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The Territorial Temptation: A Siren Song at Sea

Published online by Cambridge University Press:  27 February 2017

Extract

La mer a toujours ete battue par deux grands vents contraires: le vent du large, qui souffle vers la terre, est celui de la liberri; le vent de la terre vers le large est porteur des souverainetes. Le droit de la mer s'est toujours trouve au coeur de leurs affrontements.

The history of international law since the Peace of Westphalia is in significant measure an account of the territorial temptation. The bonds of family, clan, tribe, nation, and faith; the need to explore, to trade, and to migrate; the hope for broader cooperation to confront common challenges—all in time came to be subordinated in the international legal order to the insistent quest for supremacy of the territorial state. At least in theory. At least on land.

The sea yields a different story. It wasn't always so. And perhaps it isn't necessarily so. But in fact the law of the land and the law of the sea developed in very different ways. If the history of the international law of the land can be characterized by the progressive triumph of the territorial temptation, the history of the international law of the sea can be characterized by the obverse; namely, the progressive triumph of Grotius's thesis of mare liberum and its concomitant prohibition on claims of territorial sovereignty. That triumph reflected not only the transitory nature of human activity at sea, but a rational conclusion that the interests of states in unrestricted access to the rest of the world outweighed their interests in restricting the access of others at sea.

Type
Centennial Essays
Copyright
Copyright © American Society of International Law 2006

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References

1 The phrase borrows from the title of Jean-François Revel’s essay, La tentation totalitaire, published three decades before his death on April 30, 2006; that essay was first brought to the author’s attention during the negotiation of the United Nations Convention on the Law of the Sea by the late Jorge Castañeda y Alvarez de la Rosa, who went on to serve as Mexico’s foreign secretary from 1979 to 1982. It can be found in Jean François revel, Ni Marx Ni Jèsus; La Tentation Totalitaire; La Grâce De L’etat; Comment Les Démocraties Finissent (rev. ed. 1986). For the source of the epigraph to this essay by René-Jean, Dupuy, see La mer sous competence nationals in Traité Du Nouveau Droit De La Mer 219, 219 (René-Jean, Dupuy & Daniel, Vignes eds., 1985).Google Scholar

2 “[T]he concept of community interests,” including the freedom of the seas, “is pre-Grotian” and “appeared in the writings of Suárez and figured prominently in those of its true progenitor, the earlier Gentili.” Theodor, Meron, Common Rights of Mankind in Gentili, Grotius and Suárez, 85 AJIL 110, 113–14 (1991).Google Scholar With respect to the status of the sea as res communis in Roman law, see Percy, Thomas Fenn Jr., Justinian and the Freedom of the Sea, 19 AJIL 716 (1925).Google Scholar

3 See Steven, R. Ratner, Drawinga Better Line:Uti Possidetisandthe Borders of New States, 90 AJIL 590 (1996)Google Scholar; Steven, R. Ratner, Land Feuds and Their Solutions: Finding International Law Beyond the Tribunal Chamber, 100 AJIL 808 (2006)Google Scholar (a centennial essay appearing in this issue).

4 Many of these constraints apply to the conduct of the state at sea as well. To the extent that the sea is the object of the constraint, the matter is considered below.

5 See the centennial essay by Jose, E. Alvarez, International Organizations: Then and Now, 100 AJIL 324 (2006).Google Scholar

6 Articles of Agreement of the International Monetary Fund, July 22, 1944, 60 Stat. 1401, 2 UNTS 39; Articles of Agreement of die International Bank for Reconstruction and Development, July 22,1944,60 Stat. 1440,2 UNTS 134.

7 Convention on International Civil Aviation, Dec. 7,1944,61 Stat. 1180,15 UNTS 295 [hereinafter Chicago Convention].

8 General Agreement on Tariffs and Trade, Oct. 30, 1947, TIAS No. 1700, 55 UNTS 187.

9 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287.

10 Presidential Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 10 Fed. Reg. 12,303 (1945) [hereinafter Truman Proclamation].

11 The process, including new claims to the waters of the high seas, was already discerned in 1948. See Richard, Young, Recent Developments with Respect to the Continental Shelf, 42 AJIL 849 (1948).Google Scholar The equanimity with which the possibility of stimulating a cascade of claims to the high seas was contemplated at the time of the Truman Proclamation is notable. See Edwin, Borchard, Resources of the Continental Shelf 40 AJIL 53, 55 (1946)Google Scholar (expressing, in passing, “certain apprehensions” that” [s] ince the United States claims these rights for itself, it cannot object to similar or possibly greater encroachment on the high seas by other nations”). The effect in this hemisphere over the ensuing decades is traced in Garcia-Amador, F. V., The Latin American Contribution to the Development of the Law of the Sea, 68 AJIL 33 (1974).CrossRefGoogle Scholar

12 Some apologists argued that high seas law did not apply to the seabed and subsoil in 1945, as its resources remained to be developed. Leaving aside the fact that at that time sailors dropped anchor, oysters yielded pearls, salvors raised wrecks, and cables linked continents, for purposes of the present analysis the most important response is that the claim of exclusive rights to the resources of the continental shelf was not consistent with the principle of the freedom of the seas. An ironic twist occurred some decades later when, in the face of a widespread view among developing countries that the high seas regime did not apply to the yet-to-be-exploited mineral resources of the seabed and subsoil beyond the continental shelf, the United States Congress expressly asserted that the regime of the high seas did apply to those resources. Deep Seabed Hard Mineral Resources Act, 30 U.S.C. §§l401(a)(12), 1402(a) (2000).

