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Some Reflections On The “New Law Of The Sea”, Philippe Gautier

International Law Studies

The fortieth anniversary of the opening for signature of the UN Convention on the Law of the Sea provides an opportunity to offer some reflections on the “new law of the sea”; that is, the comprehensive set of rules that was the result of an unprecedented multilateral negotiation process: the Third United Nations Conference on the Law of the Sea (1973–1982). The focus of this article is on the adjudication of sea-related disputes in the “new law of the sea.” In an international legal order where access to a judge or an arbitrator requires the consent of both parties to …

Article 76 Of The Un Convention On The Law Of The Sea: Parties And Non-Parties, Kevin A. Baumert

International Law Studies

One of the foremost contributions of the UN Convention on the Law of the Sea is its Article 76 pertaining to the continental shelf. Article 76 defines the continental shelf and sets forth detailed rules for determining its outer limits. It also introduces the Commission on the Limits of the Continental Shelf, one of the three institutions created by the Convention. This article addresses the universality of Article 76, in particular the degree to which its provisions are legally applicable to all States, including non-parties to the Convention. In doing so, the article considers the recent jurisprudence of the International …

The Impacts Of Sea Level Rise And The Law Of The Sea Convention: Facilitating Legal Certainty And Stability Of Maritime Zones And Boundaries, Davor Vidas, David Freestone

International Law Studies

It seems clear that the impacts of sea level rise were not contemplated by the drafters of the 1982 Law of the Sea Convention during UNCLOS III. Legal scholars began to identify these issues in the early 1990s but the establishment and work of the International Law Association (ILA) Committee on International Law and Sea Level Rise has drawn increased attention to the importance of this issue that is now being considered by a Study Group of the International Law Commission. This article traces the remarkable and swift evolution over the last decade of State practice on the interpretation of …

Reflecting On Unclos Forty Years Later: What Worked, What Failed, Raul (Pete) Pedrozo

International Law Studies

The United Nations Convention on the Law of the Sea (UNCLOS) was opened for signature on December 10, 1982, after nine years of painstaking debate. Hailed as “A Constitution for the Oceans,” the Convention was immediately signed by 119 States, a remarkable number given the contentious and complex nature of the negotiations, and today has 168 parties. The intent of the Conference that drafted the treaty was to produce a comprehensive and universally accepted convention covering every aspect of the uses and resources of the oceans that would stand the test of time. This article analyzes the various provisions of …

The Fortieth Anniversary Of The United Nations Convention On The Law Of The Sea, Bernard H. Oxman

International Law Studies

The UN Convention on the Law of the Sea opened for signature on December 10, 1982. In commemoration of this important date, International Law Studies opens its 40th Anniversary Forum with this keynote compendium essay from Bernard Oxman.

"The most basic object of the U.N. Convention on the Law of the Sea was to replace a system of conflicting unilateral claims of right with global agreement on the rules of the law of the sea and the process for their implementation, interpretation, and application. That remains the Convention’s most significant contribution to the rule of law in international affairs. Its …

The Legal Framework Applicable To Intrusive Intelligence, Surveillance, And Reconnaissance Operations In The Air And Maritime Domains, Raul (Pete) Pedrozo

International Law Studies

The validity of intrusive intelligence, surveillance, and reconnaissance (ISR) operations in the maritime and air domains depends on the location from which the operation is conducted. Intrusive ISR conducted beyond the territorial sea and national airspace is considered an internationally lawful use of the sea that is not subject to coastal State jurisdiction or interference. Efforts by a handful of States to regulate ISR operations in and over the exclusive economic zone are clearly inconsistent with a plain reading of the United Nations Convention on the Law of the Sea and the Convention on International Civil Aviation (and their negotiating …

Proportionality: Reconsidering The Application Of An Established Principle In International Law, Rüdiger Wolfrum

International Law Studies

Traditionally, the principle of proportionality is defined as limiting State action to rational and reasonable means with the view to achieve a goal permissible under international law without unduly encroaching on the protected rights of another State, States, or individuals. The principle applies to the planning, as well as the implementation, of State activities. The application of the principle of proportionality is common in national constitutional and administrative law. A vast national jurisprudence exists in this regard. However, due to the plurality of approaches in the various national legal systems, it is hardly possible to draw any general legal conclusions …

