and emphasize the integral role in the implementation of that Treaty of fully effective IAEA safeguards, as well as the importance of effective export controls. The members of the Council will take appropriate measures in the case of any violations notified to them by the IAEA. On chemical weapons, they support the efforts of the Geneva Conference with a view to reaching agreement on the conclusion, by the end of 1992, of a universal convention, including a verification regime, to prohibit chemical weapons. Third paragraph Also recalling United Nations Security Council Resolution 1540 (2004), which calls on all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials; Commentary UN Security Council Resolution 1540 (2004), adopted on April 28, 2004, provides: The Security Council, Affirming that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery,* constitutes a threat to international peace and security, Reaffirming, in this context, the Statement of its President adopted at the Council’s meeting at the level of Heads of 362


State and Government on 31 January 1992 (S/23500), including the need for all Member States to fulfil [sic] their obligations in relation to arms control and disarmament and to prevent proliferation in all its aspects of all weapons of mass destruction, Recalling also that the Statement underlined the need for all Member States to resolve peacefully in accordance with the Charter any problems in that context threatening or disrupting the maintenance of regional and global stability, Affirming its resolve to take appropriate and effective actions against any threat to international peace and security caused by the proliferation of nuclear, chemical and biological weapons and their means of delivery, in conformity with its primary responsibilities, as provided for in the United Nations Charter, Affirming its support for the multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear, chemical or biological weapons and the importance for all States parties to these treaties to implement them fully in order to promote international stability, Welcoming efforts in this context by multilateral arrangements which contribute to non-proliferation, Affirming that prevention of proliferation of nuclear, chemical and biological weapons should not hamper international cooperation in materials, equipment and technology for peaceful purposes while goals of peaceful utilization should not be used as a cover for proliferation, Gravely concerned by the threat of terrorism and the risk that non-State actors* such as those identified in the United Nations list established and maintained by the Committee established under Security Council resolution 1267 and those to whom resolution 1373 applies, may acquire, 363

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develop, traffic in or use nuclear, chemical and biological weapons and their means of delivery, Gravely concerned by the threat of illicit trafficking in nuclear, chemical, or biological weapons and their means of delivery, and related materials,* which adds a new dimension to the issue of proliferation of such weapons and also poses a threat to international peace and security, Recognizing the need to enhance coordination of efforts on national, subregional, regional and international levels in order to strengthen a global response to this serious challenge and threat to international security, Recognizing that most States have undertaken binding legal obligations under treaties to which they are parties, or have made other commitments aimed at preventing the proliferation of nuclear, chemical or biological weapons, and have taken effective measures to account for, secure and physically protect sensitive materials, such as those required by the Convention on the Physical Protection of Nuclear Materials and those recommended by the IAEA Code of Conduct on the Safety and Security of Radioactive Sources, Recognizing further the urgent need for all States to take additional effective measures to prevent the proliferation of nuclear, chemical or biological weapons and their means of delivery, Encouraging all Member States to implement fully the disarmament treaties and agreements to which they are party, Reaffirming the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts,

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Determined to facilitate henceforth an effective response to global threats in the area of non-proliferation, Acting under Chapter VII of the Charter of the United Nations, 1. Decides that all States shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery; 2. Decides also that all States, in accordance with their national procedures, shall adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them; 3. Decides also that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials and to this end shall: (a) Develop and maintain appropriate effective measures to account for and secure such items in production, use, storage or transport; (b) Develop and maintain appropriate effective physical protection measures; (c) Develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international 365

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cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law; (d) Establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and reexport and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations; 4. Decides to establish, in accordance with rule 28 of its provisional rules of procedure, for a period of no longer than two years, a Committee of the Security Council, consisting of all members of the Council, which will, calling as appropriate on other expertise, report to the Security Council for its examination, on the implementation of this resolution, and to this end calls upon States to present a first report no later than six months from the adoption of this resolution to the Committee on steps they have taken or intend to take to implement this resolution; 5. Decides that none of the obligations set forth in this resolution shall be interpreted so as to conflict with or alter the rights and obligations of State Parties to the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and the Biological and Toxin Weapons Convention or alter the responsibilities of the International Atomic Energy Agency or the Organization for the Prohibition of Chemical Weapons; 6. Recognizes the utility in implementing this resolution of effective national control lists and calls upon all Member 366


States, when necessary, to pursue at the earliest opportunity the development of such lists; 7. Recognizes that some States may require assistance in implementing the provisions of this resolution within their territories and invites States in a position to do so to offer assistance as appropriate in response to specific requests to the States lacking the legal and regulatory infrastructure, implementation experience and/or resources for fulfilling the above provisions; 8. Calls upon all States: (a) To promote the universal adoption and full implementation, and, where necessary, strengthening of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear, biological or chemical weapons; (b) To adopt national rules and regulations, where it has not yet been done, to ensure compliance with their commitments under the key multilateral nonproliferation treaties; (c) To renew and fulfil [sic] their commitment to multilateral cooperation, in particular within the framework of the International Atomic Energy Agency, the Organization for the Prohibition of Chemical Weapons and the Biological and Toxin Weapons Convention, as important means of pursuing and achieving their common objectives in the area of non-proliferation and of promoting international cooperation for peaceful purposes; (d) To develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws; 9. Calls upon all States to promote dialogue and cooperation on nonproliferation so as to address the threat 367

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posed by proliferation of nuclear, chemical, or biological weapons, and their means of delivery; 10. Further to counter that threat, calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials; 11. Expresses its intention to monitor closely the implementation of this resolution and, at the appropriate level, to take further decisions which may be required to this end; 12. Decides to remain seized of the matter. ___________________________ * Definitions for the purpose of this resolution only: x Means of delivery: missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons that are specially designed for such use. x Non-State actor: individual or entity not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution. x Related materials: materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.

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The text of UNSCR 1540 is available online at . Fourth paragraph first clause Mindful of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, done at Paris 13 January 1993; Commentary The Chemical Weapons Convention (CWC) prohibits all development, production, acquisition, stockpiling, transfer, and use of chemical weapons. It requires each State Party to destroy chemical weapons and chemical weapons production facilities it possesses, as well as any chemical weapons it may have abandoned on the territory of another State Party. The CWC requires States Parties to adopt national implementing measures, including penal legislation, to prohibit persons from engaging in any activity prohibited to a State Party under the Convention. The CWC also contains provisions on assistance in case a State Party is attacked or threatened with attack by chemical weapons and on promoting trade in chemicals and related equipment among States Parties for peaceful purposes. The text of the CWC may be found online at and . The United States is party to the CWC. A list of the parties to the CWC may be found online at . Fourth paragraph Second Clause the Treaty on Nonproliferation of Nuclear Weapons, done at Washington, London and Moscow 1 July 1968; and

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Commentary Among the obligations established by the Treaty on Nonproliferation of Nuclear Weapons (NPT) are the following:

x Nuclear weapon States (NWS) are not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices, or control over such weapons or devices, directly or indirectly, and are not to assist, encourage, or induce any non-nuclear weapon States (NNWS) to manufacture or otherwise acquire them.

x NNWS are not to receive from any transferor nuclear weapons or other nuclear explosive devices, or control over such weapons or devices directly or indirectly, nor seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices.

x NNWS must accept IAEA safeguards on all source and special fissionable materials in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere.

x Every NPT Party is obligated not to provide to any NNWS any source or special fissionable material, or any equipment or material especially designed or prepared for the processing, use or production of special fissionable material, unless the source or special fissionable material will be subject to the IAEA safeguards required by the NPT.

x All Parties are obligated to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials, and scientific and technological information for the peaceful uses of nuclear energy. The text of the NPT may be found online at . 370


The United States is party to the NPT. A list of the parties to the NPT may be found online at . Fourth paragraph Third Clause the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, done at Washington, London and Moscow 10 April 1972; Commentary The States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (BWC) are obligated (1) not to develop, produce, stockpile, or otherwise acquire or retain microbial or other biological agents or toxins of types and in quantities that have no justification for prophylactic, protective, or other peaceful purposes; (2) not to develop, produce, stockpile, or otherwise acquire or retain weapons, equipment, or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict; (3) to destroy, or to divert to peaceful purposes (not later than nine months after the entry into force of the Convention) all such agents, toxins, weapons, equipment, and means of delivery; (4) not to transfer to any recipient, and not in any way to assist, encourage, or induce others to manufacture or otherwise acquire any such agents, toxins, weapons, equipment, or means of delivery; and (5) to take necessary measures to prohibit and prevent the above activities within their own territories. Although the BWC does not explicitly prohibit “use” of biological weapons, the Final Declaration of the 1996 Treaty Review Conference reaffirmed that “use” is necessarily also considered to be a violation of the Convention. The text of the BWC may be found online at . The United States is party to the BWC. A list of the parties to the BWC may be found online at and .

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Fifth Paragraph Further recalling the International Ship and Port Facility Security Code, adopted by the International Maritime Organization on 12 December 2002; Commentary The International Ship and Port Facility Security Code (ISPS Code) is a comprehensive set of measures to enhance the security of ships and port facilities, developed in response to the perceived threats to ships and port facilities in the wake of the 9/11 attacks in the United States. The ISPS Code is implemented through chapter XI-2, Special Measures to Enhance Maritime Security, in the annex to the International Convention for the Safety of Life at Sea (SOLAS). The ISPS Code has two parts, one mandatory and one recommendatory. In essence, the Code takes the approach that ensuring the security of ships and port facilities is a risk management activity and that, to determine what security measures are appropriate, an assessment of the risks must be made in each particular case. The purpose of the Code is to provide a standardized, consistent framework for evaluating risk, enabling governments to offset changes in threats with changes in vulnerability for ships and port facilities through determination of appropriate security levels and corresponding security measures. The United States is a Contracting Party to SOLAS. A list of the parties to SOLAS may be found through the links at . Sixth Paragraph Acknowledging the widespread consensus that proliferation and terrorism seriously threaten international peace and security; 372


Seventh Paragraph Convinced that trafficking in these items by States and nonstate actors of proliferation concern must be stopped; Eighth Paragraph Guided by the Statement of Interdiction Principles for the Proliferation Security Initiative; Commentary The Statement of Interdiction Principles for the Proliferation Security Initiative, adopted in Paris, September 4, 2003, reads as follows: PSI participants are committed to the following interdiction principles to establish a more coordinated and effective basis through which to impede and stop shipments of WMD, delivery systems, and related materials flowing to and from states and non-state actors of proliferation concern, consistent with national legal authorities and relevant international law and frameworks, including the UN Security Council. They call on all states concerned with this threat to, international peace and security to join in similarly committing to: (1) Undertake effective measures, either alone or in concert with other states, for interdicting the transfer or transport of WMD, their delivery systems, and related materials to and from states and non-state actors of proliferation concern. “States or non-state actors of proliferation concern” generally refers to those countries or entities that the PSI participants involved establish should be subject to interdiction activities because they are engaged in proliferation through: (1) efforts to develop or acquire chemical, biological, or nuclear weapons and associated delivery systems; or (2) transfers (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials. 373

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(2) Adopt streamlined procedures for rapid exchange of relevant information concerning suspected proliferation activity, protecting the confidential character of classified information provided by other states as part of this initiative, dedicate appropriate resources and efforts to interdiction operations and capabilities, and maximize coordination among participants in interdiction efforts. (3) Review and work to strengthen their relevant national legal authorities where necessary to accomplish these objectives, and work to strengthen when necessary relevant international law and frameworks in appropriate ways to support these commitments. (4) Take specific actions in support of interdiction efforts regarding cargoes of WMD, their delivery systems, or related materials, to the extent their national legal authorities permit and consistent with their obligations under international law and frameworks, to include: (a) Not to transport or assist in the transport of any such cargoes to or from states or non-state actors of proliferation concern, and not to allow any persons subject to their jurisdiction to do so. (b) At their own initiative, or at the request and good cause shown by another state, to take action to board and search any vessel flying their flag in their internal waters or territorial seas, or areas beyond the territorial sea of any other state, that is reasonably suspected of transporting such cargoes to or from states or non-state actors of proliferation concern, and to seize such cargoes that are identified. (c) To seriously consider providing consent under the appropriate circumstances to the boarding an searching of its own flag vessels by other states, and to the seizure of 374


such WMD-related cargoes in such vessels that may be identified by such states. (d) To take appropriate actions to (1) stop and/or search in their internal waters, territorial seas, of contiguous zones (when declared) vessels that are reasonably suspected of 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, such as requiring that such vessels be subject to boarding, search, and seizure of such cargoes prior to entry. (e) At their own initiative or upon the request and good cause shown by another state, to (a) require aircraft that are reasonably suspected of carrying such cargoes to or from states or non-state actors of proliferation concern and that are transiting their airspace to land for inspection and seize any such cargoes that are identified; and/or (b) deny aircraft reasonably suspected of carrying such cargoes transit rights through their airspace in advance of such flights. (f) If their ports, airfields, or other facilities are used as transshipment points for shipment of such cargoes to or from states or non-state actors of proliferation concern, to inspect vessels, aircraft, or other modes of transport reasonably suspected of carrying such cargoes, and to seize such cargoes that are identified. The text of the Statement of Interdiction Principles may be found online at . Ninth Paragraph Inspired by the efforts of the International Maritime Organization to improve the effectiveness of the Convention 375

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for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, done at Rome 10 March 1988; Commentary The IMO's Legal Committee is reviewing the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988 and the Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988 (the SUA treaties). The main purpose of the SUA convention is to ensure that appropriate judicial action is taken against persons committing unlawful acts against ships, which include the seizure of ships by force, acts of violence against persons on board ships that endanger the safe navigation, and the placing of devices on board ships that are likely to destroy or damage them. The convention obliges Contracting Governments to either extradite or prosecute alleged offenders. The Protocol provides similar regulations relating to fixed platforms located on the continental shelf. Since April 2002, the Legal Committee has been considering draft protocols to the SUA Convention and Protocol through scheduled meetings and an intercessional Correspondence Group. Most delegations have expressed support for the revision and strengthening of the SUA Convention in order to provide a response to the increasing risks posed to maritime navigation by terrorism. The draft SUA protocol under consideration includes new offenses involving a ship related to WMD, and detailed provisions concerning ship boarding at sea. A diplomatic conference to consider and adopt protocols to the SUA Convention and its Protocol meets at the IMO in London, October 10-14, 2005. The United States is party to the SUA and its Protocol. A list of parties to SUA may be found through the links at . The 48 largest merchant ship registries and their status as a party or nonparty to SUA or its Protocol are listed in Appendix II.

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Tenth Paragraph Reaffirming the importance of customary international law of the sea as reflected in the 1982 United Nations Convention on the Law of the Sea; Commentary The text of the LOS Convention may be found online at . A list of parties to the LOS Convention may be found online at . The United States awaits Senate advice and consent to accession to the LOS Convention. Although not a Party to the Convention, the United States “accept[s] and act[s] in accordance with the balance of interests relating to traditional uses of the oceans — such as navigation and overflight” as reflected in the Convention. See Statement by the President, March 10, 1983, 19 Weekly Comp. Pres. Doc. 383 (March 14, 1983) reprinted in 22 I.L.M. 464. Eleventh Paragraph Committed to cooperation to stop the flow by sea of WMD, their delivery systems, and related materials to or from States or non-state actors of proliferation concern; Commentary Each term of art is defined in Article 1. Have agreed as follows: Article 1 Definitions In this Agreement, unless the context otherwise requires:

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Paragraph 1 1.

“Proliferation by sea” means the transportation by ship of weapons of mass destruction, their delivery systems, and related materials to or from States or non-state actors of proliferation concern.

Commentary Paragraph 1 is drawn from the chapeau of the PSI Statement of Interdiction Principles. Paragraph 2 2.

“Weapons of mass destruction” (WMD) means nuclear, chemical, biological and radiological weapons.

Commentary Paragraph 2 is drawn generally from paragraph 1 of UNSCR 1540. The UNSCR formulation does not include radiological weapons. In radiological weapons, radioactive material is dispersed by conventional explosions but does not explode itself. See United Nations Office on Drugs and Crime, available online at . Paragraph 3 3.

“Related materials” means materials, equipment and technology, of whatever nature or type, that are related to and destined for use in the development, production, utilization or delivery of WMD.

Commentary Paragraph 3 is similar but not identical to the note to UNSCR 1540, which provides: “Related materials: materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, 378


production or use of nuclear, chemical and biological weapons and their means of delivery.” The major distinction in the definition in this agreement, which is preferred by the United States in this context, is that it does not require reference to myriad external lists to define “related materials,” but instead leaves that determination to the discretion of the other party and the United States on a case-by-case basis. In a bilateral agreement, as distinguished from a multilateral agreement, the United States views this formulation as a more flexible and practical approach. Paragraph 4 4.

“States or non-state actors of proliferation concern” means those countries or entities that should be subject to interdiction activities because they are or are believed to be engaged in: (1) efforts to develop or acquire WMD or their delivery systems; or (2) trafficking (either selling, receiving, or facilitating) of WMD, their delivery systems, or related materials.

Commentary The definition of “States or non-state actors of proliferation concern” is taken from paragraph 1 of the Statement of Interdiction Principles. The United States recognizes that the proposed definition differs from that contained in the footnote of UNSCR 1540, which defines “non-State actor” as an “individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution.” The United States notes that the UNSCR 1540 definition does not reach state actors engaged in dangerous proliferation activities. The United States prefers the definition proffered in the draft text, noting that the flag State would there under retain the discretion to determine, on a case-by-case basis, whether items or persons aboard its flagged vessels “should be subject to interdiction activities.” Paragraph 5 5.

“Security Force Officials” means:

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Commentary The term “security force officials” is intended to describe those officials who are authorized to board and search suspect vessels. Paragraph 5(a) a.

for the United States, uniformed or otherwise clearly identifiable members of the United States Coast Guard and the United States Navy, who may be accompanied by clearly identifiable law enforcement officials of the Department of Homeland Security and/or the Department of Justice, and/or other clearly identifiable officials duly authorized by the Government of the United States of America and notified to the Competent Authority of [the other party]; and

Commentary The United States intends PSI boardings to be led by properly trained and qualified officials of the United States Coast Guard and the United States Navy. Coast Guard and Navy officials may be assisted during boarding by law enforcement officials of the Departments of Homeland Security and/or Justice, which may, among others, include clearly identifiable officers and agents of U. S. Immigration and Customs Enforcement (ICE), U. S. Customs and Border Patrol (CBP), and the Federal Bureau of Investigation (FBI). Paragraph b b.

for [the other party], uniformed or otherwise clearly identifiable members of the [ .... ], duly authorized by the Government of [ .... ] and notified to the Competent Authority of the United States.

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Paragraph 6 6.

“Security Force vessels” means warships and other vessels of the Parties, or of third States as may be agreed upon by the Parties, on which Security Force Officials of either or both Parties may be embarked, clearly marked and identifiable as being on government service and authorized to that effect, including any vessel and aircraft embarked on or supporting such vessels.

Commentary The LOS Convention, Article 29, provides: “For the purposes of this Convention, ‘warship’ means a ship belonging to the armed forces of a state bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the state and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.” For the United States, U.S. Navy and U.S. Coast Guard vessels are warships. The United States deploys U.S. Coast Guard law enforcement detachments (LEDETs) on third party security force vessels to conduct maritime law enforcement operations. If, for operational reasons, the United States desired to conduct a boarding from a third party platform, it would seek agreement from the Competent Authority of the other party to do so at the time of making the request for verification of vessel nationality and authorization to board. The inclusion of embarked vessels and aircraft is intended to accommodate the use of deployed small boats and helicopters, which are often used to deliver boarding teams at sea. Paragraph 7 7.

“Suspect vessel” means a vessel used for commercial or private purposes in respect of which there are reasonable grounds to suspect it is engaged in proliferation by sea.

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Commentary The formulation “reasonable grounds to suspect” is drawn from numerous widely accepted international maritime law enforcement treaties, including the LOS Convention, Article 110 (“a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity ... is not justified in boarding it unless there is reasonable ground for suspecting that ....”); the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Article 17(2) (1988) (“A Party which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose.”) (available online at ); the Council of Europe, Strasbourg Agreement on Illicit Traffic by Sea, Articles 5-6 (1995) (“A Party which has reasonable grounds to suspect . . .” and “Where the intervening State has reasonable grounds to suspect....”) (available online at ); and the Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime, Article 8 (2000) (“A State Party that has reasonable grounds to suspect that a vessel ...”) (available online at ). Paragraph 8 8.

“International waters” means all parts of the sea not included in the territorial sea, internal waters and archipelagic waters of a State, consistent with international law.

Commentary The term “international waters” is used only in the title and first paragraph of Article 4, and refers to waters seaward of territorial sea. The United States understands that [ …. ] claims a territorial sea with a breadth of [twelve (12) nautical miles, as does the United States].

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Paragraph 9 9.

“Competent Authority” means for the United States, the Commandant of the United States Coast Guard (including any officer designated by the Commandant to perform such functions), and for [the other party], [….]

Commentary The draft agreement envisions a framework in which the “Competent Authority” is the entity available around the clock and designated to receive, make, and respond to most requests under the Agreement. See, e.g., Articles 4, 5, and 15. Based on the respective internal laws, policies, and procedures of the Parties, a “Competent Authority” may need to consult with or obtain permission from other actors in its government before taking action in accordance with the agreement, but the Competent Authority will always be available for communication and have access to its respective decision-makers. This definition is implemented operationally by Article 11’s requirement for the Parties to exchange specific points of contact for each article contemplating operational activities, and that each point of contact requires the ability to receive notice at all times. Article 2 Object and Purpose of Agreement Paragraph 1 1.

The object of this Agreement is to promote cooperation between the Parties to enable them to prevent the transportation by ship of WMD, their delivery systems, and related materials.

Paragraph 2 2.

The Parties shall carry out their obligations and responsibilities under this Agreement in a manner consistent with the principles of international law 383

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pertaining to sovereign equality and territorial integrity of States, and non-intervention in the domestic affairs of other States. Commentary Most of the proposed formulation in this paragraph is drawn from the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Article 2(2) and the UN Convention against Transnational Organized Crime, Article 4(1) (text available online at ). Paragraph 3 3.

The Parties shall cooperate to the fullest extent possible, subject to the availability of resources and in compliance with their respective laws.

Commentary This paragraph creates a mutual obligation “to cooperate to the fullest extent possible,” cabined, however, by the practical limitations of available resources and applicable domestic law. Article 3 Cases of Suspect Vessels Operations to suppress proliferation by sea pursuant to this Agreement shall be carried out only against suspect vessels claiming nationality in one of the Parties, and against suspect vessels without nationality and suspect vessels assimilated to vessels without nationality. Commentary This provision ensures that the Agreement will not be used to conduct random or unfounded boarding operations, but will be employed only to board vessels in respect of which there are reasonable grounds to suspect it is engaged in proliferation by sea. See Article 1(7). If the law of [ …. ] 384


permits bareboat charters, text that would except them from this class of vessels might read as follows: “and suspect vessels registered under the law of one of the Parties under a bareboat charter notwithstanding an underlying registration in another State not party to this Agreement, but not against a vessel registered under the law of one of the Parties while bareboat chartered in another State not party to this Agreement.” A vessel that is not properly registered in, and hence not entitled to fly the flag of, any state is without nationality. A vessel may be deemed to be without nationality (i.e. may be assimilated to a vessel without nationality) because it sails under the flags of two or more states, using them according to convenience (including making a false claim of nationality). See the LOS Convention, Articles 91-92. Article 4 Operations in International Waters Paragraph 1 1.

Authority to Board Suspect Vessels. Whenever the Security Force Officials of one Party (“the requesting Party”) encounter a suspect vessel claiming nationality in the other Party (“the requested Party”) located in international waters, the requesting Party may request through the Competent Authority of the requested Party that it:

Commentary This provision reflects the concept of exclusive flag State jurisdiction set forth in Article 92(1) of the LOS Convention: “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.” Paragraph 1 establishes the procedures for confirming claims of vessel nationality and seeking authorization to board suspect vessels seaward of any state’s territorial sea. 385

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Paragraph a a.

confirm the claim of nationality of the requested Party; and

b.

if such claim is confirmed:

Paragraph b

Commentary If the claimed flag State denies the claim, then the vessel would be without nationality and subject to the jurisdiction of any state. Paragraph b(i) i.

authorize the boarding and search of the suspect vessel, cargo and the persons found on board by Security Force Officials of the requesting Party; and

ii.

if evidence of proliferation is found, authorize the Security Force Officials of the requesting Party to detain the vessel, cargo and persons on board, pending instructions conveyed through the Competent Authority of the requested Party as to the exercise of jurisdiction in accordance with Article 5 of this Agreement.

Paragraph b(ii)

Commentary Once the boarding party finds evidence of proliferation by sea, this subparagraph provides for preventive detention, if authorized by the requested Party, of the suspect vessel, persons and property on board pending expeditious disposition instructions exchanged between the Competent Authorities. 386


Paragraph 2 first sentence 2. Contents of Requests. Each request shall contain the basis for the suspicion, the geographic position of the vessel, and, if available the name of the suspect vessel, the registration number, the IMO number, home port, the port of origin and destination, and any other identifying information. Commentary The United States views the proposed content of the request to be sufficient information upon which a flag State may conduct a timely registry check and take a decision with respect to authorizing a boarding. Paragraph 2 second sentence If a request is conveyed orally, the requesting Party shall confirm the request in writing by facsimile or e-mail as soon as possible. Commentary This clause accommodates situations during which, in the interest of time or operational necessity, Competent Authorities may make and receive initial requests and responses via telephone or in person, followed up by appropriate written confirmation using available technology, including fax and e-mail. Paragraph 2 third sentence The requested Party shall acknowledge to the Competent Authority of the requesting Party in writing by e-mail or facsimile its receipt of any written or oral request immediately upon receiving it.

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Commentary The requirement to acknowledge receipt of requests is to prevent miscommunication or misalignment of expectations. Paragraph 3 3.

Responding to Requests.

Commentary This paragraph sets up a format for responding to requests for boarding and search, along with a two-hour default. If there is no response from the requested Party within two hours of its receipt of the request, the requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting the vessel’s documents, questioning the persons on board, and searching the vessel to determine if it is engaged in proliferation by sea. Paragraph a a.

If the nationality is verified, the requested Party may: i.

decide to conduct the boarding and search with its own Security Force Officials;

ii.

authorize the boarding and search by the Security Force Officials of the requesting Party;

iii.

decide to conduct the boarding and search together with the requesting Party; or

iv.

deny permission to board and search.

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Commentary The provision governing response is predicated upon the claimed flag State’s initial verification of the vessel’s nationality, which does not necessarily include verification of the vessel’s registry. The practice of some states engaged in maritime law enforcement operations in international waters is to place considerable emphasis on the completion of a registry check prior to granting authorization to board and search. However, since many states (or their designated Competent Authorities) lack round-the-clock access to their national registers of shipping, this registry check requirement is often a significant cause of delay in responding to requests. As a result, a practice has emerged of providing authorization on the operational assumption of a positive outcome to the registry check procedures. This is known by some as the concept of provisional flag State authorization or presumptive flag State authority. This practice is based on both the customary and conventional international law of the sea, namely, the rule by which a vessel that makes a false claim to registry is to be regarded as without nationality. Under the concept of presumptive or provisional flag State authority, completion of a registry check by the claimed flag State is not a prerequisite for the flag State granting permission to take appropriate actions based on a vessel’s claim of nationality (flag, oral, or otherwise). Because the status of a vessel claiming the protection of a state can only be either that of a vessel of the claimed flag State or a vessel without nationality, the presumed flag State has the right, if not the responsibility, to determine if a vessel claiming the protection of its flag is entitled to such protection. While the granting of permission to board and search on the basis of provisional or presumptive flag State authority provides a useful means for expediting the authorization process, it does not negate the need for actual registry check, nor does it prevent a boarding state from making the determination, upon discovery of applicable conditions, that the vessel is assimilated to a vessel without nationality under international law.

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Paragraph b b.

The requested Party shall answer through its Competent Authority requests made for the verification of nationality within two (2) hours of the receipt of such requests.

Commentary The requirement to answer within two (2) hours is driven by the operational exigencies encountered by vessels conducting boarding operations at sea. Verification of nationality and authorization to board do not constitute in any manner a waiver of flag State jurisdiction over the vessel, cargo, or persons on board. Paragraph c c.

If the nationality is not verified within the two (2) hours, the requested Party may, through its Competent Authority: i.

nevertheless authorize the boarding and search by the Security Force Officials of the requesting Party; or

ii.

refute the claim of the suspect vessel to its nationality.

Commentary This paragraph reflects the concept of presumptive flag State authority. If the claimed nationality is denied or cannot be verified, then the requesting Party would be justified in either assimilating the vessel without nationality and/or conducting a right of visit boarding pursuant to Article 110 of the LOS Convention. Paragraph d d.

