Law Commons^™

The Law Of The Sea Convention And Sea Level Rise In The Light Of The South China Sea Arbitration, Stuart B. Kaye

Faculty of Law, Humanities and the Arts - Papers (Archive)

Sea level rise from anthropogenic climate change is an increasing concern for the international community and especially for coastal States. The prospect of whole islands disappearing under rising waters raises serious questions as to the impact upon maritime jurisdiction and the ability of the United Nations Convention on the Law of the Sea to deal with the inundation of large areas of territory. The South China Sea Arbitration Tribunal recently considered these questions. Here, the Tribunal relied on a high standard for what constituted human habitability under Article 121 of the Law of the Sea Convention, which likely will have …

The Arbitral Award In The Matter Of The South China Sea Between The Philippines And China What Are The Implications For Freedom Of Navigation And The Use Of Force?, Cameron Moore

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article considers the implications of the Award for freedom of navigation and the use of force in the South China Sea, identifying the conclusions that can be drawn from the Award and the questions that remain. The Award also indirectly raised the question of the use of force to defend navigational rights. This article therefore revisits the Corfu Channel Case for the light it may shed on the use of force and freedom of navigation in the South China Sea. This leads to questions of the danger of miscalculation and the potential importance of the Code for Unplanned Encounters …

The Sea, The Sea, Catherine Cole

Faculty of Law, Humanities and the Arts - Papers (Archive)

In this short story from the collection, Sea Birds Crying in the Harbour Dark, a small boy from the Australian outback brings the sea into the class room.

Mikelangelo And The Black Sea Gentlemen, Guy Freer, Michael Simic, Phillip Moriarty, Samuel Martin

Faculty of Law, Humanities and the Arts - Papers (Archive)

Two performances at Harcourts Hawkes Bay Arts Festival, NZ

Bridging Troubled Waters: China, Japan, And Maritime Order In The East China Sea. By James Manicom. Washington, D.C.: Georgetown University Press, 2014. Softcover: 266pp., Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

In this book, James Manicom contests the orthodox view that the strategic rivalry between China and Japan will escalate into a fullblown military conflict. The book concedes that the East China Sea will be the likely medium for Sino–Japanese military rivalry and cyclical tensions will persist; however, it makes the compelling case that cooperation will endure.

How Will The Next Philippine President Navigate The Turbulent Waters Of The South China Sea?, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

The leadership change in Manila after the May 2016 presidential elections will certainly have significant impact on the country's policy towards China over the ongoing dispute in the West Philippine Sea. The change in Philippine leadership may portend either continuity or dramatic foreign policy shifts when it comes to this heated issue.

The South China Sea Issue And Philippine President-Elect Rodrigo Duterte, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

No abstract provided.

Why The World Is Wary Of China’S ‘Great Wall Of Sand’ In The Sea, Clive H. Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

China’s neighbours have accused it of destroying an estimated 120 hectares of coral reef systems in the disputed Spratly Islands through land reclamation. EPA/Armed Forces of the Philippines.

The leaders of Southeast Asian nations recently took the extraordinary step of warning China that its island-building activities in the contested South China Sea “may undermine peace, security and stability” in the region.

That’s strong language from the usually reticent 10-member Association of Southeast Asian Nations (ASEAN), and shows just how high tempers are flaring over what has been called China’s “great wall of sand” in a strategically important area.

The commander …

Stemming The Black Tide: Cooperation On Oil Pollution Preparedness And Response In The South China Sea And East Asian Seas, Robin M. Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

As global hydrocarbon resources on shore steadily decline, there has been an increase in offshore hydrocarbon exploration and exploitation. Some estimates suggest that there are over 6,000 offshore oil and gas installations worldwide. Notwithstanding simmering disputes over the territorial sovereignty and associated maritime zones of a number of island groups in the South China Sea and adjacent East Asian seas, exploration for offshore oil and gas resources under national and joint development regimes has become a prominent feature of these areas. It is estimated that there are now over 1,390 offshore oil and gas installations in the South China Sea …

Future Coastal Population Growth And Exposure To Sea-Level Rise And Coastal Flooding – A Global Assessment, Barbara Neumann, Athanasios T. Vafeidis, Juliane Zimmermann, Robert J. Nicholls