13 Restatement (Third) of The Foreign Relations Law of The United States §102 reporters’ note 2 (1987); see David, J. Bederman, Congress Enacts Increased Protections for Sunken Military Craft, 100 AJIL 649, 663 n.91 (2006).Google Scholar

14 For an assessment of the 1958 conference, see Arthur, H. Dean, The Geneva Conference on the Law of the Sea: What Was Accomplished, 52 AJIL 607 (1958).Google Scholar The Geneva Conference built on the codification effort of 1930. See Jesse, S. Reeves, The Codification of the Law of Territorial Waters, 24 AJIL 486 (1930).Google Scholar

15 Convention on the High Seas, Art. 1, Apr. 29, 1958, 13 UST 2312, 450 UNTS 82.

16 “Diplomatists seldom or never question it; professors occasionally do.” Thomas, Baty, The Three-Mile Limit, 22 AJIL 503, 503 (1928).Google Scholar A notable professor who soon did was Gilbert Gidel in volume III oi Le droit international publiquedela mer, pp. 62–152 (1934). (Gidel dedicated volume III to James Brown Scott, thisjournal’s first editor in chief, an interesting indication of the “impressively cosmopolitan backgrounds” of the Journal’s American creators noted at the start of this centennial series. Lori Fisler, Damrosch, The “American” and the “International” in the American Journal of International Law, 100 AJIL 2, 2 (2006).Google Scholar)

17 This failure was repeated at the Second Conference on the Law of the Sea, called in 1960 for that specific purpose. See Arthur, H. Dean, The Second Geneva Conference on the Law of the Sea: The Fight for Freedom of the Seas, 54 AJIL 751 (1960).Google Scholar

18 Convention on the Continental Shelf, Apr. 29, 1958, 15 UST 471,499 UNTS 311. Article 1 of the Convention provides that the term “continental shelf” refers “to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where die depth of the superjacent waters admits of the exploitation of the natural resources of the said areas.” It has been called “one of the most disastrous clauses ever inserted in a treaty of vital importance to mankind.” Wolfgang, Friedmann, Selden Redivivus—Towards a Partition ofthe Seas! 65 AJIL 757, 759 (1971).Google Scholar Its history was traced by this author in The Preparation of Article One of the Convention on the Continental Shelf 3 J. Maritime L. & Com. 245, 445 (1972).

19 It has been asserted that the 200-mile claims “found their origin in the concerns of a weak whaling industry to protect its exclusive access to a resource.” Ann, L. Hollick, The Origins of 200-Mile Offshore Zones, 71 AJIL 494, 500 (1977).Google Scholar

20 On October 11,1946, Argentina claimed not only the seabed and subsoil of the continental shelf but the waters above, styled the epicontinental sea. Chile made a 200-mile claim on June 23, 1947, that was emulated in weeks; it then joined with Ecuador and Peru in the Santiago Declaration of August 18, 1952, to proclaim “soberania y jurisdiccion exclusivas” extending to “una distancia minima de 200 milks marinas” from their respective coasts. For the declaration, see Laws and Regulations on the Regime of the Territorial Sea, UN Doc. ST/LEG/SER.B/6, at 723 (1956). The fact that these claims were largely ignored by the International Law Commission contributed to the successful proposal by Latin American states a decade or so later to entrust preparations for the Third UN Conference on the Law of the Sea to a committee of the UN General Assembly rather than the Commission.

21 Although widely mentioned in this context, conservation is not listed here as a separate independent factor because the primary motivation for extension of jurisdiction over living resources, at least at the time it occurred, was economic: protection of local fishing industries from foreign competition and perhaps collection of economic rent. Conservation, of course, was, and remains, essential to sustained realization of both goals.

22 For example, the allocation of ocean resources resulting from extended coastal state jurisdiction cannot be squared with the rhetoric of distributive justice that infused some of the debate on the subject. Landlocked countries, most of which are not prosperous, get no allocation. As among coastal states, both area and, more important, resources are very unevenly distributed.

23 But some might. It may be of interest to note that the International Law Commission’s commentary explicitly identifies the seabed and subsoil of the Persian Gulf as coming within its definition of the continental shelf. Report of the International Law Commission Covering the Work of Its Eighth Session, [1956] 2 Y.B. Int’l L. Comm’n, Art. 67 Commentary, para. 7, at 253, UN Doc. A/CN.4/SER.A/1956/Add.l (1956).

24 One might also consider that taxation of income from oil and gas development, including depletion allowances, foreign tax credits, and other tax relief, was itself rooted in such a system.

25 Notwithstanding Georges Scelle’s skepticism regarding the doctrine of the continental shelf, the question of alternatives seems to have been excluded from the outset in the International Law Commission and elsewhere. See Herbert, W. Briggs, Jurisdiction over the Sea Bed and Subsoil Beyond Territorial Waters, 45 AJIL 338 (1951)Google Scholar; Richard, Young, The International Law Commission and the Continental Shelf, 46 AJIL 123, 125 (1952)Google Scholar (“While no doubt there was some truth in M. Scelle’s animadversions upon the doctrine as a hazardous new departure, it does not appear that M. Scelle had any satisfactory alternative to propose . . .”). Alternatives were elaborated years later with respect to the seabed beyond the continental shelf. See United Nations Convention on the Law of the Sea, opened for signature Dec. 10,1982, Art. 153(6), Annex III, Arts. 3(4), 16,1833 UNTS 397 [hereinafter LOS Convention]; Deep Seabed Hard Mineral Resources Act, supra note 12; Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea Bed, Sept. 2, 1982,1871 UNTS 275; Provisional Understanding Regarding Deep Seabed Matters, with Memorandum of Implementation, Joint Record, and Related Exchanges of Notes, Aug. 3, 1984, TIAS No. 11,066. But the policy with respect to hydrocarbons remained the same: one of the effects of placing all of the continental margin’s natural resources under coastal state jurisdiction was to exclude hydrocarbons from the international seabed “Area” open to all states and subject to regulation by the International Seabed Authority. See LOS Convention, supra, Arts. 1(1), 76, 134. The oil industry was an early advocate of that result. See Luke, W. Finlay, The Outer Limit of the Continental Shelf. A Rejoinder to Professor Louis Henkin, 64 AJIL 42 (1970).Google Scholar