If there is no response from the Competent Authority of the requested Party within two (2) 390


hours of its receipt of the request, the requesting Party will be deemed to have been authorized to board the suspect vessel for the purpose of inspecting the vessel’s documents, questioning the persons on board, and searching the vessel to determine whether it is engaged in proliferation by sea. Commentary This provision is intended to address those situations in which the requested Party has acknowledged receipt of a request but does not respond within a reasonable time. The United States notes that all that is required to “stop the clock” is a response from the requested Party, not necessarily authorization to board. Paragraph 4 4.

Right of Visit. Notwithstanding the foregoing paragraphs of this Article, the Security Force Officials of one Party (“the first Party”) are authorized to board suspect vessels claiming nationality in the other Party that are not flying the flag of the other Party, not displaying any marks of its registration or nationality, and claiming to have no documentation on board the vessel, for the purpose of locating and examining the vessel’s documentation. If documentation or other physical evidence of nationality is located, the foregoing paragraphs of this Article apply. If no documentation or other physical evidence of nationality is available, the other Party will not object to the first Party assimilating the vessel to a ship without nationality in accordance with international law.

Commentary This paragraph reflects well-settled customary and conventional international law regarding the right of visit. See the LOS Convention Article 110: 391

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Right of visit 1. Except where acts of interference derive from powers conferred by treaty, a warship which encounters on the high seas a foreign ship, other than a ship entitled to complete immunity in accordance with articles 95 and 96, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy; (b) the ship is engaged in the slave trade; (c) the ship is engaged in unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109; (d) the ship is without nationality; or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. 2. In the cases provided for in paragraph 1, the warship may proceed to verify the ship's right to fly its flag. To this end, it may send a boat under the command of an officer to the suspected ship. If suspicion remains after the documents have been checked, it may proceed to a further examination on board the ship, which must be carried out with all possible consideration. 3. If the suspicions prove to be unfounded, and provided that the ship boarded has not committed any act justifying them, it shall be compensated for any loss or damage that may have been sustained. 4. These provisions apply mutatis mutandis to military aircraft. 392


5. These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service. Paragraph 5 5.

Use of Force. The authorization to board, search and detain includes the authority to use force in accordance with Article 9 of this Agreement.

Commentary This provision makes it clear that the Security Forces may use reasonable force when carrying out appropriate activities pursuant to the Agreement, and that the principles governing the use of force reside in Article 9. Paragraph 6 6.

Indicia of Authority. Security Force vessels of a Party operating with the authorization of the other Party pursuant to this Article shall, during such operations, also fly, in the case of the United States of America, the flag of [ …. ], and in the case of [ …. ], the United States Coast Guard ensign.

Commentary This provision is designed to indicate to the suspect ship that the boarding team is authorized by its flag State to conduct the boarding. Paragraph 7 7.

Authority to Detain Suspect Vessels. If evidence of proliferation by sea is found, the Security Force Officials of the first Party may detain the vessel, cargo, and persons on board pending expeditious disposition instructions from the other Party. 393

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Paragraph 8 8.

Shipboarding Otherwise in Accordance with International Law. This Agreement does not limit the right of either Party to conduct boardings of vessels or other activities consistent with international law whether based, inter alia, on the right of visit, the rendering of assistance to persons, vessels, and property in distress or peril, the consent of the vessel master, or an authorization from the flag or coastal State.

Commentary This provision preserves the ability of the Parties to conduct boardings based on other recognized legal bases. Article 5 Jurisdiction over Detained Vessels Paragraph 1 1.

Jurisdiction of the Parties. In all cases covered by Article 4 concerning the vessels of a Party located seaward of any State’s territorial sea, that Party shall have the primary right to exercise jurisdiction over a detained vessel, cargo and/or persons on board (including seizure, forfeiture, arrest, and prosecution), provided, however, that the Party with the right to exercise primary jurisdiction may, subject to its Constitution and laws, waive its primary right to exercise jurisdiction and authorize the enforcement of the other Party’s law against the vessel, cargo and/or persons on board.

Commentary Generally, this provision invokes the concept of exclusive flag State jurisdiction, subject to the right of waiver, if available, to the flag State Party. 394


Paragraph 2 2.

Jurisdiction in the contiguous zone of a Party. In cases arising in the contiguous zone claimed by a Party, not involving suspect vessels fleeing from the waters of that Party or suspect vessels claiming the nationality of that Party, in which both Parties have the authority to exercise jurisdiction to prosecute, the Party which conducts the boarding and search shall have the right to exercise jurisdiction.

Commentary Pursuant to Articles 33 and 111(1) of the LOS Convention, this paragraph provides a rule of jurisdiction for cases arising in the contiguous zone of a Party. The United States claims a contiguous zone between 12 and 24 nautical miles from the baseline from which its territorial sea is measured. The maritime claims of states may be found online at . Article 33 provides: Contiguous zone 1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory or territorial sea.

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2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured. Article 111(1) provides: 1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in article 33, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established. Paragraph 3 3.

Disposition Instructions. Instructions as to the exercise of jurisdiction pursuant to paragraphs 1 and 2 of this Article shall be given without delay through the Competent Authorities.

Commentary Article 5(3) provides for immediate consultation between the Competent Authorities in order to determine jurisdiction in appropriate cases. Immediate consultation is required due to the operational exigencies of atsea detentions and boarding operations. 396


Paragraph 4 4.

Form of waiver. Where permitted by its Constitution and laws, waiver of jurisdiction may be granted verbally, but as soon as possible it shall be recorded in a written note from the Competent Authority and be processed through the appropriate diplomatic channel, without prejudice to the immediate exercise of jurisdiction over the suspect vessel by the other Party.

Commentary Where waiver is permitted by the laws of the flag State Party, Article 5(4) reflects the operational exigencies of at-sea boarding operations by allowing for immediate action to affect the exercise of jurisdiction upon oral authorization, provided the oral authorization is followed by a written waiver via the diplomatic channel. Article 6 Exchange of Information and Notification of Results of Actions of the Security Forces Paragraph 1 1.

Exchange of Operational Information. The Competent Authorities of both Parties shall endeavor to exchange operational information on the detection and location of suspect vessels and shall maintain communication with each other as necessary to carry out the purpose of this Agreement.

Commentary Article 6(1) is intended to facilitate the exchange of operational information on the detection and location of suspect vessels. Depending on how the operations of the respective Parties are structured, such communications may occur between their Competent Authorities, Security Force Officials, or both. This draft proposes the exchange occur between the Competent Authorities of the parties. 397

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Paragraph 2 2.

Notification of Results. A Party conducting a boarding and search pursuant to this Agreement shall promptly notify the other Party of the results thereof through their Competent Authorities.

Commentary This paragraph creates an obligation for the boarding Party to promptly report to the flag State the results of every boarding conducted under the Agreement (U. S. practice is to report immediately upon the conclusion of the boarding). Paragraph 3 3.

Status Reports. The relevant Party, in compliance with its laws, shall timely report to the other Party, through their Competent Authorities, on the status of all investigations, prosecutions and judicial proceedings and other actions and processes, arising out of the application of this Agreement.

Commentary Article 6(3), as distinguished from 6 (2), is intended to address information arising out of post-boarding proceedings, including investigations and trials. Article 7 Conduct of Security Force Officials Paragraph 1 1.

Compliance with Law and Practices. Each Party shall ensure that its Security Force Officials, when conducting boardings and searches pursuant to this Agreement, act in accordance with its applicable 398


national laws and policies and with international law and accepted international practices. Commentary Article 7(1) requires boarding teams to comply with their national laws and policies, which should be consistent with international maritime law enforcement practices. The U.S. Coast Guard Maritime Law Enforcement Manual sets forth applicable U.S. law and policy. Its text is available online at . Paragraph 2 2.

Boarding and Search Teams. a.

Security Force Officials from Security Force vessels shall carry out boardings and searches pursuant to this Agreement, and may be assisted by crew members from such vessels, including the vessels of third States as agreed between the Parties.

Commentary Article 7(2)(a) recognizes the operational necessities arising from worldwide efforts to suppress proliferation by sea. This provision allows for boarding operations to be conducted by designated Security Force Officials deploying from 1) Security Force vessels, 2) vessels and aircraft embarked on or otherwise supporting Security Force vessels, and 3) vessels and aircraft of third States as agreed between the parties. A boarding Party desiring to board from a third Party platform would seek authorization from the requested Party through the request process set forth in Article 4. Paragraph 2(b) b. The boarding and search teams may operate from Security Force vessels of the Parties and from such vessels of other States, according to arrangements 399

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between the Party conducting the operation and the State providing the vessel and notified to the other Party. Commentary Article 7(2)(b) recognizes that the boarding Party may make arrangements with third parties to operate from third party platforms, and that notice of such arrangements should be given to the flag State party. Paragraph c c.

The boarding and search teams may carry arms.

Commentary U.S. security force officials carry standard semi-automatic side arms and non-lethal weapons. If the security situation warrants, boarding officers may also carry riot shot guns and other long arms. Article 8 Safeguards 1. Where a Party takes measures against a vessel in accordance with this Agreement, it shall: a. take due account of the need not to endanger the safety of life at sea; b. take due account of the security of the vessel and its cargo; c. not prejudice the commercial or legal interests of the Flag State; d. ensure within available means, that any measure taken with regard to the vessel is environmentally sound under the circumstances; 400


e. ensure that persons on board are afforded the protections, rights and guarantees provided by international law and the boarding State’s law and regulations; f. ensure the master of the vessel is, or has been, afforded the opportunity to contact the vessels’ owner, manager or Flag State at the earliest opportunity. 2. Reasonable efforts shall be taken to avoid a vessel being unduly detained or delayed. Commentary Much of Article 8 is taken from draft SUA Article 8bis 8, which in turn is drawn from Articles 15 and 17(5) of the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) (to which the United States is party), and Article 9 of the Protocol Against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime (TOC). Article 17(5) of the 1988 Drug Convention provides the following: “Where action is taken pursuant to this article, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag State or any other interested State.” Article 9 of the TOC provides the following: Safeguard clauses 1. Where a State Party takes measures against a vessel in accordance with article 8 of this Protocol, it shall: (a) Ensure the safety and humane treatment of the persons on board; (b) Take due account of the need not to endanger the security of the vessel or its cargo; 401

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(c) Take due account of the need not to prejudice the commercial or legal interests of the flag State or any other interested State; (d) Ensure, within available means, that any measure taken with regard to the vessel is environmentally sound. Articles 5 and 6 of the Council of Europe, Strasbourg Agreement on Illicit Traffic by Sea (1995) provide the following: 1. In the application of this Agreement, the Parties concerned shall take due account of the need not to endanger the safety of life at sea, the security of the vessel and cargo and not to prejudice any commercial or legal interest. In particular, they shall take into account: a.

the dangers involved in boarding a vessel at sea, and give consideration to whether this could be more safely done at the vessel's next port of call; b. the need to minimise any interference with the legitimate commercial activities of a vessel; c. the need to avoid unduly detaining or delaying a vessel; d. the need to restrict the use of force to the minimum necessary to ensure compliance with the instructions of the intervening State. 2. The use of firearms against, or on, the vessel shall be reported as soon as possible to the flag State. 3. The death, or injury, of any person aboard the vessel shall be reported as soon as possible to the flag State. The authorities of the intervening State shall fully co-operate with the authorities of the flag State in any investigation the flag State may hold into any such death or injury. 402


Article 9 Use of Force Paragraph 1 1.

Rules. When carrying out the authorized actions under this Article, the use of force shall be avoided except when necessary to ensure the safety of its officials and persons on board, or where the officials are obstructed in the execution of the authorized actions. Any use of force pursuant to this Article shall not exceed the minimum degree of force which is necessary and reasonable in the circumstances.

Commentary Article 9(1) reflects the most recent consensus text achieved during SUA negotiations at the IMO and requires boarding teams to comply with their national law and policy regarding use of force, as well as applicable international law. The United States notes that conventional international law provides little specific guidance regarding the use of force while conducting maritime law enforcement. The 1958 High Seas Convention, 13 UST 2312, TIAS 5200, 450 UNTS 82, the LOS Convention, and the 1988 Vienna Drug Convention all lack specific provisions to regulate the use of force when conducting a boarding pursuant to each agreement. The 1999 decision of the International Tribunal for the Law of the Sea in the case of the M/V Saiga (No. 2) is instructive, and paragraph 155 of the decision reflects the well-accepted principles of reasonableness and necessity: “[T]he use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary under the circumstances.” (The text of this decision may be found online at .) Article 22(f) of the 1982 UN Straddling Stocks Convention is also instructive, binding parties conducting inspections under this Convention to “avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties.” (The text of the Straddling Stocks Convention may be found online at 403

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.) Citing the Straddling Stocks Convention, the M/V Saiga court made the following observation: These principles have been followed over the years in law enforcement operations at sea. The normal practice used to stop a ship at sea is first to give an auditory or visual signal to stop, using internationally recognized signals. Where this does not succeed, a variety of actions may be taken, including the firing of shots across the bows of the ship. It is only after the appropriate actions fail that the pursuing vessel may, as a last resort, use force. Even then, appropriate warning must be issued to the ship and all efforts should be made to ensure that life is not endangered (S.S. “I’m Alone” case (Canada/United States, 1935), U.N.R.I.A.A., Vol. III, p.1609; The Red Crusader case (Commission of Enquiry, Denmark - United Kingdom, 1962), I.L.R., Vol. 35, p.485). The basic principle concerning the use of force in the arrest of a ship at sea has been reaffirmed by the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Migratory Fish Stocks. Paragraph 2 2.

Self-defense. Nothing in this Agreement shall impair the exercise of the inherent right of self-defense by Security Force or other officials of either Party.

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Article 10 Exchange and Knowledge of Laws and Policies of Other Party Paragraph 1 1.

Exchange of Information. To facilitate implementation of this Agreement, each Party shall ensure the other Party is fully informed of its respective applicable laws and policies, particularly those pertaining to the use of force.

Commentary Chapter 4 of the U.S. Coast Guard Maritime Law Enforcement Manual contains the Coast Guard’s use of force policy. Paragraph 2 2.

Knowledge. Each Party shall ensure that its Security Force Officials are knowledgeable concerning the applicable laws and policies in accordance with this Agreement. Article 11 Points of Contact

1.

Identification. Each Party shall inform the other Party, and keep current, the points of contact for communication, decision and instructions under Articles 4 and 5, and notifications under Articles 6 and 16 of this Agreement. Such information shall be updated by and exchanged between the Competent Authorities.

2.

Availability. The Parties shall ensure that the points of contact have the capability to receive, process and respond to requests and reports at any time. 405

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Commentary The United States envisions an exchange of letters setting forth the requisite points of contact, which would be subject to periodic updates between the Competent Authorities. The United States notes that the effectiveness of this agreement depends in large part on compliance with this provision, which requires a commitment to receive, process and respond to requests and reports at any time. Article 12 Disposition of Seized Property 1.

Assets seized in consequence of operations undertaken on board vessels subject to the jurisdiction of [the other party] pursuant to this Agreement, shall be disposed of in accordance with the laws of [that other party].

2.

Assets seized in consequence of operations undertaken on board vessels subject to the jurisdiction of the United States pursuant to this Agreement, shall be disposed of in accordance with the laws of the United States.

3.

To the extent permitted by its laws and upon such terms as it deems appropriate, the seizing Party may, in any case, transfer forfeited assets or proceeds of their sale to the other Party. Each transfer generally will reflect the contribution of the other Party to facilitating or effecting the forfeiture of such assets or proceeds.

Commentary Article 12 provides that the disposition of seized property is subject to the laws of the Party exercising jurisdiction, including that Party’s laws regarding equitable sharing of seized property and proceeds.

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Article 13 Claims Paragraph 1 1.

Injury or Loss of Life. Any claim for injury to or loss of life of a Security Force Official of a Party while carrying out operations arising from this Agreement shall normally be resolved in accordance with the laws of that Party.

Commentary Article 13(1) establishes that claims arising from the death or injury of a party’s security force official shall be resolved in accordance with the law of that party. Paragraph 2 2.

Other Claims. Any other claim submitted for damage, harm, injury, death or loss resulting from an operation carried out by a Party under this Agreement shall be resolved in accordance with the domestic law of that Party, and in a manner consistent with international law.

Commentary Article 13(2) establishes that claims other than those arising from the death or injury of a party’s security force official shall be resolved in accordance with the law of the party conducting the boarding and in a manner consistent with applicable international law. U.S. law enforcement activities that result in damage to private property or injury to private persons may result in claims for compensation from the U. S. government. The United States, as a matter of policy, promptly pays all meritorious claims for property damage or personal injury resulting from such activities.

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The U.S. Navy and Coast Guard have offices responsible for adjudicating all tort claims within admiralty jurisdiction involving the operation of their respective vessels, personnel or property. Both services have authority to settle admiralty claims for damage caused by their respective vessels or other property and maritime torts committed by their respective agents or employees. This authority is subject to the caveat that legal liability must exist and the case must not be in litigation. There is no particular form or format necessary to submit an admiralty claim. The claimant should fully explain the facts underlying the claim and justify the amount claimed by including relevant documents, charts, diagrams, and photographs, as well as repair or replacement estimates, surveys, receipts, or invoices. Claimants may also initiate a claim by filling out a simple two-page form (Standard Form 95) and presenting it to the Commanding Officer of any U. S. Coast Guard unit, to the military attaché of any U.S. embassy or consulate, or to the Commanding Officer of any unit of the armed forces of the United States. Such forms are available through the U.S. Coast Guard and U.S. Navy, including units that conduct boardings and searches of suspect vessels pursuant to the Agreement, as well as the U.S. Embassy in [....]. After administrative investigation and review by the U.S. government, the claim, if merited, may be paid. If the parties cannot agree to settle the claim, the claimant retains the right to seek available relief in U.S. federal court. Suit for a maritime claim must be brought within two years after the cause of action accrues. The relevant U.S. law and regulations may be found at 46 US Code Appendix section 745 (Suits in Admiralty Act), 46 US Code Appendix section 781 (Public Vessels Act), 32 Code of Federal Regulations 752 (Navy), and 33 Code of Federal Regulations Part 25 (Coast Guard), which are available online through . Paragraph 3 3.

Consultation. If any loss, injury or death is suffered as a result of any action taken by the Security Force Officials of one Party in contravention of this Agreement, or any improper or unreasonable action is 408


taken by a Party pursuant thereto, the Parties shall, without prejudice to any other legal rights which may be available, consult at the request of either Party to resolve the matter and decide any questions relating to compensation or payment. Commentary In accordance with Article 13(3), the claims process described above does not prejudice the ability of either Party to the Agreement to request, through the diplomatic channel, consultations to decide any questions relating to compensation or payment with respect to a specific matter. Article 14 Disputes and Consultations 1.

Disputes. Disputes arising from the interpretation or implementation of this Agreement shall be settled by mutual agreement of the Parties.

2.

Evaluation of Implementation. The Parties agree to consult as necessary to evaluate the implementation of this Agreement and to consider enhancing its effectiveness. The evaluation shall be carried out at least once a year.

3.

Resolving Difficulties. In case a difficulty arises concerning the operation of this Agreement, either Party may request, through the Competent Authorities, consultations with the other Party to resolve the matter. Article 15 Effect on Rights, Privileges and Legal Positions

Nothing in this Agreement:

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Paragraph a a.

is intended to alter the rights and privileges due any individual in any administrative or judicial proceeding;

Commentary Article 15(a) reflects a well-settled principle of international law that this is an agreement between sovereign states, which does not order relations vis á vis any individual non-state actor. Paragraph b shall prejudice the position of either Party with regard to international law of the sea, or affect the territorial or maritime boundaries or claims of either Party, as between them or with third States. Article 16 Cooperation and Assistance Paragraph 1 1.

The Competent Authority of one Party may request, and the Competent Authority of the other Party may authorize, Security Force Officials to provide technical assistance, such as specialized assistance in the conduct of search of suspect vessels, for the boarding and search of suspect vessels located in the territory or waters of the requesting Party.

Commentary Article 16(1) is intended to permit assistance in search and seizure on a case-by-case basis in matters arising in the territory and territorial waters of a party. Such matters may include customs and border searches of suspect vessels and the use of specialized detection equipment. 410


Paragraph 2 2.

Nothing in this Agreement precludes a Party from authorizing the other Party to suppress proliferation in its territory, waters or airspace, or to take action involving suspect vessels or aircraft claiming its nationality, or from providing other forms of cooperation to suppress proliferation.

Commentary Article 16(2) is intended to ensure that the agreement is not misconstrued as limiting other forms of cooperation to suppress proliferation as may be agreed upon by the parties. Article 17 Entry into Force and Duration Paragraph 1 1.

Entry into Force. This Agreement shall enter into force upon an exchange of notes indicating that the necessary internal procedures of each Party have been completed.

Commentary The United States has determined that it may bring this agreement into force upon signature. If the other party is able to bring the agreement into force upon signature, then paragraph 2 on provisional application is unnecessary and would be omitted. Paragraph 2 2.

Provisional Application. Beginning on the date of signature of this Agreement, the Parties shall, to the extent permitted by their respective national laws and regulations, apply it provisionally. Either Party may discontinue provisional application at any time. Each Party shall notify the other Party immediately of any constraints or limitations on provisional application, of 411

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any changes to such constraints or limitations, and upon discontinuation of provisional application. Commentary If the agreement may not enter into force on signature, but rather enter into force after the necessary domestic requirements are completed by the other party, this provision would enable, pending its entry into force and if permitted under the domestic law of the other party, the agreement to be provisionally applied, pursuant to the Vienna Convention on the Law of Treaties (VCLT) article 25, which provides the following: Article 25 Provisional application 1. A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed. 2. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State shall be terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty. The text of the VCLT may be found online at . Paragraph 3 3.

Termination. This Agreement may be terminated by either Party upon written notification of such termination to the other Party through the appropriate 412


diplomatic channel. Such termination shall take effect six months from the date of such notification. Paragraph 4 4.

Continuation of Actions Taken. This Agreement shall continue to apply after termination with respect to any administrative or judicial proceedings regarding actions that occurred during the time the Agreement was in force.

Commentary The Agreement may be terminated by giving one year’s written notice, but termination does not affect pending administrative or judicial proceedings, or proceedings arising from conduct occurring while the agreement was in force. Article 18 Rights for Third States 1.

The Parties agree that the Government of [....] may extend, mutatis mutandis, all rights concerning suspect vessels claiming its nationality under the present Agreement to such third States as it may deem appropriate, on the understanding that such third States shall likewise comply with all conditions set forth in the present Agreement for the exercise of such rights, and subject to agreement by that Party and such third States on the designation of points of contact in accordance with Article 11.

2.

Such third States shall enjoy rights and be subject to all conditions governing their exercise as set forth in paragraph 1 of this Article effective on the date of a notification by the third State to that Party that it will comply with the conditions for the exercise of those rights. 413

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3.

Such rights shall be revocable by that Party or the third State in writing. Such rights shall be revoked, and the conditions governing their exercise shall cease to apply, effective on the date of notification.

4.

Such rights shall be subject to modification by mutual concurrence in writing of that Party and the third State. Upon establishment of such mutual written concurrence by that Party and the third State in question, such rights shall be modified effective on the date agreed between that Party and the third State.

Commentary Article 18 is intended to provide the other party, if it so wishes and can do so consistently with its domestic law, with an economic and efficient means of substituting other potential boarding State Parties for the United States in appropriate circumstances. This Article has the advantage of not requiring an extensive series of bilateral negotiations; instead, the other party would be able to permit, at its discretion, other states to exercise the rights and obligations of the United States under the existing agreement. Such rights and obligations could be modified as might be agreed upon between the other party and the other states. The United States understands that such a provision might be helpful to other potential PSI boarding states and to the other party. This Article is consistent with Section 5 of the Vienna Convention on the Law of Treaties, which provides the following: Article 34 General rule regarding third States A treaty does not create either obligations or rights for a third State without its consent. Article 35 Treaties providing for obligations for third States

414


An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing. Article 36 Treaties providing for rights for third States 1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty. Article 37 Revocation or modification of obligations or rights of third States 1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed. 2. When a right has arisen for a third State in conformity with article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State.

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Article 38 Rules in a treaty becoming binding on third States through international custom Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such.

416


APPENDIX II LARGEST MERCHANT VESSEL REGISTRIES as of February 10, 2005 by number of ships (100 or more) 1,000 GRT or more Sources: CIA World Fact Book, available at and IMO, available at <www.imo.org> SUA 31 1. Panama 32 DWT Y Y

total: 4,833 ships 122,960,929 GRT/183,615,337

2. China DWT Y Y

total: 1,850 ships 18,724,653 GRT/27,749,784

3. Liberia 33 DWT Y Y

total: 1,449 ships 50,555,752 GRT/79,125,329

4. Malta DWT Y Y

total: 1,176 ships 25,102,401 GRT/41,176,791

5. Cyprus DWT Y Y

total: 1,066 ships 22,016,374 GRT/35,760,004

6. Bahamas DWT N N

total: 1,035 ships 31,631,252 GRT/43,025,977

7. Russia* DWT Y Y

total: 958 ships

4,521,472 GRT/5,505,118

8. Singapore* DWT Y N

total: 900 ships

23,065,290 GRT/36,393,317

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9. Antigua & Barbuda DWT N N

total: 867 ships

5,873,626 GRT/7,683,143

10. Greece* DWT Y Y

total: 793 ships

30,186,624 GRT/52,943,968

11. Indonesia DWT N N

total: 718 ships

3,192,847 GRT/4,319,739

12. St. Vincent & The Grenadines total: 704 ships DWT Y Y

5,967,418 GRT/9,041,023

13. Norway* DWT Y Y

total: 693 ships

18,820,495 GRT/27,449,456

14. Hong Kong DWT N N

total: 663 ships

20,478,042 GRT/34,554,455

15. Netherlands* total: 635 ships DWT Y Y 16. Japan* DWT Y Y

total: 568 ships

4,796,460 GRT/5,212,557

10,149,196 GRT/12,680,544

17. Korea, South total: 535 ships DWT Y Y

5,978,949 GRT/9,761,699

18. Turkey * DWT Y Y

total: 508 ships

4,666,895 GRT/7,311,504

19. Italy* DWT Y Y

total: 475 ships 8,970,017 GRT/10,354,685

20. Cambodia DWT Y Y

total: 467 ships 1,913,910 GRT/2,713,967

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21. United States* total: 466 ships 12,436,658 GRT/14,630,116 DWT Y Y 22. Marshall Islands 34 DWT Y Y 23. Philippines DWT Y Y 24. United Kingdom* DWT Y Y

total: 420 ships 16,954,092 GRT/28,176,762

total: 385 ships 4,524,259 GRT/6,437,171

total: 384 ships

9,181,284 GRT/9,566,275

25. Malaysia DWT N N

total: 360 ships

5,389,397 GRT/7,539,178

26. Thailand* DWT N N

total: 339 ships

2,038,597 GRT/3,104,712

27. Belize DWT N N

total: 336 ships

1,015,270 GRT/1,336,890

28. India DWT Y Y

total: 306 ships

6,555,507 GRT/11,069,791

29. Germany* DWT Y Y

total: 278 ships

5,721,495 GRT/6,810,631

30. Denmark* DWT Y Y

total: 276 ships

6,952,473 GRT/9,030,444

31. Honduras DWT N N

total: 238 ships

598,600 GRT/616,158

32. Man, Isle of DWT Y Y

total: 226 ships

6,055,436 GRT/9,972,459

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33. Korea, North total: 203 ships DWT N N

