Law of the Sea Commons^™

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

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

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

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

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

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.

Extension Of Ocean Dumping Legislation Under The Marine Protection, Research, And Sanctuaries Act To A United States Exclusive Economic Zone, Arlene Koval

San Diego Law Review

This Comment addresses President Reagan's March 10, 1983 Proclamation declaring a 200-mile Exclusive Economic Zone for the United States and the issue of the application of national legislation to that zone. The author discusses the feasibility of extending domestic ocean dumping legislation under the Marine Protection, Research, and Sanctuaries Act to a United States Exclusive Economic Zone in the context of existing international agreements dealing with ocean dumping.

Conflict Resolution In The Assignment Of Area Entitlements For Seabed Mining, J. M. Broadus, Porter Hoagland Iii

San Diego Law Review

This Article examines the conditions creating a need for, and the procedures being implemented to achieve, resolution of conflicts over deep seabed areas sought for exclusive exploration entitlements. The author argues that if and when deep seabed mining takes place, certain tangible advantages will accrue to nations or organizations that have obtained entitlements to exclusivity of activity within areas of the seabed. The author further suggests that the development of legal assurances of exclusivity and security of work within a claimed area has been proceeding along two different tracks, the 1982 Convention, and a prospectively complementary but currently separate and …

The International Regulation Of Small Cetaceans, Cynthia E. Carlson

San Diego Law Review

This Article examines the current international regulatory regime for the conservation and management of cetaceans. The author argues that there are approximately sixty species of small cetaceans, but because the primary focus of the International Whaling Commission (IWC) has been the setting of commercial harvest levels and conservation measures for large cetaceans, nations have assumed that the IWC's jurisdiction is limited to the regulation of larger species, although nowhere in the IWC Convention or in any rule or regulation is the term "whale" defined. The author argues that, in light of the fact that the harvest levels of small cetaceans …

Prospects For Increased State And Public Control Over Ocs Leasing: The Timing Of The Environmental Impact Statement, Edward Corwin

San Diego Law Review

This Comment reviews the current opportunities for state, local government, and public influence on the Department of Interior's Outer Continental Shelf decisions. The author argues that, while federal statutory procedures provide local governments and the public various opportunities to provide input regarding oil and gas leases on the Outer Continental Shelf, these channels of input fall far short of facilitating effective participation by these groups in federal decisions concerning those leases. The author suggests that earlier public availability of the Draft Environmental Impact Statement may remedy some of the inadequacies of the current process.

The Emerging Regime Of Islands As Archipelagic States, Frank Gable

Marine Affairs Theses and Major Papers

This essay will discuss the significance of islands as archipelagos, i.e. any two or more islands identified politically as one entity. Within the body of this report will be references regarding the historical background to archipelagos and how they emerged into international topics of law. Further, the differences international law affords coastal archipelagos as opposed to outlying mid-ocean archipelagos will be interpreted. These differences include, for instance, the design of baselines used to enclose territorial waters. As the paper progresses, the reader will being to see how the Third United Nations Conference on the Law of the Sea (UNCLOS (III) …

Third World Trade Partnership: Supranational Authority Vs. National Extraterritorial Antitrust--A Plea For "Harmonized" Regionalism, Wolfgang Fikentscher

Michigan Law Review

That "Third World countries" should receive the assistance of the "industrialized nations" in increasing the level of their economic development is a matter beyond dispute. Yet the years following the "economic decade" of the 1970's have made apparent a crisis in the concepts underlying this philosophy of Third World assistance. The nature of this crisis has not yet been fully ascertained, and the following text does not undertake that task. Rather, it starts from the general feeling among experts involved in one way or another with "development aid" that the paths so far followed and the methods so far applied …

Books Received

Vanderbilt Journal of Transnational Law

The legal aspects of international contracts for the sale of goods are intrinsically complex. First, the negotiation and performance of international contracts must frequently be conducted at a dis- tance and with the assistance of many intermediaries. The rights and obligations of parties to an international sale are usually more manifold than those of a purely domestic sales transaction, and the effect and scope of these international rights and obliga- tions must be determined by sophisticated mercantile rules which are not present in all legal systems. Second, because an interna- tional sales transaction extends beyond the boundaries of one country, …

Legal Problems Of Seabed Boundary Delimitation In The East China Sea, Ying-Jeou Ma

Maryland Series in Contemporary Asian Studies

This book is the first comprehensive study of the complex problems of boundary delimitations in the East China Sea that involves four coastal states, namely Korea, Japan, the Republic of China (ROC) and the People's Republic of China (PRC).

