Modern Law of The Sea

MODERN LAW OF THE SEA
Publications on Ocean Development

Volume 59
A Series of Studies on
the International, Legal, Institutional and Policy Aspects
of Ocean Development
General Editor: Vaughan Lowe
Chichele Professor of Public International Law and Fellow of All Souls College,
Oxford University
The titles published in this series are listed at the end of this volume.
Modern Law of the Sea
Selected Essays
DAVID ANDERSON
MARTINUS NIJHOFF PUBLISHERS
LEIDEN / BOSTON
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ISSN: 0924-1922
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Contents
Preface and Acknowledgements xvii
Part 1 The Development of the Modern Law of the Sea 1
Chapter 1 The Development of the Modern Law of the Sea 3
I Earlier History: Mare Clausum and Mare Liberum 3
II Developments during the Two Halves of the Twentieth Century 6
III Some Key Developments between 1945 and 1995 8
IV Consolidation of the Modern Law during the Last Decade 18
V Reasons for the Emergence of the Modern Law 19
Chapter 2 Law-Making Processes in the UN System: Some Impressions 23
I Impressions of the Two Conferences 24
A Subject Matter 24
B Origins of the Conferences 26
C Preparations 27
D The Representation and Aims of the Main Groups 27
E Working Methods 29
F Outcome of the Vienna and Law of the Sea Conferences 35
II Impressions of the Legislative Processes 37
A Decision-Making Processes at Conferences and the Generation of
Rules of Law 37
vi Table of Contents
B Law-Making Conventions 38
C The Concept of the International Legislator 39
D Reform of the Law of the Sea 40
E The Amendment and Adjustment of Law-Making Conventions 41
III Conclusions 43
Part 2 The UN Convention on the Law of the Sea 47
Chapter 3 Entry into Force of the UN Convention on the Law of the Sea 49
I Present Status of the Convention and Future Prospects 50
II Adoption of the Agreement on the Implementation of Part XI of the
Convention 53
III Legal Implications of Entry into Force of the Convention and the
Provisional Application of the Agreement 55
A For States Parties 55
B For Non-Parties 56
C International Organisations and Conferences 57
IV The Nature of the Convention 57
V Compliance 59
VI Settlement of Disputes 59
VII Conclusions 61
Chapter 4 British Accession to the UN Convention on the Law of the
Sea 63
I Background to the Decision 64
II The Terms of Accession to the Convention 66
III The Implementation of the Convention in UK Law and Practice 69
IV Concluding Remarks 85
Chapter 5 The Current Status of the Conventions on the Law of the Sea 87
I Status of the United Nations Convention on the Law of the Sea 87
A Some Developments during the Mid-1990s 87
B The Extent of the Participation and its Representative Character 88
1 Regional Participation 88
2 Participation According to Maritime Interests 89
3 Participation According to Political Groupings 89
4 Participation According to Semi-enclosed Seas 90
C Reasons for Non-Participation 90
D Persistent Objectors? 91
E The Convention and Practice 91
F Assessment 93
II The Status of the Implementation Agreement of 1994 Relating to Part
XI 93
III The Status of the Geneva Conventions of 1958 94
IV The Status of the Fisheries Agreements Adopted in the 1990s 95
vii Table of Contents
V Concluding Remarks 96
Chapter 6 Rights of Passage and Marine Pollution 99
I The Right of Innocent Passage through the Territorial Sea 100
II Passage through the Exclusive Economic Zone (EEZ) 109
III Implementation of the LOS Convention in State Practice 1994-2005 110
IV Concluding Observations 114
Chapter 7 Straits Used for International Navigation 117
I Introduction 117
A The Evolution of the Law on International Straits 18941970 118
B The UN Committee on the Peaceful Uses of the Sea-Bed (the
Sea-Bed Committee) 120
C The Work of the Fiji/UK Group 121
D The Categorization of Straits in Part III 123
E The Interpretation and Application of Part III as a Whole 124
1 Geographical Factors 124
2 The Question of Use 125
3 Differences between the Regimes of Passage 127
F Part III and Customary Law 128
II Part III of the Convention: Text and Commentary 130
Appendix 157
Chapter 8 The Legal Regime of the Straits around Great Britain 163
I The Geopolitical Setting 163
II The Evolution of British Practice in Regard to the Territorial Sea 164
III British Straits and Similar Areas of Sea 165
A Straits Which Are Not Used for International Navigation 165
B Broad Straits Used for International Navigation 165
C Areas of Internal Waters behind Bay Closing Lines 166
D Areas of Internal Waters behind Straight Baselines 166
E Straits in Which a Right of Non-suspendable Innocent Passage
Applies 167
F Straits in Which the Right of Transit Passage Applies 167
1 The Fair Isle Gap 168
2 The North Channel 169
3 The Straits of Dover/Pas de Calais 169
Concluding Remarks 171
Chapter 9 The Legal Regime of the Channel/La Manche 175
I The Geographical Setting 175
II The Principal Uses of the Channel 176
III National Jurisdiction Applicable in the Channel 178
IV Delimitation of Maritime Boundaries 180
V The Channel as a Semi-Enclosed Sea 184
viii Table of Contents
VI The Regulation of Navigation and Transit Passage 185
VII The Regulation of Navigation in the Channel: Mandatory Routeing 186
VIII The Regulation of Navigation: Mandatory Reporting 188
IX EnIorcement oI Legislation implementing TraIfc Schemes 189
X Concluding Remarks 191
Chapter 10 The Icelandic Fisheries Cases 195
I The Impact of the Cases 198
A The Impact of the Case on the Third UN Conference on the Law
of the Sea 198
B The Impact of the Cases upon the Parties 199
II Some Procedural Aspects of the Cases 200
A Article 53 of the Statute 200
B The Question of the German Judge ad hoc and the Issue of
Joinder 200
III Questions of Substantive Law 201
A Treaty Law 201
B High Seas Freedoms and the Reasonable Regard Test 202
C The Concept of the Fishery Zone 203
D The Legal Duty to Conserve Fish Stocks 204
IV Some Differences between the Two Cases 204
A The Modus Vivendi 204
B The Claims Concerning Harassment by the Icelandic Coastguard 205
V The Dissenting Opinions 206
Chapter 11 The Regulation of Fishing and Related Activities in Exclusive
Economic Zones 209
I Economic Zones and Fishery Zones in the North Sea 209
II Fishing and Related Activities in the EEZ 211
A The Terms of the Convention 211
B Decisions and Practice in the Implementation of the Convention 214
1 The Arbitral Decision in La Bretagne 214
2 Some Global and Regional Fisheries Instruments 215
3 National Legislation 217
III Bunkering and the Saiga Cases 220
IV Some Concluding Remarks 224
A Processing, Transport and Transhipment. 224
B Bunkering and Supply/Support 224
Chapter 12 Freedoms of the High Seas in the Modern Law of the Sea 229
I Preface 229
II Introduction 229
II High Seas Navigation: Developments over the Past 30 Years 231
A The Retention of the Concept of the High Seas (Article 87 of the
Convention) 231
ix Table of Contents
B The Freedoms of the High Seas (Article 87) 233
C Nationality of Ships and Flag State Duties (Articles 91 and 94) 235
D TraIfcking in Narcotic Drugs 243
E Unauthorised Broadcasting from the High Seas 244
F Visit and Search (Article 110) 245
G Hot Pursuit (Article 111) 246
H Cables and Pipelines (Articles 112 to 115) 248
III Conclusions 248
Chapter 13 The Enforcement of International Maritime Rules and
Standards 251
I Introduction 251
A The Convention on the Law of the Sea and other International
Agreements 251
B International Rules and Standards 252
C Enforcement of Rules and Standards 253
II The Different Roles in Enforcement 254
A The Role of Flag States in Enforcement 254
B The Role of the Port State in Enforcement 257
C The Role of Coastal States, including Straits States 262
D The Enforcement Roles of International Organisations 264
III Concluding Remarks 265
Chapter 14 Port State Powers in the Modern Law of the Sea 267
I Historical Background before 1950 267
II Developments from 1950 to 1970 269
III First Proposals in the 1970s for Port State Control or Jurisdiction 270
IV Developments during the 1980s 274
V Developments in the 1990s 276
VI Recent Developments concerning International Fisheries 278
VII Concluding Remarks 283
Chapter 15 Prompt Release of Vessels under the UN Convention on the
Law of the Sea 287
I Introduction 287
II Article 292: General Issues 288
III The Substantive Provisions about Prompt Release 291
A Fisheries 291
B Marine Pollution 295
IV Conclusions 298
x Table of Contents
Part 3 The Implementation Agreement of 1994 301
Chapter 16 Efforts to Ensure Universal Participation in the Convention 303
I Developments in State Practice 198293 304
II The Work of Prepcom 198393 305
III The Secretary-Generals Consultations 1990May 1993 307
IV The Question of Form 311
V Conclusion 313
Chapter 17 Further Efforts to Ensure Universal Participation in the
Convention 315
I Brief Recapitulation: 1990 to May 1993 316
II August 1993: The Boat Paper 316
III The Final Rounds of Consultations 318
IV The Terms for Entry into Force of the New Agreement 319
V Some Issues of Substance 320
VI Legal Status of the Agreement 322
VII The Adoption of the Resolution and Signature of the Agreement 322
VIII Concluding Remarks 323
Chapter 18 The Role of the International Lawyer in the Negotiation of
Treaties 325
Introduction 325
I The Role of the International Lawyer in Applying the Law of Treaties 326
A The Positive Impact of the Vienna Convention of 1969 326
B Reservations to Multilateral Conventions 327
C Questions of Form 328
D Treaty Formalities 330
E Treaty Architecture 331
1 The Implementation Agreement 1994 331
2 The Berlin Agreement of 1971/1972 334
II The Role of the International Lawyer in Applying Other Rules of
International Law 335
A The Question Pralable: To Negotiate or Not? 335
B The Negotiation of the Modus Vivendi 336
C Negotiation and Recourse to Means of Third Party Settlement 337
D Negotiation and the Reform of International Law 338
E The Role of the International Lawyer as the Negotiator of Treaties 339
Chapter 19 Mechanisms for Adjusting Part XI and the Implementation
Agreement 341
I Introduction 341
II Some Key Discussions of Mechanisms 342
III The Mechanisms Chosen in the Draft Agreement for the
Implementation of Part XI 345
xi Table of Contents
IV Concluding Remarks 347
Chapter 20 Resolution and Agreement Relating to the
Implementation of Part XI 349
I The Secretary Generals Consultations 349
II The Resolution 351
III The Agreement Relating to the Implementation of Part XI 353
IV The Annex to the Agreement 356
A Section 1 356
B The Enterprise 357
C Decision-Making 357
D Review Conference 358
E Transfer of Technology 358
F Production Policy 358
G Economic Assistance 359
H Financial Terms of Contracts 359
I Finance Committee 359
IV Overall Assessments 359
Part 4 The Implementation Agreement of 1995 361
Chapter 21 The Straddling Stocks Agreement of 1995 363
I The Evolution of Customary and Conventional Law on High Seas
Fisheries to 1993 364
II The Work of the Straddling Stocks Conference 19931995 367
III The Terms of the Agreement of 1995 368
IV The Early Effects of the Agreement 375
V The Opening for Signature of the Agreement 375
VI Some Implications of the Agreement 376
Postscript 376
Part 5 The Delimitation of Maritime Boundaries 379
Chapter 22 Maritime Boundaries and Limits: Some Basic Legal
Principles 381
I Introduction: The Need for Legal Certainty 381
II Causes of Uncertainty 382
III The Law and Natural Diversity 384
IV Natural Diversity and the Principles for Delimiting Boundaries 386
V The Present Situation 391
VI Concluding Remarks 393
Chapter 23 Developments in Maritime Boundary Law and Practice 397
Introduction 397
I The Situation at the Outset of the ASIL Project 398
xii Table of Contents
II Some Key Developments between 1990 and 2004 400
III Contemporary Trends in Maritime Boundary-Making 403
A Trend towards a Consistent Approach and Methodology 403
B The Trend towards Single Maritime Boundaries 406
C Trend towards Accurate Application of the Rules on Baselines,
Islands, Low-tide Elevations, etc. 407
D Trend towards Unifcation oI Customary and Conventional Law 408
E Trend Towards Harmonization between the Different Zones 408
F Growing Interest in the Continental Shelf beyond 200 n.m. 409
G Trend towards Making Interim Arrangements 411
1 Joint Development 411
2 Special Areas for Fisheries Purposes 412
3 Provisional Boundaries 413
4 Bilateral Cooperation and Third States 413
5 Coordinated Patrolling 414
H Trend towards Use of Technical Experts, Geodesics and Computing 414
Chapter 24 Negotiating Maritime Boundary Agreements 417
I Political, Economic and Legal Factors in Negotiating Boundaries 417
II The Pre-Negotiation Phase 422
III The Negotiating Phase 423
IV The Drafting of Boundary Agreements 427
V Concluding Observations 435
Chapter 25 Maritime Delimitation: Early British Practice 437
I British Practice before UNCLOS III 437
II UNCLOS III and Maritime Delimitation 443
III Outstanding Maritime Delimitations 446
IV Conclusion 448
Chapter 26 British Maritime Jurisdiction 451
I Baselines 452
A Normal Baseline 453
B Straight Baselines 455
C Bay-Closing Lines 456
II Internal Waters 457
III Territorial Sea Limits and Boundaries 457
IV Fisheries Zone/Jurisdiction and Boundaries 460
V Continental Shelf Limits and Boundaries 461
VI Pollution Zone/Jurisdiction 465
VII Renewable Energy Zone 467
VIII Pirate Broadcasting Jurisdiction 467
IX Concluding Observations 468
xiii Table of Contents
Chapter 27 Grisbadarna Revisited 477
I Grisbadarna Recalled 478
II Grisbadarna Compared with More Modern Cases 479
III Grisbadarna Received 483
IV Grisbadarna Rejected 484
V Grisbadarnas Effects 486
VI Grisbadarna Reassessed 487
Chapter 28 Strategies for Dispute Resolution:Negotiating Joint
Agreements 491
I Introduction 491
II The Choice between a Boundary or Joint Development 492
III The Content of Joint Development Treaties 495
A Maintaining Basic Positions 495
1 Without Prejudice Clauses and International Law 495
2 The Need for Balanced Arrangements 497
3 Neutral Terminology 497
B Defning the Area and the Duration 498
C Degrees of Integration 499
IV Conclusions 500
Bibliography 500
Part 6 The Settlement of Disputes and the Law of the Sea 503
Chapter 29 The International Tribunal for the Law of the Sea 505
I Establishment of the Tribunal 505
II Jurisdiction of the Tribunal 508
III The Montreux Formula and the Institutional Dilemma 510
IV The Rules of the Tribunal 511
V The Judicial Policy of the Tribunal 513
VI The Existing Experience of International Courts 513
VII Internal Judicial Practice 515
VIII Concluding Observations 516
Chapter 30 The Early Practice of the International Tribunal for the Law
of the Sea 519
I Some Formative Infuences upon the Tribunal 519
II The Early Practice of the Tribunal 522
Chapter 31 The Internal Judicial Practice of the International Tribunal
for the Law of the Sea 529
I Some Relevant Factors concerning the Tribunal and its Working
Methods 530
II Some Precedents for Methods of Deliberating 532
xiv Table of Contents
III The Statute of the Tribunal and Its Rules 534
IV The Resolution on the Internal Judicial Practice of the Tribunal 535
V The Normal Procedures in Deliberations 536
VI Concluding Remarks 544
Chapter 32 The Role of ITLOS as a Means of Dispute Settlement under
UNCLOS 547
I The Tribunal and the Terms of the LOS Convention 548
A The Organisation of the Tribunal 550
B Jurisdiction 550
II Environmental and Shipping Aspects of the Tribunals Caselaw 551
A The Saiga (No 2) Case and the Question of Bunkering in the EEZ 552
B The Saiga (No 2) Case and Arrest at Sea 552
C Prompt Release of Detained Fishing Vessels and Reefers 553
D The Southern Bluefn Tuna Cases 554
E Swordfsh Case 556
F MOX Plant Case 556
G Issues to Do with the Registration and Management of Ships 556
III Summing Up 557
Chapter 33 The Judicial Work of the International Tribunal for the Law
of the Sea 559
I The Prompt Release Cases 560
A Fishing Vessels and Their Masters/Crews 561
B Support Vessel Cases 562
II The Provisional Measures Cases under Article 290(5) 563
III The Merits cases 564
A The Saiga (No 2) Case 564
B The Sworahsh Case 565
IV Concluding Observations 565
A The Role of the Tribunal in a Wider International Context 565
B The Role of the Tribunal in the Context of the Convention 566
Chapter 34 Scientihc Eviaence in Cases concerning the Law of the Sea 569
I Scientifc Tests in the Modern Law oI the Sea 569
II The Need Ior Scientifc Evidence when Scientifc Tests Are Applicable 571
III International Judges and Scientifc Questions 573
IV The case-law of the Tribunal 573
V Conclusions 576
Chapter 35 Trust Funds in International Litigation 577
I Introduction 577
II The Establishment of the Trust Fund for the International Tribunal for
the Law of the Sea 579
III Similarities between the Funds for the Court and the Tribunal 580
xv Table of Contents
IV Some Differences between the Two Funds 581
A The Respective Reasons for Establishing the Two Funds 581
B Objects and Purposes of the Trust Funds 582
C Applications for Financial Assistance 584
D Offers of Professional Assistance 584
V Some Concluding Remarks 586
Annex I to General Assembly Resolution 55/7: 588
The Terms of Reference of the Trust Fund for the International Tribunal for
the Law of the Sea 588
Chapter 36 Article 283 of the UN Convention on the Law of the Sea 591
Introduction 591
I Legislative History 592
II Textual and Contextual Analysis 596
III The Case Law 597
A Prior Diplomatic Negotiations 597
B The Application of Article 283 598
1 Southern Bluefn Tuna (SBT) cases 599
2 MOX Plant case 600
3 Land Reclamation case 601
4 Barbados v. Trinidad 604
IV Conclusions 607
Index 609
Preface and Acknowledgements
These collected essays, written between 1988 and 2006, examine different aspects of
the modern law of the sea. They address many key provisions in the United Conven-
tion on the Law of the Sea, including its historical development, the substantive rules
governing navigation, resources, the regime of the high seas, maritime jurisdiction,
the protection of the marine environment and the delimitation of maritime bounda-
ries, as well as the settlement of disputes. The essays also review the Implementation
Agreement of 1994 concerning deep seabed mining and the Implementation Agree-
ment of 1995 concerning Straddling and Highly Migratory Fish Stocks. Some of the
essays were written while I was one of the legal advisers to the Foreign and Com-
monwealth OIfce (1960-1996), others during my term oI oIfce as a judge oI the
International Tribunal for the Law of the Sea (1996-2005) and the remainder over the
past 15 months. All the opinions expressed are purely personal. The maps and chart-
lets that accompany several of the essays were kindly prepared by Chris Carleton, the
Head oI Law oI the Sea in the United Kingdom Hydrographic OIfce and I must thank
him for this and much other assistance.
I also wish to thank the publishers of the original versions of the essays for giving
permission to reprint them in this volume. Some of the essays have been brought
up to date; others have been left in their original terms; the remainder are new and
published Ior the frst time in this volume. The cut-oII date Ior inIormation was 15
November 2006. Thanks are also due to Annebeth Rosenboom and her colleagues at
Martinus Nijhoff Publishers for their help in preparing the manuscript for publica-
tion.
Finally, I must express my sincere gratitude to my wife, Jennifer, for her constant
support over many years.
David Anderson
Part 1
The Development of the Modern Law
of the Sea
Chapter 1
The Development of the Modern Law
of the Sea
The law of the sea has to do with the status and governance of the seas and oceans
which cover over 70% of the Earth. It provides the regulatory framework for the
growing number of human activities in the marine environment. It affects the politi-
cal, strategic, economic and other important interests of States. It is one of the oldest
parts of the law of nations, having developed slowly through the practice of States
over the centuries. Paradoxically, it is also the part that has seen the greatest changes,
mostly brought about through negotiations in Conferences convened by the United
Nations coupled with state practice. This Chapter, which serves as an introduction to
many of the essays that follow, will review some of the main trends in the law of the
sea over the past fve centuries. In order to provide context, some earlier European
history will be recalled briefy. The Chapter, however, concentrates upon the devel-
opment of the modern law and the central issue of the limits of national jurisdiction.
I Earlier History: Mare Clausum and Mare Liberum
The history of the law of the sea has been set out by learned authorities.
1
OConnell
in particular points out that throughout modern history two competing doctrines have
1 See, for example, Sir R. Jennings and Sir A. Watts, Oppenheims International Law,
Vol. I I, 9th ed. (1992), Chapters 5 and 6; D.P. OConnell, The International Law of the
Sea, Vol. I, (1982), I.A. Shearer (ed.), esp. Chapter 1; and the literature there cited; E.D.
Brown, The International Law of the Sea, Vol. I (1994), chapter 2; R.P. Anand, Freedom
4 Chapter 1
been advanced by scholars in regard to the status or governance of maritime areas:
national authority over the seas or Mare clausum; and freedom of the seas or Mare
liberum. Both these doctrines remain important elements in the modern law.
According to the frst doctrine, upheld by several authorities but notably by the
English writer, John Selden,
2
a State is entitled to claim and exercise authority over a
defned area oI the sea, including powers over any Ioreign ships, notably fshing ves-
sels, that might seek to enter that area. These claims occasionally extend to complete
closure (hence the use of clausum), but in most instances they have been less exten-
sive. Three types of claim have been advanced. First, most of these claims have been
advanced by States in their quality as coastal States. In these instances, the defned
area has taken the form of a belt of sea around the coasts. In an objective sense, such
claims are eminently reasonable and understandable. A State whose territory reaches
the coast has to have a measure of authority over the inshore waters, simply in order
to maintain public order in coastal areas and to protect the interests of coastal com-
munities. Those interests include the security of coastal populations against invasion
and attack from the sea; their continued access to marine resources; their need for a
clean marine environment; and their need to travel by ferries and other vessels around
the coasts without any question of leaving or entering the territory of the State. Af-
ter much uncertainty as to the precise legal nature of the coastal States authority
over the coastal belt, it was fnally agreed during the twentieth century that what the
coastal State enjoyed was sovereignty, but subject to the rules of international law.
The coastal belt came to be called territorial waters and later the territorial sea,
an element in the modern law.
The two remaining types of claims by coastal States are much more problematical.
At different times, several European seafaring nations sought to exercise authority
over defned areas oI adjacent waters going beyond coastal belts. Denmark claimed
the northern seas around the Faroe Islands, Iceland and Greenland for the purposes
oI fsheries. Sweden under Gustavus Adolphus claimed the power to impose tolls on
ships trading into the Baltic Sea from elsewhere. In southern Europe, the Republic
of Genoa claimed the Ligurian Sea and the Republic of Venice claimed the Adriatic
Sea. The fnal claimant was England under King James I. He brought with him Irom
Scotland the notion of land-kenning according to which the King was deemed to
possess whatever lay within the feld oI vision oI a ship in sight oI the coast. In 1609,
he claimed to regulate fshing 'upon any oI our Coasts and Seas oI Great Britaine,
Ireland and the rest of the Isles adjacent. The claims extended to the North Sea, the
English Channel and the Irish Sea. In another manifestation of national claims, for-
of the Seas: Past, Present and Future, in H Caminos (ed.) Law of the Sea (2001); Tul-
lio Scovazzi, Evolution of the Law of the Sea, 286 Hague Recueil (2000) 43; Shabtai
Rosenne, The Law of the Sea in the Twentieth Century, part of the General Course, in
291 Hague Recueil (2001) 297; L.B. Sohn and J.E. Noyes, Cases and Materials on the
Law of the Sea, Chapter 1 (2005).
2 His work entitled Mare clausum was written in 1618 and revised in 1635. His views
chimed with those of King James I, whose attitude differed from that of his predecessor,
Queen Elizabeth I.
5 The Development of the Modern Law of the Sea
eign vessels were required to recognize British sovereignty by honouring the British
fag when crossing the seas concerned.
All these different claims were to exercise control and maintain order, usually in
the Iace oI piratical attacks on shipping, as well as to protect coastal fsheries. The
claims all related to what are today called enclosed or semi-enclosed seas: indeed,
some of the claims were advanced on the basis that the claimant ruled most of the
coasts facing the claimed areas. Since they were backed up by sea-power, many of
these claims were not seriously challenged when they were made; however, they
clearly ran counter to the rival doctrine of freedom of the seas, as well as the interests
of other States. In the longer term, they proved to be unsustainable.
Finally and most signifcantly, two wholly exceptional claims were made at the
start of the sixteenth century, following the publication of the Papal Bulls of 1493
and 1506 purporting to divide the New World between Portugal and Spain. The two
Kingdoms claimed trading monopolies with large parts of the East and West Indies,
including claims to control navigation over large expanses of the oceans. These
claims were advanced in the quality of global hegemons, rather than as coastal States.
In support of its claim, Spain made a diplomatic protest against the expedition of Sir
Francis Drake: in 1580, Queen Elizabeth I of England rejected the protest, declaring
that the use of the sea and air is common to all; neither can any title to the ocean
belong to any people or private man, forasmuch as neither nature nor regard of the
public use permitteth any possession thereof.
3
The Iberian claims were always con-
troversial and met with direct challenges. Like the other claims to rule whole seas,
these claims did not survive or pass into international law.
The second doctrine, that is to say, the freedom of the seas or mare liberum, was
articulated and upheld notably by the Dutchman, Hugo Grotius, in opposition to Por-
tuguese claims to the East Indies. This concept denies any claim to national authority
over the sea (apart from the narrow coastal belts of coastal States). Ships on the high
seas are subject exclusively to the jurisdiction oI the fag State, with some limited
qualifcations. This regime oI governance Iacilitates communication and trade be-
tween different parts of the world. The concept of freedom makes the seas and oceans
a global or common space available to all to use on a basis of equality. Grotius
argued, in opposing Portuguese claims, that [e]very nation is free to travel to every
other nation, and to trade with it.
4
The Grotian concept of freedom of the seas gradu-
ally attracted general support, including that of Great Britain, and became a principle
of customary international law. Indeed, it is the oldest principle, pre-dating the ter-
ritorial sea, and it still forms an important part of the law of the sea.
The great advantage of the regime of narrow coastal bands and the doctrine of
freedom of the seas was that it maximized the common maritime area available to
3 Quoted in Fulton, The Sovereignty of the Sea (1911) 107.
4 Hugo Grotius, The Freedom of the Seas (1609), R. van Deman MagoIfn (trans.), J.B.
Scott (ed.), OUP, New York, 1916. Grotius was advising the Dutch East India Com-
pany.
6 Chapter 1
all States and their ships.
5
This facilitated navigation, communications and trade
amongst people in all parts of the world. In earlier centuries, it encouraged voy-
ages of discovery and the mapping of the world. The doctrine stood in opposition
to claims such as those advanced by Portugal and Spain to enforce monopolies in
navigation and trade and helped to prevent them from succeeding. Similarly, the doc-
trine excluded claims to have very wide coastal bands, leading conceivably to the
total division of the oceans. Such a regime, whilst theoretically possible, would be
unfair, in terms of ownership of resources, towards land-locked States and those with
only very limited opportunities to extend their limits on account of the proximity of
neighbouring States.
Neither the doctrine of Mare liberum nor that of Mare clausum could apply to
the total exclusion of the other: a balance has to be struck between them. In todays
terms, the maximum limits oI national jurisdiction have to be defned. The initial bal-
ance was established in the seventeenth century: it minimized national authority and
maximized the extent of the high seas and its freedoms. This balance persisted during
the next two centuries and the early years of the twentieth century. The balance was
then adjusted in the late twentieth century when the world witnessed a major shift
towards national authority and the consequential diminution of the extent of the high
seas, coupled with an attenuation of its freedoms.
II Developments during the Two Halves of the Twentieth Century
During the early decades of the twentieth century, maritime law was stable and
could be summarized as follows. Coastal States had territorial waters extending to
three nautical miles (nm), subject to insignifcant exceptions, and measured in a belt
around the coasts. Beyond that limit, the seas and oceans had the status of high seas.
Maritime law was based upon relatively simple foundations: international custom
derived from the practice of States, among which maritime powers loomed large; a
few conventions on technical matters; the writings of professors; and a few arbitral
decisions. No inter-governmental organizations with maritime mandates existed and
there was no forum for discussing maritime questions. Maritime disputes were justi-
ciable only with the consent of the States concerned.
During the frst halI oI the 20th century, pressure Ior a wider national belt was
building slowly, perhaps imperceptibly. States discussed the question of territorial
waters collectively Ior the frst time: this discussion took place at the Hague ConIer-
ence of 1930 convened under the auspices of the League of Nations. However, no
agreement on an extension of the three mile limit was reached: several countries were
reluctant to conclude a treaty prescribing that limit Ior fsheries purposes. The con-
5 Reacting to the ICJs decision in the Fisheries case (UK v. Norway), the British Gov-
ernment stated that it considered that the true interests of all seafaring nations are best
served by the greatest possible freedom to use the seas for all legitimate maritime activi-
ties and they view with concern the increasing encroachments on the high seas which
have taken place in many parts of the world. (522 H.C.Deb. (5th series) cols. 36-7, 14
December 1953).
cept of a contiguous zone beyond the outer limit of the territorial sea was discussed
inconclusively: a seed was sown which germinated into international law some years
later.
6
The state of the law, including the question of national limits, remained largely
unchanged until 1945 when the frst major changes (not directly connected with the
end of the Second World War) were witnessed. Pressure for the acceptance of wider
limits so as to meet the growing need for resources was ever-increasing. Further
signifcant changes Iollowed throughout the second halI oI the century as mankind`s
involvement with the seas intensifed. There were more and more independent States
in the world and they were conducting both traditional and novel types of activities
at ever-increasing levels of intensity. States, individually and collectively in interna-
tional organizations, were also paying more and more attention to maritime issues,
including ocean governance.
From the standpoint oI 2006, the law oI the sea can now be seen to have been frst
codifed and developed and later substantially reIormed during the period between
1945 and the end of the century, a period that also saw many diplomatic controversies
and disputes over maritime limits, mainly about fshing. In sharp contrast with the sit-
uation at the dawn of the 20th century, by its end coastal States enjoyed sovereignty
out to 12 nm, subject to regimes of innocent and transit passage. They could exercise
sovereign rights and jurisdiction over many important matters, including resources
and environmental protection, out to 200 nm, or in certain circumstances having to
do with the continental shelf even beyond that limit. The increased number of States
in the world adopted a system that, in simple terms, permits over 30% of the seas
and oceans to be subject to some form of coastal state jurisdiction; subjects mineral
resource activities beyond the outer limits of national jurisdiction to an international
regime; and, whilst retaining the concept of freedom of the seas, subjects it to addi-
tional qualifcations, notably the duties to conserve living resources and to cooperate
in order to protect and preserve the marine environment. The general extension of ju-
risdictional limits meant that in over 400 places potential claims overlapped, creating
the need for the establishment of maritime boundaries. Several inter-governmental
organizations existed in the maritime sector, including the International Maritime
Organization and the International Seabed Authority. Instead of custom and state
practice, maritime law was based primarily upon the United Nations Convention on
the Law of the Sea (Convention or LOS Convention), running to 320 articles and
nine Annexes, as well as numerous other treaties concerning shipping, fshing, en-
vironmental protection, etc. Certain categories of maritime disputes were made jus-
ticiable under the Convention before a range of international courts and tribunals as
between the States Parties by virtue of their expression of consent to the Convention.
The law of the sea and oceans affairs came to be discussed regularly in the General
Assembly of the UN, as well as in many other global and regional organizations. In
these and other ways, the balance swung during the second half of the 20th century
from the doctrine of the freedom of the seas towards that of national authority, in the
form of sovereignty, sovereign rights or jurisdiction, over wide coastal belts.
6 It is now provided for in articles 33 and 303 of the UN Convention on the Law of the
Sea.
8 Chapter 1
III Some Key Developments between 1945 and 1995
During the Second World War, demand for oil increased and the industry developed
technology so that it was able to work in shallow waters just off the coast. In 1942,
the United Kingdom and Venezuela divided the Gulf of Paria, an enclosed area of
shallow sea situated between the island of Trinidad and the north coast of Venezuela.
Parts of the Gulf lay beyond the three mile limit, but the Parties refrained from ad-
vancing any general doctrine of seabed rights, preferring instead to enter into a prag-
matic arrangement that allowed the oil industries of the two sides to go ahead with
drilling.
7
In 1945, the Truman Proclamation concerning the continental shelf marked
a turning point in that it advanced a new doctrine that of coastal State rights, ju-
risdiction and control over the resources of the adjacent continental shelf.
8
The US
was concerned to enjoy exclusive access to the oil and gas in the seabed situated just
beyond its three mile limit in the Gulf of Mexico and off California.
9
Other States
refrained from challenging the US doctrine and, after a pause for thought, many pro-
ceeded to make similar claims of their own to the mineral resources of the continental
shelf.
10
The doctrine of the continental shelf was quickly accepted into international
law.
A second Truman Proclamation was issued concerning fsheries oII US coasts:
signifcantly, it did not advance jurisdictional claims to the waters over the continen-
tal shelf, calling instead for the establishment of conservation zones in parts of the
high seas contiguous to the US territorial sea by means oI agreements with fshing
States.
11
Several States noted the different treatment of living and non-living resources in
the two Proclamations. States interested in the living resources of the waters above
the continental shelf included many in Latin America, such as Argentina which
claimed the epicontinental sea and others that claimed a zone of 200 miles for
both seabed minerals and living resources. This distance criterion may have been
taken from a neutrality declaration early in the Second World War by Latin Ameri-
can States or it may have been the width of the Humboldt Current off the coasts of
Peru. In 1948, Iceland enacted legislation setting out a long-term national policy
aim to equate fsheries jurisdiction with the outer limits oI the continental shelI. In
1952, Chile, Ecuador and Peru went further by adopting the Santiago Declaration on
the Maritime Zone asserting claims to a 200 mile zone of sovereignty and jurisdic-
7 For further details, see Chapter 25.
8 Whitemans Digest of International Law, vol. 4 (1965), p. 756.
9 For a history of the Proclamations, see A.L. Hollick, U.S. Foreign Policy and the Law of
the Sea (1981), Chapter 2 (the idea was that of President Roosevelt, but it came to frui-
tion during the term of his successor).
10 For reactions within the British Government, see G. Marston, The Incorporation of
Continental Shelf Rights into UK Law, 45 ICLQ (1996) 13, at pp. 17-19. The outcome
was a decision to imitate the US action, initially in regard to various overseas territo-
ries.
11 Whitemans Digest of International Law, vol. 4 (1965), p. 954.
tion something akin to a territorial sea but without using that term. Claims to 200
mile limits were dismissed out of hand and opposed actively by maritime States as
contrary to international law. Nonetheless, another seed had been sown by the Latin
American States that, aIter a period oI semi-dormancy, fnally germinated into an ac-
cepted part of international law.
In 1949, the International Law Commission (ILC), at the proposal of Iceland, in-
cluded the law of the high seas at the head of its list of topics of international law
that were ripe Ior codifcation and progressive development. The ILC made a six
year study of the law of the sea at the end of which it put forward 73 draft articles
covering major parts of the law of the sea.
12
The work of the ILC was based on many
sources, including State practice, the work of the Hague Conference of 1930, the
work of learned institutions and distinguished scholars, international conventions,
new developments such as the nascent doctrine of the continental shelf, the work of
a conference held in 1955 at the FAO about principles for the conservation and ex-
ploitation oI high seas fsheries,
13
and three decisions by the ICJ.
14
The draft articles
represented codifcation and progressive development oI the law.
The First UN Conference on the Law of the Sea, held in 1958, took the ILCs draft
articles as its basic negotiating text and divided them among four Committees which
worked by means of short debates, on the record, following by voting on the basic
proposal and any amendments put Iorward by delegations. A simple majority suIfced
in Committee and a two-thirds majority in Plenary. This was not an entirely satisfac-
tory method of working on this particular topic,
15
mainly because some signifcant
minorities were left empty-handed: a rule requiring the seeking of consensus would
have required, of course, a far longer conference. The Conference adopted four sepa-
rate Conventions and a Protocol on the Settlement of Disputes, all in a single session.
The adoption of separate Conventions was later seen to have been a mistake since
States could pick and choose among the Conventions, whereas the different as-
pects oI maritime aIIairs are inter-related and beneft Irom a holistic treatment. Some
leading participants from maritime States regarded the Conference as having been
broadly satisfactory
16
in that the Conventions had been adopted and they largely
Iollowed the ILC`s proposals; the success was, however, qualifed by the Iailure to
reach agreement on the maximum breadth of the territorial sea and the question of
12 Final draft articles on the law of the sea, with Commentaries, in II Report of the ILC
(1956), pp. 265ff.
13 Rome Conference on the Conservation of the Living Resources of the Sea, 1955 (A/
CONF.10/6).
14 These were the Corfu Channel case 1949, the Fisheries case (UK v. Norway) concern-
ing Norways system of straight baselines, and the Nottebohm case. The decision in the
Fisheries case inspired Indonesia to advance the notion of the archipelagic state.
15 The method, inspired by the Rules of Procedure of the UN General Assembly, was used
successfully at several later Conferences, e.g. Diplomatic Relations, Consular Relations,
Law of Treaties, etc.
16 UK White Paper Cmnd. 584 of November 1958, para. 5.
10 Chapter 1
introducing an exclusive fshery zone.
17
Another qualifcation should be registered
over limits: the outer limits oI the continental shelI were defned in terms oI depth
and exploitability, two criteria that proved in practice to be unsatisfactory as a result
of technological advances. The rapid movement of the offshore oil and gas industry
into deeper and remoter waters was not anticipated in 1958.
The outstanding issues oI the limits oI the territorial sea and fsheries jurisdiction
were referred to the Second Conference, held in 1960, but once more without suc-
cess. A proposal Ior a six mile territorial sea plus a six mile fsheries zone beyond
failed to secure adoption by only one vote.
18
This near miss can now be seen as an-
other turning point. A proposal for somewhat wider limits, such as a territorial sea of
6 miles plus a fsheries zone extending a Iurther 12 miles, could well have secured a
two-thirds majority and then have been included in the text of an international con-
vention; in that event, the pressure for extended limits might have been contained,
at least Ior a while, once the convention had been ratifed. Be that as it may, the Iour
Conventions (on the Territorial Sea and the Contiguous Zone, on the High Seas, on
the Conservation of Fisheries in the High Seas, and on the Continental Shelf) all
entered into force during the 1960s, but they never attained anything approaching
quasi-universal support and always met with a degree of opposition. In particular, the
Latin American countries and Iceland did not accept the Geneva regime, primarily
Ior reasons to do with fsheries and their quest Ior wider limits. By coincidence, the
composition of the international community of States was changing at this time as
a result of the independence of former British and French colonial territories. The
newly-independent States had interests similar to those of the Latin American States
and pressure for wider limits continued to grow during the 1960s.
After the Second Conference, there were some doubts in the minds of international
lawyers about the concept oI the fshery zone beyond the territorial sea and its precise
legal status, especially if the zone had been introduced unilaterally. These doubts
arose Irom the defnition oI the term 'high seas and the provision Ior Ireedom oI
fshing in the Convention on the High Seas. In 1964, the UK convened a ConIerence
of European States to consider the question of extending on an agreed basis regional
fshery limits, thereby avoiding the risks attending unilateral extensions. Most west-
ern European States accepted an Agreement providing Ior 12 mile fshery limits,
subject to rights oI access to the belt between 6 and 12 miles based on historic fshing
patterns. However, two signifcant fshing countries, Iceland and Norway, reIused to
accept the arrangements because they wished to keep open the option oI wider fsh-
17 Commentators from among the delegates were also positive in their assessments: e.g.
J.H.W. Verzyl, International Law in Historical Perspective, Part IV Stateless Domain
(1971) pp. 154 ff; Sir G. Fitzmaurice, Some Results of the Geneva Conference, 8
ICLQ (1959) 73; A.H. Dean, The Geneva Conference on the Law of the Sea: What was
Accomplished, 52 AJIL (1958) 607; see also D.W. Bowett, The Law of the Sea (1967)
for an assessment of the Conferences against the standard of the community interest by
a former member of the Conference Secretariat.
18 A.H. Dean, The Second Geneva Conference on the Law of the Sea: The Fight for Free-
dom of the Seas, 54 AJIL (1960) 751.
eries limits. The Agreement oI 1964 infuenced the terms oI the Common Fisheries
Policy of the European Community following its enlargement in 1973. Being a treaty,
the Agreement of 1964 (which remains in force, although a Party may now give
notice oI withdrawal) entrenched the 12 mile fshery limits and the historic rights oI
access to the 6 to 12 mile belt. It did so at a time when support for a 12 mile territorial
sea (conIerring exclusive fshery rights) was growing worldwide and when the idea
oI much wider fshery limits was rapidly gathering support.
Events began to move quickly. In 1966, the United States and the Soviet Union
drew up a package of proposals for a 12 mile territorial sea that took account of their
strategic interests in unimpeded passage through and over straits used for interna-
tional navigation. It was seen that, once each littoral State had extended its territorial
sea to 12 miles, there would cease to be a strip of high seas down the middle of many
straits used by naval ships and military aircraft. In consequence, as the law stood,
submarines would have to travel on the surface through the newly-created territo-
rial sea and military aircraIt would cease to have a right to fy through the airspace
over the centre of such straits. In an age when nuclear submarines carried the nu-
clear deterrent and long-range air supply was included in military planning, the two
Superpowers saw a need to maintain the legal rights of submerged passage through
strategic straits less than 24 miles wide, as well as overfight. Their proposals, which
also included wider fshery limits in the 'package, marked the frst serious attempt
to tackle the problem created by the unexpected strategic consequences of extending
the breadth of the territorial sea to 12 miles. The UKs general reaction towards the
package was sceptical: the London Fisheries Agreement and the Geneva Conven-
tions had just entered into force and needed more time to settle; there were no plans
to accept claims to 12 mile territorial seas.
By a rather strange coincidence, interest was re-awakened during the mid-1960s in
the metalliferous nodules discovered by the Challenger Expedition in the nineteenth
century. International attention became focussed upon deposits of so-called manga-
nese nodules lying on the bed of the deep oceans, especially the Clarion-Clipperton
Ridge in the East Pacifc Ocean. As well as manganese, these nodules contain also
nickel, copper and cobalt, a strategic element. During the mid-1960s, some scientists
advised that these valuable resources could be recovered by new technologies at great
proft.
19
This naturally aroused the interest of both the industry and governments, who
addressed the question of the future legal regime for nodule recovery. President John-
son (US) referred to the deep seabed as the legacy of all human beings.
20
In the UN General Assembly (UNGA) during the autumn of 1967, Ambassador
Pardo of Malta proposed that the recovery of manganese nodules from the deep sea-
bed beyond the limits of national jurisdiction should be regulated under UN auspices
Ior the beneft oI mankind as a whole and especially developing countries. A new
UN Committee (the Seabed Committee) was formed to consider the proposal: it
reported to the First Committee, one of the political Committees of the UNGA, rather
19 The leading optimist was J. Mero in his work The Mineral Resources of the Sea (1964).
20 2 Weekly Comp. Pres. Doc. 930-1 (13 July 1966), cited in Nordquist and Nandan (eds),
UN Convention on the Law of the Sea 1982: A Commentary, Vol. VI, p. 13.
12 Chapter 1
than to the Sixth or Legal Committee as in the 1950s. This time, there was to be no
role for the ILC and the Sixth Committee. Gradually, over the years between 1968
and 1972, the mandate of the Seabed Committee was expanded to cover most aspects
of the law of the sea and the preparation of the Third UN Conference on the Law of
the Sea with a wide agenda in the form of a list of subjects and issues. Worldwide
political interest in the content of maritime law was aroused by the work of the Com-
mittee and its annual review by the UNGA. Dissatisfaction with the Geneva regime
increased: very few newly-independent States accepted the Conventions.
In 1969, the Geneva regime suffered an unexpected blow when the ICJ decided
in the North Sea Continental Shelf Cases that the rules in article 6 of the Convention
on the Continental Shelf about the delimitation of boundaries between neighbouring
States did not enjoy the status of customary law. The Court decided that customary
law required that some undefned equitable principles and the unarticulated concept
of natural prolongation should be applied, a decision that appealed to those who fa-
voured an infusion of equity into the law of the sea generally.
21
The concept of natural
prolongation also strengthened the case for claims to an ever-wider continental shelf,
especially as new technology permitted the industry to advance into deeper waters.
22
In 1970, the UNGA decided to hold the Third UN Conference on the Law of the
Sea
23
and also adopted the Declaration of Principles on the Seabed, declaring the
seabed beyond the limits of national jurisdiction to be the common heritage of man-
kind in accordance with a regime to be elaborated.
24
Notwithstanding the UNGAs
Moratorium Resolution of 1969,
25
unilateral claims to mine sites were announced by
several industrialized countries, albeit on an interim basis pending the elaboration of
a generally acceptable international regime.
26
These claims were opposed by devel-
oping States, diplomatically and especially in the UN, with the result that the whole
topic became controversial even though commercial mining was not feasible and was
not even in immediate prospect.
In 1970, another novel unilateral claim was advanced: Canada claimed a zone in
the Arctic and asserted jurisdiction over foreign shipping in order to protect the en-
vironment from pollution.
27
This claim was opposed by maritime States and fresh at-
tempts to regulate the problem of oil pollution from shipping resulted in the adoption
21 ICJ Reports 1969, p, 3. Most of the continental shelf of the North Sea had in fact been
already delimited by four agreements between Denmark, Netherlands, Norway and the
UK that were based on article 6, not counting the abortive agreement between Denmark
and the Netherlands (see Reports 9-9. 9-10, 9-13 and 9-15 by the present writer in Char-
ney and Alexander (eds.), International Maritime Boundaries, Vol. II (1992).
22 R.Y. Jennings, The Limits of Continental Shelf Jurisdiction: Some Possible Implica-
tions of the North Sea Case Judgment, 18 ICLQ (1969) 819.
23 GA Resolution 2750C of 17 December 1970.
24 GA Resolution 2749 (XXV) of 17 December 1970. In the event, most of the Principles
set forth in the Resolution now appear in Part XI of the LOS Convention.
25 GA Resolution 2574D (XXIV) of 15 December 1969.
26 In the UK, the Deep Seabed Mining (Temporary Provisions) Act 1971 was enacted.
27 Arctic Waters Pollution Prevention Act 1970.
of a new Convention under the auspices of the International Maritime Organization.
28
Nonetheless, the idea of a zone in which the coastal State exercised some jurisdiction
over ship-source pollution was soon to gain acceptance in international law.
In 1972, several signifcant developments took place. At the global level, the
Stockholm Declaration on the Human Environment included a reference to the need
to protect the marine environment from pollution: this and other aims and principles
were advanced in proposals submitted to the Conference on the Law of the Sea that
eventually secured acceptance. This was an early example oI the infuence oI new
thinking about the need to protect and preserve the global environment upon the
development of the law of the sea.
29
More directly aimed towards the Conference
on the Law of the Sea, two large groups of developing States adopted Declarations
calling for the creation of zones of national jurisdiction extending to 200 nautical
miles from the baselines of coastal States. These were the Yaound Declaration of the
African States concerning the Exclusive Economic Zone
30
and the Santo Domingo
Declaration concerning the Patrimonial Sea drawn up by a group of Latin American
and Caribbean States.
31
Both Declarations advanced the claim to a zone of 200 nm,
but proposed different regimes to apply therein. At the same time, both Declarations
asserted fewer powers for the coastal State over the new zones than had the Declara-
tion of Santiago by Chile, Peru and Ecuador issued 20 years previously: in particular,
Ireedom oI navigation was retained. The two new Declarations were refected in
proposals submitted to the fnal session oI the UN Seabed Committee in 1973, prior
to the convening of the Third UN Conference on the Law of the Sea. Also in 1972,
Iceland made a unilateral extension oI its fshery limits to 50 miles, an extension that
was opposed by Germany and the UK diplomatically and in proceedings before the
ICJ.
32
The Third UN Conference on the Law of the Sea, a truly global forum to which all
States and many national liberation movements were invited, met between December
1973 and 1982 with an agenda that included almost all aspects of the law of the sea.
33
The decisive period turned out to be that between 1973 and 1976. The Conference set
the aim of adopting a single comprehensive Convention, consolidating and reforming
28 MARPOL Convention, 1973.
29 See Nordquist and Norton Moore (eds.), The Stockholm Declaration and the Law of the
Marine Environment (2003), especially the papers by Alexandre Kiss, Jutta Brune and
Patricia Birnie.
30 Reproduced in the Report of the UN Seabed Committee 1972, p. 73 (A/AC.138/79).
31 Reproduced in the Report of the UN Seabed Committee 1972, p. 70 (A/AC.138/80). For
comment, see L.D.M. Nelson, The Patrimonial Sea, 22 ICLQ (1973) 668.
32 ICJ Reports 1974. The Court decided in 1974 (by coincidence during the session of
the Conference held in Caracas) that the new limits were not opposable to German and
British fshers on account oI their economic dependence upon continued access to the
grounds; however, the case had very little infuence upon the work oI the ConIerence.
33 Accounts of the Conference are to be found in the Introduction to the UN publication
of the Convention, in the Virginia Commentary, Volume I, and in E.L. Miles, Global
Oceans Politics (1998).
14 Chapter 1
the entire law of the sea. The Rules of the Conference provided that all efforts should
be made to reach consensus before there could be recourse to voting on proposals.
There was no basic proposal such as the ILCs draft articles for the Geneva Confer-
ence. This meant that there was great uncertainty during the initial stages: national
proposals were advanced and debated at some length before any sort of consensus
could emerge.
34
During debates at Caracas in 1974, over 100 delegations spoke in
Iavour oI introducing the limit oI 200 nm Ior defned purposes whilst saIeguarding
freedom of navigation, with the result that many of the former opponents and scep-
tics came to accept its inevitability.
35
Once that assessment had been made, attention
swung to the task of ensuring that the legal regime within the new zone was accept-
able: the main inspiration was the Santo Domingo Declaration, but the title Exclu-
sive Economic Zone (EEZ) came from the Yaound Declaration.
By the end of 1976, a package or understanding on the vexed question of the
limits of national jurisdiction had been put together in the Conference: this pack-
age consisted of a 12 nm maximum limit for the territorial sea, linked to rights of
passage for those ships and aircraft engaged in transit through or over international
straits; a 24 nm limit for the Contiguous Zone; a 200 nm limit for the EEZ in which
both the coastal State and fag States had defned rights; acceptance oI the concept oI
the Archipelagic State (coupled with the right of archipelagic sealanes passage); and
a limit of 200 nm for the continental shelf, except where the coastal State could show
evidence oI a natural prolongation beyond that distance to an outer limit to be defned
and subject to revenue-sharing. The conclusion of the Conference was delayed from
1976 to 1982, primarily by disagreements over the regime for mining the deep seabed
under the doctrine of the common heritage of mankind, but the package of limits
remained substantially unaltered.
With effect from the early months of 1977, the coastal States in the North Atlantic
extended their fshery limits or created EEZs Ior (initially) fsheries purposes out to
200 nm. For many of them, this marked a complete reversal of positions: instead
of opposing such claims, they now advanced their own claims to limits of 200 nm.
The extensions were made, in one sense, unilaterally since the Conference had not
adopted any text or formal decision of the question. At the same time, the action was
based on a key element in the package, expressed in a draft text that was attract-
ing wide support in the Conference. The action was also taken simultaneously with
other States, making it in reality less unilateral in character. For instance, the member
states of the European Community extended their limits pursuant to an understanding
reached at The Hague in the autumn of 1976 whereby they would extend their limits
34 Chapters 6, 7 and 12 discuss some proposals tabled by the British delegation.
35 The British Delegation came fairly quickly to the view that the inevitable outcome of the
Conference was the acceptance, as part of a wider package, of the 200 nm limit, even
though the dispute persisted over Icelands unilateral claim to a 50 mile limit. Unlike the
First and Second Conferences where the leadership of the Delegation had been entrusted
to the Attorney General/FO Legal Adviser, the leaders of the delegation to the Third
Conference were FCO Ministers and senior Ambassadors versed in multilateral negotia-
tions.
in concert. The extensions can be said to have been based on emergent or quasi-in-
stant customary law. The leap from 12 to 200 miles was enormous and fears were
entertained in some quarters that distant water fshing States might oppose 200 mile
limits. In the event, these extensions met with no serious opposition, although many
States held negotiations and granted transitional access rights to the new EEZs.
Quite soon after these extensions were made, a new problem was perceived, no-
tably by Argentina and Canada: this concerned Ioreign fshing on the high seas just
beyond the 200 nm limit for stocks straddling that limit or for highly migratory spe-
cies such as tuna that visited the EEZ as part of their migratory range. Some govern-
ments took the position at this time that these species were not subject to coastal
State jurisdiction whilst they were temporarily present in the EEZ. When this novel
problem was raised during the later stages of the Conference, it was left unresolved
for lack of time. Many States were still adjusting to a world of 200 nm limits and
saw the Argentine/Canadian proposals as a further example of creeping jurisdiction
something to be opposed.
In 1982, the UN Convention on the Law of the Sea was adopted following a vote
in which the United States (under President Reagan) was opposed and some devel-
oped States abstained, all on account of their dissatisfaction with the terms of Part XI
concerning deep seabed mining. Nonetheless, the adoption of the text of the Conven-
tion had the positive effect of consolidating the status of its remaining Parts. Had the
Conference been adjourned or suspended, the results of the long debates may have
met the fate of the draft articles drawn up by The Hague Conference of 1930. When
the Convention was opened for signature, as many as 159 States signed; however,
the signatories did not include the US, the UK or Germany, and some industrialized
countries made statements of opposition to Part XI. The Final Act of the Conference
contained a transitional regime for deep seabed mining and also established a Pre-
paratory Commission charged with setting up the International Seabed Authority and
the International Tribunal for the Law of the Sea upon the entry into force of the new
Convention one year aIter the deposit oI the 60th instrument oI ratifcation.
Between 1983 and 1989, ratifcations came in steadily Irom countries in AIrica,
the Caribbean and Asia, but not from industrialized countries, resulting in a potential
imbalance in the composition of the States Parties. The industrialized countries, apart
from the US, attended the Prepcom, but its mandate was to implement Part XI as it
stood, not to amend or modify it. Economic prospects for deep seabed mining be-
came less and less promising as metal prices fell and new terrestrial deposits of ores
were found. Some industrialized countries registered mine sites under the transitional
regime, following successful consultations to resolve overlapping claims to mine
sites. However, these States maintained their opposition to the terms of Part XI of the
Convention and kept their temporary legislation in force.
In 1989, the developing countries indicated that they were ready to address the
problems perceived by industrialized States. In 1990, the UN Secretary General,
Xavier Perez de Cuellar, convened some informal consultations among invited del-
egations in New York. Initially eight problems were identifed, including costs to
parties, voting in the Authority, the composition of the Council, the privileges of
the Enterprise (the mining arm of the Authority), the mandatory transfer of mining
16 Chapter 1
technology and the fnancial terms oI mining contracts with the Authority. The search
for solutions began, with regular meetings which discussed Information Notes from
the Secretariat. The exercise gathered numbers and support gradually, but there were
domestic problems for states which had recently submitted the Convention to their
constitutional organs and then ratifed the Convention as it stood. The EC states, in-
cluding the UK and Germany, were strong supporters of the process, but the Reagan
Administrations position was reserved.
36
Meanwhile, the problem oI straddling and migratory fsh stocks persisted, espe-
cially whilst the US maintained its position that tuna and other highly migratory spe-
cies were subject to the high seas regime even when inside an EEZ. In 1992, the UN
Conference on the Environment and Development (UNCED) adopted the Rio Dec-
laration and Agenda 2I, Chapter 17 on the oceans. This had two main effects. First,
the Declaration increased awareness of the importance of the oceans in the global
environment. Specifcally, it directed Iresh attention to Part XII oI the Convention,
which until that time had not been implemented by many States Parties, especially as
far as their new EEZs were concerned: fuller implementation followed the Conven-
tions entry into force in 1994.
37
Secondly, the Rio Declaration included a decision
that a UN ConIerence should be held on straddling and highly migratory fsh stocks,
starting in 1993 in New York.
In 1993, the FAO Conference adopted the Agreement on Compliance with Inter-
national Fisheries Conservation Measures on the High Seas, to combat the growing
practice oI refagging fshing vessels in order to avoid the eIIect oI conservation
measures by choosing the fag oI a State that was not a party to some relevant agree-
ment and thus not bound by the measures. The Conference began by attempting to
tackle directly the problem oI 'fags oI convenience, but quickly changed direction
so as to concentrate instead upon devising better means of ensuring compliance with
internationally agreed conservation measures.
On 16 November 1993, Guyana deposited the 60th instrument oI ratifcation oI
the Convention, thereby triggering its entry into force as a treaty 12 months later.
38
The Secretary Generals consultations, commenced in 1990, acquired new urgency
since the 60 States that had accepted the Convention included no industrialized states
(not counting Iceland). As things stood, this would have meant, for example, that the
organs of the new institutions would not have respected the principle of equitable
geographical representation and that Brazil would have become the largest fnancial
contributor to their budgets.
In May 1994, six months before the Conventions entry into force, the Secretary
Generals consultations ended with a consensus on a draft UNGA Resolution, to
which was attached a draft Implementation Agreement, with Annexes addressing
36 See Chapters 16 and 17 for further details.
37 The North Sea Task Force adopted a Declaration on the adoption of EEZs and the exer-
cise of full jurisdiction within them in accordance with international law.
38 The majority oI States becoming parties between the 50th and 60th ratifcations were
from CARICOM. Jamaica was to be the host country for the International Seabed Au-
thority.
the eight points identifed at the outset as presenting obstacles to ratifcation by in-
dustrialized States.
39
The draft also provided for the transition of the registered and
potential applicants sites into the new regime administered by the Authority. The
Secretary General prepared a report to the UNGA which remained in session.
On 28 July 1994, the Secretary Generals report to the UNGA on the outcome
of his consultations was debated. The draft Resolution, to which was attached the
Agreement on the Implementation of the provisions of Part XI of the Convention,
was adopted by 121-0-7 and opened for signature. The industrialized countries con-
sidered their problems to have been solved by the Agreement and proceeded quickly
to sign and then to ratify the LOS Convention and the Implementation Agreement
together (as the latter requires). The Agreement also provided for its provisional ap-
plication by signatory states for a maximum of 4 years from 16 November 1994.
40
On 16 November 1994, the LOS Convention entered into force for the initial 60
states parties and the Implementation Agreement was applied provisionally.
41
This
gave provisional membership of the Authority for 4 years to those States which sig-
nifed their wish, even though they were not parties to the Convention. The US took
up the option of provisional membership. The Prepcom was wound up and the Inter-
national Seabed Authority was inaugurated in Jamaica. Steps were taken to begin the
processes of setting up the International Tribunal for the Law of the Sea (ITLOS) and
the Commission on the Limits of the Continental Shelf (CLCS). On substantive legal
issues, the Convention was expressed to prevail, as between the States Parties, over
the four Geneva Conventions of 1958.
In August 1995, the UN Conference called by UNCED in the Rio Declaration
adopted the Agreement on the Implementation of the provisions of the LOS Conven-
tion about Straddling Fish Stocks and Highly Migratory Fish Stocks.
42
The Agree-
ment contained several detailed provisions amplifying the relevant basic principles
in the Convention. It articulated the precautionary and ecosystem approaches to
fsheries management. It laid down a blueprint Ior strengthening regional fsheries
management organizations and tackled the problem of free-riders, applying also the
arrangements in the LOS Convention for the handling of disputes.
To sum up this account of the relatively short period between 1945 and 1995, the
international community witnessed frst the codifcation and then the reIorm oI the
law of the sea. The modern law is centred upon the LOS Convention and its two Im-
plementation Agreements. They provide a framework, linking to other technical con-
ventions, that retains some fexibility and scope Ior Iurther development by means oI
new agreements and standards.
39 For further details, see Chapters 17 and 18.
40 For further details, see Chapters 19 and 20.
41 For a survey of the legal implications of entry into force, see Chapter 3.
42 For an initial assessment, see chapter 21. The former claims of certain States that highly
migratory species, whilst within the EEZ, were not subject to coastal State jurisdiction
had already been abandoned.
18 Chapter 1
IV Consolidation of the Modern Law during the Last Decade
The last decade has witnessed the consolidation of the modern law. Today, in 2006,
there are 152 parties to the Convention, made up of 151 states plus the EC. The par-
ties include most major states, except the US, Turkey, Venezuela, Iran, Thailand,
Peru, Israel and Switzerland. The parties represent over three quarters of the UN
Membership of 192 and over three-quarters of coastal states.
43
The Convention is
routinely applied by States and international organizations to all maritime affairs with
only a very Iew qualifcations, usually by Turkey or Venezuela Ior reasons to do with
outstanding jurisdictional disputes with their respective neighbours. The Convention
contains an agreed package of limits of national jurisdiction which are increasingly
followed as States bring their national maritime legislation into conformity with the
package.
The Straddling Stocks Agreement entered into force in December 2001 and by
2006 had attracted 62 States Parties. Importantly, the Parties now include both coast-
al States and distant water interests such as the European Community, Spain, France,
Portugal, Poland and Japan, as well as the United States, thereby consolidating not
only the Agreement but also the Convention. Its terms have infuenced the conduct
of States, both individually and as members of regional bodies such as the Northwest
Atlantic Fisheries Organisation and the Indian Ocean Tuna Commission. Some new
regional fshery management organizations, such as those Ior the West Central PaciI-
ic Ocean and the Southeast Atlantic Ocean, have been created by coastal and distant
water fshing States employing the principles oI the Agreement oI 1995. Four years
after its entry into force, a Review Conference was held in 2006.
44
The three institutions created by the Convention have all started work. The work of
the International Seabed Authority has been described by its Secretary General.
45
The establishment, organisation and jurisprudence of the Tribunal are all described
in chapters 31 to 37 below. The International Court of Justice has continued to decide
cases submitted to it about maritime delimitation, although to date no case has been
submitted under article 287 of the LOS Convention. Seven arbitrations have been
commenced under Annex VII to the Convention. In 2006, the frst decision on the
merits of a dispute was given by an arbitral tribunal established under Annex VII:
this was the maritime boundary case between Barbados and Trinidad and Tobago.
46
The arbitral tribunal followed the trend of decisions by the ICJ and ad hoc arbitral
tribunals in the maritime delimitation cases decided after 1992.
The work of the Commission on the Limits of the Continental Shelf is set out in the
annual reports of the UN Secretary General on Oceans Affairs and Law of the Sea.
47
43 Chapter 5 contains a fuller survey.
44 A/CONF. 210/2006/15.
45 For a survey of the work of the Authority, see S.N. Nandan, Administering the Mineral
Resources of the Deep Seabed, in R.A. Barnes et al. (eds.), The Law of the Sea: Progress
and Prospects, OUP (2006), Chapter 5.
46 Text available on www.pca-cpa.org.
47 The most recent Report is A/61/63/Add. 1 of 17 August 2006, paras. 23 ff.
More claims to continental shelves extending beyond 200 miles are being submitted
to the Commission than were anticipated by those concerned with formulation of
article 76 at the Third Conference.
48
The UN General Assembly holds an annual debate on Oceans Affairs and Law of
the Sea, based upon the report of the Secretary General which summarizes the work
of the Specialized Agencies and other parts of the UN family of organizations.
V Reasons for the Emergence of the Modern Law
Following that brief account of the recent events, it is worthwhile considering why
the reIorms oI the law oI the sea came about. With the beneft oI hindsight, the regime
based on freedom of the seas contained several weaknesses that eventually led to
its reIorm. The frst was that the breadth oI the coastal band over which the coastal
State was entitled to exercise a measure of authority gradually became too narrow. At
three nautical miles, this belt could be crossed in a short time as ships became faster
with the result that the security concerns of coastal States were no longer met. More
importantly, perhaps, living resources could be captured on the high seas just beyond
the national exclusive limit in amounts that would affect the remaining resources
within the territorial sea. Partly for these reasons and partly because of the exist-
ence of some long-standing claims to four miles, the three mile limit failed to secure
endorsement at the Conference held under the auspices of the League of Nations in
1930. The concept of a contiguous zone beyond the outer limit of the territorial sea in
which the coastal State was entitled to enforce legislation applicable in the territorial
sea slowly gained strength. Even so, there was no agreement on a package of two
maximum limits, one for the territorial sea and the other for the contiguous zone. This
conIerence, the frst oI its kind to be held, can now be seen as the start oI the decline
of the three mile limit that led eventually to its fall around 1970.
The second weakness was that the doctrine of the freedom of the seas did not
provide an adequate regulatory regime for the modern world. The doctrine has been
described rightly as being essentially negative the prohibition of national claims to
sovereignty or some other authority over the open sea.
49
This prohibition, by itself,
does not provide a substantive regulatory regime: some regulation is required as soon
as the level of activity in a particular area of the high seas by different States and
their ships increases to the point where one group of users come in to competition
with another. In practical terms, whilst the concept of freedom may have worked
well in parts of the open sea for the purposes of navigation, it was less satisfactory in
regard to the regulation or management of the recovery of resources, whether living
or non-living. As regards the living resources, even with the qualifcation that one
States freedom has to be exercised with reasonable regard for the freedoms of other
States, the concept does not provide suIfcient assurance that particular fsh stocks
48 For a legal analysis, see the Report of the Committee on the Outer Continental Shelf to
the International Law Association (Report of the 72nd session, Toronto 2006).
49 Survey by the UN Secretariat (widely attributed to G. Gidel) in II Yearbook of the ILC
(1950) 67, especially at p. 69.
20 Chapter 1
on the high seas will not be fshed to the point oI extinction, whether by ships Irom
the nearest coastal State or by peripatetic feets Irom the other side oI the world. The
Bering Sea Arbitration of 1894 showed up a systemic weakness in the regime in that
conservation measures could not be made effective without international agreement
in the Iace oI the assertion oI the Ireedom oI fshing.
50
Similarly, in the case of min-
eral resources the doctrine of freedom does not provide the long-term, legally secure,
exclusive title that is required by the mineral extraction industry for both logistic and
economic reasons.
A third weakness is that the doctrine of the freedom of the seas does nothing to dis-
courage the adoption of new uses of the seas that may later be found to have harmful
consequences. A clear example is provided by the systematic disposal into the open
sea of domestic or industrial waste products that was found to pollute the waters, the
resources and sometimes even the coasts: a whole industry grew up in Western Eu-
rope of dumping wastes of all kinds at sea before it was phased out by international
agreement.
Finally, although a regime of freedom sounds laudable, it may work unevenly in
practice. Many smaller States are unable to avail themselves of the opportunities of-
fered by the freedom of the seas simply because they do not have the ships or possess
the requisite fshing or sea-Iaring populations. Historically, the benefciaries oI the
freedom have in the main tended to be larger European States and other maritime
powers, rather than the smaller States.
The weaknesses of the former regime led to its eventual reform during the second
half of the last century. The modern law developed as a result of several factors. First,
the introduction of new marine technologies permitted new types of activities, most
notably the winning of oil and gas from the seabed, as well as much more intensive
fshing practices. Secondly, there arose insatiable demands Ior marine resources oI
all kinds. These various advances in technology, especially those permitting the ex-
ploitation of resources, showed up several matters on which the traditional law was
inadequate to meet the new needs. Pressure for reform or for the development of new
legal principles came from both traditional maritime States and the newly-independ-
ent States. Indeed, the key event in 1945 was a unilateral claim by a leading maritime
power, in the form of the Truman Proclamation. The full implications for the law of
the sea appear not to have been thought through and there seems to have been less
than adequate consultation with other maritime States, possibly on account of war-
time preoccupations. Be that as it may, the Proclamations accelerated the process of
extending coastal state jurisdiction.
A third Iactor was the intensifcation oI humankind`s use oI the seas and oceans.
Ancient uses such as fshing saw increases in the numbers, size, range and capacity
oI vessels, new fsh-hunting methods using sonar or driItnets, the introduction oI
50 A point made in the context oI the fsheries provisions oI the LOS Convention by a
leading authority, Prof. W.T. Burke in his work The New International Law of Fisher-
ies UNCLOS 1982 and Beyond (1994) in which he concludes that It is the continued
authority oI the principle oI Ireedom oI fshing that requires modifcation iI desirable
outcomes are to be realized. p. 350.
fsh-processing at sea, and the discovery oI new fshing grounds and new stocks oI
fsh. Ships used Ior carrying goods increased in size, capacity and numbers, so that
minimum construction standards and sealanes and other measures oI traIfc manage-
ment were introduced globally in the interests of safety. Numerous new uses of the
seas were witnessed, notably the winning of minerals from the seabed and subsoil
(oil and gas). Offshore oil and gas installations are major industrial plants by any
standards: they require large workforces, operating in hazardous environments on ex-
pensive infrastructure, all in the middle of the sea. Systematic research work into the
scientifc characteristics oI the seas increased, using specialized ships. Mariculture
expanded as capture fsheries were depleted. As the number oI users increased, so did
the chances of interactions between different users and the need for some regulation
in the general interest.
A fourth factor was the growth in concern for the global environment, of which the
oceans form 70%. The problem of oil on the beaches led to both international action
in the IMO and a unilateral claim to a pollution zone by Canada that stands along-
side the Truman Proclamation. New thinking by oceanographers and environmental
scientists
51
and new principles were grafted on to the law of the sea in Part XII of the
LOS Convention and related environmental agreements. The Straddling Fish Stocks
Agreement advanced the concept of paying regard to the marine ecosystem in man-
aging fsheries, as well as the precautionary approach.
A Iurther signifcant Iactor was the change in the size and composition oI the in-
ternational community of States as the number of independent States rose from less
than 100 when the United Nations Organization (UN) was founded in 1945 to almost
200 today, including 192 member States of the UN. The newly-independent countries
formed their own views on the law of the sea and made them known in international
forums such as the UN. During three UN Conferences on the Law of the Sea (and
especially the Third ConIerence), the development oI the law was infuenced not by
the practice of States but rather by factors such as the weight of international opinion
at the Conference, expressed in a form of words that could achieve consensus or
at least a two-thirds majority. A form of words that could pass such a stern test at a
Conference was on the road to becoming a statement of law, especially in those in-
stances where state practice was infuenced.
52
Not altogether surprisingly, the views
oI newly-independent Sates tended to diIIer Irom those oI maritime or fag States and
to coincide broadly with those of Latin American States, aspirants for archipelagic
Statehood such as Indonesia and the Philippines, and Iceland. Developing States had
legitimate concerns that they advanced, in particular, during the Third UN Confer-
ence on the Law of the Sea. These states were the major force behind the introduction
51 Non-governmental organizations played an active role in this process.
52 The process of reviewing the law at a global diplomatic conference had some of the
qualities of the consideration and enactment of legislation by a national legislature. Some
of the provisions contained in the Convention of 1982, such as articles 69 and 70, result
directly from these Parliamentary processes. These themes are examined in Chapter
2.
22 Chapter 1
of new concepts such as the Common Heritage of Mankind, the EEZ of 200 nm, and
the archipelagic state.
With the beneft oI hindsight, the maritime States were perhaps slow to spot the
incoming tides that were to overwhelm the Geneva regime. The failures to reach
agreement on the question of limits in 1958 and 1960 led to a volatile situation and,
not surprisingly, actual disputes. Some forward thinking in the early 1960s might
have resulted in agreement on a regime based on limits less extensive than 200nm.
However, by the 1970s when the concept of the EEZ/Patrimonial Sea was advanced,
several maritime States realised that they could beneft as coastal States Irom broad
limits Ior their interests in fsheries, Ior their Iuture access to hydrocarbons on the ba-
sis of national jurisdiction, and for their need for protection against marine pollution.
Indeed, several States have shifted from the maritime to the coastal posture.
For the Iuture, the law is likely to be infuenced by the introduction oI new tech-
nologies and the continued demand for resources. The existing framework, including
as it does institutional arrangements, should be suIfciently fexible to accommodate
the current needs oI the twenty-frst century. The Iramework would be strengthened
by the active participation of all those states that have not yet expressed their consent
to be bound by it.
Chapter 2
Law-Making Processes in the UN System: Some
Impressions*
The Charter of the United Nations gave to the General Assembly the role of ...
encouraging the progressive development oI international law and its codifcation.
1
During the past half century, great strides have been made towards codifying and de-
veloping parts of customary international law in the form of Conventions. In the great
majority of cases, Conventions on legal matters have been adopted by diplomatic
conferences convened by the General Assembly, following work by the ILC, which
is currently celebrating its 50th anniversary. An outstanding example of this process
is provided by the Vienna ConIerence on the Law oI Treaties which codifed and de-
veloped the rules on that topic.
2
Shortly thereafter, the law of the sea was revised by
the Third United Nations Conference on the Law of the Sea (LOS Conference), an
entirely different type of conference in many important respects.
3
* First published in 2 Max Planck Yearbook of United Nations Law (1998) 21-50.
1 Article 13, para. 1 (a).
2 OIfcial Records oI the United Nations ConIerence on the Law oI Treaties, A/CONF.39/11,
2 Vols. For an account of the Conference, see I.M. Sinclair, Vienna Conference on the
Law of Treaties, ICLQ 19 (1970), 47 et seq.; and for a survey of the resulting Conven-
tion, see his The Vienna Convention on the Law of Treaties, 2nd edition, 1984, and P.
Reuter, Introduction to the Law of Treaties, 2nd English edition, 1995.
3 OIfcial Records oI the Third United Nations ConIerence on the Law oI the Sea, United
Nations Documents Vol. I to XVII.
24 Chapter 2
This chapter reviews many of the processes of codifying and developing the rules
of international law which have been used during the past 50 years. It does so pri-
marily by making comparisons between the processes used in regard to the law of
treaties and those used for the law of the sea, processes in which the author par-
ticipated as a delegate. The chapter gives the writers personal impressions of the
two Conferences, without attempting to give complete accounts of them,
4
and offers
some conclusions on the different processes of law-making under the auspices of the
United Nations.
I Impressions of the Two Conferences
A Subject Matter
Treaties range in scope and character from bilateral transactions of a purely contrac-
tual nature through regional arrangements to universal conventions forming part of
the general international order. Included in this latter category are the Charter of the
United Nations and major law-making conventions such as the Vienna Convention
on Diplomatic Relations. The law of treaties has to take account of and provide for
this extreme range of legal instruments. The law governing agreements is clearly
one of the fundamental parts of international law and, as such, it may be described
as lawyers law, that is to say, a subject of interest primarily to practitioners and
professors of international law. Although political leaders or experts in a particular
feld may become involved with the conclusion or the implementation oI a particular
treaty, they are unlikely to have occasion to take positions or express opinions re-
garding treaty law as such. Indeed, the conference in Vienna in 1968 and 1969 was
attended almost exclusively by practising lawyers, including several members of the
ILC.
5
Many delegates were diplomats serving in the legal sections of Foreign Minis-
tries
6
and several others were professors with established international reputations.
7
Many delegates went on to enjoy prominent careers as international lawyers, includ-
4 For an authoritative account of the Third Conference of the Law of the Sea, see T. Koh
and S. Jayakumar, The Negotiating Process of the Third United Nations Conference on
the Law of the Sea, in: M.H. Nordquist (ed.), UNCLOS 1982. A Commentary, Vol. I, 29,
1985.
5 Apart from Sir Humphrey Waldock, who served as Special Rapporteur in the ILC and as
an Expert Consultant at the Conference, the President of the Conference, Mr Robert O.
Ago, the Chairman of the Committee of the Whole, Mr T.O. Elias and the Chairman of
the Drafting Committee, Mr M.K. Yasseen, were all members of the ILC.
6 Including Riphagen (Netherlands), Thierfelder (Germany), Kearney (United States),
Devadder (Belgium), Krishna Rao (India), Khlestov (Soviet Union), and Vallat (United
Kingdom).
7 Including Professors Verosta and Zemanek (Austria), Srensen (Denmark), Reuter and
Virally (France), Castren (Finland), Dupuy (Holy See), Briggs, Sweeney, and McDougall
(United States), Stuyt (Netherlands), Zourek (Czechoslovakia), Jimenez de Arechaga
(Uruguay), Rosenne and Meron (Israel), Matine-Daftary (Iran) and Arangio-Ruiz, Sper-
duti, Barile, Capotorti and Malintoppi (Italy).
25 Law-Making Processes in the UN System Some Impressions
ing in a few cases judges of the ICJ.
8
There existed by the 1960s a rich state practice
9
which underlays a large part of the roles of customary law on treaties, but no previ-
ous attempt had been made by the international community to establish conventional
rules of law on the whole subject.
10
The exercise at the Vienna Conference was one of
codifcation, clarifcation and progressive development oI existing customary law.
The law of the sea is also a basic part of international law, regulating states uses of
the seas and oceans. In some ways, it is akin to a Law of Property for states. Before
the middle of the present century it, also, could be said to be lawyers law, leaving
aside the occasional dispute about the breadth of the territorial sea.
11
However, these
days the law of the sea is no longer the sole preserve of lawyers. Statesmen, diplo-
mats and environmentalists follow the subject closely. Major interests are involved:
state sovereignty, ownership of resources, communications, strategic defence, en-
vironmental protection, access to the sea Ior the landlocked states and scientifc re-
search, to name just a few. The LOS Conference which began in earnest in 1973
with a presessional meeting beIore the fnal session in Jamaica, was a conIerence oI
politicians, diplomats and lawyers. Some of the prominent delegates, being already
ministers in Governments, went on to be Prime Ministers
12
and Foreign Ministers
13
whilst others became judges at the ICJ,
14
the International Tribunal for the Law of
the Sea
15
and the Appellate Body of the World Trade Organisation.
16
Although many
delegations were led by international lawyers, others were not. For instance, the Brit-
ish delegation was led not by the Attorney-General (as had been the case at the frst
LOS Conference in 1958) but instead by Mr David Ennals M.P., the Minister of State
Ior Foreign and Commonwealth AIIairs, and by a series oI senior diplomats (the frst
was Sir Roger Jackling, previously Ambassador in Bonn and one of the authors of
the Quadripartite Agreement of 1971 on Berlin). Like the Conference itself, the del-
egation was much larger than that for the Vienna Conference. The British Delegation
8 Including Ruda (Argentina), Fleischhauer (Germany), Ago (Italy), Elias (Nigeria), de
Castro (Spain), Tarazi (Syria), El-Erian (UAR, Egypt) and Jimenez de Arechaga (Uru-
guay).
9 In English, McNairs Law of Treaties, 2nd edition, 1961, was the leading work, drawing
on British practice.
10 The Harvard Research Project produced a Draft Convention in 1935, but that was a pri-
vate initiative. The League of Nations Committee of Jurists considered the conclusion
and draIting oI treaties to be a subject Ior codifcation, but the ConIerence oI 1930 did
not have it on the agenda.
11 R. Jennings and A. Watts, Oppenheims International Law, 9th edition, Vol. 1, Parts 2 to
4, 611.
12 Mr Warioba of Tanzania, who later became a member of the International Tribunal for
the Law of the Sea.
13 Mr Castenada and Mr Sepulveda (Mexico).
14 Notably Mr Evensen (Norway) and Mr Aguilar (Venezuela).
15 Many members attended parts or all of the Conference as delegates or members of the
Secretariat of the United Nations.
16 Mr Beeby (New Zealand).
26 Chapter 2
included at least two oI the legal advisers oI the Foreign and Commonwealth OIfce,
as well as serving Naval OIfcers and shipping, fshing, hydrocarbons, nodule min-
ing, scientifc and environmental experts. Representatives oI industry, drawn Irom
mining, shipping and oil companies, were attached to the delegation as advisers. A
few other delegations, especially during the session held in Caracas, included well-
known international lawyers, notably Professor Oda and Professor D.P. OConnell.
The contrast in the make-up of delegations between this Conference, on the one hand,
and the Geneva Conference of 1958 and the Vienna Conference 1968 to 1969, on the
other, was striking.
As with the Law of Treaties, the LOS Conference had to review a rich state prac-
tice developed over very many years, but with the signifcant diIIerence that a previ-
ous (and not entirely successful) attempt had been made to codify and develop the
rules in the Geneva Conventions of 1958. The exercise at the LOS Conference was
one of progressive development, consolidation and reform of existing customary and
conventional law. In this element of reform, the LOS Conference was unique among
the law-making Conferences held in the era of the United Nations.
B Origins of the Conferences
The idea of codifying and developing the Law of Treaties sprang from the work pro-
gramme of the ILC, created by the General Assembly. The Law of Treaties appeared
on the ILC`s initial list oI topics suitable Ior codifcation, drawn up in 1949.
17
The
topic had earlier appeared on a similar list drawn up by a Committee of Experts of
the League of Nations, but the report had not been acted upon as a result of doubts
as to the feasibility of codifying the whole of treaty law.
18
These doubts had largely
disappeared by the 1950s, although some experts still questioned the wisdom of con-
cluding a treaty about the law of treaties.
The origins of the Third LOS Conference are more complex: three factors may be
recalled. The failure of the Geneva Conference of 1958 and 1960 to reach agreement
upon limits of national jurisdiction, notably the territorial sea, led to opposition to
the Geneva Conventions of 1958 on the part of certain states. A second factor was
the advance of technology, which produced at least two different effects. It rendered
the defnition oI the continental shelI adopted at Geneva completely open-ended and
thus unsatisfactory.
19
It had also led to the making of a forecast in the mid-1960s that
manganese nodules could soon be won at great proft Irom the deep sea-bed.
20
(The
forecast has turned out to be incorrect.) A third factor was the wish of the United
States and the Soviet Union to stabilise the Law of the Sea along agreed lines so as
17 ILCYB 1949, 281. The list was based on the work of Sir H. Lauterpacht.
18 The report is printed in: S. Rosenne, League of Nations Conference for the Codification
of International Law, 1975.
19 Article 1 of the Convention on the Continental Shelf.
20 Notably by J. Mero, The Mineral Resources of the Sea, 1965; E. Luard, The Control of
the Seabed. A New International Issue, 1974. Mr Luard later became the Minister in the
Foreign OIfce with responsibility Ior the Delegation to the ConIerence.
to prevent further unilateral claims. These three factors came together in the General
Assembly and resulted eventually in the all-embracing agenda for the conference.
C Preparations
The Vienna Conference was prepared over a lengthy period of 17 years, by the ILC
working in consultation with Governments, principally in the Sixth Committee (Le-
gal Questions) of the General Assembly and additionally through written comments.
No fewer than four special rapporteurs
21
worked on the topic and produced proposals
in the form of draft Articles for the ILC. Each session, the Sixth Committee of the
General Assembly debated the draft articles in the light of the comments received,
adding useful commentaries. The revised draft articles formed the basic document
for the Vienna Conference.
22
In short, the preparatory work was thorough and highly
professional.
The preparatory work for the LOS Conference was done by the First Committee
of the General Assembly (Disarmament and International Security) and its subsidi-
ary body, the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor
beyond the Limits of National Jurisdiction (commonly known as the Sea-Bed Com-
mittee) which met from 1970 to 1973. In 1970, the two Committees drafted the Dec-
laration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil
thereof, beyond the Limits of National Jurisdiction.
23
The Sea-Bed Committee also
produced in 1972 an agreed agenda for the Conference in the form of the List of Sub-
jects and Issues, running to 25 items.
24
In 1973, the Sea-Bed Committee produced a
fnal report, but this was very Iar Irom being a basic document, such as a set oI draIt
Articles, for the Conference.
25
Instead, the report ran to six volumes and contained
a large number of purely national proposals, as well as the complete texts of the
Geneva Conventions of 1958. To sum up, it is clear that the preparations were thus
shorter and less mature than in the case of the Vienna Conference.
D The Representation and Aims of the Main Groups
At the Vienna Conference, 110 states were represented, compared with a total of
126 UN Members in 1969. The political aims of Western States can be summarised
as having been to codify the Law of Treaties in the form of a Convention which
would command widespread support, and to avoid destabilising existing treaties.
This meant that many Western States adopted a cautious attitude towards Part V of
the basic document, concerning the termination and invalidity of treaties. The East
21 Professors Brierly, Lauterpacht, Fitzmaurice (who favoured a code rather than a Conven-
tion on the topic) and Waldock.
22 ILCYB 1956, Vol. II, 254.
23 A/RES/2749 (XXV) of 17 December 1970.
24 A/CONF.62/29.
25 Doc. A/9021, Final Report of the Committee on the Peaceful Uses of the Sea-Bed and the
Ocean Floor beyond the Limits of National Jurisdiction.
28 Chapter 2
European states were preoccupied with an extraneous political aim: securing an ad-
vance in the status of the German Democratic Republic (GDR). Accordingly, they
pressed the proposition that all states were entitled to participate in general multilat-
eral treaties, especially that on the Law of the Treaties. This all States proposal was
opposed by the Western States, which did not recognise the GDR and had no interest
in the late-1960s in enhancing its status, especially at a time when access to Berlin
was regularly a source of East-West tension. This issue was a major political factor
at the ConIerence, but there is little trace oI it in the Convention. (This is ftting since
the issue proved to be ephemeral.) For their part, some newly-independent states in
Africa, Asia and Latin America and the Caribbean were concerned with the ques-
tion of certain treaties which had been imposed upon them in the past. They wished
to escape from the inequity of such unequal treaties. In other words, historical and
political factors (principally East/ West and to a lesser extend North/South) played
important roles.
The LOS ConIerence, which began in December 1973 (less than fve years aIter
the Vienna Conference), was attended by 160 states (a large increase) and, in a new
departure, by several national liberation movements (NLMs), such as the African
National Congress, the Southwest Africa Peoples Organisation and the Seychelles
Peoples United Party (before the independence of the Seychelles). The NLMs were
authorised to attend as observers, being seated with national delegations behind
nameplates and microphones (thereby making the Conference quasi-universal). This
policy oI including NLMs in the discussions took on great signifcance when univer-
sal participation in the resulting Convention came to be sought. Many former NLMs,
upon independence, were able to move quickly to become States Parties, because
they had taken part in the work of the Conference and were familiar with the terms
of the Convention.
Important political aims of the Group of 77 (a Group which made a far greater
impact than at Vienna) were to secure the acceptance of the principle of the Common
Heritage of Mankind and to bring about a new international economic order. This led
to a North/South alignment of forces in the First Committee of the Conference. The
Group of 77 also wished to protect their coastal members from distant water vessels
which might fsh, pollute or conduct research in Iront oI their coasts, a second North/
South aspect. For the rest, geographical Iactors were infuential. Thus, coastal states
from many regions wished to increase their sovereignty and jurisdiction over their
coastal waters. Maritime states, that is to say states with a large number of merchant
and/or warships, were interested in maintaining the freedoms of the seas and the
exclusive rights oI fag states over their vessels. In marked contrast with the Vienna
Conference, the United States, the Soviet Union, France, Japan and the United King-
dom cooperated closely in the Group of Five, especially on strategically important
issues such as innocent passage and transit passage through straits used for interna-
tional navigation, thereby reducing East/ West tensions. Landlocked states, which
are found in all continents, had a shared interest in securing better arrangements for
access to the sea across the territory of transit states.
26
To sum up, political, economic,
strategic and, above all perhaps, geographical factors played important roles at the
Conference. East/West rivalries were subordinated to the pursuit of common goals
in most instances. North/South divisions were mainly over the pursuit of a new eco-
nomic order.
E Working Methods
The Vienna Conference followed what may be described as the classic procedure
for UN Conferences called to consider proposals by the ILC. The Conference adopt-
ed without substantive debate the standard Rules of Procedure
27
for UN Conferences
(based on those for the General Assembly and previous Vienna conferences on legal
topics). Two subsidiary bodies were created: in addition to the Plenary, there was a
Committee of the Whole (COTW) and a Drafting Committee. The idea of having two
Main Committees was rejected by small states.
28
Discussion fell into three clearly marked stages, following some brief organisa-
tional meetings in Plenary. As the frst stage, the ConIerence worked as the Commit-
tee of the Whole. Without a general debate, the COTW considered each Article of
the basic text in turn, following the order of the ILCs draft. Different delegations put
forward written amendments. Most mornings, at 08.30 the delegations received from
the Secretariat of the Conference several new proposed amendments and often had
little time to consider them before repairing to the Hofburg at 10.30. Each basic Ar-
ticle, together with the amendments, was then debated. On major issues of principle,
such as how to interpret treaties, a vote would be taken as soon as the list of speakers
was exhausted on the question of whether or not an amendment should be referred
to the Drafting Committee. Sometimes the Committee was divided in the vote. On
certain amendments, there were many abstentions. A simple majority was enough
and the outcome turned sometimes on a handful of votes. (This happened also at the
Geneva Conference on the Law of the Sea held in 1958 and 1960
29
both on primary
and secondary issues.)
As the second stage in the consideration of an issue, the Drafting Committee met.
This was a group oI 15 Delegations which included native speakers in the fve work-
ing languages, Chinese, English, French, Russian and Spanish, as well as the fve
Permanent Members of the Security Council. In practice, the drafting Committee
was also a negotiating and conciliating group. It tried to fnd a Iorm oI words which
26 Koh and Jayakumar, see note 4, 68 et seq.
27 A/CONF.39/11. For a study of the operation of these rules, see R. Sabel, Procedure at
International Conferences, 1997.
28 Sinclair, see note 2.
29 At the second UN Conference on the Law of the Sea, the main proposal failed to be ad-
opted by a vote of 5428 (including the 3 votes of the Soviet-Union, Belorussia, and the
Ukraine) 5 because it just Iailed to achieve a two-thirds majority. OIfcial Records, 13th
Plenary Mtg., p. 30.
30 Chapter 2
would best take account of the majority view as expressed in the Committee of the
Whole. In practice, the Drafting Committee, meeting early each morning to review
texts referred to it a day or so beforehand, adjusted the ILCs basic draft articles in
the light of those amendments which had commanded support in the Committee of
the Whole. It then submitted to the Plenary a written report which was introduced by
the Chairman (Ambassador Yasseen of Iraq). He made there several important state-
ments explaining and even glossing the proposed new text. These statements, being
part of the travaux prparatoires of the Convention, elucidate some of its precise
wording. At the third and fnal stage, a debate was held in Plenary on the basis oI the
text proposed by the Drafting Committee. At this stage, a draft article had to achieve
a two-thirds majority, abstentions being disregarded. Voting was by show of hands
or by a roll call.
The Conference held two sessions totalling 14 weeks, in 1968 and 1969, when
a Convention was adopted by a vote of 79 in favour, 1 against (France)19 absten-
tions (mainly Eastern European States). The published records of the Convention are
comprehensive: good travaux prparatoires exist. Although informal consultations
did take place, off the record, they were concentrated mainly on political issues such
as the all States proposal of the Soviet bloc, the concept of ius cogens, the question
of unequal treaties and the settlement of disputes. Good records exist on the latter
three issues. The Conference followed a clear path from the outset: working its way
through the ILC`s draIt articles Irom beginning to end. Any diIfculties tended to be
resolved by means of formal debates and early resort to voting, rather than by talking
through the problem over long periods of time among those delegations primarily
concerned.
At the Law of the Sea Conference, the procedures were strikingly different. There
were no clearly defned stages, nor a pre-ordained pattern Ior the work. There was
no basic text at the outset, only the list of 25 subjects and issues plus the six volume
report by the Sea-Bed Committee. In practice, the report played little or no part in the
discussions. Many proposals advanced in the Sea-Bed Committee and included in the
Report were re-introduced into the appropriate Committee of the Conference, usually
with refnements, as national proposals by one or more delegations. On procedure, the
way forward was often unclear, so that improvisation was required. Some delegations
arrived at Caracas believing that a text had to be drawn up at that session. At different
stages during the session (and also during later ones), the General Committee and the
Plenary held lengthy meetings in order to take stock of the situation as it stood at the
time and eventually to decide upon the future procedure of the Conference.
The Conference established three main committees:
the First Committee on Deep Sea-Bed Mining;
the Second Committee on the classic Law of the Sea (including the whole of
the content of the Geneva Conference of 1958); and
the Third Committee which dealt with Marine Pollution, Marine Scientifc Re-
search and the Transfer of Marine Technology.
In addition, the Plenary acted as a Main Committee for such issues as dispute settle-
ment and fnal clauses. However, it was always the aim to combine the results oI their
work into a single Convention, in order to avoid the possibility of States repeating
the picking and choosing seen after the Geneva Conference of 1958 in regard to
the four Conventions and the Optional Protocol on the Settlement of Disputes. The
approach of seeking a single Convention led to the idea of the package deal.
30
The Third Conference also had a Drafting Committee of 21 members; but, ac-
cording to the rules of procedure, it was not to act in any way as a negotiating body.
China, France and the United Kingdom were not members since, having been given
the choice between enjoying membership of either the General Committee or the
Drafting Committee (deprived of any wider mandate), they all chose the former.
In practice, the Drafting Committee did not function until towards the end of the
conference, when it divided into Language Groups which concentrated on linguistic
concordance of the six languages (Arabic being the addition), as well as on ensuring
clear and consistent drafting, rather than issues of substance.
31
After lengthy debates at the start of the Conference, the standard Rules of Proce-
dure for UN conferences were changed: several novelties were introduced. As re-
gards decision-making, the Rules provided that the Conference should seek to work
by way of consensus, in accordance with the gentlemens agreement reached be-
fore the opening session.
32
The industrialised countries pressed for this approach be-
cause the developing states, coordinating in the Group of 77, represented a majority
in a vote. It was only when efforts to reach consensus had been exhausted that the
possibility of having a vote arose (Rule 37). The required majority was kept at two-
thirds (despite proposals to raise it) but with the proviso that at least a majority of
participants in the session were included in the two-thirds majority. This prevented
a proposal being adopted in a low vote with a large number of abstentions. These
changes in the standard Rules of Procedure were made primarily because the indus-
trialised countries, from both East and West, feared that they would be in a minority
on North/South issues.
The following highlights from the procedural aspect may be noted. In 1974 at
Caracas, the Plenary agreed its rules of procedure, held a general debate and as-
signed items to different Committees or to the Plenary itself. The three Committees
discussed the items assigned to them. A large number of proposals were tabled, espe-
cially in the Second Committee, nearly all in the form of draft articles for inclusion
in a Convention. Midway through the nine week session, there was uncertainty about
the best way to conclude the discussions. After discussion, it was decided that a
30 R. Jennings, Law-making and Package Deal, in: Melanges offerts Paul Reuter. Le
Droit International. Unit et Diversit, 1981, 374; H. Caminos and M. Molitor, Progres-
sive Development of International Law and the Package Deal, AJIL 79 (1985), 871;
Oppenheims International Law, see note 11, 726; R. Wolfrum, The Legal Order for
the Seas and Oceans, in: M.H. Nordquist (ed.), Entry into Force of the Law of the Sea
Convention, 1985.
31 L.D.M. Nelson, The Work of the Drafting Committee, in: Nordquist, see note 4, 135.
32 A/CONF.62/30/Rev.3. Rule 37 sets out the requirements for voting. The Gentlemens
Agreement reached in the General Assembly on 16 November 1973 was endorsed by the
Conference on 27 June 1974.
32 Chapter 2
document setting out the Main Trends should be prepared.
33
During the remainder
of the session, discussions addressed the question of what were the main trends on
each issue. The document, when it appeared, set out alternative formulae on all major
issues. In 1975, a debate was held on the Main Trends document with a view to
indicating to the Chairman where the preponderant weight of opinion lay on each set
of rival formulae. After renewed uncertainty over the best way forward, the Plenary
decided to issue a document called the Informal Single Negotiating Text (ISNT),
prepared on the authority of the Chairman of each main committee and coordinated
by the President of the Conference, Ambassador H. S. Amerasinghe of Sri Lanka.
34
This was a very signifcant procedural decision, resulting in the appearance oI a key
document as far as the work of the Second Committee was concerned. The decision
affected the outcome of the entire Conference.
In addition to the oIfcial meetings, there were meetings oI various inIormal and
differently composed negotiating groups: the Evensen Group,
35
the Fiji/UK Group
on Straits,
36
and others. These meetings were quite diIIerent Irom the oIfcial meeting
of the Conference, or even those of regional groups or the Group of 77. No trace of
the groups can be found in the rules of procedure: they were ad hoc initiatives, yet
they discussed substantive questions in parallel with oIfcial meetings. They drew
up sets of articles which were passed to the Chairman of the relevant Committee. In
that way, they infuenced the preparation oI the ISNT and eventually the outcome oI
the Conference. In the summer of 1975 and in 1976, there took place in the Second
Committee Article by Article readings and debates on the ISNT and the Revised Sin-
gle Negotiating Text (RSNT). These debates were held in informal working groups:
there were no oIfcial records. They were marked by the absence oI procedural ma-
noeuvring and voting which attended earlier conferences. Discussion concentrated
on questions of substance. Criticisms of proposed articles were voiced. Some new
ideas were advanced, in the form of non-papers containing amendments: there were
even oral amendments.
37
Problems peculiar to single states were raised, weighed by
the working group and, in instances where the general feeling was that a problem was
genuine and could fairly be taken into account, an adjustment was made to the text.
38
33 A/CONF.62/L.8/Rev.1 (Second Committee). OIfcial Records Vol. III, Annex II, Appen-
dix I.
34 A/CONF.62/W.P.8.
35 UNCLOS 1982. A Commentary. Vol. I, 106.
36 S.N. Nandan and D.H. Anderson, Straits used for International Navigation, BYIL 60
(1989), 159 et seq., (162); now Chapter 7 below).
37 Article 113 contains the sentence: This provision shall apply also to conduct calculated
or likely to result in such breaking or injury, proposed orally by the present writer as a
delegate of the United Kingdom following a pipeline accident in the North Sea.
38 Article 7 para. 2 was inserted in order to take account of concern by Bangladesh over
the delta of the Ganges-Bramaputra. The last phrase of article 7 para. 4 was inserted to
cover the fact that Norways baselines to and from a low tide elevation which had no
installation on it had been found by the ICJ to be not contrary to international law in the
Norwegian Fisheries Case.
On major issues, the Chairman heard where the weight of opinion lay. The debates
led to the preparation of the Revised Single Negotiating Text.
39
Later, after further
such debates, there appeared the Informal Composite Negotiating Text (ICNT),
40
which brought together into a single text the three texts from each main committee.
These lengthy debates, in which in the Second Committee there were regularly over a
hundred speakers on each paragraph or sentence under review, resulted in the refne-
ment of much of the text into one of high intrinsic qualities.
During this time from 1974 to 1977, the President of the Conference was also
holding informal meetings in Plenary about the question of the settlement of disputes.
In 1975, there took place the now famous weekend in Montreux which adopted the
so-called Montreux formula on the choice of court or tribunal for the settlement
oI disputes, now contained (albeit with major modifcations) in article 287 oI the
Convention. In 1977, several negotiating groups were created on outstanding con-
troversial issues. The Plenary took another very signifcant procedural decision to
the effect that changes in the ICNT would be made only if they attracted substantial
support and would improve the prospects of reaching overall consensus.
41
In other
words, it became very diIfcult to change the draIts, especially in the Second Com-
mittee, but not impossible. The Collegium, that is to say the President, the Chairman
of the three main committees, the Chairman of the Drafting Committee and the Rap-
porteur General of the Conference (a post not created by the Vienna Conference),
was empowered to decide upon changes to the ICNT and the draft Convention which
followed it. The Collegium was not mentioned in the Rules of Procedure. No previ-
ous ConIerence had such a body, nor had the oIfcers enjoyed such great infuence.
In April 1982, the ConIerence proceeded Ior the frst time to take a vote on a ques-
tion of substance (in the event, on the crucial issue of the adoption of the text of the
Convention and its associated Resolutions) after no less than eight years of working
by way of consensus. In the vote, 130 states were in favour of the draft Convention,
4 voted against (including the United States) and 17 (including Germany and the
United Kingdom) abstained.
42
Most of the states which did not support the Con-
vention were opposed to the deep sea-bed mining provisions: the others perceived
particular problems over matters such as delimitation. The courageous decision by
President Koh to go ahead in April 1982 and adopt the text of the Convention despite
the known opposition of the industrialised countries to Part XI has been vindicated
by later events in the 1990s. Speaking of that decision in 1996, Ambassador Satya
Nandan (who was closely involved as Rapporteur of the Second Committee) referred
to an impossible atmosphere which had existed in 1982. He continued:
It was evident then that prolonging the negotiations was not necessarily going
to resolve the outstanding issues in that Part of the Convention. The decision taken
to proceed to the adoption of the Convention without the support of some important
39 A/CONF.62/W.P.8/Rev.1.
40 A/CONF.62/W.P.10.
41 A/CONF.62/62.
42 OIfcial Records, Vol. XVI, p. 154 (Record oI the 182nd Plenary Mtg.).
34 Chapter 2
countries was based on the fact that it was important to preserve and consolidate the
progress that had been made in achieving broad agreement on almost all parts of the
Convention other than the deep sea-bed mining. The alternative was to put at risk all
that had been achieved, knowing full well that the prospects for reaching an agree-
ment on the deep sea-bed mining regime at that time were slim.
43
As matters have evolved during the 1990s, it can now be seen, frst, that agreement
on all parts other than Part XI has been further consolidated both by the entry into
force of the Convention and by state practice, and, second, that the Agreement of
1994 on the Implementation of Part XI has resolved the outstanding issues over the
regime for deep sea-bed mining.
The Conference held no less than 11 long sessions between 1973 and 1982, ex-
tending to just over 100 weeks. The language groups of the Drafting Committee held
as many as 293 meetings. The Conference was much longer as a result of the initial
absence of a basic text, the length of the agenda and the adoption of the method of
working by way of consensus. The one issue on which there was no consensus, namely
the regime for deep sea-bed mining, led to the main vote at the Conference. In a sense,
the vote was a sign that the negotiating process had failed on this issue. At the same
time, the lengthy discussions on other issues produced texts of high quality which com-
manded full or virtual consensus. The Conference displayed innovatory features from
beginning to end. The oIfcial records are not comprehensive in that major discussions
took place in meetings which were informal and unrecorded: as a result, the travaux
prparatoires are incomplete.
44
Procedural innovation also attended the start in 1990 of the UN Secretary-Gen-
erals informal consultations about problems perceived by industrialised states with
Part XI of the LOS Convention.
45
In 1990, once the agenda had been agreed, the
UN Secretariat, departing Irom its usual role, presented 'InIormation Notes (defn-
ing issues and listing options for possible solutions) for discussion at each round of
consultations (to the exclusion of proposals by delegations or a basic text). A further
novelty was the appearance of the Boat Paper, the product of an informal group of
delegates who put forward as a basis for negotiation a draft Agreement which repre-
sented the position of none of them. They all had problems with something or other
in the text, problems which were thrashed out during the remaining stages of the
process. It was also necessary to turn informal consultations into formal proceedings,
a change brought about by the report made by the Secretary-General of the United
Nations to the General Assembly
46
and the latters resumed debate on the item on its
43 Statement by Ambassador S.N. Nandan at a symposium in Hamburg on 20 October
1996.
44 Many informal documents appear in: R. Platzder (ed.), Third United Nations Confer-
ence on the Law of the Sea: Documents, 19821988.
45 For some accounts see contributions in: ZaRV 55 (1995), issue 2; and M.H. Nordquist et
al. (ed.), Entry into Force of the Sea Convention, 1995 and ICLQ 42 (1993), 654 et seq.;
ICLQ 43 (1994), 886 et seq.
46 UN Doc. A/48/50. The Report had attached to it the Draft agreement worked out in the
consultations.
agenda entitled Law of the Sea. The resulting Agreement on the Implementation of
Part XI of July 1994,
47
adopted by the General Assembly in its normal way in such
instances as the Annex to a Resolution, also contains novel features, notably on the
methods of establishing consent to be bound by the Agreement, on its entry into force
and on its provisional application. No votes were taken during the consultations. Con-
sensus was reached at the end of the consultations, with only a very few statements of
qualifcations or reservations. The vote in the General Assembly was requested by the
co-sponsors of the draft Resolution (adopting the text of the Agreement) for the sole
reason that a vote would provide a record of those delegations which had consented
to the adoption of the Resolution and the appended Agreement for the purposes of
latters article 7 paragraph 1(a) on provisional application.
The UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks,
which was concerned with the implementation oI some oI the fsheries provisions
in the LOS Convention, managed to work throughout without recourse to voting.
Discussions, many in informal session, proceeded on the basis of working papers
put forward by the President of the Conference, Ambassador Satya Nandan (Fiji).
National proposals played only a minor role. There was no drafting committee stage.
On 4 August 1995, the Conference adopted by consensus the Agreement for the Im-
plementation of the provisions of the UN Convention on the Law of the Sea relating
to the Conservation and Management of such stocks.
48
The need to prepare versions
oI the fnal text in all the working languages delayed the opening Ior signature oI the
text until December 1995. The Agreement forms an additional part of the general
framework for the law of the sea established by the LOS Convention.
F Outcome of the Vienna and Law of the Sea Conferences
The two Conferences had two things in common: each adopted a single Convention,
which then took over 10 years to enter into force. The Vienna Convention has 85
Articles,
49
whereas the LOS Convention has 320 Articles plus nine Annexes.
50
Both
Conventions deal fully with the subject matter of treaties (albeit only ones between
states) and the sea, respectively. There are topics in the Vienna Convention which
continue to give rise to doctrinal diIfculties: examples are the rules about reserva-
47 The Agreement formed the Annex to A/RES/48/263 of 28 July 1994. In accordance with
its terms, the UN Secretary-General as the Depositary opened the Agreement for signa-
ture for 12 months from 29 July 1994. The text was published as a UK White Paper, Cm
2705. The Agreement entered into Iorce with the ratifcation oI the Netherlands in mid-
1996.
48 A/CONF.164/33 of 4 August 1995. For an assessment, see D.H. Anderson, The Strad-
dling Stocks Agreement of 1995 An Initial Assessment, ICLQ 45 (1996), 463; see
Chapter 21 below.
49 UK White Paper Cmnd. 4818.
50 UK White Paper Cmnd. 8941.
36 Chapter 2
tions, especially in regard to human rights conventions,
51
and those about the modif-
cation by subsequent instruments.
52
However, it can be said that most doctrinal diIf-
culties were satisfactorily resolved. The LOS Convention is virtually comprehensive
in its treatment of jurisdictional issues to do with the sea: the provisions concerning
prescriptive and enforcement jurisdiction over wrecks lying in different zones or ar-
eas offshore represent a rare example of incompleteness. In addition to the Conven-
tion, the Vienna Conference also adopted an Optional Protocol on the Settlement of
Disputes, whereas by a deliberate decision that matter was dealt with as an integral
part of the LOS Convention in its Part XV. Both Conferences adopted Resolutions
in the Final Acts.
More than 25 years after its adoption, the Vienna Convention on the Law of Trea-
ties has 84 (May 1998) parties, drawn from all regions of the world.
53
This number
is less than half of the international community, there being 191 states on the UN
Secretariat`s unoIfcial list. At the same time, the Convention has infuenced state
practice by parties and non-parties alike. It has been widely cited by international tri-
bunals, including the ICJ,
54
as a statement of customary law. It has been followed by
international organisations in their practice and has inspired the subsequent Vienna
Convention on the Law of Treaties between States and International Organisations
or between International Organisations of 21 March 1986. The Convention is not
actively opposed by any group of states, although the issue of ius cogens remains
sensitive for some. Inertia may be the best explanation of the relatively small number
oI ratifcations.
Fifteen years after its adoption, the Law of the Sea Convention has 125 (May 1998)
states parties, representing approximately two-thirds of the community of states, and
the number is rising rapidly.
55
At present, the numbers from the East European region
and the West European and Others Group are still both relatively low on account of
dissatisfaction with the original regime in Part XI and the need for time to prepare at
the internal level Ior ratifcation oI the Convention and the Implementation Agree-
ment oI 1994 together. The Convention has infuenced state practice, the work oI
international organisations and the decisions of international tribunals, including the
ICJ.
56
The opposition to Part XI has been met: a few individual states still oppose
51 A topic now under consideration by the ILC: see Report of the ILC on its 49th session in
1997 (Doc. A/52/10).
52 A topic reviewed by the Institute of International Law, see Yearbook Vol. 66 (1995), 437
et seq.
53 The total in November 2006 has grown to 108, or just over half of the worlds states.
54 For example, in the jurisdictional phase of the Fisheries Jurisdiction Cases brought by the
United Kingdom and Germany against Iceland. See ICJ Reports 1973, 3 et seq. and ICJ
Reports 1973, 49 et seq. (175).
55 The total is 152 in November 2006. This is more than three quarters of the states in the
world. Almost all European States are parties.
56 For example, ICJ Reports 1984, 165 et seq. (253) Gulf of Maine Case and ICJ Reports
1986, 14 et seq. Nicaragua Case.
particular provisions in the Convention for local or historical reasons, but there is no
longer a centre of opposition such as that to Part XI during the years before 1994.
In many respects, both Conventions form part of the basic international legal order,
or part of the framework of international relations in the contemporary world.
II Impressions of the Legislative Processes
A Decision-Making Processes at Conferences and the
Generation of Rules of Law
An important element in international law remains customary law, based on uniform
state practice accepted as law. Indeed, as recently as 1963, a leading work contained
the following:
The best view is that international law is in fact just a system of customary law, upon
which has been erected, almost entirely within the last two generations, a superstructure
of conventional or treaty-made law.
57
Much of the law of the sea has been shaped by state practice, particularly that of
coastal and maritime states, over many decades. By way of contrast, landlocked
states have had very little eIIect upon the development oI customary law in this feld,
for obvious reasons. Conventions, which play an increasingly important role in the
codifcation and progressive development oI international law, are the product oI a
parliamentary process. At both Conferences, despite their differences in methodol-
ogy, there were majorities and groupings. Certain issues were decided by votes or
by weight of numbers in negotiations. For example, at Vienna, voting was routine.
Although there was no voting on individual provisions at the LOS Conference, at a
certain stage the group of landlocked and geographically disadvantaged states ex-
ercised a great infuence since they numbered 65. In other words, had a vote been
called on a proposal which they all disliked, together they would have represented a
blocking third of the delegations at a Conference, the Rules of Procedure of which
provided for a two-thirds majority. The proposal would not have carried because it
would have failed to achieve a two-thirds majority. This calculation strengthened the
negotiating position oI the group as a whole. Their infuence was a clear example oI
parliamentary procedures at work.
58
Their infuence was brought to bear on some
issues Ior the frst time. Historically, the landlocked countries had played no obvious
role in shaping the rules oI international law about fshing, Ior example. Yet articles
69 and 70 of the Convention recognise certain rights on the part of landlocked states
and geographically disadvantaged states. The inclusion of the articles was the result
of pressure by the group of landlocked states which joined together with another
group of states which are disadvantaged because, for geographical reasons, they can-
57 J.L. Brierlys Law of Nations, Sir H. Waldock (ed.), 6th edition, 1963, 71.
58 For a full account of their issue see S. Vasciannie, Landlocked and Geographically Dis-
advantaged States in the International Law of the Sea, 1990.
38 Chapter 2
not acquire a full zone of 200 nautical miles. This outcome was the result of political
forces and, equally, democratic. The two articles formed an element in the package
deal
59
represented by the Convention. However, this process clearly differs from the
processes whereby customary law is formed where the practice of those states which
are directly involved in a particular activity is accorded special weight.
Conventions in the legal feld, whether codifcation conventions such as the Vienna
Convention or more complex ones like the LOS Convention, have tended to infu-
ence state practice from the moment of their adoption. They can be said to represent
the verdict by the international community on a set of issues. They contain a coherent
set of propositions of law on a particular topic. They are the outcome of the nego-
tiations and thus may represent a negotiated text. As long as relations among the
delegations did not effectively break down, the outcome is likely to command con-
siderable respect by the participating States, even if it bears the mark of the compro-
mise surrounding (its) adoption.
60
It may be recalled also that this dictum regarding
negotiated texts was established in a case involving the United States, a state which
had voted against the adoption of the text of the Convention and withheld its signa-
ture (albeit for reasons to do with another part of the Convention). Furthermore, state
practice regarding the concept of the Exclusive Economic Zone (EEZ) was greatly
infuenced by the widespread support voiced Ior it during the session at Caracas and
by the detailed articulation of the concept in the Informal Single Negotiating Text in
1975. In other words, the assessment by many states of what was lawful was deter-
mined in 1975 and 1976 by having regard to two Iactors: frst, events at the ConIer-
ence and the situation prevailing there well before its conclusion, and, secondly, state
practice in the form of the claims and reactions to them of other states, especially
ones in the same region. In the North Atlantic in 1976 there was experienced a phe-
nomenon which can truly be described as a domino effect as one coastal state after
another enacted legislation creating 200 mile EEZs or fshery zones, with the result
that 1 January 1977 was seen as a watershed by many of them. Adopted conventions
and, exceptionally, a widely supported draft of a part of a convention can affect state
practice, both in making claims or in reacting to claims made by others, in such a
way as to generate new rules of international law. Where, as in the case of the LOS
Convention, reservations to an adopted Convention are not permitted, the effect may
well be to strengthen the regime of the Convention, and to do so even before its entry
into force.
B Law-Making Conventions
Oppenheims International Law
61
draws a distinction between treaties which lay
down general rules of conduct among a considerable number of states and all other
treaties. The former are characterized as law-making treaties. It could also be said
59 On the signifcance oI this element, see reIerences note 30.
60 Per the Chamber in the Gulf of Maine Case, ICJ Reports 1984, p. 247, at p. 294, para.
94.
61 Oppenheims International Law, see note 11, 1204.
that after a time such treaties, headed by the Charter of the United Nations, form
part of the fundamental legal order at the international level. They are not so much
law-making as law-stating instruments. They infuence the practice oI the parties
vis vis other parties and also towards non-parties in many cases. They even infu-
ence the practice of non-parties in many instances in circumstances where there is
no active opposition to a particular provision or regime. In the absence of a strong
reason to the contrary (such as existed in the case of Part XI) or positive opposition
(such as that shown by certain states towards the rule in article 6 of the Convention
on the Continental Shelf, following the ICJs decision in the North Sea Continental
Shelf Cases
62
), states have tended to follow the wording of these Conventions in their
national legislation and in their considered practice. In similar circumstances, inter-
national organisations have done the same, as have international tribunals. Govern-
ments may calculate that they are unlikely to be challenged if they follow an agreed
article, even if it amounted to progressive development at the time of its adoption
and even though the convention was not in force as a treaty, whether generally or for
the state concerned. Governments acting as members of an international organisation
and the Secretariats of those bodies have acted in similar ways. In the event of a chal-
lenge to an action based on such a text, the article provides a ready made explanation
or defence. The article is likely to have supporters within the ranks of Governments
and there may well be no active opposition to its terms.
Sometimes, it may matter little whether the rule is A or B, but it may mat-
ter a good deal that there should be a single rule or practice. In that situation, if a
Conference chooses rule B (even by a majority) and includes it in a Convention,
Governments will tend to rally to it even though they may have previously acted
consistently with rule A. This general practice by states, both as principals in in-
ternational relations and in shaping the practice of international organisations, has
infuenced the approach oI international tribunals, led by the ICJ. For these various
reasons, law-making Conventions have been infuential over the past halI century in
shaping the conduct of the international community as a whole, except where there
has been a centre of determined and reasoned opposition to a particular provision or
set of provisions.
63
C The Concept of the International Legislator
In international life, whilst there exists no legislature
64
such as a Parliament, Con-
gress or National Assembly, law-making conventions are nonetheless drawn up, a
phenomenon which demonstrates the existence of a legislative process at the very
least. Can there be said to exist, if not a legislature, at least a legislator in some ab-
stract sense? In a well-known passage in its judgment in the Fisheries Jurisdiction
Cases, the ICJ indicated its general awareness oI proposals about fsheries and con-
62 ICJ Reports 1969, 3 et seq.
63 For a full survey see R. Wolfrum, The Legal Order for the Seas and Oceans, in: Nord-
quist, see note 45, 161 et seq.
64 Oppenheims International Law, see note 60.
40 Chapter 2
servation of living resources of the sea put forward during the Third UN Conference
on the Law of the Sea (indeed, judgment was given on the middle day of the session
held in Caracas, 25 July 1974). The judgment continued: In the circumstances, the
Court, as a court of law, cannot render judgment sub species legis refendae, or an-
ticipate the law before the legislator has laid it down.
65
In the context, the legislator
foremost in the Courts mind was the Conference, but the Court was undoubtedly
well aware, only fve years aIter its decisions about the status oI diIIerent parts oI the
Convention on the Continental Shelf in the North Sea Cases
66
that any convention
resulting from the Conference would have to stand the test of acceptance or rejection
in Governments` decisions over signature and ratifcation, as well as in state practice.
Perhaps the Court, led as it was in 1974 by Judge Manfred Lachs, was using the term
in the sense employed in continental Europe, namely the general processes by which
law is made.
67
D Reform of the Law of the Sea
The concept of reform in a legal context amounts to a radical improvement upon
the status quo ante. Reform presupposes a coherent situation which it is desired to
change for the better, possibly by adapting it to technological or other developments
and new ideas. As such, the concept goes Iurther than codifcation and progressive
development by attempting actively to change and improve the existing law. Like
technical revision in the light of practical experience, reform is a sign of a maturing
legal system in that it attempts to build upon the acquis. At the Vienna Conference,
there were important elements of progressive development (e.g. ius cogens) but the
idea of law reform was hardly present, if only because there existed no previous
general convention on the topic. At the LOS Conference, fundamental change in the
regime of the Geneva Conventions of 1958 was very much on the agenda from the
outset. For example, the whole approach to the issue of the limits of national jurisdic-
tion was new, as was the treatment of the archipelagic question and the protection of
the marine environment. To take a particular instance, at Caracas during the discus-
sion of the agenda item about the High Seas, some delegations argued for no less
than the abolition of the whole concept of the high seas and its replacement by that
of ocean space, bringing about a revolution in the Law of the Sea. This approach
was opposed by the present writer, speaking for the British delegation, as too desta-
bilising and unnecessary.
68
The result of the Conference can be seen, in many ways,
as legal evolution, but not revolution.
Thus, the preamble to the Convention notes that developments since 1958 and
1960 have accentuated the need for a new and generally acceptable Convention on
65 ICJ Reports 1974, p. 3, at pp. 23-24, para. 53.
66 The Court held that articles 1 and 2 were refective oI customary law, but not article 6:
ICJ Reports 1969, 3.
67 On the concept of the legislator in relation to the LOS Conference, see P. Allott, Power
Sharing in the Law of the Sea, AJIL 77 (1983), 1 et seq. (5).
68 OIfcial Records, Vol. II, Second Committee, p. 237.
the law of the sea. After noting also the interrelated nature of the problems, it goes
on to refer to the desirability of establishing ... a legal order for the seas, so as to
meet specifed goals, the achievement oI which would help realise a 'just and equi-
table economic order. In the operative provisions, signifcant elements oI the old
law, including indeed much of the Convention on the High Seas, have been retained.
However, very signifcant alterations have been made, together amounting to law
reform. The agreement on the limits of national jurisdiction marks a major develop-
ment. The introduction of the EEZ between the territorial sea and the high seas is a
radical innovation by any standards, altering the Iundamental dichotomy defned in
the Geneva Conventions.
69
The EEZ has had a profound effect upon international
law, as well as upon the economics of many states. In particular, it has affected the
international fshing industry very considerably. It may be perceived as an element in
a new economic order, but ironically some oI the main benefciaries have been devel-
oped states facing the open oceans. The rules on the limits of the territorial sea and
on passage (innocent, transit or archipelagic sealanes passage) were also reformed, as
well as aspects of the law on the continental shelf. Acceptance of the concept of the
archipelagic state, following rejection of proposals at the Geneva Conference in 1958,
has profound effects for such states as well as for other states including neighbours.
Finally, the law on the high seas was reIormed in some ways (fag state duties were
clarifed,
70
pirate broadcasting was outlawed,
71
hot pursuit was extended to the EEZ
and the continental shelf,
72
and improved protection afforded to submarine cables).
73
These latter reforms, the result of proposals formulated to a large extent (somewhat
ironically again) by the UK delegation,
74
represent progressive development of the
Geneva law proposed in the light of experience gained after 1958. The process gained
strength Irom the inclusive approach which was adopted, frst towards participation
in the Conference and then in the generous time devoted to the consideration of all
points of view, in the effort to work by way of consensus and achieve balance.
75
E The Amendment and Adjustment of Law-Making Conventions
Once concluded, a Convention which codifes and develops rules oI international
law, if it has general support in the international community, quickly acquires the
status oI part oI the accepted order oI things. As such, it becomes very diIfcult to
69 A point made by Ambassador Owada (Japan) during the inaugural meeting of the Inter-
national Sea-Bed Authority, held in Kingston Jamaica on 16 November 1994.
70 In article 94.
71 In article 109.
72 In article 111 para. 2.
73 By article 113.
74 In A/CONF.62/C.2/L.54, tabled together with the other Member States of the European
Community.
75 A term used by B.H. Oxman in his account of the Eighth Session of the Conference,
The Third UN Conference on the Law of the Sea. The Eighth Session (1979), AJIL 74
(1980), 1 et seq.
42 Chapter 2
amend the Convention by any formal process. Even if weaknesses are detected the
tendency has been to avoid seeking an amendment for fear of reopening the previous
negotiations, with the attendant risk of reopening the whole Convention and seeing
regressive, rather than progressive, development of the law. A review of the Vienna
Convention on Diplomatic Relations by the British Government in 1985, in the after-
math of the shooting incident at the Libyan Embassy, concluded that:
... the Vienna Convention is a codifcation oI international law and practice going back
many hundred years which was re-examined carefully by the international community
before it was agreed in 1961. As such it is almost universally respected. It has provided
a framework which is clear but nevertheless leaves room for common sense in its de-
tailed interpretation and application. We have made extensive international soundings
on the feasibility of amending the Vienna Convention through renegotiation. There is a
widespread consensus that attempts to do so would not succeed. They could in fact cre-
ate more problems than they would solve by opening up issues on which disagreements
could surface and thrive.
76
Instead, the preferred solution has been to seek to improve implementation by the
parties of the existing provisions, without reopening them.
Where there is dissatisfaction on the part of the section of the international com-
munity with such a Convention, there is a tendency for the states concerned to with-
hold signature and ratifcation. This happened to the Geneva Conventions oI 1958 in
the case of many developing countries, particularly ones from Latin America, Asia
and Africa, which wanted wider limits of national jurisdiction. Withholding also oc-
curred in the case of the LOS Convention, this time on the part of industrialised coun-
tries because of Part XI. In the case of the Geneva Conventions, the eventual result
was the convening of a totally new Conference with a wide mandate to review the
whole of the law. In that process, no-one pressed hard for a formal amendment of any
of the Geneva Conventions, even though they were treaties in force which contained
provisions about their own possible amendment. Instead, the Conference decided, in
effect, to reform them, making many radical changes but at the same time repeating
(and in a sense re-enacting) many of their provisions. This repetition of rules from
the Geneva Conventions has further consolidated those rules, contributing thereby to
historical continuity.
In the case of Part XI, informal consultations were held between 1990 and 1994
with a view to addressing the problems voiced by the industrialised countries. Once
again, procedural innovations abounded. The result was the adoption by the General
Assembly of the Agreement of the Implementation of Part XI, which also breaks
much new ground.
77
The Agreement disapplies specifc provisions in Part XI and
applies new ones. This amounts in eIIect to a substitution or even a modifcation.
76 White Paper on Diplomatic Privileges and Immunities, Cmnd. 9497.
77 On the status of the Agreement, see the papers read at the symposium on the entry into
force of the Convention on the Law of the Sea in: ZaRV 55 (1995), including Chapter
20 below.
However, it deliberately does not formally or textually amend Part XI: moreover, the
amendment provisions of the Convention (which was not in force at the time) were
not followed. Instead, a new instrument was drawn up which has to be read as one
with Part XI and which prevails over it in the event of inconsistency. Similarly, as
its title indicates, the Agreement for the Implementation of the Provisions of the UN
Convention on the Law of the Sea relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks avoids any amendment of
the LOS Convention. Instead, the Agreement spells out in detail the content of the
simple duty to cooperate contained in arts 63(2), 64 and 117 of the Convention and
provides for the implementation of the duty at the national, subregional, regional and
global levels. This interpretation of those articles in the Convention has now to be
approached in the light of the Agreement, having regard to article 31 paragraph 3(a)
of the Vienna Convention on the Law of Treaties (subsequent agreements between
the parties regarding interpretation).
To sum up, there is recent evidence of an emerging tendency to avoid the formal
amendment of Conventions codifying or developing rules of international law for
reasons to do with the need to maintain the current acquis or legal stability, but yet to
allow Ior the modifcation oI such Conventions by means oI additional, supplemen-
tary instruments. The latter may take the form of implementation agreements which
elaborate, or develop further, principles laid down in a basic instrument without for-
mally amending it. The LOS Convention is a prime example of an instrument which
creates a general framework of rules and principles and which contemplates or al-
lows for the possibility of further elaboration of its terms by competent international
organisations in the form of Guidelines or new Conventions.
By way of contrast, however, in the case of technical Conventions in the maritime
feld, such as MARPOL
78
and SOLAS,
79
formal amendment is provided for expressly
in their fnal clauses, both in regard to the main provisions and the Annexes, and
amendment is now regularly undertaken within the IMO. Safety standards must be
improved and new technology provided for. Unusually, amendment by means of a
system of tacit consent is permitted by the Amendment Articles and this procedure
of tacit consent is often employed, in the interest of avoiding delays in the introduc-
tion of higher standards. In other words, there exists a different attitude on the part
of Governments towards the question of amendments in the case of technical Con-
ventions, a difference which can best be explained by their technical, as opposed to
law-making, character.
III Conclusions
Since 1945, thanks to the United Nations and the ILC, much of international law has
been codifed and clarifed in the Iorm oI Conventions. Something oI a golden age
was experienced in the 1960s when three Vienna Conventions on Diplomatic Rela-
78 Convention for the Prevention of Pollution from Ships 1973/1978 (Consolidated Edition
1991, IMO).
79 Convention on the Safety of Life at Sea (Consolidated Edition 1992, IMO).
44 Chapter 2
tions, Consular Relations and the Law oI Treaties were adopted. Some codifcations
remain outstanding in the ILC, notably the topic of state responsibility, but the golden
age has given way to a less productive period, although there have been positive re-
sults (notably concerning international watercourses and international criminal law)
recently.
The importance of thorough preparatory work cannot be over-stressed and an ex-
pert body such as the ILC is often best placed to prepare drafts for a diplomatic con-
ference.
80
However, the Commission may not be best suited to the task of law reform,
at least where political elements predominate and there exists an understandable de-
mand for an all-inclusive approach to the question of participation in what amounts
often to a quasi-legislative process. In such a case, a fully representative group of the
various, often opposed, political interests may be the best preparatory body. The lack
of adequate preparations may serve only to complicate and prolong the deliberations
once they begin.
In many areas of the law, there is a natural reluctance to reopen (or to allow others
to reopen) successful negotiations which have led to the adoption of a Convention
and to seek to amend it (especially textually). This reluctance has been manifested
in the case of the Vienna Conventions and now the LOS Convention. However, it
does not attend technical Conventions where technological advances and heightened
expectations over safety call for matching legal advances in the form of amendments
to the Conventions.
Decision-making by conferences is now often by way of consensus, rather than
voting. Consensus-working was institutionalised at the LOS Conference in new Rules
of Procedure. This method of work prolongs the negotiations and can led on occa-
sion to ambiguity, sometimes deliberate, as well as to Pyrrhic victories
81
over dis-
satisfed minorities, iI what is reached amounts in Iact to a Ialse consensus. Such an
outcome would represent a partial or total failure of the negotiating process. Against
that, working by way of consensus, if successful, can produce carefully balanced,
often more detailed, texts which attract wider support and prove to be long-lasting.
States may be willing to accept a set of balanced texts as a sort of package, even
though some points may not be ideal in their particular circumstances. There is less
likelihood oI there existing a dissatisfed minority which, having been outvoted or
disregarded, simply withholds consent to the resulting Conventions. Universal par-
ticipation in the LOS Conference was a source of strength in the negotiating process
since no views went unheard. Indeed, some account was taken of many minority or
even individual points of view, often caused by particular historical or geographical
circumstances, where the majority was persuaded that a particular point of view had
some merit or force and could be accommodated to a certain extent in the text. Be-
80 On the work oI the ILC during its frst 40 years, see I.M. Sinclair, The International Law
Commission, 1987; and 'The Impact oI the Unratifed Codifcation Convention, in: A.
Bos et al. (ed.), Realism in Law Making. Essays in Honour of W. Riphagen, 1986.
81 A term used by B. Simma, Consent: Strains in the Treaty System, in: R. St. J. Mac-
donald et al. (eds.), The Structure and Process of International Law. Essays in Legal
Philosophy, 1983, 485, 488.
ing open to all entities, the conference pursued the consequential objective of seek-
ing universal participation in the resulting Convention. The same objectives inspired
the Secretary- Generals successful consultations called to address the problems of
industrialised states with some of the terms contained in Part XI of the LOS Conven-
tion as adopted in 1982. The working methods oI the LOS ConIerence infuenced the
conduct of the UN Conference on Straddling Fish Stocks and Highly Migratory Fish
Stocks.
Reservations, because they tend to weaken a legal regime contained in a Conven-
tion, may mark something of a failure in the negotiating process. Ideally, all genuine
concerns should be raised in the negotiations and taken adequately into account in
the text of the instrument as adopted at the end. There is then less need for govern-
ments to consider making a reservation. Conversely, the prohibition of reservations
tends to strengthen the legal regime represented by a Convention, especially once it
has acquired a critical mass oI support in the Iorm oI ratifcations, state practice or
practice by international organisations.
Parliamentary processes in the international community bring forces into play
which do not attend the processes of making customary law. Whilst such processes
are democratic, the results can be surprising, especially for states which have helped
to shape customary law by their historic practice. The views of states upon the re-
form or abolition of rules of law which they have not helped to shape are perfectly
legitimate, whether they are newly independent states or states which for geographi-
cal reasons did not add to the corpus of state practice on a particular issue. Their
endorsement of the rules helps to strengthen the law.
A diplomatic conference which is open to all states and other similar political
entities in the world and which is called in order to negotiate and conclude a con-
vention regulating a legal topic of general interest may be the nearest equivalent in
the international community to a legislature. Such conferences follow deliberative
processes and take decisions at a procedural level. However, the differences between
such conferences and legislative organs probably still outweigh the similarities. Such
conferences clearly form part of the legislator, viewed as a process.
Finally, the question is posed whether or not Brierlys view
82
of international law
a system of customary law on which a superstructure of Conventions had been
erected remains valid. The superstructure has grown since 1963 and the law, on
this view, may have become top-heavy. The role of customary law remains im-
portant for several reasons, including the existence of non-parties and gaps in the
articles. However the work of the United Nations over the past 50 years has tended
to diminish the role of customary law as the law-making processes have produced
conventional law.
82 See note 57.
Part 2
The UN Convention on the Law of the Sea
Chapter 3
Entry into Force of the UN Convention on the Law of
the Sea*
The Convention on the Law of the Sea must also be seen, and appreciated, in a wider con-
text. For the frst time in fIty years, there is now a genuine opportunity Ior international
cooperation to make respect for the principles of international law a meaningful reality.
The broader human struggle to ensure that relations between nations, and relations within
nations are governed by the rule of law, continues.
UN Secretary General Boutros Boutros Ghali in his inaugural address to the Assembly of the Inter-
national Seabed Authority on 16 November 1994 in Kingston, Jamaica.
The UN Convention on the Law of the Sea of 10 December 1982 (the Convention)
has rightly been acclaimed by the overwhelming majority of governments and com-
mentators as a major achievement oI the United Nations in the legal feld. At the
time of its adoption, the President of the Third UN Conference on the Law of the Sea
* This chapter, based on a lecture at the British Institute of International and Comparative
Law on 29 November 1994 (with updating to 20 January 1995), was frst published in
volume 44 of the International and Comparative Law Quarterly (ICLQ) (1995), pp. 313-
326; it has not been updated further. It sets out a view of the Convention taken at the
time of entry into force. Many subsequent developments are reviewed in other chapters,
especially Chapter 5. Current information about the status of the Convention and the
Implementation Agreement of 1994 is posted on http://www.un.org/Depts/los/index.htm.
and digested in the UN Secretary Generals reports on Oceans Affairs and the Law of the
Sea, most recently in document A/61/63/Add.1 of 2006.
50 Chapter 3
stated the fundamental objective: to produce a comprehensive constitution for the
oceans which will stand the test of time.
1
Since 1982 most Parts of the Convention
have been applied reasonably consistently by States. Many provisions have been im-
plemented or applied in legislation by States,
2
in new Conventions adopted by inter-
national conferences,
3
in decisions by international courts
4
and in guidelines adopted
by international organisations.
5
On 16 November 1993 Guyana deposited the 60th
instrument of acceptance, thereby triggering the entry into force of the Convention
(in accordance with Article 308) on 16 November 1994.
This article describes the present status of the Convention (including its immedi-
ate future prospects) and then assesses the wider implications of these events for the
development of international law and for international relations generally.
I Present Status of the Convention and Future Prospects
Today
6
there are 72 States parties to the Convention, compared with 191 States on the
United Nations` unoIfcial list Ior electoral purposes, oI which 184 are UN members.
Of the States parties, 30 are members of the Group of African States at the United
Nations (out oI a total oI 53). The fgures Ior other UN electoral groups are:
(1) Asia: 15 States parties out of 52.
(2) Latin America and the Caribbean:
7
19 States parties out of 33.
(3) Eastern Europe: three States parties out of 20.
(4) Western Europe and others: 5 States parties (Australia, Germany, Iceland, Italy
and Malta) out of 29.
Out of the total of 72 States parties, 68 are developing States and four (Australia, Ger-
many, Italy and Iceland) are developed or industrialised. It will take a while for this
imbalance to rectify itself. Among the 72 States parties there are eight landlocked
8
1 UN Publication: The Law of the Sea (1983), p. xxxiii.
2 Many States have extended their territorial sea to 12 nautical miles and established EEZs
between 1982 and 1994.
3 E.g. Vienna ConIerence on Illicit TraIfc in Narcotic Drugs 1989 and UN ConIerence on
Environment and Development 1992.
4 The ICJ has found that provisions on the continental shelf and innocent passage were
expressive of customary law: Gulf of Maine Case I.C.J. Rep. 1984, 264 and Nicaragua
Case I.C.J. Rep. 1986, 14.
5 The IMO, ICAO and IOC have studied the implications of the Convention for their work.
On the signifcance oI the work oI organisations, see Sohn (1994) 88 AJIL 696.
6 20 Jan. 1995. All statistics are based on an informal Note by the UN Secretariat.
7 OI all regions, the Caribbean has the highest ratifcation rate, a statistic which may be
connected with the fact that the headquarters of the International Seabed Authority are
in Jamaica: 8 of the last 10 States to ratify before entry into force, i.e. numbers 51 to 60,
were Commonwealth Caribbean States.
8 Botswana, Mali, Uganda, Zambia, Zimbabwe, Paraguay, FYRO Macedonia.
51 Entry into Force of the UN Convention on the Law of the Sea
States and 11 which claim to be archipelagic States
9
(more than was anticipated by
many delegates at the Conference when Part IV was discussed). Thirty-one are mem-
bers of the Commonwealth.
In the normal way, following Article 17 of the Vienna Convention on the Law of
Treaties, the entry into force of the Convention on 16 November 1994 should have
meant the entry into force of all its Parts and all its Annexes. However, two decisions
have been taken which modify that position.
First, on 28 July 1994 the General Assembly adopted the Agreement on the Im-
plementation of Part XI of the Convention.
10
To date the Agreement has been signed
by 72 States and the European Community, and has 11 parties.
11
Article 8 of the
Agreement provides for its provisional application with effect from 16 November
1994. As a result, the original version of Part XI, as adopted in 1982, has not had any
independent effect. Instead, upon entry into force of the Convention, Part XI and the
related Annexes were immediately qualifed by the terms oI the Agreement, which
was being applied provisionally.
12
Under the terms of the new Agreement, States which have signed it and are apply-
ing it provisionally are members of the International Seabed Authority on a provi-
sional basis.
13
Thus, the United Kingdom, which for 12 years was an observer at the
PREPCOM as a non-signatory of the Convention, was represented at the inaugural
meeting of the Assembly of the Authority (as a member on a provisional basis), being
a signatory of the Agreement. At present, a transitional situation exists in the Author-
ity pending the entry into force of the Agreement.
14
In the meantime, the members on
a provisional basis are eligible to stand for election to the Council of the Authority
and to vote in the elections. They are also able to sponsor applicants for contracts or
plans of work.
A second signifcant change was decided upon on 22 November 1994 when a
formal meeting of the States parties to the Convention, held at the United Nations
in New York, decided to deIer the frst election oI the judges oI the International
9 Cape Verde, Sao Tome and Principe, Comoros, Fiji, Indonesia, Philippines, Antigua and
Barbuda, Bahamas, Jamaica, St Vincent and the Grenadines, Trinidad and Tobago.