921,577 GRT/1,339,929

34. Vietnam DWT Y Y

total: 194 ships

1,170,621 GRT/1,798,376

35. Sweden DWT Y Y

total: 178 ships

2,702,763 GRT/1,884,570

total: 162 ships

1,317,007 GRT/1,668,499

37. Egypt DWT Y Y

total: 159 ships

1,194,696 GRT/1,754,815

38. Brazil DWT N N

total: 151 ships

2,961,431 GRT/4,725,267

39. Spain* DWT Y Y

total: 149 ships

1,740,974 GRT/2,157,551

40. Georgia DWT N N

total: 144 ships

855,908 GRT/1,288,812

41. Ukraine DWT Y Y

total: 140 ships

675,904 GRT/709,802

36. Netherlands Antilles DWT Y Y

42. Cayman Islands total: 137 ships 2,827,837 GRT/4,555,974 DWT UNK 43. Iran DWT N N

total: 134 ships 4,715,242 GRT/8,240,069

44. Gibraltar total: 133 ships DWT UNK

420

980,636 GRT/1,254,661


45. Taiwan DWT N/A

total: 130 ships 3,417,768 GRT/5,617,318

46. Portugal* DWT Y Y

total: 122 ships

872,557 GRT/1,236,025

47. Syria DWT Y Y

total: 122 ships

446,981 GRT/636,620

48. Canada* DWT Y Y

total: 119 ships 1,784,229 GRT/2,657,499

__________________ * Participant in PSI Operational Experts Group.

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J. Ashley Roach

Notes 1

For details see Roach, J.A., “Initiative to enhance maritime security at sea,” 28 Marine Policy, No. 1 (January), 2004, 41, 53-54, and Carla Anne Robbins, “The UN: Searching for Relevance: Operation Bypass: Why U.S. Gave U.N. No Role in Plan to Halt Arms Ships,” Wall St. J., October 21, 2003, A1, available online at 2003 WL-WSJ 3983257. 2 The text of the “National Strategy to Combat Weapons of Mass Destruction” is available online at . 3 “Remarks by the President to the People of Poland, Wawel Royal Castle, Krakow, Poland, May 31, 2003,” text available online at . 4 See the statement of the Chairman of the first meeting of the PSI participants held in Madrid, Spain on June 12, 2003, available online at . 5 The text of the Statement of Interdiction Principles is available online at and . See also the statement of the Chairman of the third meeting of the PSI participants held in Paris, September 3-4, 2004, available online at . 6 The text of the Chairman’s statement at this first anniversary meeting, June 1, 2004, is available online at . 7 This paper does not address those aspects of PSI dealing with proliferation by air and other modes of transport. 8 Statement of the Chairman of the second meeting of PSI participants held at Brisbane, Australia, July 9-10, 2003, available online at . 9 Remarks of John R. Bolton, Under Secretary of State for Arms Control and International Security Affairs, “Stopping the Spread of Weapons of Mass Destruction in the Asian-Pacific Region: The Role of the Proliferation Security Initiative,” Tokyo, October 27, 2004, available online at . 10 Remarks of John R. Bolton, Under Secretary of State for Arms Control and International Security Affairs, at PSI meeting in Paris, September 4, 2003, available online at . 11 Statement of Interdiction Principles, para. 4(a). 12 Id., para. 4(b). 13 Id., para. 4(c). 14 Id., para. 4(d)(1). 15 Id., para. 4(d)(2). 16 Id., para. 4(f). 17 The text of each agreement is available online at . 18 The 48 largest registries by number of ships are listed in Appendix II. 19 A comprehensive analysis of these agreements may be found in Byers, M., “Policing the High Seas: The Proliferation Security Initiative,” 98 American Journal of International Law, No. 3, July, 2004, 526. 20 Statement of Interdiction Principles, para. 2. 422

Proliferation Security Initiative (PSI): Countering Proliferation by Sea 21

See U.S. Department of State Bureau of Nonproliferation Fact Sheet, “Japanese Regional Proliferation Security Initiative (PSI) Maritime Interdiction Exercise (Team Samurai ’04),” October 22, 2004, available online at . 22 U.S. Department of State Bureau of Nonproliferation, “Proliferation Security Initiative Calendar of Events,” available online at . See also U.S. Department of State Bureau of Nonproliferation Media Note, “U.S.-Hosted Proliferation Security Initiative (PSI) Maritime Interdiction Exercise (Chokepoint ’04),” November 9, 2004, available online at . 23 See John R. Bolton, Under Secretary of State for Arms Control and International Security Affairs Press Conference on PSI, Krakow, May 31, 2004, available online at , and William R. Hawkins, “Interdict WMD Smugglers at Sea,” U.S. Naval Institute Proceedings, Dec. 2004, at 49-52, available online at . 24 For an analysis of the A.Q. Kahn network, see William J. Broad, David E. Sanger and Raymond Bonner, “A Tale of Nuclear Proliferation: How Pakistani Built His Network,” New York Times, February 12, 2004, at A1. 25 The text of UNSCR 1540 is available online at and . 26 U.S. State Department Bureau of Nonproliferation Fact Sheet, “Proliferation Security Initiative Frequently Asked Questions (FAQ),” January 11, 2005, available online at . 27 It should be noted that the recent report of the UN Secretary-General’s High-level Panel on Threats, Challenges and Change stated: Recent experience of the activities of the A.Q. Kahn network has demonstrated the need for and the value of measures taken to interdict the illicit and clandestine trade in components for nuclear programmes. This problem is currently being addressed on a voluntary basis by the proliferation Security Initiative. We believe that all States should be encouraged to join this voluntary initiative. (Emphasis added by author). “A More Secure World: Our Shared Responsibility: Report of the High-level Panel on Threats, Challenges and Change,” December 1, 2004, online at <www.un.org/secureworld> and annexed to UN doc. A/59/565, at 43, para. 132, December 2, 2004, available online at (emphasis in the original). In his address to the closing plenary of the International Summit on Democracy, Terrorism and Security, delivered on March 10, 2005, in Madrid, Spain, Secretary-General Kofi Annan said “I applaud the efforts of the Proliferation Security Initiative to fill a gap in our defences.” UN Press Release SG/SM/9757, March 10, 2005, available online at 423

J. Ashley Roach . See also the PSI Web site maintained by Canada . 28 The United States Report to the Nonproliferation Committee--Efforts Regarding United Nations Security Council Resolution 1540, September 27, 2004, may be found online at . Links to the national reports may be found online at (as of February 3, 2005). 29 “National Strategy to Combat Weapons of Mass Destruction,” supra note 3, at 1. 30 The analyses contained in this appendix are derived from the annotated text originally developed by LCDR Brad Kieserman USCG, to whom the author expresses his sincere appreciation. 31 SUA = Party to SUA and/or the SUA Protocol of 1988. 32 Panama-U.S. PSI shipboarding agreement of May 12, 2004, may be found online at . 33 Liberia-U.S. PSI shipboarding agreement of February 11, 2004, may be found online at . 34 Marshall Islands-U.S. PSI shipboarding agreement of August 13, 2004, may be found online at .

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Preventing and Defeating Terrorism at Sea: Practical Considerations for Implementation of the Draft Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) 1 Brad J. Kieserman *

[T]hough the [SUA] Convention represents a commitment to the prevention of unlawful acts, it is ultimately up to the signatory states themselves to make the treaty work, and it remains to be seen how states will apply the Convention in the absence of an enforcement mechanism. Phillip E. Fried, International Agreements - Convention and Protocol from the International Conference on the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 30 Harv. Int'l L.J. 226, 227 (1989)

TERROR GOES TO SEA: ACHILLE LAURO AND THE ORIGINS OF THE 1988 SUA CONVENTION On October 7, 1985, four heavily armed members of the Palestine Liberation Front (PLF), a faction of the Palestine Liberation Organization (PLO), hijacked the Achille Lauro, an Italian-flag cruise ship, while sailing from Alexandria to Port Said, Egypt. 2 The four Palestinians boarded the Achille Lauro in Genoa, Italy, 3 managing to smuggle on board automatic weapons, grenades and other explosives, and intending to stay aboard as passengers until the cruise liner reached Ashdod, Israel. In Israel, they “planned either to shoot up the harbor or take Israelis

*

Lieutenant Commander, Office of the Judge Advocate General, U.S. Coast Guard; Chief, Operations Law Group, Office of Maritime and International Law, U.S. Coast Guard Headquarters, Washington, D.C. The views expressed in this paper are submitted in the author’s personal capacity and do not necessarily represent the position of any department or agency of the United States government. 425

Brad J. Kieserman

hostage.” 4 The Palestinians intended to hold the Israelis as hostages to bargain for the release of 50 Palestinians held in Israeli jails. The four PLO members aborted their plans and seized the ship when the crew discovered their weapons after the Achille Lauro left Alexandria. Although it is not clear whether the initial seizure was on the high seas or within the territorial waters of Egypt, there is no doubt that the ship was on the high seas while being held by the hijackers. While holding the ship’s crew and passengers hostage, the hijackers threatened to kill the passengers unless Israel released 50 Palestinian prisoners. They also threatened to blow up the ship if anyone attempted a rescue mission. On the afternoon of October 8, 1985, Israel not having met their demands, the hijackers shot Leon Klinghoffer, a Jewish U.S. national who was partly paralyzed and confined to a wheelchair. Thereafter, the hijackers threw Mr. Klinghoffer’s body and wheelchair overboard at sea. After a series of failed negotiations between the PLF and West Germany, Italy, and Egypt, the Achille Lauro arrived in Port Said, Egypt. 5 Egypt negotiated the release of the hostages and took the terrorists into custody, but did not actually arrest them. Despite repeated U.S. requests to prosecute the offenders, Egypt resisted. On October 10, 1985, an airliner chartered by the Egyptian government sought to deliver the Palestinians to Tunis, Tunisia. 6 Under U.S. pressure, Tunisia did not allow the aircraft to land. U.S. Navy fighters eventually forced the aircraft down at a NATO airfield in Sicily where a dispute arose between U.S. and Italian authorities over which government had jurisdiction. When U.S. troops surrounded the airliner, Italian troops surrounded the Americans, resulting in a tense standoff. Subsequently, the American and Italian governments agreed to allow the Italian forces to take custody of the hijackers, including Mohammed Abbas, the group’s leader and a known terrorist. The Italian government prosecuted the hijackers but refused to detain (or extradite) Abbas. Abbas traveled to Yugoslavia, South Yemen, and eventually to Iraq, which denied extradition. Remaining at large until April 2003, a U.S. special operations team captured Abbas in Baghdad during Operation Iraqi Freedom. 7 In 1986, in response to the hijacking of the Achille Lauro, Egypt, Austria, and Italy proposed at the International Maritime Organization (IMO) to create a new international convention, modeled on existing antiterrorism conventions, particularly the Hague and Montreal Conventions against airplane hijacking and sabotage, and the Hostage Convention, to deal specifically with the issue of maritime terrorism. 8 In November 1986, 426

Preventing and Defeating Terrorism at Sea

the IMO Council agreed unanimously that the matter was appropriate for consideration by the IMO and that it required urgent attention. Prepared in one year by an Ad Hoc Preparatory Committee open to all states, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (hereinafter, “SUA”) was adopted by a diplomatic conference held in Rome in March 1988. 9 The Convention entered into force on March 1, 1992. As noted in the opening quote to this paper, the SUA lacks a complete operational enforcement mechanism. Although entitled “Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation” (emphasis added), the SUA’s operative provisions deal primarily with events after illegal acts have taken place: apprehension, conviction, and punishment of those who perpetrate such acts, rather than prevention or suppression of those acts. The SUA applies to ships navigating or scheduled to navigate into, through, or from waters beyond the outer limit of the territorial sea of a single state, or beyond the lateral limits of its territorial sea with adjacent states, or when the alleged offender is found in the territory of a State Party. 10 Thus, the SUA applies to ships operating or scheduled to operate seaward of any state’s territorial sea – a potentially vast geographic area into which many states would find it difficult to project an enforcement presence much beyond their respective littorals. While the SUA sets requirements for establishing jurisdiction over certain offenses committed seaward of territorial seas, it is uncomfortably silent with respect to the mechanisms for boarding suspect vessels at sea and resolving the disposition of alleged defendants. Like most other anti-terrorism conventions, 11 the core provision of SUA is its requirement for states to “extradite or prosecute.” 12 In support of that framework, the SUA requires States Parties to establish their jurisdiction over specified offenses 13 and make the offenses punishable by appropriate penalties. 14 The 1988 SUA thus established extraditable offenses of direct involvement or complicity in the intentional and unlawful threatened, attempted or actual endangerment of the safe navigation of a ship by the commission or attempt of any of the following acts:

Seizure or exercise of control over a ship by any form of intimidation; Violence against a person on board a ship; 427

Brad J. Kieserman

Destruction of a ship or the causing of damage to a ship or to its cargo; Placement on a ship of a device or substance which is likely to destroy or cause damage to that ship or its cargo; Destruction of, serious damaging of, or interference with maritime navigational facilities; Knowing communication of false information; and Injury to or murder of any person in connection with any of the preceding acts. 15

States Parties are required to establish within their domestic law jurisdiction over these offenses when the offense is committed

Against or on board a ship flying the flag of the state at the time the offense is committed; or In the territory of that state, including its territorial sea; or By a national of that state. 16

In addition to the obligations to establish offenses, jurisdiction, and punishment, and to prosecute or extradite, the SUA obliges States Parties to take alleged offenders into custody or secure their presence for trial,17 cooperate in preventative measures, 18 and exchange information and evidence needed in related criminal proceedings. 19 Article 8 of the SUA permits the master of a ship of a State Party to deliver to the authorities of any other State Party any person who he has reasonable grounds to believe has committed one of the SUA offenses, and all pertinent evidence in the master’s possession. 20 If possible, the master should give the receiving state advance notification before entering that state’s territorial sea of his intention to deliver such person, along with the underlying grounds. The receiving state is obliged to accept the delivery, except where it believes the SUA is inapplicable to the acts described, whereupon it may refuse to accept a delivery by presenting a statement of the reasons for refusal. A receiving state that accepts the delivery of a person in this manner may request, in turn, that the flag State of the ship aboard which the SUA offense was committed accept delivery of that person. Thus, a master of a Panamanian vessel (Panama is a State Party) who was able to capture an alleged SUA offender aboard his vessel while operating in the South China Sea might notify the government of Singapore (Singapore is a State Party) of his intent to deliver the alleged 428


offender to a port in Singapore. Assuming Singapore concurred that a SUA offense occurred, Singapore would be obliged to detain the offender and would have the option either to prosecute or contact Panama, the flag State, to arrange for the exercise of Panamanian jurisdiction. The hypothetical situation above, however, depends on the master of a commercial vessel successfully regaining control of his ship after the commission of a SUA offense. The SUA is silent on what procedures interested State Parties, including extra-regional stakeholders with assets in the area, might cooperatively employ to locate, board, and secure the vessel, alleged offenders and evidence so that the legal process envisioned by the SUA might proceed. The drafters appeared to have considered the issue without providing any new substantive procedural guidance. Thus, article 9 of the SUA provides the following: “Nothing in this Convention shall affect in any way the rules of international law pertaining to the competence of States to exercise investigative or enforcement jurisdiction on board ships not flying their flag.” 21 Both the 1958 Convention on the High Seas 22 (hereinafter, 1958 Geneva Convention) and the 1982 United Nations Convention on the Law of the Sea 23 (hereinafter, UNCLOS) contain anti-piracy enforcement provisions (absent from the SUA) that create a “right of visit” for foreign warships that encounter a vessel on the high seas if the warship has reasonable grounds to suspect that it may be engaged in piracy. 24 This right does not extend, however, to SUA offenses or other acts of violence at sea that do not meet the definition of piracy. 25 Before considering recent steps to improve the utility of the SUA, it is useful to consider briefly the relationship between the SUA and the universal offense of piracy. In the past and to a certain extent today, pirates, motivated by material gain, used one ship to attack another on the high seas and commit acts of violence. Although piracy is the oldest and perhaps only offense over which customary international law generally recognized universal jurisdiction, customary international law never provided an authoritative definition of piracy. 26 The open issues included the following:

Whether an intent to rob was a necessary element; Whether acts by insurgents (as distinguished from state vessels and recognized belligerents) seeking to overthrow their government should be exempt; and Whether the act had to be by one ship against another or could be on the same ship. 429

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The piracy provisions of modern conventional international law define the offense as follows:

An illegal act of violence, detention, or depredation; Committed by the crew or passengers of a private ship; For private ends; Committed on the high seas (or in a place outside the jurisdiction of any state); and Against another vessel. 27

It remains unclear, however, whether the drafters of the piracy provisions of modern conventional international law intended to exempt indiscriminate attacks on the high seas from universal jurisdiction. Whatever their intent, “the definition of piracy in these Conventions lends itself to that interpretation.” 28 Indeed, in the aftermath of the Achille Lauro, scholars, politicians, and diplomats had considerable differences of opinion over whether the acts committed by the PLO aboard the Achille Lauro constituted piracy under the 1958 Geneva Convention. 29 The drafters of the SUA simplified many of the issues surrounding piratical offenses and jurisdiction over acts of violence at sea. The SUA moved away from the “private ends” and the “one ship, two ship” debates 30 that arose from eighteenth and nineteenth century maritime practice. Consequently, the SUA laid the foundation for international law to handle maritime violence and terrorism as unique modern offenses, rather than trying to shoehorn them into an anachronistic definition that never contemplated the interdependent global maritime transportation system and formidable non-state actors threatening the world today. That said, the SUA did not supersede the customary international law of piracy or the provisions on piracy under the 1958 Geneva Convention and UNCLOS. Thus, the rules and principles of general international law continue to govern matters not regulated by the SUA. 31 GETTING OUR BEARINGS: A SUA FOR OUR TIME Terrorism and violence in international waters continue to threaten global commerce and seafarers in non-traditional ways. “Security experts paint vivid pictures of how terrorists could take advantage of lax security to blow up tankers, or take over ships to use them as floating bombs or 430


launching pads for nuclear attacks.” 32 With Achille Lauro in mind, some experts fear a potential maritime version of the September 11, 2001, aviation attacks in the United States. In such a scenario, terrorists already on board a vessel, either by stowing away, embedding in the crew as “sleepers,” 33 or masquerading as passengers, seize control of a ship and attempt to the use the ship itself as a weapon against other ships or against port facilities. 34 Such an attack might involve the use of a large commercial cargo ship as a collision weapon for destroying critical infrastructure or sinking it in a major shipping channel or narrow strait, thereby blocking all traffic. 35 Alternatively, terrorists might attack an oil tanker in a port or at an offshore discharge facility to disrupt global oil trade and cause large-scale environmental damage; or attack a large ship carrying a volatile fuel (such as liquefied natural gas) and detonate the fuel, causing a massive explosion. Other scenarios posit that widespread use of containerized commercial shipping, coupled with our inability to verify the contents of most of those containers, might provide an effective vector for the proliferation and transport of weapons of mass destruction (WMD), their delivery systems, related materials, and other unmanifested dangerous materials. 36 Still other experts worry about the use of ships and containers to transport terrorists themselves to our ports, after which they enter our countries surreptitiously evading immigration controls. 37 Ships owned by terrorist cells or supporters are of particular concern in this regard because of the degree of operational control they might afford in the illicit delivery of people and cargo. Finally, many maritime security experts, both public and private, are troubled by the increasing incidence of terrorists conducting suicide attacks on merchant ships and military vessels via small boat. 38 Whatever else these acts may be like, they do not all fit neatly within a single, well-defined international legal framework, including the international law of piracy or the existing SUA, and, hence, may fit even less neatly into the domestic law of most states. Whether applied to Achille Lauro or scenarios involving the transport of “sleeper” terrorists by ship or WMD by container, these acts meet neither the requisite motive of private ends nor the involvement of two ships necessary to constitute piracy. Similarly, these types of activities are beyond the scope of the existing SUA, which does not criminalize the following:

The commission of terrorist acts from a ship or by a ship that do not necessarily endanger safe navigation by the ship directly 431

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(e.g., intentionally and unlawfully releasing harmful substances, such as chemical, biological, radiological substances, that have the capacity to cause death or serious bodily injury); The transport of persons alleged to have committed an offense under any of the 12 terrorism conventions (including the SUA) with the intent to assist such persons in evading prosecution; 39 and The unlawful transport of WMD, their means of delivery, and related materials, including certain dual use items. 40

The 1958 Geneva Convention, UNCLOS and the 1988 SUA did not envision the need for the type of comprehensive structure or multilateral approach to prevent and respond to maritime terrorism required in the aftermath of September 11, 2001. Thus, neither the 1958 Geneva Convention nor UNCLOS contains a single substantive provision directly intended to prevent or assist in preventing a modern maritime terrorist attack. Moreover, the SUA, although aimed at maritime terrorism and developed later in time, remains incomplete with respect to establishing substantive offenses and at-sea enforcement mechanisms. Whatever they may lack with respect to specific terrorism provisions, the 1958 Geneva Convention, UNCLOS, and the 1988 SUA are built upon the concept of exclusive flag State jurisdiction seaward of states’ territorial seas. 41 This well-established principle provides that “apart from certain special cases which are defined by international law – vessels on the high seas are subject to no authority except that of the State whose flag they fly.” 42 As a matter of states’ practice and due to an increasing volume of conventional international law, 43 states, exercising their prerogatives with respect to exclusive flag State jurisdiction, have consented, or delegated their authority, to other states exercising certain aspects of jurisdiction over one or more of their vessels, including the conduct of boardings at sea. It is this powerful and fundamental rule of maritime law that provides the core about which states are gathering and marshaling their collective resources to combat the illicit use of the seas for violence, terrorism, and proliferation. 44 As constituted, the SUA does not take full and explicit advantage of the mechanisms of exclusive flag State jurisdiction, and is consequently more of a tool for prosecutors than sea-going maritime law enforcement officers and security officials. Perhaps as a result of the timing of its 432


preparation or perhaps because it was based on pre-existing, nonmaritime, counter-terrorism models, the 1988 SUA contains no provision specifically describing a process whereby a flag State can seek assistance in suppressing covered criminal and terrorist acts by authorizing another state to board one of its vessels at sea. This is a serious operational gap when one considers that lack of specificity in the process for seeking flag State consent, failure to identify in advance competent authorities empowered to receive and respond to requests at any time (which is when attacks occur and threats become known), and ambiguities in any part of the process (e.g., who may board, from what platform, rules for use of force) can quickly undermine even the most well-intentioned interventions. Ironically, at the time SUA was prepared in London and concluded in Rome in March 1988, the Vienna Convention for the Suppression of Illicit Traffic in Narcotic Drugs and Psychotropic Substances 45 was only months from conclusion. Article 17 of the Vienna Convention provided the first internationally-agreed-upon multilateral shipboarding provision by which one state could assist another in suppressing illicit drug trafficking at sea by seeking authorization to board suspect vessels “exercising freedom of navigation in accordance with international law and flying the flag or displaying marks of registry of another Party.” Nevertheless, in 1987 and 1988, shipboarding regimes were not yet the subject of internationally agreed procedures and thus such a provision did not find its way into the SUA. Over the next 17 years, however, shipboarding regimes modeled on and evolving 46 from Article 17 of the Vienna Convention appeared in a variety of multilateral agreements on an array of subject matters, including the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Crime, Palermo, December 15, 2000; 47 the 1995 UN Straddling Stocks Convention; 48 the 2003 Caribbean Regional Agreement; 49 the 1995 European Community Agreement on Illicit Traffic by Sea; 50 and more than two dozen bilateral agreements between the United States and other nations for drug, migrant, and proliferation security interdiction. 51 Without a shipboarding provision, the SUA’s express approach to the practical problems of prevention or suppression of unlawful acts is confined to the preamble and two brief substantive provisions. The preamble calls on the IMO to develop measures “to prevent unlawful acts which threaten the safety of ships” and affirms “the desirability of 433

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monitoring rules and standards relating to the prevention and control of unlawful acts against ships and persons on board ships, with a view to updating them as necessary.” Except for matters of piracy and armed robbery at sea, 52 until the adoption of the International Ship and Port Facility Security (ISPS) Code and corresponding amendments to the International Convention for the Safety of Life at Sea, 1974 (SOLAS), on December 12, 2002, IMO had not focused on practical steps to counter these threats. 53 Beyond SUA’s hortatory preamble, Article 13 of the Convention 54 requires States Parties to prevent the use of their territories as bases for possible attacks and requires states to exchange information to prevent the offenses set forth in Article 3. Article 14 generally defines what information states should exchange. 55 These provisions are somewhat vague and offer little guidance for the creation of a regime to prevent or suppress terrorism on the high seas. Essentially, then, the SUA defined offenses and focused on the exercise of jurisdiction after the fact. The SUA left the boarding process to customary international law (to the extent it considered it at all) and the attendant ad hoc arrangements and transactional friction that came with doing things “on the fly.” 56 Fortunately, this gap drew little attention because the SUA was slow to attract States Parties and saw little use during its first 12 years in force; indeed, the author is aware of only one case in which the SUA provided the basis for shipboarding at sea and a subsequent (successful) prosecution. 57 Ten years after the SUA’s entry into force (and only shortly after the attacks of September 11, 2001), the SUA had 67 States Parties. By the end of December 2004, SUA had gained an additional 49 States Parties totaling 116 Parties and representing more than 81 percent of the world’s tonnage, 58 “reflecting the apparent seriousness with which the nations of the world have taken the threat on international terrorism since September 11.” 59 As the SUA gained States Parties in the wake of terrorist attacks in the early years of the twenty first century, and as the threat of terrorism hovered over global and regional maritime security like the sword of Damocles, many experts sought to amend the 1988 Convention to create a SUA better suited for our times. Since the SUA entered into force in 1992, 60 global terrorism and the proliferation of WMD have increasingly plagued global security. UN General Assembly and Security Council resolutions have emphasized the affirmative duty of states to prevent terrorism and developed a nexus between terrorism and the proliferation 434


of WMD, their delivery systems, and related materials. Thus, the General Assembly has called on states “to take appropriate practical measures to ensure that their respective territories are not used for terrorist installations or training camps, or for the preparation or organization of acts intended to be committed against other States or their citizens.” 61 Following the attacks of September 11, 2001, the Security Council adopted Resolution 1373, reaffirming that each state has a duty to “[c]ooperate, particularly through bilateral and multilateral arrangements and agreements, to prevent and suppress terrorist attacks, and take action against perpetrators of such acts” and requiring states to “[t]ake the necessary steps to prevent the commission of terrorist acts, including by provision of early warning to other States by exchange of information.” 62 Likewise, Security Council Resolution 1456 reiterated the challenge posed by terrorists’ access to WMD and related materials and called upon international organizations to “evaluate ways in which they can enhance the effectiveness of their actions against terrorism,” and emphasized “the importance of fully complying with existing legal obligations in the field of disarmament, arms limitation and non-proliferation and, where necessary, strengthening international instruments in this field . . . .” 63 In April 2004, the UN Security Council affirmed in Resolution 1540 “that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security,” and expressed grave concern about “the threat of terrorism and the risk that non-state actors such as . . . to whom resolution 1373 applies, may acquire, develop, traffic in or use nuclear, chemical and biological weapons and their means of delivery.” 64 Accordingly, the Security Council, acting under Chapter VII, called upon all states “in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials.” 65 In response to the attacks on the United States on September 11, 2001, the twenty-second IMO Assembly resolved on November 20, 2001, that its Maritime Safety Committee, Legal Committee, and Facilitation Committee should review, on a high-priority basis, the instruments under their purview to determine whether they should be updated and to determine whether there is a need to adopt other maritime security measures. 66 With a view toward a consistent global approach to maritime terrorism and WMD proliferation, the United States proposed 435

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amendments to SUA at LEG 84 (and intersessionally thereafter) in 2002 to facilitate, strengthen, and expand international cooperation and coordination. The IMO’s Legal Committee supported establishment of a Correspondence Group under the leadership of the United States, which was ultimately comprised of 65 states and seven organizations. 67 After several meetings of the Legal Committee and intercessional correspondence and working groups, it appears that a workable draft is poised to emerge from LEG 90 (held in April 2005) for consideration by a Diplomatic Conference in October 2005. 68 The proposed new SUA offenses can be divided into three basic categories:

using a ship to commit terrorist acts, non-proliferation offenses, and transporting alleged terrorists by ship. 69

Proposed Article 3 quater also criminalizes attempts, accomplice liability, and organizing or directing others to commit offenses (similar to the offense of conspiracy in the U.S. legal tradition). Each of these offenses is intended to fill transnational legal gaps specifically related to vulnerabilities in the global maritime transportation system and potential threats discussed earlier in this section. 70 Cognizant of Professor Fried’s observation on the “absence of an enforcement mechanism” (cited at the beginning of this article), the United States proposed a shipboarding regime in the form of new Article 8bis. The United States intended Article 8bis to provide a framework, heretofore absent from SUA, for cooperation to prevent and suppress SUA offenses aboard suspect vessels operating seaward of any state’s territorial sea. Based on measures that may be undertaken by a requesting or requested Party, the drafters designed Article 8bis to be consistent with, respect, and build upon the developments in international maritime law enforcement operations and the rule of law. MARITIME SECURITY GOES TO SEA: GETTING UNDERWAY WITH AN AMENDED SUA The remainder of this paper offers some practical recommendations for elements that should be included in a SUA shipboarding provision, along with considerations for implementing those provisions should the 436


Diplomatic Conference adopt a Protocol to the SUA containing them. It may be many years before the Protocol gathers enough acceptances to enter into force. It will also take time for states to enact domestic implementing legislation, identify and build internal and external coordination mechanisms, train security force personnel, and develop strategies, policies, techniques, tactics, procedures, and relationships to employ the amended SUA effectively to prevent and suppress maritime terrorism in the twenty first century. In view of those needs, this section discusses considerations germane to a prospective SUA boarding regime, which are also generally applicable to almost any maritime law enforcement boarding operations. A well-considered SUA shipboarding regime, coupled with the proposed new offenses, would provide both a legal and operational framework for preventing and suppressing a potential maritime version of the September 11, 2001 aviation attacks. In this respect, the drafters of such provisions should be mindful that, unlike the 2001 attacks, terrorists on board vessels at sea need not necessarily seize actual control of the ship to use it as a weapon against other ships at sea or against port facilities. Instead, it may suffice to control only a single container or cargo hold concealing people, WMD, or proliferation-related materials to accomplish their deadly objective in the fashion of a “Trojan horse.” There are few easy solutions to the security threats posed to the maritime transportation system, by containers and their cargo, particularly in the “Trojan horse” scenario. Given today’s global economy and large transshipment facilities, modern security threats may emerge from one corner of the globe and, like a virus, may affect many others. 71 The “Trojan horse” scenario demonstrates that measures like secure control of ships, containers, and cargo at points of origin and transshipment, as well as maritime domain awareness and screening of seafarers, are essential elements of a successful global maritime security regime. Such measures are not, however, infallible or complete guarantors of maritime security, which is why it is important for the SUA to have a clear and wellconsidered boarding regime. What if, notwithstanding an array of maritime security measures (or perhaps because those measures were effective in generating information or intelligence), a state develops reasonable grounds to suspect that a vessel (or vessels) located seaward of any state’s territorial sea is engaged in the “Trojan horse” scenario? One obvious solution is to intercept the threat as far offshore as possible, thereby limiting any potential damage to 437