26 See Truman Proclamation, supra note 10, pmbl. (stating that “self-protection compels the coastal nation to keep close watch over activities off its shores which are of their nature necessary for utilization of these resources”).

27 A contemporaneous account of the work of the Third United Nations Conference on the Law of the Sea by John R. Stevenson and this author in 1974 and 1975, and thereafter by this author, can be found at 68 AJIL 1 (1974), 69 AJIL 1 (1975), 69 AJIL 763, 71 AJIL 247 (1977), 72 AJIL 57 (1978), 73 AJIL 1 (1979), 74 AJIL 1 (1980), 75 AJIL 211 (1981), and 76 AJIL 1 (1982).

28 LOS Convention, supra note 25, Arts. 2–11, 13–14, 16, 47–50. A minor exception to the 12-mile limit is that roadsteads “which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.” Id., Art. 12. With respect to baselines, see infra note 39.

29 Apart from the fact that certain associated states may become “States Parties” to the Convention, special arrangements may be made with respect to dependent territories regarding the exercise of certain coastal state rights. Id., Arts. 1 (2)(2), 305(1); Third UN Conference on the Law of the Sea, Resolution III, in United Nations, The Law of the Sea: United Nations Convention on the Law of the Sea at 204, UN Sales No. E.97.V. 10 (1997)Google Scholar; Thomas, M. Franck, Control of Sea Resources by Semi-Autonomous States: Prevailing Legal Relationships Between Metropolitan Governments and their Overseas Commonwealths, Associated States, and Self-Governing Dependencies (1978).Google Scholar

30 LOS Convention, supra note 25, Art. 33 (contiguous zone). For an early discussion of the idea of a contiguous zone of up to four leagues (12 miles) from the baseline, see Editorial Comment, International Law Involved in the Seizure of the Tatsu Maru, 2 AJIL 391 (1908).

31 LOS Convention, supra note 25, Arts. 56-75, 208, 210, 211(5) & (6), 214, 216, 220, 246–53, 258. The rights of the coastal state in the exclusive economic zone that relate to the seabed and subsoil are exercised in accordance with the provisions regarding the continental shelf. Id., Art. 56(3).

32 Id., Arts. 76-81,142,208,210,214,216,246-53,258. The rules concerning the determination of the outer limit of the continental shelf where it extends beyond 200 miles are complex, and engage review by an expert Commission on the Limits of the Continental Shelf established by the Convention. Id., An. 76, Annex II. See text at notes 47–48 infra. For an attempt by this author to explain and diagram Article 76, see The Third United Nations Conference on the Law of the Sea: The Ninth Session, 75 AJIL 211, 227–31 (1981).

33 LOS Convention, supra note 25, Arts. 8(2), 17-32, 45, 211 (4), 220, 223-27, 230–33.

34 Id., Arts. 34–44, 233; see Mugo, Caminos, The Legal Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, 205 Recueil Des Cours 9, 123 (1987 V)Google Scholar; John Norton, Moore, The Regime of Straits and the Third United Nations Conference on the Law of the Sea, 74 AJIL 77 (1980)Google Scholar; Nandan, S. N. & Anderson, D. H., Straits Used for International Navigation: A Commentary on Part HI of the U.N. Convention on the Law of the Sea 1982, 1989 Brit. Y.B. Int’l L. 159.Google Scholar

35 LOS Convention, supra note 25, Arts. 52–54.

36 Compare Article 1 of the 1958 High Seas Convention, quoted in text at note 15 supra.

37 LOS Convention, supra note 25, Arts. 58(1), 87(1); see id, Arts. 136, 141.

38 Id, Arts. 58(2), 86.

39 Fisheries (UK v. Nor.), 1951 ICJ REP. 116 (Dec. 18); Convention on the Territorial Sea and the Contiguous Zone, Art. 4, Apr. 29, 1958, 15 UST 1606, 516 UNTS 205; LOS Convention, supra note 25, Art. 7; see Jens, Evensen, The Anglo-Norwegian Fisheries Case and Its Legal Consequences, 46 AJIL 609 (1952).Google Scholar The underlying idea has now been extended in a different way to vast “archipelagic waters” of independent island states, but with some, albeit quite liberal, mathematical discipline. See LOS Convention, supra, Arts. 46–54.