10 GA Res.48/263 was adopted by 121:0:7. Cm. 2705. For an account of the discussions
leading up to the Agreement see Anderson (1993) 42 ICLQ 654 and (1994) 43 ICLQ 886
and Koch (1994) 32 Archiv des Volkerrechts 336.
11 Belize and Kenya by defnitive signature under Art. 4(3)(a); Australia, Germany, Italy,
Lebanon, Mauritius, Singapore, Seychelles and Sierra Leone by ratifcation together with
the Convention; and the FYRO Macedonia by succession.
12 In submitting the Agreement to the US Senate, President Clinton stated that the deep
seabed mining regime was in need of reform Such reform has now been achieved.
The agreement fundamentally changes the regime of the Convention (Treaty Doc-
ument 10339 of 7 Oct. 1994).
13 Art. 7 provides for provisional application by signatory States apart from those which
notify the Depositary in writing to the contrary.
14 Art. 7(3) regulates the termination of provisional application. S. 1, para. 12 of the Annex
provides for membership on a provisional basis.
52 Chapter 3
Tribunal on the Law of the Sea until 1 August 1996. This decision was taken after
informal consultations with the non-States parties, many of which are industrialised
countries currently engaged on submitting the Convention and the new Agreement to
their legislatures with a view to securing consent to ratifcation or accession. These
non-States parties wished to be able to take part in the frst election by nominating
candidates and voting, rights available only to States parties. Article 2(2) of Annex
VI requires that in the Tribunal as a whole the representation of the principal legal
systems of the world and equitable geographical representation shall be assured.
15
The imbalance in the 72 parties between industrialised countries (four) and develop-
ing States (68) raised the twin questions of representation of major legal systems
and funding, since the Tribunal has to be paid for by the States partiesnot the UN
budget. With those considerations in mind and in order to allow suIfcient industr-
ialised States, primarily from the Group of Western European and Other States and
the Eastern European Group but also including Japan in the Asian Group, to become
parties, it was decided to give them (and their legislatures) an extension of 14 months
beyond the period of six months counting from November 1994 envisaged when the
Convention was drafted. This can be seen as a procedural decision, taken so as to
permit full effect to be given to Article 2 of Annex VI. In other respects Annex VI is
being followed precisely.
Apart from this election, the various timetables set out in the Convention are being
observed. Thus, in accordance with Article 308(3), the Assembly of the Authority
was inaugurated by the UN Secretary General in Kingston, Jamaica, the seat of the
Authority, on 16 November 1994. However, the occasion was largely ceremonial,
marking entry into force, and the Assembly did not elect the Council of the Author-
ity on that day. The meeting was adjourned until a three-week session starting on
27 February 1995, when it is hoped that the Council will be elected and the Secre-
tary-General of the International Seabed Authority appointed. Under the terms of the
Agreement adopted on 28 July 1994, the administrative expenses of the Authority
are to be met during an interim period through the UN budget.
16
Accordingly, the
Secretary-General of the Authority will have to draw up a budget for 1996 and submit
it to the Finance Committee and Council of the Authority, prior to its submission to
the Advisory Committee on Administrative and Budgetary Questions and the Fifth
Committee of the General Assembly.
Another body which is proceeding on schedule is the Preparatory Commission,
created by Resolution I oI the ConIerence in 1982. PREPCOM held its fnal meeting
in August 1994 and adopted its fnal report.
17
It was able to take account of the terms
of the new Agreement adopted at the end of July. It adopted the provisional agendas
Ior the frst meetings oI the Assembly and the Council oI the Authority. It adjusted
the obligations of the registered pioneer investors in the light of the terms of the new
Agreement and registered South Korea as a pioneer investor. The PREPCOM will
15 Art. 3(2) provides that each regional group is to have 3 seats.
16 Annex, s. 1, para. 14.
17 LOS/PCN/L. 115/Rev. 1 of 8 Sept. 1994.
remain in existence until the conclusion oI the frst session oI the Assembly, probably
in the spring of 1995; but effectively it wound up all outstanding business in August
1994.
18
Finally, the Commission on the Limits of the Continental Shelf (created by Article
76(8) of the Convention) has to be elected before May 1996 according to the terms of
Annex II. States have ten years Irom ratifcation or accession to submit their inIorma-
tion on limits beyond 200 miles.
To sum up the status of the Convention: it has entered into force for the States
parties and they are implementing it. In addition, various international organisations
such as the United Nations, the International Maritime Organisation and the new
International Seabed Authority are implementing different parts of it. However, Part
XI has been qualifed by the new Agreement, which is being applied provisionally,
pending its entry into force, resulting in an interim or transitional regime. Moreover,
the frst election oI the Tribunal has been postponed to allow more time Ior States
to ratify or accede. The Convention is not in force as a treaty for non-States parties;
but many of them are observing it in practice, both directly and as members of the
organisations. Some non-parties are also joining in the provisional application of the
new Agreement. Decisions about ratifcation by some important States, notably Rus-
sia and the United States, remain outstanding.
II Adoption of the Agreement on the Implementation of Part XI of the
Convention
According to its title, the Agreement adopted by the General Assembly on 28 July
1994 has to do with the implementation of Part XI (deep seabed mining).
19
The Agree-
ment provides that certain provisions in Part XI and the related Annexes are not to
apply and that some new provisions are to apply instead. The Agreement and Part XI
are to be interpreted and applied together as a single instrument. In the event of dif-
Ierences the Agreement prevails. In other words, the Agreement modifes in eIIect the
terms of Part XI. At present the Agreement is being provisionally applied by many
States including the United Kingdom, pending its entry into force.
20
The substance of
the Agreement is contained in the Annex, which is divided into nine sections.
Section 1 deals with institutional questions and is intended to reduce the costs to
States parties. This aim will be achieved by phasing-in the various institutions. Sec-
tion 1 also contains transitional arrangements for the registered pioneer investors
under Resolution II and for the approval of plans of work by investors which did not
register under Resolution II, including the United Kingdom.
Section 2 provides that when the Enterprise begins its full functioning, it is to do
so through joint ventures. These will be negotiated on sound commercial principles
once the Council has issued a directive for the Enterprises independent functioning.
18 Res. I, para. 13, adopted by the Third UN Conference on the Law of the Sea.
19 Cm. 2705.
20 Art. 7 provides Ior provisional application. The UK signed subject to ratifcation.
54 Chapter 3
The Enterprise will not be funded by the States parties and it will work under the
same rules as other operators from the private sector.
Section 3 changes the arrangement for decision-making in the Council of the
Authority by introducing a system of voting by chambers. If consensus cannot be
reached, decisions on issues of substance have to be taken by a two-thirds majority
of the 36 members, provided such decisions are not opposed by a majority in any
one oI the fve chambers. Two oI the chambers will be made up oI consumers oI the
relevant minerals and investors in deep seabed mining, chambers on which industr-
ialised countries will be strongly represented. The United Kingdom may be eligible
to stand for either chamber. As regards applications for plans of work, different rules
apply which should ensure that duly qualifed applicants whose plans are approved
by the Legal and Technical Commission obtain a contract with the Authority.
Section 4 disapplies the provisions in Article 155 about the calling of a review
conference. Amendments relating to the Agreement and to Part XI are to be made in
accordance with Articles 314, 315 and 316 of the Convention, subject to the provisos
that Article 155(2) and (5) are still to apply.
Section 5 provides for the transfer of technology not on a mandatory but, rather,
on a commercial basis. Technology would be included in arrangements for joint ven-
tures or could be made available on the open market. Provision is also made for en-
couraging co-operation in order to facilitate the transfer of technology but always on
commercial terms. Special protection is given to intellectual property rights.
In section 6 the production policy of the Authority is placed on the basis of market
forces. The provisions of GATT, including the new agreements resulting from the
Uruguay Round, are to apply. Subsidising seabed mining is outlawed, except as may
be permitted under GATT. Similarly, discrimination between seabed minerals and
terrestrial minerals is prohibited.
Section 7 replaces the compensation fund for developing land-based producers of
minerals with a scheme of economic assistance funded from the proceeds of mining.
Such assistance would be additional to aid fows through international fnancial insti-
tutions, which would play a key role in the scheme.
Section 8 ameliorates the fnancial terms Ior contractors. The payments to the Au-
thority are to be in line with those charged for land-based mining operations to win
manganese, copper, etc.
Finally, section 9 establishes a Finance Committee which will make recommenda-
tions to the Assembly and the Council of the International Seabed Authority on all
fnancial and budgetary questions.
With the adoption and provisional application of the new Agreement, the deep
seabed mining industry is now being offered a stable, market-orientated legal regime.
The specifc problems voiced by industrialised States in 198284 have been satisIac-
torily addressed, one by one. As President Clinton put it in his message to the Senate
seeking its advice and consent, The Agreement fundamentally changes the deep
seabed mining regime of the Convention.
21
The ideology of the 1970s has given way
to sound commercial principles.
21 Message from the President to the US Senate, 7 Oct. 1994, Treaty Document 10339.
III Legal Implications of Entry into Force of the Convention and the
Provisional Application of the Agreement
A For States Parties
The entry into force of the Convention carries with it the normal implications under
the Vienna Convention on the Law of Treaties. That is to say, as between the States
parties to the Convention, the basic rule of pacta sunt servanda applies.
22
Their rela-
tions in many maritime matters are governed by the Convention. More widely, the
relevant practice of the States parties must be based on the Convention. States are
repealing legislation based on the terms of the Geneva Conventions and enacting new
laws in line with the Convention. Entry into force will result in an addition to State
practice by States which are parties. Under Article 31, paragraph 3(b) of the Vienna
Convention on the Law of Treaties, the subsequent practice of parties in the appli-
cation oI a treaty is oI special signifcance Ior the treaty`s true interpretation iI the
practice establishes the agreement of the parties regarding its interpretation.
The preamble to the Convention of 1982 noted that developments since 1960 had
accentuated the need for a new and generally acceptable convention. None of the
four Geneva Conventions attracted todays number of parties to the Law of the Sea
Convention (72). The High Seas Convention had 57 parties and that on the Territorial
Sea 46, with 53 for the Convention on the Continental Shelf.
23
In many respects, the
four Conventions as a whole were not accepted by the Latin American States which
attended the Geneva Conference in 1958 and by the States (mainly in Africa, Asia
and the Caribbean) which came to independence later. The failure to agree on the
limits oI the territorial sea and fsheries jurisdiction in an era oI political and techno-
logical change quickly proved to be a grave weakness in the Geneva law. Moreover,
the defnition oI the continental shelI was soon overtaken by new technology and the
median line rule was opposed by a wide cross-section of States, especially after the
North Sea Continental Shelf cases.
24
Article 311(1) provides that the Convention is to prevail, as between the States
parties, over the Geneva Conventions on the Law of the Sea of 1958. As the number
of parties grows, the Convention will prevail to an increasing extent. This provision
signals rather clearly a formal stage in the process of evolution in the law of the sea.
The law as it stood in the 1960s, following the First and Second UN Conferences on
the Law of the Sea, is giving way more and more. The process of evolution began
22 Art. 26 of the Vienna Convention on the Law of Treaties. For a valuable survey see
Wolfrum, Entry into Force: Legal Effect for Parties and Non-Parties, in M.H. Nor-
dquist and J. Norton Moore (eds.), Entry into Force of the Law of the Sea Convention
(1995) Martinus Nijhoff Publishers, p. 161.
23 Of the 72 parties to the Convention of 1982, 15 are parties to the Territorial Sea Conven-
tion, 17 to the High Seas Convention and 13 to the Continental Shelf Convention.
24 I.C.J. Rep. 1969, 3.
56 Chapter 3
many years ago, at least by the 1970s when the 200-mile limit was accepted;
25
but it
has accelerated since 1982. Entry into force marks and formalises the change.
The Convention of 1982 breaks much new ground: new concepts abound. Entry
into Iorce oI all Parts oI the Convention (subject to the qualifcations mentioned
above) means that States parties can take advantage of possibilities set out in the
different Parts and Annexes. Equally, each State party has to accept claims by other
States parties based on the Convention. A party to the Convention must therefore ac-
cept new concepts articulated in its terms, for example the archipelagic State under
Part IV, the fshing rights oI landlocked States under Article 69 and extended pollu-
tion jurisdiction under Part XII.
On many matters to do with the law of the sea, there can be only one rule. The
rule of the road for ships is an obvious example. But the proposition is true also for
States. To take a simple example, a State can have only one set of baselines and
national limits of jurisdiction: it cannot have one set based upon the Convention of
1958 and another set based on the Convention of 1982 or customary law. The normal
rules in Article 30 of the Vienna Convention on the Law of Treaties about successive
treaties dealing with the same subject matter do not take suIfcient account oI this
factor. If the State is a party to the Convention of 1982, its baselines and limits have
to be in conformity with the relevant provisions. It is very likely that the provisions
oI the Convention oI 1982 will be the primary infuence on State practice worldwide.
Entry into force will lead to a legitimisation ex post facto of some past practice, e.g.
archipelagic claims.
B For Non-Parties
As regards States which have not yet become parties to the Convention, as a matter
of strict law its provisions are not binding upon them: Vienna Convention, Article 34.
However, many of these States have already been applying much of the Convention,
day by day, since 1982, or even earlier in some respects. Many provisions are expres-
sive of rules of customary law. States have been following the Convention in matters
such as the 12-mile territorial sea and the 200-mile economic zone, as well as rights
of passage. They have ceased to protest about a wide range of claims by other States
in line with, or explicitly based on, the Convention. Many of these non-parties are
industrialised States with major maritime interests: in many cases they are applying
provisionally the Agreement adopted on 28 July 1994 and enjoying membership on
a provisional basis of the Authority. They are also helping to pay for the Authority
from the UN budget, on a temporary basis. They are preparing to ratify or accede in
many cases. Nonetheless, as non-States parties, they are not bound by the provisions
about the settlement of disputes, i.e. Part XV. This also means they are currently in-
eligible to nominate candidates for the International Tribunal on the Law of the Sea
and to vote in elections for judges starting on 1 August 1996. The situation is similar
in regard to the election of the Commission on the Limits of the Continental Shelf, to
be constituted by May 1996.
25 The UK and other States in the NE Atlantic asserted a 200-mile limit from 1 Jan. 1977.
C International Organisations and Conferences
Many specialised agencies and other organisations have a mandate to do with mari-
time matters. It is enough to mention the International Maritime Organisation (IMO)
on shipping, the Food and Agricultural Organisation on fshing, the International Civil
Aviation Organisation on overfight, the International Oceanographic Commission oI
UNESCO on scientifc research, and the International Hydrographic Organisation on
charting. Together with the United Nations itself, all these organisations (and many
others besides) are all applying the terms of the Convention in carrying out their du-
ties. Indeed, the Convention has increased the tasks and the importance of the IMOs
work quite signifcantly. The IMO is 'the competent international organisation re-
ferred to in many Articles in the Convention, particularly in Parts II, III, IV and
XII about navigation, safety standards and the protection of the marine environment.
The IMO has already adopted guidelines implementing Article 60(3) concerning the
abandonment of installations,
26
as well as the new Regulation 81 in Chapter V of the
Convention on the Safety of Life at Sea concerning vessel reporting systems.
27
Many conferences held since 1982 have adopted new international instruments
which accept the terms of the Convention as the framework. Examples include the
UN Convention on the Illicit TraIfc in Narcotic Drugs, the UN Convention on Con-
ditions for the Registration of Ships, and the Rio Declaration adopted by the UN
Conference on Environment and Development in 1992. Other instruments such as
the London (Dumping) Convention of 1972 are currently being amended in order
to take account of its terms. The delegates to the UN Conference on Straddling Fish
Stocks and Highly Migratory Fish Stocks are agreed that the Convention cannot be
changed or amended: the delegates may come to agree, however, that its terms can be
implemented more effectively in accordance with the terms of an agreement. A draft
agreement will be discussed at two sessions in 1995.
28
The work of international organisations and conferences has tended to harden the
status of the Convention as an expression of the modern law and a framework for
technical arrangements on a wide variety of maritime matters.
IV The Nature of the Convention
The law of the sea is one of the major parts of international law. The Convention of
1982 is a single, comprehensive instrument which has now been complemented by
the Agreement of July 1994. A principal aim of the negotiators, in 1982 and again in
1994, was to produce a convention which would attract universal participation. The
major issues (e.g. limits, navigation, resources, environment) were resolved. Practi-
cally any issue which arises today to do with maritime affairs is affected directly
or indirectly by something contained in the Convention. Only a small minority of
26 Res. A. 672(16) of 19 Oct. 1989.
27 Adopted by the Maritime Safety Committee of IMO in May 1994.
28 A/CONF. 164/22 of Aug. 1994.
58 Chapter 3
issues received inadequate consideration: high seas fshing and historical wrecks on
the seabed are two topical examples. The Conference was universal in its composi-
tion and it worked almost to the end by way of consensus.
29
The text was carefully
negotiated over many years.
30
Some of the key articles were discussed at great length
and in great detail: all the words used in the provisions were carefully chosen. Every
possible opportunity was given, especially at Caracas, to delegations to advance their
claims and proposals. It is fair to say that most, if not all, legitimate interests were
taken into account in some way or to some degree. Apart from Part XI, there is little
room in the Convention for our old friends the persistent dissenters or objec-
tors:
31
they were all represented at the Conference and afforded ample opportunity
to argue their cases. Some unique problems faced by single States met with sympa-
thetic responses: for example, Bangladesh and Norway
32
both benefted Irom special
provisions. But the Conference did not accept all such special pleas: the element of a
negotiation, leading to the adoption of an overall negotiated text, has now to be taken
into account in assessing the strength of what may have become lost causes. Differ-
ent considerations may apply to new rules adopted by the Conference in the face of
opposition: here, subsequent practice may be important.
The Convention balances the differing interests of States. The typical balance is
between the rights and interests of the coastal State and those of the distant water
State or fag State. But there are other balances: between States interested in mining
manganese nodules and the generality of States (a balance which has been adjusted by
the Agreement of 28 July 1994); between the landlocked State and the transit State;
and between the broad-margin State and the international community as a whole. The
Convention has been described as a package deal by some commentators;
33
but the
expression is not entirely apt in that it has too strong a contractual favour. The proc-
ess of balancing was done on individual issues, as well as on clusters of issues (e.g.
12-mile limit/straits passage/200-mile limit), in the Second Committee. In many in-
stances the process was one oI fnding middle ground or the equitable solution more
than of contractual dealing.
The text which emerged at the end of the Conference was a negotiated text.
34
It is
a text of high intrinsic quality. It is coherent, internally balanced and forward-look-
ing (especially on environmental issues). At the same time, it takes into account the
29 As called for by the Rules of Procedure, including the Gentlemens Agreement (A/
CONF. 62/30).
30 For the history of the negotiations see Koh and Jayakumar, UNCLOS 1982, A Com-
mentary (ed. Nordquist), Vol. I, pp. 29 et seq.
31 The Persistent Dissenter Rule in Customary International Law, Report by the British
Branch of the International Law Association to the Cairo Conference 1992.
32 Bangladesh: Art. 7(2); Norway: Art. 7(4), last phrase.
33 Jennings and Watts (eds.), Oppenheims International Law (9th edn, 1992), Vol. I, p.
726.
34 In the Gulf of Maine case, a Chamber of the ICJ noted that certain provisions were
adopted without objections and were consonant with general international law (I.C.J.
Rep. 1984, 246, para. 94).
historical development of the law of the sea through customary law, decisions by
international tribunals and the Geneva Conventions, much of which it incorporates
or 're-enacts (oIten with updating). The Convention represents codifcation, con-
solidation, progressive development and the conscious revision or reform of the law
of the sea. It stands today alongside other achievements of the United Nations in the
feld oI codifcation and progressive development such as the Vienna Conventions on
Treaties and Diplomatic Relations. Eventually, it may acquire a status similar to that
of the UN Charter: quasi-universal participation and a part of the unquestioned legal
order of the community of nations.
V Compliance
Given the breadth of its scope, the Convention will be applied by a plethora of differ-
ent agencies in each State party, as well as by a galaxy of international bodies. Ensur-
ing compliance will be a diIfcult task, Ialling to a large extent on Ioreign ministry
legal advisers and their counterparts in the UN and other secretariats. The European
Union will be an especially diIfcult body in which to ensure compliance: experience
with recent proposals in the Fisheries and the Transport Councils shows the danger
of the law of the sea being overlooked in the pursuit of better controls over foreign
fshing vessels and merchant ships. Nonetheless, the law, including the Convention,
has to be respected. The mandate oI its existing Group oI Senior OIfcials on the Law
oI the Sea has been re-defned.
35
This is under consideration in Brussels.
VI Settlement of Disputes
The Convention leaves plenty of scope for interpretation or appreciation. Differences
over its interpretation and application, including failures to comply with its terms,
can be expected to arise in the nature of things. The Convention is remarkable in pro-
viding for compulsory settlement of disputes by recourse to the International Court
of Justice or the International Tribunal for the Law of the Sea, or to conciliation,
arbitration or special arbitration. One or other of these mechanisms is applicable to
almost all disputes. This is the frst time that a major convention in the feld oI inter-
national law has provided not for an optional system for the settlement of disputes
(as in 1958,1961 and 1963)
36
but, rather, for compulsory dispute settlement, albeit
subject to some exceptions or possibilities to opt out in Article 298. If nothing else,
the Convention may result in some strengthening of the international legal order and
even in an overall increase in recourse to third-party settlement since those States
which have steadfastly refused to bind themselves to compulsory procedures in the
past must now Ior the frst time accept some such procedure (and the consequential
disciplines) upon becoming parties to the Convention. Upon ratifcation, States have
35 This group established during the LOS Conference in 1976 continued to co-ordinate the
positions of the member States and the EC in the PREPCOM between 1983 and 1994.
36 Optional Protocols to the Geneva Conventions of 1958, the Vienna Convention on Dip-
lomatic Relations 1961 and the Vienna Convention on Consular Relations 1963.
60 Chapter 3
been opting for the International Court of Justice, the International Tribunal for the
Law of the Sea, arbitration or special arbitration (as foreshadowed in Article 287).
The Clinton administration, in a message to the Senate,
37
has recommended special
arbitration, which has the advantage of increasing the chances of decisions being
made by arbitrators who possess particular expertise in the relevant topic.
The International Tribunal for the Law of the Sea is to have jurisdiction over deep
seabed mining disputes, including disputes between the States parties and the Inter-
national Seabed Authority (Article 187). Consortia, i.e. private parties, may appear
before its Seabed Disputes Chamber. The International Courts jurisdiction is con-
fned to States. There are other novelties in the Tribunal`s jurisdiction, including a
provision about the prompt release of vessels (Article 292).
The creation of this new standing Tribunal could turn out to have widespread im-
plications. States parties may refer to the Tribunal disputes not simply to do with
the international seabed area and the mining of metallic nodules. The Tribunal may
also be called upon to decide disputes in areas such as navigation, fshing, access to
the sea or maritime boundaries. The law of the sea has provided much work for the
International Court of Justice in recent years. The Tribunal and the Court must clearly
establish a suitable interrelationship. They are, of course, separate bodies, each with
its own jurisdiction. However, it is surely in the general interest that the two should
avoid divergences. Ideally, they should establish a working understanding and points
of contact are clearly desirable. The new Tribunal may lack the prestige of the Court;
but, initially at least, it may be able to decide cases quickly. There may well be a
need in the world for an impartial specialist court which can handle issues quickly
and eIfciently, perhaps without the over-elaborate written and oral pleadings oI the
litigants which have sometimes delayed the administration of international justice in
The Hague. There may well be a need for an International Court of Pie Powder
38
in
the maritime sector: Article 292 is only one example.
The Tribunal has had its stern critics: indeed, the wisdom of creating a second
permanent body of judges has been questioned. It has been said to be unnecessary,
duplicating the Court.
39
However, with the entry into force of the Convention, facts
have to be faced: the world is about to have this Tribunal. The task now should be,
surely, to try to make a success of it, without harming or belittling the International
Court of Justice as the principal judicial organ in the UN system.
40
The States parties decided on 22 November 1994 to deIer the frst election oI
judges to 1 August 1996 in order to give industrialised States more time to ratify the
Convention and participate in the election. The parties will meet again in May 1995
to consider the composition and phasing-in of the Tribunal and its funding. The com-
position should be such as to avoid imbalance between industrialised and developing
States and to allow all States to repose confdence in its decisions. Clearly, there is
37 Message from the President, supra n. 21.
38 Hurst, Wanted! An International Court of Pie Powder (1925) 4 B.Y.B.I.L. 61.
39 E. Lauterpacht, Aspects of the Administration of International Justice (1991), pp. 2022.
Very Iew States on ratifcation have opted Ior the Tribunal under Art. 287.
40 UN Charter, Art. 92.
no need to have 21 full-time judges at times when there may be no cases. And since
funding is to be by States parties direct (and not on the UN budget), a scale will have
to be established.
The arrangements for the settlement of disputes are detailed and comprehensive:
Part XV is accompanied by Annexes V (Conciliation), VI (Statute of the Tribunal),
VII (Arbitration) and VIII (Special Arbitration). The range of mechanisms is wide:
conciliation, Iact-fnding, adjudication and arbitration. Freedom oI choice may have
the advantage oI fexibility. Yet it may have been the price oI securing agreement on
a comprehensive system. The multiplicity of mechanisms could result in an uneven
jurisprudence. Decisions by the International Court, as the United Nations principal
judicial organ, may well be seen to have a higher status as precedents than those by
panels of special arbitrators created under Annex VIII. Although Article 2 of Annex
VIII inclines towards the use oI technical experts in the Iour felds oI fsheries, the
environment, marine scientifc research and navigation, many disputes about such
matters may raise issues which are more legal than technical in character. For exam-
ple, experts on the law oI fsheries may be needed, more than experts on fsheries.
It would be most unIortunate to fnd that the outcome oI a dispute depended not so
much upon the merits of the case as upon the choice of mechanism or panel.
VII Conclusions
On 20 July 1994 the British government announced that it would proceed to accede
to the Convention and ratify the new Agreement in due course subject to following
the necessary procedures.
41
Some new legislation will be needed in order to give ef-
fect to the obligations arising under the Convention, e.g. privileges and immunities
for the International Seabed Authority. Preparations for accession are continuing.
The adoption of the Agreement on the Implementation of Part XI of the Conven-
tion and its subsequent support from industrialised States and developing countries,
including many States parties to the Convention, had a twofold impact. First, it es-
tablished a regime for the mining of the deep seabed which industrialised States are
fnding acceptable and which oIIers the mining industry a basis on which to plan and
invest. Second, and perhaps more importantly, it may have rescued the Convention
from an uncertain fate by opening the door for the industrialised States to accept it
formally. Many of them are now moving with alacrity in that direction but the out-
come in the Russian Duma and the US Senate is uncertain. Universal support is still
some way off, but the chances of eventually achieving the goal have improved. The
law of the sea and the international rule of law in general have been strengthened by
these developments.
41 HL Hansard, Vol. 557, Written Answer 29, 20 July 1994.
Chapter 4
British Accession to the UN Convention on the Law of
the Sea*
On 21 July 1997, the Foreign and Commonwealth Secretary announced the United
Kingdoms decision to accede to the United Nations Convention on the Law of the
Sea (the Convention), a decision which was acted upon four days later in New
York. The United Kingdom thus became the 119th state to establish its consent to be
bound by the Convention and the 82nd party to the Agreement of July 1994 on the
Implementation of its Part XI (the Implementation Agreement).
The announcement in Parliament included the following passage:
The convention has many advantages for the United Kingdom as a maritime nation with
world-wide trading and other interests. The convention includes important environmen-
tal provisions. Accession will enable the United Kingdom to play a leading role in the
institutions established under the convention.
1
Recalling the United Kingdom`s signifcant role over many decades in shaping the
law of the sea, and bearing in mind also the great extent today of British maritime
interests, this accession will be widely welcomed as a further strengthening of the
regime oI the Convention. Accession may also be seen as the fnal step Ior the United
* This chapter, frst published in 46 ICLQ (1997) 761-786, is based on the text of a lecture
given as a Visiting Professor at Durham University in 1996, with some updating
1 H.C. Debs,Vol 298, Written Answers, Col 397. An identical statement was made in the
House of Lords.
64 Chapter 4
Kingdom in a process of negotiation and legislation going back over a quarter of a
century.
2
This note reviews the background to the British Governments decision to accede
to the Convention and ratify the Implementation Agreement, as well as the actual
terms of the accession. In particular, it considers the way in which the Convention is
being implemented in the law and practice of the United Kingdom.
I Background to the Decision
The Convention, one oI the most signifcant achievements oI the United Nations in
the feld oI international law, was adopted in 1982 and remained open Ior signature
for two years. During that period, the British Government headed by Prime Minister
Thatcher found its provisions on limits of national jurisdiction, freedom of naviga-
tion, access to resources and environmental protection to be helpful. However,
the Government decided not to sign because of what were seen as severe problems
over Part XI, concerning the regime for mining the deep seabed beyond the limits
of national jurisdiction. The Governments reasons were explained to Parliament in
December 1982,
3
when the Convention was opened for signature, and again in De-
cember 1984 when the period Ior aIfxing signatures was coming to its end.
4
The
latter statement ended by expressing the Governments hope that new negotiations
could be undertaken in order to overcome those problems. The Governments of the
United States and the Federal Republic of Germany adopted the same approach, and
withheld signature. Many other industrialised states also expressed strong criticisms
of Part XI, but decided to sign the Convention as a whole subject to a declaration of
opposition to that one Part.
5
In 1984, industrialised countries had no prospect of re-opening negotiations over
the terms of Part XI since the Third UN Conference on the Law of the Sea had con-
cluded its work. The Preparatory Commission for the International Sea-Bed Author-
ity and for the International Tribunal for the Law of the Sea, created by Resolution
I of the Conference, had the task of implementing the Convention, including Part
XI, as it stood. The Preparatory Commission was clearly not competent to change
the substantive effects of those provisions. Yet the good qualities of the rest of the
Convention were apparent to the great majority of governments from all parts of the
world. With this in mind, during the 1980s and 1990s, the UK modernised some of its
maritime legislation, taking account of the terms of the Convention. British practice
2 The process in the United Nations began in 1967, with the inscription of the item con-
cerning the exploitation of mineral resources of the deep seabed on the agenda of the
twenty second session of the General Asseembly. The Third UN Conference on the Law
of the Sea began in December 1973 and concluded in December 1982.
3 H.C. Debs, Vol 33, Col 410 (2 December 1982).
4 H.C. Debs. Vol 69, Cols 642-4 (6 December 1984).
5 See, for example, the statement by the Belgian Government in the UN Secretary-Gener-
als annual publication Multilateral Treaties deposited with the Secretary-General.
65 British Accession to the UN Convention on the Law of the Sea
came to be based in many respects upon the content of the Convention (apart from
Part XI).
In 1990, the Secretary-General of the United Nations began informal consultations
designed to address the reasons which had led industrialised countries to defer their
participation in the Convention.
6
At this time, the number oI ratifcations was around
50, but no industrialised state apart from the special case of Iceland was included
amongst them. These consultations advanced steadily until in July 1994 the General
Assembly adopted the Agreement on the Implementation of Part XI of the Conven-
tion, which modifed the eIIects oI Part XI.
7
At that stage, Guyana`s ratifcation in
November 1993 had brought the total to 60, thereby fxing 16 November 1994 as the
date of entry into force of the Convention. The UK proceeded to sign this Agreement
and to apply it provisionally in accordance with its terms, pending accession and
ratifcation. At that time also, the Government oI the day, headed by Prime Minister
Major, announced in Parliament that the UK would proceed towards accession to the
Convention and ratifcation oI the Agreement as soon as the necessary procedures
had been completed.
8
The Convention had already been presented to Parliament and
the Agreement was also laid as a White Paper, a normal preparatory procedure before
ratifcation or accession.
9
In January 1996, both Houses of Parliament held debates
on the question of accession in the context of three draft Orders implementing differ-
ent provisions of the Convention. The Orders were approved without any controversy
or diIfculty in Parliament. The Privy Council duly made the International Sea-Bed
Authority (Immunities and Privileges) Order 1996,
10
the International Tribunal for
the Law of the Sea (Immunities and Privileges) Order 1996
11
and the Merchant Ship-
ping (Prevention of Pollution) (Law of the Sea Convention) Order 1996.
12
During
the debate in the House of Commons, the Minister stated that most of the necessary
legislation to give effect to the Convention is already in place,
13
confrming that the
United Kingdom would be in a position to accede to the Convention and ratify the
Agreement once the remaining procedures had been concluded. These procedures
appeared at the time to be straightforward: they included drafting the necessary in-
struments and declarations and depositing them with the Secretary-General of the
6 Secretary-General Perez de Cuellar was reacting to an offer made by the developing
states in the meeting of the Preparatory Commission in August 1989 to hold discussions
with any delegation, including non-signatories, on outstanding issues.
7 Cm 2705. For details of the discussions leading up to this Agreement, see 42 ICLQ
(1993) 654 and 43 ICLQ (1994) 886, by the present author. On the entry into force of the
Convention, see 44 ICLQ (1995) 313.
8 H.C. Debs. Vol. 557, WA31 (20 July 1994).
9 The Convention is Cmnd. 8941 and the Agreement Cm 2705. Treaties are laid as white
papers for 21 sitting days before the Government proceeds to ratify or accede to them.
10 SI 1996/270.
11 SI 1996/272.
12 SI 1996/282.
13 H.C. Debs, First Standing Committee on Delegated Legislation, 23 January 1996, Col 7.
66 Chapter 4
United Nations. There were other indications of an imminent decision to accede.
14
However, in June1996, Ministers announced a delay caused by the need, as they
explained it, to study further the legal and practical implications of accession on
British fshery limits in so Iar as they continued to be measured Irom Rockall. Lady
Chalker concluded that '...this is not the time to amend unilaterally the British fshery
limits, which would obviously be required if we were to bring them into line with
the Convention.
15
This delay persisted throughout the Parliamentary debates on the
Merchant Shipping and Maritime Security Bill
16
in the winter oI 1996/7, and fnally
extended beyond the General Election held on 1 May 1997. The new Government
headed by Prime Minister Blair reviewed the question promptly and, on 21 July 1997,
the Foreign and Commonwealth Secretary, Mr Robin Cook, announced in Parliament
the decision to accede to the Convention and to ratify the Implementation Agree-
ment.
17
The decision was implemented on 25 July 1997 by the deposit with the UN
Secretary-General of an instrument of accession to the Convention, an instrument of
ratifcation oI the Implementation Agreement and a series oI declarations signed by
the Foreign and Commonwealth Secretary. These instruments took effect 30 days
later on 24 August 1997, in accordance with Article 308(2) of the Convention.
18
II The Terms of Accession to the Convention
At the time of accession, the British Government made a series of declarations. As
well as specifying the Dependencies to which the Convention applied and making
the notifcation oI membership oI the European Community made by other EC states
for the purposes of Annex IX, this declaration was notable in expressly rejecting
all declarations made by other states upon their ratifcation which were inconsistent
with the terms of the Convention. In addition, two declarations, one by Spain about
Gibraltar and the other by Argentina about the Falkland Islands and South Georgia
and the South Sandwich Islands, were both expressly rejected. The full text of the
Declaration read as follows:
14 Including the nomination of the present writer as a candidate for election to the Interna-
tional Tribunal for the Law of the Sea. This nomination lapsed when the UK had not ac-
ceded by 30 June 1996. The nomination was, in effect, resubmitted by France, an honour
which is gratefully acknowledged.
15 H.L. Debs Vol 572, Cols 456-7 (20 June 1996). For details and comment, see R.R.
Churchill, UKs Decision to Defer Accession to the UN Convention on the Law of
the Sea: A Convincing Move? in 12 International Journal of Marine and Coastal Law
(1997), p. 110.
16 E.g. H.C. Debs, Standing Committee A, Col 111 (4 March 1997). See now the Merchant
Shipping and Maritime Security Act 1997, Chapter 28.
17 Fn 1.
18 Status of the United Nations Convention on the Law of the Sea of 10 Decenber 1982 and
of the Agreement relating to the Implementation of Part XI of the convention, as at 25
July 1997, issued by the UN Secretariat, DOALOS.
(a) General
The United Kingdom cannot accept any declaration or statement made or to be made in
the future which is not in conformity with articles 309 and 310 of the Convention. Arti-
cle 309 of the Convention prohibits reservations and exceptions (except those expressly
permitted by other articles of the Convention). Under article 310 declarations and state-
ments made by a State cannot exclude or modify the legal effect of the provisions of the
Convention in their application to the State concerned.
The United Kingdom considers that declarations and statements not in conformity with
articles 309 and 310 include, inter alia, the following:
those which relate to baselines not drawn in conformity with the Conven-
tion;
those which purport to require any Iorm oI notifcation or permission beIore
warships or other ships exercise the right of innocent passage or freedom of
navigation or which otherwise purport to limit navigational rights in ways not
permitted by the Convention;
those which are incompatible with the provisions of the Convention relating
to straits used for international navigation, including the right of transit pas-
sage;
those which are incompatible with the provisions of the Convention relating
to archipelagic states or waters, including archipelagic baselines and archipe-
lagic sea lanes passage;
those which are not in conformity with the provisions of the Convention relat-
ing to the exclusive economic zone or the continental shelf, including those
which claim coastal state jurisdiction over all installations and structures in
the exclusive economic zone or on the continental shelf, and those which
purport to require consent for exercises or manoeuvres (including weapons
exercises) in those areas;
those which purport to subordinate the interpretation or application of the
Convention to national laws and regulations, including constitutional provi-
sions.
(b) European Community
The United Kingdom recalls that, as a Member of the European Community, it has
transferred competence to the Community in respect of certain matters governed by
the Convention. A detailed declaration on the nature and extent of the competence
to the European Community will be made in due course in accordance with the
provisions of Annex IX of the Convention.
(c) The Falkland Islands
With regard to paragraph (d) oI the Declaration made upon ratifcation oI the Con-
vention by the Government of the Argentine Republic, the Government of the
United Kingdom has no doubt about the sovereignty of the United Kingdom over
the Falkland Islands and over South Georgia and the South Sandwich Islands. The
Government of the United Kingdom, as the administering authority of both Territo-
ries, has extended the United Kingdom`s accession to the Convention and ratifca-
tion of the Agreement to the Falkland Islands and to South Georgia and the South
68 Chapter 4
Sandwich Islands. The Government of the United Kingdom, therefore, rejects as
unfounded paragraph (d) of the Argentine declaration.
(d) Gibraltar
With regard to point 2 oI the declaration made upon ratifcation oI the Convention
by the Government of Spain, the Government of the United Kingdom has no doubt
about the sovereignty of the United Kingdom over Gibraltar, including its territo-
rial waters. The Government of the United Kingdom, as the administering authority
of Gibraltar, has extended the United Kingdoms accession to the Convention and
ratifcation oI the Agreement to Gibraltar. The Government oI the United Kingdom,
therefore, rejects as unfounded point 2 of the Spanish declaration.
(e) Extent
These instruments oI accession and oI ratifcation extend to:
The United Kingdom of Great Britain and Northern Ireland
The Bailiwick of Jersey
The Bailiwick of Guernsey
The Isle of Man
Anguilla
Bermuda
British Antarctic Territory
British Indian Ocean Territory
British Virgin Islands
Cayman Islands
Falkland Islands
Gibraltar
Montserrat
Pitcairn, Henderson, Ducie and Oeno Islands
St. Helena and Dependencies
South Georgia and South Sandwich Islands
Turks and Caicos Islands
It is noteworthy that all the remaining British overseas Territories, as well as Guern-
sey, Jersey and the Isle of Man, were included in the accession, with the result that
the Conventions terms apply to their coasts, baselines, maritime spaces, ships, etc.
The decisions by the elected and other representatives of the different Dependencies
to request inclusion in the accession refect the Iact that all oI them have important
maritime interests such as fshing and the preservation oI the marine environment, as
well as shipping and possibly off-shore oil. They are all islands, apart from the British
Antarctic Territory and Gibraltar, and share many of the interests of developing small
island coastal states. The twelve overseas insular Territories (plus St. Helenas two
Dependencies) all have locally-managed zones extending to the maximum distance
of 200 nautical miles from their baselines, with the result that the UKs accession
must have brought one of the greatest total amounts of maritime space within the
regime of the Convention as far as coastal state jurisdiction is concerned.
The Declaration is also noteworthy for the inclusion of the detailed list of the
types of claims which the United Kingdom rejects as inconsistent with the terms of
the Convention, albeit without naming the particular states concerned. These claims,
many of which are listed in the annual compilation Multilateral Treaties Deposited
with the UN Secretary-General, have given rise to what have sometimes been dubbed
excessive maritime claims or creeping jurisdiction.
19
In the future, some of the
issues could come before one of the institutions charged by Part XV with the peace-
ful resolution of disputes concerning the interpretation or application of the Conven-
tion.
Finally, it may be noted that the declaration was silent about the settlement of dis-
putes. In other words, no choices were made under Article 287 of the Convention at
the time of accession and no exclusions from compulsory procedures were declared
under Article 298. Both provisions permit declarations to be made to the depositary
at any time after accession. Thus, in due course two further declarations were made.
In the frst, made on 12 January 1998, the United Kingdom chose the International
Court of Justice for the settlement of disputes concerning the interpretation or ap-
plication of the Convention. The declaration also contained the following statement:
The International Tribunal for the Law of the Sea is a new institution, which the
United Kingdom hopes will make an important contribution to the peaceful settle-
ment of disputes concerning the law of the sea. In addition to those cases where the
Convention itself provides for the compulsory jurisdiction of the Tribunal, the United
Kingdom remains ready to consider the submission of disputes to the Tribunal as may
be agreed on a case-by-case basis. In the second declaration, made on 7 April 2003,
the UK excluded disputes under paragraph 1 (b) and (c) of article 298.
III The Implementation of the Convention in UK Law and Practice
Methods of implementing the Convention around the world have varied consider-
ably. The Convention, in other words, does not prescribe any particular methods by
which States Parties give effect to its terms at the national level. Some States Parties
have given the Convention the direct force of law under their Constitutions
20
or have
enacted extensive new laws (eg Germany
21
), whilst others have amended their exist-
19 See Roach and Smith, United States Responses to Excessive Maritime Claims, 2nd ed.
Nijhoff 1996 and Kwiatowska, Creeping Jurisdiction Beyond 200 Miles in the Light of
the 1982 Law of the Sea Convention and State Practice, 22 Ocean Development and
International Law (1991), p. 153.
20 Egypt is believed to be an example.
21 Gesetz zur Ausfuhrung des Seerechtsubereinkommens der VN von 10 Dezember 1982
sowie das Ubereinkommens von 28 Juli 1994 zur Durchfuhrung des Teils XI des Se-
erechtsubereinkommens 1995: Bundesgesetzblatt, Teil I, 14 Juni 1995, p. 778.
70 Chapter 4
ing legislation in a single Act (eg Australia
22
). Several Commonwealth countries have
comprehensive Acts which follow the Convention, topic by topic, making appropri-
ate provisions for the different maritime zones.
23
The choice of method depends to a
large extent upon the constitutional arrangements in each State Party and, as will be
shown below, the United Kingdom adopted its own methods.
Most Parts of the Convention were found on examination to give rise to a need
for legislation in order to implement them. In some instances, the legislation was
new, for example where fresh or further provision was found to be required. Recent
legislation in the felds oI shipping, navigation and the control oI marine pollution
has been expressly framed to give effect to the Convention In many other cases, how-
ever, existing legislation has been relied upon: this existing legislation includes Acts
passed during the late 1980s and the early 1990s in anticipation of possible future
accession, as well as earlier legislation passed in order to give effect to the Geneva
Conventions on the Law of the Sea of 1958, notably, the Continental Shelf Act 1964.
The following survey reviews the Convention, Part by Part, in relation to the need for
implementing legislation.
24
Part I (Use of Terms and Scope) amounts to a set oI defnitions which are best ap-
proached in the context of the substantive provisions which follow. Clearly, Part I as
such does not call for new legislation in the United Kingdom.
Part II (Territorial Sea and Contiguous Zone)
Section 1 of Part II provides for the sovereignty of the coastal state over its territorial
sea. Sovereign rights of dominium and jurisdiction exist under prerogative powers,
as well as under the Territorial Waters Jurisdiction Act 1878 and the Territorial Sea
Act 1987. Section 2 defnes the various limits oI the territorial sea, including the
maximum breadth of the territorial sea as 12 miles and the rules for the drawing of
baselines. Several existing pieces of British legislation concerning the breadth of
the territorial sea and baselines (Territorial Sea Act 1987;
25
Territorial Waters Or-
22 See the Transport and Communications Amendment Act 1994.
23 For example, Antigua and Barbuda enacted the Maritime Areas Act 1982, reprinted in
National Legislation on the Territorial Sea, the Right of Innocent Passage and the Con-
tiguous Zone, DOALOS, United Nations.
24 Considerations of space preclude an exhaustive examination of the (comprehensive)
terms of the Convention against the provisions of the relevant British legislation. As a
result, several controversial issues receive only summary attention in this paper. (For an
excellent general survey of British law and practice, see A.V. Lowe, The United King-
dom and the Law of the Sea, in T. Treves (ed.), The Law of the Sea: the European Union
and its Member States, p. 521 (Kluwer) 1997.) Furthermore, the implementing legisla-
tion of the various Dependencies, much of it based on that of the UK, is not reviewed.
25 1987 c 49. An Act to provide for the extent of the territorial sea adjacent to the British
Islands, ie a strictly limited measure.
der in Council 1964;
26
Orders
27
under the Territorial Sea Act 1987; and Orders
28
in
respect of Dependencies overseas made under the Colonial Boundaries Act 1895)
are all compatible with the provisions of Part II. When the Territorial Sea Bill was
introduced into Parliament, Ministers announced the United Kingdoms acceptance
that 12 nautical miles was the maximum permissible extent of the territorial sea.
29
This marked the fnal abandonment oI British support Ior the 3 mile limit, stemming
from the Territorial Waters Jurisdiction Act 1878, although parts of that Act remain
in force. The territorial sea towards France in the Straits of Dover and towards the
Isle of Man in the vicinity of the Solway Firth has been delimited: see the Territo-
rial Sea (Limits) Order 1989.
30
With regard to baselines, the Territorial Waters Order
in Council of 1964 followed the principles laid down in the Geneva Convention on
the Territorial Sea of 1958 (now repeated in that of 1982). The Order, made at the
time of the adoption of the European Fisheries Convention of 1964, provides that
the baseline for measuring the breadth of the territorial sea adjacent to the United
Kingdom, the Channel Islands and the Isle of Man is the low-water line along the
coasts, including those of islands, subject to exceptions for low-tide elevations and
legal bays. An extensive system of straight baselines was drawn from Cape Wrath to
the Mull of Kintyre
31
around the Western Isles of Scotland as a fringe of islands in the
immediate vicinity of the coast.
Section 3 oI Part II repeats and clarifes the rules on innocent passage. When ratiIy-
ing the Geneva Convention on the Territorial Sea, the UK did not legislate in order
26 Originally made under prerogative powers, the Order was printed in SI 1965 III, p.
6452A. The Order was amended for purely technical reasons by the Territorial Waters
(Amendment) Order 1979 (printed in SI 1979 II, p. 2866) and by SI 1996/1628. Statutory
force was conferred by section 1(4) of the Territorial Sea Act 1987. Later developments
are set out in Chapter 26 below.
27 Territorial Sea (Limits) Order 1989, SI 1989/482. The territorial sea around the Isle of
Man extends to 12 nautical miles, except towards the Solway Firth where it extends to a
median line: see the Territorial Sea Act 1987 (Isle of Man) Order 1991, SI 1991/1722.
28 See, for example the Bermuda (Territorial Sea) Order 1988, SI 1988/1838, as amended
by SI 1997/1578; the Falkland Islands (Territorial Sea) Order 1989, SI1989/1993; the St.
Helena and Dependencies (Territorial Sea) Order 1989, SI 1989/1994; the South Geor-
gia and South Sandwich Islands (Territorial Sea) Order 1989, SI 1989/1995; the Turks
and Caicos Islands (Territorial Sea) Order 1989, SI 1989/1996; and the Cayman Islands
(Territorial Sea) Order 1989, SI 1989/2397. In the case of Bermuda, straight baselines
were drawn on the basis of Article 6 of the Convention concerning fringing reefs. In the
cases of the Falkland Islands, the Turks and Caicos Islands and South Georgia, straight
baselines were drawn in accordance with Article 7 along the deeply indented coasts and
where there exists a fringe of islands.
29 H.C. Debs. Second Reading Committee, 28 April 1987, col 3.
30 SI 1989/482. As regards France, the Order gave effect to the Agreement of 2 November
1988 relating to the Delimitation of the Territorial Sea in the Straits of Dover ( UKTS No
26/ 1989, Cm1732. For details, see Charney and Alexander (eds.) International Maritime
Boundaries, Vol II, Report 9-3, p. 1735.
31 The system now extends to the Mull of Galloway: see Chapter 26.
72 Chapter 4
to give effect to this right, although historically the UK has been one of its strongest
supporters. In practice, the right has been accorded through administrative action.
Section 3 of the Territorial Waters Jurisdiction Act 1878 prevents the institution of
proceedings against foreign suspects in the territorial sea unless a Secretary of State
(or the Governor oI a dependency) issues a certifcate conveying consent. Such con-
sent can always be withheld if a proposed prosecution would infringe the right of in-
nocent passage. Reference has been made to the right of innocent passage in mod-
ern legislation, such as the Merchant Shipping and Maritime Security Act 1997,
32
but without going to the length of incorporating the right directly into the law of the
United Kingdom: the right remains one of international law.
In recent years, a novel problem arose when tankers began to anchor for long
periods in Lyme Bay; often, they were waiting for the price of oil on the market in
Rotterdam to rise. Although anchored in the territorial sea, such vessels were not
exercising the right of innocent passage since, in effect, they had parked. A vessel
may stop and anchor in exceptional circumstances (distress or force majeure) and
still be exercising the right of innocent passage, in accordance with Article 18(2) of
the Convention. However, parking for economic reasons takes the vessels outside the
scope of that exception. Lord Donaldsons Inquiry into the Prevention of Pollution
from Merchant Shipping
33
recommended that new powers be taken to order foreign
vessels in the territorial sea to leave. The recommendation was accepted by the Gov-
ernment and Parliament in section 100C of the Merchant Shipping Act 1995 (Power
to require ships to be moved).
34
Similarly, section 130 of the Merchant Shipping Act
1995 regulates transfers of cargo, stores, fuel or ballast between ships in the territo-
rial sea in order to prevent pollution, danger to health or to navigation, or hazards to
the environment or to natural resources. Entering the territorial sea for the purpose
of transferring cargo is not an exercise of innocent passage in normal circumstances;
but even if an exceptional case were to arise, Article 21 of the Convention recognises
that the coastal state may enact laws in respect of the preservation of the environment
and the conservation of living resources which are applicable to vessels exercising
the right of innocent passage or otherwise present in the territorial sea.
Articles 22 and 23 refer to new phenomena, non-existent in 1958 when the Con-
vention on the Territorial Sea was drawn up, namely sea lanes and traIfc separation
schemes, approved by the International Maritime Organisation. Such sea lanes and
traIfc schemes have been established in many parts oI the UK territorial sea, includ-
ing the approaches to the Straits of Dover, along much of the English Channel, off
Lands End, off the Smalls, off Anglesey, and in the North Channel:
35
the schemes
are implemented Ior all vessels, regardless oI fag, by the Merchant Shipping (Dis-
32 Eg section 8(3) which inserted subsection (1A) into Section 85 of the Merchant Shipping
Act 1995.
33 Report of Lord Donaldsons Inquiry into the Prevention of Pollution from Merchant
Shipping, Cm 2560. See also the Governments Response, Cm 2766.
34 Inserted by section 10 of the Merchant Shipping and Maritime Security Act 1997.
35 For details, see the IMO publication Ships Routeing.
tress Signals and Prevention of Collisions) Regulations 1996.
36
In order to give ef-
fect to the new Regulation V/8 of the Safety of Life at Sea Convention, introducing
the concept of mandatory ships routeing systems, the Merchant Shipping (Manda-
tory Ships Routeing) Regulations 1997 were made.
37
In the longer term, following
developments within the International Maritime Organisation, the Regulations could
apply to sea lanes and traIfc separation schemes in straits, adopted in accordance
with Article 41, and to archipelagic sea lanes designated in accordance with Article
53 of the Convention.
Article 25(3) of the Convention permits the coastal state to suspend the right of
innocent passage in exceptional circumstances. Sections 100A and 100B of the Mer-
chant Shipping Act 1995(Temporary exclusion zones), inserted by section 1 of the
Merchant Shipping and Maritime Security Act 1997, provide for the creation and op-
eration of temporary exclusion zones around wrecked or damaged ships in UK waters
in order to prevent or reduce pollution. Whilst there is a saving clause for the right of
transit passage through straits (which may not be suspended), there is no exception
for ships in innocent passage through the territorial sea. The temporary zones must be
notifed by the Secretary oI State to the International Maritime Organisation.
In accordance with Article 26, charges on ships exercising the right of innocent
passage are confned to those levied Ior specifc services rendered. Charges Ior lights
are confned to ships entering or anchoring oII UK ports and installations.
38
Section
302A of the Merchant Shipping Act 1995 and Schedule 11A
39
provide that Regula-
tions concerning the funding of maritime services are not to be construed as requiring
a charge to be paid in respect of a foreign ship which is exercising the right of innocent
passage (or transit passage) except to the extent that international law allows such a
charge to be imposed.
As regards criminal jurisdiction over passing ships in the territorial sea, Article
27 of the Convention limits the exercise of powers of arrest or investigation by the
authorities of the coastal state, except in cases of suspected drug smuggling. In order
to ensure compliance, the Secretary of States consent is normally required by the
Territorial Waters Jurisdiction Act 1878 for the exercise of criminal jurisdiction over
aliens.
40
Article 32 provides for the immunity of warships. Foreign warships in UK territo-
rial waters enjoy immunity, in accordance with the State Immunity Act 1978.
Article 33 permits a coastal state to create a contiguous zone. The UK does not
have a contiguous zone at present and Article 33 has not been implemented in UK
law.
36 SI 1996/75, replacing SI 1983/708, as amended.
37 SI 1997/ 1341.
38 Para. 4 of Schedule 11A to the Merchant Shipping Act 1995 (as inserted by s. 13 and
Schedule 2 to the Merchant Shipping and Maritime Security Act 1997), following the
recommendations of Lord Donaldsons Inquiry, esp. 96 99.
39 Inserted by the Merchant Shipping and Maritime Security Act 1997.
40 Section 3.
74 Chapter 4
Part III (Straits Used for International Navigation)
When the UK extended its territorial sea in 1987, the right of transit passage was
acknowledged in three straits, namely, the Dover Straits, the North Channel and the
Fair Isle Gap: Ministerial statements to that effect were made in Parliament in the
following terms:
International law and practice have now developed to the point where, if the United King-
dom extends to 12 miles, we should afford to others the essential rights in some inter-
nationally important straits for which there is no alternative route; namely, the Straits of
Dover, the North Channel lying between Scotland and Northern Ireland, and the passage
between Shetland and Orkney. These rights, which are widely recognised as necessary,
include: a right of unimpeded passage through such straits for merchant vessels and war-
ships; a right oI overfight; the right oI submarines to pass through the straits submerged;
and appropriate safeguards for the security and other interests of the coastal state.
41
The right of transit passage was not incorporated into UK legislation at that time.
However, the Air Navigation (Second Amendment) Order 1987
42
was made so as
to preserve overfying rights in respect oI the three straits named by Ministers. The
Order made a new provision applicable to aircraft in transit over UK straits, including
their approaches, in precisely defned areas. No new provisions were made in respect
of ships exercising the right of transit passage.
43
However, the concept of transit pas-
sage through straits used for international navigation is now expressly referred to,
without further elaboration, in recent legislation, eg sections 100B(5) and 192A(2) of
the Merchant Shipping Act 1995.
44
The concept of transit passage for the purposes of
the Act must be that of the Convention.
The sea lanes through the Strait of Dover were adopted by the International Mari-
time Organisation before the conclusion of the Convention. Indeed, in many ways,
the procedures followed by the British and French Governments in approaching the
International Maritime Organisation about the adoption of these sea lanes formed
the basis for negotiations, held primarily in the Fiji- UK Private Groupon Straits,
leading to the adoption oI both Articles 41 (Sealanes and traIfc separation schemes
in straits) and 53 (archipelagic sea lanes passage).
45
The sealanes in the Dover Straits
and in the North Channel are enforced under the Merchant Shipping (Distress Signals
and Prevention of Collisions) Regulations 1996.
46
41 H.L. Debs, Vol 484, Col382 (5 February 1987).
42 SI 1987/2062
43 Reference was subsequently made to the right of transit passage: see the Merchant Ship-
ping and Maritime Security Act 1997.
44 Inserted by the Merchant Shipping and Maritime Security Act 1997.
45 For further details about the negotiating history of Part III, see 60 BYBIL (1989) 159 by
Satya Nandan and present writer (now chapter 7 below); and for details about the Straits
of Dover, see 7 IJECL (1992) 85.
46 Fn. 36.
Part IV (Archipelagic States)
The UK does not qualify as an archipelagic state under Part IV. Nor do any British
overseas territories qualify since for so long as they remain dependencies they are not
states.
47
Accordingly, no legislation is required in order to implement this Part of the
Convention from the stand-point of the archipelagic state.
Part V (EEZ)
The modern concept of the Exclusive Economic Zone (EEZ) is articulated in Part V
of the Convention. Article 56 sets out a lengthy list of rights, jurisdiction and duties
oI the coastal state in regard to important issues such as fshing, mining the seabed,
controlling pollution and other economic uses oI the zone, whilst Article 58 defnes
the rights and duties oI third states in the zone. At present, although British fshery
limits and those of most of the remaining dependent territories extend to the maxi-
mum distance under Article 57, the UK and the great majority of Territories do not
have EEZs eo nomine. Fishery zones are a type oI EEZ, but confned to the regulation
oI fshing.
48
In the House of Lords on 25 January 1996, during the debate on the draft
Merchant Shipping (Prevention of Pollution) (Law of the Sea Convention) Order,
the Minister was asked about the possibility of declaring an EEZ around the UK. He
replied:
The rights and obligations given by the convention are more important than just the
name. ... (W)e have had a 200 mile fsheries zone since 1976. The Continental ShelI,
which extends beyond 200 miles, is regulated by its own Act the Continental Shelf Act
1964. The prevention of pollution order will allow the UK to declare jurisdiction over
marine pollution out to 200 miles. We are considering the case for the declaration of a
zone. We shall, oI course, keep that frmly under review. We have already exercised most
of the rights covered by that zone.
49
Although, subsequently, the equivalent of a pollution zone was declared, the UK still
does not have an EEZ in name. At present, the UK`s only oIfcially proclaimed Ex-
clusive Economic Zones are around Pitcairn and Bermuda, although South Georgia
has a similar Maritime Zone. The three zones were proclaimed by the respective
Governors and the Commissioner, acting in each case on instructions from the For-
eign and Commonwealth Secretary.
47 Some Territories would satisfy the geographical criteria, eg land to water ratio, for archi-
pelagic status, but not that of statehood. The UK fails to qualify since the land to water
ratio is less than 1:1, as required by Article 47(1) of the Convention.
48 Article 56 recognises rights and jurisdiction also over seabed resources, certain instal-
lations, marine scientifc research, the protection oI the marine environment, and other
economic uses of the zone. One unusual example of such other uses in the UKs case
is provided by the Health and Safety at Work etc. Act 1974 (Application outside Great
Britain) Order 1989, which provides for certain towers used for training purposes in the
British part of the North Sea (SI 1989/840).
49 H.L. Debs, Vol Col 568, 1186, 25 January 1996, Lord Goschen.
76 Chapter 4
No agreements have been concluded Ior the delimitation oI the fshery zone around
the UK with the EEZs and fshery zones oI neighbouring states. All the boundary
agreements in the North Sea, in the English Channel and with the Republic of Ire-
land, for example, are expressed to apply to the continental shelf, rather than to the
water column. Several of the UKs neighbours have followed the agreed bounda-
ries on the continental shelf when they have moved, subsequent to signature of the
boundary agreement, to declare their respective EEZs.
50
The announcement of acces-
sion included the acknowledgement oI the need to redefne British fshery limits Irom
St. Kilda and to 'seek to agree a fsheries boundary with the Republic oI Ireland.
51
With regard to Articles 61 to 72 on the conservation of stocks and the regulation
oI fsheries, the existing laws regulating fshing within British fshery limits include
both national
52
and EC
53
legislation. The EC is eligible to confrm its signature oI
the Convention, in accordance with its Annex IX, in respect of matters such as the
conservation oI fsheries which are within Community competence. In regard, in par-
ticular, to Articles 61 and 62, the waters under the sovereignty or jurisdiction of the
Member States are administered under the Common Fisheries Policy as a single unit,
the so-called 'common fshpond. Scientifc advice on the status oI stocks is received
by the EC Commission from the International Council for the Exploration of the Sea
(ICES) in Copenhagen, from national research institutes such as the Fisheries Labo-
ratory in Lowestoft and from research cruises conducted under EC auspices. The
Fisheries Council fxes annually, by Council Regulation, the total allowable catches
for most of the commercial species. Thus, the CFP can be said to be administered
along the lines indicated in Articles 61 and 62, although the stocks have been under
pressure for several years.
Turning to other provisions in Part V, legislation exists with regard to Articles 60
(Installations) and 73 (Enforcement). Thus, jurisdiction in accordance with Article
60(2) over installations for winning offshore oil and gas is exercised under the Mineral
Workings (OIIshore Installations) Act 1971, as amended. Customs, fscal and saIety
legislation has also been extended offshore. Part III of the Petroleum Act 1987 takes
account of the provisions in Article 60(3) about the abandonment of installations.
54
These provisions call for the complete removal of installations in most circumstances,
but, in a departure from the Convention on the Continental Shelf, partial removal may
be permissible, eg where it proves to be dangerous or even physically impossible to
remove completely very heavy concrete towers such as some in the northern North
50 For details, see Charney and Alexander, (Eds.), International Maritime Boundaries, Vol
III, North Sea Update (1997).
51 Fn 1, at column 397. For further details, see Churchill (fn. 15) and the discussion of Ar-
ticle 121(3) below.
52 Notably, the Sea Fish (Conservation) Acts 1967 and 1992, as well as the Sea Fisheries
Act 1968.
53 Council Regulation (EEC ) No 3760/92 of 20 December 1992, establishing a Community
system Ior fsheries and aquaculture.
54 Part I of the Petroleum Act 1987 provides for schemes of abandonment to be submitted
to the Minister for approval.
Sea. Part III requires the submission of proposals by the operator of an installation for
a scheme of abandonment. The Minister, in administering the Act on a case-by-case
basis, takes account of the Guidelines adopted pursuant to Article 60(3) by the Interna-
tional Maritime Organisation, as the leading competent international organisation in
this regard.
55
The provisions concerning safety zones around installations contained in
Article 60(5) are also Iulflled by the Petroleum Act 1987. Section 21 provides for the
automatic establishment of safety zones extending to 500 metres from every part of an
installation in a designated area of the UK continental shelf.
56
Unauthorised entry by
a ship or fshing vessel (usually the latter) is a statutory oIIence, but in practice com-
plaints are made to the fag states oI suspected trespassers through diplomatic channels
(with mixed results). Finally, Article 73 provides for the enforcement by the coastal
state of legislation applicable in its zone by means of boarding, inspection, arrest and
judicial proceedings. The Sea Fishery Acts contain the necessary domestic powers.
Article 73 also provides for the prompt release of arrested vessels upon the posting
of a reasonable bond or other security. Release on a bond can be done by agreement
with the vessel owner or by the granting oI bail to the skipper. In practice in fshery
prosecutions, UK courts are ready to try cases very quickly and the use of bonding is
inIrequent. There is no statutory scheme in the UK at present Ior fsheries cases.
Part VI (Continental Shelf)
Article 76 defnes the outer limits oI coastal state jurisdiction over the continental
shelf, using a combination of the distance criterion (200 nautical miles) and scien-
tifc criteria beyond. Areas have been designated by Orders under the Continental
Shelf Act 1964, including areas beyond 200 nautical miles of applicable Scottish
basepoints.
57
Accession gave rise to an obligation to submit, within 10 years, infor-
mation on the UKs outer limit beyond 200 miles to the Commission on the Limits
of the Continental Shelf.
58
The Designation Orders also implement the many bound-
ary Agreements with neighbouring states by designating as British areas of conti-
nental shelf all the way up to the UK side of the agreed lines.
59
Article 77 confrms
55 Guidelines and Standards for the Removal of Offshore Installations and Structures on
the Continental Shelf and in the Exclusive Economic Zone, adopted on 19 October 1989.
These Guidelines, adopted within the framework of the Convention before its entry into
force, took account of the situation in the northern North Sea.
56 Previously, under the Oil and Gas (Enterprise) Act 1982, each safety zone had been es-
tablished by a separate Order.
57 See the Continental Shelf (Designation of Areas) (No. 2) Order 1993 (SI 1993/1782) and
the other Orders cited there. For maps of the present UK continental shelf, see The En-
ergy Report 1996 by the Department of Trade and Industry. On the natural prolongation
to the west of Scotland, see J. Keiser Neish, Seismic Structure of the Hatton-Rockall
Area, in Petroleum Geology of northwest Europe: Proceedings of the 4th Conference
(1993).
58 Established by Article 76(8) of and Annex II to the Convention.
59 In the case of the Agreement of 1988 with the Republic of Ireland, it was necessary to
enact primary legislation (twice): see the Petroleum Royalties (Relief) and Continental
78 Chapter 4
existing rights and jurisdiction on the part of the coastal state for the exploration
and exploitation of the continental shelf. Rights to the resources are vested in the
Crown by section 1 of the Continental Shelf Act 1964 and jurisdiction, both civil
and criminal, is exercised pursuant to two Orders made under that Act and the Oil
and Gas (Enterprise) Act 1982.
60
Legislation about oil and gas activities, notably the
Mineral Workings (Offshore Installations) Act 1971, the Petroleum and Submarine
Pipelines Act 1975, the Oil and Gas (Enterprise) Act 1982, the Petroleum Act 1987
and the Offshore Safety Act 1992, is compatible with Part VI.
61
Existing legislation
on cables and pipelines, such as the Petroleum and Submarine Pipelines Act 1975, is
suIfciently fexible to allow the government to implement obligations under Article
79.
62
Article 82 may give rise in the future to an obligation to make payments to the
International Seabed Authority in respect of any production beyond the 200 mile
limit. There is no such production at present and a future Finance Bill may have to put
forward appropriate provisions if production begins to the west of Scotland beyond
200 nautical miles measured from the applicable baselines.
Part VII (High Seas)
The Merchant Shipping Act 1995
63
implements for the United Kingdom and for Brit-
ish ships wherever they may be in the world the obligations Ior fag states over the
construction and operation oI ships fying their fags frst codifed in the Convention
on the High Seas (CHS) and repeated with modifcations on several points in Part
VII of the Convention of 1982. The Act of 1995 contains Parts I and II on British
Nationality and Registration.; Part III concerns Masters and Seamen; Part IV Safety;
Part VI the Prevention of Oil Pollution; and Part VII the Liability of Shipowners: all
these provisions, together with Orders and Regulations made thereunder, give effect
to the terms of Articles 91 (nationality of ships), 92 (Status of ships) and 94 (Duties
oI the fag State), as well as some IMO Conventions. Article 97 repeats the reversal
of the rule in the Lotus case
64
effected by the Brussels Convention of 1952 for the
Unifcation oI Certain Rules relating to Penal Jurisdiction in matters oI Collisions
and other Incidents of Navigation. These provisions and those in Article 98 (Duty
to render assistance) are today implemented in the UK by the Merchant Shipping
Shelf Act 1989 and the Continental Shelf Act 1989.
60 The Civil Jurisdiction (Offshore Activities) Order 1987 (SI 1987/2197) and the Criminal
Jurisdiction (Offshore Activities) Order 1987 (SI 1987/2198). The English area is sepa-
rated from the Scottish area by a line drawn pragmatically.
61 The Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order
1989 (SI1989/840) applies British employment standards to installations on the conti-
nental shelf.
62 Part III regulates all submarine pipelines on or in the UK continental shelf, with the statu-
tory power to make adjustments in regard to any pipeline which does not make a landfall
in the UK, eg in transit from the Norwegian shelf to the Belgian coast.
63 Chapter 21. This Act consolidated the Merchant Shipping Acts 1894 to 1994.
64 PCIJ Reports (1928) Series A, No 10.
Act 1995.
65
Article 99 (slavery) is implemented by the Slave Trade Act 1873. Ar-
ticles 100 to 106 relating to piracy are implemented by section 26 of the Merchant
Shipping and Maritime Security Act 1997, which gave direct effect to articles 101
to 103 of the Convention. The Piracy Acts remain on the Statute book. Article 108
(drug smuggling) and the subsequent Vienna Convention on Illicit TraIfc in Narcotic
Substances are implemented by the Criminal Justice (International Co-operation) Act
1990. Article 109 (pirate broadcasting) can now be said to be implemented by the
Broadcasting Act 1990: at that time, the Bill aroused controversy in Parliament.
66
The
Act extended the jurisdictional provisions of the Marine, etc Broadcasting Offences
Act 1967 so as to encompass not only British but also foreign or unregistered ships
suspected of unauthorised broadcasting from certain prescribed areas beyond the UK
territorial sea, eg in the western half of the North Sea.
67
Powers to exercise the right
oI hot pursuit under Article 111 are possessed by Sea Fisheries OIfcers, RN OIfcers,
Customs and Radio OIfcers under diIIerent statutory provisions.
68
Articles 112 to 115 concerning submarine cables and pipelines repeat provisions
from the Submarine Telegraph Convention 1884 and the CHS of 1958. However, in
the light of experience of reckless anchoring above pipelines, Article 113 contains a
new sentence about conduct calculated or likely to result in the breaking of a cable
or pipeline. This sentence was an oral amendment put forward successfully by the
British Delegation to the Second Committee of the Conference. The Submarine Tel-
egraph Act 1885 gave direct effect to the Convention of 1884 and thus to Articles 112
to 115. Section 3 of the Act already applied to both wilful and reckless acts (culpable
negligence), with the result no new legislation was needed in the case of cables in
order to implement the new sentence. Section 8 of the Continental Shelf Act 1964
applies section 3 of the Submarine Telegraph Act 1885 to pipelines under the high
seas (including waters above the UK continental shelf).
The provisions about high seas fsheries in Articles 116 to 120 are Iulflled through
EC Regulations, as well as the Sea Fishery Acts.
Part VIII (Regime of Islands)
Article 121(1) repeats the defnition oI an island contained in the Convention on
the Territorial Sea of 1958 and article 121(2) repeats the rule that islands may in
principle be used for determining the territorial sea and other maritime spaces of
65 Notably, section 92 (Assistance at sea) and 93 (Duty to assist ships, etc. in distress).
66 Article 109 was based on a British proposal at the Conference on the Law of the Sea,
inspired by the failure of the Convention adopted by the Council of Europe in 1965 to
eradicate unauthorised broadcasters in unregistered ships from the North Sea. For de-
bates in the House of Lords, see UK Materials in International Law, in British Yearbook
of International Law (1990), p. 581ff.
67 By the Marine, etc. Broadcasting (Offences) (Prescribed Areas of the High Sea) Order
1990 1990/2503).
68 See the Sea Fisheries Act 1968, the Customs and Excise Management Act 1979 and the
Broadcasting Act 1990. The latter gives express power to use reasonable force in exercise
of statutory powers of arrest at sea.
80 Chapter 4
a coastal state. However, paragraph 3 lays down a new exception to the effect that
those islands which are no more than rocks which cannot sustain human habitation
or economic life of their own shall have no exclusive economic zone or continental
shelf. Although state practice, both in measuring outer limits and especially in de-
limitation between neighbours, shows the diIfculty in interpreting both the rule and
the exception,
69
the case of Rockall was cited (in the hearing of the present writer)
during the Third Conference on the Law of the Sea as an example of such a rock.
The effect of section 1 of the Fishery Limits Act 1976 was to measure the limit to the
west of Scotland in part from Rockall. The announcement of accession included the
following decision:
The United Kingdom`s fshery limits will need to be redefned based on St. Kilda, since
Rockall is not a valid base point for such limits under article 121(3) of the convention.
70
On the next day, the Fishery Limits Order 1997 was made so as to bring the limits
into full conformity with the Conventions requirements.
71
This is a further example
of the kind of roll-back which was welcomed by maritime interests in the case, for
example, of Brazil, when its former claim to a territorial sea of 200 nautical miles was
replaced at the time oI ratifcation by one oI 12 nautical miles, plus an EEZ extending
to a maximum of 200 nautical miles from its baselines.
Part IX (Enclosed or Semi-enclosed Seas)
The UK has semi-enclosed seas off its coasts, such as the North and Irish Seas and
the English Channel. However, the provisions of Part IX simply call for cooperation
with neighbouring states in the exercise of rights and the performance of duties under
the Convention. Such cooperation undoubtedly exists without the need for legislation
through many bodies, including the North Sea Conferences on environmental mat-
ters, the Paris Memorandum on Port State Control and the EC. No laws or regulations
were needed to give effect to these very general obligations to cooperate.
69 D.W. Bowett, Islands,Rocks, Reefs,and Low-Tide Elevations in Maritime Boundary
Delimitations, in Charney and Alexander (eds.), International Maritime Boundaries,
Vol I, p. 131. For a general survey, see Symmons, Some Problems relating to the Defi-
nition of Insular Formations in International Law: Islands and Low-Tide Elevations,
Maritime Briehng, Vol 1, No 5, International Boundaries Research Unit (1995).
70 Fn. 1.
71 SI 1997/1750. The Order came into force in accordance with its terms on the date on
which the Convention entered into force in respect of the UK. For a full discussion of
the issues, see R.R. Churchill, In. 15. The Order represents a signifcant example oI
state practice in regard to Article 121(3). There are many other rocks in all parts of the
world which satisfy the tests in Article 121(3). Rockall had already been ignored in the
Agreement with the Republic of Ireland of 7 November 1988: see International Maritime
Boundaries, Vol II, p. 1770.
Part X (Right of Access of Land-locked States to and from the Sea and Freedom
of Transit)
As an island state, the United Kingdom is neither a land-locked nor a transit state
within the meaning of Part X. Thus, this is a rare, possibly unique, part of the Con-
vention which does not directly affect the UK and its remaining dependencies: no
legislation exists in order to implement it, leaving aside the possible relevance of
European Regulations about transit traIfc, eg across Switzerland.
Part XI and the Implementation Agreement (Deep Sea Bed Mining)
Part XI provides that all mining operations beyond the limits of national jurisdic-
tion have to be conducted in conformity with the Convention. States are obliged to
ensure that companies incorporated in their territories or controlled by their nationals
conform (Article 139). The Deep Sea Bed Mining (Temporary Provisions) Act 1981
provides for British companies to be licensed by the Department of Trade and Indus-
try for manganese nodule mining on the deep sea bed beyond the limits of national
jurisdiction. Such work without a licence is prohibited by section 1 of the Act, which
remains on the Statute Book. In the House of Commons on 23 January 1996, the
Minister explained that:
Further legislation may be needed in due course to give effect to the new deep sea mining
regime, but details of the regime have yet to be worked out by the International Seabed
Authority. Deep sea bed mining is still years away from being a reality and for the time
being the prohibition in the Deep Sea Mining (Temporary Provisions) Act 1981 is suf-
fcient to enable the United Kingdom to Iulfl its obligations to give eIIect to the mining
regime under part XI of the convention and the 1994 implementing agreement.
72
The Act of 1981 has not been replaced for the time being. Although a licence in re-
spect of a site known as Frigate Bird on the Clarion-Clipperton Ridge in the East
Central Pacifc Ocean was issued during the 1980s under the Act, it had been surren-
dered before the time of accession. If a British company were to become interested at
some future time in seeking an authorisation to explore and exploit minerals in the in-
ternational seabed area, fresh legislation about the Governments sponsorship of such
an application to the International Seabed Authority (ISA) under Article 153(2)(b) of
the Convention may well become desirable.
Part XI created the ISA and conferred legal personality and certain privileges and
immunities upon it. On 23 and 25 January 1996, Parliament agreed to the making
of the International Seabed Authority (Immunities and Privileges) Order 1996. The
Order was made by the Privy Council on 14 February 1996.
73
Part XII (Protection of the Marine Environment)
Part XII contains a comprehensive framework for environmental protection in all
seas and oceans. This Part of the Convention represents one of the most important
72 H.C. Debs, First Standing committee on Delegated Legislation, Col 7, 23 January 1996.
73 SI 1996/270.
82 Chapter 4
environmental treaties in the modern world. It begins with some general provisions in
sections 1 to 4 which do not call for legislation. The need for legislation arises most
clearly from the following sections concerning the jurisdiction to prescribe interna-
tional rules and national legislation, enforcement, legal safeguards, responsibility,
and immunity. The requirements in Articles 207 and 213 (concerning the prescription
and enIorcement oI laws to counter pollution Irom land-based sources) are Iulflled
by the Environmental Protection Act 1990,
74
as well as by EC Directives, such as
that on the quality of bathing water.
75
In particular, section 156(1) of the Act of 1990
authorises the making of regulations intended to enable the UK to give effect to in-
ternational agreements to which the UK is a party relating to pollution control. The
obligations under Articles 208 and 214 (concerning the control of pollution from
seabed mining) are Iulflled by the Mineral Workings (OIIshore Workings) Act 1971
and subsequent legislation about operations on the UK continental shelf.
76
The terms
of Articles 210 and 216 (regulation of the dumping of wastes) are covered by the
Environmental Protection Act 1990.
77
The Act applies to all ships, British or foreign
fagged, dumping on to a designated area oI the UK continental shelI (section 146).
In regard to the important topic of vessel source pollution, Articles 211 and 220
have been implemented by Part VI of the Merchant Shipping Act 1995 which gives
effect to the MARPOL Convention. It does so for British ships world-wide and for
all ships in the UK territorial sea. Beyond the 12 mile limit, section 129 of that Act
gives additional powers in an expanded area, by expressly providing for effect to be
given to the UN Convention on the Law of the Sea through Orders in Council. On
23 and 25 January 1996, Parliament approved the making of the Merchant Shipping
(Prevention of Pollution)(Law of the Sea Convention) Order 1996,
78
which applies
the pollution controls under MARPOL beyond the territorial sea in two extensive
new areas lying between 12 and 200 miles from British coasts. The precise extent of
the areas, together amounting to the equivalent oI a pollution zone, was defned in
the Merchant Shipping (Prevention of Pollution) (Limits) Regulations 1996.
79
The
area follows the outer edge of the designated area for the purposes of the continen-
tal shelf and the agreed boundaries with Norway, Denmark, Germany, Netherlands,
Belgium, France and the Republic of Ireland, except that to the west of Scotland the
pollution controls extend only to arcs of 200 nautical miles measured from St. Kilda.
Towards the Faroes, the limits coincide with the outer limits of the UK continental
shelf pending the establishment of an agreed boundary with Denmark. This important
new Order expressly enabled the UK to give effect to Articles 211, 218 and 220, as
74 Water pollution is regulated under the Water Act 1989, the Water Resources Act 1991 and
the Environment Act 1995.
75 Directive 76/160 (O.J. 1976 No L 31/1). Directive 80/68 on the protection of groundwa-
ter may also be relevant.
76 Mineral Workings (Offshore Installations) Act 1971and subsequent Acts.
77 The Act amended the Food and Environmental Protection Act 1985 so as to increase the
scope of the jurisdiction.
78 SI 1996/282.
79 SI 1996/2128.
well as the safeguards contained in Articles 223 to 233 of the Convention. The Mer-
chant Shipping (Prevention of Pollution) (Law of the Sea Convention) Regulations
1996
80
provide for the exercise of port state and coastal state jurisdiction over for-
eign-fagged vessels in respect oI suspected violations oI MARPOL in the extended
zone or beyond national limits. The Regulations also empower the UK to give effect
to the Paris Declaration of 1992
81
on Coordinated Extension of Jurisdiction in the
North Sea, notably by exercising coordinated port state jurisdiction under Article 218
of the Convention..
Article 219 (Measures relating to seaworthiness of vessels to avoid pollution) has
been implemented by sections 94 to 100 of the Merchant Shipping Act 1995, which
confers powers on harbour authorities to detain dangerously unsafe ships in Brit-
ish ports.
82
Article 221 (avoidance of pollution from casualties), which repeats with
modifcations the Intervention Convention oI 1969, has been implemented by section
137 (Shipping casualties) of the Merchant Shipping Act 1995, as amended by sec-
tions 2 and 3 of the Merchant Shipping and Maritime Security Act 1997.
83
The safeguards for ships and masters provided for in Articles 223 to 232 (which
were modelled on those in MARPOL) already existed in UK legislation. Additional
safeguards are provided for in the Regulations
84
made under that Order. Finally, Ar-
ticle 217 (EnIorcement by fag states) has been implemented in the case oI British
ships by the Merchant Shipping Act 1995 which contains numerous provisions for
enforcement.
Part XIII (Marine Scientic Research)
Apart from commercial seismic exploratory work on the UK continental shelf, which
is licensed,
85
marine scientifc research is not regulated by statute in the UK. Instead,
a system of administrative controls is operated.
86
Part XIII does not require a state to
have a statutory system of controls. No new legislation was needed before accession
to the Convention.
80 SI 1996/2154.
81 Cm 2425.
82 The Paris Memorandum oI Understanding oI 1982, as modifed, established a system oI
port state inspection in all major ports in Northwest Europe in order to counter unsafe and
polluting ships oI all fags. See also EC Directive 95/21 on Port State Control, Iollowing
the EC Commissions Report A Common Policy on Safe Seas 1993.
83 Powers of intervention now extend to the pollution zone declared in 1996 and to sub-
stances other than oil.
84 SI 1996/2154.
85 Mineral Workings (Offshore Installations) Act 1971, section 1.
86 See National Legislation, Regulations and Supplementary Documents on Marine Scien-
tifc Research in Areas under National Jurisdiction, UN Publications 1989. Many states
have created statutory licensing systems for foreign research cruises.
84 Chapter 4
Part XIV (Transfer of Technology)
Part XIV deals with transfer of technology in very general terms which did not call
for legislation.
Part XV (Settlement of Disputes)
Part XV lays down a comprehensive system for the settlement of disputes by peace-
ful means, such as conciliation, arbitration and other forms of judicial settlement.
These provisions operate primarily on the diplomatic level and legislation was not
required to implement them. However, two new legislative provisions were made
in order to give effect to particular Articles, as follows. Article 292 concerning the
prompt release of vessels provides that where a state detains a foreign vessel and an
allegation is made that the detaining state has not complied with the provisions in
Articles 73 or 226 concerning the release of ships under a system of bonding, the
question of release may be submitted to a court or tribunal agreed upon by the par-
ties or, failing such agreement, to the International Tribunal for the Law of the Sea.
The detaining state is under an obligation to comply with the decision of the court or
tribunal. The Merchant Shipping (Prevention of Pollution) Regulations 1996, made
under powers in the MS (Prevention of Pollution) (Law of the Sea Convention) Order
1996,
87
provide for this. In particular, Regulation 37(3) (e) expressly provides for the
release of a detained ship if the release is ordered by a court or tribunal referred to
in Article 292 ...and any bond or other fnancial security ordered by such a court or
tribunal is posted.
Annex VI contains the Statute of the Tribunal. Its Article 10 provides for privileges
and immunities, giving rise to the second piece of legislation. In order to confer
them, Parliament approved the making of the International Tribunal for the Law of
the Sea (Privileges and Immunities) Order 1996,
88
made under section 5 of the Inter-
national Organisations Act 1968. Decisions of the Tribunal are binding, whilst those
of its Seabed Disputes Chamber are to be enforceable in the territories of the States
Parties in the same manner as judgments or orders of the highest court of the State
Party in whose territory the enforcement is sought (Article 39). In the UK, foreign
judgments for a sum of money can frequently be enforced simply by an action on
the judgment. However, there is no specifc legislation relating to the enIorcement oI
decisions of the Tribunal or its Chamber. This is unlikely to present a problem at a
time when British companies are no longer actively engaged in deep seabed mining
activities, but things could change in the future.
87 SI 1996/2154.
88 SI 1996/272.This Order was revoked by the International Tribunal for the Law of the Sea
(Immunities and Privileges) Order 2005 (S.I.2005/2047), which gave effect to the Agree-
ment on the Privileges and Immunities of the International Tribunal for the Law of the
Sea of 1 July 1997. See also section 28 of thee Merchant Shipping and Maritime Security
Act 1997, making similar provision prior to the entry into force of the Convention for the
UK.
Part XVI (General Provisions)
Article 303 contains a very general duty to protect archaeological and historical ob-
jects found at sea. The Protection of Wrecks Act 1973 applies to the territorial sea.
Many wrecks lie on the coast or within the 12 mile limit, but others have been found
beyond it. Article 303(2) extends the powers of the coastal state to a maximum of 24
nautical miles from the baselines of the territorial sea. So far, the UK has not taken
powers over such a zone. However, section 24 of the Merchant Shipping and Mari-
time Security Act 1997 gives power to implement international agreements relating
to the protection of wrecks lying outside the territorial sea. This new power imple-
ments Article 303(1) laying down the duty to cooperate over the protection of historic
objects found at sea. In addition, the power could be applicable to a wreck between
12 and 24 miles if a treaty were drawn up for its protection and the UK became a
party.
In regard to Part XVII (Final Provisions), no legislation was required since treaties
are approved under prerogative powers. Annex IX, concerning the terms of partici-
pation in the Convention for organisations such as the European Community, would
require implementation at the EC level (eg by a Council Regulation) were the policy
decision to be taken to confrm Iormally the signature aIfxed in 1984 on behalI oI
the Community.
IV Concluding Remarks
The legislation implementing the Convention in the United Kingdom is extensive,
although a completely piecemeal approach was adopted to its enactment. Legisla-
tion is spread over many different volumes of Halsburys Statutes. The practitioner
cannot reach for a single text such as the German Gesetz of 1994. Much of the UKs
legislation is of very recent date, particularly as a result of the consolidation of the
merchant shipping legislation in 1995, and it is supplemented by EC Regulations
and Directives in several felds, notably fsheries, shipping and environmental pro-
tection. In most instances, the role of the legislation in question in giving effect to
the Convention is not made explicit: only in a minority of cases does the legislation
refer to the Convention. Powers are in place to enable the government to perform
the vast majority of the obligations arising from accession. A very few matters, such
as aspects of deep sea-bed mining, have been left until there is a need to take fresh
powers when the circumstances of the day will no doubt be taken into account. This
pragmatic approach has several precedents.
Accession and the simultaneous abandonment of a 20 year-old jurisdictional claim
inconsistent with the terms of the Convention, coupled with the explicit rejection in
the declaration of other governments inconsistent or excessive claims, may indicate
that the UK will continue, with its European partners, to be active in making diplo-
matic protests and opposing such claims.
86 Chapter 4
The UK became the 4th Permanent Member of the Security Council
89
and the 11th
member of the EC
90
to establish its consent to be bound by the Convention. Almost
all Commonwealth countries, many of them having played key roles in the Confer-
ence, have become parties. Although the United States and Switzerland are not par-
ties at the time oI writing, this refects the need Ior internal procedures to be Iollowed
beIore ratifcation, rather than opposition on the part oI the respective Governments.
Only one or two states appear to be actively opposed to important provisions in the
Convention, primarily as a result oI conficting jurisdictional claims and outstanding
maritime boundaries with neighbours. Most importantly, the problems voiced over
Part XI in the years after the adoption of the Convention in 1982 have now been suc-
cessfully resolved by the Implementation Agreement of 1994, the purpose of which
was to bring closer the achievement of the long-held goal of universal participation.
The States Parties today come from all regions of the world and represent all the
many different types of interests in the seas and oceans, including maritime and
coastal states, fag and port states, developing and developed states, landlocked and
transit states, as well as island, archipelagic and straits states. The Convention, to-
gether with the Implementation Agreement, is well on its way to achieving the goal of
universal participation. The three institutions constituted by the Convention, namely
the International Seabed Authority, the International Tribunal for the Law of the Sea
and the Commission on the Limits of the Continental Shelf, have all been established
and have started work. The UKs accession has strengthened further the regime of the
Convention, including its institutions.
The Convention can truly now be said to amount to a kind of constitution for
the Oceans,
91
an achievement of the United Nations which will without doubt be of
enduring value to the international community. The goal of universal participation,
however, has not yet been achieved completely. Many international lawyers and dip-
lomats Irom every part oI the world spent a signifcant part oI their proIessional ca-
reers working on what turned out to be lengthy processes of negotiation, followed by
lengthy processes of implementation. With positive support from maritime powers
and coastal states, the resulting Convention could now come to enjoy, like the Charter
of the United Nations, universal participation. Such an outcome could but serve to
enhance the maintenance of international peace and security, as well as the rule of
law in international relations, in accordance with the principles of the Charter.
89 China, France and Russia had ratifed previously. The Clinton Administration has sent
the Convention and the Implementation Agreement to the Senate for advice and con-
sent.
90 All members are now parties, as is the EC itself.
91 A term used by the President of the Third UN Conference on the Law of the Sea, Ambas-
sador T.T.B. Koh, in 1982 when the Convention was adopted and opened for signature.
Chapter 5
The Current Status of the Conventions on the
Law of the Sea*
The purpose of this chapter is to examine the current status of the various Conven-
tions which set out much of the modern law of the sea. The Conventions are the UN
Convention on the Law of the Sea of 1982, together with the Implementation Agree-
ment of 1994, the four Geneva Conventions of 1958, and the Implementation Agree-
ment of 1995 on Straddling and Highly Migratory Fish Stocks.
* This chapter, the text of a paper read at the inaugural colloquium of the Association
internationale du Droit de la Mer (2001), was frst published in G. Cataldi (ed.), La Mdi-
terrane et le Droit de la Mer laube du 21e Sicle (2002). The information about the
status of the Convention, its two Implementation Agreements and the Geneva Conven-
tions of 1958 has been updated; current information, posted on http://www.un.org/Depts/
los/index.htm, is also digested in the UN Secretary Generals reports on Oceans Affairs
and the Law of the Sea, most recently in document A/61/63/Add.1 of 2006. Many devel-
opments are reviewed in other chapters of this book
88 Chapter 5
I Status of the United Nations Convention on the Law of the Sea
1
A Some Developments during the Mid-1990s
On 16 November 1993, Guyana became the sixtieth state to establish its consent to be
bound by the Convention, thereby bringing about its entry into force one year later.
During that twelve month period, the Agreement relating to the Implementation of
Part XI of the Convention was adopted and opened for signature in July 1994 by the
UN General Assembly. When the Convention entered into force on 16 November
1994, 68 states were parties, but this group was not fully representative of the in-
ternational community of states. It included only two industrialised states, Australia
and Germany. It quickly became clear that the problems for industrialised countries
with Part XI had been met by the Implementation Agreement. After November 1994,
participation in the Convention rose as the industrialised countries moved rapidly to
approve the two treaties. By the end of 1995, the number of parties to the Conven-
tion had risen to 83. Sweden and the Netherlands became the 99th and 100th parties
in June 1996, just in time Ior the frst elections Ior the judges oI the International
Tribunal for the Law of the Sea, held on 1 August 1996 when there were 100 elec-
tors present in New York. By the end of 1997, the total had reached 123. This short
period, from November 1993 to 1997, witnessed a major change in the status of the
Convention.
B The Extent of the Participation and its Representative Character
In todays world of approximately 195 states, the Convention has now attracted the
participation of 151 States, plus the European Community in accordance with Annex
XI to the Convention. This is more than three-quarters of the total number of States,
making the Convention one of the most widely accepted law-making treaties. By way
of comparison, there are 192 Members of the UN which have all accepted the UN
Charter, 179 parties to the Vienna Convention on Diplomatic Relations, 165 to the
Consular Relations Convention and 91 to the Convention on the Law of Treaties.
2
1 Regional Participation
The two-thirds proportion now exists in all regions of the world. There are 39 parties
from Africa out of a total of 53, or about 73%. There are 44 from Asia (including the
1 W.R. Edeson has urged the use of the correct title, rather than more descriptive ones: see
his note entitled Law of the Sea Convention: Confusion over the use of UNCLOS,
and references to other Recent Agreements in 15 IJMCL (2000), 413.
2 There are 160 parties to the UN Covenant on Civil and Political Rights, 143 to the UN
Torture Convention, 190 to the Climate Change Convention and 189 to the Biological
Diversity Convention. In the wider maritime context, SOLAS 1974 has 156 parties (98%
of tonnage); the Loadlines Convention of 1966 has 156 (98%); the MARPOL Conven-
tion, Annexes I & II have 138 (97%); and the Collision Regulations have 149 (97%).
89 The Current Status of the Conventions on the Law of the Sea
island States oI the Pacifc) out oI 54, or about 81. There are 27 out oI 33 in Latin
America and the Caribbean, or about 81%. Finally, there are 41 out of 52 in Europe
(composed of the East European Group plus the grouping known as the Western Eu-
rope and other States), or about 78%. This balance in the regional participation dates
only from 1998.
2 Participation According to Maritime Interests
Todays participants include a broad range of both developed and developing states,
large and small, with all types of maritime interests.
It is noteworthy that three quarters of all coastal states are now parties, that is to
say, 130 out of 152.
3
The maritime practice of many coastal states is both exten-
sive and multi-faceted.
Turning to states with major interests as ag states, the Convention is applicable
directly to ships fying the fags oI Greece, Japan, Norway, China, Germany,
Sweden and the UK.
4
Of the leading open registries, Bahamas, Belize, Cyprus,
Honduras, Malta, Panama, St Vincent and Vanuatu are parties, but not Liberia.
Turning to the leading hsh-catching states, according to information posted on
the website oI the FAO, nine oI the twelve top harvesters oI sea fsh are parties.
The parties include China, Japan, Russia, Indonesia, India and the Philippines.
The three non-parties are the United States, Peru and Thailand.
5
Some of the states parties face straits through which there is a right of transit
passage in accordance with Part III. They include: France and the UK (Do-
ver); Spain but not Morocco (Gibraltar); Yemen and Djibouti, but not Eritrea
(Bab el Mandeb); Oman but not Iran (Hormuz); Indonesia, Malaysia and Singa-
pore (Malacca and Singapore Straits); and Japan and Republic of Korea (Korea
Strait).
Some 17 state parties are archipelagic states in accordance with Part IV, a
number higher than the number which took an active part in the discussions of
those provisions during the Conference.
6
3 Figures based on the Report of the UN Secretary General on Oceans and Law of the Sea,
UN Doc. A/54/429 (1999), with updating.
4 Table 4, International Shipping Yearbook 1999. Of the top ten, only the United States is
not bound.
5 The nine parties are China, Japan, Russia, Indonesia, Chile, India, Norway, Republic of
Korea and Philippines. The statistics were for 1998: www.fao.org/.
6 For an excellent survey of practice, see M. Voelkel, Ou en est le compromis archi-
pelagique?, v. III, Annuaire du Droit de la Mer 1998, p. 51. The states are Antigua &
Barbuda, Bahamas, Cape Verde, Comoros, Fiji, Indonesia, Jamaica, Kiribati, Maldives,
Papua New Guinea, Philippines, St Vincent and the Grenadines, Sao Tome & Principe,
Solomon Islands, Trinidad & Tobago, Tuvalu and Vanuatu.
90 Chapter 5
3 Participation According to Political Groupings
As regards political groupings, all the Member States of the European Community
are parties; and the European Community itself
7
is a party for matters within its com-
petence. Four oI the fve permanent members oI the UN Security Council are parties.
Four of the Group of Five maritime powers, which met during the Conference (and
which still meets, now with the addition of Germany), are parties, as are seven of the
G8 Economic Summit countries, the exception in both instances being the United
Sates. Many major developing States such as Argentina, Brazil, Chile, China, Egypt,
India, Indonesia, Mexico, Nigeria, Pakistan, South Africa and Ukraine are parties. All
but two (Turkey and the United States) of the 26 members of NATO are bound.
4 Participation According to Semi-enclosed Seas
What is the pattern in some semi-enclosed seas? In the Mediterranean, of the 20
coastal states all but fve are parties. The reasons Ior their non-ratifcation vary: na-
tional claims inconsistent with the Convention, political considerations and bound-
ary problems.
8
The Mediterranean is the one sea in which the 200 n.m. limit has not
been widely introduced, although extensive continental shelves have been claimed
and partly delimited.
9
In the North Sea, all coastal states are parties and there is now
a complete set of boundaries.
10
Twenty states bordering the Caribbean are all par-
ties, except for Colombia, the Dominican Republic and Venezuela.
11
In East Asia, the
shores oI 12 states and Taiwan, a 'fshing entity,
12
face the Sea of Japan, the East
China Sea and the wider South China Sea: nine of those States are parties, the excep-
tions being Cambodia, the Democratic Peoples Republic of Korea and Thailand.
In each of the above semi-enclosed seas, therefore, the number of parties equals or
exceeds two-thirds of the total membership of the group. In the Baltic, all nine coastal
states are parties. In the Gulf, the split is six to two: Bahrain, Iraq, Kuwait, Oman,
Qatar and Saudi Arabia are parties whereas Iran and the UAE are not.
7 In accordance with the terms of Annex IX to the Convention, the Commission submitted
a detailed Declaration about the division of competences between the Community and its
Member States. The text is available on the UN website, together with national Declara-
tions.
8 Israel, Libya, Morocco, Syria and Turkey are not parties, for different reasons.
9 The concept of the Exclusive Economic Zone is, of course, optional not compulsory; and
there are many reasons for this situation. Leanza and Sico (eds.), Mediterranean Conti-
nental Shelf (1988).
10 Subject to the need for minor adjustments: see Reports on N & W Europe by the present
writer in Charney & Smith (eds.), International Maritime Boundaries, Vol. IV.
11 France, the Netherlands and the UK are parties in respect of their respective territory in
the area, but the US in respect of Puerto Rico and the US Virgin Islands is not bound.
12 To adopt the term used in the UN Agreement on Straddling Fish Stocks and Highly Mi-
gratory Fish Stocks.
C Reasons for Non-Participation
Parliamentary or Constitutional reasons appear to have delayed participation by the
United States
13
and some other states, but their governments support the Convention
and it can be said that generally they follow its terms in practice. If there is a gap in the
representation oI a defned group oI states, it is to be Iound with the landlocked states.
Of the 42 landlocked states, only about half have become parties to the Convention.
This may well be due to other preoccupations or priorities, or simple inertia, rather
than opposition to the Convention. After all, Part X contains new provisions articulat-
ing the right of access to the sea for landlocked states, going beyond those contained
in the Convention on the High Seas 1958 and the Convention on the Transit Trade of
Landlocked States 1965. Some prominent land-locked States, including Austria, the
Czech Republic, Mongolia and Nepal have become parties, but not Switzerland, a
strong supporter of the rule of law in international relations. Apart from the Russian
Federation, Armenia, the three Baltic states, Belarus and the Ukraine, several former
Soviet Republics, including landlocked states in west central Asia, have not become
parties. Among the Caspian states, only Russia is a party (and the question of the pos-
sible relevance of the Convention in that part of the world remains academic).
D Persistent Objectors?
There appear to be no centres of rooted opposition to the Convention. Certain states,
notably Turkey and Venezuela, have expressed dissatisfaction with the provisions on
the delimitation of boundaries with neighbouring states, for local geographical rea-
sons.
14
Those provisions are, however, cast in general terms; indeed, the provisions
have been criticized on those grounds. Some of the supporters of wide limits for the
territorial sea such as Peru and Ecuador, as well as Syria, have not acceded. However,
Argentina, Brazil, Chile, Nicaragua, Nigeria and Uruguay have now all accepted the
Convention. They have modifed their domestic legislation in order to respect the 12
n.m. limit for the territorial sea, together with an EEZ of 200 n.m. To sum up, there
appears to be no single reason for the withholding of consent to be bound, similar to
the opposition of the industrialized countries to the original terms of Part XI. Rather
there are several different reasons on the part of different States. Part of the explana-
tion may be inertia.
13 President Clinton submitted the Convention and the Implementation Agreement of 1994
to the Senate for advice and consent on 7 October 1994 (Treaty Doc.103-39). To date,
the Senate has not acted. The document contains a detailed exposition of the Administra-
tions interpretation of the texts of the Convention and the Implementation Agreement
of 1994.
14 Turkey also objects to the 12 n.m. limit for the territorial sea, in view of the situation in
the Aegean Sea. See the statement in the UN General Assembly by Turkey on 30 October
2000, UN Doc. A/55/PV.44, p. 6.
92 Chapter 5
E The Convention and Practice
15
In recent years, much state practice has moved towards conformity with the Con-
vention. In particular, there is now very much greater uniformity over the limits of
national jurisdiction, especially the 12 mile maximum for the territorial sea, as states
have amended national legislation upon becoming bound by the Convention. This
process, sometimes called roll-back, has served to strengthen the package of limits
of national jurisdiction. Another example of roll-back was the withdrawal by the
United Kingdom of its claim to measure a 200 n.m. zone from an uninhabitable iso-
lated rock known as Rockall.
16
There has also been a move towards greater uniformity over the different regimes
applicable within each limit, although practice is not uniformly congruent. In this
regard, statements made by certain states upon ratifcation have been challenged by
other States.
17
Some commentators have questioned whether schemes of straight
baselines have been drawn in accordance with article 7.
18
Some claims to historic
waters are controversial.
19
Several states continue to measure EEZs from rocks and
similar Ieatures which may prove on examination to be disqualifed as basepoints
by article 121(3). So far, only one archipelagic state (out of 15) has submitted pro-
posals to the competent international organisation, the IMO, regarding archipelagic
sealanes.
20
Studies of practice under articles 69 and 70 have not produced much in
the way of positive evidence or results.
21
Fixing the national fsh harvesting capacity
and granting access to the surplus in accordance with article 61 may not happen in
many instances. Some states parties still retain imprisonment as a punishment for
fsheries and pollution oIIences in their legislation, although such penalties may not
be available in practice to the national judge. There are, of course, other examples of
15 For a comprehensive survey, see T. Treves, 'Codifcation du droit international et prati-
que des etats dans le droit de la mer, 233 Recueil des cours (1990-IV) 25.
16 Anderson, British Accession to the UN Convention on the Law of the Sea, 46 ICLQ
(1997) 761 (now Chapter 4 above).
17 The Report of the UN Secretary-General on Oceans and Law of the Sea lists types of
declarations which do not conform to the Convention: UN Doc. A/54/429 (1999), para.
16. For surveys, see D. Vignes, Les dclarations faites par les tats signataires de la
convention sur le droit de la mer sur la base de larticle 310 de cette convention, 29
AFDI (1983) 715, and L.D.M. Nelson, Declarations, Statements and Disguised Reser-
vations with respect to the Convention on the Law of the Sea, 50 ICLQ (2001) 767.
18 Scovazzi, Ltablissement de systmes de lignes de base droites de la mer territoriale:
les rgles et la pratique, II Annuaire du Droit de la Mer 1997, p. 160.
19 Roach and Smith, United States Responses to Excessive Maritime Claims, 2
nd
Ed. (1996),
Chapters 2.2 and 3.
20 The IMO has considered proposals from Indonesia. The IMO has also adopted some
general Guidelines for archipelagic sealanes.
21 Vasciannie, Landlocked and Geographically Disadvantaged States in the International
Law of the Sea (1990).
failures to comply with the Convention. State practice is not uniform, although it is
more uniform in many ways as compared with the past.
Actions taken to implement Part XV of the Convention include the nomination of
arbitrators for Annex VII and the making of choices under article 287. The Interna-
tional Tribunal for the Law of the Sea has given reasoned decisions on the thirteen
cases which have been listed.
22
Practice also includes actions taken by States in international organizations, glo-
bal and regional. The work of all these international organizations has uniformly
been based on the terms of the Convention. Organisations such as the International
Maritime Organisation have adopted Guidelines and Recommendations in relation
to many matters dealt with in the Convention, thereby showing the fexibility oI its
legal framework.
F Assessment
This survey shows that the participation in the Convention is both extensive and rep-
resentative of the international community of states, especially states that have sea
coasts and signifcant maritime interests.
23
It is reasonable to assume that the total of
150 States Parties, which exceeds three-quarters of the states in the modern world,
will continue to increase over the years. The survey also shows that the Convention
has infuenced the practice oI states and organisations. Its infuence can be seen in the
case of states which are parties and also non-parties. Many of the substantive rules,
notably those on the maximum limits of national jurisdiction and, albeit to a lesser
extent, the regime within those limits, can now be considered as having acquired
a critical mass of support. On substantive issues, the exact legal position should
still be assessed topic-by-topic. These recent developments in the participation in
the Convention and its impact upon the practice of states and organizations together
serve to reinforce the claim, advanced by President Koh, that the Convention repre-
sents the Constitution of the Oceans.
24
II The Status of the Implementation Agreement of 1994 Relating to Part XI
According to article 2 of the Implementation Agreement, its provisions and those
of Part XI are to be applied and interpreted together as a single instrument. After
the time oI the Agreement`s adoption in July 1994, ratifcation oI the Convention
22 Chapters 32 and 33 contain further details.
23 The London Principles applicable to the Formation of General Customary International
Law include Principle 14 (i) For a rule of general customary international law to
come into existence, it is necessary for the State practice to be both extensive and repre-
sentative. It does not, however, need to be universal.
Principle 24 reads: Multilateral treaties can provide the inspiration for the adoption of
new customary rules through State practice.
24 The statement by President Koh has been reproduced in the UN Publication containing
the text of the LOS Convention (Sales No. E.8.V.5), at p. xxxiii.
94 Chapter 5
has represented also consent to be bound by the Agreement. In several other provi-
sions, inextricable links between the Agreement and the Convention were created.
The Agreement was applied provisionally from 16 November 1994. There are now
126 parties.
25
The Agreement has been applied consistently by the Authority, with the
result that, for example, its organs such as the Council and the Finance Committee
are constituted in accordance with its terms.
26
The Rules of the Assembly contain an
Introductory Note reading as follows:
According to the Agreement, its provisions and Part XI of the Convention are to be in-
terpreted and applied together as a single instrument; these rules and references in these
rules to the Convention are to be interpreted and applied accordingly.
The International Tribunal Ior the Law oI the Sea adopted in its Rules a defnition oI
the term Convention reading:
For the purposes of these Rules:
(a) Convention means the United Nations Convention on the Law of the Sea of 10
December 1982, together with the Agreement of 28 July 1994 relating to the imple-
mentation of Part XI of the Convention;
These Rules apply also to the Seabed Disputes Chamber. Some original parties to the
Convention have not yet become parties to the Agreement, but they have participated
in the work of the Authority. They have accepted in practice the basis for the Authori-
tys different activities.
27
This basis is composed of both Part XI and the Implementa-
tion Agreement.
28
Accordingly, the Agreement has been fully accepted by conduct.
III The Status of the Geneva Conventions of 1958
The question arises: what is the impact of these developments regarding the LOS
Convention upon the Geneva Conventions of 1958? All four Conventions remain
treaties in Iorce. Many oI their provisions were carried over, oIten with modifca-
tions, into the Convention of 1982. Article 311 of the latter provides that it
25 Information taken from www.un.org, last visited on 3 November 2006.
26 In a statement to the UN General Assembly, the Secretary-General of the Authority re-
Ierred twice to 'the defnitive regime created by the Convention and the 1994 Agree-
ment. UN Doc. A/55/PV.44 of 30 October 2000.
27 The Report of the UN Secretary-General on Oceans and Law of the Sea notes that States
parties to the Convention which had not ratifed the Implementation Agreement 'contin-
ued to apply the Agreement de facto during the past year A/54/429, para. 23.
28 On the work of the Authority, see M.C. Wood, The International Seabed Authority: The
First Four Years, 3 Max Planck Yearbook of United Nations Law (1999), p. 173; S.N.
Nandan, Administering the Mineral Resources of the Deep Seabed, in D. Freestone, R.
Barnes and D. Ong (eds.), The Law of the Sea Progress and Prospects (2006) 75.
shall prevail, as between States Parties, over the Geneva Conventions on the Law of the
Sea of 29 April 1958.
To what extent does the new Convention prevail over the Geneva Conventions? Ac-
cording to the depositarys website, the bare statistics at the turn of the century were
as follows:
1. Convention on the Territorial Sea and the Contiguous Zone
Number of parties 52
Number of parties which are also parties to the LOSC 41
Number of parties which are not parties to the LOSC 11
2. Convention on the High Seas
3. Convention on Fishing, etc. of the High Seas
4. Convention on the Continental Shelf
What do these bare statistics indicate? In every instance, approximately three-quar-
ters of the parties to a Geneva Convention are now also parties to the LOS Conven-
tion. As a consequence, relations between those States are to be based upon the new
Convention, which prevails over the Convention of 1958. Each Convention of 1958
remains in force as a treaty. It remains applicable: (1) amongst the States which
are parties to it but not the LOS Convention; and (2) between a State Party only to a
Geneva Convention and a State Party to both 1958 and the LOSC. But these relation-
ships based on the Geneva Convention are less numerous than those between States
Parties. This means that the Geneva Conventions are quickly passing into legal his-
tory, just over 40 years after their entry into force.
IV The Status of the Fisheries Agreements Adopted in the 1990s
The venerable principle
29
oI the Ireedom oI fshing on the high seas, laid down at
times when fsh were superabundant, was never absolute. There was no Ireedom to
engage in destructive, non-sustainable harvesting which failed to have reasonable re-
29 The term used by Scovazzi, La Liberte de la Mer: vers laffaiblissement dun principe
venerable, vol. III (1998) Annuaire du Droit de la Mer, p. 1.
96 Chapter 5
gard to the rights of others.
30
During the 1990s, initiatives were taken to address some
problems in regard to high seas fsheries. Those initiatives led to the adoption oI:
1. The FAO Agreement to Promote Compliance with International Conservation
and Management Measures by Fishing Vessels on the High Seas of 1993 (the
Compliance Agreement).
31
2. The Agreement of 1995 on the Implementation of the Provisions of the LOS
Convention concerning Straddling Fish Stocks and Highly Migratory Fish
Stocks (the Straddling Stocks Agreement).
These Agreements are both now in force. The Compliance Agreement has 33 parties,
including the European Community, representing also the 25 member states apart
Irom Sweden which had already ratifed. Counting all 25 member states produces
a total of 56 states. The Straddling Stocks Agreement has 62 parties, including the
European Community and its member states. The Straddling Stocks Agreement im-
plements and thereby clarifes some broad principles contained in two oI the Geneva
Conventions of 1958 and repeated in the Convention of 1982. Some states that are
not parties to the LOS Convention have become parties to the Compliance Agree-
ment and the Straddling Stocks Agreement, including notably the United States. The
terms oI the Agreement have infuenced the constitutions and work oI several regional
fsheries organisations, including NAFO and NEAFC. Its terms have infuenced the
negotiations Ior new regional agreements Ior the West Central Pacifc,
32
the Southeast
Atlantic and the Southern Indian Ocean.
One controversial issue during the negotiations leading up to the Straddling Stocks
Agreement concerned the boarding and inspection of vessels of other states parties
by agreement,
33
as well as the degree oI compulsion available to fsheries inspectors
faced with a non-co-operating Master. It may be noted that the Tribunal dealt with
very similar issues having to do with the correct procedures for the exercise of the
right of visit in its judgment on the merits of the Saiga (No. 2) Case.
34
The judgment
also clarifed the law concerning the limits to the use oI Iorce in order to eIIect an
arrest at sea. Actions taken by the coastguard, both before and after boarding, were
held to have been excessive and disproportionate. Compensation was awarded for
injuries and damage caused.
30 See the decision of the ICJ in the Fisheries Jurisdiction Case (UK v. Iceland, Reports
1974, p. 3).
31 Adopted in Rome in 1993. It was followed by the Code of Conduct for Responsible
Fisheries in 1995.
32 Statement by the Chairman of the Conference, Ambassador Satya Nandan, in the UN
General Assembly on 30 October 2000: UN Doc. A/55/PV.44.
33 Article 110 of the Convention recognises in its opening phrase that consent to the exer-
cise on the high seas of the right of visit and search can be conveyed by means of a treaty,
such as the Straddling Stocks Agreement.
34 ITLOS Reports 1999, p. 10. Some of the separate opinions went into greater detail.
V Concluding Remarks
(1) Looking towards the future, the goal of universal participation in the Law of
the Sea Convention remains outstanding, though participation is continuing to
grow. The aim of universal participation in a comprehensive single Convention,
which inspired the work of the Conference, should be pursued, in the general
interest. Wider participation, especially by states with major maritime interests,
would further consolidate the law and strengthen the institutions. In addition,
for the Parties there is a need to ensure that the Convention is being respected in
practice day-to-day. There is also a need for more states parties to make choices
under article 287 and, especially, to nominate arbitrators and conciliators for the
purposes of Annex VII.
(2) There is a need to increase further the extent of participation in the Compliance
Agreement and the Straddling Stocks Agreement. Both these Agreements be-
long to the same world as the Convention on the Law of the Sea.
(3) The institutions created by the Convention will take some more time for them to
be fully established. The Authority and the Tribunal will require constant sup-
port from the states parties, for example in paying their annual subscriptions in
full and on time, as well as in their being ready to submit suitable cases to the
Tribunal. The General Assembly has created a Trust Fund that has been used
in one case so far.
35
The Tribunal is ready to play its part in resolving disputes
between parties to the Convention.
36
(4) Finally, there continues to be a need to resolve maritime disputes peacefully
and on the basis of the rule of law. The full application of the rule of law is an
important goal in both national and international life.
35 See Chapter 35. The Trust Fund was used in the Juno Trader case.
36 In para. 7 of its Resolution 55/7, the General Assembly underlined the important role
and authority of the Tribunal.
Chapter 6
Rights of Passage and Marine Pollution*
International law recognises rights of passage for foreign ships through most mari-
time types of waters under a measure of national jurisdiction. These rights, available
for all States and for ships of all kinds, carrying all manner of cargoes and moving
people from one part of the world to another, may be regarded as part of the wider
concept of ius communicationis.
1
The global economy depends upon international
trade in goods and services: shipping remains the main carrier of goods in bulk; for
instance, in 2004, over one tonne of cargo was carried in ships for everyone alive in
the world. For centuries, rights of passage were upheld by the Royal Navy. In recent
times, however, the British coasts have been polluted by foreign ships exercising
rights of passage: the two examples of the Torrey Canyon and the Braer stand out.
In the past, and again today, a balance has to be struck between the exercise of these
valuable passage rights, on the one hand, and the protection of the interests of the
coastal State, on the other. The initial striking of this balance and its adjustment over
the past half century are reviewed in this chapter.
* Revised and updated version of the Ledingham Chalmers lecture given at the University
of Edinburgh on 17 November 2005.
1 This right, mentioned by Vitoria in the sixteenth century, appears to be applicable equally
to the land and to the sea where it is often called the freedom of the seas.
100 Chapter 6
I The Right of Innocent Passage through the Territorial Sea
When I joined the FCO Legal Advisers in the summer of 1960, Sir Gerald Fitzmau-
rice had just returned empty-handed from the Second UN Conference on the Law of
the Sea, called to discuss the question of the maximum extent of different national
limits. The First Conference in 1958 had been seen by participants as being broadly
satisfactory in that the Convention on the Territorial Sea and the Contiguous Zone
(Territorial Sea Convention) had been adopted, although there was no agreement
on the maximum breadth of the territorial sea. In an important article entitled Some
Results of the Geneva Conference
2
Fitzmaurice explained the strengths and weak-
nesses oI the articles defning the right oI innocent passage. On the positive side, the
Convention had articulated the principal elements of the right, drawing extensively
upon the drafting of the International Law Commission.
3
However, he criticised the
fact that the question of innocence was linked by article 14 (4) to the nature of the
passage rather than to the conduct of the ship whilst passing through the territorial
sea, thereby restricting, as he saw it, the scope of the conventional right of innocent
passage as compared with its wider scope under customary international law.
4
The Territorial Sea Convention entered into force in 1964 and, by harmonizing the
practice of States, it quickly brought greater clarity to the law, apart from the ques-
tion of limits which remained controversial. However, the late 1960s were marked by
mounting concern over marine pollution as a result of both accidents (for example,
collisions, strandings and malfunctions) and deliberate acts, usually in the form of
washing out tanks at sea. This was then a common practice, in the frequent absence
of suitable reception facilities in port. The Oil Pollution Convention of 1954 was
proving to be ineffective and there was oil on the beaches. In 1967, the Torrey Can-
yon, when heading for Milford Haven, ran hard aground on the Seven Stones Rocks.
Large quantities of oil escaped from the tanks and polluted coasts in Cornwall and
as far away as Normandy. At that time, the breadth of the territorial sea off Cornwall
was three nautical miles measured from the low-water line on the coast. The ship lay
beyond the three mile limit; it was on the high seas, albeit stuck fast on the rocks.
When initial efforts to mitigate the disaster had failed, the Wilson Government or-
dered the RAF to bomb the shipwreck. This drastic intervention was taken as a last
resort, when both freedom of navigation and rights of passage had clearly ended, in
an effort to burn the oil remaining in the tanker. The action was taken to protect the
British coasts Irom Iurther pollution. It was justifable as an act oI selI-protection
under customary international law. The disaster brought home to many persons that
the UK was exposed to all the problems of a coastal State. The right of self-protection
to intervene following an oil pollution disaster on the high seas was recognised and
codifed in a Convention adopted by a Diplomatic ConIerence convened under the
2 8 ICLQ (1959) 73.
3 Final draft articles in II YBILC (1956) 254, esp. pp. 265-277.
4 Ibid, at pp. 95-97.
101 Rights of Passage and Marine Pollution
auspices of the International Maritime Organisation (IMO).
5
The same Conference
also adopted a Convention on Civil Liability for Oil Pollution Damage.
A second signifcant event occurred in the summer oI 1969 when a US oil company
sent an ice-strengthened tanker, the SS Manhattan, through the northern archipelago
of Canada to Alaska, where oil had just been discovered. Canada reacted the follow-
ing year by passing the Arctic Waters Pollution Prevention Act 1970, establishing a
novel type of zone of 100 nautical miles over which Canada asserted jurisdiction to
prevent pollution, including controls over navigation beyond the 12 mile territorial
sea in defned areas oI the Arctic Ocean. This unilateral claim drew protests Irom
several maritime nations, including the UK. An unspoken fear was that this new type
of zone with controls over navigation would be imitated by coastal States in other
parts of the world.
Around the same time, Canadian coasts were polluted by the stranding on the coast
of what Canada regarded as a substandard, under-equipped tanker called The Arrow.
Many coasts in Western Europe were also polluted by tank residues and washings.
The widespread concern led to the calling of the Conference at the IMO that adopted
the International Convention for the Prevention of Pollution from Ships (MARPOL)
in 1973. Annex I to MARPOL regulated both accidental and operational discharges
of oil at sea. Reception facilities for oily wastes were to be provided in oil ports and
terminals. There was controversy during the Conference, sparked by the Canadian
legislation, over the issue of the lawfulness of national pollution zones beyond the
territorial sea. This was seen to raise a general issue to do with the limits of coastal
State jurisdiction. Accordingly, it was decided to postpone consideration of the whole
question oI pollution jurisdiction to the Third Law oI the Sea ConIerence, the frst
session of which was then imminent.
In 1973, I was asked to join the British delegation for the last session of the UN
Seabed Committee, preparing the Third Law of the Sea Conference. By the end of
my month in Geneva, I had heard so many novel proposals and new, far-reaching
concepts examples included not just the common heritage of mankind, the EEZ
and the Archipelagic State but also the notion of ocean space replacing the high
seas that I became concerned for the future stability of the entire law of the sea.
The Conference was to begin with no basic text, such as the draft articles prepared by
the International Law Commission for the First Law of the Sea Conference in 1958
and later for the Vienna Conference on the Law of Treaties in the 1960s. Instead, for
the Third ConIerence there were numerous conficting proposals, running to Iour
volumes. Academic experts on the law of the sea such as Professor Iain MacGib-
bon
6
doubted whether there would be a positive outcome to the Conference in Cara-
5 International Convention relating to Intervention on the High Seas in Cases of Oil Pol-
lution Casualties of 29 November 1969 (9 ILM (1970) 25). This right is now re-stated,
with modifcations, in article 221 LOSC: there has to have been a casualty beIore the
coastal State may intervene. The IMO has also adopted a traIfc scheme Ior the area oI
the disaster off Lands End.
6 He was then the Professor of International Law at Edinburgh University. His remarks were
made during a meeting called by the FCO Minister, Mr D. Ennals M.P., to discuss the Gov-
102 Chapter 6
cas. There appeared to me to be a danger of weakening or even losing much of the
achievement represented by the Geneva Conventions without replacing them, result-
ing in uncertainty and disputes.
In these circumstances, during the months beIore the frst substantive session, the
British delegation adopted a proactive strategy designed to retain the basic concepts
and, at the same time, to develop the law in order to meet contemporary needs. A
complete revolution in the law of the sea was not an option, but some evolution
was probably needed. The delegation included as advisers both naval and shipping
experts, including two future admirals, an expert from the General Council of British
Shipping and the manager oI Shell`s tanker feet: the latter was anxious to raise stand-
ards and thus improve the reputation of the industry. Within the delegation, some
proposals were drawn up, for tabling in the Second Committee, which would repro-
duce and thus re-enact much of the Geneva wording in the Territorial Sea and High
Seas Conventions.
7
These proposals also included changes improvements in the
Geneva wording, framed in the light of experience. For the right of innocent passage,
new wording, inspired in part by Sir Gerald Fitzmaurices learned article, was drafted
whereby the test of innocence would be linked to a ships conduct and activities
in the territorial sea at the time in question, rather than to the nature of its passage.
It was decided to repeat the general proposition in article 14(4) of the Territorial Sea
Convention to the effect that Passage is innocent so long as it is not prejudicial to
the peace, good order or security of the coastal State and then to add a list of non-in-
nocent activities, following an approach to the issue already advocated by Fiji during
the fnal session oI the Seabed Committee in 1973.
8
In this way, the general proposi-
tion would be qualifed by the list oI activities. Accordingly, the delegation drew up
a list of non-innocent activities: initially, it read as follows:
2. Passage of a foreign ship shall not be considered prejudicial to the peace, good
order or security of the coastal State unless, in the territorial sea, it engages in any
threat or use of force in violation of the Charter of the United Nations against the
territorial integrity or political independence of the coastal State, or without au-
thorization Irom the coastal State or justifcation under international law in any oI
the following activities:
(a) any exercise or practice with weapons of any kind;
(b) the launching or taking on board of any aircraft;
(c) the launching, landing or taking on board of any military device;
(d) the embarking or disembarking of any person or cargo contrary to the cus-
toms, fscal, immigration or sanitary laws or regulations oI the coastal State;
ernments approach to the then forthcoming Caracas session of the Third Conference. Later,
Professor OConnell said to me that he was dismayed by what he was hearing in Caracas.
7 The proposals were tabled as A/CONF.62/C.2/L.3 (Territorial Sea and Straits) and ibid.
/ L.54 (High Seas). For the proposals concerning passage through straits, see the com-
mentary by Ambassador Nandan (Fiji) and the present writer reproduced as Chapter 7;
for the proposals concerning the regime of the high seas, see Chapter 12.
8 A/9021, Vol. III, section 31.
(e) any act aimed at interfering with any system of communication of the coastal
State;
(f) any act aimed at interfering with any other facilities or installations of the
coastal State.
3. Passage shall not be considered prejudicial to the peace, good order or security of
the coastal State if any such activity is:
(a) prudent Ior saIe and eIfcient navigation in accordance with the normal prac-
tice of seamen; or
(b) carried out with the prior authorization of the coastal State; or
(c) rendered necessary by force majeure or distress or for the purpose of render-
ing assistance to persons, ships or aircraft in danger or distress.
The delegation of Fiji re-submitted its proposals to the Conference,
9
and further pro-
posals were tabled by the Straits States group
10
and the East European group.
11
Fijis new list of non-innocent activities read as follows:
(i) Any other warlike act against the coastal or any other State;
(ii) Any exercise or practice with weapons of any kind;
(iii) The launching or taking on board of any aircraft;
(iv) The launching, landing or taking on board of any military device;
(v) The embarking or disembarking of any person or cargo;
(vi) Any act of espionage affecting the defense or security of the coastal State;
(vii) Any act of propaganda affecting the security of the coastal State;
(viii) Any act of interference with any systems of communication of the coastal or my other
State;
(ix) Any act of interference with any other facility or installation of the coastal State;
(x) Any other activity not having a direct bearing on passage.
As will be seen, the proposals by Fiji and those by the UK both included wording to
do with weapons practice, the launching or recovery of aircraft and military devices,
the smuggling of goods or persons, and interference with communications, facilities
or installations. Fijis list was wider in scope than the UK list. The Malaysian and
Bulgarian lists also had common elements with both the Fijian and British lists.
The British delegation also proposed a second list, this time setting out the mat-
ters for which the coastal State could legislate, drawing here upon a list of examples
contained in the Commentary of the International Law Commission on its draft arti-
cle 18 of 1956.
12
The ILC`s examples included the saIety oI traIfc, the protection oI
channels and buoys, the prevention of pollution from shipping, the conservation of
living resources, fshing, Hydrographic surveying, the use oI the national fag, the use
9 A/CONF.62/C.2/L. 19.
10 Malaysia et al., A/CONF. 62/C.2/L. 16.
11 Bulgaria et al., A/CONF. 62/C. 2/L. 11.
12 II YBILC 1956, at p. 274.
104 Chapter 6
of prescribed routes, the observance of security rules and the observance of customs
and health regulations. The UK list was as follows:
Article 18
1. The coastal State may make laws and regulations in conformity with the provi-
sions of this Convention and other rules of international law relating to inno-
cent passage through its territorial sea. Such laws and regulations may be only
in respect of the following:
(a) the saIety oI navigation and the regulation oI marine traIfc, including sea
lanes and traIfc separation schemes;
(b) the prevention of destruction of, or damage to, facilities and systems of
aids to navigation;
(c) the prevention of destruction of, or damage to, facilities or installations,
including those for the exploration and exploitation of resources of the
sea-bed and subsoil;
(d) the preservation of the marine environment in accordance with chapter ...
of this Convention;
(e) research into the marine environment;
(f) prevention oI inIringement oI the customs, fscal, immigration, or sani-
tary regulations of the coastal State; and
(g) prevention oI unauthorized fshing by Ioreign fshing vessels.
Again, the proposal of Fiji contained a similar list, as follows:
(a) The saIety oI navigation and the regulation oI marine traIfc, including the designa-
tion oI sea lanes and the establishment oI traIfc separation schemes;
(b) The installation, utilization and protection of navigational aids and facilities;
(c) The installation, utilization and protection of facilities or installations for the ex-
ploration and exploitation of the marine resources, including the resources of the
sea-bed and subsoil, of the territorial sea;
(d) The protection of submarine or aerial cables and pipelines;
(e) The conservation of the living resources of the sea;
(f) The preservation of the environment of the coastal State, including the territorial
sea, and the prevention of pollution thereof;
(g) Research of the marine environment, including hydrographic research;
(h) The prevention oI inIringement or the customs fscal, immigration, quarantine or
sanitary regulations of the coastal State;
(i) The prevention oI inIringement oI the fsheries regulations oI the coastal State,
including inter alia those relating to the storage of gear.
Again, the two lists had several common elements, namely the safety of navigation,
the protection of navigational aids, facilities and installations, the conservation of
living resources and the preservation of the marine environment, as well as research,
smuggling and fshing. The lists proposed by Malaysia and Bulgaria also contained
similar elements.
The British delegations proposals were tabled at the outset of the session in Cara-
cas in the summer of 1974. In introducing the draft into the Second Committee, it was
stated that the proposals sought to strike the right balance between the interest of the
international community in the freedom of navigation and the interest of the coastal
Statein protecting itself.
13
For the UK, this idea oI fnding a balance represented
something of a novel approach compared with the First Conference in 1958; how-
ever, as a New Zealand colleague pointed out to me, we were still placing the point of
balance over towards the interests of navigation. Indeed, in his opening speech to the
ConIerence, the British Minister, Mr David Ennals MP, mentioned frst in his listing
of British maritime interests the fact that the UK was a major ship-owning nation.
Pollution came third.
14
In the margins of the formal sessions of the Conference in
1974 and 1975, the British and Fijian delegations
15
held extensive discussions about
the wording of the two lists in order to harmonise their texts: there were many com-
mon elements and the differences were not seen as fundamental.
The British and Fijian proposals were carefully considered by the informal Work-
ing Group of the Second Committee during the discussions of the Main Trends docu-
ment,
16
held in Geneva during the Spring Session and leading up to formulation of
the Informal Single Negotiating Text (ISNT) in 1975. At this stage, Nigeria raised the
question of pollution and Canada proposed an additional sub-paragraph in the listing
of non-innocent activities, namely an act of pollution contrary to the legislation of
the coastal State. Shipping interests considered this formulation to be too wide. After
informal discussions, this proposal was reformulated so as to read: any act of wil-
ful pollution, contrary to the provisions of the present Convention. In other words,
there had to be some deliberate action; and, instead of referring to the coastal States
legislation, the alternative standard of the provisions of the future Convention was
prescribed. The term wilful is widely used, of course, in criminal law statutes in
common law countries: the informal drafting work was done in English and involved
many delegates with a background in the common law. The Concise Oxford Diction-
ary gives the meanings: intentional, deliberate, due to perversity or self-will.
17
The
act of deliberately washing out tanks near to coasts, leading to oil on the beaches or
damage to fsh stocks, was the main example within the contemplation oI those con-
13 Off. Rec. II, p. 101.
14 Off. Rec. I, p. 111. Fisheries came second (paras. 23-27).
15 For Fiji, the main spokesman was Ambassador Satya Nandan, who kept in touch with
other members of the Archipelagic States group; for the UK, the participants included
the present writer, Richard Hill and Richard Thomas, who kept in touch with the group
of Five and other maritime powers.
16 III OIfcial Records, at p. 112 (provision 27, Formula B and Formula C taken Irom the
proposals by Fiji and the UK, respectively).
17 In the case of In re Young and Hartstons Contract, Bowen L.J. stated that wilful meant
that a person knows what he is doing, and intends to do what he is doing, and is a free
agent. (1885) 80 Ch.D.168. In Ronson International Ltd. v. Patrick, the English Court
of Appeal held that for an act to be wilful, for the purposes of an insurance contract, its
consequences had to be intentional. (Judgment of 30 March 2006).
106 Chapter 6
cerned in the discussions held in 1975. This practice of washing out tanks persisted in
certain parts of the industry, bearing in mind the fact that MARPOL had not entered
into force at that time.
18
This sort of act was seen to be in line with the others included
in the list of non-innocent activities.
When it appeared, the ISNT included a list of non-innocent activities based on
the four written proposals and the reformulated version of the Canadian additional
proposal. The list in the ISNT was as follows:
2. Passage of a foreign ship shall be considered to be prejudicial to the peace,
good order or security of the coastal State, if in the territorial sea it engages in
any of the following activities:
(a) Any threat or use of force against the territorial integrity or political in-
dependence of the coastal State or in any other manner in violation of the
Charter of the United Nations;
(b) Any exercise or practice with weapons of any kind;
(c) Any act aimed at collecting information to the prejudice of the defence or
security of the coastal State;
(d) Any act of propaganda aimed at affecting the defence or security of the
coastal State;
(e) The launching, landing, or taking on board of any aircraft;
(f) The launching, landing or taking on board of any military device;
(g) The embarking or disembarking of any commodity, currency or person
contrary to the customs, fscal or sanitary regulations oI the coastal State;
(h) Any act of wilful pollution, contrary to the provisions of the present Con-
vention;
(i) The carrying out of research or survey activities of any kind;
(j) Any act aimed at interfering with any systems of communication of the
coastal or any other State;
(k) Any act aimed at interfering with any other facilities or installations of the
coastal State;
(l) Any other activity not having a direct bearing on passage.
When the ISNT was discussed in the Working Group of the Second Committee, in-
formal suggestions were made to add to sub-paragraph (h) words such as accidental
(Trinidad and Tobago) and to delete wilful (Colombia; Finland). However, these sug-
gestions were not accepted: the general view in the Working Group was that accidental
pollution should be placed in a different category from wilful pollution. Proposals to
refer additionally to the threat of pollution were considered, but after consideration
these proposals were not accepted by the Working Group. Instead, the wording was
tightened by the adoption of a Danish suggestion to use the cumulative phrase wil-
ful and serious pollution. Subsequently, Canada continued to suggest reformulations
18 MARPOL entered into force only after the adoption of the Protocol of 1978. The discus-
sions during 1974 to 1976 took place, of course, before the use by Iraq of oil pollution as
a weapon during the invasion and occupation of Kuwait.
referring to violations of coastal State environmental legislation and major harmful
consequences to the coastal State, echoing wording in what became article 220 of the
Convention; however, these were not accepted.
19
In further discussions during the session held at Geneva in 1978, Honduras put
forward an informal written amendment so that article 19(2) (h) would have read:
Any act of wilful pollution having harmful effects, contrary to the present Convention.
In other words, Honduras would have removed the criterion of serious and re-
placed it with the idea that the pollution must have produced some harmful effects.
These effects were presumably intended to be ones that harmed the territorial sea,
coasts, installations or resources of the coastal State. The proposal encountered some
opposition over the omission of the test of seriousness and for that reason it was not
incorporated into the draIt Convention. There was less diIfculty with the concept
of harmful effects. During the same session, Canada advanced a further proposed
reformulation of the sub-paragraph in the following terms:
Any violation of the laws and regulations for the preservation of the marine environ-
ment enacted by the coastal State in conformity with the provisions of this Convention,
where such violations may reasonably be expected to result in major consequences to the
coastal State.
This reformulation was opposed on the grounds that the test of wilfulness had not
been retained. It was largely for that reason, coupled with general reluctance on the
part of many other delegations to re-open the wording of the whole sub-paragraph,
that the reformulation was not included in the draft Convention. Instead, the term
wilful and serious pollution was adopted as article 19(2) (h) of the Convention.
20
The Canadian point about harm to a coastal State or its interests, such as resources,
was implicit.
The ISNT also included a list of legislative powers of coastal States in the follow-
ing terms:
(a) The saIety oI navigation and the regulation oI marine traIfc, including the designa-
tion oI sea lanes and the establishment oI traIfc separation schemes;
(b) The protection of navigational aids and facilities and other facilities or installations
including those for the exploration and exploitation of the marine resources of the
territorial sea and the sea-bed and subsoil thereof;
(c) The protection of cables and pipelines;
19 M. Nordquist (ed.), United Nations Convention on the Law of the Sea: A Commentary,
vol. II ( by S.N. Nandan and S. Rosenne) (the Virginia Commentary), p. 171.
20 This account is based upon my own notes of the discussions, written at the time in the
Conference room in order to be able to participate in the discussions as they developed,
plus the Virginia Commentary. The FCO fle is MRL 4/348/18 (now FCO 76/1100 in the
National Archives).
108 Chapter 6
(d) The conservation of the living resources of the sea;
(e) The prevention oI inIringement oI the fsheries regulations oI the coastal State,
including, inter alia, those relating to the stowage of gear;
(f) The preservation of the environment of the coastal State and the prevention of pol-
lution thereof;
(g) Research of the marine environment and hydrographic surveys;
(h) The prevention oI inIringement oI the customs, fscal, immigration, quarantine or
sanitary or phytosanitary regulations of the coastal State.
The UK proposals contained some qualifcations: in particular it was specifed that
coastal States laws could not apply to the design, construction, manning or equip-
ment (DCEM) of foreign ships, in the following terms:
Such laws and regulations shall not:
(a) apply to the design, construction, manning or equipment of foreign ships or
matters regulated by generally accepted international rules unless specifcally
authorized by such rules;
(b) impose requirements on foreign ships which have the practical effect of deny-
ing or prejudicing the right of innocent passage in accordance with this Con-
vention; and
(c) discriminate in form or in fact among foreign ships.
The argument was that a patchwork quilt of national standards would make it im-
possible for ships to pass from one territorial sea to another because they could not
change their construction or equipment at the boundary. The counter argument was
that substandard ships such as The Arrow had run aground and polluted the coast as
a result of not having proper charts, prepared by the coastal State, or up-to-date radar
on board. AIter diIfcult discussions during which several delegations tabled propos-
als, a compromise was reached: it was decided to provide in article 21, paragraph 2,
of the Convention that
2. Such laws and regulations shall not apply to or affect the design, construction,
manning or equipment of foreign ships or matters regulated by generally accepted
international rules unless specifcally authorized by such rules.
In other words, such laws could not apply to the DCEM of foreign ships unless these
laws were giving effect to generally accepted international rules, such as those con-
tained in MARPOL. If rules were generally accepted, a coastal State could require
ships exercising the right of innocent passage to comply with such rules even if the
fag State was not a party to the relevant Convention. There was to be a duty to
comply with internationally agreed standards.