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coastal populations, waters, infrastructure, ports, and other shipping. This “obvious solution,” however, has many hidden barriers to success, both legal and practical, which are often inextricably intertwined. The complexity of the problem posed by a potential WMD or terrorist attack facilitated by or via a commercial ship drives the need for formal international cooperation emphasizing the rule of law. Preventing and responding to such an emerging threat involves a wide range of participants such as port, flag, and coastal States, along with ship registrars, shippers, charterers, marine insurers, and shipping agents. The affected states and commercial interests must be committed and prepared in advance to work together on short notice to identify, disseminate, detect, monitor and defeat a maritime terrorist threat. Accordingly, a SUA shipboarding regime should require States Parties to cooperate to the fullest extent possible to prevent and suppress unlawful acts covered by the SUA, in conformity with international law, and to respond to requests for verification of vessel nationality and authorization to stop, board, and search, as expeditiously as possible. Knowing about a potential threat is the key to effective prevention and response. Hence, one aspect of international cooperation is agreed-upon protocols allowing states expeditiously to share valuable information about possible threats or attacks with those states that may be affected or positioned to assist. To be truly preventative, rather than merely reactive to threats, states need to share commercial and military intelligence on shipping as a matter of regular course, not only when there is suspicion of a likely attack. Whether states share information on a routine or ad hoc basis, the passing of information, especially classified information on terrorism, must follow the national law of the state that possesses it. Thus, the complexities of inter-State information and intelligence sharing must be considered and managed in advance of a threat, so that the flow of critical information in an emergency is timely and effective. A SUA shipboarding provision, in concert with pre-existing Articles 13 and 14 (discussed earlier), should support these objectives by encouraging States Parties to develop standard operating procedures for joint SUA operations, and to consult, as appropriate, with other States Parties with a view to harmonizing such standard operating procedures. Likewise, a SUA shipboarding provision should encourage States Parties to conclude agreements or arrangements among themselves to facilitate law enforcement operations carried out in accordance with the provision. 438


What if one state has information or intelligence that a suspect vessel bearing the flag of a second state may be bound to a third state with a cargo of WMD? Recalling that today’s global and interconnected economy permits modern security threats to emerge from one corner of the globe and manifest themselves in another, flag States, which have exclusive jurisdiction over their flag vessels while on the high seas, 72 may find it necessary to allow other states to stop, board, search and detain suspect vessels bearing their flags as far from shore as possible to mitigate risk and to save lives and property. Properly managed through internationally recognized and agreed-upon procedures, the boarding of a suspect vessel at sea by security officials of one (or more) state(s) with the consent of the flag State is not even a limited derogation of sovereignty, but rather an affirmation that states working together under the rule of law are a greater power in the world than chaos or terror. Essential to this process are the timely sharing of credible threat information, confirmation of a suspect vessel’s nationality or registry, the authorization to board the vessel, and timely decisions on the disposition of any illicit cargo, including a determination on the exercise of and procedures for perfecting enforcement jurisdiction, if appropriate. Deliberate interdiction planning activities, and the infrastructure that supports them, should be the core of any shipboarding regime. A SUA shipboarding provision should, therefore, provide a clear framework for States Parties with information or intelligence about suspect vessels to communicate that information directly between identified competent authorities. Thus, in order to be effective, any SUA shipboarding regime should require each State Party, on or after it deposits its instrument of ratification, acceptance, approval or accession, to designate the authority or, where necessary, authorities to receive and respond to requests for assistance, for confirmation of nationality and for authorization to take appropriate measures. States Parties should be required to notify the IMO Secretary-General (or other centralized authority) of such designation, including contact information, within one month of becoming a Party. The IMO Secretary-General would then timely inform all other States Parties of the designation. Along with the initial notification, the shipboarding regime should require each State Party to provide prompt notice through the Secretary-General of any changes in the designation or contact information. These provisions go hand-in-hand with the two additional concepts that should be embedded in the SUA shipboarding 439

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regime: 1) that States Parties shall respond to requests as expeditiously as possible, and 2) that States Parties use their best efforts to render such assistance within the means available to them when requested. The success of any shipboarding regime is dependent upon the timely availability and sharing of information and intelligence, the capability of boarding States to conduct safe and thorough at-sea operations, and the responsiveness and readiness of flag States to receive, consider, make decisions, and respond to requests in a timely fashion. Indeed, so important is the responsiveness of flag States that one of the first decisions a prospective State Party must make is to what extent it is capable of meeting its obligation to respond to requests “as expeditiously as possible.” Experience in other areas of maritime law enforcement suggests that, with respect to response mechanisms, “one size does not fit all,” and that offering several options may be helpful in attracting signatories. Consequently, a SUA shipboarding regime should require each State Party to decide whether it has a domestic operational and policy infrastructure sufficiently robust and accessible to consider expeditiously each request for verification of nationality and authorization to board on a case-by-case basis. For some states, meeting that obligation may require a command center staffed around the clock with immediate access to registry data and senior decision-makers, making it economically or technologically impractical. Fortunately, other alternatives exist and a successful SUA shipboarding regime should offer them and require each State Party, on or after it deposits its instrument of ratification, acceptance, approval or accession, to select a response option (or to accept an identified default if it does not make an affirmative declaration). One alternative might involve pre-authorizing boardings by other State Parties subject to timely reporting by the boarding State to the flag State, and the flag State’s retention of enforcement jurisdiction. Another option could allow the flag State to grant permission to other states to board and search suspect vessels claiming its nationality if it does not respond within four hours with acknowledgement of receipt of a request to confirm nationality. It may be helpful to include a mechanism for flag States that have not made a declaration and thereby have chosen to consider each request on a caseby-case basis. If such a flag State does not comply with its obligation to respond expeditiously to the request for verification of nationality and a subsequent request for authorization to board, then the requesting party shall consider the need to warn other States Parties concerned. 440


Many states may find that making, receiving, and responding to requests for SUA boardings requires an established multi-disciplinary process staffed by trained and experienced operators, policy makers, diplomats, and lawyers with expedited access to the highest levels of government. Interdiction and disposition of vessels suspected to be engaged in or supporting terrorist WMD proliferation activity present difficult practical challenges, as well as several potentially complex legal and policy issues, some of which require resolution, or at least consideration, before undertaking activity at sea in a particular case. Potential legal issues include (but are hardly limited to) the following:

authority to board; evidence collection; chain of custody; disposal of weapons and materials prohibited by international law; procedural rights to be afforded to potential defendants and material witnesses; delivery of evidence, defendants, and witnesses to the state exercising jurisdiction; disposition of legitimate cargo; and compensation to innocent owners for delay or damage if the reasons for boarding prove to be unfounded.

As dangerous as it may be, getting on board a vessel suspected of SUA offenses is only the beginning of a potentially complex mission. Accordingly, before undertaking any boarding of a vessel suspected of engaging in terrorist activity or WMD proliferation, decision-makers should articulate the desired outcome of the boarding and select a preliminary operational framework that best supports that desired outcome. Appendix I to this paper provides a graphic representation of a framework for maritime terrorist interdiction that some may find helpful in considering these complex issues. There are four outcome-driven frameworks for such boardings:

Exposing smuggled, concealed, or undeclared WMD cargo, thereby forcing transparency, but without taking enforcement or seizure action; 73 441

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Exercising the boarding State’s criminal law enforcement authority and jurisdiction; Assisting the flag State in the exercise of its criminal law enforcement authority and jurisdiction; 74 and Exercising the national right of self-defense. 75

These frameworks are not necessarily mutually exclusive; 76 however, the rules governing the military approach to national self-defense and the approach of law enforcement officials to criminal activity are “greatly different” 77 and produce different outcomes. As one commentator has summarized, “[t]he goal of the military is essentially to destroy the enemy, not to capture him . . . [l]aw enforcement, on the other hand, is virtually always committed to finding, arresting, and trying criminal suspects.” 78 Although any major counter-terrorism or counter-proliferation operation may necessarily have military, intelligence, and law enforcement components, decision-makers should analyze potential issues and determine what approach should predominate before commencing any interdiction at sea in order to avoid confusion that may arise from “inherent philosophical disagreement[s] between the relevant organizations” (and perhaps, states) conducting counter-terrorism/counterproliferation activity. 79 An early decision on the appropriate initial framework can help clarify the mission, determine which state (and, domestically, which agency) should assume the lead role, avoid placing law enforcement personnel in military-style operations, and tasking “war fighters” to act as police officers. 80 Consequently, in implementing any SUA shipboarding regime, states may wish to examine their domestic interagency coordination processes to ensure they can manage expeditiously and in real time both internal domestic issues and any adverse impact on their foreign relations arising from such cases. States may wish to consider whether their processes, however structured, ensure that their government’s decisions are reached expeditiously and that the views of all concerned departments and agencies, as well as considerations of both domestic law and foreign policy, are brought together in reaching decisions. Further, States Parties may want to contemplate which agencies and officers might conduct SUA boardings. Consistent with similar instruments discussed previously, a SUA shipboarding regime should provide that SUA boardings may be conducted by “law enforcement or other authorized officials” of the Parties, which means uniformed or 442


otherwise clearly identifiable members of law enforcement or other government authorities duly authorized by their government. As noted above, the successful conduct of SUA boardings requires maritime law enforcement training and expertise in order to collect and preserve evidence to support the exercise of enforcement jurisdiction and subsequent criminal prosecution contemplated by the Convention. Moreover, each State Party should take appropriate measures to ensure that its law enforcement or other authorized officials, and law enforcement or other authorized officials of other States Parties acting on its behalf, are empowered to act pursuant to the shipboarding regime. Consequently, states might find it helpful to review the domestic authorities of their maritime agencies to ascertain whether there are gaps that might prevent them from conducting extraterritorial SUA boarding operations on foreign flag vessels. In addition to “who” conducts SUA boardings, a SUA shipboarding regime should regulate the platforms from which boardings may be conducted. Any measure taken pursuant to a SUA shipboarding regime should be carried out by law enforcement or other authorized officials from warships or military aircraft, or from other ships or aircraft clearly marked and identifiable as being of government service and authorized to that effect. The requirement for clearly marked vessels of government service is consistent with all other existing boarding regimes and is one of several safeguards intended to ensure that terrorists and criminals cannot misuse the SUA to gain forced access to a vessel. The use of warships and other vessels clearly marked and identifiable as being of government service is also consistent with similar UNCLOS provisions regarding piracy, right of visit, hot pursuit, and the 1988 Vienna Convention. 81 Boarding States will need to consider whether those operating their warships have adequate domestic authority to take SUA enforcement action (including search, seizure, arrest, and other similar activity) and, if not, will need to consider alternatives, including legislation or the use of ship riders or deployed law enforcement teams (including teams from other States Parties). An additional safeguard not seen previously in earlier maritime boarding instruments, but which may be helpful for the specific purpose of law enforcement under the SUA, would require law enforcement or other authorized officials to provide appropriate government-issued identification documents for examination by the master of the ship upon boarding. In addition to preventing fraudulent boardings, this provision is 443

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intended to be supportive of the ship security provisions of the ISPS Code and other relevant instruments. See Conference Resolution 3, and the Amendments to SOLAS Chapter IX. 82 Another new safeguard worthy of consideration would require the boarding State to ensure that the master of a ship is advised of its intention to board and is, or has been, afforded the opportunity to contact the ship’s owner and the flag State at the earliest opportunity. By balancing an absolute right for the master to communicate with the shore with the boarding State’s need to control the timing of those communications for operational security (particularly if the vessel master is a suspected co-conspirator), this safeguard also contributes to preventing fraudulent boardings. Thus, a SUA shipboarding regime might contain a four-prong safeguard system to prevent and deter fraudulent boardings:

Only warships or other well-marked government platforms, which are quite difficult to imitate, may conduct boardings; Only uniformed or clearly identified boarding officers may conduct boardings; Authorized boarding officers must present government-issued identification documents to the Master upon boarding; and Boarding States are obliged to provide the Master an opportunity to communicate with authorities ashore at an appropriate time.

Having considered who will conduct SUA boardings and from what platforms those boardings may be conducted, it would be wise to contemplate the plethora of practical operational challenges presented by high seas interdiction operations, especially those targeting terrorism and WMD proliferation. Mindful of these challenges and the associated costs to industry when large commercial vessels are involved, any shipboarding regime should require at its outset that States Parties take into account the dangers and difficulties involved in boarding a ship at sea and searching its cargo, and give consideration to whether other appropriate measures agreed to between the states concerned could be more safely taken in the next port of call or elsewhere. Other safeguards reflecting the challenges of at-sea boarding operations should include requirements for all States Parties to do the following:

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Take due account of the need not to endanger the safety of life at sea; Take due account of the safety and security of the ship and its cargo; Take due account of the need not to prejudice the commercial or legal interests of the flag State; Ensure, within available means, that any measure taken with regard to the ship or its cargo is environmentally sound under the circumstances; and Take reasonable efforts to avoid a ship being unduly detained or delayed.

Even in optimal at-sea boarding situations, obtaining full at-sea personnel and space accountability aboard a large vessel is a demanding task. To meet this challenge, effective boarding teams should be composed of trained boarding officials who are under experienced onscene leadership, who possess competencies in commercial ship operations, and who employ well-developed tactics, techniques, and procedures to account for people and space on board the vessel, including equipment permitting reliable communication among the boarding team and with the boarding platform. Notwithstanding any potential risks posed by terrorists, the presence aboard commercial vessels of highly flammable substances, compressed gas tanks, and dangerous cargo vapors requires that all electrical devices (e.g., radios, pagers, cellular phones, cameras, flash attachments) used by boarding teams must be intrinsically safe or explosion-proof to prevent pockets of vapor from causing a catastrophic explosion. Add to these the risk of injuries related to persons falling overboard while attempting to board or during the boarding, along with noise, physical hazards and exposure and we begin to understand the practical risks involved in any boarding. Positive and reliable identification of people at sea is difficult. Unfortunately, even in this age of sophisticated communications technology and biometrics, it remains difficult to verify the identities and backgrounds of seafarers at sea, due to both technological impediments and inadequate databases. Thus, boarding officials may not always be certain that the seafarer before them is who he or she claims to be. Nevertheless, boarding teams often require the cooperation of the master and crew to effectively account for the space and persons aboard a large vessel. In suspected terrorism cases, however, the boarding team may not 445

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be able to count on the cooperation of the vessel’s crew. Because the arrival of law enforcement or military vessels on-scene may prompt terrorists to react violently, seize the vessel, take hostages, scuttle the ship, detonate their WMD, or some combination of these reactions, it may be dangerous and unwise to notify the vessel’s master and crew in advance of the boarding, regardless of whether they are innocent bystanders or coconspirators. Terrorists may fail to comply with orders for the vessel to slow or heave-to, and may resist or oppose a boarding using force, including deadly force. Once safely on board, thoroughly accessing and searching a container ship at sea can be arduous and dangerous, if not impossible. Large container ships may carry more than 6,000 containers. Each container is generally from 20 to 48 feet in length, eight feet in width and height, can weigh 20 tons or more, and be stacked nine deep in the ship’s hold. 83 Only a limited number of containers are accessible at sea, and scaling these mountains of steel requires specially trained and equipped personnel. If it is necessary to unload containers, highly specialized cranes that can lift between 30 and 50 tons are required. Unloading operations at sea would also require specialized barges for the cranes, and barges or other vessels to transport the offloaded cargo or containers. Because of wave action, wind, weather and stability issues, those conducting the operations face a variety of unpredictable and ever-changing logistics challenges and dangers. That said, given the degree of operational control usually desired by modern terrorists, 84 it is likely that a terrorist organization would ensure that the WMD was accessible to its on-board agents at sea. If a WMD is accessible at-sea to its terrorist minders, then it will also be accessible to security forces boarding the suspect vessel. If a WMD is accessible, security forces will still require specialized detection and access capability and equipment (including the training to employ the capability effectively). A boarding may yield several general outcomes affecting the vessel, cargo, and persons on board. First, it may produce evidence of illicit activity leading to arrest of persons and/or seizure of property for violation of the flag State’s domestic law. Likewise, the boarding may yield evidence of violations of the laws of other interested states, including the boarding State, states of nationality of the alleged perpetrators and/or victims, and the states in which any illicit cargo was loaded or destined. Alternatively, the boarding may be inconclusive or lead the boarding and flag States to conclude that they should divert the vessel to a port or 446


anchorage for a more detailed inspection or to access spaces or containers inaccessible at sea. Such a diversion may be easier said than done. It may be difficult to find a less vulnerable locale for inspection, a coastal State may not want to risk allowing the vessel to enter its territorial sea if uncertainty remains about the threat posed by the vessel, or the flag State may have concerns about ceding control over the case or jurisdiction to the coastal State. Even if all involved states are willing to allow the vessel to divert to a port or anchorage, it may be difficult to find a boarding locale to accommodate and isolate a deep-draft vessel without disturbing other traffic. Once diverted, a concerted effort by all interested parties is essential to ensure the continued welfare of innocent seafarers on board, who may be needed as witnesses, as well as to ensure the appropriate commercially viable disposition of the remaining legitimate cargo, and to ensure appropriate accommodations for the vessel, which may itself be subject to seizure. In cases involving the capture at sea of suspected SUA offenders, Article 8 of the existing SUA, discussed supra, 85 establishes rights for the masters of ships and duties for coastal and flag State Parties with respect to the delivery and detention of prospective defendants. States Parties will need to consider procedures for implementing this essential provision, including the extent to which their respective domestic laws permit the transfer of SUA defendants through their territories and what processes, if any, are due a prospective SUA defendant arriving by sea for transfer to another state. Additional issues arise in such cases, including which states (and agencies within those states) may bear the cost or provide aircraft and other conveyances and associated security personnel necessary to complete a detainee transfer, and whether one state may permit the armed security force officials of another state to enter in order to affect the transfer of a SUA detainee. 86 Further, subsequent successful prosecution will likely depend on the availability of physical and testimonial evidence, presented in a form acceptable in the prosecuting state. Accordingly, boarding State security forces will require some guidance on a case-bycase basis with respect to evidence collection, chain of custody, and other criminal procedure matters. Likewise, the prosecuting state may require depositions from or the presence of the boarding officers at trial, which may require bilateral (and perhaps multilateral) coordination beyond the initial boarding and search. Not all boardings yield evidence of wrongdoing. In cases where a boarding is completed and no actionable evidence of illicit activity is 447

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found, the boarding State may have to respond to claims for damage or loss by affected commercial interests. With respect to claims, and drawing in large part from UNCLOS, the author has proposed that any SUA shipboarding regime provide as follows: (a) Provided that authorization to board by a flag State shall not per se give rise to its liability, States Parties shall be liable for any damage, harm or loss attributable to them arising from measures taken pursuant to this article when: (i)The grounds for such measures prove to be unfounded, provided that the ship has not committed any act justifying the measures taken; or (ii)Such measures are unlawful or exceed that reasonably required in light of available information to implement the provisions of this article. State Parties shall provide for effective recourse in respectof such damage. From an implementation perspective, prospective States Parties should consider whether they have an effective and accessible claims program, whether administrative, judicial, or some combination thereof. While SUA should not mandate the specific mechanism for providing recourse to claimants, and therefore should not necessarily require new domestic implementing legislation, it should require States Parties to provide some “effective recourse” for recovery of damages. Likewise, even though “authorization to board by a flag State shall not per se give rise to its liability,” many flag States have commercial, political, and other considerations that make it imperative for a prospective boarding State to articulate clearly in its request for authorization to board why it has reasonable grounds to suspect that a SUA offence is, has been or is about to be committed aboard the vessel. The SUA shipboarding regime could reiterate the necessity for this practice by expressly permitting a flag State to subject its authorization for boarding to conditions such as obtaining additional information from the requesting party, and conditions relating to responsibility for and the extent of measures to be taken. A further 448


safeguard (that also recognizes the duty to rescue and inherent right of self-defense) might specify that no additional measures may be taken without the express authorization of the flag State, except when necessary to relieve imminent danger. CONCLUSION The SUA has long required an effective enforcement mechanism, and the IMO is very close to providing one. A successful diplomatic conference in October 2005 may provide the international community with more robust and timely offense definitions better able to meet the challenges of today and the future. In the words of Cal Lederer, Deputy Judge Advocate General of the United States Coast Guard: We live in dangerous times. Nations individually and collectively have expressed in innumerable ways their understanding of the great danger posed by transnational terrorism to international peace and commerce, and to the safety and security of private citizens – and we cannot forget that many nations have suffered at the hands of foreign terrorists in the recent past. The seafaring nations of the world have a particular obligation to make the oceans safe for navigation and thereby for commerce and personal safety of crews and passengers. SUA was a remarkable and necessary first step. The resolution of the Assembly in 2001 and the discourse concerning amendments to SUA since then reflect the seriousness with which IMO’s member states have taken this issue. The extended and serious consideration of the Amendments within the Legal Committee are a necessary next step in making SUA a more effective tool in our common cause by not only ensuring national legislation that is uniform and consistent, but also by providing tools to prevent and suppress illegal acts as they are committed. 87

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Implementing an amended SUA with a well-considered and effective shipboarding regime will bring diplomatic, legal, operational, and logistic challenges. The international community is poised to address these challenges in the context of terrorism and violence at sea in the same effective and collective manner that it has confronted the scourge of drugs and other transnational crime: providing a framework anchored in the rule of law so that all who wish to may ply the global maritime commons safely and securely in pursuit of legitimate endeavors.

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APPENDIX I. FRAMEWORK FOR MARITIME TERRORIST/WMD INTERDICTION

Pre-Operational Assessment What facts compel action? Imminent threat is trigger for unilateral STATE action. Imminent threat unnecessary for law enforcement action or consensual boarding.

What’s the risk? Take military action where risk is greatest. Consider law enforcement and/or diplomacy otherwise.

Credible, reliable, substantial, current information that vessel, cargo, or persons pose threat to the STATE or any of STATE citizens — x Members of terrorist group designated an imminent threat? x Persons or instrumentalities posing imminent threat, including WMD, delivery systems, and related materials? x Yield information related to an identified imminent or other threat elsewhere? x Criminal activity occurring on vessel in geographic location where STATE can and should legally exercise power? x Terrorist action immediate, not immediate, or cannot be predicted? x Vessel in range, standing off, or unknown? x Consequence of terrorist action catastrophic, moderate, negligible, or unknown? x Opposition to boarding militarily significant, moderate, unlikely, or unknown?

Course of Action Selected What’s the desired outcome? Law enforcement action is consistent with national policy to bring terrorists to justice; reinforced by need to uncover other threats.

Do STATE’s criminal laws apply? When able to investigate, seize, prosecute, consider tailoring operational choice.

Who acts? Seek flag state consent and/or assistance thru bilateral agreements, rely on PSI understandings, or make ad hoc request. Unilateral action when appropriate and necessary.

To respond to the threat and x Expose, document, collect intelligence? x Control delivery or obtain assurances? x Divert? x Seize or detain? x Prosecute? x Destroy?

x STATE’s citizen the subject of any harm or attempted harm? x In STATE s territory, territorial sea, contiguous zone, or on vessel flagged in STATE? x Statute extraterritorial and applicable? x Nationality of vessel, cargo, and/or persons? x If STATE can exercise power, STATE acts? x If STATE can exercise power, does another State have concurrent authority or jurisdiction, able to respond or assist, and willing to act (consider State best able to seize and prosecute)? x If STATE cannot exercise power absent exercise of national self defense, will another State with legal power and political act or ask STATE to act? x If STATE cannot legally exercise power, can another State with legal power and political will act? x STATE acts unilaterally exercising national self-defense.

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Notes 1

The author has participated in the development of amendments to the SUA Convention at the IMO since the outset of the initiative. The author expresses his appreciation to RADM John Crowley USCG, Mr. Cal Lederer, Captain J. Ashley Roach JAGC USN (ret.), Mr. Wayne Raabe, Captain William Baumgartner USCG, and LCDR Chris Murray USCG: a “dream team” if ever there was one. The author is also grateful to Ms. Linda Jacobson of the U.S. Department of State, and Mr. Stephen Weglian of the U.S. Department of Justice for their comments and suggestions in the development of this Article. 2 E.g., Thomas L. Friedman, Port Of Israel Described As Target Of Terrorists Who Seized Vessel, N.Y. TIMES, October 11, 1985, at A1; Judith Miller, Hijackers Yield Ship In Egypt; Passenger Slain, 400 Are Safe; U.S. Assails Deal With Captors, N.Y. TIMES, October 10, 1985, at A1; John Tagliabue, Ship Carrying 400 Seized; Hijackers Demand Release Of 50 Palestinians In Israel, N.Y. TIMES, October 8, 1985 at A1. 3 According to Israeli sources, at least one of the four hijackers had traveled on the Achille Lauro on an earlier cruise to study the ship and the layout in Ashdod, suggesting advance planning, Friedman, supra note 2, akin to that conducted by Al Qaeda before the September 11, 2001 attacks. 4 Friedman, supra note 2. 5 Andrew J. Calica, Note, Self-Help Is The Best Kind: The Efficient Breach Justification For Forcible Abduction Of Terrorists, 37 CORNELL INT'L L.J. 389, 419-21 (2004). The remainder of this paragraph is drawn from Mr. Calica’s Note and sources cited therein. 6 Bernard Gwertzman, U.S. Intercepts Jet Carrying Hijackers; Fighters Divert it to NATO Base in Italy; Gunmen Face Trial in Slaying of Hostage, N.Y. TIMES, October 11, 1985, at A10. 7 Raymond Bonner, Once Wanted, Mastermind Of Ship Attack Is Unwanted, N.Y. TIMES, November 3, 2003, at A6; Eric Lichtblau, A Nation At War: Captured Palestinian; U.S. Considers Indicting Terrorist Arrested in Iraq On Achille Lauro Murder, N.Y. TIMES, April 17, 2003, at B7. 8 For a discussion on the negotiations authored by a member of the U.S. delegation to meetings at which various drafts of the 1988 SUA were considered, see Malvina Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, 82 AM. J. INT'L L. 269 (1988). Much of this paragraph is drawn from Ms. Halberstam’s Article. 9 March 10, 1988, 1678 U.N.T.S. 221; see also (hereinafter, SUA). 10 Id., art. 4. The Convention does not apply to warships, ships owned or operated by a state when being used as a naval auxiliary or for customs or police purposes or ships that have been withdrawn from navigation or laid up. Id., art. 2. 11 Of the dozen international terrorism conventions, only one deals directly with acts of terrorism at sea (SUA); the International Convention for the Suppression of Terrorist Bombings can also reach covered acts aboard ships to the extent such ships are a government facility and part of the public transportation system. The 12 international terrorism conventions are: Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Tokyo, September 14, 1963, 704 UNTS 219; Convention for the 452

Preventing and Defeating Terrorism at Sea Suppression of Unlawful Seizure of Aircraft (Hijacking), The Hague, December 16, 1970, 860 UNTS 105; Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Sabotage), Montreal, September 23, 1971, 974 UNTS 178, and its Protocol on the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, Montreal, February 24, 1988, 1589 UNTS 474; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, New York, December 14, 1973, 1035 UNTS 167; International Convention against the Taking of Hostages, New York, December 17, 1979, 1316 UNTS 206; Convention on the Physical Protection of Nuclear Material, Vienna, March 3, 1980; International Convention on the Marking of Plastic Explosives for the Purpose of Detection, Montreal, March 1, 1991; International Convention for the Suppression of Terrorist Bombings, New York, December 15, 1997; International Convention for the Suppression of the Financing of Terrorism, adopted by the UN General Assembly, December 9, 1999. The regional terrorism conventions also do not address the maritime aspects of these threats. All of these treaties may be accessed through the links at . 12 SUA, supra note 9, art. 10. This obliges each State Party to the Convention in which an alleged offender is found either to extradite the offender to one of the states that has jurisdiction under the Convention or to submit the case to its authorities for prosecution. 13 SUA, supra note 9, art. 3. 14 Id., art. 5. Punishment shall “take into account the grave nature of those offences.” Id. 15 Id., art. 3. 16 Id., art. 6 (1). States Parties have the option of establishing their jurisdiction over an Article 3 offense when it is committed by a stateless person whose habitual residence is in that state; or during its commission a national of that state is seized, threatened, injured or killed; or it is committed in an attempt to compel that state to do or abstain from doing any act. Id., art. 6(2). 17 Id., art. 7. 18 Id., art. 13. 19 Id., arts. 12-14. 20 Id., art. 8. 21 Id., art. 9. 22 Apr. 29, 1958, 13 UST 2312, TIAS No. 5200, 450 UNTS 82 [hereinafter, 1958 Geneva Convention]. 23 UN Doc. A/CONF.62/122, opened for signature December 10, 1982 [hereinafter, UNCLOS]. The United States is a party to the 1958 Geneva Convention, but not to UNCLOS. President Reagan's Ocean Policy Statement of March 10, 1983 recognized that UNCLOS “also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law and practice and fairly balance the interests of all states,” and declared that “the United States is prepared to accept and act in accordance with the balance of interests relating to traditional uses of the oceans— such as navigation.” 1983 PUB. PAPERS: RONALD REAGAN 378-79. 24 1958 Geneva Convention, supra note 22, art. 22; UNCLOS, supra note 23, art. 110 (1). The “reasonable grounds to suspect” requirement does not permit states to employ this