Intelligence Collection And The International Law Of The Sea, James Kraska

International Law Studies

This article explores the legal implications of intelligence collection operations at sea. It concludes that in terms of the international law of the sea, intelligence collection that occurs outside of the territorial sea is lawful. Furthermore, even intelligence collection by a foreign ship inside the territorial sea, while a violation of State sovereignty, may not violate the law of the sea, per se. Additionally, within the territorial sea, coastal States are limited in the measures they may take against foreign-flagged submarines and surface warships collecting intelligence since those activities do not constitute an armed attack or even the use of …

Neutral State Access To Ukraine’S Food Exports, James Kraska

International Law Studies

This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, May 18, 2022, https://lieber.westpoint.edu/neutral-state-access-ukraines-food-exports/.

Maritime Exclusion Zones In Armed Conflicts, Raul (Pete) Pedrozo

International Law Studies

This article originally appeared in Articles of War, the online publication of the Lieber Institute at the U.S. Military Academy, Apr. 12, 2022, https://lieber.westpoint.edu/maritime-exclusion-zones-armed-conflicts/.

Arctic Navigation And Climate Change: Projections From Science For The Law Of The Sea, Charles H. Norchi, Amanda H. Lynch

International Law Studies

The most variable climate conditions on the planet are observable in the Arctic. These conditions affect all forms of life, including the human interactions and social processes that generate law. Among the critical activities affected by climate is navigation, which is subject to national regulations, general maritime laws, and the international law of the sea. As a result of anthropogenic climate change, Arctic climate variability is already moving the system into states that humans in the Industrial Era have not experienced. Most critically, while the end point of unfettered climate change as manifest in the Arctic – an ice-free ocean …

Enhancing The Security Of Shipping In Southeast Asia: The Relevance Of International Law, Robert Beckman

International Law Studies

This article outlines the principles of international law governing the right to exercise jurisdiction over ships. It then explains the relevance of UN international crimes conventions to the security of commercial ships. These conventions give States parties jurisdiction to arrest persons present in their territory who are alleged to have committed such crimes and an obligation to either prosecute or extradite them. It then explains the measures that have been taken by the International Maritime Organization to enhance the security of commercial shipping, including its Code of Practice on preventing piracy and “armed robbery against ships” and its measures to …

Australia’S Maritime Security Challenges: Juggling International Law And Informal Agreements In An International Rules-Based Order, Natalie Klein

International Law Studies

Australia has voiced its commitment to the “rules-based order” since 2008 and the rules-based order has become a touchpoint of both Australian defense and foreign policy. Australia has also voiced its commitment to international law, particularly the UN Convention on the Law of the Sea, to meet challenges to the maritime rules-based order, including in the South and East China Seas. References to international law have often been bundled in or left adjacent to the rules-based order and the two terms are not synonymous. This article discusses the role of international law in the rules-based order as it relates to …

Venezuela’S Excessive Maritime Claims, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

Maritime Counter-Narcotics Agreements, Office Of The Staff Judge Advocate

International Law Studies

No abstract provided.

China’S Iuu Fishing Fleet: Pariah Of The World’S Oceans, Raul (Pete) Pedrozo

International Law Studies

The leading global maritime security threat today is illegal, unreported, and unregulated (IUU) fishing. Left unchecked, IUU fishing exacerbates the depletion of fish stocks, thereby contributing to global geo-political instability by increasing tension among competing distant water fishing fleets, threatening the sustainability of coastal States’ fisheries, and damaging fragile ecosystems. This article reviews the regulatory framework applicable to IUU fishing. It then discusses China’s predatory fishing practices in various regions of the world. The article then examines the principle of exclusive flag State jurisdiction on the high seas and suggests that Chinese distant water fishing vessels that change their name …

Does The Revised U.S. South China Sea Policy Go Far Enough?, Raul (Pete) Pedrozo

International Law Studies

The United States issued a statement on July 13, 2020, outlining the U.S. Position on Maritime Claims in the South China Sea. The statement supplements existing U.S. policy for the South China Sea, making clear that the People’s Republic of China’s claims to offshore resources across most of the South China Sea are unlawful. Still, the revised U.S. policy does not go far enough to contest China's faulty claims in the South China Sea. This article proposes specific issues that the revised U.S. policy should address.