21
If standards were thought to be too
low, the correct course was to propose changes in the IMO, rather than to resort to
21 B.H. Oxman, The Duty to Respect Generally Accepted International Standards, 24
New York University Journal of International Law and Politics (1991), pp. 109 to 159.
unilateral action to arrest substandard ships or bar their entry to the territorial sea.
The Second Committees texts applied to oil tankers and ships carrying nuclear and
other noxious substances, subject in each instance to their observance of the relevant
internationally agreed standards for such vessels.
22
In the Third Committee, parallel discussions took place about the powers of coast-
al States and fag States to prescribe and to enIorce laws and regulations Ior ships in
innocent passage. The discussions continued over several years and took account of
the MARPOL Convention, as well as events such as the Amoco Cadiz disaster off
the French coasts. According to article 211, paragraph 4, a coastal State could apply
regulations concerning the prevention and control of pollution to foreign ships in in-
nocent passage, but if so these regulations were required not to hamper their passage.
Article 220, paragraph 2, allows the coastal State, if it has clear grounds for believ-
ing that that a vessel whilst navigating in the territorial sea has violated its pollution
legislation, to inspect and where the evidence so warrants to detain and prosecute the
vessel. This is to be without prejudice to the rules on innocent passage.
To sum up, the work oI the Second and Third Committees clarifed the Geneva re-
gime on innocent passage in several respects. In particular, the law was developed as
regards the non-innocent activities of ships whilst engaged in innocent passage and
the legislative powers of the coastal State concerning the pollution of the territorial
sea. A balance was struck between the interests of the coastal State and those of the
fag State in respect oI vessels fying its fag.
II Passage through the Exclusive Economic Zone (EEZ)
Article 58(1) oI the Convention provides that all States and, by extension, ships fy-
ing their fags enjoy Ireedom oI navigation in the EEZ, subject to its other relevant
provisions. The coastal State is entitled by paragraph 5 of article 211 to legislate for
the protection and preservation of the marine environment in order to implement
generally accepted international rules and standards such as those in the MARPOL
Convention. Foreign-fagged vessels are obliged to comply with such laws, which
may be enIorced by the fag State in accordance with article 217, paragraph 4, or by
the coastal State under the conditions specifed in article 220(6) and subject to the
safeguards in section 7 of Part XII. In effect, the Conference accepted the concept
oI the pollution zone, frst advanced unilaterally by Canada in 1970 in its Arctic
legislation, and developed it along agreed lines. The breadth of the coastal States
competence was extended to 200 nautical miles by including pollution jurisdiction in
the concept of the EEZ. After a slow start, many States have now enacted and imple-
mented legislation for their EEZs, including pollution jurisdiction over foreign ships.
These powers are restricted to laws giving effect to generally accepted international
rules and standards contained principally in IMO Conventions.
23
22 This is made clear by Articles 22 and 23 of the Convention.
23 For a survey, see E. Franckx (ed.), Vessel Source Pollution and Coastal State Jurisdic-
tion, including for the UK Chapter XVII by the present writer.
110 Chapter 6
EnIorcement oI such laws in respect oI ships in the EEZ is confned by article
220 to cases where an actual discharge has caused or threatens major damage to the
coastline or the resources of the coastal State. Several safeguards were prescribed,
including release against bonds, a right oI the fag State to pre-empt or suspend the
coastal States prosecution by starting its own,
24
and a provision limiting penalties
to monetary ones.
25
The rationale was that since coastal States were being granted
some novel and untested jurisdiction over fsheries and pollution in areas which had
previously had the status oI high seas, some qualifcations upon the powers oI coastal
States should be made in order to guard against possible abuses that could prejudice
the interests of international shipping.
III Implementation of the LOS Convention in State Practice 1994-2005
How have these provisions been working in practice? Have the balances contained
in the Convention been observed? The Convention did not strike a balance that was
immutable in all respects. Rather, the Convention represents a framework within the
interstices of which some adjustments can be made to the detailed, technical stand-
ards. Thus, in the present context, it may be noted that MARPOL has been updated
several times since 1994 to refect new ideas about ship-design. Compared with 1982
when the Convention was adopted, there are more special areas, more sealanes and
traIfc schemes, better saIety standards, agreed arrangements Ior giving advance no-
tice of arrival in port, better charts (both paper and now electronic), and better agreed
responses when mishaps do occur.
The Convention came into force in 1994 and has now
26
attracted 151 States plus
the EC for matters within EC competence. This total includes well over three-quar-
ters of all coastal States. Non-parties include the US, Venezuela, Turkey, Thailand,
Israel, Iran, Peru, Colombia and Ecuador, but in practice most of them follow most
of the Conventions provisions for most of the time. One exception, relevant in the
present contexts of shipping and pollution, was the US Oil Pollution Act 1990, im-
posing unilateral standards on tanker design, ahead of agreement on double hulls in
the IMO. The widespread participation in the Convention has brought much greater
24 According to a report in Lloyds List, 9 June 2006, this right appears to have been ex-
ercised in 2005 by Norway in respect oI the Trans Arctic, a ship fying its fag under
prosecution in Brest, following sighting of an oil slick off La Rochelle. The proceedings
in Brest were suspended. The vessels owners were convicted by a Norwegian court and
fned. When the matter returned to the Court in Brest, the French Ministry oI Justice
recommended that the case be dropped. However, the Court decided to impose its own
fne, even though it may be recalled article 228 (1) includes the sentence 'When
proceedings instituted by the fag State have been brought to a conclusion, the suspended
proceedings shall be terminated.
25 Articles 226, 228 and 230. Some oI these saIeguards Ior fag States were modelled on
MARPOL.
26 15 November 2006.
stability to the law of the sea, including the rules on innocent passage and passage
through the EEZ.
The three institutions created by the Convention have been in operation now for
ten or more years. Many kinds of disputes about its operation can be referred to a
court or tribunal for determination. The International Tribunal for the Law of the Sea,
for example, has heard two cases arising from the arrest of vessels in the EEZ. In the
frst, that oI the Saiga (a small tanker supplying bunkers, etc. to fshing vessels oII
West Africa), the Tribunal found that its arrest by Guinea on smuggling charges was
contrary to the terms of the Convention and, moreover, had been brought about by the
use of live gunshot that was both excessive and unlawful.
27
In the second case, that of
a reefer called the Juno Trader, the Tribunal ordered, under article 292, its release
Irom arrest by Guinea Bissau on fsheries charges (receiving, without a licence, fsh
from some nearby trawlers) against a modest bond.
28
In recent years, there have been some incidents at sea resulting in large-scale pol-
lution of the adjacent coasts. In Scotland, people still remember the stranding of the
Braer and Lord Donaldsons Inquiry,
29
which was conducted within the legal frame-
work of the LOS Convention and made a good number of recommendations that were
very largely implemented many through the IMO. Off Western Europe, there have
been serious casualties, such as the Erika and the Prestige. The phasing-out of single
hulled tankers by agreement in the IMO to amend MARPOL was a reaction to the
Erika and Prestige disasters. So far, therefore, this review of practice displays many
positive elements. In other respects, however, some reactions have been unilateral,
or troubling in other ways. Often the facts are not totally clear and in some instances
litigation may still be in progress, calling for caution on the part of commentators.
What follows is subject to these caveats.
First, in advance of that agreement to amend MARPOL, some single-hull tankers,
not amounting to casualties, were escorted from the EEZ on the basis of national
regulations. These actions appear to have denied the vessels and their fag States
the freedom of navigation provided for in article 58 of the Convention.
30
Secondly,
in 2003, a group of six States proposed a new Particularly Sensitive Sea Area in the
NE Atlantic, including areas of EEZs, from which single-hulled tankers would be
prohibited from carrying heavy fuel oil. This proposal was surprising in that the IMO
was being requested to adopt a measure that had no binding basis in law and, indeed,
27 ITLOS Reports 1999, p. 10.
29 The Report Safer Ships, Cleaner Seas was published as Cm. 2560; the response of the
UK Government is Cm. 2766.
30 Report of the UNSG on Oceans Affairs and Law of the Sea, A/58/65 (2003), para. 57.
The Report also alludes (para. 58) to a formal statement by a Vice-President of the Euro-
pean Commission to the effect that the law of the sea represented the balance of interests
as they stood several decades if not centuries ago: this statement rather overlooks the
facts that the EEZ dates only from the mid-1970s and that changes to the draft Conven-
tion were made shortly after disasters such as the Amoco Cadiz.
112 Chapter 6
appeared to be inconsistent with several provisions in the LOS Convention. After
opposition on these grounds, the proposal was withdrawn.
31
Thirdly, in some instances, ships in distress or maritime casualties have been es-
corted further out to sea, where the available means of dealing with the underlying
problems are fewer, because the ships were treated as pollution threats. During the
Icelandic cod wars, when British trawlers were being harassed on the oIIshore fsh-
ing grounds by the coastguard, the Icelanders stood back and did not intervene when
trawlers in distress moved inshore and sheltered from the storms in coastal bays. This
refected Iceland`s respect Ior long-standing maritime traditions. A coastal State Iaced
with a leaking tanker may be well advised to cooperate with the Master in an effort to
avert disaster. Article 98 of the LOS Convention concerning the duty to render assist-
ance refects both long-standing maritime traditions and elementary considerations oI
humanity that are applicable in the EEZ. The Parliamentary Assembly of the Council
of Europe recently recommended that coastal States should provide places of refuge
and draw up contingency plans for dealing with casualties.
32
The Legal Committee of
the IMO concluded that a new Convention was not needed.
33
Many provisions con-
tained in the Law of the Sea Convention call for international cooperation, something
the International Tribunal for the Law of the Sea has emphasised in its decisions pre-
scribing provisional measures in the Southern Bluehn Tuna,
34
MOX Plant
35
and Land
Reclamation
36
cases. Some Iurther clarifcation oI the legal principles applicable to
ships in distress may be required in modern conditions.
A relatively new development is the prosecution of masters on criminal charges
arising from pollution incidents. For example, the master of the Prestige was pros-
ecuted and even remanded in custody for a time: he may still be subject to some
on-going proceedings and legal restraint in Galicia. Some prosecutions have resulted
in remands in custody and terms of imprisonment. Article 230 of the Convention,
headed Monetary penalties and the observance of the rights of the accused pro-
hibits non-monetary penalties for pollution offences, except in the case of a wilful
and serious act of pollution in the territorial sea the test used in article 19 (2) (h).
Article 292 concerning prompt release from detention of ships and their crews pro-
vides a mechanism for recourse to the International Tribunal for the Law of the Sea
in fsheries cases under article 73 and in cases oI pollution under articles 220 and 226.
Several cases involving arrested fshing vessels have come beIore the Tribunal in
which the crews were Spanish nationals from Galicia, by coincidence. In all cases in
which it had jurisdiction, the Tribunal ordered the release of the crew.
37
The Tribunal
31 The story is recounted in Roberts et al., The Western European PSSA proposal: a politi-
cally sensitive sea area, in 29 Marine Policy (2005) 431.
32 Resolution 1439 (2005) of 29 April 2005.
33 Report of UNSG on Oceans and Law of the Sea 2005, A/60/63/Add. 2, para. 37.
34 ITLOS Reports 1999 p. 280.
37 The cases are those of the Camouco, the Monte Confurco and the Volga.
has held that as well as straightforward detention on remand, the obligation to hand in
passports and remain in the foreign country amounted to a form of detention for the
purposes of Article 292.
38
This mechanism has been helpIul Ior Galician fshermen
and their human rights, but its existence and possible availability appear not to have
ameliorated the treatment of a ships captain in Galicia.
In the matter of pollution, the emphasis on prosecuting the master marks a move
away from the approach in the Civil Liability Conventions where strict liability is
channelled to the shipowner. The recent Report by the International Commission
on Shipping has pointed out that the prosecution of the master tends to move the at-
tention away from the owners and operators, who may well be the truly responsible
parties.
39
It may also tend to hide the fag State which may have shirked its duty to su-
pervise ships fying its fag. Article 94 oI the LOSC requires the fag State to perIorm
its supervisory duties effectively. The need to protect the rights of seafarers has been
stressed by the Assembly of the IMO in its resolution A.987 (24) and work is in hand
on some new guidelines for coastal States.
40
Recently, the EU has adopted a Directive on ship-source pollution and the intro-
duction of penalties for infringements, together with a related Decision to strengthen
the criminal law framework for enforcement.
41
The Directive provides that discharg-
es are to be regarded as criminal offences if committed with intent, recklessly or by
serious negligence. The Decision provides for effective, proportionate and dissua-
sive criminal penalties which shall include, at least for serious casesbetween one
and three years of imprisonment. Imprisonment is to be prescribed for both inten-
tional acts and ones of serious negligence. These texts, which have been criticised
by my former colleague, Judge Mensah, as contrary to both MARPOL and the LOS
Convention,
42
are now the subject of a judicial review in the English High Court and a
reference to the European Court of Justice.
43
The questions put to the ECJ pursuant to
article 234 EC relate inter alia to the concept of serious negligence in regard to the
territorial sea, straits, the EEZ and the high seas; in regard to the terms of MARPOL
and the LOS Convention; and to those of Community law.
38 Camouco case, Reports 2000, p. 10, at pp. 32-3.
39 The Final Report of the Commission dated 27 July 2005 is available at www.icons.org.
au.
40 Report of the UNSG on Oceans Affairs and Law of the Sea, A/61/63, para. 80.
41 EC Directive 2005/35/EC. The Directive followed the decision dated 13 September 2005
by the European Court of Justice in Commission v. Council (Case C-176/03) concerning
the competence of the Community in criminal matters and the protection of the environ-
ment.
42 Eighth Cadwallader lecture 2005: available on www.london-shipping-law.com.
43 R. (Intertanko and others) v. Secretary of State for Transport [2006]EWHC 1577 (Ad-
min): Judgment of Hodge J of 30 June 2006.
114 Chapter 6
IV Concluding Observations
Since 1974, the number oI ships fying the British fag has Iallen; unIortunately, over
the same years the vulnerability of the UKs coasts to ship-source pollution has been
demonstrated. Compared with Sir Gerald Fitzmaurices time, the UK appears today
more as a coastal State than a maritime State in its approach to shipping issues.
Recent events confrm this shiIt in attitude. Public opinion has demanded nothing
less, for valid reasons. At the same time, some other maritime interests should not be
forgotten: the pendulum should not swing too far.
The number oI ships fying the fags oI States with which they have little or no
real connection has increased. This is a systemic problem in the law concerning the
registration oI ships. It aIIects both the shipping and fsheries sectors, as owners try
to circumvent restrictions and requirements that cost money. Many substandard ships
fy fags oI convenience: their accident rates are higher than those oI well-run ships.
Granting the fag to ships carries with it the duty to exercise eIIective jurisdiction and
control over them in administrative, technical and social matters, including the nu-
merous internationally agreed standards. This duty is made clear by article 94 of the
Convention. A proven pattern of failure to perform this duty would lead to State re-
sponsibility. Article 300 requires rights to be exercised in good faith and not abused.
This applies to the right to grant the fag.
Accidents at sea are small in number in relation to the number of ships and the
volume of cargo carried. The main sources of marine pollution remain the land and
the rivers, but this tends to be overlooked because pollution from land-based sources
is occurring all the time. In contrast, when shipping accidents do occur, they can
be catastrophic and they invariably attract great attention in the public media. In
response, port State controls and port State jurisdiction over acts committed before
entry into port have both been exercised more widely. Some fag States such as Nor-
way act positively and responsibly in regard to ships fying their fag. Coastal State
jurisdiction has been asserted more widely: indeed, strong assertions have been made
by some States which were very ready to complain of creeping jurisdiction by
coastal States not so many years ago. Some coastal States are active in detecting and
prosecuting suspect ships, but there remains a need to respect the safeguards in sec-
tion 7 of Part XII, which were part of the negotiated package. Liability arrangements
including a Fund Convention have been put in place at the level of private law. In
these circumstances, special care should be taken to avoid unilateral reactions that
depart from the scheme of the LOS Convention. Such reactions can engage State
responsibility.
Lord Donaldsons report into the Braer implied that IMO standards were too low:
they were the lowest common denominator on which consensus could be reached.
There was some force in this criticism. Even so, shipping problems are best raised
in the IMO, which can and does adopt new international standards or raise existing
ones. The alternative, unilateral action, has more than one drawback. A unilateral act
by State A may be imitated by State B in a manner that affects State As shipping or
strategic interests. In that situation, State As options are severely limited by its own
prior actions. Furthermore, unilateralism can lead to disputes between States. The
Convention contains in its Part XV provisions for dispute settlement that are appli-
cable among States Parties. These provisions may well be available to the fag State
faced with a coastal States denial of rights of passage. Equally, they may be available
to the victim State suIIering a disaster brought about by a Iailure oI a fag State to
ensure that vessels fying its fag meet international standards.
In conclusion, I would only note that in its early jurisprudence, the International
Tribunal for the Law of the Sea has shown its concern to apply and uphold the terms
of the LOS Convention when disputes are brought before it and to emphasize that
references in the Convention to the duty to cooperate are more than empty rhetoric.
Chapter 7
Straits Used for International Navigation*
I Introduction
The UN Convention on the Law of the Sea was the product of a detailed re-examina-
tion of all issues relating to the law of the sea extending over a period of more than
twelve years. In the words of its preamble, the Convention was seen as an important
contribution to the maintenance of peace, justice and progress for all peoples of the
world`. The Convention contains numerous signifcant provisions, amongst which
must be included Part III concerning straits used for international navigation. The
formulation of the articles in Part III was an important element in the overall solution,
reached at the conference, to the question of maritime limits, since establishing 12
nm as the maximum breadth of the territorial sea was acceptable to many delegations
only on the basis of a satisfactory regime for passage through straits used for interna-
tional navigation. At the same time, Part III represents a balance between the interests
of States bordering busy straits in such matters as security, safety and protection of
the environment, and the interests of other States in the freedom of communications.
The purpose of this article is to provide insights into the terms of Part III as a whole,
as well as a detailed commentary on the individual articles.
* First published in volume 60 of the British Yearbook of International Law (1989) 159-204.
The text is re-published with the consent of the co-author, Ambassador Satya Nandan.
118 Chapter 7
A The Evolution of the Law on International Straits 18941970
Unlike several parts of the Convention (including Part II concerning the territorial
sea and contiguous zone and Part VII concerning the high seas), the wording of Part
III was not based on any of the Conventions on the Law of the Sea adopted by the
First UN Conference on the Law of the Sea of 1958. This is not to say that Part III did
not have antecedents: Part III is the latest of several attempts by international lawyers
and governmental conferences to set down in the form of articles the rules of law ap-
plicable to straits. The frst attempts were made by the Institut de Droit International
and the International Law Association (ILA) between 1894 and 1906 in their Rules
relating to territorial Waters. In the form adopted by the ILA in 1906 the Rules con-
tained the following about straits:
ART. 10. Les dispositions des articles prcdents sappliquent aux dtroits dont lcart
nèxcede pas douze milles, sauI les modifcations et distinctions suivantes:
1 Les dtroits dont les ctes appartiennent des tats diffrents font partie de la mer
territoriale des tats riverains, qui y exerceront leur souverainet jusqu la ligne
mdiane.
2 Les dtroits dont les ctes appartiennent au mme tat et qui sont indispensables
aux communications maritimes entre deux ou plusieurs tats autres que ltat ri-
verain font toujours partie de la mer territoriale du riverain, quel que soit le rappro-
chement des ctes. Ils ne peuvent jamais tre barrs.
3 Dans les dtroits dont les ctes appartiennent au mme tat, la mer est territoriale
bien que lcartement des ctes dpasse douze milles, si chaque entre du dtroit
cette distance nest pas dpasse.
4 Les dtroits qui servent de passage dune mer libre une autre mer libre ne peuvent
jamais etre barrs.
ART. 11. Le rgime des dtroits actuellement soumis des conventions ou usages
speciaux demeure rserv.
(The words in italics were the modifcations made by the ILA to the Rules adopted
by the Institut in 1894.)
1
The League of Nations Conference of 1930 marked another attempt to formulate
articles: the Hague Conference considered the question of the territorial sea in its
Second Committee. The report of Sub-Committee No. II discussed the question of
straits and included the following:
PASSAGE OF WARSHIPS THROUGH STRAITS
Under no pretext whatever may the passage even of warships through straits used for
international navigation between two parts of the high sea be interfered with.
According to the previous Article the waters of straits which do not form part of the high
sea constitute territorial sea. It is essential to ensure in all circumstances the passage of
1 Annuaire de lInstitut de Droit International, Abridgement (19289), vol. 3, p. 393; Re-
port of the Seventeenth Conference of the ILA (1906), pp. 11416.
119 Straits Used for International Navigation
merchant vessels and warships through straits between two parts of the high sea and
forming ordinary routes of international navigation.
2
The question of the law of international straits was reviewed fully in a learned treatise
by Brel, written in the late 1930s and published in English in 1947. His conclusion
was that such straits had a legal position which was sui juris, i.e. separate from the
law of innocent passage through the territorial sea.
3
The law was clarifed in 1949 by the International Court oI Justice: in its judgment
in the Corfu Channel case, the Court held that:
States in time of peace have a right to send their warships through straits used for
international navigation between two parts of the high seas without the previous authori-
zation of a coastal State, provided the passage is innocent. Unless otherwise prescribed in
an international convention, there is no right for a coastal State to prohibit such passage
through straits in time of peace.
4
The Court thus stated some basic rules of customary law about passage through straits
used for international navigation, rules which applied to all ships and which did not
depend upon the precise legal status of the waters forming such a strait.
The wide signifcance oI this decision was not Iully refected in the draIt articles oI
the International Law Commission
5
which formed the basic proposal at the Geneva
Conference on the Law of the Sea. As a result, the question of passage through straits
was treated in the Convention on the Territorial Sea and the Contiguous Zone of 1958
as an incidental aspect of the right of innocent passage through the territorial sea.
Thus Article 16(4) provided that:
There shall be no suspension of the innocent passage of foreign ships through straits
which are used for international navigation between one part of the high seas and another
part of the high seas or the territorial sea of a foreign State.
2 ConIerence on the Progressive Codifcation oI International Law, Publications of the
League of Nations V: Legal Questions, 1930. The Report also appears in American Jour-
nal of International Law, 24 (1930), Supplement: OIfcial Documents, p. 234 at p. 253.
3 Brel, International Straits (1947), vol. 1, pp. 389. Another leading authority is Baxter,
The Law of International Waterways (1964), esp. pp. 159 ff. For a modern authority, see
OConnell, The International Law of the Sea, vol. 1 (1982), p. 327.
4 ICJ Reports, 1949, p. 4, at p. 28. In the authentic French text, the key phrases are le droit
de Iaire passer leurs navires de guerre par les dtroits qui servent, aux fns de la naviga-
tion internationale, mettre en communication deux parties de haute mer .
5 Report of the ILC, in Yearbook of the ILC, 1958, vol. 2, pp. 254 ff., esp. draft Article
17(4).
120 Chapter 7
This paragraph was described by a participant in the Conference as a universally
recognised rule of general international law;
6
but the question of straits was not dealt
with generally and even less as a separate topic.
B The UN Committee on the Peaceful Uses of the Sea-Bed (the Sea-Bed
Committee)
The change in approach adopted at the Third Conference was prompted by the wider
acceptance of the twelve-mile limit for the territorial sea which had become apparent
in the 1970s. The change frst Iound expression in the draIt articles on the breadth oI
the territorial sea and straits submitted to the UN Sea-Bed Committee in 1971 by the
United States. Draft Article II provided that:
In straits used for international navigation between one part of the high seas and another
part of the high seas or the territorial sea of a foreign State, all ships and aircraft in tran-
sit shall enjoy the same Ireedom oI navigation and overfight, Ior the purpose oI transit
through or over such straits, as they have on the high seas.
7
In 1972, the Soviet Union made a similar proposal (but confned to straits linking two
parts of the high seas) which went on to elaborate more detailed rules for the exercise
oI the Ireedoms oI navigation and oI overfight through straits.
8
Later that year, the
List of Subjects and Issues relating to the Law of the Sea adopted by the Sea-Bed
Committee included item 4:
Straits used for International Navigation
4.1 Innocent Passage
4.2 Other Related Matters including the Question of the Right of Transit.
9
The List of Subjects and Issues was, in effect, the substantive agenda for the Third
ConIerence and the inclusion oI a separate item about straits marked a signifcant de-
velopment. In the Sea-Bed Committee (and indeed during much of the Conference),
the views were pressed that there was no separate body of law about straits and that
the rules about innocent passage through the territorial sea applied to them (subject
to some qualifcations). However, those views did not prevail: the predominant opin-
6 Fitzmaurice, Some Results of the Geneva Conference, International and Comparative
Law Quarterly, 8 (1959), p. 73 at p. 101. See also Article 5(6) of the Convention on the
Continental Shelf: the reference to recognized sea lanes essential to international navi-
gation includes straits used for international navigation.
7 Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor
beyond the Limits of National Jurisdiction, A/8421, p. 241. Article I provided for a maxi-
mum breadth of the territorial sea of 12 nm.
8 Report of the Committee, A/8721, p. 162.
9 Report to the General Assembly, A/8721, p. 5. (Item 2 concerned the territorial sea and
Item 3 the contiguous zone.)
ion was that the question of passage through straits used for international navigation
should be treated separately from that of passage through the territorial sea. It is that
opinion, based on customary law and the needs of the contemporary situation, which
fnds expression in Part III.
C The Work of the Fiji/UK Group
At the Conference, rival proposals were tabled which would have given expression
to these two different approaches. Supporting the approach of separate treatment for
straits, the UK put forward a set of draft articles in two parts, one on territorial sea and
the other on straits;
10
and separate proposals on straits were tabled by Bulgaria and
certain other States.
11
The UKs proposals on straits put forward the concept of the
right of transit passage, which, though an extensive right in content, was not the same
as Ireedom oI navigation and overfight, as had been proposed by the US in 1971 and
the Soviet Union in 1972. Supporting the other approach, a group of delegations led
by Malaysia
12
proposed to deal with straits in the context of the territorial sea, apply-
ing to straits the regime oI innocent passage with modifcations. The proposals by
Fiji
13
were stated to be without prejudice to the Conferences decision on the issue
oI the approach; but, signifcantly, the point oI departure in the Fiji paper was that
submarines might pass in straits under water, thereby accepting a distinction between
the territorial sea in general and straits a distinction which formed the basis for the
later compromise between the Fijian and British proposals. The Fijian proposals also
dealt in detail with the question of the legislative powers of straits States. The two
diIIerent approaches, as well as the Fijian proposals, were refected in the document
entitled Main Trends, produced by the Second Committee in 1974.
14
10 A/CONF. 62/C.2/L. 3. Some amendments were proposed by Denmark and Finland (ibid.,
L. 15).
11 Ibid., L. 11. Bulgaria et al. put forward proposals about passage through the territorial
sea in ibid., L. 26. Algeria proposed free transit in straits for ships other than warships
which were to enjoy the right of innocent passage (ibid., L. 20). Iraq proposed freedom
of navigation in straits customarily used for navigation (ibid., L. 71).
12 Ibid., L. 16. The group consisted of Malaysia, Morocco, Oman and Yemen and the pro-
posal was sometimes referred to in the Second Committee as the Oman draft. A similar
approach to that of L. 16 was implicit in the proposals by Spain (ibid., L. 6) and Iran
(ibid., L. 72). The difference between the two different schools of thought was brought
out clearly in a statement by Mr Lacleta (Spain) during the 14th meeting of the Sec-
ond Committee (UNCLOS III Official Records (hereinafter Official Records), vol. II, pp.
1367).
13 A/CONF. 62/C.2/L. 19, repeating with modifcations proposals advanced in Sea-Bed
Committee in 1973 (A/AC. 138/SC II/242). Fiji`s proposals oI 1973 infuenced those
of the UK about passage through the territorial sea in A/CONF. 62/C.2/L. 3. In tabling
the revised proposals in ibid., L. 19, Fiji indicated in an Explanatory Note an open mind
about the regime or regimes applicable to the passage of foreign ships through straits.
14 Official Records, vol. III, p. 107 at p. 115. A footnote reads: For some delegations, straits
used for international navigation which are part of the territorial sea of one or more states,
122 Chapter 7
Informal consultations had been held in 1974 between the British and Fijian del-
egations about questions of navigation and, in particular, the formulations of the rules
on innocent passage in their respective sets of draft articles. In 1975 it was decided
after further consultation to create a group of delegations from the different regional
groups under the joint chairmanship of Mr Nandan (Fiji) and Mr Dudgeon (UK), the
so-called Private Working Group on Straits used for International Navigation or the
Fiji/UK Group. Attendance was by joint invitation of the Co-Chairmen who sought
a cross-section of moderate opinion, drawn from all regional groups and including
straits States and delegations with a particular interest in sea-borne trade or questions
oI limits oI the territorial sea and EEZ. The frst meeting on 25 March 1975 was at-
tended by 14 delegations: Argentina, Bahrain, Denmark, Ethiopia, Fiji, Iceland, Italy,
Kenya, Lebanon, Nigeria, Singapore, the UK, United Arab Emirates and Venezuela
(subsequent meetings were attended also by Australia, Bulgaria and India).
15
The
objective was explained as being to continue to seek accommodation between the
proposals of Fiji and the UK on straits, in order to achieve a sound balance between
the interests of States bordering straits and maritime nations.
In the discussion, it was noted that unimpeded passage of straits was one of three
major issues, the others being the twelve-mile territorial sea and the 200-mile EEZ.
Whilst passage should be unimpeded, it was pointed out that the cases of merchant
ships, surface warships, submarines and nuclear-powered vessels (civil or military)
would have to be considered, as well as overfight. The distinction was brought out
between the regime oI navigation and overfight, on the one hand, and the nature
of the waters, on the other. Another distinction drawn was between straits linking
two parts of the high seas/EEZ and those linking the high seas/EEZ to the territorial
sea, on the grounds that the balance of interests differed between the two situations.
The view was expressed that even in the frst type oI situation, complete Ireedom oI
navigation could not be accepted although freedom in the sense of non-discrimina-
tion should be granted. Concern for the interests of developing States was voiced.
Responding to these points, the Co-Chairmen pointed out that the UK and Fiji draft
articles had not proposed complete freedom of navigation such as existed on the high
seas since passage had to be, for example, expeditious, without threat to the straits
States and in compliance with international regulations. All types of vessels required
to make passage; but passage must be effected in a way which did not prejudice the
interests of coastal States in the narrow stretches of water forming straits. The ques-
tion of nuclear vessels was being considered elsewhere in the conference. The need
for submerged passage had to be considered in the context of its powerful backing
and the safeguards offered to straits States.
AIter discussing the issues, the members oI the Group agreed at the end oI the frst
meeting to continue work on the basis that there should be a regime for straits which
Iall, except Ior some specifc rules . under the same legal regime as that oI any other
portion of the territorial sea.
15 Nordquist (ed.), United Nations Convention on the Law of the Sea 1982: A Commentary,
vol. I (1985), p. 107, gives the same list but excluding Ethiopia and Lebanon whose rep-
resentatives did not attend the fnal meetings oI the Group.
was separate from the regime of innocent passage applicable to the territorial sea in
general. The members of the Group then proceeded to discuss the nature of the re-
gime for straits during seven subsequent meetings ending on 18 April 1975. Between
meetings, individual members of the Group held detailed informal discussions with
many interested delegations outside the Group. In particular, in view of the link with
the question of archipelagic States, close contacts were maintained with Indonesia
and Malaysia: at the same time, major maritime powers such as the Soviet Union,
the United States, France, Japan and the FRG were consulted, as well as straits States
such as Morocco. The Co-Chairmen were especially active in those discussions.
On 30 April 1975, the Co-Chairmen circulated to all delegations the set of draft
articles
16
which resulted from the Groups work and which represented what they
described as a broad consensus of the members. They explained that the principal
basis of our work had been the straits chapter of document A/CONF. 62/C.2/L. 3;
but several substantive changes were made by the Group, notably those concerning
the defnition oI transit passage, the legislative powers oI States bordering straits, the
designation of sea lanes and the status of the waters forming straits, as well as minor
changes of wording.
The Chairman of the Second Committee took account of the Groups work in pre-
paring his informal single negotiating text.
17
His main changes affected the structure
of the draft articles, including the introduction of three sections (general provisions,
transit passage and innocent passage) which brought greater clarity to the text. Whilst
this part of the ISNT remained controversial, the subsequent changes to the text were
minor and the Conference accepted what became Part III as part of the overall solu-
tion to the issue of limits.
18
D The Categorization of Straits in Part III
The Conference attempted to make provision for navigation in all straits. However,
circumstances of history and geography vary greatly from one strait to another, and
so it was found appropriate to make different provision for different situations. For
these reasons, the Convention in effect divided straits into several categories, with
rules which may be summarized as follows:
(a) Straits not used for international
navigation;
Not subject to Part III.
Part II may apply to those areas in
such straits which are territorial sea
and Parts V, VI and VII apply to ar-
eas beyond the territorial sea.
(b) Broad straits which have a high
seas/EEZ route through them;
and
16 Platzoder (ed.), Third United Nations Conference on the Law of the Sea: Documents, vol.
4 (1983), p. 194.
17 A/CONF. 62/WP.8/Part II, Articles 34 to 44.
18 Statements were made about different aspects of Part III upon signature of the Conven-
tion by Finland, Greece, Iran, Iraq, Oman, Spain and Sweden.
124 Chapter 7
(c) Straits subject to their own long-
standing regimes;
(d) Straits not covered by (b) or (c)
and used for international naviga-
tion:
Part III applies to the question of
passage.
(i) Straits between two parts of the
high seas/EEZ, apart from those
subject to the exception in Article
38(1),
Part III, Section 2 applies, i.e. tran-
sit passage.
(ii) Straits between the high seas/EEZ
and the territorial sea of a foreign
State, and
Part III, Section 3 applies, i.e. non-
suspendable innocent passage.
(iii) Straits excluded from Article
38(1).
Two Iurther points may be noted: frst, those straits which are situated within an ar-
chipelagic State are subject to Part IV; and, secondly, there is no reference in Part III
to the idea of historic straits to parallel the reference to historic bays in Part II.
E The Interpretation and Application of Part III as a Whole
In construing and applying Part III, the normal rules of international law on the inter-
pretation of treaties, as set out in the Vienna Convention on the Law of Treaties,
19
are
applicable. At the same time, there are some general points which may be noted:
1. The way in which geographical factors should be approached;
2. The question of what is meant by the expression a strait used for international
navigation;
3. The differences between transit passage, archipelagic sea lanes passage and in-
nocent passage.
1 Geographical Factors
Part III contains several important geographical references, such as those to straits
formed by an island and mainland, as well as to straits between one part of the
high seas and another. In putting forward their proposals at Caracas,
20
the UK del-
egation had available a set of chartlets illustrating such features as the wide strait
(with or without a suitable route beyond twelve-mile limits throughout its length),
the strait giving access to the territorial sea of a foreign State, the strait lying between
the mainland and an island of the coastal State, and so on. Geographical factors are
of crucial importance in construing the provisions of Part III and, indeed, in deciding
19 Articles 31 to 35 set out rules of international law.
20 Notably, at the time when the Second Committee considered Agenda Item 4: see the
statement by Mr Dudgeon (UK) on 22 July 1974 (Official Records, vol. II, pp. 1256). A
set of chartlets is appended to this chapter.
what constitutes a strait`, since the term was not accompanied by a Iormal defnition.
The Concise Oxford Dictionary defnes the word to mean a narrow passage oI water
connecting two seas or larger bodies of water; it comes from the Latin root strictus.
The defnition`s use oI the word passage` is worthy oI special note.
How, then, should geographical factors be approached? The best approach is to
take into account the terms of the articles as well as all the relevant geographical and
other factors, i.e. to adopt something of a common-sense interpretation. A strictly
literal (or mechanical) interpretation could well be found to be inappropriate in
certain settings. Each geographical situation is unique and many published maps are
drawn to a small scale which does not permit the inclusion of every natural feature.
At the same time, some features may not be relevant to the question of how to apply
Part III. It may be the case, to take the last example, that a strait is formed by a main-
land and two islands of a coastal State, with the mainland on one side and the two
islands on the other. In such a case, the fact that there are two islands rather than one
is hardly a material factor for the purposes of Article 38(1). To take another example,
if a mainland is masked by an elongated island close to the coast so that strictly a
strait is formed between that island and another belonging to the same State, it would
be consonant with the intention behind Part III to assimilate the elongated island to
the mainland for the purpose of applying Part III. An overly mathematical approach
to straits would appear to be out of harmony with the principles of Part III. Its terms
have to be construed in their context, which has to do with questions of passage
something refected in the dictionary defnition oI the word strait`. This approach
is also consistent with that of the ICJ in the Fisheries case (UK v. Norway),
21
as well
as more recently in the Libya/Malta case.
22
2 The Question of Use
The second issue that of a straits use for international navigation is also crucial:
it was a source of much discussion and even controversy at the Conference. The test
of use comes from the ICJs decision in the Corfu Channel case and the Courts
analysis of the idea retains its value. It will be recalled that after appraising certain
evidence, the Court continued:
The Albanian Government does not dispute that the North Corfu Channel is a strait in the
geographical sense; but it denies that this Channel belongs to the class of international
highways through which a right of passage exists, on the grounds that it is only of sec-
ondary importance and not even a necessary route between two parts of the high seas,
21 ICJ Reports, 1951, p. 116. In its judgment the Court stated that the rule whereby base-
lines must respect the general direction of the coast was devoid of any mathematical
precision (at pp. 1412).
22 ICJ Reports, 1985, p. 13. The Court found that weighing up the relevant considerations
in adjusting an equidistance line in order to achieve an equitable result was not a process
which can inIallibly be reduced to a Iormula expressed in actual fgures` (at p. 52).
126 Chapter 7
and that it is used almost exclusively Ior local traIfc to and Irom the ports oI CorIu and
Saranda.
It may be asked whether the test is to be Iound in the volume oI traIfc passing through
the Strait or in its greater or lesser importance for international navigation. But in the
opinion of the Court the decisive criterion is rather its geographical situation as connect-
ing two parts of the high seas and the fact of its being used for international navigation.
Nor can it be decisive that this Strait is not a necessary route between two parts of the
high seas, but only an alternative passage between the Aegean and the Adriatic Seas. It
has nevertheless been a useIul route Ior international maritime traIfc.
23
The Court concluded that the North Corfu Channel should be considered as belong-
ing to the class of international highways through which passage cannot be prohib-
ited by a coastal state in time of peace.
There exists a temporal problem with the word used. In French, the equivalent
is servant, a present participle, or serving, which suggests that use at the time
when the question arises is what really matters. If so, evidence of past use, whilst
relevant in showing a pattern, is oI lesser signifcance. In the normal case, very slight
or short-lived use would be insuIfcient; but in certain circumstances limited use
brought about by, say, an oil discovery may quickly put a strait into the category of
those used for international navigation. Purely potential use would not appear to be
suIfcient: there should be actual use when the question Ialls to be decided. Taking
the English and French texts together, used and servant can be said to be in the
present continuous.
Finally on use, it has to be remembered that proposals at different times to insert
an adverb such as normally, customarily or traditionally before used have been
rejected. The ILC expressed the opinion that it would be in conformity with the
Courts decision [in the Corfu Channel case] to insert the word normally,
24
but this
formulation was not accepted by the First UN Conference on the Law of the Sea.
25
Proposals were put forward at the Third Conference by Algeria and others
26
and by
23 ICJ Reports, 1949, p. 4 at p. 28. This aspect of the judgment was criticised by Brel in
an article entitled Some Observations on Two of the Statements concerning the Legal
Position of International Straits. Brel recalled his conclusion in International Straits
(1947) that only those straits that are of some, not quite inconsiderable, importance to
the international sea-commerce, enjoy the peculiar legal position of straits, and went on
to argue that the CorIu Channel Iulfls none oI these conditions`. Brel described the
Corfu Channel as a typical dtroit latral or water dividing an island from a mainland
the importance oI which can never be suIfcient to qualiIy them as 'international` (Fest-
schrift fr R. Laun (1953)). This distinction has now been recognized in Articles 38(1)
and 45 of the Convention, but the application of those Articles to the particular case of
the Corfu Channel is not entirely clear.
24 Yearbook of the ILC, 1956, vol. 2, p. 273.
25 A/CONF. 13/C.1/SR. 34.
26 A/CONF. 62/C.2/L. 44.
Iraq
27
employing the term customarily used`. Canada proposed a defnition oI inter-
national strait` which included the qualifcation that it has traditionally been used Ior
international navigation.
28
Chile spoke in favour of traditional use in the Second
Committee on 23 July 1974
29
and a similar proposal was advanced by Canada, Chile
and Norway in an aide-mmoire dated 30 April 1975,
30
commenting upon the Fiji/UK
Groups draft articles. However, the Chairman of the Second Committee did not in-
clude customarily`, traditionally`, or any similar qualifcation upon the word used`
in framing his ISNT.
31
In contrast, Article 53 (Right of Archipelagic Sea Lanes Pas-
sage) provides for that right to apply in all normal passage routes used as route for
international navigation or overfight` (paragraph 4): iI an archipelagic State does not
designate sea lanes or air routes, the right may be exercised through routes normally
used for international navigation (paragraph 12) (emphasis added). This contrast is
signifcant since in many other respects the right oI archipelagic sea lanes passage is
set out in the same terms as the right of transit passage. The omission of normally
from Part III means that any type of use may be relevant: no evidence of use is to be
excluded a priori, e.g. as non-traditional or exceptional. Use which is recent or novel,
as well as use in the more remote past, may be taken into account. Use does not have
to be regular or to reach any predetermined level. It may be civil or military, or both,
so long as the military use does not threaten the coastal State. Secondary or subsidi-
ary straits which are not indispensable for international navigation may nevertheless
count as ones used for international navigation so long as they connect two parts of
the high seas/EEZ. The exact regime of passage through such a strait is, of course,
a separate question and it is to be anticipated that international tribunals would have
regard to all the relevant considerations of law and fact, including geography, in com-
ing to a decision.
The reference to international navigation, taken together with references to the
high seas/EEZ, exclude use oI a strait Ior cross traIfc between ports on the strait,
even if shipping moves thereby from one States territory to anothers.
3 Differences between the Regimes of Passage
Turning to the differences between the regimes of transit passage, archipelagic sea
lanes passage and innocent passage, these emerge from detailed comparisons of the
texts of Parts III, IV and II. On the broader level, the differences between the right of
transit passage and the right oI innocent passage are oI great signifcance, especially
in their strategic aspect. Both are regimes of passage: in other words, under either
regime ships may in principle pass. However, the right of innocent passage may be
suspended in certain circumstances; it is not available to aircraft, and submarines are
27 Ibid., L. 71.
28 Ibid., L. 83.
29 Official Records, vol. II, p. 138 (14th meeting).
30 Platzoder, op. cit. above (n. 16), p. 223.
31 A/CONF. 62/WP.8/Part II.
128 Chapter 7
required to pass on the surface. Transit passage may not be suspended; it is available
to aircraft, and may be exercised by submarines submerged. The distinctions are
justifed by the consideration that transit passage exists where there is no alternative
route or none of equal convenience. The differences between the right of transit pas-
sage and that of archipelagic sea lanes passage are not so marked: indeed, much of
the wording of Article 53 was taken verbatim from what became Part III. Article 53
contemplates the possibility of there being designated sea lanes and air routes which
traverse the whole of an area of archipelagic waters, whereas Part III makes no provi-
sion for the designation of air routes in straits and sea lanes need not run for the entire
length of a strait. The distinction arises from the geographical circumstances in the
two cases. Whereas a strait is a relatively narrow strip of water, an archipelago often
has islands more than 24 nm apart between which international sea routes pass. It was
necessary, thereIore, to devise a system which would confne the exercise oI archi-
pelagic sea lanes passage within certain limits. In practice, however, the differences
between these two regimes oI passage may be insignifcant since ships and aircraIt
in transit can be expected to remain within the bounds of routes normally used for
international navigation.
F Part III and Customary Law
Part III represents both codifcation and progressive development oI customary law.
The fundamental principles laid down by the ICJ in the Corfu Channel case have
been retained and elaborated: this was achieved in the context of a consensus that
12 nm should be accepted as the maximum breadth of the territorial sea.
32
Many of
the detailed rules take account of modern developments such as sea lanes and traf-
fc schemes, and these rules too contain elements oI codifcation and development
of the law. The article attempted to strike a balance between the interests of coastal
States and other States; between the security and other interests of the former and
the general interest in freedom of commerce and communication; between self-pro-
tection and self-defence, on the one hand, and freedom of the seas and the freedom
oI communications on the other. The coastal State on a strait would not be justifed
in seeking to take advantage of its geographical situation in order to interfere with
international communications; but, at the same time, its legitimate interests are safe-
guarded in relation to its coasts and waters within the strait. Although the precise bal-
ance proposed during the frst part oI the ConIerence was resisted by several States
bordering straits, the terms of Part III which resulted from long debates eventually
32 A good number of straits used for international navigation are less than 24 nm wide. Of
the 33 examples in the study prepared for the First UN Conference on the Law of the
Sea in 1958, 32 are less than twice 12 nm wide and so are made up of territorial sea if
the maximum permissible breadth of the territorial sea is taken by the coastal State(s)
concerned (A/CONF. 13, Official Records, vol. 1, pp. 114 f.). In the State Departments
table of Widths of Selected Straits and Channels, 108 out of 136 straits are less than 24
nm wide (Geographic Bulletin, No. 3, 1965).
achieved consensus
33
and so represent negotiated solutions in the overall context. It
is likely, thereIore, that Part III will infuence the practice oI States both beIore and
after the entry into force of the Convention.
34
33 Although votes were taken on proposals by Spain to amend Articles 39 and 42 (Official
Records, vol. XVI, pp. 1323, 176th plenary meeting).
34 The following is an example:
JOINT DECLARATION BY THE GOVERNMENT OF THE UNITED KINGDOM AND
THE GOVERNMENT OF THE FRENCH REPUBLIC
On the occasion of the signature of the Agreement relating to the Delimitation of the Ter-
ritorial Sea in the Straits of Dover, the two Governments agreed on the following declara-
tion:
The existence oI a specifc regime oI navigation in the straits is generally accepted in the
current state of international law. The need for such a regime is particularly clear in straits,
such as the Straits of Dover, used for international navigation and linking two parts of the
high seas or economic zones in the absence of any other route of similar convenience with
respect to navigation.
In consequence, the two Governments recognise rights of unimpeded transit passage for
merchant vessels, state vessels and, in particular, warships following their normal mode
oI navigation, as well as the right oI overfight Ior aircraIt, in the Straits oI Dover. It is
understood that, in accordance with the principles governing this regime under the rules of
international law, such passage will be exercised in a continuous and expeditious manner.
The two Governments will continue to co-operate closely, both bilaterally and through
the International Maritime Organisation, in the interests of ensuring the safety of navigation
in the Straits of Dover, as well as in the southern North Sea and the Channel. In particular,
the traIfc separation scheme in the Straits oI Dover will not be aIIected by the entry into
force of the Agreement.
With due regard to the interests of the coastal states the two Governments will also take,
in accordance with international agreements in force and generally accepted rules and regu-
lations, measures necessary in order to prevent, reduce and control pollution of the marine
environment by vessels.
2 November 1988
130 Chapter 7
II Part III of the Convention: Text and Commentary
SECTION I: GENERAL PROVISIONS
Article 34
Legal status of waters forming straits used for international navigation
1. The regime of passage through straits used for international navigation established
in this Part shall not in other respects affect the legal status of the waters forming
such straits or the exercise by the States bordering the straits of their sovereignty or
jurisdiction over such waters and their air space, bed and subsoil.
2. The sovereignty or jurisdiction of the States bordering the straits is exercised sub-
ject to this Part and to other rules of international law.
Section 1, which consists of three articles, deals with several general points of a
miscellaneous nature.
Article 34 stands in relation to Part III as Article 2 stands in relation to Part II: both
defne the legal status oI the waters to which the respective Parts apply.
The formal proposals made to the Second Committee about straits used for in-
ternational navigation
35
included Article 1(3)(b) of the draft articles of Bulgaria and
other co-sponsors to the effect that the provisions of this Article shall not affect
the sovereign rights of the coastal States with respect to the surface, the sea-bed and
the living and mineral resources of the straits. During informal discussions in the
Fiji/UK Group, disquiet was expressed about the possible effects of the proposals
submitted by the UK upon other aspects of the waters forming straits. In particular,
concern was expressed about possible prejudice to the coastal States sovereignty
over its internal waters and territorial sea within a strait, including its jurisdiction
over such matters as fsheries. In order to allay these Iears, the Group developed the
wording which became Article 34. The wording was included by the Chairman of the
Second Committee in his ISNT
36
and retained in subsequent texts.
37
Article 34(1) makes it clear that Part III applies only to the question of passage
through straits used for international navigation. It does not apply to such questions
as whether the waters within such a strait are territorial sea, or high seas, or internal
or archipelagic waters, nor to any questions oI fshing, baselines, delimitation and the
like. In other words, although it is entitled straits used for international navigation,
Part III does not in Iact apply to all aspects oI such straits: it is confned to the ques-
35 A/CONF. 62/C.2/L. 3 (UK) (and amendments in L. 15 (Denmark and Finland), L. 6
(Spain), L. 11 (Bulgaria et al.), L. 16 (Malaysia et al.), L. 19 (Fiji), L. 20 (Algeria),
L. 71 (Iraq) and L. 72 (Iran), as well as defnitions in L. 44 (Algeria et al.) and L. 83
(Canada)).
36 A/CONF. 62/WP 8/Part II, Article 34(1) and (2).
37 Despite some criticism (e.g. Spain, A/CONF. 62/WS/12) and some informal amendments
(C2/Informal Meeting 4 (Spain), 17 (Greece) and 22 (Morocco), none of which were ac-
cepted).
tion of passage in such straits. Article 34(1) speaks about the regime of passage
established in this Part: this is a reference to the right of transit passage (Section 2)
and the right of innocent passage (Section 3) in the different types of straits used for
international navigation. The regime of passage affects the legal status of the waters
forming straits used for international navigation to the extent that the waters are
subject to that regime in accordance with Part III.
38
But in all other respects, the legal
status of the waters is not affected. Equally unaffected is the exercise by the States
bordering straits of their sovereignty or jurisdiction over the waters (including the
sea-bed and subsoil and the air space) forming the straits.
Article 34(2) provides that (i) the sovereignty of a State bordering a strait over its
internal waters and territorial sea within a strait, and (ii) its jurisdiction over any areas
of its EEZ or continental shelf within a strait, have both to be exercised subject to
(a) Part III as regards passage through the strait, and (b) other rules of international
law, e.g. those on the non-use of force or delimitation.
39
In other words, in so far
as non-navigational questions may arise, other rules of international law, including
other Parts of the Convention, apply. Amongst other provisions in the Convention,
Article 233 (safeguards with respect to straits used for international navigation) may
be noted: this permits a State bordering such a strait to take appropriate enforcement
measures in the case where a merchant ship has violated the States laws and regula-
tions, thereby causing or threatening major damage to the marine environment of the
straits.
Article 35
Scope of this Part
Nothing in this Part affects:
(a) any areas of internal waters within a strait, except where the establishment a straight
baseline in accordance with the method set forth in article 7 has the effect of enclos-
ing as internal waters areas which had not previously been considered as such;
(b) the legal status of the waters beyond the territorial seas of States bordering straits as
exclusive economic zones or high seas; or
(c) the legal regime in straits in which passage is regulated in whole or in part by long-
standing international conventions in Iorce specifcally relating to such straits.
Article 35 sets out three separate saving provisions for cases not intended to be af-
fected by Part III: in brief, they are (a) internal waters, (b) the status of waters beyond
the territorial sea and (c) straits in which passage is regulated by existing treaties.
38 In Article 49(4), the comparable provision in Part IV (Archipelagic States), there appears
additionally a reference to the resources contained in the sea-bed, etc.: there can be no
doubt that Article 34(1) also applies to any resources in the subsoil etc.
39 Similar provisions are contained in Articles 2(3) concerning the territorial sea and 49(3)
concerning archipelagic waters. The precise meaning of the reference to other rules of
international law may not always be entirely clear in practice.
132 Chapter 7
Case (a)
The origins of sub-paragraph (a), which concerns certain areas of water which are
excluded, can be traced to proposals describing which straits were included. Thus,
Article 1(3) of the UKs proposal
40
was that transit passage should apply to any strait
or other stretch of water, whatever its geographical name which (a) is used for inter-
national navigation and (b) connects two parts oI the high seas`. A Canadian defni-
tion
41
of straits required that they should be naturally formed, should lie within the
territorial sea and should have been traditionally used for international navigation.
In 1975, the Fiji/UK Group considered the defnition: the resulting text applied to .
any strait (which term includes any naturally-formed stretch of water whatever its
geographical name) .
42
In an aide-mmoire
43
dated 30 April 1975, Canada, Chile
and Norway pointed out that on the basis of the Corfu Channel case and Article 16(4)
of the Convention on the Territorial Sea and the Contiguous Zone of 1958 (hereinaf-
ter the CTSCZ), the law on straits applied to only those that lie within the territorial
sea of one or more States and that the proposed wording would negate the regime
of internal waters behind straight baselines drawn by many States. In his ISNT, the
Chairman of the Second Committee tried to take account of the three delegations
concerns
44
by excluding from the application of Part III any areas of internal waters
which had been considered as part of the high seas or territorial sea prior to the draw-
ing of straight baselines.
45
Subject to drafting changes, this approach was accepted
by the Conference in Article 35(a).
In the result, sub-paragraph (a) means that the rules about passage in Part III do not
affect any areas of internal waters within a strait, unless those areas become internal
waters as a result of the drawing of straight baselines in accordance with the method
set Iorth in Article 7. Internal waters are defned by Article 8(1), i.e. waters on the
landward side of the baseline of the territorial sea, and in the normal case there are
no rights of passage, whether innocent or transit passage, through such waters. The
exception implies that straight baselines may be drawn within or across straits so
long as the criteria set out in Article 7 are satisfed. The exception is consistent with
the rule in Article 8(2) concerning the maintenance of the right of innocent passage.
Articles 8(2) and 35(a) both use the formula in accordance with the method set forth
in Article 7: this wording was intended to be capable of applying to baselines drawn
in the past, as well as to ones to be drawn in the future, so long as the method set out
in Article 7 was followed.
40 A/CONF. 62/C.2/L. 3.
41 A/CONF. 62/C.2/L. 83.
42 Platzoder, op. cit. above (n. 16), p. 194. The rest oI the defnition Iollowed the language
of L. 3.
43 Ibid., p. 223.
44 A/CONF. 62/WP.8/Part II, Article 35(a).
45 In accordance with the rules in Article 7.
Case (b)
This sub-paragraph was intended to clarify the position with regard to areas of water
lying within a strait and beyond but surrounded by the territorial sea of the coastal
State(s), the so-called pockets of high seas or EEZ. This situation is found in longer,
broader straits such as the Straits of Malacca, and it provoked questions from Malay-
sia in particular. The wording originated in Article 9 of the UKs proposals
46
to the
effect that pockets of high seas within a strait were not affected by the other provi-
sions about passage in the strait. The Chairman of the Second Committee included
in his ISNT similar wording as Article 36(b);
47
but he also made clear that pockets
of EEZ were equally not affected by the provisions about straits. Subject to changes
made in the Drafting Committee (notably the insertion of the word legal before
status in the interests of consistency), his approach was accepted.
Sub-paragraph (b) makes clear that the provisions of Part II do not affect the legal
status of any areas of water within a strait lying beyond the outer limit of the ter-
ritorial sea of the State or States bordering a strait: these pockets may be EEZ, or
high seas if the States concerned have not claimed EEZs (whether generally or in the
strait). As such, they would be subject to the regime of freedom of navigation and
overfight in accordance with Parts V and VII.
48
Sub-paragraph (b) is to similar effect
as Article 34(1).
Case (c)
This sub-paragraph excludes from the application of Part III a small number of straits
in regard to which there exists in each case a regime oI passage specifcally related
to that strait.
By way of background, it may be recalled that Article 25 of the CTSCZ stated:
The provisions of this Convention shall not affect conventions or other international
agreements already in force, as between Parties to them.
This approach was followed in the UKs proposals about straits
49
which included the
following Article 10:
The provisions of this Chapter shall not affect obligations under the Charter of the United
Nations or under conventions or other international agreements already in force relating
to a particular strait.
46 A/CONF. 62/C.2/L. 3: Nothing in this Chapter shall affect any areas of high seas within
a strait.
47 A/CONF. 62/WP.8/Part II, Article 36(b).
48 Especially relevant are Articles 58 and 87.
49 Loc. cit. above, n. 40.
134 Chapter 7
A slightly different approach was put forward by Bulgaria and other States: thus Ar-
ticle 1(3)(c) of their proposals read:
The provisions (c) shall not affect the legal regime of straits through which transit is
regulated by international agreements specifcally relating to such straits.
50
A clear example under both approaches was the Montreux Convention relating to
the Bosphorus and Dardanelles. Denmark and Finland submitted a proposal
51
(in
the form of an amendment to the UKs draft articles) advocating the maintenance
of the regime of non-suspendable innocent passage in straits having a width of less
than 6 nm, i.e. twice 3 nm. Sweden supported this approach on the grounds that it
was not fair to ask coastal States to give up the control over passage through narrow
straits that they had exercised for hundreds of years in accordance with the rules of
international law.
52
Whilst the idea of excluding some particular cases found a positive response in the
Fiji/UK Group, concern was expressed about the imprecise effects of the formulation
which had been proposed by the UK. Denmark was especially concerned with this
question in view of the regime in the Baltic Straits. As a result of discussions, some
revised wording, derived largely from that of the Bulgarian proposal, was produced,
as follows:
The provisions of this Chapter shall not affect the legal regime in straits in which pas-
sage is regulated in whole or in part by long-standing international conventions in force
specifcally relating to such straits.
53
In preparing his ISNT, the Chairman of the Second Committee accepted the results
of the discussions in the Group; but, instead of making a separate article, he incor-
porated the formula into his Article 35
54
and he changed the term legal regime to
legal status. The Chairmans approach in the ISNT was eventually accepted by
the Conference as Article 35(c) of the Convention, but the term legal regime was
reinstated.
Sub-paragraph (c) means that Part III does not affect the legal regime in certain
straits. This regime may be made up of the terms of the relevant convention and the
practice of States (including of course that of the coastal State) and would include
the regime of passage. The straits concerned are those in which passage is regulated
by long-standing conventions relating specifcally to those straits. The conventions
50 Ibid., L. 11.
51 Ibid., L. 15.
52 Official Records, vol. 2, p. 129 (12th meeting, 22 July 1974). Similar statements had been
made by Denmark and Finland in introducing their amendment (L. 15) at the 11th meet-
ing earlier that day (ibid., pp. 1245).
53 Article 10 of the draft articles produced by the Group, in Platzoder, op. cit. above (n. 16),
p. 194.
54 Loc. cit. above (n. 44).
may be bilateral or multilateral and may be any kind of treaty. The regulation may
be extensive, as in the case of the Montreux Convention of 1936 about the Turkish
straits, or may be partial, as in the cases of the Treaty of Copenhagen of 1857 about
the Danish Straits and the Treaty of 1881 between Argentina and Chile about the
Straits of Magellan. The term long-standing international conventions in force was
chosen with those examples in mind:
55
a brand new convention about another strait
somewhere in the world was not intended to count. In those straits to which Part III
does not apply by virtue of Article 35(c), the local, existing regime was expected by
the Conference to persist.
Article 36
High seas routes or routes through exclusive economic zones through straits used for
international navigation
This Part does not apply to a strait used for international navigation if there exists
through the strait a route through the high seas or through an exclusive economic
zone of similar convenience with respect to navigational and hydrographical char-
acteristics; in such routes, the other relevant Parts of this Convention, including the
provisions regarding the Ireedoms oI navigation and overfight, apply.
Article 36 was derived from Article 1(4) of the UK proposals,
56
which read:
Transit passage shall apply in a strait only to the extent that:
(a) an equally suitable high seas route does not exist through the strait;
The intention was that the right of transit passage should not exist through
what might be described as a broad strait: if the strait was rather more than 24 miles
wide, and had a good and wide enough high-seas route down the middle, it was unneces-
sary to provide a special right of transit passage since ships and aircraft could navigate
on the high seas through the strait
57
The Fiji/UK Group modifed the wording oI the proposal and reIerred to the absence
of a high seas route of similar convenience through the strait.
58
Similar conven-
55 In signing the Convention, Finland and Sweden each stated their understandings that the
exception from the transit passage regime provided for in Article 35(c) of the Convention
is applicable to the strait between Finland (Aaland Islands) and Sweden and that the
present legal regime in that strait will remain unchanged after the entry into force of the
Convention. The strait is subject to the regime created by the Convention of 20 October
1921 on the Non-Fortifcation and Neutralization oI the Aaland Islands, which includes
rules about passage through the archipelago.
56 A/CONF. 62/C.2/L. 3.
57 Official Records, vol. II, p. 125 (Mr Dudgeon, UK).
136 Chapter 7
ience was considered a better test than equal suitability in the original proposal
since exact equality may never be found at sea.
The Chairman of the Second Committee accepted the gist of the Groups proposal,
but recast it as a separate article of general application. Thus, his Article 36 read:
The provisions of this Part shall not apply to a strait used for international navigation if
a high seas route or a route through an exclusive economic zone of similar convenience
exists through the strait.
59
As will be seen, the Chairman introduced two new elements: frst, the article reIerred
not solely to the right of transit passage but rather to Part III as a whole; and, sec-
ondly, the article applied also to a route through waters having the status of EEZ as
well as to high seas routes.
In informal discussion in 1975, it was pointed out that the word convenience was
too broad a test by itselI and needed qualifcation by reIerence to conditions oI navi-
gation and hydrography, i.e. objective criteria. Thus the questions were posed: similar
to what? and convenient for whom? The similarly convenient route was intended to
be the one through the territorial sea in the strait and the convenience was that of the
user, not the coastal State. In revising the ISNT, the Chairman of the Second Com-
mittee accepted the need to clarify the scope of the words similar convenience
60
by adding the words with respect to navigational or hydrographic characteristics.
In interpreting the phrase as a whole, regard may be had to factors such as distance,
safety, the state of the sea, visibility, depth of water (including the presence of shal-
lows or shoals) and ease oI fxing a ship`s position. The balance may vary between,
say, a very large crude carrier and smaller coasters.
In further informal discussion in 1978, Yugoslavia suggested the addition to the
end oI the words: in such routes Ireedom oI navigation and overfight shall be main-
tained unimpeded.
61
A modifed Iormula
62
was circulated in 1980, but there were
doubts as to the need for it since Parts V and VII would apply to the waters in ques-
tion by virtue of their own terms. None the less, the Chairman of the Second Commit-
tee endorsed a Iurther modifed version oI the concluding phrase at the end oI Article
36 and this secured consensus at the Conference.
As a result, Article 36 excludes from the application of this Part every strait where
there is a similarly convenient route through the strait in the high seas or an EEZ. The
justifcation Ior transit passage or non-suspendable innocent passage does not exist iI
there is a route through the strait where ships of other States can remain outside the
territorial sea and can exercise rights of navigation under the regime of the high seas
or of the EEZ. But this route must be similarly convenient both in terms of naviga-
tion (e.g. overall distances, position-fxing, and the route`s breadth and straightness)
60 A/CONF. 62/WP.8/REV. 1/Part II, Article 35.
61 Amendment C2/Informal Meeting/2.
62 Ibid., Rev. 2: Parts VII and V respectively, including the provisions on freedom of navi-
gation and overfight, apply.`
and in terms of hydrography (e.g. depth and lack of natural obstructions). A similar
proposition is contained in Article 38(1).
In extending its territorial sea to twelve nm, Japan has, by special provisions, not
extended it in certain straits, so as to leave a route through the straits which can be
used without entering the territorial sea.
63
Sweden has also made similar arrange-
ments
64
for certain areas in waters lying between Sweden and Denmark but outside
the traditional Danish straits regulated by the Treaty of Copenhagen of 1857.
SECTION 2. TRANSIT PASSAGE
Article 37
Scope of this section
This section applies to straits which are used for international navigation between one
part of the high seas or an exclusive economic zone and another part of the high seas or
an exclusive economic zone.
Section 2, which consists of nine articles, sets out the regime of transit passage.
Article 37, which defnes the scope oI Section 2, was put Iorward by the Chairman
of the Second Committee in his ISNT
65
when the Part of the draft Convention about
straits was frst sub-divided into three sections. The Chairman Iollowed the general
approach to the question adopted by the Fiji/UK Group
66
whose Article 1(1) had
applied the right of transit passage to any strait (which term includes any naturally
formed
67
stretch of water whatever its geographical name) which: (a) is used for
international navigation and (b) connects two parts of the high seas. The Chairman
omitted the references to straits being naturally-formed and to the irrelevance of a
straits name, no doubt because both points were considered self-evident. He inserted
references to the EEZ in line with the remainder of his proposed ISNT. Subject to
minor drafting changes, the Chairmans text was accepted by the Conference.
As a result, the regime of transit passage applies only in straits which (i) are used
for international navigation and (ii) connect areas of sea which have the status of high
seas or EEZ. If a strait leads only to territorial sea or internal waters, then Section
2 does not apply: Section 3 (providing for non-suspendable innocent passage under
Article 45) applies instead.
63 Law No. 30 of 2 May 1977: UN Legislative Series, ST/LEG/SER. B/19. The territorial
sea remains at 3 nm in the Soya, Tsugaru, Osumi and Tsushima Straits.
64 Amendments of 1 January 1980 to the Law of 1 July 1979 extending generally to 12 nm:
Department of State, Limits in the Seas: National Claims to Maritime Jurisdictions, No.
36 (5th Revision, 1985).
67 The words naturally formed had been put forward by Canada in A/CONF. 62/C.2/L. 83
in order to make absolutely clear that canals were not included in the defnition oI what
constituted a strait.
138 Chapter 7
Article 37 must, of course, be read together with Section 1 which contains several
exclusion clauses, as well as with Article 38(1) which creates a second exceptional
type of strait to which Section 3 applies.
Article 37 employs the two key criteria a strait must be used for international
navigation and must connect two parts of the high seas/EEZ laid down in the judg-
ment of the International Court of Justice in the Corfu Channel case.
68
The wording
of Article 37 must be interpreted in the light of that judgment. The meaning of the
term used for international navigation has been analysed above. In deciding whether
a strait connects two parts` oI the high seas/EEZ, there may be diIfculty where one
part is very small in extent. Here again, a common-sense rather than a mechanical or
mathematical interpretation is called for. If such a pocket of high seas is surrounded
by territorial sea and is not used as part oI a route, there is insuIfcient justifcation Ior
applying Section 2: instead, Section 3 would apply.
Article 38
Right of transit passage
1. In straits referred to in article 37, all ships and aircraft enjoy the right of transit
passage, which shall not be impeded; except that, if the strait is formed by an is-
land of a State bordering the strait and its mainland, transit passage shall not ap-
ply if there exists seaward of the island a route through the high seas or through
an exclusive economic zone of similar convenience with respect to navigational
and hydrographical characteristics.
2. Transit passage means the exercise in accordance with this Part of the freedom
oI navigation and overfight solely Ior the purpose oI continuous and expeditious
transit of the strait between one part of the high seas or an exclusive economic
zone and another part of the high seas or an exclusive economic zone. However,
the requirement of continuous and expeditious transit does not preclude passage
through the strait for the purpose of entering, leaving or returning from a State
bordering the strait, subject to the conditions of entry to that State.
3. Any activity which is not an exercise of the right of transit passage through a
strait remains subject to the other applicable provisions of this Convention.
Article 38 is a key provision in the Convention. Against the background of accept-
ance of 12 nm as the maximum breadth of the territorial sea, Article 38 provides for a
regime of transit passage in certain straits used for international navigation. This link
was described in the following terms:
Acceptance of a territorial sea of 12 miles would result in a large number of straits form-
ing essential links for international navigation, both by sea and air, ceasing to have a
strip of high seas down the middle. Hence the need to ensure that unrestricted navigation
68 ICJ Reports, 1949, p. 4.
through those vital links in the world network of communications should remain avail-
able for use by the international community.
69
The origins of Article 38 can be found in the separate proposals of the UK
70
(which,
as indicated above, formed one starting point for the work of the Fiji/UK Group
71
)
and of Bulgaria et al.
72
as well as in those of the Chairman of the Second Commit-
tee.
73
In introducing its proposals, the UK delegation put forward this explanation of
the concept of transit passage:
Article 1 sets out the concept of transit passage through straits connecting two parts of
the high seas. The concept his delegation had tried to describe corresponded to what it
believed to be the best international practice at that time. It proposed that ships and air-
craft exercising the right of transit passage should not be impeded or hampered during
their passage. At the same time the right was given solely for the purpose of continuous
and expeditious transit of the strait.
74
No doubt, the practice which the delegation had in mind was that whereby passage
had been exercised in certain straits on the basis of freedom of navigation and over-
fight, rather than on the basis oI the right oI innocent passage as defned in the
CTSCZ
75
and irrespective of whether the coastal States claims had left a central cor-
ridor of high seas/EEZ in the strait. The proposals attracted much interest and some
opposition, especially from States which supported the application of the regime of
innocent passage to all straits.
76
Paragraph 1 makes clear that all ships and aircraft, including therefore warships
and military aircraft, enjoy the right of transit passage. The references to aircraft
(which were included in both the UKs proposal
77
and, as regards straits tradition-
ally used` Ior overfights, that by Bulgaria et al.
78
) proved controversial; objections
69 Mr Dudgeon (UK), Official Records, vol. II, p. 125 (para. 17).
70 A/CONF. 62/C.2/L. 3, Article 1.
71 Draft Articles of 30 April 1975, in Platzoder, op. cit. above (n. 16), p. 194.
72 A/CONF. 62/C.2/L. 11.
73 A/CONF. 62/WP.8/Part II, Article 38.
74 Official Records, vol. II, p. 125 (para. 18).
75 Special provisions about straits are to be found in the legislation of several States border-
ing straits used for international navigation, notably France (24 December 1971, Article
3: ST/LEG/SER.B/18, p. 17); Japan (1 July 1977: ST/LEG/SER.B/19, p. 56); Morocco
(2 March 1973, Article 3: ST/LEG/SER.B/18, p. 29); Oman (10 February 1981); and
Sweden (1 January 1980). As regards the Straits of Gibraltar, see Colombos, Interna-
tional Law of the Sea (1967), p. 220; OConnell, International Law (1970), vol. 1, p. 567;
and Truver, The Strait of Gibraltar and the Mediterranean Sea (1980), esp. Chapter 5.
76 Spain, China, Egypt, Albania, Iran, Greece and PDR Yemen were notable in this regard,
making particular reference to the Chicago Convention of 1944.
140 Chapter 7
were advanced to the effect that these proposals were inconsistent with the Chicago
Convention. An amendment by Spain
79
to remove all reference to aircraft was, how-
ever, not accepted by the Conference. It is a right the exercise of which may not be
impeded by any agency, whether the coastal State (the duties of which are stated also
in Article 44) or the ships or aircraft of third States. The right applies in principle in
all straits used for international navigation between two parts of the high seas/EEZ
(Article 37). At the same time, the right is subject to (i) the qualifcations in Section 1
of Part III, and (ii) the exception in paragraph 1 of the present article.
The exception excludes from the ambit of Section 2 the strait which runs between
an island of the coastal State and its mainland
80
if there exists a route seaward of the
island through the high seas or EEZ which is of similar convenience with respect
to navigational and hydrographical characteristics. That expression bears the same
meaning as in Article 36 and the commentary on that article need not be repeated
here. An example of such a strait is the Pemba Channel off Tanzania. The Corfu
Channel
81
is a less clear case since part of the strait lies between Corfu and Albania.
The application of the exception in particular geographical situations (e.g. where
there is an archipelago as in the Aegean or where there are several islands lying
together, or where it is not clear what is a States mainland) may not be free from
diIfculty; but the words should not be interpreted too mechanically. Instead, all the
relevant geographical and other circumstances
82
should be taken into account and a
commonsense interpretation given, as described above.
The underlying rationale of the exception is clear: in a place where there exists an
alternative route to seaward of the island of similar convenience, the interest of the
international community in freedom of communication is not as strong as in the place
where there is no such alternative route, and a different balance was struck between
that interest and the interest of the coastal State. In those instances where a strait is
excluded by Article 38(1) from the regime of transit passage, the strait is subject to
that of innocent passage by virtue of Article 45.
Paragraph 2 defnes the concept oI transit passage`. It is the exercise oI the Iree-
dom oI navigation and overfight`, Ireedoms to be Iound also in Article 87 (Freedom
of the High Seas). However, whilst in principle the freedoms in paragraph 2 are of
the same order as those in Article 87, paragraph 2 contains signifcant qualifcations.
First, the right of transit passage must be exercised in accordance with Part III, not
Part VII. Secondly, the right must be exercised for a single purpose, namely transit
from one part of the high seas/EEZ to another part of the high seas/EEZ. Thirdly, the
purpose of the navigator (vessel or aircraft) must be that of continuous and expedi-
tious transit of the strait. This means that hovering, loitering or conducting manoeu-
79 Amendment C2/4 of 1978 (Spain).
80 An informal suggestion by Poland to refer to continental territory was not accepted, but
the French text refers to le territoire continental nevertheless.
81 In introducing the proposal, the UK representative referred to the case of a strait formed
by an island lying less than 24 miles off the coast.
82 A relevant Iactor may be the existence oI an IMO traIfc scheme: compare Article 53
(archipelagic sea lanes passage).
vres (all of which are part of the freedom of navigation on the high seas) are not
allowed when exercising the right of transit passage. There are at least two parallels
between Article 38(2) and Article 18: the latter defnes the meaning oI (innocent)
passage` in terms oI specifed purposes and also calls Ior passage to be continuous
and expeditious (subject to safety requirements, force majeure, distress or humani-
tarian duty
83
).
To the requirement of continuous and expeditious transit of the entire length of
a strait, there is a qualifcation Ior the case oI transiting part oI a strait, passing the
coasts, say, of States A and C in order to enter, leave or return from the port or airport
of State B which also borders the strait. A vessel or aircraft entering, etc., State B re-
mains subject to its conditions of entry. An example of a State in the position of State
B is Singapore. In introducing this part of its proposal, the UK representative in the
Second Committee spoke as follows:
His delegation also had in mind the situation of the long strait which had more than one
country bordering one side of the strait. Assuming a strait which had two countries on
the western side, States A and B, and one country on the eastern side, State C, the United
Kingdom draIt proposed frst, a right oI transit should the ship or aircraIt be going all the
way northwards or southwards through the strait; secondly, a right of transit if the ship
or aircraIt was proceeding down the frst part oI the strait between States A and C with a
view to calling at a port or airport of State B.
84
The substance of the proposal was accepted in the second sentence of Article 38(2).
The wording was refned during the course oI the ConIerence and cast as an excep-
tion to the rule of continuous and expeditious passage.
Paragraph 3 frst appeared in the draIt articles prepared by the Fiji/UK Group on
Straits, dated 18 April 1975.
85
It was intended to make clear that any activity, includ-
ing navigation in or over straits, which does not amount to an exercise of the right of
transit passage as defned in Article 38 remains subject to the other provisions oI the
Convention. These include Article 34 (legal status of waters forming straits used for
international navigation) and other articles in Part III, as well as Article 2 (legal status
of the territorial sea, etc). In other words, if a vessel or aircraft is present in a strait
used for international navigation but is not exercising the right of transit passage,
then the vessel or aircraft is subject to provisions in the Convention other than those
in Part III which regulate transit passage.
Proposals by Spain and Morocco
86
to add to the end of the paragraph the words
and to other rules of international law were not accepted. The proposals were ad-
vanced at a time when there remained controversy about overfight, it being argued
by the proposers that it was contrary to rules of general international law contained
83 These are covered by Article 39(1)(c) in relation to straits.
84 Official Records, vol. II, p. 125.
86 Amendment C2/4 of 1978 (Spain) and Amendment C2/22 of 1978 (Morocco).
142 Chapter 7
in the Chicago Convention of 1944 on International Civil Aviation. The opposition to
the proposals had a tactical element. Notwithstanding the rejection of the proposals,
those rules of international law which are not excluded by the terms of the Conven-
tion (either expressly or implicitly as are the rules in the Chicago Convention)
would continue to be applicable. Reference to other rules of international law was
included in Article 34(2) concerning qualifcations upon the sovereignty or jurisdic-
tion of States bordering straits.
Article 39
Duties of ships and aircraft during transit passage
1. Ships and aircraft, while exercising the right of transit passage, shall:
(a) proceed without delay through or over the strait;
(b) refrain from any threat or use of force against the sovereignty, territorial in-
tegrity or political independence of States bordering the strait, or in any other
manner in violation of the principles of international law embodied in the
Charter of the United Nations;
(c) refrain from any activities other than those incident to their normal modes of
continuous and expeditious transit unless rendered necessary by force ma-
jeure or by distress;
(d) comply with other relevant provisions of this Part.
2. Ships in transit passage shall:
(a) comply with generally accepted international regulations, procedures and
practices for safety at sea, including the International Regulations for Pre-
venting Collisions at Sea;
(b) comply with generally accepted international regulations, procedures and
practices for the prevention, reduction and control of pollution from ships.
3. Aircraft in transit passage shall:
(a) observe the Rules of the Air established by the International Civil Aviation
Organization as they apply to civil aircraft; state aircraft will normally comply
with such safety measures and will at all times operate with due regard for the
safety of navigation;
(b) at all times monitor the radio frequency assigned by the competent interna-
tionally designated air traIfc control authority or the appropriate international
distress radio frequency.
Article 39, which specifes the duties oI ships and aircraIt during their exercise oI the
right of transit passage, is based upon the initial proposals of the UK.
87
The article
applies, in principle, to all ships and aircraft, irrespective of their status (public or
private, civil or military).
Paragraph 1 imposes Iour duties on ships and aircraIt alike. They are, frst, to pro-
ceed without delay, an expression in harmony with the requirements of continuous
and expeditious transit in Articles 38(2) and 39(1)(c). Navigators should proceed at
87 A/CONF. 62/L. 3, Chapter Three, Article 2.
their normal speed, having regard to all relevant factors, including safety require-
ments, weather conditions, the presence of other ships or aircraft in the strait, etc.
Secondly, they are to refrain from the threat or use of force against the States border-
ing the strait. This wording applies the general obligation contained in Article 2(4) of
the Charter of the United Nations
88
specifcally to ships and aircraIt in transit, whilst
at the same time confning the benefciaries oI the obligation to the bordering States.
The terms threat and use of force should be interpreted in the same way as in the
Charter. A warship or a military aircraft does not represent a threat of force by reason
only of its presence in or over a strait.
Thirdly, and in many ways most importantly, ships and aircraft in transit are to
refrain from any activities other than those incident to their normal modes of ...
transit. In other words, ships and aircraft are to behave in their ordinary manner and
do what is usual to effect their passage, and nothing else. In putting forward this ap-
proach, the intention was to avoid the need for a long list of prohibited activities such
as the list of non-innocent activities appearing in Article 19(2). Anything which is
not incidental to transit in the normal mode is impermissible: clearly, most if not all
the activities listed in Article 19(2) are not incidental. The term normal mode was
intended to mean, for example, that submarines could make their transits submerged,
aircraIt would fy at their normal altitudes, and surIace vessels would Iollow their
normal operating procedures whilst in transit. Regard would be had to all relevant
circumstances, including in the case of submarines the depth of the water. The refer-
ence to the normal mode avoided the need for a formula such as submarines may
pass under water, which would have raised questions in the case of submersibles
and other underwater vehicles which may come along in the future. This possibility
of submerged transit took account of the fact that it is often much safer for a modern
submarine to proceed dived. This approach was accepted in the Fiji/UK Group
89
and
by the Chairman of the Second Committee.
90
It was challenged in the Second Com-
mittees Working Group by certain delegations, notably Spain and Morocco who
tabled amendments:
91
however, these were not accepted by the Conference. Others
questioned the discretion which they understood was given to navigators in the phrase
normal mode`, Ior example in the case oI an aircraIt carrier or a fotilla, but they did
not press their point and the term normal mode was accepted. It may be noted that
the term appears also in Article 53(3) concerning the rights of archipelagic sea lanes
passage: the term carries the same meaning in both articles.
There is an exception to the obligation to refrain from non-incidental activity: Ar-
ticle 39(1)(c) accepts that a ship or aircraft in transit may have to slow or stop or take
special action if this is made necessary by force majeure (e.g. collision or hurricane)
or distress.
88 The wording of Article 39(1)(b) is based on Article 2(4) of the UN Charter. The addition
of the word sovereignty adds little or nothing to territorial integrity.
89 Draft Articles of 30 April 1975 in Platzoder, op. cit. above (n. 16), p. 194.
90 A/CONF. 62/WP.8, Part II, Article 39.
91 Amendment C2/4 (Spain, 1978) and C2/22 (Morocco, 1978).
144 Chapter 7
Finally, paragraph 1(d) obliges ships and aircraft to comply with the other relevant
provisions oI Part III: these include the obligations to respect sea lanes and traIfc
schemes in Article 41(7) and to observe applicable laws and regulations in Article
42(4), as well as obligations in the other provisions of Article 39. Paragraph 1(d),
which originated in the Fiji/UK Group,
92
makes explicit a point which was left un-
stated in the UKs initial proposals.
Paragraph 2 specifes certain duties Ior ships in transit passage, arising Irom gen-
erally accepted international regulations, procedures and practices. That expression
was cast in deliberately wide terms and was intended to connote, in the frst place,
international conventions adopted for example under the auspices of the International
Maritime Organization (IMO) which have secured wide acceptance within the world
community, as well as subsidiary or related instruments and decisions. To such in-
ternational regulations must be added generally accepted procedures and practices,
which include those normally Iollowed by mariners. The duties specifed are in two
felds: saIety and pollution. Ships in transit are to comply with international saIety
rules, including the International Regulations for Preventing Collisions at Sea. The
current version of these Regulations is annexed to the Convention on the International
Regulations for Preventing Collisions at Sea of 1972.
93
In particular, the regulations
take account oI sea lanes and traIfc schemes, many oI which relate to straits. Ships
in transit are also to comply with international rules for the prevention, reduction and
control of pollution: again, the IMO has adopted several conventions about marine
pollution, notably the MARPOL Convention
94
of 1973.
95
Paragraph 3 specifes similar duties Ior aircraIt, designed to ensure saIety. AircraIt
in transit are to observe the Rules of the Air established by the International Civil
Aviation Organization for civil aircraft: this means that military aircraft are to ob-
serve those Rules whilst in transit. The concept arose in the context of negotiations
on an archipelagic regime. The US insisted on Ireedom oI overfight Ior all aircraIt.
The Indonesians objected to this, stating that there was no place for such provision
in the law of the sea and that it was a matter for ICAO. However, if such a provision
was to be introduced then Indonesia wanted all aircraft, including military aircraft, to
be subject to ICAO rules. This the US would not agree to. Eventually Fiji proposed
the compromise whereby civil aviation would be subject to ICAO rules and military
aircraft would normally comply with those rules. For strategic reasons the US did not
want military aircraft to be subject to reporting requirements at all times. The normal
practice is for military aircraft to observe and comply with ICAO rules, even though
strictly they apply only to civil aircraft. The rules are applied worldwide. The rel-
evant part of the Rules, according to a statement made by the UK delegation during
discussions in the Second Committees Working Group, is that relating to the high
seas. In a study dated 20 January 1984, the Secretariat of ICAO noted that Article
92 Platzoder, op. cit. above (n. 16), p. 194 (Article 2(1)(d)).
93 In force 15 July 1977: IMO Publication 904. 85. OIE.
94 International Convention for the Prevention of Pollution from Ships, London, 2 Novem-
ber 1973.
95 See also Article 211(1).
39(3) would extend the legislative jurisdiction of the ICAO Council from the high
seas to the air space above straits used for international navigation.
96
Sub-paragraph (b) supplements the foregoing duties. Aircraft in transit are obliged
to monitor either the radio Irequency assigned by the air traIfc control authority
designated for the area concerned by ICAO (i.e. the authority listed in the local Re-
gional Air Navigation Plan, as approved by the Council of ICAO), or the interna-
tional distress radio frequency. This radio frequency is the one referred to in Annex
10 to the Chicago Convention, Aeronautical Communications, i.e. 121.5MHz. It has
been argued by the ICAO Secretariat that aircraft are under a duty according to
frmly established practice and international standards adopted by the ICAO Coun-
cil to monitor both the frequency assigned by the ATC authority and the distress
frequency; that Article 39(3) contains an error in allowing alternatives; and that the
relevant standards are lex specialis which will be complied with in practice.
97
It may
well be true that those standards will always be complied with in practice: however,
Article 39(3) is also lex specialis Ior the overfight oI straits by aircraIt oI all types
and it should not be thought to contain errors. Aircraft in transit are to operate at all
times with reasonable regard for the safety of navigation and so should be capable
of knowing about other aircraft in the vicinity. In the case of State aircraft, the ob-
ligation to maintain continuous listening watch oI the local air traIfc control arises
from requirements of safety and paragraph 3, rather than from the Rules of the Air.
Standard 3.6.5.1 requires continuous listening watch in the case oI a controlled fight
and similar requirements exist in the visual fight rules (Standard 4.7, Annex 2) and
in the instrument fight rules (Standard 5.3.2, Annex 2). Proposals by Morocco
98
to
impose more specifc restrictions and duties on aircraIt in transit were not accepted
by the Conference.
Article 40
Research and Survey activities
During transit passage, Ioreign ships, including marine scientifc research and hydro-
graphic survey ships, may not carry out any research or survey activities without the prior
authorization of the States bordering straits.
The idea oI this article was frst put Iorward in the proposals oI Fiji
99
in the twin
contexts oI innocent passage and passage through straits. The present wording frst
96 C-WP/7777, Secretariat Study of 20 January 1984.
97 Ibid., para. 9.12.
98 Amendment C2/22 of 1978. Restrictions proposed were no exercises, use of weapons,
photography, reIueling in fight, dive-bombing and interIerence with the coastal State`s
telecommunications many of which are excluded by virtue of para. 1 of Article 39.
Greece proposed (in amendment C2/17 of 1978) to make the duty to comply with the
ICAO Rules, but this too was not accepted.
99 A/CONF. 62/C.2/L. 19, Article 5(5).
146 Chapter 7
appeared in the Informal Composite Negotiating Text,
100
in the light of informal dis-
cussions. In eIIect, it supplements the general rules in Article 39 by adding specifc
rules about research and survey activities on the part of ships exercising the right of
transit passage. The prior authorization of the State(s) bordering a strait is required
for such activities. Where an agreed maritime boundary exists in a strait, the consent
of the appropriate coastal State is needed for activities in that part of the strait under
its sovereignty or jurisdiction. The relevant activities are marine scientifc research (a
subject regulated by Part XIII of the Convention) and hydrographic surveying. Both
activities are mentioned in Article 19(1)(j) concerning the meaning of innocent pas-
sage; and Article 40 (like Article 39) applies by virtue of Article 54 to ships exercis-
ing the right of archipelagic sea lanes passage.
Article 40 adds little to what is implicit in Article 39: it appears to have been in-
cluded largely for the avoidance of doubt. It may have particular relevance in long
straits, for example those of Malacca, and archipelagic waters.
Article 41
Sea lanes ana trafhc separation schemes in straits usea for international navigation
1. In conformity with this Part, States bordering straits may designate sea lanes and
prescribe traIfc separation schemes Ior navigation in straits where necessary to
promote the safe passage of ships.
2. Such States may, when circumstances require, and after giving due publicity there-
to, substitute other sea lanes or traIfc separation schemes Ior any sea lanes or traIfc
separation schemes previously designated or prescribed by them.
3. Such sea lanes and traIfc separation schemes shall conIorm to generally accepted
international regulations.
4. BeIore designating or substituting sea lanes or prescribing or substituting traIfc
separation schemes, States bordering straits shall refer proposals to the compe-
tent international organization with a view to their adoption. The organization may
adopt only such sea lanes and traIfc separation schemes as may be agreed with
the States bordering the straits, after which the States may designate, prescribe or
substitute them.
5. In respect oI a strait where sea lanes or traIfc separation schemes through the wa-
ters of two or more States bordering the strait are being proposed, the States con-
cerned shall co-operate in formulating proposals in consultation with the competent
international organization.
6. States bordering straits shall clearly indicate all sea lanes and traIfc separation
schemes designated or prescribed by them on charts to which due publicity shall be
given.
7. Ships in transit passage shall respect applicable sea lanes and traIfc separation
schemes established in accordance with this article.
100 A/CONF. 62/WP. 10; Official Records, vol. 8, Article 40. The ICNTs draft article began
with the words In their: the words were changed to During transit by the Drafting
Committee.
Article 41 gives further recognition in international law to the institution in recent
times oI traIfc schemes Ior promoting the saIety oI shipping.
101
The article is based
upon proposals made by the UK
102
and Fiji
103
and incorporates modifcations and
additions suggested by other delegations during informal discussions. In introduc-
ing the proposals, the UK representative noted there was often a concentration of
shipping in straits and continued: In view of the general interest of the international
community in navigation through straits, we propose that traIfc separation schemes
should be fully considered before their promulgation.
104
The article has two parts: frst, paragraphs 1 to 6 speciIy the rights and duties oI
States bordering straits in the matter oI traIfc schemes; and, secondly, paragraph 7
imposes a corresponding duty upon ships exercising the right of transit passage to
respect such schemes.
Paragraph 1 confrms that States bordering straits are competent to designate sea
lanes and to prescribe traIfc separation schemes, including the making oI laws and
regulations,
105
where this is necessary to promote the safe passage of ships in straits.
The necessity will often arise in straits used for international navigation and many
traIfc schemes already exist in such straits. The schemes take account both oI ships
in transit and local traIfc, including traIfc across a strait. There are also schemes
which take account oI the existence oI shallows or shoals in a strait by defning deep
draught routes. Although the express reference to depth separation schemes in the
proposals by Fiji
106
was not incorporated in Article 41, they are covered as a type of
traIfc separation scheme. On 28 April 1982, a letter and statement were circulated
to the Conference about the Straits of Malacca and Singapore by the delegations of
Malaysia, Indonesia and Singapore:
107
this statement, although made with particular
reference to Article 233 (safeguards with respect to straits used for international navi-
gation), contained the point that traIfc separation schemes could include the deter-
mination of under keel clearance for the Straits provided in Article 41. The statement
met with wide support.
108
Since then an agreement about under keel clearance has
been drawn up by Indonesia, Malaysia, Singapore and Japan, making provision for
the special characteristics of the Straits of Malacca.
Paragraph 2 recognizes that circumstances in a strait may change (e.g. natural
changes such as silting may take place, or changes in traIfc such as the introduction
101 TraIfc schemes are also dealt with in Articles 22 (territorial sea) and 53 (archipelagic
waters), as well as in the Collision Regulation and the Convention for the Safety of Life
at Sea.
103 A/CONF. 62/C.2/L. 19, Article 5(6) to (10).
104 Statement by Mr Dudgeon (UK), Official Records, vol. II, pp. 1012.
105 See Article 42(1)(a).
106 A/CONF. 62/C.2/L. 19, Article 5(6).
107 A/CONF. 62/L. 145 (Letter by Malaysia).
108 A/CONF. 62/L. 145, Add. 1 to 8 (Indonesia, Singapore, France, UK, USA, Japan, Aus-
tralia and FRG).
148 Chapter 7
of large tankers following an oil discovery). Where the new circumstances require a
change in the traIfc scheme, a substituted scheme may be prescribed or designated.
However, the coastal State has to respect the terms of the article and in particular give
appropriate publicity to the change.
Paragraphs 3 and 4 take account of the worldwide interest in the safety of naviga-
tion in straits by requiring that traIfc schemes conIorm to generally accepted inter-
national regulations, notably the Collision Regulations and the Safety of Life at Sea
Convention.
109
Whereas Article 22 gives wide discretion to the coastal State with
regard to traIfc schemes in the territorial sea generally, Article 41(3) contains a saIe-
guard Ior the international community in the particular case oI traIfc schemes in
straits. Paragraphs 3 and 4 were the products of the Fiji/UK Group which sought to
fnd a balance between the interests oI States bordering on straits and other States.
In the initial proposals of the UK,
110
a State bordering a strait would have been in
a position to designate or prescribe a traIfc scheme only as approved by` the com-
petent international organization (i.e. the IMO). This went too far for delegations
such as Singapore and Fiji, which wished the role of the IMO to be purely advisory.
Paragraph 4 represents a compromise between these approaches (which was worked
out in the Fiji/UK Group). The procedure is as Iollows: frst, the State(s) bordering a
strait has to submit its proposals to the IMO; the latter may, secondly, adopt a scheme
only in agreement with that State(s) (i.e. modifcations have to be agreed); fnally, the
State bordering a strait may then proceed to designate or prescribe the traIfc scheme.
The same procedure applies to substitutions.
Paragraph 5 was frst proposed in the Fiji/UK Group. It makes explicit provision
for cases where there exist two or more States bordering the same strait and requires
the States concerned to co-operate in formulating proposals in consultation with the
IMO (i.e. the procedures indicated in paragraph 4).
111
Paragraph 6 requires a State bordering a strait to mark on charts the traIfc schemes
which it has prescribed in the strait and to give appropriate publicity to the charts.
It is similar to Article 53(10) concerning traIfc schemes in archipelagic waters and
Article 22(4) concerning sea lanes and traIfc schemes in the territorial sea. Unlike
Article 16 concerning charts depicting baselines, there is no obligation to deposit a
copy of each chart with the Secretary-General of the United Nations.
Paragraph 7 requires ships to respect` sea lanes and traIfc schemes. For example,
they must not sail along a sea lane in the wrong direction. Whilst the paragraph does
not in terms confne the exercise oI the right oI transit passage to sea lanes, in prac-
tice ships in transit can be expected to follow them. To respect a scheme includes
respecting its operating rules as well as the lines on the chart, although the obligation
is less precise than one to comply with a scheme.
109 Convention on the Internal Regulations for Preventing Collisions at Sea, 1972 (referred
to in Article 39(2)(a)).
110 A/CONF. 62/C.2/L. 3, Article 3(3).
111 Amendment C2/4 (1978) by Spain would have added a sentence requiring the agreement
of all the States bordering the strait in the IMO before the scheme could be prescribed.
However, this amendment was not adopted.
Article 42
Laws and regulations of States bordering straits relating to transit passage
1. Subject to the provisions of this section, States bordering straits may adopt laws and
regulations relating to transit passage through straits, in respect of all or any of the
following:
(a) the saIety oI navigation and the regulation oI maritime traIfc, as provided in
article 41;
(b) the prevention, reduction and control of pollution, by giving effect to appli-
cable international regulations regarding the discharge of oil, oily wastes and
other noxious substances in the strait;
(c) with respect to fshing vessels, the prevention oI fshing, including the stow-
age oI fshing gear;
(d) the loading or unloading of any commodity, currency or person in contraven-
tion oI the customs, fscal, immigration or sanitary laws and regulations oI
States bordering straits.
2. Such laws and regulations shall not discriminate in form or in fact among foreign
ships or in their application have the practical effect of denying, hampering or im-
pairing the right oI transit passage as defned in this section.
3. States bordering straits shall give due publicity to all such laws and regulations.
4. Foreign ships exercising the right of transit passage shall comply with such laws
and regulations.
5. The fag State oI a ship or the State oI registry oI an aircraIt entitled to sovereign
immunity which acts in a manner contrary to such laws and regulations or other
provisions of this Part shall bear international responsibility for any loss or damage
which results to States bordering straits.
Article 42 contains three elements: the powers of States bordering straits to prescribe
laws and regulations relating to transit passage (paragraphs 1, 2 and 3); the duty of
foreign ships in transit (paragraph 4); and the enforcement of laws, especially in the
case of ships and aircraft entitled to sovereign immunity (paragraph 5).
In the UKs initial proposal,
112
the power to prescribe laws was confned to two
matters: the implementation oI traIfc schemes and international regulations regard-
ing discharges of oil. It was made clear that:
Foreign ships exercising the right of transit passage would have to conform with the
regulations; should they fail to comply, the possibility of legal proceedings would arise
in the case of merchant vessels. In the case of ... vessels entitled to sovereign immunity
there would be liability on the international level or, in other words, state responsibil-
ity.
113
112 Article 4 of A/CONF. 62/C.2/L. 3.
113 Official Records, vol. II, Summary Record of the 11th meeting of the Second Committee,
para. 23, p. 125.
150 Chapter 7
In Fijis proposal,
114
a much longer list was given of matters on which the State could
legislate: this list applied both to straits and to the territorial sea generally. The Fiji/
UK Group reviewed these and other proposals over a series of meetings. Suggestions
were made to expand the UKs list in order to meet the legitimate concerns of States
bordering straits. It was pointed out that a ship in transit might commit a pollution
oIIence, or engage in fshing or smuggling, thereby giving rise to a need Ior the State
to protect its interests. Waiting for a suspected ship to enter port would not be enough.
It was also pointed out that a navigation offence might be committed which was not
to do with sea lanes or traIfc schemes, or a pollution oIIence which did not lead to
damage so much as expense on the part of the State concerned. After detailed discus-
sions, the list in the UK proposal was expanded and wording similar to Article 42(1)
was accepted by the Group.
115
The Groups text struck a balance between (i) the wish of States bordering straits
to have specifc regulatory powers (broadly the same as those in Article 21) so as to
ensure safety and to protect their coastal interests along the shores of the strait, and
(ii) the wish oI fag States to see their ships pass through straits without interIerence
from or the imposition of special rules by the bordering States. The Groups text on
this issue formed the main basis for Article 41 of the ISNT proposed by the Chair-
man of the Second Committee;
116
and this text, with minor modifcations made in
the light of subsequent discussions, eventually became Article 42 of the Convention.
Several amendments, the general effect of which was to broaden the powers of States
bordering straits, were tabled in 1978;
117
but these amendments were not accepted by
the Conference.
Paragraph 1 specifes under Iour headings the content oI the legislation which
States bordering straits may adopt about transit passage. First is the safety of naviga-
tion and the regulation oI traIfc, in the terms set out in Article 41. In concrete terms,
such a State may give effect within its legal order to a scheme for sea lanes or traf-
fc regulation which satisfes Article 41`s requirements. It may do so Ior all Ioreign
ships exercising the right of transit passage, so that in effect internationally adopted
schemes for a strait may be made applicable to all ships in transit passage there re-
gardless oI their fags, i.e. even iI the fag State has not enacted legislation Ior ships
fying its fag. Secondly, in order to prevent, reduce and control pollution, legislation
may be adopted giving effect to those applicable international regulations (such as
the Convention on Marine Pollution, 1973) which prohibit the discharge of oil, oily
114 Article 5 of ibid., L. 19.
117 Amendment C2/4 (Spain) would have broadened powers in regard to pollution and pro-
tection of facilities, etc., and imposed requirements concerning liability. Amendment
C2/17 (Greece) would have extended paragraph 1(a) to encompass laws about air traIfc.
Amendment C2/22 (Morocco) would have included in the list of legislative powers the
protection of navigational aids, other installations, cables and pipelines; the conservation
of living resources; and research and hydrographic surveys.
wastes and other noxious substances
118
close to shore and therefore in straits. Simi-
larly, this legislation can be applied to ships fying the fag oI States which have not
ratifed the relevant regulations. Thirdly, fshing vessels may be prohibited Irom fsh-
ing in straits, as well as from sailing with their gear unstowed in straits since failure to
stow gear would be taken as prima facie evidence of a violation of the straits States
fshing laws. Finally, the legislation oI a State bordering a strait prohibiting the load-
ing or unloading of goods, currency or persons may be applied to ships exercising
the right of transit passage. In short, the four headings envisage the adoption of leg-
islation about traIfc saIety and the prevention oI pollution, fshing and smuggling in
straits, all issues of special concern to States bordering straits. The legislative powers
are, however, subject to the provisions of Section 2 of Part III including, therefore,
the rules in Article 44 (duties of States bordering straits).
Paragraph 2 excludes from the legislation any discrimination between foreign
ships, as well as any measures in implementation or application of legislation which
in their practical effect would deny, hamper or impair the right of transit passage. The
rule of non-discrimination was proposed by both the UK and Fiji:
119
its content ap-
pears to be similar to that of Article 24(1)(b), although its wording is less specifc as
regards cargo. The rule about the application of laws and regulations was formulated
in the Fiji/UK Group following several discussions of the question of the enforce-
ability of legislation in straits. On the one hand, it was pointed out that there was a
need to deter vessels, as well as to compensate anyone who had suffered damage, for
example from pollution. On the other hand, it was noted that the terms of Articles
38(2) and 39(1)(c) contained safeguards for States bordering straits; that to give a
right of arrest in a strait would undermine the right of transit passage (arrest in port, in
an appropriate case, in respect of something done in a strait, was a different matter);
and that, in the case of a warship, there was no power (comparable to that in Article
30 in relation to the territorial sea) to require it to leave a strait immediately so long
as it was exercising the right of transit passage. The question of enforcement arose
in the context of laws and regulations about the prevention of pollution, a topic also
then being considered by the Third Committee and now dealt with in Article 233.
That article makes clear that if a vessel not entitled to sovereign immunity violates
legislation about the safety of navigation or the prevention of pollution (as referred to
in Article 42(i)(a) and (b)) and thereby causes or threatens major damage from pollu-
tion, a State bordering a strait may take appropriate enforcement measures in relation
to the vessel. Such a case would be an exceptional one: enforcement measures in a
strait could well create hazards and are not contemplated in Article 42(2).
Paragraph 3 requires appropriate publicity to be given to any laws and regulations
of a State bordering a strait and applying there.
118 Annex 1 to the Convention of 1973 concerns the discharge of oil and oily wastes, whilst
Annex 2 deals with other noxious substances. Proposals in the Drafting Committee to
replace applicable by generally accepted and to delete oily before wastes were not
refected in the text as adopted.
119 Article 4(2) of A/CONF. 62/c.2/L. 3 and Article in ibid., L. 19.
152 Chapter 7
Paragraph 4 contains the important obligation of foreign ships in transit passage,
whether warships or merchant ships, to comply with laws and regulations made in
accordance with paragraph 1.
Paragraph 5 recognizes that whilst such legislation cannot be enforced through the
courts against a warship (or other vessel or aircraft entitled to sovereign immunity),
the coastal State should not be leIt without a remedy. The paragraph confrms that
international responsibility is borne by the fag State Ior any loss or damage resulting
from acts contrary to such legislation and incurred by States bordering straits. The
same rule applies to acts contrary to Part III, including therefore Article 39, which
result in loss or damage. The proposal of the Fiji/UK Group
120
to refer also to damage
incurred by other States in the vicinity of the strait was not included in Article 42
on account of its vagueness: in such a case, the general rules on State responsibility
would apply.
Article 43
Navigational and safety aids and other improvements and the prevention, reduction and
control of pollution
User States and States bordering a strait should by agreement co-operate:
(a) in the establishment and maintenance in a strait of necessary navigational and safe-
ty aids or other improvements in aid of international navigation; and
(b) for the prevention, reduction and control of pollution from ships.
This article, which seeks to promote co-operation between States bordering straits
and the fag States oI vessels and aircraIt using straits, is based on a proposal by the
UK.
121
The proposal recognized that the international interest in navigation through
straits used for international navigation imposed certain restrictions on the rights
of States bordering straits and therefore sought to foster co-operation as far as ap-
propriate between those States and the fag States oI vessels and aircraIt using the
strait over such matters as safety aids and the avoidance of pollution from ships.
The article, which was put forward with the case of shipping passing through straits
such as Malacca particularly in mind, aroused little comment and no controversy. In
informal discussions in the Fiji/UK Group and later in the Second Committee Work-
ing Group when it was discussing the ISNT,
122
it was noted that the article was cast
in conditional, non-mandatory terms: informal suggestions (a) to make it obligatory
for user States to co-operate and (b) to make it clear that decisions about safety aids
were for the straits State to make, were not pressed. In 1978, Morocco put forward
120 In their Article 4(5). Similarly, their Article 4(6), concerning the responsibility of a State
bordering a strait for loss or damage to foreign ships or aircraft resulting from actions
contrary to Part III, was not included in the Convention. The matter is governed by the
general rules of international law.
an amendment
123
designed to make the article obligatory and to extend its scope to
cover safety installations and other devices; but this amendment was not accepted by
the conference.
Sub-paragraph (a) would form a basis for international co-operation to defray the
cost of such things as new lighting or buoying schemes, as well as the dredging of
new channels for deep draught vessels, particularly if the new facilities were in-
tended to beneft the ships oI third States rather than those oI the State(s) bordering
the strait.
124
Sub-paragraph (b) would form a basis for co-operation in the provision
of navigational aids in order to prevent the grounding or collision of vessels. That
course would reduce the risks of pollution. As a whole, the article should encourage
co-operation, whether on a bilateral or a wider basis, between States bordering straits
and fag States.
Article 44
Duties of States bordering straits
States bordering straits shall not hamper transit passage and shall give appropriate pub-
licity to any danger to navigation or overfight within or over the strait oI which they have
knowledge. There shall be no suspension of transit passage.
This article, which specifes three important duties on the part oI States bordering
straits, follows closely the wording of a proposal by the UK.
125
That proposal was
similar in certain respects to Article 1(2)(e) and (f) of the proposals by Bulgaria and
other States, to the effect that:
(e) No state shall be entitled to interrupt or suspend the transit of ships through the
straits, or engage therein in any acts which interfere with the transit of ships, or
require ships in transit to stop or communicate information of any kind.
() The coastal state shall not place in the straits any installations which could interfere
with or hinder the transit of ships.
126
123 Amendment C2/22, reading: User States and States bordering a strait shall co-operate,
by agreement, in the establishment and maintenance in the strait of necessary safety and
environmental protection installations and navigation aids, as well as any other device
calculated to safeguard the exercise of the right of transit passage in accordance with the
provisions of this Part and of other rules of international law.
124 Some suggestions were voiced during the Conference that lighting, buoying and dredging
should be paid for by the imposition of tolls. However, these suggestions were rejected.
Japan has agreed to defray the cost of certain dredging work in the Straits of Malacca.
125 A/CONF. 62/C.2/L. 3, Article 6. It appeared as Article 6 of the Fiji/UK Groups proposed
text and as Article 43 of the ISNT.
126 A/CONF. 62/C.2/L. 11, Article 1(1)(e). A similar proposal was contained in Article
3(2)(d) about overfight.
154 Chapter 7
The UK proposal was put forward with the decision of the ICJ in the Corfu Channel
case
127
in mind: the Court found that States were obliged to give notice of dangers to
navigation in waters under their sovereignty. This duty was codifed in Article 15 oI
the CTSCZ and is repeated in Article 24 of the present Convention. Those articles
also contain the concept of not hampering passage, whilst Article 16(4) of the CT-
SCZ contained a prohibition against the suspension of passage through straits used
for international navigation between two parts of the high seas.
In discussions in the Second Committee in 1974, Denmark pointed out, with ref-
erence to paragraph 2(f) of the proposals by Bulgaria and its co-sponsors, that Den-
marks main island was separated from other parts of the country and from Sweden
by narrow straits and that it was of vital social and economic importance to be able to
build bridges and tunnels across those straits. Denmarks plans took full account of
the obligation not to hamper the free passage of ships in transit.
128
In the Fiji/UK Group, the questions were raised of the difference between impede
and hamper and of whether building a high bridge would amount to hampering,
even if navigation was not affected. In reply, it was pointed out that the article was
designed to forbid activities which could have the incidental effect of inhibiting pas-
sage. It was decided to retain the word hamper in the Groups draft articles on that
basis.
In subsequent discussions in the Second Committee, the draft article was not sub-
ject to much questioning or opposition. Suggestions to qualify the word hamper by
the adverb unduly were not accepted, no doubt because it would have weakened
the duty and introduced great scope for subjective interpretations. Suggestions about
the liability oI the fag State oI a warship Ior loss or damage were not pressed in this
article.
129
A suggestion about prior notifcation or authorization was not accepted by
the Conference. In 1978, Spain put forward an amendment
130
to delete reference to
overfight, but this Iailed to achieve the requisite support. Morocco tabled proposals
specifying certain duties of States making use of straits
131
(insurance requirements
and the liability of ships and aircraft for damage caused to the State bordering a
strait); but again these proposals were not accepted in the form presented.
Article 44 contains three elements. The frst not hampering passage means
that movement has not to be obstructed by material obstacles or retarded, hindered
or impeded (a word used in Article 38). A State bordering a strait may not seek to
impose legislative requirements which would in effect retard or prevent passage, nor
seek to arrest ships in transit,
132
nor allow the construction of works or installations
127 ICJ Reports, 1949, p. 3.
128 Official Records, vol. 2, p. 124 (Second Committee, 11th meeting, 22 July 1974).
129 But see Article 42(5).
130 Amendment C2/4.
131 Amendment C2/22.
132 To attempt an arrest in the middle of a busy strait may be a hazardous operation, e.g. in
the case oI a large tanker. Arrest in port is a diIIerent matter, as is the policing oI fshing
operations or illicit traIfc in narcotics by small boats.
which would impede ships or aircraIt in transit. The second element notifcation oI
dangers is confned to matters within the knowledge oI the State bordering a strait.
It was probably not intended to extend the duty of such a State beyond waters under
its sovereignty: where, for example, two such States are on opposite sides of a strait,
each is responsible for the waters on its side of the boundary running through the
strait. Notifcation is eIIected by Notices to Mariners and other appropriate means.
The third element non-suspension is a rule to which no exceptions are made in
the Convention. This rule refects the special status oI straits used Ior international
navigation.
SECTION 3. INNOCENT PASSAGE
Article 45
Innocent Passage
1. The regime of innocent passage, in accordance with Part II, section 3, shall
apply in straits used for international navigation:
(a) excluded from the application of the regime of transit passage under
article 38, paragraph 1; or
(b) between a part of the high seas or an exclusive economic zone and the
territorial sea of a foreign State.
2. There shall be no suspension of innocent passage through such straits.
Section 3, which contains a single article, deals with those types of straits used for
international navigation in which the basic regime of passage is not transit passage
but rather innocent passage.
Article 45 was derived from proposals by the UK
133
and by Bulgaria and others.
134
Both sets of draft articles proposed the regime of non-suspendable innocent passage
in the case of a strait used for international navigation between the high seas and the
territorial sea of a foreign State. This was the rule in Article 16(4) of the CTSCZ.
135
The UK also proposed the same regime of non-suspendable innocent passage for cer-
134 A/CONF. 62/C.2/L. 11, Article 2.
135 In introducing the proposals, the UK delegation (Mr Dudgeon) stated: With regard to
straits used for international navigation between one part of the high seas and the territo-
rial sea of a foreign State, the interest of the International Community in free navigation
is not so strong as in the case of straits linking two parts of the high seas. This difference
is recognized by Article 8 of our proposals. Straits linking the high seas with the territo-
rial sea oI a Ioreign State would be subject to the regime oI innocent passage as defned
in Chapter 2 of our proposals instead of to the regime of transit passage described in
Chapter 3 but, because no alternative way of sailing to the territorial sea of the State
concerned would exist, we propose that the regime of innocent passage would not be
subject to suspension. What we propose in short corresponds with the present position
in such straits.` This statement was summarized in vol. II oI the OIfcial Records at page
102 (para. 32).
156 Chapter 7
tain types of straits connecting two parts of the high seas which were excluded from
its proposals concerning transit passage, i.e. broad straits through which a good high
seas route existed and straits formed by an island of the coastal State to seaward of
which a good high seas passage existed. In addition, the rules about traIfc schemes in
straits (now Article 41) were to apply in such straits. These proposals were accepted
by the Fiji/UK Group on Straits.
136
In his ISNT, the Chairman of the Second Com-
mittee followed those proposals for the most part. He accepted the main elements,
but added references to the EEZ and altered the structure, no doubt in order to give
the article greater clarity. This ISNT made two other changes. It removed completely
the broad strait from the application of Part III, by means of the new Article 36
(high seas routes, etc.); and, secondly, it did not apply the proposed rules about traIfc
schemes in other straits (now Article 41) to the straits covered by section 3.
In discussion of the ISNT, the proposal attracted criticism on various grounds, as
well as much support. The article was criticized because it divided straits into dif-
ferent categories and did not treat them equally: against this, it was pointed out that
different considerations applied to straits connecting two parts of the high seas from
those connecting the high seas to the territorial sea of a foreign State.
137
The prohibi-
tion against suspension was criticized; but this position attracted little support, prob-
ably because it ran counter to Article 16(4) of the CTSCZ. The proposals of Malaysia
and its co-sponsors,
138
to the effect that non-suspendable innocent passage should be
the regime in all straits used for international navigation, were recalled; but this was
in effect a criticism of the whole of section 2 and did not attract much support. The
UK again put Iorward its proposal that the special rules about traIfc schemes in other
straits should apply also to section 3: although some support was voiced, this pro-
posal was not accepted, with the result that the rules in Article 22 about sea lanes and
so forth in the territorial sea apply as part of the regime of innocent passage to straits
covered by Article 45. A UK drafting suggestion to make paragraph 1(a) of the article
into a simple cross-reference to Article 38(1) was, however, accepted in the ISNT and
now appears as Article 45(1)(a). Three informal proposals to the effect that in straits
to which Article 45 applies the coastal State could (a) require prior notifcation or
authorization for the passage of foreign warships, (b) confne the passage oI research
or survey ships, tankers and ships carrying nuclear materials to designated traIfc
lanes, and (c) require prior notifcation oI the passage oI Ioreign nuclear powered
ships, were not accepted by the Conference. Finally, attention was drawn to the need
136 Article 7 of its Draft Articles. In discussion, it was noted that account should be taken in
referring to the high seas of the concept of the EEZ, then under active discussion in the
Conference.
137 The questions raised by the aide-mmoire of Canada, Chile and Norway of 30 April 1975
(Platzoder, op. cit. above (n. 16), p. 223) about the categories of strait put forward in the
Fiji/UK Groups proposals were raised again in these discussions in the Second Commit-
tees working group. These questions were no doubt prompted by particular geographical
confgurations in those States. The situation in the Aegean Sea was also alluded to by the
coastal States concerned.
138 A/CONF. 62/C.2/L. 16, Part II.
to adopt similar methods for establishing baselines in straits where two States were
adjacent or opposite each other before tackling the issue of delimitation; however,
this subject is regulated by Part II (Territorial Sea), not by Part III (Straits).
Article 45 applies to two types of strait used for international navigation:
(a) a strait which is formed by an island of the State bordering the strait and its
mainland and which is situated in a place where there exists seaward of the
island a route through the high seas or EEZ of similar convenience; such a strait
is excluded from the transit passage regime by Article 38(1);
(b) a strait connecting the high seas or EEZ and the territorial sea of a foreign State;
foreign means the same as in Article 16(4) of the CTSCZ, i.e. a State situated
beyond the coastal State(s) bordering the strait. The French text uses the formu-
lation dun autre tat, consistent with that meaning, as is the Spanish de otro
Estado.
In those types oI strait, the regime oI innocent passage as it is defned in Part II ap-
plies in all its respects, subject to the exception that the right of innocent passage
through such straits may not be suspended.
139
Appendix
Set of chartlets derived from those made available in the Second Committee by the
UK Delegation in 1974. (The numbers of the articles correspond with those in the
Convention.)
139 Article 25(3) permits temporary suspension oI the right oI innocent passage in specifed
areas of the territorial sea. Article 45(2) prohibits suspension in straits where it would
prevent passage through them.
158 Chapter 7
160 Chapter 7
Chapter 8
The Legal Regime of the Straits around Great Britain*
I The Geopolitical Setting
Great Britain is a large and populous island situated off the North-West European
continental land mass (see the map annexed to this paper). Great Britain and its asso-
ciated islands
1
form, together with Northern Ireland, the metropolitan territory of the
United Kingdom: the full title of the State is the United Kingdom of Great Britain
and Northern Ireland (in this paper, UK). The UK has long been a maritime state,
yet it also has important coastal interests. Around the coasts of Great Britain, there
are several named straits and some other similar stretches of sea bearing a variety of
names.
2
Different regimes of navigation apply in these different areas of sea, com-
posed mainly of territorial sea and internal waters. This paper examines the legal re-
gimes applicable to different areas. In particular, the rights of passage of foreign ships
* This chapter was frst published in ztrk and zkan (eds.), The Proceedings of the Sym-
posium on the Straits used for International Navigation (2002). The cartographical and
other assistance oI Chris Carleton. Law oI the Sea Division, UK Hydrographic OIfce is
gratefully acknowledged.
1 Notably, the Isle of Wight, the Isles of Scilly, Anglesey, the Hebrides, the Orkney Islands
and the Shetland Islands. The Isle of Man, Guernsey and Jersey are Dependencies of the
Crown and constitutionally separate from the UK.
2 For instance, there are several Channels, two Minches and a Gap with two parts.
164 Chapter 8
and aircraft are noted, as well as the rights of the UK as the coastal state to regulate
the exercise of those rights of passage.
II The Evolution of British Practice in Regard to the Territorial Sea
Following the failures at both the First and Second United Nations Conferences on
the Law of the Sea, held respectively in 1958 and 1960, to reach agreement on the
question of the maximum breadth of the territorial sea, the UK maintained its limit of
3 nautical miles (nm). However, during the next decade diplomatic protests were no
longer addressed to States which claimed 4, 6, 10 or 12 nm. In 1964, the UK imple-
mented the rules on baselines contained in the Geneva Convention on the Territorial
Sea and the Contiguous Zone
3
and also introduced a fshery limit beyond the territorial
sea extending to a maximum of 12 nm from those baselines.
4
However, it did not do
so unilaterally: rather, it acted in agreement with its neighbouring states in the form
oI the European Fisheries Convention oI 1964. In 1974, at the frst substantive ses-
sion of the Third UN Convention on the Law of the Sea, the UK delegation presented
a package of detailed proposals, including 12 nm as the new maximum breadth of the
territorial sea, the right of innocent passage and the right of transit passage through
straits used Ior international navigation. These proposals infuenced the eventual out-
come of the Conference on these important issues.
5
In 1987, the UK abandoned the
3 mile limit of the territorial sea, which it had upheld for very many years, both dip-
lomatically and in former times by sending the Royal Navy. The Governments deci-
sion to extend was based upon the outcome of the Third UN Conference on the Law
of the Sea and the practice of States. The Government took the position that the terms
of the United Nations Convention on the Law of the Sea (the LOS Convention)
were helpful, with the sole exception of Part XI concerning deep sea bed mining. In
line with Parts II and III of the Convention, the Territorial Sea Act 1987 established
the maximum breadth of the British territorial sea as 12 nautical miles.
6
There is a
need for boundaries in three areas where neighbouring jurisdictions are situated less
than 24 nm away. These jurisdictions are France, the Republic of Ireland and the Isle
of Man which, although British territory, has its own legislation for the territorial sea.
The timing of the Bill had much to do with the preparations to construct the Channel
Tunnel under the straits of Dover and the wish to tunnel through seabed which was
either British or French in all respects, so as to have jurisdictional certainty.
3 Territorial Waters Order in Council 1964. The baselines are a mixture of normal base-
lines, bay-closing lines and some straight baselines. Further details are in Chapter 26
below.
4 Fishery Limits Act 1964.
5 A/CONF.62/C.2/L.3. For further details, see Nandan and Anderson, Straits Used for
International Navigation: A Commentary on Part III of the UN Convention on the Law
of the Sea, 60 BYBIL (1989) 159 (see now Chapter 7 above); and Caminos, The Legal
Regime of Straits in the 1982 United Nations Convention on the Law of the Sea, 205
Hague Recueil (1987), p. 9.
6 The 12 nm limits are shown on Figure 1, the map annexed to this paper.
165 The Legal Regime of the Straits around Great Britain
In 1997, the UK acceded to the LOS Convention after introducing further legisla-
tion, notably on pollution jurisdiction and fshery limits.
7
Today, many aspects of
British maritime law and practice are based upon the terms of the LOS Convention.
8
As this paper will attempt to show, this general position applies equally to the legal
regime in the various straits and similar stretches of water around Great Britain.
III British Straits and Similar Areas of Sea
Part III oI the LOS Convention defnes diIIerent legal regimes Ior several types oI
straits and irrespective of the name of the waters in question. The following six types
oI strait or similar areas oI sea can be identifed around Great Britain.
A Straits Which Are Not Used for International Navigation
The Menai Strait lies between Anglesey and the mainland. Bay-closing lines have
been drawn across both ends of the Strait, so that the waters have the status of internal
waters. There are low bridges at Conway for rail- and road-ways, linking Anglesey to
the rest of Wales, across the narrow strait. It connects two areas of the territorial sea.
It is not used for international navigation and there are no rights of passage under in-
ternational law through this strait. As a result, the applicable regime is based entirely
upon UK legislation.
B Broad Straits Used for International Navigation
St. Georges Channel lies between Wales and Ireland, which has a 12 nm limit for its
territorial sea. At its narrowest point, the Channel is 36 nm wide, with the result that
there is a corridor of high seas down the middle of the Channel. Ships on voyages
between ports on the Irish Sea, such as Liverpool and Dublin, and ports in France,
Iberia or the Mediterranean pass through St Georges Channel. On the Irish side of
the Channel, there is a traIfc scheme known as 'OII Tuskar Rock and on the Welsh
side a traIfc separation scheme exists oII the Smalls, both approved by the Interna-
tional Maritime Organisation (IMO). A boundary was agreed between Ireland and the
UK for the respective continental shelves in 1988.
9
This Channel is subject to article
36 of the LOS Convention, entitled High Seas Routes through straits used for
7 A pollution control zone was created in line with Part XII and the claim to measure the
fshery zone oI 200 nm Irom Rockall was abandoned in view oI article 121(3) oI the LOS
Convention: for details see Chapter 4 above.
8 But not all aspects: for example, the UK has nor declared a contiguous zone or an exclu-
sive economic zone.
9 For details, see Report No. 9-5 by the present writer in Charney and Alexander (eds.),
International Maritime Boundaries, Vol. II, p. 1767.
166 Chapter 8
international navigation
10
according to which the applicable regime beyond the ter-
ritorial sea is Ireedom oI navigation and Ireedom oI overfight.
C Areas of Internal Waters behind Bay Closing Lines
The narrow channel of sea between the Isle of Wight and the mainland of Great Brit-
ain is known as the Solent. Bay-closing lines have been drawn, in accordance with
article 10 of the LOS Convention, across the western and eastern entrances to the
Solent which are 15 and 16.5 nm across, respectively. The waters behind the two bay-
closing lines are internal. Although the Solent is important for navigation, it is used
by ships calling at ports in the vicinity, such as Southampton, Portsmouth, Cowes
and Ryde. The Solent is not used by ships in transit up or down the English Channel.
There is no right of innocent passage for ships in transit through the Solent. The legal
regime is based on UK legislation.
D Areas of Internal Waters behind Straight Baselines
In 1964, some continuous straight baselines were drawn around the Hebrides, link-
ing the mainland to the outer Islands.
11
The Hebrides constitute a fringe of islands in
the immediate vicinity of the coasts of the Scottish mainland. The lines were drawn
in accordance with article 4 of the Geneva Convention on the Territorial Sea (now
article 7 of the LOS Convention). The waters on the landward side of these baselines
are internal waters within the meaning of article 8 of the LOS Convention. There runs
to the west and north of Skye and to the east of the Outer Hebrides some stretches of
water known as the Sea of the Hebrides, the Little Minch and the North Minch (to-
gether known as the Minches) which have long been used by smaller coastal ves-
sels proceeding from say Dublin or Glasgow to Oslo or the Baltic ports. Paragraph 2
of article 8 provides that where the establishment of straight baselines has the effect
of enclosing as internal waters areas which had not previously been considered as
such, a right of innocent passage exists in those waters. The British Government has
accepted that a right of innocent passage applies in the Minches. Thus, in answer
to a question about the status oI the Minches, the Minister oI State confrmed 'that
ships of foreign states enjoy innocent passage, but submarines would not be able to
pass through the area except on the surIace, and aircraIt could not overfy, as they
could straits such as the straits of Dover.
12
This question was investigated afresh by
a Commission of Inquiry set up after the loss of the Braer and the position described
in 1987 was confrmed.
13
To seaward of the Hebrides, a deep water route has been
10 A similar situation exists in the eastern part of the English Channel, in the approaches to
the Dover Strait.
11 Territorial Waters Order in Council 1964.
12 Hansard, Lords, 5 February 1987, column 400.
13 Report of Lord Donaldsons Inquiry into the Prevention of Pollution from Merchant Ship-
ping, Cm 2560. For the British Governments Response to the Report, see Cm 2766.
surveyed and approved by the IMO as a traIfc routeing scheme.
14
Tankers and larger
vessels are recommended to use this route.
E Straits in Which a Right of Non-suspendable Innocent Passage Applies
When announcing in Parliament the proposal to extend the breadth of the territorial
sea, the Minister stated the following:
Instraits used for international navigation such as the Pentland Firth south of Orkney
and the passage between the Scilly Isles and the mainland, a right of innocent passage
will continue to exist, in accordance with the practice of states.
15
This right of innocent passage has been recognized in accordance with article 45 of
the LOS Convention in three straits which are formed in two cases by an island and
the mainland of Great Britain and in the third case by a group of islands off the island
of Lewis in the Outer Hebrides. In other words, these three straits were recognised as
falling within the exception in article 38, paragraph 1 of the LOS Convention. In the
case of the passage between the Scilly Isles and the mainland (a passage bearing no
specifc name), there is a route oI similar convenience through the high seas to sea-
ward of the Scilly Isles. In the case of the Pentland Firth, to seaward of the Orkney Is-
lands there is a route of similar convenience known as the Fair Isle Gap (as to which,
see below). Both these straits are used for international navigation, although both are
more than usually hazardous. The Pentland Firth has strong currents and tides, driven
by the Gulf Stream. The Torrey Canyon was lost in 1967 in the waters between the
Scilly Isles and the mainland, causing extensive coastal pollution in England and
France. There is a traIfc separation scheme in Iorce in this area.
16
The third strait,
again not named, is formed between the Outer Hebrides and the Flannan Isles which
lie to the west of the Hebrides. Here again there exists an equally convenient and safe
passage to seaward of the Flannan Isles. However, it should be noted that the route
recommended by the IMO for deep draft vessels passes through this short strait.
In accordance with article 45, this right of innocent passage is the same as that
defned in Part II oI the LOS Convention, except that it may not be suspended.
F Straits in Which the Right of Transit Passage Applies
The UK has accepted that the right of transit passage applies in three straits around
Great Britain. Acceptance was conveyed by means of Ministerial statements in the
two Houses of Parliament during consideration of the Territorial Sea Bill in which
the Government of the day proposed the extension of the breadth of the territorial sea
14 IMO Publication Ships Routeing (1999), Part C Deep Water Routes, Section II/6.
15 Hansard, Lords, 5 February 1987, col. 382.
16 IMO Publication 'Ships` Routeing (1999), Part B TraIfc Separation Schemes, Section
II/4, Off Lands End, between Seven Stones and Longships.
168 Chapter 8
oI the UK to a maximum oI 12 nm. The statements frst alluded to the then proposed
Channel Tunnel and continued as follows:
There is also the wider question of passage through straits. A special regime for naviga-
tion is appropriate in certain important straits where there is no convenient alternative
route from one part of the high seas to another. That has long been recognized in state
practice, international negotiations and the case law of the International Court.
Around the United Kingdom there are three such straits that would be brought entirely
within territorial waters on extension to 12 miles. These are the Fair Isle Gap between the
Shetlands and Orkneys, the North Channel and the Straits of Dover.
In those straits, we consider that, in the light of developments in international law and
state practice, it is necessary to afford others the essential rights of unimpeded passage
Ior merchant ships and warships, a right oI overfight, and the right oI submerged pas-
sage for submarines, with appropriate safeguards for the security and interests of coastal
states.
17
Provisions concerning these rights of passage were not included in the legislation,
which was confned to the question oI limits. However, later legislation did take
account of the right of innocent passage and the right of transit passage for ships,
18
whilst the right oI overfight was specifcally provided Ior by means oI an amendment
to the Air Navigation Order.
19
The detailed situation in these three straits will now be
considered in turn.
1 The Fair Isle Gap
This short strait lies between the Shetland Islands and the Orkney Islands. The small,
inhabited island known as Fair Isle (famous for its knitwear patterns) lies in the centre
of the strait, with the result that rights of passage are available either north or south of
Fair Isle. The strait provides a route for shipping moving between ports in northern
Europe and North America, as well as between Denmark and the Faroe Islands. The
oil tanker Braer ran aground in the strait on the southern tip of the Shetland Islands
en route Irom Norway to Canada. There is no traIfc separation scheme in the strait.
Overfight is permitted in a defned area around Fair Isle, up to its coasts.
17 Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, Mr
Eggar, in Hansard, Commons, Second Reading Committee, 28 April 1987, columns 3
and 4. A similar statement had been made in the House of Lords on 5 February 1987 by
the Minister of State (Hansard, Lords, at column 382).
18 Merchant Shipping Act 1995, section 100C.
19 The Air Navigation (Second Amendment) Order 1987 (Statutory Instruments 1987/2062)
added a new article 91A to the principal Order according a right oI overfight in terms
clearly derived from the wording of articles 38 and 39 of the LOS Convention.
2 The North Channel
The North Channel lies between Scotland and Northern Ireland. It is composed large-
ly of British territorial sea, although the approaches may be regarded as extending
also to some Manx and Irish waters. The North Channel is used by shipping mov-
ing between the Irish Sea and the Atlantic or ports in northern Europe, as well as by
vessels calling at ports on the Firth oI Clyde or BelIast. There is a traIfc separation
scheme in the narrowest part of the strait, between the Mull of Kintyre and Rathlin
Island (part oI Northern Ireland). North-bound vessels are to keep to the traIfc lane
nearer to Scotland and south-bound vessels to that nearer to Northern Ireland. An
area Ior overfight has been defned over the whole length oI the strait where arcs oI
12nm from Scotland and Northern Ireland intersect and extending up to the coasts.
3 The Straits of Dover/Pas de Calais
The Dover Strait extends, including its approaches, for a distance of 65 nm between
the coasts of England and France. At the narrowest point, the strait is 18 nm wide and
on a clear day it is possible to see France from the White Cliffs of Dover. Both France
and the UK have territorial seas extending to the maximum of 12 nm. A territorial
sea boundary in the middle of the strait was agreed in 1988.
20
It is one of the busiest
straits used for international navigation between ports in the North Sea and the Baltic
Sea, on the one hand, and ports in southern Europe, Africa, Asia and the Americas,
on the other. It is a major route for oil tankers and chemical tankers. In 2001, as many
as 120,000 vessels passed through and in addition there were 74,000 movements by
ferries across the strait, carrying 21 million passengers. That year, 654 incidents were
noted by the Dover Coastguards: 193 persons were rescued and 21 lost their lives.
21
A
new radar tracking and associated Vessel TraIfc Management InIormation System
(VTMIS) for the Channel Navigation Information System (CNIS) at the coastguard
station situated on the cliffs above Dover was completed in February 2003. This
state-of-the-art technology increases the effectiveness of monitoring the movement
of ships and the reporting of hazards and dangers in the Dover Strait. The sheer
volume oI traIfc poses saIety problems which are being addressed regularly by the
two Governments and the IMO. The British and French authorities have cooperated
closely over many years in order to improve safety standards. On more than one oc-
casion, they have worked out joint proposals for submission to the IMO concerning
traIfc separation and regulation, in the interests oI saIe navigation and the prevention
of pollution. This practice provided the precedents for the UKs proposals
22
at the
20 Agreement of Paris on the Delimitation of the Territorial Sea, 2 November 1988, with
Declaration: for details, see Report No. 9-3 by the present writer in Charney and Alexan-
der (eds.), International Maritime Boundaries, Vol. II (1992), p. 1735.
21 Press Release No.119e/02 of 13 May 2002 by the British Coastguard and Maritime
Agency (annual survey foe 2001).
22 A/CONF.62/C.2/L.3.
170 Chapter 8
Third UN ConIerence on the Law oI the Sea which infuenced the terms oI articles 22
and 41 of the LOS Convention.
In 1988, the two Foreign Ministers issued a Declaration in the following terms:
The existence of a specihc regime of navigation in the straits is generally acceptea in
the current state of international law. The need for such a regime is particularly clear
in straits, such as the Straits of Dover, used for international navigation and linking two
parts of the high seas or economic zones in the absence of any other route of similar
convenience with respect to navigation.
In consequence, the two Governments recognise rights of unimpeded passage for mer-
chant vessels, state vessels and, in particular, warships following their normal mode of
navigation, as well as a right of overight for aircraft, in the Straits of Dover. It is unaer-
stood that, in accordance with the principles governing this regime under the rules of in-
ternational law, such passage will be exercised in a continuous and expeditious manner.
The two Governments will continue to cooperate closely, both bilaterally and through
the International Maritime Organisation, in the interests of ensuring the safety of navi-
gation in the Straits of Dover, as well as in the southern North Sea and the Channel. In
particular, the trafhc separation scheme in the Straits of Dover will not be affectea by the
entry into force of the Agreement.
With due regard to the interests of the coastal states the two Governments will also
take, in accordance with international agreements in force and generally accepted rules
and regulations, measures necessary in order to prevent, reduce and control pollution of
the marine environment by vessels.
23
The two Governments had co-operated very closely, as fellow members of the Group
of Five, at the Third UN Conference on the Law of the Sea in regard to the question
of passage through straits used for international navigation. This Declaration, issued
by the two Foreign Ministers upon signing the boundary Agreement, applied the
concepts of Part III of the LOS Convention to the Straits of direct interest to the two
governments. This was done at a stage when the Convention was not in force and
neither government had established its consent to be bound by it. The Declaration
served both to strengthen the Conventions regime on navigation, albeit without ex-
pressly referring to that instrument, and to lay the foundation for continued bilateral
cooperation.
Today, a mandatory traIfc separation scheme
24
exists throughout the strait: north-
bound vessels are to use the traIfc lane nearer to France and south-bound vessels
the lane nearer to England. (There are also inshore traIfc zones on both sides.) The
scheme is mandatory in the sense that France and the UK are both parties to the
LOS Convention, that article 22 authorises the coastal state to require foreign ships
exercising the right oI innocent passage to use designated traIfc lanes, that articles
23 For comment, see The Right of Transit Passage and the Strait of Dover by the present
writer in M. Nordquist (ed.), Proceedings of the 13
th
Annual Seminar of the Center for
Oceans Law and Policy, University of Virginia.
24 IMO Publication 'Ships` Routeing Part B TraIfc Separation Schemes, section II/7.
41 and 42 are to similar effect in straits used for international navigation, that the
Collision Regulations contain Rule 10 (TraIfc separation schemes) and, fnally, that
the Convention on the Safety of Life at Sea (SOLAS) contains General Provisions on
Ships Routeing. These provisions represent the international rule of the road at sea
and thus are applied to ships oI all fags. Both France and the UK have enacted legis-
lation making it obligatory to respect the traIfc lanes and the regulations applicable
to them, as agreed through the IMO. In recent years, the British Coastguard Agency,
which has an enforcement unit, has successfully prosecuted masters and owners/
operators oI ships, fshing vessels and yachts Ior traIfc oIIences and Ior pollution
offences arising from collisions in the straits.
25
This is nothing new: as long ago as
1876, the German master of the Franconia was prosecuted on a charge of manslaugh-
ter following a collision in the territorial sea two miles off Dover which led to loss
of 38 lives.
26
The Franconia was on a voyage from Hamburg to the Caribbean. When
the English courts found they lacked jurisdiction, Parliament enacted the Territorial
Waters Jurisdiction Act 1878 conferring jurisdiction for the future. In recent times,
the courts have imposed fnes by way oI penalties upon conviction. No ship has been
arrested at sea.
27
Prosecutions have been brought against persons resident in the UK
and outside the UK who have answered summonses to attend court for trial.
Both Governments have invested in radars and other electronic systems so that
Vessel TraIfc Services (VTS) can now be oIIered to ships in transit. In addition,
the British Government maintains a tug on station at Dover to assist any ship in
diIfculties in the Straits. From 1 July 1999, it has been mandatory Ior ships over
300 tonnes to report to the French coastguard at a point in the southern approaches
and to the Dover Coastguard in the northern approaches when proceeding from the
North Sea southwards. This scheme was drawn up in the IMO under the acronym
CALDOVREP scheme.
28
Overfight in a defned area oI the British halI oI the Strait
is permitted as an exercise of the right of transit passage in accordance with articles
38 and 39 of the LOS Convention.
29
Concluding Remarks
1. The British coasts provide many examples of different legal regimes laid down
in the LOS Convention. In several of these instances, IMO instruments have
also been implemented. However, the UK does not have a strait covered by
article 35 (c), such as the Turkish Straits.
25 See, for example, British Coastguard Agency Press Notices Nos. 97/02 and 133/01,
available on the Websites www.mcga.gov.uk and https://mcanet.mcga.gov.uk/public
26 Reg. v. Keyn (1876) 2 Ex D 63
27 Article 225 sets out the duty to avoid adverse consequences in the exercise of the powers
of enforcement.