40 See W. Michael, Reisman & Gayl, S. Westerman, Straight Baselines in International Boundary Delimitation (1992)Google Scholar; J. Ashley, Roach & Robert, W. Smith, United States Responses to Excessive Maritime Claims (2d ed. 1996).Google Scholar

41 The M/V “Saiga”(No. 2) (St. Vincent v. Guinea) (ITLOS July 1, 1999), 38 ILM 1323 (1999). This outcome is consistent with the advice given U.S. courts in connection with ambitious measures to control liquor smuggling, namely, that the courts “will undoubtedly take cognizance of. . . the intent that no jurisdiction should be asserted outside the limits authorized by international law.” Philip, C. Jessup, The Anti-Smuggling Act of 1935, 31 AJIL 101, 106 (1937).Google Scholar

42 Argentina: Law No. 23.968, Aug. 14,1991, Art. 5(3), [LI-C 1991] A.D.L.A. 2851; Canada: Coastal Fisheries Protection Act, as amended, R.S.C., ch. C 33 (1994), reprinted in 33 ILM 1383 (1994); Chile: Law No. 19.079, Sept. 6, 1991, Diario Oficial No. 34.962, at 1-9 (Sept. 1991); see Francisco Orrego, Vicuña, Toward an Effective Management of High Seas Fisheries and the Settlement of the Pending Issues of the Law of the Sea, 24 Ocean Dev. & Int’l L. 81 (1993)Google Scholar; Thomas, A. Clingan Jr., Mar Presencial (The Presential Sea): Deja Vu All Over Again?—A Response to Francisco Orrego Vicuña, id. At 93 Google Scholar; Frida Maria, Armas Pfirter, Straddling Stocks and Highly Migratory Stocks in Latin American Practice and Legislation, 260 Cean Dev. & Int’l L. 126 (1995).Google Scholar Simultaneously with its claim, Canada filed a related reservation to its acceptance of the jurisdiction of the International Court of Justice that was upheld in Fisheries Jurisdiction (Spain v. Can.), 1998 ICJ REP. 432 (Dec. 4).

43 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982, Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, 34 ILM 1542 (1995) [hereinafter Fish Stocks Agreement]. For a description of the negotiations and their outcome, see David, Balton, Strengthening the Law of the Sea: The New Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks, 27 Ocean Dev. & Int’l L. 125 (1996).Google Scholar

44 See, e.g., Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, June 16, 1994, S. Treaty Doc. NO. 103-27, at 7 (1994), 34 ILM 67 (1995); Canada-European Community: Agreed Minute on the Conservation and Management of Fish Stocks, Apr. 20, 1995, 34 ILM 1260 (1995); Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, Sept. 5, 2000, 40 ILM 278 (2001).

45 The conference held in May 2006 to review the operation of the 1995 Fish Stocks Agreement, supra note 43, made the following assessment:

The adoption and implementation of measures by a regional fisheries management organization for the long-term sustainability of straddling fish stocks and highly migratory fish stocks as well as efforts by States to address fisheries not regulated by a regional fisheries management organization are proceeding unevenly.

. . . The Food and Agriculture Organization of the United Nations (FAO) has indicated that about 30 per cent of the stocks of highly migratory tuna and tuna-like species, more than 50 per cent of the highly migratory oceanic sharks and nearly two thirds of the straddling fish stocks and the stocks of other high-seas fishery resources are overexploited or depleted.

Report of the Review Conference on the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, UN Doc.A/CONF.210/2006/15, annex, paras. 5,6, at 31–32 (2006) [hereinafter Review Conference Report].

46 A dispute between Chile and the European Community over swordfish has been submitted both to a chamber of the International Tribunal for the Law of the Sea under the LOS Convention and to arbitration under the W T O system; action on both submissions was suspended at the request of the parties pending a search for a negotiated solution.

47 See LOS Convention, supra note 25, Arts. 1(1)(1), 76(8), 134, & Annex II. In this regard, the influence of the territorial temptation is demonstrated by the Commission’s decision to permit coastal states with claims of sovereignty or sovereign rights in the immediate vicinity to comment on a submission, but its implicit distegard of the legal interests of all states in the integrity and limits of the international seabed area protected by the principle of the common heritage of mankind by ordering that the technical comments submitted by other states are not to be considered. This position casts an unnecessary cloud over the legitimacy of the carefully constructed system for permitting the coastal state to establish final and binding limits of the continental shelf beyond 200 miles. Its underlying infirmity soon became evident when Australia submitted limits for the continental shelf off that part of Antarctica claimed by Australia, and states from other regions complained that they did not recognize that claim. See Statement by the Chairman of the Commission on the Limits of the Continental Shelf [CLCS] on the Progress of Work in the Commission, 14th Sess., UN Doc. CLCS/42, paras. 16-17 (2004), available at <http://www.un.org/Depts/los/clcs_new/clcs_home.htm (about U.S. submission); CLCS, Outer Limits of the Continental Shelf Beyond 200 Nautical Miles from the Baselines: Submission by Brazil (Mar. 1, 2006), available at <http://www.un.org/Depts/los/clcs_new/submissions_files/submission_bra.htm (U.S. letters of Aug. 25 & Oct. 25,2004, on submission of May 17, 2004, made by Brazil); id., Submission by Australia (Jan. 30, 2006), available at <http://www.un.org/Depts/los/clcs_new/submissions_fiies/submission_aus.htm (reactions of states to submission of Nov. 15, 2004, made by Australia).

48 Report of the Sixteenth Meeting of States Parties to the LOS Convention, UN Doc. SPLOS/148, at 12–16 (2006); Decision on Issues Related to the Proposals by the Commission on the Limits of the Continental Shelf, UN Doc. SPLOS/144 (2006); Letter Dated 19 May 2006 from the Chairman of the Commission on the Limits of the Continental Shelf, UN Doc. SPLOS/140 (2006). These documents are available at <http://www.un.org/Depts/los/meeting_states_parties/meeting_states_parties.htm.

