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Full-Text Articles in Law of the Sea
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 …
International Environmental Law And Policy: An Overview Of Transboundary Pollution, John Warren Kindt
International Environmental Law And Policy: An Overview Of Transboundary Pollution, John Warren Kindt
San Diego Law Review
This Article provides an overview of several of the transboundary pollution issues affecting the Law of the Sea. The author argues that global pollution and transboundary pollution have historically been viewed from two major perspectives, namely from the land and from the ocean. The author suggests that more emphasis should be placed upon the ocean as the observational standpoint, because this standpoint is relatively unencumbered by pre-existing disputes involving land-based pollution. The author further argues that this oceanic standpoint also provides for fresh perspectives and allows for innovative policymaking to prevent, reduce, and control international pollution.
Foreword, Myron H. Nordquist
Foreword, Myron H. Nordquist
San Diego Law Review
The editors of the 1984 Law of the Sea Symposium asked that this Foreword concentrate on the future developments of the law of the sea. Implicit in the request is the assumption that the post-1984 period merits an examination of where the law of the sea is headed. the editors' assumption is a valid one. On the final date for signature, December 10, 1984, there were 159 signatures to the United Nations Convention on the Law of the Sea the Convention. This number alone justifies the exploration of what lies ahead in the new era of oceans law, ushered in …
Management Of Large Marine Ecosystems: Developing A New Rule Of Customary International Law, Martin H. Belsky
Management Of Large Marine Ecosystems: Developing A New Rule Of Customary International Law, Martin H. Belsky
San Diego Law Review
This Article examines the legal framework for regulating activities in the ocean and how this has affected the management of coastal and marine ecosystems. The author argues that, historically, international law rules have hindered attempts to establish comprehensive approaches to controls over marine uses. The author suggests that recent developments in the establishment of both a treaty and the customary law of the sea may provide an opportunity for the emergence of new international norms requiring total ecosystem management regimes. The author concludes with suggested options for multi-national attempts to total ecosystem management and to secure its establishment as a …
The Legal Character Of The Right To Explore And Exploit The Natural Resources Of The Continental Shelf, F. V.W. Penick
The Legal Character Of The Right To Explore And Exploit The Natural Resources Of The Continental Shelf, F. V.W. Penick
San Diego Law Review
This Article examines the need for the legal characterization of the rights of coastal states to explore and exploit the natural resources of its continental shelf. The author discusses the need for such characterization and reviews the law regarding analogous onshore mineral rights. The author examines the negotiations that lead to the final wording of the Geneva Convention on the Continental Shelf and the subsequent conduct of nations, and concludes that coastal states enjoy real property rights in the natural resources located on its continental shelf.
Assessing The Reality Of The Deep Seabed Regime, John King Gamble Jr.
Assessing The Reality Of The Deep Seabed Regime, John King Gamble Jr.
San Diego Law Review
This Article argues that, in order to be effective, international law must stand in some direct relation to state practice and that the gap between legal prescription and state practice must not be too large or the law will be ineffective. The author examines this gap in relation to the deep seabed provisions of the 1982 United Nations Convention on the Law of the Sea and suggests that, if the gap is not narrowed, the treaty may never enter into force.
Freedom Of Fisheries Research In The U. S. In The Best Interest Of The United States, William L. Sullivan Jr.
Freedom Of Fisheries Research In The U. S. In The Best Interest Of The United States, William L. Sullivan Jr.
San Diego Law Review
This Article examines the issue of whether the latitude granted to marine researchers has resulted in significant damage to the fisheries resources of the United States. The author further examines the informal procedures whereby illegal fishing activity, under the guise of research, is minimized.
Recent Developments In The Law Of The Sea 1983-1984, John A. Clemons
Recent Developments In The Law Of The Sea 1983-1984, John A. Clemons
San Diego Law Review
This Synopsis examines major events occurring between December 1983 and December 1984 that affect the law of the sea. It discusses military uses of the world's ocean space that impaired free and peaceful navigation of the world's seas in 1984, the United Nations Convention on the Law of the Sea and related issues, marine environment pollution, marine mammals, Antarctica, and the St. Georges Bank controversy.
Korean Airline Flight 007: Stalemate In International Aviation Law- A Proposal For Enforcement, Jeffrey D. Laveson
Korean Airline Flight 007: Stalemate In International Aviation Law- A Proposal For Enforcement, Jeffrey D. Laveson
San Diego Law Review
This Comment addresses the limitations in international law enforcement issues and the vulnerability of civilian passengers during international travel, which arose after the crash of Korean Airline Flight 007. The author argues that existing enforcement schemes leave much to be desired and that, while the use of economic sanctions is a common thread among various international tribunals, the piecemeal application of such sanctions are rarely effective and often prohibitively burdensome on the imposing parties. The author proposes several new multilateral economic enforcement schemes, which hope to balance the interest of national security with safe international travel.
The Legal Implications Of United States Policy Toward Nicaragua: A Machiavellian Dilemma, Keith T. Schulz
The Legal Implications Of United States Policy Toward Nicaragua: A Machiavellian Dilemma, Keith T. Schulz
San Diego Law Review
This Comment examines the impact on international law of the claims by Nicaragua that recent United States' actions violate specific norms of international law and behavior and the claims by the United States that its actions are legal under international principles of collective self-defense. This Comment examines these claims under the relevant rules of international law and concludes that the methods employed by the United States were in violation of international standards of behavior.