28 Details are set out in Marine Guidance Note 128, Navigation in the Dover Strait by the
Maritime and Coastguard Agency
29 Air Navigation (Second Amendment) Order 1987, S.I. 1987/2062, especially Chart A.
172 Chapter 8
2. The British authorities have accepted the burdens of transit passage, including
fag state rights oI overfight and submerged passage, and non-suspendable in-
nocent passage, in appropriate straits. At the same time, the rights and protec-
tions afforded to the coastal state are also invoked by the authorities, always
acting in accordance with the Convention.
3. In particular, there have been long-standing concerns about collisions and oil
spills in the straits, especially just in front of the White Cliffs of Dover. These
concerns have been addressed actively in cooperation with the French authori-
ties, and also in cooperation with the international maritime community through
the IMO. There is now a direct link between the radars at Dover and those at Cap
Gris Nez.
4. The latest technology has been employed so that the coastguards can talk to
ships passing along the strait and this enables them to give warnings of hazards
ahead such as fog or vessels moving slowly. Tugs, buoys, lights, radars and VTS
are all provided.
5. Ships are required to obey the rules agreed in the LOS Convention and the IMO.
Those who fail to respect the rules run the real risk of being prosecuted in court.
The needs of maritime safety call for nothing less.
6. The British practice of designating straits in which transit passage or non-sus-
pendable innocent passage exists may be unique, as may the practice of granting
overfight rights in defned areas up to the coast.
7. Finally, it can be stated that British practice in regard to the straits and similar
passages around Great Britain is now based directly upon the twin foundations
of the LOS Convention and the IMO Conventions concerning safety of naviga-
tion.
Chapter 9
The Legal Regime of the Channel/La Manche*
This chapter surveys the current legal status of the narrow seas separating the coasts
of France and the United Kingdom. The survey will include an examination of the
ways in which the two coastal states have implemented the United Nations Conven-
tion on the Law of the Sea (LOS Convention
1
), as well as the extent to which the
two Governments have cooperated over matters such as the safety of navigation,
environmental protection and the delimitation oI boundaries to their mutual beneft.
There exist close economic and social links between the two Governments and na-
tions, which remain allies and partners as well as neighbours across the waters.
I The Geographical Setting
The waters in question are known, of course, in French somewhat poetically as La
Manche and in English more prosaically as the English Channel (in this article,
* First published in La Mer et Son Droit, Mlanges offerts Laurent Lucchini et Jean-
Pierre Quneudec (2003) 39-56.
1 In a note entitled Law of the Sea Convention: Confusion over the use of UNCLOS,
and references to other Recent Agreements, W.R. Edeson has urged authors to use the
correct title, rather than more descriptive ones such as UNCLOS and Montego Bay
Convention: see 15 International Journal of Marine and Coastal Law (2000), p. 413.
176 Chapter 9
simply the Channel). These shallow waters
2
stretch from the Straits of Dover/Pas
de Calais in the east to an imaginary line drawn from Ushant/Oeussant to the Isles
of Scilly in the west, a total distance of approximately 304 nautical miles (nm). The
widths vary from as little as 18 nm in the Straits to a maximum of 99 nm in the west.
To the east of a line from Cherbourg to the Isle of Wight, the Channel is very nar-
row and thus composed primarily of territorial seas, whereas to the west of that line
the Channel opens out towards the North Atlantic. The English coasts, including
those of the Isle of Wight, form the whole of the north side of the Channel, while the
French coasts face the south side, producing a simple north-south division. However
this simple pattern is complicated by the presence of the Channel Islands/ Les Iles
Anglo-Normandes. Situated within sight of the Norman and Breton coasts, the two
Bailiwicks of Guernsey and Jersey remain Dependencies of the British Crown, held
in right of the ancient Duchy of Normandy.
II The Principal Uses of the Channel
The Channel has many different uses. Above all, it represents a vital artery for in-
ternational shipping, whether passing through in transit between ports in Northern
Europe and the rest of the world or calling at major Channel ports such as Le Havre,
Cherbourg or Southampton. Approximately 120,000 vessels pass through the straits
each year and almost as many use the traIfc lanes oII the Casquets.
3
In view of the
high volumes oI traIfc, the coasts oI France and the United Kingdom are especially
vulnerable to pollution resulting from collisions between passing ships, as well as
sinkings, strandings, losses of deck cargo over the side and other incidents of navi-
gation. Over the years, the Channel has seen all too many accidents which have led
to loss of life
4
and pollution oI the sea and coasts. It suIfces to mention the cases oI
the Torrey Canyon, the Amoco Cadiz, the Perentis and the Ievoli Sun. During 2001,
there were 654 incidents in the vicinity of the Straits of Dover and 21 lives were
lost.
5
Ferry traIfc between French and English ports is heavy on several routes, Irom
Dover-Dunkirk in the east to Plymouth-Roscoff in the west. The average number of
2 The depths vary from 40 metres to 100 metres, except in the Hurd Deep to the north of
Guernsey which reaches 160 metres. Much of the environmental material has been taken
from Tappin and Reid, The English Channel, Chapter 5 in C.R.C. Sheppard (ed.) Seas
at the Millennium: An Environmental Evaluation (2000).
3 Annual Review of the Dover Coastguards for 2001, in the Press release No 119e/02 of 13
May 2002, available on www.mcga.gov.uk. Information for mariners is contained in the
British Admiralty Charts and French charts, as well as in the Admiralty publication Do-
ver Strait Pilot. For general surveys, see L. Cuyvers, The Strait of Dover (1986), Volume
8 in the series International Straits of the World, edited by G.J. Mangone, and The Strait
of Dover and the southern North Sea: Some recent Legal Developments, 7 International
Journal of Estuarine and coastal Law (1992) 85, by the present writer.
4 On 27 August 2002, Le Monde reported the loss oI the French fshing vessel 'La Cis-
tude after a collision with a Norwegian chemical tanker approximately 30 nm west of
the Channel Islands, resulting in the deaths oI Iour fshermen: www.lemonde.fr.
5 Annual Review of the Dover Coastguards for 2001 (fn. 3).
177 The Legal Regime of the Channel/La Manche
ferry movements is more than 74,000 per annum, representing more than 21 million
passenger journeys.
As well as navigation, the waters, seabed and subsoil of the Channel have several
other uses. The waters and seabed provide valuable fshing grounds Ior coastal ves-
sels from ports on both shores operating under the Common Fisheries Policy of the
European Community (EC),
6
as well as local vessels from Guernsey and Jersey.
7
The waters wash beaches at many resorts, such as Le Touquet, Deauville, St. Hel-
ier, Eastbourne and Brighton, which attract many visitors for recreational purposes,
swelling the coastal populations of approximately nine million residents. The seabed
and subsoil of the continental shelf contain deposits of sand and gravel which are
worked from both shores in order to supply the building and construction industries.
The experience with hydrocarbons has been less positive: despite extensive seismic
survey work of the seabed and subsoil conducted under French or British auspices,
there have been very Iew discoveries. There is oil production Irom a feld situated
both on and just off the English coast near Poole. Both coasts provide sites for nu-
clear installations at Dungeness and Cap de la Hague, whilst the tidal power station
near the mouth of the River Rance remains the leading example in the world of this
renewable energy source. The high tidal range, especially in Granville Bay, provides
opportunities for tidal energy and there is also much scope for the generation of en-
ergy from off-shore wind farms. Both coasts provide major naval bases, notably Port-
smouth, Cherbourg, Plymouth and Brest, as well as marine research stations such as
the IFREMER fsheries laboratory in Boulogne and the Southampton Oceanography
Centre. In the past, wastes were dumped into the Channel, especially into the Hurd
Deep in the western half of the Channel, to the north of Guernsey. Today, dumping
has been phased out in accordance with the Convention for the Protection of the
Northeast Atlantic (OSPAR) which both France and the United Kingdom have rati-
fed. Environmental protection is based increasingly upon the concept oI Integrated
Coastal Zone Management, implementing a European strategy.
8
In short, the interests of both France and the United Kingdom in these waters are
numerous and most important. Among the diIIerent uses, the shipping traIfc is the
most signifcant today Irom the legal point oI view.
6 The current framework is contained in Council Regulation (EC) No.2371/2002.
7 The Channel Islands relations with the EC are governed by a Protocol to the Treaty for
the Accession of the United Kingdom.
8 Commission document European Focus on Coastal Zones; EC Commission proposal
for a European Strategy for ICZM (COM/2000/547); several areas in the Channel were
chosen as pilot areas for evaluating the concept during the 1990s. In addition, several EC
Directives apply to the coasts of the Channel, including those on Bathing Waters (76/160/
EEC) and some others to the EEZs, including the Directive on the Conservation of Natu-
ral Habitats (92/43/EEC). This was confrmed by the decision oI 5 November 1999 made
by an English Court in the case of R. v. Secretary of State for Trade and Industry, ex parte
Greenpeace.
178 Chapter 9
III National Jurisdiction Applicable in the Channel
During the mid-1990s, frst France and then the United Kingdom became parties to
the LOS Convention. Each Government naturally took care to ensure that its national
legislation implemented, or was at least compatible with, the terms of the Conven-
tion. Today, the Convention is directly applicable as far as coastal state jurisdiction
is concerned to the whole of the Channel, including the Straits of Dover, and as far
as fag state jurisdiction is concerned to all French and British ships. In other words,
some off-shore legislation of France, the United Kingdom, Guernsey or Jersey is ap-
plicable in every different part of the Channel, leaving no area beyond the limits of
national jurisdiction.
Of the two littoral states,
9
France has the more complete and modern national
jurisdiction. As long ago as 1971,
10
France extended the breadth of the territorial sea
from 3 to 12 nautical miles (nm) measured from the baselines. In the Channel, normal
baselines,
11
bay-closing lines
12
and some straight baselines
13
were used and the maxi-
mum limit was made subject to the need for boundaries where the coasts of England,
Guernsey and Jersey were situated less than 24 nm away. Writing shortly afterwards,
Professor Queneudec explained the three reasons for what was considered by many
foreign observers at the time to be a bold move. First, France had already taken
jurisdiction over fsheries and customs matters in a zone extending to 12 nm. Sec-
ondly, in the approach to the Third UN Conference on the Law of the Sea, France
was signalling to the international community that 12 nm would represent a reason-
able maximum limit for the territorial sea. Finally, France had concerns as a coastal
state over both vessel-source pollution and security.
14
This French initiative was, of
course, fully vindicated by the outcome of the Conference which accepted the 12nm
limit and struck the appropriate balance between the pollution and security interests
of the coastal state, on the one hand, and the general international interest in the ius
communicationis,
15
on the other. France has implemented the right of innocent pas-
9 For general surveys, see E. Franckx (ed.), Vessel-Source Pollution and Coastal State
Jurisdiction (2001), Chapter X, Case Study of France by Patrick Daillier and Chapter
XVII, Case Study of the United Kingdom by the present writer.
10 Law No. 71-1060 of 14 December 1971 regarding the Delimitation of French territo-
rial waters: Journal Ofhciel ae la Republique Francaise (JORF), 30 December 1971, p.
12899.
11 Decree oI 19 October 1967 defning the straight baselines, etc., in UN Legislative Series,
ST/LEG/SER.B/15. France and the United Kingdom both use the lowest astronomical
low water line for determining the baseline.
12 Notably, across the mouth of the River Seine, which is the main source of fresh water
entering the Channel.
13 Notably, from Mont St. Michel westwards along the north coast of Brittany.
14 J.-P. Queneudec, France in Churchill, Simmonds and Welch (eds.), New Directions in
the Law of the Sea: Collected Papers, Vol. III, (1973), p. 257.
15 A term used by the International Court of Justice in the Nicaragua Case, ICJ Reports
1986, at p. 111.
sage in domestic legislation
16
and has established both a contiguous zone,
17
as permit-
ted by article 33 of the LOS Convention extending to a maximum of 24 nm, and an
Exclusive Economic Zone (EEZ) extending to a maximum of 200 nm in conformity
with Part V of that Convention,
18
subject in both cases to the need for boundaries with
neighbours such as the United Kingdom. In its EEZ, France exercises jurisdiction
over pollution, minerals in the continental shelI, marine scientifc research and other
economic uses, in accordance with the LOS Convention. In short, French maritime
legislation appears to implement fully all the relevant aspects of the LOS Convention
in regard to the relevant parts of the Channel.
In contrast, the United Kingdom has moved more cautiously, waiting until well af-
ter the conclusion of the Third UN Conference on the Law of the Sea before abandon-
ing the 3nm limit. The Territorial Sea Act 1987 extended the breadth of the territorial
sea of the United Kingdom to the maximum of 12 nm. The limit is measured in the
Channel from normal baselines, as well as bay-closing lines across several bays such
as Lyme Bay. Two such lines have also been drawn across the Solent and Spithead,
to and from the Isle of Wight.
19
The territorial sea of Jersey was extended in 1997
20
to limits towards France, as well as towards Guernsey (around which, however, the 3
nm limit of the territorial sea is still retained).
This new legislation did not fully replace the now somewhat antiquated Territo-
rial Waters Jurisdiction Act 1878, enacted in response to the decision of the English
courts in the case of Reg. v. Keyn.
21
The modern concept of innocent passage had
16 Decree No. 85/185 of 6 February 1985 regulating the Passage of Foreign Ships through
French Territorial Waters, in UN Publication The Law of the Sea: Baselines: National
Legislation (1989), at p. 168.
17 Act oI 31 December 1987 concerning the campaign against drug traIfcking, JORF l 5
January 1988, p. 159.
18 Law No. 76-655 of 16 July 1976 relating to the Economic Zone off the coasts of the ter-
ritory of the Republic; Decree No. 77-130 of 11 February 1977 relating to the Channel
and the Atlantic Ocean: UN Publication, The Law of the Sea National Legislation on
the Exclusive Economic Zone (1993), p. 96.
19 The baselines were laid down by the Territorial Waters Order in Council 1964, which was
given statutory force by the Territorial Sea Act 1987, c. 49. The boundary in the Dover
Strait is defned by the Territorial Sea (Limits) Order 1989 (S.I. 1989/482), implementing
the boundary Agreement of 2 November 1988 (Cm 557).
20 By the Territorial Sea Act 1987 (Jersey) Order 1997 (S.I. 1987/278), as amended by the
Territorial Sea Act 1987 (Jersey) (Amendment) Order 2002 (S.I. 2002/250) in order to
implement the maritime boundary Agreement signed at Saint Helier on 4 July 2000 (Cm
5024). The limits around Jersey do not reach the 12 nm line on account of the presence
less than 24nm away of the French coasts and those of Guernsey.
21 Following a collision just outside Dover between the Strathclyde and the German regis-
tered vessel Franconia, the latters Master, Ferdinand Keyn, was prosecuted. The deci-
sion in R. v. Keyn (1876) 2 Exch. D. 63 concerned the question of the jurisdiction of the
English courts over suspected criminal offences by foreign nationals on board foreign
ships passing through the territorial sea. The Act of 1878 made clear that such jurisdic-
tion could be exercised in certain instances.
180 Chapter 9
not been articulated in those days. As a result, the legislation in force today takes ac-
count of, or allows for,
22
but still does not expressly implement, the right of innocent
passage and the right of transit passage
23
as those important rights have now been
articulated in the LOS Convention. Moreover, the United Kingdom has not enacted
legislation to create either a contiguous zone or an EEZ, as permitted by the LOS
Convention. Instead, customs jurisdiction
24
is generally coincident with the territorial
sea, whilst jurisdiction over fsheries is exercised over a fsheries zone extending to
the maximum limit of 200nm
25
and jurisdiction over vessel-source pollution is exer-
cised over an ad hoc pollution control zone of 200nm, albeit with a slightly different
extent.
26
These two Iunctional zones in respect oI fsheries and pollution are Iounded
upon the corresponding two elements contained in the concept of the EEZ, but with-
out employing that term of art and without taking advantage of other jurisdictional
possibilities available to coastal states under the terms of the LOS Convention.
Fortunately, these differences between the nature and scope of the respective
French and British legislation applicable to the Channel do not appear to have cre-
ated problems between the two sides in practice.
IV Delimitation of Maritime Boundaries
In general, it may be said that active cooperation between opposite coastal states is
greatly facilitated by the existence of agreed boundaries since they normally bring
jurisdictional clarity.
27
Today, France and the United Kingdom have several bound-
ary agreements in force in different parts of the Channel, the Straits and the southern
North Sea.
Beginning with the continental shelf, both countries became parties to the Geneva
Convention on the Continental Shelf of 1958 during the mid-1960s. French acces-
sion was made subject to reservations to article 6 (delimitation) in regard to Granville
Bay and the Straits of Dover, where the French Government considered there existed
22 See for example section 100C(1) (b) of the Merchant Shipping Act 1995 whish refers to
ships exercising the right of innocent passage and the right of transit passage.
23 Except as regards overfight, in respect oI which the Air Navigation (Second Amend-
ment) Order 1987 (S.I. 1987/2062) defned an area above the Dover Strait in which
aircraft in transit could exercise the right of transit passage in accordance with articles 38
and 39 of the LOS Convention.
24 Customs and Excise Management Act 1979. Special arrangements for the Channel Tunnel
were made by the Channel Tunnel (Customs and Excise) Order 1990 (S.I. 1990/2167).
25 Fisheries Limits Act 1976, c. 86. The fsheries limits around Guernsey extend to a maxi-
mum of 12 nm, in accordance with the Fishery Limits Act 1964, which was enacted in
order to give effect to the European Fisheries Convention of 1964.
26 Merchant Shipping (Prevention of Marine Pollution) (Law of the Sea Convention) Order
1996, S.I. 1996/282; Merchant Shipping (Prevention of Pollution) (Limits) Regulations
1996, S.I. 1996/506.
27 As the American poet, Robert Frost, observed, Good fences make good neighbors:
Mending Wall, in Ellmann (ed.), New Oxford Book of American Verse, p. 395.
special circumstances displacing the principle of equidistance. Responding to the
wishes of the oil and gas industry to begin prospecting in the area, both governments
took steps to implement in their domestic law the conventional rights over the natural
resources of the seabed and subsoil of the continental shelf. Negotiations for a seabed
boundary along the Channel were opened. During the early 1970s, these talks were
partly successful in that agreement in principle was reached for the eastern part of
the continental shelf, situated to the east of Longitude 0 degrees 30 minutes West of
the Greenwich Meridian. However, major differences of approach remained in two
areas: frst, in the western part oI the Channel, dubbed the 'Mer dÌroise in French,
and, secondly, around the Channel Islands where the French reservation concerning
Granville Bay was invoked. Looking back and with the beneft oI hindsight it was
the prevailing uncertainty over the applicable principles and rules in the particular
geographical circumstances which prevented the reaching of full agreement, despite
many rounds of talks and the generally good relations between the two governments.
They shared the wish to create conditions under which commercial prospecting could
be conducted. Given also their shared attachment to the rule of law, the two Govern-
ments agreed to refer the disputed issues to arbitration by the Paris Agreement of 10
July 1975.
The ad hoc Court oI Arbitration was charged not with answering specifc ques-
tions posed by the parties concerning the identifcation oI the applicable rules, as had
happened in the North Sea Continental Shelf Cases before the International Court
of Justice (ICJ), but rather with the much more sensitive task of determining the ac-
tual course of the boundary(s). The Award of the Court of Arbitration
28
resolved the
dispute in a reasoned decision which has been widely cited both by other courts and
tribunals, as well as by learned commentators,
29
usually, but not invariably, with ap-
proval.
30
The decision attempted to reconcile the approach to the question of delimi-
tation taken in the Convention on the Continental Shelf with that adopted in the North
Sea Cases by the ICJ.
31
This reconciliation appears now to have been endorsed by a
differently constituted ICJ.
32
The Award noted that the Channel was a major route of
international maritime navigation serving ports outside the territories of either of the
parties and that the geographical, political and legal circumstances tend to evidence
28 RIAA, vol. XVIII, p. 75.
29 J.-P. Queneudec, Laffaire de la Delimitation du Plateau Continental entre la France et le
Royaume Uni, 83 RGDIP (1979) 53;D.W. Bowett, The Arbitration between the United
Kingdom and France concerning the Continental Shelf Boundary in the English Chan-
nel, 49 BYBIL (1978) 1.
30 The French authorities were probably more pleased with the result than their British
counterparts.
31 Para. 70 of the Decision of 30 June 1977.
32 In its decision in the Case concerning Maritime Delimitation and Territorial Questions
between Qatar and Bahrain, the ICJ, presided over by Judge Guillaume, noted that the
equidistance/special circumstances rule was closely interrelated with the equitable prin-
ciples/relevant circumstances rule (para. 231) and later, in para. 247, cited the decision of
the Court of Arbitration in the Channel Case.
182 Chapter 9
the predominant interest of the French Republic in the southern areas of the English
Channel
33
This predominant interest was protected by two boundaries laid down
by the Court oI Arbitration, the frst in the western Channel and the Celtic Sea where
half effect was given to the Isles of Scilly, and the second in the form of arcs of 12 nm
running to the north and west of Guernsey in such a way as to create an enclave.
34
Today, the situation regarding maritime boundaries in the Channel has many as-
pects.
35
First, the boundaries between France and the United Kingdom in the west-
ern part of the Channel and the Celtic Sea remain those awarded by the Court of
Arbitration, that is to say, frst an equidistance line in the Channel and then a line
running roughly west-south-westwards (as a straight line on a Mercator chart) to a
point about 180nm from the nearest land.
36
There has been no subsequent agreement
concerning the remaining part of the outer continental shelf out to 200nm or possibly
beyond.
37
Secondly, in regard to the Channel Islands, the respective limits between
Guernsey and Jersey, on the one hand, and France, on the other, have been laid down
in agreements concluded in 1992 and 2000, respectively.
38
The agreement in respect
oI Guernsey established two lines Ior the purposes oI controls over fsheries running
between the islands of Alderney, Sark and Guernsey, on the one hand, and the Coten-
tin Peninsula and the Roches Douvres off the Breton coast, on the other. Guernseys
limits to the north and west remain the arcs of 12 nm awarded by the Court of Arbitra-
tion. In the case oI Jersey, a boundary with France in the territorial sea was defned
by the Agreement signed in Saint Helier on 4 July 2000, together with the Fisheries
Agreement. Thirdly, in regard to the course of the boundary along the eastern part of
the Channel, the agreement in principle which had been reached in the negotiations
during the 1970s was eventually transformed into the Agreement of 24 June 1982.
The boundary established by this Agreement is a simplifed equidistance line which
was constructed from normal baselines based upon territorial seas of 12 nm, even
33 Para. 188 of the Decision of 30 June 1977.
34 The Court found that it lacked jurisdiction in regard to the territorial sea boundaries be-
tween France and the Channel Islands (paras. 19 22 of the above Decision).
35 For a survey, see C.M. Carleton, The Evolution of the Maritime Boundary The UK
Experience in the Southern North Sea and Channel, 7 International Journal of Estua-
rine and Coastal Law (1992) 99.
36 Reports by the present writer concerning the arbitration and all the Franco-British Agree-
ments are to be found in volumes II and III of Charney and Alexander (eds.), Interna-
tional Maritime Boundaries, as well as in volume IV edited by Charney and Smith:
Report No. 9 3, (France UK) p. 1734; Report No. 9 3(5) (France UK (Guernsey),
p. 2471; and Report No. 9 24 (France UK (Jersey) p. 2979.
37 In accordance with article 76 of the LOS Convention.
38 Published as UK Treaty Series No.66 (1993) and UK Treaty Series No. 8 (2004), respec-
tively. The Iormer concerns controls over fshing vessels, whilst the latter is a territorial
sea boundary which was negotiated and concluded together with the Fisheries Agree-
ment, neither of which is yet in force. For commentaries on these Agreements, see J.-F.
Dobelle, Les Accords Franco-Britanniques Relatifs a la Baie de Granville du 4 juillet
2000, Ann. Francaise de Droit International (2001) and the contribution to this volume
by Professor Le Goy.
though at that time the United Kingdom had not extended the breadth of its territorial
sea to that limit. The process oI simplifcation was carried out on an area-compen-
sated basis in order to straighten the line. Notwithstanding the French reservations
to the Convention on the Continental ShelI, the navigation channels or traIfc lanes
did not affect the course of the boundary. Following the extension of the breadth of
the British territorial sea in 1987, there ceased to be a strip of high seas/continental
shelI along the centre oI the Straits, a signifcant change in the status quo ante. At
the suggestion of Paris, a new Agreement was concluded on 2 November 1988 re-
lating to the delimitation of the territorial sea in the Straits of Dover/Pas de Calais.
This agreement established a precisely defned section oI the pre-existing continental
shelf boundary as the limit between the territorial sea of France and that of the United
Kingdom. The relevant section was the stretch of boundary where arcs of 12nm from
the respective baselines intersected. By coincidence, it was also a stretch of bound-
ary where the exact equidistance line of 1982 had been straightened to the advantage
of France. (The Agreement was accompanied by a Joint Declaration concerning the
status of the Straits (see below)). The agreed line has been used in the Channel Tun-
nel to mark the boundary in the subsoil of the territorial sea. Finally, the continuation
of the boundary across the northern approaches to the Straits and into the southern
North Sea to a tri-junction point with Belgium has also been agreed.
39
To sum up, the Paris Agreement and the subsequent Agreements established a se-
ries of extensive boundaries for the continental shelf and the territorial sea in mid-
Channel and around the Channel Islands. These agreements testify to the good re-
lations and close cooperation between the two governments in matters concerning
the Channel. At the same time, the boundary work is still not complete. Whilst the
existing agreements have not been followed by agreements delimiting contiguous
zones and EEZs, this is for the simple reason that the United Kingdom has not yet
created such zones in its domestic legislation. Nonetheless, in establishing the south-
ern limits of the British pollution control zone, the agreed continental shelf boundary
along the Channel was fully respected. There is, however, no agreement concerning
the delimitation oI fsheries jurisdiction in the Channel, but this may simply indicate
that the practical need Ior agreed fshery boundaries has been largely removed by the
terms of the Common Fisheries Policy.
40
Similarly, the absence of an agreement for
the remaining part of the continental shelf out to the 200 nm line may simply indicate
39 Agreement on the Completion of the Shelf Boundary in the Southern North Sea of 23
July 1991.
40 The arbitration concerned only the continental shelf. The United Kingdom extended its
fshery limits to a maximum oI 200 nm, subject to median lines, in 1976 whilst the Court
oI Arbitration was working on the case. Fishery limits were not refned aIter the Award
given in 1977. No Order has been made under section 1(2) of the Fishery Limits Act 1976
similar to the Fishery Limits Order 1999 (which implemented the fsheries provisions
in the Agreement between Denmark and the United Kingdom concerning the maritime
boundary between Scotland and the Faroe Islands). The Channel Island agreements re-
late to fsheries, but these are local agreements which do not apply to the Channel as a
whole.
184 Chapter 9
that there is as yet little interest on the part of the oil and gas industry in prospecting
in this remote region.
V The Channel as a Semi-Enclosed Sea
When the defnition oI the term 'enclosed or semi-enclosed sea was under discus-
sion at the Third United Nations Conference on the Law of the Sea, the delegates
had in mind such well-known features as the Baltic Sea, the Gulf, the Black Sea, the
Red Sea and the Mediterranean Sea, especially the latter. In the event, the defnition
contained in article 122 of the LOS Convention appears to be wide enough in two re-
spects to apply also to the Channel. In the frst place, this body oI water is connected
in the east to the North Sea by the narrow outlet between Cap Gris Nez and the White
Cliffs of Dover. More importantly, perhaps, the water consists today entirely of the
respective territorial seas, the EEZ of France and the equivalent zones of United
Kingdom.
41
The Channel has also been treated as a special area, along with the North
Sea: Ministers agreed at the Fourth North Sea Conference in Esbjerg in June 1995
that arrangements for the protection of the North Sea as a Special Area under Annex I
of the MARPOL Convention should extend also to the Channel.
42
This initiative was
later extended through co-operation between France, Ireland and UK (with support
at the International Maritime Organisation (IMO) from other North Sea states) to
encompass waters from Brest, across the south, west and north of the British Isles
as well as the Channel and North Sea.
43
This area is now known as the North West
European Waters Special Area, which came into force on 1 August 1999. This Spe-
cial Area includes at least three inter-connected and semi-enclosed seas namely the
Channel, the North Sea and the Irish Sea.
44
Article 123 of the LOS Convention encourages states bordering a semi-enclosed
sea to cooperate in the exercise of their rights and the performance of their duties in
regard to the sea in question. In many ways, the article is a particular application to
the law of the sea of the concept of voisinage or the general duty of neighbouring
States to cooperate. The cooperation contemplated by article 123 is to extend in par-
ticular to the conservation of the living resources and the protection and preservation
of the marine environment. In this particular context, ensuring the safety of naviga-
tion is a major factor in the protection of the marine environment from vessel-source
pollution. As this survey indicates, Franco-British cooperation has been close and
consistent. Cooperation has been at all levels: bilateral, regional (in the North Sea
41 On the British side, these waters include the territorial seas around the two Bailiwicks of
Guernsey and Jersey.
42 Ministerial Declaration of 8/9 June 1995.
43 The IMO defnes the area as 'the North Sea and its approaches, the Irish Sea and its ap-
proaches, the Celtic Sea, the English Channel and its approaches and part of the North
East Atlantic immediately to the West of Ireland.
44 The status of the Irish Sea was discussed in the MOX Plant Case (Ireland v. United King-
dom) before the International Tribunal for the Law of the Sea in 2001: ITLOS Reports
2001, p. 95.
Conferences, the Paris Memorandum of Understanding on Port State Inspection and
Control, the European Community and OSPAR), and global in the IMO.
VI The Regulation of Navigation and Transit Passage
As mentioned above, the Agreement oI 2 November 1988 defning the territorial sea
boundary was accompanied by a Joint Declaration by the two governments concern-
ing the status of the Straits. The terms of the Declaration were drawn up in consulta-
tions between M. Gilbert Guillaume, then Director General of Legal Affairs at the
Quai dOrsay, Mr Roger Beetham, then Head of the Maritime Department in the
Foreign and Commonwealth OIfce, and the present writer. The Declaration was as
follows:
The existence oI a specifc regime oI navigation in the straits is generally accepted in
the current state of international law. The need for such a regime is particularly clear in
straits, such as the Straits of Dover, used for international navigation and linking two
parts of the high seas or economic zones in the absence of any other route of similar
convenience with respect to navigation.
In consequence, the two Governments recognise rights of unimpeded passage for mer-
chant vessels, state vessels and, in particular, warships following their normal mode of
navigation, as well as a right oI overfight Ior aircraIt, in the Straits oI Dover. It is un-
derstood that, in accordance with international law, such passage will be exercised in a
continuous and expeditious manner.
The two Governments will continue to cooperate closely, both bilaterally and through
the International Maritime Organisation, in the interests of ensuring the safety of navi-
gation in the Straits of Dover, as well as in the southern North Sea and the Channel. In
particular, the traIfc separation scheme in the Straits oI Dover will not be aIIected by the
entry into force of the Agreement.
With respect to the interests of coastal states the two governments will also take, in ac-
cordance with international agreements in force and generally accepted rules and regula-
tions, measures necessary in order to prevent, reduce and control pollution or the marine
environment by vessels.
45
The two Governments had co-operated very closely, as fellow members of the Group
of Five, at the Third UN Conference on the Law of the Sea in regard to the question
of passage through straits used for international navigation. This Declaration, issued
by the two Foreign Ministers upon signing the boundary Agreement, applied the
concepts of Part III of the LOS Convention to the Straits of direct interest to the two
governments. This was done at a stage when the Convention was not in force and
neither government had established its consent to be bound by it. The Declaration
45 J.-P. Queneudec, Chronique du droit de la mer, AFDI, 1988, p. 726; texte en francais
RGDIL 1988, p. 1043. For comment, see The Right of Transit Passage and the Strait
of Dover by the present writer in M. Nordquist (ed.), Proceedings of the 13th Annual
Seminar of the Center for Oceans Law and Policy, University of Virginia.
186 Chapter 9
served both to strengthen the Conventions regime on navigation, albeit without ex-
pressly referring to that instrument, and to lay the foundation for continued bilateral
cooperation.
VII The Regulation of Navigation in the Channel: Mandatory Routeing
In the 1960s, the two Governments established the Anglo-French Safety of Naviga-
tion Group (AFSONG) to discuss the movement of shipping along the Channel and
through the Straits of Dover.
46
Both Governments were aware of the high numbers
of collisions and the attendant risks of pollution of the coastal beaches, risks which
grew year by year as the volume of shipping increased. At that time, both countries
had only three mile territorial seas and the remaining waters in the centre were high
seas. Notwithstanding their lack of powers under general international law, the two
governments decided to submit a joint proposal to the Maritime Safety Committee of
the IMO Ior the creation oI a traIfc separation scheme in the Straits. This approach
met with a positive response and an agreed scheme came into effect on a voluntary
basis in 1967. It was the frst scheme oI its kind in the world.
The scheme was subsequently made mandatory through the SOLAS Convention,
including the Collision Regulations, and the LOS Convention. Article 22 of the latter
authorises the coastal state to require foreign ships exercising the right of innocent
passage to use prescribed traIfc separation schemes where this is necessary having
regard to the safety of navigation; article 41 of the LOS Convention is to similar ef-
fect. Indeed, this arrangement in respect of the Dover Strait provided the model for
article 41 concerning traIfc separation schemes in straits used Ior international navi-
gation.
47
In particular, paragraphs 4 and 5 are based on the practice of France and the
United Kingdom during the 1960s and subsequently in making joint proposals to the
IMO and then giving effect to the agreed results of the IMOs deliberations.
More recently, a similar traIfc separation scheme has been established in mid-
Channel Off Casquets rocks and islets to the north of Guernsey (where the territo-
rial sea remains at 3 nm). In the south-western entrances to the Channel, there are
two Iurther traIfc separation schemes, one oII Ushant/Ouessant and the other south
46 The Introduction to the IMOs publication Ships Routeing (1999) states that In 1961
the institutes of navigation of the Federal Republic of Germany, France and the United
Kingdom undertook a study of measures for separating traffic in the Strait of Dover
Their studies resulted in proposals for the separation of traffic These proposals were
submitted to the International Maritime Organization and were generally adopted. (p.
ix).
47 Article 41 was inspired by a proposal tabled by the UK Delegation, with French support,
at the ConIerence in A/CONF.62/C.2/L.3. The proposal was refned in the Group co-
chaired by Fiji and the UK in 1975 prior to the tabling of the Informal Single Negotiating
Text by the Chairman of the Second Committee: for details, see Nandan and Ander-
son, Straits Used for International Navigation, 60 BYBIL (1989) 159 (see Chapter 7
above).
of the Scilly Isles.
48
The schemes do not quite join together to Iorm continuous traIfc
lanes through the full length of the Channel, but something of a road map can now
be seen, for example, for the entire journey from Ushant to the southern North Sea
and vice versa.
49
The IMO has adopted some recommendations relating to traIfc fow
in the Channel, as well as some recommendations on navigation through both the
Channel and the Dover Strait.
50
These latter recommendations relate to matters such
as the use of the routeing system, reporting, pilotage, under keel clearance, crossing
traIfc and the presence oI fshing vessels. Ships proceeding Irom the area oI one traI-
fc scheme to the area oI another are recommended to Iollow specifed directions oI
traIfc fow, as well as to avoid certain areas where there are special hazards.
In their discussion oI the present legal position regarding the use oI traIfc lanes,
Lucchini and Voelkel state:
Les routes tablies dans les eaux territoriales simposent tous les navires. Pour celles
qui sont tablies au dela de ces eaux tout navire garde la facult de ne pas utiliser un dis-
positiI de separation de traIfc mme sìl bat pavillon dùn Etat partie au Rglement pour
prvenir les abordages en mer de 1972.
51
The learned authors note, however, the terms of paragraph (g) of Rule 10 of the Col-
lision Regulations to the eIIect that 'A vessel not using a traIfc separation scheme
shall avoid it by as wide a margin as is practicable. The freedom of navigation rec-
ognised in the EEZ by articles 58 and 87 of the LOS Convention must be exercised
with due regard for the interests of other States in their exercise of the freedom of
the high seas.
52
In regard to places such as the Channel where the coastal states and
the other interested states have agreed through the IMO, the competent international
organisation, upon traIfc schemes in the interests oI saIety and environmental pro-
tection, ships fying fags which persistently ignore or Iail to respect the scheme`s
arrangements risk being considered to have failed to pay the required due regard for
the interests of those others who do fully observe the arrangements, for example in
the event of a collision or other incident of navigation. Since 1 July 2002, when the
amended version of Chapter V of the SOLAS Convention entered into force, ships to
48 The schemes for the Channel are contained in Part B, Section II, Western European
Waters, of Ships Routeing, published by the IMO in 1999.
49 For example, in Part B, Section II of Ships Routeing, Summary Chartlet A depicts the
Iour traIfc schemes and the recommended routes between them.
50 See the IMO Publication, Ships Routeing (1999), Parts E and F.
51 Lucchini et Voelkel, Droit de la Mer, Tome 2, p. 336. The learned authors note that cer-
tain States, including France and the United Kingdom, require ships fying their fags to
Iollow the terms oI traIfc schemes worldwide.
52 Paragraph 2 of article 87, re-stating a rule of customary law (per the ICJ in the Fisheries
Jurisdiction Case (UK v. Iceland), ICJ Reports (1974), p. 3).
188 Chapter 9
which it applies have been required to use mandatory routeing systems unless there
are compelling reasons not to use a particular system.
53
VIII The Regulation of Navigation: Mandatory Reporting
Over the last quarter oI a century, vessel traIfc services (VTS) have been introduced
in several congested sea areas, including the Strait of Dover and the Channel.
54
Coastal VTS stations are able to monitor ship movements on radar screens and to
communicate with vessels.
55
Initially, the use of VTS was not made mandatory on
the part of passing ships, even in the territorial sea. During the course of the years
1995, 1996 and 1997, no less than 674, 563 and 622 violations of Rule 10 of the Col-
lision Regulations were observed, respectively, from the three radars on the English
shores.
56
The most common contraventions were crossings from the north-bound lane
across the south-bound lane by ships proceeding towards the ports in the Thames Es-
tuary. In 1997, there were seven collisions, one of which in fog led to 5000 tonnes of
gasoline escaping into the sea. Five oI the collisions involved small fshing vessels. In
short, the radars were displaying an unsatisfactory state of affairs, resulting in a sense
of frustration on the part of both British and French radar operators. Accordingly,
the two Governments convened the Anglo-French Navigation and Accident Techni-
cal Group in order to develop possible means of improving the effectiveness of the
VTS. Following the conclusion of the Groups work, the two Governments submit-
ted proposals to the IMOs Sub-Committee on Safety of Navigation for a mandatory
reporting scheme. The proposals were accepted by the Maritime Safety Committee
in the form of the CALDOVREP Scheme,
57
which entered into force on 1 July 1999,
pursuant to Regulation 8(1) in Chapter V of the SOLAS Convention.
58
Since its entry
into force in July 2002, the amended version of the SOLAS Convention
59
permits the
use of VTS by ships to be made mandatory in sea areas within the territorial sea, such
as the area to which CALDOVREP applies.
53 Regulation 10 (7) of Chapter V, Safety of Navigation, of the annex to SOLAS, replacing
the version adopted in 1974 and applicable since 1980.
54 Regulation 12 oI the amended (2002) Chapter V oI SOLAS deals with Vessel TraIfc
Services.
55 For several years, as a further safety measure, the British authorities have maintained a
tug on station at Dover in order to assist any vessel in diIfculty in the Strait. The decision
was taken following the stranding of the oil tanker Braer whilst trying to pass through
the Fair Isle Gap, the strait to the south of the Shetland Islands, resulting in serious pol-
lution of the coasts and coastal waters.
56 Report of the Channel Navigation and Information Service for 1997.
57 MSC.85 (70); see also UN Document A/54/429, para. 165.
58 Now replaced with effect from 1 July 2002 by Regulation 11 (Ship Reporting Systems)
of Chapter V of the SOLAS Convention.
59 According to Regulation 12(3), the use of VTS may only be made mandatory in sea
areas within the territorial seas of a coastal State.
All ships over 300 tonnes
60
are required to report either to GRIS NEZ TRAFFIC or
to the Dover Coastguard, depending upon which traIfc lane is being used, in an area
that includes the approaches to the Strait, stretching over 65 miles. Vessels proceed-
ing from the North Sea towards the Atlantic are required to report to Dover Coast-
guard upon reaching a point in the northern approaches to the Strait and vessels going
in the opposite direction must report to CROSS Cap Gris Nez when abeam the Bas-
surelle Lightbuoy in the southern approaches. The reports give the name of the ship,
the position, the course and speed (in order to help the VTS operators to identify the
ship on their radar screens), as well as details oI any deIects, damage, defciencies,
cargo losses, etc., in order to assist in the prevention of pollution. The VTS operators
inIorm vessels oI weather and traIfc conditions, as well as the positions oI beacons.
In 2001, a similar mandatory reporting scheme, known as MANCHEREP was in-
troduced in the vicinity of the Casquets.
61
Part of this area is situated within 12 nm of
Guernsey, part in the French EEZ and the remainder in the United Kingdoms ad hoc
Pollution Control Zone off the south coast of England. This scheme was approved
by the IMO following a joint initiative of the two governments in the aftermath of
the sinkings of the Erika off Brittany, which resulted in serious pollution of the coast
and fshing grounds, and the Ievoli Sun off Alderney, which gave rise to a need to
recover styrene from underwater. In accordance with the terms of MANCHEREP,
reporting is required, two miles before entering the area to which the scheme applies,
to CROSS Jobourg. Finally, ships using the traIfc lanes oII Ouessant must report to
CROSS Corsen. Vessels failing to report risk being reported by the VTS operators to
Flag State authorities and Port State Control inspectors.
IX Enforcement of Legislation implementing Trafc Schemes
Article 21 of the LOS Convention authorises the coastal state to adopt laws and
regulations in respect of the safety of navigation and the regulation of maritime traf-
fc with which Ioreign ships exercising the right oI innocent passage must comply. In
straits, article 42 (1) (a) is to similar effect. Both governments have enacted legisla-
tion which requires all vessels to use the traIfc lanes and to respect the rules appli-
cable to them, including Rule 10 of the Collision Regulations. French legislation, in
the form of the Code Disciplinaire et Penal de la Marine Marchande, provides that
the captain of a French vessel outside French territorial or internal waters commits
an oIIence against French law by inIringing traIfc schemes approved under the Col-
lision Regulations attached to the London Convention of 1972.
62
British legislation,
in the form of the Merchant Shipping (Distress Signals and Prevention of Collisions)
Regulations 1996,
63
and the Merchant Shipping (Safety of Navigation) Regulations
60 Smaller vessels are recommended to report, especially any vessel with problems.
61 Resolution MSC. 110(73) of 1 December 2000.
62 Law of 15 December 1986, modifying article 63 of the Code; cited in Lucchini and Voe-
lkel, Droit de la Mer, Tome II, p. 329, note 688.
63 Statutory Instrument (S.I.) 1996/75.
190 Chapter 9
2002
64
implement different aspects of the regulations adopted under Chapter V of the
SOLAS Convention, as amended. Enforcement of this legislation, whilst important
in the general interest, remains subject to the other terms of Parts II, III and XII of
the Convention. During the Conference, there was concern about the risk of creat-
ing hazards by conducting enforcement operations at sea, hence the inclusion in the
Convention of article 225 concerning the duty to avoid adverse consequences in the
exercise of powers of enforcement and article 226(2) concerning procedures to avoid
unnecessary inspection of vessels at sea.
Failures to Iollow traIfc lanes are all too common. According to 'La Lettre de la
Mer for 22 February 2002, Pour la troisime fois depuis le 25 janvier, un navire
sèst engag, samedi 16 Ievrier, a contresens dans le dispositiI de separation du traIfc
au large dOuessant.
65
Several prosecutions have been brought under the legisla-
tion applicable on the two sides of the Channel. For example, on 8 April 2002, the
owner and the skipper oI a Scottish fshing vessel were both convicted on charges oI
proceeding the wrong way up the traIfc lane in the Straits oI Dover Ior a distance oI
about 20 miles.
66
In 2001, the Dutch Fishing Master oI a large fshing vessel mov-
ing to new fshing grounds was convicted oI proceeding in the wrong direction Ior
a distance of 14 miles, in the course of which the vessel passed very close to four
other vessels including a chemical tanker and a passenger ferry.
67
In October 2000,
a champion yachtsman sailing the Iastest yacht in the world was fned Ior sailing the
wrong way up the Strait. According to a press report, 17 ships had to move out of the
way in order to avoid the fast-moving yacht over 25 miles.
68
The cases demonstrate that fshing vessels in transit are subject to the same rules
as cargo vessels and that, in accordance with Rule 10(j) of the Collision Regulations
sailing vessels must not impede the safe passage of power-driven vessels following a
traIfc lane. BeIore bringing these prosecutions, the British authorities do not appear
to have intervened at sea in order to arrest a vessel in agrante aelicto. Rather, pros-
ecutions have been undertaken later against persons present in the United Kingdom
or persons resident elsewhere who have appeared voluntarily before the courts in
order to answer charges.
A leading example of Franco-British cooperation is provided by the handling of the
case of the collision between the Gudermes, a Maltese oil tanker of 32,000 tonnes,
and the small French fshing vessel, 'St. Jacques II, which happened in the south-
bound traIfc lane oII Dover at 0430 hours on 23 April 2001 and caused pollution
of the territorial sea. After leaving Boulougne, its home port, the St Jacques was
proceeding northwards along the southbound traIfc lane towards a fshing ground oII
64 S.I. 2002/1473. These Regulations implement the amended form of Chapter V of SO-
LAS with effect from 1 July 2002 and replace the Merchant Shipping (Mandatory Ships
Routeing) Regulations 1997 and the Merchant Shipping (Mandatory Ship Reporting)
Regulations 1996.
65 Available on www.ouest-france.fr.
66 Coastguard Press Notice No. 97/02, available at www.mcga.gov.uk/news/releases.
67 Coastguard Press Notice No. 133/01 of 23 April 2001, available as above.
68 Available on www.lloydslist.com on 9 October 2000.
the Thames Estuary when it came into collision with the tanker. The collision caused
a hole in the bow of the south-bound Gudermes measuring 3 metres by 2 metres.
The resulting loss of oil formed a slick 6 kilometres long and 300 metres wide which
dispersed into the North Sea. The Gudermes was directed by the British authorities
to Southampton for repairs. Both vessels were contacted by CROSS Gris Nez and the
Dover Coastguard, who ascertained that the St. Jacques could safely regain Bou-
logne unaided. Upon its arrival, the Administrateur en chef des Affaires Maritimes
opened an enquiry.
69
After interviewing the skipper and the member of the crew on
the bridge at the time of the collision, the Administrateur enqueteur found that the
fshing vessel had been Iollowing a route prescribed by the skipper which went in the
wrong direction along the traIfc lane oII Dover reserved Ior south-bound vessels,
contrary to Rule 10 of the Collision Regulations and article 63 and other provisions
of the Code disciplinaire et penal de la Marine marchande. On 14 December 2001,
the skipper of the St. Jacques was found by the Tribunal Maritime Commercial de
Boulogne to have infringed the rules of navigation and to have given an order to a
member oI the crew to inIringe the rules. The skipper was fned 7,500 Euros. Ac-
cording to a press report, the prosecution was brought after cooperation between the
French and British authorities.
70
On 22 July 2002, the owner and skipper of the St.
Jacques pleaded guilty in the Channel Magistrates Court in Folkestone to a charge
of causing a discharge of oil into the sea from the tanker, contrary to the Merchant
Shipping (Prevention of Oil Pollution) Regulations 1996. The Magistrates noted that
the skipper had cooperated fully with the Maritime and Coastguard Agency, that he
had appeared voluntarily in the United Kingdom and that he had already been fned
heavily in France. In the circumstances, the Magistrates gave a conditional discharge
Ior 12 months without imposing Iurther fnes. According to a Press Release, the pol-
lution offences were dealt with in England because of jurisdictional issues.
71
The handling of this incident shows the great concerns felt on both sides of the
Channel over collisions, with the ever-present risks of loss of life and oil pollution.
It also shows the great extent to which the authorities cooperate in enforcing their
legislation.
X Concluding Remarks
France and the United Kingdom are both maritime powers with extensive overseas
interests. At the same time, they are both coastal states facing one of the busiest sea-
ways in the world with high attendant risks of pollution from accidents.
Faced with common risks, cooperation between France and the United Kingdom
has been consistently close and fruitful over many years. The Channel provides an
excellent example of voisinage. Cooperation can be seen at the bilateral level, at the
European level and at the global level. Bilaterally, there have been several technical
69 Decision No. 62/2001 of 17 July 2001.
70 Lloyds List, 19 December 2001, available on www.lloydslist.com 'French fsherman
fned Ior wrong way` Channel collision with tanker.
71 Press Notice No. 186/02 of 23 July 2002; www.mcga.gov.uk/news/releases/186-02.htm.
192 Chapter 9
groups over the years and the preparation of proposals has required a great deal of
advance work on technical issues such as water depths, charts and radars. In practical
ways, such as the arrangements for maritime search and rescue and the operation of
the traIfc scheme oII the Casquets, the predominant interest oI France in the southern
part oI the Channel, frst noted by the Court oI Arbitration, can be discerned.
The two Governments have consistently followed the route of bilateral coopera-
tion followed by the submission of joint proposals to the IMO, thereby resisting the
temptation to resort to unilateral action in response to maritime incidents which have
aIIected their coastal and fshing interests. The two countries have also cooperated
when faced with pollution risks resulting from other incidents of navigation in the
Channel, notably in the case the loss of a container of lindane from the Perentis and
the sinking of the Ievoli Sun, both off the Casquets.
72
Innovations proposed by the two Governments Ior the management oI traIfc in the
Straits and in the wider Channel can clearly be seen to have infuenced the develop-
ment of the general law at the Third UN Conference on the Law of the Sea through
the adoption of new provisions in the LOS Convention. Similarly, the two govern-
ments have made innovative proposals for schemes for mandatory routeing and then
mandatory reporting to VTS, proposals which have also developed the law on navi-
gation through the SOLAS Convention and decisions of the IMO. In short, the waters
separating the two countries have been the source of several important developments
in the modern law of the sea.
The long-standing and consistent cooperation over traIfc management in the nar-
row seas can now be said to have produced a series oI traIfc schemes which together
go Iar towards creating a specifc legal regime Ior the narrow seas between France
and England. These schemes are fully compatible with the LOS Convention and they
have been drawn up in full consultation with the international community repre-
sented at the IMO. They beneft both partners, as well as the ships oI all fags which
are able to pass in greater safety. In congested waters such as the Straits of Dover and
the Channel, traIfc separation schemes and traIfc lanes are clearly needed in order
to maintain safety in the general interests of all concerned, whether on board ship or
ashore.
As a result of the introduction of mandatory reporting to VTS and the creation
of a special unit in the Maritime and Coastguard Agency in Southampton, enforce-
ment can be said to have improved over the past three years. Looking to the future,
there remains scope to improve further the enforcement of both the routeing and
the reporting schemes. The two Governments exercise Flag State and Coastal State
jurisdiction, notably in bringing prosecutions. The entry into force of EC Directive
2002/59/EEC of 27 June 2002 strengthened the enforcement of the existing rules,
based on the LOS and SOLAS Conventions, by establishing a Community vessel
72 Maritime and Coastguard Agency Press Notices Nos. 141 and 155/01 of May 2001,
available on www.mcga.gov.uk. The vessel was carrying styrene. The outcome of the
prosecution was given in Lettre de la Mer No. 234 of 22 February 2002 (www.ouest-
france.fr).
traIfc monitoring and inIormation system.
73
In this context, article 218 of the LOS
Convention concerning enforcement by Port States may well become applicable in
many instances, in addition to the current possibilities of Flag State and Coastal State
jurisdiction on the part of France and the United Kingdom.
74
Given the large number
of ports in other Member States, action at the European level should certainly serve
to enhance the effectiveness of enforcement measures for the future.
73 OJL 208/10 of 5 August 2002. In the UK, the Directive was implemented by the Mer-
chant Shipping (TraIfc Monitoring and Reporting Requirements) Regulations 2004.
74 For a general survey of these possibilities, see Chapter 13 below.
Chapter 10
The Icelandic Fisheries Cases*
The dispute between Iceland, on the one hand, and the Federal Republic of Germany
and the United Kingdom, on the other, arose in the summer of 1971 when a newly-
elected Government in Reykjavik decided to extend its exclusive fshery limit Irom
12 to 50 nautical miles. At that time, other states in the North Atlantic had fshery
limits which did not exceed 12 miles. Iceland gave notice of the extension to the
German and British Governments, as required by two agreements concluded in simi-
lar terms by Iceland in 1961.
1
The two Governments were faced with an awkward
problem. Iceland was an ally in NATO, yet it proposed to infict severe losses on
fshermen Irom the two states who regularly fshed between the 12 and 50 mile lines
drawn Irom Iceland. These fshermen had Iew iI any alternative fshing opportunities
open to them and many jobs on shore depended upon the handling oI fsh caught by
the vessels concerned.
In April and May 1972, following fruitless negotiations with the Icelandic Gov-
ernment, frst the UK and then Germany instituted proceedings beIore the Court,
* This chapter is an edited version oI an article frst published in V. Gtz, P. Selmer and R.
Wolfrum (eds.), Liber Amicorum Gnther Jaenicke Zum 85. Geburtstag, p. 445. Some
later matter has been added.
1 Exchange of Notes between Iceland and the Federal Republic of Germany (FRG) of 19
July 1961 (ICJ Pleadings, etc., Vol. II. p. 13); Exchange of Notes between Iceland and the
UK of 11 March 1961 (ICJ Pleadings, etc., Vol. II, p. 13).
196 Chapter 10
invoking the terms of the two agreements
2
and Article 36(1) of the Statute. For Ger-
many, Professor Jaenicke was appointed Agent and Counsel: for the UK, Mr Henry
Steel, one oI the Legal Counsellors in the Foreign and Commonwealth OIfce, was
appointed Agent. Iceland did not appoint an Agent, however, and adopted instead
the unusual course of sending a series of messages to the Registrar objecting to the
Courts jurisdiction. In July 1972, both Applicants sought interim measures of pro-
tection. During hearings on these requests, the respective contentions were advanced
frst by the Attorney General oI England and Wales and then by ProIessor Jaenicke.
Iceland did not appear to respond in either case, a pattern repeated during subsequent
hearings in other phases of the cases. The Court by a majority of 14 to 1 ordered
interim measures on 17 August 1972.
3
The Courts measures included a requirement
upon the United Kingdom to ensure that its vessels did not exceed a specifed annual
catch in the disputed waters. Twenty seven years later, the International Tribunal for
the Law of the Sea imposed catch limits on all three parties as one of its provisional
measures in the Southern Bluefn Tuna cases.
4
By an Order adopted the next day, the Court by a narrow majority of 9 to 6 de-
cided to determine frst the question oI its jurisdiction beIore addressing the merits
5
.
The minority included Judge Jiminez de Arechaga who favoured following the more
normal course of taking up the merits in the absence of an objection submitted in
accordance with the Statute and the Rules of Court. Memorials on the question of
jurisdiction were submitted quickly by both Germany and the UK, but not by Iceland.
Oral proceedings were held in the two separate cases on 5 and 8 January 1973. In its
judgments of 2 February 1973, the Court was virtually unanimous in upholding its
jurisdiction in both cases under the terms of the two agreements of 1961.
6
Memorials
on the merits were submitted by the United Kingdom and by Germany in the summer
of 1973, but yet again Iceland did not respond with a Counter-Memorial in either
case. In March 1974, the Court held hearings in the two cases, one after the other.
Once again, Iceland was not represented. The Court gave two judgments in broadly
similar terms on 25 July 1974. To sum up, in the short space of 27 months, the Court
made (and renewed) an Order indicating interim measures and gave two judgments
in the case (jurisdiction and then the merits).
In 1972, when the case was instituted by application, Professor Jaenicke was ap-
pointed to be both the Agent and the Counsel of the Government of the Federal
Republic. The writer was appointed to be the British Agent in the case in 1973. From
then on, the two Agents, despite their differences in years, academic distinction and
experience oI the Court, were able to cooperate closely and without any diIfculty in
handling the phase of the cases on the merits. From the German perspective, the case
2 Both agreements provided that in the event of a dispute about a future Icelandic exten-
sion oI fshery limits 'the matter shall, at the request oI either party, be reIerred to the
International Court of Justice.
3 ICJ Reports 1972 p. 12 (UK) and p. 30 (FRG).
5 ICJ Reports 1972 p. 181 (UK) and 188 (FRG).
6 ICJ Reports 1973 p. 3 (UK) and p. 49 (FRG).
197 The Icelandic Fisheries Cases
was always behind the United Kingdoms on the Courts List. This factor meant that
in argument the British team went frst on each occasion. Since there was nothing but
silence from the respondents side of the Chamber, Professor Jaenicke was quickly
called upon to present the German point of view. He chose to do so without repeating
or echoing too closely the immediately preceding argument advanced on behalf of
the United Kingdom. To have followed the United Kingdoms line of argument too
closely may easily have bored the judges, and may even have run the risk of giving
the impression that two major states were somehow bullying a smaller one. At the
same time, there was an ever-present danger of seeming to depart from the broad
lines of the previous speaker and thereby giving the impression that there were dif-
ferences between the two applicants on legal issues. These dangers were illustrated
by some of the questions posed by the judges, especially one by Judge Jiminez de
Arechaga.
7
Professor Jaenicke adopted the approach of complementing, rather than
repeating, the British argument with discourses of his own. An especially effective
example of this complementary approach was his decision to call an expert witness
to give evidence about the state oI the fsh stocks and migratory patterns in the North
Atlantic. Dr Meyer Irom the German fsheries research institute was able to demon-
strate Germanys concern for the conservation of the stocks, as well as Icelands un-
even record in that respect.
8
His account of the fate of the Atlanto-Scandian herring,
which fell from an estimated stock of fourteen million tonnes in 1964 to a single lava
in 1971 despite the eIIorts oI fve research vessels to fnd more oI them, had several
judges sitting on the edges of their seats. Judge Dillard alluded to the evidence in his
separate opinion.
9
Calling Dr. Meyer was the decision of an experienced advocate
before the Court.
On more substantive issues, Professor Jaenicke placed the emphasis in the Memo-
rial on the non-opposability oI the claim against Germany and its fshing vessels,
making this the primary submission. In the United Kingdoms Memorial, in contrast,
the primary submission was that the claim was contrary to international law, with
non-opposability oI the claim against the United Kingdom and its fshing vessels as
a second submission. During the course of the hearings, the United Kingdom was
brought, in response to a question from Judge Dillard, to indicate that a ruling on the
frst submission was not necessary iI the Court ruled upon the second submission.
10
Germany did not need to make a similar concession, having adopted the less exten-
sive plea oI non-opposability Irom the outset. In the event, fve judges indicated in a
joint separate opinion that they had been able to join the majority only on the basis
that there was no fnding upon the compatibility oI the claim with general interna-
tional law.
11
At the same time, four other members of the Bench considered that the
Court`s jurisdiction was confned to that question oI compatibility and did not extend
7 ICJ Pleadings, etc., Vol. II, p. 358.
8 ICJ Pleadings, etc., Vol. II, pp. 312-338.
9 ICJ Reports 1974 p. 2, at p. 54.
10 ICJ Pleadings, etc., Vol. I, pp. 487-488.
11 ICJ Reports 1974, at p. 45 (UK) and p. 217 (FRG).
198 Chapter 10
to the question of opposability. On balance, this outcome showed the wisdom of the
German stance.
Only fve years beIore the hearings on the merits, the Court had decided the North
Sea Continental ShelI Cases, including the important fndings regarding the Iorma-
tion of rules of customary international law and the role of equitable principles. Sev-
eral members of the Bench in 1969 remained judges in 1974. Professor Jaenicke was
able to cite in the Icelandic Case dicta from the North Sea Cases and to do so with
unique authority. In arguing that in 1974 no new rule of law had come into being on
the subject oI fshery limits going beyond 12 miles Irom the baselines, he was able to
cite the Court`s fnding that state practice had to include 'that oI States whose inter-
ests are specially affected and be extensive and virtually uniform.
12
In the judgment
of the Court in July 1974, the Court did not cite the North Sea Cases on this point.
However, it was clearly considered during the deliberations because the joint separate
opinion oI the fve judges, as well as that oI Judge de Castro, reIers to it expressly and
at some length. Professor Jaenicke was also able to invoke the decision in the North
Sea Cases to the effect that the parties were under an obligation to seek a negotiated
solution to their differences. The German Memorial concluded with the words ...the
Court may be disposed, and this would be within its judicial functions..., to give the
Parties some guidance on the principles which the parties should take into account in
their negotiations Ior the most equitable management oI the fshery resources in the
waters... around Iceland
13
The Court accepted this invitation to follow the North Sea
Cases and to lay down some equitable principles for future negotiations over access
to the fsheries around Iceland. In doing so, the Court cited its own previous decision
in the North Sea Cases.
14
I The Impact of the Cases
A The Impact of the Case on the Third UN Conference on the Law of the Sea
The Courts decisions in the two cases were read in The Hague by the President of
the Court on 25 July 1974. On that day, the nine-week long, frst business session oI
the Third UN Conference on the Law of the Sea reached exactly its mid-point. In
the four weeks preceding the judgment, general debates had been held in the Second
Committee in Caracas. As a member of the UK delegation, the present writer had
counted over 100 delegations declaring, on the record, their support for the concept
of the Exclusive Economic Zone extending to a maximum distance of 200 nautical
miles from the baselines of the coastal state. These delegations included some which
could not hope to beneft Irom this extension oI limits Ior clear geographical reasons.
In other words, on the eve of the judgment a dynamic process had begun in the Con-
ference which led quickly, over the space of three and a half years, to the general
12 ICJ Pleadings, etc., Vol. II, p. 295, quoting ICJ Reports 1969 p. 43.
13 Memorial, Part IV, para. 149, ICJ Pleadings, etc.,Vol. II.
14 ICJ Reports 1974, at pp. 32-33 (UK) and pp. 201-202 (Germany).
acceptance oI a new fshery limit and a new legal regime. Although, as its decision
aIfrms, the Court could not 'render judgment sub specie legis ferendae, or anticipate
the law before the legislator (sic) has laid it down,
15
the Conference as some kind of
legislative body had already, as it were, given the Bill for the 200 mile limit its First
Reading, in the days immediately preceding the reading of the decision.
16
The Courts decision had little impact on the further work of the Conference con-
cerning fsheries issues. The concept oI historic rights was roundly rejected by the
delegations from developing states on the grounds that only rich industrialised coun-
tries stood to beneft Irom it, and then oIten at the expense oI small or poor coastal
states. The concept of preferential rights for coastal states was seen in the same light:
the demand was for an exclusive economic zone, even though some qualifcations
were to be admitted in Article 62(3) of the resulting Convention. The movement
towards the 200 mile limit appeared to be unstoppable: many delegations which en-
tertained doubts about its effects for both national and global interests were willing
to contemplate the concept of the Exclusive Economic Zone provided it formed part
of a package at the Conference. These delegations saw a difference between unilat-
eral action anticipating the outcome of the negotiations, on the one hand, and action
to give effect in national law and practice to an internationally agreed set of limits
for the territorial sea, the contiguous zone, the EEZ and the continental shelf, on the
other. Thus it was that the Fisheries Jurisdiction Cases came, somewhat surprisingly
perhaps, to have a lesser impact on the work of the Conference than that of the North
Sea Cases. The Courts decision there led to a prolonged confrontation between a
group of states favouring the use of equitable principles in boundary-making and
other states supporting the approach in Article 6 of the Convention on the Continental
Shelf.
B The Impact of the Cases upon the Parties
Turning to the impact for Germany and the United Kingdom, once again the outcome
in The Hague produced no discernible effect on the Government in Reykjavik. Some
further negotiations were held, but they did not take the form or have the content
indicated in the Courts judgment. The Interim Agreement concluded by the United
Kingdom and Iceland in 1973 for two years expired in 1975 without further agree-
ment. Indeed, in 1975 Iceland introduced a unilateral 200 mile limit, replacing the
claim to 50 miles which had led to the initial dispute in 1972. In 1976, Iceland and
the United Kingdom signed an agreement lasting for six months, allowing a limited
degree of access to Icelandic waters. Following the Resolution adopted by the Euro-
pean Council at The Hague in November 1976, the British Government introduced
legislation creating a 200 mile limit around the British coasts and took other steps
to ease the economic and social pain Ielt in the fshing communities aIIected by the
15 ICJ Reports 1974, at pp. 23-24 (UK) and p. 192 (FRG).
16 The general extension of limits to 200 miles in the North Atlantic took place on 1 January
1977. States such as the United States, which extended slightly later, ceased to protest,
pending their extension.
200 Chapter 10
loss of access to the Icelandic grounds. Germany was unable to reach agreement with
Iceland at any stage of the dispute, before or after the judgment.
II Some Procedural Aspects of the Cases
A Article 53 of the Statute
Given the refusal of Iceland to participate in the proceedings, the Court had to ap-
ply Article 53 of its Statute concerning non-appearance. Whilst Article 53 was cited
by both applicants, in practice, both Germany and the United Kingdom submitted
Memorials, frst on jurisdiction and then on the merits, which would very probably
have been couched in the same terms had it been known that the respondent would
submit a Counter-Memorial. In other words, neither Government in invoking Article
53 called upon the Court simply to decide in its favour without more ado. Both were
conscious oI paragraph 2, according to which the Court had to be satisfed that the
claims of the applicants were well founded in fact and law. For its part, the Court
went to great lengths to demonstrate that it had considered the Icelandic point of
view as set out in letters and statements communicated to the Court through different
means. The two judgments on the question of jurisdiction include several quota-
tions, making different points, from a letter written on 29 May 1972 by the Foreign
Minister of Iceland to the Registrar. The two judgments on the merits expressed the
Court`s regret that Iceland had not appeared, but went on to confrm that the Court
had taken cognizance of various communications addressed to it by the Government
of Iceland,
17
even though they were not submitted in accordance with the procedures
set out in the Courts Statute and Rules.
The Court can be said to have acted most fairly in its handling of the cases, espe-
cially at the stage of the merits. Following its decision on the question of its juris-
diction, the Court was Iaced with a diIfcult situation: a member oI the Council oI
Europe, committed as such to the rule of law, was refusing to accept the judgment
of 1973 to the effect that the two agreements of 1961 were not only binding but also
conferred on the Court jurisdiction over the merits. Nonetheless, the Court proceeded
to consider Icelands case fully, even in the absence of an appearance on the merits.
At the same time, the absence of the respondent did nothing to make the position of
the two applicants more diIfcult, but it would be idle at this time to speculate over
the likely result had Iceland been present in Court in 1974.
B The Question of the German Judge ad hoc and the Issue of Joinder
A second procedural issue of lasting interest is the Courts handling of the two cases.
The cases were dealt with together in the sense that all the stages were conducted
in close time proximity and in tandem. The two Applications were fled one aIter
the other and this pattern remained until the end when the two judgments, given on
the same day, contained many common paragraphs. The respondent was the same
17 ICJ Reports 1974 at p. 9 (UK) and 181 (Germany).
and many of the facts were common to the two cases. At the time, the Court had a
member of United Kingdom nationality, but not of German or Icelandic nationality.
Shortly before the hearing on jurisdiction, Professor Jaenicke wrote to the Registrar
informing him that Germany had chosen Dr. H. Mosler as judge ad hoc for the case
of the Federal Republic of Germany v. Iceland. This choice was said to have been
made in accordance with Article 31(3) of the Statute which provides, in that situation,
that chacune de ces parties peut proceder a la designation dun juge...
18
Iceland
did not follow suit in either of the two cases, no doubt in view of its general stance
towards the litigation. The Court deliberated upon Professor Jaenickes letter and,
in a reply sent on 4 January 1973, the Registrar informed the German Agent that
the Court 'was unable to fnd that the appointment oI a judge ad hoc by the Federal
Republic of Germany in this phase of the case would be admissible.
19
In its deci-
sion on jurisdiction, the Court included the following explanation: the Court, taking
account the proceedings instituted against Iceland by the United Kingdom...and the
composition of the Court in that case which includes a judge of United Kingdom na-
tionality, decided by eight votes to fve that there was...a common interest in the sense
oI Article 31, paragraph 5, oI the Statute which justifed the reIusal oI the request...
20
The view oI the fve dissenters was not made known: possibly, they considered that
Article 31, paragraph 5, when read in its context, was concerned with several par-
ties in the same interest in a single case, not in two distinct cases. At a later stage
in the proceedings, ProIessor Jaenicke enquired oI the Registrar whether the Court
considered that the common interest of the two applicants continued to exist.
21
The
Court deIerred its decision on this renewed enquiry until the Memorials on the merits
had been received, whereupon it requested the comments oI the two Agents on the
question oI joinder.
22
After consultations between the two governments, both Agents
expressed the wish to keep the cases separate in view of the existence of some factual
diIIerences between the cases. By nine votes to fve, the Court decided not to join
them, taking into account differences in the positions and the submissions of the two
governments, as well as their wishes. However, in the event, Germany did not choose
a judge ad hoc for the merits phase, possibly in view of Icelands continued failure
to take any step in the case.
III Questions of Substantive Law
A Treaty Law
The Icelandic Fisheries Cases are perhaps cited more often on points of treaty law
than the law of the sea. The decision on jurisdiction was given less than four years af-
18 ICJ Pleadings, etc., Vol. II, p. 403, letter of 31 October 1972.
20 ICJ Reports 1973 p. 51, para. 7.
22 Letter of 17 August 1973.
202 Chapter 10
ter the adoption of the Vienna Convention on the Law of Treaties in 1969. The Court
considered several articles from Part V of the Convention concerning the invalidity,
termination and suspension of the operation of treaties. Some of these provisions had
been controversial at the Vienna Conference and in certain respects they represented
progressive development of the law in 1969. The Courts decision on jurisdiction
addressed directly Article 52 (Coercion of a state by the threat or use of force) and at
greater length Article 62 (Fundamental change of circumstances). In each instance,
the Court applied the article without discussing the questions oI the status oI the
Convention or its applicability as between the parties. It found that Article 62 may
in many respects be considered as a codifcation oI existing customary law on the
subject of the termination of a treaty relationship on account of change of circum-
stances.
23
This rather bold approach to the Convention may simply have refected
the fact that several judges on the Bench for this phase of the case had worked on the
topic in a former capacity, for example in the International Law Commission, or had
attended the Conference. Be that as it may, the Courts approach clearly helped the
Vienna Convention to gain credence and standing in its early years.
B High Seas Freedoms and the Reasonable Regard Test
In regard to the law of the sea, the decisions on the merits are of lasting value on three
issues: the 'reasonable regard test Ior qualifcations on Ireedoms oI the high seas;
the concept oI the fshery zone as a tertium genus between the territorial sea and the
high seas; and, perhaps most importantly, the stress on the duty to conserve stocks.
In many other respects, most notably the concept of preferential rights of states in a
situation oI special dependence on coastal fsheries, the fndings were quickly over-
taken by developments in customary law. These changes in the law came about as a
result of state practice, based to a certain extent upon the early Negotiating Texts in
the UN Conference on the Law of the Sea practice in which Germany, Iceland and
the United Kingdom all participated.
The 'reasonable regard test frst appeared in Article 2 oI the Convention on the
High Seas oI 1958, which was stated in its preamble to be a codifcation instrument.
The test did not, however, appear in the draft article 27 on freedom of the high seas
drafted by the International Law Commission. The Commentary on the draft article
included the proposition that States are bound to refrain from any acts which might
adversely affect the use of the high seas by nationals of other states.
24
The Geneva
ConIerence considered the issue in the context oI weapon tests and scientifc research
work on the high seas, rather than fsheries. The ConIerence decided to include in
Article 2 of the Convention on the High Seas the provision that freedoms were to be
exercised by all States with reasonable regard to the interests of other States in their
exercise of the freedom of the high seas. This principle, as enshrined in Article
2 of the Geneva Convention, was endorsed by the Court in paragraphs 68 (UK) and
60 (Germany) oI the judgments, in the context oI fshing. This conventional and judi-
23 ICJ Reports 1973 p. 18 (UK).
24 Yearbook of the ILC, 1956, Vol. II, p. 278.
cial qualifcation oI high seas Ireedoms by the 'reasonable regard test was to prove
helpful in resisting calls made during the Third UN Conference for the abolition of
the whole concept of freedoms of the high seas. The test was slightly reworded as one
of paying due regard in Article 87(2) of the UN Convention on the Law of the Sea
(the term used in the Courts decision), but without altering the sense.
C The Concept of the Fishery Zone
In its judgment, the Court Iound that the concept oI the fshery zone, described as
the area in which a coastal state could claim exclusive fshery jurisdiction beyond its
territorial sea, had crystallized as customary law arising out oI the general consensus
revealed at the Second UN Conference on the Law of the Sea.
25
The Courts analysis
of how, despite the failure of the Second Conference, new rules of customary law
had evolved was much briefer than its review of the same processes in the North Sea
Cases, where of course the Court found that Article 6 of the Convention on the Con-
tinental Shelf had not generated a new customary rule.
26
In the Icelandic Cases, the
Court went on to describe the fshery zone as 'a tertium genus between the territorial
sea and the high seas, even though the waters oI such a zone retained the status oI
high seas Ior purposes other than fshing. This fnding came at a time in the Third
ConIerence when the question oI the nature and character oI the Exclusive Economic
Zone (EEZ) remained controversial. Delegations were posing the question: Should
the EEZ Iorm part oI the high seas, notably Ior navigational purposes, or should it
fall within national jurisdiction? The outcome of those discussions is now to be found
in Articles 55, 58 and 86 of the Convention. In simple terms, these provisions make
clear that whilst the EEZ is subject to a specifc legal regime which is not that oI the
high seas, at the same time certain high seas freedoms, including that of navigation,
are enjoyed by all states in the EEZ. Indeed, many oI the articles contained in Part VII
(High Seas) apply also in the EEZ by virtue oI paragraph 2 oI Article 58. Given the
Court`s decision in 1974 that the fshery zone was a tertium genus, then the EEZ as
articulated in the Convention amounts a fortiori to a separate genus. The concept of
the fshery zone, retaining the character oI the waters as high seas (minus the Ireedom
oI fshing), still exists in the legislation oI several states today (including some parties
to the Convention, without being mentioned therein). In terms of the Convention, this
concept can now best be classifed in many ways as a sub-species oI the genus which
is the EEZ, rather than as a completely separate concept. For example, the fsheries
articles in Part V are relevant to the conservation oI stocks in both EEZs and fshery
zones, and Article 73 is relevant to the delimitation oI all such zones.
25 ICJ Reports 1974 p. 23 (UK) and p. 192 (Germany).
26 Compare, for example, the citation in the case cited in fn. 16.
204 Chapter 10
D The Legal Duty to Conserve Fish Stocks
The judgment on the merits contains a valuable dictum about conservation: It is one
oI the advances in maritime international law, resulting Irom the intensifcation oI
fshing, that the Iormer laissez faire treatment of the living resources of the sea in the
high seas has been replaced by a recognition of the duty to have due (sic) regard to
the rights oI other states and the needs oI conservation Ior the beneft oI all.
27
This
fnding reinIorced developments in conventional law, beginning with the Geneva
Convention on Fishing and the Conservation of the Living Resources of the High
Seas, developments which have continued with the later adoption of the provisions
in Part V and Part VII, Section 2 of the UN Convention, as well as the FAO Agree-
ment on Compliance with Internationally Agreed Conservation Measures and the UN
Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks.
IV Some Differences between the Two Cases
A The Modus Vivendi
The United Kingdom was able to reach an Interim Agreement
28
with Iceland in 1973,
that is to say, in the midst of the proceedings in The Hague. The Agreement was
expressed to be without prejudice to the legal positions or rights of either Govern-
ment and to run for two years. The UK Agent did not fail to communicate a copy of
the agreed text to the Registrar and the new situation thereby created attracted the
attention oI the judges. The question arose as to whether there remained a dispute
at the time oI the hearing on the merits. This question was duly posed to the UK
Agent, whose aIfrmative response was cited (seemingly with approval) by the Court
in paragraph 39 oI the judgment. The Court went on to fnd that the Agreement did
not prevent it from giving judgment on the underlying and still unresolved dispute.
In a valuable passage, it was pointed out that on the alternative view (favoured by a
dissenting minority of the judges) the inevitable result would be to discourage the
making of interim arrangements in future disputes with the object of reducing fric-
tion and avoiding risk to peace and security.
29
The Icelandic dispute led to clashes
at sea and at one stage Iceland made a complaint to the Security Council. Thus, the
Courts judicial endorsement of the modus vivendi as an available instrument for
the handling of dangerous disputes can only have encouraged negotiators in other
instances, whether or not litigation was involved, to consider the feasibility of con-
cluding an arrangement without prejudice to positions in the dispute of the two
parties concerned.
30
27 ICJ Reports 1974 p. 31 (UK) and p. 200 (Germany).
29 ICJ Reports 1974 p. 20, para. 41.
30 These issues were explored by the present writer in greater detail in Strategies for Dis-
pute Resolution: Negotiating Joint Agreements in G.H. Blake et al. (eds.) Boundaries
and Energy: Problems and Prospects (Kluwer, 1998), now Chapter 28 below.
B The Claims Concerning Harassment by the Icelandic Coastguard
The conclusion of the Interim Agreement led the United Kingdom to withdraw its
claims Ior compensation Ior damage caused to certain British registered fshing ves-
sels as a result of the cutting of trawl warps and similar harassment by Icelandic
coastguard vessels. Germany had made similar claims in respect of German vessels
losses. In the absence oI an equivalent agreement, these claims were maintained in
the fnal submission. The Court, having upheld the German case on the merits, could
have followed an approach similar to that used in the Corfu Channel Case
31
and held
separate proceedings on the question oI compensation. The Court did indicate that
Germany could have requested both a general declaration to the eIIect that compen-
sation was due and a subsequent phase in the proceedings to assess the amount oI
the compensation. Instead, in the absence oI such a two-part request, the Court held
simply that the documents beIore it did not contain suIfcient evidence oI each inci-
dent to enable it to accede to the submission. Accordingly, the Court did not pass on
the complaints made against the coastguard.
In a declaration, Judge Dillard expressed his reservation about this fnding by the
majority (of which he was part) on the grounds that the Court had misconstrued the
German request. In Judge Dillard`s view the submission was nothing more than a re-
quest Ior a fnding oI unlawIul conduct engaging the responsibility oI Iceland and not
a claim for compensation in respect of all damage suffered in the various incidents.
He added: That Icelands acts of harassment and interference...were unlawful hardly
admits of doubt.
32
There was much force in these views.
In the UN Convention on the Law of the Sea, the law governing the work of
coastguards and similar police authorities at sea is dealt with only obliquely and in-
completely. Of particular relevance here are Articles 73(3) and 230, which in general
terms exclude imprisonment and other forms of corporal punishment in respect of
fsheries and pollution oIIences. In practice, those provisions, coupled with the obli-
gation to release arrested vessels promptly upon the posting oI a reasonable fnancial
security, restrict the range of penalties available to domestic courts to monetary ones
such as fnes, to confscation orders (e.g. catch and fshing gear), and to administra-
tive sanctions such as the withdrawal of licences. These provisions, viewed broadly,
are fully consistent with pre-existing rules of customary law, derived from the Im
Alone
33
and Red Crusader Cases,
34
to the effect that life-threatening force should not
be used in making an arrest Ior a suspected smuggling or fshery oIIence. (The same
principles oI customary law would apply equally to a pollution oIIence.) II the result
oI a successIul prosecution must be no more than a fne, however large, both logic
and international standards for the protection of fundamental rights (e.g. the rights
to liIe, and to a Iair trial beIore a court on criminal charges) require that human liIe
31 ICJ Reports 1949 p. 4, at 35.
32 ICJ Reports 1974 at 207-208.
33 7 Annual Digest 205 (1933-1934).
34 35 ILR 485.
206 Chapter 10
and limb should not be deliberately or heedlessly endangered by the coastguards in
making the initial arrest. The degree of force must be reasonable, never excessive.
The Convention does not, however, lay down expressly what are the lawful and the
unlawful procedures for effecting an arrest at sea. In other words, it does not codify
customary law on the exercise oI fsheries jurisdiction in its entirety, nor contain a
complete statement of enforcement jurisdiction in the matter of pollution offences.
Reports are not inIrequent oI resort by coastguard vessels to gunfre, oIten causing
injury and death, in efforts to arrest suspected poachers and the like. The Court has
not decided issues of this kind, although some aspects of them were raised in the
German and British claims. Such issues could well arise for decision in future cases
before the Court or other tribunals of competent jurisdiction under the terms of the
Convention.
35
V The Dissenting Opinions
The decision on the merits was given by 10 votes to 4. The majority was made up of
President Lachs and Judges Forster, Bengzon, Dillard, de Castro, Morozov, Jiminez
de Arechaga, Sir H. Waldock, Nagendra Singh and Ruda. The four dissenters were
Judges Gros, Petren, Onyeama and Ignacio-Pinto. Judge Gros considered that Ice-
land`s claim to establish an exclusive fshing zone over the superjacent waters oI the
continental shelf is contrary to the rules of international law...
36
Judge Petren con-
sidered that the measure decided by Iceland was without foundation in international
law and that 'its application to British fshing vessels...constituted an inIringement
of international law vis a vis the United Kingdom.
37
Judge Onyeama considered that
the unilateral extension to a 50 mile limit by Iceland...is contrary to international
law.
38
Judge Ignacio-Pinto believed the Court would have strengthened its authority
if it had given a positive reply to the claim that the Icelandic 50 mile limit had no
foundation in international law.
39
Taken like this, it might appear that the judges were
unanimous. Clearly, the four dissenting judges were opposed to the Icelandic claim
to a 50 mile limit, and perhaps more strongly so than the majority! Why then did the
four judges dissent? Their common view was succinctly expressed by Judge Petren:
'the only question upon which the 1961 agreement entitles the court to adjudicate is
whether a measure whereby Iceland extends its zone oI exclusive fsheries jurisdic-
tion beyond a distance of 12 nautical miles from the baselines of its territorial sea is
well founded in international law.
40
Since the Court had not answered that question
and had decided instead that the Icelandic claim was not opposable to the two appli-
35 The question arose in the Saiga case before the International Tribunal for the Law of the
Sea: ITLOS Reports 1999, p. 10.
36 ICJ Reports 1974, at p. 126.
cants, the four judges concluded that the majority had exceeded the jurisdiction con-
ferred upon the Court by the agreements of 1961. This conclusion led the four judges
to vote against the entire judgment. The majority of judges on the Bench decided that
this conclusion was too narrow an interpretation of the compromissory clause... To
them, it was evident that the dispute between the parties include(d) disagreements
as to the extent and scope oI their respective rights in the fshery resources and the
adequacy oI measures to conserve them. Those elements were thereIore part oI the
dispute within the Courts jurisdiction.
41
They could also perhaps have pointed to the
consideration that the fnding oI non-opposability (which the majority decided upon
in point (1) of the dispositif) was a lesser one than the fnding oI illegality which the
minority aIfrmed was within the Court`s jurisdiction and would presumably have
supported had it been in the dispositif. In many respects, such a broader fnding in-
corporates, in a sense, the narrower one of opposability. The result whereby a clause
in a bilateral agreement conIers jurisdiction to make a general fnding erga omnes
but conIers no jurisdiction to make a fnding confned to the bilateral relationship
between the two states concerned appears to be inherently unlikely, and probably
unintended by the parties at the time of signature. For all these reasons, a sound ju-
risdictional rationale Ior dissenting Irom point (1) and the consequential point (2) oI
the Courts dispositif is not easy to make out.
41 ICJ Reports 1974, at p. 21 (UK) and p. 190 (FRG).
Chapter 11
The Regulation of Fishing and Related Activities in
Exclusive Economic Zones*
I Economic Zones and Fishery Zones in the North Sea
Jurisdiction over fsheries in the North Sea was extended Irom 12 miles to the present
maximum limit of 200 miles following the Council decision taken at The Hague in
the autumn oI 1976. France and Norway were the frst to create exclusive economic
zones (EEZs) in the North Sea, but the substantive jurisdiction was confned at frst to
fsheries. Other North Sea states were content simply to extend their fshery limits.
The concept oI the EEZ, oI course, goes beyond resource jurisdiction. It extends,
notably, to the protection and preservation of the marine environment. The non-ex-
ercise, beyond the outer limits of the territorial sea, of coastal state jurisdiction over
pollution in the North Sea led in 1990 to an initiative by the Netherlands at the Third
International Conference of the North Sea States. These States were urged to extend
their jurisdiction in two ways: frst by creating EEZs (or the equivalent), and then by
exercising coastal state jurisdiction over pollution from vessels to the full extent ac-
cepted by international law. The result was the Paris Declaration of 1992 on the Coor-
dinated Extension oI Jurisdiction in the North Sea.
1
The Declaration set out an agreed
objective oI creating EEZs (or the equivalent). In due course, this Declaration led to
* This chapter, the text oI a paper read at a colloquium held in Brussels on 10 November
2000, was frst published in E. Franckx and Ph. Gautier (eds.), The Exclusive Economic
Zone and the UN Convention on the Law of the Sea, 1982-2000: A Preliminary Assess-
ment of State Practice (2003), p. 31. The text has been slightly edited and updated.
210 Chapter 11
the creation oI the Belgian EEZ. All other North Sea states have now established an
EEZ (or its equivalent) and have taken powers over pollution Irom discharges Irom
ships in the zone.
2
The EEZ became part oI international law through the processes oI customary
law.
3
The key elements of the concept, nonetheless, are still those articulated in the
terms of the UN Convention on the Law of the Sea (the Convention). This proposi-
tion holds true both for parties and for non-parties to the Convention, and relevant
state practice is generated by all of them.
4
The concept oI the fshery zone
5
has to
be approached today in the context oI the law relating to the EEZ. The Convention
contains provisions concerning the exploitation oI living resources in the EEZ which
must be relevant also when questions arise concerning fshery zones.
6
Much has happened in the 1990s concerning international fsheries, although the
primary Iocus was more upon straddling stocks and high seas fsheries than upon
the fsheries regime within the EEZ.
7
Coastal zone fsheries retain their importance,
nonetheless.
8
After all, 90% of the world catch is taken from waters under national
jurisdiction. There are at least 106 EEZs, and a Iurther 30 fshery zones oI 200 miles.
The number of parties to the Convention has reached 135.
9
Recent state practice natu-
rally takes account of its terms, including that of some non-parties such as the United
States. Today, there is a large amount of relevant practice, primarily in the form of
1 UN Publication, The Law of the Sea: Current Developments in State Practice No. IV,
(1995) p. 278; also published by the UK Government as Cm 2425. On the question oI
such Declarations, see van der Mensbrugghe, Legal Status of International North Sea
Conference Declarations, in Freestone and IJlstra (eds.), The North Sea: Perspectives on
Regional Environmental Cooperation (1990).
2 The UK has taken measures to exercise jurisdiction over pollution in a zone equivalent
to an EEZ.
3 There was a rapid development oI state practice in making claims to 200-mile zones,
Iollowed by imitation, acceptance or acquiescence on the part oI other states. See the
London Principles on the Formation of Customary International Law, in Report of the
ILAs 69th Conference, London 2000, especially Principles 12 to 16.
4 All North Sea states are now parties to the UN Convention on the Law of the Sea.
5 A concept accepted as part of customary international law by the International Court of
Justice in the Fishery Jurisdiction Cases of 1974: ICJ Reports 1974, p. 3.
6 Similarly, some related provisions in the Convention, such as article 111 concerning the
right oI hot pursuit Irom the EEZ, apply to fshery zones in much the same way as they
apply to EEZs.
7 The FAOs Code of Conduct for Responsible Fisheries of 1995 applies to both the high
seas and national waters. The Compliance Agreement of 1994 applies to the high seas.
The Agreement on Straddling and Highly Migratory Fish Stocks of 1995 contains provi-
sions applicable to both the high seas and the EEZ. For analysis, see Hey (ed.), Develop-
ments in International Fisheries Law, Kluwer (1999).
8 For a recent survey, see N. Ros, La Peche dans le Monde, III Annuaire du Droit de la
Mer 1998, p. 455.
9 The 135 parties were listed on 28 October 2000 on the UN website: http://www.un.org/
depts/los/. By November 2006, the total was 152.
211 The Regulation of Fishing and Related Activities in Exclusive Economic Zones
national legislation, and bilateral and regional fsheries agreements. There are also
some relevant judicial decisions.
10
II Fishing and Related Activities in the EEZ
This chapter considers how fshing and some related activities in the EEZ are pro-
vided for in the Convention and also how they are being regulated in the practice of
states. The principal regulator oI activities concerning natural resources in the EEZ
is the coastal state.
11
What is the material scope of the coastal states jurisdiction?
Does it extend to the transport, transhipment and processing oI fsh, or to the supply
and support oI fshing vessels whilst they are fshing in the EEZ?
12
It is appropriate
to look frst at the terms oI the Convention and then at the way in which it has been
implemented by states.
A The Terms of the Convention
The terms of the Convention recognise extensive rights, as well as some duties, on
the part oI the coastal state in respect oI the natural resources oI the EEZ. In regard to
fsheries, paragraph 1 oI Article 56 states that the coastal state has:
sovereign rights for the purpose of exploring and exploiting, conserving and managing
the (living) natural resources of the waters (above) the seabed and of the seabed and its
subsoil,
Paragraph 2 oI article 56 qualifes these rights. The coastal state must have due regard
to the rights and duties of other States and must act in a manner compatible with the
other provisions of the Convention.
13
The latter include article 58 which recognises,
10 The UN Division of Ocean Affairs and Law of the Sea and the FAO Legal Department
have posted much material on their websites. See also Smith Exclusive Economic Zone
Claims: An Analysis and Primary Documents (1986).
11 As well as the coastal state, some flag states regulate the activities oI their fshing vessels
not only on the high seas but also in Ioreign EEZs. Council Regulation (EC) No 2847 oI
12 October 1993 and Council Regulation (EC) No 3317/94 oI 22 December 1994 contain
provisions relating to the activities oI fshing vessels beyond Community waters, includ-
ing Ioreign EEZs where fshing opportunities are available under agreements. Under US
legislation known generally as the Lacey Act, a fshing vessel connected with the US
must respect the laws oI any coastal state in whose EEZ the vessel fshes. Failure to do so
could lead to prosecution by the coastal state and the US (See UN Document A/55/386,
para. 68). Such concurrent jurisdiction is quite normal and, indeed, something to be en-
couraged.
12 The questions have not attracted much attention Irom commentators. Perhaps the Iullest
treatment is by Molenaar and Tsamenyi, Satellite-Based Vessel Monitoring Systems for
Fisheries Management: International Legal Aspects, 15 IJMCL (2000/No. 1) 65.
13 The importance of the similar test of reasonable regard was stressed by the Interna-
tional Court of Justice in the Fisheries Jurisdiction Cases, ICJ Reports 1974, p. 3.
212 Chapter 11
as part of the ius communicationis,
14
the Ireedom oI navigation and overfight includ-
ing other internationally lawful uses of the sea related to these freedoms, such as
those associated with the operation of ships, aircraft. These qualifcations upon
coastal state powers carry the greatest importance. The concept oI the EEZ would
not have secured consensus at the LOS Conference without proper safeguards for
navigation and communications.
Reverting to paragraph 1, what is the signifcance oI the word 'sovereign? When
the International Law Commission (ILC) advanced the concept of sovereign rights
in 1956 in the context of the continental shelf, the Commentary explained that the
term covered all rights necessary for and connected with the exploration and ex-
ploitation of the natural resources and included jurisdiction in connexion with
the prevention and punishment of violations of the law.
15
These important clarifca-
tions have been fully acted upon by coastal states in regulating oil and gas activities
on the continental shelf. The same term sovereign rights is applied in article 56
to the living, as well as to the non-living, resources oI the EEZ. It is clearly argu-
able, thereIore, that the ILC`s clarifcations oI the term are also relevant in regard to
the regulation of activities in relation to living resources. On this view, the coastal
states sovereign rights cover all rights necessary for and connected with the explora-
tion, exploitation conservation and management of the living resources. The rights
include, similarly, jurisdiction in connection with the prevention and punishment of
violations of the law. In the present context, the jurisdictional rights are expressly
backed up by the procedures and rights in the matter of enforcement contained in
article 62(4)(k) and especially article 73.
16
What then is the material scope of the coastal states competence over living re-
sources in the EEZ? The rights relate to the conservation and management, as well as
the exploration and exploitation or utilisation of living resources. These terms have
been described by a leading authority as 'sufhciently wiae to embrace all normal en-
terprisory and governmental functions that pertain to living resources.
17
The coastal
state may catch the fsh itselI or, in accordance with article 62(2), it may authorise
nationals of other states to do so. The latter must comply with the conservation
measures and with other terms and conditions established in the laws and regulations
of the coastal state. This is made clear by article 62(4), which also lists, non-exhaus-
tively, some specifc powers oI the coastal state.
Subparagraph (a) authorises the coastal state to prohibit fshing except in ac-
cordance with the terms of a licence issued by it. Some economies have been
14 The term used by the International Court of Justice in the Nicaragua Case, ICJ Reports
1986, p. 12.
15 Commentary on draft article 68, in Yearbook of the ILC, 1956, Vol. II, p. 297.
16 Article 73(1) provides that The coastal State may, in the exercise of its sovereign rights
to explore, exploit, conserve and manage the living resources in the exclusive economic
zone, take such measures, including boarding, inspection, arrest and judicial proceed-
ings, as may be necessary to ensure compliance with the laws and regulations adopted by
it in conformity with this Convention.
17 Burke, The New International Law of Fisheries (1994), p. 41.
transformed by oil revenues from the continental shelf, others by licence fees for
fshing in a 200-mile zone.
18
Subparagraphs (b) and (d) recognise the rights of the coastal state to determine
which species may be caught in the EEZ. They include-
fsh oI all species present in the EEZ, at any stage oI liIe, including krill,
fsh eggs and larvae, but subject to particular qualifcations in the cases oI
certain species notably, tuna and other highly migratory species,
19
seden-
tary species,
20
salmon
21
and eels;
22
mammals, such as seals and whales;
23
other forms of marine life, including birds, living corals, and plant life,
such as sea grasses and seaweed and kelp, insofar as they may be viewed
as resources.
Subparagraph (c) concerns the choice oI seasons, areas and methods oI fshing.
Subparagraphs (e) and (f) recognise coastal state powers over catch and position
reporting, and over research, whilst (g) covers the placing on board of observers
and local trainees. Joint ventures and research are also mentioned.
Subparagraph (h) accords competence over the landing of all or any part of the
catch by (hshing) vessels in the ports of the coastal state`. This power enables
the coastal state to check the catch, something related to conservation and man-
agement. At the same time, it is something which brings an economic beneft to
the port, iI only in the Iorm oI port charges. OIten it brings economic beneft to
the coastal state in other ways too. This power has wider implications.
To sum up, the sovereign rights recognised by article 56 are extensive, as are the
specifc rights listed in article 62. Nonetheless, somewhat surprisingly, the Conven-
tion does not refer expressly to several important ancillary activities. In particular,
the Convention does not mention operations in support oI fshing vessels such as
bunkering and transhipment or even to on-board activities such as fsh processing.
Yet, it is common knowledge that many long-range fshing vessels have the capacity
18 In a presentation entitled Commercial Fishing: Opportunities and Conservation-Strik-
ing a Balance given to a seminar in London, the Director of Fisheries in Stanley stated
that
The introduction of a fisheries conservation regime around the Falkland Islands transformed
the economy. Annual income rose from 5 million per annum to around 40 million per
annum. Fishing licensing revenue has averaged around 20 million per annum.
19 In the years immediately after the adoption of the Convention, Japan and the US took the
stance that tuna, as a highly migratory species, was excluded from coastal state jurisdic-
tion; but they abandoned the argument: Hayashi, 'Japan-New Law of the Sea Legisla-
tion, 11 IJCML (1996) p. 570, at p. 576 (fn. 19).
20 By virtue of article 77(4), subject to the regime of the continental shelf.
21 By virtue of article 66 on anadromous stocks.
22 By virtue of article 67 on catadromous species.
23 By virtue of article 65 on Marine Mammals.
214 Chapter 11
to fllet the catch and to Ireeze it
24
and that they are often supported at sea by refriger-
ated cargo vessels ('reeIers), by tenders carrying equipment such as fsh aggregating
devices, by reconnaissance or scouting vessels and by bunkering vessels.
What is the position when such activities are conducted in the EEZ? These possi-
ble gaps in the Convention`s wording give rise to questions. Practice may help supply
the answers.
B Decisions and Practice in the Implementation of the Convention
Some light is thrown on the question oI the scope oI the coastal state`s rights over
fshing and related activities by practice and decisions about its implementation, in
particular by (1) an arbitral decision, by (2) some global and regional fsheries instru-
ments, and by (3) national legislation.
1 The Arbitral Decision in La Bretagne
25
In the arbitration between Canada and France about the use oI Ireezer/Iactory trawl-
ers in the Gulf of St. Lawrence, the tribunal had before it some Canadian regulations
which defned the term 'fshing vessel to include vessels used Ior catching, process-
ing or transporting fsh and defned the term 'fshery to include related activities
such as packing, transporting and processing.
26
The issues in the case centred upon
a bilateral fsheries agreement between the parties dating Irom 1972, but the tribunal
also considered the terms of articles 56 and 62 of the LOS Convention, even though it
was not in force at the time (1986). The majority
27
in the tribunal expressed the opin-
ion that, in accordance with article 56, the coastal states sovereign rights to exploit
and to manage resources should be exercised in a reasonable manner and that those
rights should be approached together. They added the following: it does not appear
that this power of management, constantly coupled by the Convention with the idea of
conservation, has any other purpose than conservation of resources
28
This power
was above all an administrative functionin the general interest.
29
The tribunal
observed that the regulatory authority of the coastal state was established by article
62(4) of the Convention and did not normally include subjects of a different nature
from those mentioned in that paragraph. According to the tribunal, the regulation
of hlleting at sea cannot a priori be fustihea by coastal state powers unaer the new
24 During the hearing in the Camouco Case, counsel for the applicants played a video to
the Tribunal showing those activities on a stern trawler capable oI fshing Iar Irom home:
ITLOS Reports 2000, para. 17, at pp. 7-8.
25 82 ILR 590; 90 RGDIP (1986) 713.
26 Fisheries Act 1970, section 2. Similar provisions were contained in the Coastal Fisheries
Protection Act 1970.
27 Composed of the President, Paul de Visscher, and Judge Queneudec. Judge Pharand dis-
sented.
28 Para. 50 of the decision.
29 Ibid.
law of the sea.
30
Thus, the coastal state`s management powers were confned to the
conservation of resources- to the exclusion, seemingly, of environmental, economic
and social factors. However, the tribunal went on to consider the implications of the
power to require the landing oI the catch in the coastal state contained in subpara-
graph (h) and reached the conclusion that generally the coastal state could regulate
fsh processing in the EEZ, subject to particular treaty obligations.
31
In general, it may be concluded that the tribunal adopted a cautious approach to the
question oI the rights oI the coastal state.
32
The Tribunal was surely correct in fnding
that the coastal state should exercise its rights in a reasonable manner. At the same
time, the linkage of management (gestion) solely to conservation did not, perhaps,
take suIfcient account oI the inclusion in article 56 oI powers over exploration and
exploitation. Lucchini and Voelkel endorse the approach of the Tribunal, but go on to
note la forte empreinte anglo-saxonne du terme management.
33
The concept of
management in the English language includes a commercial connotation and thus is
equally relevant not only to conservation but also to exploitation.
2 Some Global and Regional Fisheries Instruments
At the global level, the question oI support Ior fshing vessels was considered in
the Food and Agriculture Organisation (FAO) in preparing the texts of two recent
instruments oI global signifcance. First, the FAO Agreement to Promote Compli-
ance with International Conservation and Management Measures on the High Seas
defnes the term 'fshing vessel to mean any vessel used or intended for use for
the purposes of the commercial exploitation of living marine resources, including
motherships ana other vessels airectly engagea in such hshing operations.`
34
Those
latter words appear to cover some, but not necessarily all, types of support vessels. It
has been argued, for instance, that transport vessels are excluded, since the only spe-
cifc reIerence in the Agreement to vessels engaged in transhipment appears in one
30 Para. 52 of the decision. The obiter dicta have been criticised by several commenta-
tors, including Burke, The New International Law of Fisheries (1994), at pp. 48 and 68,
Churchill and Lowe, The Law of the Sea, 3rd ed. (1999), at p. 291, and Kwiatkowska, The
200 Mile Exclusive Economic Zone in the New Law of the Sea (1989), at p. 67.
32 In article 2 of the Convention on the Continental Shelf 1958, the coastal state enjoys sov-
ereign rights for the exploration and exploitation of natural resources, without more ado.
This wording has been suIfcient in practice to conIer also conservation and management
powers over the resources: See Fleischer, Fisheries and Biological Resources in Dupuy-
Vignes, Handbook on the New Law of the Sea, at p. 1070.
33 Lucchini and Voelkel, Droit de la Mer (1996), vol. 2, pp. 476-7.
34 Proposals Ior wider defnitions to include support vessels were tabled but not accepted
during the ConIerence, according to Edeson, in Boyle and Freestone (eds.), International
Law and Sustainable Development (1999), at p. 173. This may simply refect the reluc-
tance oI fag states to accept obligations to ensure compliance by tankers and transport
vessels fying their fags with third states` fshery regulations.
216 Chapter 11
paragraph in the preamble. The phrase any other vessels directly engaged in such
fshing operations is confned, according to this view, to those which are subject to
government authorisation and which play an integral part in harvesting, such as scout
boats or tenders supporting a group purse seine feet.
35
Secondly, the FAOs Code
of Conduct for Responsible Fisheries appears to go a little further in that its terms
recognise obligations on the part of states within their respective competences and
in accordance with international law to monitor and control 'the activities of hsh-
ing vessels and fshing support vessels (emphasis added). It may be noted that the
respective competences are those oI fag states and coastal states.
Turning to regional arrangements, some multilateral high seas fsheries conven-
tions adopted beIore the emergence oI the concept oI the EEZ were cast in such a
way as to include activities in support oI fshing. For example, the Convention on
the Conduct oI Fishing Operations in the North Atlantic oI 1 June 1967 defnes the
term vessel to include 'any hshing vessel ana any vessel engagea in the business
of processing hsh or proviaing supplies or services to hshing vessels.`
36
The Wel-
lington Treaty of 1987, concluded by the US and a number of states in the western
Pacifc concerning fsheries in that region, contains an elaborate defnition oI 'fsh-
ing which includes not only seeking out and catching fsh but also any operations
at sea directly in support of, or in preparation for any fshing activity.
37
Similarly,
the Convention Ior the Prohibition oI Fishing with Long DriItnets in the South Pacifc
oI 23 November 1989 defnes the term 'driItnet fshing activities to include trans-
porting, transshipping and processing any driftnet catch, and cooperation in the pro-
vision of food, fuel and other supplies for vessels equipped for or engaged in driftnet
hshing.`
38
Support activities are also included in the scope of the Convention for
the Conservation oI Anadromous Stocks in the North Pacifc Ocean oI 11 February
1992,
39
the Convention Ior the Conservation oI Southern Bluefn Tuna
40
and the Ho-
niara Agreement of 30 November 1994 concerning Cooperation in the Management
of Fisheries of Common Interest.
41
The Inter-American Tropical Tuna Commission
has adopted three Resolutions recommending that the Parties and non-parties under
whose jurisdiction vessels operate in the eastern Pacifc Ocean should prohibit both
the transhipment of tuna at sea and the use of tender vessels operating in support of
35 Nomura, Distant Water State Perspective, in Nordquist and Moore (eds.), Current Fish-
eries Issues and the Food and Agriculture Organization of the United Nations (2000), p.
183, at p. 187. (Mr Nomura took part in the negotiation of the Agreement.)
36 6 ILM (1967) 760; 1051 UNTS (1984) 102.
37 Article 1.1(c) oI the Treaty, 26 ILM (1987) 1048. A similar defnition was included in
the recent Convention on the Conservation and Management of Highly Migratory Fish
Stocks in the Western and Central Pacifc Ocean.
38 29 ILM (1990) 1449.
39 United Nations Publication, Law of the Sea: Current Developments in State Practice No.
IV (1995), p. 188.
40 Ibid., p. 280.
41 Article 1 defnes 'related activities to mean 'reIuelling or supplying fshing boats.
vessels fshing by means oI fsh aggregating devices.
42
The Commissions activities
relate to the high seas and waters under the jurisdiction of the parties.
43
It may be noted that these various Conventions apply, at least in part, to areas
within national jurisdiction, as well as to the high seas in the Pacifc and Indian
Oceans. These Conventions appear to proceed on the basis that the coastal states
jurisdiction over fshing in such areas oI national jurisdiction extends also to a range
of related activities.
3 National Legislation
National legislation is a primary guide to state practice. In the normal case, a coastal
states legislation applies in principle to the vessels of all other states in respect of any
actions taken by such vessels in the EEZ. This general position contrasts with state
practice in the form of international conventions which apply amongst the states par-
ties inter se. At the same time, it should be noted that national legislation often adopts
diIIerent approaches to the regulation oI activities by Ioreign vessels, refecting the
well-known differences in administrative and legislative practices around the world.
The FAOs Legislative Study entitled Coastal State Requirements for Foreign
Fishing Vessels contains a survey of National Legislation relating to the licensing
and control oI Ioreign fshing operations in coastal waters. The Iollowing passage
appears:
InsoIar as the defnition oI a fshing vessel is concerned, the trend now seems to be to
include fshery support vessels, including motherships, transport ships, and reIuelling
ships, in that defnition, in addition to vessels actually engaged in fshing operations. This
inclusiveness has the advantage of facilitating controls over both licensed and unlicensed
fshing operations and over activities, like over-the-side` sales, which do not actually
involve fshing.
44
The typical eIIect oI such defnitions is to apply, in principle, the substantive provi-
sions and licensing requirements not only to catching vessels but also to transport
and support vessels. A support vessel which operated without an appropriate licence
could be subject, in principle, to arrest and prosecution.
Some examples of national legislation following this trend may be noted, as fol-
lows.
Section 1824 of the United States Code provides that 'no foreign hshing vessel
shall engage in hshing within the exclusive economic :one.unless such vessel has
on board a valid permit issued under this section for such vessel. The Code defnes
the term 'fshing to include 'any operations at sea in support of, or in preparation
42 The texts are available on www.iattc.org/.
43 Article II (4) oI the Convention Ior the Establishment oI an Inter-American Tropical
Tuna Commission, 1949.
44 FAO Legislative Study No. 21, Rev. 4 (1993), Chapter 12 'Coastal State Requirements
for Foreign Fishing, Part One, section 4(a), at p. 713.
218 Chapter 11
for the catching oI fsh. The implementing regulations defne support as any op-
eration by a vessel assisting hshing by foreign or US vessels, incluaing supplying wa-
ter, fuel, provisions, hsh processing equipment, or other supplies to a hshing vessel`.
The Code also defnes the term 'hshing vessel` to include any craft which is used for
aiding or assisting one or more vessels at sea in the performance of any activity re-
lating to hshing, incluaing, but not limitea to, preparation, supply, storage, refrigera-
tion, transportation, or processing.
45
When read together, these provisions require
a permit to be obtained by foreign support vessels of all types which are intending to
assist Ioreign fshing vessels conducting fshing operations in the US EEZ.
Japan`s Law oI 1996, enacted at the time oI ratifcation oI the LOS Convention, on
the Exercise oI Sovereign Rights with regard to Fisheries and other activities, and on
other Matters, in the EEZ
46
contains the following:
Article 9. Where a Ioreigner intends to conduct activities accompanying fshing and other
activities in connection with fshing.he/she shall obtain the approval oI the Minister.
for each of the vessels to be used for such activities.
The term 'activities accompanying hshing ana other activities` is defned to mean
'the exploration for or gathering of hsh, the storing or processing of hsh, the trans-
port of harvestea hsh or its proaucts, the supply of ships,.`. In implementing the
Convention, Japan has prohibited the transhipment and loading oI fsh without prior
authority. Similarly, Japan has issued permits Ior the bunkering oI fshing vessels
engaged in fshing in its EEZ.
Similarly, the Republic oI Korea`s Act on the Exercise oI Sovereign Rights on
Foreigners` Fishing, etc. within the Exclusive Economic Zone oI 1996 provides that
a Ioreigner intending to conduct fshery activities in the EEZ shall obtain a licence
for each vessel from the competent Korean Minister. The term hshery activity is
defned to include taking fsh and 'the keeping, storing ana processing of hshery
products, the transporting of the catch and its products, the supplying of materials
necessary for vessels, and other acts as stipulated by Ordinance....
47
South Africas Marine Living Resources Act 1998 extends to refuelling or sup-
plying fshing vessels, selling or supplying fshing equipment or perIorming any oth-
er activity in support oI fshing.
48
The Fisheries Act 1986 of the Seychelles contains
45 US Code, Title 16-Conservation, Chapter 38-Fishery Conservation and Management,
section 1802 Defnitions para. (17). (Available on http://www4.law.cornell.edu/us-
code/).
46 UnoIfcial translation Irom Law No 76 oI 1996. For a general survey oI the legislation,
see Hayashi, Japan: New Law of the Sea Legislation, 12 IJCML (1997/No. 4), p. 570.
47 Act No. 5158 of 8 August 1996, as amended.
48 Cited in Molenaar and Tsamenyi, Satellite-Based Vessel Monitoring Systems for Fish-
eries Management: International Legal Aspects, 15 IJMCL (2000/No. 1) 65, at 91.
a similar formula.
49
Several other states, including Australia
50
, Barbados,
51
Canada
52
,
Grenada,
53
Guinea-Bissau,
54
New Zealand,
55
Sierra Leone
56
and Trinidad,
57
have leg-
islative provisions, which are broadly similar in their effects. Indeed, all States par-
ties to the Wellington Treaty or to the Long Driftnet Fishing Agreement may have
similar legislation, implementing the two treaties.
Turning to Europe, Council Regulation (EEC) No 2847/93 oI 12 October 1993
establishing a control system applicable to the common fsheries policy provides
that the system 'shall apply to all hshing activities ana to all associatea activities
carried out within...the maritime waters subject to the sovereignty or jurisdiction of
the member states (Article 1.3.). Article 2 requires monitoring oI 'hshing activ-
ity and related activities. The Regulation refers to the following activities: keeping
logbooks, recording catches by species and area, and processing, transhipment and
transport oI fsh.
Belgiums Law for the protection of the environment of maritime areas under Bel-
gian jurisdiction oI 20 January 1999 provides that permits are required Ior industrial
and commercial activities in the Belgian EEZ.
58
This power may be implemented by
an arrt for the purpose of the protection of the marine environment. For instance,
coastal state jurisdiction under articles 211(5) and 220, read together with the MAR-
POL Convention, may be applicable to discharges of oil caused by the bunkering in
the EEZ oI all types oI merchant ships and fshing vessels.
59
In UK legislation, the Sea Fisheries Act 1968 applies to activities ancillary to fsh-
ing in the UK`s fshery zone and the term 'fshing vessel is defned to mean any
vessel employed Ior the time being in fshing or ancillary operations.
60
The transfer
of oil between two ships is regulated by the Merchant Shipping Act 1995, but only in
respect of transfers within internal waters and the territorial sea. Regulation has been
49 Revised edition of the Laws of the Seychelles, revised edition 1991, Fisheries Act, Chap-
ter 82.
50 Fisheries Management Act 1991.
51 Marine Boundaries and Jurisdiction Act 1978, s.2.
52 Coastal Fisheries Protection Act.
53 Fisheries Act 1986.
54 Decree-Law No. 4/94
55 Fisheries Act 1983: section 57 requires a Ioreign vessel intending to engage in bunkering
in the EEZ oI NZ to apply Ior a licence.
56 Fisheries (Management and Development) Decree 1994: The term related activities is
defned to mean transhipping, processing or transporting fsh and 'reIuelling or supply-
ing fshing vessels or perIorming other activities in support oI fshing operations.
57 Archipelagic Waters and Exclusive Economic Zone Act 1986, s.2.
58 Article 25(1) (v) and (vi) of the Law, Moniteur Belge, 12.03.1999, p. 8033.
59 On the environmental aspects oI the EEZ, see the chapter by ProIessor Erik Franckx in
E. Franckx and Ph. Gautier (eds.), at In. * above, p. 11.
60 Sea Fisheries Act 1968, sections 5, 8 and 19 (as amended).
220 Chapter 11
imposed for environmental purposes.
61
Accordingly, all types of vessel, including
fshing vessels, remain Iree to supply and to receive bunkers beyond the territorial
sea. In Northwest Europe, a fshing vessel normally returns to port aIter a relatively
short voyage, without the need for bunkering or other logistic support at sea. The UK
overseas dependencies, many oI which have 200 mile zones in which feets oI distant
water fshing vessels operate, have so Iar Iollowed the same approach and have not
regulated bunkering. They do regulate the processing, transport and transhipment of
fsh caught with their respective 200-mile zones and include in the defnition oI 'fsh-
ing operations at sea in support oI fshing.
62
There is a difference, therefore, between
UK practice and that oI some other States in regard to bunkering in the EEZ. There
may well be other States which have not taken powers to regulate such activities in
their EEZs Ior one reason or another, including States which have reIrained in view
of the cautious approach adopted by the majority in the case of La Bretagne.
To sum up, this survey of some national legislation indicates that the trend iden-
tifed in 1993 by the FAO Legislative Study has continued through the rest oI the
century. There exists considerable uniIormity as regards the inclusion in fsheries ju-
risdiction oI the ancillary activities oI processing, transport and transhipment oI fsh.
However, there are differences over bunkering. Some states regulate the activities
oI bunkering vessels which are operating in support oI fshing vessels fshing in the
EEZ, whilst other states do not. OIIshore bunkering, especially oI distant water or in-
dustrial fshing vessels, has developed to the point where there exists an international
trade association and a monthly trade journal, Bunker News. In earlier times, only
warships were re-supplied at sea in this way on a regular basis.
III Bunkering and the Saiga Cases
The legal consequences oI bunkering were considered in the Saiga Cases.
63
In 1997
and again in 1999, the International Tribunal for the Law of the Sea was called upon
to consider certain issues in the case oI the Saiga, a tank vessel fying the fag oI St
Vincent. The Saiga had left its base in Dakar in order to supply bunkers and water to
fshing vessels (and occasionally merchant ships) at sea oII the coast oI West AIrica,
64
61 Section 130 applies to the transfer of cargo, stores, bunker fuel or ballast between ships
while within United Kingdom waters.
62 For example, sections 2 and 7 of the Fisheries (Conservation and Management) Ordi-
nance 1986 of the Falkland Islands, in United Nations Publication Current Developments
in State Practice No. II, p. 61.
63 Saiga Case (Prompt Release), Judgment of 4 December 1997, ITLOS Reports 1997, p.
16; Saiga No.2 Case, Judgment oI 1 July 1999, ITLOS Reports 1999, p. 10. Case note by
Oxman, 94 AJIL (1999), p. 621.
64 Where there is a major fshery: see N`Diaye and Tavares de Pinho, Une Exprience Afri-
caine de Coopration Halieutique: La Commission sous-regionale des Pches, in 8 Es-
paces et Ressources Maritimes (1994) p. 237. In 1985, the coastal states in the subregion,
namely, Cape Verde, Gambia, Guinea, Guinea-Bissau, Mauritania and Senegal, created
a sub-regional fsheries Commission. In 1993, the member states adopted La Convention
as part of its normal business.
65
Saiga was arrested at sea by the authorities of Guinea,
taken to Conakry, prosecuted and convicted in respect of the supply of bunker oil to
three non-Guinean fshing vessels operating in the EEZ oI Guinea.
66
The charges can
best be described as customs offences or smuggling. The main charge was laid under
article 1 of Law No. L94/007 which provides that The import, transport, storage
and distribution of fuel by any natural person or corporate body not authorised are
prohibited in the Republic of Guinea. Guinea pointed out that it relied upon fuel du-
ties Ior a signifcant part oI its national revenues. For example, 150 fshing vessels in
Guinean waters consuming 100 tonnes of fuel per month should result in the payment
of customs duties totalling $500,000 per month.
67
St Vincent contended that the Saiga
was not subject to Guineas customs jurisdiction.
In paragraph 57 of its judgment of 4 December 1997 on the application for the
prompt release of the Saiga, the Tribunal set out some arguments for and against the
proposition that the bunkering oI fshing vessels in the EEZ could be regulated by the
coastal state. In those proceedings, it was not necessary for the Tribunal to express a
view on the question, given the limited scope oI the question oI release under article
292.
68
However, the question arose again during later proceedings on the merits oI
the dispute.
In its argument on the merits of the dispute, Guinea explained the arrest primarily
as an exercise of customs jurisdiction within its customs radius extending to 250 kilo-
metres from the coast. Guinea also invoked the doctrine of necessity or the principle
of self-protection from threats to its public interests. After carefully considering all
the arguments, the Tribunal decided that a coastal state was not entitled under the
terms oI the LOS Convention to exercise customs jurisdiction over the EEZ, apart
Irom artifcial islands, installations and structures in the EEZ in respect oI which
customs jurisdiction could be exercised in accordance with article 60(2).
69
In view of
sur les Conditions dAcces et dExploitation des Ressources halieutiques au large des
Ctes des Etats Membres, as well as La Convention sur la Coopration sous-rgionale
dans lexercice du Droit de Poursuite Maritime.
65 Saiga would meet three or so fshing vessels a time at pre-arranged points in diIIerent
EEZs on orders radioed or telexed Irom its managers in Geneva. The latter, no doubt,
received Irom the owners or agents oI the fshing vessels payments Ior the supplies de-
livered and services rendered at sea to the vessels. These were commercial transactions
oI mutual beneft to the fshing vessels and the suppliers: the fshing vessels would not
lose fshing time whilst going to and Irom port, Ior example.
66 At least one oI the three fshing vessels was operating in Guinean waters pursuant to the
Agreement between Guinea and the EC (Council Decision 94/456/EC oI 17 June 1994).
No Iormal complaint by the authorities in Guinea against the conduct oI the fshing ves-
sels in receiving bunkers from Saiga was mentioned to the Tribunal.
67 Guinea had passed specifc legislation about the smuggling oI Iuel Iollowing an incident
when a tanker had moored just beyond the territorial sea and sold drums of oil to small
vessels which took the drums ashore.
68 Paras. 57 to 59 of the judgment of 4 December 1997: ITLOS Reports 1997, p. 16, at pp.
29-30.
69 Para. 127 of the judgment of 1 July 1999: ITLOS Reports 1999, p. 10, at p. 52.
222 Chapter 11
that fnding, it was unnecessary Ior the Tribunal to make any general fndings about
the legal aspects oI bunkering in the EEZ. Accordingly, the Tribunal declined to do so
despite invitations, supported by detailed arguments, from both parties.
The rival contentions still retain their relevance, however, in the context of this
chapter. They may be summarised as follows:
70
St Vincent contended that bunkering in the EEZ constitutes the exercise of the
freedom of navigation and other internationally lawful uses of the sea related to
the freedom of the sea, as provided for in articles 56 and 58 of the Convention.
St Vincent also contended that the list of high seas freedoms in article 87 was not
exhaustive
71
and that Saiga was engaged in navigation at a slow speed when ac-
tually delivering bunkers by pipeline to a recipient vessel. St Vincent submitted
legal advice from the 21states from which the Tribunals members came. The
advice was to the general effect that the supply of bunkers beyond the territorial
sea would not per se amount to smuggling because the supply took place outside
the customs territory.
72
Guinea contended that bunkering was not navigation or a use of the sea related
to navigation or communications. On the contrary, according to Guinea, bunker-
ing was a commercial activity conducted in the instant case by a foreign ship
in Guinea`s EEZ.
73
Guinea recalled that a proposal made at the LOS Conference
by a group of African States would have accorded to the coastal state customs
jurisdiction related to economic activities in the EEZ.
74
Guinea argued that al-
though this proposal had not been expressly included in the Convention it would
be misleading to conclude that it had been rejected. The Tribunal, whilst it did
not directly address this particular argument, must be taken to have rejected it by
implication in its holding that the Convention does not empower a coastal state
to apply its customs laws in respect oI any . parts oI the EEZ other than arti-
fcial islands, installations and structures.
75
Judge Nelson in his separate opinion
criticised Guineas line of reasoning as containing the seeds of destruction of the
Convention.
76
Guinea also noted that bunkering might not have the same status
in all cases, suggesting that different considerations might apply to bunkering
70 The citations follow the summary in para. 137 of the judgment of 1 July 1999.
71 St Vincent also gave the example of duty free sales on board cruise liners passing through
the EEZ which the coastal state was not entitled to prohibit. Such activity has nothing to
do with natural resources.
72 However, the Tribunal did not have similar information about the legal position of for-
eign fshing vessels and support vessels operating in the EEZs oI the states concerned.
73 Counsel for Guinea (Rainer Lagoni) in PV 99/14.
74 Counsel for St Vincent (Richard Plender Q.C.) PV 99/14, p. 26. The proposal was A/
CONF.62/L.82/ Rev.1, in volume III oI the OIfcial Records oI the ConIerence, p. 241. A
similar proposal was submitted by Nigeria, as A/CONF.62/C.2/L.21/Rev.1, ibid. p. 199.
75 Para. 127 of the judgment of 1 July 1999: ITLOS Reports 1999, p. 10, at p. 52.
76 ITLOS Reports 1999 p. 10, at p. 124.
of ships operating in the zone, as opposed to the supply of oil to ships that are
in transit.
77
In his separate opinion, Judge Zhao accepted that bunkering was a commercial ac-
tivity, concluding that It is not navigation of the M/V Saiga that is involved, but
its commercial operations of offshore bunkering in the exclusive economic zone of
Guinea.
78
Judge Vukas expressed the Opinion that bunkering should be considered
as an internationally lawful use of the sea in the sense of article 58(1) of the Conven-
tion. He added: Supply of bunkers is the purpose of the navigation of a tanker, and
refuelling is essential for further navigation of the ship to which gasoil has been sup-
plied.
79
Judge Warioba dissented from the judgment on the grounds that Guinea
could properly apply customs and contraband laws against the Saiga when it under-
took bunkering activities in the EEZ.
80
My separate opinion contained the following passage:
Today, bunkering is conducted under all manner of different circumstances and may
involve distinct types of recipient vessels, including passenger vessels, warships, cargo
ships and fshing vessels. For example, immediately beIore taking on bunkers, a recipient
vessel may be exercising freedom of navigation. In such a case, its bunkering could well
amount to an internationally lawful use of the sea related to the freedom of navigation
and associated with the operation of ships within the meaning of article 58(1) of the
Convention. To take a diIIerent example, a fshing vessel may be engaged in fshing in
the EEZ with permission and subject to conditions established in the laws and regulations
of the coastal state, consistent with the Convention (in particular, article 62(4)). Here, the
accent is not so much on the navigation oI the fshing vessel as upon its eIfcient exploita-
tion oI the stocks in accordance with the terms oI its licence. Yet again, a fshing vessel
may also be in need of bunkers whilst navigating in transit between its home port and
some distant fshing grounds. And the supply oI bunkers to a ship which has run out oI
fuel as a result of a mishap may also have a humanitarian dimension.
81
In a later case, that oI the Juno Trader, the Tribunal ordered the prompt release oI a fsh
transport vessel detained on suspicion oI having, in the EEZ, received or transhipped
without permission fsh caught by licensed vessels operating there. The Tribunal had
no diIfculty in fnding that article 292 oI the LOS Convention was available to a fsh
transporter that had been detained Ior fsheries reasons in the EEZ.
82
77 The arguments are summarised in para. 137 of the judgment.
78 Para. 3 of his Separate Opinion.
79 Separate Opinion, para. 17.
80 Para. 91 of his Dissenting Opinion.
81 Separate Opinion, ITLOS Reports 1999 p. 10, at pp. 137-138.
224 Chapter 11
IV Some Concluding Remarks
A Processing, Transport and Transhipment.
The terms of the Convention, as applied in a body of state practice, support the view
that the coastal state is entitled to regulate not only the catching and landing oI fsh
and other living resources in its EEZ, but also their processing,
83
transport and tran-
shipment
84
in the zone. These ancillary activities, directly concerning the catch taken
in the zone, may be regulated in exercise oI the coastal state`s sovereign rights to
explore, exploit, conserve and manage the natural resources oI the zone. The sover-
eign rights under article 56 include those rights necessary for and connected with
theexploitation of the natural resources,
85
as well as those expressly referred to
in article 62. The inclusion of these ancillary activities is consistent with the func-
tional nature oI the coastal state`s powers over the natural resources oI its zone.
86
In
the legislation oI many states, these activities are regulated as Iar as both the fshing
vessel and the other vessel are concerned.
87
B Bunkering and Supply/Support
State practice in the matter of bunkering is not uniform. There is no doubt that the
coastal state may regulate in its territorial sea activities in support oI fshing vessels,
such as bunkering. Many States do not regulate the bunkering in the EEZ. This may
be the result of either a conscious decision or the lack of any practical need.
A number of coastal states, developed and developing, do regulate bunkering as far
as fshing vessels operating in their respective EEZs are concerned. They may reason
as Iollows. First, bunkering and supply on the fshing grounds increases the catching
eIfciency oI fshing vessels. In a typical situation, a fshing vessel breaks oII Irom
fshing Ior a short time, receives bunkers and other supplies and immediately resumes
fshing in the same EEZ. The fshing vessel is relieved oI the need to make a voyage
to and from port, e.g. in the coastal state. It avoids the need for navigation and intensi-
fes its fshing eIIort. In that sense, Irom the perspective oI the coastal state, bunker-
83 This was accepted, as a consequence oI the power to require the landing oI the catch, in
an obiter dictum by the arbitral tribunal in the case of La Bretagne (supra).
84 The Minimum Terms and Conditions of Access for Foreign Fishing Vessels adopted by
a group oI Pacifc States oI the Forum Fisheries Agency prohibit transhipment outside
designated ports: see Aqorau, 'Illegal Fishing and Fisheries Law EnIorcement in Small
Island Developing States: The PaciIic Islands Experience, 15 IJMCL (2000) 37, at p.
45.
85 The phrase used by the ILC in its commentary on draft article 68, YBILC 1956, Vol. II, p.
297.
86 By the same token, ancillary activities in respect oI fsh caught in the EEZ oI State A
which are on board a vessel in the EEZ oI state B raise separate issues.
87 The trend identifed by the FAO`s Legislative Study No. 21/Rev.4 (1993), Chapter 12, is
to defne 'fshing vessel in terms which embrace also the transport vessel or reeIer.
ing has a closer connection with fshing and the overall management oI the fshery
than with navigation. Secondly, oIIshore bunkering raises fscal questions which are
far from straightforward. Most states of the world impose high customs duties and
taxes on all types of fuel, including bunkers. Thus, coastal states wish to collect rev-
enues Irom all taxable vessels in all taxable circumstances. Yet, the waters oI the EEZ
lie beyond the customs territory of the coastal state. The regulation of bunkering in
regard to vessels fshing in its EEZ may bring indirect fnancial returns Ior the coastal
state, e.g. licence fees and fuel duties levied on bunkering vessels loading in port.
The power in article 62 to impose licence conditions on foreign vessels is wide,
and includes the power to require a licensed vessel to call at a port in the coastal state,
if only to collect the licence. The States which regulate bunkering and supply in the
EEZ include ones whose interests are primarily coastal and other States including
the Republic of Korea, Japan and the US which all have extensive maritime, includ-
ing distant water fshing, interests as well as coastal state interests.
88
The regulations
apply directly to the bunkering vessel. No reports oI protests against these fsheries
regulations have come to light.
The trend in national legislation, identifed by the FAO, oI including support ves-
sels including reIuelling ships in the defnition oI 'fshing vessel would tend to sup-
port an argument to the effect that a coastal state is entitled, in principle and subject
to particular treaty obligations, to regulate in certain ways those activities, including
bunkering, which are in direct support oI fshing vessels engaged in fshing in its
EEZ.
89
On this view, the coastal state may impose on fshing vessels which are fshing
under its licence conditions having to do with calling at a port of the coastal state in
order to collect the document and subsequently to land the catch. It appears, there-
Iore, that the coastal state may also impose on a licensed fshing vessel conditions
concerning bunkers, Ior example a condition requiring it to purchase in the coastal
state some or all oI the Iuel or supplies Ior use in its EEZ, or prohibiting it Irom ac-
quiring Iuel or supplies oIIshore in the EEZ, or restricting the oIIshore suppliers to
ones which have been approved by the coastal state.
The Iurther question arises: is the coastal state entitled also to impose a licensing
requirement on the tanker which is intending to engage in bunkering Ioreign fshing
vessels operating in the EEZ? Even though there are precedents, the application oI
88 Principle 14(1) of the London Principles (fn. 3 above) refers to extensive and repre-
sentative practice.
89 Some of the written evidence in Saiga appeared to indicate that certain West African
coastal states had also enacted fsheries legislation about the bunkering oI Ioreign fshing
vessels operating in the EEZ under licence. See, Ior example, the reIerence in para. 57 oI
the judgment of 4 December 1997 to the Decree-Law No. 4/94 of Guinea-Bissau, which
requires authorisation Ior operations connected with fshing. In addition, it may be noted
that section 2 of the Fisheries Management and Development Act 1988 of Sierra Leone
defned the term fshing vessel to include vessels used Ior 'the supply or support oI
catching vessels. Para. 19 of the Separate Opinion of Judge Vukas records that following
the arrest of the Saiga the Government of Guinea proposed a new Decree intended to
close the current legal loophole in the area of the refuelling of boats... (citing the Coun-
ter Memorial, para. 101 and Annex XVI, p. 8).
226 Chapter 11
fsheries legislation to a tanker may appear unusual. However, in some other con-
texts, a vessel operating in support of another is treated for legal purposes in the same
way as the supported vessel in respect of that operation. An example, provided by
the law oI armed confict, is that oI a merchant vessel reIuelling a warship engaged
in operations in the confict. The San Remo Manual includes this Rule: The follow-
ing activities may renaer enemy merchant vessels military obfectives .(b) acting as
an auxiliary to an enemys armed forces, e.g. ...replenishing warships:....
90
Here the
conduct oI the reIuelling vessel changes its legal status in the armed confict Irom
civilian to military. The LOS Convention also adopts this technique. For example,
Section 3, subsections B and C of Part II relate to merchant ships and government
ships operated for commercial purposes and to Warships and other government
ships operated for non-commercial purposes, respectively. The decisive factor is
the purpose, commercial or non-commercial, of the operation of the government ship
at a particular time. On this view oI the matter, a support vessel which is Iulflling its
purpose of supporting another vessel is impressed pro tanto with the characteristics
of the supported vessels activity at the material time. In this perspective, a tanker
whilst it is bunkering a fshing vessel engaged in fshing in the EEZ is impressed with
the recipient vessels piscatorial characteristics.
91
In practice, legislation concerning the bunkering oI fshing vessels in the EEZ
could be challenged by a third state which does not have similar legislation, such as
the fag state oI a tanker, as being incompatible with the Convention. This is what
happened, in eIIect, Iollowing the arrest oI the Saiga. The fag state`s arguments
would be that the Convention does not contain any express language in articles 56
and 62 conIerring on the coastal state jurisdiction over bunkering oI fshing vessels,
and that bunkering Ialls squarely within the ambit oI the internationally lawIul uses
of the sea protected by article 58. In the event of a challenge, something would, no
doubt, turn on the particular facts of the case, including the terms and scope of the
coastal states legislation and the conduct of the tanker at the material time. However,
in the light of recent trends, it appears unlikely, in all the circumstances, that legisla-
tion requiring the prior consent oI the coastal state Ior the bunkering oI fshing ves-
sels engaged in fshing in the EEZ would be Iound a priori to go beyond the scope of
the sovereign rights and jurisdiction of the coastal state recognised in articles 56, 61,
62 and 73 of the Convention. The ordinary meaning of the term sovereign rights
in its immediate context is wide. There exists a body of state practice, in the forms
of legislation and the absence of protest against the application of such laws, which
supports the interpretation.
At the same time, it is clear that the coastal State is not free to regulate bunkering
in any way it chooses, e.g. by applying its customs legislation to the foreign bunker-
ing vessel. This was the ruling in the Saiga (No.2) Case. The scope of the legislation,
in order to escape the charge of amounting to exorbitant or creeping jurisdiction,
90 Rule 60(b) of the San Remo Manual on International Law applicable to Armea Conicts
at Sea (CUP 1995).
91 A further example is provided by article 111(4) which refers to motherships and other
craft working as a team.
should be confned to fsheries or resource activity in the EEZ. Moreover, a coastal
state must also make its regulations publicly known,
92
allowing the bunkering indus-
try to make appropriate arrangements, such as applying Ior a licence to bunker fsh-
ing vessels in the coastal state`s EEZ.
As a general proposition, the contention advanced by St Vincent to the effect that
bunkering forms part of navigation retains its cogency. Warships, for example, are
regularly accompanied at sea by tenders, tankers or feet auxiliary vessels. Military
aircraft are refuelled in the air. In both cases, their interactions have absolutely noth-
ing to do with fshing or other natural resources. They amount to Ireedom oI navi-
gation or lawful uses of the sea related to that freedom, being associated with the
operation of ships and aircraft, within the meaning of article 58.
93
Other vessels at sea
in an EEZ also enjoy Ireedom oI navigation. The position is similar in regard to the
refuelling of passing cruise liners, passenger ships, merchant ships and ships which
have broken down. It is also similar in the case oI fshing vessels which are passing
in transit through an EEZ on the way to or Irom the home port and so not fshing at
the particular time in the EEZ concerned. Although transporting fsh, they would not
be ones which had been caught in that EEZ. The coastal states which have regulated
bunkering as part oI their resource or fsheries legislation in the EEZ appear not to
have included such cases oI fshing vessels which are simply engaged in navigation
in transit through the EEZ. Bunkering is a service: when it serves navigation, the
rules on navigation apply, whereas when it serves fshing in the EEZ the applicable
rules are those on fshing.
92 This is made clear by article 62(5) of the Convention.
93 A view expressed in my dissenting opinion in the Saiga (Prompt Release) Case, ITLOS
Reports 1997, p. 16, at p. 68.
Chapter 12
Freedoms of the High Seas in the
Modern Law of the Sea*
I Preface
Many signifcant developments in the law relating to the high seas have been wit-
nessed during the past century. Indeed, the rate of change has accelerated, if anything,
during the period starting in 1973 during which the writer has been directly involved,
in different capacities, in several of the developments. The chapter reviews, from a
personal perspective, some of the more noteworthy developments in the law, making
particular reference to navigational issues.
II Introduction
A century ago, in 1905, the law relating to the high seas consisted almost entirely of
customary law,
1
based on the Iundamental concepts oI Ireedoms and exclusive fag
State jurisdiction
2
over ships on the high seas. There were many important decisions
* First published in D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea: Pros-
pects and Prospects (2006), Chap. 17. The chapter has been slightly edited and updated.
1 The origins of which went back to Grotius concept of Mare Liberum, as well as practice
in Asia described in R.P. Anand, Freedom of the Seas: Past, Present and Future, in H.
Caminos (ed.), Law of the Sea (2001), p. 215.
2 Ships were seen by some (but not all) authorities as pieces oI foating territory. The deci-
sion of the Permanent Court of International Justice in the SS Lotus case was infuenced
230 Chapter 12
by international tribunals, much academic doctrine and just a very few international
conventions on matters such as submarine telegraph cables.
3
Over the last hundred
years, the regime oI the high seas has seen Iour types oI development. The frst has
been the signifcant reduction in the area oI the high seas. The permissible limits oI
coastal State jurisdiction have been gradually extended away from the coast, and as
a result the area of the high seas has been correspondingly reduced. The second was
codifcation oI much oI customary law oI the high seas in the Iorm oI the Geneva
Convention on the High Seas.
4
This instrument brought greater clarity and certainty
to the law, even though there were signifcant omissions in the overall Geneva regime
concerning the limits of national jurisdiction.
5
The third development has been the
growth of detailed regulation of activities on the high seas through the adoption of in-
ternational conventions, especially during the past 30 years. Finally, in the late 1960s
processes oI questioning and Iundamental review oI the entire law oI the sea were
set in train that led, in effect, to the revision of the Convention on the High Seas
6
by
the Third UN Conference on the Law of the Sea. As a result, the UN Convention on
the Law of the Sea (the Convention) contains many important provisions directly
concerning or indirectly affecting the high seas. The main provisions are to be found,
of course, in Parts VII and XI
7
of the Convention, the latter articulating the concept
of the Common Heritage of Mankind. Important provisions are to be found in other
Parts such as Part XII
8
concerning the protection and preservation of the marine envi-
ronment and Part XIII concerning marine scientifc research. The entry into Iorce oI
the Convention in November 1994 must stand out as the most signifcant event dur-
ing the second half of the last century in the law of the sea, including the high seas.
by this metaphor (1927, Ser. A, No. 10, at p. 25). The doctrine oI exclusive fag State
jurisdiction, based on the need for an orderly distribution of competences, advanced on
behalf of France by Professor Basdevant (ibid. pp. 6-8), was not accepted at that time.