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Brad J. Kieserman provision to conduct random inspections or engage in comprehensive maritime security screening of vessels prior to entry into territorial seas. 25 See infra note 86 for a discussion of a recent maritime hijacking case that was reported initially as a piracy, involved an Article 110 right of visit boarding, which produced evidence that likely would have given rise to a SUA offense, but not an act of piracy. 26 See Halberstam, supra note 8, at 272-73 (citing J. Brierly, The Law Of Nations 154 (1928), quoted in Harvard Research in International Law, Comment to the Draft Convention on Piracy, 26 AJIL Supp. 749, 750 (1932)). Ms. Halberstam quotes Professor Brierly: “There is no authoritative definition of international piracy, but it is of the essence of a piratical act to be an act of violence, committed at sea or at any rate closely connected with the sea, by persons not acting under proper authority.” Ms. Halberstam’s Article provides an in-depth history and analysis of the development of the law of piracy. Id. at 272-91. 27 1958 Geneva Convention, supra note 22, art. 15; UNCLOS, supra note 23, art. 101. 28 Halberstam, supra note 8, at 290. Halberstam notes that an “interpretation of those provisions as encompassing such acts requires resort to the travaux preparatoires. Moreover, the travaux preparatoires are not unequivocal.” Id. (internal citations omitted). Thus, even if one finds sufficient historical and/or teleological justification for concluding that the piracy provisions of the 1958 Geneva Convention and UNCLOS are applicable to maritime terrorism, it would be preferable to adopt a convention dealing with maritime terrorism specifically, as has been done with airplane hijacking and sabotage, hostage taking and attacks on diplomats, the other terrorist acts that have begun to plague the international community. 29 The President of the United States, and the Legal Adviser of the U.S. Department of State, characterized the seizure of the Achille Lauro as piracy. 24 I.L.M. 1515 (1985) (President Reagan: “I'm not a lawyer, and I don't intend to get into too many legal areas where I might be caught short—but they could be tried in both countries, and in this country they would be tried for murder, where in Italy they will be—probably be tried on the basis of piracy because of the taking over of the Italian vessel”); Robert Pear, State Department; Legal Chief, Once A Judge, Wields Wide Influence, N.Y. TIMES December 30, 1985, at A12 (Abraham B. Sofaer’s “principal deputy, Mary V. Mochary, recalled that after the hijacking of the Achille Lauro, State Department lawyers analyzed the crime from many angles without mentioning the law of piracy. But, she said, Mr. Sofaer immediately said, ‘It's piracy - look up the laws of piracy.’ The Administration cited those laws as part of its rationale for demanding that Italy either try or extradite the suspects.”). Likewise, the U.S. Justice Department obtained arrest warrants charging the hijackers with hostage taking, conspiracy, and “piracy on the high seas.” 24 I.L.M. 155357 (1985) (“From on or about October 7, 1985, to on or about October 10, 1985, in the Mediterranean Sea, on the high seas, in various locations outside of the United States, the defendants, Hallah Abdalla Al-Asan, Maged Yussef Al-Malaki, Hammad Ali Abdulla, Abdel Atif Ibrahim Fatayer, And Abu El-Abas did knowingly, willfully, and unlawfully commit and cause the commission of the crime of piracy as defined by the law of nations, that is, did knowingly, willfully and without legal authority from any sovereign power and for private ends seize control of the cruise ship Achille Lauro by force, violence and threat of force and violence.”). See also Halberstam, supra note 8, at n. 8 (comparing 454

Preventing and Defeating Terrorism at Sea scholarly views regarding whether the acts aboard the Achille Lauro qualifies as piracy under international law). 30 One commentator has suggested that a close reading of UNCLOS demonstrates there is no “two ship requirement.” Thus: Article 101(a) (ii) states that the crime be against “a ship, aircraft, persons or property” (there is no mention of “another”) if the location is “outside the jurisdiction of any State.” The high seas is unarguably such a place. Therefore, the requirement of the presence of two vessels for a piracy to occur is unnecessary. Samuel Menefee, Anti-Piracy Law in the Year of the Ocean: Problems and Opportunity, 5 ILSA J. INT'L & COMP. L. 309, 312-13 (1999). 31 SUA, supra note 9, preamble (“Affirming further that matters not regulated by this Convention continue to be governed by the rules and principles of general international law”). 32 Andrea Niem, Voice of America, Hong Kong, SE Asia's Maritime Security Becomes Latest Focus in War on Terror, April 29, 2004, available at: . 33 Id. (quoting Michael Richardson, a researcher at Singapore's Institute of Southeast Asian Studies and author of a report on maritime security, “It would be relatively easy for terrorists to use the existing seafarer recruitment and manning scheme, which is riddled with abuse and corruption, to put sleeper crews on ships and commandeer them at the right time and take control of the ship.”) 34 E.g., Stephen Flynn, America the Vulnerable 17-35, 82-110 (2004); Forrest Booth & Larry Altenbrun, Maritime And Port Security, Piracy, And Stowaways: Renewed Concerns Over Old Problems, 15 U.S.F. MAR. L.J. 1 (2003); John F. Frittelli, CONG. RES. SERVICE, Port and Maritime Security: Background and Issues for Congress, 6-9 (Dec.5, 2003); Justin S.C. Mellor, Missing The Boat: The Legal And Practical Problems Of The Prevention Of Maritime Terrorism, 18 AM. U. INT'L L. REV. 341 (2002). 35 See e.g., Piracy and Terrorism, N.Y. TIMES, April 10, 2004, at A14. 36 For an excellent overview of the threat of proliferation and the Proliferation Security Initiative, as well as a thorough collection of primary and secondary sources, see Captain J. Ashley Roach, Proliferation Security Initiative (PSI): Countering Proliferation By Sea, [See Captain J. Ashley Roach’s paper, in this volume]. 37 Supra note 34. 38 For example, in October 2002, a bomb-laden boat attacked the French oil tanker Limberg off the coast of Yemen, killing one crewman, damaging the ship, and causing an oil spill. Craig S. Smith, Threats And Responses: Antiterror Arrest; Kuwait Says a Senior Qaeda Member Has Confessed to Planning 2 Attacks in Yemen, N.Y. TIMES, November 17, 2002, at sec. 1. In October 2001, four suicide bombers working for the Liberation Tigers of Tamil Eelam loaded a small boat with explosives and rammed the tanker Silk Pride, loaded with diesel fuel and kerosene, setting it afire off Sri Lanka, and killing three crewmembers claimed responsibility for this attack. Other Shores, PACIFIC 455

Brad J. Kieserman MARITIME MAGAZINE, Dec. 2001, at 52. In October 2000, the U.S. Navy destroyer Cole was attacked by a bomb-laden boat during a refueling stop in the harbor of Aden, Yemen, killing 17 sailors, injuring 39 others, and causing damage to the ship that cost about $250 million to repair. John F. Burns, The Warship Explosion: The Overview; Toll Rises to 17 in Ship Blast, as U.S. Hunts Suspects, N.Y. TIMES, October 14, 2002, at A1; CRS Report RS20721, Terrorist Attack on U.S.S. Cole: Background and Issues for Congress. 39 Supra note 11. 40 States are already prohibited from transferring many of these items under the Biological and Chemical Weapons Conventions and the Nuclear Non-Proliferation Treaty. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on Their Destruction, Apr. 10, 1972, 26 U.S.T. 583, 1015 U.N.T.S. 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 21, 103d Cong., 1st Sess., 1975 U.N.T.S. 469; Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, T.I.A.S. 68, 729 U.N.T.S. 161. 41 See 1958 Geneva Convention, supra note 22, art. 6; UNCLOS, supra note 23, art. 92(1); infra notes 42-44 and accompanying text. 42 S.S. Lotus Case (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 9, at 25 (Sept. 7). Further evidence of the principle may be found in Article 92(1) of UNCLOS, supra note 23: “Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas.” Article 92 repeats verbatim the text of Article 6 of the 1958 Geneva Convention, supra note 22. 43 E.g., UNCLOS, supra note 23, Art. 110. 44 At least one commentator has observed, however, that, “the requirement of flag state consent, and the reluctance of some states to provide consent, create an opportunity for those who would traffic in the world's most dangerous weapons. Traffickers can take advantage of flags of convenience—registering their vessels in states that provide little in the way of regulation and oversight—or use vessels flagged by states that steadfastly refuse to consent to the exercise of high seas jurisdiction by others.” Michael Byers, Policing The High Seas: The Proliferation Security Initiative, 98 AM. J. INT'L L. 526, 527 (2004). 45 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, December 20, 1988, S. Treaty Doc. No. 101-4 (1990), 28 I.L.M. 497, 498-99 (entered into force November 11, 1990) (also available at ) [hereinafter, 1988 Vienna Drug Convention]. 46 Article 17 of the 1988 Vienna Drug Convention and Article 8 of the Migrant Smuggling Protocol to the TOC refer to claims of “registry” versus claims of “nationality.” The practice of some states following the entry into force of the 1988 Convention was to place considerable emphasis on the completion of a registry check before granting authorization to board and search. However, since many designated competent authorities lack round the clock access to their national registers of shipping, this registry check requirement is often a significant cause of delay, particularly when 456

Preventing and Defeating Terrorism at Sea registries are located outside the country at issue. As a result, a practice has emerged of providing authorization on the operational assumption of a positive outcome to the registry check procedures. This is known by some as the concept of provisional flagState authorization or presumptive flag-State authority. This practice is based on both the customary and conventional international law of the sea, namely, the rule by which a vessel that makes a false claim to registry is to be regarded as without nationality. Under the concept of presumptive flag State authority, completion of a registry check by the claimed flag State is not a prerequisite for the flag State granting permission to take appropriate actions based on a vessel's claim of nationality (flag, oral or otherwise). Because the status of a vessel claiming the protection of a state can only be either that of a vessel of the claimed flag State or a vessel without nationality, the presumed flag State has the right, if not the responsibility, to determine if a vessel claiming the protection of its flag is entitled to such protection. Although the granting of permission to board and search on the basis of provisional or presumptive flag State authority provides a useful means for expediting the authorization process, it does not negate the need for actual registry check, nor does it prevent the boarding State from making the determination, upon discovery of applicable conditions, that the vessel is, under international law, a vessel without nationality. 47 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime, GA Res. 55/25, annex I, 55 UN GAOR Supp. (No. 49) at 44, UN Doc. A/45/49 (Vol. I) (2001) (entered into force September 29, 2003). 48 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of December 10, 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN GAOR, 40th Sess., UN Doc. A/Conf. 164/37 (1995), reprinted in 34 I.L.M. 1542. 49 Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Region, opened for signature April 10, 2003. 50 Council of Europe, Strasbourg Agreement on Illicit Traffic by Sea, arts. 5-6 (1995). 51 See, e.g., Agreement Between the Government of the United States of America and the Government of the Republic of Liberia Concerning Cooperation to Suppress the Proliferation of Weapons of Mass Destruction, Their Delivery Systems, and Related Materials by Sea (signed February 11, 2004) available at ; Amendment to the Supplementary Arrangement Between the Government of the United States of America and the Government of the Republic of Panama to the Arrangement Between the Government of the United States of America and the Government of Panama for Support and Assistance from the United States Coast Guard for the National Maritime Service of the Ministry of Government and Justice (signed May 5, 2004) (). 52 Since the entry into force of SUA, IMO issued a number of instruments for use in preventing and suppressing piracy and armed robbery at sea, including: – Recommendations to Governments for preventing and suppressing piracy and armed robbery against ships, MSC.Circ.622/Rev.16 June 1999. Archived at . 457

Brad J. Kieserman – Measures to prevent the registration of “phantom” ships, IMO resolution A.22/Res.923, adopted on November 29, 2001. – Implementation of resolution A.600 (15)-IMO ship identification number scheme, MSC Circular letter No. 1886, Rev. 2, June 27, 2002. – Guidance to shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy and armed robbery against ships. MSC/Circ.623/Rev.3, May 29, 2002. Archived at . – Directives for Maritime Rescue Co-ordination Centres (MRCCs), MSC/Circ.967, June 6, 2000. Archived at . – Interim Procedures for MRCCs on Receipt of Distress Alerts, MSC/Circ.959, June20, 2000. Archived at . – Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery against Ships, IMO Assembly resolution A.22/Res.922, adopted November 29, 2001. Annexed to UN General Assembly document A/57/72, May 1, 2002, archived at . 53 See, e.g., IMO, Guidelines for combating unsafe practices associated with the trafficking or transport of migrants by sea, MSC/Circ.896/Rev.1 (June 21, 2001); IMO, Passenger Ferry Security, MSC/Circ. 754 (July 5, 1996). 54 Article 13 of SUA provides: 1. States Parties shall co-operate in the prevention of the offences set forth in article 3 particularly by: (a) taking all practicable measures to prevent preparations in their respective territories for the commission of those offences within or outside their territories; (b) exchanging information in accordance with their national law, and co-ordinating administrative and other measures taken as appropriate to prevent the commission of offences set forth in article 3. 2. When, due to the commission of an offence set forth in articles 3 the passage of a ship has been delayed or interrupted, any State Party in whose territory the ship or passengers or crew are present shall be bound to exercise all possible efforts to avoid a ship, its passengers, crew or cargo being unduly detained or delayed. 55 Article 14 of SUA provides: Any State Party having reason to believe that an offence set forth in article 3 will be committed shall, in accordance with its national law, furnish as promptly as possible any relevant information in its possession to those States which it

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Preventing and Defeating Terrorism at Sea believes would be the States having established jurisdiction in accordance with article 6. 56 See e.g., SUA, supra note 9, art. 9; supra note 21 and accompanying text. 57 In March 2002, the U.S. Coast Guard intercepted the 192-foot Seychelles-flagged fishing vessel Full Means 2,180 nm SSE of Hilo, Hawaii. The U.S. Coast Guard found the body of the People’s Republic of China (PRC) first mate in the ship’s freezer and the Taiwan master was missing. One of the thirty-two PRC crew apparently murdered the master and first mate over a personal dispute. The rest of the crew was able to overpower the alleged murderer, put him in a stateroom and welded the door shut. The U.S. Coast Guard eventually turned the vessel and surviving crew over to the Taiwan authorities after the Federal Bureau of Investigation (FBI) completed a homicide investigation. The United States brought a prosecution in Federal District Court in Hawaii under 18 U.S.C. § 2280, which is the U.S. implementing legislation for SUA. On January 30, 2004, the defendant Mr. Shi Lei pled guilty to murdering both the master and first mate. United States. v. Shi Lei et al., Press Release U.S. Attorney District of Hawaii March 21, 2002, available at http://www.usdoj.gov/usao/hi/pr/2002/0203lei.html; id., April 4, 2002, available at http://www.usdoj.gov/usao/hi/pr/2002/0204shi.html (last visited Jan. 20, 2002). See also B.J. Reyes, U.S. to Prosecute Cook Accused of Killing Two Crewmates on the High Seas, ASSOC. PRESS, April 11, 2002. Although Shi Lei is the only U.S. SUA prosecution, between June 2000 and December 2002, the U. S. Coast Guard encountered 19 Taiwan long-line fishing vessels involved in hijackings or planned illegal migrant smuggling to the United States. Most of these cases involved acts or threatened acts of violence in maritime navigation. Examples include the presence of an improvised explosive device on one vessel, at least four migrants who drowned attempting to swim ashore, and four masters and engineers murdered by crewmembers. The genesis of the violence varied from labor disputes turned violent to attempted migrant smuggling events to mutiny and hijacking. While the facts of the cases varied, the typical case involved an alleged hijacking of Taiwan vessels by PRC nationals serving as crew. The hijacking was usually followed by the crew diverting the vessel to U.S. waters (Guam, Hawaii, or California), and then jumping ship and swimming to shore. Several cases involved the deliberate grounding of Taiwan vessels in U.S. waters, which presents significant pollution and marine safety risks. See e.g., Hijacked Taiwanese Fishing Vessel Escorted Home, AGENCE FRANCE PRESSE, November 2, 2002; Greg Hardesty & John Gittelsohn, Captain Of Trawler Used To Smuggle Immigrants Says He Was Kidnapped, THE ORANGE COUNTY REGISTER, May 29, 2002;, Nine Chinese Fishermen Arrested Over Ocean Mutiny, AGENCE FRANCE PRESSE, July 18, 2001. Canada has experienced similar cases involving alleged hijacking and migrant smuggling. See e.g., Camille Bains, Nine Chinese Men Detained After Arriving On B.C. Shores Await Hearings, THE CANADIAN PRESS, June 12, 2001. 58 , last checked March 27, 2005. 59 Calvin M. Lederer, Combating Maritime Terrorism: Developments in the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, COMITE MARITIME INTERNATIONAL 2004 ANNUAIRE, at 45-46.

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As early as 1934, the League of Nations, responding to the assassination of King Alexander of Yugoslavia by a revolutionary with links to Croatian terrorists in Hungary, passed a resolution stating that it was “the duty of every state neither to encourage nor tolerate on its own territory any terrorist activity with a political purpose” and that “every State must do all in its power to prevent and repress acts of this nature and must for this purpose lend its assistance to governments which request it.” See 12 LEAGUE OF NATIONS O.J. 1759 (1934). 61 Measures to Eliminate International Terrorism, G.A. Res. 60, U.N. GAOR, 49th Sess., sec. I (5) (a), U.N. Doc. A/Res/49/60 (1994); see also Measures to Eliminate International Terrorism, G.A. Res. 210, U.N. GAOR, 51st Sess., § I(3), U.N. Doc. A/Res/51/210 (1997). 62 SCOR Res. 1373, U.N. SCOR, 56th Sess., 4385th mtg., U.N. Doc. S/Res/1373 (2001). 63 SCOR Res. 1456, U.N. SCOR, 58th Sess., 4688th mtg., U.N. Doc. S/Res/1456 (2003). 64 SCOR Res. 1540, U.N. SCOR, 59th Sess., 4956th mtg., U.N. Doc. S/Res.1540 (2004). 65 Id. 66 IMO Res. A.924 (22), Review of measure and Procedures to Prevent Acts of Terrorism Which Threaten the Security of Passengers and Crews and the Safety of Ships. 67 Algeria, Argentina, Australia, the Bahamas, Barbados, Brazil, Belgium, Canada, Chile, Colombia, Croatia, Cyprus, Denmark, Ecuador, Egypt, Estonia, Finland, France, Germany, Ghana, Greece, Hong Kong (China), Iceland, India, Indonesia, Ireland, Italy, Jamaica, Japan, Kuwait, Latvia, Lebanon, Liberia, Lithuania, Malaysia, Malta, Marshall Islands, Mexico, the Netherlands, Nigeria, New Zealand, Norway, the People’s Republic of China, Panama, Peru, the Philippines, Poland, Portugal, the Republic of Korea, the Russian Federation, Saudi Arabia, Singapore, South Africa, Spain, Sweden, Switzerland, the Syrian Arab Republic, Trinidad & Tobago, Tunisia, Turkey, Ukraine, the United Kingdom, Uruguay, Vanuatu, Venezuela, the European Chemical Industry Council, the European Commission, the International Chamber of Shipping, the International Council of Cruise Lines, the International Maritime Committee, the World Conservation Union, and the World LPG Association. 68 For the seminal history of this effort to date (from which the paragraph accompanying this note is drawn nearly verbatim), see Calvin M. Lederer, supra note 59, at 45-46. 69 Id. At this writing, debate continues within the IMO Legal Committee regarding the need for the amended SUA to contain a definition of “transport.” The purpose of the definition is to identify the persons who have the capability to take action to transport items or people and who actually do take action. Those persons are persons who 1) initiate or arrange the movement of a person or item, 2) “exercise” effective control over the movement of a person or item, or 3) “exercise” decision making authority over the movement of a person or item. If the proposed SUA nonproliferation transport offenses ultimately include an element of knowledge or intent, then persons who may have “transported” an item or people of concern without the requisite knowledge or intent have not committed a SUA offense. For example, a ship's captain would probably meet the definition of “transport” for everything on his vessel, but he will have not committed a criminal act unless he has the additional requisite knowledge or intent with respect to the item or person transported (and provided that the item is transported on a SUA vessel through international waters). 460

Preventing and Defeating Terrorism at Sea Under this framework, it is likely that in many instances the persons whose conduct will be criminalized will not be those on the ship but those who are causing or directing the transport. The culpable persons under this framework could include, for example, an entity or person that is shipping the item, an entity or person ordering the item or an entity or person selling the item. 70 See supra notes 32-40 and accompanying text. 71 For a thorough analysis of the vulnerabilities of global containerized maritime commerce, including a survey of its origins, see Mellor, supra note 34, at 347-61. 72 See discussion supra notes 41-44 and accompanying text. 73 The “catch, expose, and release” approach was taken in the case of the M/V Sosan, when Spanish authorities, at U.S. request, stopped a Cambodian-registered, North Korean-owned ship bearing missiles bound for Yemen, only to set it free after recognizing the lack of legal basis for any seizure action because the possession, shipment, and transfer of ballistic missiles were not illegal in any of the available jurisdictions. See J. Ashley Roach, Initiative To Enhance Maritime Security At Sea, 28 MARINE POLICY 41, 53-54 (2004); Carla Anne Robbins, The UN: Searching for Relevance: Operation Bypass: Why U.S. Gave U.N. No Role in Plan to Halt Arms Ships, WALL ST. J., October 21, 2003, at A1. 74 Anecdotally, most states do not appear to have robust national laws addressing WMD and related transactions that will apply in a maritime extraterritorial setting. Likewise, while most states adhere to treaties banning WMD, many do not. Accordingly, draft articles 3 bis, 3 ter, and 3 quater of the proposed SUA Protocol were intended to create a consistent global legal framework for maritime terrorism and proliferation, at least among States Parties. 75 Article 51 of the UN Charter recognizes and affirms, but does not limit, the “inherent” right of national self-defense under international law: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Commentators disagree regarding the conditions precedent necessary for the exercise of the “inherent right” of national self-defense. Some argue that Article 51 has limited the right to permit only a response to an actual “armed attack” or that an armed attack must occur across national borders. See, e.g., IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES 275-80 (1963); LOUIS HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 141 (2d ed. 1979). However, other commentators note “[t]here is not the slightest evidence that the framers of the United Nations Charter, by inserting one provision which expressly reserves a right of self-defense, had the intent of imposing by this provision new limitations upon the traditional right of states,” which includes anticipatory self-defense. Myres S. McDougal, The Soviet-Cuban Quarantine and SelfDefense, 57 AM. J. INT’L L. 597, 599 (1963). The customary international law right to use force in anticipatory self-defense is a well-established aspect of the “inherent right”

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Brad J. Kieserman of self-defense. The Office of Legal Counsel of the Department of Justice has previously opined: The concept of self-defense in international law of course justifies more than activity designed merely to resist an armed attack which is already in progress. Under international law every state has, in the words of Elihu Root, “the right ... to protect itself by preventing a condition of affairs in which it will be too late to protect itself.” Memorandum for the Attorney General, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, Re: Legality under International Law of Remedial Action Against Use of Cuba as a Missile Base by the Soviet Union (August 30, 1962), at 2, reprinted in 6 GREENBAG 2d 195, 196 (2003). OLC reasoned, “[a]lthough it is clear that the principle of self-defense may justify preventive action in foreign territory and on the high seas under some circumstances, it is also clear that this principle is subject to certain limitations.” Id. (citing the Caroline incident of 1837) (emphasis added). The “limitations” on or requirements of anticipatory self-defense are: 1) the use of force must be necessary because the threat is imminent and, thus, pursuing peaceful alternatives is not an option; and 2) the response must be proportionate to the threat. See McDougal, supra, 597-98; see also Byard Q. Clemmons & Gary D. Brown, Rethinking International Self-Defense: The United Nations’ Emerging Role, 45 NAVAL L. REV. 217 (1998) (recounting and analyzing the historical evolution of the right of national self-defense). Although the dictionary definition of “imminent” has a temporal component: “likely to happen without delay,” WEBSTERS’ NEW WORLD DICTIONARY 675 (3rd College ed. 1988), international law does not provide precise conditions under which a State may deem a threat to be sufficiently “imminent” to justify the necessary use of force in selfdefense. Indeed, the International Court of Justice has recognized: “Imminence” is synonymous with “immediacy” or “proximity” and goes far beyond the concept of “possibility.” As the International Law Commission emphasized in its commentary, the “extremely grave and imminent” peril must "have been a threat to the interest at the actual time” (Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 33). That does not exclude, in the view of the Court, that a “peril” appearing in the long term might be held to be “imminent” as soon as it is established, at the relevant point in time, that the realization of that peril, however far off it might be, is not thereby any less certain and inevitable. Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia), para. 54, 1997 ICJ REP. 7 (September 25, 1997), available at: . In addition to the probability of the threat, the threatened magnitude of harm must be significant. The advent of WMD, which threaten devastating and indiscriminate long462

Preventing and Defeating Terrorism at Sea term damage to large segments of the civilian population and environment, coupled with the possibility for relatively unsophisticated means of delivery (e.g., dirty bomb), dramatically increase the degree of potential harm, which concurrently diminish the importance of the temporal factor. In the case of missiles, the development of advanced missile technology and associated stealth capability increases the imminence of threat due to the relative lack of time to prevent a launch. 76 See, e.g., Presidential Decision Directive-39, U.S. Policy on Counterterrorism (June 21, 1995) (S) provides (emphasis added): (U) It is the policy of the United States to deter, defeat and respond vigorously to all terrorist attacks on our territory and against our citizens, or facilities, whether they occur domestically, in international waters or airspace or on foreign territory. The United States regards all such terrorism as a potential threat to national security as well as a criminal act and will apply all appropriate means to combat it. In doing so, the U.S. shall pursue vigorously efforts to deter and preempt, apprehend and prosecute, or assist other governments to prosecute, individuals who perpetrate or plan to perpetrate such attacks. We shall work closely with friendly governments in carrying out our counterterrorism policy and will support Allied and friendly governments in combating terrorist threats against them. 77

Ronald J. Sievert, War on Terrorism or Law Enforcement Operation, 78 NOTRE DAME L. REV. 307 (January 2003) (comparing the military and law enforcement approaches to combating terrorism). 78 Id. at 313-14. 79 Id. at 310. 80 See id. at 316. 81 UNCLOS, supra note 23, arts. 110-111; 1988 Vienna Drug Convention, supra note 45, art. 17(10). 82 Conference Resolution 3, adopted by SOLAS on 12 December 2002 (SOLAS/CONF.5/34), invited the IMO, bearing in mind the provisions of chapter XI-2 of the Convention and the ISPS Code to, among other items, “(i) consider the need and, if necessary, develop any other guidance or guidelines to ensure the global, uniform, and consistent implementation of the provisions of chapter XI-2 of the Convention or part A of the ISPS Code;...” In this regard, ISPS recognizes that officers “duly authorized by a Contracting Government” may not be denied access to a vessel covered by SOLAS. SOLAS XI-2, 8.1. Accordingly, the SUA shipboarding regime should establish a requirement for Contracting Governments to identify both security force vessels and ships, which are “duly authorized” to conduct SUA boardings. If constructed in this fashion, then the framework of the ISPS Code and the draft SUA Protocol would be legally compatible. There is currently no evidence to suggest that the practical application of a SUA boarding regime as contemplated in this article would conflict with the ISPS Code. To the extent that the practical application of the at-sea boarding provisions require implementation 463

Brad J. Kieserman guidance, such guidance is likely to be provided by the Contracting Governments through a “Practical Guide for Competent Authorities.” It is also likely to address many issues underlying the operational relationships between the Contracting Government that are not “legal matters.” In the early 2000s, over 10 years following the conclusion of the underlying treaty, the UNDCP sponsored development of a “Practical Guide” in the context of implementing the shipboarding provisions of the 1988 Vienna Convention on illicit drug trafficking. The author notes that the UN Drug Control Programme undertook to create a “Practical Guide for Competent Authorities” designated under Article 17 of the 1988 Vienna Drug Convention, supra notes 45-46 and accompanying text, after the international community had sufficient experience with counter-drug operations such that “best practices” and potential conflicts with other instruments has the opportunity to arise. 83 Weak Links: Assessing the Vulnerability of U.S. Ports and Whether the Government is Adequately Structured to Safeguard Them: Hearing Before the Senate Comm. on Governmental Affairs, 106th Cong. (2001) (statements of (statements of Stephen E. Flynn and Robert Quartel) available at (last visited March 6, 2005). The Committee held the aforementioned hearings to investigate the vulnerabilities of U.S. seaports as matter of national security. 84 As evinced by the attacks of September 11, 2001 and on the Cole, Limburg, and Achille Lauro, discussed supra note 38. 85 See supra note 20 and accompanying text. 86 A case arising shortly after the Conference at which the author presented a draft of the Article illustrates the issues. See . On March 16, 2005, Commander, U.S. Naval Forces Central Command received telephone reports from the International Maritime Bureau’s Piracy Reporting Center in Kuala Lumpur, Malaysia, concerning a reported act of “piracy” on the Thai-flagged fishing vessel Sirichai Nava 12 by three Somali crew members. The Center received a fax indicating that the “pirates” demanded $800,000 in ransom for the vessel’s crew. A U.S. Coast Guard Cutter working with British ships in the Gulf of Aden intercepted and boarded the Thai vessel on March 17, 2005. The boarding team, suspecting an act of piracy, exercised the right of visit permitted under Article 110 of UNCLOS. The Coast Guardsmen discovered that three Somali nationals, who had been on board for four months as hired security guards had hijacked the vessel by holding the master at gunpoint. The Coast Guardsmen found four automatic weapons in the pilothouse, expended ammunition shells on the deck of the vessel, as well as ammunition on the detained suspects. Although the Coast Guard detained the suspects at sea without incident, it took over a week to resolve the disposition logistics of the case, which arose several thousand miles from the flag State, Thailand. During this period, the Somalis remained at sea aboard the Coast Guard cutter. At the time of the incident, Thailand was not a State Party to the SUA. Had it been, Article 8, along with the rest of the Convention, would have provided a viable framework for resolving the case. 87 Lederer, supra note 59.