Watchout Watchmen! Congress Has Excluded Security Employees From "Maritime Employment" Coverage Under The Longshore And Harborworkers' Compensation Act Amendments Of 1984, Kenneth J. Witherspoon
Watchout Watchmen! Congress Has Excluded Security Employees From "Maritime Employment" Coverage Under The Longshore And Harborworkers' Compensation Act Amendments Of 1984, Kenneth J. Witherspoon
San Diego Law Review
This Comment examines the recent Congressional decision that individuals employed exclusively to perform security work are no longer covered under the Longshore and Harbor Workers' Compensation Act (LHWCA). The author argues that watchmen had been traditionally covered both before and after Congress added a "status" test for coverage in 1972. Examining the pre and post-1972 decisional history, the author argues that because Congress eliminated the jurisdictional dilemma which formerly served as the main justification for extending LHWCA coverage, the 1984 LHWCA amendments excluding coverage are consistent with those previous judicial decisions extending coverage to watchmen.
Self-Determination In Hong Kong: A New Challenge To An Old Doctrine, Eric M. Amberg
Self-Determination In Hong Kong: A New Challenge To An Old Doctrine, Eric M. Amberg
San Diego Law Review
This Comment examines the upcoming transition of Hong Kong as a "special administrative region" of the People's Republic of China (PRC) in 1997. The author argues that, in addition to the economic freedoms that will be preserved in Hong Kong, the people of Hong Kong should be guaranteed the right of self-determination in order to increase the level of confidence with which the people of Hong Kong view this transition. The author examines the history of the sovereign claims to Hong Kong and the substance of the transition agreement between Great Britain and the PRC. The author concludes that the …
Uncharted Waters: Non-Innocent Passage Of Warships In The Territorial Sea, F. David Froman
Uncharted Waters: Non-Innocent Passage Of Warships In The Territorial Sea, F. David Froman
San Diego Law Review
This Article examines the nature of the right of innocent passage for warships in a territorial sea. The author argues that, although a right of innocent passage for warships appears in the 1982 Convention on the Law of the Sea, the practices of many coastal States conflict with the Convention's provisions and cloud resolution of several central questions, such as who decides whether passage is innocent or non-innocent, by what criteria, and what sanctions exist. Drawing upon the Convention, coastal State legislation, and recent submarine intrusions of Swedish and Norwegian waters, the author concludes that modern notions of sovereignty, which …
Offshore Oil Platforms Which Pollute The Marine Environment: A Proposal For An International Treaty Imposing Strict Liability, Melissa B. Cates
Offshore Oil Platforms Which Pollute The Marine Environment: A Proposal For An International Treaty Imposing Strict Liability, Melissa B. Cates
San Diego Law Review
This Comment considers the legal ramifications of an offshore oil well explosion that spills oil into the marine environment of another nation. The author suggests that no effective international law exists to govern the legal issues spawned by these incidents, including questions of liability, damages, and compensation. The author proposes the development of a new international treaty imposing strict liability on a nation when an offshore structure within its jurisdiction causes transnational oil pollution. The author argues that the current utilization of the strict liability concept in various sources of "customary" international law supports this standard of liability.
The 1982 Convention And Customary Law Of The Sea: Observations, A Framework, And A Warning, John King Gamble Jr., Maria Frankowska
The 1982 Convention And Customary Law Of The Sea: Observations, A Framework, And A Warning, John King Gamble Jr., Maria Frankowska
San Diego Law Review
This Article examines the relationship between the 1982 Law of the Sea Convention and customary international law of the sea. The authors warn against the simple inquiry of whether the 1982 Convention codifies existing customary law, and propose a three-category approach with which to analyze the Convention's provisions. The authors argue that the relationship between the 1982 Convention and customary international law is an organic, interactive process that will preoccupy legal scholarship for the rest of the decade and that any attempt to arrive at a definitive treatment of this issue would be impossible.
Institutional Aspects Of Fishery Management Under The New Regime Of The Oceans, J. E. Carroz
Institutional Aspects Of Fishery Management Under The New Regime Of The Oceans, J. E. Carroz
San Diego Law Review
This Article reviews the changes already made or envisaged in light of the relevant provisions of the 1982 United Nations Convention on the Law of the Sea and the biological characteristics of the living resources of the sea. The author argues that the establishment of exclusive economic zones necessitates the alteration of institutional arrangements developed over the last decades to promote international cooperation in the management of fisheries. The author describes the establishment of a network of regional fishery bodies and analyzes the effect of the 1982 Convention provisions concerning the institutional aspects of fishery management. The author then reviews …
Treating A Vessel Like A Home For Purposes Of Conducting A Search, Barry Vrevich
Treating A Vessel Like A Home For Purposes Of Conducting A Search, Barry Vrevich
San Diego Law Review
This Comment examines recent decisions by the United States Supreme Court which indicate the Court is prepared to authorize the full warrantless search of a vessel subsequent to a lawful, random boarding, even in the absence of an articulable suspicion of wrongdoing. The author argues that the creation of a new "maritime safety and document inspection" exception to the fourth amendment's warrant requirement and probable cause standard would be an unprecedented and unjustified infringement on the constitutional rights of individual mariners. The author argues that, because a mariner's home is often his vessel, a warrant should be required to search …
Recent Developments In The Law Of The Sea 1982-1983, Jean E. Polhamus
Recent Developments In The Law Of The Sea 1982-1983, Jean E. Polhamus
San Diego Law Review
This Synopsis highlights major events occurring between December 1982 and December 1983 that affect the law of the sea. It discusses events occurring after the United Nations Convention on the Law of the Sea was opened for signature on December 10,1982, the continuing responsibilities of the Third United Nations Conference on the Law of the Sea, the United States' refusal to sign the 1982 Convention, and its subsequent actions, and other significant events outside the conference.