However, the decision and the metaphor have not survived into the modern law, which
is now based on the Brussels Convention Ior the Unifcation oI certain Rules relating to
Penal Jurisdiction in matters of Collisions and other Incidents of Navigation 1952 and
article 97 of the UN Convention on the Law of the Sea.
3 International Convention for the Protection of Submarine Telegraph Cables, Paris, 14
March 1884. SOLAS, the Collision Regulations and the Radio Regulations all date from
the early part of the twentieth century.
4 The Convention also developed the law in certain respects.
5 The law was simultaneously developed signifcantly by the Convention on Fishing and
Conservation of the Living Resources of the High Seas of 1958.
6 Together with most other parts of the law of the sea.
7 Part XI, the regime for mineral recovery operations from the seabed of the International
Seabed Area, has to be read together with the terms of the Implementation Agreement of
1994.
8 As the Report oI the (UK) Royal Commission on Environmental Pollution points out, the
duty to protect and preserve the marine environment in article 192 of the Convention
is applicable to the high seas: Turning the Tide Cm 6392, 2004.
231 Freedoms of the High Seas in the Modern Law of the Sea
II High Seas Navigation: Developments over the Past 30 Years
This chapter reviews certain legal developments that may now be addressed in terms
of articles contained in Part VII, section 1, of the Convention,
9
namely (A) the reten-
tion oI the concept oI the high seas; (B) the Ireedoms oI the high seas; (C) the nation-
ality oI ships and fag State duties; (D) traIfcking in narcotics on the high seas; (E)
unauthorised broadcasting Irom the high seas; (F) the right oI visit and search; (G)
hot pursuit; and (H) submarine cables and pipelines.
A The Retention of the Concept of the High Seas
(Article 87 of the Convention)
In 1973, some novel proposals were submitted to the Seabed Committee, notably
the concept of international seas,
10
that appeared to me to be likely to disturb the
existing concepts of the high seas and its freedoms. A Conference of the Council of
Europe in 1965 had already persuaded me that the Convention on the High Seas was
not perfect.
11
Nonetheless, in the Seabed Committee, I was concerned to preserve
the essential elements of the existing regime, including the concepts of high seas
and freedoms, especially freedom of navigation, lest they be replaced by uncertainty
or even chaos. The agenda for the Conference was full and it included proposals for
radical new concepts such as the EEZ and the Common Heritage oI Mankind. There
were limits to the changes that could be made whilst at the same time maintaining
legal stability.
12
As a legal practitioner, I favoured a degree of evolution, but not out-
right revolution.
In the early months of 1974, when preparing for the negotiations at the Conference
in Caracas,
13
the British delegation developed a strategy. This was to table a Working
Paper on the High Seas that reaIfrmed and 're-enacted a good part oI the Conven-
tion on the High Seas so as to retain the existing concepts and much of the existing
9 For existing surveys, see D. Momtaz, High Seas, in Dupuy-Vignes, A Handbook on the
New Law of the Sea (1991); T. Treves, 'Navigation, in ibid; T. Scovazzi, 'The evolution
of International Law of the Sea, 286 Hague Recueil (2000) 43; Oppenheims Interna-
tional Law, 9th ed. by Jennings and Watts, Chap. 6; and Churchill and Lowe, The Law of
the Sea, 3rd ed., Chaps. 11 and 13.
10 DraIt articles Ior inclusion in a convention on the law oI the sea: Working Paper by Ecua-
dor, Peru and Panama (A/AC.138/SC. 11/L.27), and Chinas Working Paper on General
Principles for the International Sea Area of 1973 (A/AC.138/SC.II/L.45), in Report of the
Committee on the Peaceful Uses of the Sea-bed and the Ocean Floor beyond the Limits
of National Jurisdiction, Vol. III, p. 34 (1973), A/9021.
11 The ConIerence drew up the Council oI Europe Agreement Ior the Prevention oI Broad-
casts transmitted Irom Stations outside National Territories. For Iurther details, see (E)
below.
12 This was a factor that, during the Vienna Conference on the Law of Treaties in the late
1960s had concerned the British delegation, which included the present writer.
13 At that time, the Conference was expected to last one or two years. Few, if any, appreci-
ated it would run until 1982.
232 Chapter 12
law, but with some additions and improvements.
14
The Working Paper began with the
following introduction:
It is clear that in any comprehensive convention on the law of the sea articles setting
out the rights and duties of States on the high seas must be included. Such rights and
duties are at present codifed in the 1958 Geneva Convention on the High Seas. It is
likely that some provisions oI that Convention will need some modifcation in the light
of the conclusions reached by this Conference. However, it is the view of the sponsors
that the principles and provisions contained in the Convention on the High Seas are
otherwise valid, must remain in force for areas beyond the territorial sea, and should be
incorporated in any new comprehensive convention on the law of the sea adopted by this
Conference... .
15
In other words, the proposal was to retain most of the articles in the Convention of
1958 and to add some new articles for incorporation into a new convention. Debate
over the choice between revolution and evolution was joined at Caracas.
16
The Main
Trends
17
document of 1974 contained the two options of high seas and interna-
tional seas. The terms high seas and freedoms were used in the ISNT
18
in 1975
and eventually, of course, in the Convention. As a result, we have continuity over the
basic concepts.
14 The delegation reviewed the Iollowing fve topics: (1) fag State jurisdiction and the is-
sue oI the 'genuine link; (2) narcotics smuggling across the high seas; (3) unauthorised
broadcasting Irom the high seas; (4) hot pursuit Irom the continental shelI/ extended
fsheries zone; and (5) modernisation oI the rules on submarine cables.
15 The introduction ended: Meanwhile the sponsors wish to propose additions to the Con-
vention on the High Seas not directly related to the other matters under discussion at this
Conference. These additions are contained in the draft articles set out below. The draft
additional articles started discussions that resulted in the adoption of articles 94, 108, 109
and 110(1) (c) of the Convention. See UN Doc. A/CONF.62/C.2/L.54, Introduction, in
Vol. III of the Ofhcial Recoras at p. 229. Early in the session held in Caracas in 1974, the
other member States oI the European Community (then nine) joined the UK in co-spon-
soring the proposals.
16 Tanzania complained oI weaknesses in the law concerning the conservation oI fsh stocks
on the high seas. Guyana wished to apply the principle of the Common Heritage of Man-
kind to resources of all kinds found in the international area. Peru, recalling proposals
tabled in the Seabed Committee, argued for a new regime of international seas. Ofhcial
Records, Vol. III, pp. 235-8 (Second Committee).
17 A/CONF. 62/ L.8.Rev. 1, Appendix I, provisions 136 to 177.
18 Informal Single Negotiating Text: A/CONF. 62/WP 8.
B The Freedoms of the High Seas (Article 87)
19
The Convention on the High Seas contained a non-exhaustive list of four freedoms:
navigation, fshing, cable- and pipeline-laying, and overfight. In addition, the article
referred to others which are recognised by the general principles of international
law, albeit without specifying the criteria for such recognition. The Convention
of 1982, whilst omitting that phrase, added two more freedoms to another non-ex-
haustive list. They were, frst, the construction oI artifcial islands and installations;
and, secondly, marine scientifc research. According to the terms oI article 87,
20
both
freedoms were made expressly subject to other parts of the Convention, as were the
Ireedoms oI fshing and cable- and pipeline-laying; and all Ireedoms are 'exercised
under the conditions laid down by this Convention and by other rules of international
law. The Convention contains specifc conditions, in addition to the 'due regard
test discussed below.
In a general context, the term freedom means being unrestricted. What does
the concept of freedom mean in the present context? Article 87(1) contains only a
partial answer in the proposition that the high seas are open to all States, but the
article has to be read with article 89 which prohibits claims to national sovereignty.
In other words, the law is formulated in such a way as to negate the doctrine of mare
clausum advanced by John Selden.
21
A further consideration is that a legal doctrine
cannot amount to the grant of a general licence or create some sort of vacuum juris
22
or state oI lawlessness. The law must provide some qualifcations to a concept oI
freedom in order to safeguard the interests of others in the international commu-
nity: in this perspective, freedom is a relative concept. As regards general principles,
the Latin maxim sic utere tuo ut alienum non laedas applies, perhaps, in the sense
that a State should not cause or permit ships fying its fag to do things on the high
seas that interfere, whether maliciously
23
or unreasonably, with the interests of other
users. In this perspective, the International Law Commission stated in its Commen-
19 The history of the negotiations on article 87 has been set out authoritatively by L.D.M.
Nelson in Certain Aspects of the Legal Regime of the High Seas, in Y. Dinstein (ed.),
International Law at a Time of Perplexity, Essays in honour of Shabtai Rosenne (1989)
519.
20 Drawn up on the basis oI the proposal by Ecuador, Peru and Panama in the Seabed Com-
mittee, as well as that by El Salvador: A/CONF. 62/C.2/L.68, introduced by Ambassador
Galindo Pohl in the Second Committee (Ofhcial Recoras, Vol. III, at p. 235).
21 Concepts of Roman law such as res nullius and res communis are unhelpful: Gidel, Le
Droit International Public de la Mer, vol. I. p. 213. Res extra commercium is closest
to the truth. The Memorandum attributed to that author and prepared for the ILC (A/
CN.4/38) stated The expression freedom of the high seas is in reality a purely negative,
worn out concept... the antithesis of another... which has long disappeared.
22 G. Gidel, op. cit. fn. 21, p. 224.
23 See the discussion in Bin Chengs General Principles of Law as applied by International
Courts and Tribunals, 1987, at pp. 121 to 122, citing arguments advanced in the Fur Seal
Arbitration 1893 and the German Interests case before the Permanent Court of Interna-
tional Justice in 1926.
234 Chapter 12
tary on draft article 27 that: States are bound to refrain from any acts which might
adversely affect the use of the high seas by nationals of other States.
24
The sentence
Iormed the basis Ior a British proposal at the frst UN ConIerence on the Law oI the
Sea
25
to the effect that:
These freedoms... shall be exercised by all States with reasonable regard to the interests
of other States in their exercise of the freedom of the high seas.
26
The proposal did not recapitulate the ILCs element of adverse effects upon others
uses, possibly widening its scope as a result. Be that as it may, the British proposal
was accepted as the fnal sentence oI article 2 oI the Convention on the High Seas.
This principle was applied by the International Court of Justice in the Fisheries
Jurisaiction case (UK v. Icelana) in 1974.
27
The Court found that Iceland enjoyed,
under the law then in Iorce, preIerential fshing rights in the relevant area oI the high
seas. Whilst this enjoyment implied a certain priority, it cannot imply the extinc-
tion oI the concurrent rights oI other States. The Court went on to fnd that:
the principle of reasonable regard for the interests of other States enshrined in article
2 oI the Geneva Convention on the High Seas oI 1958 requires Iceland and the United
Kingdom to have due regard to each others interests, and to the interests of other States,
in those resources.
Since Iceland was not a party to the Geneva Convention, the Court`s fnding was
based upon customary law. The parties were under mutual obligations to negotiate
in good Iaith Ior an equitable solution oI their diIIerences, paying 'due regard to the
interests of other States
28
The Courts term due regard is now found in paragraph 2 of article 87 of the Con-
vention.
29
So far as I am aware, there was no intention at the Conference to change
the content of the reasonable regard test. The change from the well-known term
reasonable to the rather less familiar word due is no more than semantic.
30
The
due regard test is an element in the principle of good faith: rights must be exercised
24 YBILC 1956 Vol. II, commentary on article 27.
25 A/CONF. 13/C.2/L.68.
26 Last sentence of article 2 of the Convention on the High Seas 1958. The topic was dis-
cussed in the particular context (controversial at the time) of atomic weapons tests in
areas oI the high seas (subsequently prohibited by the Test Ban Treaty oI 1963), but the
principle is of general application.
27 ICJ Reports 1974, p. 3, at p. 22, para. 50; at p. 27, para. 62; and at p. 34, para. 79.
28 Ibid. para. 79 (4) (c) the Dispositif.
29 These freedoms shall be exercised by all States with due regard for the interests of other
States in their exercise of the freedom of the high seas, and also with due regard for the
rights under this Convention with respect to activities in the Area.
30 The term reasonable was used in other articles, e.g. article 292. The French is en ten-
ant dment compte.
reasonably. The interests of others in their exercise of the same or similar freedoms
must be taken into account and not simply ignored. The selfsh disregard oI the inter-
ests of others could well amount to an abuse of rights, contrary to article 300.
31
The principle of due or reasonable regard is one that international courts and tribu-
nals are able to apply in cases brought before them. Just as the Court in the Icelandic
Fisheries case applied the principle of customary law (based upon the formulation in
the Convention on the High Seas), so may a court or tribunal acting under Part XV
of the Convention apply the due regard test in article 87(2) in a future dispute, in
much the same way as the International Tribunal for the Law of the Sea has devel-
oped the test of the reasonable bond in article 292.
C Nationality of Ships and Flag State Duties
32
(Articles 91 and 94)
In the early months of 1974, the British delegation prepared for the negotiations in
Caracas by reviewing, in the context of article 5 of the Convention on the High Seas,
the controversial question oI the nationality oI ships.
33
The delegation to the Third
ConIerence were well aware that State practice regarding the grant oI the fag dis-
played unsatisIactory Ieatures: sub-standard ships, oIten fying fags oI States main-
taining open registers, competed for business with ones that met all agreed standards
with the consequential added costs.
34
Public order on the oceans required that fag
State jurisdiction should be effective and that the various freedoms of the high seas
should not be abused. Yet it was apparent that certain fag States did not have the legal
and administrative Irameworks Ior ensuring that ships fying their fags met interna-
tionally agreed standards. The idea of the genuine link
35
had been grafted on to the
31 A particular application of the due regard test may be discerned in article 17(2) of
the Fish Stocks Agreement where it provides that a State not participating in a regional
fsheries management arrangement 'shall not authorize vessels fying its fag to engage
in fshing operations Ior the managed stocks. Such a State is obliged to cooperate with,
and in effect pay due regard to the interests of, the managing States in the conservation
and management of the stocks concerned.
32 A leading authority is Meyers, The Nationality of Ships (1967). A wide-ranging survey
by Professor R.R. Churchill and C. Hedley entitled The Meaning of the Genuine Link
in relation to the Nationality of Ships is posted at http://www.oceanlaw.net/hedley/pubs/
ITF-Oct2000.pdf.
33 This account is intended to supplement the legislative history as set out in DOALOS
publication The Law of the Sea: Navigation on the High Seas (1989), p. 66, as well as
in Nordquist (ed.), UN Convention on the Law of the Sea 1982: A Commentary, Vol. III
(1995), p. 105.
34 For a survey oI the problems oI open registers, see A. Behnam, 'Ending Flag State Con-
trol? in Kirchner (ed.), International Maritime Environmental Law (2003), p. 123.
35 This was an eye-catching term, akin to a term oI art, in the English text oI the Convention
on the High Seas, whereas the French text lien substantiel is more descriptive. In the
Nottebohm case, where the French text was authoritative, sincerit is the equivalent oI
genuineness
236 Chapter 12
law of the sea in the aftermath of the Nottebohm case
36
by the work of the ILC and the
Geneva Conference.
37
However, it may not have been suIfciently noted that there are
differences between individuals and ships: dual nationality is permissible in the case
of individuals but not ships (article 6 of the Geneva Convention and article 92 of the
LOS Convention). The ILCs proposal marked a shift away from the decision of the
Permanent Court of Arbitration exactly a century ago in the Muscat Dhows case.
38
Moreover, State practice in applying the genuine link varied just as much in 1974
as it had in the 1950s when the concept was frst articulated, but leIt undefned. The
ICJ held in the IMCO Advisory Opinion that the argument, advanced on the basis of
the genuine link to the effect that the Assembly could refuse membership of the
Council to Liberia and Panama because their tonnage fgures included Ioreign-owned
ships, was not relevant to the interpretation of the IMCO Convention.
39
In the light of this situation, the delegation formed the view that an international
consensus on specifc criteria, such as national ownership, Ior the grant oI national-
ity to ships was no more likely to be achievable in the 1970s than in the 1950s when
the ILCs detailed proposals of 1954 were replaced by the general formula of 1956.
40
Whilst the time had come for some further developments, as foreseen in 1958,
41
a
new approach was needed. The delegation concluded that a more fruitful approach
would be to spell out in some detail the scope and content oI the duties oI the fag
State in respect oI ships fying its fag. These duties were to be perIormed not merely
at the time oI registration but also on a continuing basis. Whilst fag State jurisdiction
would remain the primary means of ensuring public order at sea, an effort would be
made to make it work more effectively. The delegation decided that a comprehensive
statement oI the duties oI the model fag State, a kind oI 'best practice statement,
would be drawn up. Two new articles were drafted expanding the obligation of the
fag State in the last halI sentence oI article 5 oI the Convention on the High Seas
36 ICJ Reports 1955 p. 4.
37 For strong criticism of the drafting, see D.H.N. Johnson, The Nationality of Ships, in 8
Indian Yearbook of International Affairs (1959) p. 3.
38 J.B. Scott (ed.), The Hague Court Reports (1916), 467. The Award contains the follow-
ing proposition: 'en general il appartient a tout Souverain de decider a qui il accordera
le droit dàrborer son pavillon et de fxer les regles auxquelles lòctroi de ce droit sera
soumis (p. 468).
39 ICJ Reports 1960 p. 150, at p. 171.
40 The story of the Conference convened under the auspices of UNCTAD and the UN Con-
vention on the Conditions for Registration of Ships 1986, which has not attracted suf-
fcient ratifcations Ior its entry into Iorce, may support this assessment. The legislative
history of the Compliance Agreement (33 ILM (1994) 986), where proposals to defne the
genuine link were replaced by the obligation oI the fag State to ensure compliance, goes
in the same direction.
41 The British delegation to the First Conference had stated in their Report to Parliament
that Article 5 of the Convention on the High Seas provides a starting point for fur-
ther developments when such appear to be practicable and necessary. UK White Paper
Cmnd. 584, para. 16.
to exercise effective jurisdiction and control in administrative, technical and social
matters over ships fying its fag. The frst proposal began by taking the last halI
sentence from article 5 and making it the introduction to the detailed provisions that
followed.
42
The second proposal concerned the duty to take safety measures. After
discussion with other delegations during the early days of the session in Caracas,
the frst proposal was tabled as draIt article 6 bis and the second as draIt article 10.
43
Article 5 was not included in the Working Paper, but the intent was to truncate it by
omitting the fnal part, whilst retaining the reIerence to the 'genuine link. In a pre-
introductory statement in the Second Committee as spokesman for the UK, I made
the points that:
One of the short-comings of the Convention on the High Seas was that the obligations
oI fag States were not clearly defned. Flag States, which claimed certain privileges in
regard to ships fying their respective fags, also had certain duties vis-a-vis the interna-
tional community.
44
After further discussions during the Conference, the two draft articles were combined
and, with some modifcations, adopted as article 94 oI the Convention oI 1982.
In the initial draIting oI the proposals, insuIfcient attention was given, perhaps, to
the positioning of the new articles and their relationship with the rump of the old ar-
ticle 5. The syntactical link in the two halves of the last sentence of article 5 between
the genuine link and the duty to exercise effective jurisdiction and control was lost
as a result of the splitting of the sentence between two separate articles articles 91
and 94.
45
The intention was not to weaken the connection. The intention was not to
weaken the argument that 'a Iailure by a fag State to perIorm its duties under article
94 would provide evidence of the absence of a genuine link between it and the ship
concerned.
46
Rather, the intent was simply to fll out and thereby to stress the
fag State`s duty to exercise jurisdiction and control, and to leave aside the issue oI
how to defne the 'genuine link as insoluble in 1974,
47
just as it had defeated the
ILC in 1956. The Third Conference already had too much on its agenda. The drafting
exercise was undertaken in the context of tankers and cargo vessels, rather than that
42 Some minor editorial changes were needed: in particular was omitted, and must was
changed to is obliged.
43 UN Doc. A/CONF.62/C.2/L.54.
44 Off. Rec., vol. II, p. 237.
45 Interestingly, in the Main Trends document, Provision 140 followed the structure of Arti-
cle 5 of the High Seas Convention and Provision 142 repeated the obligation to exercise
jurisdiction effectively.
46 E.D. Brown, The International Law oI the Sea, Vol. I, 1994, p. 289.
47 A later review oI the topic in 2003 by Dr Alex Oude ElIerink concluded similarly that:
All these arguments indicate that additional effort to reach agreement over more de-
tailed defnition oI the genuine link serves little purpose. See his article 'The Genuine
Link Concept: Time for a Post Mortem? in Dekker and Post (eds.), On the Foundations
and Sources of International Law, p. 41.
238 Chapter 12
oI fshing vessels. It may be recalled that 'fags oI convenience were not fown by
many fshing vessels in those days, but numbers have grown subsequently.
48
There were two other elements in the British delegations overall strategy, in ad-
dition to the aim oI ensuring the eIIective exercise oI fag State jurisdiction. The frst
was the initiative to introduce, concurrently with fag State jurisdiction, the idea oI
port State jurisdiction over infractions of international standards. The concept of port
State jurisdiction had been articulated in a paper prepared by the British Branch of
the International Law Association.
49
Once again, the actual problems in the 1970s
were with tankers that washed out their tanks at sea, rather than with fshing ves-
sels. For this reason, the proposal was advanced in the Third Committee which was
dealing generally with the topic of combating marine pollution, rather than in the
Second Committee as a general provision in the articles about the high seas, which
is perhaps where it belongs.
50
The proposal of port State jurisdiction was accepted
as article 218 of the Convention. The second element in the overall strategy was to
build upon the jurisdictional provisions of MARPOL in an acceptable manner and to
spell out the obligations oI fag States in regard to the prevention oI pollution and the
preservation of the marine environment. Articles 211(2) and 217 are now the relevant
provisions.
51
Reverting to what became article 94 of the Convention, the delegation considered
carefully the possible remedies that should be provided for instances of non-compli-
ance. The only remedy that seemed viable at that stage was to provide for formal
reporting oI the Iacts to the fag State and to impose on the latter the duties to in-
vestigate the report and to remedy any shortcomings in such a way as to conform to
generally accepted international standards. This became article 94(6), a paragraph
described by ProIessor Scovazzi as 'one oI the most surprising provisions in the
Convention.
52
The delegation was very conscious that this remedy was weak, but
a better idea eluded the delegation in formulating the proposals in 1973. A possible
rule to the effect that State A could determine unilaterally that there was no genuine
link between a ship and State B and then treat the ship as being stateless would have
been open to abuse and even a recipe for chaos on the high seas.
53
Formally, it is only
48 Whilst article 94 was not directed particularly at fshing vessels, somewhat similar duties
oI States in regard to vessels fying their fag are included in articles 63 to 68 and articles
116 to 120 of the Convention, as well as in the Compliance and Fish Stocks Agreements.
49 Report of the British Branch, The Concept of Port State Jurisdiction, in ILA Report
of the 56th Conference, New Delhi, 1974, p. 401. For further details, see Chapter 14
below.
50 The concept was included in article 23 of the Fish Stocks Agreement of 1995.
51 In addition, coastal State jurisdiction was expanded by articles 211 and 220, and coastal
State inspections were introduced in 1982 through the Paris MOU.
52 The Evolution of International Law of the Sea: New Issues, New Challenges, 286 Recueil
des Cours (2000), at p. 221.
53 A point made by the ILC in its Commentary on draft article 30: The absence of any
authority over ships sailing the high seas would lead to chaos, II YBILC (1956) 253, at
279.
State B which can revoke the grant of nationality under its law. Moreover, Professor
Soons has pointed out that:
It does not seem to make sense for a third state not to recognise the nationality of (a non-
compliant) ship since that would entail not being able to hold the fag state internationally
responsible. In cases where the absence of control has not resulted in non-compliance by
a ship with international standards binding on the fag state, there is no reason to call into
question the nationality oI the ship.
54
The rule that a ship on the high seas fies one fag at least means that there is always
one State that is ultimately responsible for the ship.
It was only well after what became article 94(6) was drafted that some new penal-
ties were devised. Thus, the Third Committee accepted the idea oI penalising a fag
State by removing its pre-emptive jurisdiction under article 228 of the Convention
if it has repeatedly disregarded its obligation to enforce effectively the applicable
international rules and standards in respect of violations committed by its vessels.
Later still, the IMO adopted the idea that certifcates issued by a fag State to its ves-
sels for the purposes of a particular standard-setting Convention should be accepted
by other States and the corresponding advantages extended to ships holding these
certifcates only iI the fag State`s legal and administrative systems Ior implement-
ing the standards had frst been approved by an expert panel and included on a 'White
List.
55
With the beneft oI hindsight, these ideas could have been considered when
drafting what became article 94(6).
Finally in this survey of possible remedial actions, it may be noted that if a report
oI a defciency submitted under article 94(6) turns out to be ineIIective, the complain-
ing State may today have a legal remedy. The inclusion in the Convention of Part XV
could have opened the possibility of resolving through recourse to the International
Tribunal for the Law of the Sea
56
disputes arising from the persistent failure of a
particular fag State to perIorm its duties under the Convention or the Fish Stocks
Agreement. It may be possible to initiate litigation either with or without the explicit
consent of the Respondent State. In this connection, it may be noted that some States
with open registers have not hesitated to authorise the submission to the Tribunal
of applications under article 292 for the prompt release of detained vessels without
54 See Dekker and Post (eds.), On the Foundations and Sources of International Law
(2003), comments by A.H.A. Soons at p. 68.
55 The amended STCW Convention of 1995 contains provision for a White List of contract-
ing parties.
56 This possibility, as well as submission to the International Court of Justice or an arbitral
tribunal, is noted in para. 219 of the Report of the UN Secretary General on the work
of the Consultative Group on Flag State Implementation: UN Doc. A/59/63 of 5 March
2004 and Corr. 1. The decision of the Annex VII arbitral tribunal cited in Corr. 1 may
have turned on its own particular facts and jurisdictional texts: if so, it may prove in
practice not to have the limiting effect mentioned in para. 219 of the Report.
240 Chapter 12
the consent of the detaining States. The initiation of litigation may itself be enough to
cause the Respondent to settle the dispute.
57
Part of the costs of the proceedings may
be offset, in the case of developing countries, by a contribution from the UN Secre-
tary Generals Trust Fund for the Tribunal.
58
The possibility of recourse to judicial or
arbitral bodies could be explored further.
The question oI the nationality oI a ship has arisen in two cases beIore the Tribunal
in Hamburg: Saiga (No. 2)
59
and Grand Prince.
60
In considering the merits in the M/V
Saiga (No. 2) case, the Tribunal was faced with the contention that the genuine link
between the Saiga and the fag State was absent. There was a discrepancy between
the wording oI the registration certifcate and the terms oI the legislation and diIIerent
views were possible on this question. It turned upon the interpretation oI the law oI St
Vincent, but it was nonetheless subject to review by the Tribunal on the basis of the
materials presented to it by the parties.
61
There was no suggestion that the ship had
Iailed to meet international standards binding upon the fag State. The contention was
that the latter was debarred by the lack of a genuine link from claiming compensation
in respect of loss and damage to the ship and its crew. This contention was advanced
Ior the frst time during the third set oI proceedings concerning the Saiga.
62
The fag
State had acted as the fag State in certain ways and the Attorney-General oI St Vin-
cent had presented its case to the Tribunal. The Tribunal found that:-
the purpose of the provisions of the Convention on the need for a genuine link is to
secure more eIIective implementation oI the duties oI the fag State, and not to establish
criteria by reference to which the validity of the registration of ships may be chal-
lenged by other States.
63
Moreover, the evidence did not support the respondents contention that there was
no genuine link between the Saiga and St. Vincent.
64
The Tribunal placed the burden
57 The case of the Chaisiri Reefer, introduced before the International Tribunal for the Law
of the Sea, provides a recent example: see the Order made by the President, ITLOS Re-
ports 2001, p. 82.
58 The Fund was set up by GA Resolution 55/7 and it has been used in one case to date. The
ICJ has a somewhat similar Fund, but it is available only in cases begun by agreement
between the parties. See Chapter 35 below.
59 ITLOS Reports 1999 p. 10. For a survey, see Treves, Flags of Convenience before the
Law of the Sea Tribunal, 6 San Diego International Law Journal (2004) 179.
61 The ninth edition of Oppenheims International Law states (page 855) that An international
tribunal called upon to apply rules of international law based upon the concept of nationality
has the power to investigate the states claim that a person has its nationality.
62 The Tribunal had already ruled on applications for the prompt release of the Saiga and
Ior provisional measures beIore the challenge to the nationality/fagging was raised at the
merits stage.
64 Ibid. at para. 87.
of showing that there was no genuine link upon the Respondent. The presumption
that the link is genuine can be rebutted, but the evidence was insuIfcient in this case.
Professor Oxman has commented on this conclusion that
[a]s a matter of both human rights and environmental policy, it ensures that there is a
state in a position to protect the interests of nationals of many different states represented
by the ship, its crew and passengers, and the cargo owners, and that there is a state that
is legally responsible for ensuring compliance with the substantial safety, environmental
and conservation obligations imposed by the Law oI the Sea Convention on the fag
state.
65
In a separate opinion, I stated en passant that I would not read a passage in the
Judgment concerning article 91 of the Convention as going so far as to say that
the requirement oI a genuine link`, which contains an element oI good Iaith in the
word genuine, has no relevance at all to the grant of nationality.
66
Article 91 has to
be interpreted in its context which includes article 92
67
where good faith is relevant
throughout. The requirement oI a 'genuine link appears in article 91 which deals
with the nationality of ships and the term must bear some meaning.
68
Counsel for the
parties had cited the Nottebohm case,
69
in which the ICJ decided that Nottebohms
naturalization lacked 'genuineness.
70
The Court added:
65 Oxman, The International Tribunal for the Law of the Sea, in Caron and Scheiber
(eds.), Bringing New Law to Ocean Waters (2004), 285, at 292-3.
66 ITLOS Reports 1999 p. 10, at p. 132. The Concise Oxford Dictionary gives for genuine
the meanings having the supposed character, not counterfeit, properly so called.
67 Para. 1 oI Article 92 requires a 'real transfer of ownership or change in registry before a
ship may change its fag (my emphasis). In its commentary on draIt article 31 oI its pro-
posals of 1956, the ILC stated: In adopting (this) sentence, the Commission intended
to condemn any change oI fag which cannot be regarded as a bona fide transaction, II
YBILC (1956) 280. In other words, the ILC, when explaining proposals on the change of
fag and nationality that were accepted and now Iorm part oI the Convention, opposed
dual fagging as a source oI 'serious abuse and rejected any change oI fag that was
dubious or not genuine. Para. 2 of article 92 provides that A ship which sails under the
fags oI two or more States, using them according to convenience, may not claim any oI
the nationalities in question with respect to any other State, and may be assimilated to a
ship without nationality. This practice is sometimes called fag deception. Stateless ves-
sels lack protection.
68 This results from the rules on the interpretation of treaties in the Vienna Convention on
the Law of Treaties, 1969.
69 ICJ Reports 1955 p. 4. The Court held that Liechtenstein was not entitled to espouse
a wartime claim on behalI oI a German national, Herr Nottebohm, who had acquired
Liechtensteins nationality but had no real and effective link with that State, against Gua-
temala, a State in which he had resided and carried on business for many years.
70 In the authentic French text, la sincerit.
242 Chapter 12
Naturalization was asked Ior. to enable him to substitute Ior his status as a national oI
a belligerent State that of a national of a neutral State, with the sole aim of thus coming
within the protection of Liechtenstein.
71
Questions of motive and good faith were involved. In its latest Report on Diplomatic
Protection, the ILC has not retained the requirement oI a genuine link as a general
rule applicable to nationals oI all States. Instead, the ILC has confned Nottebohm to
its particular facts and treated it as a relative rule between two States.
72
The Courts
ratio decidendi is unclear. The case may have laid down a rule on diplomatic protec-
tion, or there may have been a question oI abuse oI legal process or a lack oI good
faith. However that may be, whilst the genuine link may have some limited relevance
to the question oI nationality in certain circumstances such as those to which article
92 relates, the primary relevance oI the requirement remains the perIormance oI the
duty to exercise effective jurisdiction and control.
In the second case in which the Tribunal has considered questions oI nationality,
that of the Grand Prince, the Tribunal was again faced with an unclear situation
regarding the vessels registration on the material date. An application for prompt
release Irom detention had been submitted 'on behalI oI the fag State, Belize, in
accordance with article 292 oI the Convention; but earlier the Belizean Foreign Min-
istry had issued a Note Verbale to the effect that the vessel had been de-registered
as a punitive measure for a second reported violation of the conditions of its licence
by fshing without permission in Ioreign EEZs. In this instance, the application was
rejected by the Tribunal proprio motu on jurisdictional grounds. The Tribunal was not
convinced that the vessel was a Belize vessel when the application was made in view
of a Note Verbale from the Ministry of Foreign Affairs to the diplomatic representa-
tive of France stating that the vessel was being de-registered. In a separate opinion,
I detected additional grounds for uncertainty: the vessel had not been very long on
the Belizean register and the vessel was due to be re-fagged in Brazil; its benefcial
ownership remained obscure, Iollowing its sale and purchase between two Belizean
companies, eIIected by lawyers in Spain; and its previous nationality was given as
Canadian even though the previous owner was a Belize company.
73
This case demon-
strates that, in appropriate circumstances, the Tribunal will reject an application for
relieI made on behalI oI a State where the Tribunal is not satisfed as to the existence
of legal links or where the evidence of nationality lacks cogency.
Looking to the future, General Assembly resolution 59/24 indicates that problems
are still troubling the international community over the nationality of ships, the genu-
71 ICJ Reports 1955, p. 4, at p. 26. The issue of diplomatic protection and nationality had
not been the subject of argument before the Court. Since the case did not concern the
nationality of ships, cases such as the Montijo and the Muscat Dhows were not cited.
72 Report of ILC 2006, UN Doc. A/61/10, draft article 4 and commentary. A special provi-
sion is proposed in draft article 18 for the protection of ships crews.
ine link and the operation of sub-standard vessels.
74
Studies are being undertaken,
both in the UN and its Specialized Agencies, on the basis oI that Resolution and also
in the Ministerial High Seas Task Force.
75
A major legal development has been the
clarifcation and highlighting oI the duty oI the fag State to exercise eIIective control
over ships fying its fag on the high seas. This duty, specifed in particular in article
94 of the Convention, remains a key element in the concept of the genuine link con-
tained in article 91. It should not be overlooked that a dispute arising from an alleged
Iailure by a fag State to perIorm its duties could come beIore an international court
or tribunal acting under Part XV of the Convention. In other instances, the absence of
a 'genuine link may constitute a bar to a claim submitted by or on behalI oI a fag
State to an international court or tribunal. Such a body may be prepared to declare an
application inadmissible iI there is shown to be suIfcient doubt over the existence or
genuineness oI the link. Where there is no such link or where a fag State has clearly
not perIormed its duties, some oI the normal privileges oI the fag State may cease to
be available to it.
76
D 1rafpcking in Aarcotic Drugs
In preparing for the negotiations in Caracas, the UK delegation re-examined the law
concerning traIfcking in narcotic drugs and similar substances across the high seas.
It was decided that new provisions were needed and proposals were tabled as article
21bis of the Working Paper.
77
A new power to seize on the high seas illicit cargoes oI
narcotics on board yachts and small ships of less than 500 tonnes was put forward.
78
After discussion, this proposal was rejected: it would have made too big an inroad
upon the Ireedom oI navigation and exclusive fag State jurisdiction. Instead, the
agreed solution for narcotics was the introduction in article 108 of the Convention of
a duty to cooperate to suppress traIfcking across the high seas, in the general interest
of the international community. This duty was expressed to apply in regard to identi-
fable vessels, thereby opening the way Ior State A to agree to a warship or customs
74 Especially, paras. 38, 41 and 46 oI the Resolution. Para. 38 urged fag states without
eIIective maritime administrations to consider declining the granting oI the right to fy
the fag to new vessels, suspending their registry or not opening one. Para. 41 calls Ior
Iurther examination oI the role oI the genuine link and the potential consequences oI
non-compliance with fag State duties. Para. 46 calls Ior lawIul measures to be taken by
fag States and port States to prevent the operation oI sub-standard ships and IUU fshing
activities.
75 See High Seas Governance and related working papers on www.high-seas.org.
76 Oxman and Bantz, case note on the Saiga (No. 2) case, in 94 AJIL (2000) 140, at 149. In-
terestingly, perhaps, the term privileges was used in the introductory note to A/CONF.
62/C.2/L.54. In practice, ships on open registers tend to be subject to port State inspec-
tion more Irequently than other ships.
77 A/CONF. 62/C. 2/L. 54.
78 The limit of 500 tonnes appears also in the UN Convention on the Conditions of Regis-
tration of Ships 1986.
244 Chapter 12
vessel oI State B boarding a ship fying the fag oI State A on the high seas. This latter
possibility was elaborated in article 17 oI the Vienna Convention on Illicit TraIfc in
Narcotic Drugs and Psychotropic Substances of 1987. Already, in 1981, some Anglo-
American arrangements had been made according to which the British authorities did
not object to the boarding, in a defned area oI the Caribbean, oI small vessels fying
the British fag iI persons on board were suspected oI attempting to smuggle drugs
into the United States.
79
E Unauthorised Broadcasting from the High Seas
In 1965, the writer attended a ConIerence convened by the Council oI Europe to
consider means of combating pirate broadcasting from ships moored in the shal-
low waters of the southern North Sea. At that time, most coastal States in the region
retained the three mile limit of territorial waters. Several ships were anchored on
the high seas and engaged in broadcasting by radio to the coastal populations.
80
The
Convention on the High Seas had entered into force only three years before the Stras-
bourg Conference and the Convention did not permit boarding and arrest of pirate
broadcasting vessels whilst the latter were on the high seas. The freedom of naviga-
tion includes stopping and anchoring. Some delegations wished to take a bold new
initiative to curb what all delegations agreed were abuses in the region, but the ma-
jority were cautious over extending the scope of maritime jurisdiction. The resulting
European Agreement Ior the Prevention oI Broadcasts Irom Stations outside National
Territories was based on the States Parties existing jurisdiction over their nationals
and over their territories, including ports supplying the broadcasters. No new powers
of intervention on the high seas were accorded. Quite possibly for this reason, the
Agreement proved to be less than a complete success.
The writer saw an opportunity to extend rights of intervention when preparing
for the negotiations to be held in Caracas in 1974. Proposals for a duty to cooperate
in order to suppress pirate broadcasting and for new powers of intervention on the
part of victim States were formulated and included as article 21 ter in the Working
Paper tabled, with our EC partners, in the Second Committee. The proposals were
accepted with minor drafting improvements as article 109 of the Convention. The
solution Ior Europe`s problems with unauthorised broadcasting was the introduction
by article 109 of new jurisdictional competences for the receiving or victim State.
The latters competences operated concurrently with the standard competences of the
fag State but bolstered now with a duty to cooperate. The new competences included
arresting and prosecuting broadcasters and seizing the apparatus on the high seas.
79 Exchange oI Notes concerning Cooperation in the Suppression oI the UnlawIul Importa-
tion of Narcotic Drugs into the United States, 1981. For discussion, see J. Siddle, An-
glo-American Cooperation in the Suppression of Drug Smuggling, 31 ICLQ (1982)
726. There are now later agreements.
80 Often using wavelengths assigned by the Radio Regulations of the International Tel-
ecommunications Union to ambulances and other emergency services on shore.
The European problems appear to have disappeared. The UK implemented article
109 in 1990 before the Conventions entry into force.
F Visit and Search (Article 110)
This ancient right oI police on the high seas was codifed by article 22 oI the Conven-
tion on the High Seas. The right is linked to the right of approach whereby a public
vessel, such as a warship, is able to ascertain the fag oI a vessel at sea. At the Third
LOS Conference, the right of visit and search was extended to pirate broadcasting
vessels by article 110(1) (c), whilst sub-paragraph (d) extended the right also to ships
without nationality, upon a proposal by Mexico. Paragraph 4 of article 110 extended
the right to aircraft including helicopters.
81
In recent years, the Iocus has switched to the opening words oI article 110: 'Except
where acts of interference derive from powers conferred by treaty There have
been numerous invocations or applications of this exception. They are to be found in
all kinds of treaty (bilateral, regional and global) and the arrangements have related
to many different activities. Some arrangements include tacit consent to boarding
in the event oI a Iailure to object within a specifed time to a notifcation oI intent
to board. The number oI examples in multilateral treaties has grown signifcantly
in recent years. As well as the example of the Vienna Convention for the Suppres-
sion oI Illicit TraIfc in Narcotic and Psychotropic Substances, visit and search is
available as between parties to many global treaties including the UN Convention
against Transnational Organised Crime.
82
Detailed proposals for visit and search are
under consideration in the context of amending the Convention on the Suppression
of Unlawful Acts against the Safety of Maritime Navigation.
83
The United States has
entered into agreements as part of the Proliferation Security Initiative
84
whereby the
US and its bilateral partners, which include Liberia and Panama, agree that each party
81 A further application of the right is implied in article 111(4) in the case of a mother ship
which remains outside the EEZ whilst its boats or other craIt work as a team inside: since
the mother ship could be the object of hot pursuit, it may be visited and searched, ac-
cording to the doctrine of constructive presence, by a public vessel from the coastal State
even before commencement of pursuit: see A.D. McNair, International Law Opinions
(1956), Vol. 1, p. 245.
82 40 ILM 335. See also the Protocol against the Smuggling of Migrants by Land, Sea and
Air and the Protocol to Prevent, Suppress and Punish TraIfcking in Persons. For a sur-
vey, see X. Hinrichs, Measures against Smuggling of Migrants at Sea, Revue Belge de
Droit International (2003), p. 413.
83 The SUA Convention is IMO Publication No. 462.88.12E. Para. 50 oI GA Resolution
59/24 urged States to become parties to the Convention and its Protocol. For a full survey
of the discussions concerning the amendment of the SUA Convention and other initia-
tives, see J.A. Roach, Initiatives to enhance maritime security at sea, in 28 Marine
Policy (2004) 41.
84 S. Kaye, Freedom of Navigation in a post-9/11 World: Security and Creeping Jurisdic-
tion, in D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea Progress and
Prospects (2006), Chapter 18.
246 Chapter 12
may board ships on the high seas fying the fag oI the other party iI there is reason
to suspect that a particular ship is engaged in traIfcking in missiles or weapons oI
mass destruction.
85
In regard to fsheries, the Implementation Agreement on Straddling Fish Stocks
and Highly Migratory Fish Stocks (the Fish Stocks Agreement)
86
contains in article
21 an elaborate article allowing one party to board fshing vessels fying the fag oI
another party and to carry out an inspection in areas of the high seas covered by re-
gional fsheries management organisations or arrangements. This provision has led to
the adoption by many regional organisations of schemes for improving enforcement
of agreed conservation and management measures.
87
A recent survey of the enforce-
ment oI fsheries arrangements concludes that whilst fag States retain primacy in the
matter oI imposing sanctions, '(n)on-fag State control.is becoming mainstream in
a wide range of (Regional Fisheries Organisations) both in respect of members and
non-members.
88
Articles 21 and 22 of the Fish Stocks Agreement contain several
saIeguards Ior the fag State: it retains its primary jurisdiction at all stages; the sec-
ondary jurisdiction oI the inspecting State is limited; and the use oI Iorce as a police
power is limited in accordance with general international law. In the Saiga (No. 2)
case, the Tribunal cited article 22(1) (I) beIore fnding on the Iacts that excessive
force had been used to effect an arrest at sea.
89
In a separate opinion, I pointed out
that law enIorcement oIfcers should use armed Iorce at sea only in the last resort,
after warnings had been given, and should in all cases avoid endangering the lives of
persons on board the vessel.
90
I reIerred to the need Ior law enIorcement oIfcers to be
trained in boarding procedures and to have Rules oI Engagement iI armed.
91
I would
add that these concerns are still relevant: if aid donors give patrol vessels, they should
also give training in how to use them in making arrests.
G Hot Pursuit (Article 111)
Another topic reviewed by the British delegation in 1974 was the extension of the
right of hot pursuit to the continental shelf. During the early 1970s, it had come to no-
tice that oil rigs on the continental shelf could be vulnerable to hit and run damage
Irom fshermen who had discovered that fsh tend to congregate around installations,
or even to attack from the sea by terrorists. It was felt that the right of hot pursuit
85 See the note by M. Byers, Policing the High Seas: The Proliferation Security Initiative,
98 AJIL (2004) 526.
86 34 ILM (1995) 1542.
87 Including NAFO, CCAMLR, IOTC, IATTC, SEAFO and WCPFC.
88 R.G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries, at p. 355.
89 ITLOS Reports 1999 p. 10, at p.62. The Agreement was not in force at that time.
90 Concerns over these matters were expressed by Mr Nomura, the Director of the Far Seas
Division of the Fisheries Agency of Japan, in a contribution entitled Distant Water State
Perspectives, in Nordquist and Moore (eds.), Current Fisheries Issues and the FAO
(2000) 183, at 195.
91 Ibid, at p. 139.
should be available in either case Irom the saIety zone oI 500 metres around each
installation. Delegations that supported the new 200 mile limit Ior fsheries purposes
were also interested in extending the scope oI the right oI hot pursuit to the EEZ. In
the event, the New Zealand delegation voiced proposals
92
that were later tabled with
other delegations
93
and eventually incorporated into what became article 111 of the
Convention. As a result, the right of hot pursuit has been extended to apply mutatis
mutandis to suspected violations oI legislation applicable to the EEZ and continental
shelf by article 111 of the Convention.
Several long pursuits have occurred, e.g. one Irom the Falklands zone to Cape
Town and two others from points south of Australia to points south of South Africa.
There is no limit in time or distance in article 111, so long as the pursuit is uninter-
rupted and the territorial sea of a third State is not entered. The Australian cases also
provide examples of cooperation, both in conducting a pursuit and making an arrest,
between law enforcement agencies in different jurisdictions.
94
On certain points, fex-
ible interpretations have been recommended by commentators in the light of techno-
logical advances and traIfcking in narcotics.
95
These points include the use of radio
to give the order to stop, even though the ILC had decided against it in 1956.
96
In
the Saiga (No. 2) case, the Tribunal held on the evidence that no visual or auditory
signals to stop could have been given to the Saiga
97
on the frst day. It may be noted
that tape recordings and transcripts of the Saigas radio log had been submitted in
evidence and these transcripts contained no recording of the receipt of the alleged
order to stop. In a separate opinion on this point, I discussed a hypothetical situation
whereby orders to stop had been given by radio from a distance and then recorded by
both the sending and receiving vessels and entered in their respective logs. In such
circumstances, there may possibly be room Ior a fexible interpretation since there
would exist good evidence in the form of recordings of the sending and receipt of
the order.
98
Another point on which a fexible interpretation has been given concerns
the phrase the ship pursued or one of its boats or other craft working as a team and
using the ship pursued as a mother ship. . . in article 111(4). This wording appears
to envisage both a pattern of conduct that amounts to working together as a team in
a common activity and a working relationship akin to that between a mother and her
daughter, that is to say, something more than a one-off encounter at sea between two
92 Off. Recs. vol. III, at p. 236.
93 A/CONF.62/C.2/L.66, in Off. Recs. vol. III, p. 235.
94 E. Molenaar, 'Multilateral Hot Pursuit and Illegal Fishing in the Southern Ocean, 19
IJMCL (2004) 19.
95 C.H. Allen, Doctrine oI Hot Pursuit: A Functional Interpretation adaptable to Emerging
Law EnIorcement Technologies and Practices, 20 ODIL (1989) 309.
96 To prevent abuse, the Commission declined to admit orders given by wireless, as these
could be given at any distance... Commentary on draft article 47, in YBILC 1956, Vol.
II, p. 285.
97 ITLOS Reports 1999 p. 10, at p. 59, para. 147.
98 Ibid. p. 139.
248 Chapter 12
ships. The latter, more fexible interpretation has been criticised by an expert com-
mentator.
99
H Cables and Pipelines (Articles 112 to 115)
The fnal topic reviewed by the British delegation in 1974 was the question oI ca-
bles and pipelines on the bed of the high seas, including the continental shelf. The
delegation considered that, subject to one omission, the terms of the Convention on
the High Seas were satisfactory. The omission was that of a provision prohibiting
conduct in the vicinity of cables and pipelines such as dropping anchor. Cables and
pipelines are normally marked on nautical charts Ior the beneft oI mariners. In the
light oI experience in the North Sea whereby an oilfeld had been shut down as a
result of the breaking of a pipeline by the dropping of a ships anchor, the delegation
decided to seek to clarify and slightly extend the scope of the terms of article 27 of
the Convention on the High Seas so as to permit the introduction of no anchoring
areas above pipelines. Unusually, this was achieved by means of an oral amendment
proposed in the working group of the Second Committee by the present writer and
accepted by the Conference. It is now the second sentence of article 113 of the Con-
vention, one oI the articles that apply in the EEZ by virtue oI article 58(2).
III Conclusions
(1) The international community has witnessed over the last half century not only
codifcation and consolidation oI the law but also clarifcation oI some broad
principles and even reform of the law of the high seas.
100
In making these chang-
es, the international community has tried to keep pace with increased knowl-
edge and use of the oceans, new technologies, increased exploitation of marine
resources and increased concern for the preservation of the marine environment.
In the result, we now have a maturing legal regime for the high seas, based upon
the rights and duties of States. In this and other regards, the Convention on the
Law of the Sea and its Implementing Agreements provide a modern, balanced
legal framework that, having taken so long to achieve, should be supported by
all members of the international community as we enter the 21st Century.
(2) In todays world, freedoms of the high seas are freedoms under the law.
101
They
should be viewed increasingly as no different from other fundamental rights of
States under international law. They are to be exercised subject to qualifcations
stemming from general principles such as due regard, good faith and reasonable
use, as well as from the terms of the Convention, including to the duty to respect
99 W. C. Gilmore, Hot Pursuit: The Case of R. v. Mills, 44 ICLQ (1995) 949.
100 Questions explored in my Law-Making Processes in the UN System, 2 Max Planck
YBIL (1998) 23, at 43 (now Chapter 2 above).
101 A point made by Anand (fn. 1).
generally accepted international standards,
102
and the provisions of other global,
regional and bilateral treaties. The particular term freedom is perhaps most
relevant in the context of the non-exhaustive nature of the list of freedoms of the
high seas. The due regard test has been applied by courts in the past and could
be applied by courts and tribunals under Part XV in the future. In this and other
respects, courts and tribunals have an enhanced role to play in the interpretation
and application of the law of the sea.
(3) At the technical level, a period of active standard-setting is perhaps now gradu-
ally giving way to a time for auditing the performance of States parties to the
standard-setting conventions. The world has become accustomed to white lists
in the IMO, following the adoption of the amendments to the STCW Conven-
tion. The system could be made general through the intensive audit of the ad-
ministrative and legislative steps needed to implement conventional standards.
(4) There is still a need to improve oceans governance and, in particular, the gov-
ernance of the high seas. This can be achieved by a combination of means- most
notably by pursuing the goal of universal participation in the Convention on the
Law of the Sea and its two Implementation Agreements.
(5) Improved governance could also be achieved by more effective enforcement of
the law at both the national and international levels. This may entail widening
the jurisdictional possibilities. The introduction of port State jurisdiction is im-
proving the situation and there is still scope to expand it.
103
(6) The recent introduction of reciprocal arrangements for visit and search in re-
gard to a range of different activities is a remarkable development. Flag States
are facilitating the enforcement of agreed standards by authorising a secondary
jurisdiction exercised by other States. Those purported exercises of high seas
freedoms that are deemed to amount to anti-social behaviour at the global lev-
el, such as drug-traIfcking, arms-running, IUU fshing and people-smuggling,
are being limited by cooperative measures oI law enIorcement between fag
States and other States in the general interest of the international community.
The problems concerning fag State implementation identifed in GA Resolu-
tion 59/24 may more likely be solved through more effective enforcement of
fag state duties than through defning the concept oI the 'genuine link just
as this was the decision reached in 1974 before the session in Caracas. In this
perspective, the possibility oI enIorcing fag State duties through recourse under
Part XV of the Convention to courts and tribunals, especially to the International
Tribunal for the Law of the Sea, could be examined further.
102 B.H. Oxman, The Duty to Respect Generally Accepted International Standards, 24
New York JILP (1991) 109.
103 See E. Molenaar, 'Port State Jurisdiction: Towards Mandatory and Compulsory Use, in
D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea Progress and Prospects
(2006), Chapter 11.
Chapter 13
The Enforcement of International Maritime
Rules and Standards*
I Introduction
The subject-matter of this chapter is both wide and topical, allowing me to concen-
trate on some trends and developments, placed in their historical context. There are
three preliminary issues which should be noted.
A The Convention on the Law of the Sea and other International
Agreements
The UN Convention on the Law of the Sea was memorably and correctly described
by Ambassador Tommy Koh, in his capacity of the President of the Conference, as
the constitution for the oceans.
1
The Convention remains one of the principal achieve-
ments of the UN and a tribute is due to Ambassador Koh for the role he played in
* This chapter, the text of a paper (with some updating) read at a conference held in Singa-
pore, was frst published in 2 Singapore Journal of International Law (1998) 557, with
the title The Roles of Flag States, Port States, Coastal States and International Organisa-
tions in the EnIorcement oI International Rules and Standards Governing the SaIety oI
Navigation and the Prevention of Pollution from Ships under the UN Convention on the
Law of the Sea and other International Agreements.
1 The term used by President Koh at the time of the Conventions adoption. The full state-
ment is reproduced in the UN Secretariats booklet containing the text of the Convention
252 Chapter 13
securing the adoption oI the text despite well-known diIfculties.
2
The Convention
represents a framework which links together the fundamental rules of the law of the
sea (notably, those on the scope and limits of national jurisdiction) with other con-
ventions (notably, IMO Conventions on the technical aspects of safety and environ-
mental protection). This inter-linkage holds good whether the other conventions were
adopted beIore or aIter 1982. The Iramework is frm over basic principles, rights
and duties, as well as matters such as the limits oI national jurisdiction, yet fexible
enough to allow Ior new developments, elaborations and clarifcations through new
instruments.
3
B International Rules and Standards
It was in the middle oI the last Century that the frst uniIorm rules Ior mariners came
into being. They concerned the avoidance of collisions, and signalling at sea. In order
to prevent collisions, Trinity House in London drew up a set of rules applicable to
ships and in 1862 the Admiralty Court was given statutory powers to enforce these
rules in cases coming before it.
4
Later legislation provided that British rules were ap-
plicable to both British and foreign ships, provided in the latter case the consent of
the Ioreign government was frst obtained.
5
This was how the rule of the road was
introduced at sea. Similarly, the frst code oI maritime signals was published in 1857
by the British authorities, who in this instance joined with the French Government
in inviting others to Iollow the code. It quickly became universal.
6
The method of
creating those early standards, based on initiatives by the British government which
other governments then followed, also illustrates the primitive nature of international
society in those days.
These days, shipping is an international industry, vital Ior the fow oI goods around
the world. It is only natural that more and more aspects of the industry should be
regulated. Measures are needed to ensure the safety of ships, including all those on
board, and to protect the marine environment on a global basis. Should regulation
be left to each state or should the rules be agreed internationally? On such matters,
purely national standards, however well-conceived in themselves, would all too eas-
ily result in a 'patchwork quilt oI diIIerent rules, Ior example, on construction and
manning with which ships, moving as they do from port to port in different countries,
and the Final Act of the Conference (No .83.V.5), as well as in Nordquist (Ed.)UNCLOS
1982: A Commentary, Vol. I (1985), p. 11 (hereafter the Virginia Commentary).
2 Some oI these diIfculties were explained by Ambassador Satya Nandan in a speech
given in Hamburg at the time of the inauguration of the International Tribunal for the
Law of the Sea in October 1996.
3 For example the Agreement on Straddling Fish Stocks of 1995.
4 E.g. the rules oI Trinity House adopted in 1840 Ior the avoidance oI collisions and the
Merchant Shipping Act 1849.
5 Merchant Shipping Act 1894, section 424. By an Order in Council of 1910, the rules
were applied to the great majority of states and their ships.
6 Higgins and Colombos, International Law of the Sea (1943), p. 224.
253 The Enforcement of International Maritime Rules and Standards
simply could not comply in practice.
7
Throughout the twentieth century, international
rules and standards have grown, in number, in detail and in scope.
8
The chosen mech-
anism has been the multilateral convention or treaty. An international industry de-
mands rules and standards, and it can be truly said that the LOS Convention responds
fully to this demand. The linkage mentioned above between the LOS Convention and
other Agreements is based on the concept of generally accepted international rules
and standards, a term which appears in many articles touching upon shipping and
contained in Parts II, III, V and XII of the Convention. There exists a duty to respect
such rules and standards once established.
9
C Enforcement of Rules and Standards
Regulation entails both the prescription of rules and standards and their enforcement.
Regulation entails, therefore, the exercise of jurisdiction. Territory and nationality
remain the two main bases for the general jurisdiction of states under international
law.
10
A ship is impressed with the nationality of its state of registry, with the result
that fag state authority is a type oI nationality jurisdiction. Now, the normal type oI
jurisdiction at common law has always been territorial and, for present purposes, the
territory of a state includes its territorial sea, internal waters and ports. A measure of
territorial jurisdiction extends to foreign ships, including the persons and goods on
board. Immediately a ship enters foreign waters, it is subject to a degree of concurrent
jurisdiction. This may be coastal state or port state jurisdiction. Concurrent jurisdic-
tion is a common thing, but there does exist the possibility oI jurisdictional conficts,
although in practice they are rare.
This paper examines some issues concerning enforcement. Good enforcement
means that those who Iail to respect the rules are frst detected and then brought in
some way to mend their ways, through administrative or judicial intervention. Under
7 Hence the British Governments opposition to the application of US labour legislation
to visiting foreign ships in an amicus brief in Incres Steamship Co Ltd v. International
Maritime Workers Union et al. 372 US 10 (1963). More generally, the Canadian Arctic
Waters Pollution Prevention Act 1970 provides another example of unilateral national
rules which provoked opposition internationally.
8 At present, rules and standards exist for the following matters:
the avoidance oI collisions, the 'rule oI the road and traIfc management,
the design, equipment, operation and construction oI ships, including Load Lines,
tonnage measurement of ships,
signals and communications between ships and ship to shore,
the crewing, including training and qualifcations, oI ships,
the avoidance of pollution from discharges and the operation of ships,
the dumping of wastes at sea from ships,
the carriage of goods, including dangerous cargoes.
This lengthy list is not exhaustive.
9 See B.H. Oxman, The Duty to Respect Generally Accepted International Standards, 24
New York Journal of International Law and Politics (1991) 109.
10 Jennings and Watts, Oppenheims International Law, 9th Ed. (1992), p. 458.
254 Chapter 13
the scheme of the LOS Convention, the task of enforcement is shared amongst sev-
eral types of states. In describing the Conventions legal regime for the prevention of
pollution, Professors Birnie and Boyle point out that:
fag states, coastal states, port states, and international organizations and commissions
each have important roles, powers, and responsibilities, which in certain respects com-
bine to produce one of the more successful examples of international environmental co-
operation.
11
The position is similar as regards the enIorcement oI saIety standards. EnIorcement
by states may be described as a direct process. In addition, certain international or-
ganisations may play a role. In their case, enforcement may be indirect, e.g. where
the organisation takes steps to improve matters, or direct, e.g. where a legal dispute
over standards is referred to an organisation for settlement.
EnIorcement is an important aspect oI regulation. Rules which are not enIorced are
ineffective, and persistent non-enforcement weakens the entire system of regulation.
These considerations serve as an introduction to the rest of this chapter.
II The Different Roles in Enforcement
A The Role of Flag States in Enforcement
(1) Historically, the role oI the fag state in enIorcement can be said to have been
predominant. The rule on the high seas was exclusive fag state jurisdiction; and in
port, by custom, the authorities did not normally enforce the local jurisdiction over
foreign ships voluntarily and temporarily present in the normal course of trade.
12
Early international conventions, such as that on the SaIety oI LiIe at Sea (SOLAS
1914), required the states parties to give eIIect to the rules laid down in the particular
convention by applying them at the national level not to all ships in its ports but rather
to all ships registered in its ports. Ships were to be issued with certifcates by their
fag states, which assumed 'Iull responsibility Ior them. In those days, ship-own-
ing states all had effective survey arrangements. The privileges of the Convention
could not be claimed unless a ship held a proper certifcate.
13
The powers of the port
state were to check the certifcates and to inIorm the fag state oI any defciencies. In
practice, as the main ship-owning nations became parties to the various conventions,
the territorial basis of jurisdiction was excluded to a considerable extent. However,
11 Birnie and Boyle, International Law and the Environment, 2nd edition 2002, pp. 348-9.
12 In a Statement to the League of Nations in 1929, the British Government set out its opin-
ion that In criminal matters it is not usual for the authorities to intervene and enforce
the local jurisdiction, unless their assistance is invoked by or on behalf of the local repre-
sentative oI the fag state, or those in control oI the ship, or a person directly likely to be
aIIected See the Bases oI Discussion Ior the Hague Codifcation ConIerence oI 1930, ii,
Territorial Waters, C74M (1929), v, at p. 99.
13 SOLAS 1929.
this simply marked an extension to conventions of the general position described
above.
In the 1950s, the practice oI 'fagging out ships grew more common and there
arose the concept oI the 'fag oI convenience, whose authorities were widely regard-
ed as not enIorcing adequately the international rules and standards oI the day. (Even
as recently as 1992, the feets oI Malta, Turkey, Cyprus, South Korea, St. Vincent and
Vanuatu headed the list of above-average losses.
14
) Partly as a result of this concern,
at the First UN Conference on the Law of the Sea in 1958, the rule was adopted that
there must be a 'genuine link between the ship and the state whose fag it few. In
addition, it was provided that the State must effectively exercise its jurisdiction and
control in administrative, technical and social matters over ships fying its fag.
15
In
this context, the British Governments White Paper commented that Article 5 of the
High Seas Convention provides a starting point for further developments when such
appear to be practical and necessary.
16
The concept of the genuine link proved to
be problematic
17
and in practice Ioreign authorities could not go behind the fag and
treat a ship as being stateless or possessed of a nationality it did not claim.
(2) Turning to the present position, during the preparations for the Third UN Con-
ference on the Law of the Sea, the British Government considered the issue of the
nationality of ships afresh. It decided not to try, during the Conference, to seek a
detailed defnition oI the term 'genuine link, but instead to retain the test as it stood
in Article 5 and to add to it a defnition oI the content oI the duty to exercise eIIec-
tive jurisdiction and control. In other words, the decision was to use Article 5 as a
starting point and to develop it further, along with the concept of port state jurisdic-
tion (as will be explained below). The proposal tabled by the UK and some other
delegations
18
was adopted as Article 94 of the Convention, which now represents an
agreed statement oI the duties oI the fag state towards ships fying its fag. Naturally,
the latter include the requirement 'to conIorm with generally accepted international
regulations, procedures and practices concerning a long list of matters, notably safe-
ty, the prevention of collisions, pollution and the maintenance of communications.
The list includes 'the design, construction, manning or equipment oI Ioreign ships,
matters excluded from the legislative powers of coastal states by Article 21 (2) of
the Convention unless the laws are giving effect to international rules. One of the
14 Report oI Lord Donaldson`s Inquiry, Safer Seas, Cleaner Ships, Cm 2560, quoting fg-
ures from the Institute of London Underwriters, p. 62.
15 Convention on the High Seas, Article 5(1).
16 Report on the First UN Conference on the Law of the Sea, Misc. No. 15 (1958),
Cmnd.584.
17 Particularly in the light of the Advisory Opinion of the International Court of Justice on
the Constitution of the Maritime Safety Committee of the Intergovernmental Maritime
Consultative Organisation, ICJ Reports 1960 p. 150. Opinions about the relevance of
certain linking Iactors, such as benefcial ownership, crewing and the owner`s principal
place of business, also varied.
18 A/ CONF. 62/ C.2 / L. 54. A fuller account appears in Chapter 12 above.
256 Chapter 13
most diIfcult issues in draIting what became Article 94 was the question oI the ap-
propriate sanctions for non-compliance. In the event of clear grounds for believing
that proper supervision is not being exercised, Article 94 (6) provides merely for the
making oI reports to the fag state. II the latter does nothing, the complainant state`s
remedy would seem to be to raise the matter at the international level, for example,
in the IMO or under Part XV of the Convention (Settlement of Disputes), or to deny
sub-standard ships access to its ports. More radical proposals, such as those which
came later, eluded those concerned with the issue of sanctions in 1974.
A second key article regarding fag state enIorcement is Article 217 in Part XII
concerning environmental protection. The article reiterates the obligation to ensure
compliance with international rules and standards for the prevention of pollution
Irom ships fying the fag oI the state concerned. Paragraph 3 codifes the standard
provisions about certifcates issued by fag states under the terms oI many interna-
tional conventions, going back to SOLAS 1924. The rule is that certifcates are to
be accepted by other states unless there are clear grounds for believing that the
condition of the vessel does not correspond substantially with the particulars of the
certifcates.
The Convention oI 1982 largely retained the approach to fag state jurisdiction
contained in the High Seas Convention of 1958. Flag state jurisdiction clearly re-
mains an important rule and in most instances it is accorded the primary status over
other types oI jurisdiction. There are many examples oI requirements placed on port
and coastal states to report fndings to the fag state with a view to the latter taking
action against the ship. The safeguards contained in section 7 of Part XII are for
vessels, but also in a real sense Ior the fag state. In Article 228, however, there ap-
pears an important signal oI dissatisIaction with many fag states. Paragraph 1 con-
tains a qualifcation Ior the case oI the fag state which has 'repeatedly disregarded
its obligation to enforce effectively the applicable international rules and standards
in respect of violations committed by its vessels. In such a case, the port or coastal
state is not required to suspend its own proceedings against the vessel or its master.
This is an example oI a deliberate diminution in the role oI fag state laid down in the
LOS Convention.
Following the stranding of the Braer, the British Government invited Lord Don-
aldson to chair an Inquiry. The Report reviewed the present weaknesses oI fag state
control and the problems caused by the existence of registers where the state does
not have the capability of supervising the safety of ships or does not do so effec-
tively.
19
The Report recommended that, in order to eliminate such registers, the
IMO should focus international criticism, for example by publishing lists of defective
ships. Publication of lists of ships of shame was started by the UK, based on the
results of port state inspections.
20
II publication oI such lists were to prove insuIf-
19 Para. 6.25, Cm 2560.
20 For example, Lloyds List printed on 4 August 1998 lists of 8 vessels detained in June
1998 by the Marine Safety Agency, as well as 3 detained by the South African Maritime
Safety Authority. The Australian and US Authorities also publish such information. On
10 August 1998, the same publication reported data released by the Tokyo MOU, show-
cient, Lord Donaldson proposed that the provisions about certifcates in SOLAS and
similar conventions should be amended so as to remove the requirement to recognise
the certifcates oI those registers which had a bad record with the IMO or the Port
State secretariats.
21
This dissatisIaction with the perIormance oI certain fag states maniIested itselI at
the IMO. Most strikingly, perhaps, is the provision introduced in the amended ver-
sion of the STCW Convention for the so-called White List of parties which have
shown that they are giving full and complete effect to the provisions of the Conven-
tion.
22
Certifcates issued by listed parties are to be accepted as being in compliance
with the Convention, a privilege not extended to certifcates issued to unlisted parties.
This represents a major change in the system oI certifcates which goes back many
years. Secondly, the IMO in 1997 adopted the Guidelines to Assist Flag States in the
Implementation of IMO Instruments.
23
The Guidelines refer to Article 94 of the LOS
Convention and set out details oI actions, measures and steps to be taken by fag
states to give effect to Conventions. For example, the Guidelines list steps to be taken
upon the entry into force of an IMO Convention, measures to implement Conven-
tions, procedures to delegate authority to classifcation societies to conduct surveys,
steps to Iulfl the fag state`s obligations to enIorce international rules and fnally
actions for the carrying out of surveys and investigations. These Guidelines have the
possible additional role of assisting a port or coastal state in reaching the conclusion
in a particular case that a fag state has 'repeatedly disregarded its obligation Ior the
purposes of Article 228.
B The Role of the Port State in Enforcement
(1) Historically, the role oI the fag state was predominant in the matter oI enIorce-
ment. At the same time, there has always existed the possibility of some interven-
tion by port state authorities in exercise of the territorial basis of jurisdiction. Under
SOLAS 1914 and later Conventions, the fag state`s certifcates were to be treated
as conclusive subject to the qualifcation that where there existed clear ground Ior
believing that the condition of the ship did not correspond substantially with the
terms oI the certifcate, a port state could intervene and prevent the ship Irom leav-
ing harbour in an unsafe condition. In practice, inspection by the port state was not
systematic and not as detailed or intrusive as a fag state inspection oI a similar ship
would be when conducted by the very same inspector. Intervention by the port state
was the exception rather than the rule and the latters powers were rarely exercised,
possibly because of the risk of diplomatic friction once the foreign Consul was in-
ing the fag states which had the worst records in the Asia-Pacifc region, as well as the
numbers of inspections carried out by the participating states.
21 Ibid. fn. 20, para. 6.28.
22 Regulation I/7. According to section A-I/7 of the STCW Code, the list was to be drawn
up on the basis of initial reports submitted to the IMO by 1 August 1998. In practice, the
Maritime Safety Committee will be in a position to establish the list sometime in 1999.
23 As the Annex to Resolution A. 847 (20) of 27 November 1997.
258 Chapter 13
formed.
24
Port states were not concerned with what a ship may have done before its
entry into port since beyond the then 3 mile limit oI the territorial sea the rule was fag
state jurisdiction on the high seas.
(2) Coming now to the present role, the dissatisIaction with fag state jurisdiction
led to a search for alternatives. As a result, three major developments in the latter part
of this century may be noted:
(A) In January 1982, a number oI representatives oI European shipping Ministries
met in Paris and adopted the Memorandum on Port State Control. They were react-
ing to the Amoco Cadiz disaster and perhaps drawing upon their experiences in the
Third Committee. The MOU provided that each shipping authority would establish
an effective system of port state control on a non-discriminatory basis with a view
to ensuring compliance with a list of instruments establishing international stand-
ards. The scheme related to several important IMO Conventions, including those on
Load Lines of 1966, SOLAS, MARPOL 1973-1978, and the Collision Regulations
of 1972, as well as the ILO Convention on Merchant Shipping (Minimum Standards)
of 1976.
25
Whereas those instruments had provided primarily (but not exclusively)
Ior fag state implementation, all the port authorities in Northwest Europe commit-
ted themselves in future to inspect ships against the agreed standards and to secure
the rectifcation oI any defciencies discovered by the inspectors. In particular, the
authorities were to ensure that hazards to health or saIety were removed beIore the
ship leIt port. The inspectors would ask to see the certifcates issued by the fag state.
II they were valid, the inspectors would confne the control to what was permit-
ted under the different Conventions. It was also agreed to share the results of these
inspections. By banding together in this way, sub-standard ships had no port where
they could expect 'leniency in Europe. The Paris MOU has served as a precedent Ior
several other regions. MOUs covering the regions oI Latin America, Asia-Pacifc, the
Caribbean, the Gulf, the Indian Ocean, the Black Sea, West Africa and the Mediter-
ranean have been adopted.
26
Having regard to these different regional arrangements,
the IMO took initiatives to strengthen the legal basis for port state control of opera-
tional requirements under international Conventions concluded in previous years. In
1993, the Assembly adopted Resolution A.742(18) on Procedures for the Control of
Operational Requirements related to the Safety of Ships and Pollution Prevention, in
which it was agreed that where there were clear grounds for believing that a ships
oIfcers and crew were not Iamiliar with essential shipboard procedures, then port
24 Such a requirement is Iound in Maritime Conventions. The Vienna Convention on Con-
sular Relations of 1963 contains in Article 5 several functions in regard to ships on the
register of the sending state.
25 The scope of the arrangements was later expanded to include amendments to the Load
Lines Convention (1988), to the SOLAS Convention (1988), and to the STCW Conven-
tion (1995).
26 For comment and the text of the Caribbean MOU, see Lee Kimball, 36 ILM (1997), p.
231.
state control should be extended to include operational requirements in respect oI the
safety of ships and of pollution prevention. In 2004, the IMO hosted a third meeting
of representatives from all the MOUs.
(B) The second major development, namely the adoption of Article 218 concern-
ing the enforcement of environmental standards by port states, can be traced back to
a proposal by the US delegation in the Seabed Committee in 1973
27
and to a more
detailed proposal by nine European delegations, including the UK,
28
in the Third
Committee of the Conference at Caracas in 1974. The thinking of the British delega-
tion had been infuenced by a study by the British Branch oI the International Law
Association of the legal bases of port state jurisdiction. The study proposed that port
authorities would have the duty to investigate suspected vessels and, upon fnding
evidence of a violation they would have a right, if not also a duty, to prosecute if the
fag state or a competent coastal state with jurisdiction did not prosecute. The new
powers would relate to the enforcement of internationally agreed standards, such
as those in MARPOL. The exercise of port state jurisdiction was seen to have the
advantages of providing an alternative to intervention at sea by a coastal state, as
well as a prompt investigation on board a ship leading to the immediate institution of
proceedings where evidence of a violation was obtained. The Study also contained an
alternative concept, based on what was described as an established basis for port state
jurisdiction, namely the creation of a new offence consisting of the act of arriving in
port with clean or empty tanks when the oil record book showed that the ship had left
its last port with oil or residues on board. According to this concept, there would be
no need to prove that a discharge had taken place at sea. The new offence would be
committed upon entry into port, i.e. at a place under the sovereignty and jurisdiction
of the prosecuting state, thereby avoiding jurisdictional problems attending offences
committed offshore.
29
In introducing the proposal for port state jurisdiction at Caracas, the leader of
the UK Delegation reviewed the operation of international conventions intended to
prevent marine pollution and presented a powerIul justifcation Ior improving their
enforcement. He explained that during the preceding 5 years, the United Kingdom
had experienced over 900 spillages, leading however to only 18 successful prosecu-
tions- a signifcant imbalance. The statement highlighted two practical diIfculties
Iacing the enIorcement oIfcers in many instances: frst, obtaining suIfcient evidence
to sustain prosecutions Ior illegal discharges; secondly, stopping and boarding at sea
large ships suspected of committing discharge offences.
30
27 A/AC.138/SC.III/L.40.
28 A/CONF. 62/C.3/L.24.
29 Report of the 56th Session of the ILA (New Delhi), 1974, p. 401.
30 19th Mtg. oI the Third Committee, OIfcial Records oI the ConIerence, Vol IV, p. 82.
260 Chapter 13
The proposals were refned and adopted as Article 218. In 1982, it represented an
innovation in the law.
31
The port state is empowered to enforce international rules,
in this case MARPOL, in respect of discharges from ships beyond the limits of the
jurisdiction of that state. This amounts to an internationally agreed form of extra-ter-
ritorial jurisdiction. There are qualifcations: proceedings in respect oI discharges
into waters within the jurisdiction of another state may be instituted only at the lat-
ter`s request or that oI the fag state or a victim state.
(C) The third major development in reviewing the role of the port state in the en-
forcement of international standards has been the application and exercise of port
state jurisdiction. In the 1980s, maritime states were slow to implement Part XII,
probably on account of the well-known problems over Part XI of the Convention.
However, in 1992, the North Sea States, meeting in Paris, adopted a Declaration
32
in which they agreed to act in concert to create Exclusive Economic Zones and to
exercise in them in a coordinated manner the jurisdiction recognised in Part XII,
including Article 218. In the process of implementing the LOS Convention prior
to accession (which came in July 1997), the concept of port state jurisdiction was
introduced into the law of the UK by the Merchant Shipping (Prevention of Oil Pollu-
tion) Regulations 1996
33
Ior oil pollution oIIences (and subsequently Ior noxious sub-
stances and garbage discharges) contrary to MARPOL. This marked a major change
Ior a maritime state like the UK which had long upheld the rights oI fag states, Ior
example at the LOS Conference of 1958. Other North Sea states have taken similar
action to introduce port state jurisdiction into their legislation.
In 1995, the implementation of port state control was taken a stage further when
the European Community adopted Directive 95/21 concerning the enforcement, in
respect of shipping using Community ports and sailing in the waters under the ju-
risdiction of the Member States, of international standards for ship safety, pollution
prevention ana shipboara living ana working conaitions (Port State control).
34
After
reciting the EC`s concerns about casualties, pollution and on-board conditions, the
Directive set out to reduce drastically the number oI substandard ships in EC waters
through the application of internationally agreed conventions, codes and resolutions,
31 Birnie and Boyle, International Law and the Environment (1992) concluded, at p. 282,
that Article 218 probably remained lex ferenda 10 years after the adoption of the Conven-
tion. However, in the second edition (2002), they concluded that it may be that no state
would now deny that article 218 has become customary law (at p. 376). There have also
been signifcant developments in port state control oI vessels engaged in high seas fsh-
ing.
32 UK White Paper Cm 2425.
33 S.I.1996/2154, made under the Merchant Shipping (Prevention of Oil Pollution) (Law of
the Sea Convention) Order 1996 (S.I.1996/282), which in turn was made under powers
contained in s. 129 of the Merchant Shipping Act 1995 (c. 21).
34 OJ No.L 157/1 oI 7 July 1995. For comment, see Erik Molenaar, 'The EC Directive on
Port State Control in Context, 11 IJMCL (1996), p. 241, concluding that the Directive
aims at more stringent inspections than the Paris MOU of 1982.
as adopted by both IMO and ILO. Article 1 stated the purpose of the Directive as be-
ing to increase compliance with relevant international legislation and to harmonise
inspection procedures, taking account of the Paris MOU.
In Europe, there have been Iew leading cases on port state jurisdiction.
35
Perhaps
everything is working smoothly. However, a Court in Miami involving an alleged
discharge in Bahamian waters made by a Liberian-fagged cruise liner which later in
the same day called at Miami and was inspected by the US Coastguard. In US v. Royal
Caribbean Cruises Ltd., the charge was that the ship had presented a false statement
to the US Coastguard because the Oil Record Book failed to record the discharge.
The case raises several interesting issues, but in the present context the following
may be relevant. The defence argued, in resisting the charge, that the discharge was
outside the jurisdiction oI the US, including its Coastguard, because the fag state was
Liberia and the coastal state at the point of the alleged discharge was the Bahamas.
The contentions were that the US had no jurisdiction to regulate either the discharge
or any attendant Oil Record Book violations. The defence invoked MARPOL, mak-
ing the points, frst, that the US had given eIIect to its terms in specifc legislation
which did not apply to foreign ships in non-US waters, and secondly that the State
Department had complained about the discharge and Liberia had investigated and
responded negatively to the complaint, all in accordance with procedures under Arti-
cle 4(2) oI MARPOL which contemplate fag state prosecution. The Government oI
Liberia later made its position known to the Court. The District Court held that the
true issue in the case was not that of jurisdiction over the discharge incident under the
specifc implementing legislation, but rather whether the US had jurisdiction over the
presentation in Miami to the Coastguard of a false statement under general legislation
about making false statements to the US authorities. The Court held that it did have
such jurisdiction. The offence of presenting the false document had taken place in US
territory and the territorial jurisdiction applied. The defendant had not been charged
with violating the legislation implementing MARPOL, which was seen as being a
separate matter.The case shows the vital importance of the actual framing of charges
against foreign ships.
To sum up, the role oI the port state has expanded signifcantly in recent years as
states have moved to inspect certifcates systematically and to compare their terms
with a visual inspection of the ship itself. States have also moved to enact legislation
granting powers in line with Article 218 of the Convention and, at least in the case of
the US, to use sovereign powers over ports more actively. The reason for this trend
is not hard to fnd. As Lord Donaldson explained in his Report, 'Ior as long as Flag
State Control continues to be ineIIective..., Port State Control will be the UK`s frst
line of defence against the pollution of its coastline. ...Port State Control as practised
at present undoubtedly has some effect in maintaining standards of safety, but it is a
very long way from being fully effective.
36
35 The case oI the Mostoles was an appeal against a decision oI the port state control oIfcer
in Rotterdam to refuse clearance because oily wastes remained on board the ship and its
next port of call was not known: 2 International Maritime Law (1995) 148.
36 Safer Seas, Cleaner Ships, Cm 2560, 1994.
262 Chapter 13
C The Role of Coastal States, including Straits States
(1) Historically, the role of the coastal state in the enforcement of international
standards in the territorial sea has been bound up with, and signifcantly limited by,
the right of innocent passage. This important element of the jus communicationis
37
was defned in the Geneva Convention on the Territorial Sea as passage which is
not prejudicial to the peace, good order or security of the coastal state.
38
Article 17
required Ioreign ships exercising the right oI innocent passage to comply with the
coastal states laws enacted in conformity with the Convention and other rules of
international law relating to transport and navigation. The latter phrase would ap-
ply to safety conventions and the London Convention of 1954 on Oil Pollution.
39
Would a breach of an international rule or standard always prejudice good order in
the territorial sea? The extent to which the coastal state could enforce its legislation
by arrest in the territorial sea and prosecution was not made completely clear by the
other Articles. Thus, OConnell notes that the position is conveniently ambiguous as
to the extent to which coastal state pollution laws might encroach upon the rights of
passage.
40
Fitzmaurice had argued that iI a vessel inIringed a local law, it might be li-
able to a penalty without necessarily ceasing to be on innocent passage. He conceded
that certain violations of local laws might mean that the owners could be subjected to
penalties and the ship itself to delay or even arrest, but eventual passage could not be
refused.
41
Fitzmaurice clearly contemplated the possibility oI arrest and prosecution
in the case of a vessel exercising the right of innocent passage in respect of a sus-
pected violation of a law enacted by a coastal state in conformity with Article 17. In
a similar vein, Article 4(2) of MARPOL, adopted in 1973, clearly indicated that the
coastal state could enforce laws prohibiting discharges in its territorial sea.
(2) The modern law, as now contained in several articles in the LOS Convention,
notably Articles 19, 21, 22, 23, 41, 42 and 220, refects eIIorts made at the LOS Con-
ference to make things clearer than before in several respects, including the scope
of the coastal states legislative powers over ships exercising the right of innocent
passage. As regards the territorial sea, an act of wilful and serious pollution is char-
acterised by Article 19 as being non-innocent. Such an act must surely prejudice the
37 The term used by the International Court of Justice in the Nicaragua Case, ICJ Reports
1986, p. 111.
38 Article14(4).
39 The Commentary oI the International Law Commission on Article 18 oI its fnal draIt
articles on the law oI the sea gives the examples oI the saIety oI traIfc and the protection
of the waters of the coastal state against pollution caused by ships. See YBILC 1956, Vol.
II, p. 274.
40 International Law of the Sea, 1984, Vol. II, p. 994. See also the Second Report of the
ILAs Committee on Coastal State Pollution (1998) in the report of the ILAs 68th ses-
sion.
41 G.G. Fitzmaurice, 'Some Results oI the Geneva ConIerence on the Law oI the Sea, 8
ICLQ (1959), p. 78, at p. 95.
good order of the coastal state. The latter is expressly authorised by Article 21 to
legislate for the safety of navigation and the protection of the marine environment,
provided it does not try to regulate in its own way the design, construction, manning
or equipment oI Ioreign ships, something which would create a 'patchwork quilt.
Foreign ships must comply with coastal state laws, including ones designating seal-
anes and traIfc schemes. In this respect, the position is similar in straits, provided
sealanes have been discussed beforehand within the IMO. In other words, Regula-
tions implementing the Collision Regulations can be enforced by the coastal state in
the sealanes.
As regards pollution, the subject of enforcement of international rules such as
MARPOL is regulated in detail in the different paragraphs of Article 220. First, in
the territorial sea, a ship which pollutes may be inspected and detained if the evi-
dence warrants prosecution. This power of the coastal state, however, is expressed to
be without prejudice to the application of the rules on innocent passage. This latter
qualifcation led O`Connell to observe that the LOS Convention had resolved the
above-mentioned ambiguity in the Territorial Sea Convention over the extent of the
coastal states enforcement powers, a topic dealt with in Articles 21(4) and 220(2), by
means of the wilful and serious pollution test of non-innocence contained in Article
19. He considered that a case of pollution which was both wilful and serious would
be a rare event.
42
Secondly, beyond the territorial sea, the coastal states powers are
subject in Article 220 to greater restrictions. In the Exclusive Economic Zone, the
coastal state may seek information from a ship and, if the circumstances justify it,
may inspect the ship where a substantial discharge is suspected. Only in those cases
where there exists clear evidence of a discharge causing major damage to the coastal
state may the latter detain the ship and prosecute it.
Furthermore, it should be recalled that in all these instances, detention is made
subject to certain safeguards, modelled on those in MARPOL. The main safeguards
are those contained in Articles 225 (Duty to avoid adverse consequences), in Article
226(1)(b) providing for the duties to avoid unnecessary delays and to release ships
against a bond or on bail, in Article 228 according priority to fag state proceedings,
and fnally in Article 230 restricting the coastal state`s range oI penalties to fnes in
many cases. (Article 226 on bail is linked, of course, to Article 292 concerning ap-
plications to international courts and tribunal for the prompt release of vessels.) As
regards the restrictions on sentencing, it may be noted that the US State Departments
Commentary contains the following glosses on the terms of Article 230:
Article 230, which applies only to vessel source pollution, provides that only monetary
penalties may be imposed with respect to violations committed by foreign vessels be-
yond the territorial sea. With respect to violations committed by foreign vessels in the ter-
ritorial sea, non-monetary penalties,(i.e. incarceration) may be applied as well, but only
iI the vessel has committed a wilIul and serious act oI pollution. The requirement that the
42 D.P. OConnell, op. cit., fn. 44 supra, p. 995.
264 Chapter 13
act be wilful would not restrain penalties for gross negligence. Article 230 applies only
to natural persons aboard the vessel at the time of the discharge.
43
In the case of US v. Royal Caribbean Cruise Lines Ltd. and Others, which arose
Iollowing an allegedly wilIul but not serious discharge Irom a Norwegian- fagged
vessel in the territorial sea oII San Juan, Puerto Rico, the District Court frst Iound
that Matters of pollution by foreign vessels within the territorial sea of the US are
governed by UNCLOS. Next, after reviewing the terms of Article 230, the Court
stated that the defendants may only be subjected to monetary penalties within the
jurisdiction of the US pursuant to Article 230.2. An application by the US Govern-
ment Ior a clarifcation to the eIIect that Article 230.2 did not apply to corporations
was denied by the judge (on procedural grounds, it would appear) in a later Order.
44
To sum up on the role of coastal states enforcement jurisdiction under the LOS
Convention, it is clear that there are several limitations, even though they may not be
quite as great as O`Connell may have suggested. The limitations, as well as the reten-
tion oI the saIeguards in section 7 oI Part XII, may well have refected the general
concerns which were felt at the time, especially in the mid-1970s, by many delega-
tions at the Conference over the possible assertion of unilateral coastal state powers
of intervention, as well as over the risks caused by attempting to arrest large ships
whilst they were navigating and in motion at sea. In those perspectives, port state
jurisdiction, despite its own limitations, was a more attractive option.
Finally, before leaving the role of the coastal state, a few remarks about the posi-
tion of the straits state may be appropriate. For this purpose, a straits state is a type
of coastal state, one which faces a strait used for international navigation, such as
the Dover Strait and the Singapore Strait. Article 233 provides that in straits used for
international navigation, the straits state may enforce its laws relating to the safety
oI navigation, sealanes and traIfc schemes adopted in consultation with the IMO, as
well as laws giving effect to international regulations regarding noxious discharges,
if a foreign ship violates those laws and causes or threatens major damage to the
marine environment of the straits. The case arising from the collision between the
Orapin Global and the Evoikos in the sealanes 5 miles south of Singapore is an ex-
ample.
45
The collision occurred despite communications between the VTIS provided
by the Singapore authorities and the bridges of the two ships in order to warn them of
the risk of a collision before it happened.
D The Enforcement Roles of International Organisations
The role of international organisations is most apparent in regard to the prescription
of international rules and standards. The IMO has no direct role in the enforcement of
such rules. The Organisation is not competent to bring proceedings before a court, or
43 Message from the President to the US Senate, Treaty Doc .103-39, 1994.
44 Orders of 19 September 1997 and 21 November 1997 by the US District Court in San
Juan, Puerto Rico.
45 Straits Times, 15 July 1998, p. 3.
to set up its own 'Star Chamber to hear complaints against a fag state, a port state
or a coastal state. The IMOs role in regard to enforcement is indirect. The IMO has
a Committee on fag state implementation oI its Conventions. The IMO has adopted
Guidelines to Assist Flag States in the Implementation of IMO Instruments. Turning
to port states, the IMO has coordinated the various regional MOUs and has promoted
the adoption of new ones. The role of the IMO is a vital one, both in the prescription
of rules and in promoting their effective enforcement. The ILO plays a similar role as
regards International Labour Conventions in the maritime sphere.
As regards the protection of the marine environment, several regional commissions
play important roles in monitoring the state of the waters in the region concerned, in
prescribing local rules and standards within the global parameters, and in ensuring
good enforcement by the member states of the applicable rules.
The only possibility for an international organisation to enforce directly interna-
tional rules for safety of navigation or the prevention of pollution would arise if a
dispute over jurisdiction between a fag state and a port state, Ior example, were to be
referred to an international court for a decision. The well-known case of the Lotus
46
concerned, in today`s terms, a prosecution by a port state oI a Ioreign-fagged vessel
in respect of a collision on the high seas. Under Part XV of the Convention, such a
case could come before the International Court of Justice or the International Tribu-
nal for the Law of the Sea. In particular, Article 297 (1) provides that disputes about
navigational issues and international rules for the protection of the marine environ-
ment are subject to compulsory procedures entailing binding decisions.
III Concluding Remarks
1. In the enIorcement oI international rules, during the past quarter oI a century
there has been a shiIt away Irom the near total dominance oI fag state jurisdic-
tion.
2. The shift is most clearly noticeable towards port state control by inspection and
also towards the exercise of port state jurisdiction. This trend may also be ac-
centuated by taking the position that an offence is committed by arriving in port
in a defned condition or by presenting a document relating to events outside the
coastal jurisdiction.
3. The shift towards coastal state jurisdiction is less marked, partly on account of
the attractions of port state control and partly as a reaction to fears over the risk
of unilateral action perceived in the 1970s and, in particular, the spectre of large
ships being arrested off-shore and taken into unsafe harbours.
4. The international community of states has now largely completed the task of
establishing the principal international rules and standards in many felds to do
with shipping. In future, the stress will be on raising those standards, on points
of detail and as technology improves, by means of amendments to existing in-
struments. The main need today is to improve enforcement.
46 PCIJ, Series A, No. 10, p. 25 (1927).
266 Chapter 13
5. The IMO is tackling the problem oI fag states which are unable to carry out
their obligations as effectively as others would wish. Port state enforcement
is likely to grow in signifcance as more states give eIIect to Article 218 oI the
Convention and more regional MOUs are concluded.
6. There are signs oI a Iurther shiIt away Irom primacy oI fag state jurisdiction
and towards greater port state jurisdiction. This shift in the balance between the
two types of jurisdiction is evidenced by the special exception created in Article
228 Ior the fag state which has repeatedly disregarded its obligation to enIorce
the rules, by the publication oI names and fags oI sub-standard ships, and by
the amendments creating the White List of parties to the STCW Convention.
In the Iuture, certifcates issued by some fag states will not easily convince the
port states` inspectors and to that extent fag state jurisdiction will be ousted. The
change in the rules concerning certifcates may be made in the Iuture in the cases
of other IMO Conventions as they are amended.
7. Although the cooperation amongst fag states, port states, coastal states and in-
ternational organisations in operating the regime for the prevention of pollution
has been endorsed by Birnie and Boyle as one of the more successful examples
oI such cooperation in the environmental feld, there remains much room Ior
improvement in the enforcement of international rules and standards. All those
states and organisations mentioned have scope to play more active or enhanced
roles in removing sub-standard ships from the seas.
Chapter 14
Port State Powers in the Modern Law
of the Sea*
The aim of the present chapter is to trace the many recent developments concerning
port state powers. These powers of inspection and enforcement relate to internation-
ally agreed rules and standards. They have been introduced progressively in different
contexts, primarily shipping and fshing, in order to complement fag state powers oI
jurisdiction and control, powers that were all too often under used in practice. As the
account oI twenty-frst century developments will indicate, the processes oI introduc-
ing and harmonising the exercise of port state powers are continuing.
I Historical Background before 1950
Historically, in both French
1
and Anglo-American practice, it was recognised that
foreign merchant vessels voluntarily present in a port were, as a matter of legal the-
ory, subject to the law and jurisdiction of the port state, as well as to the concurrent
jurisdiction oI the fag state. Thus, the British Government`s statement Ior the Hague
Codifcation ConIerence oI 1930 aIfrmed that 'the State is entitled to exercise juris-
diction over a foreign merchant ship lying in its port and over persons and goods on
* This chapter is based upon a paper entitled Port States and Environmental Protection
and frst published in A. Boyle and D. Freestone, International Law and Sustainable
Development (1999) 325. The text has been revised and updated.
1 Avis oI the Conseil dÈtat oI 1806, in Charteris, 1 BYBIL (1920) 45.
268 Chapter 14
board.
2
In practice, however, port states refrained from exercising their jurisdiction
over matters internal to foreign vessels, and it was not usual for the authorities to
intervene and enforce the local jurisdiction
3
except in cases where the peace and
tranquillity oI the port were disturbed, e.g. by a murder on board ship, or where the
intervention oI the local authorities was requested by the Master. There existed wide-
spread restraint over the exercise oI jurisdiction, although there was no question oI
according immunity to merchant vessels, apart from those entering port in distress.
Port states took account of the practical need to avoid interfering unnecessarily with
a vessel present only temporarily in respect of matters affecting its internal economy,
such as the terms of employment of the crew. Moreover, the port state did not nor-
mally have any reason to investigate incidents occurring or matters arising before the
vessels arrival in the port. Beyond the narrow territorial sea, the rule was exclusive
fag state jurisdiction on the high seas. The position in customary international law
resulting from the decision in the case of the SS Lotus may have been that a port state
such as Turkey had not acted contrary to the rules of international law in bringing
criminal proceedings against an oIfcer oI a Ioreign ship in respect oI a collision on
the high seas. This decision was, in effect, reversed by the Brussels Convention of
1952 on Penal Jurisdiction in Matters of Collision.
4
Before the era of the United Nations, internationally agreed standards were rudi-
mentary. Conventions such as those on Load Lines
5
and the Safety of Life at Sea (SO-
LAS)
6
laid down international standards for the safety of ships, but these standards
were relatively few in number and narrow in scope. The Conventions established
standards by the means of imposing obligations on states in respect of ships regis-
tered in ports in their territory, that is to say, fag state jurisdiction in modern termi-
nology. The states parties were required to issue certifcates to ships fying their fag,
stating that the particular ship complied with the agreed standards. The states parties
assumed 'Iull responsibility, according to the Conventions, Ior their certifcates,
but the means oI policing the exercise oI this responsibility were not specifed. Other
states, such as coastal states and port states, were not entitled to enforce the Conven-
tions on the high seas:
7
a ship holding a certifcate could be inspected in port in order
2 League of Nations Doc. C74M39(1929), v.99.
3 Ibid.
4 This reversal was repeated in article 11 of the Convention on the High Seas and again
in article 97 of the LOS Convention. It would appear therefore that the rule of custom-
ary law must now have changed so as to coincide with the conventional rules. Article
97 implicitly excludes port state jurisdiction in high seas collision cases such as that of
the Lotus by confning jurisdiction to the fag state and the state oI which the deIendant
master or oIfcer is a national.
5 International Convention on Load Lines of 5 July 1930: UK Treaty Series No. 35 (1932),
Cmd. 4199.
6 International Convention on Safety of Life at Sea of 31 May 1929 (UK Treaty Series No.
34 (1932), Cmd.4198), replacing an earlier Convention adopted on 20 January 1914 in
the aftermath of the loss of the Titanic.
7 Higgins and Colombos, International Law of the Sea (1943), p. 247.
269 Port State Powers in the Modern Law of the Sea
to veriIy that the certifcate was still valid and iI necessary that the actual condition
oI the ship corresponded substantially with the particulars given in the certifcate.
8
In
the event oI intervention by the inspecting authorities, the consul oI the fag state had
to be informed forthwith. In practice, such intervention appears to have been rare, at
least in cases where ships held valid certifcates. Moreover, as a practical matter, a
dockside inspection is limited to what the inspector can see from a walk around the
ship, which can oIten mean that serious defciencies, e.g. inside Iull tanks or cargo
holds, are not revealed.
II Developments from 1950 to 1970
From the middle of the twentieth century, shipping companies increasingly registered
their ships in Ioreign ports with open registries. Registration in such ports oIIered f-
nancial and other advantages over registration in home ports or the companies places
oI incorporation or residence. With the resulting proliIeration oI so-called fags oI
convenience, the impression grew in many shipping administrations that some for-
eign-fagged ships were not well-managed to the point where vessels were suspected
of not complying in several respects with international minimum standards. Part of
the economic rationale Ior fagging out, Ior example, was to escape Irom require-
ments about manning imposed by certain states upon ships fying their fags. In the
United States, the International Maritime Workers Union sought to invoke provisions
of the US Labour Management Relations Act in respect of a foreign ship with a for-
eign crew present in an American port. The Act, naturally, set out US national stand-
ards in respect of crewing. The Supreme Court, reversing a decision by the Courts
of New York, was persuaded (partly as a result of a brief submitted by the British
Government which saw a connection with extraterritorial legislation) that the internal
economy of the ship should not be disturbed. The Court decided that the Act did not
apply to such a ship, with the result that fag state jurisdiction alone would apply to
the crews conditions of service.
9
At this time, shipping administrations were also increasingly concerned over seem-
ing non-compliance with internationally agreed construction and operational stand-
ards, including SOLAS. Alongside efforts taken towards the establishment of the
International Maritime Consultative Organisation (IMCO, later IMO), international
standard setting moved into new areas, notably the prevention of marine pollution
which was rightly perceived as a growing problem.
10
Once again, the provisions con-
tained in newly adopted international conventions proceeded on the basis oI fag state
jurisdiction. The London Convention oI 1954 on marine pollution required the ships
fying the fag oI a state party to carry an oil record book which could be inspected in
port by the local authorities. However, in the event of discovering an infringement,
8 SOLAS Convention 1929, Article 54; Load Lines Convention 1930, Article 16.
9 Incres Steamship Co Ltd v International Maritime Workers Union et al., 10 NY ed.
218,176 NE 2d 719; (1963) 372 US 10.
10 The Convention for the Prevention of Pollution of the Sea by Oil of 1954 is an exam-
ple.
270 Chapter 14
they were to inIorm the fag state with a view to the latter bringing a prosecution.
11
Doubts about compliance with a variety of international regulations persisted and, if
anything, grew more widespread. Well-managed ships carried the costs of compli-
ance with the growing number of international standards. Ships which were in full
compliance still had to compete in the market place for ships services with ships
which did not carry the overhead costs of meeting those standards. The result was a
Iurther growth in fagging out and fags oI convenience.
In the Convention on the Territorial Sea and the Contiguous Zone of 1958, article
16 (2) recognised the right of the coastal state to take the necessary steps to prevent
any breach of the conditions for entry into its internal waters by foreign ships.
III First Proposals in the 1970s for Port State Control or Jurisdiction
The early 1970s were a time of great ferment in the law of the sea in general and
jurisdiction over pollution in particular. The decision of the General Assembly of the
United Nations to convene the Third LOS Conference
12
meant that new ideas could
be presented for consideration in what was an appropriate and competent global fo-
rum. Concerns over the pollution of beaches, caused by accidental oil spills such
as that in 1967 from the Torrey Canyon and by the then all too regular practice of
washing out tanks at sea, were at their height. Canada reacted by enacting in 1970
some novel and controversial legislation, asserting coastal state jurisdiction in order
to prevent pollution of its Arctic waters.
13
The Stockholm Conference of 1972 on the
Human Environment indirectly drew attention to issues concerning the exercise oI
maritime jurisdiction.
14
This heightened interest in the prevention oI marine pollution naturally infuenced
the work of the IMO, including the aspect of port state control. First, in 1972, when
the Collision Regulations
15
were re-examined, the revised Regulations provided for
inspection by port states, which were, however, simply to report any defciencies to
the fag state. Next and more signifcantly, the Iollowing year saw the convening oI
the London Conference for the Prevention of Pollution from Ships, in response to
widespread international concern over the fouling of beaches by oil slicks. Proposals
were advanced at the Conference for the exercise by coastal states of some jurisdic-
tional powers over suspected foreign vessels. Proposals were also advanced for the
exercise of greater powers by the port state. However, after some anxious debates,
it was decided to leave all jurisdictional proposals aside pending the outcome of the
11 Articles IX and X of the Convention, UK Treaty Series No.56 (1958), Cmnd.595.
12 UN Doc. General Assembly Resolution 2750C (XXV) of 17 December 1970.
13 Arctic Waters Pollution Prevention Act 1970.
14 Principle 21 of the Stockholm Declaration, in particular, referred to activities within the
jurisdiction or control of states, but without further elaboration of the jurisdictional
aspect.
15 Convention on the International Regulations for Preventing Collisions at Sea, 1972.
then imminent LOS Conference.
16
As a result, Article 9(3) of the MARPOL Conven-
tion 1973
17
gave an ambulatory meaning to the term jurisdiction where it is used
in the substantive provisions, with the result that it should today be read in the light
of the LOS Convention. Article 5 provided for nothing more than inspections by port
states, which again were simply to report defciencies or suspicions to the fag state,
unless there were clear grounds for believing that the conditions on board a ship
did not correspond substantially with the vessel`s certifcate. In that event, the port
state was empowered to take steps to prevent the ship from returning to sea before
the necessary repair work had been carried out. Article 6 empowered inspectors to
check whether a ship had violated the Convention by making an irregular discharge
oI harmIul substances. Evidence oI a violation was to be sent to the fag state, with a
view to prosecution by its Administration. Where a third state requested an inspection
of a suspect vessel, the report was to be sent also to that state.
The issue of pollution control naturally attracted a great deal of attention in the
Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the
Limits oI National Jurisdiction. During its fnal sessions in 1973, two delegations
advanced proposals for some type of port state jurisdiction in regard to vessel-source
pollution. The frst, tabled by the United States, proposed that 'A State may enIorce
standards applicable in accordance with this Chapter to...vessels using its ports...irre-
spective of where the violation occurred...
18
(In later paragraphs of the proposal, this
State was called the port State.) A similar proposal was tabled by the Netherlands.
19
However, for lack of time, Sub-Committee III did not draw up any proposals on the
enforcement of international standards for submission to the Third UN Conference
on the Law of the Sea.
In the IMO in 1974, the Convention on Safety of Life at Sea (SOLAS) was revised.
In regard to port state control, Regulation 19, following the approach adopted in the
MARPOL Convention, provided that a ship when in the port of another Party was
subject to control by oIfcers oI the port in so Iar as this control was directed towards
veriIying that certifcates issued by the fag state were valid. OIfcers were required
to prevent ships found to be in violation of international standards from proceeding
anywhere but the nearest repair yard. Regulation 19 provided that, additionally to the
fag state, the IMO and the next port oI call were to be notifed oI suspected short-
comings. These additional notifcations Iacilitated international cooperation designed
to improve compliance with agreed standards.
In the summer of 1974, the Committee on the Law of the Sea of the British Branch
of the International Law Association (ILA) published a Report entitled The Concept
16 Resolution 23 adopted in the Final Act of the Conference.
17 International Convention for the Prevention of Pollution from Ships of 2 November
1973. Prior to its entry into Iorce, the Convention was modifed by the Protocol oI 17
February 1978.
18 A/AC. 138/SC III/L.40, Article 7.
19 A/AC.138/SC III/L.48, Article 2(1).
272 Chapter 14
of Port State Jurisdiction in preparation for the ILAs 56th Session in New Delhi.
20
The Committee included three shipping experts and several prominent international
lawyers.
21
That summer also saw the frst substantive session oI the Third United Na-
tions Conference on the Law of the Sea (LOS Conference) where the concept of port
state jurisdiction was under consideration. The subject-matter of the Report was con-
fned to the prevention oI marine pollution. AIter briefy setting out the enIorcement
provisions oI MARPOL (i.e. fag state jurisdiction, plus coastal state jurisdiction in
respect oI the territorial sea), the question was posed whether those provisions were
suIfcient in themselves. It was noted that only the fag state could institute proceed-
ings against a ship suspected of having discharged pollutants into the high seas even
if the shores of one or more coastal states were threatened with pollution as a result.
The report proposed complementary jurisdiction on the part of the port state. Port
authorities would have the duty to investigate suspected vessels and, upon fnding
evidence of a violation they would have a right, if not also a duty, to prosecute if the
fag state or a competent coastal state with jurisdiction did not prosecute. The new
powers would relate to the enforcement of internationally agreed standards, such as
those in MARPOL. The exercise of port state jurisdiction was seen to have the advan-
tages of providing an alternative to intervention at sea by a coastal state, as well as a
prompt investigation on board a ship leading to the immediate institution of proceed-
ings where evidence of a violation was obtained. The Report of the British Branch
also contained an alternative concept, based on what was described as an established
basis for port state jurisdiction, namely the creation of a new offence consisting of the
act of arriving in port with clean or empty tanks when the oil record book showed that
the ship had left its last port with oil or residues on board. According to this concept,
there would be no need to prove that a discharge had taken place at sea. The new of-
fence would be committed upon entry into port, i.e. at a place under the sovereignty
and jurisdiction of the prosecuting state, thereby avoiding jurisdictional problems
attending offences committed offshore.
During the frst substantive session oI the Third LOS ConIerence, the Greek del-
egation put forward a cautious proposal to the effect that a port state could prosecute
in respect of a suspected violation of agreed regulations concerning marine pollu-
tion, but only at the request oI the fag state or an aIIected coastal state.
22
At the next
session in 1975, Sir Roger Jackling, the leader of the United Kingdom delegation,
introduced what turned out to be a key proposal, sponsored by nine European delega-
tions.
23
His statement
24
reviewed the operation of international conventions intended
to prevent marine pollution and presented a powerIul justifcation Ior improving their
20 The Concept of Port State Jurisdiction International Law Association, Report of the
Fifty-Sixth Conference, held at New Delhi in 1974, p. 401.
21 The Committee, chaired by Miss Joyce Gutteridge who had attended the frst UN ConIer-
ence on the Law of the Sea, included Sir Maurice Bathurst QC, Sir Derek Bowett QC, Sir
Robert Jennings QC and Dr Gillian White.
22 A/CONF. 62/C.3/L.4.
23 A/CONF.62/C.3/L.24.
24 19th Mtg oI the Third Committee, OIfcial Records oI the ConIerence, Vol. IV, p. 82.
enforcement. He explained that during the preceding 5 years, the United Kingdom
had experienced over 900 spillages, leading however to only 18 successful prosecu-
tions a signifcant imbalance. The statement highlighted two practical diIfculties
Iacing the enIorcement oIfcers in many instances: frst, obtaining suIfcient evidence
to sustain prosecutions Ior illegal discharges; secondly, stopping and boarding at sea
large ships suspected of committing discharge offences. In particular, stopping ships
in busy sealanes, such as those in the English Channel and the Straits oI Dover,
would create hazards to other shipping. Much better according to the British authori-
ties was the collection of evidence at the next port of call, either at the initiative of
the port`s authorities or at the express request oI the aIIected coastal state. Accord-
ingly, the proposals would have authorised the inspection of ships by the port state in
order to ascertain whether there was reason to suspect a violation of internationally
agreed discharge standards. In the event of discovering reasonable grounds for sus-
pecting a discharge causing damage to the coastline or related interests of a coastal
state, the port state was authorised to arrest the vessel and prosecute it for violating
international standards. The fag state was to be notifed promptly oI the arrest and
prosecution. (These proposals went well beyond the terms of MARPOL. By omit-
ting fag state priority, the proposals also went beyond the ideas put Iorward by the
British Branch oI the ILA, as well as the provisions fnally adopted in Part XII oI the
Convention of 1982.)
The Informal Single Negotiating Text prepared by the Chairman of the Third Com-
mittee included Article 27 on port state jurisdiction.
25
It drew upon the proposals
oI the European states, but confned the scope oI the power to prosecute to sus-
pected discharges in an area extending to an unspecifed distance Irom the baselines
of the state concerned. In 1976, the topic of port state jurisdiction was taken up in
the Evensen Group and the text oI what became Article 218 oI the Convention was
Iormulated. The limit oI an unspecifed distance Irom the coast was replaced by port
state powers exercisable irrespective of where the violation has occurred, a most
signifcant change.
Also in 1976, the International Labour Organisation adopted Convention No 147
on Merchant Shipping (Minimum Standards). Most of its obligations were laid upon
fag states since crewing is clearly a matter within the internal economy oI the ship.
However, Article 4 provided that if a state party received a complaint of non-compli-
ance with the Conventions standards by a ship in port in the normal course of its
business, the port`s authorities could not only report on the matter to the fag state and
the ILO but could also take measures to rectify any conditions on board which are
clearly hazardous to saIety and health. This Convention was a sign oI concerns, on
the part of both labour unions and shipping administrations, with conditions on board
some ships. These concerns were, of course, similar to those manifested in the 1950s
in the case beIore the US Supreme Court, but with the signifcant diIIerence that the
Convention established minimum international standards for crewing, whereas the
US case concerned the question oI the applicability oI national legislative standards.
25 A/CONF.62/WP.8/Part III, Article 27.
274 Chapter 14
IV Developments during the 1980s
Whilst the 1970s saw the proposal of new ideas, the 1980s were the time when deci-
sions were taken. In particular, two major developments occurred in 1982: the adop-
tion of both the Paris Memorandum of Understanding (MOU) and the Law of the Sea
Convention.
First, following a meeting held in The Hague in 1978 in the aftermath of the Amo-
co Cadiz disaster, a meeting of senior representatives of all shipping Ministries in
Northwest Europe was held in Paris in January 1982. The meeting adopted the Paris
Memorandum of Understanding on Port State Control,
26
an instrument which has
proved to be oI wide signifcance in several ways. Despite creating lasting relation-
ships and institutions with fnancial implications, the MOU was concluded as an
informal cooperative arrangement amongst shipping administrations, rather than as
a treaty. The MOU provided that each shipping authority would establish an effec-
tive system of port state control on a non-discriminatory basis with a view to ensur-
ing compliance with a list of instruments establishing international standards. The
scheme related to several important IMO Conventions, including those on Load Lines
of 1966, SOLAS, MARPOL 1973-1978, and the Collision Regulations of 1972, as
well as the ILO Convention on Merchant Shipping (Minimum Standards) of 1976.
27
Whereas those instruments had provided primarily Ior fag state implementation, all
the port authorities in Northwest Europe committed themselves in Iuture to inspect
ships against the agreed standards and to secure the rectifcation oI any defciencies
discovered by the inspectors. In particular, the authorities were to ensure that hazards
to health or saIety were removed beIore the ship leIt port. The fag state`s authorities
were to be notifed as soon as possible in each case.
The scheme established by the MOU did not require the amendment oI the Con-
ventions; but it was clear evidence oI the aim oI securing better compliance with their
terms. The scheme did not involve the establishment oI any new standards or require-
ments for ships, or the enforcement of any purely national standards or regulations.
Rather, the scheme was directed towards ensuring full application of the existing
standards laid down in international conventions open to all states and intended to be
observed by all ships worldwide. By banding together in this way, the states of North-
west Europe ensured that any ship wishing to trade to any oI the major European
markets had no port available where the MOU did not apply or where the ship could
expect leniency to be shown. The scheme, backed up by a computer database, met
with no serious opposition. It quickly proved to be an eIIective addition to the pro-
cedures for securing compliance with agreed international standards, resulting in an
overall improvement in the condition oI ships visiting European ports.
Over the years, the number of inspections has increased, as has the number of
checks made during each inspection. Similar schemes have been adopted in other
26 21 ILM (1982) 1, adopted on 26 January 1982 (and subsequently modifed).
27 The scope of the arrangements was later expanded to include for example amendments to
the Load Lines Convention (1988), to the SOLAS Convention (1988), and to the STCW
Convention (1978).
regions oI the world, all based on the precedent oI the Paris MOU Ior Europe and the
north Atlantic and covering all of the worlds major seas and oceans: Asia and the
Pacifc (Tokyo MOU); Latin America (Acuerdo de Via del Mar); Caribbean (Carib-
bean MOU); West and Central AIrica (Abuja MOU); the Black Sea region (Black Sea
MOU); the Mediterranean (Mediterranean MOU); the Indian Ocean (Indian Ocean
MOU); and the Arab States oI the GulI (GCC MOU (Riyadh MOU)).
The second development in 1982 and a key event in the history of port state
jurisdiction was the adoption and opening for signature of the UN Convention on
the Law of the Sea (LOS Convention). Article 25(2) repeated the terms of article
16 (2) of the Territorial Sea Convention, but with the addition of a reference to port
facilities. Part XII of the Convention contains far-reaching provisions authorising the
exercise of jurisdiction to prescribe and to enforce regulations for the prevention of
pollution by ships. First, article 211(3) recognises jurisdiction on the part of the port
state to prescribe conditions of entry to port relating to the prevention of pollution.
The paragraph also contemplates the possibility oI harmonization oI such conditions,
something the member states oI the European Community were considering during
the 1970s in the aItermath oI the Amoco Cadiz disaster. Secondly, ships suspected by
the port authorities of having violated international discharge standards outside the
internal waters, territorial sea or exclusive economic zone oI the port state may nev-
ertheless be prosecuted locally by the authorities of the port state (Article 218). This
provision, although subject to some qualifcations, is clearly a most signifcant addi-
tion to the possibilities for enforcing international standards. Thirdly, if an inspection
by a port state oI a vessel`s papers and certifcates indicated that the condition oI the
vessel did not correspond substantially with those documents, physical inspection
of the vessel could be undertaken and proceedings could then be brought in certain
circumstances by the port state. (Articles 220 and 226).
The status of article 218 has evolved. Thus, Rosenne and Yankov, the editors of
Volume IV of UNCLOS 1982 A Commentary (1991) stated that The concept of port
State jurisdiction over the enforcement of applicable international rules and standards
for the protection and preservation of the marine environment is new in the general
international law oI the sea (p. 260). In the frst edition oI their important work
International Law and the Environment, Birnie and Boyle reached the conclusion in
relation to Article 218 that It is... a novel development in the law of the sea to confer
jurisdiction on port states in this way.
28
The authors went on to state their view that,
at the time of writing (i.e. 1 January 1992), the article was lex ferenda. Given the
paucity of national legislation implementing Part XII prior to the entry into force of
the Convention, Iew questioned this conclusion at that time. However, since 1992,
the LOS Convention has entered into Iorce;
29
in their second edition of 2002 Birnie
and Boyle conclude that it may be that no state would now deny that article 218 has
become customary law.
30
28 Birnie and Boyle, International Law and the Environment (1992), p. 282.
29 It has now 152 parties (November 2006).
30 Ibid., 2nd ed. (2002), p. 376.
276 Chapter 14
Following the adoption of the LOS Convention, a further development took place
in 1984 when the IMO convened a conference to adopt the Convention on Standards
oI Training, Certifcation and Watchkeeping Ior SeaIarers.
31
Article X (1) of this Con-
vention lays down that Ships... are subject, while in the ports of a party, to control
by oIfcers duly authorised by that party to veriIy that all seaIarers... who are required
by the Convention to be certifed are so certifed.. II uncorrected defciencies were
found which posed a threat to persons, property or the environment, the port authori-
ties could, according to paragraph 3, prevent the ship from sailing before the agreed
standards had been met. The master and the consul oI the fag state were to be in-
formed. Any undue delays were to be compensated (paragraph 4).
V Developments in the 1990s
The 1990s witnessed many steps, taken at the national, regional and global levels, to
implement and apply the new concepts and arrangements. Thus, early in the decade,
the regional MOUs on port state control were strengthened as a result of action taken
at the global level. The IMO took initiatives to strengthen the legal basis for port state
control oI operational requirements under international Conventions concluded in
previous years. In 1993, the Assembly adopted Resolution A.742(18) on Procedures
Ior the Control oI Operational Requirements related to the SaIety oI Ships and Pol-
lution Prevention, in which it was agreed that where there were clear grounds for
believing that a ship`s oIfcers and crew were not Iamiliar with essential shipboard
procedures, then port state control should be extended to include operational re-
quirements in respect oI the saIety oI ships and oI pollution prevention. Appropriate
amendments to the SOLAS and MARPOL conventions were drafted and submitted
to separate Conferences in 1994. In 1995, the Assembly adopted Resolution A.787
(19), entitled Procedures for Port State Control. The latter were set out in a 50 page
annex and related to the major IMO Conventions mentioned above and the Conven-
tion on the Tonnage of Ships 1966. The procedures were stated to be complementary
to those of the ILO under its Convention No.147.
In 1993, there appeared a monograph entitled Port State Control and Jurisdiction
by George Kasoulides.
32
He correctly argued that the port state regime could become
an element which would counter-balance fag state jurisdiction in controlling vessels.
He reIerred to a sequence oI drastic changes in law and practice which had extended
to incidents preceding the entry oI a vessel into the jurisdictional zone oI any state.
In suggesting the expansion of the port state regime based on the Paris MOU to new
Conventions related to social conditions and employment on board vessels, he noted
that the regime was one for the enforcement of internationally agreed standards. In
1993, the Report oI Lord Donaldson`s Inquiry into the prevention oI pollution Irom
shipping, following the stranding of the Braer, pointed out that whilst the long term
aim must be to improve fag state control so that international standards are properly
31 UK Treaty Series No. 50/1984. The Convention was revised in 1996.
32 G. Kasoulides, Port State Control and Jurisdiction: Evolution of the Port State Regime
(Nijhoff).
applied, in the meantime port state control remained a 'frst line oI deIence
33
for the
coastal state.
A further development was the acceptance in 1995, in the amended version of the
STCW Code, oI the concept oI the 'white list. Parties were required, generally with
effect from 1 August 1998, to demonstrate to the Maritime Safety Committee that full
and complete effect was being given to the revised Convention. Once the MSC has
been so satisfed, the Party`s name is to be included on the White List and its certif-
cates should be accepted by port state inspectors everywhere as being in compliance
with STCW. Parties not on the White List would not enjoy that status.
In 1995, the process of expansion and consolidation of the system of MOUs was
taken a stage Iurther when the European Community adopted Directive 95/21 con-
cerning the enforcement, in respect of shipping using Community ports and sailing in
the waters under the jurisdiction of the Member States, of international standards for
ship safety, pollution prevention and shipboard living and working conditions (Port
State control).
34
AIter reciting the EC`s concerns about casualties, pollution and on-
board conditions, the Directive set out to reduce drastically the number of substand-
ard ships in EC waters through the application oI internationally agreed conventions,
codes and resolutions, as adopted by both IMO and ILO. Article 1 stated the purpose
of the Directive as being to increase compliance with relevant international legisla-
tion and to harmonise inspection procedures, taking account of the Paris MOU. In
brieI, the Directive provides a frmer legal basis Ior the exercise oI powers oI inspec-
tion and detention oI Ioreign fagged ships voluntarily visiting EC ports in the normal
course of trade.
At the national level, the United Kingdom introduced port state jurisdiction, a
signifcant departure Ior a maritime state which had long upheld the exclusivity oI
fag state jurisdiction. The Merchant Shipping (Prevention oI Pollution) (Law oI the
Sea Convention) Order 1996
35
authorised the making of Regulations for the pur-
pose of implementing Articles 211, 218, 220 and 223 to 233 of the LOS Convention.
Such Regulations were made as the Merchant Shipping (Prevention of Oil Pollution)
Regulations 1996.
36
These Regulations gave effect to the most recent amendments
to MARPOL which provided a legal basis for port states to carry out inspections of
shipboard operational procedures Ior preventing pollution by oil. Most signifcant
from the jurisdictional point of view were Regulations 12 and 13 which apply to for-
eign ships and foreign oil tankers wherever they may be, and Regulations 38 and
39 which created the possibility of bringing criminal proceedings in British courts in
respect of irregular discharges of oil committed by foreign ships in the internal wa-
33 Safer Ships, Cleaner Seas, (Cm 2560, May 1994), Chapter 11.5, p. 135.
34 O.J. No. L 157/1 oI 7 July 1995. For comment, see Erik Molenaar, 'The EC Directive on
Port State Control in Context, 11 IJMCL (1996), p. 241, concluding that the Directive
aims at more stringent inspections than the Paris MOU of 1982.
35 S.I. 1996/282, made under powers contained in s. 129 of the Merchant Shipping Act
1995.
36 S.I. 1996/2154.
278 Chapter 14
ters, territorial sea or exclusive economic zone oI another state. Normally, such cases
would be brought at the latter state`s request, unless UK waters have been polluted.
VI Recent Developments concerning International Fisheries
During the 1990s, the concept of port state control or jurisdiction moved from the
prevention oI discharges causing pollution to the prevention oI fshing contrary to
regulations applicable on the high seas. An early move in this direction came in 1989,
when a group oI Pacifc States adopted the Wellington Convention Ior the Prohibi-
tion oI Fishing with Long DriItnets in the South Pacifc. Included amongst several
measures against driItnet fshing activities laid down in Article 3 was the restriction
by the parties oI port access and port servicing Iacilities Ior driItnet fshing vessels
(which presumably would include those fying the fag oI non-parties). The Conven-
tion was opened for signature by the members of the Forum Fisheries Agency. In a
similar vein, in 1992, the Congress of the United States enacted the High Seas Drift-
net Fisheries EnIorcement Act which provided Ior the denial oI Iacilities in US ports
to Ioreign fshing vessels which had engaged in driIt net fshing.
In 1993, negotiations were held under the auspices of the FAO for the adoption of
the Agreement to Promote Compliance with International Conservation and Man-
agement Measures by Fishing Vessels on the High Seas.
37
A proposal was advanced
for an extensive form of port state jurisdiction, modelled on the provisions in the
LOS Convention for vessel source pollution. However, this proposal failed to secure
consensus and was not adopted. Article V(2) of the Agreement simply provided that
where a port state has reasonable grounds Ior believing that a fshing vessel has been
fshing in a manner which undermines the eIIectiveness oI international conservation
and management measures, it is required to inIorm the fag state accordingly. This
obligation to investigate and report may go Iurther iI the port and fag states have
entered into an arrangement to that end.
Proposals for port state jurisdiction were also advanced during the UN Conference
on Straddling Fish Stocks and Highly Migratory Fish Stocks, held between 1993 and
1995.
38
One issue considered at length was the extent to which a state could refuse
Ioreign fshing vessels entry to its ports in cases where there was a suspicion that
fsh on board had been caught in a manner which undermined internationally agreed
conservation measures applicable beyond waters under the jurisdiction of a coastal
state. Iceland, Norway and the United States (in the form of the Magnuson-Stevens
Fishery Conservation and Management Act) had legislation which authorised refusal
oI access to port in such circumstances. It was pointed out, frst, that ports lie wholly
within a States territory and fall on that account under its territorial sovereignty and,
secondly, that general international law acknowledges a states wide discretion in
exercising jurisdiction over its ports, as refected in article 25(2) oI the LOS Conven-
37 33 ILM (1994) 968.
38 The Conference adopted in 1995 the text of the Agreement for the Implementation of the
Provisions of the UN Convention on the Law of the Sea relating to the Conservation and
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.
tion. That provision allows a port State to deny Ioreign fshing vessels access to its
ports or to set conditions for access.
Some delegations, especially ones Irom distant-water fshing states, expressed
doubts about the inclusion of some proposed wording concerning port state jurisdic-
tion, contending that the LOS Convention had provided for port state jurisdiction
only in the context oI marine pollution, not fsheries, and that any new implement-
ing agreement had to remain consistent with that position.
39
It was also argued that
historically port states had kept ports open Ior Ioreign fshing vessels wishing to con-
duct business in port, including selling the catch, and had not enquired into what the
vessels had done or where they had fshed prior to their entry into port. In general,
the proposal for port state jurisdiction was criticised as going beyond the framework
represented by the LOS Convention and as departing from well-established interna-
tional practice. The opposition to the idea voiced at the FAO Conference that drew up
the Compliance Agreement was repeated, but this time in a truly global Conference.
A further criticism was that the concept of port state jurisdiction in the LOS Conven-
tion was linked to the existence of internationally agreed standards for the prevention
oI marine pollution and that such standards were absent Irom international fsheries
on the high seas.
40
Other delegations responded these objections, countering that the coastal state en-
joyed sovereignty over its ports and could adopt laws relating to fshing vessels and
fsh catches present in port. Some coastal states wished to include the proposition
that the port state had the right to prohibit access to its ports, but others considered it
was not necessary to make an express provision, relying instead on the sovereignty
of the port state under general law. Delegations supporting a more limited Article
pointed to national legislation which already existed in states such as the United
States. The argument in favour of the Article was similar to the alternative sugges-
tion made by the Committee of the British Branch of the ILA in 1974 in the context
of pollution. The port state, on this view, could create the offence of arriving in port
with fsh on board which had been caught on the high seas contrary to internationally
agreed or recommended conservation and management measures. This latter element
of agreed conservation measures also provided an answer to the criticism based on
the alleged diIIerence between pollution controls and fsheries measures. True, the
argument went, there are many more agreed rules in regard to pollution than to inter-
national fsheries, but in those cases where agreed conservation measures did exist,
their effectiveness could (and, according to this view, should) be enhanced by port
state enIorcement measures. The Iact that the fsheries measures were regional rather
than global in their sphere of application was not seen as a valid ground for objecting.
There were seen to be objective reasons Ior adopting fsheries measures on a regional
or even sub-regional basis, having regard to the existence of international organisa-
39 Professor Chee (a member of the delegation of the Republic of Korea) set out many of
the objections in an article entitled Jurisdiction of Port State over Private Foreign Vessel
in International Law, 39 Korean Journal of International Law (1994), p. 55.
40 R.P. Barston, UN Conference on Straddling and Highly Migratory Fish Stocks, 19
Marine Policy, p. 166.
280 Chapter 14
tions for particular stocks and particular regions or sub-regions. There were also seen
to be ecological reasons in many instances for adopting a regional approach to the
management oI fsheries.
41
In 1994, whilst these arguments were still unresolved at the Conference in New
York, an Arrangement on Regional Fisheries was concluded by a group oI Pacifc
States (Federated States of Micronesia, Marshall Islands, Palau, Solomon Islands,
Kiribati, Nauru, Papua New Guinea and Tuvalu). Article 16 of the Arrangement (Port
State EnIorcement) provided that
Whenever a fshing vessel oI the Parties enters a port... oI one oI the Parties, the Port
State may inspect documents and catch on board such vessel and, when such inspection
discloses reasonable grounds for believing that the vessel has contravened the provisions
of this Arrangement, may detain the vessel for such reasonable period as is necessary for
the... Flag State to take control of the vessel...
42
Upon the resumption oI the UN ConIerence on Straddling Fish Stocks, the Pacifc
States lent their strong support for the inclusion of provisions concerning port state
jurisdiction in the new Agreement.
Their position prevailed, with the result that Article 23 of the Agreement adopted
at the end of the Conference provides as follows:
(1) A port State has the right and the duty to take measures, in accordance with in-
ternational law, to promote the effectiveness of subregional, regional and global
conservation and management measures. When taking such measures a port State
shall not discriminate in form or in fact against the vessels of any State.
(2) A port State may, inter alia, inspect documents, fshing gear and catch on board
fshing vessels, when such vessels are voluntarily in its ports...
(3) States may adopt regulations empowering the relevant national authorities to pro-
hibit landings and transhipments where it has been established that the catch has
been taken in a manner which undermines the effectiveness of subregional, re-
gional or global conservation and management measures on the high seas.
(4) Nothing in this article affects the exercise by States of their sovereignty over ports
in their territory in accordance with international law.
This article was the result of a lengthy debate during the Conference.
43
In his closing
statement, the President of the Conference, Ambassador Satya Nandan (Fiji), pointed
41 Hayashi, The Agreement for the Implementation of the Provisions of the UN Conven-
tion on the Law of the Sea... relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks, in Ellen Hey (ed.), International Fisher-
ies Law (1998).
42 12 IJMCL 57.
43 Hayashi, EnIorcement by Non-Flag States on the High Seas under the 1995 Agreement
on Straddling and Highly Migratory Fish Stocks, 9 Georgetown International Environ-
mental Law Review (1996), p. 1.
out that securing compliance with conservation measures was the collective responsi-
bility oI all states concerned and that, since the fag state was not always in a position
to undertake enIorcement action, provisions had been developed Ior non-fag state
enforcement as a last resort. Thus, Paragraph 1 lays down the general principle that
the port state has both the right and the duty to promote, on a non-discriminatory ba-
sis, the eIIectiveness oI internationally agreed fsheries measures. The measures are
to be in accordance with international law.
44
The addition of the duty to the right
was suggested by Chile. The exercise of the right may give rise to issues under trade
agreements at the global or regional level.
45
Paragraph 2 amplifes that principle in
stating that the port state may inspect Ioreign fshing vessels voluntarily in its port:
the implied purpose is to check whether the vessel has been respecting high seas
fshery measures. Paragraph 3 goes into Iurther detail in authorising the port state to
prohibit landings of catches taken in such a way as to undermine the effectiveness of
subregional, regional or global conservation and management measures applicable
on the high seas. Paragraph 4 preserves the exercise by states of their sovereignty
over ports in their territory. In the dossier submitted to the Senate by the US Presi-
dent, the following is stated:
Article 23 refects the rule oI international law that port states may also take actions with
respect to Ioreign fag vessels voluntarily in their ports to promote eIIective fshery and
conservation and management.
46
The Senate gave its consent and the US has ratifed the Agreement, which is now in
force.
47
The legislation of the United States also includes the Lacey Act, a statute that
is aimed directly at illicit trade in illegally caught fsh and wildliIe. The Act makes
it unlawful for any person subject to the jurisdiction of the United States to import,
export, transport, sell, receive, acquire, or purchase. any fsh or wildliIe taken, pos-
sessed, transported or sold in violation of any law or regulation of any State or in
violation of any foreign law. Both criminal and civil sanctions are available under
the Act, as well as IorIeiture oI the illegally caught fsh. United States prosecutors
44 Hayashi has argued that the new regime represented by Article 23 is binding upon only
those States which accept it by becoming parties to the Agreement, and is in no way to
be considered as part of customary law. See The 1995 Agreement on the conservation
and management of straddling and highly migratory fish stocks: significance for the Law
of the Sea Convention, 29 Ocean and Coastal Management (1995) p. 51, at p. 63). On
the other hand, some states have introduced legislation in reliance upon their sovereignty
over their ports to prohibit the sale of catches made on the high seas inconsistently with
agreed conservation measures.
45 A point made in the context of GATT by Freestone and Makuch in The EIIective Con-
servation and Management of High Seas Living Resources and the 1995 UN Straddling
Stocks Agreement, (1996) 7 YbIEL 3.
46 104th Congress, 2nd session, Treaty Doc. 104-24, 20 February 1996.
47 There are now (October 2006) 62 states parties, including Australia, Belize, Canada, the
EC and its member states, Japan, Liberia, New Zealand, Norway, the Russian Federation
and the United States.
282 Chapter 14
have used the Lacey Acts provisions extensively to deal with importations of ille-
gally caught fsh. Similarly, Norway has prohibited the landing in a Norwegian port
oI fsh caught in contravention oI provisions laid down by RFMOs, including catches
taken by nationals of States that are not parties to such a RFMO. These prohibitions
apply irrespective oI whether the fsh has been caught in an area under jurisdiction oI
a particular State or in international waters.
48
Following the adoption of the Compliance Agreement and the Straddling Fish
Stocks Agreement, the FAO remained active in different ways. First, the Code of
Conduct for Responsible Fisheries, adopted in 1995, includes in Article 8 on Fish-
ing Operations a paragraph on Port State duties. The principal duty is that Port
States should take, through procedures established in their national legislation, in
accordance with international law, including applicable international agreements or
arrangements, such measures as are necessary to achieve and to assist other States in
achieving the objectives of this Code...
49
It would appear that the reference to inter-
national agreements included the Agreement on Straddling Fish Stocks, concluded
earlier that year. Measures are to be non-discriminatory. Secondly, in 2001, the FAO
adopted an International Plan oI Action to Prevent, Deter and Eliminate Illegal, Un-
reported and Unregulated Fishing, paragraph 55 oI which sets out requirements re-
garding prior notifcation oI entry into a port in order to unload the catch. Paragraph
56 encourages port states to refuse permission to land or tranship catches that have
been taken by IUU fshing.
50
In September 2004, a consultation at the FAO adopted a
Model Scheme on Port State Measures to Control IUU Fishing,
51
A Conference held
in St Johns, Newfoundland in May 2005 alluded to the future possibility of adopt-
ing a legally binding instrument on port state measures of control.
52
The Straddling
Stocks Agreement provided for a review of its operation after four years of its entry
into force. The Review Conference held in 2006 considered the terms of the Agree-
ment, including article 23. According to the Report,
(m)any delegations called for more extensive and coordinated efforts to adopt and im-
plement port States measures, in compliance with article 23 of the Agreement. Support
was expressed for the development of an electronic database of port State measures. A
48 Norwegian regulations of 1993, amended on 29 June 1999, mentioned in T. Lobach,
Port State Control of Foreign Fishing Vessels, FAO Legal Papers Online, May 2002.
49 Adopted by the 28th Conference of the FAO on 31 October 1995.
50 Lobach, op. cit. supra.
51 FAO Fisheries Report No. 759, Annex E, para. 2.5. In an article entitled 'Some Sugges-
tions towards better Implementation of the Straddling Stocks Agreement, Michael
Lodge and Satya Nandan pointed out that '(p)ort state enIorcement oI fag state duties,
along the lines proposed by FAO in its Model Scheme for Port State Measures offers
some oI the best possibilities Ior better enIorcement oI fag state duties, providing port
state inspections are linked to fag state obligations clearly spelt out at the regional level.
20 IJMCL (2005) p. 345, at p. 379.
52 20 IJMCL (2005), p. 609. For comment, see E. Molenaar, 'Addressing Regulatory Gaps
in High Seas Fisheries, loc. cit. p. 533, at p. 566.
number of delegations called for the development of international standards and guide-
lines to prevent the emergence of ports of convenience resulting from the existence of
weaker regimes in some port States. Support was expressed for a global legally binding
instrument on port State measures as a necessary step against ports of convenience. In
that connection, the FAO Model Scheme on Port State Measures was considered as the
international minimum standard for port State control and a necessary reference for the
development of a global instrument.
53
The Review Conference recommended that
States individually and collectively through regional fsheries management organizations
should:
(d) Adopt all necessary port State measures, consistent with article 23 of the Agree-
ment, particularly those envisioned in the 2005 FAO Model Scheme on Port State
Measures to Combat Illegal, Unreported and Unregulated Fishing, and promote
minimum standards at the regional level; and in parallel, initiate, as soon as pos-
sible, a process within FAO to develop, as appropriate, a legally binding instru-
ment on minimum standards for port State measures, building on the FAO Model
Scheme and the International Plan oI Action to Prevent, Deter and Eliminate Ille-
gal, Unreported and Unregulated Fishing.
54
From the time of its adoption (and before its entry into force), the Agreement of 1995
on Straddling Fish Stocks has infuenced the practice oI states in negotiating new
regional arrangements and in the decisions of existing organisations. Most notably,
the Northwest Atlantic Fisheries Organisation (NAFO) adopted a Scheme in Septem-
ber 1997 to Promote Compliance by Non-Contracting Party Vessels with Conserva-
tion and EnIorcement Measures established by NAFO. An important element in this
scheme was an agreement amongst the parties that they would all prohibit landings in
their ports and transhipments in their waters if a foreign vessel, having been inspected
in a partys port, was found to have on board species regulated by NAFO. This would
amount to a concerted exercise of port state powers. There are detailed provisions
for the exchange of information about the activities in the NAFO Regulatory Area of
vessels fying the fag oI non-contracting parties. The purpose oI the Scheme is 'to
ensure the eIIectiveness oI the Conservation and EnIorcement measures established
by the organisation. Other RFMOs took comparable action, and the conventions
constituting new RFMOs such as SEAFO and WCPFC have included provisions
defning port state duties and measures.
VII Concluding Remarks
Port state powers have increased over the past third of a century in several ways.
First, the powers have broadened from inspection towards limited forms of juris-
53 A/CONF.210/2006/15, para. 108.
54 Ibid., para. 43 of the Annex Outcome of the Review.
284 Chapter 14
diction, complementing fag state jurisdiction. There has grown up the concept oI
individual port state jurisdiction whereby a port state is empowered, in certain cir-
cumstances and subject to specifed saIeguards, to enIorce its national laws vis vis
ships voluntarily in port in respect of certain matters that arose before entry into port.