Faculty of Law, Humanities and the Arts - Papers (Archive)

Coastal zones are exposed to a range of coastal hazards including sea-level rise with its related effects. At the same time, they are more densely populated than the hinterland and exhibit higher rates of population growth and urbanisation. As this trend is expected to continue into the future, we investigate how coastal populations will be affected by such impacts at global and regional scales by the years 2030 and 2060. Starting frombaseline population estimates for the year 2000, we assess future population change in the low-elevation coastal zone and trends in exposure to 100-year coastal floods based on four different …

Ecological Restoration In The Deep Sea: Desiderata, C Van Dover, J Aronson, L Pendleton, S Smith, S Arnaud-Haond, D Moreno-Mateos, E Barbier, D Billett, K Bowers, R Danovaro, A Edwards, Stephen Kellert, T Morato, E Pollard, A Rogers, Robin Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

An era of expanding deep-ocean industrialization is before us,with policy makers establishing governance frameworks for sustainable management of deep-sea resources whiles cientists learn more about the ecological structure and functioning of the largest biome on the planet. Missing from discussion of the stewardship of the deep ocean is ecological restoration. If existing activities in the deep sea continue or are expanded and new deep-ocean industries are developed, there is need to consider what is required to minimize or repair resulting damages to the deep-sea environment. In addition, thought should be given as to how any past damage can be rectified. …

Conserving Marine Biodiversity In The Global Marine Commons: Co-Evolution And Interaction With The Law Of The Sea, Robin Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

As global shipping intensifies and technological advances provide more opportunities to access the resources of the high seas and the deep seabed beyond national jurisdiction (ABNJ), the catalogue of threats to the marine environment and its biodiversity increase commensurately. Beyond these threats, new and emerging uses of ABNJ including more intrusive marine scientific research, bio-prospecting, deep seabed mining and environmental modification activities to mitigate the effects of climate change have the potential to harm the highly interconnected and sensitive ecosystems of the open ocean and the deep seabed if not sustainably managed now and into the future. Modern conservation norms …

Defining Eez Claims From Islands: A Potential South China Sea Change, Robert Beckman, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

In the face of seemingly intractable territorial and maritime disputes in the South China Sea, the article examines how the 1982 United Nations Convention on the Law of the Sea (LOSC), sets out what maritime claims States can make in the South China Sea and how it establishes a framework that will enable States to either negotiate maritime boundary agreements or negotiate joint development arrangements (JDAs) in areas of overlapping maritime claims. It provides an avenue whereby the maritime claims of the claimants can be brought into line with international law, potentially allowing for meaningful discussions on cooperation and maritime …

Dispute Settlement In The Law Of The Sea Convention And Territorial And Maritime Disputes In Southeast Asia: Issues, Opportunities, And Challenges, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

The 1982 United Nations Convention on the Law of the Sea (LOSC) provides for a dispute settlement regime that establishes a compulsory and binding framework for the peaceful settlement of all ocean-related disputes. In Southeast Asia, despite the long-standing myriad of territorial and maritime disputes, there appears to be a general reluctance to utilize the dispute settlement provisions of LOSC. The region has very little experience in international litigation involving territorial and maritime disputes, and a reluctance to utilize the dispute settlement provisions of LOSC.While the LOSC legal framework offers some options, the highly complicated nature of the disputes in …

Another Titanic Change Is Needed To Save More Lives At Sea, Clive Schofield, John Mansell

Faculty of Law, Humanities and the Arts - Papers (Archive)

How has our approach to saving lives at sea changed since the tragedy of the RMS Titanic in which 1,523 of the 2,228 people she was carrying died a century ago? Surprisingly, not much. Only this April the South Korean ferry Sewol capsized claiming 288 lives so far, many high school students.

The Law Of The Sea And Commercial Ships In The Search For Mh370, Stuart Kaye

Faculty of Law, Humanities and the Arts - Papers (Archive)

The first ship to reach the area of Indian ocean being searched for the missing flight MH370 is the Norwegian commercial car carrier, the Höegh St Petersburg.

At the request of the Australian Maritime Safety Authority (AMSA), the ship diverted its voyage from Mauritius to Melbourne and searched for debris with spotlights overnight.

