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Articles 31 - 60 of 230
Full-Text Articles in Law of the Sea
Weaver V. Bishop And Negligence: A Path Toward Clearing The Muddy Water, John H. Abbott
Weaver V. Bishop And Negligence: A Path Toward Clearing The Muddy Water, John H. Abbott
San Diego Law Review
In Weaver v. Bishop, the California Appellate Court affirmed the trial court's adoption of the "reasonable use" doctrine in regards to the law governing the obstruction or diversion of waters. The Weaver decision indicates that California courts have finally begun to apply a consistent legal doctrine to damages claims resulting from water obstruction. This Note applauds the Weaver decision as an affirmation of the negligence (reasonable use) standard in the place of traditional water classifications and legal doctrines the author finds outdated. It concludes by calling the California Supreme Court or the Legislature to abolish the old rules and apply …
Pondering The Scope Of Premises Search Warrants After Ybarra V. Illinois, Jeffrey D. Winter
Pondering The Scope Of Premises Search Warrants After Ybarra V. Illinois, Jeffrey D. Winter
San Diego Law Review
The problem of isolating the person from the place in a premise search has always been vexing. The Supreme Court has rejected the notion that people are safe from searches only in certain "constitutionally protected areas," and has advanced to the doctrine of "reasonable expectation of privacy." Some cases have added a new twist to this theory by considering the expectation of privacy and probable cause to search in terms of a person's relationship to the place being searched. This Comment will attempt to analyze these cases in the framework provided by the United States Supreme Court in Ybarra v. …
Matek V. Murat: Back To Terms Of Agreement, Jeffrey D. Winter
Matek V. Murat: Back To Terms Of Agreement, Jeffrey D. Winter
San Diego Law Review
In Matek v. Murat, the Ninth Circuit Court of Appeals ruled that the question of whether an interest in a general partnership amounts to a "security" should be determined only the legal effect of the agreement between the parties. The decision came at a time when the definition of "security" was expanding to include diverse economic entities. The effect of the decision was to consolidate, rather than expand, the scope of security regulation. This Note analyzes Matek in light of previous decisions from other circuits. The analysis applauds the Matek decision for effectively reducing unwarranted claims, and yet remaining faithful …
Solutions In The Convention On The Law Of The Sea To The Problem Of Overfishing In The Central Bering Sea: Analysis Of The Convention, Highlighting The Provisions Concerning Fisheries And Enclosed And Semi-Enclosed Seas, Lourene Miovski
San Diego Law Review
In this Article, Ms. Miovski analyzes the justification, under the Convention on the Law of the Sea, for various types of fishery management control over the Central Bering Sea and the interrelationship of the freedoms, rights, duties, and interests recognized in the Convention. A number of theories are advanced to support various types of control under the Convention. After evaluating the various theories, the author considers the dispute resolution mechanisms available under the Convention as well as methods of enforcement. Finally, states' freedoms, rights, duties, and interests, recognized under the various CLOS articles and theories, are summarized. In conclusion, the …
State Responsibility And Assessment Of Liability For Damage Resulting From Dumping Operations, George C. Kasoulides
State Responsibility And Assessment Of Liability For Damage Resulting From Dumping Operations, George C. Kasoulides
San Diego Law Review
The Contracting Members of the London Dumping Convention are considering the establishment of a liability regime for dumping operations. The obligation for the establishment of such a regime is included in the provisions of the Convention and is linked with a moratorium on dumping of radioactive waste. This article discusses general principles of state responsibility for environmental protection and the specific obligations for states and individuals included in the Convention. It examines evidence pointing to the recognition of a need for a liability regime, the nature of liability for dumping operations, and the associated issues of reparation and compensation systems. …
The Ecosystem Model Mandate For A Comprehensive United States Ocean Policy And Law Of The Sea, Martin H. Belsky
The Ecosystem Model Mandate For A Comprehensive United States Ocean Policy And Law Of The Sea, Martin H. Belsky
San Diego Law Review