These matters include in the shipping context discharges contrary to international
measures for the prevention of pollution suspected of having occurred within and be-
yond waters under its jurisdiction. In the context oI fshing, prohibitions by port states
oI landings and transhipments oI irregularly caught fsh Irom Ioreign fshing vessels
voluntarily in port are specifcally recognised in article 23 oI the Straddling Stocks
Agreement. Some states, notably the United States, have gone further and criminal-
ised most forms of dealing in US ports with living resources caught contrary to US
or Ioreign laws and regulations. Although not specifcally mentioned in article 23,
such provisions would appear to fall within the scope of its paragraph 4. Secondly,
there has emerged the concept of collaborative port state control whereby national
shipping or fsheries authorities in a particular region have cooperated actively, in a
structured manner, on a regional basis in order to exercise more fully and systemati-
cally their powers oI inspection in regard to Ioreign-fagged ships voluntarily in port.
The port authoritys right to inspect is a part of the general sovereignty of the state
over its ports, including ships temporarily present therein. This right was not ceded to
fag states or abandoned in the relevant international conventions, even though they
were based primarily upon fag state jurisdiction.
These are examples of extra-territorial jurisdiction which have received interna-
tional endorsement in multilateral conventions upon the entry into Iorce oI frst the
LOS Convention and then the Straddling Stocks Agreement, followed by the imple-
mentation of article 218 of the Convention and article 23 of the Agreement in the
domestic legislation of many port states. Implementation took some time in the case
of both article 218 and article 23 indeed, the implementation of article 23 is still
not fully achieved in view of the limited number of parties to the Agreement, but that
number is rising.
55
In short, there has taken place an accretion to state practice both
in exercising port state jurisdiction and in reacting (or not reacting) thereto which is
legally signifcant.
Early in 2006, the High Seas Task Force advocated universal acceptance oI the
concept of a responsible port State. Such a state would be committed to making
the fullest possible use of its jurisdiction under international law in furtherance of
not just its own rights and interests but also the international communitys interests
in sustainable management and conservation of high seas marine living resources.
Once a vessel is in one of its ports, the port state needs to be able to act decisively. To
do this, effective domestic legislation must be in place as well as cooperative mecha-
nisms to coordinate action with other port states, fag states and market states.
56
The
articulation of this concept of furthering the interests of the international community
55 The current list of 62 parties includes some states that during the Conference were reluc-
tant to accept the exercise oI port state jurisdiction in the fsheries sector.
56 Report of the High Seas Task Force: Closing the Net: Stopping Illegal Fishing on the
High Seas, March 2006.
may persuade more states to widen the reach of their legislative nets along the lines
followed by Norway and the United States in the Lacey Act.
Port state powers, which complement without replacing fag state powers, must be
exercised in all cases on a non-discriminatory basis and must be linked to measures
which, having been agreed regionally or globally, are applicable in the area of the
suspected violation. The terms of the Agreement on Straddling Fish Stocks, their re-
cent review, and the measures taken by regional fsheries management organisations
in order to give effect to the principles of that agreement all indicate that port state
jurisdiction and measures of control are likely to increase both in number and scope.
57
In particular, the recommendations of the Straddling Stocks Review Conference, if
acted upon, would not only strengthen the legal basis of port state jurisdiction, but
would also harmonise state practice in exercising port state powers and provide a fur-
ther basis for domestic legislation. Further developments appear to be likely, thereby
substantiating the Iorecast made in 2003 that '(n)on-fag control oI the conservation
and management measures adopted by RFOs is becoming a reality.
58
57 See E. Molenaar, 'Port State Jurisdiction: Towards Mandatory and Compulsory Use, in
D. Freestone, R. Barnes and D. Ong (eds.), The Law of the Sea Progress and Prospects
(2006), Chapter 11, for an excellent survey of recent developments and suggestions for
future trends.
58 R.G. Rayfuse, Non-Flag State Enforcement in High Seas Fisheries (2004) 355.
Chapter 15
Prompt Release of Vessels under the UN Convention on
the Law of the Sea*
I Introduction
The UN Convention on the Law of the Sea (hereinafter the Convention) was prompt-
ed by the desire to settle all issues relating to the law of the sea, since the problems
of ocean space are closely inter-related and need to be considered as a whole.
1
The
Convention is a comprehensive instrument, representing the framework for the mod-
ern law of the sea.
It contains provisions, in greater or lesser detail, on practically every important
issue to do with maritime affairs. In particular, it contains the fundamental rules on
the limits of national jurisdiction, on rights of passage, on the coastal states sov-
ereign rights over living and non-living resources in the exclusive economic zone,
and on the protection of the marine environment. The Convention lays down rules
for the jurisdiction of states to prescribe laws and regulations, as well as to police
and enIorce them. EnIorcement powers over Ioreign vessels, in the sense oI arrest
and prosecution, are recognized on the part oI coastal states and port states. The
* Paper read at a Workshop on 'The International Tribunal Ior the Law oI the Sea: Estab-
lishment and Prompt Release Procedures, held in Hamburg on 17 November 1995,
and frst published in 11 International Journal of Marine and Coastal Law (1996) 165. It
has not been updated. Chapters 32 and 33 review the caselaw on Article 292.
1 Preamble to the Convention. On the interpretation of the Convention, including Article
292, see Virginia Commentary to the 1982 Convention.
288 Chapter 15
Convention contains provisions about the investigation, detention and release of for-
eign vessels. The Convention also contains provisions for the peaceful settlement of
disputes, including the creation of the International Tribunal on the Law of the Sea
here in Hamburg. In the matter of prompt release of vessels, the Tribunal is accorded
a special role by Article 292.
At present, following the adoption of the Agreement on the Implementation of
Part XI in July 1994
2
and the entry into force of the Convention a year ago,
3
many
governments are engaged in the domestic processes oI ratifcation oI the Convention
and the Implementation Agreement.
4
Governments are also giving attention to the
organization oI the International Sea-Bed Authority
5
and the formation of the Tribu-
nal through the elections to be held on 1 August 1996. It is particularly appropriate,
therefore, that this Workshop is being held today in order to take a closer look at the
topic of the prompt release of vessels and crews and the role of the Tribunal, prior to
its inauguration.
This paper presents a legal analysis and assessment of the relevant provisions of
the Convention and related instruments concerning, frst, the investigation and deten-
tion or arrest of foreign vessels and crews and, secondly, their release from detention
or arrest.
II Article 292: General Issues
Article 292 forms part of Section 2 of Part XV (Settlement of Disputes): Section 2
is entitled 'Compulsory Procedures Entailing Binding Decisions. Also included in
Section 2 is Article 290 (Provisional Measures), according to which a court or tri-
bunal may prescribe any provisional measures which it considers appropriate to
preserve the respective rights of the parties to the dispute . Article 292 contains a
special procedure of a somewhat analogous character.
According to its title, Article 292 concerns the prompt release of vessels and crews.
It reads, in part, as follows:
1. Where the authorities oI a State Party have detained a vessel fying the fag oI an-
other State Party and it is alleged that the detaining State has not complied with the
provisions of this Convention for the prompt release of the vessel or its crew upon
the posting of a reasonable bond or other fnancial security, the question oI release
from detention may be submitted to any court or tribunal [emphasis added].
2 Agreement relating to the Implementation of Part XI of the UN Convention on the Law
of the Sea, adopted by the General Assembly of the United Nations on 28 July 1994 by
GA Resolution 48/263.
3 On 16 November 1994, in accordance with Art. 308(1) of the Convention.
4 On 11 April 1996, there were 88 parties to the Convention and 48 states had established
their consent to be bound by the Implementation Agreement (but it was not in force).
5 In March 1996, the Assembly elected the Council of the Authority and appointed Mr S.N.
Nandan (Fiji) as its Secretary-General.
289 Prompt Release of Vessels under the UN Convention on the Law of the Sea
Paragraph 3 confnes the task oI the court or tribunal to 'the question oI release,
without prejudice to the merits of any case before the appropriate domestic forum
against the vessel, its owner or its crew. The term domestic forum would include
a court (civil or criminal) or an administrative tribunal or a similar body. Paragraph
4 authorizes the international court or tribunal to decide whether or not to release the
vessel or its crew. Where it orders release, the court or tribunal is also empowered
to determine the amount oI the bond or other fnancial security. These provisions in
paragraphs 1, 3 and 4 show the strictly limited scope of the Article.
The origins of the provision can be traced back to a US proposal in the Sea-bed
Committee in 1973, according to which the owner or operator of a detained vessel
might have access to the Tribunal in order to seek its release, without prejudice to
the merits of the case against the vessel. The proposal, which may have been in-
spired by experiences with US tuna vessels in the Pacifc, was taken up in President
Amerasinghes informal Plenary Meetings in 1974 and 1975. Those discussions led
ultimately to the formulation of Part XV. In presenting the Convention to the Senate,
the US Administration described Article 292 as an expedited dispute settlement to
address allegations that a State Party has not complied with the Conventions provi-
sions for the prompt release of a vessel .
6
That commentary tends to show that the
original US idea was considered to have been achieved.
In a textual analysis, the frst point to note is that Article 292 applies where the
authorities oI one State Party have arrested or detained a vessel fying the fag oI an-
other State Party. In other words, it establishes procedures which are available only
as between States Parties of the Convention. The Article contains provisions and
procedures which are novel, having appeared Ior the frst time in the Convention. The
Article does not have any antecedents in older treaties and it has not been followed in
practice or by analogy since 1982. In other words, this is not one of the general rules
of international law, which abound in other parts of the Convention.
Secondly, the Convention contains many provisions according to which the au-
thorities of a state may detain or arrest a foreign vessel. For example, there are provi-
sions in Part II about the enIorcement by the coastal state oI its customs, fscal, im-
migration and sanitary laws in the territorial sea,
7
as well as in the contiguous zone.
8
Both Articles 27 and 28, concerning criminal and civil jurisdiction respectively, con-
tain provisions which contemplate, in exceptional circumstances, the possibility of
arrest in the territorial sea. In Part VII, concerning the high seas, there are provisions
about the suppression of piracy,
9
the slave trade,
10
unauthorized broadcasting
11
and
traIfcking in narcotics
12
on the high seas. However, in none of these cases is there a
6 103rd Congress, 2nd Session, Treaty Document 10339, p. 85.
7 Arts. 21 and 25, subject to rights of passage.
8 Art. 33.
9 Arts. 100 to 107 and Art. 110.
10 Arts. 99 and 110.
11 Arts. 109 and 110.
12 Art. 108 and the Vienna Convention on Illicit TraIfc in Narcotic Drugs oI 1988.
290 Chapter 15
provision in the Convention for prompt release of the vessel or its crew, for obvious
reasons. Suspected pirates and drug smugglers cannot expect to be dealt with lightly.
Instead, they face long terms of imprisonment upon conviction before a competent
court. A criminal court is unlikely to grant bail to anyone accused of such a serious
crime. Similarly, vessels captured during an outbreak oI armed confict cannot expect
prompt release since the Convention, including Article 292, is not applicable in such
cases. Vessels detained in accordance with a mandatory sanctions resolution of the
UN Security Council also cannot expect release under Article 292.
Article 97 concerning penal jurisdiction in matters of collision is another provision
which deals with the question oI arrest. Article 97(3) confnes the arrest or detention
oI a ship involved in a collision beyond the territorial sea to the authorities oI the fag
state (thereby maintaining the reversal of the effect of the decision of the Permanent
Court of International Justice in the Lotus Case
13
introduced by a previous Conven-
tion
14
). If this rule were not to be respected, for example because a ship was arrested
by a state whose nationals had suffered death or injury as a result of a collision, there
would very probably be a diplomatic dispute. In that event, the fag state may decide
to submit the issue to an international court or tribunal and to make an application
for provisional measures of protection, including release of the vessel on appropriate
conditions. Article 290 empowers the court or tribunal to order interim or provisional
measures. However, Article 292 would not be applicable. There is no provision in
Article 97 Ior prompt release (because it confnes penal jurisdiction to the fag state)
with the result that it could not be alleged that the detaining state has not complied
with such a provision as is required by Article 292(1).
In major mercantile ports such as Hamburg, vessels are routinely arrested, for ex-
ample, on civil claims in accordance with the Brussels Convention of 1952 relating
to the Arrest of Seagoing Ships.
15
OIten, they are released on suIfcient bail or other
fnancial security being Iurnished in accordance with Article 5 oI that Convention.
Ships may also be seized by judicial process in order to secure maritime claims.
However, the Law of the Sea Convention does not contain provisions about prompt
release in such civil cases: as a result, Article 292 does not apply to them.
To sum up the eIIects oI Article 292 so Iar, the question oI the prompt release oI
a vessel or its crew arises only where the Convention contains specifc provisions
about prompt release which are applicable to that vessel and it is alleged that the
detaining State Party has failed to comply with those provisions. The procedure laid
down in Article 292 is confned to complaints made by a fag State Party about deten-
tion in one oI those specifc cases where the Convention provides Ior release under
bond (or other fnancial security). The availability oI provisional measures, including
release, under Article 290 makes it unnecessary in other cases to apply by way of
analogy the special procedure contained in Article 292. It is not suIfcient merely to
allege simply that the detaining state has not accepted a bond or has not bailed the
13 PCIJ Reports, Series A, No. 10.
14 Brussels Convention of 10 May 1952 (47 UKTS 1960; 438 UNTS 217); Art. 11 oI the
Geneva Convention on the High Seas of 1958.
15 439 UNTS 193.
vessel and crew. The allegation against the detained vessels must relate to one of the
specifc provisions in the Convention about prompt release.
This last Iactor is perhaps not made suIfciently clear in Article 89 oI the draIt
Rules of Court,
16
concerning applications Ior release. Article 89(4) requires the ap-
plicant to specify the time and location and to give a succinct statement of the
Iacts and the basis and reasons Ior requesting release. It should be made clearer, Ior
example, that the applicant must specify also that one of the provisions for release,
that is to say, Article 73, 220 or 226, as the case may be, is relevant.
The allegation of failure by the detaining state to comply with the provisions of the
Convention for the prompt release of a vessel or its crew could be based on several
grounds. Failure could be alleged to have resulted, for example, from:
a total lack of procedures in the detaining state for the release of the vessel on
bail;
a lack oI procedures Ior the type oI charge brought against the vessel;
a failure by the national court to hear and decide upon an application for the
release on bail;
a decision by the national court to refuse release on bail for reasons, given by
the court in accordance with the national law, which the fag state considers to
be contrary to the Convention.
In the frst two examples, there may very well be no national remedy to be invoked
by the shipowner. In the third example, there may, possibly, be a remedy before an
administrative court. In the fnal example, by contrast, there may well exist the pos-
sibility oI making an appeal to a higher court against the decision by the court oI frst
instance. Article 295 provides for the exhaustion of local remedies, where this is re-
quired by international law, beIore a dispute between States Parties may be submitted
'to the procedures provided Ior in this Convention. In the fnal example, it should
not be assumed that Article 295 is inapplicable, especially where a right of appeal is
clearly a real possibility.
III The Substantive Provisions about Prompt Release
The principal provisions of the Convention relating to prompt release are to be found
in Article 73 concerning fsheries oIIences and in Articles 220(7) and 226 concerning
some serious pollution offences.
A Fisheries
Article 73(1) provides as follows:
The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve
and manage the living resources in the exclusive economic zone, take such measures,
16 Report of the Preparatory Commission LOS/PCN/152 vol. I, p. 66.
292 Chapter 15
including boarding, inspection, arrest and judicial proceedings, as may be necessary to
ensure compliance with [its legislation].
Paragraph 2 complements that wide power by providing that:
Arrested vessels and their crews shall be promptly released upon the posting of reason-
able bond or other security.
Although paragraph 2 omits geography, the context in which the paragraph appears is
the exclusive economic zone, which Ior this purpose embraces the exclusive fsheries
zone. In order to Iulfl the obligations under this paragraph, states may maintain in
force a statutory scheme or bailing procedures in Rules of Court or consensual ar-
rangements whereby a sum of money is deposited with a public authority, normally a
court, pending the hearing of a case.
The eIIect oI paragraph 3 is that penalties Ior fsheries oIIences in the exclusive
economic zone may not include imprisonment, unless the states concerned have
agreed otherwise. Paragraph 3 does not rule out imprisonment for wilful refusal to
pay a penalty imposed by a competent court, in the situation where an order to dis-
train the vessel and its gear would not produce suIfcient Iunds to pay the fne.
Many coastal states have enacted legislation which empowers the coastguard or
fshery protection agencies to board and inspect fshing vessels in the exclusive eco-
nomic zone. This is an exercise oI the right recognized in Article 73(1). In domestic
law, it amounts to an exercise of public authority (or police powers) in order to pre-
vent poaching, breaches of the licensing conditions, and violations of other measures
specifed in Article 62(4). Boarding is eIIected as a matter oI right on the part oI the
duly authorized fsheries oIfcer and iI necessary such oIfcers may use reasonable
force to carry out their duties in the face of obstruction.
17
II a fsheries oIfcer fnds
evidence of violations of applicable conservation measures, he is empowered to ar-
rest the vessel in the sense of directing the master to take the vessel to a port in the
coastal state. If he fails to do so, the inspector is empowered to bring the vessel into
port. The fsheries oIfcer may then commence criminal proceedings against the mas-
ter and operator or owner of the vessel before a local court.
Vessels which have been arrested or detained in this way are not free to leave
the port without the permission of the inspector. The crews are not under arrest but,
normally, they remain on board the vessel pending the outcome of the judicial pro-
ceedings. In the UK, they are normally free to move about the port (although there
may be restrictions where arrests are made by naval vessels which escort arrested
vessels back to naval dockyards). The crew may even be free to return home, if they
so wish. It is common practice in British ports to collect the evidence and to hear
17 In particular, under UK law where the safety of the inspectors and those accompanying
them is threatened. A recent French law provides expressly for the use of reasonable
force, see French Loi du 15 juillet 1994 relative aux modalits de lexercise par LEtat de
ses pouvoirs de contrle en mer, Art. 7 oI which authorizes the use oI Iorce, iI necessary,
in accordance with procedures to be laid down by Decree (99 RGDIP 242 (1995)).
charges oI illegal fshing in the appropriate court very quickly. It is in the interests oI
the accused as well as the fsheries oIfcer, the prosecutor and the court to determine
the charges without delay. Such cases are normally heard on the second or third day
aIter the arrival oI the vessel in port under arrest, unless the deIence requests more
time to prepare.
Several regional fsheries organizations, notably the North-West Atlantic Fisheries
Organization (NAFO) and the Commission oI the Convention on the Conservation oI
Antarctic Marine Living Resources, have drawn up inspection schemes according to
which the inspector of one Member State may board and inspect a vessel of another
Member State.
18
Inspector`s powers do not extend to arrest or detention; but, during
an inspection, a vessel is not free to do as the master wishes. The vessel is under a
measure of control, which in the case of NAFO now includes dockside inspection.
The vessel should be released from control as soon as the inspection has ended.
However, Article 292 would not appear to be available in the event oI delay; there has
been no arrest by the inspecting state or the port state and so the question oI posting
a bond has not arisen.
The Agreement for the Implementation of the Provisions of the UN Convention
on the Law of the Sea relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks,
19
adopted by the UN Conference on
4 August 1995, provides for the exercise of jurisdiction over foreign vessels by port
states (Art. 23). Article 4 of the Agreement provides that:
This Agreement shall be interpreted and applied in the context of and in a manner con-
sistent with the Convention.
This general provision is complemented by Article 30(1) which provides:
The provisions relating to the settlement of disputes set out in Part XV of the Conven-
tion apply mutatis mutandis to any dispute between States Parties to this Agreement
concerning the interpretation or application of this Agreement, whether or not they are
also parties to the Convention.
Articles 20 and 21 provide Ior international co-operation, notably through fsheries
organizations and subregional arrangements, in enIorcement. These provisions give
extensive new powers of inspection, including continued inspection and dockside
inspection. The inspectors may prosecute, however, only with the specifc authoriza-
tion oI the fag state (Art. 20(7)). The latter may 'at any time take action to pros-
ecute. Article 21(12) provides:
18 The NAFO Scheme has been reviewed by the EC and Canada in the spring oI 1995 and
by NAFO in September 1995 with the intention of strengthening the Scheme. Inspectors
may remain on board a suspected offender pending the arrival on board of an inspector of
the fag state authorized to order the vessel into port Ior a thorough dockside inspection.
19 UN. Doc. A/CONF.164/37.
294 Chapter 15
Where the vessel is under the direction of the inspecting State, the inspecting State shall,
at the request oI the fag State, release the vessel to the fag State.
It will be seen that here are new arrangements for inspection procedures akin to de-
tention and for release (albeit not for release on the deposit of a bond).
It is for consideration how far these provisions in the Fish Stocks Agreement may
be relevant in relation to Article 292 and the prompt release oI fshing vessels. The
term mutatis mutandis often gives rise to uncertainty in its application. One effect
would be to make Article 292 available as between two parties to the Convention. As
regards substance, the new Agreement is relevant as far as a coastal state is concerned
when it is acting within its exclusive economic zone in respect oI highly migratory or
straddling stocks. In such a case, the coastal state is exercising its sovereign rights
within the meaning of Article 73(1) of the Convention. The position of the inspect-
ing state acting under Article 21(12) is not quite as clear, since it is not exercising
sovereign rights so much as agreed powers under a regional arrangement. There is
a provision for release: what is the legal situation in the event of a delay in effecting
the release? Looking at Article 292(1), which refers to the release of a vessel upon
deposit of a bond, it would appear to be inapposite in the case of an over-extended
inspection since no question oI depositing a bond would have arisen.
Also noteworthy in this Agreement is Article 23, which recognizes the right oI port
states to take non-discriminatory measures to promote the effectiveness of interna-
tionally agreed conservation measures vis--vis fshing vessels voluntarily within the
port. The port state may act under Article 23 of the Agreement in cases which do not
relate to the port state`s exclusive economic zone or its sovereign rights. On a strict
interpretation, the Convention contains no provisions about the bonding and prompt
release oI vessels charged with fshing oIIences on the high seas (as opposed to high
seas pollution offences) by port states, with the result that Article 292 would not be
applicable. This strict interpretation may not have been intended by the Straddling
Stocks Conference.
20
Here again, the true answer may depend upon how much elas-
ticity should be given to the term mutatis mutandis in Article 30(1) of the Agree-
ment. The question whether or not the process oI mutation can include treating high
seas fshing oIIences in the same way as high seas pollution oIIences, must await the
development of state practice or an authoritative interpretation by an international
court or tribunal.
BeIore concluding this survey oI the impact oI Article 292 on fshing vessels, it
remains to consider the criticisms advanced by Judge Oda (a leading authority who
attended the start of the Third UN Conference on the Law of the Sea before his el-
evation to the Bench in The Hague). Judge Oda has argued that the underlying sub-
stantive issue of law enforcement and the immediate issue of prompt release of the
fshing vessel are linked together in practice. He continued:
20 A draft of the Agreement dated 11 April 1995 (UN. Doc. A/CONF.164/22/Rev.1) con-
tained an express reference to Art. 292 in Art. 21(11) concerning enforcement. It was
omitted Irom the fnal text, probably in order to avoid the risk oI conIusion between the
exclusive economic zone (to which Art. 73 applies) and the high seas beyond.
In such situations, it is scarcely conceivable that the International Court of Justice, or
any court or arbitral tribunal, will be in a position simply to issue an order to the effect
that the detained fshing vessels fying the fag oI another State Party should be released,
without dealing with the substantive question oI whether the coastal State would have
been justifed under the Convention in imposing certain fnes or bonds or securities upon
foreign vessels and their crews. What should be asked of the third party institutions is
not that they should issue an order of prompt release of the vessel but that they should
proceed with despatch to a judicial settlement iI and when the amount oI fnes and hence
of the bond or security becomes a disputed issue.
21
Criticism from such an eminent authority must be carefully considered. Clearly, there
will normally be a link between the substantive issue and that of prompt release.
Courts applying Article 292 must seek to avoid dealing with the substantive issue
and to confne the exercise oI their jurisdiction to the sole issue oI release. This is, oI
course, already indicated clearly in Article 292(3). Are there situations where Article
292 could work satisIactorily? There may arise a case where a fshing vessel has been
detained, where there is no sign of a trial, and no possibility under the local legal sys-
tem of release on bail. The owners of the vessel, faced with such circumstances, may
well wish to have recourse to a court or the tribunal under Article 292. The issue in
such a case would not be the substantive one, nor the amount or the conditions of the
bail. Rather, it would be whether or not the vessel should be released on appropriate
terms. In such a case, Article 292 may operate to avoid injustice.
B Marine Pollution
In Part XII, several Articles fall to be considered. First, Article 220 deals with the
enforcement by coastal states of measures relating to the prevention, reduction and
control of pollution from vessels. Paragraphs 3 to 7 lay down graduated responses to
cases where there are clear grounds for believing that violations of international rules
and standards Ior the prevention oI pollution in the exclusive economic zone have
been committed. In particular, paragraph 6 authorizes the coastal state to institute
proceedings, including detention of the vessel, in cases where there is clear objective
evidence of major damage to the coastline or related interests of the coastal state as a
result of a discharge. Paragraph 7 provides:
whenever appropriate procedures have been established, either through the compe-
tent international organization or as otherwise agreed, whereby compliance with require-
ments Ior bonding or other appropriate fnancial security has been assured, the coastal
State if bound by such procedures shall allow the vessel to proceed.
The competent international organization is, oI course, the International Maritime
Organization (IMO). In regard to pollution damage, the IMO has adopted the Con-
vention on Civil Liability for Oil Pollution Damage of 1969 (amended by a protocol
21 (1995) 44 ICLQ 863, at p. 866.
296 Chapter 15
of 1992). Article VI of this Convention provides for the release of an arrested ship, if
the claim for pollution damage arising from an incident could be met from a compen-
sation fund constituted by the owner of the vessel. It is clear, therefore, that Article
220(7) is to be interpreted as having made those funding provisions in the Civil Li-
ability Convention of 1969 into provisions of this Convention for the prompt re-
lease of vessels and crews for the purposes of Article 292. In other words, the Civil
Liability Conventions provisions about prompt release are incorporated into Article
220(7) and Article 292 by reference. However, there is an additional test: the coastal
state must be a party to the Civil Liability Convention, as well as to the Law of the
Sea Convention.
Secondly, Article 226, concerning the investigation of foreign vessels, is an impor-
tant Article. It is one of the safeguards included in Section 7. Sections 5 and 6 of
Part XII concern inter alia the powers of the coastal state to prescribe and enforce na-
tional legislation to prevent, reduce and control pollution of the marine environment.
According to Article 226(1), coastal states and port states are not to delay a foreign
vessel for a longer period of time than is essential for the purposes of investigating
suspicions that the vessel:
may have been engaged in dumping waste material contrary to Article 210;
may have discharged pollutants contrary to internationally agreed measures; or
may have violated the laws and regulations of the coastal state contrary to Arti-
cle 220.
If the investigation indicates that a violation of applicable laws and regulations or
international rules and standards may have occurred, legal proceedings will normally
be brought by a port state or coastal state. However, Article 226(1)(b) requires that
the vessel be released promptly subject to reasonable procedures such as bonding
or other appropriate fnancial security. This provision is similar thereIore to Article
73(2).
Article 226 refers expressly to the terms of Article 216 concerning dumping, Ar-
ticle 218 concerning enforcement of international rules and standards by port states
and Article 220 concerning enforcement by coastal states. Articles 218 and 220 both
contain a reIerence to the possibility oI the posting oI a bond or other fnancial secu-
rity, as does the underlying MARPOL Convention.
22
The absence of any such refer-
ence in Article 216 does not, however, mean that bonding is not available in cases of
dumping. This is made clear by Article 226(1)(b), as well as in the London Dumping
Convention of 1972 on the dumping of wastes. Accordingly, prompt release in ac-
cordance with Article 292 may be sought by the owner or operator of an arrested
vessel who is willing to put up a bond or fnancial security whether in respect oI
suspected unlawful dumping, or unlawful discharge, or violation of applicable rules
and standards for the protection of the marine environment. Article 230 provides for
monetary penalties except in cases of wilful and serious pollution of the territorial
sea where imprisonment of those responsible may be contemplated. In this context,
Article 226(1)(b) may extend to the release oI the oIfcers and crew on bail.
22 Convention on the Prevention of Marine Pollution 1973/1978, (1973) XII ILM 1319.
Article 226 contains another important subparagraph, which complements Arti-
cle 219 (measures relating to seaworthiness of vessels to avoid pollution). Article
226(1)(c) authorizes a port state or a coastal state to reIuse to release a vessel Irom
the port, if circumstances exist which would make a vessel present an unreasonable
threat of damage to the marine environment. If the vessel is in an unsatisfactory
state, the local authorities may make release conditional upon the vessel proceeding
to the nearest appropriate repair yard. In such a case, the fag state 'may seek release
of the vessel in accordance with Part XV. The relevant provision is Article 292(3)
which empowers the court or tribunal to deal with the question oI release. In such a
case, however, a Iactor exists which is absent Irom fshing, or discharge, or dumping
cases.
An issue of International Maritime Law
23
contains an interesting illustration of this
special factor. It is in a note about the case of a Panamanian ship called the Mostoles
which was arrested by the competent oIfcer Ior Port State Control in Rotterdam in
1993 for a suspected violation of MARPOL.
24
According to this note, the owners of
the Mostoles objected to the Dutch Ministry of Transport about the continuation of
the arrest. The Ministry sought the opinion of the Dutch Maritime Board. The latter
Iound that the Port State Control oIfcer had decided (aIter some repairs had been
made to the vessel) to maintain the arrest because it still contained on board some
engine room bilge water which had been pumped into the cargo slop tanks. The of-
fcer decided that he could not authorize the vessel to return to the open sea without
having discharged its slop tanks. He declined an offer by the owners to have them
sealed because the oIfcer had no inIormation as to the next port oI call, so that he
could not warn the authorities there to make sure there was no improper discharge at
sea. Eventually, the owners ordered a lighter to receive the slops.
The Maritime Board Iound that the decisive issue was whether the oIfcer could
reasonably have come to the conclusion that there was a threat of pollution of the ma-
rine environment, if the contents of the slop tanks were kept on board. The vessels
oil record book showed that two illegal discharges had occurred earlier the same year.
Taking into account the fact that the master could not supply the name of the next port
oI call, the Dutch Maritime Board Iound that the oIfcer could reasonably come to the
conclusion that there existed a threat to the marine environment should the content of
the slop tanks be kept on board when the vessel sailed.
This was an interesting set of facts, perhaps an unusual one. Were such a case to
arise in the future in circumstances in which Article 292 was applicable as between
the fag state and the port state, the court or tribunal could hardly close its eyes to the
same sort oI Iactors as were taken into account by the Port State Control oIfcer in
Rotterdam and the Dutch Maritime Board in the case of the Mostoles. Where there
is a well-substantiated threat of damage to the marine environment, permission to
leave port may be refused. Many may consider that such a refusal should be upheld
even though the owners oI the vessel are prepared to put up a bond or other fnancial
23 (1995) 2 International Maritime Law 148.
24 Annex I, Chapter II, reg. 9(6) concerning discharge of oil residues at reception facili-
ties.
298 Chapter 15
security. Prompt release, even on bail or under bond, should not lead to pollution: the
purpose of Article 226(1)(c) is similar to that of Article 219, namely to avoid pollu-
tion. Yet Article 292(3) enjoins the court or tribunal to deal only with the question oI
release and not with the merits of the case, which remains with the domestic court.
Here is a situation, perhaps, similar to the fshing case instanced by Judge Oda. There
may be room for the invocation of Article 292 only if the alleged unseaworthiness or
waste oil is a fgment oI the port authority`s imagination, lacking any evidence.
IV Conclusions
(1) Article 292 provides an expedited procedure before an international court or
tribunal Ior the release oI detained vessels in certain circumstances defned in
the Law of the Sea Convention and related agreements.
(2) Article 292 applies only as between States Parties to the Convention (or to any
other international agreement which incorporates Part XV by reference). It is
applicable even where there exists no wider dispute between the states con-
cerned over the detention of the vessel.
(3) Article 292 does not apply to detentions or arrests made in respect of civil claims
under maritime conventions, or on criminal charges of piracy, smuggling and
the like, or on the basis of a sanctions Resolution, nor to captures during armed
conficts.
(4) Article 292 may clearly be invoked in regard to:
charges relating to illegal fshing in waters under the jurisdiction oI the
coastal (detaining) state;
charges or claims by public authorities in respect of pollution of waters
under their jurisdiction by reason oI unauthorized dumping or irregular
discharges.
(5) Less clear is the situation where the detention is in respect of:
fshing Ior straddling or highly migratory stocks beyond the limits oI na-
tional jurisdiction;
irregularities or defciencies on board a vessel, giving rise to reasonable
fears of unreasonable threats of future pollution of the sea, with the result
that release on bail or bonding is not suited to the needs of the situation
facing the ports authorities.
In such situations, something may turn upon the precise facts.
(6) Where a vessel is detained for two reasons, only one of which falls within the
scope of Article 292, release under Article 292 may not be possible because of
the second ground for detention.
(7) Article 292 may guard against abuses or ineIfciencies in the administration oI
justice in a port in certain cases: justice delayed is justice denied. However,
great care will be required by international courts and tribunals in applying Ar-
ticle 292 in order to avoid interference with the work of the national courts and
similar fora. Given the novelty of the procedures, especially great care will be
needed initially until the judges and other practitioners, at both the national and
the international levels, become familiar with Article 292 and the procedures
thereunder.
(8) The exact relationship of Article 290 (Provisional Measures) and Article 292
will have to be established by practice and precedent. The same goes for Article
295 (Exhaustion oI Local Remedies) in certain situations.
Part 3
The Implementation Agreement of 1994
Chapter 16
Efforts to Ensure Universal Participation in the
Convention*
The tenth anniversary of the opening for signature of the United Nations Conven-
tion on the Law of the Sea (the Convention)
1
fell in 1992. The Convention has
the potential to be one of the major achievements of the United Nations in the legal
sphere. It proceeds on the basis that the problems of ocean space are closely inter-
related and need to be considered as a whole (preamble). The Convention codifes
or re-enacts with modifcations the whole oI the Geneva Conventions oI 1958. It
also develops new concepts which respond to the aspirations and needs of the entire
international community. Much of the Convention is based on the corpus of State
practice, on customary as well as conventional law. These base materials were refned
by the interplay of political forces at the Third UN Conference on the Law of the Sea.
With over 300 detailed articles, the Convention is a major text by any standard. The
* This chapter, based on the text of a lecture at University College, London in December
1992 (with up-dating to 11 May 1993), was frst published in 43 ICLQ (1993). As a
contemporary account of the consultations, it has not been updated. Current information
about the status of the Convention is available on the Website of DOALOS: www.un.org/
Depts/los.
1 The convention was adopted by the Third UN Conference on the Law of the Sea by a
vote of 130 to 4, with 17 abstentions. It was opened for signature on 10 Dec. 1982 and
remained open for signature for two years. During that period, 159 States and other sub-
jects oI international law (including the EC Ior matters within its competence) signed the
Convention. This is the highest number of signatories of any multilateral treaty.
304 Chapter 16
product of over ten years of painstaking work, much of the Convention is a negoti-
ated text oI high quality.
At the time of writing, 55 States have established their consent to be bound by the
Convention
2
by depositing instruments oI ratifcation or accession. The Convention
will enter into Iorce 12 months aIter the deposit oI the 60th instrument oI ratifcation
or accession. Twenty-seven of the States which have established their consent to be
bound are Irom AIrica, almost halI the total. Eleven come Irom Asia and 15 Irom
Latin America and the Caribbean. Only two are European: (Iormer) Yugoslavia and
Iceland.
3
In other words, practically all the States concerned are developing. Many
industrialised States, both signatories and non-signatories, have expressed dissatis-
faction with the terms of Part XI of the Convention and this has led them to refrain
from ratifying or acceding.
4
The result is an anomalous situation. There is an obvious
imbalance between the numbers of developing and developed countries which have
ratifed the Convention, as well as an imbalance among the diIIerent regional groups
which operate in the UN system.
I Developments in State Practice 198293
Subject to one important qualifcation, the tenth anniversary oI the Convention marked
a signifcant advance upon the situation in 1982.
5
There has been great progress to-
2 In mid-1993, 53 had ratifed and two had acceded, having reached independence only
after 1984.
3 The 55 States include six which are landlocked and seven which are or intend to become
archipelagic States within the meaning of Part IV. Three of the States have very short
coasts and nine are island States without being archipelagic States. By way of compari-
son, the four Geneva Conventions of 1958 have 47 (territorial sea), 58 (high seas), 36
(high seas fshing) and 53 (continental shelI) parties respectively, whilst the Vienna Con-
ventions on Diplomatic and Consular Relations have 159 and 133 respectively. There are
now 180 members of the UN.
4 The position of the UK government was stated by the Under-Secretary of State for For-
eign and Commonwealth Affairs in the House of Commons on 2 Dec. 1982 (H.C. Debs,
Vol. 33, col. 404), as follows:
Some provisions are a re-statement or codifcation oI existing international law; some
provisions seek to make new law. Parts of the convention, for example, those relating to
navigation, the Continental Shelf and pollution, are helpful, but the provisions relating to
deep seabed mining including the transfer of technology are not acceptable. They are based
on undesirable regulatory principles and could constitute unsatisfactory precedents. We
need to obtain satisfactory improvements in the deep sea mining regime and will therefore
explore the prospects with interested States. It is our wish that there should be generally
agreed provisions for regulating marine matters and we wish to continue to work with the
international community to achieve that. We could not participate in a seabed regime on
the present terms, and for that reason we could not ratify the convention unless the provi-
sions for the deep sea mining regime become satisfactory. I hope that there will still be an
opportunity for international discussion and co-operation that will lead to changes that will
be acceptable to the United Kingdom and the world community.
5 See Report by the UN Secretary-General A/47/512.
305 Efforts to Ensure Universal Participation in the UN Convention
wards the harmonisation of the maximum limits of national jurisdiction. In particu-
lar, Ior the frst time there appears to be a broad consensus over the question oI the
maximum extent of the territorial sea. There have been extensions to 12 miles from
three on the part of major maritime countries and movements back to 12 by the States
which had previously claimed 50 or even 200 miles. One hundred and twenty-seven
States now claim 12 miles or less and only 17 claims to more than 12 miles remain.
6
On numerous day-to-day issues to do with all aspects of the law of the sea, foreign
ministries around the world have recourse to the terms of the Convention, whether
they are signatories or not. Worldwide and regional conferences and international
organisations, too, regard the Convention as part of the framework of international
affairs. Implementation of its terms is going ahead at the national and international
levels. As a result, there has been greater harmonisation of State practice: the adop-
tion of the Convention must be regarded as a positive development in international
relations. The one qualifcation concerns the deep seabed regime, contained in Part
XI.
II The Work of Prepcom 198393
Resolution I of the Third UN Conference on the Law of the Sea established the Pre-
paratory Commission for the International Seabed Authority and for the International
Tribunal for the Law of the Sea, usually known as Prepcom, which began work in
1983.
7
The mandate of Prepcom was set out principally in Resolution I adopted by
the Conference. In brief, Prepcom has the task of preparing for the establishment of
the Authority, in other words to implement Part XI. A second function is to imple-
ment Resolution II of the Conference concerning preparatory investment in pioneer
activities relating to polymetallic modules. Germany and the United Kingdom de-
cided to participate in Prepcoms work as observers, but the United States did not
attend any of the sessions.
As Prepcom began substantive work, it quickly became clear that the divisions
which had attended the discussions at the end of the Conference over Part XI had not
disappeared. This meant that the so-called hard core issues were put aside until an
appropriate stage when progress could be made
8
and the work of Prepcom was, gener-
6 According to a paper by Dr R. Smith (US Dept. of State) on 7 May 1993, 116 States
had a 12-mile territorial sea and 11 had less than 12 miles; 17 States claimed more than
12 miles; 86 had established an EEZ oI 200 miles maximum, whilst a Iurther 19 had an
exclusive fshery zone oI similar extent: Limits in the Seas, No. 36 Revised.
7 For documentation, see Platzoder, The Law of the Sea: Documents 198391 (13 vols.).
On the work of Prepcom, see Kirsch and Fraser, The Law of the Sea Preparatory Com-
mission after Six Years: Review and Prospects (1988) XXVI Canadian YBIL 119 and
Goralczyk, 'Preparatory Measures Ior the Implementation oI the UN Convention on the
Law of the Sea (1985) 14 Polish YBIL 7.
8 S.N. Nandan, 'The EIIorts Undertaken by the United Nations to Ensure Universality oI
the Convention, in Miles and Treves (eds), The Law of the Sea: New Worlds, New Dis-
coveries (1992), p. 349.(Proceedings of the Law of the Sea Institute, Genoa, 1992.)
306 Chapter 16
ally speaking, limited to straightforward and non-controversial issues. Given that the
mandate was to prepare for entry into force, it was not possible to effect any changes
to the text of Part IX, although where the text allowed for different interpretations, it
was possible to make choices between them. As the years went by and Prepcom was
seen not to be able to make substantial progress, a feeling of malaise developed. In
1992 it was decided to draw up provisional fnal reports Ior consideration and adop-
tion in Kingston in 1993.
9
The intention was that thereafter the preparatory work of
Prepcom would go into suspense until entry into force of the Convention when the
defnitive fnal report would be adopted. At the meeting oI Prepcom which ended on
2 April 1993, provisional fnal reports were adopted by each oI the Iour Special Com-
missions, as well as by the inIormal Plenary. The reports were fnal in the sense that
further discussions will not take place in the Special Commissions similar to those of
the past ten years. The reports were provisional in the sense that when the Conven-
tion reaches 60 ratifcations and accessions or when modifcations to the Convention
are adopted, it will be appropriate to take another look at the reports and to adopt the
defnitive fnal versions. It was agreed that the Prepcom would not reconvene unless
the Chairman decided, after consultation with the Chairmen of the Special Commis-
sions, that there was a substantive agenda of business to discuss.
The work on which Prepcom has achieved some positive results has been the reg-
istration oI pioneer investors, the defnition oI their obligations and the identifcation
of mine sites for the Authorityall this giving effect to Resolution II. Here some
pragmatic agreements have been reached: six pioneers have been registered
10
and
several sites earmarked for the Authority.
11
During the 1970s the general perception in UN circles was that mining the deep
seabed for so-called manganese nodules was both imminent and likely to produce
large profts.
12
Part XI was Iashioned as part oI the New International Economic
Order, designed to beneft developing countries Irom the proceeds oI mining. How-
ever, the reality has turned out to be different. During the 1980s the prices of the key
metals, such as nickel and copper, Iell in real terms as substitutes such as fbre optics
began to be introduced. Moreover, new terrestrial deposits of ores were discovered
and new technology allowed for greater metallic extraction from existing deposits. In
the late 1980s metal prices fell further as a result of the worldwide recession. As a re-
sult, it became clear to many by the end of the 1980s that nodule mining was unlikely
to take place during this century and that it may never be able to produce suIfcient
profts to compete with the production Irom terrestrial deposits. Experience in the
1990s has confrmed these Iorecasts and interest in manganese nodule mining on the
part oI much oI the industry has declined. With the beneft oI hindsight, it can now be
concluded that Part XI was negotiated on the basis of misperceptions of the economic
9 LOS/PCN/L. 103.
10 France, India, Japan, Russia (as the continuation of the USSR), China and a group of
Eastern European States (plus Cuba).
11 These sites, all on the Clarion-Clipperton Ridge in the East Central Pacifc, could be oI-
Iered by the Authority/Enterprise to joint venture partners.
12 See e.g. J. Mero, The Mineral Resources of the Sea (1965).
prospects of the future industry, as well as the date of commencement of mining op-
erations. The practical signifcance oI Part XI in the Convention as a whole may have
diminished, but its signifcance in ideological terms or as a precedent remains.
The general malaise in Prepcom and the change in the market conditions for the
relevant metals led to an increased awareness of the need to tackle in a realistic way
the outstanding hard core issues. An additional factor was the withholding of rati-
fcation or accession by all the industrialised countries. Since mining the seabed is
an industrial process of a highly sophisticated and capital-intensive kind, the absence
of any industrialised or capital-exporting countries would mean that entry into force
of the Convention among developing countries could be ineffective as far as Part XI
was concerned.
Against this background, the spokesman for the Group of 77 (Zambia) made an
important statement at the end of the session of Prepcom in August 1989. Mr Ka-
pumpa stated that:
13
the developing countries continued to be ready to hold discussions, without any pre-
conditions, with any delegation or group of delegationswhether signatories or non-
signatories to the Conventionon any issues related to the Convention and work of the
Preparatory Commission. Their willingness to do so was born out of a genuine desire to
ensure the universality of the Convention.
This statement was welcomed by spokesmen from other groups.
III The Secretary-Generals Consultations 1990May 1993
As a result of these different developments, in 1990 the Secretary-General of the
UN, Mr Perez de Cuellar, undertook some direct soundings with key signatory and
non-signatory States and thereafter decided to convene informal consultations on the
outstanding issues. The Secretary-General invited the permanent representatives in
New York oI some 25 States to take part in inIormal consultations. At the frst meet-
ing, on 19 July 1990, the British Permanent Representative put forward a list of seven
obstacles which the United Kingdom saw in the way of approving Part XI. Two other
topics were added to the list by Germany and by the Soviet Union. As a result, a list
of nine topics was drawn up:
(1) costs to States parties;
(2) the Enterprise;
(3) decision-making;
(4) the review conIerence;
(5) transIer oI technology;
(6) production limitation;
(7) compensation Iund;
(8) fnancial terms oI contracts;
(9) the environment.
13 Platzoder, op. cit. supra n. 7, Vol. X, at p. 472.
308 Chapter 16
At the next meeting, the industrialised countries explained in more detail what their
problems were with the nine topics. In very brief terms, the industrialised countries
pointed out that the costs of the institutions (the International Seabed Authority and
the Tribunal) created by the new Convention would be very high. Moreover, the costs
oI Iunding the Enterprise and its frst mine site would be enormous, given the need
for large amounts of capital for what is a high-technology, high-risk commercial op-
eration. They were also concerned about the advantages given to the Enterprise over
private sector consortia. Indeed, the question was posed whether it was appropriate
in an era oI privatisation to create the equivalent oI a nationalised industry on the
international level in order to mine the seabed, a purely commercial operation, in
competition with the private sectorand, moreover, on favoured terms. Participation
by the whole international community in the exploitation of the common heritage of
mankind could be achieved in other ways such as a system of royalties which would
beneft developing countries, rather than impose a common burden
14
on all.
As regards decision-making (Articles 160161), industrialised countries saw a
need to ensure their adequate representation in the institutions oI the Authority and
the need to avoid decisions, especially on fnancial questions, being taken by a major-
ity which did not include the major industrialised countries and contributors.
The arrangements in Article 155 for a review conference presented problems in
that amendments to the system of mining could be adopted and could enter into
force for all parties, in some cases without their consent. This was objectionable,
particularly for those States with written constitutions which typically provide for the
consent of the State to depend upon a positive decision at the time by the appropriate
constitutional organs.
The provisions for the mandatory transfer of technology to the Authority or the
Enterprise were objectionable to industrialised States since this technology could be
acquired through normal commercial means and governments had no means oI com-
pelling private corporations to transfer future technology to the Authority. Moreover,
many OECD governments were unwilling to accept an obligation to take powers to
compel such transfer.
The provisions regarding the limitation of production in Article 151 were seen
as no longer practical in the light of the changes in metal markets and consumption
during the 1980s. More importantly, perhaps, the whole idea of limiting production
in order to protect land-based producers was seen as contrary to the principle of free
competition and the market. Similarly, the idea of creating a compensation fund as
a protection for developing land-based producer States which may be adversely af-
fected by the onset of seabed production was considered inappropriate. Whilst it was
generally recognised that if a developing land-based producer were to be affected, it
should be provided with economic aid and assistance for such matters as retraining,
it was considered wrong in principle to provide compensation for the loss of competi-
tive advantage between terrestrial and maritime production.
The fnancial terms oI contracts were perceived to be too onerous on corporations,
to the point where investment might be chilled. Finally, the need for research and
14 An expression used by M. Schmidt, Common Heritage or Common Burden? (1989).
development work about standards to protect and preserve the marine environment
from pollution by deep seabed mining was noted.
Many of the obstacles, in other words, had to do with the economic philosophy
underlying Part XI, in particular the implementation oI the New International Eco-
nomic Order, the creation oI new regulatory bodies (including an Economic Planning
Committee) and the lack of reliance upon the market forces. Many of the obstacles
touched the concept oI the Enterprise, including the discrimination in its Iavour and
the provisions for its funding as laid down in Part XI and Annex III. Other obstacles
such as the review conference can be seen as being of a more technical nature.
At the next stage of the Secretary-Generals consultations, the items were exam-
ined one by one with a view to deciding which needed to be tackled at the present
time and provided with a defnitive solution beIore entry into Iorce oI the Convention,
and the remainder which required some attention at the present time, Ior example,
by laying down some broad golden principles but leaving the details to be worked
out later when the economic circumstances affecting deep seabed mining would be
known. The Secretariat produced a series of helpful information notes which set out
the background to the problems and outlined options for possible solutions.
As a result oI these discussions, general agreement on some broad fndings was
reached, as follows.
(1) Costs: when the Convention came into force, not all the institutions provided
Ior in Part XI would be required because there would not be any deep seabed
mining operations. Accordingly, any institution which was required should be
phased in and should be cost effective. These ideas had already been discussed
in the Prepcom. Meetings should be reduced in numbers.
(2) The Enterprise: the enormous cost oI the frst mine site would be met by a
joint venture contract whereby the capital would be provided by the private sec-
tor partner. (Alternatively, the Authority could enter into joint ventures without
there being a need Ior a separate organ called the Enterprise.)
(3) Decision-making: as regards decision-making in the Council, it was agreed to
institute a system oI chambers, each representing an identifable interest such as
producers, consumers and investors in deep seabed mining. Decisions on ques-
tions of substance would be taken by a two-thirds majority of those present and
voting, provided that such decisions were not opposed by a majority in any of
the chambers. Each chamber in other words would be able to block a decision
which it regarded as inimical to its interests. There was also general agreement
to create a Finance Committee which would be separate from both the Council
and the Assembly.
(4) Review Conference: discussion oI the question oI the review conIerence pro-
duced a broad measure of agreement that, were such a conference to be held in
the Iuture, the decision to adopt the text oI any amendments should require there
to be broad support (e.g. by means of the chambered voting system) and that
the provision for entry into force should ensure that States from all chambers or
from all categories were involved. The Vienna Convention on the Law of Trea-
ties should be followed as far as possible.
310 Chapter 16
(5) Transfer of Technology: the subject of transfer of technology seemed to be linked
to the question oI the Enterprise. Were the latter to operate solely by means oI
joint ventures, then it would acquire technology on commercial terms Irom its
private-sector partners. The technology would be provided for each joint ven-
ture and there would be no question oI requiring mandatory transIer.
(6) Production Limitation: discussion of production policies (Article 151) produced
a broad measure of agreement that, instead of attempting to limit production in
order to protect land-based producers, a better approach would be to prohibit
both subsidising production from the seabed and discrimination between ter-
restrial and maritime production. GATT rules should apply.
(7) Compensation Fund: as regards the potential problems in the future of devel-
oping land-based producers, there was general agreement that there should be
some possibility of providing economic assistance to such countries. The inter-
national fnancial institutions already have programmes Ior many oI the coun-
tries concerned and these programmes would no doubt need to be adjusted in
order to take account of any new problems which may arise in the future as a
result of a down-turn in export earnings as a result of new supplies of minerals
coming on the world market from the seabed.
(8) Financial Terms of Contracts: there was general agreement that the system of
fnancial payments to the Authority should be Iair to both sides. Tax rates on the
operator should fall within the range of those prevailing in respect of land-based
mining of similar minerals. There was interest in instituting a system of royalties
on production. The annual fxed Iee which had proved diIfcult in relation to the
pioneer investors should be adjusted in order to take account of possible delays
and the high risks involved in establishing a new industry.
(9) The Environment: fnally, there was general agreement that environmental con-
siderations were of the utmost importance and that the Convention already im-
posed high standards which would be further elaborated by the Authority. This
question was not seen to be one which represented an obstacle in the way oI
ensuring universal participation. Accordingly, it was put aside in the further in-
formal consultations designed to overcome such obstacles, but without in any
way being forgotten.
In 1991 the General Assembly took note of the Secretary-Generals initiative in the
annual resolution on the law of the sea and recognised that:
15
political and economic changes, including particularly a growing reliance on market
principles, underscore the need to re-evaluate, in light of the issues of concern to some
States, matters in the regime to be applied to the Area and its resources and that a produc-
tive dialogue on such issues involving all interested parties would facilitate the prospect
oI universal participation in the convention, Ior the beneft Ior mankind as a whole.
15 GA Res. 46/78, para. 5. See also GA Res. 47/65.
In summing up the results of the second round of consultations at the end of 1991,
the outgoing Secretary-General, Mr Perez de Cuellar, stated that in his opinion a solid
Ioundation had been laid Ior resolving areas oI diIfculty. He suggested that the next
step was to give more precision to the very broad areas of agreement which had been
reached in the second round.
16
His successor decided to continue the consultations on the basis of a new informa-
tion note in June and August 1992. In his introductory remarks, Mr Boutros Ghali
said it was clear that the Convention would be severely damaged if it should enter
into force without the participation of the industrialised States since they were the
major users of the sea as well as the heaviest polluters. He made clear that there was
no question oI renegotiating Part XI but, rather, trying to bridge divergent positions
and fnding acceptable solutions. For the frst time, the consultations were open to all
interested States: the number of participants increased from 30 to about 75.
The consultations were continued in January 1993 on the basis of another informa-
tion note by the Legal Counsel, Dr Fleischhauer. The information note summarised
the results of the consultations held so far on the eight items, one by one. It then
indicated the fndings which previous meetings had reached beIore setting out some
additional points for consideration by the meeting. The information note divided the
eight issues into two kinds: frst, fve items on which some general agreements were
emerging. These items were costs to States parties, the Enterprise, decision-mak-
ing, the review conference and the transfer of technology. As regards the remaining
three items (i.e. production limitation, the compensation Iund and fnancial terms oI
contract), the information note suggested that it was neither necessary nor prudent
at present to go beyond general principles because the fnancial and technological
conditions which may prevail at the time when commercial production from the deep
seabed began were still unknown. Whilst detailed solutions might be found to the
problems represented by the frst fve items, only broad principles were required Ior
the remaining three.
In his introductory remarks, the Secretary-General pointed out that the Convention
would probably enter into force in the course of 1994, with the result that there was
not very much time to consolidate the acquis which it had introduced and to avoid the
risk of the Convention breaking up. He called for a redoubling of efforts on the part
of the participants. He also emphasised that the solutions must safeguard the concept
of the common heritage of mankind. The meeting proceeded to an examination of all
the ideas in the information note.
IV The Question of Form
In the initial consultations, the question oI the Iorm in which any agreement was to
be set out was only briefy discussed. There was mention oI an 'implementing agree-
ment or a Protocol (as in the case of the MARPOL Convention of 1973/1978)
17
and
16 UN Press Release SG/SM/4671 (SEA/1286) oI 13 Dec. 1991.
17 International Convention on the Prevention of Pollution from Ships of 2 Nov. 1973,
amended by the Protocol of 17 Feb. 1978.
312 Chapter 16
a general reluctance to avoid convening the Fourth UN Conference on the Law of
the Sea, perhaps by using the General Assembly which holds an annual debate on the
law of the sea.
Several ideas have been put forward in papers presented at seminars and printed
in learned journals. In a paper given to the meeting of the Law of the Sea Institute
in Tokyo in July 1990, Ambassador J.L. Jesus (Cape Verde)
18
identifed two main
aspects. First, the form should guarantee the legally binding effect of the agreed solu-
tions. Second, it would be necessary to avoid any procedure which would delay entry
into force. He put forward the idea of a protocol which would embody universally
agreed interpretations oI the Convention, thereby avoiding the diIfculties which Ior-
mal amendments to the Convention would raise. He drew attention to Article 311(3)
of the Convention concerning agreements suspending the operation of the provisions
of the Convention among States parties.
Professor Louis Sohn
19
has reviewed two broad options: (1) revising Part XI and
the related Annexes by means of a Protocol, and (2) adopting authoritative interpreta-
tions oI those texts. He noted, frst, that Article 314 oI the Convention provided a spe-
cifc method Ior amending those texts, once the Convention had entered into Iorce.
A maritime precedent is provided by the MARPOL Convention of 1973 which was
amended beIore its entry into Iorce by a Protocol oI 1978, giving rise to Irequently
seen references to MARPOL 1973/1978 which is in force. (Another precedent is
the Protocol which was adopted by the General Assembly in 1966 amending the
Convention on the Status of Refugees of 1951.) Turning to interpretations, Professor
Sohn drew attention to several protocols which have interpreted or clarifed conven-
tions.
In a paper given to the LSIs meeting in 1989, then Under-Secretary Nandan had
suggested that any agreed changes could be incorporated in a protocol which could
enter into force simultaneously with the Convention.
20
In a paper given at the LSIs meeting in 1992, Professor Charney
21
put forward a
three-stage approach. Prior to entry into force, negotiations would be limited to fun-
damental problems such as decision-making. At the second stage, once the Conven-
tion had entered into force, new negotiations would be undertaken designed to create
a resource development system attuned to industrial, economic and political realities
of the time. The third stage would begin once a mining operation had begun.
In an Information Note of 8 April 1993, Under-Secretary General Fleischhauer
reviewed Iour approaches to the question oI Iorm. The Iour approaches were:
18 Statement made on the Completion of the Work of the Preparatory Commission (Tokyo,
July 1990).
19 See Sohn, Procedural Options for Amending Part XI of the United Nations Convention
on the Law of the Sea, paper given to the Center for Ocean Law and Policy, Annual
Conference 19 Apr. 1991.
20 Speech to the Conference of the Law of the Sea Institute (the Netherlands), June 1989.
21 The United States and the Revision of the 1982 Convention on the Law of the Sea
(1992) 23 ODIL 279.
(1) a contractual instrument such as a Protocol making agreed amendments to Part
XI oI the Convention;
(2) an interpretative agreement, containing understandings on the interpretation and
application of Part XI and taking account of developments in international rela-
tions and the mining industry since 1982;
(3) an interpretative agreement for an interim regime, i.e. an arrangement according
to which new ratifying States could exclude most of Part XI from their com-
mitment, accepting only the principle of the common heritage, some interim
arrangements (including an Interim Authority) until mining was about to begin
and an obligation to attend a ConIerence at that time to establish a defnitive
regime; and
(4) an agreement additional to the Convention, based on the results of the consulta-
tions and managing the transition between the arrangements in Resolution II (as
an interim regime) and a defnitive regime worked out by the Assembly oI the
Authority.
These approaches were reviewed during a further round of consultations at the end
of April 1993. In the discussions, there were several common themes. First, the re-
sults of the work should be given a legally binding character. Secondly, the 55 states
which have ratifed or acceded to the Convention should not be obliged to re-submit
the Convention to their legislatures for a second time: a system of implied or tacit
consent was suggested instead. Thirdly, a combination of elements from some of the
above approaches may be needed. Finally, what was required was a political agree-
ment cast in an appropriate legal form. It was decided to hold a longer meeting during
the frst week oI August 1993. The Clinton Administration has decided to participate
actively in these consultations.
22
V Conclusion
There exist many political and legal diIfculties, but two Iacts remain: industrialised
countries have withheld approval, and some modifcations to Part XI and the An-
nexes are needed as a result of changes since 1982 (notably the consideration that
the prospects for early deep seabed mining have deteriorated). There are few if any
real vested interests today in deep seabed mining. New provisions, substitutions and
agreed interpretations could be set out in a supplementary agreement designed to
Iacilitate the implementation oI Part XI. The modifcations may be such as to attract
ratifcation by industrialised countries. The General Assembly, which reviews the law
of the sea every year, could play a role in this process by passing a resolution formal-
ly adopting the text of such an instrument and opening it for accession by all States
so that it would enter into force together with the Convention. Following the case of
MARPOL, reference could then be made to, for example, LOSC 1982/1993.
22 A Press Release dated 27 April 1993 by the US Mission to the UN announced the deci-
sion to take a more active role.
314 Chapter 16
A universally agreed regime for the seas and oceans, which cover 70 per cent of
the planets surface, remains a worthwhile goal. The Convention, which just about
all the States and other entities in existence in the modern international community
have helped to shape, would provide the world with a surer and more stable maritime
regime were it to achieve universal participation: 1993 could be a window of oppor-
tunity in pursuing that goal.
Chapter 17
Further Efforts to Ensure Universal Participation
in the Convention*
IN a short article in this Quarterly entitled 'EIIorts to Ensure Universal Participation
in the UN Convention on the Law of the Sea,
1
an account was given of the ongoing
consultations conducted by the Secretary-General of the United Nations between 1990
and May 1993 with a view to ensuring universal participation in the UN Convention
on the Law of the Sea (the Convention). Following the meeting held in May 1993,
the consultations continued at an intensifed pace throughout the remainder oI 1993
and the frst months oI 1994. During this period, the 60th instrument oI ratifcation
or accession was deposited, thereby triggering the entry into force of the Convention
12 months later.
2
This signifcant development gave added impetus to the eIIorts to
fnd solutions to the outstanding issues in the talks. Eventually, on 3 June 1994, the
Under Secretary-General and Legal Counsel (who was chairing the consultations in
the absence on other duties of the Secretary-General) declared the consultations had
concluded with agreement on the texts of a draft Resolution of the General Assembly,
a draft Agreement and a statement to be made by the President of the General Assem-
bly. Later that month, the Secretary-General submitted his report to the General As-
* First published in 43 ICLQ (1994) 886-893. As a contemporary account of the consulta-
tions, the text has not been updated.
1 42 ICLQ (1993) 654.
2 The 60th instrument oI ratifcation or accession was deposited by Guyana on 16 Nov.
1993, thereby bringing the Convention into force in accordance with its terms on 16 Nov.
1994.
316 Chapter 17
sembly for consideration from 27 to 29 July. The Secretary-General concluded that
the results of the consultations could form the basis for a general agreement on the
issues.
3
The draft Resolution and the draft Agreement were attached to his report.
The Resolution was adopted by 121:0:7 on 28 July. The Agreement was opened for
signature Ior a year and was signed by 41 States and the EC on the next day.
I Brief Recapitulation: 1990 to May 1993
Some essential points from the previous note in this Quarterly may usefully be re-
called. At the outset oI the consultations in July 1990 some nine specifc topics (later
reduced to eight, with the deIerment oI the environment) had been identifed as ob-
stacles to ratifcation oI the Convention by the industrialised States. They were: (1)
costs to State parties; (2) the Enterprise; (3) decision-making; (4) the review conIer-
ence; (5) transIer oI technology; (6) production limitation; (7) compensation Iund;
(8) fnancial terms oI contracts.
Later, when matters of form were addressed, four procedural approaches were
reviewed at the meeting held in April 1993.
4
These four approaches were:
(1) a contractual instrument such as a protocol making agreed amendments to Part
XI oI the Convention;
(2) an interpretative agreement containing understandings on the interpretation and
application of Part XI and taking account of developments in international rela-
tions and the mining industry since 1982;
(3) an interpretative agreement for an interim regime, i.e. an arrangement according
to which new ratifying States could exclude most of Part XI from their com-
mitment, accepting only the principle of the common heritage, some interim
arrangements (including an Interim Authority) until mining was about to begin
and an obligation to attend a conIerence at the time to establish a defnitive re-
gime; and
(4) an agreement additional to the Convention, based on the results of the consulta-
tions and managing the transition between the arrangements in Resolution II (as
an interim regime) and a defnitive regime worked out by the Assembly oI the
Authority.
II August 1993: The Boat Paper
Following the meeting held in April 1993 and in the weeks leading up to the meeting
planned Ior the frst week oI August, opinion among representatives oI States which
had ratifed the Convention hardened against the third option, namely an interpreta-
tive agreement for an interim regime. The view gathered strength that industrialised
3 A/48/950, para. 28.
4 For details, see (1993) 42 ICLQ 654, 663. For Iuller reviews oI the 'Legal EIIects oI
Mechanisms for Adjusting Part XI see papers by Anderson, Treves and Nandan in Nor-
dquist and Norton Moore (eds.), Entry into Force of the Law of the Sea Convention
(1994) at pp. 89, 99 and 119 respectively.
317 Further Efforts to Ensure Universal Participation in the Convention
States should not be permitted to ratiIy with qualifcations excluding much oI Part
XI.
5
Whilst attractive for that reason to some industrialised States, others were un-
happy with the option because it did not provide a regime for deep seabed mining
from the outset, with the result that the industry would be unable to plan and invest
against the background oI a frm legal basis. Accordingly, inIormal contacts between
representatives of some developing and developed States were established in an ef-
Iort to fnd a new way Iorward, not based precisely on any oI the options contained in
the Information Note of 8 April 1993. Instead, an approach was sought which tackled
the eight specifc topics which had been identifed at the outset oI the consultations
as obstacles to ratifcation by the industrialised States. This approach remained true
to the oIIer made by the Group oI 77 in August 1989 to address specifc concerns
expressed by industrialised States.
At an early stage in the meeting in August 1993, an informal group of partici-
pants, drawn from both developing and industrialised States, was formed in an effort
to promote and give expression to this approach. The group
6
agreed to table in the
consultations a draft resolution, for adoption by the General Assembly, to which was
attached a draft agreement on the implementation of Part XI of the Convention. As
was indicated in a footnote, this text did not represent the position of any of them and
they all remained Iree to propose changes to the draIt, a Ireedom which was quickly
exercised in the consultations. There were no names of sponsors on the cover, which
showed a computer-generated boat.Thus were born the so-called Boat Paper and
Boat Group.
The appearance of this text, despite its most unusual status, proved to be a decisive
turning point in the consultations. The initiative passed to the Boat Group, which
continued to meet (with added participation) during subsequent rounds. It became
the main forum for negotiations on key issues. The Secretariat, whose Information
Notes had held centre stage, reverted to their more usual role in the United Nations
as far as paperwork was concerned.
The approach to the outstanding issues represented by the Boat Paper was as fol-
lows. The consultations of the Secretary-General would remain informal until such
time as the Secretary-General submitted a report to the General Assembly.
7
The re-
port on the outcome of the consultations could contain a draft resolution and a draft
agreement for consideration by the General Assembly. The main precedent for this
procedure was the report of the UN High Commissioner for Refugees in 1967 con-
cerning the proposal to amend by means of a protocol the Convention on the Status
5 Art. 309 of the Convention prohibits reservations and exceptions to its terms unless ex-
pressly permitted by other articles.
6 Participants included French (Australia), Nandan (Fiji), Djallal (Indonesia), Treves (It-
aly), Rattray (Jamaica), Sani Mohamed (Nigeria), Koch (Germany), Anderson (United
Kingdom) and Scholz (United States).
7 Res. 48/28 called for such a report to be made. The Secretary-General reported on the
outcome in June 1994 in A/48/950.
318 Chapter 17
of Refugees of 1951.
8
Another precedent in the maritime feld was the Protocol oI
1978 to the MARPOL Convention of 1973.
9
In line with these precedents, the draft
resolution proposed that the General Assembly should adopt an agreement on the
implementation of Part XI. The agreement took the form of a relatively few arti-
cles to which were attached three annexes. The frst oI these would have set out the
agreed conclusions of the Secretary-Generals consultations, based on summings up
or 'fndings on each oI the topics on the agenda, as they had been recorded in the
InIormation Notes produced early in 1993 and subsequently by the Secretariat. The
second annex contained consequential amendments to the text oI Part XI, whilst the
third set out proposals for the creation of the Finance Committee based on the pre-
vious work of the Preparatory Commission for the International Seabed Authority
(PREPCOM) on this topic.
In the discussions which followed the appearance of the Boat Paper, the delegates
referred both to the Information Note and to the new paper. Gradually, however, the
discussions came to focus more and more upon the Boat Paper and less and less upon
the Information Note. The Boat Paper was criticised in many respects, including its
form and phraseology. Annexes 1 and 2 were said (rightly) to be confusing because
they both covered the same ground, albeit in different ways. A second criticism con-
cerned the use of words such as amend and replace in relation to certain terms
in Part XI. This phraseology half suggested to representatives of States which had
ratifed the Convention that Part XI was being renegotiated as a whole, thereby creat-
ing problems with their legislatures which had approved Part XI, in some cases very
recently. In an eIIort to meet these criticisms, two changes were made: frst, a revised
version of the Boat Paper was issued which merged the three annexes into a single
text, divided into nine sections dealing with the eight topics on the agenda and the
Finance Committee. Second, the terminology was changed so as to set out new provi-
sions which were to apply and to specify certain terms contained in Part XI (as well
as the relevant annexes to the Convention) which were not to apply. Other provi-
sions were cast as agreed interpretations of wording contained in Part XI. Regular
revisions of the draft resolution and draft agreement were prepared by a small group
of participants in the light of discussions in the consultations and in the Boat Group.
Towards the end, these revisions were made on a daily basis. The resulting fnal
text was careIully prepared, although there are no oIfcial UN records.
III The Final Rounds of Consultations
During the early weeks of the 48th Session of the General Assembly, in the autumn
oI 1993, the total number oI ratifcations and accessions began to increase steadily
Irom 56, which had been reached upon Malta`s ratifcation earlier that year. Ratifca-
8 OIfcial Records oI the 21st Session oI the General Assembly, Supp. No. 11A (UN Doc.
A/6311/Rev.1/Add. 1, pp. 16). Res. 2198(XXI) requested the Secretary-General to
transmit the text of the Protocol to States with a view to enabling them to accede to the
Protocol.
9 International Convention for the Prevention of Pollution from Ships 1973.
tions were deposited by St Vincent and the Grenadines, Honduras and Barbados in
October 1993. Eventually, on 16 November 1993, Guyana deposited the 60th instru-
ment, thereby triggering the entry into force of the Convention 12 months later, in
accordance with the terms of Article 308.
10
These developments gave added impetus
to the further rounds of week-long consultations which were held in January/Febru-
ary, April and May/June 1994. In these fnal rounds, States which had already ratifed
the Convention had to Iace the fnancial implications oI entry into Iorce, whilst States
which had withheld ratifcation on account oI their dissatisIaction with Part XI were
faced with the prospect of the entire Convention (including those provisions) com-
ing into effect and being applied in practice by the States parties with effect from 16
November 1994.
With these various considerations in mind, a proposal was put forward accord-
ing to which the new agreement would be applied provisionally, on an interim basis
pending its entry into force, by States which so agreed, with effect from 16 Novem-
ber 1994, the date of entry into force of the Convention. A second element in the
proposal was that, during an interim period, the running costs of the International
Seabed Authority (ISA) should be defrayed not by the States parties directly (as pro-
vided by Article 171 of the Convention) but, rather, from the regular budget of the
United Nations, subject to the consent of the General Assembly.
11
These proposals
meant that States which had ratifed would not be Iaced with the fnancial burden oI
the ISA without support from industrialised States, which would not have had time
to ratiIy or accede in any signifcant numbers by November 1994. The latter, in turn,
would be able to attend meetings of the Assembly of the ISA from its inception if they
consented to the provisional application of the new agreement. They would have the
same rights as members, including the right to sponsor companies interested in deep
seabed mining and to stand for membership of the Council of the ISA. Provisional
application is provided Ior in Article 7 oI the new agreement and the fnancial issues
are to be regulated by section 1 of the annex to the new agreement.
IV The Terms for Entry into Force of the NewAgreement
In order to meet the concerns oI States which had already ratifed the Convention,
the provisions in the proposed agreement about its entry into force provided a special
option for such States. They could establish their consent to be bound by the agree-
ment by means of a system of tacit consent. At a later stage in the consultations, the
arrangement required a prior signature oI the agreement in the case oI States which
had ratifed the Convention. Signature was perceived to give added certainty to the
process of establishing consent. These arrangements were set out in Article 5 of the
agreement.
In order to meet the concerns oI developing countries, both ratifers and non-rati-
fers alike, that their concessions might still Iail to attract ratifcations Irom major
10 The 60 States comprised 58 developing countries, Iceland and (former) Yugoslavia.
11 The Fifth Committee of the General Assembly recommended acceptance in the light of
the programme budget implications in A/C.5/48/80 of 17 June 1994.
320 Chapter 17
countries which had shown interest in deep seabed mining, a special requirement was
included in Article 6 about entry into Iorce. Entry into Iorce oI the agreement requires
40 ratifcations, etc., oI which at least seven must be States to which paragraph 1(a)
of Resolution II of the Third UN Conference on the Law of the Sea applies (namely
Belgium, Canada, France, Germany, Italy, Japan, the Netherlands, Russia, the United
Kingdom and the United States, plus India and China: South Korea joined this group
in August 1994). Five of the seven must be developed States. Such States would
contribute a signifcant amount to the cost oI the ISA, especially iI they included the
United States, Japan, Germany, France and the United Kingdom.
V Some Issues of Substance
The consultations were complicated by the need to integrate into the new arrange-
ments the States mentioned in Resolution II, especially the Registered Pioneer In-
vestors.
12
The agreed solutions are contained in paragraph 6 of section 1 of the
annex to the new agreement. The system of sponsoring, contained in Resolution II,
is retained as regards those potential applicants which have not become Registered
Pioneer Investors. The latter are given 36 months from the entry into force of the
Convention in which to request approval oI a plan oI work Ior exploration. In order
to ensure equality oI treatment between Registered Pioneers and potential applicants,
provision is made for the making of similar and no less favourable arrangements for
both groups.
At a relatively late stage in the consultations, preoccupations with the protection of
the marine environment resurfaced. Although this topic had not been included in the
list oI eight problem areas because it was not an obstacle to any State`s ratifcation, it
had been agreed at an early stage that the environment was an important factor which
would deserve the closest attention from the ISA on a constant basis. The agreed
solution was to strengthen the references in the draft agreement to environmental
protection and environmental impacts, particularly the arrangements contained in
section 1 of the annex regarding applications for plans of work.
One of the most controversial problems throughout the entire consultations was the
question oI the Enterprise. The developing countries attached importance to the crea-
tion oI an eIIective Enterprise which would help to realise the concept oI the common
heritage of mankind directly. On the other hand, developed countries considered that
the Enterprise should work by way oI joint ventures with private sector consortia, but
only once mining had become an economic and practical reality. This is unlikely to
be beIore the frst decade oI the next century. A compromise was reached according
to which the Secretariat oI the Authority will perIorm the Iunctions oI the Enterprise
until that time, when the Council will take up the issue of the independent functioning
oI the Enterprise. The system oI joint ventures is recognised in Part XI itselI
13
and
12 In particular, some of the obligations accepted by Pioneer Investors at the time of regis-
tration fell to be reconsidered in the light of changes proposed in the draft agreement, e.g.
fnancial terms.
13 See Art. 11 of Annex III.
the emphasis on the system oI joint ventures in section 2 oI the annex simply refects
the fact that the Authority has several mine sites on the Clarion-Clipperton Ridge.
14
These could be oIIered in the Iuture, on commercial terms, by the Enterprise to con-
sortia interested in mining the area.
The delicate problems of the rules for decision-making, especially in the Council,
were solved by new arrangements which encourage continuing negotiations until
a consensus can be reached. If such efforts fail, then decisions in the 36-member
Council are to be taken by a two-thirds majority of members present and voting,
provided proposals are not opposed by a majority in any of the chambers represent-
ing identifed interests. These chambers consist oI the consumers oI minerals Irom
the deep seabed, investors in deep seabed mining, the major net exporters of minerals
derived Irom the area and, fnally, the group oI developing countries represented in
the Council. At the end of the consultations, a statement was agreed for delivery by
the President of the General Assembly before the adoption of the draft Resolution
and the draft Agreement to the effect that, once the Convention has achieved univer-
sal participation with Iull membership Irom each oI the fve UN regional groups Ior
electoral purposes, it would be understood that each regional group should have at
least three members in the Council.
15
The constitutional problems experienced by several States with the terms of Article
155 concerning the review conference proved rather intractable. Various suggestions
Ior modifcation oI the arrangements Iell Ioul oI one or other constitution, until in the
end it was decided that paragraphs 1, 3 and 4 of Article 155 should be disapplied.
This means that the obligation laid upon the Assembly to convene a review confer-
ence dissolves. The possibility of amendment of Part XI and the new agreement is
kept open by applying Articles 314, 315 and 316, but subject to the safeguards in
Article 155(2).
One of the main objections to Part XI was its regulation of the transfer of technol-
ogy. Industry objected to Article 5 of Annex III, which they saw as calling for the
mandatory transfer, on commercial grounds: governments objected on grounds of
principle and precedent. The solution to this issue was found from the joint venture
system. Section 5 of the annex provides for transfer on commercial terms on the
open market or through joint venture arrangements.
Production limitation under Article 151 is to be replaced by a production policy in
section 6 of the annex. The new policy is to be based on sound commercial principles
and the rules of GATT/WTO resulting from the Uruguay Round.
The fnancial terms oI contract contained in Article 13 oI Annex III were viewed
by industrial interests as being too onerous. Given the delay before the start of com-
mercial production, it was considered unwise to lay down specifc terms at the present
stage. Instead, some golden principles were agreed which will serve as the basis
14 These sites were reserved to the Authority upon the registration of Pioneer Investors
under the term of Res. II, para. 3.
15 This arrangement met the preoccupations oI the Eastern European Group, notably Russia
and Ukraine. However, Russia remained dissatisfed on other issues, notably the terms
for Registered Pioneer Investors.
322 Chapter 17
for further negotiations in the future when the economic circumstances of mining are
better known. In the meantime, fees have been reduced or deferred.
VI Legal Status of the Agreement
If adopted by the General Assembly, the agreement would be opened for signature for
one year beginning on 29 July 1994. The agreement provides that the annex thereto
is an integral part of the agreement. The fundamental obligation on States parties is
to implement Part XI in accordance with the terms of the agreement. In the event of
any inconsistency between its terms and those of Part XI, the provisions of the agree-
ment are to prevail and the two are to be interpreted and applied together as a single
instrument. Provision is made for States to express their consent to be bound by the
agreement by the usual methods oI signature not subject to ratifcation, or signature
subject to ratifcation Iollowed by ratifcation, or signature and recourse to the tacit
procedure described above, as well as by means of accession. The last addition made
to the text at the very end of the consultations was the usual testimonium, according
to which the signatories have to furnish full powers before appending their signatures
to the agreement.
The agreement is clearly a treaty, governed by the Vienna Convention on the Law
of Treaties. Although it does not expressly amend any provisions of Part XI, there is
no doubt that the agreement will result in the terms of Part XI being implemented,
interpreted and applied in a new way, as described in the annex. International courts
and tribunals, as well as international organisations, called upon in the future to inter-
pret or apply the terms of the Convention will be legally obliged to have regard also
to the terms oI the agreement. Thus, the ISA and the United Nations will be required
to apply the agreement together with Part XI. The same is true for the International
Tribunal for the Law of the Sea, created by Part XV of and Annex VI to the Conven-
tion, as well as for the International Court of Justice.
VII The Adoption of the Resolution and Signature of the Agreement
On 27 July, the resumed 48th session of the General Assembly took up again Agenda
item 36, Law of the Sea. On behalf of the co-sponsors, Mr Nandan (Fiji) introduced
the draIt Resolution which met with general support Irom subsequent speakers, apart
from Russia which voiced concerns especially about the transitional terms for regis-
tered pioneer investors. The Resolution was adopted without change by a vote of 121
to 0, with 7 abstentions, on 28 July (G.A. Res.48/263). On 29 July, the Agreement
was opened Ior signature Ior one year at UN Headquarters in New York. The Agree-
ment was signed by 41 States at a ceremony in the General Assembly Hall. In the
Iollowing days 8 Iurther signatures were aIfxed and the Prepcom took account oI the
Agreement in adopting its Final Report (LOS/PCN/115).
16
VIII Concluding Remarks
The origins of the Secretary-Generals consultations can be traced back to the state-
ment made by the Chairman of the Group of 77 at the end of the meeting of the Pre-
paratory Commission in the summer of 1989.
17
This led directly to the opening of the
consultations during 1990, amid some trepidation from all sides. The consultations
started out with a specifc agenda oI eight problems perceived by developed countries
and, although other suggestions about the best approach were made from several
sources, in the end it was this approach based on Iollowing the specifc agenda and
fnding solutions to the eight problems which Iound expression in the draIt agree-
ment and its annex. Implicit in this approach was acceptance of both the principle of
the common heritage of mankind, as it would be articulated, and a UN-administered
system of mining. Gradually, the industrialised countries were able to demonstrate
their wish to negotiate seriously, especially following the election of the Clinton ad-
ministration.
18
The member States oI the European Union, together with the Union
itselI, were staunch supporters oI the process. The deposit oI the 60th ratifcation in
November 1993 was greeted with diIIerent reactions Irom ratifers and non-ratifers,
but in the event it turned out to be helpful in that it provided all concerned with a
target date, November 1994, Ior fnishing the consultations and drawing up the nec-
essary new arrangements. Although hard bargaining continued until the very end of
the consultations, they took place in a constructive, non-confrontational atmosphere
between the different interest groups, notably between the Group of 77 and the indus-
trialised countries. The new Agreement takes account of the political and economic
changes, including a growing reliance on market principles and similar market-orien-
tated approaches to economic issues, which have taken place since 1982. As a result,
there now exist much improved prospects for universal participation in the UN Con-
vention on the Law of the Sea, together with the Agreement on the Implementation of
Part XI: 1994 could be a milestone towards the attainment of that goal.
16 Signatories included the United States, all 12 member States oI the European Commu-
nity (as well as the EC itselI), Japan, China, India, Indonesia, Jamaica, Brazil, Argentina,
Canada, Sweden, Australia, New Zealand, Poland and Algeria.
17 42 ICLQ (1993), 654, 657.
18 On 30 June 1994 the US Secretary of State announced the decision to sign the new agree-
ment (New York Times, 1 July 1994). On 20 July, British Ministers informed Parliament
as follows: We will vote for the Resolution and, should it be adopted by the UN General
Assembly, sign the Agreement. We intend to ratify the Agreement and accede to the UN
Law of the Sea Convention in due course and once the necessary procedures are com-
plete. The Governments objections to Part XI of the Convention have been satisfactorily
addressed in the new Agreement. The remainder of the Convention is generally helpful to
UK interests. (Hansard, Lords, Vol. 557. Written Answers Col. 29). A similar statement
was made in the House of Commons.
Chapter 18
The Role of the International Lawyer in the
Negotiation of Treaties*
Introduction
The practice of international law involves the Legal Advisers to the Foreign and
Commonwealth OIfce (FCO) in negotiations on a regular basis. These negotiations
concern all manner of issues: leading examples include claims (notably in respect of
nationalised property); fsheries; air services; deIence cooperation; draIt Resolutions
in the General Assembly and the Security Council on a wide variety of politico-
legal questions; diIIerences concerning the interpretation or application, including
the non-perIormance, oI existing treaties; and, above all, negotiations leading to the
conclusion of new treaties. In many instances, these treaties have to do not only with
substantive arrangements for inter-governmental cooperation or for the settlement of
a difference but also with the constitution of an international organisation. The focus
in this paper will be on the negotiation of new treaties, including the sometimes deli-
cate task of making amendments or adjustments to existing treaties, drawing upon
experiences as one of the Legal Advisers.
The negotiation oI treaties represents a signifcant part oI diplomacy. Thus, Arti-
cle 3 of the Vienna Convention on Diplomatic Relations lists Negotiating with the
Government of the receiving State among the functions of a diplomatic mission. In
* This chapter, the text of a lecture given at the British Institute of International and Com-
parative Law, was frst published in C. Wickremasinghe (ed.), The International Lawyer
as Practitioner, BIICL 2000, Chapter 2. It has been edited slightly, but not updated.
326 Chapter 18
the era of the United Nations, international relations have been transformed by the
conclusion of innumerable bilateral and multilateral treaties relating to many differ-
ent matters. For those involved, whether diplomats or lawyers, in the processes of
concluding such treaties, the negotiations are always challenging, often creative and
rarely dull. As Satows Guide to Diplomatic Practice puts it,
there are few more rewarding things in diplomacy than a successful negotiation from
which both or all sides derive some satisfaction. For mutual satisfaction is the best guar-
antee of permanence.
1
The point was put in a slightly different way by Sir Harold Nicholson, as follows:
Diplomacy is the art oI negotiating documents in a ratifable and thereIore dependable
form.
2
Nicholson was drawing a distinction between representational or conference diplo-
macy (specifcally, debating in an organisation such as the League oI Nations) and
conducting diplomatic exchanges intended to lead to a written agreement among the
governments taking part. Negotiations, whether for the conclusion of a treaty or for
the settlement of a difference, typically provide a stream of interesting legal issues
which the negotiators have to try to solve. Clearly, international lawyers play im-
portant roles in the negotiation of treaties, both bilateral and multilateral, including
treaties drawn up under the auspices of the United Nations and other international
organisations.
I The Role of the International Lawyer in Applying the Law of Treaties
A The Positive Impact of the Vienna Convention of 1969
The Vienna Convention on the Law of Treaties represents a pillar of modern interna-
tional law. It was largely a work oI codifcation, a topic which lies beyond the scope
of this paper.
3
In the present context of the negotiation of treaties, it is relevant to note
simply that the Convention gives very great assistance to the international lawyer.
Surprisingly often, doctrinal differences born of constitutional factors give rise to
obstacles to progress in negotiations.
In overcoming such problems, instead of having to rely solely upon the writings
of publicists such as Lord McNair and Professor Reuter (excellent as their respective
1 Satows Guide to Diplomatic Practice, 5th edition by Lord Gore-Booth (London, Long-
man, 1979), p. 350.
2 H. Nicholson, Peacemaking (1919).
3 Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd Ed. (Manchester
University Press, 1984).
327 The Role of the International Lawyer in the Negotiation of Treaties
works, Law of Treaties
4
and Introduction to the Law of Treaties
5
remain), today the
lawyer engaged in negotiations has a near-comprehensive code of rules readily to
hand in the Vienna Convention of 1969. In practice, all negotiators refer to it in their
day-to-day work, irrespective of whether a particular government has established its
consent to be bound by it as a treaty. The Convention has achieved the status of being
an integral part of the basic international legal order. Its terms cover the conclusion
and entry into Iorce oI treaties in suIfcient detail to permit in practice the speedy
resolution, either around the table or by suitable means of telecommunication, of
those problems which typically arise in draIting the fnal clauses oI both bilateral and
multilateral treaties. It has also Iacilitated some simplifcation oI fnal clauses: Ior
example, there is less often a need to spell out the tasks of the depositary.
B Reservations to Multilateral Conventions
If there remains a weakness in the Convention, it lies in the various rules on reserva-
tions and it is most appropriate that the ILC has taken up this topic again.
6
To my
mind, there is something rather old-fashioned about the whole concept of reserva-
tions. In the case of bilateral treaties and those with restricted participation, attaching
a unilateral reservation to an instrument oI ratifcation oIten represents nothing less
than an attempt to reopen the prior negotiations with a new demand or to alter the bal-
ance of the agreement reached across the table. At the multilateral level, the making
of reservations may be symptomatic of a partial failure in the negotiating process, for
example, the premature closure of debate and recourse to voting. The better way in
global negotiations is frst to talk problems through in all their details, in both Iormal
and informal meetings, accommodating those positions or points of view which are
found by the negotiators to be acceptable, perhaps as parts of a package, and then to
prohibit reservations to the fnal text oI the convention. It is, oI course, also possible
to negotiate special terms according to which certain specifed exceptions may be
made upon ratifcation and reservations to the remainder oI the text are prohibited, as
was done in the case of the Convention on the Law of the Sea. After all, why should
there be wide scope for making reservations to law-making conventions, which are
akin to primary legislation at the global level and which are intended to bring clarity
and uniformity to the law and State practice? The existence of reservations in certain
cases tends to weaken the fabric of the very law which the particular convention was
intended to strengthen. At the very least, reservations reduce uniformity and create
uncertainty in the law. One of the strengths of the Charter of the United Nations,
which is of course not only a constitution but also a statement of fundamental legal
principles, lies in the absence of reservations to its terms. The discouragement of
4 The Law of Treaties, (Oxford, Clarendon Press, 1961). Reprinted 1998.
5 Introduction to the Law of Treaties, 2nd English edition, (Kegan Paul International,
1995).
6 In 1994, Professor Alain Pellet was appointed Special Rapporteur for the topic. For ac-
counts of the work of the Commission, see the Reports on its 48th and 49th sessions
(A/51/10 and A/52/10).
328 Chapter 18
reservations, at least in the case of law-making conventions, is the direction in which
negotiators or law-makers should head in the future, even if the result in some cases
may be to prolong negotiations whilst diIfcult issues are resolved. It would be a sign
of a maturing legal system to witness a decline in the numbers of reservations in the
coming years.
C Questions of Form
In regard to negotiations which are intended to produce a formal text, a perennial
issue Ior the international lawyer is the question oI Iorm. The frst issue is that oI
the designation of the parties, whether Heads of States (now rare), States or Govern-
ments. Somewhat related is the making of the choice between a single instrument,
whether in the form of a treaty, agreement or convention, or two or more instruments
(such as an exchange of notes or an agreement and supplementary protocol). These
choices should be made in the light of both legal and presentational factors. The le-
gal factors include the constitutional and Parliamentary implications for the govern-
ments concerned. Clearly, a form which would facilitate internal processing is to be
preIerred over one which is likely to become Iraught with Parliamentary diIfculties.
Apart from such considerations, the precise choice of form may depend upon presen-
tational Iactors and an assessment oI the political signifcance oI the subject-matter.
Issues which are being regulated once and for all, such as boundaries, are best dealt
with by a fairly solemn type of instrument such as a treaty or agreement. Any techni-
cal or related questions can be dealt with in annexes or possibly in protocols. The
latter course would require more than one signature and could lead to the adoption oI
a Iree-standing instrument. Arrangements Ior cooperation on technical questions are
best couched as agreements or conventions. Temporary or short-lived arrangements,
or ones relating to purely technical matters, are often set out in exchanges of notes or
letters. Despite the variety of designations of treaty-type instruments, terminology is
not a determinant factor as to the character of an international agreement.
7
They
are all equally binding in law and in accordance with their terms.
A prior question which may oIten need to be asked by the international lawyer is
whether it is the intention to conclude a treaty or agreement, or to adopt instead the
text oI something else such as a political declaration, a communiqu, a gentlemen`s
agreement or a non-binding memorandum of understanding (MOU). The treaty drafts-
man has to carry out the intentions indicated by political decision-makers and to draft
an appropriate text for the client Department. It is well known that in British practice
many arrangements oI a lasting nature, notably in the feld oI deIence cooperation,
are cast in the form of MOUs. Such texts, many of which run to some length, create
relationships lasting several years and normally carry with them some legal effects.
They are usually not presented to Parliament as White Papers, nor registered with
7 Per the ICJ in the South West Africa cases (Preliminary Objections), [1962] ICJ Rep., at
p. 330.
the UN under Article 102 of the Charter.
8
As a result, the texts are not widely known
and their existence may even be overlooked by non-specialists. Other Governments
follow a different practice and conclude open treaties which are then supplemented
by secret arrangements such as technical annexes. A rare British example of this
latter model is the Polaris Sales Agreement with the United States.
9
It is beyond the
scope oI this short article to explore Iully the question oI the legal status oI the typi-
cal MOU.
10
However, two points may be noted. At the Vienna Conference, the Brit-
ish delegations effort
11
to add to the proposed defnition oI the term 'treaty in the
Vienna Convention an express reference to the element of intention to create legal
rights and obligations proved to be unsuccessful. As a result, the element of intention
has to be regarded as being included in the phrase governed by international law
in that defnition. Secondly, the Treaty Series oI White Papers contains more than
one instrument called a Memorandum of Understanding with other Governments.
These MOUs were signed on behalf of the United Kingdom under Full Powers and
they clearly represent treaties with legally binding rights and obligations.
12
As a re-
sult, some doubt exists over the viability in certain cases of the doctrine that in order
to avoid concluding a treaty all that has to be done is simply to cast the text as a MOU
and to avoid using words such as shall, agree and undertake. A more explicit
statement oI intention may be required. For example, an international tribunal Iaced
with such a case may decide to look at the instrument and the arrangement it records
in the round and to consider the substance as well as the form of the arrangement.
The good international lawyer and negotiator should address in each case the ques-
tion of the best form of instrument available to meet the wider political objectives
and should not push too Iar the doctrine that the use oI an MOU is suIfcient in itselI
8 Aust, The Theory and Practice of Informal International Instruments, 35 ICLQ (1986)
787. Rosenne, Developments in the Law of Treaties 19451986, (Cambridge, Cambridge
University Press, 1989) reviews the form and function of the non-binding instrument, at
p. 107ff.
9 UK Treaty Series No. 59 (1963), Cmnd. 2108; 474 UNTS 49.
10 Jennings and Watts (eds.), Oppenheims International Law, 9th Edition, (London, Long-
man, 1992) argue that States cannot avoid an instrument being a treaty merely by
giving it a title suggesting otherwise. They may, however, still adopt instruments which
do not constitute treaties, provided that as a matter of substance and not of mere nomen-
clature the instruments are appropriate to such a conclusion. (p. 1209). The learned
editors question the ILC`s statement (YBILC (1966) Vol. II, p. 188) that a Memorandum
of Understanding was undoubtedly an international agreement.
11 First in written comments on the International Law Commissions preliminary draft ar-
ticles (contained in Volume II of the Yearbook of the ILC, 1962) and secondly in a state-
ment by Sir Ian Sinclair in the Committee oI the Whole (OIfcial Records, 2nd session, p.
228). The written comment was that the element of an intention to create legal obliga-
tions has not been, but should be, included in the defnition.
12 For example, Memorandum of Understanding between China and Belgium, Canada,
Germany, Italy, Netherlands, UK and US on the Avoidance oI Overlaps and Conficts
relating to Deep Seabed Areas of 22 February 1991, UK Treaty Series No. 52 (1991), Cm
1628.
330 Chapter 18
to signify a non-binding instrument. The substantive content of the instrument is an
important factor. Moreover, an instrument which takes the form of a memorandum
of understanding may still produce, by its terms, some legal effects and be subject
to the law oI treaties, Ior example in considering questions having to do with its true
interpretation and application.
D Treaty Formalities
If the client Department does wish to have a treaty, the practice of the FCO remains
that the texts of all treaties must be shown to the Legal Advisers in good time. In the
UK Treaty Series of White Papers for 1995, there were over 110 treaties, and the
number for 1996 was 108, an average of over two treaties per week throughout the
year. This task of advising upon the drafting and conclusion of treaties of all kinds
forms one of the core activities of the Legal Advisers. The overall practice is coor-
dinated by the legal adviser to the Treaty Department, always with the availability
of help from more senior colleagues. Advice is given not only on drafting (often in
the Iorm oI re-draIting), but also on questions oI Iorm (would the subject matter be
handled better in the Iorm oI a simple Exchange oI Notes or more elaborately as an
articled Agreement?). In addition, advice is given, in the case of articled agreements,
on the Final Clauses to do with signature, ratifcation, entry into Iorce, provisional
application, duration, termination and the like. Another issue for consideration in the
case of many global arrangements for inter-governmental cooperation is whether or
not the treaty should be made applicable to the dozen or so remaining British over-
seas territories, how their authorities should be consulted, and how their participation
should be signifed and eIIected in the event oI a positive response.
In this general role in the processes of concluding treaties, the Legal Advisers are
often not directly involved in the actual conduct of the negotiations. They have, none-
theless, a vital role in advising on points of treaty law and practice, in drafting, and
more generally in drawing attention to any legal problems which they may identify.
These days, the issues may be ones oI international law, oI EC law (including ques-
tions of national and Community competence) or of UK law. The advice goes beyond
the conclusion of treaties, extending also to the presentation of the text to Parliament
in accordance with the so-called Ponsonby Rule,
13
as well as to the appropriate means
of implementing the treaty through legislative or administrative measures.
Legal Advisers are often included in delegations headed by Ministers or senior
diplomats for bilateral, regional or multilateral talks. There they play basically the
same role as in their day-to-day advisory work in the FCO, but by being on the spot in
negotiations they can make sure from the outset that the drafting does not start from
the wrong basis and proceed in a wrong direction. In multilateral work, they often
serve on drafting committees and can help to ensure that the different versions of the
convention carry approximately the same meaning.
13 Practice was examined during debates in the House of Lords on the Treaties (Parliamen-
tary Approval) Bill in 1996: extracts are set out in G. Marston (ed.), United Kingdom
Materials in International Law, in 67 BYIL (1996) 746ff.
E Treaty Architecture
Turning now from the routine work of the international lawyer to the conduct of com-
plex political negotiations, the role of the legal adviser may, in some instances, take
on new dimensions. Here, the role may well extend Irom the usual questions oI Iorm
and drafting to the more challenging tasks of conceiving and building a structure of
instruments which becomes the fnal treaty or settlement iI the talks are successIul.
This is the important role of the international lawyer as, in effect, the architect of a
treaty. A good example is the package oI measures adopted by the Edinburgh Euro-
pean Council in order to meet Danish concerns over the Maastricht Treaty. The task
was to modify the effects without amending the text of that Treaty.
14
Two further
examples may serve to illustrate this architectural role of the international lawyer in
the negotiation of treaties.
1 The Implementation Agreement 1994
The frst example is set in a UN context. In the spring oI 1993, there arose the chal-
lenge of how best to give effect to the then emerging conclusions of the UN Secre-
tary-Generals Consultations
15
concerning Part XI of the UN Convention on the Law
of the Sea (1982). It was clear to those participating in these Consultations that legal
effect would have to be given to the eventual conclusions. For political reasons, this
aim had to be achieved without convening a new Diplomatic Conference (which
could have been called, for example, the Fourth UN Conference on the Law of the
Sea) and without formally amending the Convention of 1982. Politically, the idea
of calling a new Conference was unacceptable to the great majority of Governments,
especially those which had recently established their consent to be bound by the Con-
vention. Discussions oI the question oI Iorm during the Secretary-General`s Consul-
tations had clearly shown that textual amendment of Part XI and its related Annexes
was too controversial. Well over 50 States had completed their internal procedures
and had ratifed the Convention by the middle oI 1993. For perIectly understandable
reasons of domestic politics, they were reluctant to go back to their respective Legis-
latures in order to seek approval of an amending Protocol or the like, so soon after the
Legislators had approved the Convention. At the same time, many participants were
conscious of the fact that the clock would begin running towards the Conventions
entry into Iorce as soon as the 60th ratifcation was deposited, an event which could
arise at any time. In the Consultations, it was considered essential by all participants
to avoid bringing about the situation whereby there were two sets of parties, each
one bound by different texts. The International Seabed Authority could not work on
that basis, for example. It was also thought to be inappropriate, particularly by States
which had not ratifed, to wait Ior the entry into Iorce oI the Convention and then to
14 Treaty on European Union oI 7 February 1992, UK Treaty Series No. 12 (1994), Cm
2485.
15 For accounts of the UN Secretary-Generals consultations, see 42 ICLQ (1993) 654 and
43 ICLQ (1994) 886 by the present writer (reproduced as Chapters 16 and 17 above).
332 Chapter 18
apply its Articles 312 to 314 concerning the processes of amendment. In that situ-
ation, the States parties would have had the decisive power in accordance with the
terms of those Articles, to the exclusion, somewhat paradoxically, of the very States
which, having withheld ratifcation on account oI their opposition to Part XI, wished
to see adjustments made to its terms.
A review of the various possible precedents was made. A precedent for altering the
effect of a Convention before its entry into force by means of a Protocol was found:
this was the case of MARPOL 19731978.
16
A precedent for modifying a Conven-
tion adopted by a Diplomatic Conference by means of a Protocol adopted by the UN
General Assembly (as an annex to a Resolution) was found: this was the Protocol of
1967 to the Convention on the Status of Refugees of 1951.
17
There existed plenty
of precedents for the provisional application of a newly adopted text, including one
which had modifed a prior text. However, there was no precedent Ior modiIying the
effect of a UN Convention without in any way amending it textually. Yet it was im-
portant for many reasons to bring about conditions permitting universal participation
in the LOS Convention, something which required in practice substantial alterations
in the arrangements for deep sea-bed mining set out in Part XI. The issue was how to
go about achieving the objective.
Work began on a package of texts designed to meet the various factors described
above. These texts were (1) a draft General Assembly Resolution which would adopt
and open for signature the text of (2) an Agreement on the Implementation of Part
XI of the LOS Convention (the term implementation carried a neutral yet positive
connotation). The draft Agreement took the form of a short, articled agreement, com-
prising a preamble which explained the purpose of the Agreement and the substantive
provisions, notably the articles which established the relationship between the Agree-
ment and the Convention. Three annexes were appended to the draft Agreement and
Iormed integral parts oI it. These three were, frst, the Agreed Conclusions of the
Secretary-Generals Consultations; secondly, the Consequential Adjustments to Part
XI; and thirdly provision Ior a Finance Committee in the Authority. The suggestions
Ior the question oI Iorm, together with illustrative draIts, were shared with a very re-
stricted group of like-minded colleagues in other capitals and the substantive content
of the annexes was formulated.
However, it quickly became apparent that several other participants in the Consul-
tations held some very diIIerent ideas on the question oI Iorm. In particular, Ior the
purposes of discussions during the round of Consultations held in April 1993, the UN
Legal Counsel circulated a paper describing four different options for dealing with
this question: namely, a Protocol to the Convention; an interpretative agreement con-
sisting oI understandings; an interpretative agreement Ior an initial, interim regime to
be Iollowed by a ConIerence to adopt the defnitive regime; and, fnally, an additional
agreement Ior a transition Irom an initial phase to the defnitive regime to be devel-
16 Protocol of 17 February 1978 to the Convention on the Prevention of Pollution from
Ships, of 2 November 1973.
17 Convention: 189 UNTS 137 (1951). Protocol: 606 UNTS 267 (1967).
oped by the Seabed Authority.
18
All four options were far removed from the package
of texts described above. The Legal Counsels paper, appearing in an up-dated form
in June 1993, produced a delicate situation in the Consultations and there arose the
risk of losing momentum at the next round starting on 2 August 1993.
On the frst day oI this round oI Consultations, on 2 August, there ensued lengthy
informal consultations with like-minded delegations on the basis of the draft Reso-
lution and draft Agreement described above. A group of representatives from both
developed and developing States decided to take an early initiative and table a new
paper based on the drafts. In that way, an alternative approach to the issue of the form
would be placed on the table in front of the participants. However, at this stage the
like-minded delegates were still a long way apart on substance, although they were
broadly agreed on the alternative approach and upon the structure of the drafts, that
is to say, a Resolution of the General Assembly to which would be attached a short
Agreement (plus detailed annexes) which would be adopted and opened for signature
by States at UN Headquarters. In order to get around their substantive diIIerences,
the device was agreed that all concerned could insist on including points of substance
on which they Ielt strongly and, equally, others opposed to those points could seek
in later consultations to change parts of the drafts to be tabled by the group to which
they belonged. After intensive discussions over several hours during the afternoon
and evening of 2 August, texts of the Resolution and Agreement were completed
Ior the purpose oI tabling them at the frst opportunity. At about 0200 hours on 3
August, Dr G. French (Australia)who held the master texts in his laptop word-
processorfound a standard picture of a boat in his graphics directory. He down
loaded the picture Ior the cover page and printed out the fnal version oI the draIts
for presentation to the next meeting. That was how the so-called Boat Paper came
into being. At 1030 that same morning, copies of the Boat Paper were handed out to
a rather bemused meeting of the Consultations. However, after the initial shock on
the part of the majority of those present, who had gained no prior inkling of what was
in preparation, the positive Ieatures oI the draIts quickly became apparent and in the
course of two or three meetings the focus of discussion gradually shifted from the
Secretariats paper to the Boat Paper. The three annexes were found in the discus-
sions to be conIusing, and they were quickly merged into a single annex, albeit one
which had 9 sections. The substantive differences remained amongst the members
of the Boat Group, as well as amongst the much wider participation, but the issue of
form had been successfully resolved. After a good deal of further negotiation over
almost 12 months, the General Assembly adopted Resolution 48/263 of 28 July 1994,
thereby also adopting and opening for signature the Agreement on the Implementa-
tion of Part XI.
19
18 For further details, see 43 ICLQ (1994) 886, as well as the Introduction to the text of the
Convention and the Implementing Agreement of 1994 published by the UN Secretariat
in 1997.
19 UK White Paper Miscellaneous No. 44 (1994), Cm 2705. The Agreement entered into
Iorce in 1996 and the UK ratifed it upon accession to the LOS Convention in 1997.
334 Chapter 18
The Agreement provides that its parties undertake to implement Part XI in ac-
cordance with the Agreement. The two instruments are to be interpreted and applied
together as a single instrument. In the event of inconsistency, the Agreement prevails.
According to the Annex (an integral part of the Agreement), certain provisions in Part
XI shall not apply and some others shall be interpreted to mean what is laid down
in the Annex. In the place of disapplied provisions, some entirely new arrangements
were adopted. In other words, the effects of Part XI and its related Annexes were
altered, but without formally amending the terms of the Convention. In an effort to
minimise the risk of having two schools of parties, the Agreement was provisionally
applied from 16 November 1994 by its signatories, unless they opted out by notify-
ing the depositary. Consent to be bound could be expressed tacitly in certain cases.
The entry into force of the Agreement was linked to participation in the Convention
and the Agreement by certain developed States which had manifested in the past an
interest in deep seabed mining and which would, in practice, also provide fnancial
contributions large enough to fund the institutions created by the Convention (once
some transitional fnancing arrangements had expired).
This Agreement entered into force in mid-1996 and now has over 80 parties. It
removed from Part XI the ideological and economic problems seen by the UK and
other industrialised countries. The Agreement opened up the possibility of universal
participation in the Convention, to which there are now over 125 parties, with all that
means for the rule of law and for the maintenance of peace and security over the seas
and oceans, amounting to 70 per cent oI the Earth`s surIace. The Agreement may
have surprised some treaty experts and indeed it is replete with innovation. But it has
solved the problem left over in 1982, which was its purpose. It need never be taken
as a precedent for treaty-making in the future.
2 The Berlin Agreement of 1971/1972
The second example of the architectural role of the international lawyer in the nego-
tiation of treaties was the Berlin Agreement of 1971/1972. In this instance, only six
Governments were involved: the Four Powers (France, Soviet Union, UK and US)
which at that time retained rights and responsibilities for Berlin and matters affecting
Germany as a whole; plus the Federal Republic oI Germany (FRG) and the German
Democratic Republic. The latter was not recognised as a State by the three Western
Allies, who, moreover, were not willing to accept the Berlin Wall and what it repre-
sented. They wished, on the other hand, to remove Berlin as a fashpoint in East/West
relations and to improve links of all kinds between Berlin and the FRG. The Confer-
ence was highly political. Among the many political experts on the German problem,
the role oI the international lawyer in the negotiations was to be equipped with a copy
of virtually every text on the Berlin problem,
20
plus the Vienna Convention on the
Law of Treaties, in order to shape the emerging Agreement. In the event, the entire
edifce known as the Berlin Settlement was built on the Ioundations oI Article 31 oI
20 Plus a copy of the invaluable article entitled The Relationship between Berlin and the
F.R.G. by C.D. Lush in 14 ICLQ (1965) 742.
the Vienna Convention. Thus, there is a short articled Agreement in which, after some
general provisions, the Three Powers made a declaration to the Soviet Union. The
latter made a declaration in reply, using the term German Democratic Republic.
All this was stated, therefore, to be without prejudice to legal positions. There are
then four Annexes, containing communications from the three Western Governments
to the Soviet Government, and vice versa. Next, there are Notes from the three Am-
bassadors to the Soviet Ambassador, informing him of certain textual interpretations
of the Agreement which they intended to convey to the Federal German Chancellor
in exercise of their post-War powers. The Soviet Ambassador simply took note in
his reply. This was Article 31(2)(b) of the Vienna Convention at work. Finally, the
Four Power Agreement was to be buttressed by instruments drawn up between the
competent German authorities, to be approved subsequently in a Final Quadripartite
Protocol. The latter was the equivalent oI the steel cross-members on a modern sky-
scraper, holding the whole structure together.
During the last round oI negotiations, however, the whole legal edifce was severe-
ly threatened from forces external to the meeting room. An understanding appeared
to have been reached in direct contacts between Capitals for the addition of two new
elements, namely provisions about visas for West Berliners to enter the Soviet Union
and about the opening of a Soviet Consulate General in West Berlin. The carefully
designed structure was suddenly in danger of becoming top-heavy with the addition
oI two new foors! The solution was to build two single-storey extensions on the
sides; they were called Agreed Minutes I and II.
This Agreement was criticised by some commentators as having gone too far to-
wards accepting the GDR de facto and praised by others as having helped to stabilise
the situation and so reduce the risk oI a war in Central Europe, with unimaginable
consequences. Subsequent developments, including German Unifcation, tend to
support the second, more pragmatic view. The role of the international lawyer in this
instance was akin to that of scribe and treaty architect for the political negotiators
gathered together in the building formerly occupied by the Allied Control Council in
the American Sector of Berlin where, as its Testimonium recites, the Quadripartite
Agreement was signed on 3 September 1972.
21
II The Role of the International Lawyer in Applying Other Rules of
International Law
A The Question Pralable: To Negotiate or Not?
Quite apart from the law of treaties, many other rules of international law form part of
the legal negotiators armoury. Sometimes, when there exists a problem in relations
between two Governments, the frst question to be addressed on each side is whether
or not to negotiate at all about the problem. The role of the international lawyer is
to advise on the extent of the rights of the Government concerned and the strengths
and weaknesses in its claims vis--vis the other side. If it is decided to negotiate, the
21 UK Treaty Series No. 111 (1972), Cmnd. 5135.
336 Chapter 18
next question is whether all aspects should be brought to the negotiating table or only
some of them. An example of this aspect may be helpful. In the 1960s, negotiations
were held with the Soviet Government about fnancial and property claims arising
from the incorporation of the Baltic States into the Soviet Union in 1940, incorpora-
tions recognised here de facto but not de jure. Claimants in the UK called upon suc-
cessive Governments to pay them compensation, to be met Irom assets Irozen in this
country under wartime powers, including gold. Negotiations began during the time
of the Government headed by Mr Macmillan and ended with a meeting between the
two Prime Ministers, Mr Wilson and Mr Kosygin, in 1967, at the end of which agreed
terms were drawn up. The Downing Street Agreement was roundly criticised by Sir
John Foster in the House of Commons on the ground that London should not have
negotiated with Moscow on these claims, or at least not all of them.
22
The sequel,
after the dissolution of the Soviet Union and the establishment of diplomatic relations
with Estonia, Latvia and Lithuania, served to underline the problems involved. The
case illustrates vividly the need to think well ahead before opening talks.
B The Negotiation of the Modus Vivendi
A second question is whether it is legally possible to negotiate in the Iace oI Iunda-
mental differences of positions or unbridgeable gaps. In some cases, negotiations may
be futile. In others, a useful tool for the pragmatic international lawyer is the modus
vivendi, that is to say, an agreement which is expressed to be without prejudice
to legal positions, which leaves the fundamental differences unaffected, but which
provides Ior some cooperation on specifc aspects oI the matters in dispute. The 'halI
loaf which is the modus vivendi may often be better than no bread, a worsening of
relations resulting in confrontation. It may also be politically preferable to the sub-
mission of the fundamental dispute to an international judicial body for decision on
the merits. During the so-called Cod War with Iceland, an Interim Agreement for
two years was drawn up in 1973 which was stated to be without prejudice to legal
position or rights of either government. The case brought by the United Kingdom
against Iceland continued in the International Court of Justice whilst the Agreement
was in force. Questions about the Agreement were posed to the UK Agent by some
of the Judges during the hearings on the merits in March 1974. Was the dispute not in
suspense? Was the case not moot? In a valuable passage in the judgment, the major-
ity of the members of the Court rejected that point of view, adding that the contrary
view would discourage parties from negotiating such agreements in the future, efforts
which were fully consistent with the duty to settle disputes by peaceful means under
the principles of the UN Charter.
23
In the Icelandic agreement, the without prejudice clause was cast in very sim-
ple terms. In other instances, the without prejudice article has taken on a more
comprehensive and sophisticated form. The Antarctic Treaty of 1959 contains in its
22 During debates in 1968 on the Foreign Compensation Bill, designed to give effect to the
terms of the Agreement.
23 [1974] ICJ Rep. 3, at p. 20.
Article IV the seminal text, widely believed to have been worked on by Sir Gerald
Fitzmaurice and ProIessor Andre Gros at a time when they were the Legal Advisers
to the Foreign OIfce and the Quai dÒrsay, respectively. Twenty years later, this text
inspired the negotiators of the Convention on the Conservation of Antarctic Marine
Living Resources to apply the ideas to the maritime areas around the Antarctic.
24
In
turn, those two instruments inspired the negotiators in the processes of reconciliation
between the UK and Argentina aIter the confict oI 1982, who produced what became
known as the Madrid Formula.
25
The latter has opened the way for some mutually
benefcial cooperation over the conservation oI fsh stocks in the SW Atlantic and
over the search for hydrocarbons, including in this regard an Area of Special Cooper-
ation.
26
Cooperation has been assisted by the creation of two Commissions, made up
of delegations from the two sides, whose work is all subject to the Madrid Formula.
All this has allowed trade and other relations to prosper: it has been good both for
the conservation oI the fsh and Ior the fshermen, as well as Ior the two economies.
It should prove to be good also for the oil industry on both sides, not forgetting the
environment.
C Negotiation and Recourse to Means of Third Party Settlement
The international lawyer also has an important role in advising his or her Government
that the time has come to stop negotiating and to seek a solution through arbitration
or judicial settlement. This is particularly the case with bilateral talks, of course. Mar-
itime boundary delimitation is a case in point. It is not, of course, part of the interna-
tional lawyers role to prolong talks unnecessarily when alternative means of settling
a dispute remain open. There may be a danger in forming a luncheon club with the
other side, meeting alternately in the two capitals, and going around the problem in
circles, without reaching agreement. Recourse to litigation involves forming a view
upon the jurisdictional possibilities and upon the likely outcome in court. How much
is the clients case really worth? What would be the most likely result? Advising on
maritime boundaries is notoriously diIfcult these days, since the outcome in almost
every case decided has been a surprise to participants and outsiders alike. If there
is agreement to proceed to arbitration, then the international lawyer naturally has a
leading role in the negotiation of the compromis. At the same time, a negotiated set-
tlement has many advantages. The risk of litigation is avoided. Control is kept over
the result, as well as its timing and public presentation. The 1988 Agreement on the
Delimitation of the Continental Shelf between the UK and the Irish Republic took 48
rounds of talks in all. It settled a difference which had started in 1964 and gone very
close to submission to arbitration in 1982. It was a diIfcult negotiation at times, but
25 29 ILM (1990) 1291; G. Marston (ed.), 'UK Materials in International Law, 61 BYIL
543.
26 35 ILM (1996) 301; G. Marston (ed.), 'UK Materials in International Law, 66 BYIL
667.
338 Chapter 18
ultimately successful. The Agreement was endorsed by Parliament (twice)
27
and the
Dail. The previous blight on prospecting disappeared.
D Negotiation and the Reform of International Law
The Third Conference on the Law of the Sea was one of great interest to very many
international lawyers. The work was that oI law reIorm, rather than codifcation. The
role of the legal advisers who attended the Conference was to assist the successive
leaders of the British delegation and to pursue the objectives agreed by Ministers and
refected in the delegation`s instructions. In practice, in my case it meant explaining
British proposals on innocent passage, on the right of transit passage through straits
used for international navigation and on the regime of the High Seas.
28
At times, there
was a Ieeling that some oI Sir Gerald Fitzmaurice`s achievements at Geneva were
being revised or alteredand, somewhat surprisingly, by British proposals. These
proposals, however, had a special element. As well as putting forward new ideas
and taking further provisions outlined in the Conventions of 1958,
29
they also re-
proposed the greater parts of the Conventions on the Territorial Sea and on the High
Seas. Many of the additions and changes were suggested in the light of experience
gained after 1958. For example, one addition responded to the failure of the Stras-
bourg Convention of 1965 on the Suppression of Unauthorised Marine Broadcasting
to prevent interference caused by pirate broadcasting in the North Sea with the
radio spectrum assigned, through the International Telecommunications Union, to
public services, including ambulances and the like. Because these proposals for, as
it were, the amendment and consolidation of the Conventions of 1958 appeared at
the Caracas session, they were included in the Main Trends document and eventually
they found their way into the Convention of 1982.
30
The historical continuity of the law of the sea was preserved, subject of course to
making some far-reaching reforms. After the Caracas session, the role of this inter-
national lawyer in the negotiation of what became the UN Convention on the Law
of the Sea entailed sitting week after week in the informal working group of the
Second Committee going through the Negotiating Texts article by article, sentence
by sentence. It was called by some of the participants the University of the Sea.
The participants learned where the problems were in the different parts of the world
on maritime issues. Caracas and the later sessions were exciting times for many in-
ternational lawyers.
27 The Petroleum Royalties (Relief) and Continental Shelf Act 1989 and the Continental
Shelf Act 1989.
28 A/CONF.62/C.2/L. 3 and L. 54.
29 For example, Article 94 on the duties oI fag States.
30 Many provisions in Parts II, III and V of the Convention, including Article 109 on unauthor-
ised broadcasting, can be traced back to the proposals in A/CONF. 62/C.2/L. 3 and ibid. L.
54.
E The Role of the International Lawyer as the Negotiator of Treaties
After a long apprenticeship as a member of many delegations, an international law-
yer may graduate to the position of the leader of a delegation. Here the international
lawyer is not only the lawyer charged with giving legal and treaty advice to the
delegation, he or she is also the negotiator. This role of spokesman and negotiator is
much more satisfying than simply being a member of a team and sometimes listening
to ones leader putting the point badly or even saying the wrong thing. This probably
still happens at summits, as well as at lower levels oI diplomacy. The oIfcial negotia-
tor carries more responsibility, especially if a deal struck ad referendum to Ministers
is rejected as a bad result for your Government. But there is absolutely no reason to
suppose that an international lawyer is not the best equipped negotiator on topics
which have a high legal element in them.
In his classic monograph Diplomacy, Sir Harold Nicholson wrote:
The worst kind oI diplomatists are missionaries, Ianatics and lawyers; the best kind are
the reasonable and humane sceptics. Thus it is not religion which has been the main
Iormative infuence in diplomatic theory; it is common sense.
31
His criticism of lawyers has been cited all too often. His work on diplomatic tech-
nique is Iull oI correct assessments and shrewd insights. For example, in an essay
published in 1961 he forecast the eventual collapse of communism as a result of the
work of repressed heretics within the Soviet orbit. Was he correct over the worth of
lawyers as diplomats? It is perfectly possible to fall into the trap of applying legal
techniques (weight oI evidence; burden oI prooI; punish the guilty) beyond their true
courtroom context. But that is not to say that lawyer-diplomats are guilty of making
diplomatic gaIIes all the time and the statement is, oI course, an over-simplifcation.
There may also be the non-fanatical lawyer who can apply a bit of common sense, the
reasonable and humane sceptic, alongside his of her non-lawyer colleagues. There
are active today very many prominent international lawyers who have vast experi-
ence and expertise in the feld oI diplomacy including the negotiation oI treaties.
From the writer`s experience oI negotiations, it suIfces to mention the names oI
Ambassadors Javier Perez de Cuellar,
32
Philippe Kirsch,
33
Tommy Koh
34
and Satya
31 Nicholson, Diplomacy, Third Edition (1969), Chapter II.
32 See his Pilgrimage for Peace: A Secretary-Generals Memoir (1997), especially Chapter
14 describing his eIIorts to resolve the confict over the Falkland Islands. He now heads
the Commission on Cultural Development (UNESCO).
33 Ambassador Kirsch has served as President of the Rome Conferences for the Suppres-
sion of Unlawful Acts against the Safety of Maritime Navigation (1988) and for the
Establishment oI an International Criminal Court (1998). He is now the President oI the
International Criminal Court.
34 See his collection of writings and speeches The Quest for World Order: Perspectives of
a Pragmatic Idealist (1998). Ambassador Koh has served as the President of the latter
part of the Third UN Conference on the Law of the Sea, as well as of the UN Conference
340 Chapter 18
Nandan.
35
All are lawyers who have been much involved with the negotiation of trea-
ties, particularly in the context of the United Nations.
Experience shows that many qualities are required iI negotiations Ior a new treaty
or for the settlement of a dispute are to be fruitful. They include:
patience;
courtesy;
a thorough study oI the issue or dispute;
an accurate assessment of what your claim is worth in, say, the ICJ or another
tribunal;
the need to listen carefully to what is said across the table, and to evaluate what
is not said or not reiterated during the second or third round;
the need to re-examine your starting position in the light of the other sides
argument and to stand frm or to look Ior a compromise in the light oI that re-
examination;
the need sometimes to use imagination in a search for solutions, including
putting together packages;
a willingness to draw on past precedents, but an equal readiness to create a new
precedent; and, above all, perhaps
the need to keep a sense of proportion and to use common sense, as counselled
by Sir Harold Nicholson.
Working alongside Ministers and senior diplomats was the best training in negotiat-
ing technique. Working under Foreign OIfce Legal Advisers Irom Sir Gerald Fitz-
maurice onwards provided much expert instruction on the practice of international
law. Negotiating treaties was one of the most satisfying tasks during an interesting
career as a legal adviser in the Foreign and Commonwealth OIfce.
on the Environment and Development ('the Earth Summit). He is now Ambassador at
Large of Singapore.
35 Ambassador Nandan served as the Rapporteur of the Second Committee of the Third
Law of the Sea Conference, as the Chairman of the Boat Group and as the President of
the UN Conference on Straddling Fish Stocks and Highly Migratory Fish Stocks (1993
5). He is now the Secretary-General of the International Seabed Authority.
Chapter 19
Mechanisms for Adjusting Part XI and the
Implementation Agreement*
I Introduction
During the course of the Secretary-Generals consultations, held between 1990 and
1994, the basic issue was the fate of Part XI. Would it be kept, changed or rejected?
The question oI the best mechanism(s) or procedure(s) Ior adjusting Part XI was
regularly discussed. At different stages in the consultations, the following mecha-
nisms were suggested:
(1) To deal with the outstanding hard core issues in a comprehensive manner with
a view to resolving all of them in a legally effective way.
(2) To deal with some of the issues at the present stage and to postpone considera-
tion of the others to a future Conference.
(3) To postpone consideration of all outstanding issues to a future conference to be
held when mining is about to begin (sometimes described as a 'Ireeze on Part
XI and coupled with a trigger mechanism for beginning the conference). Dur-
ing the period of postponement, the Preparatory Commission would continue in
existence.
(4) To adopt some agreed interpretations or understandings about the meaning of
provisions in Part XI and how they were to be applied.
* This chapter, the text oI a paper read in May 1994, was frst published in M.H. Nordquist
and J.N. Moore (eds.), Entry into Force of the Law of the Sea Convention (1995), 89-97.
The paper has been slightly edited.
342 Chapter 19
(5) To permit industrialized States and other States which have not ratifed the Con-
vention to proceed to ratiIy or accede to the Convention subject to the qualifca-
tion or reservation that they would not accept Part XI but would agree to attend a
conference when mining was about to begin in order to decide upon the mining
regime which should apply.
(6) To await the entry into force of the Convention and then allow the States Parties
either to have recourse to articles 314 and 316 concerning its amendment, or to
take legally binding decisions about the implementation of the Convention.
In more analytical terms, there were three options for tackling the substance: deal
with all issues at that time; deal with some at that time and some in the Iuture; deal
with none at that time and agree to hold a Conference in the future. There were also
three options Ior the Iorm: a treaty (amending, interpreting or implementing Part XI);
a procedural decision (calling a conIerence); or invoking articles 314 and 316 oI the
Convention. There was general agreement that form must follow substance.
This paper reviews the advantages and disadvantages of the various mechanisms.
It shows how the proposed Agreement relating to the Implementation of Part XI com-
bines several of the above ideas, but corresponds to no single one of them. The paper
assesses the legal effects of the particular mechanisms which have been included in
the Agreement.
II Some Key Discussions of Mechanisms
The question oI the mechanisms Ior adjusting Part XI has been addressed at several
stages during the course of the consultations. Different views were expressed about
the nature of the problems and especially about the way to solve them. Four impor-
tant debates may be singled out.
A At the very outset in 1990, a list of hard core issues was drawn up. The issues
were:
(1) costs to States Parties;
(2) the Enterprise;
(3) decision-making;
(4) the review conIerence;
(5) transIer oI technology;
(6) production limitation;
(7) compensation Iund;
(8) fnancial terms oI contracts;
(9) the environment.
Agreement on a list oI problems was a frst step. Subsequently, the environment was
dropped on the grounds that, whilst it was agreed to be an important matter, it was
not an obstacle to the ratifcation oI the Convention by industrialized States. It was
agreed that the topic would continue to be addressed in the proper forum at the ap-
propriate time. Other topics, not on the list, have included the position of the regis-
343 Mechanisms for Adjusting Part XI and the Implementation Agreement
tered pioneer investors, the need to phase in the institutions and the position of States
which have already ratifed.
B In 1991, a discussion took place about the best way to solve the outstanding
problems. The frst two mechanisms set out above in the Introduction were reviewed
by the participants.
The frst mechanism was Iavoured by some industrialized countries. They consid-
ered that it was necessary to have a far-reaching revision of Part XI in order to meet
their numerous objections to its terms. Other States questioned whether it was wise to
attempt a comprehensive review. They opposed a re-negotiation of the whole of Part
XI. This was the strongly held view oI many States which had ratifed the Conven-
tion. Some other States (including industrialized States) pointed out that part oI the
diIfculty with Part XI was the Iact that it went into so much detail on every aspect
of the mining regime. Article 151 was a prime example. They argued, accordingly,
that it would be a mistake in the 1990s to attempt to go into too great detail, as had
been done in the 1970s and early 1980s, with the attendant risk of having to revise
the regime early next century. There was general agreement that the results of the
consultations would be cast in a legally effective form, but there was opposition to
the idea of making formal amendments to Part XI.
The second mechanism (to deal with some of the substantive issues immediately
and to postpone consideration of the remainder until the political, economic and tech-
nological conditions under which mining would take place were known) was accept-
able to many States as far as actually dealing with issues was concerned, subject to
the caveats attached to the frst approach. However, many industrialized countries
pointed out that the uncertainty surrounding the issues on which decisions were to be
postponed would mean that the mining industry could not plan, invest or prepare for
the start of mining by conducting research and development work. They would not
know the regime under which they would have to operate in the future. Uncertainty
would have a chilling effect on a nascent industry.
It was for these reasons that, at this early stage of the consultations, a compromise
between the two preceding mechanisms was outlined. According to this compromise
approach, the consultations would frst try to deal with those outstanding issues (such
as Iunding the frst mine-site oI the Enterprise) which could be addressed at that time.
Secondly, other issues (such as the Financial Terms of Contract) which were best left
to a future time would be dealt with at that stage by means of golden principles.
In other words, certain broad new principles on these issues would be adopted, in
the light of changed economic and political circumstances, which would serve the
international community better than those contained in Part XI, and the details for
the application and implementation of these principles would be discussed at a future
time when mining was about to begin. This compromise approach attracted growing
support, but some participants favoured alternative approaches.
The third approach set out above was favoured by some of the registered pioneer
investors. Their approach was to prolong the Preparatory Commission (PrepCom)
during the period between the entry into force of the Convention and the onset of
mining activity.
344 Chapter 19
They wished to continue with the regime which had been developed on the basis
of Resolution II and decisions of the PrepCom concerning the terms of registration.
They considered that it would be more cost eIIective and eIfcient to continue the
PrepCom rather than to incur the increased costs of establishing the International
Sea-Bed Authority during the interim period before the onset of deep seabed min-
ing. This approach was supported by other States including some developing States.
However, the idea caused diIfculties Ior other industrialized countries. These coun-
tries feared that, since Part XI would remain part of the Convention, this regime
which they found unacceptable would be made applicable at some point in the future.
It was akin to a 'Sword oI Damocles, the presence oI which would inhibit ratifca-
tion or accession.
C During rounds of consultations held in April and August 1993, three procedural
mechanisms, contained in an Information Note by the Secretariat, were debated. The
frst approach was to adopt a Iormal protocol amending Part XI (that is, option (1)
again). It was noted in discussions that such an instrument would be legally binding
and effective to vary the terms of Part XI. It was also noted that it was possible and
permissible in law to bring about an amendment of Part XI by procedures different
from those envisaged in articles 155 and 314 of the Convention. However, many
developing countries, especially ones which had ratifed the Convention, were con-
cerned about any proposal to amend it by means of a protocol. They were opposed to
any renegotiation of the basic elements in Part XI.
A second approach considered in 1993 was described as the interpretative agree-
ment. It is option (4) in the list set out above. It was pointed out by supporters of this
idea that many of the problems with the terms of Part XI could be met by adopting
agreed interpretations or by agreeing to apply these provisions in a particular way.
On the other hand, others noted that whilst some problems could be met by agreed
interpretations of particular terms in Part XI, this did not apply to other problems
which had to be tackled in a different way. Something more than interpretation would
be needed. Accordingly, it was concluded that, whilst agreed interpretation could be a
valuable technique, it did not provide a comprehensive solution to all the problems.
A third approach was to create an interim period during which there would be an
initial Authority, including an initial Enterprise. The defnitive regime Ior seabed min-
ing would be established by a conference to be held when seabed mining was about
to begin. This approach (mechanism (5) on the list set out above) was said to have
the advantage oI postponing the solution oI some outstanding questions to a time in
the future when more would be known about the circumstances under which mining
would take place. However, the approach was criticized by many States which had
ratifed the Convention on the grounds that States ratiIying in the Iuture, including in
particular the developed countries, would not be committing themselves to the terms
of Part XI in advance of the conference which was to be held in the future. They con-
sidered that in effect developed countries would be allowed to establish their consent
to be bound by the Convention subject to a reservation in regard to the whole of Part
XI. They recalled that article 309 of the Convention prohibits reservations. The idea,
they feared, would create the danger of a dual regime. Moreover, some industrial-
ized countries were also unhappy with this approach because their mining industries
would be unaware oI the terms oI the defnitive mining regime during the period
before mining began. Thus, they would not be able to plan against the background of
a known legal regime.
D During meetings held in late 1993 and January 1994, the delegations of some
States which had already ratifed the Convention argued that the Secretary-Gener-
als consultations should be prolonged until November 16, 1994, when the States
Parties at that time could meet and decide upon the necessary action. This is option
(6). These delegations considered that articles 314 and 316 of the Convention made
adequate provision Ior its modifcation. They Ielt that these provisions should be
implemented, rather than adopt a new instrument prior to the entry into force of the
Convention. Representatives oI the industrialized countries pointed out that the con-
sultations were intended to address the problems which impeded their ratifcation or
accession. They wished to be part of the decision making process for adjusting Part
XI of the Convention. They were not willing to leave such an important adjustment to
the decision of the States Parties at the end of 1994. In particular, they wished to see
changes made to Part XI before the entry into force of the Convention. They pointed
to the many other important matters dealt with by its other Parts.
To sum up, throughout all the different discussions, there was general agreement
on several points:
(1) Any new arrangement should be given a legally binding character.
(2) The new Agreement should be adopted by a simple procedure.
(3) The concept was to make new provision for the implementation of Part XI in
the light of the changed economic and political circumstances prevailing in the
1990s, as compared with those which had informed the Conference in the period
(4) Special attention should be paid to the position of those States which had al-
ready ratifed the Convention. (These States were unwilling to have to submit
the Convention to their legislatures for a second time for some process or re-
ratifcation.)
(5) The objective was universal participation in an adjusted Convention.
III The Mechanisms Chosen in the Draft Agreement for the
Implementation of Part XI
In August 1993, there appeared Ior the frst time a DraIt Agreement on the Implemen-
tation of Part XI, the so-called Boat Paper. This paper was discussed to some extent
in August and again in November when a revised version was available. The revised
version was Iurther refned and discussed during the consultations held in January
1994. Following that meeting, a Draft Resolution and Draft Agreement were circu-
lated in February 1994, prior to further consultations in early April. After that round,
when substantive negotiations were concluded ad referendum, a new Draft Resolu-
tion and Agreement dated 15 April 1994 were circulated in all six working languages
346 Chapter 19
of the United Nations. These drafts are now (i.e. May 1994) to be addressed, both
here and in New York.
The Draft Resolution would be adopted by the General Assembly. The Resolution
would adopt the Agreement relating to the Implementation of Part XI. Adoption of
an Agreement by the General Assembly is a procedure which has been followed on
many previous occasions. It is the equivalent oI the adoption oI the text oI a treaty by
means of a diplomatic conference.
The Draft Agreement consists of a Preamble, ten articles and a lengthy annex. The
Preamble notes the important political and economic developments which affect the
implementation of Part XI. It states the goal of facilitating universal participation in
the Convention. By articles 1 and 2, the parties to the Agreement undertake to imple-
ment Part XI in accordance with the Agreement. The provisions of Part XI and the
Agreement are to be interpreted and applied together as one single instrument. In the
event of inconsistencies, the Agreement prevails.
States are given choices as to the way in which they will establish their consent to
be bound by the Agreement. They may sign with immediate effect or sign subject to
ratifcation. Alternatively, they may sign and have recourse to a simplifed procedure
set out in article 5. This is a system of tacit consent to the new Agreement, available
only to States which have already established their consent to be bound by the Con-
vention. This may avert the need on the part oI such States to seek re-ratifcation.
The Agreement is to enter into force when forty States have established their con-
sent to be bound. These forty must include at least seven States to which Resolution
II applies and at least fve oI the seven must be developed States. These States are ten
developed States (Belgium, Canada, France, Germany, Italy, Japan, the Netherlands,
Russia, the United Kingdom and United States), plus India and China. South Korea
joined this group later.
Article 7 provides for the provisional application of the Agreement if, as is likely,
it has not entered into force before November 16, 1994. Provisional application is a
well-known concept, regulated by the Vienna Convention on the Law of Treaties.
The best known example of an Agreement being applied provisionally is, of course,
the GATT. However, in the present case there is no intention to prolong the provi-
sional application indefnitely. Instead, article 7 provides that provisional application
shall terminate on November 16, 1998, if at that time fewer than seven States referred
to in Resolution II have established their consent to be bound.
It is clear that the Agreement represents a treaty instrument. It will take effect in
accordance with the Vienna Convention on the Law of Treaties. At the same time, the
position oI States which have already ratifed the Convention is taken into account,
frst by giving them the option oI conveying tacit consent to the new Agreement and
secondly by requiring Ior the entry into Iorce oI the Agreement support Irom amongst
major industrialized States, many oI which are major contributors to the UN budget.
The Annex is divided into nine sections. These deal with the eight hard-core issues
which have prevented developed States from ratifying the Convention, plus provi-
sions about the Finance Committee which were developed in the Preparatory Com-
mission. The nine sections provide that certain parts of Part XI are not to apply and
that some new provisions will apply in the future. Other provisions in the Annex set
out agreed interpretations of provisions in Part XI. The Annex is couched in man-
datory language (shall) and there is no doubt that the terms of the Annex, which
forms an integral part of the Agreement, will produce legal effects. The Annex will
disapply parts of Part XI and, in effect, substitute new terms which are to be applied.
In addition, the terms of the Annex will interpret wording of Part XI in a legally bind-
ing way. Since article 2 of the Agreement provides that Part XI and the Agreement
have to be interpreted and applied together as one single instrument, it is clear that
the terms of the annex will be legally effective to adjust the terms of Part XI. In the
future, Part XI will have to be interpreted and applied in accordance with the Agree-
ment and not read in isolation.
IV Concluding Remarks
None of the six mechanisms set out at the beginning of this paper corresponds fully
with the Agreement which has now been drawn up. The Agreement has some ele-
ments oI the frst mechanism in that several oI the hard core issues have been re-
solved in a legally effective way, but not by means of an amending protocol. Other
hard core issues have been dealt with by the equivalent oI 'golden principles, but
there is no provision for a future diplomatic conference. Instead, it may be expected
that the organs of the International Sea-Bed Authority will implement the broad prin-
ciples about, Ior instance, fnancial terms oI contract at some Iuture time. The Pre-
paratory Commission will be wound up in accordance with the terms of Resolution
I. The idea in mechanism (3) oI having a 'Ireeze and a 'trigger mechanism when
mining was about to begin proved to be only superfcially attractive. The proposal
suffered from the defect that it left too much uncertainty in the meantime. In order
to ensure ratifcation oI the Convention by industrialized States, it is necessary to
remove as much uncertainty from the situation as possible prior to the taking of deci-
sions on the question oI participation. The Agreement contains some agreed interpre-
tations of particular paragraphs in Part XI, that is, mechanism (4), but the bulk of the
Agreement provides that certain paragraphs do not apply and that other paragraphs
shall apply. This terminology is very close to the Vienna Convention on the Law of
Treaties, which contains sections about the interpretation and about the application
of treaties. The wording is also close to the classic provisions about the handling of
disputes concerning treaties: these typically refer to disputes about the interpretation
or application of a treaty.