Customary international law has long recognised that all mariners have a duty to come to the assistance of individuals in distress on the sea.

While the duty is not absolute - in the sense an individual is not required to risk their own life - maritime law …

Graduations Between Land And Sea: Recent Developments And Emerging Clarity?, Clive Schofield, Ian Townsend-Gault

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Legal Regime of Land Features:

Longstanding legal dictum that 'the land dominates the sea'

Sovereignty over land territory therefore a vital prerequisite for advancing claims to maritime jurisdictionTwo seemingly straightforward questions:

* What is 'land'?

* Where does the land end and the sea begin?

The Philippine Claim To Bajo De Masinloc In The Context Of The South China Sea Dispute, Lowell Bautista

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Philippine claim to Bajo de Masinloc, otherwise referred to as Scarborough Shoal, finds solid basis in international law. The territorial claim of the Philippines over Bajo de Masinloc is strong relative to the claim of China as well as with respect to the principles on the acquisition of territory in international law, in particular, on the basis of effective occupation. The sovereign rights and jurisdiction asserted by the Philippines over the maritime entitlements of the features in Bajo de Masinloc are founded on principles of international law and consistent with the United Nations Convention on the Law of the …

Legislative Implementation Of The Law Of The Sea Convention In Australia, Warwick Gullett

Faculty of Law, Humanities and the Arts - Papers (Archive)

All States with marine and maritime interests need to ensure that their domestic laws enable them to meet their obligations, and to take advantage of the rights afforded to them, under the international law of the sea. This body of international law is structured around one of the most extensive and widely ratified international treaties: the United Nations Convention on the Law of the Sea ('LOSC').1 This paper reviews the general process by which obligations and rights in international treaties become part of domestic law and then examines Australia's experience in incorporating into its domestic law three broad areas of …

What's At Stake In The South China Sea? Geographical And Geopolitical Considerations, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea ranks among the most geographically and geopolitically complex ocean spaces in the world. It certainly appears to have been one of its most vigorously contested, featuring multiple, longstanding and competing territorial and maritime jurisdictional claims. The objective of this chapter is to provide the geographical and geopolitical background to the frequently conflicting national maritime claims made by the South China Sea littoral States. This exercise is designed to provide the necessary contextual backdrop to considerations of the application of maritime joint development mechanisms and/or other provisional arrangements of a practical nature in the South China Sea. …

Factors Conducive To Joint Development In Asia -Lessons Learned For The South China Sea, Robert Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport, Leonardo Bernard

Faculty of Law, Humanities and the Arts - Papers (Archive)

Joint development in the South China Sea has been suggested as a solution to the Spratly Islands disputes since the 1980s. China was one of the earliest proponents of ‘setting aside the dispute and pursuing joint development’. The South China Sea Workshops on Managing Potential Conflicts in the South China Sea discussed joint development but ran into a number of obstacles, notably because of longstanding sensitivities over sovereignty issues and conflicting maritime claims. Consequently, the Workshops sought to focus on less contentious issues such as cooperation on marine biodiversity and the safety of navigation. Through this non- confrontational, non-binding and …

Moving Forward On Joint Development In The South China Sea, Robert Beckman, Clive Schofield, Ian Townsend-Gault, Tara Davenport, Leonardo Bernard

Faculty of Law, Humanities and the Arts - Papers (Archive)

The examination of the factors that facilitated the conclusion of joint development arrangements in Asia in Chapter 11 has demonstrated that there remain considerable obstacles before joint development in the South China Sea can be discussed in a serious and meaningful manner. The following recommendations set out steps which the claimants and, in certain circumstances, other relevant stakeholders, can take to move towards a situation where joint development is a feasible dispute settlement option.

One Step Forwards, Two Steps Back? Progress And Challenges In The Delimitation Of Maritime Boundaries Since The Drafting Of The United Nations Convention On The Law Of The Sea, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The provisions of the United Nations Convention on the Law of the Sea dealing with the delimitation of maritime boundaries are limited and open to varied interpretation. Nevertheless, the advent of the Convention had a significant impact on ocean boundary making. Subsequent developments have also arguably led to a clearer approach to maritime boundary delimitation. These evolutions are traced and contemporary challenges highlighted

Holding Back The Waves? Sea Level Rise And Maritime Claims, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

Sea level rise has the potential to influence the location of baselines along the coast from which claims to maritime jurisdiction are made. Accordingly, sea level rise may have adverse impacts on the extent of national maritime claims. This article provides a brief discussion of sea level rise before exploring the link between potentially variable baselines and the outer limits to maritime claims. Options to address these challenges are then discussed.