In this Article, Dean Belsky compares the premises and recommendations of the Stratton Commission, set up to formulate a comprehensive national program for marine affairs, to America's national ocean policy and program. The author then suggests that a mechanism exists to provide for the establishment of a coordinated and integrated national ocean policy. That mechanism is the new international law requirement of comprehensive research, planning, and management for the ocean's space and resources. This comprehensive model is binding in domestic law and can be implemented under existing statutes by existing federal and state agencies. In light of the absence of …
Evidentiary Privileges And The Exclusion Of Derivative Evidence: Commentary And Analysis, James J. Dalessio
Evidentiary Privileges And The Exclusion Of Derivative Evidence: Commentary And Analysis, James J. Dalessio
San Diego Law Review
Invocation of an evidentiary privilege traditionally meant that the confidential communications of a holder were protected from disclosure during judicial, administrative, or legislative proceedings. This model of evidentiary privilege law does not take into account information gathered from unauthorized preproceeding disclosures of otherwise privileged communications. A minority of courts seem willing to exclude this derivative evidence with little or no explanation. These courts may unwittingly base their decision on privacy concepts recently proposed as one of the modern justifications for the existence of evidentiary privilege in law. Courts confronted with this issue analyze it in confusingly, and often contrastingly, different …
The Exclusive Economic Zone Of The Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate An Eez, Jon M. Van Dyke, Joseph Morgan, Jonathan Gurish
The Exclusive Economic Zone Of The Northwestern Hawaiian Islands: When Do Uninhabited Islands Generate An Eez, Jon M. Van Dyke, Joseph Morgan, Jonathan Gurish
San Diego Law Review
Hawaii is the only state in the United Stats that consists solely of islands. These islands are unique among the states in climate and life style, and they present unique problems to those who would define their jurisdiction over the adjacent ocean areas. The eight main inhabited Hawaiian islands are entitled to territorial seas, contiguous zones, exclusive economic zones, and continental shelves, which are measured in the same way that similar zones are delineated outward from continental land territories. To the northwest of these main islands is a chain of smaller insular outcroppings that are a wildlife preserve for sea …
Will Canada Ratify The Law Of The Sea Convention, Ted L. Mcdorman
Will Canada Ratify The Law Of The Sea Convention, Ted L. Mcdorman
San Diego Law Review
In this Article, Professor McDorman discusses the fact that five years after the completion of the Law of the Sea Convention, Canada has not yet ratified the convention nor has it offered hints as to whether it will ratify the Convention. The author contrasts this stance with the fact that that Canada was a signatory, is one of its major beneficiaries, and that many of its high ranking officials expressed praise for the final document. Moreover, Canada has extensive economic interests in the ocean. The question of Canadian ratification of the LOS Convention is addressed from three perspectives: as a …
The Effect Of A Petition For Decertification On The Bargaining Process: The Reversal Of Dresser Industries, Timothy Silverman
The Effect Of A Petition For Decertification On The Bargaining Process: The Reversal Of Dresser Industries, Timothy Silverman
San Diego Law Review
In Dresser Industries, the National Labor Board held that an employee-filed petition for decertification does not permit an employer to refuse to bargain with the incumbent union. This Comment submits that the National Labor Relations Board should return to the rule that Dresser Industries expressly overruled. This Comment argues that the Telautograph Corporation rule requiring an employer to refuse to bargain, is the more workable and practical of the two conflicting rules and is more likely to achieve the legislative goals of the National Labor Relations Act.
Foreign Search And Seizure: The Fourth Amendment At Large, Kimberly A. Strang
Foreign Search And Seizure: The Fourth Amendment At Large, Kimberly A. Strang
San Diego Law Review
The Administration's recent policy of "Say No to Drugs" has sparked a veritable war on drugs within our country. Outside our borders, on the high seas, and in foreign lands, the war on drugs has been fought to prevent their entry through our borders. This "war" is encroaching on the fourth amendment rights of persons suspected of drug trafficking who are subjected to search and seizure. This Comment examines the fourth amendment protection these people have received, and argues that the courts should uphold the fourth amendment, rather than pay it verbal service.