The proposed Agreement if adopted will be legally effective on November 16,
1994, to adjust Part XI, whether the Agreement enters into force on that day or is ap-
plied provisionally pending its entry into force. Although it may break new ground,
the proposed Agreement would achieve the desired effects. It would open the way-
the opportunity-for a universally accepted law of the sea. This must strengthen the
legal Iramework oI international relations aIIecting seventy percent oI the Earth`s
surface and contribute thereby to the maintenance of international peace and security
on a just basis.
Chapter 20
Resolution and Agreement Relating to the
Implementation of Part XI*
For the international lawyer, two connected events stand out in 1994: frst, the en-
try into force of the UN Convention on the Law of the Sea on 16 November
1
and,
secondly, the adoption by the General Assembly of the Resolution and Agreement
Relating to the Implementation of Part XI of the Convention on 28 July.
2
As the Ger-
man instruments of accession put it, the link between Part XI and the Agreement is
fundamental. This paper reviews the events leading up to the adoption of the Resolu-
tion and the Agreement, beIore assessing the terms oI the Resolution and fnally those
of the Agreement.
I The Secretary Generals Consultations
The origins of the new Agreement can be traced back to the vote in April 1982 on the
adoption of the LOS Convention when the United States voted negatively and several
industrialised states abstained because of their disagreement with several aspects of
* This chapter, based on a paper read at a conference in Heidelberg in January 1995, was
frst published in 55 ZaRV (1995) 275-289. The text has been slightly edited but not
updated.
1 Art. 308 (3) provides that the Assembly of the International Seabed Authority should
meet at the Headquarters in Jamaica.
2 GA Resolution 48/263.
350 Chapter 20
Part XI.
3
The United States, Germany and the United Kingdom proceeded to with-
hold signature and several industrialised states which did sign expressed political res-
ervations about the terms of Part XI.
4
In 1982, the world was still polarised between
the Western industrialised states and their East European rivals. There was also some
ideological division between the industrial north and the developing south. Given this
atmosphere, the Preparatory Commission could only mark time as far as Part XI was
concerned, occupying itself instead with the implementation of Resolution II.
5
The
polarisation was accentuated as States began to ratify the Convention. It became ap-
parent that all the ratifcations were Irom developing countries, apart Irom Iceland.
6
In 1989, after six years of inconclusive debate, the Group of 77 signalled that it was
willing to hold discussions, without preconditions, about issues related to the Con-
vention in order to try to ensure its universality.
7
Industrialised countries welcomed
this signifcant oIIer and the Iollowing year the Secretary General oI the UN, Senor
Perez de Cuellar, began inIormal consultations on outstanding issues which were pre-
venting universal participation in the Convention.
8
The consultations concentrated
upon the agenda oI specifc objections, the so-called hard core issues, perceived by
industrialised countries with the terms of Part XI. The Secretariat produced a series
oI helpIul InIormation Notes which sought frst to defne precisely the objections oI
major industrialised countries and, subsequently, to fnd possible solutions. Although
the consultations concentrated on questions oI substance, reIerence was made at a
fairly early stage to the possibility of having a Protocol to the Convention. On leav-
ing oIfce, Senor Perez de Cuellar made a valuable summary oI the consultations to
the end of 1991,
9
which was supplemented by a paper from Under Secretary General
Nandan in January 1992. Secretary General Boutros Boutros Ghali, after a review
of the dossier, decided to continue the consultations. His perspective was coloured,
quite naturally, by his previous experience as a Minister in a government at a time
when it had ratifed the Convention. In 1993, the delegates again Iaced the question
of the best form in which to cast the outcome of the consultations. The uncertainty
was partly resolved by the coming together of some of the leaders of the Group of 77
and some representatives of industrialised countries who agreed to try to negotiate
solutions which might be acceptable to their governments. This Group, which came
to be known as the Boat Group, worked on a solution which remained faithful to
3 OIfcial Records: Third United Nations ConIerence on the Law oI the Sea, Vol. XVI,
154.
4 The UKs objections were set out in the House of Commons: Hansard, Vol. 69, Col. 642,
6 December 1984.
5 Resolution II of the Third UN Conference on the Law of the Sea governing Preparatory
Investment in Pioneer Activities relating to Polymetallic Nodules.
6 OI the frst fIty states to ratiIy, only Iceland was a developed state.
7 Statement by Mr. M. Kapumpa (Zambia) in August 1989, in: Platzder, Law of the Sea:
Documents 198391, Vol. X, 472.
8 For accounts of the consultations, see Anderson, 42 ICLQ 654 (1993) and 43 ICLQ 886
(1994) now Chapters 16 and 17 above.
9 UN Press Release SG/SM/4671 (SEA 1286) oI 13 December 1991.
351 Resolution and Agreement Relating to the Implementation of Part XI
the original scope and intention oI the consultations, namely fnding solutions to the
specifc problems perceived by industrialised countries. The Group drew up a draIt
Resolution of the General Assembly which would adopt an Agreement on the Imple-
mentation oI Part XI. The frst version oI the Boat Paper was tabled in August 1993
and it quickly proved to be a decisive turning point in the consultations. Following
intensive and longer sessions, the consultations were concluded early in June 1994,
so that the Secretary General could submit his report to the General Assembly later
that month.
10
The Assembly took up the issue of the law of the sea again at the end
of July 1994 and adopted the draft Resolution by a vote of 121:0, with seven absten-
tions, as Resolution 48/263.
11
In accordance with the terms of the Resolution, the Agreement was opened for sig-
nature in the General Assembly Hall the next day when over 40 signatures were ap-
pended. The signatories included the major industrialised states, apart from Russia.
12
The Preparatory Commission took account of the Resolution and the Agreement in
adopting its fnal report in August 1994. The Agreement has now (23 January 1995)
been signed by 71 States and the European Community and twelve states have estab-
lished their consent to be bound by it, including Germany and Italy.
II The Resolution
At different stages, several ways of concluding the consultations were considered.
There was a general reluctance to convene the Fourth UN Conference on the Law of
the Sea, lest issues settled at the Third Conference were re-opened. The calling of any
ad hoc Conference would have run the risk of it turning into such a fourth conference.
The developing countries, especially the ratifers, were opposed to a re-negotiation
of Part XI. It was agreed early in the consultations that the outcome should be new
arrangements which were legally effective. There was agreement that procedures
should be simple and that account should be taken of the fact that over 50 States had
ratifed the Convention. It was with these Iactors in mind that it was decided in the
consultations to use the mechanism of the General Assembly, which has held an an-
nual debate on the law of the sea for many years and which always has the item on its
agenda. Each session oI the Assembly remains in being until the eve oI the new ses-
sion in September. The Assembly included all the existing parties and allowed non-
Member States such as Switzerland, as well as the European Community, to attend as
observers. There are ample precedents for the adoption of new Treaties in the General
Assembly: for example, there is the Protocol of 1967 to the Convention on the Status
of Refugees of 1951.
13
That instance was used as a model in certain respects for the
Agreement of July 1994.
10 UN Document A/48/950.
11 99th to 101st Plenary Meetings of the 48th Regular Session.
12 For reasons explained largely by reference to its position as a Registered Pioneer Inves-
tor.
13 189 UNTS 150; UKTS 39 (1954) Cmd. 9171 (Convention) 606 UNTS 267; UKTS 15
(1969) Cmnd. 3906 (Protocol).
352 Chapter 20
GA Resolution 48/263 of 28 July 1994 was adopted by a large majority (121:0:7)
in a recorded vote. Signifcantly, its preamble begins by noting 'the desire to achieve
universal participation in the Convention. This was the primary motivation in the
consultations. This opening aim is Iollowed by a consequential objective: 'to promote
appropriate representation in the institutions, including the International Seabed Au-
thority. Representation only of the developing world could hardly be considered ap-
propriate in an Authority charged with administering an international industry.
Next, the preamble reaIfrms that the Area and its resources are the Common Herit-
age of Mankind. It was clear from the beginning of the consultations that any solution
would have to respect the approach of the Common Heritage. This principle was not
Ior re-negotiation, and it was not seriously questioned during the consultations.
The preamble, in a key passage, recognises that political and economic changes
including in particular a growing reliance on market principles, have necessitat-
ed the re-evaluation of some aspects of the regime in Part XI. This recital has the
favour oI the clausula rebus sic stantibus, applied to the adjustment of a Part of
the Convention. The political changes included the diminution in East-West tension
since the enormous changes in Eastern Europe seen during the past six years, not
least German unifcation. The economic changes were frst observable in the 1980s
when industrialised countries reduced the public sector and relied upon market forces
to an increasing extent. In the 1990s, ideas such as privatisation were adopted by
States from all parts of the world.
The preamble goes on to note the initiative of the Secretary General and to wel-
come his report on the outcome. The General Assembly then concluded that the
objective of universal participation may best be achieved by the adoption of an
Agreement relating to the Implementation of Part XI. Implementation as a con-
cept was acceptable since it connoted positive action and avoided the idea of re-ne-
gotiation whilst at the same time allowing, on a broad interpretation, for substantive
adjustments.
The operative paragraphs oI the Resolution reaIfrm the unifed character oI the
Convention (para. 2), adopt the text oI the new Agreement (para. 3), aIfrm the rule
stated in the Agreement that it is to be interpreted and applied together with Part XI
as a single instrument (para. 4), and then draw in para. 5 two conclusions from that
paragraph. First, the General Assembly asserted that 'Iuture ratifcations . oI . the
Convention shall represent also consent to be bound by the Agreement. The corol-
lary was that no State may establish its consent to be bound by the Agreement
unless it has previously established or establishes at the same time its consent to be
bound by the Convention. This para. 5 in the Resolution equates to Art. 4 oI the
Agreement. The TFYRO Macedonia, Mauritius, Singapore, Sierra Leone, Slovenia
and Lebanon have become parties to the Agreement by their succession to or ratifca-
tion of the Convention by virtue of Art. 4, para. 1 of the Agreement.
14
The second assertion by the General Assembly was to call upon States voting for
the Resolution, and therefore for the adoption of the Agreement, to refrain from any
14 Information taken from an informal list circulated by the UN Secretariat on 16 December
1994, with updating taken from the UN Journals down to 23 January 1995.
act which would defeat its object and purpose, a clear reference to the principle set
out in Art. 18 of the Vienna Convention on the Law of Treaties.
By operative para. 8, the General Assembly decided to fund the International Sea-
bed Authority from the regular budget of the United Nations for an interim period,
the details of which are set out in Section 1 of the Annex to the Agreement as well
as, subsequently, in decisions oI the FiIth Committee oI the General Assembly. It
was noted in the consultations that, with the entry into force of the Convention, the
Preparatory Commission would cease to operate, thereby resulting in a saving on
the regular budget. According to Part XI, the Authority was to have its own budget,
funded by contributions by States Parties in the early years. It was also noted that the
frst 60 oI the ratifers oI the Convention represented a relatively small portion oI the
UN budget and that it was necessary to ensure the sound fnancing oI the Authority
in its initial months. The solution was to provide for funding from the UN budget
during an interim period.
15
Operative para. 9 requested the Secretary General to transmit immediately certi-
fed copies oI the Agreement to States eligible to sign and ratiIy it with a view to Ia-
cilitating universal participation. In accordance with para. 10, the Secretary General
arranged for the Agreement to be open for signature on 29 July 1994. The General
Assembly by para. 11 urged States to consent to the provisional application of the
Agreement from 16 November 1994 and to ratify the Agreement as soon as possible.
At the same time para. 12 urged States to ratify or accede to the Convention at the
earliest possible date. Finally, operative para. 13 called upon PREPCOM to take ac-
count of the Agreement when it met during the following two weeks in order to draw
up its Final Report. PREPCOM proceeded to do so.
16
The above survey demonstrates that the Resolution, which spoke from the time of
its adoption, covered in an appropriate way many of the key elements to be found in
the Agreement appended to the Resolution.
III The Agreement Relating to the Implementation of Part XI
The Agreement consists of a preamble, 10 Articles and an Annex divided into 9 sec-
tions.
The preamble begins by recognising the important contribution which the Con-
vention makes to the maintenance of international peace and security, as well as to
justice and progress Ior all peoples oI the world. The recital echoes the frst recital
to the Convention itselI. Similarly, the preamble reaIfrms the principle oI the Com-
mon Heritage of Mankind. In response to suggestions by Chile, the preamble then
15 The Fifth Committee of the General Assembly recommended acceptance on 17 June
1994 (A/C.5/48/80). The Fourth Report of the Advisory Committee on Administrative
and Budgetary Questions Iound that an extra $ 93,000 would be required Ior 199495
(A/49/7 Add. 3). However, in December 1994, the General Assembly decided there
should be no such increase.
16 Statement by the Chairman oI PREPCOM LOS/PCN/L. 115, 11 August 1994. Paras. 16,
17, 22, 37 and 39 took account of the Agreement.
354 Chapter 20
refers to the importance of the Convention for the protection and preservation of the
marine environment. Concerns about the environment were voiced quite Irequently
during the consultations, but it was agreed that they did not represent an obstacle to
ratifcation by industrialised states. Accordingly, environmental issues were leIt Ior
consideration by the International Seabed Authority. The preamble also notes the
political and economic changes since 1982 which have affected the implementation
of Part XI. The aim of universal participation is then stated and the purpose of the
Agreement is given as being to meet that objective.
Art. 1 of the Agreement lays down the fundamental obligation to do with the im-
plementation of Part XI. Part XI is to be implemented in accordance with the Agree-
ment, of which the Annex forms an integral part. Art. 2 establishes the relationship
between the Agreement and Part XI. The two are to be interpreted and applied to-
gether as a single instrument and in the event of any inconsistency the provisions
of (the) Agreement shall prevail. These two Articles are the sole substantive or op-
erative provisions of the Agreement. The remaining eight Articles concern signature,
ratifcation and such matters. Art. 1, however, brings with it the whole oI the Annex.
Art. 2 has the effect that where Part XI says one thing and the Annex says another, it
is the Annex which prevails. Part XI has not been amended in a textual sense, but its
eIIect has been modifed by the Annex.
The fnal clauses (Art. 310) contain some straightIorward provisions, such as Art.
3 regarding signature, and some such as Art. 4, 5, 6 and 7 which contain novelties or
break new ground.
Art. 4 concerns the establishment of consent to be bound by the Agreement. Para.
1 and 2 spell out some consequences oI the rule in Art. 2 (1) that the Agreement
and Part XI of the Convention are to be interpreted and applied together as a single
instrument. Thus, instruments oI ratifcation, etc. in respect oI the Convention also
represent consent to be bound by the Agreement. This provision was linked to the
paragraph in the Resolution requesting the Secretary General to transmit immediately
certifed copies oI the Agreement to those states and entities entitled to sign it. Para. 2
gives an assurance to those states which have ratifed the Convention that other states
may not ratiIy the Agreement unless they have previously ratifed the Convention or
ratify it at the same time.
Para. 3 of Art. 4 sets out a range of methods by which states may become party to
the new Agreement. First, a state can become a party by signature alone. Belize and
Kenya took advantage of this possibility. Secondly, signature may be made subject to
ratifcation. This course was Iollowed by the United Kingdom, and also by Germany
which has now also proceeded to ratify. Thirdly, signature could be subject to the
procedure described in Art. 5. Art. 5 contains the 'simplifed procedure, according
to which a state which has ratifed the Convention and which signs the Agreement is
to be considered to have established its consent to be bound by the latter after twelve
months from the date of its adoption, that is to say by 29 July 1995, unless the state
notifes the depositary that it is not availing itselI oI this simplifed procedure. Twen-
ty-six parties to the Convention have signed the Agreement and may avail themselves
oI Art. 5. We shall know in July. The technique oI tacit consent is well-known in the
IMO: both the SOLAS
17
and MARPOL
18
conventions provide for tacit consent to
amendments.
Art. 6 provides Ior the entry into Iorce oI the Convention. It requires the establish-
ment of consent by forty states, compared with sixty in the case of the Convention.
However, there is a proviso: the forty have to include at least seven states which have
invested in deep seabed mining within the meaning oI Resolution II and at least fve
of the seven have to be developed states. The investor states, whose decision is of
particular importance for entry into force of the Agreement, are: Belgium, Canada,
France, Germany, Italy, Japan, the Netherlands, Russia, the United Kingdom, the
United States of America, India, China and the Republic of Korea. These thirteen
states, ten developed and three developing in a sense have the fate of the Agreement
in their hands. So far, all apart from Russia have signed and all are applying it pro-
visionally, but only Germany and Italy have ratifed the Agreement. It is noteworthy
that six oI the thirteen are members oI the European Union.
Art. 7 concerns the provisional application of the Agreement. In many ways, it
was the most diIfcult provision to draIt Irom the technical point oI view. The inten-
tion was to allow as many different ways as possible for states to agree to apply the
Agreement provisionally with effect from 16 November 1994 when the Convention
entered into force. The aim was achieved: the budgetary arrangements were endorsed
by the General Assembly and a suIfciently large number oI States applied the Agree-
ment provisionally for the inaugural meeting of the International Seabed Authority to
proceed on that basis. The risk, which was seen during the consultations, of having
two regimes and two schools of states has been averted.
Many states had constitutional problems about provisional application: Art. 7 tries
to meet as many of the problems as possible. Sub-paragraph (a) provides for provi-
sional application by states which voted in favour of the Resolution in the General
Assembly, hence the recorded vote. However, the facility of notifying the depositary
to the contrary is also allowed. Six states notifed the Secretary-General according-
ly. Sub-paragraph (b) provides for provisional application by states which sign the
Agreement, but once again the possibility of notifying the depositary to the contrary
is also included and ten signatories took advantage of this possibility, including three
parties to the Convention (Brazil, Uruguay and Cyprus). The third category oI pro-
visional application is by states which so notify the depositary in writing: Russia,
having abstained in the vote on 28 July 1994, notifed the Secretary-General oI its
decision to apply the Agreement provisionally on 11 January 1995. Finally, states
which accede to the Agreement are to apply it provisionally. This category includes
states which have not signed the Agreement, for example because they had not come
to independence on 29 July 1994.
Provisional application is stated by para. 2 to be in accordance with national or
internal laws and regulations. In the spirit of Art. 25 of the Vienna Convention on
17 Convention on the SaIety oI LiIe at Sea (Consolidated Edition 1992, IMO). Art. VIII
provides for tacit approval of amendments.
18 Convention on the Prevention of Pollution from Ships 197378. Art. 16 provides for tacit
amendment (Consolidated Edition, 1991, IMO).
356 Chapter 20
the Law of Treaties, this was intended in the consultations to mean that states are
expected, in good faith, to apply those existing laws and regulations which assist
with the application of the Agreement, but that since provisional application is for an
interim period states may not have in place each and every new law and regulation
required to implement the Convention and the Agreement. According to para. 3, pro-
visional application is to terminate upon the entry into force of the Agreement. But
in any event, provisional application is to terminate on 16 November 1998 if at that
time the parties do not include seven oI the thirteen investor states including the fve
developed states. II that criterion is Iulflled, iI Ior example the six member states oI
the European Union plus, say, Canada or China or India have ratifed the new Agree-
ment, then provisional application would continue until entry into force.
The remaining Articles 8, 9 and 10 are taken from the Convention and call for no
special comment. Art. 8 allows the European Community to become a party once a
majority of Member States (8) have done so.
IV The Annex to the Agreement
The Annex to the Agreement is divided into nine sections. The frst eight deal with
the eight 'hard core issues identifed at the start oI the Secretary General`s consulta-
tions. Section 9 creates the Finance Committee.
A Section 1
In the consultations there was a consensus that the costs to States parties should be
minimised. One way to do this was to make sure that all the institutions established
by the Convention were cost-effective. This decision in the consultations applied
not only to the Authority but also exceptionally to the International Tribunal for the
Law of the Sea and the Commission on the Limits of the Continental Shelf. It was
agreed that the institutions should evolve according to functional needs. Meetings of
the Authority would be streamlined and reduced in numbers. Some of the subsidiary
organs were regarded as unnecessary at a time when there was no mining activity.
These decisions are recorded in paras. 2 to 5 of section 1.
Paras. 6 to 11 deal with a different matter, namely the processing of applications
for plans of work for exploration. Different transitional arrangements are laid down
for the Registered Pioneer Investors and the potential applicants. These issues were
controversial and proved to be among the last to be settled.
Para. 12 deals with another separate issue, namely the position of states which
have been applying the Agreement provisionally after the Agreement has entered
into force. If the Agreement enters into force within two years of the Convention, i.e.
by 16 November 1996, then membership on a provisional basis ends either on that
date or upon earlier ratifcation oI the Agreement and the Convention. The Council
may extend this period for a further period or periods not exceeding two years if the
state concerned is making efforts to ratify the Agreement and the Convention. If,
on the other hand, the Agreement enters into force only after 15 November 1996,
then states applying the Agreement provisionally may request the Council to grant
continued membership on a provisional basis for a further period or periods not ex-
tending beyond 16 November 1998 and the Council shall grant such membership if
it is satisfed that eIIorts towards ratifcation are being made. Para. 12 (c) makes clear
that provisional members shall apply Part XI and the Agreement subject to national
legislation and annual budgetary appropriations. They must contribute to the admin-
istrative budget of the Authority and have the right to sponsor an application for the
approval of a plan of work for exploration.
Para. 14 deals with the Authoritys budget. At present, its expenses are being met
through the UN budget and this situation is to continue until the end of the year fol-
lowing the year in which the Agreement enters into force. For example, were the
Agreement to enter into force this summer, then the budget would be met by the
UN during the remainder of this year and throughout 1996. The Authority would be
funded by the state parties from 1 January 1997, according to an agreed scale to be
drawn up. That arrangement will last until such time as the Authority has suIfcient
funds from the proceeds of mining in order to meet its administrative expenses.
B The Enterprise
The question oI the Enterprise was one oI the most controversial. Industrialised coun-
tries objected to the requirement under Part XI Ior state parties to Iund the frst mine
site and objected also to the discrimination in its favour. In the consultations, the
need Ior an Enterprise was questioned, notably by the Netherlands. The G 77 wished
to have a direct involvement in realising the common heritage. After discussion, it
was decided to retain the concept oI the Enterprise, but to change the terms oI its op-
eration. In the initial stages, the Enterprise is to operate Irom within the Secretariat.
There is to be an interim Director General who will oversee some introductory func-
tions, mainly monitoring developments and assessing data. The Council is to take
up the question oI the independent Iunctioning oI the Enterprise when approval oI
a plan of work for exploitation is given or when the Council receives an application
Ior a joint venture with the Enterprise. The initial operations oI the Enterprise are to
be conducted through joint ventures, which shall operate in accordance with sound
commercial principles. It follows that the obligation of the parties to fund a mine
site becomes redundant, so there is no longer any need for the funding provisions in
the Convention and Annex IV. Para. 3 of section 2 makes clear that states are under
no obligation to fnance any oI the operations oI the Enterprise. The Enterprise is to
enter into contracts with the Authority for its plans of work. A contractor who has
contributed a site to the Authority has frst reIusal to enter into a joint venture with
the Enterprise in relation to that site.
C Decision-Making
In the consultations, it was agreed that a generally acceptable procedure for the tak-
ing oI decisions was required in order to ensure confdence in the Authority and its
organs. The Council was seen as having a pivotal role. Accordingly, a system of
voting by Chambers consisting of different categories of states was examined and
358 Chapter 20
ultimately incorporated into section 3. As a general rule, decisions are to be taken
by way of consensus and it is only when all efforts to reach consensus have been
exhausted that voting may take place. A two-thirds majority is required in both the
Assembly and in the Council, subject to the proviso that in the Council decisions are
not opposed by a majority in any one of three groups, namely the consumers, the in-
vestors and the producers, as well as the grouping of the developing countries elected
to represent special interests or to ensure equitable geographical distribution oI seats
in the Council as a whole.
The Assembly is to elect the Council at the Session beginning on 27 February 1995.
At present, the Secretariat is working on papers listing countries which may Iulfl the
criteria Ior membership in the diIIerent groups, as required by para. 9 (b). Compli-
cated tables of statistics are being examined. In addition, decisions will have to be
taken as to how to count the value of investments. It is not clear, for example, which
are the eight largest investors in deep seabed mining. Similarly, it is not clear which
states have consumed more than 2% in value terms of the total world consumption of
copper, nickel, cobalt and manganese. Interesting discussions are in prospect.
D Review Conference
In the consultations, several developed countries expressed doubts on constitutional
grounds about Art. 155. The United States and Germany were included in the coun-
tries which had constitutional diIfculties. Several ideas were advanced Ior modiIying
the terms under which the Review Conference would be called. However, in the end
the simplest solution was to drop the idea of having a Review Conference. Instead,
the provisions in the Convention about its amendment would apply to the amend-
ment of the Agreement and Part XI. However, the principles mentioned in Art. 155
(2) were maintained.
E Transfer of Technology
Industrialised countries and their mining industries feared that the terms of Part XI
would require the mandatory transIer oI technology. This was Ielt to be a bad prec-
edent. These Iears were eased by the joint venture system involving the Enterprise.
Section 5 provides that the Enterprise and developing states wishing to obtain tech-
nology may seek it on commercial terms on the open market or through joint ven-
tures. II they are unable to obtain the technology, the Authority may then request the
contractors and sponsoring states to cooperate in Iacilitating the acquisition oI tech-
nology on fair and reasonable commercial terms, consistent with the protection of
intellectual property rights. States undertake to cooperate effectively for this purpose.
These provisions should allay the fears of all concerned.
F Production Policy
Industrialised states were opposed to the idea of imposing a limit on seabed produc-
tion. Moreover, in the consultations, the formula in Art. 151 was seen not to be a prac-
tical one. In the 1980s the growth in consumption of nickel fell as a result of the world
recession and the formula would have become more restrictive than had been envis-
aged in the 1970s when it was drafted. There was a clear case of a change in economic
conditions which had come about since the terms of Part XI were drawn up.
Section 6 substitutes for the production formula in Art. 151 a new system based
on GATT, including the new WTO Agreements resulting from the Uruguay Round.
There is to be no subsidisation of deep seabed mining beyond what may be allowed
under GATT. There is to be no discrimination between minerals from the deep seabed
and those from other sources, nor is there to be any preferential access to markets or
for imports. This arrangement should be fair to all.
G Economic Assistance
In the consultations, it was agreed that developing land based producers whose econ-
omies were affected by new deep seabed mining should be provided with some eco-
nomic assistance. However, this should not be treated as compensation for loss of a
competitive advantage. Instead, they should receive assistance from the proceeds of
mining. Assistance would be provided in cooperation with the international fnancial
institutions which have the expertise to frame and carry out assistance programmes.
H Financial Terms of Contracts
Western industrialists Ielt that the fnancial terms oI contracts laid down in Part XI
were too onerous. In particular, the industry complained about high initial payments
and high rates of taxation, which they felt would chill investment.
In section 8, it was agreed that some golden principles would be established as
the basis for a future negotiation when the economic circumstances could be taken
into account. The system of payments is to be fair to both the contractor and the
Authority. The rates are to be within the range of those applying in respect of land
based mining of copper, etc. The system is not to be complicated. One possibility is
a royalty system. The annual fee is to be payable only from the start of commercial
production. The application fees are also reduced. These arrangements should avoid
the chill factor, whilst still allowing for normal levels of taxation in the future.
I Finance Committee
Section 9 implements Art. 162 (2) (y) of the Convention by establishing a Finance
Committee oI fIteen members. It is modelled on the ACABQ. It will advise both the
Council and the Assembly.
IV Overall Assessments
Two themes of this Symposium are 1) the redistribution of powers between states
and international organisations and 2) the possibility of the Agreement serving as a
model.
360 Chapter 20
The Convention and, now, the Agreement have created or constituted the Au-
thority and the Tribunal, as well as the Commission on the Limits of the Continental
ShelI. Each body has a defned role and powers. A State, upon becoming a party,
surrenders certain competences, but acquires new ones as a member oI the Authority
or as a party able to invoke the Convention vis--vis other parties and, in some cir-
cumstances, non-parties
19
. Clearly, there is a redistribution of some national and in-
ternational competences. This redistribution is most apparent in relation to the man-
agement of deep seabed mining. The redistribution is much less apparent in the case
of the management of living resources beyond the limits of the national jurisdiction.
Certain aspects of the issue are under discussion in the UN Conference on Straddling
Fish Stocks and Highly Migratory Fish Stocks.
The origin of the consultations was dissatisfaction with Part XI, including
the fear by industrialised states that it would set some undesirable precedents. The
Agreement was not framed in order deliberately to set new precedents. Rather, it was
a pragmatic attempt to solve in the 1990s specifc problems with concepts dating
from the 1970s. It was the product of a last-minute exercise before entry into force of
the Convention: the calling of the consultations, their conduct and their outcome all
showed innovation and improvisation. If the Agreement eventually proves to have set
new precedents, this would be an unexpected side-effect.
The Agreement has quickly attracted signatures or support Ior provisional applica-
tion Irom all the signifcant industrialised states, as well as Irom signifcant devel-
oping states, including several parties to the Convention. The legislatures of many
industrialised states are currently considering ratifcation or accession to the Con-
vention and ratifcation oI the Agreement. The latter appears to have met the prob-
lems voiced by industrialised countries in the Secretary Generals consultations. It
seems to have struck a fair balance between the principle of the Common Heritage
of Mankind and the aspirations of developing countries on the one hand, and current
attitudes towards economic issues and the positions of industrialised countries, on
the other. More widely, the Agreement has rescued the Convention on the Law of the
Sea from an uncertain fate by opening up a real possibility for achieving the goal of
universal participation in the Convention. A great tribute is due to the leaders of the
Group of 77 who accepted the need to compromise over Part XI in order to secure the
support of the industrialised world for the Convention and its institutions.
19 For a detailed review, see R. WolIrum, 'Entry into Force: Legal EIIect Ior Parties and
Non-Parties, in Nordquist and Norton Moore (eds.), Entry into Force of the Law of the
Sea Convention (1994), p. 161.
Part 4
The Implementation Agreement of 1995
Chapter 21
The Straddling Stocks Agreement of 1995*
ON 4 August 1995 the UN Conference on Straddling Fish Stocks and Highly Migra-
tory Fish Stocks, at its sixth session, adopted without a vote the text of the Agree-
ment for the Implementation of the provisions of the United Nations Convention
on the Law of the Sea relating to the Conservation and Management of Straddling
Fish Stocks and Highly Migratory Fish Stocks.
1
The title is often shortened to the
Straddling Stocks Agreement. To date, the Agreement has 62 parties.
2
It marks a
signifcant clarifcation and development in the rules oI international law relating to
fshing on the high seas, within the Iramework oI the UN Convention on the Law oI
the Sea.
* This chapter is based on a paper read to the Public International Law Group of the Socie-
ty oI Public Teachers oI Law, CardiII Law School on 13 Sept. 1995. It was frst published
in 45 ICLQ (1996) 463-475. The information regarding the status of the Agreement has
been updated: current information is available on www.un.org/Depts/los.
1 A/CONF.164/37. The Conference was convened by the UN General Assembly by
Res.47/192 of 1992, 48/194 of 1993 and 49/121 of 1994.
2 The parties include Australia, Belize, Canada, the European Community and its member
States, Iceland, Japan, Liberia, Namibia, New Zealand, Norway, Russian Federation,
Senegal, South Africa, the Ukraine and the United States.
364 Chapter 21
I The Evolution of Customary and Conventional Law on High Seas
Fisheries to 1993
Freedom oI fshing was one oI the Ireedoms oI the high seas under customary law.
In Iormer times fsh were considered to be unlimited resources. In 1958 the frst UN
Conference on the Law of the Sea adopted two conventions which are relevant in the
present context. First, the Convention on the High Seas codifed the concept oI the
Ireedom oI the high seas to include Ireedom oI fshing. However, this Ireedom has
to be exercised by all States with reasonable regard to the interests of other states in
their exercise of the freedom of the high seas.
3
Second, the Convention on Fishing
and Conservation of the Living Resources of the High Seas subjected the freedom
oI fshing to three specifc qualifcations: to a State`s treaty obligations; to the inter-
ests and rights oI coastal States; and, signifcantly, to the requirements oI conserva-
tion. These qualifcations gave particular expression to the 'reasonable regard test.
The Convention introduced the duty of States to adopt (or to co-operate with other
States in adopting) for their nationals measures needed for conservation.
4
However,
the Convention, drawn up in the context of narrow limits of national jurisdiction,
attracted less support than the other Geneva Conventions adopted in 1958, being
rejected by coastal States in Latin America and Iceland which favoured wider limits.
5
In the Fisheries Jurisdiction case (UK v. Icelana) the International Court of Justice
applied as part oI customary law the 'reasonable regard qualifcation, reIerring to
'the generally recognized principles embodied in Article 2.
6
In other words, in both
conventional and customary law the freedom was not absolute, although the extent
oI the qualifcation was vague and oIten ignored in practice.
As Iar as fsheries were concerned, the Third UN ConIerence on the Law oI the
Sea concentrated its efforts upon articulating the concept of the exclusive economic
zone and laying down the regime to apply within it. As part oI the regime Ior the
EEZ, the Convention included two provisions which looked beyond the zone`s outer
limit. Article 63(2) required the coastal State and States fshing in an area beyond and
adjacent to the 200-mile limit to seek to agree on the measures necessary for the
conservation of [straddling] stocks in the adjacent area, either directly or through an
appropriate organisation; and Article 64 called Ior co-operation between the coastal
State and States fshing in the region with a view to conserving highly migratory spe-
cies such as tuna and swordfsh.
At the ConIerence less attention was paid to the fsheries regime beyond 200 miles
where, in the mid-1970s, there was relatively little fshing. Accordingly, aIter little or
no discussion many of the relevant provisions in the two Conventions of 1958 were
3 Art. 2 of the Convention on the High Seas, Cmnd. 584, p. 27.
4 Art. 1 (Cmnd. 584, p. 34). Oppenheims International Law (9th edn), Vol. I, p. 759 com-
pares the two conventions in a similar way.
5 There are 38 states parties, compared with 63 in the case of the Convention on the High
Seas. On the High Seas Fishing and Conservation Convention, see D.W. Bowett, The
Law of the Sea (1967), Chap. III.
6 ICJ Rep. 1974, p. 3 (see Chapter 10).
365 The Straddling Stocks Agreement of 1995
simply reproduced in the provisions about the high seas contained in the Informal
Single Negotiating Text of 1975 and eventually in the new Convention of 1982. The
Ireedom oI fshing appears in Article 87, together with the need to pay reasonable
regard (or, rather, due regard) to the interests of others. Many of the provisions
in the High Seas Fishing Convention of 1958 were incorporated, as Articles 116 to
120. However, by 1982 there was the signifcant diIIerence that, in most parts oI the
world, with the notable exception of the Mediterranean Sea, these provisions now
related to fshing beyond 200 miles, not beyond 12 miles. The simple duties to seek
agreement or to co-operate over the adoption of conservation measures, laid down
in Article 63 for straddling stocks and in Article 64 for highly migratory species, left
open the question oI what should happen when eIIorts to co-operate had Iailed to
produce agreement. A proposal for arbitration, advanced by some coastal States at a
late stage oI the ConIerence, met with opposition Irom distant-water fshing States
and was withdrawn.
7
In the late 1980s and early 1990s ProIessor William Burke criticised the fsheries
provisions in the Convention. In his monograph entitled The New International Law
on Fisheries: UNCLOS1982 and Beyond, he concluded that with the exception of
Article 116 the directions in CLOS are not helpful. It is the continued authority of
the principle oI Ireedom oI fshing that requires modifcation.
8
Concerns also began to be voiced about the general state oI world fsheries.
9
These
concerns related in particular to some 200-mile zones which had been mismanaged
and over-fshed, as well as to some new fsheries which had been developed just be-
yond the 200-mile limit. The straddling stock phenomenon began to give rise to con-
cerns on the Grand Banks of Newfoundland, in the Bering Sea (the doughnut hole),
the Barents Sea (the loophole), the Sea of Okhotsk (the peanut hole) and off
Patagonia and the Falklands.
10
In the last case, the Illex squid stock migrates across
the 200-mile limits during its annual life-cycle. Concerns over the rising catches of
7 Proposal by Argentina and others, A/CONF.62/L. 114 of 15 Apr. 1982 (details in Nandan
and Rosenne, UNCLOS 1982 Commentary (Nordquist (ed.)), Vol. II, pp. 644 et seq.). For
the history of the Articles, see also UN Secretariat, The Regime for High Seas Fisher-
ies (1992). For analysis, see Principles Applicable to Living Resources occurring both
within and without the EEZ, Report by EEZ Committee (ProI. Lagoni, Rapporteur) to
the Cairo Conference of the ILA (1992).
8 (1994), p. 350.
9 The concerns led to the Declaration of Cancun and the decision of FAO to begin work on
a Code of Conduct of Responsible Fishing, work which has now been concluded by the
adoption of the Code by the FAO Council in Oct. 1995. See also Kwiatowska, The High
Seas Fisheries Regime: At a Point of No Return? (1993) 8 Int. J. Marine and Coastal L.
327.
10 For details, see World Review of Highly Migratory Species and Straddling Stocks, FAO
Fisheries Technical Paper 337 (1994). For a general survey of the problems, with detailed
inIormation and useIul maps, see E. Meltzer, 'Global Overview oI Straddling and Highly
Migratory Fish Stocks: The Non-Sustainable Nature of High Seas Fisheries (1994) 25
ODIL 255. For Sea oI Okhotsk, see A. Oude ElIerink (1995) 10 IJMCL 1. For the Barents
Sea, see Churchill and Ulfstein, Marine Management in Disputed Areas, Chap. 4.
366 Chapter 21
tuna, especially in the Pacifc, as well as the bill-fshes (swordfsh and blue marlin,
for example) were voiced. Several problems were observed. First, there was a lack of
catch statistics Ior fshing on the high seas, despite the eIIorts oI the FAO to collect
data. Second, some fag States Iailed to control vessels fying their fag in an eIIective
way, especially when fags oI convenience began to appear in the fshing industry.
Third, several coastal States feared that catches taken just beyond the 200-mile limit
would have an adverse effect upon their catches and conservation policies within that
limit.
The world fsh catch rose inexorably during the 1980s and peaked in 1989, since
when it has been Ialling. Concerns about the state oI world fsheries and the health oI
the oceans persisted. In 1995 the FAO reported that about 70 per cent of the stocks
were either fully to heavily exploited, over-exploited, depleted or slowly recovering.
Numerous developing States, highly dependent upon fsh as their main source oI pro-
tein, Iear the consequences oI over-fshing by distant-water feets using sophisticated
vessels, oIten subsidised by the fag State. At the same time, some distant-water fsh-
ing States have high consumption rates and a large domestic fsh market to satisIy.
At the UN ConIerence on Environment and Development (UNCED), held in Rio
de Janeiro in 1992, these problems were identifed and listed: unregulated fshing,
over-capitalisation, excessive feet size, vessel refagging to escape controls, insuIf-
ciently selective gear, unreliable databases and lack oI suIfcient co-operation between
States.
11
(The list is repeated in the preamble to the Straddling Stocks Agreement.)
At UNCED the precautionary principle and the concept oI large marine ecosystems
were put Iorward. UNCED also established a programme oI conIerences: biodiver-
sity, climate change and, on the proposal oI Canada, straddling fsh stocks and highly
migratory fsh stocks. Largely at the insistence oI the European Community, it was
agreed that this last conference must work within the framework of the LOS Conven-
tion: there could be no amendment or reopening of its terms and, in particular, the
200-mile limit could not be altered. Chapter 17 of Agenda 21 states that the confer-
ence was to be held:
12
with a view to promoting effective implementation of the provisions of the United Na-
tions Convention on the Law oI the Sea on straddling fsh stocks and highly migratory
fsh stocks. The conIerence, drawing, inter alia, on scientifc and technical studies by
FAO, should identify and assess existing problems related to the conservation and man-
agement oI such fsh stocks, and consider means oI improving cooperation on fsheries
among States, and formulate appropriate recommendations. The work and the results of
the conference should be fully consistent with the provisions of the United Nations Con-
vention on the Law of the Sea, in particular the rights and obligations of coastal States
and States fshing on the high seas.
11 For documents on the Rio Conference, see (1992) 31 ILM 814. See also Agenda 21 and
the UNCED Proceedings, Nicholas A. Robinson (ed.) Vol. IV, p. 307.
12 Ibid.
II The Work of the Straddling Stocks Conference 19931995
The Conference began work in 1993 in New York and faced several controversial
issues:
(1) whether the work should be confned to the high seas (in practice, beyond 200-
mile limits) or should also concern aspects oI the regime within the EEZ;
(2) whether the Conference should adopt recommendations or a binding agree-
ment;
(3) how to ensure that the terms of any recommendations or agreement would be
compatible with the Law oI the Sea Convention oI 1982;
(4) how best to improve conservation and management and how to strengthen co-
operation.
According to the Rules of Procedure of the Conference,
13
it was to attempt to work
by way of general agreement or consensus. As at the Third LOS Conference, only
when all efforts to reach consensus had been exhausted could there be recourse to
voting. Another interesting feature of the Rules of Procedure was the participation
oI the European Community as a Iull participant (its representatives seated between
Egypt and Fiji in the conIerence hall), together with its member States. However, the
member States refrained from speaking, except for two British statements in respect
of dependent territories.
14
The Community co-ordinated its position in Brussels and
in New York and the Commission put it Iorward as the negotiator. This was the frst
legal or fsheries conIerence in the UN where this had been the procedure, although
it has long been followed in NAFO and NASCO.
15
The ConIerence quickly divided into Iactions Iamiliar Irom the Third LOS Con-
Ierence: coastal States; distant-water fshing States: States with both interests. Few
landlocked States attended, for understandable reasons. About 120 delegations took
part. Most prominent in debates were States Irom the Americas, the Pacifc (notably
the members oI the Forum Fisheries Agency), East Asia, Eastern Europe and West-
ern Europe: less prominent were States Irom AIrica, the Caribbean and West Asia.
Several particular areas of controversy, especially the Grand Banks and the Sea of
Okhotsk, were often in the minds of delegates during the talks. The Chairman led the
discussions actively at all six sessions, as well as at informal, inter-sessional meet-
ings in New York, Buenos Aires, Geneva and Washington. He put forward working
papers, invited comments and revised the papers in the light of the debates, a process
repeated many times. The oIfcial records are sparse, the negotiations having been
conducted largely in informal meetings. In short, working methods were modeled on
13 A/CONF.164/6.
14 UK Materials on International Law (1993) 64 BYIL 674675.
15 Cmnd.7569 (Northwest Atlantic Fisheries Organisation) and Cmnd. 8830 (North Atlan-
tic Salmon Conservation Organisation).
368 Chapter 21
those of the Third LOS Conference, not the First.
16
Particularly signifcant was the
lack of formal debate on the proposals of delegations.
Writing between the Iourth and fIth sessions, ProIessor Freestone sounded a per-
tinent warning:
17
iI the international community is not able to develop a suIfciently robust regime to ad-
dress what appear to be the quite legitimate resource management concerns oI coastal
states, then it seems increasingly likely that the delicately negotiated checks and balances
of the LOSC regime will be set aside and coastal states will take matters into their own
hands.
Professor Burke was more explicit: further extensions of national jurisdiction are
the price of failure to agree on new mechanisms for dealing with transnational prob-
lems.
18
Similar thoughts were no doubt in the minds of delegates, especially in the
light oI various regional disputes over fsheries. The fnal two sessions saw intensive
negotiations, leading to the adoption of the Agreement by consensus on the proposal
of the Chairman. The outcome remained in doubt until the last moment.
III The Terms of the Agreement of 1995
The Agreement consists of 50 articles, and is divided into 13 parts, plus two annexes.
In other words, the Agreement is a detailed and signifcant text by any standards,
which will no doubt be the subject of full analysis by commentators (something be-
yond the scope of this initial assessment). The Agreement, according to its title, is an
implementation instrument; but it is diIIerent Irom the Implementation Agreement on
Part XI, adopted in 1994,
19
in that it is possible to become a party to the Agreement of
1995 without necessarily being a party to the Convention, and vice versa. It remains
true, however, that the Agreement and the Convention are intimately bound together:
Article 4 of the Agreement calls for it to be interpreted and applied in the context
of and in a manner consistent with the Convention. Indeed, it would be appropriate
in construing either instrument to have regard to the other. In construing the relevant
provisions of the Convention, for example, it would probably now be considered
appropriate in many if not all instances to take into account the terms of the Agree-
ment, as a 'subsequent agreement . regarding the interpretation oI |a| treaty or the
application of its provisions, within the meaning of Article 31(3)(a) of the Vienna
Convention on the Law of Treaties, if only because the interpretation and application
of a treaty are inextricably bound up with its implementation. The Agreement imple-
16 R.P. Barston, Modern Diplomacy (2nd edn,), discusses the different working methods of
the various post-UNCED ConIerences.
17 D. Freestone, 'The EIIective Conservation and Management oI High Seas Living Re-
sources: Towards a New Regime (1994) 5 Canterbury L.Rev. 341.
18 Burke, op. cit. supra n. 8, at p. 350.
19 Agreement relating to the Implementation of Part XI of the United Nations Convention
on the Law of the Sea, New York 29 July 1994: Cm. 2705.
ments in detailed terms the broad duties to co-operate set out in Articles 63(2), 64
and 117 oI the LOS Convention. The contents oI these duties are now clarifed in the
Agreement. It implements also the provisions in Articles 116 to 120 of the Conven-
tion by spelling out in detail the content of the respective rights and duties of coastal
States and fag States, as well as the 'interests oI coastal States as recognised (but
not clearly identifed) in Article 116(b).
Part I contains defnitions and general provisions. Several points may be noted
on the defnitions. First, the term 'fsh is defned in Article 1(1) so as to include
molluscs such as squid, as well as non-sedentary crustaceans.
20
However, the terms
'straddling and 'highly migratory fsh stocks are not defned. The latter term is
defned in Article 64 oI and Annex I to the Convention; this defnition applies also
to the Agreement, but with the omission of cetaceans. The concept of straddling in
the context of the Agreement is that of straddling the outer limit of national jurisdic-
tion over fsheries (normally the 200-mile limit). 'Non-straddling or 'non-highly
migratory species, such as anadromous and catadromous species, being dealt with
in Articles 66 and 67 of the Convention, were not intended to be covered by the terms
of the Agreement. Second, as with the LOS Convention, the term States Parties is
defned in Article 1(2) so as to encompass the European Community once it became
a party. Third, the Agreement is seemingly intended to be applicable in principle to a
'fshing entity whose vessels fsh on the high seas; Taiwan may have been in mind.
Article 2 states the objective of the Agreement: to ensure the conservation of the
relevant stocks through effective implementation of the Convention. According to
Article 3, the Agreement applies beyond areas under national jurisdiction except that
certain important articles about the conservation and management of stocks apply
also within the 200-mile limit. This may improve management oI stocks in EEZs. An
analysis of the Agreement by Greenpeace criticised its limited scope, contending that
its terms apply to only 20 per cent oI world fshing.
21
This criticism overlooks the im-
pact oI Article 3 in applying Articles 5, 6 and 7 also within the EEZ. In consequence,
the principles in those Articles are applicable to the greater part oI world fshing.
Part II sets out the principles relating to conservation and management. These
important provisions mark an advance in conventional international standards for
fsheries management. Articles 5, 6 and 7 are the most detailed statements in treaty
Iorm oI the duties oI States in this regard. Article 5 requires States to adopt meas-
ures designed to ensure long-term sustainability oI fsh stocks, refecting the concept
of sustainable development advanced in the Brundtland Report
22
and endorsed by
20 In 1994 Canada arrested a US-fagged scalloper more than 200 miles oII NewIound-
land and charged the master with the unlawful taking of sedentary species subject to the
regime of the continental shelf, contrary to Canadian legislation. The US, after consid-
eration, conceded that the scallops were sedentary and subject to Canadian jurisdiction
(Globe and Mail, 25 Nov. 1994).
21 Greenpeace International, Analysis of the UN Treaty for the Conservation and Manage-
ment of Straddling Fish Stocks and Highly Migratory Fish Stocks (Dec. 1995).
22 Our Common Future, report by the World Commission on Environment and Develop-
ment: A/42/427 (1987).
370 Chapter 21
UNCED.
23
States are to ensure that measures are based on the best scientifc evidence
available (as also in the case of Article 61 of the Convention). Measures are to take
account of the effect on species belonging to the same ecosystem or dependent on
the target stocks, refecting the concept oI large marine ecosystems. Use oI selective,
environmentally saIe and cost-eIIective fshing gear and techniques is required: this
should help to preserve the albatross, a current cause of concern. Biodiversity in spe-
cies oI fsh is to be preserved.
Article 6 breaks important new ground by applying the precautionary approach
to fshing Ior straddling and migratory stocks. Article 6 develops, in the context
oI fsheries, the precautionary principle adopted at the Rio ConIerence. It does so
without in any way creating a moratorium on fshingsomething which was un-
acceptable to distant-water fshing States. Once that concern was met, the Article
became less controversial, although its precise terms took time to formulate. The
precautionary approach is especially relevant in the case oI new fsheries, or where
statistics or scientifc assessments are inadequate. Annex II, which was Iormulated
by an expert committee chaired by Dr A. Rosenberg of the Woods Hole Labora-
tory, contains Guidelines for Application of Precautionary Reference Points, based
on sound science. Such reference points are estimated values corresponding to the
state oI the resource and oI the fshery. Article 6(4) requires States to ensure that
when reference points are approached they will not be exceeded. Stocks (whether
target or non-target) which become the subject of concerns have then to be monitored
in greater depth. II a natural event, such as a change in ocean currents like El Nino,
adversely aIIects the status oI stocks, States are required by paragraph 7 oI Article 6
to adopt temporary emergency measures in order to avoid worsening the situation by
over-fshing an aIIected stock. 'Cautious conservation and management measures
Ior exploratory fsheries are to remain in Iorce until suIfcient inIormation has been
acquired to permit a proper assessment oI the impact oI fshing upon the long-term
sustainability of the stocks (paragraph 6).
Article 7 is designed to ensure, as far as possible, compatibility between meas-
ures applied inside and outside 200 miles for the conservation of stocks. Minimising
unnecessary diIIerences between the coastal State`s measures in its EEZ and those
agreed for a straddling stock in international waters was seen to be clearly desirable.
However, it took a long time to fnd the correct balance between the two interests,
coastal and fshing. Paragraph 3 calls upon States in determining compatible meas-
ures to take into account both the coastal States measures applied under Article 61 of
the Convention Ior the EEZ and those previously taken Ior the adjacent high seas by
agreement (whether in a fsheries organisation or directly by the States concerned).
Also to be taken into account are the biological unity and characteristics of stocks
straddling the 200-mile limit, and the respective degrees of dependence on the stocks
23 Principle 15 of the Rio Declaration reads: In order to protect the environment, the pre-
cautionary approach shall be widely applied by States according to their capabilities.
Where there are threats oI serious or irreversible damage, lack oI Iull scientifc certainty
shall not be used as a reason for postponing cost-effective measures to prevent environ-
mental degradation.
oI the coastal and the fshing States. Failure to reach agreement within a reasonable
time on compatible measures entitles any State concerned to invoke the dispute-
settlement provisions in the Agreement, including seeking provisional measures.
Coastal States and fshing States are to keep one another inIormed oI measures they
have taken.
Part III concerns mechanisms for international co-operation. The provisions of Ar-
ticle 8 encourage the creation oI a subregional or regional fsheries management or-
ganisation (RFMO) in any area where one does not exist, and the strengthening of
existing organisations. Article 8(3) makes the basic duty to co-operate more specifc:
States fshing Ior straddling stocks are to 'give eIIect to their duty by becoming a
member of an RFMO (or participant in a regional arrangement), or by agreeing to
apply the regional conservation and management measures. States with a real inter-
est in the fsheries concerned may become members . or participants. Paragraph
3 underlines the point: the terms of participation shall not preclude such states
Irom membership or participation. The counterpart is paragraph 4, which, signif-
cantly, limits access to the resources to members of RFMOs, participants in regional
arrangements and States agreeing to apply regional measures.
Generally speaking, the Conferences model for RFMOs was usually NAFO,
24
which is one of the most highly developed organisations of its kind, albeit far from
perfect. As well as specifying the functions of such organisations at some length in
Article 10, the problem oI new members seeking to join and receive a quota is tackled
by Article 11 by means oI a listing oI Iactors (oIten conficting) to be taken into ac-
count in a negotiation. Article 12 calls for transparency in the activities of RFMOs.
This follows the efforts of NGOs such as World Wildlife Fund for Nature, which
participated actively in the ConIerence, to open up discussions oI annual catch quotas
in RFMOs. The contribution of responsible NGOs was positive. Article 14, taken
together with Annex I, is designed to strengthen the arrangements for the collection
and exchange oI statistical data with respect to fsheries. Articles 15 and 16, dealing
respectively with semi-enclosed seas and enclaves (a term deliberately not used in
the Article) oI high seas within 200-mile zones such as the 'peanut hole in the Sea
of Okhotsk, were highly controversial.
Part IV addresses issues to do with non-members of RFMOs and non-participants
in regional arrangements. Such a State is not discharged from its obligations to seek
agreement and to co-operate (under Articles 63 and 64 of the LOS Convention and
under the new Agreement) by the mere fact that it is not a member of an RFMO
or is not a participant in a regional arrangement. A State is not to authorise vessels
fying its fag to go fshing in areas such as the NAFO Regulatory Area iI the State
concerned has not availed itself of the right to seek to become a member, pursuant to
the terms of Article 8(3) of the Agreement, according to which organisations should
be open to interested States.
24 On RFMOs generally, see Savini, Summary Information on the Role of International
Fisheries Bodies with regard to the Conservation and Management of Living Resources
of the High Seas (FAO, 1991); R.G. RayIuse, Non-Flag State EnIorcement in High Seas
Fisheries (2004).
372 Chapter 21
Part V specifes the duties oI the fag State. It will be recalled that, in 1993, the
FAO adopted the Agreement to Promote Compliance with International Conserva-
tion and Management Measures by Fishing Vessels on the High Seas.
25
However,
some Pacifc States have withheld support on account oI their Iears over a possible
exclusion Ior small fshing vessels. Article 18 oI the new Agreement spells out in
rather similar terms (but without the possible exclusion) the duties oI the fag State
vis--vis vessels on its register which engage in fshing beyond the limits oI national
jurisdiction. The duty is to ensure that such vessels do not undermine the effective-
ness oI conservation measures on the high seas. States are required to exercise eIIec-
tively their responsibilities over such vessels. Flag States are encouraged to introduce
licensing systems for such vessels and to co-operate with other States in implement-
ing regional inspection schemes.
Part VI, which regulates compliance and enforcement, was the subject of much
debate. Article 19 requires a fag State to ensure that its vessels comply with the
conservation measures adopted by RFMOs. The primary responsibility in this regard
remains with the fag State. At the same time, Article 20 encourages international
co-operation in enforcement through adopting inspection schemes within RFMOs, as
has already been done in NAFO and CCAMLR.
26
Article 21 deals with regional schemes for enforcement, such as the NAFO in-
spection scheme
27
or the Bering Sea Agreement of 11 February 1994.
28
This compli-
cated Article was the subject of intensive negotiations during the last session of the
Conference. It provides that by becoming parties to the Agreement States accept the
possibility of their vessels being inspected on the high seas by inspectors operating
under the auspices oI an RFMO. This right oI inspection applies even iI the fag State
is not a member oI the regional organisation concerned, but the fag State has to be a
party to the Straddling Stocks Agreement. In other words, the Agreement advances
international co-operation in the matter of controls or enforcement on the high seas.
If the inspector suspects a violation of regionally agreed conservation measures, the
fag State is given the choice oI either starting its own investigation and prosecution
or, alternatively, authorising the inspecting State to prosecute. The inspector has the
right, in the case of suspected serious violations, to take the vessel into the nearest
convenient port for a dockside inspection, a possibility agreed in spring 1995 be-
tween Canada and the European Community as a proposal designed to strengthen the
NAFO scheme.
29
The fag State retains the right to intervene at any stage and exer-
cise its jurisdiction. The Article does not authorise the inspecting State to prosecute
25 See P. Birnie, 'Refagging oI Fishing Vessels on the High Seas (1993) 2 Rev.E.C. and
Int.Env.L. 270; G. Moore, 'The FAO Compliance Agreement (1995) 10 IJMCL 412.
26 Convention on the Conservation of Antarctic Marine Living Resources (UKTS 48 (1982);
(1980) 19 ILM 841).
27 (1988) O.J. L175/1 (6 July). For recent amendments, see D. Freestone (1995) 10 IJMCL
397.
28 Convention on the Conservation and Management of Pollock Resources in the Central
Bering Sea (1995) 34 ILM 69.
29 Full text in (1995) 10 IJMCL 402.
without the consent oI the fag State. In the result, the Agreement does not go so Iar
as the Canadian legislation of 1994
30
which led to the dispute between Canada and
the Community in 1995.
31
Inspection by a duly authorised oIfcer is a particular application to fsheries oI the
well-known right of visit and search by a warship or coastguard vessel. Article 21
can be viewed as an implementation of the opening phrase of Article 110 of the LOS
Convention on the right of visit and search on the high seas, a phrase which expressly
contemplates the conclusion of treaties conferring on the authorities of State A pow-
ers oI interIerence over vessels fying the fag oI State B. Under Article 110, the right
to inspect does not extend to Ioreign fshing vessels except where the right has been
conIerred by the fag State on the inspecting State in a treaty. The Agreement repre-
sents such a treaty for the purposes of both Article 110 and Article 92 of the Conven-
tion. Article 21 applies only to States parties, whereas many other provisions in the
Agreement refer to States generally.
Article 21 contains several saIeguards Ior fshing vessels against abuse by the au-
thorities oI Ioreign States. In particular, dockside inspection is limited to a defned
list oI 'serious violations, the fag State may take over the investigation at any stage,
and action taken must be proportionate to the seriousness of the violation. Compensa-
tion is payable if initial suspicions prove to be groundless.
Article 22 lays down further safeguards in a list of basic procedures for boarding
and inspection. These include avoiding the use of force except when and to the extent
necessary to ensure the safety of the inspectors or to meet obstruction from the crew.
These restrictions refect the rules oI customary law on the exercise oI police powers
at sea, as they result from cases such as Im Alone and Red Crusader.
32
Article 23 concerns port State jurisdiction. As part of its sovereignty over the port,
a port State has jurisdiction over vessels which are voluntarily present there. Article
23 asserts the right and the duty of the port State to take measures in accordance with
international law to promote the effectiveness of internationally agreed conserva-
tion measures. A port State may inspect vessels voluntarily within its port and adopt
regulations empowering its authorities to prohibit landings and transhipments where
a catch has been taken in a manner which undermines the effectiveness of interna-
tionally agreed measures on the high seas. The compatibility of such measures with
GATT has been questioned in specifc instances in the past.
Part VII makes provision Ior the requirements oI developing States. States are
called upon to assist developing countries to meet obligations under the Agreement
30 Coastal Fisheries Protection Act as amended in 1994 (1994) 33 ILM 1383.
31 For details see Davies, 'The EC/Canada Fisheries Dispute in the Northwest Atlantic
(1995) 44 ICLQ 927. See also Fisheries Jurisdiction Case (Spain v. Canada): Applica-
tion oI Spain oI 28 Mar. 1995; Order oI the ICJ oI 2 May 1995, I.C.J. Rep. 1995, 87.
32 Im Alone case, Interim Report of the Joint (Canadian and US) Commission, 5 Jan. 1935,
7 A.D. 205 (19334); Red Crusader case, 35 ILR 485. For an example of legislation,
see French Loi du 15 juillet 1994 relative aux modalits de lexercise par LEtat de ses
pouvoirs de contrle en mer, Art. 7 of which authorises the use of force, if necessary, in
accordance with procedures to be laid down by decree ((1995) 99 RGDIP 242).
374 Chapter 21
relating to conservation and management oI stocks. The European Community al-
ready provides such aid in its bilateral fsheries agreements with such countries. The
provisions are worded in such a way as not to beneft those developing States which
are major distant-water fshing States.
Part VIII provides for the peaceful settlement of disputes. It applies to the new
Agreement the whole of the provisions of Part XV of the LOS Convention. In other
words, States ratifying the new Agreement accept some form of compulsory dispute-
settlement procedure over a wide range of matters covered by the Agreement, subject
to specifed or optional exceptions. In particular, Article 7(4) and (5) on compatibil-
ity of measures within and beyond the 200-mile limit provide for the reference of
disputes to third-party procedures which include conciliation, arbitration, the Inter-
national Court of Justice or the International Tribunal for the Law of the Sea. These
provisions in the Agreement strengthen the dispute-settlement arrangements in the
LOS Convention by extending their application to important aspects oI fsheries.
Part IX consists of a single article concerning non-parties to the Agreement. Ac-
cording to Article 33, parties to the Agreement are to encourage non-parties to be-
come parties and to adopt legislation in line with its provisions. At the same time,
States parties are to take measures in order to deter the activities oI vessels fying the
fag oI non-parties which undermine the eIIective implementation oI the Agreement.
Such measures, which must be consistent with the general rules of international law,
would include the prohibition of landings in their ports of catches taken on the high
seas contrary to agreed conservation measures.
Parts X and XI also each consist of a single article. Article 34 provides that States
are to Iulfl their obligations under the Agreement in good Iaith, avoiding any abuses
of right. It was modelled closely upon Article 300 of the LOS Convention. Article
35 provides that States parties are liable in accordance with international law for
damage or loss attributable to them in regard to this Agreement. One example cited
during discussion was the use of excessive or unnecessary force by a States inspector
against a foreign vessel. The Article is similar in some ways to Articles 235 and 304
of the LOS Convention.
Part XII provides for the holding of a review conference four years after the date
of entry into force of the Agreement. The purpose of the review is to assess the effec-
tiveness of the Agreement in improving conservation and management of the stocks
concerned. The conference is mandated to propose means of strengthening the agreed
arrangements.
Part XIII contains the fnal provisions. Entry into Iorce required 30 ratifcations,
etc., and this total was achieved on 11 December 2001. The total has since risen to
62. The possibility of provisional application by States notifying the depositary in
writing is allowed for by Article 41. The terms of Article 47 concerning participation
by international organisations were draIted primarily with the European Community
in mind. The Article is designed to make it clear Ior the beneft oI other States in the
world exactly where competence and responsibility lie, each time an issue arises, as
between the Community and its member States.The Community and all its member
states have become parties.
IV The Early Effects of the Agreement
In October 1995 the FAO Council adopted the Code of Conduct for Responsible
Fisheries. In fnalising the text oI the Code account was taken oI not only the UN
Convention on the Law of the Sea but also the Straddling Stocks Agreement. Article
3.2(a) of the Code states that it is to be interpreted and applied in a manner consist-
ent with the relevant provisions of the Agreement. The Code also provides for the
precautionary approach to fsheries management (Article 6.5). Discussions are begin-
ning in some RFMOs about the implications of the Agreement for their future work
and new arrangements are in contemplation in areas where no RFMO exists.
The UN General Assembly adopted resolution 50/24 on 5 December 1995, calling
upon States to sign and ratiIy the Agreement. The resolution requested the Secre-
tary-General to report to the General Assembly in 1996 and thereafter biennially on
developments relating to the conservation of stocks.
V The Opening for Signature of the Agreement
On 4 December 1995 the Agreement was signed on behalf of 25 States. In a state-
ment, the US representative pointed out that the Agreement strikes a reasonable bal-
ance between conservation and fshing concerns, and between the interests oI coastal
states and states whose vessels fsh on the high seas. Ambassador Albright also
noted that the Agreement was consistent with and builds upon the United Nations
Convention on the Law oI the Sea, as had been required in UNCED`s mandate. In a
statement, the EC Commission explained that it was not possible Ior the Community
and its member States to sign as the required internal procedures had not been com-
pleted (an allusion to the issue of competence). The statement went on:
Once these procedures are brought to a conclusion, the European Community and its
Member States will assure their continued participation and engagement in this impor-
tant process. This active participation is based on the frm commitment oI the European
Community and its Member States in Iavour oI responsible fshing and international
cooperation in the management and conservation of living marine resources.
The United Kingdom, having regard to the terms of Article 47, signed in respect of
Bermuda, British Indian Ocean Territory, British Virgin Islands, Falkland Islands,
Pitcairn Islands, South Georgia and the South Sandwich Islands. St Helena including
Ascension Island, and Turks and Caicos Islands, all oI which have valuable fshery
resources in their 200-mile zones. The total number oI signatories was 59.
376 Chapter 21
VI Some Implications of the Agreement
The Agreement completes another stage in the implementation of Agenda 21. Its
adoption was welcomed by the British Fisheries Minister, Mr Baldry, in the House of
Commons in these terms:
33
The agreement will require states to cooperate with each other in managing such stocks
according to the best scientifc advice available and to submit disputes to legally binding
dispute settlement procedures. It includes a tough new scheme for international enforce-
ment of conservation and management measures.
The Agreement gives Iurther expression to the general qualifcation upon the Ireedom
oI fshing on the high seas represented by the 'reasonable or 'due regard test. Like
the High Seas Fishing Convention oI 1958, it makes clear that the Ireedom oI fshing
must be understood to be subject to the duty to conserve stocks and the obligation
to co-operate to that end. Unlike that Convention, the Agreement was adopted at a
universal conference by consensus. The Agreement is also linked to a compulsory
system for the settlement of disputes, not an optional protocol as in 1958.
The Agreement also complements and thus strengthens a rather weak element of
the LOS Convention by laying down detailed rules about some (newly important)
issues which were covered only by means of broad principles in 1958 and 1982.
These rules are inspired by modern concepts of environmental management, based
on good science and Iull data, as articulated by UNCED. II Ior no other reasons, the
Agreement should have a benefcial eIIect on fsheries management (including man-
agement oI EEZs). The Agreement will probably infuence State practice (e.g. in leg-
islation and the provision of catch statistics to the FAO) and the work of the FAO and
RFMOs, even beIore its entry into Iorce. It will quickly Iorm part oI 'best practice
in the context of the Code of Conduct and, in turn, the wider corpus of the modern
law of the sea based on the framework established in the Convention of 1982. In that
perspective, it will assist the ongoing process of clarifying the point that the freedom
oI fshing, as frst articulated in conventional Iorm in 1958, is a specifcally qualifed
freedom. More widely, it should help to avert unilateral actions, as well as disputes
such as that between Canada and the European Community. II diIIerences do arise,
provision is made for their resolution. The Agreement should therefore contribute
to the maintenance of international peace and security, as noted in the preamble,
something particularly appropriate in 1995 as the world marked the 50th anniversary
of the United Nations.
Postscript
In May 2006, the Review Conference was held in accordance with article 46 four
years after entry into force.The Conference, attended by 97 participating states and
the European Community, produced a Report (A/CONF. 210/2006/15). The Report
33 HC Hansard, Written Answers, 23 Oct. 1995, col. 478.
contains assessments that showed that whilst progress had been made, for example
by strengthening the RFMOs and creating new ones, there remained much to do in
order to conserve straddling and highly migratory fsh stocks. The ConIerence made
a number of recommendations to states individually and collectively through RF-
MOs designed to improve conservation. The Conference also assessed monitoring,
compliance and enforcement, noting some notable improvements and the need for
further steps. Here the Conference recommended improvements to the schemes of
compliance and enforcement adopted by RFMOs, new measures to regulate tranship-
ments at sea and the strengthening of port state measures of control, building upon
the FAO Model Scheme on Port State Measures of 2005.
Part 5
The Delimitation of Maritime Boundaries
Chapter 22
Maritime Boundaries and Limits:
Some Basic Legal Principles*
I Introduction: The Need for Legal Certainty
The theme of this conference concerns accuracy and certainty in regard to maritime
boundaries and the outer limits of coastal state jurisdiction. There is clearly a need
to seek the greatest possible measures of accuracy and certainty in regard to such
sensitive matters as the outer limits of state sovereignty and the boundaries between
neighbouring states. This need has been accentuated by the recent growth in both
the numbers and lengths of boundaries. The leading work International Maritime
Boundaries contains reports on almost 200 agreed boundaries in its 5 volumes.
1
Po-
* This chapter is the text of a paper read at the Conference held at the International Hydro-
graphic Organization by the Advisory Board on the Law oI the Sea (ABLOS) on 18-19
October 2001 with the theme Accuracies and Uncertainties in Maritime Boundaries
and Outer Limits. The paper was published only on the internet at http://www.gmat.
unsw.edu.au/ablos/ablos01_papers.htm. Some later information, principally concerning
publications, has been incorporated. Current information about the status of the LOS
Convention is available on www.un.org/Depts/los.
1 J.I. Charney and L.M. Alexander (eds.), International Maritime Boundaries, Vols. I and
II (1993); Vol. III (1998); volume IV (2002) edited by J.I. Charney and R.W. Smith; and
volume V (2005) edited by D.A. Colson and R.W. Smith. Leaving aside the Caspian as
a special case, the numbered reports for the ten regions total 182. Counting boundary
agreements and actual boundaries is not straightforward, for example where different
stretches of a continuous boundary were agreed in different treaties concluded at differ-
382 Chapter 22
litical geographers advise that there could be over 400 boundaries world-wide,
2
so
just less than half of the potential boundaries have been agreed. There is much work
to be done. Where boundaries and limits remain undetermined, major interests may
be at stake: natural resources and security on the part of coastal states, and the gen-
eral interest of all states in the resources of the international seabed area, forming the
common heritage.
Legal uncertainty may cause or exacerbate disputes between states. In contrast, the
reaching of agreement permits both states to license resource activities right up to the
agreed line, often lifting the blight from grey areas which had been disputed. The
frst desideratum, thereIore, is that the legal principles applicable to boundary-mak-
ing should be internationally agreed, clear and accessible to all concerned, soundly
based upon science, and just and fair in their results. A second desideratum is to
have available some international procedures for monitoring claims and for settling
disputes by recourse to disinterested third parties, such as commissioners or judges.
They too need to be able to apply clear legal principles. How far are we away from
these twin desiderata?
II Causes of Uncertainty
There are several sources of uncertainty in the law governing maritime spaces, affect-
ing both boundaries between neighbours and national limits. They include change,
differences in charting, and, most importantly, natural diversity.
1 Natural and Legal Change
The frst cause oI uncertainty is change: Low water lines may advance or retreat
and low-tide elevations may appear or disappear, all as a result of natural changes.
3
Changes may be man-made. New harbour works may be built on the coast and then
marked on large scale charts.
4
A further type of change is legal change, at both the
national and the international levels. New national claims may be made up to the
maxima allowed by international law: for example, three mile limits may be extended
ent times; thus, the number oI boundary agreements is higher than the number oI agreed
boundaries. In the original version of this paper, the total was given as 191.
2 R.W. Smith, Limits in the Seas, No. 108, Maritime Boundaries of the World, p. 3;
J.R.V. Prescott and C. Schofeld, The Maritime Political Boundaries of the World, 2nd
edition (2005), p. 1.
3 This has happened during boundary negotiations: see IMB, Report No. 9-17, Belgium-
United Kingdom, p. 1901.
4 Harbour works in progress during boundary negotiations but not then completed or chart-
ed were not counted in the Agreement between the Netherlands and the United Kingdom:
see report No. 9-13 in IMB, vol. II, p. 1859. New harbour works on the Belgian coast
were counted in the Agreement between Belgium and the Netherlands: see Report No
9-21 in IMB, vol. IV, p. 2921.
383 Maritime Boundaries and Limits: Some Basic Legal Principles
to twelve miles, thereby creating new basepoints on low-tide elevations lying be-
tween three and twelve miles of the coast.
5
The question arises: Do maritime limits change according to circumstance, or are
they fxed Ior ever once they have been given some legal expression in the Iorm oI
legislation or a treaty? The answer has to be sought on a case by case basis. Some
limits are ambulatory, in the sense that they change with events, either from the time
when a change occurs or, more realistically, when it is observed, recorded and chart-
ed or included in legislation.
6
Limits should have a valid legal basis at the time when
the question oI their status arises. Other limits are not ambulatory. For example, most
maritime boundary treaties defne the lines by reIerence to co-ordinates oI Latitude
and Longitude, rather than to the method used to draw the boundary, with the conse-
quence that the lines defned in the treaties are not ambulatory in step with changes in
the underlying basepoints. The question is one oI treaty interpretation.
Another question is: what would be the legal position should the entire territory
of an island state be inundated as a result of a Tsunami or a more gradual sea level
rise caused by melting ice. Something would turn upon the precise facts. The build-
ing of new sea-defences on threatened coasts is permissible and the low water lines
on new sea-defences constitute new baselines for the island State, without making it
an artifcial island. However, in the case oI a catastrophe causing the total loss oI the
States territory, there must be doubts about the survivability of both the State as a
legal entity and its maritime claims as a coastal State.
2 Variation in Charts
A second, minor cause of uncertainty is the variation in state practice in charting,
which may affect the drawing of outer limits and the processes of boundary-making.
7
In particular, there is no uniformity concerning the chart datum: some charts use
the lowest astronomical low water line, whilst others use the mean lower low wa-
ter springs. In the negotiations between Belgium and France, for example, a feature
which was shown as a low tide elevation on French and British charts was no more
than a submerged bank on Belgian charts. The problem this difference caused in the
negotiations was fnally solved by a compromise.
8
For the future, similar problems in
boundary-making could be averted by greater standardisation of charts.
5 ECJ Case No 146/89, (Commission v. United Kingdom) arose Irom the extension oI the
territorial sea around the United Kingdom from 3 to 12 n.m., including the use of low tide
elevations such as the Goodwin Sands in accordance with the rules of international law,
thereby causing uncertainty over access rights enjoyed by certain EC fshermen to a belt
oI fshing water between 6 and 12 n.m. Irom the English coast in the southern North Sea.
The Court held that the access rights negotiated on the basis of the original 6 to 12 mile
belt subsisted despite the outward movement of the belt for other purposes.
6 Article 1 oI the Convention on the Continental ShelI includes in the defnition oI the
continental shelf the test of exploitability, which is ambulatory.
7 For a valuable survey, see P.B. Beazley, (1994) 'Technical Aspects oI Maritime Bound-
ary Delimitation, IBRU, Durham University.
8 IMB, Report No. 9-16, vol. II, p.1891.
384 Chapter 22
3 Natural Diversity
Finally, a great deal oI uncertainty is the inevitable consequence oI the natural di-
versity oI the Earth and its coasts. Every coast and every delimitation is unique. The
Iacts oI geography are always diIIerent. As a result, it is diIfcult to Irame rules which
are precise. The point was best put, perhaps, by Sir Humphrey Waldock, writing
about the continental shelf, as follows:-
The diIfculty is that the problem oI delimiting the continental shelI is apt to vary Irom
case to case in response to an almost infnite variety oI geographical circumstances. In
consequence, to attempt to lay down precise criteria Ior solving all cases may be to chase
a chimera; Ior the task is always essentially one oI appreciating the particular circum-
stances of the particular case.
9
Despite the existence oI these diIfculties, in my view, the making oI national claims
and the task of boundary-making have so much potential for causing friction between
neighbours around the world that constant eIIorts should be made to refne the state-
ment of the rules, to reduce any ambiguities or uncertainties, and to improve the
procedures for monitoring claims and for settling disputes on the basis of the rule of
law.
III The Law and Natural Diversity
How do the existing rules in the Convention on the Law of the Sea relating to mari-
time spaces take account of this enormous diversity in natural conditions? Three
approaches have been adopted.
First, on certain points, the Convention sets out objective criteria or mathematical
rules. For example, the maximum limits of 12, 24, 200 and 350 n.m. are all measured
from the baselines and so can be drawn precisely by a hydrographer, assuming there
is no problem over a particular baseline. The arcs of circles rule set out in article 4
produces a clear result and the same rule applies, it is safe to assume, to the measure-
ment of 24 and 200 mile limits.
Secondly, at other points, the Convention combines objective criteria with more
general, descriptive wording. An example of an objective criterion is the semi-circle
rule for bays contained in article 10. The rule is clear and fairly easy to apply, but
article 10 also uses the terms well-marked indentation and mere curvature of the
coast which are descriptive. In the same vein, the natural entrance points of a bay
may not always be obvious.
10
A second example of mixed criteria is provided by
article 76, concerning the outer limit of the continental shelf. Paragraph 1 of article
76 refers descriptively to submarine areas that extendthroughout the natural pro-
9 C.H.M. Waldock, 1979, The International Court and the Law of the Sea 13, Leiden (Cor-
nelius van Vollenhoven Memorial Lecture). See also L.D.M. Nelson, 'The Roles oI Eq-
uity in the Delimitation of Maritime Boundaries, 84 AJIL (1990) p. 837.
10 A case arose in a Scottish court concerning the question oI the entrance points oI the Firth
of Clyde (details in chapter 26 below).
longation of the land territory to the outer edge of the continental margin. Paragraph
3 is also descriptive: the shelf, the slope and the rise. Paragraphs 4 to 7 lay down
more objective tests for applying the concepts in paragraphs 1 and 3, tests drawn
Irom various Earth sciences. In particular, paragraph 4(b) contains the 'Hedberg Ior-
mula for the foot of the slope and paragraph 4(a)(i) the Irish formula for sediment
thickness. Both Iormulas call Ior the acquisition oI scientifc data beIore they can be
applied accurately. A particular problem may be that these ocean sciences are evolv-
ing rapidly, partly under the stimulation oI the requirement to submit reports under
article 76. In all these examples, the objective criteria and the descriptive wording
have to be read together, each in the context of the other.
11
A third approach is to minimise or avoid altogether the use of any objective criteria
and to employ solely descriptive wording. Thus, according to article 7, straight base-
lines may be drawn where there is a fringe of islands or a deeply indented coast,
without much in the way oI defnition oI those terms. Attempts to establish objective,
mathematical criteria have been advanced in learned articles, but the proposals have
gained only limited acceptance so far.
12
Which approach has been Iollowed with regard to delimitation? The equidistance
line in article 15 is an objective test, being based on a geometrical construction.
13
However, it has been combined with an exception cast in exceedingly general terms
special circumstances, a concept which is vaguer even than descriptive lan-
guage. The provisions of articles 74 and 83 provide a second example of completely
general language: paragraph 1 oI each article calls simply Ior 'an equitable solution
without more ado. In other words, in regard to delimitation, the third approach is fol-
lowed much more than the second.
Whatever the precise mix of objective criteria and descriptive language, ascertain-
ing the true meaning oI these provisions involves questions oI law. Primarily, the
questions are ones oI treaty interpretation, on which there are rules in the Vienna
Convention on the Law of Treaties of 1969. The principal rule is that the terms of a
treaty such as the Convention on the Law of the Sea have to be given their ordinary
meaning in their context and in the light of the Conventions object and purpose.
14
11 Another example is provided by Part IV of the Convention concerning archipelagic states.
At the Conference, maritime states were not prepared to accept the concept unless there
were some objective criteria Ior defning it. In the result, some oI the provisions concern-
ing archipelagic baselines in article 47 contain objective criteria, such as the maximum
and minimum ratios of land to water and the maximum lengths of archipelagic baselines.
At the same time, the defnition oI 'archipelago in article 46(b) contains descriptive
language, notably the phrase natural features which are so closely interrelated that
(they) form an intrinsic entity
12 R.D. Hodgson and L.M. Alexander, (1972) Towards an Objective Analysis of Special
Circumstances, Law of the Sea Institute, Rhode Island. See also the UN Handbook on
the Delimitation of Maritime Boundaries (2000) and P.J. Cook and C.M. Carleton (eds.),
Continental Shelf Limits. The Scientihc ana Legal Interface (2000).
13 A method defned by S.W. Boggs (1940) International Boundaries, Chapter X.
14 Article 31. Other relevant matters include subsequent agreements, subsequent practice
and the relevant rules of international law, including decisions by courts.
386 Chapter 22
Where the Convention uses general terms, an important role can be played by courts
and tribunals in interpreting and applying those terms in an authoritative manner. A
body of caselaw or jurisprudence may be built up over the years, especially where
decisions display consistent trends.
IV Natural Diversity and the Principles for Delimiting Boundaries
The international community has been wrestling for a long time with the problem
of how best to formulate the legal principles governing boundary-making. It would
clearly be beyond the scope of this paper to attempt to cover the entire topic, so the
focus will be on the formulation of the basic principles.
At the outset, some basic principles may be recalled. First, the basis for rights and
jurisdiction over the territorial sea, continental shelI and all maritime zones is sover-
eignty over the coast: the land dominates the sea.
15
At the same time, whilst claims
to maritime rights and jurisdiction are initially unilateral, the delimitation of mari-
time zones always has an international aspect.
16
These principles fnd their clearest
expression in statements by the International Court of Justice (ICJ). Unfortunately,
they have never been codifed, but they remain valid starting points Ior the law on
delimitation.
(a) Over the past 50 years, specifc Iormulations oI some principles applicable to
boundary-making have been advanced by different bodies, notably by the Interna-
tional Law Commission (ILC), by the First UN Conference on the Law of the Sea,
by the ICJ (especially in the North Sea Continental Shelf Cases), by the Third UN
Conference on the Law of the Sea and by arbitral tribunals. Some key stages in this
search for principles can be singled out.
The work of the ILC was done during the 1950s when there were few decisions
by courts and little in the way of state practice. Delimitation between neighbours
was approached in the context of limits which, whilst wider than those of 1945, were
still much narrower than those oI today. The Commission`s fnal draIt articles put
Iorward three elements: agreement, equidistance, and 'special circumstances. The
Commission stated in its commentary that it had adopted the same principles for
the territorial sea and the continental shelf. However, its proposals amounted less to a
statement of legal principles than to a process or method of delimitation.
17
Exceptions
had simply to be 'justifed by special circumstances but what circumstances would
justiIy an exception? It was recognised that equidistance 'might not inIrequently
15 In the Aegean Sea Case, the ICJ stated that continental shelf rights are legally both an
emanation from and an automatic adjunct of the territorial sovereignty of the coastal
state ICJ Reports 1978, p. 1, at p. 36.
16 ICJ Reports 1951, p. 132.
17 There was a long argument at the 3rd LOS ConIerence as to whether equidistance was a
legal principle or nothing more than a method of delimitation.
result in an unreasonable or inequitable delimitation,
18
but neither the principle of
equity nor the idea oI seeking an equitable result was included in the actual terms oI
the proposal.
(b) The Geneva Conference made one improvement in the proposals. On the basis
of a proposal by Norway, the rules for the delimitation of the territorial sea in article
12 of the Convention on the Territorial Sea were recast by the First Committee not as
statements of what was the boundary but rather as a rule that States were not to ex-
ceed the median line in the absence of agreement. This was a much better approach,
regulating the situation whilst agreement on a line remained outstanding.
19
However,
parallel changes were not made in the Convention on the Continental Shelf. The term
'special circumstances remained undefned in the texts oI the two Conventions.
The rationale oI the agreement/equidistance/special circumstances approach and the
underlying principle oI equity remained hidden.
20
(c) In the North Sea Continental Shelf Cases, the International Court of Justice
produced a judgment containing many important points, including the key concept of
equity, the Iactor oI proportionality between areas oI shelI and lengths oI coasts, the
concept of minor coastal features which distort a median line, and the idea of the
'natural prolongation oI the land mass. At the same time, the Court made fndings
which marked a break in the law, leading to uncertainty. The Court held by a major-
ity oI 11 to 6 that the method oI equidistance was not binding upon the parties, that
article 6 of the Convention on the Continental Shelf (CCS) was not part of customary
law, and that under the applicable customary law delimitation was to be effected by
equitable principles, the precise content oI which was Iar Irom clear. Those fndings
meant that the States Parties to the Convention were bound inter se by one set of rules
and non-parties were bound by a different set of rules. In other words, States were di-
vided into two groups.
21
In his separate opinion, Judge Lachs dissented (a rare event)
on the grounds that in his view the elements in article 6 did constitute part of custom-
ary law, but he then went on to conclude that there are no special circumstances
18 Per the Court of Arbitration in the Channel Arbitration, 1977 (UK White Paper Cmnd.
7438, para. 70).
19 Addressing the Norwegian amendment, Sir G. Fitzmaurice stated that 'It was admittedly
a weakness that there was no defnition oI special circumstances. Nevertheless, special
circumstances did exist which, Ior equity or because oI the confguration oI a particular
coast, might make it diIfcult to accept the true median line as the actual line oI delimita-
tion between two territorial seas. OIfcial Records, Vol. III, 189 (First Committee). A
second improvement was the inclusion in the article of historic title as an example of
special circumstances.
20 The British Governments White Paper refers, in the context of article 6 of the Conven-
tion on the Continental Shelf, to the principle of the median line as the starting point for
any delimitation. (Cmnd.584, Para. 34).
21 Division over the substantive rules creates especially acute problems in the law of the
sea, hence the setting of the goal of a single, comprehensive and universally accepted
LOS Convention.
388 Chapter 22
which justiIy any departure Irom the equidistance line.
22
To my mind, and with the
beneft oI hindsight, the case could have been decided on the two bases that, frst, the
three elements (agreement, median line, special circumstances) set out in article 6
did refect customary law in many important ways, notwithstanding the weaknesses
oI the article as a statement oI the law; and, secondly, that the exceptional, concave
confguration oI the three states` coasts Iacing the south-eastern North Sea, meant
there existed special circumstances justifying departures in favour of Germany
from the median lines.
23
Such a decision would have produced the same broad result
a win for Germany but the alternative grounds would have avoided the division
of States into two groups through the separation of customary law from the Geneva
Convention.
(d) At the Third UN Conference on the Law of the Sea, there was a marked polarisa-
tion amongst coastal states over the rules Ior the delimitation oI the EEZ and the con-
tinental shelf. There were two opposed groups of approximately the same numbers:
the median line group which generally supported the approach in article 6 of the
CCS and the 'equitable principles group which supported the approach adopted by
the Court in the North Sea Cases. The positions adopted were greatly infuenced by
outstanding delimitations and actual disputes between pairs of neighbours, members
of different groups. Delegations were not prepared to make the mental adjustments
needed to reach consensus at the global level because of fears over possible repercus-
sions for outstanding bilateral issues.
24
The outcome of long debates was, in effect,
the rejection as treaty law of article 6 of the CCS in what became articles 74 and 83
of the LOS Convention. As the learned editors of Oppenheims International Law
point out, the debate between those who wanted equity to be the guiding principle
and those who wanted equidistance can be regarded as having been 'based on a false
antithesis. The editors continue: It is not free from irony that the rejected text of
Article 6...was one which nicely combines both equity and equidistance.
25
Perhaps
the irony goes all the way back to 1969. As stated above, the same result could well
have been reached in the North Sea Cases by different reasoning and, in that event,
it is Iair to hazard the guess that the history oI the Third ConIerence in regard to the
delimitation oI the EEZ and the continental shelI would have been rather diIIerent
probably shorter and less controversial. As a fnal irony, the Second Committee de-
cided to retain the Geneva provision on the delimitation of the territorial sea without
22 ICJ Reports 1969 p. 3, at p. 218.
23 Later, in 1985, Judge Lachs presided over the arbitral tribunal formed to decide the dif-
ference between Guinea and Guinea Bissau (II International Boundary Cases, 1992,
Grotius, Cambridge, p. 1301). The Tribunal decided that the general confguration oI the
West African coastline from Senegal to Sierra Leone had to be considered in delimiting
the boundary between the EEZs oI the two parties.
24 This factor may well operate still today so as to inhibit the formulation of sound rules
since governments are likely again to defend interests in outstanding negotiations.
25 Jennings and Watts (eds.) (1992), Oppenheims International Law, p. 780.
controversy, even though the Committee was deadlocked over the delimitation of the
EEZ/continental shelI.
(e) Recent decisions of courts and tribunals
It is beyond the scope of this short paper to review the remaining cases in extenso.
During the twenty years following the decision in the North Sea cases, the different
courts and tribunals were preoccupied with the two concepts of natural prolongation
and equitable principles, as well as the interplay oI customary and conventional law.
A learned commentator noted in 1989 that the law on delimitation had acquired a bad
reputation.
26
Certainly, it was diIfcult at that time to give confdent legal advice to
governments as to the outcome of boundary litigation and at least one dispute which
had been destined in 1982 for arbitration was settled by agreement in 1988.
27
The three most recent decisions have gone some way towards reducing uncertainty
in the law. In the case between Denmark and Norway concerning the boundaries
between Greenland and Jan Mayen, the Court Iound in 1993 that the line Ior fsher-
ies purposes under customary law coincided at all points with the line produced by
article 6 CCS, thereby in effect bringing customary and conventional law together.
The Court adopted a two stage process oI frst drawing a provisional median line and
then reviewing its fairness with a view to making adjustments if appropriate.
28
The
Court Iound there existed a legally signifcant disparity in coastal lengths, and shiIted
the provisional line towards the shorter coasts in order to achieve an equitable result.
The Court also Iollowed Mr. Thamsborg`s approach to defning the 'box Ior the
purpose of ascertaining the extent of the respective areas.
29
However, on other points,
the decision has not escaped criticism. It has been argued that:
30
(a) In determining what was equitable in the area, an actual precedent -in the Iorm
of Norways agreement of 1981 with Iceland (based on the report of the Con-
ciliation Commission) to the eIIect that Jan Mayen`s 200 mile zone should not
intrude into Iceland`s zone was not Iollowed.
(b) The shiIt appeared to be insuIfcient to ensure proportionality.
(c) In applying that factor, the frame of reference appeared to have been the
area oI the overlapping claims, not the whole relevant area as defned by Mr.
Thamsborg.
In 2000, the ad hoc Arbitral Tribunal in the Eritrea/Yemen case Iound that 'It is
a generally accepted view, as is evidenced by the writing of commentators and in
26 Prosper Weil, (1989) The Law of Maritime Delimitation, p. 288.
27 The boundaries of the continental shelf between Ireland and the UK: see IMB, Vol. II,
Report No. 9-5.
28 This is exactly what many negotiating teams do beIore the frst contact with the other
side. The best working charts depict the manner in which the median lines have been
constructed from the baselines.
29 Verbatim Record of the Courts hearing on 11 January 1993.
30 See J.I. Charney, Progress in International Maritime Boundary Delimitation Law, 88
AJIL (1994) 227 and IMB, Report No. 9-19.
390 Chapter 22
the jurisprudence, that between coasts that are opposite to each other the median
or equidistance line normally provides an equitable boundary .
31
No specifc
authority was cited, but it is supported by a study of state practice, as digested in
International Maritime Boundaries. The Tribunal decided that the boundary should
be a single all-purpose boundary and that it should be a median line drawn as far as
practicable between mainland coasts. The Tribunal then proceeded to examine the
two coasts, including off-shore islands on both sides, comparing and contrasting the
respective basepoints. In the course of this examination, the arbitrators rejected an
argument from one of the parties about the respective coastal features on the grounds
that it does not compare like with like.
32
The Tribunal applied, as the fnal stage,
the Iactor oI proportionality as a test oI the equitableness oI the provisional median
line between the chosen basepoints, and found that the result produced by the median
line in terms of areas was not disproportionate. The test was applied to the entire line,
including those sections where it was a territorial sea boundary.
33
The Tribunal had to
address the question oI what was the relevant area Ior the purpose oI making the test,
given the presence of a group of islands.
34
In 2001, the International Court of Justice gave judgment in the case between
Qatar and Bahrain concerning the delimitation of the territorial sea in the south-
ern sector, and the continental shelI and the EEZ in the northern sector. As regards
the territorial sea, the Court applied article 15 of the LOS Convention, stating that:
'The most logical ana wiaely practisea approach is hrst to araw provisionally an
equidistant line and then to consider whether that line must be adjusted in the light
of the existence of special circumstances.
35
As regards the continental shelI/EEZ,
the Court followed its own precedents and drew a provisional median line before
considering whether there were circumstances requiring an adjustment. The Court
noted the close relationship of the rules applicable to the territorial sea and those ap-
plicable to the EEZ/continental shelI.
36
These fndings tend to stabilise the state oI the
law on delimitation. The decision followed the general approach adopted in the case
between Eritrea and Yemen.
32 Para. 118.
33 Article 15 was applied in para. 158 and the test oI equitableness in para. 159. On other
points of interest, in reliance upon article 5 of the LOS Convention, the Tribunal rejected
an argument that it should use the high water line as a baseline, and, in reliance upon ar-
ticle 6, a further argument that it should count a submerged reef as a low tide elevation.
35 ICJ Reports 2001 para. 176. Again, this statement was not supported by authority, but it
is supported by state practice as set out in IMB. The Court also applied the test of what
is an island in article 121(2) before disregarding some low tide elevations in the area of
overlapping claims to the territorial sea. The Court expressed the view that the method of
straight baselines must be applied restrictively and refused to treat a cluster of islands as
a fringe of islands. A small island lying in the middle of the water between the two states
was given a discounted effect in order to avoid disproportion.
36 Paras. 230 and 231.
This survey of the attempts to formulate legal principles relating to maritime
boundaries has shown that success has been limited. Natural diversities are so great
that it has proved diIfcult to identiIy precise legal principles. In addition, other Iac-
tors such as security interests, economic interests and established patterns of conduct
cannot be leIt out oI account. Nevertheless, the approach oI frst drawing a provi-
sional equidistance line and then considering the equitableness oI the result is today
supported by both state practice and the most recent decisions by courts and tribu-
nals. This approach has been followed in regard to all types of maritime boundary,
whether territorial sea, economic zone or continental shelI, and whether determined
in accordance with customary or conventional law.
V The Present Situation
The LOS Convention is in force for its 152 parties and its package of rules represents
the modern law. Now that over three-quarters oI coastal states are parties to the Con-
vention, it is prevailing more and more over the Geneva Conventions. The preamble
to the LOS Convention states the aim of the negotiating governments as being to
settle in a spirit of mutual understanding and cooperation all issues relating to the law
of the sea. It is striking that the LOS Convention contains detailed rules on most
issues, but not on the delimitation oI the EEZ and continental shelI. However, it did
establish the Commission on the Limits of the Continental Shelf (CLCS) in order to
review claims to the continental shelI beyond 200 n.m. and, even more signifcantly,
the Convention also contains provisions in Part XV for the peaceful settlement of
disputes by means oI conciliation, arbitration or litigation, albeit with some qualif-
cations. Potentially, these provisions cover disputes about baselines, national limits
and boundaries between states. These provisions in Part XV also apply in principle
to disputes over the outer limits of the continental shelf in article 76, whether or not
the CLCS has been engaged.
Article 15 concerning the delimitation of the territorial sea repeats the effect of the
Geneva Convention. On this important question, there was continuity. The ICJ has
found that this formulation is part of customary law.
37
This is an advance in the quest
Ior legal certainty. The concept oI 'special circumstances, undefned in article 15, is
tending to take on some of the characteristics of the second stage of the delimitation
process Ior the EEZ/continental shelI, the consideration oI the equity oI a provisional
median line.
Articles 74 and 83 concerning the delimitation oI the EEZ and the continental shelI
contain four paragraphs in similar terms. Several principles from the UN Charter are
applied. The principle of the non-use of force entails that boundaries may not be im-
posed unilaterally by Iorce or by making national claims. This principle fnds particular
expression in paragraph 1 which prescribes that delimitation is to be effected by agree-
ment. The principle of good faith means that where a boundary has been established
by a treaty issues to do with the boundary have to be determined by reference to, and
in accordance with, the terms oI the particular treaty, a principle refected in paragraph
37 Qatar v. Bahrain Case, ICJ Reports 2001.
392 Chapter 22
4. The key test in paragraph 1 is the 'equitable solution. The Charter principle oI the
sovereign equality oI states means, in the particular context oI the law oI the sea, that
coastal states are juridically equal beIore the law. Their coasts are evaluated in ac-
cordance with the same rules and carry the same intrinsic weighting. However, where
relevant coasts or coastal features display dissimilar characteristics in some material
respect, such as their overall length in the relevant area, they should not be given equal
weight. The two relevant coasts should be evaluated on a broad, overall basis and
basepoint by basepoint. It is only like things which should receive like treatment. This
principle underpins paragraph 1 where it reIers to 'an equitable solution.
State practice has been systematically examined and analysed in International
Maritime Boundaries. The frst editor, ProIessor Charney, identifed some substantial
trends and practices, notably the use oI the equidistant line as the basis Ior analysing
the situation, as well as often providing the actual solution or pointing the way the
way towards reaching one. He also noted the primacy of coastal geography among
the various other relevant factors in negotiations.
38
Professor Mendelson has sug-
gested that what is an equitable solution can be gleaned, with all due caution, Irom
a consistent tendency to reach similar solutions in similar geographical situations.
Studies of existing agreements may disclose consistent approaches which can be fol-
lowed as relevant guidelines Ior fnding equitable solutions in other cases, as a kind
of opinio aequitatis but not opinio juris.
39
The ideas oI applying equity or seeking eq-
uitable solutions are not new. Equitable principles were mentioned in the Grisbadarna
Case
40
and in the Truman Proclamation. Some have argued that the resort to equity
is to appreciate and balance the relevant circumstances of each case so as to render
justice. According to this broadly-conceived equity, 'a court should render justice
in the concrete case, by means of a decision shaped by and adjusted to the relevant
factual matrix of that case.
41
This approach entails greater uncertainty since every
case is unique. Other authorities have pointed out that there is a distinction between
a decision based on equity as required by law and a decision ex aequo et bono. The
parties to a case are able to ask for a decision ex aequo et bono: where they have not
made such a request, the court has to apply the rules oI law, including rules which call
Ior the application oI equity or equitable principles or call Ior an equitable result. In
other words, the modern law looks to a structured equity, not equity measured by the
length oI the judges` Ieet. Following this approach, the law applies corrective equity
to provisional boundaries obtained by other means.
42
38 International Maritime Boundaries, Vol. I, p. xliv.
39 M. Mendelson, 'On the Quasi-Normative EIIect oI Maritime Boundary Agreements, in
Ando, McWhinney and Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda (2002), p.
1069.
40 XI RIAA, p. 147.
41 Per Judge Jiminez de Arechaga in his separate opinion in the Tunisia/Libya Case, ICJ
Reports 1981, p. 3, at p. 106.
42 As Sir Robert Jennings (a most experienced judge) has pointed out, judges have to make
choices in deciding between disputants and where a judge is applying equity the range oI
choices is wider: 42 Annuaire Suisse de Droit International (1987) p. 27.
The law looks to the Iactor oI distance as the frst stage. Distance Irom the coast
is a relevant consideration in regard to the security of a coastal state. In principle,
an equidistant boundary could be expected to involve comparable risks Ior the two
states. However, the security considerations in regard to particular coastal features
may well differ, for example between an inhabited and an uninhabited feature. More-
over, a median line does not normally divide the area to be delimited in equal parts.
Indeed, sometimes it produces a manifestly uneven split. Accordingly, as the second
stage, the law looks to the equities oI the provisional result. Adjustment oI the pro-
visional line or even adoption of a fresh method, such as the perpendicular to the
general direction of the coast, may be indicated. In particular, the course of the line
in regard to practical considerations such as security, navigation and fshing patterns
is Ior consideration, as well as the question oI the respective areas produced by the
lines. The aim is to avoid unfair results, such as disproportion. In the latter regard,
the relative proportions of maritime space are compared with the respective lengths
of the relevant coasts, and this has led to decisions by both courts and negotiators to
adjust the provisional line by shifting or transposing it. (The idea has also been ad-
vanced, as a 'more versatile method oI delimitation, oI fnding a ratio between the
two coasts, say 1:0.9, and then drawing an equiratio line.
43
)
It has been emphasised that proportionality does not, in itself, constitute a method
Ior eIIecting a delimitation and that it is nothing more than a test oI equitableness
or a Iactor to be taken into account. At the same time, the signifcance oI the Iactor
of proportionality should not be under-estimated. Proportionality also underlies, in
a certain way, the idea that a minor coastal feature may distort a line, in the sense
that the area oI maritime space aIIected by the Ieature is much greater than the size
of the feature itself. Although in many instances there are security, navigational, eco-
nomic or social factors to be weighed, nonetheless, leaving such factors aside for the
moment, it is this Iactor oI proportionality as a test oI equity which has provided the
basis in recent cases for adjusting the provisional median line.
A leading expert has pointed out that the test of proportionality is not applicable in
all geographical situations.
44
Certainly, it is diIfcult to identiIy the relevant overall
area or box in geographical settings such as those between Scotland and Ireland
and between Scotland and the Faeroe Islands, as well as in a case where only a part of
a longer boundary is under consideration, as in the Libya/Malta case before the ICJ.
However, some check based on proportionality by area may not be out of place in
most instances, even though the check may be diIfcult to make in some oI them.
VI Concluding Remarks
1 The question posed at the outset was: how Iar are we Irom having clear law and
readily available procedures for tackling boundary issues? The written law in
43 W. Langeraar, 'Maritime Delimitation The Equiratio Method, 10 Marine Policy
(1986) p. 3.
44 G. Jaenicke, The Role of Proportionality in the Delimitation of Maritime Zones, in Bos
and Siblesz (eds.) Realism in Law-Making (1986), p. 51.
394 Chapter 22
the LOS Convention consists, for the territorial sea, of a combination of an ob-
jective criterion (the method oI equidistance) and undefned exceptions, whilst
Ior the EEZ/continental shelI only a very general test oI the equitable solution is
prescribed. The written law, considered in isolation, does not meet the standards
oI certainty and clarity required by good, sound law. However, there is now de-
veloping a body of caselaw in the ICJ and other tribunals which displays more
consistency, something which tends to reduce uncertainty. The more recent
caselaw has been based on an examination of the Convention, extending not
only to the provisions on delimitation but also to those on limits, baselines, and
other related questions. Caselaw and conventional law are beginning to combine
to produce better law.
This process can only be assisted by the terms of Part XV of the Convention
which provide potential litigants with more jurisdictional possibilities, includ-
ing the International Tribunal for the Law of the Sea, the ICJ and Arbitration.
The monitoring of claims to the continental shelf beyond 200nm is provided for
by the Commission on the Limits of the Continental Shelf, which is actively pre-
paring to consider submissions. Thus, during the past fve years there have been
improvements both in the substantive law and in the procedural arrangements
for its application.
2 In the light oI the recent developments, there may be beneft in attempting a
stock-taking exercise, examining written law, caselaw and State practice. For
instance, the factor of proportionality may provide a particular topic for further
study by legal and technical experts. On more technical aspects, the time may
have come to recognise as best practice the use of geodesic lines in boundary
delimitation. The use of straight lines on Mercator charts produced problems in
the Channel Arbitration: such problems should be avoided in future by courts
and tribunals.
45
There may also be best practices for giving half effect to small
Ieatures, etc., which could be identifed and defned by experts, Ior the guidance
of both negotiators and courts.
3 Lawyers and technical experts both have parts to play in the processes of delimi-
tation. Courts and tribunals perform best when they appoint an expert hydrogra-
pher, something provided for in article 289 of the LOS Convention.
4 Each court or tribunal, when considering a case, should do its utmost to maintain
the consistency of the chain of decisions. The outcome of a case can never be
totally predictable, but a reasonable degree of predictability should be the aim.
This means according the highest respect to the decisions of other courts and
tribunals. Recent decisions are consistent on several points. Predictability would
also be enhanced by paying greater regard to State practice where it exists in the
vicinity of a delimitation, as opinio aequitatis.
5 In the present climate, it is to be hoped that governments may be more willing
in the Iuture than in the past to submit delimitation questions to international
courts and tribunals. Relatively few states parties have made the declaration
45 UK White Paper Cmnd. 7438, Second Decision.
provided Ior in article 298(1)(a) reserving on the question oI delimitation.
46
The
legal uncertainties which have attended this topic of delimitation from the outset
have somewhat diminished as a result of recent decisions by courts and tribunals
and the growth in state practice.
6 Finally, it should not be forgotten that delimitation is intimately linked with the
remainder of the Convention, including the rules on baselines as well as those
on the settlement of disputes. The system of the Convention, derived from the
package deal approach, should be upheld.
46 According to the UN website, on 15 November 2006, 20 States had made the declaration
excluding boundary disputes.
Chapter 23
Developments in Maritime Boundary
Law and Practice*
Introduction
The preparation of Volume V of International Maritime Boundaries is a good
occasion to stand back and assess the developments that have occurred in maritime
boundary law and practice since the project was launched in the late 1980s. Assessing
developments is a process that necessarily involves making personal judgements,
both in the choice oI the material events and the appraisal oI their signifcance. This
paper contains, therefore, nothing more than the personal appraisals and general
impressions of the author at this time. Moreover, the Regional Reviews of practice
and the individual Boundary Reports in all fve volumes oI this work remain the
primary sources of information, analysis and comment. This paper seeks to build on
those source materials by seeking to identify some overall trends of development.
Reasons of space preclude any attempt at exhaustive analysis of these trends and all
the conclusions are tentative.
1
* First published in D.A. Colson and R.W. Smith (eds.), International Maritime Bounda-
ries, vol. V, p. 3199 (2005).
1 For recent comprehensive surveys of the topic, see N.M. Antunes, Towards the Con-
ceptualisation of Maritime Delimitation (2003); and R. Kolb, Case Law on Equitable
Maritime Delimitation (2003).
398 Chapter 23
I The Situation at the Outset of the ASILProject
Before reviewing these developments, it may be helpful to recall some key elements
in the situation prevailing in the late 1980s when the American Society of Interna-
tional Law took up the present project. One signifcant element oI a general nature
was the uncertain status of the 1982 United Nations Convention on the Law of the
Sea at that time. Whilst the greater part of the text was viewed as helpful and many
states were steadily proceeding to align their maritime legislation and limits with its
terms, the 1982 Convention had not entered into force and controversy still persisted
over Part XI concerning deep seabed mining. It was unclear whether or not the Con-
vention would attract the 60 ratifcations, etc. needed Ior its entry into Iorce and, iI so,
whether it would attract equal support Irom all the diIIerent regions oI the world.
The factual situation regarding the delimitation of boundaries was set out by the
founding editor of this work, Professor Jonathan Charney, in his Introduction to
Volume I. He noted that the number of agreed boundaries was over 130 at that time
(1993) and that nearly twenty disputes had been submitted to international bodies for
resolution.
2
The number of agreements compared with the then current estimates of
about 420 for the potential maritime boundaries in a world of wide limits of national
jurisdiction.
3
The legal situation regarding delimitation was in an uneven state. The principles
and procedures governing the delimitation of the territorial sea, based on the approach
contained in Article 12 of the Convention on the Territorial Sea and the Contiguous
Zone of 1958 (Territorial Sea Convention), were not generally controversial. In
contrast, those governing the delimitation of the continental shelf were beset by
uncertainties. The status of Article 6 of the Convention on the Continental Shelf
of 1958 (Continental Shelf Convention) remained unclear in the aftermath of
the decision of the International Court of Justice (ICJ or Court) in the North Sea
Continental Shelf cases of 1969 (North Sea cases) to the effect that Article 6 did
not represent a statement of customary law.
4
The Court had described Article 6 as
a 'purely conventional rule and one that 'did not embody or crystallize any pre-
existing or emergent rule of customary law.
5
The Third United Nations Conference
on the Law oI the Sea (LOS ConIerence) had seen a polarization oI positions over
2 Volume I, pp. xxvii-xxix. Professor Charney noted that new agreements continued to be
concluded. See also his article entitled Progress in International Maritime Boundary
Delimitation Law, 88 AJIL (1994) p. 227.
3 See G.H. Blake, (ed.), Maritime Boundaries and Ocean Resources (1987) and R.W.
Smith, Limits in the Seas, No. 108, Maritime Boundaries of the World, 3 (1990).
4 1969 ICJ Rep. 3, at paras. 69 and 81.
5 The states Parties to the Continental Shelf Convention found themselves in a somewhat
strange position: they remained bound inter se by the terms of the Convention, including
its Article 6, but at the same time they were bound by customary law vis-a-vis non-states
Parties, who also applied that law among themselves. The law of the sea is a part of inter-
national law which cries out for the holistic approach and universal rules, not fragmenta-
tion, of course.
399 Developments in Maritime Boundary Law and Practice
this question and the outcome oI the lengthy discussions, in the Iorm oI Articles 74
and 83, appeared to have done little or nothing to resolve the main issues.
6
As the
learned editors of Oppenheims International Law put it, the formula simply begs
the question at issue.
7
By coincidence, at the start of the period under review, the decision in the North Sea
cases was subjected to some most searching criticism by two leading commentators.
8
Legal uncertainty is something that, in an ideal world, is undesirable at the best of
times. In regard to matters as sensitive as determining the boundaries of maritime
jurisdiction between neighboring states and the ownership of valuable off-shore
natural resources, the need for agreed legal principles and methods is very obvious.
By 1990, the provisions of the Law of the Sea Convention concerning the
package of maximum limits of national jurisdiction, as well as the concept of the
exclusive economic zone (EEZ) articulated in Part V oI the Convention, had proved
acceptable to many states to the point that the various maximum limits and the
concept oI the EEZ all enjoyed the status oI international customary law. Establishing
an EEZ, typically expressed to extend to the maximum limit oI '200 nautical miles
(n.m.), was oIten straightIorward. The task oI delimiting EEZs between adjacent and
opposite states with overlapping claims proved in many instances to be more diIfcult
in practice. It was almost invariably the case that pairs of neighboring states whose
provisional entitlements to 200 n.m. overlapped had completely different ideas
about where their boundaries should run. The confrontation between supporters of
the method oI equidistance and those oI equitable principles, witnessed at the LOS
6 In the Eritrea/Yemen case, the Tribunal stated that ... there has to be room for differ-
ences of opinion about the interpretation of articles which, in a last minute endeavor at
the Third UN Conference on the Law of the Sea to get agreement on a very controversial
matter, were consciously designed to decide as little as possible. (Award, 40 ILM (2001)
983, para. 116). E.D. Brown, The International Law of the Sea, Vol. I (1994) refers to
the almost empty economy of language in Article 83, adding that ... the international
community is saddled with a formula which is all that a legal rule should not be exces-
sively vague and imprecise and drafted by reference to even more vague and controver-
sial concepts. (p. 157).
7 Sir R. Jennings and Sir A. Watts, Oppenheims International Law, 9th edition (1992), at
p. 780. They added: It is not free from irony that the rejected text of Article 6... was one
which nicely combines both equity and equidistance.
8 The decision was subjected to penetrating criticism in 1989 by Sir Robert Jennings, The
Principles Governing Marine Boundaries, in K. Hailbronner et al. (eds.), Staat und
Vlkerrechtsordnung: Festschrift fr Karl Doehring, p. 397; and by ProIessor Weil in his
monograph The Law of Maritime Delimitation Reections, concluding that the law of
maritime delimitation has acquired a bad reputation (p. 288).
400 Chapter 23
Conference during the 1970s,
9
was replayed in some sets of bilateral negotiations in
later years.
10
To round off this survey of the situation prevailing at the time the project was
launched, there existed no systematic survey of state practice. Some compilations
of agreements had been published by the United Nations Secretariat
11
and surveys
of practice made in some scholarly writing.
12
More signifcantly, some parties to
litigation had made their own analysis and assessments of state practice, based on
compilations of agreements that were submitted in evidence, such as those in the Gulf
of Maine case.
13
These pleadings inevitably included some elements of advocacy.
From its appearance in 1993, International Maritime Boundaries has flled the needs
for informed and generally impartial reports on settled boundaries in other words,
for documentary evidence of the agreements and other texts, and for systematic
analysis together with cartographic illustration. In other words, the work is a reliable
and comprehensive guide to state practice.
II Some Key Developments between 1990 and 2004
The 15 years between 1990 and 2004 straddle two Centuries and, indeed, two Mil-
lennia. What have been the principal developments in international relations and in-
ternational law? Politically, the key events came at the beginning with the dissolution
oI the Soviet Union and the related changes in Eastern Europe. These events quickly
transformed the atmosphere in the political bodies of the United Nations. Legally, the
key events concerned the 1982 United Nations Convention on the Law of the Sea:
frst, the initiation by United Nations Secretary-General Perez de Cuellar oI InIormal
Consultations concerning Part XI (an initiative made easier by the decrease in East-
West tension); secondly, Iollowing the successIul outcome oI those Consultations,
the adoption oI the Agreement on the Implementation oI its Part XI in July 1994; and,
fnally, the entry into Iorce oI the 1982 Convention in November 1994 and its rapid
acquisition oI quasi-universal status.
14
The entry into force of the 1982 Convention
marked a strengthening of the rule of law in international relations in accordance with
9 For accounts of the discussions, see E.J. Manner, 'Settlement oI Sea-Boundary Delimita-
tion Disputes according to the Provisions of the 1982 Law of the Sea Convention, in
Makarczyk (ed.) Essays in International Law in honour of Judge Manfred Lachs (1984),
p. 625; J. Symonides, 'Delimitation oI Maritime Areas, XIII Polish Yearbook of In-
ternational Law (1984) 19; L. Cafisch, The Delimitation of Marine Spaces, in Dupuy-
Vignes, Handbook on the New Law of the Sea (1991), Vol. I, p. 425, esp. 477ff.
10 See, for example, Report Number 9-5 (Ireland-United Kingdom).
11 UN Publication, The Law oI the Sea: Maritime Boundary Agreements 1942-1969; ibid.,
1970-1984; ibid., 1985-1991.
12 For example, M.D. Evans, Relevant Circumstances and Maritime Delimitation (1989).
13 1984 ICJ Rep. 246; ICJ Pleadings, Counter Memorial oI the United States, Analytical
Annexes, Vol. IV, Annex 8; and Reply oI Canada, Annexes, Vol. I.
14 By March 2004, the number of Parties has risen to 145, including the great majority of
coastal states.
the principles of the United Nations Charter. Following its entry into force, the 1982
Convention has infuenced the practice oI states, both when enacting legislation con-
cerning maritime areas and when negotiating maritime boundary agreements. The
1982 Convention, as a treaty in Iorce, has also infuenced the reasoning in decisions
oI international courts and tribunals, including cases where the Convention was not
strictly the applicable law between the parties. In short, the Convention has brought
much needed stability to the law oI the sea.
Two Iurther points concerning the Convention may be noted. First, its provisions
prevail over those oI the Geneva Conventions oI 1958, including notably the
delimitation provisions in Article 12 oI the Territorial Sea Convention and Article 6
oI the Continental ShelI Convention. Secondly, its entry into Iorce led directly to the
establishment oI three new international bodies, namely the International Tribunal Ior
the Law oI the Sea (Tribunal), the International Seabed Authority and the Commission
on the Limits oI the Continental ShelI. The Tribunal has competence in principle
15
to
decide maritime boundary cases, whilst the Authority and the Commission work in
felds closely linked to boundary issues.
During the 15-year period between 1990 and 2004, the Reports in the last three
volumes oI this work
16
indicate that there has been a steady but unspectacular
increase in the number oI agreed boundaries.
17
The point has been reached where
certain seas such as the Baltic Sea,
18
the Black Sea
19
and the North Sea
20
have been
delimited almost completely and defnitively. Good progress is reported in the GulI.
21
The Caribbean is an area with a good number oI established boundaries
22
and a
relatively large number oI pending disputes beIore diIIerent international judicial
and arbitral bodies. The Mediterranean Sea
23
stands out as an area with relatively
Iew established boundaries, Ior reasons to do mainly with fshing patterns and the
reluctance oI many coastal states to establish EEZs. Interest in oil and gas operations
has driven boundary-making in West AIrica
24
and the Caspian Sea
25
regions. The
dissolution oI the Soviet and Yugoslav Iederations led to the creation oI new states
15 Relatively Iew declarations have been made under Article 298(1)(a) oI the 1982 Conven-
tion. Boundary disputes, despite their Irequent political sensitivity, are eminently suit-
able Ior third-party involvement or judicial settlement iI negotiations have proved to be
unsuccessIul.
16 Volume III (1998), Volume IV (2002) and the present volume.
17 Approximately 180 agreed maritime boundaries are reported upon in the fve volumes oI
IMB. This number is still less than halI oI the total number oI possible boundaries.
18 Regional Report X by Erik Franckx.
19 Regional Report VIII by Tullio Scovazzi.
20 Regional Report IX by Michael Wood.
21 Regional Report VII by Chris Carleton.
22 Regional Report II by Carl Dundas.
23 Regional Report VIII by Tullio Scovazzi.
24 Regional Report IV by Tim Daniel.
25 Regional Report XI by Robert Smith and Ashley Roach.
402 Chapter 23
with new international maritime boundaries,
26
as well as to the need to look again at
some pre-existing agreed boundaries.
27
Questions oI state succession have also arisen
Iollowing the independence oI Timor-Leste, where negotiations Ior a new boundary
agreement have started.
28
The signifcance oI a gradual accretion oI state practice should not be overlooked.
Agreements can show what states regard as equitable, a sort oI opinio aequitatis.
29
Nevertheless, it remains true that the conclusion oI a bilateral treaty is an event oI
primarily local signifcance and even the conclusion oI 10, 20 or 30 treaties Iails
to excite great attention. Moreover, in the Jan Mayen case
30
the Court did not
Iollow a seemingly apt local precedent, namely the agreement between Norway and
Iceland.
31
In contrast, iI a boundary is established by some third party procedure it attracts
much greater international interest. The defnition oI the Kuwait/ Iraq boundary by
a Commission set up by the United Nations Security Council is a unique instance.
32
Decisions by international courts and tribunals attract even more interest Irom
commentators and, being accompanied by Iull reasoning, they exercise more
infuence on both doctrine and the practice oI states than do any number oI agreed
boundaries. During the period under review, there have been the Iollowing decisions:
St Pierre/ Miquelon case;
33
the Jan Mayen case;
34
the Eritrea/Yemen arbitration;
35
the Qatar v. Bahrain case;
36
and Cameroon v. Nigeria.
37
Two oI these decisions, St.
Pierre/Miquelon and Eritrea/Yemen, were given by ad hoc arbitral tribunals and the
other three by the International Court oI Justice. The results oI these cases, and in
particular the reasoning oI some oI the courts and tribunals concerned, have attracted
wide interest Irom governments, legal practitioners and commentators. In three oI the
cases, namely those between Eritrea and Yemen, Qatar and Bahrain, and Cameroon
and Nigeria, the maritime boundary was determined only aIter disputes over territorial
sovereignty had been resolved. This illustrates the point that the expansion oI maritime
jurisdiction has shown up the desirability oI resolving uncertainties attending the title
to many minor terrestrial Ieatures, both mainland and insular.
26 Report Numbers 8-14, 10-15, 10-16, 10-17, 10-18(1) & (2), 10-19, 10-20 and 10-21.
27 Report Number 10-9, Iollowed by Report Number 10-19.
28 Report Numbers 6-15 and 6-20.
29 A point made by M. Mendelson, On the Quasi-Normative EIIect oI Maritime Boundary
Agreements, in Ando et al. (eds.), Liber Amicorum Judge Shigera Oda (2002), 177.
30 See Report Number 9-19, p. 2507, at p. 2518.
31 Report Number 9-4.
33 Report Number 1-2 (Add. 2).
III Contemporary Trends in Maritime Boundary-Making
Having reviewed the principal developments between 1990 and 2004, it is possible to
detect some general tendencies or current trends in the law and practice oI maritime
boundary-making.
A Trend towards a Consistent Approach and Methodology
Between the North Sea cases in 1969 and the St. Pierre/Miquelon case in 1992, it is
fair to say that the methods of delimitation employed, as well as the reasoning given
and the results awarded, by international courts and tribunals displayed some obvious
diIIerences. In particular, the overall approaches to the task oI delimitation varied.
The Iour most recent decisions three by the International Court oI Justice and one
by an ad hoc arbitral tribunal display a much more consistent methodology. This is
a remarkable development in itselI. Moreover, additional trends towards consistency
and harmonization are identifed below. This consistency is both welcome in itselI
and all the more surprising since it came about despite some signifcant legal and
geographical differences.
Looking frst at these legal diIIerences, in one case (Cameroon v. Nigeria) the
substantive applicable law was the 1982 Law oI the Sea Convention, whilst in
another (Eritrea/Yemen) the Convention`s terms were applied by agreement between
the parties. In Qatar v. Bahrain, it was customary law that applied, whilst in the Jan
Mayen case the Court applied customary law to the delimitation oI the fsheries zones
and conventional law (in casu Article 6 oI the Continental ShelI Convention) to the
delimitation oI the continental shelI. In short, the applicable law diIIered Irom case
to case. Geographically, the decisions have dealt with diIIerent maritime settings:
two oI the decisions concerned semi-enclosed seas (Bahrain v. Qatar in the GulI,
and Eritrea/Yemen in the Red Sea), one concerned an oceanic situation (Jan Mayen
case in the North Atlantic) and the Iourth involved mainland states, Cameroon and
Nigeria, Iacing the GulI oI Guinea and its islands belonging to other states. In the
latter case the parties were two adjacent states, whilst the three others involved pairs
oI opposite states. Three cases (Qatar v. Bahrain, Eritrea/Yemen and Cameroon v.
Nigeria) concerned the delimitation oI both the territorial sea and maritime areas
beyond, whilst the Iourth, Jan Mayen, was confned to fshery zones/EEZs and the
continental shelf.
Despite these numerous legal and Iactual diIIerences, the judges in these Iour cases
have adopted a broadly similar approach to the task oI delimiting the maritime areas
in issue, something that calls Ior a Iuller review in chronological order. First, in the
Jan Mayen case, the Court, presided over by Judge Sir Robert Jennings, Iound, in
regard to the continental shelf, that
... it is in accord with precedents to begin with the median line as a provisional line and
then to ask whether any special circumstances` require any adjustment or shiIting oI that
line. (paragraph 51).
404 Chapter 23
The Court clearly had in mind as one precedent the Libya v. Malta case.
38
The Court
adopted the two-stage process; it considered the fsheries zone boundary, applying
customary law, and then turned to consider the continental shelI boundary, applying
the Continental ShelI Convention as a treaty in Iorce between the parties. The Court
Iound that, at a ratio oI 9:1, there existed a legally signifcant disparity in coastal
lengths between Greenland and Jan Mayen island, and shiIted the provisional line
towards the shorter coast in order to achieve an equitable result Ior the fsheries zone
and the continental shelI alike.
Secondly, in 2000, the ad hoc Arbitral Tribunal in the Eritrea/Yemen case, presided
over by Sir Robert Jennings, Iound that
It is a generally accepted view, as is evidenced by the writing oI commentators and in the
jurisprudence, that between coasts that are opposite to each other the median or equidis-
tance line normally provides an equitable boundary in accordance with the requirements
oI the Convention and, in particular, those oI its Articles 74 and 83... .
39
This proposition as to the generally accepted view could also be said to be evidenced
by state practice, as presented in International Maritime Boundaries,
40
although many
delegations to the LOS ConIerence during the mid1970s would have contested the
proposition in that Iorum. The Tribunal decided that the boundary should be a single
all-purpose boundary and that it should be a median line drawn as Iar as practicable
between mainland coasts. The Tribunal then proceeded to examine the two coasts,
including oIIshore islands on both sides, comparing and contrasting the respective
basepoints. The Tribunal applied, as the fnal stage, the Iactor oI proportionality as
a test oI the equitableness oI the provisional median line between the chosen base-
points, and Iound that the result produced by the median line in terms oI areas was
not disproportionate. The test was applied to the entire line, including those sections
where it was a territorial sea boundary.
41
Thirdly, the case between Qatar and Bahrain concerned the delimitation oI the
territorial seas oI the parties in the southern sector, and the continental shelI and
the EEZs in the northern sector. As regards the territorial sea, the Court, presided
over by Judge Guillaume, applied Article 15 oI the 1982 Convention as customary
international law, stating that:
38 1985 ICJ Rep. 33; Report Number 8-8.
39 Award, 40 ILM (2001) 983, para. 131.
40 In his introduction to Volume I oI this work, ProIessor Charney concluded that the evi-
dence in the study showed that 'the equidistant line will be considered in most circum-
stances as a basis Ior analyzing the boundary situation and Iurther 'It may very well be
used in some Iorm or variant to generate the boundary itselI. Vol. I, p. xliv.
41 Award, 40 ILM (2001) 983, paras. 165-8.
The most logical and widely practised approach is frst to draw provisionally an
equidistant line and then to consider whether that line must be adjusted in the light oI the
existence oI special circumstances.
42
As regards the continental shelI/EEZ, the Court Iollowed its own precedents and
stated that it would
frst provisionally draw an equidistance line and then consider whether there are circum-
stances which must lead to an adjustment oI that line. (paragraph 230)
The Court Iound that, although some circumstances invoked by the parties, such as
historic pearl fshing patterns, did not justiIy adjustments, certain minor geographi-
cal Ieatures, both islands and low-tide elevations, had to be discounted in order to
achieve an equitable solution because they would have led to distortions.
Finally, in the concluding part oI its decision in the case oI Cameroon v. Nigeria,
43
the Court, again presided over by Judge Guillaume, had to consider the delimitation
oI an area lying beyond the territorial sea. The Court stated the Iollowing:
The Court has on various occasions made it clear what the applicable criteria, principles
and rules oI delimitation are when a line covering several zones oI coincident jurisdic-
tions is to be determined. They are expressed in the so-called equitable principles/rel-
evant circumstances method. This method, which is very similar to the equidistance/spe-
cial circumstances method applicable in delimitation oI the territorial sea, involves frst
drawing an equidistance line, then considering whether there are Iactors calling Ior the
adjustment or shiIting oI that line in order to achieve an equitable result.`
44
The Court, aIter citing its own decisions in the Jan Mayen and Qatar v. Bahrain
cases, proceeded to Iollow that method, beginning with the defnition oI the relevant
coasts. In the event, the Court was not persuaded, on the geographical Iacts Iound,
oI the need to modiIy or adjust the equidistant line in Iavor oI Cameroon in response
to latter`s contentions based on coastal concavity, coastal lengths and the eIIects oI
other boundaries, actual or prospective, between states in the region.
To sum up, the citations set out above display a remarkable consistency over
the methodology. In its recent jurisprudence, the Court has given an impression oI
moving away from some aspects of its decision in the North Sea cases, building
instead on the approach adopted in the Channel arbitration
45
and the Libya v. Malta
case. The Court has Iound that the equidistant line could be drawn as the frst stage
in a process, Iollowed by consideration oI the question whether or not it produces
an equitable solution. Adjustments have been prescribed in three cases (either by
42 2001 ICJ Rep. 40; Report Number 7-13.
44 2002 ICJ Rep .303 at 441, para. 288.
406 Chapter 23
discounting certain basepoints or by shiIting the initial equidistant line toward a
relatively short coast away Irom a longer one) and reIused in the Iourth. The Court
and other tribunals have also Iound that the principles and methods are similar
whether the applicable law was custom or conventional (whether the Conventions
oI 1958 or the 1982 Law oI the Sea Convention), as well as whether the states were
adjacent or opposite. By adopting such remarkably similar methodology, the cases
can be said to have also built up a constant jurisprudence. Some uncertainties still
remain, notably as to the relevant criteria Ior deciding upon the existence oI a need to
adjust the provisional equidistance line. Nonetheless, the case-law has gone a good
way towards making the law more predictable in its results. In eIIect, the judges have
flled the gaps apparent in Articles 74 and 83 oI the 1982 Law oI the Sea Convention
as regards both the applicable methodology and the legal principles. The approaches
to the delimitation oI the territorial sea, the EEZ and the continental shelI have also
been harmonized, subject to the inescapable diIIerences between those areas.
46
In the
view of the present writer, these developments are positive.
B The Trend towards Single Maritime Boundaries
The Reports show that today there is a strong trend towards the adoption oI all-pur-
pose boundaries. The earlier agreements, dating Irom the 1960s and earlier, naturally
concentrated on the delimitation oI the territorial sea and the continental shelI. It was
only with the introduction oI the new concept oI the EEZ alongside the concept oI
the continental shelI that the idea oI the single maritime boundary was born. It was
that type oI boundary that the Chamber oI the International Court oI Justice was
asked to draw in the Gulf of Maine case (see Report Number 1-3). Many agreements
were concluded on the basis oI a single all-purpose line.
47
In the Jan Mayen case
(see Report Number 9-19), the Court Iound it was required to apply both the rules oI
customary law relating to fshery zones and the terms oI Article 6 oI the Continental
ShelI Convention in regard to the delimitation oI the latter. Somewhat remarkably,
the Court Iound that the two lines were coincident at all points. In regard to the
continental shelI, the Court exercised its discretion to adopt an adjustment indicated
by fsheries considerations (paragraph 90). Whilst the Court stated in a later deci-
sion that 'the concept oI a single maritime boundary does not stem Irom multilateral
treaty law but Irom State practice (Qatar v. Bahrain case, paragraph 173), nonethe-
less the decision in the Jan Mayen case clearly strengthened the trend towards single
maritime boundaries noticed in the Gulf of Maine case. The Court may have been a
little modest as to its own infuence upon the development oI state practice.
46 The approach in the Gulf of Maine case, whereby 'more neutral criteria which were
'equally suitable to two types oI area/zone were applied in delimiting a single maritime
boundary, has been Iollowed. 1984 ICJ Rep. 246, at p. 327, para. 194.
47 Notable examples include Report Numbers 4-8 (Vol. IV) (Equatorial Guinea-Sao Tome
and Principe), 5-22 (Niue-United States (American Samoa)), 8-13 (Bulgaria-Turkey),
9-22 (Denmark (Greenland)-Iceland), and 10-15 (Estonia-Latvia).
There are obvious practical reasons Ior using the same line Ior regulating fsheries,
pollution controls and oil and gas operations. The existence oI diIIerent boundaries
Ior diIIerent purposes results in a situation oI overlapping Iunctional jurisdiction,
which can all too easily lead to practical problems calling Ior constant monitoring,
e.g., through the creation oI a bilateral oversight commission. Such problems are best
avoided by agreeing upon a single, all-purpose boundary. Some older agreements
relating solely to the continental shelI remain in Iorce, but the only new ones having
this limited scope relate to areas beyond the 200 n.m. limit.
48
C Trend towards Accurate Application of the Rules on Baselines, Islands,
Low-tide Elevations, etc.
The 1982 Law oI the Sea Convention contains many rules Ior the measurement or
technical defnition oI national marine spaces. These rules are directly relevant in
boundary-making since the outer limits oI the territorial sea and maritime zones are
measured Irom baselines. States Parties to the Convention and international courts
and tribunals, when delimiting maritime areas, are applying rules such as those on
normal baselines, bays, harbour works, river mouths, straight baselines and low-
tide elevations contained in Part II, on the status oI islands and rocks (Part VIII,
Article 121), and on archipelagic baselines (Part IV). These rules were based to a
large extent upon those contained in the Territorial Sea Convention oI 1958. The
rules were reviewed word by word and refned during the LOS ConIerence when the
new concept oI the archipelagic state was also articulated. The rules in Parts II, IV
and VIII oI the Convention are all part oI the Convention`s 'package and, as such,
they should be Iollowed by international courts and tribunals in deciding questions
concerning boundaries, either as directly applicable treaty law or as expressions oI
customary law. In Qatar v. Bahrain (see Report Number 7-13), the International
Court oI Justice adopted a strict attitude, holding that Bahrain was not entitled, on the
geographical Iacts oI its coasts and islands, to apply the method oI straight baselines.
49
In the Eritrea /Yemen case the Tribunal, in applying Articles 6 (ReeIs) and 7 (Straight
Baselines), adopted a strict approach and reIused to accept as a basepoint a reeI that
did not dry. A less strict approach was followed, however, when Article 7 was applied
in regard to some Yemeni islands even though the coastal state 'does not appear to
have claimed a system oI straight baselines.
50
In conIormity with the scheme oI the
Convention, such baselines should not be assumed: Article 7 is merely permissive
and Article 16 provides that baselines have to be charted and given publicity.
48 For example, Report Number 15(2), (Mexico-United States).
49 2001 ICJ Rep. 40, at p. 103, paras. 214-5.
50 Award, 40 ILM (2001) 983, para. 151.
408 Chapter 23
D 1rend towards Unipcation of Customary and Conventional Law
In regard to the delimitation oI the territorial sea, Article 15 oI the 1982 Law oI
the Sea Convention has been Iound by the International Court oI Justice in Qatar
v. Bahrain to be expressive oI customary international law (see Report Number 7-
13). Article 15 Iollows very closely the wording oI Article 12 oI the Territorial Sea
Convention, the terms oI which did not prove to be controversial at the Third United
Nations ConIerence on the Law oI the Sea. Similarly, the Court`s fnding will not be
viewed as controversial.
In regard to the delimitation oI the EEZ and continental shelI, the aim oI achieving
an equitable solution, as set out in Articles 74 and 83 oI the 1982 Convention, is not
controversial. It has been accepted and applied by states Parties to the Convention
and by international courts and tribunals. The obligation is one oI result and it applies
in both negotiations and third party settlement. It must now be regarded as part oI
customary law.
51
In the Jan Mayen case, the Court Iound that the obligation refected
'the requirements oI customary law as regards the delimitation both oI continental
shelI and oI exclusive economic zones.
52
The Court also cited
53
with approval the
well-known dictum oI the Court oI Arbitration in the Channel case to the effect that
the 'equidistance-special circumstances rule in Article 6 oI the Continental ShelI
Convention was a particular expression oI the rule oI customary law that boundaries
were to be determined on equitable principles.
54
There is thus congruence between much customary and conventional law on
delimitation. This has come about only in recent years. The situation prevailing in
the past whereby there was a diIIerence between customary and conventional law
relating to the continental shelI must be regarded as having been exceptional and,
indeed, undesirable.
E Trend Towards Harmonization between the Different Zones
There is a tendency to assimilate to a certain extent the legal principles relating to
maritime delimitation, whether the boundary runs through the territorial sea, the EEZ
or the continental shelI. This trend can be seen most clearly in the Qatar v. Bahrain
and Jan Mayen cases. In the Iormer, the Court stated that the rules oI customary law
relating to the delimitation oI the territorial sea were 'closely related to the rules oI
delimitation oI the continental shelI and EEZ. In a geographical setting such as that
between the parties, both oI which had extended the breadth oI the territorial sea Irom
3 to 12 n.m. whilst the case was pending, the interrelationship oI the rules relating
to the delimitation oI the territorial sea with those relating to areas just beyond was
clearly very close. In the Jan Mayen case, the Court Iound that the application to
51 A view expressed by Antunes, supra fn. 1, at p. 415.
52 1993 ICJ Rep. 38, para. 48.
53 Ibid., para. 46.
54 Report Number 9-3; RIAA vol. XVIII, p. 45, para. 70.
the Iacts oI the rules oI customary law on the delimitation oI fshery zones produced
precisely the same line at all points as the application oI Article 6 oI the Continental
ShelI Convention.
At the same time, diIIerences between the territorial sea, on the one hand, and
the continental shelI/EEZ, on the other, still remain and have been refected in state
practice. Report Number 9-21 (Belgium-Netherlands) indicates that not only were
two diIIerent treaties concluded, one Ior the territorial sea and the other Ior the areas
beyond, but also that diIIerent methods oI delimitation were used in them.
F Growing Interest in the Continental Shelf beyond 200 n.m.
Interest in the delimitation oI the outer continental shelI beyond 200 n.m. has grown
since 1990 both as regards the determination oI the outer limit and, to a lesser extent,
the establishment oI lateral boundaries with neighbors.
55
A recent survey Iound that
in as many as 22 areas the continental shelves oI two or more states extended beyond
200 n.m. Irom the respective baselines, thereby giving rise to the need to consider
questions oI delimitation where provisional entitlements overlapped.
56
Several recent
agreements have established boundaries extending beyond 200 n.m. Irom the base-
lines of the parties.
57
Geophysical and geomorphologic criteria retain their relevance beyond 200 n.m.
as regards both entitlement to outer continental shelI and delimitation oI boundaries
with neighbours.
58
Article 76 oI the 1982 Convention requires inIormation about
limits oI the continental shelI beyond 200 n.m. to be submitted to the Commission on
the Limits oI the Continental ShelI, which is empowered to make recommendations
to the coastal state. The Commission has now started its work and many Governments
are preparing to make their submissions to it. The Commission`s Rules oI Procedure
include specifc arrangements Ior the submission oI inIormation in situations where
55 D.A. Colson, 'The Delimitation oI the Outer Continental ShelI between Neighboring
States, 97 AJIL (2003) 91; P.J. Cook and C.M. Carleton, (eds.), Continental Shelf Lim-
its. The Scientihc ana Legal Interface (2000). The International Law Association has
created a Committee on Legal Issues oI the Outer Continental ShelI: see the Committee`s
Preliminary Report in the Report oI the Seventieth ConIerence: New Delhi 2002, p. 741,
as well as the Report oI the Seventy-frst ConIerence: Berlin 2004.
56 J.R.V. Prescott, 'National Rights to Hydrocarbon Resources oI the Continental Margin
beyond 200 Nautical Miles, in Blake et al. (eds.), Boundaries and Energy: Problems
and Prospects (1998), at p. 51. In seven areas a single state`s continental shelI extended
beyond 200 n.m. without boundaries with neighbours.
57 See, Ior example, Report Numbers 1-5(2) (Mexico-United States), 2-13(3) (Trinidad and
Tobago-Venezuela), 5-1 (Australia-France (New Caledonia)), 5-4 (Australia-Solomon
Islands), 5-26 (Australia-New Zealand), 6-1 (Australia (Heard and McDonald Islands)-
France (Kerguelen Islands), and 9-7 (Ireland-United Kingdom).
58 Such Iactors are no longer relevant in regard to the delimitation oI areas entirely within
200 n.m.: decision oI the International Court oI Justice in Libya v. Malta, 1985 ICJ Rep.