The National And International Legal Complications Of Subseabed Emplacement Of High-Level Nuclear Waste, Lynn Carlson

Marine Affairs Theses and Major Papers

High-level radioactive waste produced by nuclear power generation, weapons production, and medical research has been accumulating in temporary storage pools in many countries. A permanent method of disposal will soon benecessary to ensure against contamination of man and the environment. Land-based geologic formations, such as salt domes, are the preferred sites for disposal at this time in the United States. Subseabed emplacement is one option under consideration and the technological aspects of this method are currently being studied. In order to resolve these issues, it is proposed that relevant laws be conditionally amended to legalize subseabed emplacement, but only after …

The Maritime Boundaries Of Venezuela, Jose L. Cedeno

Marine Affairs Theses and Major Papers

Venezuela has maritime boundaries with the following neighbors: two adjacent coastal states, Colombia and Guyana, and six opposite coastal states Trinidad-Tobago, Grenada, San Vincent and the Grenadinas, Sain Lucia, Dominica and Dominican Republic, one United States commonwealth associates states (Puerto Rico) and with dependent islands of the United States (Virign Islands), United Kingdom (Nevis, St. Christopher and Montserrat), France (Guadeloupe and Martinique) and Netherland (Curacao, Aruba, Bonaire, Saba and St. Eustatius).

The paper discuss at length three recent Venezuelan agreements: a fishing agreement with Trinidad and Tobago (1977), plus two Exclusive Economic Zone (EEZ) delineation treaties concluded almost simultaneously in …

Regulatory Reform In The Ocean Shipping Industry: An Extraordinary U.S. Commitment To Cartels, George E. Garvey

Scholarly Articles

This article explores the historical basis for and nature of the existing regulatory model for the U.S. shipping industry, the reasons suggested for the changes under consideration, and the possible impact of the proposed changes. The article concludes that the primary justifications for continued regulation of ocean shipping are flawed and thus require more serious consideration than is likely to occur through the legislative hearing process. Alternatively, if the changes are imperative politically, the facts suggest efficient U.S. liner companies are likely to thrive in a more competitive regime. More radical deregulation than Congress has considered seriously, therefore, might be …

The Juridical Status Of The Gulf Of Taranto: A Brief Reply, Gayl S. Westerman

Elisabeth Haub School of Law Faculty Publications

The special problem of identifying the juridical nature of coastal indentations is but one aspect of a more fundamental problem: the need to accommodate the legitimate exclusive interests of coastal states in maximizing wealth, power, and national security with the inclusive interests of the community of states in maximizing freedom of the seas. Throughout historical cycles of mares liberum and clausum, this fundamental accommodation has remained the central focus of the international law of the sea. Even today, after thoroughgoing codification efforts in 1958 and 1982: the legal regime of the oceans remains in transition.

The United States' Claims Of Customary Legal Rights Under The Law Of The Sea Convention

Washington and Lee Law Review

No abstract provided.

Vessel-Source Pollution And The Law Of The Sea, John W. Kindt

Vanderbilt Journal of Transnational Law

On March 16, 1978, history's worst oil spill occurred when the tanker Amoco Cadiz lost her steering and drifted onto rocky shoals off the French coast. Approximately 223,000 tons of oil were spilled, polluting and ruining over 100 miles of the Brittany coast, an area that previously had supplied one-third of France's seafood and had attracted tourists from all over Europe. Despite all this damage, only thirty million dollars was available for cleanup--none to repair the ecological devastation. Although this well-publicized accident shocked the world, it was only one of many oil spills that occurred during 1978.

By definition, "vessel-source …

The Regime Of Warships Under The United Nations Convention On The Law Of The Sea, Bernard H. Oxman

Articles

No abstract provided.

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Law of the Sea: U.S. Policy Dilemma Edited by Bernard H. Oxman, David D. Caron, and Charles L. Buderi San Francisco: ICS Press, 1983. Pp. x, 184. $21.95.

The Fish Feud By David L. Vander Zwaag Lexington, Massachusetts: Lexington Books, 1983. Pp. xiii, 135. $21.95.

Negotiating Foreign Investments: A Manual for the Third World Edited by Robert Hellawell and Don Wallace, Jr. Washington, D.C.: International Law Institute, 1982. $95.00.