Coastal State Fishery Regulation Under International Law: A Comment On The La Bretagne Award Of July 17, 1986 (The Arbitration Between Canada And France), William T. Burke
Coastal State Fishery Regulation Under International Law: A Comment On The La Bretagne Award Of July 17, 1986 (The Arbitration Between Canada And France), William T. Burke
San Diego Law Review
It is now almost six years since the adoption of the LOS Convention and over ten years since the general acceptance of unilaterally extended fisheries jurisdiction, but we are still only in the early phases of working out the implications of these events for wealth and other value distributions. Establishing national fisheries regimes is a difficult and time-consuming task, even for the leading developed nations.
The 1982 U.N. Convention On The Law Of The Sea: A Midstream Assessment Of The Effectiveness Of Article 309, John King Gamble Jr.
The 1982 U.N. Convention On The Law Of The Sea: A Midstream Assessment Of The Effectiveness Of Article 309, John King Gamble Jr.
San Diego Law Review
This Article examines the United Nations Convention on the Law of the Sea and the stand that it takes on reservations. The author argues that article 309 prohibits all reservations, while article 310 permits declarations and statements, provided these do not purport to exclude or modify the legal effect of the Convention. The author examines all declarations to determine if the letter and spirit of articles 309 and 310 are being met. The author further offers some observations about the effects of article 309 on participation levels in the treaty.
The Removal Of Offshore Installations And Conflicting Treaty Obligations As A Result Of The Emergence Of The New Law Of The Sea: A Case Study, Paul V. Mcdade
The Removal Of Offshore Installations And Conflicting Treaty Obligations As A Result Of The Emergence Of The New Law Of The Sea: A Case Study, Paul V. Mcdade
San Diego Law Review
of the sea context can be amended, modified, or terminated in a variety of ways, and that, frequently, the substantive coverage of a new or proposed treaty will overlap the scope of a treaty already in force. The author further argues that states can create divergent practices that create new norms of behavior. The author suggests that the complex manner in which international law evolves can be illustrated by examining the rules regarding the removal of offshore installations, and analyzes the interacting factors that produce binding obligations on states parties by tracing the development of the law governing offshore installation …
Foreword, Elisabeth Mann Borgese
Foreword, Elisabeth Mann Borgese
San Diego Law Review
Twenty years have passed since preparation began for the Third United Nations Conference on the Law of the Sea - the longest, largest, and most complex international conference ever held. As regular readers of this journal know, this development was triggered by the now classical address by the Delegate of Malta, Ambassador Arvid Pardo, to the United Nations General Assembly on November 1, 1967.
Recent Developments In The Law Of The Sea 1986, Heidi E. Brown
Recent Developments In The Law Of The Sea 1986, Heidi E. Brown
San Diego Law Review
Nineteen eighty-six witnessed the adoption of "Resolution II" of the United Nations Convention on the Law of the Sea (LOS Convention), dealing with deep seabed mining. While the United Nations General Assembly reaffirmed its support of the LOS Convention, only seven nations ratified or acceded to the Convention in 1986. Some success was seen in fishing treaties and protection of marine mammals. Renewed concern surfaced regarding pollution of our oceans. Lastly, a long-brewing controversy between the United States and Libya erupted into a military confrontation in March, creating the major territorial dispute of 1986.