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PANEL VIII: UNDERWATER CULTURAL HERITAGE PROTECTION __________________________

Legal Protection for the Underwater Cultural Heritage: The Immediate Challenge and Methods of Response Sarah Dromgoole *

INTRODUCTION In 2001 the United Nations Educational, Scientific and Cultural Organisation (UNESCO) adopted a Convention for the Protection of the Underwater Cultural Heritage (UCH). The Convention is designed to provide a comprehensive legal framework for the protection of UCH and, in particular, shipwrecks located beyond territorial limits. In time, the Convention should come into force and in future decades it may be widely applicable. However, in the interim period shipwrecks remain vulnerable to interference by treasure hunters, some of whom already possess the technology to access the deepest parts of the world’s oceans. The purpose of this paper is to identify and discuss various mechanisms that are currently available to states for taking action to protect UCH located extra-territorially and to encourage states to make use of these mechanisms prior to such time as the UNESCO Convention becomes an effective global regime. BACKGROUND: UNESCO CONVENTION 2001 The UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001 is a remarkable achievement by the international community. Despite the political and legal constraints within which the negotiators had to work, 1 they managed to construct a detailed and quite imaginative legal framework for the protection of UCH. At an early stage the decision was made to focus the remit of the Convention on regulating activities directed at UCH, i.e. the activities of treasure salvors, rather than also trying to deal with activities that incidentally affect UCH, such as fishing, pipeline laying and mineral extraction. 2 From an archaeological point of view, the Convention is very favourable: it adopts *

Reader in Law, University of Leicester.

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an extremely broad definition of UCH, covering “all traces of human existence” that have been underwater for at least 100 years 3 and enshrines internationally accepted archaeological principles and standards. Its regulatory scheme is based on the cardinal archaeological principle that protection in situ should be considered as the first option and that interference with a site should only be authorised where scientifically justified. 4 Standards for archaeological work are incorporated in a set of rules laid out in the Annex to the Convention and are based on a Charter for the Protection and Management of the Underwater Cultural Heritage, adopted by the International Council for Monuments and Sites (ICOMOS) in 1996. A further key principle is that UCH “shall not be commercially exploited.” 5 While the Convention covers UCH in all sea areas, including territorial waters, its primary purpose is to provide mechanisms to control salvage activities beyond traditional territorial limits, in other words to add flesh to the skeletal protective framework provided by Articles 149 and 303 of the UN Convention on the Law of the Sea 1982 (UNCLOS). The scheme set out in the UNESCO Convention for the continental shelf and exclusive economic zone (EEZ), 6 and the Area, is extremely complex and largely dependent on states cooperating together effectively. Nonetheless, the Convention provides the best (and in all likelihood, only 7 ) opportunity for a comprehensive legal framework to govern UCH. Regrettably, UNESCO’s original aim of achieving the unanimous support of its member States for the Convention was not achieved. Nonetheless a significant majority did vote in favour (87 votes in favour, 4 against, 15 abstentions). Since the Convention requires 20 ratifications to come into force, 8 it seems likely that it will do so eventually. However, the ratification process has been painfully slow and to date there have been only three ratifications (Panama, Bulgaria and Croatia). 9 It therefore seems likely to be several years before the Convention comes into force and probably many years before it becomes widely accepted. INTERIM MEASURES The immediate challenge is to plug the legal gap that exists now and will continue to exist over the next 15 or 20 years, until the Convention becomes fully effective. Treasure hunters will undoubtedly take full advantage of the opportunity to continue their activities unimpeded until the Convention’s protective net starts to close in upon them. Clearly, 468

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states should not stand idly by during this period. Indeed, by virtue of Article 303(1) of UNCLOS, they already have a duty to protect objects of an archaeological and historical nature 10 in all sea areas. States must therefore take positive steps now to protect UCH, rather than assuming that the Convention is the sole solution to the problem of unregulated treasure salvage. This paper seeks to identify the means that are currently available to states to protect UCH beyond their territorial limits. In doing this, it will show the following: (i) There are a variety of mechanisms available for states to use that are in conformity with international law; (ii) States around the world are increasingly making use of these mechanisms and, consequently, a growing body of examples of state practice is becoming available for other states to examine and follow; and (iii) By using the mechanisms already available to them, states will be drawing their domestic regimes more closely in line with the Convention’s regime, thereby preparing themselves for future ratification and application of the Convention. Many states will be interested in taking action to protect heritage of national significance, wherever it may be located. However, generally speaking UCH should be viewed from an internationalistic, rather than nationalistic perspective, and seen as an asset that belongs to all humankind. The UNESCO Convention takes an approach based on “cultural internationalism” rather than “cultural nationalism,” 11 specifying as one of its general principles that “States Parties shall preserve underwater cultural heritage for the benefit of humanity.” 12 As O’Keefe has cogently put it, “[t]his means that a State is not to make decisions based on the importance of that heritage to it alone.” 13 While the Convention provides for flag States to be consulted with respect to sunken state vessels and aircraft 14 and for states with a “verifiable link” to a particular part of UCH to have some input into decision-making regarding its protection, 15 the Convention generally treats UCH as international, or common, estate. States have a duty to preserve UCH whether or not they have a particular link to it and it is notable that the Convention avoids the question of ownership altogether. While it is natural that states will be 469

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motivated to protect manifestations of UCH located extra-territorially in which they have a special interest, 16 they should act for the common, global good. Although the focus of this paper is on the exercise of jurisdictional rights to afford UCH with protection, it should be noted that in certain circumstances the assertion of ownership rights by states can be a useful means of providing international benefit. 17 Action with Respect to the Contiguous Zone Article 303(2) of UNCLOS provides a potentially very useful provision for controlling activities in the contiguous zone. 18 This provision affords states powers of jurisdiction over foreign flag vessels and nationals. Unfortunately Article 303(2) is notoriously ambiguous and for this reason states may well hesitate to make use of it. Nonetheless, it is there to be used and states should examine how they can do so. By virtue of Article 303(2) a coastal State is allowed to presume that the removal of objects from its contiguous zone without its approval would amount to an infringement within its territory or territorial sea of customs, fiscal, immigration or sanitation regulations. This legal fiction allows the state to exercise the control necessary to prevent such infringement, as permitted by Article 33 of UNCLOS. There has been much uncertainty, however, about whether Article 303(2) creates only enforcement competence or legislative competence. 19 Nevertheless, some European States have asserted legislative competence in the contiguous zone by extending their statutory provisions regulating the recovery of UCH in their territorial waters out to the 24-mile limit. States such as France and Denmark did so some years ago and now it seems that a number of other states, including Italy and the Netherlands, have done so, or are planning to do so. 20 If a state is hesitant to exercise legislative competence over the contiguous zone, it should at least take the step of making a formal declaration of a contiguous zone and in doing so make explicit reference to the need to prevent the removal of cultural heritage. Significantly, the United States did just this when President Clinton proclaimed a contiguous zone in 1999. 21 While it appears that further action has not yet been taken by the United States in this regard, the very fact that it has proclaimed a contiguous zone and done so with reference to UCH sends a powerful signal that it is prepared to take positive action. That, in itself, 470


can have some deterrent effect, especially in a zone accessible to amateur divers as a result of advances in diving technology. The assertion of jurisdiction over the contiguous zone is in accordance with Article 8 of the UNESCO Convention, which provides that States Parties may regulate and authorise activities directed at UCH in their contiguous zone. Whether or not the UNESCO Convention comes into force or becomes widely accepted, its reaffirmation of the basis for action in Article 303(2) of UNCLOS is likely to encourage even more states to exert jurisdiction over the contiguous zone for the purpose of protecting UCH. Indeed, it seems that the European States taking this action now have been prompted by their deliberations over the UNESCO Convention. Despite the useful basis for action provided by Article 303(2), it should not be forgotten that the contiguous zone is merely a 12-mile wide strip of sea adjacent to the territorial sea. Although this zone was once believed by some to be of particular significance for the protection of UCH, 22 advances in deepwater technology mean that the expanses of water further offshore are now of much greater consequence. Action with Respect to the Continental Shelf and EEZ Beyond the contiguous zone the legal basis for a coastal State to exert jurisdiction over the activities of foreign vessels and nationals becomes more precarious. Nonetheless, in recent years a number of states, including Australia, Ireland and Spain, have extended their jurisdiction with respect to UCH beyond the 24-mile limit. 23 The latest state to do so appears to be Poland, which did so in 2004. 24 Some of these states have done so over the continental shelf; others in a zone coinciding with the 200-mile EEZ. Essentially what most of them have done is to extend the legislation they apply in their territorial waters across the whole of this zone. In this way they directly and quite explicitly regulate activities on UCH sites over a broad area of sea. 25 There is no apparent basis in international law for these expansions of jurisdiction. However, if — over a period of time — enough states took the same action unilaterally, and other states did not formally object to it, it could become part of customary international law. The action taken to date has not been sufficiently consistent or widespread for this to be the case and it seems likely that further unilateral action of this kind would almost certainly lead to formal objections by the United States and other 471

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maritime States. Apart from taking direct unilateral action of this sort, which the author does not advocate, there is another course of action open to states with respect to their continental shelf or EEZ that has greater legitimacy. This is to provide UCH in this zone with protection as an indirect consequence of protecting other aspects of the marine environment. This could be referred to as the “piggyback” approach. The United States probably provides the best example of this form of action with its National Marine Sanctuaries Act. 26 This Act allows it to designate areas of the marine environment as “national marine sanctuaries” out to 200-miles offshore. The first such sanctuary to be declared was the wreck site of the USS Monitor. While the Monitor sanctuary is comparatively small, at just one mile in diameter, the largest sanctuary is more than 5,300 square miles. Within any sanctuary area, the unauthorised removal of historic sanctuary resources, or their injury, is an offence. 27 Through this sort of legislation it is possible to control activities in relation to UCH, even of foreign vessels and nationals, 28 essentially under the guise that such control is protecting the natural resources, living and non-living, in the vicinity. It is quite frequently the case that there is a close association between a wreck and marine life of one sort or another. In such cases interference with the wreck will almost certainly interfere with the marine life that colonises the wreck or congregates around it. In other cases, the notion that natural resources will be imperiled by salvage activities will be largely fictitious. Nonetheless, it seems unlikely that any state would challenge the means by which another state chooses to protect its sovereign rights. 29 Again, this form of action accords with the UNESCO Convention. In fact, arguably the most powerful provision in the Convention is Article 10(2), which provides that States Parties have the right to prohibit or authorise any activity directed at UCH in their EEZ or on their continental shelf, 30 provided that their sovereign rights or jurisdiction under international law are threatened. This provision confirms that there is a legitimate link between interference with natural resources and interference with UCH, and reinforces rights that already exist by virtue of UNCLOS. However, the very fact that the UNESCO Convention makes use of this basis for action adds force to its legitimacy and means that more states may be inclined to make use of it. Interestingly, in the United Kingdom a suitable legislative vehicle on which UCH can piggyback may soon be available. The government is in the early stages of planning a 472


major marine bill to provide protection for marine resources on the continental shelf and has indicated that the bill will make provision for the marine historic environment. 31 Domestic Legislation Utilising the Nationality and Territorial Principles of Jurisdiction The forms of action outlined previously demonstrate mechanisms by which a state can exert control not only over the activities of its own flag vessels and nationals, but also of the flag vessels and nationals of other states as well. The most effective form of protection for UCH sites obviously is protection that will be enforceable against the whole world. However, it should not be forgotten that under the nationality principle of jurisdiction it is perfectly legitimate for a state to introduce domestic legislation to restrict the actions of its own flag vessels and nationals, in whatever waters they happen to be. While the enforceability of legislation based on this principle will inevitably be limited, again it sends out an official signal that a site is off-limits. Examples of legislation utilising the nationality principle to protect wreck sites in international waters are the U.K. Protection of Military Remains Act 1986 and new U.S. Sunken Military Craft Act. 32 Both pieces of legislation are designed to protect sunken military vessels and aircraft, and the remains of their crews, from unauthorised interference. It is interesting to note that for many years after the enactment of the U.K. statute, the Ministry of Defence believed it was unnecessary to actually activate the provisions it included for the designation of sites in international waters because divers appeared to be under a misapprehension that all British “war graves” were legally protected by the legislation. However, in light of a number of incidents giving rise to public and Parliamentary concern, in 2002 five wrecks in international waters were designated as protected places and more are likely to follow soon. 33 The U.K. statute states categorically that the powers it affords, for example to stop and search vessels, and to bring prosecutions, are only enforceable against British flag vessels and nationals; 34 the more recent U.S. statute is more openly worded on this question. 35 These statutes are designed to protect the sanctity of military graves, although they indirectly protect the historical value of the wreck sites as well. While there may be particular political pressures on states to act in respect of war graves, 36 473

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there is no reason why they could not introduce similar legislation specifically to protect the historical character of wreck sites, including non-military vessels. Useful domestic legislation may also be introduced that is based on another principle of international jurisdiction, the “territorial principle.” Under this principle, a state can exercise jurisdiction over any vessel or national that comes within its territory, including its territorial sea and ports. Again, a state can make imaginative use of this principle as a weapon to control interference with wreck sites in international waters. For example, it could use this principle to hamper the activities of foreign vessels operating outside territorial waters by restricting or prohibiting use of its ports, or by making their use dependent upon consent. It could also require that material found outside territorial limits be reported, 37 and restrict or ban the importation of material raised from particular sites. While one needs to keep in mind that there are limits on a state’s powers to take such action (particularly the right of innocent passage through the territorial sea), such measures – especially if implemented by a number of states in a region – could be quite effective. An interesting example of legislation utilising the territorial principle is the U.K. Dealing in Cultural Objects (Offences) Act 2003. This Act creates a new offence of “dealing in tainted cultural objects.” 38 Among other things, an object will be “tainted” if it is removed from a wreck site of historical or archaeological interest. The site does not need to be of historical or archaeological importance; nor does it matter whether the site is in U.K. waters or elsewhere, provided that the removal constitutes an offence under U.K. law or the law of any other country. The scope of this offence is remarkably broad. For example, if someone (anyone) acquires, disposes of, imports or exports an item from one of the sunken British warships designated under the Protection of Military Remains Act, without being authorised to do so by a licence issued by the Ministry of Defence, they may well be guilty of this new offence. Offences are punishable by a prison sentence of up to seven years. 39 Not without coincidence, the regulatory regime under the UNESCO Convention relies heavily on the exercise by individual States Parties of the nationality and territorial principles of jurisdiction. 40 The advantage of the Convention’s regime is that States Parties would be under a specific duty under Articles 14-16 of the Convention to exercise these principles. Obviously, the more states in any particular region that do exercise them, 474


the more effective this form of action will be. Inter-State Co-operation Under Article 303(1) of UNCLOS, states are under a duty not only to protect objects of an archaeological and historical nature found at sea, but also to cooperate for that purpose. The most obvious way that states can cooperate is by negotiating an “inter-state” agreement. Under such an agreement they can protect a particular wreck site, or a number of sites. Over the last 15 to 20 years a number of these agreements have been negotiated, sometimes between just two states (perhaps to protect the flag vessel of one of them that lies in the territorial waters of the other 41 ) and sometimes between four or five states to protect a wreck that lies in their geographical vicinity. 42 The most prominent such agreement at the moment is the Titanic Agreement 43 and it is also the most pertinent to this discussion since it demonstrates how states can cooperate in using the nationality and territorial principles of jurisdiction to protect a wreck site lying in extra-territorial waters. The Titanic lies on the outer continental shelf of Canada. The Titanic Agreement was negotiated by the United States, the United Kingdom, France and Canada and to date has been signed by the United Kingdom and the United States. 44 France and Canada are expected to follow in due course. The Agreement will not come into force until the U.S. Congress passes implementing legislation, which may take some time. 45 The Agreement requires States Parties to control the activities of their own flag vessels and nationals at the site and to control the use of their territorial waters and ports by anyone interfering with the wreck. The intention is to encourage all those states in the general geographical vicinity of the wreck, together with all those states whose nationals and flag vessels have the deepwater technology to access the wreck, to become State Parties. If this is achieved, the protection could be very effective. Under the Agreement, each State Party is required to control the activities of its own flag vessels and nationals on the site, and to establish a licensing system very similar to that set out in the UNESCO Convention. According to the Agreement, the “preferred management technique” for the Titanic is in situ protection, and authorisations will only be granted “when justified by educational, scientific or cultural 475

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interests.” Any activities that are authorised will be required to comply with rules set out in an annex to the Agreement, which – like the UNESCO rules – are based on the ICOMOS Charter. In addition to controlling the activities of its nationals and flag vessels at the site, each State Party must also take action to prohibit activities in its territory, including its ports and territorial sea, that are inconsistent with the Agreement. In many respects the Titanic Agreement bears a striking degree of similarity to the UNESCO Convention. The similarity is perhaps surprising, given that three of the four negotiating states maintain objections to the Convention, 46 but it shows the extent to which these states accept the principles and objectives of the Convention. It also demonstrates the degree to which the UNESCO Convention is already having a significant influence on law and policy. One of the problems with inter-state agreements such as the Titanic Agreement that relate to specific sites is that the identity and significance of a site will not usually be known until after it has been discovered and some interference has taken place. By the time an agreement is finally negotiated and implemented, a great deal of damage may have been done to the site. This problem is graphically illustrated by the situation with respect to the Titanic. 47 However, there is no reason why inter-state agreements cannot be drawn up to protect all of the sites in a particular region, whether or not they have yet been discovered or their significance assessed. Regional agreements of this nature, perhaps with respect to enclosed or semi-enclosed sea areas, have the potential to have the greatest impact. The Siracusa Declaration of 2001 exhorts the Mediterranean countries to consider the possibility of adopting a regional agreement to protect the Mediterranean UCH. If such an agreement comes to fruition for the Mediterranean Sea, it will provide a valuable example that other regions may be able to follow. Again, the development of inter-state agreements, including regional agreements, is a course of action that is entirely in line with the UNESCO Convention. Article 6 of the Convention encourages the development of such agreements, recognising that in certain circumstances they can provide a greater degree of protection for particular sites, or regions, than the Convention’s regime itself.

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CONCLUSIONS This paper has sought to show that there are a variety of means available to states to protect UCH beyond their territorial limits. It is clear that there are examples around the world of states taking such action, and it is striking that the United States appears to be leading the way in taking advantage of the mechanisms available. 48 If well-planned and concerted efforts are taken to make full use of these methods, they could be very effective. As we have seen, by virtue of Article 303(1) of UNCLOS, states are already under an obligation to protect UCH in all sea areas and to cooperate for this purpose. At the very least, they must surely have a duty to investigate the options available to them and to be imaginative in making the best use of these options. By taking action in any of the ways outlined, they will be sending out clear signals that UCH is not simply “free for the taking” by treasure hunters. However, it is important that states do not view such action as an alternative to ratifying the UNESCO Convention, but rather as a vital “stop-gap” until such time as the Convention’s regime comes into force and becomes fully effective.

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Notes 1

Most significantly a number of maritime States insisted that the new Convention could not extend coastal State jurisdiction beyond the limits established by the UN Convention on the Law of the Sea 1982 (UNCLOS). This meant that early proposals to extend such jurisdiction over the continental shelf and EEZ for the purposes of protecting UCH had to be dropped: see S. Dromgoole, “2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage” (2003) 18 International Journal of Marine and Coastal Law 59 at 75-76. 2 For definitions of “activities directed at” and “activities incidentally affecting” UCH, see UNESCO Convention, Article 1, paras. (6) and (7) respectively. See also Article 5, which makes quite broad provision for activities incidentally affecting UCH. See further Dromgoole, supra, n. 1, p. 65. 3 See the definition of UCH in Article 1(1) of the Convention. 4 See Article 2(5), the Preamble and Rules 1 and 4 of the Annex to the Convention. 5 Article 2(7). Rule 2 of the Annex goes on to provide: “The commercial exploitation of underwater cultural heritage for trade or speculation or its irretrievable dispersal is fundamentally incompatible with the protection and proper management of underwater cultural heritage. Underwater cultural heritage shall not be traded, sold, bought or bartered as commercial goods.” For a discussion of Rule 2, see S. Dromgoole, “UNESCO Convention on the Protection of the Underwater Cultural Heritage 2001: implications for commercial treasure salvors” [2003] Lloyd’s Maritime and Commercial Law Quarterly 317 at 332-333. 6 The Convention makes no distinction between the continental shelf and EEZ. See further, infra, n. 30. 7 Some commentators have suggested that another convention might be drafted on the subject, which tilted the balance of interests in favour of treasure salvors. See, e.g. E. Boesten, Archaeological and/or Historic Valuable Shipwrecks in International Waters: Public International Law and What it Offers (The Hague, TMC Asser Press, 2002). However, it is difficult to identify an international forum that would consider UCH of sufficient priority to take on the task. It is also difficult to envisage that UNESCO would be willing to re-open and renegotiate the 2001 Convention, certainly for a number of years. A more immediate possibility might be for a protocol to the International Salvage Convention 1989, modifying salvage law to a certain extent in so far as it applies to UCH. This was a suggestion originally put forward by the late Geoffrey Brice QC, who prepared a draft text (see , visited March 2, 2005). If the UNESCO Convention ultimately proves to be a dead letter, a protocol to the Salvage Convention is an avenue that should certainly be carefully explored. 8 UNESCO Convention, Article 27. 9 (visited February 24, 2005). 10 There is some suggestion in the legislative history of UNCLOS that “historical” for the purposes of the Convention means “many hundreds of years old”: see B. Oxman, “The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980)” 75 American Journal of International Law (1981) 211 at 241 n. 152. However, this is generally felt to be far too restrictive a view. 478

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These phrases have been much used in academic discourse concerning the cultural heritage. For a fairly comprehensive list of relevant references, see A. Strati, The Protection of the Underwater Cultural Heritage: An Emerging Objective of the Contemporary Law of the Sea (The Hague, Kluwer Law International, 1995), p. 23. The merits and demerits of cultural internationalism versus cultural nationalism differ to some extent depending on the particular context and type of heritage under discussion. In the maritime sphere, the cultural heritage frequently has an international flavour and shipwrecks in particular are usually of international significance inherently, possessing historical ties with more than one state. See further ibid., p. 11. 12 UNESCO Convention, Article 2(3). Interestingly, UNCLOS applies an equivalent principle only to objects found in the Area: UNCLOS Article 149. As far as international instruments relating to the cultural heritage are concerned, the notion that humanity as a whole should benefit dates back to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict 1954. 13 P. O’Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage (Leicester, Institute of Art and Law, 2002), p. 50. 14 Defined in Article 1(8) to mean “warships, and other vessels or aircraft that were owned or operated by a State and used, at the time of sinking, only for government noncommercial purposes...” For the special provision, see Arts. 7(3), 10(7), 12(7). There are particular political sensitivities in respect of such vessels and at one time there was the distinct possibility that they would be excluded from the Convention’s regime altogether: see Dromgoole, supra, n. 1, pp. 72-74. Unfortunately the provision that is made for them is unacceptable to a number of maritime States and is one of the main obstacles to their acceptance of the Convention. 15 Articles 6(2), 7(3), 9(5) and 18(4) refer to states with a verifiable link, “especially a cultural, historical or archaeological link.” Articles 11(4) and 12(6), which relate to the Area, refer to “the preferential rights of States of cultural, historical or archaeological origin,” wording which derives from Article 149 of UNCLOS. 16 Cf. the approach of many states to UCH located in their territorial waters, which is protected by domestic legislation regardless of its origins. For example, under the U.K. Protection of Wrecks Act 1973 the criterion for designation is that a wreck should be of “historical, archaeological or artistic importance” and there is no requirement that the wreck be of any particular national significance. 17 For details of a recent, controversial, example of a state exercising its ownership rights over a historic shipwreck in international waters, see S. Dromgoole, “Murky waters for government policy: the case of a 17th century British warship and 10 tonnes of gold coins” (2004) 28 Marine Policy 189-198. 18 UNCLOS Article 33(2) provides that: “[t]he contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.” 19 See Oxman, supra, n. 10, p. 240; L. Caflisch, “Submarine Antiquities and the International Law of the Sea,” (1982) XIII Netherlands Yearbook of International Law 3, pp. 19-20. See also R. Churchill and V. Lowe, The Law of the Sea (3rd ed., Manchester, Manchester University Press, 1999), pp. 137-139. 479

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The author would like to thank Tullio Scovazzi and Thijs Maarleveld for information provided on the latest position in Italy and the Netherlands, respectively. 21 Presidential Proclamation 7219 of August 2, 1999: The Contiguous Zone of the United States, 64 Fed. Reg. 48,701 (September 9, 1999). 22 See, e.g., Oxman, supra, n. 10, p. 240. But see also O’Keefe, supra, n. 13, p. 18. 23 See B. Jeffery, “Australia,” N. O’Connor, “Ireland” and E. Zarza Alvarez, “Spain,” all in S. Dromgoole (ed.), Legal Protection of the Underwater Cultural Heritage (London, Kluwer Law International, 1999) at pp. 6, 90 and 149, respectively. 24 See B. Blazkiewicz, “Permits to search shipwrecks: recent amendment to Act Concerning the Maritime Areas of the Polish Republic and the Marine Administration of 21 March 1991” (2005) 20 International Journal of Marine and Coastal Law (forthcoming). 25 There is little evidence that states have actually acted to enforce their legislation against foreign nationals engaged in activities outside territorial limits and they may well be hesitant to do so for fear that the legislation may be declared contrary to international law. It is also interesting to note that, in the Irish Parliament (Dail), the Minister for Arts, Heritage, Gaeltacht and the Islands expressed the Irish government’s hesitation to make an underwater heritage order designating an area around the wreck of the Cunard liner Carpathia in light of the fact that the wreck lay outside territorial limits, despite the fact that the relevant legislation provides for such orders to be made on the continental shelf. (As the Minister made clear in her response to a Parlimentary Question, the Carpathia’s “main claim to fame” was that she rescued 700 passengers from the Titanic.) See Dail Eireann, Vol. 508, October 7, 1999. 26 Title III of the Marine, Protection, Research and Sanctuaries Act of 1972, 16 USC s. 1431 et. seq. 27 For a detailed discussion of the U.S. National Marine Sanctuaries Act in so far as it applies to historical resources, see O. Varmer, “United States of America,” in Dromgoole, supra, n. 23. 28 Although it does not appear that the legislation has been tested to date vis a vis foreign vessels and nationals: see ibid., p. 217. 29 See O’Keefe, supra, n. 13, p. 90. 30 Interestingly and — as Fu has suggested — perhaps unfortunately, the Convention does not distinguish between the EEZ and continental shelf: see Kuen-chen Fu, “A Chinese Perspective on the UNESCO Convention on the Protection of the Underwater Cultural Heritage” (2003) 18 International Journal of Marine and Coastal Law 109-124, at pp. 118-119. 31 In December 2004, the Department for the Environment, Food and Rural Affairs (DEFRA) launched a Five Year Strategy, including plans for a new marine bill to provide greater protection of marine resources. In January 2005 Elliot Morley, Minister for the Environment and Agri-Environment, in a keynote lecture at the Coastal Futures Conference, made it clear that the marine historic environment would be included in the ‘holistic and integrated’ approach that the Department was planning to take in the Bill. For further details, see (visited April 13, 2005). 32 Otherwise known as Title XIV of the FY2005 National Defense Authorization Act 480