Political Rights for European Citizens By Guido Van DenBerghe United Kingdom: Gower Publishing Company, 1982. Pp.xii, 235. $38.00.

The International Law of Pollution By Allen L. Springer Westport, Connecticut: Quorum Books, …

Canada's Arctic Jurisdiction In International Law, Donat Pharand

Dalhousie Law Journal

The purpose of this study is to make a brief overview of Canada's jurisdiction in the arctic regions, jurisdiction which has developed since the transfer of the Arctic Islands to Canada by Great Britain in 1880. The study will concentrate on Canada's jurisdiction over the water areas of the Arctic, but will also cover the status of the other areas involved. More specifically, the areas to be covered are: 1) the islands; 2) the continental shelf; 3) the waters in general; 4) the Northwest Passage; and 5) the airspace.

The Convention On The Law Of The Sea: A Preliminary Appraisal, Arvid Pardo

San Diego Law Review

In this Article, the author analyzes the 1982 United Nations Convention on the Law of the Sea. The author seeks to address whether the Convention adequately addresses the need to establish equity in ocean space between the states, as well as whether the Convention has developed adequate legal regimes to promote the global management of marine resources. He concludes that in certain areas, the Convention does not reflect true compromise but rather vague drafting that masks continued disparate positions among the signing States.

The United States Posture Toward The Law Of The Sea Convention: Awkward But Not Irreparable, Elliot L. Richardson

San Diego Law Review

In this Article, the author examines the position of the United States towards the Convention and the reasons behind its refusal to sign the Convention. The author argues that this refusal was disappointing and that the U.S. surrendered global stability for its own ideological purity. He argues that, by refusing to sign, the U.S. has isolated itself from direct decision-making in the Preparatory Commission. However, the author believes that the prospects of long-range detrimental effects on the United States' marine and other global interests will bring about a reversal in their current position.

Freedom Of The High Seas Versus The Common Heritage Of Mankind: Fundamental Principles In Conflict, E. D. Brown

San Diego Law Review

This Article examines the competing claims surrounding the refusal of the U.S. and other industrialized nations to sign the Convention. The author argues that it is now possible that seabed mining will proceed under a reciprocating state regime based on unilateral legislation, justified under the principle of the freedom of the seas. However, the signatory States have claimed that this type of legislation is contrary to international law based on the principle of the common heritage of mankind. The author examines the basis for each of these claims and how these claim survive under the current legal regime governing seabed …

The Ocean Enclosure Movement: Inventory And Prospect, Lewis M. Alexander

San Diego Law Review

This Article examines the "ocean enclosure movement" and its future viability in light of the signing of the Convention. The author presents an overview of the development of the maritime jurisdictional regime and then examines the impacts of current jurisdictional claims on ocean use. The author continues to examine the potential trends in the ocean enclosure movement against the backdrop of the Convention.

Exclusive Fisheries Zones And Freedom Of Navigation, William T. Burke

San Diego Law Review

This Article examines the conflict between the proposed extension of resource fishery zones and its potential interference with the freedom of navigation. The author analyzes the various policies in support of each side, with particular attention to the decisions and principles of conventional and customary law and special reference to provisions of the Convention. The author also examines various proposed measures in light of these legal decisions and principles. The author concludes that only limited authority to affect navigation should be recognized and that this right should be reserved to developing States that have special dependence on fisheries for their …

The International Sea-Bed Authority Decision-Making Process: Does It Give A Proportionate Voice To The Participant's Interests In Deep Sea Mining?, Kathryn E. Yost

San Diego Law Review

This Comment critiques the United States' refusal to sign the Convention, based on its contention that the International Sea-Bed Authority (ISA) decision-making process fails to proportionately protect its interests in deep sea mining. The author examines the underlying purpose of UNCLOS III and the divergent political and economic interests of the participants in deep sea mining. The author further examines the decision-making process of the ISA in order to determine which interests are represented and protected by the system, and compares this system to other international means. The author argues that the United States' should sign the Convention, as its …

Recent Developments In The Law Of The Sea 1981-1982, G. David Robertson, Gaylene Vasaturo

San Diego Law Review

This Synopsis highlights major events occurring between December 1981 and December 1982 that affect the law of the sea. It discusses the eleventh session of the Third United Nations Conference on the Law of the Sea and significant events outside the Conference.