Leading Expert On The Law Of The Sea: Remembering Rear Admiral Bruce A. Harlow, Jagc, U.S. Navy (Ret.)

International Law Studies

Volume 99 of International Law Studies is dedicated to the memory of Rear Admiral Bruce A. Harlow, JAGC, U.S. Navy (Ret.), March 18, 1932 — March 3, 2021.

Submarine Cable Security And International Law, Douglas R. Burnett

International Law Studies

In this article the revolution in fiber optic submarine cable communications is placed in context with the world’s growing dependence upon critical submarine cable infrastructure. Emphasis is placed on the development of international law designed to protect submarine cables and in particular those articles in the United Nations Law of the Sea Convention that foster and safeguard the freedom to lay and repair submarine cables. Special focus is applied to the status of international submarine telecommunication cables in cases of intentional actions that damage or destroy them and the State practice and customary international law that generally classifies submarine cables …

Refining Japan’S Integrative Position On The Territorial Sovereignty Of The Senkaku Islands, Atsuko Kanehara

International Law Studies

China and Japan face a tense situation in the East China Sea over conflicting sovereignty claims to the Senkaku Islands. In order to cope with the situation appropriately and precisely, Japan needs to thoroughly analyze it from the dual perspectives of the law of the sea and the law of territorial acquisition. Japan denies any existence of a dispute with China over the territorial sovereignty of the islands. The legal effects of the existence of a “dispute” need to be understood and considered by Japan when it constructs its position from the perspectives of the law of the sea and …

Booty, Bounty, Blockade, And Prize: Time To Reevaluate The Law, Andrew Clapham

International Law Studies

This article considers the so-called belligerent rights of States in times of war. In particular it focuses on booty of war, blockade, and the capture of merchant ships and their cargo. It is suggested that, while the rules may not often be applied today, they nevertheless continue to exert a certain influence, contributing to confusion about the boundaries of the legitimate use of force and a blurring of the distinction between military objectives and civilian objects.

Considering that the UN Charter has outlawed the use of force, the article also questions why such rules concerning capture should continue to have …

China’S Container Missile Deployments Could Violate The Law Of Naval Warfare, Raul (Pete) Pedrozo

International Law Studies

China is reportedly developing long-range cruise missiles that can be fired from standard shipping containers loaded on merchant vessels. China is also converting heavy-lift civilian ships and roll-on roll-off (RORO) ferries to serve as de facto amphibious assault ships to support People’s Liberation Army (PLA) amphibious operations. While none of these activities are illegal per se, they do raise potential concerns under the law of naval warfare. Only warships can engage in offensive belligerent rights during an international armed conflict. Using merchant vessels to engage in belligerent rights would violate international law unless China first converts the vessels into warships …

China’S Revised Maritime Traffic Safety Law, Raul (Pete) Pedrozo

International Law Studies

China recently enacted amendments to its 1983 Maritime Traffic Safety Law, expanding its application from “coastal waters” to “sea areas under the jurisdiction of the People’s Republic of China,” a term that is intentionally vague and not defined. Many of the amendments to the law exceed international law limits on coastal State jurisdiction that would illegally restrict freedom of navigation in the South China, East China, and Yellow Seas where China is embroiled in a number of disputed territorial and maritime claims with its neighbors. The provisions regarding the unilateral application of routing and reporting systems beyond the territorial sea …

Is A South China Sea Code Of Conduct Viable?, Raul (Pete) Pedrozo

International Law Studies

For over twenty years, the People’s Republic of China (PRC) has stonewalled efforts by the Association of Southeast Asian Nations (ASEAN) to negotiate a binding Code of Conduct that would form the basis for a peaceful and durable solution to the territorial and maritime disputes in the South China Sea (SCS). At the same time, the PRC engaged in a series of malign activities, to include the militarization of several reclaimed artificial islands, that have forever changed the landscape and status quo of the SCS. In 2020, the PRC unexpectedly called on ASEAN to resume the negotiations as soon as …