49 Another effect of a broad mileage limit is to invite attention to islands. If r = 200, then πr 2 = 125,664. See Jonathan, I. Charney, Rocks That Cannot Sustain Human Habitation, 93 AJIL 863 (1999).Google Scholar Maps illustrating the global and regional effects of extension of coastal state jurisdiction to 200 miles can be found at Sea Around Us Project, Countries’ EEZ (Jan. 2, 2006), <http://www.seaaroundus.org/eez/eez.aspx.

50 See LOS Convention, supra note 25, Art. 55. For comprehensive analysis of the EEZ, see Barbara, Kwiatkowska, The 200 Mile Exclusive Economic Zone in the New Law of the Sea (1989)Google Scholar; Francisco, Orrego Vicuña, The Exclusive Economic Zone: A Latin American Perspective (1984).Google Scholar For an analysis contemporaneous with negotiations at the Third UN Conference on the Law of the Sea, see Jean-Pierre, Quéneudec, La zone économique, 79 Revue Générale De Droit International Public 321 (1975).Google Scholar

51 See Chicago Convention, supra note 7, Arts. 1, 2, 3(c), 12. This kind of issue was in fact foreseen by the LOS Convention, which makes clear that the freedoms preserved in the EEZ are high seas freedoms. Article 58, paragraph 1 describes the specific freedoms expressly preserved in the EEZ, including the freedom of overflight, as “freedoms referred to in article 87.” Article 87 is the basic provision on the freedom of the high seas, which “comprises, inter alia, . . . freedom of overflight.” Moreover, Article 86, after indicating that the provisions of Part VII (High Seas) apply beyond the EEZ, goes on to state, “This article does nor entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58.”

52 See ICAO Secretariat, United Nations Convention on the Law of the Sea—Implications, If Any, for the Application of the Chicago Convention, Its Annexes and Other International Air Law Instruments, Attachment to State Letter LE4/41-84/33, para. 2.1 (1984), ICAO Doc. C-WP/7777 (1984), reproduced as LC/26–WP/5-1 (1987), reprinted in 1987 International Organizations and the Law of the Sea: Documentary Y.B. 243; Michael, Milde, The United Nations Convention on the Law of the Sea—Possible Implications for International Air Law, 8 Annals Air & Space L. 167 (1983).Google Scholar

53 Convention on the Protection of the Underwater Cultural Heritage, Arts. 9, 10, Nov. 2, 2001, 41 ILM 40 (2002), available at <http://www.unesco.org. The LOS Convention effectively accorded jurisdiction over marine archaeology to the coastal state in the 24-mile contiguous zone. LOS Convention, supra note 25, Art. 303(2); see Bederman, supra note 13. For more optimistic views of the UNESCO Convention, see Patrick, J. O’Keefe, Shipwrecked Heritage: A Commentary on the UNESCO Convention on underwater Cultural Heritage (2002)Google Scholar; Guido, Carducci, New Developments in the Law of the Sea: The UNESCO Convention on the Protection of Underwater Cultural Heritage, 96 AJIL 419 (2002).Google Scholar

54 Chapter VII of the UN Charter assumes that air, sea, or land forces acting pursuant to a Security Council decision under Article 41 or 42 would enjoy global access. That assumption is presumably based on the international law of the sea, in particular the freedoms of the high seas and concomitant passage rights through the territorial sea. It would be implausible to root the effectiveness of Chapter VII in either the general reference to mutual assistance in Article 49 or the specific reference to rights of passage in Article 43, which contemplates special agreements that have yet to be concluded. Absent global mobility guaranteed by the international law of the sea, conducting any significant collective security operations is hard to imagine.

Many collective self-defense arrangements, including the North Atlantic Treaty, contemplate the existence of the freedoms of the high seas and concomitant passage rights through the territorial sea. In light of the startling reference to straits in the European Commission’s Green Paper (EC Green Papers are issued for public comment), infra note 71 and text at note 90 infra, it might be recalled that the Mediterranean Sea is part of the North Atlantic Treaty area, that it was unquestionably contemplated that under international law naval and air forces from non-Mediterranean NATO members would have access to the Mediterranean Sea and enjoy high seas freedoms therein, and that the Treaty was concluded in 1949 and Spain was not admitted to NATO until 1982. Perhaps a lack of responsibility for defense and international security may have contributed to the apparent inattention to interests in global mobility in the commission’s paper.

55 This analysis is not directed as such to the law of armed conflict, although the rules of the law of the sea do affect that body of law. See J. Ashley, Roach, The Law of Naval Warfare at the Turn of Two Centuries, 94 AJIL 64 (2000).Google Scholar

56 For an analysis in that context, see Elliot, L. Richardson, Power, Mobility and the Law of the Sea, 58 Foreign Aff. 902 (1980).Google Scholar

57 See Michael, Byers, Policing the High Seas: The Proliferation Security Initiative, 98 AJIL 526 (2004)Google Scholar; Rtidiger, Wolfrum, Fighting Terrorism at Sea: Options and Limitations Under International Law, in Verhandeln Fur Den Frieden—Negotiating for Peace: Liber Amicorum Tono Eitel 649 (Jochen Abr., Frowein et al. eds., 2003).Google Scholar

58 This, for example, is the foundation of the many useful provisions of the 2005 Protocol to the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Nov. 1, 2005, IMO Doc. LEG/CONF. 15/21 (2005). It is important here to distinguish between jurisdiction over the offense and the right to board a foreign ship at sea. That distinction was drawn in the Lotus case:

In virtue of the principle of the freedom of the seas, that is to say, the absence of any territorial sovereignty upon the high seas, no State may exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a war vessel, happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel, were to send on board the latter an officer to make investigations or to take evidence, such an act would undoubtedly be contrary to international law.