Sand Rights: Using California's Public Trust Doctrine To Protect Against Coastal Erosion, Michael A. Corfield
Sand Rights: Using California's Public Trust Doctrine To Protect Against Coastal Erosion, Michael A. Corfield
San Diego Law Review
This Comment examines the potential use of the public trust doctrine in the context of public beach. The author argues that reduced stream flow has resulted in much less sand being transported to California beaches and that much of the coastline is eroding at an alarming rate. The author further argues that the public trust doctrine provides that the tidelands are held in trust by the state for the benefit of the public, but that most legislation regarding the public trust doctrine has focused on ownership interests in public trust resources. The author suggests a system of public rights to …
The Doctrine Of Ancient Title: Unknown Origins Uncertain Future, Barry Lawrence Ruderman
The Doctrine Of Ancient Title: Unknown Origins Uncertain Future, Barry Lawrence Ruderman
San Diego Law Review
This Comment examines the nature of state claims that various coastal waters should be classified as the state's internal waters and the recent application by the Supreme Court of the doctrine of ancient title to these claims. The author argues that, while the doctrine of ancient title is the oldest methods of acquiring territory, its introduction into a domestic dispute is controversial, and has significant domestic and international ramifications. The author discusses the origins of ancient title doctrine and its application to such state claims. The author takes issue with the Supreme Court's implicit recognition of ancient title in a …
Marine Pollution: Injury Without A Remedy, M. Casey Jarman
Marine Pollution: Injury Without A Remedy, M. Casey Jarman
San Diego Law Review
Pollution of coastal and ocean waters is a complex and serious problem. Many contaminants reaching the ocean are harmful to marine organisms. Pollution affects the marine environment at all levels, from marine organisms to human beings. Along with the environment, the economy suffers injury because of damage to food sources. This Article discusses the role of federal courts as a forum for redress of damages suffered from the pollution of coastal and ocean waters. It examines conflicting state and federal common law and statutory remedies for marine pollution. It concludes that in the face of the federal judiciary's retreat, Congress …
The Gulf Of Sidra, Roger Cooling Haerr
The Gulf Of Sidra, Roger Cooling Haerr
San Diego Law Review
This Comment evaluates the validity of the Libyan claim to the Gulf of Sidra in relation to the Law of the Sea Convention. The author analyzes the lawfulness of U.S. naval maneuvers within the Gulf, and then analyzes the resort to the use of force in the settlement of this dispute within the U.N. Charter and customary international law.
Georges Bank--Common Ground Or Continued Battleground--Comparative Marine Resource Management And Environmental Assessment In The United States And Canada, Donna R. Christie
Georges Bank--Common Ground Or Continued Battleground--Comparative Marine Resource Management And Environmental Assessment In The United States And Canada, Donna R. Christie
San Diego Law Review
This Article examines the United States and Canadian legal frameworks for marine resource management in the area of the Bay of Fundy, Gulf of Maine, and Georges Bank. The author argues that, while the controversies between the United States and Canada concerning boundaries, fish, and transboundary environmental effects of energy development have existed for almost two centuries, current environmental problems are straining the relations between the two countries. The author presents a comparative analysis of the environmental assessment and the marine fisheries management and outer continental shelf development regimes of the United States and Canada, addresses the prospects for the …
Surviving The "Chubasco" Liability Of California Beach Communities For Natural Conditions Of Unimproved Public Property, Robert J. Gerard Jr.
Surviving The "Chubasco" Liability Of California Beach Communities For Natural Conditions Of Unimproved Public Property, Robert J. Gerard Jr.
San Diego Law Review
This Comment examines the issue of the liability of coastal communities for injuries resulting from natural conditions on public beaches. The author argues that Section 831.2 of the Tort Claims Act specifically provides governmental immunity for injuries caused by natural conditions of unimproved public property, but that recent judicial decisions have undermined this immunity in cases involving injuries that have occurred along California's coast. The author argues that the California legislature needs to intervene and reestablish the protection that section 831.2 was meant to provide to California's coastal communities.
Foreword, Frank B. Swayze
Foreword, Frank B. Swayze
San Diego Law Review
The passage of time has not diminished the achievement represented by the United Nations Convention on the law of the Sea. History knows of no other international agreement of which so many states and varying constituencies have been represented. As one who participated, although comparatively briefly and certainly in a minor way, in the negotiations which culminated in the Convention, I welcome this opportunity to add a few personal thoughts to the Law of the Sea Symposium on the San Diego Law Review.