Legal Protection for the Underwater Cultural Heritage (Public Law No. 108-375, October 28, 2004). 33 The five wrecks protected in 2002 were the World War II casualties, HMS Hood, HMS Prince of Wales, HMS Repulse and HMS Gloucester, plus RFA Sir Galahad, a casualty of the Falkland Islands campaign. The decision to designate these wrecks was announced by the Ministry of Defence in a consultation report entitled “Military Maritime Graves and the Protection of Military Remains Act 1986,” published November 2001. The report also announced that a rolling programme would be established to designate all British military vessels that met a number of specified criteria. 34 Protection of Military Remains Act 1986, s. 3. 35 See Title XIV, Sunken Military Craft Act, Sec. 1402(c)(2), which provides among other things that the prohibitions section of the act will “not apply to any action by a person who is not a citizen, national, or resident alien of the United States, except in accordance with...generally recognized principles of international law...” (emphasis added). 36 The question of exactly what counts as a war-grave has recently come to attention in the United Kingdom as a result of a decision by the Secretary of State for Defence not to give protection under the 1986 Act to the SS Storaa, a merchantman sunk by an E-boat torpedo in 1943 while carrying war supplies in convoy. Relatives for one of the crewmen who lost their lives have applied for a judicial review of the decision and their application was granted by the High Court on April 7, 2005. A full hearing will be held later in the year. 37 See, for example, the U.K. Merchant Shipping Act 1995 s. 236, which imposes a duty on any person who “finds or takes possession of any wreck in United Kingdom waters or finds or takes possession of any wreck outside United Kingdom waters and brings it within those waters” to report it to the Receiver of Wreck. 38 The Act was designed to reinforce the U.K.’s implementation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970. The United Kingdom acceded to this Convention somewhat belatedly in 2002. For an explanation of the Act, see Department of Culture, Media and Sport, Cultural Property Unit, “Dealing in Tainted Cultural Objects – Guidance on the Dealing in Cultural Objects (Offences) Act 2003” (, visited February 28, 2005). 39 Dealing in Cultural Objects (Offences) Act 2003, s. 1(3). 40 For the principal reason why this is the case, see supra, n. 1. 41 A recent example is the 2003 agreement between France and the United States in respect of Cavelier de la Salle’s exploratory vessel, La Belle, which sank in 1686 off the coast of Texas. The text of the agreement can be found in the Documents section of R. Garabello, T. Scovazzi, The Protection of the Underwater Cultural Heritage: Before and After the 2001 Convention (Martinus Nijhoff, 2003). 42 For example, the 1995 agreement between Estonia, Finland and Sweden regarding the M/S Estonia, a passenger ferry which sank in the Baltic Sea in 1994 with the loss of approximately 800 lives. The United Kingdom and Denmark also became parties in 1999. 481

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For the text of the Agreement, see Department for Transport, “Consultation on UK Implementation of the Agreement for the protection of the wreck of the RMS Titanic,” April 7, 2003, Annex A, at (visited February 28, 2005). For a detailed analysis of the Agreement, see S. Dromgoole, “An International Agreement for the Protection of the Titanic: Problems and Prospects,” (forthcoming). 44 The United Kingdom signed the Agreement on November 6, 2003 (see Department for Transport News Release 2003/0130, “Wreck of the Titanic Protected,” November 6, 2003). The United States signed the Agreement on June 18, 2004 (see U.S. Department of State, “Statement on U.S. Signing of an Agreement to Protect the RMS Titanic Wreck Site,” June 18, 2004). 45 Indeed, it is by no means a foregone conclusion that the legislation will successfully pass through Congress. 46 The United Kingdom and France abstained from voting in favour of the Convention. The United States did not have a vote (it was not a member of UNESCO at the time of the vote, although it has since rejoined the organisation: , visited February 28, 2005). The United States did, however, express objections to the final text. 47 The wreck of the Titanic was discovered in 1985. Since that time there have been numerous expeditions to the site and more than 6,000 artifacts have been recovered from the debris field that surrounds the hull sections. It appears that the manoeuvring of submersibles has had a visible impact on the hull and significant features of the liner have either disappeared or collapsed: “Jewels of the Titanic were ‘taken off the old lady in her grave’,” The Times, June 2, 2004. In 2004, Robert Ballard, joint leader of the expedition that found the wreck in 1985 returned to the site with the U.S. National Oceanic and Atmospheric Administration and reported that it had been “irreversibly damaged” since its discovery: “Titanic wreck has been plundered and vandalised, says man who found her,” The Times, June 9, 2004. The process of negotiating and adopting an international agreement in respect of the wreck has been complicated by an ongoing in rem action in the U.S. federal admiralty courts. 48 For an interesting discussion of U.S. law and practice in this respect, see R. Elia, “U.S. protection of underwater cultural heritage beyond the territorial sea: problems and prospects” (2000) 29 International Journal of Nautical Archaeology 43.

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Protection of Underwater Cultural Heritage in the South China Sea and Regional Cooperation Zhu Huayou * and Ren Huaifeng †

ABSTRACT The South China Sea (SCS) has served as a great sea-lane through which culture and business have spread to the world. To some extent, the protection of underwater cultural heritage in the SCS has the potential to claim historical rights, because China has indisputable sovereignty over the Spratly Islands with ample historical and jurisprudential evidence to support this. The Convention on the Protection of Underwater Cultural Heritage, United Nations Convention on the Law of the Sea and other related international laws provide for marine order and relative cooperation. To attain regional cooperation, the concerned parties not only get to improve on politics and diplomacy with one another, but also establish a common base of cooperation. Maybe the protection of underwater cultural relics in the SCS provides an answer to the problem. According to credible historical records from the Han Dynasty and even earlier, the Chinese businessmen of the central plains area and coastal areas shipped porcelain, cloth and silk from the ports in Guangdong, crossing SCS to Indonesia, Egypt and Rome in a line anciently referred to as the “Silk Road” at sea. The “Silk Road” at sea and the ancient “Silk Road” in the northwest mainland became the bridges connecting the different civilizations in the eastern and western parts of the world. However, owing to complex facts and historical factors, underwater cultural relics in the SCS were stolen and illegally sold. It is very difficult to protect underwater cultural relics in the SCS; therefore concerned countries must efficiently work together to protect them as the underwater relics of human civilization. *

Deputy Professor, National Institute for the South China Sea Studies (China), e-mail: [email protected]. † Senior Lecturer, National Institute for the South China Sea Studies (China), e-mail: [email protected]. 483

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MAJOR ARCHAEOLOGICAL EVENTS IN THE SCS In April and May of 1986, a British man named Michel Harcher auctioned many rare cultural relics in Amsterdam, Holland. The auctioned items included about 150,000 pieces of porcelain and 125 pieces of gold bullions, including blue and white porcelain of the Kangxi Age, Qing Dynasty. The total value was about $20 million USD. In August 1987, the Guangzhou Rescue and Salvage Branch of the Ministry of Communications and a British rescue and salvage company explored the SCS, discovering a sunken ship from the Song and Yuan Dynasty containing an abundance of porcelain and silver bullions. On 14 September 1987, Hong Kong’s Mingpao Newspaper reported that Hong Kong fishermen had found two ancient Chinese stone Buddhist sculptures in the Xisha Islands. In August 1989, the History Museum of China and the Underwater Archeological Research Institute of Japan signed a letter of intention and agreement regarding exploration and excavation of the sunken ships of Song-Yuan Dynasty in Nanhai, Guangdong. From November 5-9, 1989, the Sino-Japanese exploration team began to work on the sunken ship located in Nanhai, Guangdong. They confirmed the exact location of the sunken ship, mastered the first-handed materials that are crucial to further work. From September 15-25, 1990, the Underwater Archeological Research Institute of the History Museum of China, the Guangdong Archeological Research Institute and the Museum of Hainan Province formed a joint team to explore Baoling Port, Wenchang County, Hainan Province. They found a sunken ship from the early Qing Dynasty. The ship was full of household supplies, including copper charms, a gong and iron pans. The household supplies must have been transported from Guangdong Province to Hainan Province, sinking in Baoling Port. The date on the copper coins on the ship showed that the sunken ship was from the early Qing Dynasty. From April 17 to May 24, 1996, the State Administration of Cultural Heritage organized the Underwater Archeological Research Institute of the History Museum of China and the Guangdong Archeological Research Institute with the support and assistance of the navy to explore the Xisha Islands. These explorations were a great success, which caught the attention of the State Bureau. In 1987, a Song Dynasty business ship named Nanhai No.1 was found 484

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in Yangjiang,Guangdong Province. The underwater archeological team excavated about 4,000 pieces of gold, silver, copper, iron and pottery cultural relics, most of which are very rare and unique. It is estimated that the ship carried between 60,000 and 80,000 total cultural relics. LOSS OF UNDERWATER CULTURAL RELICS IN THE SCS The loss of cultural relics in the SCS is increasing as time goes by. On May 1, 2004, Christie’s Auction House in Melbourne, Australia, caught the attention of the collectors’ world once again by putting on the auction block more than 1,700 pieces of finely made Chinese porcelain. The pieces of Chinese porcelain, which were found by a Vietnamese fisherman in an ancient Chinese sunken vessel in the SCS several years ago, were produced in Zhangzhou City during the Wanli Period of the Ming Dynasty. The pieces have are valued at over 750,000 USD. The fact that Chinese underwater cultural relics were auctioned abroad is no longer news. The increasing loss of underwater cultural relics from China has been getting more attention lately. It is reported that excavation of underwater cultural relics is very frequent. Some archaeologists estimate that nearly 3 million sunken vessels under the ocean containing priceless cultural relics and jewelry are waiting to be explored and excavated. According to statistics from the Underwater Archaeological Research Center, there are more than 2,000 vessels in the SCS. In recent years, foreign excavators have hunted for underwater cultural relics. The Englishman Harcher, for example, was well-known for his search for underwater cultural relics in the SCS region. In 1985, Harcher excavated 23,000 pieces of china and various gold and silver jewelry pieces from a Chinese business vessel that had sunk in 1752. And in 1999, he robbed a sunken vessel named Taixing of millions of pieces of china. In 2003, an old American veteran secretly transported thousands of Chinese cultural relics that were excavated in the SCS to America, which shocked the whole world. In this manner, a large number of Chinese cultural relics from the SCS were sold on the international cultural relics market, causing a huge loss to China as well as damaging the common cultural heritage of humankind. However, some southeast Asian countries are incapable of excavating the underwater cultural relics that remain in their territorial seas. As a result they have issued licenses to foreign excavators. For example, 485


excavators can complete underwater excavation in the Philippine territorial sea after obtaining a license authorized by the National Museum of the Philippines if the license says that they are required to share the excavated material with the Philippine government. However, some such licenses have not worked in the authorized area. They secretly excavated in the sea areas managed by China with licenses issued by other countries. In addition, they would not disclose the longitude and latitude of the locations where they excavated in order to hide their illegal actions. Most of the excavators are acquainted with international law so they are able to take advantage of the flaws in international laws. For example, international law stipulates that unclaimed sunken vessels may be auctioned. Therefore, excavators do not auction cultural relics until the stipulated term of claim passes. PRELIMINARY CONCLUSION It is obvious that the loss of underwater cultural relics in the SCS has not only caused a huge loss for concerned countries, but also damaged research and lowered the human value of underwater cultural relics. On the one hand, this situation reflects that we still lack effective legal mechanisms to protect underwater cultural relics and to punish illegal excavators. On the other hand, concerned countries cannot cooperate effectively within the existing disputed sea areas of the SCS, which makes room for illegal excavation. There are sufficient reasons to call for necessary regional cooperation to protect the underwater cultural heritage in the SCS. REGIONAL COOPERATION Many of the underwater cultural relics in the SCS lie in disputed areas. It is well known that the South China Sea Issue is thought to be the most complicated maritime dispute in the world. It directly involves China, Vietnam, the Philippines, Malaysia, Indonesia and Brunei. Protecting those cultural relics is a big problem. Regional cooperation under the Convention could be an answer.

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LEGISLATION The Convention on the Protection of the Underwater Cultural Heritage, which was adopted by UNESCO in November 2001, acknowledges that underwater cultural heritage is “an integral part of the cultural heritage of humanity and a particularly important element in the history of peoples, nations, and their relations with each other concerning their common heritage.” Thus each state concerned should take responsibility in preventing unauthorized exploitation activities and strengthening the protection and preservation of underwater cultural heritage. However, until now few countries have accepted, approved or acceded to the Convention. Archaeologists and the Chinese government have realized that China’s loss of underwater cultural relics is not only destroying Chinese traditional culture, but is also a tragedy of human civilization. In response, the State Administration of Cultural Heritage enacted Regulations Concerning the Management and Protection of Underwater Cultural Relics, promulgated by the State Council of China on October 20, 1989. Now, China has started to revise the Regulations Concerning the Management and Protection of Underwater Cultural Heritage in order to take more effective measures to punish the illegal excavators. Still, there are some problems. If the Convention enters into force and is ratified by China, China has to revise related laws. For example, Article 2 of the Regulations Concerning the Management and Protection of Underwater Cultural Heritage defines the term "underwater cultural relics" as human cultural heritage with historic, artistic and scientific values and that remains in a specified body of water. The provisions in the article do not cover objects that have remained underwater since 1911 and have nothing to do with important historical events, revolutionary movements or renowned personages. Article 1 of the Convention defines that (a) “Underwater cultural heritage” means all traces of human existence having a cultural, historical or archaeological character that have been partially or totally under water, periodically or continuously, for at least 100 years; (b) Pipelines and cables placed on the seabed shall not be considered as underwater cultural heritage; (c) Installations other than pipelines and cables, placed on the seabed and still in use, shall not be considered as underwater cultural heritage. 487


The difference between the Convention and the law of China is so evident that China has to revise related laws to be consistent with the Convention. Of course, China can keep some reservations in accordance with Article 29 of the Convention. Article 3 of the Regulations clearly defines the ownership of underwater cultural relics specified in Article 2. However, the Convention focuses on how to protect relics — it does not identify their ownership. To some extent this may cause conflicts in identifying ownership. To be optimistic, if we “freeze” the ownership of relics in the disputed areas of the SCS, the concerned parties can work together to protect them. But the action of “freezing” is a question of politics and national interests. Who will step up? The first step must be left to politics and diplomacy. POLITICAL AND ECONOMIC BASIS Besides revising related regulations and law, China is seeking regional cooperation, which is of special significance for the concerned countries in the SCS area that wish to protect the underwater cultural heritage together. Today, the mutual trust between China and ASEAN (“Association of South East Asian Nations”) countries has been enhanced. China has joined in the Treaty of Amity and Cooperation in South East Asia and established a strategic partnership aiming at common peace and prosperity with ASEAN, which means that China’s diplomatic principle “to become a good neighbor and a good partner” has been practiced conscientiously. In 2002, at the 6th ASEAN-China summit, China signed the Declaration on the Conduct of Parties in the South China Sea and the Joint Declaration of ASEAN and China on Strategic Partnership for Peace and Prosperity that symbolized China-ASEAN relations entering into a new phase. The vigorous development in China’s trade and economy provides the ASEAN countries with opportunities and dynamics for ASEAN nations’ economic growth recovery. This is most evident in the establishment of a China-ASEAN Free Trade Area, which has facilitated the sustainable development of a bilateral economy and trade. This has created a new competitive, cooperative, developmental and all-win situation. It proves that China has built a political and economic foundation for regional cooperation in the South China Sea Area between China and the other neighbors around the SCS.

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JURISPRUDENTIAL BASIS The regional cooperation in the SCS area should be undertaken on the basis of related laws such as the Charter of the United Nations, the Convention on the Protection of Underwater Cultural Heritage and the UN Convention on the Law of the Sea that regulate and define rights and obligations for concerned parties, which provides states and organizations with the rules and procedural support for the protection and exploitation of underwater cultural heritage. According to Article 2 paragraph 2 of the Convention, States Parties shall cooperate in protecting the underwater cultural heritage through cooperation amongst themselves. This paragraph embodies the importance of underwater cultural heritage as an integral part of the cultural heritage of humanity. Article 5 points out that on the basis of the Convention and on the basis of international law, each States Parties shall use the best practicable means at its disposal to prevent or mitigate any adverse effects that might arise from activities under its jurisdiction incidentally affecting underwater cultural heritage. This article is significant for regional cooperation in the SCS area, for in the disputed area any unilateral activity will arouse resistance by the other claimants and cause conflicts. However, cooperation in protecting the disputed areas has no influence on the ownership of underwater cultural relics. The Convention adopts the policy of “spot protection” to shelve ownership disputes and protect underwater cultural heritage. The Convention also developed specific rules on its relationship with related international laws. For instance, Article 3 shows its conformity with the UN Convention on the Law of the Sea, and in Article 4, it is stipulated that any activity relating to underwater cultural heritage to which the Convention applies shall not be subject to the law of salvage or law of finds, and that salvage activity should be kept under control. Article 6 is concerned most with regional cooperation, bilateral, regional or other agreements. According to paragraph 1, State Parties are encouraged to enter into bilateral, regional or other multilateral agreements or develop existing agreements for the preservation of underwater cultural heritage. As to the agreement before the Convention’s adoption, paragraph 3 explains that the Convention shall not alter the rights and obligations of States Parties regarding the protection of sunken vessels arising from other 489


bilateral, regional or other multilateral agreements concluded before its adoption and, in particular, those that are in conformity with the purpose of the Convention. This speaks volumes that both the Convention and bilateral, regional or other multilateral agreements could help resolve the underwater cultural heritage protection problems in the disputed areas of the SCS, to which the Convention will give its main supports. CONCLUSION Regional cooperation, especially in disputed areas, is an all-win action based on political mutual trust, economic mutual dependence and good neighborly relationships. It has constructive significance to China and the other countries around the SCS. The principle of “shelving disputes and going in for joint development,” which was established by China long ago, has made certain progress in the exploration of oil and gas in the SCS. The Convention on the Protection of Underwater Cultural Heritage, which was developed under the background of regional integration and economic globalization, shows a spirit of cooperation and a concern for human civilization. The cooperation of underwater cultural heritage protection will lead the way to a series of further collective activities in wider fields and have a far-reaching impact on keeping common security and sustainable development in the SCS region.

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International Protection of Underwater Cultural Heritage Robert C. Blumberg

INTRODUCTION The United States strongly supports the protection and preservation of underwater cultural heritage (UCH) for future generations, both domestically and internationally. On the domestic front, the United States has enacted numerous laws at both the state and federal levels to protect UCH. 1 Internationally, the United States strongly supported the Convention on the Protection of Underwater Cultural Heritage which would be developed under the auspices of UNESCO (Convention) and would, inter alia: 1) codify, for the first time, international scientific rules and standards for the management and protection of underwater cultural resources, and 2) prevent currently unregulated salvage of UCH, particularly UCH located 24 nautical miles seaward and that, in some cases, has destroyed important artifacts and archaeological and historical information. The Convention contains some important, positive provisions in this regard, in particular, the scientific Rules — the principles set forth in the Preamble and the limitation of the application of salvage law to UCH. However, certain other provisions, included (in my view) primarily for political reasons, are likely to prevent many key countries from becoming parties and thereby severely limit the Convention’s effectiveness. UNESCO itself played a role that contributed to this outcome. Ultimately, broad and effective protection of UCH will require further development of international law through a competent international organization, presumably UNESCO, and by cooperative state practice.

Attorney-Advisor for the United States Department of State, Bureau of Oceans and International Environmental Scientific Affairs, Office of Oceans Affairs, and led the United States delegation to the UNESCO negotiations on the Convention on the Protection of Underwater Cultural Heritage. The views expressed in this article are not necessarily those of the United States Government. 491

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BACKGROUND AND CONTEXT Prior to the adoption of the UNESCO Convention there was no comprehensive legal regime that dealt specifically with the regulation of activities affecting UCH located 24 nautical miles seaward of the coast. The 1982 UN Convention on the Law of the Sea (UNCLOS) 2 does address the protection of UCH, but its regime is complex, not entirely clear, and incomplete. The UNCLOS Articles that deal specifically with UCH are Articles 33, 149 and 303. Other relevant Articles are those dealing with the rights and duties of states in regard to internal waters, territorial seas, the continental shelf and the exclusive economic zone (in particular, Articles 56 and 58), artificial islands and structures (Article 60), drilling (Article 81), high seas rights and freedoms (Articles 86 and 87), the basis for resolving conflicts regarding rights and jurisdiction in the exclusive economic zone (Article 59), sovereign immunity (Article 236), and the relationship to other conventions and agreements (Article 311). Under UNCLOS, coastal States have jurisdiction to regulate activity that affects UCH in areas where they have sovereignty. This includes the territorial sea (seaward of 12 nautical miles from baselines) 3 , subject only to the property rights of flag States in regard to their identifiable sovereign immune vessels, aircraft, and other state-owned vessels that have not been abandoned. Coastal States may also prevent the removal of “objects of an archaeological and historical nature” from the contiguous zone (seaward of the territorial sea to 24 nautical miles from baselines) without their approval. 4 Beyond 24 miles, UNCLOS did not establish or recognize any special role or competence for coastal States in regard to the protection or regulation of UCH. UCH was treated differently from other living and non-living resources in the exclusive economic zone and continental shelf. As made clear by the International Law Commission (ILC) regarding the 1958 Convention on the Continental Shelf, UCH was not to be considered a living or non-living resource of the continental shelf over which coastal States are granted sovereign rights and jurisdiction. 5 The UNCLOS provision (Article 56) on coastal State sovereign rights over the economic zone and continental shelf simply repeats the wording of the 1958 Convention with respect to the rights of coastal States to explore and exploit natural resources. There is nothing in the negotiating history of UNCLOS that would alter the conclusion of the ILC with regard to any 492

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intended additional coastal State jurisdiction over shipwrecks. Indeed, the opposite is true based on both the rejection of a proposal by the Greek delegation to UNCLOS that coastal States should have jurisdiction over UCH out to 200 miles and on the ultimate adoption of Article 303. 6 Rather, all states have a general duty “to protect objects of an archaeological nature found at sea and shall cooperate for that purpose.” 7 And with regard to UCH found in the “Area” (beyond the limits of national jurisdiction), UNCLOS provides that such UCH “shall be preserved or disposed of for the benefit of mankind as a whole, particular regard being paid to the preferential rights of the State or country of origin, or the State of cultural origin, or the State of historical and archaeological origin.” 8 The former obligation is hortatory only. UNCLOS contains many such provisions, some of which cannot be construed to provide specific regulatory competence over UCH located in any geographic zone of a coastal State’s jurisdiction. The latter is also hortatory and, moreover, provides no clarity on what is to be considered UCH, how it is to be preserved or disposed of for the benefit of mankind, or which of the States are entitled to preferential rights or the nature of such rights. That left UCH located beyond 24 nautical miles subject only to hortatory UNCLOS obligations and general international law (common laws of salvage law and finds). While UNCLOS limits general coastal State regulatory competence regarding UCH to the territorial sea and the contiguous zone, U.S. courts sitting in admiralty have not taken such a limited view of their jurisdiction in granting salvage rights. They have made several awards regarding the salvage of historic wrecks seaward of 24 miles, including the Titanic, which is located 325 miles off the Canadian coast, and the Lusitania, located in Ireland’s territorial sea. Moreover, there are no international scientific standards that bind admiralty courts when making salvage or finds awards regarding UCH. 9 VIEWS OF THE UNITED STATES AND MARITIME STATES (MOST OF WESTERN EUROPE, RUSSIA AND SCANDINAVIA) This jurisdictional gap in international law under UNCLOS regarding UCH located beyond 24 miles, as well as the lack of uniform international management and protection standards, is what led the United States to support the negotiation of the UNESCO Convention. From a U.S. standpoint, the convention needed three critical features to be viable: 493

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1) It had to be consistent with the jurisdictional regime set forth in UNCLOS – specifically that it not create new coastal State direct regulatory competence over UCH; 2) It had to provide appropriate treatment for sunken state vessels – primarily warships as defined in UNCLOS Article 236; and 3) It had to contain strong uniform international standards for the protection and preservation of UCH striking an appropriate balance between archaeologists that proposed no commercial activity related to UCH, and commercial salvors that wanted unfettered recovery and the continued application of salvage law and the law of finds by admiralty courts without any amendment. With respect to jurisdiction, the United States and the maritime States opposed the original draft Convention originally co-sponsored by UNESCO 10 and the United Nations Division of Ocean Law and Policy 11 because, in effect, it would have established a “cultural heritage zone” beyond 24 miles and the outer edge of the continental shelf, in which coastal states would have direct authority to regulate access to UCH. UNESCO, supported primarily by the large group of developing states (G77), continued throughout the negotiations to assert that the Convention could provide new direct coastal State authority to regulate commercial recovery of UCH in the exclusive economic zone and on the continental shelf consistent with the balance of rights and interests set forth in UNCLOS. This was achieved specifically by not modifying rights, duties, and activities of Party or non-Party States unrelated to UCH. This approach was opposed for both legal and practical reasons. Legally, the United States and other maritime States believed that such new direct coastal State regulatory authority over UCH would, in fact, alter the carefully constructed balance of rights and interests that was established by UNCLOS. 12 Practically, most states — primarily because of a lack of resources and regulatory/enforcement infrastructure — had not exercised the jurisdiction they could have exercised, pursuant to UNCLOS, to regulate UCH located in their territorial seas and contiguous zones. Thus, such extended jurisdiction would be of little practical value to most states. Instead, the United States and the maritime States proposed that the new Convention adopt uniform international scientific management rules 494


and standards that would be enforced through a combination of territorial, flag and port State jurisdiction. States Parties would be obligated to enforce the convention in regard to activities in their territory, vessels entering their ports, and their nationals and flag vessels wherever they operated in the world. A state would prohibit or regulate the import, export, sale, or disposal of UCH unless it was consistent with the Convention and Rules, including the manner in which UCH is initially collected and conserved (this is the approach adopted by the United States, United Kingdom, France and Canada in an agreement negotiated with respect to protecting the RMS Titanic referenced at end note 26). Under this proposal, a coastal State either unilaterally or, more effectively, through agreement with other states in a region, could also require foreign flag vessels to comply with the Convention or with more stringent national standards as a condition of port entry. Such a system would be clearly consistent with international law and would be the most effective way of protecting UCH for the practical reasons mentioned with regard to coastal State management infrastructure and monitoring capabilities. States that have the most advanced underwater recovery technology are also best capable of ensuring compliance by their nationals and flag vessels worldwide, as well as during activities in their ports and territories. Compliance with the Convention and Rules would have been further ensured by a requirement to permit observers from other interested State Parties. Moreover, while the United States and the maritime States believed that the Convention should not provide new direct regulatory authority over UCH, their position was that the Convention could restate and clarify existing coastal State authority set forth in UNCLOS to authorize and regulate specified activities on continental shelves and in exclusive economic zones. The exercise of that authority could apply to certain activities related to the recovery of UCH. For example, much UCH lies on or is embedded in the seabed in close proximity to sensitive living resources such as coral reefs and fish spawning grounds over which coastal States have sovereign rights provided by UNCLOS. Activities to be directed at UCH in such areas could be regulated to the extent that they would demonstrably adversely impact surrounding resources. In addition, UNCLOS Article 60 gives coastal States the exclusive right to authorize and regulate the construction, operation, and use of installations and structures for certain specified purposes. Additionally, they are given authority over such installations and structures that may 495