But it by no means follows that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas.

S.S. “Lotus” (Fr. v. Turk.), 1927 PCIJ (ser. A) No. 10, at 25 (Sept. 7), available at <http://www.icj-cij.org. The distinction is evident in the multiple bases for legislative jurisdiction set forth in the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, including the flag state of the ship where the alleged offense occurred, the state of nationality of the suspect or of the victim, and the state that the alleged offense attempts to coerce. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Art. 6, Mar. 10, 1988, 1678 UNTS 221, 27ILM 668 (1988); see Malvina, Halberstam, Terrorism on the High Seas: The Achille Lauro, Piracy and the IMO Convention on Maritime Safety, 82 AJIL 269 (1988).Google Scholar

59 See Proposed Regulation 19-1, para. 8.1.3, IMO Doc. MSC/81/WP.5/Add.l, at 4 (2006). For the Convention, Nov. 1, 1974, see 32 UST 47, 1184 UNTS 277.

60 How much actual security is thereby achieved is a different matter. The choice between being able to see those who may threaten, and inconveniencing them by forcing them to act covertly or from a distance, is not a question ordinarily addressed in the law of the sea literature, except with respect to law enforcement strategies regarding such problems as smuggling, where economic disincentives and threats of punishment may play a greater role than in questions of state security and intelligence.

61 LOS Convention, supra note 25, Art. 25(3).

62 See supra note 26. Freedom to lay and maintain submarine cables and pipelines is protected, subject to certain coastal state environmental rights with respect to pipelines. LOS Convention, supra note 25, Arts. 58,79, 87. Apart from submarine cables and pipelines, the LOS Convention places artificial islands, economic installations and structures, and other installations and structures “which may interfere with the exercise of the rights of the coastal State in the zone” under the jurisdiction of the coastal state in the exclusive economic zone and on the continental shelf. Id., Arts. 60, 80; see id., Ait. 258; Tullio, Treves, Military Installations, Structures, and Devices on the Seabed, 74 AJIL 808, 840–51 (1980).Google Scholar The coastal state also has “the exclusive right to authorize and regulate drilling on the continental shelf for all purposes.” LOS Convention, supra note 25, Art. 81.

63 See LOS Convention, supra note 25, Arts. 246, 248, 249, 253.

64 A few verbal skirmishes regarding naval exercises and installations in the EEZ are evident in some of the declarations made by states in their instruments accepting the LOS Convention, and in the response to those declarations. See United Nations, Declarations Made upon Signature, Ratification, Accession or Succession or Anytime Thereafter (Aug. 29,2006), at <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm; Roach & Smith, supra note 40.

65 LOS Convention, supra note 25, Art. 123.

66 The Soviet Union was able to shape the Montreux Convention so as to limit outside naval presence in the Black Sea. see Convention Regarding the Regime ofthe Turkish Straits, Arts. 10,18, July 20,1936,173 LNTS 213; Fenwick, C. G., The New Status ofthe Dardanelles, 30 AJIL 701, 704 (1936)Google Scholar; LOS Convention, supra note 25, Art. 35 (c).

67 John, R. Stevenson & Bernard, H. Oxman, The Future of the United Nations Convention on the Law of the Sea, 88 AJIL 488, 496 (1994).Google Scholar Secretary of State Christopher offered the same appraisal in his Letter of Submittal of the Convention of September 23, 1994. S. Treaty Doc. No. 103-39, at V, VI-VII (1994).

68 See LOS Convention, supra note 25, Arts. 56(l)(b)(iii), 58(3), 194(5), 210, 211, 216-21, 234.

69 Id, Arts. 94(5), 211(2).

70 Id., Arts. 211(5), 220.

71 Id., Arts. 286, 297(l)(b). Like many of the substantive and procedural protections afforded coastal state environmental interests by the LOS Convention, the availability of compulsory jurisdiction to enforce flag state obligations is not noted in connection with the description of environmental challenges posed by navigation in the recent Green Paper of the European Commission, including the following:

If the flag state is lax in the application or control of international rules, a “flag of convenience”, it can become the home register of sub-standard ships or irresponsible owners. In contrast, registers which police international rules strictly, and enforce additional constraints, may find that owners transfer their vessels to less onerous registers. This is not a new debate and the dilemma for governments will remain.

Commission of the European Communities, Green Paper: Towards a Future Maritime Policy for the Union: A European Vision for the Oceans and Seas 22-23, COM (2006) 275 final (June 7, 2006), available at <http://eurlex.europa.eu/LexUriServ/site/en/com/2006/com2006_0275Ben01.pdf [hereinafter Green Paper]. Interestingly, the matter of dispute settlement is referred to in the context of urging the systematic introduction in new agreements “of referrals to the International Tribunal of the Law of the Sea or, where appropriate, to other forms of dispute settlement.” Id. at 42.