United States Jurisdiction Over The 200-Mile Maritime Zone, Kathleen L. Walz, L. Poe Leggette
United States Jurisdiction Over The 200-Mile Maritime Zone, Kathleen L. Walz, L. Poe Leggette
San Diego Law Review
This Article examines the issue of the United State's exertion of jurisdiction over the continental shelf, with specific focus on the recent Department of Interior opinion, which provides that the Department has leasing authority with respect to the mineral resources of the "outer Continental Shelf," as defined by the Outer Continental Shelf Lands Act. The authors examine the two sources of law that determine the extent of United States jurisdiction and control over the seabed, customary international law and treaties and conventions binding upon the United States. The authors conclude that the United States' exercise of jurisdiction under this opinion …
The Management Function Of Ocean Boundaries, Kenneth P. Beauchamp
The Management Function Of Ocean Boundaries, Kenneth P. Beauchamp
San Diego Law Review
This Article discusses the nature of spatial and functional zones in the ocean, and their relation to the purposes of coastal-state and international jurisdictions. The author argues that advances in ocean technology, growing requirements for marine resources, and an increasing number of ocean users, have created the need for a functional and managerial approach to the exploitation of offshore resources and the use of ocean space. The author further argues that the boundaries which man has set in the ocean have generally inhibited such a development, because they carry with them an idea of separation or divisiveness, which has been …
The Soviet Doctrine Of The Closed Sea, Joseph J. Darby
The Soviet Doctrine Of The Closed Sea, Joseph J. Darby
San Diego Law Review
This Article examines the Soviet Union's doctrine of the closed sea, under which the warships of all nonlittoral countries of certain designated peripheral seas would have no right to enter and navigate on those seas. The author analyzes the development of this doctrine and analyzes its application of this doctrine to the Black Sea, in light of recent historical developments and developments in the Law of the Sea.
Recent Developments In The Law Of The Sea 1984-1985, Ellen Moffat Fry
Recent Developments In The Law Of The Sea 1984-1985, Ellen Moffat Fry
San Diego Law Review
Nineteen eight-five witnessed additional ratifications of the United Nations Convention on the Law of the Sea, but the LOS Convention still has not received one-half of the number necessary to bring it into force. Some success was seen in boundary delimitations, fishing treaties, and pollution control, yet news events brought the grim realization that many issues, such as terrorism at sea, the conflict between nuclear-testing nations and those wishing to eliminate such testing, and constraints on the freedom of navigation, are far from resolved. Lastly, the discovery of the Titanic and the movement to designate it as a memorial, free …
Must The Foreign Sovereign Immunities Act Bar International Human Rights Claims, Denise Harbaugh
Must The Foreign Sovereign Immunities Act Bar International Human Rights Claims, Denise Harbaugh
San Diego Law Review
This Comment examines whether the Foreign Sovereign Immunities Act is amenable to the claims of alien victims of torture. The author concludes that doctrine of sovereign immunity will bar future judgments in favor of alien victims of torture. The author further discusses the policies that allow litigation of torture claims in United States courts and proposes an amendment to the Foreign Sovereign Immunities Act that would provide one of the few available means of redress for these victims of international human rights violations.
The Doctrine Of Historic Bays: Applying An Anachronism In The Alabama And Mississippi Boundary Case, James Michael Zimmerman
The Doctrine Of Historic Bays: Applying An Anachronism In The Alabama And Mississippi Boundary Case, James Michael Zimmerman
San Diego Law Review
This Comment examines the recent decision of the Supreme Court in the Alabama and Mississippi Boundary Case, in which the Court held that the Mississippi Sound was part of inland waters, and not the territorial sea. The author analyzes the historical development of the delimitation of bays and the development of the Submerged Lands Act. The author further discusses the application of the doctrine of historic bays to domestic disputes and argues that the Court's basis for its decision is questionable due to the imprecise nature of the doctrine.
Taming Troubled Waters: Joint Development Of Oil And Mineral Resources In Overlapping Claim Areas, Mark J. Valencia
Taming Troubled Waters: Joint Development Of Oil And Mineral Resources In Overlapping Claim Areas, Mark J. Valencia
San Diego Law Review
This Article examines the issues surrounding the joint development of resources in overlapping claim areas. The author reviews the precedents for joint development of offshore areas and seeks to define the elements that frequently appear in these precedents, namely the extent of the area, the contract type, the financial arrangements, the process of selection of concessionaires or operators, the length of the agreement, and the nature and functions of the joint management body. The author also examines the joint development efforts of various countries which share common claimed resources. The author argues that the success of joint development agreements depends …