Enclosure Of The Oceans Versus The Common Heritage Of Mankind: The Inherent Tension Between The Continental Shelf Beyond 200 Nautical Miles And The Area, Michael W. Lodge

International Law Studies

The 1982 United Nations Convention on the Law of the Sea (UNCLOS) is a major achievement of diplomacy in the late twentieth century and is rightly regarded as the “constitution for the ocean.” UNCLOS has withstood the test of time and has demonstrated its flexibility and adaptability to changing circumstances. Notwithstanding, there is an underlying tension at the heart of UNCLOS as it tries to reconcile two fundamentally different approaches—the exclusivity of coastal State jurisdiction versus the international character and shared space of the Area beyond national jurisdiction. As the search for mineral deposits in the Area intensifies, and as …

Ukraine V. The Russian Federation: Navigating Conflict Over Sovereignty Under Unclos, NilüFer Oral

International Law Studies

Following Russia’s annexation of Crimea in 2014, or according to Russia, its accession following a referendum, Ukraine brought several international cases against the Russian Federation, including two cases under Annex VII of UNCLOS: The Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait in 2016 and The Detention of Three Ukrainian Naval Vessels in 2019. At the center of these disputes is the conflict between Ukraine and Russia over sovereignty of Crimea. Russia contested jurisdiction in all cases invoking different exceptions under UNCLOS, including the argument that the dispute concerns sovereignty over Crimea and …

Maritime Police Law Of The People’S Republic Of China, Raul (Pete) Pedrozo

International Law Studies

China’s new Maritime Police Law (MPL) purports to regulate the duties of China’s maritime police agencies, including the China Coast Guard, and safeguard China’s sovereignty, security, and rights and interest. The MPL has potentially far-reaching application, as China claims extensive maritime areas off its mainland and in the South China Sea. This expansive application of maritime law enforcement jurisdiction is problematic given that most of China’s maritime claims are inconsistent with international law. To the extent that the MPL purports to assert jurisdiction over foreign flagged vessels in disputed areas or on the high seas, it contravenes international law. Numerous …

Encirclement, Deprivation, And Humanity: Revising The San Remo Manual Provisions On Blockade, Tom Dannenbaum

International Law Studies

Among the most pernicious trends in contemporary armed conflict is the return of mass starvation in war, in some cases as its primary source of human suffering. This has prompted a renewed focus on the relevant rules of international humanitarian law (IHL). On some issues, there is relative consensus. On the issue of deprivation by encirclement, however, there is confusion.

Some have questioned whether the prohibition on the starvation of civilians as a method of warfare applies to encirclements at all, particularly in the naval context. Others have interpreted the prohibition vanishingly narrowly. In contrast to the more extreme of …

Maritime Autonomous Surface Ships: New Possibilities—And Challenges—In Ocean Law And Policy, Joel Coito

International Law Studies

Landmark developments in autonomous vessel technology have the potential to deliver economic, environmental, and security benefits on the world’s oceans. Tempering the promise of that future is the stark reality that maritime autonomous surface ships (MASS) challenge the existing international order of the seas. This article examines the promise and perils of MASS in three areas of enduring significance to commercial vessels, naval forces, and industry regulators: search and rescue (SAR), maritime counterdrug operations, and navigational safety. This article concludes that autonomous vessel technology will lead to a superior global regime for maritime SAR operations, enhanced detection and interdiction of …

Questions Relating To The Continental Shelf Beyond 200 Nautical Miles: Delimitation, Delineation, And Revenue Sharing, Helmut Tuerk

International Law Studies

Article 76 UNCLOS provides a new definition of the legal continental shelf, which grants coastal States sovereign rights and jurisdiction extending to the outer edge of the continental margin. The broad-shelf States had to make two compromises to have that provision accepted, that is revenue-sharing for the benefit of the international community with respect to the continental shelf beyond 200 nautical miles, enshrined in Article 82 UNCLOS, and the delineation of the outer limits of the continental shelf beyond that distance “on the basis of” recommendations by the CLCS, in order that these limits may become “final and binding.” In …