72 LOS Convention, supra note 25, Art. 211(6). Moreover, the ability of the straits states to implement and enforce international pollution standards, and to secure IMO approval for the adoption and enforcement of specific safety and traffic regulations, appears to be providing a flexible mechanism that can adapt to new needs and be tailored to specific requirements in a particular strait. Id., Arts. 41, 42, 233. In this regard, the question of whether particular regulations are desirable should be distinguished from the question of the availability of the mixed coastal state/IMO approval procedure for adopting a wide range of binding regulations. All concerned, straits states and maritime states alike, have an interest in the effective functioning and responsiveness of such a “mixed” regulatory system. Given the difficulty of achieving express agreement with all possible flag states, the effect of a narrow construction of that regulatory option is to invite unilateral coastal state action to fill the regulatory vacuum.

73 See id., Art. 196. Brief discussions of the extensive use of tacit acceptance amendment procedures in IMO conventions can be found in IMO, Conventions (n.d.), at <http://www.imo.org, and of the IMO process for designating particularly sensitive sea areas in Particularly Sensitive Sea Areas (n.d.), <http://www.oceansatlas.com/unatlas/issues/pollutiondegradation/special_areas/sensitive_sea_areas.htm (maintained by IMO).

74 The existence of this right is reflected in notice provisions regarding port entry requirements for environmental purposes, and its exercise may even qualify innocent passage in the territorial sea. Id., Arts. 25(2), 211(3).

75 The LOS Convention expressly contemplates such concerted action by port states. Id., Art. 211(3).

76 “The exercise of this right by even a small number of states could have a widespread effect, for many oil tankers depend for their trade on a limited number of major ports.” Oscar, Schachter & Daniel, Serwer, Marine Pollution Problems and Remedies, 65 AJIL 84, 93 (1971).Google Scholar

77 LOS Convention, supra note 25, Art. 87(2); accord, Convention on the High Seas, supra note 15, Art. 2.

78 Chicago Convention, supra note 7, Art. 12 (emphasis added).

79 Convention on the High Seas, supra note 15, Art. 13; accord LOS Convention, supra note 25, Art. 99.

80 LOS Convention, supra note 25, Arts. 94(5), 211 (2). In contrast, the Convention requires that with respect to land-based sources of marine pollution, international regulations only be taken into account. Id., Art. 207(1).

81 Id., Arts. 1(1)(1)-(1)(3), 134,157. The famous call by Ambassador Arvid Pardo of Malta for the establishment of an international regime for the seabed referred to the area beyond the limits of “present” national jurisdiction. UN GAOR, 22d Sess., Annex3,1st Comm., 1515th mtg. at 1, para. 3, UN Doc. A/C.1/PV.1515 (Nov. 1, 1967). Latin American 200-mile claimants were quick to secure the omission of the word “present” in General Assembly resolutions. See Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction, GA Res. 2749 (XXV) (Dec. 17, 1970).

82 LOS Convention, supra note 25, Art. 286 (“Subject to section 3, any dispute concerning the interpretation or application of this Convention shall, where no settlement has been reached by recourse to section 1, be submitted at the request of any party to the dispute to the court or tribunal having jurisdiction under this section.”)

83 Id., Art. 297.

84 Antarctic Treaty, Dec. 1, 1959, 12 UST 794, 402 UNTS 71; Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991,30 ILM 1455 (1991); Convention on the Conservation of Antarctic Marine Living Resources, May 21,1980, 33 UST 3476,1329 UNTS 47; see Robert, D. Hayton, The Antarctic Settlement of 1959, 54 AJIL 349 (1960).Google Scholar

85 This problem has long been recognized:

States are, in general, reluctant to agree to any regulation which will affect their freedom of action within territorial waters…. [Treaty regulation of conservation] would imply a recognition of some degree of modification in former claims to exclusive jurisdiction in territorial waters and a recognition of the general wellbeing as paramount to special national claims.

George Grafton Wilson, Conservation of Maritime life, 22 AJIL 603 (1928).

86 For an examination of the role of normative hierarchy in such a process, see the centennial essay by Dinah, Shelton, Normative Hierarchy in International Law, 100 AJIL 291 (2006).Google Scholar

87 Perhaps one lesson to be drawn from the tortuous MOX Plant litigation is that tribunals are not inclined to ignore either jurisdictional constraints or substantive complexity. S«MOX Plant (Ir. v. UK), Provisional Measures, No. 10 (ITLOS Dec. 3, 2001), available at <http://www.itlos.org/start2_en.html; Access to Information Under Article 9 of the OSPAR Convention (Ir. v. UK), Final Award (Perm. Ct. Arb. July 2, 2003), available at <http://www.pca-cpa.org; MOX Plant (Ir. v. UK), Order No. 3, Suspension of Proceedings on Jurisdiction and Merits (Perm. Ct. Arb. June 24, 2003), 42 ILM 1187 (2003), available at <http://www.pca-cpa.org; Case C-459/03,Comm'nv. Ireland (Eur. Ct. Justice May 30,2006), available at <http://curia.europa.eu/en/content/juris/index.htm.

88 These political and legal reactions were described recently in Jon M. Van, Dyke, Ocean Transport of Radioactive Fuel and Waste, a paper presented at a conference on the oceans and the nuclear age at Boalt Hall, University of California at Berkeley, in February 2006 Google Scholar (publication forthcoming).