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interfere with the exercise of the rights of coastal States in exclusive economic zones. The conduct of activities directed at UCH may require the use of installations or structures within the meaning of Article 60, especially in light of equipment necessary to conduct proper recording and collection of artifacts as required by the Convention’s Rules. Further, UNCLOS Article 81 gives coastal States “the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.” Drilling is an undefined term and the extent to which it might encompass activities directed at the recovery of UCH embedded in or located below the surface is not clear. UNCLOS experts have suggested that these articles and others related to the authority of coastal States to prevent or regulate activities that would demonstrably adversely impact resources over which states have sovereign rights, were appropriate for consideration as part of the UNESCO negotiations. 13 The United States and other maritime States were prepared to further define, clarify and codify at the Convention existing UNCLOS authority such as related to activities directed at UCH, but this was never considered seriously by the UNESCO Secretariat and the states that favored new direct coastal State regulatory competence over UCH. Another critical issue for the United States and many maritime States related to the treatment of warships and other state owned vessels. The view was that the Convention should codify the international law principle that title to identifiable vessels and aircraft, wherever located, that are entitled to sovereign immunity at the time of sinking, 14 remains vested in the original flag State unless expressly abandoned, and is not lost through the passage of time. Further, no state would be permitted to salvage, recover or permit the salvage or recovery of such vessels or aircraft without the express consent of the flag State, and any recovery that is permitted would have to be consistent with the Convention’s Rules. In accordance with existing international law reflected in UNCLOS, the coastal State would, of course, have to be involved in determining the manner of any recovery of such vessels and aircraft located in its territorial sea or contiguous zone. Finally, the United States strongly believed that the Convention needed to contain uniform international scientific and professional standards for the protection and management of UCH similar to those in the International Council on Monuments and Sites (known as the ICOMOS Charter) 15 — standards that are generally consistent with those in several U.S. historic preservation statutes. UNESCO had proposed that 496


the ICOMOS Charter be adopted without amendment as part of the Convention. Adoption of legally binding standards based on the ICOMOS Charter would necessarily mean limitations on the application of the common law of salvage and finds regarding historic wrecks. For example, salvage law presumes that shipwrecks are in “marine peril” and creates financial incentives to encourage salvors to return them and their cargoes back into the “stream of commerce.” This approach, when applied to historic shipwrecks, can conflict with the basic principles of marine archaeology reflected in the ICOMOS Charter, namely that decisions regarding the management, protection and recovery of UCH should be based, not on commercial value, but on the preservation of archaeological and contextual information. 16 In this regard, the preferred management tool is in situ preservation. Recovery should take place only when a wreck is, in fact, in peril or recovery is otherwise determined to be in the public interest. If recovery does take place, the collection should be kept together and remain available to the public for research, education and other public purposes. THE CONVENTION After several rounds of negotiations, government experts voted to submit the draft Convention as it stood in July of 2001 to the 31st UNESCO General Conference over the objection of the United States and most maritime States, 17 and after a contentious debate it was adopted without further amendment by a divided vote of 87-4-15. 18 On the positive side, the Convention does establish strong legally binding international scientific rules and standards similar to the ICOMOS Charter that would govern all activities directed at underwater cultural heritage. The Rules, supported by the United States and ultimately adopted by consensus, reflect a number of hard fought compromises between the archaeological community and those with commercial interests in underwater cultural heritage, both of whom were represented on the United States delegation. The Rules would not ban all activities directed at underwater cultural heritage that have a commercial aspect 19 as many in the archaeological community would have preferred, but they would require that such activities be conducted in accordance with current underwater archaeological standards set forth in the Rules. For example, the Rules include a strong preference in favor of in situ preservation, 497

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which would effectively ban the sale of individual artifacts, and would require that collections be kept in tact and sold only if recovered, recorded and curated in accordance with the Rules. In addition, the Convention itself bans the application of the laws of salvage and finds to underwater cultural heritage, with limited exceptions. 20 On the other hand, while the original draft Convention changed substantially and was in many respects improved during the negotiations, the Convention as adopted contained several key provisions that are unacceptable to the United States and the maritime States that voted against adoption or abstained. In particular: 1) In regard to jurisdiction, primarily at the insistence of the Group of 77, the Convention created new direct or indirect coastal State rights and general regulatory competence over UCH located in the exclusive economic zone and on the continental shelf. 21 2) The Convention does not adequately protect sunken warships and aircraft and other state vessels and would alter the previously described international law and the practice of many maritime States regarding title to such vessels. Moreover, it would permit coastal State recovery of such vessels located in internal waters and the territorial sea without the consent of flag States or even an obligation to notify them. It also places objectionable new restrictions on existing rights of flag States and creates new coastal State rights regarding such vessels located seaward of 24 miles in the exclusive economic zone and on the continental shelf. 22 The Convention contains other problematic provisions 23 that could have been considered for ratification as part of an otherwise broadly acceptable package. But these provisions are overshadowed by jurisdictional and warship provisions. As the Convention’s jurisdictional reach and obligations fully extend to a state’s territorial sea, contiguous zone, 200 mile economic zone and continental shelf, as well as to controlling the activities of its nationals and flag vessels world wide, it is likely to be some time before many countries will be capable of implementing it in full. Indeed, as previously noted, most countries have not been willing or able to exert jurisdiction over UCH within the 24 miles they already have under UNCLOS. 498


Parenthetically, it is noteworthy that the leaders of the Group of 77 that insisted on such impractical 200 - mile jurisdiction were primarily the same Latin American countries that had advocated, but failed to achieve, general regulatory authority over all activities within 200 miles during the UNCLOS negotiations. This led many countries at UNESCO to question whether such extended jurisdiction over underwater cultural heritage was more important politically – as another bite at the “jurisdictional apple” – rather than a practical tool necessary to protect UCH. The Convention will enter into force after 20 countries have indicated their consent to be bound by depositing instruments of accession, adherence, acceptance or ratification. Thus far, only three — Panama, Bulgaria, and recently Croatia — have done so. It is ironic that none of the States that insisted on new coastal State regulatory authority over UCH beyond 24 nautical miles have ratified thus far. At least for some, it appears that the Convention did not provide ENOUGH coastal State authority over such UCH. The attached newspaper article 24 appears to indicate that UNESCO officials recently attempted to convince Colombia to ratify on the basis that several of the Convention’s key obligations and restrictions were not, in fact, legally binding – creating what we understand is a storm of anger and confusion in Latin America, thus further clouding the prospects for entry into force. It is possible that the Convention created the “perfect storm” of competing legal and policy interests that may ultimately be acceptable to few states. However, even when the Convention does enter into force, it remains to be seen whether it will result in a significant improvement in the protection of underwater cultural heritage. Ultimately, the Convention will not be effective unless it is broadly ratified and implemented throughout the international community, including by countries in which the most advanced undersea technology resides and whose nationals are most active in regard to underwater cultural heritage. In that respect, it is important to note that several countries with such technology including France, Germany, the Netherlands, Norway, Russia, Sweden and the United Kingdom either voted against adoption or abstained from voting. The United States was not a member of UNESCO at the time, and therefore had no vote in the proceedings. However, the U.S. delegation made a clear statement opposing adoption. The main points of objection were on jurisdictional framework and treatment of warships and State vessels. 25 499

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If these and other key countries remain outside the UNESCO regime because of the expansive jurisdictional and warship provisions, the Rules and other positive provisions of the Convention are likely to have a substantially limited impact on the protection of underwater cultural heritage. As Ambassador Sichan Siv, United States Representative on the UN Economic and Social Council told the UN General Assembly on November 27, 2001, “…as a matter of international law, the UNESCO Convention, if it enters into force, will apply only among Parties to it and cannot be considered in resolving any conflicts involving non-Parties or their vessels.” OUTLOOK Looking to the future, the United States will continue to protect underwater cultural heritage through small multilateral agreements regarding important wrecks such as the RMS Titanic, 26 through bilateral agreements such as the one completed last year with France regarding the explorer La Salle’s ship La Belle, 27 and through domestic legislation. In regard to the Titanic agreement, which requires two signers to become effective, the United Kingdom signed in 2003 and the United States signed last year, subject to the enactment of implementing legislation. That legislation is well along. France and Canada are also considering implementing legislation. The Titanic agreement incorporates strong management rules similar to those in the UNESCO Convention, and La Belle is also being conserved and curated in accordance with current archaeological standards. Hopefully, other countries also will build such rules into their contracts and management programs. In that regard, we should note that a United States company is currently working with the United Kingdom to recover an important historic naval vessel, the HMS Sussex, which sank in the Mediterranean in 1694. This is a unique public/private enterprise in which the company has agreed to adhere to current archaeological standards similar to those in the UNESCO Convention, which will be overseen by HMG authorities. The United States enacted another important piece of UCH legislation last year. Called the Sunken Military Craft Act (SMCA) 28 , it clarifies that sunken military vessels and aircraft — both U.S. and foreign — located in U.S. waters that were entitled to sovereign immunity remain property of their flag States unless expressly abandoned; title is not lost through the passage of time. It eliminates the possibility that the law of finds can apply 500


to such vessels unless expressly abandoned, and makes clear that no salvage of such vessels can take place unless authorized by flag States. 29 The SMCA also encourages the U.S. to negotiate bilateral and multilateral agreements with foreign countries to provide reciprocal protection of such vessels, which is planned. CONCLUSION Ultimately much UCH will be discovered beyond the regulatory authority of any state regarding shipwrecks under international law. 30 Hopefully, if the political will exists, the provisions of the UNESCO Convention that were adopted without consensus can be renegotiated so that its Rules can be applied to a significantly broader range of underwater cultural heritage than is possible under unilaterally applied domestic laws and state practice.

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Notes 1

Although many have criticized the United States for not signing the UNESCO Convention, and for its purported permissiveness regarding commercial salvage of UCH, the U.S. has probably enacted more legislation to protect UCH than any other nation. See <www.cr.nps.gov/aad>. This link contains a chart that summarizes relevant U.S. historic preservation statutes and their geographic scope of application, and applicable international law (common laws of salvage and finds) as applied by U.S. Courts to historic wrecks. 2 U.N. Convention on the Law of the Sea, 1982 (21 ILM 1263 (1982)); . 3 Arts. 2 and 7, ibid. 4 Arts. 303(2) and 33(1), ibid. 5 The International Law Commission, referring to the article of the 1958 Convention on the Continental Shelf providing that the “the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring and exploiting its natural resources,” stated “It is clearly understood that the rights in question do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil.” Report of the International Law Commission, ii U.N. GAOR Supp. (No. 9) at 42, U.N. Doc. A/3159 (1956). 6 See the United Nations Convention on the Law of the Sea 1982: A Commentary, Volume 5, at 161 (Nordquist, ed.). 7 Art. 303(1), ibid. 8 Art. 149, ibid. 9 It should be noted that in the Central America case (974 F.2d at 468) the Judge asserted jurisdiction over a shipwreck in the exclusive economic zone and did add a criteria to the Blackwall list so as to give an additional reward to the salvor that recovered the wreck in a manner that preserved archaeological and historical information and value. 10 CLT– 96/CONF.202/5. 11 DOALOS assisted UNESCO with the first draft and was listed originally as a cosponsor. However, after the first negotiating session, DOALOS withdrew as a co-sponsor upon recognition that the jurisdictional provisions of the draft differed substantially from the regime set forth in UNCLOS, that they were not necessarily consistent with UNCLOS, and that drafting such provisions had not been authorized by UNCLOS States Parties. At the second UNESCO negotiating session, DOALOS made a statement noting that it did not endorse the original draft Convention and that its drafting assistance should not be construed as meaning that it was, indeed, consistent with UNCLOS. 12 See Oxman, supra, (note XIII). Where the issue of coastal State rights versus high seas freedoms was thought to require additional future development, this was specifically stated (e.g. see article 64 regarding highly migratory species). This was not the case regarding UCH. Thus, new direct coastal State jurisdiction over UCH beyond 24 miles, was seen as “creeping jurisdiction” clearly contrary to overall conceptual jurisdictional balance, either as established or anticipated by UNCLOS, whether or not it affected other rights, duties or activities. Such new jurisdiction, would, in that view, create an adverse 502

International Protection of Underwater Cultural Heritage precedent that might lead to further assertions of coastal State competence in regard to other maritime activities. While it is true that UNCLOS article 311 permits states to conclude agreements modifying or suspending UNCLOS provisions, such provisions must be applicable solely between those states, cannot contain provisions that would be inconsistent with the object and purpose of UNCLOS, and cannot affect the rights and duties of other States under UNCLOS. The U.S. and other maritime States’ view was that new coastal State jurisdiction over UCH beyond 24 miles would be inconsistent with the UNCLOS jurisdictional scheme and its previously described conceptual underpinnings – the most basic object and purpose of UNCLOS. Moreover, during the negotiations, certain States made clear that they did intend to apply the Convention to non-parties. 13 See B. Oxman, Marine Archaeology and International Law, Volume 12, ColumbiaVLA Journal of Law and the Arts, at 369-370. 14 Article 236, ibid. 15 . 16 It should be noted that while some commercial salvors acting pursuant to Admiralty awards have not acted to preserve important archaeological and historical information, others have done so, and others have expressed a willingness to abide by binding obligations set forth in the Convention’s Rules. For example, during the negotiations the U.S. delegation pointed to the methods of collection, recording and curation methods that RMS Titanic Inc. had utilized regarding thousands of artifacts recovered prior to a hostile company takeover (information about the company’s activities and methods after the take over was not available), which were lauded by many professional archaeologists. The company President at the time, the late George Tullock, strongly supported such obligations in the UNESCO Convention as well as in the Titanic Agreement the United States was negotiated with the United Kingdom, France and Canada, in 2000 (see note xxvi). 17 The United States presented an ambassadorial demarche to the UNESCO Director General informing him that the draft was not ready for adoption and that it likely would not command broad support, especially from the states where the most advanced maritime recovery technology resides, the states most necessary for the convention to provide meaningful protection for UCH. The United States was not a member of UNESCO at that time, but several maritime States that were also influential members of UNESCO presented a similar high-level demarche to the DG urging more time for negotiations and his personal involvement. Those pleas were rejected. 18 Convention on the Protection of Underwater Cultural Heritage as presented to and adopted by the 31st General Conference of UNESCO (Document 31 C/24) in six language versions: Arabic: Chinese:

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Robert C. Blumberg English: French: Russian: Spanish: 19

Rules 1, 2, and 34 provide that certain activities related to UCH that may have commercial aspects may be authorized provided that they are otherwise consistent with protection and management of the UCH as set forth in the Rules. Rule 2 states a general rule that UCH shall not be traded, sold, bought or bartered as commercial goods. However, two important clarifications were added: one ensures that this general rule does not prevent the provision of professional archaeological services or necessary services incidental thereto (e.g., commercial salvage services), subject to the authorization of the competent authorities. The other ensures that this general rule does not prevent the disposition of UCH recovered in the course of research projects in accordance with the Convention, so long as disposition does not prejudice scientific integrity or result in irretrievable dispersal. Disposition must also be in accordance with Rule 34 (which deals with curation), again subject to authorization of competent authorities. Rules 34 and 35 in particular provide that the project archive (which includes all artifacts and supporting documentation) must be kept together and intact as a collection to the extent possible, and managed according to international professional standards, subject to the authorization of the competent authorities. These rules also provide for the disposition of recovered underwater cultural heritage in accordance with professional standards, thereby ensuring that existing museum practices such as the acquisition or purchase of entire collections and the deaccession of items under certain conditions are not prevented. 20 Article 4 of the Convention bars the application of the laws of salvage or the law of finds to activities relating to UCH except where such application is fully consistent with the Convention and ensures that recovery of UCH achieves its maximum protection. Thus, the laws of salvage and finds as administered by U.S. courts sitting in Admiralty would effectively be amended to ensure that commercial incentives no longer predominate and must be balanced against the provisions of the Convention and Rules. 21 The following provisions in the Convention create new jurisdictional competence over UCH that is not provided in UNCLOS:

— Prior notification. Article 9(1)(b)(i) requires a flag State to give direct prior notification to a coastal State of any activity to be directed at UCH in its exclusive economic zone or on its continental shelf. Such a requirement, without 504

International Protection of Underwater Cultural Heritage regard to whether a coastal State's sovereign rights in these maritime zones are implicated, creates a new coastal State right. (The United States had been prepared to consider a limited notification requirement for the purpose of determining whether such activities adversely impacted a coastal States rights as set forth in UNCLOS, but this was rejected).

— Coastal State role as “Coordinating State”. Article 10 creates a regime that in effect requires the consent of the coastal State (acting as a ‘‘coordinating State”) before any activity directed at UCH takes place in its exclusive economic zone or on its continental shelf. Such a consent requirement, again without regard to whether the coastal State's sovereign rights in these maritime zones are implicated, is a new coastal State right. The right of the coastal State, acting as the “coordinating State,” to take unspecified and apparently unlimited protection measures (“all practical measures”) to prevent immediate danger (including danger of looting) to UCH located in its exclusive economic zone or on its continental shelf, is also a new right. Of particular concern is the fact that the coastal State may take such protection prior to consultations with the other States on whose behalf it is intended to be coordinating. Moreover, the allowed protection measures are expressly not limited to dangers caused by “activities directed at UCH” but rather are extended to any danger “whether arising from human activities or any other cause.” As a result, this emergency protection scheme could be applied to restrict even activities incidentally affecting UCH, including activities such as the laying of cables and pipelines that are specifically protected under UNCLOS.

— Relationship of the Convention to UNCLOS. Article 3 includes language on the relationship of the UCH Convention to UNCLOS that is different than that contained in the United Nations Straddling Stocks Agreement. Additional language (insisted on by the G-77) blurs the argument that the UCH agreement must be applied subject to the provisions of UNCLOS, and as a result, is inadequate to resolve the concerns over jurisdiction and other ambiguities. x

The following provisions are ambiguous as to their meaning or as to their possible application to non-Parties: — Reporting. Article 9(1)(b)(ii) contains an ambiguous reporting provision that could be read to allow a coastal State to require foreign flag ships to report directly to it before undertaking any activities directed at underwater cultural heritage in its EEZ and on its continental shelf. Read as a right to require such reporting would create a new coastal State competency not provided for in UNCLOS. While this provision could also be read as an obligation on flag States in regard to its own nationals and flag vessels, other delegations rejected a United States proposal that would have made this interpretation clear, arguing that ambiguity on this issue was “constructive”. Moreover, some in the G-77 505

Robert C. Blumberg (Argentina and Egypt) stated that they intended to interpret and implement this provision as a new coastal State right.

— Reference to “sovereign rights or jurisdiction.” Article 10(2) purports to restate the rights that states already have over the protection of natural resources. The provision is problematic to the extent the ambiguities inherent in the text can be read to expand (or contract) pre-existing rights under UNCLOS. During the discussion of this issue, delegations claimed to agree that the intention of this language was to avoid prejudicing the existing sovereign rights and jurisdiction set out in UNCLOS regarding, e.g., the sovereign rights set out in Parts V and VI. However, they rejected U.S. suggestions that this provision reflect that intention precisely (i.e., provide that articles 10 and 11 were without prejudice to existing sovereign rights and jurisdiction provided in international law as set forth in UNCLOS, in order to avoid the difficulties and ambiguities that result from any effort to restate pre-existing rights without changing them).

— Potential Impact on Non-Parties: Two Articles are written in a way that could be read to permit regulation of the activities of non-Parties or their vessels on the high seas. Article 10 (EEZ and continental shelf) and Article 12 (the Area) provide that “no authorization shall be granted” for activities directed at UCH except in accordance with those articles. That language contrasts with other provisions in the text, which clearly only permit the regulation of the activities of Parties (e.g., “No State Party shall ...”). 22

The provisions of the Convention in regard to state vessels (primarily warships) and aircraft are inconsistent with international law and practice, under which, inter alia, flag States retain title to such vessels unless expressly abandoned and must consent before they can be the subject of recovery. The text places objectionable new restrictions on existing rights of flag States and creates new coastal State rights regarding such vessels. Specifically:

— Internal Waters. The Convention is completely silent with regard to state vessels found in internal waters, where many state vessels and aircraft are located. Thus, the coastal States have no obligation to notify flag States of discoveries of such vessels and aircraft or to cooperate with them on their protection. The absence of any such provisions, taken together with the provisions for the other maritime zones, creates a negative implication that flag States have no rights at all over their vessels in these areas. — Territorial Sea and Archipelagic Waters. The Convention contains only hortatory language that coastal States “should inform the flag State” of discoveries of state vessels in the territorial sea and archipelagic waters, “with a view to cooperating on the best methods of …protection.” However, no 506

International Protection of Underwater Cultural Heritage language in the text would obligate coastal States to do either. The text does not even address the role of flag States in the protection or recovery of their vessels. — Exclusive Economic Zone or Continental Shelf. Flag State agreement is required to conduct activities directed at state vessels located in the EEZ or on the continental shelf. But the requirement of such agreement is subject to the broad discretionary authority of a coastal State, acting as the “coordinating State,” to take unilateral measures without consultation with the flag State or its agreement. In addition, recovery or protective measures by the flag State are subject to a new requirement of collaboration with the coastal State (as Coordinating State). This requirement could prevent legitimate activities of a flag State in regard to its identifiable state vessels and aircraft. The requirement to collaborate with the coastal State regarding state vessels in the EEZ is an extension of a coastal State right regarding UCH generally that is limited to the territorial sea and contiguous zone under UNCLOS. These provisions are in contrast to the one governing activities directed at UCH in the Area, which clearly states that no State Party shall authorize activities directed at state vessels or aircraft in the Area without the consent of the flag State. 23

Other problematic provisions for the U.S. include an overly broad definition of underwater cultural heritage, which, coupled with the lack of a provision permitting management based on the archaeological or historical significance of the object, could make it make it difficult to comply fully with the management requirements of thousands of archaeologically insignificant objects (old tires, discarded packing crates etc.) that would fall under the Convention’s purview. 24

El Tiempo – Colombia November 30, 2004

realizó en Bogotá esta semana, también ilustró a los representantes de países asistentes sobre cómo ratificar la convención. Martín García / EL TIEMPO 507

Robert C. Blumberg ENCUENTRO / SEMINARIO SOBRE PATRIMONIO CULTURAL Unesco propone colaboración en patrimonio sumergido Varios expertos en el tema del patrimonio subacuático visitaron Colombia para explicar por qué debería suscribirse un tratado internacional que regularía el tratamiento de los naufragios. La Convención de la Unesco sobre la Protección del Patrimonio Cultural Subacuático fue el tema central del Seminario organizado por el Ministerio de Cultura esta semana, en Bogotá. Uno de los expertos invitados fue Guido Carducci, jefe de sección de normas legales de patrimonio de la oficina de comunicación e información para América Latina y el Caribe, de la Unesco. Carducci vino a promover las ventajas de firmar la convención, sobre todo para los países costeros (aquellos en cuyas aguas se encuentran elementos de valor histórico y cultural como naufragios coloniales) si firman el tratado internacional. La Convención está lista desde el 2001 para ser ratificada por los diferentes países y solo han firmado Bulgaria y Panamá. El tratado distingue dos categorías de estados partes a la hora de hallar un antiguo naufragio. Los costeros y los países del pabellón. En caso de un galeón colonial hundido en aguas colombianas, el país costero sería Colombia y el país del pabellón sería España. Uno de los puntos de la convención establece que en caso de un hallazgo de esta naturaleza el país costero debería informar al país del pabellón sobre este. En el seminario, Carducci resaltó que las ventajas que tendrán los estados que firmen: cooperación y ayuda mutua para garantizar la protección del patrimonio cultural subacuático, la posibilidad de compartir información sobre el mismo, la de tomar medidas para sensibilizar al público del valor de este patrimonio, cooperar para impartir información sobre arqueología subacuática y técnicas de preservación, participar en actividades de la Unesco relacionadas con la aplicación de la convención. Por último, la posibilidad de beneficiarse de la asistencia técnica que la Unesco pueda prestarles, a fin de elaborar legislaciones nacionales relativas a la aplicación de la Convención. Sobre este tema Carducci habló con EL TIEMPO. ¿Cuáles son las ventajas de los países bandera, como España, a la hora de aplicar este tratado? Las ventajas de los países bandera son, que a través de esta convención, deben cooperar en una base sólida con los estados costeros.

508

International Protection of Underwater Cultural Heritage ¿Pero qué ganan ellos en esa cooperación? De acuerdo con la convención, todos los países adquieren reglas claras para operar. Si ustedes no firman la convención entonces no podrán contar con esas reglas de juego claras. La convención habla de que debería informarse un hallazgo al país bandera. ¿Por qué se debería informar el hallazgo de un galeón que está en nuestra propia casa? Decir que es tuyo no es tan simple. Sería olvidar la historia. No puedes decir que es tuyo si lo encontraste en tus aguas, porque tienes que recordar la historia, porque el barco era de España, porque había españoles dentro del barco, entonces no puedes decir que el galeón es colombiano. ¿Cómo se concilia eso con la Constitución Colombiana que dice que el patrimonio cultural subacuático es de la nación? Esa pregunta es para hacérsela a un abogado de su gobierno. Yo no vengo a comentar su constitución. No es mi trabajo. Si Colombia ratifica la convención y encontramos un galeón, ¿cuál es el paso a seguir? Depende en qué zona lo encuentre. Si lo encuentra en el mar territorial (de 0 a 12 millas), aplique el artículo 7; para la zona contigua, el artículo 8; para la zona económica exclusiva y plataforma continental, artículos 9 y 10. Todas las convenciones internacionales son el compromiso de intereses diferentes. Hay categorías de estados costeros y estados de pabellón. Esta convención resulta de una negociación. Es un compromiso que no puede satisfacer 100 por ciento a todos los estados costeros y a todos los estados del pabellón. Esto es un punto medio. ¿Si hay un hallazgo estaríamos obligados a informar al país bandera? No exactamente, dice: “Los estados parte ‘deberían’.” La palabra ‘deberían’ es condicional, equivalente a ‘should’, en inglés. ¿Deberíamos contar con esos otros países a la hora de explorar, preservar o explotar ese patrimonio? Eso es solo para información, para cooperar sobre los mejores métodos de protección de los buques del estado. Debería informarse al estado del pabellón y a otros estados con vínculo verificable sobre el descubrimiento de las cosas. 509

Robert C. Blumberg ¿Quiere decir que ningún estado bandera puede decir que el hallazgo es suyo por haber llevado su bandera? El principio es que, en el mar territorial, el estado costero tiene el derecho exclusivo de reglamentar y adelantar actividades dirigidas al patrimonio cultural sumergido. LILIANA MARTÍNEZ POLO Redactora de EL TIEMPO El caso de Panamá Para entrar en vigencia, la convención de la Unesco debe de ser ratificada por un mínimo de 20 países. Panamá ya la firmó. Según contó el experto Carlos Fitzgerald, en su país, el texto de la convención de la Unesco se incorporó a la legislación nacional y tiene carácter de ley. Fitzgerald explicó que esta convención causa controversia porque “pone el dedo en la llaga de muchas empresas piratas que quieren usar el patrimonio para su beneficio y de gobiernos que sienten que al involucrar lo subacuático al contexto de multilateralidad pierden soberanía.” Como arqueólogo, Fitzgerald opina que todo lo que está en un sitio arqueológico es patrimonio y no debería ser objeto de repartición ni ser cedido a particulares. “Repartir un porcentaje de bienes que están repetidos y decir que el resto es patrimonio sería un contrasentido. En cuanto a lo de los países bandera, la gente tiende a creer que informar de los hallazgos es perder soberanía. Pero hay que tener en cuenta que aquí prima la intención de preservar el patrimonio. Mientras más información, más transparencia.” 25

<www.state.gov/documents/organization/16676.pdf> Titanic Agreement; 27 La Belle Agreement done in Washington, DC, March 31, 2003; 2003 UST. LEXIS 21; 28 Public Law Number 108-375 29 Several European States have notified the U.S. State Department of their laws and policies in regard to the abandonment and salvage of state vessels. These laws and policies, which are substantively the same as the position these states collectively espoused for inclusion in the UNESCO Convention, are published in the Federal Register (69 FR 5647- 5648 (February 5, 2004)). Published in the same Federal Register Notice is a statement by President William Clinton setting forth U.S. policy regarding state vessels. 30 Professor Dromgoole stated in her paper entitled “Legal Protection for Underwater Cultural Heritage beyond Territorial Limits: Interim Measures” published in these proceedings that four states have enacted unilateral legislation that purportedly claim general regulatory competence regarding underwater cultural heritage located seaward of 26

510

International Protection of Underwater Cultural Heritage 24 nautical miles. Professor Dromgoole states that these laws, if not formally opposed, could become part of customary international law. This is not the case in our view. Customary international law regarding underwater cultural heritage is set forth in UNCLOS as described above, and any jurisdictional claims exceeding that competence are invalid and will not be recognized. The same applies to laws purporting to implement the UNESCO Convention to the extent the Convention or those laws exceed the jurisdiction set forth in UNCLOS.

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CLOSING REMARKS ____________________

Closing Remarks John Norton Moore

Professor Kuen-chen Fu and distinguished participants: As we close this conference on “Recent Developments in the Law of the Sea and China,” it would be hubris for me to even try to summarize the worldclass presentations we have heard. I have, however, two observations from the presentations. First, it is evident that there is a strong shared commitment to the rule of law in the world’s oceans as embodied in the 1982 United Nations Convention. While there may be some difference in interpretations about the Convention, there is a shared commitment to the Convention as the governing law of the sea. Second, it is evident that there is a strong shared commitment to cooperative solutions to transboundary and common oceans problems. We saw that consensus reflected over a range of functional law of the sea issues, from fisheries, through oil and gas development, combating terrorism and the spread of weapons of mass destruction, enforcement issues, and the protection of underwater cultural heritage. On each it is understood that we share a common interest in cooperative solutions, shared provisional development pending agreement, and third-party dispute resolution. The consensus on these two principles — commitment to the United Nations Convention as governing law of the oceans, and commitment to cooperative solutions to transboundary and common oceans problems — are indeed reassuring and hold great promise for the future of oceans issues. It is certainly a legacy to build on! Thanks to our distinguished panelists, to the students of Xiamen University, and to Myron Nordquist, who, as always, led the effort of the Oceans Center in sponsoring this conference. Thanks also to Donna D. Ganoe, executive administrator of the Oceans Center, who brings her administrative genius. Above all, thanks to Professor Kuen-chen Fu, who was the catalyst for the conference. It is he who is responsible for the consistent administrative efficiency, bringing together the many

Professor of Law and Director, Center for Oceans Law and Policy, University of Virginia School of Law. 515

John Norton Moore

distinguished participants in this Conference, and the wonderful meals and cultural opportunities provided at this most important meeting.

516

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