Options To Protect Coastlines And Secure Maritime Jurisdictional Claims In The Face Of Global Sea Level Rise, Clive Schofield, David Freestone

Faculty of Law, Humanities and the Arts - Papers (Archive)

It is now widely accepted that significant sea level rise is taking place and that this phenomenon is likely to accelerate in the future. This poses potentially disastrous implications for many coastal States, especially those with large and heavily populated low-lying coastal areas, as well as small low-lying island States. In addition to the essentially terrestrial, inward-looking threat posed to low-lying coastal areas and their associated populations from inundation by rising seas, threats also exist looking outward from the land to the ocean spaces adjacent to such threatened territories. In particular, sea level rise has the potential to significantly affect …

Explainer: The Law Of The Sea And Asylum Seekers, Sam Bateman

Faculty of Law, Humanities and the Arts - Papers (Archive)

Prime minister Tony Abbott said on Monday he expects Jakarta to take responsibility for the asylum seekers that Australian authorities rescue in Indonesia’s search and rescue zone. He claims this is the international law of the sea – but this is only half right.

What the law of the sea actually says on this issue can be found in the 2006 amendments to the International Convention on Maritime Search and Rescue, known as the SAR Convention. The amendment to Chapter Three of the convention says the country responsible for the region in which the search and rescue takes place shall …

Increasingly Contested Waters? Conflicting Maritime Claims In The South China Sea, Clive Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea is host to a complex coastal geography, numerous sovereignty disputes over islands featuring multiple claimants, excessive and controversial claims to baselines, confl icting and overlapping claims to maritime jurisdiction and, most recently, contested submissions regarding extended continental shelf rights. The objective of this paper is to review and analyse these issues from spatial, legal and geopolitical perspectives. An overview and assessment of the geographical and geopolitical factors that inform and underlie the South China Sea disputes is offered prior to the claims of the littoral states to baselines and maritime zones being assessed. Maritime boundary agreements …

Island Disputes And The "Oil Factor" In The South China Sea Disputes, Clive H. Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

The South China Sea has long been regarded as one of the key potential flashpoints for conflict in the Asia-Pacific, alongside North Korea and Taiwan. Recently tensions have been on the rise and relations between China and the other South China Sea littoral states have become more fraught – characterised not only by diplomatic claim and counter-claim (though frequently framed in less than diplomatic language) but also, more worryingly, by confrontations at sea.

Context, as they say, is everything. This article briefly outlines geopolitical drivers that sustain these complex and seemingly intractable disputes, and seeks to shed light on their …

Concepts Of Maritime Security: A Strategic Perspective On Alternative Visions For Good Order And Security At Sea, With Policy Implications For New Zealand, Christopher Rahman

Faculty of Law - Papers (Archive)

This project originated as a research report conducted for the Royal Australian Navy’s Sea Power Centre – Australia. Its intent is not to reprise well‐worn ideas of sea power or maritime strategy, but to address conceptually what is meant by the term “maritime security” in the context of contemporary ideas of the meaning of “security” itself. In doing so, I have purposefully delved into some of the often quite dense and sometimes arcane literature and ideas regarding conceptual treatments of security. This is important, because the ideas inherent in different perspectives on maritime security often have an intellectual or political …

Against A Rising Tide: Ambulatory Baselines And Shifting Maritime Limits In The Face Of Sea Level Rise, Clive H. Schofield

Faculty of Law, Humanities and the Arts - Papers (Archive)

This paper addresses a critical issue for many coastal States: rising global sea levels. While the causes of climate change still excite controversy and debate, it is now widely accepted that significant sea level rise is taking place and that this trend appears likely to accelerate in the future. This phenomenon raises a number of important challenges for coastal and island States. Among these threats is the likely impact of rising sea levels on national claims to maritime jurisdiction. Significant changes to coastlines and therefore baselines and the potential submergence of key basepoints may potentially lead to the loss of …