89 Commission of the European Communities, Third Package of Legislative Measures on Maritime Safety in the European Union 2, 5-6, COM (2005) 585 final (Nov. 23, 2005) (footnotes omitted), available at <http://eur-lex.europa.eu/RECH_naturel.do. There is no more sense in limiting the scope of a port state enforcement arrangement to the European Union than there would be in limiting the scope of any such arrangement to the territory of a single state; the object is to reach ports outside, not merely within, the concerned entity. One wonders whether anyone has seriously pursued the idea of an enhanced enforcement arrangement with Russia and other states to or from which the offending vessels travel, and done so in a manner designed to encourage a positive response rather than evoke confirmation of non-cooperation. After all, Russia, principally as port state but also as flag state and state of nationality of ship operators, has a great deal to lose from the advance of the territorial temptation, especially in Europe.

90 Green Paper, supra note 71, at 42.

91 See, e.g., the discussion in id. at 34.

92 Chicago Convention, supra note 7, Arts. 1, 2, 3(c), 12; LOS Convention, supra note 25, Arts. 2(2), 38, 53(2), 58(2), 87(1).

93 LOS Convention, supra note 25, Arts. 192, 193, 194(2), 198, 199, 204-06, 208, 210, 212.

94 Most coastal states have adopted legislation implementing their jurisdictional entitlements under the Convention. Not surprisingly, many of the statutes conveniently omit mentioning a large number of the concomitant limitations and obligations, including those regarding environmental protection.

95 The general role of nongovernmental organizations is analyzed in the centennial essay by Steve, Charnovitz, Non-governmental Organizations and International Law, 100 AJIL 348 (2006).Google Scholar

96 See LOS Convention, supra note 25, Arts. 61, 68, 297(3).

97 Boris, Worm et al., Impacts of Biodiversity Loss on Ocean Ecosystem Services, 314 Science 787 (2006)Google Scholar; see Intergovernmental Oceanographic Commission, Fisheries and Ecosystems (2005), at <http://ioc.unesco.org/iocweb/ecosystems.php Google Scholar; Fisheries Global Information System, Topics and Issues Fact Sheet, at <http://www.fao.org/figis/servlet/topic?fid=2329 Google Scholar; Review Conference Report, supra note 45.

98 A modest strengthening of conservation measures with respect to highly migratory species within the EEZ was easier to achieve because the LOS Convention itself, in response to the need to manage such stocks throughout their migratory range, imposed stronger cooperative obligations on the coastal state with respect to highly migratory species as part of the original jurisdictional settlement. LOS Convention, supra note 25, Art. 64.

99 See id, Arts. 61(1), 62(2).

100 See supra note 43.

101 Arctic Waters Pollution Prevention Act of 1970, R.S.C., ch. A-12 (1985), reprinted in 9 ILM 543 (1970).

102 Canada, Declaration Concerning Compulsory Jurisdiction of the International Court of Justice, Apr. 7, 1970, 724 UNTS 63, 9 ILM 598 (1970); see Louis, Henkin, Arctic Anti-Pollution: Does Canada Make—or Break—International Law? 65 AJIL 131 (1971).Google Scholar

103 See LOS Convention, supra note 25, Art. 234 (ice-covered areas).

104 At the time, Prime Minister Pierre Elliott Trudeau all but admitted this motive when he responded to domestic criticism of the failure to claim full sovereignty by noting that one starts by doing something reasonable. Canadians were doubtless aware of Soviet pretensions to sovereignty over Arctic waters first adumbrated many years earlier. See Lakhtine, W., Rights over the Arctic, 24 AJIL 703 (1930).CrossRefGoogle Scholar

105 See Donat, Pharand, Canada’s Sovereignty over the Newly Enclosed Arctic Waters, 1987 Can. Y.B. Int’l L. 325.Google Scholar Soon after his election, Prime Minister Stephen Harper reopened the question of Canadian sovereignty in Arctic waters. See Gloria, Galloway, Harper Rebukes U.S. Envoy over Arctic Dispute; Ambassador Reminded Panel That U.S. Doesn ‘t Recognize Canada s Sovereignty, Globe & Mail (Can.), Jan. 27, 2006, at A4 Google Scholar, available in LEXIS, News Library, Major World Newspapers File; Canada-US Arctic Dispute Sparks Sharp Exchange, Voice of Am. Eng. Serv., Jan. 27, 2006,Google Scholar available in LEXIS, News Library, Wire Service Stories File. In this connection, it may be interesting to recall the reference, by the chairman of the U.S. delegation to the 1958 and 1960 law of the sea conferences, to the “opening of the Northwest Passage between the Atlantic and the Pacific Oceans under the Arctic ice by the atomic submarines U.S.S. Seadragon and U.S.S. Nautilus.” Dean, supra note 17, at 751.

106 See Susan, Biniaz, The U.S. Freedom of Navigation Program, in The Law of the Sea: New Worlds, New Discoveries 57 (Edward, L. Miles & Tullio, Treves eds., 1993).Google Scholar

107 With regard to the novel means used to bring the 1994 Agreement Relating to the Implementation of Part XI of the LOS Convention into effect quickly, it was observed, “In this era of rapidly growing international communications, . . . it is time to abandon formalistic approaches of the past and to provide the twenty-first century with modern means for adapting international instruments to rapidly changing circumstances.” Louis, B. Sohn, International Law Implications of the 1994 Agreement, 88 AJIL 696, 705 (1994).Google Scholar For the Agreement, July 28, 1994, see l836 UNTS 41.

108 For a more sanguine celebration of the “process of continuous demand and response,” see Myres, S. McDougal, The Hydrogen Bomb Tests and the International Law of the Sea, 49 AJIL 356, 357 (1955).Google Scholar

109 “States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.” LOS Convention, supra note 25, Art. 195.

110 Henkin, supra note 102, at 136.

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