13, para. 40. However, it may be necessary to show a good root oI title by demonstrating
natural prolongation all the way Irom the coast to beyond 200 n.m.
410 Chapter 23
delimitation questions remain unresolved.
59
According to paragraph 10 oI Article 76,
its provisions are without prejudice to questions oI delimitation between neighbours.
To date, two submissions, by the Russian Federation and Brazil, have been made to
the Commission,
60
and Australia`s submission is imminent at the time oI writing.
Several Arctic boundary issues were raised in the Russian submission: as a result,
some neighbouring states reacted on the ground that there existed unresolved
boundary questions. The Commission replied on 25 April 2004 to some questions
Irom Russia about the Commission`s recommendations.
61
The Commission is a technical body, without legal expertise. Yet it is charged with
reviewing inIormation concerning the implementation oI Article 76. This process oI
review inevitably raises not only technical matters but also legal questions having to
do with the application and interpretation oI Article 76. Maritime boundary disputes,
whether they relate to areas within or beyond 200 n.m., remain subject to the terms
oI Part XV oI the Convention concerning the Settlement oI Disputes.
62
In the St
Pierre/Miquelon case between Canada and France, the ad hoc Court oI Arbitration
declined to draw a maritime boundary beyond the 200 n.m. limit on the ground that
any decision would not be between the parties but rather between each party and the
'international community represented by organs entrusted with the administration
and protection of the international sea-bed Area... that has been declared to be
the common heritage of mankind. The Court oI Arbitration added that it was not
competent to give a decision aIIecting 'the rights of a Party which is not before it.
63
This wording may have been intended to reIer to the International Seabed Authority,
even though the latter`s role in regard to questions oI limits and boundary litigation
was intended by the terms oI the 1982 Convention to be essentially passive.
64
The
59 Rule 45(1) reads: 'In case there is a dispute in the delimitation oI the continental shelI
between opposite or adjacent States or in other cases oI unresolved land or maritime
disputes, submissions may be made and shall be considered in accordance with Annex I
to these Rules.
60 Report oI the United Nations Secretary-General on Oceans and Law oI the Sea 2002:
Addendum (Doc. A/57/57/Add.1, para. 38); Ibid., 2004 (Doc. A/59/62, paras. 83-109);
Statement oI the Chairman oI the Commission on the 14th Session, 30 August-3 Septem-
ber 2004 (UN Doc. CLCS/42). The Brazilian Government stated that it was not involved
with any disputes with neighbors concerning maritime areas. Ireland, Pakistan, Sri Lan-
ka, Norway and Namibia have indicated they are working towards making submissions
61 Letter Irom the Chairman oI the Commission to the Meeting oI the States Parties dated
18 May 2004 (UN Doc. SPLOS/111).
62 See D.H. Anderson, 'Maritime Boundaries and Limits: Some Basic Legal Principles:
Paper read at the ABLOS ConIerence in Monaco 2001, available at www.gmat.unsw.
edu.au/ablos.
63 Report Number 1-2 (Add. 2), at p. 2146. In any case, it would appear that points M and
N on the boundary awarded by the Tribunal lie less than 200 n.m. Irom Nova Scotia.
64 For details, see L.D.M. Nelson, 'Claims to the Continental ShelI beyond the 200 mile
Limit, in Gtz et al., Liber Amicorum Guenther Jaenicke-Zum 85. Geburtstag, p. 573,
Court oI Arbitration went on to note that the Commission would have a role when it
was constituted. The Iull implications oI this part oI the decision are unclear.
To date, no international court or tribunal has drawn a maritime boundary beyond
200 n.m. and the issue has not arisen on the geographical Iacts oI later cases. Many
questions remain unanswered. The delimitation, as between neighbouring states, oI
the continental shelI beyond 200 n.m. is a topic that will doubtless receive greater
attention as the work oI the Commission gathers momentum. It is already attracting
the interest of commentators.
65
G Trend towards Making InterimArrangements
The common terms oI paragraph 3 oI Articles 74 and 83 oI the 1982 Convention
provide Ior the negotiation oI provisional arrangements oI a practical nature pending
fnal delimitation oI the EEZ and continental shelI.
66
Different types of provisional
arrangements Ieature in recent maritime boundary practice. They can be classifed as
Iollows: (1) joint development oI mineral resources; (2) special areas Ior fsheries; (3)
provisional boundaries; (4) bilateral cooperation and third states; and (5) coordinated
patrols in undelimited waters.
1 Joint Development
A study by the British Institute oI International and Comparative Law undertaken in
1989 indicated the existence oI 12 bilateral treaties providing Ior Joint Areas or joint
development oI resources oI the continental shelI.
67
Since 1990, the concept oI a joint
area or joint zone or joint development has continued to attract interest on the part oI
negotiators as part oI a wider agreement or settlement oI a boundary issue and today
there are at least 20 such agreements. Several new joint areas have been negotiated,
involving states in many different parts of the world.
68
at p. 575; see also, ibid., 'The Continental ShelI: Interplay oI Law and Science, in Ando
et al. (eds.), Liber Amicorum Judge Shigeru Oda (2002), p. 1235.
65 J. Lilje-Jensen and M. Thamsborg, 'The Role oI Natural Prolongation in relation to ShelI
Delimitation beyond 200 nautical miles, 64 Nordic Journal of International Law (1995)
619; D.A. Colson, In. 55 supra; L.D.M. Nelson, In. 64 supra; R. Macnab, 'The Case
Ior Transparency in the Delimitation oI the Outer Continental ShelI in Accordance with
UNCLOS Article 76, 35 Ocean Development and International Law (2004) 1.
66 A topic reviewed by R. Lagoni, 'Interim Measures pending Maritime Delimitation
Agreements, 78 AJIL (1984) 345.
67 H. Fox et al. (eds.), Joint Development of Oil and Gas (1989). This study is being up-
dated: see D.M. Ong, Bilateral Joint Development Agreements for Common Offshore Oil
and Gas Deposits: Text and Commentary (in press).
68 Report Numbers 2-18 (Colombia-Jamaica), 4-4(4) and (5) (Guinea-Bissau-Senegal),
4-10 (Nigeria-Sao Tome and Principe), 5-19 (Malaysia-Vietnam), 5-21 (Cambodia-Vi-
etnam), 6-20 (Australia-East Timor). Negotiations Ior Iurther such agreements are in
progress.
412 Chapter 23
The concept oI joint development has also attracted judicial attention. In the
Eritrea/Yemen case, the Tribunal made some most interesting statements on the topic.
Having recalled the literature
69
and the well-known dictum oI the Court in the North
Sea cases
70
to the eIIect that agreements Ior joint exploitation were appropriate Ior
maintaining the unity oI deposits, the Tribunal went on to fnd as Iollows:
... having regard to the maritime boundary established by this Award, the Parties are
bound to inIorm one another and to consult one another on any oil and gas and other
mineral resources that may be discovered that straddle the single maritime boundary
between them or that lie in its immediate vicinity.
The Tribunal added that, among other Iactors
... the body oI State practice in the exploitation oI resources that straddle maritime
boundaries |,| import that Eritrea and Yemen should give every consideration to the
shared or joint or unitized exploitation oI any such resources.
71
These fndings and dicta are Iully in accordance with the spirit and aims oI paragraph
3 of Articles 74 and 83, as well as the practice of many states.
72
The dicta mark a
trend towards the emergence oI an obligation under customary law to seek some joint
solution where resources are discovered that straddle a boundary or lie in a boundary
area.
73
2 Special Areas Ior Fisheries Purposes
In the Eritrea/Yemen case, the Tribunal held in its frst decision concerning questions
oI territorial sovereignty that the traditional fshing regime in the region was to be
69 Onorato, 'Apportionment oI an International Petroleum Deposit, 17 ICLQ (1958) 85;
Fox et al., supra In. 67; Miyoshi, 'The Joint Development oI OIIshore Oil and Gas in
relation to Maritime Boundary Delimitations, International Boundaries Research Unit,
Durham 1999; Nguyen Hong Thao, 'Vietnam and Joint Development in the GulI oI
Thailand, 8 Asian Yearbook of International Law (1998-9) 137.
70 1969 ICJ Rep. 3, at 52, para. 99.
71 Award, 40 ILM (2001) 983, at 999, para. 86.
72 For surveys, see D.M. Ong, 'Joint Development oI Common OIIshore Oil and Gas De-
posits, 93 AJIL (1999) 771, and ibid., 'The Progressive Integration oI Environmental
Protection within Joint Development Agreements, in M. Fitzmaurice and M. Szunie-
wicz (eds.), Exploitation of Natural Resources in the 21st Century (2003), p. 113.
73 See also ProIessor Reisman`s case-note on the Award in 94 AJIL (2000) 721, at 723
and 735 where the view is expressed that 'In the complex paragraph 86... the Tribunal
seemed to assume that some oI these practices were rapidly acquiring, but have not yet
attained, customary international law status.
perpetuated.
74
In particular, the Tribunal held that Yemen was obliged to ensure that,
in a loosely defned area around certain specifed islands, the traditional fshing re-
gime oI Iree access and enjoyment Ior fshermen oI both countries was preserved. In
its second decision on Maritime Delimitation, the Tribunal clarifed the above fnding
by stating that the traditional fshing regime was not an entitlement in common to
resources. However, the eIIect oI the two decisions was that fshermen were enti-
tled to fsh and conduct ancillary activities according to traditional artisanal patterns,
without reIerence to the boundary established by the Tribunal and the normal rules on
access to Ioreign maritime zones specifed under the 1982 Convention.
75
The preservation oI existing fshing patterns is something which has been provided
Ior in recent boundary agreements, Ior example, the Agreement between Honduras
and the United Kingdom (Cayman Islands).
76
The Agreement between Denmark
(Faroe Islands) and the United Kingdom in eIIect perpetuated as a 'Special Area
an area oI overlapping fsheries jurisdiction, which straddled the agreed continental
shelI boundary.
77
3 Provisional Boundaries
The agreement between Algeria and Tunisia
78
is unusual in that the two states
established a provisional line oI delimitation Ior six years, aIter which time the
parties agreed to conclude a Iurther agreement. In the preamble to their agreement,
the two parties expressly invoked the terms oI paragraph 3 oI Articles 74 and 83
and the concept oI making provisional arrangements that were to be subject to joint
evaluation during the six-year period. The agreement relates to a part oI the southern
Mediterranean that is currently beset by uncertainties over maritime jurisdiction.
79
4 Bilateral Cooperation and Third States
On 2 December 2002, the signature took place oI the EEZ Cooperation Treaty
between Barbados and Guyana concerning the Exercise oI Jurisdiction in their EEZs
in the area oI bilateral overlap within each oI their outer limits and beyond the outer
limits oI the EEZs oI Other States (see Report Number 2-27). The treaty provides
Ior bilateral cooperation in a triangular area situated within the 200 n.m. limits oI
the two parties, pending the establishment oI a maritime boundary between them.
Thus Iar, the treaty looks like other Joint Areas in categories (a) and (c) above, albeit
74 Award on Territorial Sovereignty, 40 ILM (2001) 900, at 979-980, para. 526 and disposi-
tif, para. vi.
75 Award on Maritime Delimitation, 40 ILM (2001) 983, at 1001, paras. 103-9.
78 Report Number 8-16; the text is also published by DOALOS in 52 LOS Bull. (2003) at p.
41.
79 Regional Report VIII by T. Scovazzi.
414 Chapter 23
small in size. The western side oI the triangular area is an arc drawn 200 n.m. Irom
the baselines oI Trinidad and Tobago. The entire area lies on the Venezuelan side oI
the boundary between Venezuela and Trinidad and Tobago defned in the agreement
oI 18 April 1990 (see Report Number 2-13(3)). The treaty between Barbados and
Guyana appears to represent a diplomatic response by the two parties to the claims oI
third states. This may be the frst example oI the use oI the concept oI the joint area
as a means of cooperation directed against the claims of third states.
5 Coordinated Patrolling
Following the decision oI the International Court oI Justice in the case between
Indonesia and Malaysia concerning sovereignty over Litigan and Sipadan, the two
Governments noted the absence oI a maritime boundary in the surrounding waters
and, as an interim measure, agreed to conduct coordinated patrols there.
80
H Trend towards Use of Technical Experts, Geodesics and Computing
The use oI technical experts in maritime delimitation has been analyzed elsewhere
by Peter Beazley and Nuno Antunes.
81
It is the experience oI the author that technical
experts, notably hydrographers and cartographers, are invariably used in negotiations
concerning maritime boundaries.
82
It would be unthinkable to undertake negotiations
Ior a new boundary, Ior instance, without frst conducting a hydrographic study. Tech-
nical experts are regularly supplied by intergovernmental organizations such as the
United Nations and the Commonwealth Secretariat to those Governments which do
not employ, or have ready access to the services of, their own local experts.
83
In addi-
tion, experts have been appointed by some courts and tribunals.
84
This practice fnds
a certain endorsement in Article 289 oI the Convention concerning the use oI experts
in cases involving technical matters, which clearly include hydrography, geodesy and
cartography.
85
However, this practice oI using an expert appears not to be an invari-
80 Report oI the UN Secretary General on Oceans and Law oI the Sea 2004 (UN Doc.
A/59/62, para. 27).
81 Peter Beazley, Global Analyses, IX Technical Considerations in Maritime Boundary De-
limitations, Vol. I, at 243; Nuno Antunes, 'Some Thoughts on the Technical Input in
Maritime Delimitation in in Charney and Alexander, International Maritime Bounda-
ries, ibid., Vol. V, p. 3377.
82 D.H. Anderson, The Negotiation oI Maritime Boundaries, in Schofeld et al. (eds.), The
Razors Edge (2002) 157.
83 Several hydrographic consultants are in practice.
84 For a survey, see Schofeld and Carleton, 'Technical Considerations in Law oI the Sea
Dispute Resolution, in A.O. ElIerink and D.R. Rothwell (eds.), Oceans Management in
the 21st Century (2004); on experts generally, see G.M. White, The Use of Experts by
International Tribunals (1965).
85 The Registry oI the International Tribunal Ior the Law oI the Sea has made arrangements
with the International Hydrographic Organization Ior cooperation on matters oI mutual
able one. In certain decisions, a report by an expert hydrographer has been appended,
the Gulf of Maine case being a leading example.
86
In some others, reIerence has been
made simply to the Iact that an expert was used, but without attaching a technical
report speciIying the basepoints, charts and proportionality calculations.
87
However,
in two recent cases, no mention has been made oI the use oI experts.
88
Report Number
7-13 notes that the Court`s judgment in Qatar v. Bahrain does not mention an expert
or identiIy a chart used even though seven maps were included in the decision, whilst
Report Number 4-1 (Add. 2) indicates that commentators have pointed to certain
technical defciencies in the decision in Cameroon v. Nigeria.
89
There exists a trend towards the use oI geodesic lines in most agreements. Such lines
are straight on the surIace oI the Earth, unlike loxodromes, which whilst appearing
as straight lines on a Mercator chart, are curved in the real world.
90
The diIIerence
between a geodesic and a loxodrome is especially marked in high latitudes. There
is also a danger in addressing boundary questions on the basis oI two-dimensional
maps with North at the top oI the page. The appreciation oI matters such as a 'cut oII
eIIect can easily be infuenced by the choice oI map, its projection and orientation.
91
Accordingly the trend towards the use oI geodesic lines is to be encouraged, especially
in a world that is making greater use oI electronic charts and computer-assisted
boundary calculation. Indeed, the use oI geodetically robust computer programs Ior
the determination oI maritime zones and the calculation oI equidistant lines appears
to be now normal practice, even in geographically complex settings. The Reports
in Volume V oI International Maritime Boundaries about unitization oI oil felds
straddling the agreed boundary between Norway and the United Kingdom serve to
underline the need Ior extreme accuracy.
92
concern (see Yearbook of the Tribunal 2002 (Vol. 6), p. 54.
86 Gulf of Maine case, 1984 ICJ Rep. 246: the Report by Cdr. P.B. Beazley is at pp. 347-
351.
87 Eritrea/Yemen case, Report Number 6-14.
88 The Registrar oI the International Court oI Justice has stated that cartographic experts are
engaged by the Registry as short-term consultants who do not produce oIfcial reports.
Such experts are charged with assisting the Court, individual judges and the Registry in
studying cartographic materials submitted by the parties to cases, as well as in produc-
ing particular maps or chartlets: see Ph. Couvreur, 'Le Reglement Juridictionnel, in Le
Processus de Delimitation Maritime, p. 349 at p. 384 (Colloque International, Monaco,
27-29 March 2003).
89 Cameroon v. Nigeria case, Report Number 4-1 (Add. 2).
90 The Court oI Arbitration in its second decision in the Channel case (Report Number 9-3)
noted this trend already in 1978 (para. 105).
91 R.W. Smith, 'Geographic Considerations in Maritime Boundary Delimitations, in D.G.
Dallmeyer and L. DeVorsey, Rights to Oceanic Resources (1989), p. 1, especially pp. 10-
11.
92 Report Number 9-15 (2-4).
416 Chapter 23
The entry into Iorce oI the 1982 Law oI the Sea Convention has improved the situa-
tion regarding the law oI the sea in general, and thereby also the legal Iramework and
climate Ior maritime boundary-making. Articles 74 and 83 contain Iour paragraphs
in similar terms, over the course oI which several principles Irom the United Nations
Charter are applied. The principle oI the non-use oI Iorce entails that boundaries may
not be imposed unilaterally, whether by Iorce or by making national claims. This
principle fnds particular expression in paragraph 1 which prescribes that delimita-
tion is to be eIIected by agreement. The principle oI good Iaith means that where a
boundary has been established by a treaty, any issues that may arise regarding the
boundary subsequently have to be determined by reIerence to, and in accordance
with, the terms oI the particular treaty, a principle refected in paragraph 4. The key
test in paragraph 1 is the 'equitable solution. The Charter principle oI the sovereign
equality oI states means, in the particular context oI the law oI the sea, that coastal
states are juridically equal beIore the law. Their coasts are evaluated in accordance
with the same rules and carry the same intrinsic weighting. However, where relevant
coasts or coastal Ieatures display dissimilar characteristics in some material respect,
such as their overall lengths or confgurations in the relevant area, they should not be
given equal weight. The two relevant coasts should be evaluated on a broad, overall
basis and basepoint by basepoint. It is only like things that should receive like treat-
ment. This principle underpins paragraph 1 where it reIers to 'an equitable solution.
Despite the Iact that the provision omits both methodology and legal principles, it can
be seen now to be bringing positive advantage in practice.
State practice beIore 1992 was systematically examined and analyzed in the frst
two volumes oI International Maritime Boundaries. The Iounding editor oI this
work, ProIessor Charney, identifed some substantial trends and practices, notably
the use oI the equidistant line as the basis Ior analyzing the situation, as well as oIten
providing the actual solution or at least pointing the way towards reaching one. He
also noted the preponderant weight accorded to geographical Iactors. Subsequent
practice has confrmed his fndings. Whilst many uncertainties remain in the content
oI international law regarding maritime delimitation, they have decreased in number
and scope since the initiation oI the Project in the late 1980s. The schism between
customary and conventional law has been healed to a large extent. The silence as to
methodology in paragraph 1 oI Articles 74 and 83 has been reduced by a series oI
consistent decisions by international courts and tribunals. This is a good example oI
the complementary roles oI conventions and courts in the development oI the law.
Chapter 24
Negotiating Maritime Boundary Agreements*
This chapter contains some personal assessments and conclusions based upon direct
involvement over a good number oI years with the issue oI maritime delimitation.
This involvement included the conduct oI negotiations Ior maritime boundary agree-
ments on behalI oI the British Government in a variety oI geographical and political
settings, as well as participation in some oI the negotiations concerning the question
oI delimitation during the Third UN ConIerence on the Law oI the Sea and in some
preparations Ior arbitrations.
1
I Political, Economic and Legal Factors in Negotiating Boundaries
The signifcance oI maritime boundaries in international relations grew in step with the
expansion oI national limits during the second halI oI the Twentieth Century. Boundary-
making is now a major task Iacing many coastal States, bearing in mind that relatively
* This chapter, the text oI a paper read at a Symposium held in Hamburg in September
2004, was frst published in R Lagoni and D. Vignes (eds.), Maritime Delimitation
(2006). It has been slightly updated.
1 For a view oI practice Irom 1942 to 1987, see the present author`s article 'Maritime
Delimitation-a View oI British Practice 12 Marine Policy (1988) 231 (now chapter 25
below). For a Norwegian view oI negotiation, see R.E. FiIe, 'La Ngotiation de lÀccord
de Dlimitation Maritime in Le Processus de Dlimitation Maritime: tude dun cas
fictif (2004).
418 Chapter 24
Iew oI them have a Iull set oI boundaries. Geographical experts have advised that the
theoretical total oI actual and potential boundaries is in excess oI 400.
2
In comparison,
the fve volumes oI International Maritime Boundaries, published between 1993 and
2005, contain reports upon 182 boundaries, or just less than halI oI the total.
3
The limits oI sovereignty and title to resources involve delicate political and securi-
ty issues. The risks involved in boundary disputes are oIten high: one need only recall
Lord Curzon`s dictum: 'Irontiers are the razor`s edge on which hang suspended.
issues oI war and peace..
4
The existence oI overlapping claims may inadvertently
lead to disputes, e.g. iI fshermen Irom one side are arrested by the coastguard oI the
other side or iI traces oI oil are discovered in an area oI overlapping claims. Over-
lapping claims may be akin to accidents waiting to happen. For this reason alone,
establishing maritime boundaries is a worthwhile task Ior coastal States.
Overlapping claims and unresolved boundaries may also chill economic activity,
e.g. exploration work by the oil and gas industry. Conversely, the establishment oI
a boundary brings legal certainty permitting economic activity to start in previously
'grey areas: Ior instance, the oil industry can be licensed right up to the line and fsh-
eries legislation can be enIorced similarly. Established boundaries also bring political
advantages: as the poet put it, 'good Iences make good neighbors.
5
Maritime boundaries are established either by some Iorm oI international agree-
ment or by the decision oI a court oI tribunal. For several reasons, a negotiated agree-
ment is the better means so long as an equitable result is achievable. The parties
retain control over a series oI important issues, such as the precise results oI the
negotiations and in particular the course oI the boundary lines; the way in which
the line is defned; the terms and the timing oI the agreement; and its presentation to
public opinion. In order to reach a mutually acceptable solution, negotiators can put
together 'packages Ior example, a combination oI boundary sections and a joint
area, or a trade-oII between two sections oI boundary or between diIIerent resource
interests. Conversely, litigation always carries risks Ior the parties, and the range oI
legal fndings available to a court or tribunal is more restricted than the options open
to negotiators.
2 G.H. Blake (ed.), Maritime Boundaries and Ocean Resources (1987); R.W. Smith, 'Lim-
its in the Seas, No. 108, Maritime Boundaries of the World (1990); J.R.V. Prescott and
C. Schofeld, The Maritime Political Boundaries of the World (2nd ed. 2005).
3 Vols. I to III oI International Maritime Boundaries were edited by Charney and Alexan-
der, Vol. IV by Charney and Smith and Vol. V by Colson and Smith. Leaving aside the
Caspian as a special case, the numbered reports Ior the ten regions total 182. Counting
boundary agreements and settlements is not straightIorward, Ior example where diIIerent
stretches oI a continuous boundary were agreed in diIIerent treaties at diIIerent times;
thus, the number oI agreements is higher than the number oI agreed boundaries.
4 Lord Curzon oI Kedleston`s words, uttered in 1908, provided the title Ior a collection
oI essays in honour oI ProIessor Gerald Blake oI the International Boundaries Research
Unit oI the University oI Durham: see Schofeld et al. (eds.), The Razors Edge: Interna-
tional Boundaries and Political Geography, London: Kluwer Law International, 2002.
5 Robert Frost, 'Mending Wall, in L. Untermeyer (ed.), Modern American Poetry, New
York, Harcourt Brace and Howe, (1919).
419 Negotiating Maritime Boundary Agreements
The negotiation oI boundaries is rarely an easy process. Compromising sovereign
claims oIten requires political courage, especially when the explicit approval oI the
Legislature has to be obtained beIore an agreement can enter into Iorce. But as Satow
put it:
There are Iew more rewarding things in diplomacy than a successIul negotiation... Irom
which both parties derive some satisIaction. For mutual satisIaction is the best guarantee
oI permanence.
6
Boundary-making involves conducting what are oIten complex, structured and Iace-
to-Iace negotiations against a predominantly legal background. According to article
74(1) oI the Convention on the Law oI the Sea, delimitation is to be 'eIIected by
agreement on the basis oI international law. In seeking such an agreement, the
normal legal principles of negotiation
7
apply, together with some specifc principles
applicable to delimitation. These two sets oI principles oI international law together
provide the best standards against which to negotiate and to assess worth oI proposals
Ior boundary settlements. International law is the yardstick against which to measure
an oIIer in talks, as well as the worth overall oI a proposed boundary settlement. It
is advisable to avoid linkages with other on-going negotiations such as trade talks,
whether bilateral, regional or multilateral, and to eschew reIerence to extraneous po-
litical Iactors, all the more so since the latter are oIten ephemeral. There is a need,
thereIore, iI negotiations are to be Iacilitated, Ior settled law clear legal principles
commanding universal support.
At different times, the state of the law has facilitated negotiations to different de-
grees. During the 1960s, the Geneva Conventions, based on the work oI the Interna-
tional Law Commission and its group oI technical experts, were generally helpIul.
The rules set out in Article 12 oI the Territorial Sea Convention appear to have worked
satisfactorily in practice
8
and some successIul negotiations Iollowed the entry into
Iorce oI the Convention on the Continental ShelI (CCS), notably in parts oI the North
Sea. However, the alternative Iormulation oI similar concepts contained in article 6
CCS may have created unnecessary problems Ior negotiators in particular geographi-
cal settings. Article 6 appears to have been cast in terms that tended to be both rigid
6 Lord Gore-Booth (ed.), Satows Guide to Diplomatic Practice, 5th ed., London, Long-
mans (1979).
7 As to which, see C-A. Fleischhauer, 'Negotiation in R. Bernhardt (ed.), Encyclopedia
of Public International Law, vol. III, 1997, p. 535; 'Ngociation in Salmon (ed.), Dic-
tionnaire de Droit International Public (2001); Jennings and Watts (eds.), Oppenheims
International Law, 9th ed., pp. 1181II; and 'Negotiation and Dispute Settlement by
the present writer, in M.D. Evans, Remedies in International Law: The Institutional Di-
lemma, Hart Publishing, OxIord (1998), p. 111.
8 The article, which lays down a rule oI conduct Ior States in the matter oI extending the
breadth oI the territorial sea in circumstances where no agreement has been reached be-
tween them to the contrary, appears not to have generated as many disputes as article 6
CCS.
420 Chapter 24
and vague. For instance, the proposition that in the absence oI agreement, etc. 'the
boundary is the median line (emphasis added) may have made it more diIfcult Ior
the many negotiators who wanted to achieve precisely that result to abandon it across
the table. When the 'deIault rule is in your Iavour, why agree to something worse?
The other qualifcation in article 6, contained in the phrase 'justifed by special cir-
cumstances, was not accompanied by any guiding legal principle or non-exhaustive
list oI agreed examples, although a Iew examples were cited in debate. Negotiators
could easily deny that the circumstances invoked by the other side were suIfcient
to be dubbed 'special (always a problematic word in legal texts) or to 'justiIy
(according to what principle?) a departure Irom the median line. The Iorecast made
by the International Law Commission
9
that departures Irom the initial median line
would be necessitated (by coastal confgurations, presence oI islands and navigable
channels) 'Iairly oIten was not clearly refected in the Iormulation oI its draIt article
72 or article 6 CCS. Finally, the possibility oI making reservations to article 6 may
well have complicated negotiations relating to those maritime areas to which reserva-
tions applied. In the event, negotiations infuenced by the Geneva regime produced
only limited successes, Ior example, in the North Sea, and where negotiations proved
unsuccessIul the result was litigation.
During the 1970s, Iollowing the fnding by the International Court oI Justice in
the North Sea Continental ShelI Cases
10
that article 6 oI the Convention on the Con-
tinental ShelI 'did not embody or crystallize any pre-existing or emergent rule oI
customary law, a doctrinal split was witnessed throughout much oI the Third United
Nations ConIerence on the Law oI the Sea. The States Parties to the Convention
on the Continental ShelI remained bound by its terms as a treaty in Iorce and their
delegations tended to support its approach Ior that reason, in addition to the substan-
tive ones. Non-Parties to that Convention tended to support the diIIerent approach
oI 'agreement in accordance with equitable principles contained in the DispositiI
oI the Court`s judgment, as well as the elusive concept oI 'natural prolongation.
These latter delegations wished to codiIy the Court`s decision, based on customary
law, as the new conventional law, replacing the Convention on the Continental ShelI.
The two groups oI delegations were about equal in numbers. Indeed, several pairs oI
States were simultaneously negotiating at two levels: bilaterally Ior a boundary and
multilaterally through membership oI rival groups in the ConIerence.
11
(The problem
9 Para. (1) oI the Commentary on draIt article 72, in Report oI the ILC: II YBILC (1956),
at p. 300.
10 ICJ Reports 1969, p. 3, at p. 41. The decision oI the Court oI Arbitration in 1977 in the
case between France and the United Kingdom, which neatly combined equitable princi-
ples and equidistance, came aIter delegations` positions had become entrenched and so
had little eIIect on the Iurther negotiations in the ConIerence.
11 Ireland and the UK provide one example. For accounts oI these discussions, see E.J.
Manner, 'Settlement oI Sea-Boundary Delimitation Disputes according to the Provisions
oI the 1982 Law oI the Sea Convention, in Makarczyk (ed.), Essays in International
Law in honour of Judge Manfred Lachs (1984), p. 625; J. Symonides, 'Delimitation
oI Maritime Areas, XIII Polish Yearbook of International Law (1984) p. 19; and L.
oI Governments trying to reach consensus on global rules oI law on delimitation
whilst negotiations Ior particular boundaries are underway or remain outstanding
may be insoluble.) A neutral Iormulation Ior the delimitation oI the exclusive eco-
nomic zone (EEZ) and continental shelI was agreed as articles 74 and 83 at a late
stage oI the ConIerence; but the crucial principle in paragraph 1 oI each article was
not specifc and Ior other well-known reasons to do with the regime Ior deep seabed
mining the Iate oI the Convention on the Law oI the Sea remained uncertain during
the years immediately after its adoption in 1982.
As a result oI these Iactors, Irom 1970 to the early 1990s, the state oI maritime
boundary law was unsettled, even controversial. This state oI aIIairs created diIf-
culty Ior negotiators. II, as was all too oIten the case, the best legal advice was to
the eIIect that recourse to litigation could result in the award oI a wide 'envelope
oI lines, it became more diIfcult Ior all concerned to oIIer compromises across the
table. In prior discussions within a government, Ior example, it was more diIfcult to
oppose constituencies who sought to insist upon maximalist outcomes iI the latter Iell
just within the 'envelope oI conceivable awards. The argument was that to make a
concession oI any size could amount to 'giving away billions oI dollars should an
average-sized oil feld be subsequently discovered there. The existence oI such wide
envelopes, refecting the uncertain state oI the substantive law, inevitably made com-
promise hazardous Ior both sides. The doctrinal schism at the global level between
supporters oI the median line approach and supporters oI equitable principles was
replayed in some bilateral negotiations. During this period, the principles oI interna-
tional law provided a less than satisIactory yardstick Ior negotiators.
Today, maritime boundary law is much more settled, due largely to two Iactors.
The frst Iactor is the entry into Iorce oI the Convention on the Law oI the Sea and its
acceptance by as many as 152 States Parties, including the great majority oI coastal
states.
12
This means that in most situations there are agreed legal provisions applicable
between the States concerned, especially the provisions on the limits oI national juris-
diction, on baselines, and on the delimitation oI the territorial sea, the Exclusive Eco-
nomic Zone and the continental shelI (articles 15, 74 and 83). As a result, most basic
principles are uncontroversial (although paragraph 1 oI articles 74 and 83 lack specifc
guidelines) and the Iormer diIIerences between conventional and customary law are
gradually disappearing. The second Iactor is the emergence oI a more consistent ap-
proach and methodology in the decisions oI courts and tribunals between 1992 and
the present day.
13
These decisions have concerned a variety oI legal and geographical
settings stretching Irom Jan Mayen in the North Atlantic via some points in the Mid-
Cafisch, 'The Delimitation oI Marine Spaces, in Dupuy-Vignes (eds.), Handbook on
the New Law of the Sea (1991), Vol. I, p. 425.
12 This total includes the European Community (and its member states).
13 See L. Lucchini, 'La Dlimitation des Frontieres Maritimes dans la Jurisprudence Inter-
nationale: Vue dÈnsemble, in Lagoni and Vignes (eds.), Maritime Delimitation (2006),
p. 1.
422 Chapter 24
dle East to the GulI oI Guinea.
14
Together the decisions have tended to complement
the guiding principle oI the 'equitable solution in the Convention. The remaining
controversies over the law governing maritime delimitation have been greatly reduced
in scope, as compared with situation in 1980. Today`s negotiators have a better legal
basis upon which to seek to reach maritime boundary agreements.
II The Pre-Negotiation Phase
BeIore opening negotiations, it is wise to Iorm a team that works together on the is-
sues. The members oI the team should include an international lawyer Iamiliar with
both the negotiation oI treaties
15
and the law oI the sea, including delimitation, and
a hydrographer Iamiliar with the latest charts and computer programs relating to the
area to be delimited. The team should also include experts on the bilateral political
relations between the negotiating States and the substantive domestic interests such
as hydrocarbons and fshing. The team leader should be either a political or a legal
expert. The whole team should prepare thoroughly by studying the Iull background,
including the geography oI the boundary area and the material interests oI both sides.
The diplomatic history oI the current boundary issue should be documented. The
maritime legislation applying to the area to be delimited should be examined, includ-
ing the legislation on baselines, the limits oI the territorial sea, EEZ or other maritime
zones, and the continental shelI. It is also a good idea to ensure that the relevant na-
tional legislation is up-to-date, including baselines and limits. It is better to negotiate
Irom position Iounded on specifc legislation establishing baselines and a territorial
sea oI 12 nautical miles, etc., than to advance claims based on notional baselines that
could be drawn in the Iuture or limits that have not been proclaimed.
The mention oI baselines serves to indicate that, at an early stage in preparations,
the negotiating team should obtain technical advice Irom the hydrographer or other
cartographic expert.
16
The hydrographer is usually asked to draw a median line be-
tween all valid basepoints on the two sides as a starting point Ior Iurther preparatory
work. The result oI this exercise oIten surprises the layman because the basepoints
are not obvious just Irom looking at a map. The hydrographer should be consulted
throughout the preparations and should attend all meetings between the delegations.
A view should be Iormed on which system oI law is applicable: customary or
conventional? Are the Geneva Conventions on Territorial Sea and on the Continental
ShelI in Iorce between the two parties? Or is article 15, 74 or 83 oI the Convention on
14 Jan Mayen case, ICJ Reports 1993, p. 38; Eritrea/Yemen Arbitration, 40 ILM (2001),
p. 983; Qatar v. Bahrain case, ICJ Reports 2001, p. 40; Cameroon v. Nigeria case, ICJ
Reports 2002, p. 303.
15 A topic reviewed in 'The Role oI the International Lawyer in the Negotiation oI Treaties
by the present writer, in Wickremasinghe C., (ed.), The International Lawyer as Practi-
tioner, London, British Institute oI International and Comparative Law, 2000, p. 21 (now
Chapter 18 above).
16 On the role oI the expert, see M. Pratt, 'The Role oI the Technical Expert in Maritime
Delimitation Cases, in Lagoni and Vignes (eds.), Maritime Delimitation (2006), p. 79.
the Law oI the Sea the applicable law? Is there a land boundary treaty and, iI so, does
it make any provision Ior the division oI the territorial sea? Does it defne the terminal
point oI the land boundary in an unambiguous manner? Where there exists a sover-
eignty dispute, it is best to resolve it either beIore concluding the boundary agree-
ment or to do so at the same time. For example, the agreement between the United
Kingdom and Venezuela oI 1942 concerning the delimitation oI the GulI oI Paria was
accompanied by a second agreement whereby the Island oI Patos was ceded.
17
It is also wise Ior a negotiating team to review at the outset all the available options
Ior an agreed boundary. An all-purpose, single boundary is oIten the best option since
it produces a clean-cut, fnal agreement. Resource activities can be licensed or regu-
lated by each State right up to the line. Whilst it is possible to have diIIerent lines Ior
diIIerent purposes, that option is unusual and in practice it may require the establish-
ment oI a management commission to resolve issues oI conficting uses/jurisdiction.
Similarly, a negotiator should consider the question oI the scope oI the Iorthcoming
talks. In particular, there is the question oI whether to seek a comprehensive settle-
ment or simply to agree on part oI an eventual longer boundary. Where the two States
have more than one outstanding boundary between coasts Iacing diIIerent seas or
oceans, a negotiator should consider whether to seek to agree upon all the boundaries
in the same negotiations or to take them singly (in which case, there is less chance oI
negotiating 'trade-oIIs between diIIerent boundaries).
The negotiating team should also review the major substantive interests involved
in the Iorthcoming negotiations. OIten, this entails making contact with the stake-
holders, such as representatives oI the fshing, oil and gas, dredging, shipping and
similar industries, as well as coastal and security interests. These interests may oIten
not coincide: Ior example, the fshing industry may seek access to one area and the
oil industry to another. Since fshermen vote whilst oil wells produce tax revenues, it
is sometimes necessary to make an overall assessment oI where national interests lie.
This eminently political question may have to be fnessed.
BeIore talks can be held, it is necessary to secure authority Ior a negotiating brieI,
usually including a proposal Ior an acceptable solution.
III The Negotiating Phase
Negotiations are usually initiated through the exchange oI diplomatic communica-
tions in some appropriate written Iorm. These are Iollowed, almost invariably, by
Iace-to-Iace meetings between the respective delegations.
18
The frst meeting is usu-
ally held in the capital oI the country that instigated the negotiations, although in
17 UK Treaty Series No. 10 (1942), Cmd. 6400.
18 In at least one instance, an agreement was concluded by exchanges oI Iax messages be-
tween oIfcials in the Quai dÒrsay and the Foreign and Commonwealth OIfce without
any Iace-to-Iace meetings. This was the Convention on Maritime Boundaries oI 25 Oc-
tober 1983 establishing the boundary between French Polynesia and the Pitcairn Islands:
Report No. 5-7 by the present writer in Charney and Alexander (eds.), International
Maritime Boundaries, Vol. I (1993), p. 1003. The boundary is an exact median line be-
424 Chapter 24
some instances meetings have been held in neutral capitals or Permanent Missions to
the United Nations in New York or Geneva. The home team is expected to take the
initiative in conducting the meeting. The leader oI each negotiating team should do
most oI the talking, assisted by other members who have defned roles.
Negotiations Ior maritime boundaries can, and oIten do, raise complex political,
economic and legal issues. In such cases, the adoption oI agreed guidelines Ior such
negotiations, bearing in mind that they may end in litigation, is oIten helpIul. Such
guidelines are agreed at the outset and initialled by the two heads oI delegation. The
content oI guidelines may vary according to the circumstances oI diIIerent sets oI
talks, but some typical guidelines are the Iollowing:
(1) The talks are to be conducted without prejudice to legal positions.
(2) The talks are confdential to the two Governments and, in particular, oIIers/con-
cessions made cannot be quoted publicly.
(3) Each side may make its own record oI everything said in the meetings, but iI the
issue were at any time to be submitted to a court or other tribunal these records
may not be introduced as evidence by either Government.
(4) Each side will exercise restraint over activities within, or relating to, the area
under discussion. These activities include defning claims in legislation, issuing
licenses Ior resource or research purposes, designating areas Ior administrative
purposes under national legislation, or authorising exploratory fshing or drilling
in the area of overlapping claims.
(5) Each side will inIorm the other in advance oI authorizing any new initiatives
or new activities in that area. (There could even be a need Ior a moratorium in
certain circumstances.)
(6) Each side will approach the talks with an open mind and recognise that any
agreement would have to be approved by the two Legislatures and Governments
beIore it could enter into Iorce.
Some such guidelines may be especially helpIul during diIfcult phases that oIten
arise in complex negotiations. They provide points oI reIerence and a Iramework Ior
the talks. They provide reassurance that concessions oIIered across the table will not
fnd an echo in other contexts such as the public media or litigation. They can assist
both delegations in making a Iurther joint eIIort to achieve some progress.
The nature oI negotiations Ior the delimitation oI boundaries has been the subject
oI judicial fndings. Thus,
|The parties| are under an obligation to enter into negotiations with a view to arriving at
an agreement, and not merely to go through a Iormal process oI negotiation as a sort oI
prior condition Ior the automatic application oI a certain method oI delimitation in the
absence oI agreement. The parties are under an obligation so to conduct themselves that
tween EEZs around small islands over 200 nm apart. It was an exceptional, perhaps
unique, case.
the negotiations are meaningIul, which will not be the case iI either oI them insists upon
its own position without contemplating any modifcation oI it.
19
The Iormulation adopted by the Court has to be understood in the context oI the dis-
pute between the parties over the applicability oI the well-known median line method
oI delimitation. Nonetheless, on a broader view this dictum amounts to saying that
negotiators should always act in good Iaith, keeping an open mind and avoiding obvi-
ous gambits and ploys that are not sincere. The requirement oI good Iaith refects a
general principle oI international relations. It is best Ior the negotiator to try to gain,
and then to retain, the confdence oI other side. Exaggerated or over-stated argu-
ments, sometimes called 'red Iace arguments,
20
may serve merely to dispel conf-
dence. At the same time, as a negotiator, you are trying to persuade the other side to
move away Irom their position and to accept at least parts oI your argument. In other
words, the negotiator is acting as an advocate Ior a point oI view. There is oIten no
point in concealing positions on your side which are strongly held and legally sound.
They should be advanced rationally and frmly, but without any threat or explicit
reIusal to acknowledge the possibility oI any modifcation.
II prior diplomatic exchanges have indicated diIIerences oI approach, it is best not
to attempt to do too much at the frst meeting. When commencing negotiations that
are expected to be long and complex, presentations oI the two opening positions,
Iollowed by questions or requests Ior clarifcations, may be all that can realistically
be expected Irom the frst Iace-to-Iace encounter. An opening presentation should
explain the background to the talks, including such points as the relevant legislation
and maritime claims oI the State concerned, its key interests and its approach to the
question oI delimitation.
An opening proposal should be made at the right moment, which may not occur
at the frst meeting. An opening proposal should be Iormulated precisely. It is good
practice to prepare a chart or map showing the proposed line, together with the jus-
tifcation. This should explain the method(s) used to draw up the proposal, such as
exact equidistance between all available basepoints on both sides, or simplifed equi-
distance
21
or adjusted equidistance to achieve an equitable result,
22
or a bisector oI
19 North Sea Continental ShelI cases, ICJ Reports 1969, p. 3, at p. 47, para. 85(a). The Court
cited the dictum oI the Permanent Court in its Advisory Opinion in the case oI Railway
TraIfc between Lithuania and Poland to the eIIect that the obligation to negotiate was
'not only to enter into negotiations but also to pursue them as Iar as possible with a view
to concluding agreements, whilst not implying an obligation to reach agreement: PCIJ
Series A/B, No. 42, 1931, at p. 116.
20 In regard to such arguments presented to internationals courts and tribunals, see R. Bun-
dy, 'Preparing Ior a Delimitation Case, in Lagoni and Vignes (eds.), Maritime Delimita-
tion (2006), p. 95.
21 Simplifcation on an area-compensated basis may be appropriate in order to straighten a
line.
22 For instance, by discounting the eIIect oI a minor coastal or distant insular Ieature in or-
der to avoid disproportion between the size oI the Ieature and the area it would otherwise
426 Chapter 24
an angle between the relevant coasts.
23
In introducing the proposal, the spokesperson
should mention any treaty provisions which are applicable (e.g. the Geneva Conven-
tions or the Convention on the Law oI the Sea), any relevant decisions by interna-
tional courts and tribunals, and any existing boundary agreements in the immediate
vicinity, especially agreements which create a Iramework Ior the Iuture boundary.
24
It is also a good idea to mention any boundary agreements in analogous geographical
settings that Iollowed the approach being proposed.
The initial proposal should be based on a sound legal basis, avoiding purely ar-
bitrary lines or ones drawn Irom doubtIul or notional basepoints, etc. All basepoints
and baselines relied upon Ior drawing a line should be justifable under the Conven-
tion on the Law oI the Sea, Iollowing the approach adopted by the Court in the Qatar
v. Bahrain case.
25
II any potential basepoints on either side are not used, an explana-
tion Ior discounting them should be given.
In accordance with the dictum in the North Sea Continental Shelf Cases, the nego-
tiator should be prepared to move Irom the opening position, choosing the time Ior
moving careIully. It is best to move when the other side has already moved or given a
signal that a move would be reciprocated. II the diIIerences between the two sides are
relatively minor, a small concession may be enough to move the negotiations towards
an agreed solution. II diIIerences are great, a small concession may be discounted as
derisory. In that situation, a concession which makes a noticeable diIIerence to the
course oI the line may be needed to keep talks moving Iorward. Experience shows
that once a concession has been oIIered, it will prove to be nigh impossible to recover
it. This is true even iI a concession is hinted at on a personal` level. II you do have
to withdraw a personal oIIer, this is rarely cost-Iree both across the table and also
within your own government. Always try to exchange your concession Ior one Irom
the other side. Otherwise, the concession may be digested and then, aIter a little time,
a Iurther morsel may be requested. The timing and size oI concessions involve mak-
ing important judgements. Keep in mind the bottom line` beyond which you are not
prepared to go. In a negotiation in which small concessions are being made by both
sides, it is unwise to change the tempo and move too quickly towards your bottom
line lest you be Iorced in the end to go below it in order to reach agreement.
control.
23 A solution adopted by the Chamber oI the Court in the Gulf of Maine case for one sector.
The technique oI bisecting an angle is akin to the use oI simplifed equidistance between
coastal fronts.
24 In semi-enclosed seas, a semi-complete pattern oI existing boundaries may provide a
Iramework Ior the negotiation oI the remaining boundaries. For instance, the existence
in the southern North Sea oI agreed boundaries between the Netherlands and the United
Kingdom (UK) and between France and the UK provided the Iramework Ior the negotia-
tion oI the boundary between Belgium and the UK. The latter`s negotiating stance was
based on the consideration that the UK was legally bound by agreements in Iorce with
its other two neighbours and the new boundary had somehow to join together the two
existing boundaries, thereby flling the 'gap.
25 ICJ Reports 2001 p. 40, at p. 103.
The area to be delimited oIten appears to be sub-divided into natural sections.
These can best be taken in turn, rather than attempt to discuss all areas at the same
time. II one section is agreed in principle, it may help the atmosphere to put aside Ior
the time being, or 'bank, that section as being, Ior example, 'agreed in principle,
but always subject to the satisIactory resolution oI the remaining issues, or some
similar Iormula. It is then possible to concentrate on the remaining points oI diIIer-
ence, possibly 'banking Iurther sections oI line so as to build up the provisionally
agreed mileage. In such circumstances, the negotiators may be encouraged to make
greater eIIorts by the consideration that much had already been achieved, albeit pro-
visionally. At the same time, a Iailure to reach Iull agreement may still yield a partial
agreement, thereby reducing the scope oI the remaining dispute.
II severe problems are encountered, introducing a discussion oI the possibility
oI litigation may be useIul. The mention oI this possibility may help to concentrate
minds on the need to seek agreement across the table. It is, oI course, perIectly pos-
sible to continue substantive negotiations when parties have agreed in principle to
litigate and even aIter litigation has begun.
When agreement has been reached at level oI delegations, it is prudent to prepare
joint note and a map to ensure that both sides have exactly the same understanding.
The leaders oI the two delegations could initial such a statement or 'heads oI agree-
ment as the outcome oI the negotiations, always ad referendum to Governments.
It is best to leave the draIting oI the treaty until a late stage when agreement has
been reached on the Iuture boundary. Once a line has been agreed, both sides are
anxious to complete the negotiation and this is oIten enough to ensure that goodwill
is displayed over draIting questions.
IV The Drafting of Boundary Agreements
The Vienna Convention on the Law of Treaties oI 1969 applies generally to all as-
pects oI boundary treaties, including their conclusion, application and interpretation.
However, boundary treaties are excluded Irom the rule that a party to a treaty may
invoke 'a Iundamental change in circumstances as a ground Ior terminating a treaty
on notice.
26
Furthermore, in a related instrument, namely the Vienna Convention on
Succession of States in Respect of Treaties oI 1978, it is provided that a succession
oI states 'does not as such aIIect a boundary established by a treaty or obligations
and rights established by a treaty and relating to the regime oI a boundary.
27
In other
words, the rules oI international law, as set out in these two Vienna Conventions, ac-
cord special protection to boundary treaties since they are intended to be oI indefnite
duration. It would require some unusual reason, implying a temporary situation under
article 74(3) oI the Convention on the Law oI the Sea,
28
to prompt the negotiators
26 This is provided in article 62 (2) (a) oI the Vienna Convention oI 1969.
27 This is stated in article 11 (Boundary regimes) oI the Vienna Convention oI 1978.
28 A rare example is the Agreement between Algeria and Tunisia oI 11 February 2002 es-
tablishing a provisional boundary Ior six years during which the implementation oI the
agreement would be evaluated: Report No. 8-16 in Colson and Smith (eds.), Interna-
428 Chapter 24
to include in the terms oI a boundary treaty a provision Ior its denunciation or ter-
mination. For the rest, the provisions oI the Vienna Convention oI 1969 provide the
Iramework Ior the draIting oI maritime boundary treaties.
The question oI the form oI the agreement should be considered at the outset oI the
draIting work. A boundary treaty sets out the limits oI the sovereignty or jurisdiction
oI two states. It has both international and constitutional signifcance. It may well be
the subject oI discussion in national legislatures. It is something which is intended to
last. Accordingly, it is best to choose a solemn Iorm oI international agreement, such
as an instrument in the Iorm oI a Treaty or Agreement.
With regard to the content oI boundary treaties, the main issue is how to establish
the line. The history oI boundary disputes on land demonstrates that a boundary trea-
ty which uses vague expressions or geographical descriptions is a recipe Ior Iuture
disputes. In the maritime context, an agreement to the eIIect that the boundary should
be the median line` without Iurther elaboration would be ambiguous because no-one
could identiIy with certainty the points Irom which it should be drawn. Moreover, it
could be ambulatory, Ior example iI baselines changed over the years as a result oI
natural Iorces or human intervention in reclaiming land Irom the sea. II such a provi-
sion were to be included in a treaty, there should be some additional defnition oI the
boundary in order to produce a clear result that stands the test oI time.
Every boundary treaty should be cast in terms which defne one single, unambigu-
ous line on the surIace oI the Earth. The rights oI each side under international law,
whatever those rights may be in a particular case, then extend in principle all the way
up to that line. Geographical certainty means that there should be agreement on the
geodetic parameters: notably, the projection oI the chart or map, the coordinates oI
Latitude and Longitude (expressed in degrees, minutes and seconds and reIerred to a
modern geodetic system such as WGS84), and the chart datum. Coordinates should
be suIfciently precise so as to establish a line oI zero or near-zero thickness, perhaps
using two places oI decimals Ior the seconds in case an oil feld is discovered that
crosses the agreed line.
29
II hydrocarbons are known to be absent and the boundary
is concerned in practice solely with fshing, then it would not be necessary to use
decimals oI seconds. All these parameters should be recorded in the text oI the treaty
and possibly also on the map or chart.
Following the best practice, lines between turning points should be straight on
the surIace oI the Earth, rather than straight on the chart. The whole purpose oI the
negotiations is to delimit some specifc areas oI the Earth, composed oI sea, seabed
and subsoil, which are three dimensional. Lines should be chosen in that context.
Whilst the successIul conclusion oI the negotiation may be Iacilitated by the use oI
a two-dimensional chart, the exercise of delimitation is not concerned with the chart
as such but rather with the part oI the world depicted on the chart. A straight line on
a Mercator chart is curved on the surIace oI the Earth. The curvature is especially
noticeable in high latitudes, especially where a boundary is a long one (e.g. extending
tional Maritime Boundaries, Vol. V (2005); see also the Law of the Sea Bulletin No. 52,
published by the UN Secretariat (2003).
29 See M. Pratt, In. 16 above.
Irom the baselines as a single line all the way out to the 200 nm limit). There is no
logical reason to make such a boundary curved as a result oI the use oI a particular
map projection. It is best to agree on geodetic lines, in the absence oI some good
reason to the contrary.
30
Should the boundary be defned by words and fgures or by drawing a line on a
map? Which prevails in the event oI inconsistency? In regard to terrestrial bounda-
ries, the Eighth Edition oI Oppenheim`s International Law, edited by Sir Hersch Lau-
terpacht in 1958, argued that in the event oI a discrepancy between the words and the
map, the Iormer should prevail. This doctrine, criticised by Sir Gerald Fitzmaurice in
the Temple Case,
31
was abandoned in the new Edition by Sir Robert Jennings and Sir
Arthur Watts,
32
on the ground that there was no general rule. Each case turned on its
own evidence and merits.
33
Clearly, in defning maritime boundaries, it is best to avoid all risk oI inconsist-
ency. The best way to achieve geographical certainty in a boundary treaty is to use
in the body oI the instrument appropriate defning words and coordinates oI Latitude
and Longitude on a defned datum or geodetic system. II maps or charts are used to
defne the boundary, they should be annexed to the treaty and ideally plenty oI copies
should be made. Even so, maps may turn out to be inaccurate or fawed, or they may
lack a datum, or they may be replaced by new editions. II maps or charts are to be
used in a treaty, it is the best practice to make clear that they are included merely Ior
the purposes oI illustration and are not defnitive.
Is it necessary to disclose the motivation or methodology used to reach agreement?
The motivation or purpose oI the parties in concluding a treaty is typically stated, iI
at all, in the Preamble to the agreement. An example is the Franco-British Agreement
oI 1996 concerning the boundary between Guadeloupe and Montserrat:
Recognising the need to delimit in a precise and equitable manner the maritime boundary
between.
34
In other cases, there may be an economic motive, such as 'to open up further op-
portunities for their respective off-shore petroleum and related industries or again
30 For details, see P.B. Beazley, Technical Aspects of Maritime Boundary Delimitation
(1994), published as Maritime Briehng No. 2 by the International Boundaries Research
Centre in the University oI Durham; and also C.M. Carleton and C. Schofeld, 'Technical
Considerations in Law oI the Sea Dispute Resolution in A.G. Oude ElIerink and D.R.
Rothwell (eds.), Ocean Management in the 21st Century, Brill 2004, p. 233.
31 ICJ Reports 1962 p. 65.
32 Oppenheims International Law, Ninth Edition, 1992, p. 663.
33 The Eritrea-Ethiopia Boundary Commission reviewed map evidence in its decision oI 13
April 2002, 41 ILM (2002) p. 1057, at paras. 3.17 to 3.28.
34 Report No. 2-21 in Charney and Alexander, International Maritime Boundaries, Vol. III,
(1998), p. 2227.
430 Chapter 24
Wishing to delimit (an) area of the continental shelf prior to the construction of a
pipeline between.
35
Some, but not all, maritime boundary treaties indicate the methodology used by
the parties in order to draw the line. Thus, several treaties reIer to 'equidistance or
the 'median line method, or to a modifed median line (in order to straighten the
line, Ior the beneft oI fshermen), whilst others reIer to 'equitable principles or the
'wish to achieve an equitable result. This type oI explanatory language is oIten in-
cluded in the preamble to the treaty, but it can also appear in the operative articles. It
is perIectly permissible to maintain total silence in the treaty as to the basis on which
the line has been drawn. This is appropriate when political or extra-legal considera-
tions directly aIIected the outcome oI the negotiations or where diIIerent methods
have been used in diIIerent sectors, especially iI reciprocal concessions in diIIerent
areas have been made.
The areas being delimited may have the status oI territorial sea, contiguous zone,
Exclusive Economic Zone or Fishery Zone, or continental shelI. Older treaties re-
lated to the territorial sea or continental shelI. More modern treaties concluded since
the mid-1970s relate to the EEZ. In some instances, the status is diIIerent on the
two sides oI the boundary. It has become the general practice to speciIy in a bound-
ary treaty the status oI the areas that are being delimited or to make clear that the
boundary is Ior all purposes. Some states have concluded two separate delimitation
agreements in respect oI frst the territorial sea and secondly areas beyond. For ex-
ample, Belgium and France concluded two agreements on the same day in 1990, one
delimiting the territorial sea and the other the continental shelf.
36
Belgium and the
Netherlands adopted the same solution in 1996.
37
Many boundary agreements dating Irom the 1960s related only to the continental
shelI. Some oI these agreements have been Iollowed when new types oI jurisdiction
have been claimed later. An example is provided by the Anglo-French Agreement oI
1988 which converted a part oI the boundary oI the continental shelI agreed in 1982
into the boundary oI the territorial sea Iollowing the extension oI the UK territorial
sea to a maximum oI 12 nm in 1987.
38
Later agreements signed from the mid-1970s
onwards have related to the EEZ in instances where one or both sides have declared
such a zone. The Agreement oI 1996 between Belgium and the Netherlands delimit-
ing the continental shelf provided that If one of the Contracting Parties decides to
establish an exclusive economic zone, the coordinates, as indicated in article 1, shall
be used for its lateral delimitation.
39
In the absence oI such a provision or a sub-
sequent agreement, it cannot be assumed that a boundary agreed Ior the continental
shelI necessarily applies equally to an EEZ iI one has been proclaimed.
35 Report No. 9-5(2) in ibid. p. 2485.
36 Charney and Alexander (eds.), International Maritime Boundaries, Vol. II, 1993, Report
No. 9-16, p. 1891.
37 Report No. 9-21 in ibid. Vol. III, p. 2921.
38 Report No. 9-3 in ibid. Vol. II, p. 1735.
39 In the event, both declared an EEZ: see Report No. 9-21 in ibid. Vol. IV, p. 2921.
In boundary negotiations between two States, there are oIten third States in the
same geographical area. Third States can be relevant Iactors in boundary negotiations
in two ways: frst, in the establishment oI a tripoint; and secondly (much rarer) in the
actual determination oI the course oI the line. The existence oI third States should
not be overlooked.
Looking frst at the question oI establishing tripoints, whenever an area oI sover-
eignty or jurisdiction oI a third State lies in the vicinity oI an area under negotiation,
there is clearly a need to establish at some stage a tripoint between the two principals
and the third State. DiIIerent techniques have been Iollowed Ior establishing such
tripoints. First, the two negotiating States have agreed on a possible tripoint, typi-
cally one based on equidistance Irom the nearest points in the three territories, and
one oI them has then approached the third State and sought its concurrence with the
proposed bilateral end-point, e.g. UK-Norway Protocol 1978.
40
Secondly, the negoti-
ating States have ended their agreed line two or three miles short oI the tripoint they
Iavour and agree that the line will be extended using the same method oI delimitation
once agreement has been reached with the third State concerned, e.g. UK/France
1982 and 1991 where the respective coasts were between approximately 18 and 30
nautical miles apart.
41
Thirdly, in exceptional circumstances, two States may agree
to draw a boundary all the way to a tripoint, but to give written notice to the govern-
ment oI the third state well ahead oI signature so that the latter has time to object iI it
is displeased with the implications oI the proposed boundary treaty Ior its interests.
Finally, the three States may conclude a treaty agreeing upon the exact location oI
the tripoint where the three maritime areas meet. An example is the Agreement oI 16
July 1971 signed by Indonesia, Malaysia and Thailand.
42
In a similar vein, Iceland,
Norway and Greenland agreed upon a tripoint and signed a simple record oI the
talks beIore proceeding quickly to sign three bilateral treaties, on the same day in the
same place in 1997, establishing three boundaries each starting/fnishing at the single
agreed tripoint. In order to emphasise the linkages, the three agreements entered into
force on the same day in 1998.
43
Turning to the second aspect, there may arise a need to take account oI a third State
in establishing the boundary between the two principal negotiators. The ICJ reIerred
to this principle in the North Sea Continental ShelI Cases, which concerned three
States that Iaced a concave coast.
44
This principle was also adopted by the arbitral
tribunal between Guinea and Guinea-Bissau, which drew a coastal Iront Irom a point
in Senegal in the north to a point in Sierra Leone in the south and fxed the maritime
boundary on a bearing in such a way as to avoid cutting oII Irom the 200 mile limit
40 Report No. 9-15, in ibid. Vol. II, p. 1879.
43 Reports Nos. 9-22, 9-4(2) and 9-19(2), in ibid. Vol. IV, at pp. 2941, 2903 and 2913, re-
spectively.
44 ICJ Reports 1969 p. 3, at p. 53.
432 Chapter 24
neighbouring States on the same longer coast oI West AIrica.
45
In state practice, ex-
amples oI the cut-oII Iactor are Iound in the agreement between Dominica and France
establishing boundaries to the north oI Dominica with Guadeloupe and to the south
with Martinique, where equidistant lines meet to the east oI Dominica on account oI
the confguration oI the three coasts. France agreed to allow Dominica to extend its
jurisdiction out to sea in order to reach an equitable solution.
46
In negotiations, the better practice is to take account to an appropriate extent oI
the existence oI third States in the maritime area under discussion. The alternative
approach oI ignoring the existence oI a third State and its maritime zones may serve
only to create new disputes Ior both principals. This is especially true iI a boundary
between two States extends into areas that are nearer to, or publicly claimed by, a
third State, or iI the line appears to 'cut oII the latter`s maritime jurisdiction.
With regard to the possibility oI oil or gas helas being founa to straaale the bouna-
ary, it is general practice to include in a boundary treaty a provision to the eIIect that
iI a discovery oI oil or gas is made in the Iuture in the vicinity oI the agreed line the
parties undertake to cooperate and draw up a new agreement Ior the joint exploita-
tion or apportionment oI the fnd. The normal rule is to 'unitise the discovery so
that each government is entitled to whatever resources lie on its own side oI the line,
no more, no less. (There are sophisticated techniques Ior measuring the oil or gas in
the seabed and subsoil, and treaties typically provide Ior reviews upon the request oI
either government or its permit-holders.) The UK and Norway have concluded sev-
eral treaties about oil and gas felds which straddle the previously agreed boundary
between them in the North Sea, e.g. Frigg, Murchison, StatIjord feld agreements.
47
In the situation where negotiators Iail to reach agreement on a boundary, Article
74(3) LOSC calls Ior eIIorts to be made to reach some interim arrangements without
prejudice to the fnal agreement.
48
Negotiators should keep an open mind in this situ-
ation since there are several possibilities. One is a short-term interim agreement, but
these are rare.
49
More oIten, joint development has been Iound to be a good option:
as many as ten percent oI the agreements reported upon in International Maritime
Boundaries provide Ior some Iorm oI joint development in a defned zone. (The Brit-
ish Institute oI International and Comparative Law collected the agreements in a two-
volume study.
50
) Normally, a Joint Commission is constituted by the treaty, composed
oI delegates Irom the two sides. Very diIIerent regimes are possible within a joint
area. The two governments may promote joint ventures between companies incorpo-
rated under their respective legal systems. Alternatively, one government may act as
45 25 ILM 251 (1986); Report No. 4-3 in ibid. Vol. I, p. 857.
46 Report No. 2-15, in ibid. Vol. I, p. 705.
47 Report No. 9-15 (2-4) in ibid. Vol. V p. 3944.
48 R. Lagoni, 'Interim Measures pending Maritime Delimitation Agreements, 78 AJIL
(1984) 345.
49 The Agreement between Algeria and Tunisia aIIords an example: In. 28 above.
50 H. Fox et al., Joint Development of Offshore Oil and Gas, Vols I and II, London, British
Institute oI International and Comparative Law 1989.
the sole operator according to an agreed work plan and subject to supervision by the
Joint Commission. More complex, perhaps, is the creation oI a special, negotiated
regime oI exploitation, with international tenders Ior permits issued by agreement in
the Commission. There are also joint areas Ior fsheries purposes. These may allow
fshermen authorised by the two licensing authorities to fsh in the entire area, subject
to control by the licensing authority which issued a licence to a particular fshing ves-
sel. The recent agreement between Denmark in respect oI the Faroe Islands and the
UK is an example.
51
Negotiators should retain the possibility oI creating a joint zone
in their options.
Existing operations to recover minerals Irom a boundary zone may create prob-
lems Ior negotiators. Where a state has issued a licence Ior oil or gas or gravel extrac-
tion Irom a defned area and the State later agrees to a boundary treaty which means
that that area belongs to its neighbour, provision can be made Ior the notional transIer
oI the licence to the neighbour. This solution was adopted by Belgium and the Neth-
erlands in 1996. The Netherlands had issued a long-term licence to a company to
extract gravel Ior the construction industry. As part oI the overall agreement on the
boundary question, Belgium agreed to issue a Belgian licence to the same company
on similar terms. This was arranged by means oI an exchange oI letters between the
two Ministers at the time oI signature oI the boundary agreement, Iorming part oI the
'package.
52
Should maritime boundary agreements contain provisions Ior the settlement of
disputes? Since there is much scope Ior dispute about land boundaries, provisions
in boundary treaties Ior dealing with disputes are not uncommon. In contrast, only a
minority oI maritime boundary treaties provide Ior the settlement oI disputes about
the interpretation or application oI their terms. An example oI such an exceptional
case is the Agreement between Greece and Italy oI 24 May 1977, article IV oI which
provides Ior recourse to the ICJ.
53
Normally, maritime boundary negotiations precede
the emplacement oI oil and gas installations. Being intended to settle the issue unam-
biguously, once and Ior all, such agreements usually do not create practical problems
and are not expected by the negotiators to lead to disputes. Disputes about joint areas
should ideally be resolved by the management commission.
It is the almost invariable practice to provide that a boundary agreement enters
into force not upon signature but rather upon ratifcation or approval. This is because
boundary treaties deal with questions oI sovereignty and jurisdiction, important mat-
ters oI state. Accordingly, they usually require approval by the legislative organs oI
the states concerned beIore they become binding. The pattern is to sign the treaty
'subject to ratifcation and then to present it to the Congress, Senate or Parliament
Ior their consideration. Only when it has been approved should the governments
proceed to ratiIy the signature and thereby establish the consent oI the state to be
51 Report No. 9-23, in ibid. Vol. IV, p. 2955.
52 Report No. 9-21, in ibid. Vol. IV, p. 2921.
53 Report No. 8-4, ibid. Vol. II, p. 1591.
434 Chapter 24
bound by the treaty. In line with the trend towards simplifed procedures, some recent
maritime boundary treaties have provided that
This Agreement shall enter into Iorce on the date on which the two Governments ex-
change notifcations oI their acceptance oI this Agreement.
A slightly more revealing Iormula is
Each Contracting Party shall inIorm the other oI the completion oI the constitutional
procedures required Ior the entry into Iorce oI this Agreement. The Agreement shall enter
into Iorce on the date when the last notifcation is received.
The recipient has to notiIy the sender oI the date oI receipt.
Since boundaries, when agreed, are intended to be oI indefnite duration, it is not
good practice to include any provision Ior denunciation or termination. Those mat-
ters are best leIt to the general law oI treaties: the basic rule is pacta sunt servanda.
How may a State seek to protect its interests in future negotiations with a third
State? It is not permissible to attach a reservation to a bilateral treaty at the time
oI ratifcation. An attempt to do so, Ior example at the instance oI the Legislature
during its consideration oI a boundary treaty, would amount to trying to reopen the
negotiations. However, when a government has a particular interest which it wishes
to saIeguard, not shared by the negotiating partner, e.g. a Iorthcoming delimitation
with another neighbour, the frst government should raise the matter during the talks.
For example, the Agreement between Belgium and the UK oI 1992 has attached to it
a Note Irom the Foreign Minister to the British Ambassador concerning the northern
terminal point oI the boundary, which coincided with the southern terminal point
oI the boundary agreed in 1965 between the Netherlands and the UK. Belgium re-
served its position over this terminal point. The Ambassador simply took note oI this
communication oI Belgium`s attitude.
54
Belgium later signed an agreement with the
Netherlands in 1996, defning a boundary which ran to a point Iurther north, albeit a
point on the boundary between the Netherlands and the UK.
Given the need for certainty, it is especially important to avoid errors in all types
oI boundary treaties. The greatest care should be taken. Technical experts should be
consulted. II an error is discovered, the Vienna Convention contains article 80 con-
cerning the correction oI errors in texts. There has been at least on instance where a
clerical error was made in a maritime boundary agreement. Some years aIter signa-
ture in 1982 oI an agreement between France and the UK establishing a continental
shelI boundary in the southern North Sea based on the method oI equidistance, it
came to light that a typing error had been made in listing the coordinates oI Latitude
and Longitude used Ior a basepoint known as Banc Breedt. This error had aIIected
the calculation oI two sets oI coordinates used to defne the agreed line. In 1990, the
French Government proposed a correction to the coordinates oI two points, numbers
13 and 14, on the agreed boundary. The UK consented to the amendment oI the
agreement in order to effect the correction.
55
Article 102 of the UN Charter provides that every treaty entered into by UN Mem-
ber States shall be registered with the Secretariat and published by it in the UN Treaty
Series. This rule applies to land and maritime boundary treaties. The process oI de-
posit is usually carried out by means oI Notes Verbales sent by Permanent Missions
to the UN in New York to the Treaty Section oI the OIfce oI the Legal Counsel in the
Secretariat. Articles 16, 47, 75 and 84 oI the LOS Convention provide Ior the deposit
with the UN Secretary General oI maritime charts depicting baselines, archipelagic
baselines, and the outer limits and agreed lines oI delimitation oI the EEZ and con-
tinental shelI. The Division Ior Oceans AIIairs and the Law oI the Sea oI the UN
Secretariat has published collections oI maritime boundary agreements.
56
Inshore maritime boundaries and those running through navigable channels used
by shipping should also be demarcated by buoys iI it is saIe to do so, as in the case
oI the agreement between France and Spain concerning the boundary in the mouth
oI the River Bissadoa.
57
However, it is not usual to attempt to demarcate in any way
oIIshore maritime boundaries and in practice it is not Ieasible or necessary. Modern
maritime navigational aids mean that ships, including fshing vessels, can check their
positions. Unlicensed fshermen Iound just inside the EEZ, say at 199 miles, can be
given the beneft oI the doubt, and be simply warned and told to leave the EEZ.
V Concluding Observations
Some oI the Iormer controversies oI the 1970s over the rules/principles applicable
to maritime delimitation are well on the way to resolution. DiIIerences between cus-
tomary and conventional law are decreasing. These are clearly positive trends. The
modern law should assist negotiators in reaching an agreed solution.
It remains true that negotiated settlements are the optimal outcome oI negotiations.
However, iI the negotiators` best eIIorts Iail to reach an equitable solution, then one
course open to the two governments is to draIt a compromis submitting the dispute to
an impartial, expert body Ior decision on basis oI international law. Article 287 oI the
Convention on the Law oI the Sea gives to the States Parties the choice oI Iorum,
58
including the International Tribunal Ior the Law oI the Sea.
59
55 Report No. 9-3 (4) (corr.), in ibid. Vol. III, p. 2468.
56 Maritime Boundary Agreements 1942-1969; ibid. 1970-1984; ibid. 1985-1991. DOA-
LOS has also published a useIul Handbook on the Delimitation of Maritime Boundaries
(2000).
58 See T. Treves, 'What have the United Nations Convention and the International Tribunal
Ior the Law oI the Sea to oIIer as regards Maritime Delimitation Disputes?, in Lagoni
and Vignes (eds.), Maritime Delimitation (2006), p. 63.
59 It may be noted in this connection that at the time oI writing there is no backlog oI pend-
ing cases in Hamburg. Members oI the Tribunal possess considerable experience oI both
maritime boundary negotiation and litigation.
Chapter 25
Maritime Delimitation: Early British Practice*
One oI Shakespeare`s characters in The Tempest said he 'would give a thousand
Iurlongs oI sea Ior an acre oI barren ground.
1
These days things are diIIerent: an
acre oI sea or seabed may be more valuable in some respects than an acre oI the best
ground. The prices oI oil, gas, and fsh are such that ownership oI maritime rights and
resources may aIIect the economy oI an entire nation. These economic considera-
tions, as well as political and security Iactors, have made the delimitation oI maritime
boundaries an important issue Ior many governments.
I British Practice before UNCLOS III
This article reviews the developments in maritime delimitation since 1940, with par-
ticular reIerence to UK practice regarding boundaries oI the continental shelI and
fsheries jurisdiction with neighbouring states. Since some oI this practice concerned
territories which have become independent states, the practice is surprisingly exten-
sive.
* This chapter, frst published in 12 Marine Policy (1988) 231-240, reviews developments
in maritime delimitation between 1940 and 1987, with particular reIerence to British
practice regarding boundaries oI the Continental ShelI and fsheries jurisdiction with
neighbouring states. Some later practice is reviewed in Ch. 26 below.
1 Gonzalo, Act One, Scene 1.
438 Chapter 25
In 1942 a treaty was signed between the governments oI the UK and Venezuela
concerning the delimitation oI the submarine areas oI the GulI oI Paria. The areas
were what are now called 'continental shelI , and the treaty touched on several im-
portant principles oI what was then an incipient legal concept. However, it did not put
Iorward in its terms any general principle or method Ior boundary making. Instead
it simply recorded the parties` agreement on a boundary composed oI lines joining
Iour defned points. One oI the lines Iollowed the limits oI the territorial waters oI
Venezuela. In explaining the treaty to the House oI Commons, the Minister stated
that it 'arranges Ior an equitable division.
2
In other words, the treaty established a
boundary by agreement: the lines were ones which both sides could accept but they
were not drawn according to any particular method or principle. In an article written
in his private capacity in 1946 aIter the Truman Proclamation, F.A. Vallat commented
that the treaty`s 'spirit is not Iar removed Irom that oI the Proclamation,
3
which of
course had reIerred to 'equitable principles.
4
In 1949 proclamations were issued in somewhat similar terms by several states in
the GulI which were then in special treaty relations with the UK. These proclama-
tions Iollowed the Truman Proclamation in stating that boundaries were to be decided
on 'equitable principles.
5
In the 1950s signifcant developments were seen in the law relating to the con-
tinental shelI as a result oI the work oI the International Law Commission (ILC).
As regards the question oI boundaries, the ILC proposed at frst the simple rule that
boundaries were to be established by agreement or by arbitration, but without giving
any more guidance to the arbitrators as to the principles to be applied. The ILC doubt-
ed whether there was any general principle. In 1953 the ILC convened a meeting
oI a small group oI technical expertshydrographers and geographersincluding
Commander Kennedy RN. They considered several diIIerent methods oI boundary
drawing:
continuing the land Irontier out to sea;
drawing a line perpendicular to the coast;
drawing a line vertically in the general direction oI the coast; and
drawing a median line, equidistant Irom baselines.
The Iourth method was the one Iavoured by the experts, except where it would not
lead to an equitable solution, which they considered should then be sought by nego-
2 Treaty Series, No. 10 (1942), Cmd 6400. Hansard, Commons, 14 May 1942, column 81.
In a Joint Declaration oI 26 November 1985, Trinidad and Venezuela agreed to negotiate
about delimitation in the GulI oI Paria.
3 F.A.Vallat, 'The Continental ShelI, British Year Book of International Law, 1946, p.
333. The article canvassed equidistance, Iollowing the line oI the deepest channel, exten-
sion oI land boundaries, or perpendiculars. In the case oI the gulI, the author considered
that 'perhaps the most equitable solution |sic| would be to divide the . area among the
contiguous states in proportion to the length oI their coasts.
4 M. Whiteman, Digest of International Law, Vol. 4, p. 756.
5 E.g. Bahrain, 5 June 1949 (ST/LEG/ SERB/1) p. 23.
439 Maritime Delimitation: Early British Practice
tiation.
6
The ILC studied the advice oI the experts and drew up a proposal containing
three elements: agreement, equidistance, special circumstances.
7
The Commission`s
commentary described this proposal as adopting the same principles as the ILC was
recommending for the delimitation of the territorial sea.
8
In 1958 the First United Na-
tions ConIerence on the Law oI the Sea considered the ILC`s proposals. Delimitation
oI the continental shelI was a topic taken in the Fourth Committee. The UK`s frst
spokesman on this topic was Kennedy.
9
1. Mr. KENNEDY (United Kingdom) said that sea boundaries established by pro-
jection oI a land boundary, by projection oI a parallel oI latitude or meridian, or
by intersection oI the radii oI two fxed points on the coastlines oI States which
were adjacent or opposite to each other were not satisIactory in many cases; such
boundaries oIten did not result in a Iair apportionment oI the sea area between the
two States concerned, and might indeed, cut across land territory. Similarly, the
line oI deepest water was not, he thought, a satisIactory criterion Ior establishing
a boundary; in the presence oI a number oI pools oI varying depth it would be diI-
fcult to establish the exact position oI such a line.
2. The Iairest method oI establishing a sea boundary was that oI the median line every
point oI which was equidistant Irom the nearest points oI the baselines Irom which
the breadth oI the territorial sea was measured, as stated in the United Kingdom
proposal (A/CONF.13/C.4L.28).
This proposal was as Iollows:
1. Where the submarine areas reIerred to in article 67 are adjacent to the territory oI
two or more States whose coasts are opposite to each other, the boundary oI such
areas appertaining to such States shall, in the absence oI agreement on any other
boundary, be the median line every point oI which is equidistant Irom the nearest
points oI the baselines Irom which the breadth oI the territorial sea is measured.
A similar Iormula was advanced Ior adjacent states. The main point was to omit the
ILC`s proposed reIerence to 'special circumstances. Kennedy`s statement explained
the proposal as Iollows:
When properly drawn, the median line was a precise line consisting oI a series oI
short straight lines. In agreeing upon a boundary, adjacent or opposite States might
well decide to straighten that series oI lines so as to avoid an excessive number
oI angles, giving an equal sea area to each State and also taking into account any
special circumstances. It had been suggested at the 31st meeting (para. 9) that the
6 A/CN 4/61/Add 1 and Annex: Vol. II, Yearbook of the ILC, 1953, pp. 7779.
7 DraIt Article 72: Vol. II Yearbook of the ILC, 1956, pp. 253, 300.
8 Ibid. The rule was described as 'Iairly elastic.
9 A/CONF 13/C 4/SR 32 Official Records, Vol. VI, p. 93.
440 Chapter 25
high-water line might be a more satisIactory criterion; he pointed out, however,
that while the high-water line did not move as rapidly as the low-water line, it was
nevertheless liable to move, and in certain places it had moved seaward by several
miles in the course oI about 50 years.
3. Among the special circumstances which might exist there was, Ior example, the
presence oI a small or large island in the area to be apportioned; he suggested that,
Ior the purposes oI drawing a boundary, islands should be treated on their merits,
very small islands or sand cays on a continuous continental shelI and outside the
belts oI territorial sea being neglected as base points Ior measurement and having
only their own appropriate territorial sea. Other types oI special circumstances were
the possession by one oI the two States concerned oI special mineral exploitation
rights or fshery rights, or the presence oI a navigable channel; in all such cases, a
deviation Irom the median line would be justifed, but the median line would still
provide the best starting point Ior negotiations.
In support oI the UK`s position, Kennedy prepared a paper called 'BrieI remarks on
median lines and lines oI equidistance and on the methods used in their construction,
which was distributed to delegates. The paper described diIIerent ways oI drawing
equidistance lines and concluded 'oI the methods described, that oI the median line
is the most precise. It is not maintained that this method is the ultimate answer to all
sea boundary problems Ior there may well be special considerations or circumstances
which would make such a division oI sea bed etc. inequitable.
The UK Iormula was criticized by other delegations on the grounds that it omit-
ted all reIerences to 'special circumstances and as a result would have led to a
rather rigid rule. The UK delegation agreed to restore a reIerence to 'special circum-
stances, and eventually the Fourth Committee adopted, albeit by a divided vote oI
30019, a joint text put Iorward by the Netherlands and the UK.
10
In the result, Article 6 oI the 1958 Convention on the Continental ShelI accepted
the ILC`s general approach made up oI the elements oI (i) agreement; (ii) equidis-
tance unless there are (iii) special circumstances. In the Foreign Secretary`s report
to Parliament, it was confrmed that the UK delegation had 'attempted to ensure
that more prominence was given to the principle of the median line as the starting
point Ior any delimitation . but it was clear Irom discussions . that most delega-
tions wished to leave the wording oI the ILC text substantially unchanged ..
11
The
phrase 'as the starting point provides an interesting insight into the delegation`s
thinking: the idea that the median line would be the starting point in negotiations was
also mentioned by Miss Gutteridge in her article about the convention.
12
UK practice in 1958 is also demonstrated by some legislation. In 1958 an Order
was made establishing maritime limits oII the coasts oI Sarawak (then administered
10 Summary Record oI the 33rd Meeting oI the Fourth Committee, Ofhcial Recoras, Vol.
VI, p. 98.
11 White Paper, Miscellaneous No. 15 (1958), Cmd 584.
12 British Yearbook of International Law, 1959, p. 102.
by the UK).
13
The limits extended Irom territorial waters on to the adjacent conti-
nental shelI, as Iar as the 100-Iathom line. The land boundary between Sarawak and
Brunei reaches the coast shortly to the east oI a prominent Ieature known as Tanjong
Baram. Any equidistance line would have been constructed on the Sarawak side Irom
that Ieature, producing a line running roughly NS. However, the general direction oI
the coast oI Borneo is NESW. The Order established a line Ior Sarawak which ran
NS Ior a short, initial stretch and then turned so as to run approximately NWSE or
perpendicular to the general direction oI the coast oI Borneo.
In 1960 the UK concluded the Treaty concerning the Establishment oI the Republic
oI Cyprus.
14
Section 3 laid down Iour maritime boundaries stretching Irom the coast
to points more than 12 nautical miles away. Each boundary is composed oI a series oI
lines Iollowing a defned compass bearing. None oI the lines is a median line.
In 1964 the UK Parliament enacted the Continental ShelI Act 1964 and the Fishery
Limits Act 1964. The Iormer was passed in the light oI the 1958 conventions on the
high seas and on the continental shelI and the latter in the light oI the 1964 European
Fisheries Convention. The Iormer contained no provision about the boundaries oI the
UK continental shelI. Instead, areas could be designated as British Irom time to time
by means oI Orders in Council made under section 1(7) oI the Continental ShelI Act.
The Fishery Limits Act 1964 provided Ior a 12-mile limit generally, but qualifed this
by a median line 'or any other line agreed
15
with France. No 'other line was agreed
with France Ior fsheries purposes. The UK then ratifed all three conventions, and
negotiations were proposed to several neighbouring states about boundaries on the
continental shelf.
In 1965, an agreement was concluded with Norway.
16
It is convenient to consider
its terms together with those oI a subsequent Protocol oI 1978.
17
The two instruments
establish a boundary which is about 508 nautical miles in length, running between op-
posite coasts lying between 160 and 320 miles apart. The entire bed oI the North Sea
is shallow; but oII the coast oI Norway, there is a trough 340 metres deep. When the
ILC was considering the question oI what amounted to 'continental shelI, a memo-
randum was prepared by the Secretariat oI UNESCO under the heading 'The Prob-
lem oI Irregularities in the ShelI`. The memorandum stated 'the Norwegian Trough
Iorms part oI the North Sea ShelI because oI its sill.
18
The UK delegation accepted
at the First United Nations ConIerence on the Law oI the Sea that 'in cases where, as
off the west coast of Norway, there was a deep channel immediately off the coast, the
13 S I 1958/1518.
14 Treaty Series, No. 4, (1961), Cmnd 1252.
15 A similar approach was adopted in section 1 oI the Fishery Limits Act 1976; but this
Act was completely general in its application (i.e. not confned to France). No bound-
ary agreements about fsheries or economic zones have been concluded in respect oI the
waters around the UK. The Common Fisheries Policy reduces the practical need Ior such
boundaries.
16 TS No. 71, (1965), Cmnd 2757.
17 TS No. 31, (1980), Cmnd 7853.
18 A/CONF 13/2, para. 34, Official Records, Vol. I, pp. 4344.
442 Chapter 25
provisions oI (draIt Article 1) would apply in the same way as to a continental shelI in
the geological sense oI the term.
19
This statement was welcomed by the Norwegian
delegation and the Norwegian Government later acceded to the 1958 Convention
on the Continental ShelI. In 1965 negotiations Ior a boundary were opened between
the UK and Norway. The line then agreed extended Irom the tripoint with Denmark
northwards to the 100-Iathom line (200 metres) and Article 1 provided Ior the ap-
plication oI the principle oI equidistance to the entire area. In other words, consistent
with the UNESCO report and positions taken at the ConIerence, no signifcance was
attached to the trough as regards delimitation. More signifcantly, it may be noted that
the two states are approximately equal in the lengths oI their coastal Ironts.
In 1978, the Protocol was concluded, extending the line northwards by employ-
ing the same principle. However, in 1965, computerized measurement had not been
available. The normal method at that time had been to use graphic methods on the
best maps and large-scale charts. By 1978 technology had advanced. II one looks at
the Protocol oI 1978, one sees a 'kink in the overall boundary. Between points 8
and 9 (the Iormer being the end point oI the line agreed in 1965) the line runs due
EW Ior 22.16 seconds or 331 metres. No doubt this was in order to achieve true
equidistance Ior the newly agreed section oI the line, running generally NNWward
Irom point 9. There are 19 turning points on the new section. The line is very slightly
modifed to reduce the number oI such points, but the oIIsets do not exceed 11 metres,
such is modern accuracy.
In 1965, an Agreement was concluded with the Netherlands establishing an equi-
distance boundary between coasts lying 96 to 265 nautical miles apart.
20
At the time,
it may be recalled that the Netherlands was also negotiating with the Federal Re-
public oI Germany, but later that issue was reIerred to the International Court oI
Justice. In the subsequent litigation, the Netherlands contended that the principle oI
equidistance should be applied as between them and the FRG, which implied there
would be no UK-FRG boundary. The UK and the Netherlands both Iavoured equi-
distance Ior drawing their boundary, and so an agreement was signed establishing a
boundary which ran Irom the equidistance tripoint with Belgium all the way to that
with Denmark, thereby 'shutting out the FRG in a sense. However, aIter the ICJ
decision in the North Sea Continental Shelf Cases, this Agreement was modifed so
as to make the northern limit the UK-Netherlands-FRG tripoint. This was achieved
by the Protocol oI 1972.
21
The Agreement oI 1965 is interesting in that it reIers to the principle oI equidis-
tance between 'the baselines Irom which the territorial sea oI each country is at
present measured |emphasis added|. Applying the best measuring techniques to the
coordinates in the Agreement, one fnds that the harbour works at IJmuiden Iormed
19 Summary Record oI the 17th Meeting oI the Fourth Committee, Ofhcial Recoras, Vol.
VI, p. 41. The Norwegian reaction was that 'the Norwegian Trough was a part oI the
continental shelI and did not exclude Norway Irom the seabed beyond it, 19th Meeting,
ibid., p. 48.
20 TS No. 23, (1967), Cmnd 3253.
21 TS No. 130, (1972), Cmnd 5173.
part oI the Dutch baselines (this no doubt was in accordance with the rule in Article
8 oI the Convention on the Territorial Sea oI 1958 about permanent harbour works).
However, Europoort was not counted, presumably because it did not Iorm part oI the
Dutch baselines in 1965 (when the building project had not been completed). Once
agreed, the boundary remains in Iorce notwithstanding any subsequent change in
baselines. This fows Irom the law oI treaties.
On 3 March 1966, an agreement was signed with Denmark establishing a short
boundary, based on equidistance and running Irom the tripoint with Norway to a
UK-Denmark-Netherlands tripoint.
22
The two countries are opposite and about 320
miles apart. The line ran roughly east oI Edinburgh. In 1972, Iollowing the ICJ deci-
sion in the North Sea Continental Shelf cases, a new Agreement was concluded, in
eIIect simply reducing the length oI the boundary to 11 nautical miles by omitting the
southernmost part.
23
The Agreement oI 1966 was terminated.
The UK boundary with the FRG was established by an Agreement oI 25 Novem-
ber 1971, again Iollowing the North Sea Continental Shelf cases. The line runs be-
tween coasts which are 330 and 340 miles apart. It runs Ior 8 nautical miles (which
is roughly east oI Berwick) and is equidistant between the UK on the one hand and
Denmark and the Netherlands on the other. It is not equidistant between the UK and
the FRG. It is made up oI the Iormer southernmost part oI the boundary with Den-
mark and the northernmost part oI that initially agreed with the Netherlands.
As a result oI those agreements, all based on equidistance, the UK had boundaries
down the length oI the North Sea. There then came something oI a lull in the conclu-
sion oI agreements caused by the diIfculty in reconciling diIIerences oI approach
to the question oI boundaries in the English Channel with France, as well as by the
opening oI the Third United Nations ConIerence on the Law oI the Sea in December
1973.
II UNCLOS III and Maritime Delimitation
This conIerence had delimitation in all its aspects on the agenda. Delimitation oI the
territorial sea proved uncontroversial: delegations were willing to confrm Article
12 oI the Convention on the Territorial Sea oI 1958.
24
But the delimitation oI the
economic zone and the continental shelI proved to be one oI the most controversial
questions beIore the ConIerence. At the session oI 1974 in Caracas, conficting pro-
22 TS No. 35, (1967), Cmnd 3278.
23 TS No. 6, (1973), Cmnd 5193.
24 This sharp diIIerence in attitude is surprising when the ILC`s commentary on its draIt
Article 72 is recalled, i.e. that the Commission regarded the delimitation of the shelf to
be subject to the same principles as the delimitation oI the territorial sea, and when it is
considered that two cases, i.e. Tunisia-Libya, Guinea-Guinea Bissau, have concerned
boundaries Irom the coast seawards without much iI any diIIerentiation between conti-
nental shelf and territorial sea.
444 Chapter 25
posals were tabled.
25
The issue was closely linked to another item on the agenda: the
regime of islands.
26
Two inIormal groups were Iormed: the frst was composed oI del-
egations (including the UK) who Iavoured making reIerence to equidistance/special
circumstances in any new Convention, similar to Article 6 oI the 1958 Convention
on the Continental ShelI, which many oI them had ratifed. In 1978, Ior example, 20
members (including the UK) oI what was called the 'median line group put Iorward
an 'inIormal suggestion in Negotiating Group 7 that:
The delimitation oI the Exclusive Economic Zone/Continental ShelI between opposite
or adjacent states shall be eIIected by agreement employing, as a general principle, the
median or equidistance line, taking into account any special circumstances where this is
justifed.
27
This group contained delegations which argued that equidistance was more than a
method and amounted to a legal principle. This group also Iavoured counting all is-
lands in Iull in drawing an equidistance line, except to the extent that 'special circum-
stances existed in a particular situation which justifed a diIIerent line. The second
group (including France and Ireland) Iavoured the criterion oI equitable principles,
as articulated by the ICJ in the North Sea Continental Shelf Cases. This group op-
posed Iormulae based on equidistance or Article 6 oI the 1958 Convention on the
Continental ShelI as well as the proposition that islands count in Iull. A Iew coastal
states remained uncommittedin some cases because equidistance Iavoured them
on one coast and equitable principles on another. It became clear that practically
every member oI the 'median line group was engaged in negotiations with a neigh-
bour and that this neighbour belonged to the 'equitable principles group. Attempts
at compromise by Dr Manner, the Finnish chairman oI Negotiating Group 7, Iailed
because neither group was able to make concessionsprobably because oI a Iear that
such concessions might aIIect the various sets oI bilateral negotiations.
28
For a time, it
began to look as though the Convention would contain no provision on delimitation
oI the Continental ShelI.
In 1975, in the midst oI these discussions at the ConIerence, the UK signed an
Agreement with France submitting to ad hoc arbitration the question oI the boundary
west oI 030`W as Iar as the 1000 metre isobath.
29
Written and oral arguments were
advanced in 1976 and 1977. In simple terms, the UK case was based on the terms
oI Article 6 oI the 1958 Convention, i.e. equidistance, both in the Channel and in
respect oI the Channel Islands. This would have resulted in a line extending across
25 A/CONF. 62/C. 2/L. 25 (Greece), L. 31/ Rev. 1 (Japan), L. 32 (Greece), all based on
equidistance/special circumstances, and L. 23 (Turkey), L. 28 (Kenya and Tunisia), L. 34
(Turkey), L. 43 (Ireland), L. 74 (France), all supporting equitable principles.
26 A/CONF. 62/C. 2/L. 30 (Fiji et al.), L. 43 (Ireland). L. 50 (Greece), L. 53 (Romania), L.
55 (Turkey), L. 62 Rev 1 (Algeria et al.), L. 75 (Uruguay).
27 Report oI Chairman oI NG7, 24 March 1980, A/CONF. 62/L. 47.
28 Ibid.
the Channel and around the Channel Islands. In the alternative, the UK argued that
the Hurd Deep Iormed a natural boundary. France took the position, in brieI, that the
1958 convention had been rendered obsolete by the evolution oI customary law and
that equitable principles should be applied in the area oI the Channel Islands and in
the SW Approaches. In the central part oI the Channel, France accepted that equidis-
tance should apply.
In its decision oI 30 June 1977,
30
the Court oI Arbitration Iound that both Article
6 oI the 1958 Convention and the rules oI customary international law were appli-
cable and, interestingly, that they both 'had the same objectthe delimitation oI the
boundary in accordance with equitable principles. The latter were 'a relevant and es-
sential means Ior interpreting and completing the provisions oI Article 6. The Court
had been asked to draw a line (a bold ideadesigned to remove the need Ior Iurther
negotiation aIter the judgement) and it Iound diIIerent solutions in diIIerent areas: (a)
equidistance in the mid-Channel, (b) modifed equidistance in the SW Approaches
(giving the Scillies halI-eIIect) and (c) distancean enclave oI 12 milesaround the
Channel Islands (as islands very close to the French coast).
At the next session oI the Third ConIerence, the 'equitable principles group were
more pleased by the decision than the 'median line group. Deadlock continued
there, however, until fnally, at a later stage and aIter numerous Iormulae had been
tried and rejected, it was broken by the Iormula which became Articles 74 and 83:
delimitation was to be 'eIIected by agreement on the basis oI international law . in
order to achieve an equitable result, whether the states were adjacent or opposite, or
both. There is no reIerence to equidistance, nor to equitable principles. Instead there
is a reIerence to international law and an equitable result. The Iormula was all that the
international community as a whole could accept. Even so, some states such as Ven-
ezuela were unhappy. The Iormula has been criticized as vague by commentators;
31
but the Iact remains that consensus could not be reached on more detailed rules in the
circumstances which prevailed.
The arbitration with France did not extend to the eastern part oI the English Chan-
nel. In 1982, an agreement was concluded with the French Government laying down
the boundary there, through the Straits oI Dover and into the southernmost part oI
the North Sea.
32
It is a slightly simplifed equidistance line. The small departures
Irom true equidistance are area-compensated, i.e. equalled out. CareIul study oI the
coordinates indicates that the Dover harbour works were counted as basepoints, as
well as some low-tide elevations within 12 miles oI the English coast (even though,
unlike France, the UK did not have a 12-mile territorial sea at that time). The line
beyond point 14 in the Southern North Sea will be extended (according to Article 2)
30 Cmnd 7438. For comment, see Bowett, The Legal Regime of Islands in International
Law (1979), especially Chapter VII; Merills. 'The UK-France Continental ShelI arbitra-
tion Western IL Journal, Vol. 314; and Brown. 'The Anglo-French Continental ShelI
Case, San Diego Law Review, Vol. 16.
31 E.D. Brown 'The areas within national jurisdiction, Sea-Bed Energy and Mineral Re-
sources and the Law of the Sea, Vol. 1, pp. I. 1016.
446 Chapter 25
by application oI equidistance at the appropriate time, e.g. once France and Belgium
have agreed on their boundary.
In 1983, the UK and France signed a Iurther agreement establishing the boundary
between French Polynesia and Pitcairn in the Pacifc.
33
It is based on equidistance
between equally small islands on both sides. These are Pitcairn and Oeno on the UK
side: Oeno lies 75 miles Irom Pitcairn: it is 1400 yards long and 350 to 1050 yards
wide. It has scrub and trees and is visited regularly Ior coconut gathering, mutton
birds, and fsh. Although uninhabited, it has a hut and a well and is the common
property oI Pitcairners. In other words, it is an island Ior the purposes oI interna-
tional law.
34
The basepoints on the French side were comparable small islands, so the
boundary gives equal weight to equal or comparable islands. On the French side, the
boundary is that oI the exclusive economic zone: on Pitcairn`s side, it is the limit oI
the fsheries zones.
III Outstanding Maritime Delimitations
No Iurther agreements have been concluded. As a result there are Iour outstanding
boundaries around the UK: they are with Belgium, Ireland, the Faroe Islands, and
Iceland.
UK-Belgium. The northern starting point is the tripoint agreed between the UK and
the Netherlands. Belgian law provides Ior the application oI equidistance, but Bel-
gium has not yet concluded agreements with the Netherlands or France. The Iuture
line is a relatively short one.
UK-Irish Republic. This is the UK`s longest outstanding boundaryIrish Sea, the
SW Approaches, and the NW Approaches. Two separate lines will be needed. It was
announced some years ago that the issue would be reIerred to arbitration, but no
agreement has been signed. Negotiation oI the arbitration agreement dealing with the
setting up oI the ad hoc tribunal has been the subject oI a lengthy series oI meetings
between the two sides. Discussions are continuing.
UK-Faroes. In May 1985 the Danish Government issued a provisional administrative
measure in eIIect claiming jurisdiction over an extensive area, including the western
part oI the Hatton-Rockall Plateau. Much oI the latter had already been designated
as British in the north and Irish in the south. The UK government protested. Clearly
there is a need to settle a boundary between Scotland and the Faroes.
33 Convention on Maritime Boundaries oI 25 October 1983, ts No. 56, (1984), Cmnd
9294.
34 It meets the defnitions oI Article 10(1) oI the Convention on the Territorial Sea and the
Contiguous Zone 1958 and Article 121 (1) oI the UN Convention on the Law oI the Sea
1982, without being a 'rock within the meaning oI Article 121(3).
UK-Iceland. Two days aIter the Danish claim, Iceland made an even more extensive
claim to the Plateau. Again, the UK Government protested. A statement issued by the
British Embassy made the Iollowing points:
The Icelandic Regulations have no basis in International Law. The Icelandic claim
encroaches on the Continental ShelI appertaining to the UK and in other places goes
beyond the outer limit oI the Continental ShelI prescribed by International Law.
There is no link oI any kind between Iceland and the Hatton/Rockall plateau.
First, Iceland is oI recent volcanic origin: the plateau is composed oI old rocks
similar to those in Scotland. There is no geological link between Iceland and the
plateau.
Secondly, Iceland stands on a separate volcanic platIorm. There is a sharp edge to
the south oI Iceland, beyond which the seabed has the characteristic oI deep ocean
foor. There is a Iundamental error in the Icelandic regulations, which overlook the
Iact that there is a clear line Ior the Ioot oI the Continental Slope to the south coast.
Accordingly, there is no geomorphological link between Iceland and the plateau.
Thirdly, Iceland lies Iurther away Irom the plateau than the UK. Thus, there is no
geographical link between Iceland and the plateau.
The absence oI geological, geomorphological and geographical links between Ice-
land and the plateau means that there is no legal basis Ior a claim by Iceland to the
plateau.
In answer to Parliamentary Questions about the basis oI the UK`s claim to the Hat-
tonRockall Plateau, the Minister stated that:
Areas . have been designated as British by Orders in Council under the Continental
ShelI Act 1964. The Ioundations in international law include international agreements
(notably the Geneva conventions 1958), decisions about the delimitation oI the conti-
nental shelI by the international courts, such as the International Court oI Justice, and
the practice oI states. In particular, the United Kingdom has a valid claim to the Rockall
Plateau on the basis oI the criterion oI natural prolongation.
The Minister also stated:
The boundaries oI the continental shelI appertaining to the United Kingdom and lying to
the west oI Scotland have not been established with the other states concerned. Discus-
sions continue with the Irish, Icelandic and Danish Governments.
448 Chapter 25
There are also outstanding boundaries in respect oI some oI the remaining dependent
territories.
35
IV Conclusion
To sum up, at frst in the 1940s, emphasis was put on natural rights to the shelI and
the need Ior agreement on equitable principles: some state practice, including the
UK, was based on that approach. The idea oI natural rights came to be accepted
Iully. In the 1950s and 1960s, greater emphasis came to be placed on the method
oI equidistance, partly as a result oI the advice oI cartographers and hydrographers.
Tempered by 'special circumstances, equidistance became part oI a three-part legal
rule in the 1958 Convention on the Continental ShelI. Use oI this method produced
a lot oI agreements in the 1960s, including several valuable agreements in the North
Sea. However, there remained some unsolved disputes, both there and elsewhere.
There was uncertainty over the content oI 'special circumstances. When and where
did they exist? There was a Iurther doubt over the rules to be applied where such
circumstances were Iound to exista jurisprudential gap. The ICJ decision in the
North Sea Continental Shelf Cases provided a legal principle which went Iar to fll
that gap. The UK-French case showed that diIIerent approaches and methods could
be applied to diIIerent sectors, underlining the ICJ decision that there was 'no .
single method oI delimitation the use oI which is in all circumstances obligatory.
Thus, the equidistance method was appropriate between opposite UK and French
coasts oI comparable length; but where circumstances were diIIerent, other solutions
were Iound to be required by law. The outcome oI the negotiations at the UNCLOS
III marked a move away Irom the equidistance method as a legal rule.
As a result oI these developments as well as subsequent decisions, the wheel has
turned Iull circle and we are back to the approach in the 1940semphasis on equita-
ble principles, natural rights, and natural Ieatures.
Today, there are two Iundamental legal principles in seabed delimitation. First, the
rights oI the coastal state are inherent, natural rights, i.e. ones based on geographical
Iactors, not human activity such as occupation and administration, leaving aside the
development oI the '200 mile continental shelI. Second, boundaries are to be estab-
lished by agreement. As regards the substance oI agreements, states enjoy 'Ireedom
oI contract and can agree on whatever line they choose. They can use equidistance
(with or without adjustment), or accept a completely pragmatic line. They can agree
on a single maritime boundary or diIIerent limits Ior diIIerent purposes, e.g. fshing
zones and continental shelI. They can agree on a boundary or on a joint area, or a
combination. The usual solution is the boundary: all-purpose lines are tidiest.
35 The limit oI the Falklands Interim Conservation and Management Zone announced on 29
October 1986 Iollows a rhumb line between Latitude 52 30`S Longitude 63 19` 25W
and Latitude 54 08`.68 S and Longitude 60W. Sir G. Howe stated in the House oI Com-
mons: 'On. the question oI delimitation on the southwestern side, Iacing Argentina, we
have taken account oI the need Ior delimitation oI the precise border oI the zone that we
have established. Beyond that it would be a matter Ior negotiation..
As regards Iorm, agreement can be expressed either in a treaty defning a maritime
boundary or, exceptionally, by means oI a tacit agreement or understanding (e.g. one
made up oI completely matching legislation by two neighbours, consolidated by state
practice or conduct). But boundaries cannot be laid down by action which is purely
unilateral.
Agreement can also take the Iorm oI empowering an international legal tribunal
to decide on the boundary in accordance with international law, thereby binding the
parties. The law requires the tribunal to seek an equitable solution or apply equi-
table principles and to take account oI all relevant Iactors. These include, notably,
geographical Iactors, such as the confguration oI the relevant mainland and insular
coasts, their relative lengths, general directions and interrelationship, as well as the
presence oI third states in the region. The law requires there to be an equitable result
and in deciding on this the avoidance oI disproportion between each side`s area oI
shelI and the length oI its relevant coast is a highly relevant Iactor. In UK law, there is
a maxim: 'Equality is equity,
36
but equality has to be measured in the same plane.
37
Recent emphasis on the question oI proportionality is consistent with this position.
38
UK practice provides examples oI many oI those conclusions. There are exam-
ples oI agreed boundaries based on equidistance, including modifed equidistance.
These run between broadly comparable coasts (UK-Norway, Denmark, Netherlands;
Pitcairn-French Polynesia). There are also examples oI pragmatic lines which were
intended to achieve an equitable result (GulI oI Paria), a perpendicular to the gen-
eral direction oI the coast (Sarawak) and recourse to an international tribunal (UK-
French).
UK thinking in the early days accepted the ideas oI fnding an equitable division
(GulI oI Paria), oI applying equitable principles (the GulI Proclamations), and oI
tempering the distorting eIIects on an equidistance line (Sarawak). In trying to Irame
rules oI law, however, at the First United Nations ConIerence on the Law oI the
Sea, the UK delegation gave strong support to equidistance, a cartographic method
included in a rule oI law. The successIul North Sea agreements oI the 1960s were all
based on that method. That experience and a belieI in the advantages oI this approach
led the UK to continue to give strong support to it both at UNCLOS III and in the
arbitration with France. Indeed in some circles the term 'median line became almost
synonymous with the term 'boundary. The idea oI 'splitting something down the
middle may be thought to correspond with a national sense oI 'Iair play. However,
the decision in the UK-France case, the outcome oI UNCLOS III, and the subsequent
decisions by the ICJ all indicate that these days, equidistance is no more than a meth-
od or sometimes a starting point, as in the Malta-Libya case, and that a more broadly
based approach is needed, whether or not the 1958 Convention on the Continental
ShelI is applicable as treaty law. UK practice will be Iurther enriched, no doubt, by
the settlement oI the outstanding issues over boundaries with its neighbours.
36 Snells Principles of Equity, 28th edition, Maxim number 8, p. 28.
37 ICJ in the North Sea Continental ShelI cases, ICJ Reports, 1969, p. 3.
38 E.g. ICJ`s decision in the Libya-Malta Case, ICJ Reports, 1985, p. 13.
Chapter 26
British Maritime Jurisdiction*
Historically, the United Kingdom has been viewed Ior many years as a maritime
State with many ships fying its fag and extensive overseas interests. Yet it is also a
coastal State: the British coasts are vulnerable to the risk oI pollution and other ca-
lamities arriving Irom the sea. It is composed entirely oI insular territory. In addition
to Great Britain and its adjacent islands, together with Northern Ireland, the UK is re-
sponsible internationally also Ior the maritime jurisdiction oI the three nearby Crown
Dependencies oI the Isle oI Man, the Bailiwick oI Guernsey and the Bailiwick oI
Jersey. The UN Convention on the Law oI the Sea ('LOS Convention) applies to all
these diIIerent parts oI the UK. The coasts Iace semi-enclosed seas to the east, south
and west, calling Ior particularly close cooperation with neighbouring States.
This chapter examines British maritime jurisdiction, considering both the substantive
content and questions oI limits. It reviews in turn the baselines, the internal waters, the
territorial sea, the fsheries zone, the continental shelI limits, the pollution jurisdiction
and the Renewable Energy Zone oI the United Kingdom. Some gaps are identifed in
current legislation and some suggestions Ior improvements and Iurther developments
are advanced, including the creation oI a Contiguous Zone and an Exclusive Economic
Zone (EEZ), and the establishment by agreement oI Iurther maritime boundaries.
* The assistance oI Chris Carleton, Head oI the Law oI the Sea Division oI the UK Hy-
drographic OIfce, is grateIully acknowledged. The views expressed remain those oI the
author.
452 Chapter 26
I Baselines
In September 1964, the Territorial Waters Order in Council was made by Her Maj-
esty in Council. This novel type oI instrument had been draIted, rather unusually,
by the Home OIfce Legal Advisers who, it is Iair to say, were not Iamiliar with the
subject on a day-to-day basis. The instrument was made under the powers oI the
Royal Prerogative, that is to say, the power under common law to defne the extent oI
the Kingdoms and their boundaries or limits. Unusually, there was no precedent and
no statutory power to make an Order on this topic.
1
The Order defned the baselines
Irom which the breadth oI the territorial sea (at that time, three nautical miles (nm))
was measured.
2
In substance, the Order was intended to implement Ior the United
Kingdom, including the Channel Islands and the Isle oI Man, the terms oI the Geneva
Convention on the Territorial Sea and the Contiguous Zone oI 1958, but without dis-
closing this motivation.
3
The actual motivation prompting the making oI the Order in
1964 was two-Iold: frst, the need to implement the newly-concluded London Fisher-
ies Agreement, which made reIerence to baselines drawn in accordance with the Ge-
neva Convention; and, second, the enactment oI the Fishery Limits Act 1964, section
1 oI which also reIerred to 'the baselines Irom which the breadth oI the territorial
sea is measured in defning fshery limits. The principal novel Ieature oI the Order
was the introduction oI straight baselines around the west oI Scotland.
4
The possibil-
ity oI drawing a series oI straight baselines in that sector may have been discussed
informally with certain interested delegations in the margins of the London Fisheries
ConIerence. The straight baselines were prepared quickly and this may have led to at
least one oversight (details below).
The Order oI 1964 was amended in minor respects by the Territorial Waters
(Amendment) 1979
5
Iollowing new surveys and the production oI new charts in re-
spect oI the Western Isles: it was then placed on a statutory basis by section 1(4) oI
the Territorial Sea Act 1987.
6
The Order oI 1964 was again amended in minor re-
1 The Territorial Waters Jurisdiction Act 1878 reIerred simply to the low water mark in the
defnition oI territorial waters in s. 7.
2 Statutory Instruments 1965, Part III, p. 6452A.
3 This Convention, ratifed by the UK in 1964, remains in Iorce Ior the UK vis a vis other
States Parties. However, the UK is also a party to the LOS Convention which provides
in article 311 that it prevails, as between its parties, over the Geneva Conventions. The
UK`s neighbours and the great majority oI coastal States are now parties to the LOS Con-
vention. It may be noted that Part II, section 2, oI the LOS Convention makes provision
similar, but not identical, to that in the Geneva Convention.
4 Only 13 years aIter the UK`s legal objections, advanced on fsheries grounds, to the Nor-
wegian straight baselines had Iailed to persuade the International Court oI Justice (UK v.
Norway, ICJ Reports 1951, p. 3).
5 Statutory Instruments 1979, Part II, p. 2866. This Order was also made under the Royal
prerogative.
6 1987 Chapter 49. S.1 (1) (b) provided that 'the baselines Irom which the breadth oI the
territorial sea is to be measured shall. be those established. by Order in Council.
453 British Maritime Jurisdiction
spects by the Territorial Sea (Amendment) Order 1996
7
and once again in 1998,
8
as
will be described below.
A Normal Baseline
9
The basic provision in the Order is contained in article 2, namely that the baseline Ior
measuring the breadth oI the territorial sea 'shall be low-water line along the coast,
including the coast oI all islands. This provision, modelled on wording contained
in section 7 oI the Territorial Waters Jurisdiction Act 1878, takes the question a cer-
tain way, but it provokes many questions. Whilst the reIerence to 'the coast requires
no elaboration, the term 'island and the related term 'low-tide elevation are de-
fned in article 5
10
by reIerence to 'mean high-water spring tides. Presumably, the
rule in article 2 has to be interpreted in its context as meaning that the low-water line
provided Ior is that oI mean low-water spring tides (a point explored Iurther below).
The islands that are used include many small islands, including the Farne Islands,
Sule Skerry, Rona, Sula Sgeir, the Flannan Islands, St Kilda, Rockall, the Smalls,
Lundy, and the Isles oI Scilly. Low-tide elevations lying wholly or partly within the
standard breadth oI the territorial sea (initially 3 nm and since 1987 12 nm) are assim-
ilated to islands Ior this purpose. Low-tide elevations such as the Goodwin Sands and
Long Sand Head oII the Thames Estuary, as well as Seven Stones Rocks are used. At
certain times in the past, the Shipwash Sands have provided a basepoint, but at other
times natural Iorces have eroded the Sands to the point where they did not qualiIy as a
low-tide elevation. Permanent harbour works that Iorm integral parts oI the coast are
treated as parts oI the coast: Ior example, the harbour walls and the detached mole at
Dover are treated as integral parts oI the coast and have baselines on them.
Reverting to the question oI the low-water line, article 3 oI the Convention oI 1958
and article 5 oI the LOS Convention both provide that the normal baseline is the
low-water line 'as marked on large-scale charts oIfcially recognized by the coastal
State. In other words, the low-water line is not completely ambulatory in character:
it is not the line produced by the last ebb tide or the line as it stood on the day oI rati-
fcation oI or accession to the Convention. Instead, it is the line shown on the current,
largest-scale charts produced by the coastal State or, iI the latter does not produce
charts, the ones oIfcially recognized by it.
11
No particular procedure is prescribed in
7 S.I. 1996/1628.
8 S.I.1998/2564.
9 For a useIul survey oI the law and practice, see Baselines: An Examination oI the Rel-
evant Provisions oI the UN Convention on the Law oI the Sea, UN Secretariat, 1989,
Chapter I.
10 Following the defnitions in the Conventions, but with minor changes in wording, e.g.
the defnition oI 'bay omits the qualifer 'well-marked beIore the frst reIerence to
'indentation.
11 Practice varies. Ireland`s Maritime Jurisdiction Act 1959 provided in section 13 Ior the
use oI prescribed charts as evidence Ior the purposes oI establishing matters relating
to the territorial sea, etc. The Maritime Jurisdiction Act 1959 (Charts) Order 1959 pre-
454 Chapter 26
the LOS Convention Ior the giving oI oIfcial recognition to charts and it would ap-
pear Irom the history oI the term that recognition can be conIerred either by means oI
legislation or simply by administrative action.
12
No particular chart datum is specifed
and practice varies among charting States. The low-water line remains fxed to the
extent that the chart remains current; however, the low-water line may change as a
result oI new surveys or the adoption oI a diIIerent chart datum or the extension oI the
breadth oI the territorial sea Irom say three to twelve miles Iollowed, in each case,
by the production oI new charts. This link between the low-water mark and the chart
was made in 1930 by the Hague ConIerence and maintained by the ILC, the Geneva
Convention and the LOS Convention.
Somewhat surprisingly, however, this link is not made by article 2 oI the Order.
The reIerence to 'the low-water line is not qualifed or explained, although there
Iollows the reIerence to 'mean high-water spring tides in article 5. The result oI this
wording in article 2 would appear to be that the normal baseline is ambulatory Irom
tide to tide. Since there is no reIerence to charts in article 2, or indeed in the remain-
der oI the Order, no oIfcial recognition has been given to Admiralty charts by the
Order. ReIerences to charts have appeared in the Explanatory Notes to certain Orders
amending the Order oI 1964, but such Notes are not part oI the Order.
13
Moreover, the
charts which are now produced by the UK Hydrographic OIfce and which are used
in practice (without being 'oIfcially recognized) mark the low-water line accord-
ing to the Lowest Astronomical Tide (LAT) and not mean low-water spring tides.
14
scribed that 'Charts published at the Admiralty, London shall be charts Ior the purposes
oI section 13. (S.I. 174/1959). New Zealand`s Territorial Sea .Act 1977 provides in
s. 31 that '.in any court the line oI the low water line Ior any area depicted on the charts
held in the Territorial Limits Charts Folio held by the Royal NZ Navy Hydrographic OI-
fce shall be suIfcient evidence. Ior that area. Provision is also made Ior certifcation
oI such charts.
12 The Report oI Sub-Committee II oI the Second Committee (Territorial Sea) oI the Hague
ConIerence oI 1930 convened by the League oI Nations adopted the phrase 'charts oIf-
cially used by the Coastal State in its proposals concerning the baseline oI the territorial
sea. The Commentary noted that not all States produced their own charts, adding 'but
every Coastal State has some chart adopted as oIfcial by the State authorities (24 AJIL
(1930) 234, 247). The word 'used was changed to 'recognized by the International
Law Commission in its draIt article 4 (Normal baseline) oI 1956 (II YB ILC (1956) 266):
no reason Ior the change was included in the Commentary and the change appears to
have been purely semantic. The Virginia Commentary on the LOS Convention explains
the phrase 'oIfcially recognized by the coastal State appearing in article 5 in terms
similar to those oI the Hague ConIerence (Nordquist (ed.), UNCLOS 1982: A Commen-
tary, Vol. II, p. 90).
13 The Amendment Orders oI 1979, 1996 and 1998 all reIer to charts in the Explanatory
Notes.
14 Since about 1964, the datum oI mean low-water springs has been gradually replaced by
lowest astronomical tide: P.B. Beazley, Maritime Limits and Baselines, Hydrographical
Society, Special publication No. 2; C. Carleton and C. Schofeld, IBRU Maritime Brief-
ing Vol. 3 No. 3 pp. 21-23. A Iuller study is contained in N. Antunes, IBRU Maritime
In a sense, the relevance oI charts is implicit in the reIerence in article 5 oI the Order
to 'mean high-water spring tides since, as a mean, that is a type oI charted line,
albeit not the one that is used today on Admiralty charts. The oIfcial recognition oI
Admiralty charts may also be implicit Irom the Iact that the British authorities do not
produce a second set oI charts.
Nonetheless, there is a case Ior bringing the Order into line with the Convention
by speciIying that the normal baseline provided Ior in article 2 oI the Order is to
be the LAT as marked on the most recent, largest scale charts produced by the UK
Hydrographic OIfce: some consequential changes would be needed to article 5. Ex-
ploring this possibility a little Iurther, section 1 (1) (b) oI the Territorial Sea Act 1987
provides that the baselines 'shall.be those established by Her Majesty by Order
in Council. This wording, which is amplifed by the provision Ior the certifcation
oI the location oI baselines in s.1 (3), aptly describes the straight baselines defned
in the schedule to the Order (see below). However, Ior the rest, it cannot mean that
the Order has itselI to speciIy each and every baseline around the coasts: given the
length oI the coasts, the majority oI which take the normal baseline, the resulting Or-
der would be too long. The list oI bays, to take just one example, would run to many
pages. Rather the Order has to adopt Iorms oI words that frst defne and then apply
diIIerent types oI baseline to diIIerent types oI geographical and coastal Ieatures such
as bays, river mouths, harbour works, as well as the 'normal coasts. In Iormulating
an Order under the statutory power, it would be appropriate to pay regard the terms
oI the Geneva Convention on the Territorial Sea oI 1958 and the UN Convention,
both oI which defne the normal baseline by reIerence to charts. The inclusion oI a
reIerence to Admiralty charts would clearly Iulfl the treaty obligations. II there is a
diIfculty in terms oI s.1 (1) (b) in the way oI establishing baselines by reIerence to
charts, an opportunity could be taken to broaden the statutory powers, perhaps draw-
ing on precedents Irom other common law countries.
B Straight Baselines
To the principal rule in article 2, there are two exceptions: straight baselines and bays.
As regards the question oI straight baselines, Iollowing the decision oI the Interna-
tional Court oI Justice in 1951 in the case oI UK v. Norway concerning the Norwe-
gian system oI baselines,
15
the UK accepted in the Geneva Convention oI 1958 the
concept oI drawing straight baselines around deeply indented coasts where there was
a Iringe oI islands. This change oI position permitted the UK in 1964 to invoke this
concept in regard to part oI the Scottish coast, as being deeply indented and as hav-
ing a Iringe oI islands. In other words, having Iailed to 'beat the concept oI straight
baselines in court, the UK joined its proponents and implemented it to the advantage
Briehng Vol.2 No.7 The Importance oI the Tidal Datum in the Defnition oI Maritime
Limits and Boundaries.
15 ICJ Reports 1953, p. 116. At the time, the decision was greeted with dismay by the UK
Agent, Sir Eric Beckett. Eleven years later, his successors drew a series oI straight base-
lines.
456 Chapter 26
oI Scottish fshermen. However, it appears that no thorough review was made oI the
possibilities Ior drawing straight baselines around other parts oI the UK, such as the
Northern Isles.
Looking at the terms oI the Order oI 1964, the rules in the Geneva Convention were
not incorporated, directly or indirectly, into UK legislation. Instead, the lines were
decided upon administratively and specifed in article 3 oI the Order, read together
with its Schedule. The system oI straight baselines ran initially Irom Cape Wrath on
the northwest corner oI Scotland to the Mull oI Kintyre at the northern entrance to
the river Clyde. As many as 24 straight baselines were defned, enclosing the whole
oI the Western Isles, Skye, Tiree, Iona, Mull and the Sound oI Jura. The lines are said
simply to be 'straight, but it would have been better to have specifed that they were
geodesics. In 1998, an additional straight baseline was declared between the Mull
oI Kintyre and Laggan, lying across the Firth oI Clyde on the Rhinns oI Galloway.
16
This new baseline replaced, in eIIect, a bay-closing line that had been drawn across
and just inside the Firth oI Clyde in 1964. This new straight baseline was drawn Iol-
lowing the decision oI the SheriII Court in Stranraer in the case oI Procurator Fiscal
v. Slater Main and Wanderer Fishing Co. Ltd. to the eIIect that the bay-closing line
had not been drawn in conIormity with article 4 oI the Order oI 1964.
17
With the new
straight baseline, together with some small changes required by new surveys, there
are now 27 straight baselines in the series. It is unclear why the new straight baseline
had not been drawn at the outset in 1964 since it appears to be a Iully qualiIying line
in terms of the Geneva Convention.
18
C Bay-Closing Lines
Turning to the provisions regarding bays, a diIIerent approach (compared with that
used to create straight baselines) was adopted in that the relevant terms oI the Con-
vention were translated into the idiom oI UK legislation. Thus, the semi-circle rule
in the Convention oI 1958 was prescribed in article 4 oI the Order oI 1964, subject to
some minor changes in the wording: however, the names oI the bays are not specifed
in a Schedule to the Order. In the result, there is no statutory list oI legal bays, but it
can be stated that British bays include, as well as several hundred small ones, some
large bays such as the Thames Estuary, the Wash, the Humber Estuary, the Firths
oI Forth and Tay, the Moray Firth, Scapa Flow, St Magnus Bay in the Shetland Is-
lands, BelIast Lough, StrangIord Lough, Luce Bay, Wigtown Bay, the Solway Firth,
Morecambe Bay, the estuaries oI the Mersey and the Dee, Conway Bay, the north-
ern part oI Cardigan Bay, St Brides Bay, Carmarthen Bay, the Bristol Channel, Car-
rick Roads, Portland Bay, Poole Bay and the Solent and Spithead (as 'back-to-back
bays). One exception is Lyme Bay which does not meet the semi-circle rule; and it
16 Territorial Sea (Amendment) Order 1998, S.I. 1998/2564.
17 The decision has been reported in 127 ILR (2005) 661. For a Iull account, see G. Marston,
'Redrawing the Territorial Sea Baseline in the Firth oI Clyde, 51 ICLQ (2002) 279.
18 The same goes Ior the LOS Convention.
is not a roadstead despite its occasional use by tankers waiting to enter Rotterdam in
order to discharge.
The question oI how to determine the 'natural entrance points oI a bay arose, in
the context oI the Thames Estuary, in the case oI Post Ofhce v. Estuary Raaio: it was
held that their identifcation was a question oI Iact.
19
The ascertainment oI these Iacts
was not always easy; however, today section 1 (3) oI the Territorial Sea Act 1987 pro-
vides that 'a certifcate issued by.the Secretary oI State stating the location oI any
baseline.shall be conclusive. in any legal proceedings. Even so, this case and the
later one in Stranraer raise the question whether the Order oI 1964 should not be re-
placed in due time with new provisions implementing the LOS Convention precisely
and unambiguously. These cases show the need Ior fshers and other members oI the
public to have some means oI knowing where baselines run so that they can know the
legal status oI waters in which they are navigating or operating.
Looking at the terms oI the Order, it appears to contain today one Iurther anomaly.
Article 9 oI the LOS Convention provides Ior the drawing oI baselines across the
mouth oI a river that enters the sea without Iorming an estuary: such lines have been
drawn across the mouth oI several rivers, including the Ribble, the Deben and the
Ore at OrIord Ness. However, the Order oI 1964 makes no reIerence to river-closing
lines. Presumably, they have been drawn under the Royal Prerogative.
II Internal Waters
The waters between the high and low-water lines are internal waters, but generally
speaking they are not extensive. The waters to landward oI straight baselines or bay-
closing lines are also internal waters, and these are oIten more extensive. In accord-
ance with international law, no right oI innocent passage through internal waters is
recognised. However, the Convention oI 1958 and the LOS Convention both provide
that where areas that had previously been high seas or territorial sea are enclosed by
straight baselines so as to convert the areas into internal waters, a right oI innocent
passage is to exist in those waters Ior Ioreign ships. Respecting this obligation, the
UK recognises a right oI innocent passage through the Minches, despite some local
opposition on environmental grounds: Ior similar reasons, the International Maritime
Organization has recommended that ships should use a deep-water route running to
seaward oI the Western Isles, rather than pass through the Minches.
20
There is no right
oI overfight in the case oI internal waters and any Ioreign submarines exercising the
right oI innocent passage must travel on the surIace and show the fag.
III Territorial Sea Limits and Boundaries
The breadth oI the territorial sea is measured outwards Irom the baselines, whether
the low-water line, straight baselines or bay-closing line, etc. The Iormer breadth oI
19 |1967| 3 All E R 663; |1968| 2 QB 740, CA.
20 The arrangements are under review in the IMO at the time oI writing.
458 Chapter 26
three nm dated Irom the Territorial Waters (Jurisdiction) Act 1878.
21
The limit was
extended to 12 nm by the Territorial Sea Act 1987, in reliance upon developments in
customary international law and the terms oI the LOS Convention (which was not in
Iorce at that time). Low-tide elevations situated between 3 and 12 nm oII the coasts
became valid basepoints, thereby extending the outer limit in several areas, such as
oII the Goodwin Sands, Long Sand Head and Land`s End.
22
Today, there is a con-
tinuous belt oI territorial sea around Great Britain, considered as an island: this belt
also lies to seaward oI most oII-shore islands such as the Farne Islands, the Northern
Isles, the Flannan Islands, the Isle oI Man, Anglesey, the Smalls, Lundy, the Isles oI
Scilly and the Isle oI Wight. Even so, certain remoter islands lying outside the belt
have their own roughly circular belts oI a radius oI 12 nm: these islands include Sule
Skerry, North Rona, St Kilda and Rockall. The territorial sea oI 12 nm around the Isle
oI Man, which is now administered internally by the Manx authorities, would overlap
slightly with territorial waters in the Solway Firth: a boundary between the respective
baselines has been defned by the Territorial Sea (Limits) Order 1989.
23
The same
Order also defnes the boundary in the territorial sea with France in the part oI the
Straits oI Dover where the total breadth is less than 24 nm. This part oI the Order
implemented the Anglo-French Agreement oI 2 November 1988.
24
The boundary is
composed oI fve loxodromes and represents a simplifed median line between the
nearest French and British basepoints. The boundary in the subsoil oI the territorial
sea is marked on the walls oI the Channel Tunnel.
No territorial sea boundaries have been agreed with the Republic oI Ireland in
or oII Lough Foyle and CarlingIord Lough. The territorial sea oII Northern Ireland
meets that oII Scotland in the North Channel, Iorming a long strait linking two parts
oI the high seas. The waters adjacent to Northern Ireland Ior the purposes oI the
Northern Ireland Act 1998, composed partly oI territorial sea and partly oI fsheries
21 The Act, enacted Iollowing the decision in R. v. Keyn (1876) 2 Ex. D. 63 arising Irom
a collision within 3 nm oI Dover, stated that the jurisdiction over territorial waters ex-
tended to such distance as was necessary Ior the deIence and security oI the UK and that
Ior the purposes oI criminal jurisdiction waters within one marine league oI the low water
mark on the coast should be deemed to be territorial waters.
22 The low-tide elevations between 3 and 12 miles also aIIected the drawing oI the 6 mile
line and thus the position oI the 6 to 12 mile belt Ior the purposes oI fsheries jurisdiction
(see below). AIter complaints, mainly by French fshermen, the European Court oI Jus-
tice held in Commission v. UK (Case C-146/89) that, although valid under international
law and Ior most aspects oI the Common Fisheries Policy such as restrictions on beam
trawling, the position oI the 6 to 12 mile belt could not be altered unilaterally in regard
to certain rights oI access to the 6 to 12 mile belt Ior Ioreign fshers since these rights
were enjoyed in regard to the original location oI the belt and Iormed part oI a negotiated
solution. For this one purpose, the belt was not ambulatory. As a result, the UK has two
6 to 12 mile belts, one Ior access rights and the second Ior all other purposes.
23 S.I. 1989/482. The line is equidistant Irom the respective basepoints.
24 Report 9-3 by the present writer in Charney and Alexander, International Maritime
Boundaries, Vol. II, p. 1735, at p. 1752.
zone, have been defned by the Adjacent Waters Boundaries (Northern Ireland) Order
2002.
25
The territorial sea oI Jersey was extended to a theoretical limit oI 12 nm by the
Territorial Sea Act 1987 (Jersey) Order 1997,
26
even though the nearness oI the coasts
oI France and Guernsey means that the 12 nm limit is nowhere achieved. The bound-
ary towards Guernsey is defned by 12 straight lines that are equidistant between the
respective basepoints. The boundary towards France was defned in the Agreement
oI St Helier oI 4 July 2000.
27
The boundary is based generally on the method oI
equidistance, but pragmatic changes to the median line were made by discounting
certain low-tide elevations and rocks in an area oI very high tidal range and in order
to straighten the line. The Agreement was negotiated together with a fsheries agree-
ment.
28
The Straits oI Dover, the North Channel and the Fair Isle Gap are all straits used
Ior international navigation through which the UK recognises a right oI transit pas-
sage in accordance with Part III oI the LOS Convention. These straits have not been
specifed in the Territorial Sea Act 1987: instead, they were named in Parliament
by Ministers during the debates on the Legislative proposals. In order to give eIIect
to the provisions regarding overfight oI straits subject to transit passage, the Air
Navigation (Second Amendment) Order 1987 was made.
29
This Order defnes three
areas in which a right oI overfight exists: they are the northern halI oI the Straits oI
Dover; the whole oI the North Channel (using the Clyde bay-closing line that was
subsequently replaced by the extension oI the system oI straight baselines); and both
the north and south Fair Isle Gaps. The Pentland Firth is a strait through which the
UK recognises a right oI innocent passage.
30
Although a strong supporter oI the right oI innocent passage, the UK has not im-
plemented the right in its domestic law. However, some account has been taken oI
this right in shipping legislation.
31
The territorial sea and internal waters oI the UK, as well as some oI the baselines,
are shown on the map at Annex I.
25 S.I. 2002/791. The adjacent waters include both territorial sea and fshery limits.
26 S.I. 1997/278.
27 Agreement between France and the UK, Cm 5024. For analysis, see Report No. 9-24
by the present writer in Charney and Smith, International Maritime Boundaries, Vol. IV,
p. 2979. The agreed limits oI the territorial sea were defned in the Territorial Sea Act
1987 (Jersey) (Amendment) Order 2002 (S.I. 2002/250).
28 See Michael Birt`s article 'A Fishy Tale in the Jersey Law Review (available on www.
jerseylegalinIo.je/Publications/jerseylawreview/OctOO/aIishytalee.aspx) and Chapter
9.
29 S.I.1987/2062.
30 A detailed examination oI British Straits appears in Chapter 8.
31 Details are set out in Chapter 4.
460 Chapter 26
IV Fisheries Zone/Jurisdiction and Boundaries
In 1964, the UK created a fsheries zone oI 12 nm by means oI the Fishery Limits
Act 1964: in other words, the zone extended 9 nm beyond the three mile territorial
sea, except where a neighbouring State was less than 24 nm away in which case the
statutory limit was a median line. This legislation gave eIIect to the European Fisher-
ies Convention concluded earlier that year. The legislation also created an outer belt
between 6 and 12 nm Irom the baselines to which vessels Irom specifed countries
had access, in line with the terms oI the Convention: this belt is still provided Ior
in the Common Fisheries Policy oI the EU. The outer limit was extended generally
to 200 nm Irom the baselines Ior measuring the breadth oI the territorial sea by the
Fishery Limits Act 1976, with eIIect Irom 1 January 1977. This extension was one
oI many made around that time by the coastal States oI the North Atlantic. Provision
was included to vary the limit oI 200 nm by means oI Orders in Council and to abate
the limit to an equidistance line where neighbours are less than 400 nm away. No
initiative was taken to negotiate boundaries with neighbours, such as that taken in
1964 in respect oI the continental shelI: this passivity can probably be explained by
the Iact that, except to the north oI Scotland, the Common Fisheries Policy applied to
the waters in question and thus diminished the need Ior agreed national fshery limits.
Even so, there may still be a need to know precisely where jurisdiction begins and
ends in regard to the possible need to prosecute vessels fshing in border areas.
At the time oI the UK`s accession to the LOS Convention, the Fishery Limits Or-
der 1997 was made, defning the outer limit in the vicinity oI St Kilda by means oI
geodesic lines and arcs oI 200 nm joining points defned by coordinates oI latitude
and longitude on WGS 84.
32
This Order implemented article 121(3) oI the LOS Con-
vention by ceasing to measure the 200 mile limit Irom the low water line on Rockall
Ior the reason that, as an isolated rock, it is not an eligible basepoint Ior measuring an
EEZ or, by extension, a fshery zone. The limit oI 200 nm measured Irom basepoints
on St Kilda passes to the west oI Rockall.
The Fishery Limits Order 1999
33
implemented the Agreement with Denmark re-
lating to Maritime Delimitation in the area between the Faroe Islands and the UK.
34
It did so by defning 20 geodesic lines towards the Faroe Islands. This is the only
boundary agreement that relates explicitly to the UK`s fsheries jurisdiction, apart
Irom agreements with France in respect oI Guernsey and Jersey. In the negotiations,
the Faroese representatives were aware oI their dependence upon fsheries and their
consequential interest in fsheries jurisdiction.
32 S.I. 1997/1750. The announcement oI the UK`s accession to the LOS Convention in-
cluded a statement that the intention to 'seek a fsheries boundary with the Republic oI
Ireland (H.C. Hansard, Vol. 298, Written Answers, col. 397): no such boundary has been
agreed.
33 S.I. 1999/1741.
34 Agreement between Denmark and the UK oI 18 May 1999: 41 LOS Bulletin (1999) p. 58.
For analysis, see Report No. 9-23 by the present writer in J.I. Charney and R.A. Smith,
International Maritime Boundaries, vol. IV, p. 2955.
In 2000, the English High Court held, in the context oI the Darwin Mounds, that
the EC Habitats Directive
35
applied to the continental shelI to the west oI Scotland
out to the 200 mile limit.
36
Subsequently, the OIIshore Petroleum Activities (Conser-
vation oI Habitats) Regulations 2001 were made in order to ensure the conservation
of coral reefs in the cold waters of the north Atlantic.
37
An area around the Darwin
Mounds is being accorded a special status under EC legislation, e.g. to prohibit the
use oI trawls that could damage the coral Iormations. The area lies within the fshery
limits and continental shelI approximately 40 miles northwest oI Rona.
The UK has not declared an EEZ, but does regulate fshing and other economic
activity within 200 nm.
38
The continental shelI remains a separate regime in UK
legislation.
The fshery limits oI the UK are shown on the map at Annex II. The limits are de-
rived Irom the Fishery Limits Act 1976 (including Orders made thereunder) and not
Irom agreements with neighbouring States, apart Irom the limits towards the Faroe
Islands and the agreed limits between France and the Channel Islands. The limits in
the North Sea are similar to, but not identical with, the agreed continental shelI limits
(see below). The lines crossing the English Channel to and Irom Guernsey are the
same as the ones unsuccessIully proposed in the arbitration with France in 1977 (see
below). The lines towards Ireland are also markedly diIIerent Irom the agreed conti-
nental shelI boundaries. In these circumstances, it is unlikely that the current limits
could be sustained in the Iace oI a challenge advanced on the basis oI the modern law
on maritime delimitation, having regard to the trend towards the adoption of single
or all-purpose maritime boundaries. The extensive overlaps with France and Ireland
are shown on the map at Annex IIA.
V Continental Shelf Limits and Boundaries
In 1964, the United Kingdom ratifed the Geneva Convention on the Continental
ShelI oI 1958, enacted the Continental ShelI Act 1964,
39
designated an area in the
North Sea as UK Continental ShelI (UKCS)
40
and proposed, in Notes Verbales ad-
dressed to all its neighbours, negotiations Ior the establishment oI agreed boundaries.
The industry was ready to search Ior oil in the North Sea successIully as it turned
out and a legal inIrastructure Ior exploration and exploitation was put in place.
Subsequently, the UK remained consistently active over the next 40 years in several
35 Directive 92/43EEC.
36 R. v. Secretary oI State Ior Trade and Industry, ex p. Greenpeace |2000| 2 CMLR 94.
37 S.I. 2001/1754.
38 During the debate in the House oI Lords on the Merchant Shipping (Prevention oI Pollu-
tion) (Law oI the Sea Convention) Order in 1996, the Minister stated in regard to the EEZ
that 'We are considering the case Ior the declaration oI a zone. We shall, oI course, keep
that frmly under review. (H.L. Hansard, vol. 568, col. 1186). Presumably the question
has remained under review ever since 1996.
39 1964 c. 29..
40 The Continental ShelI (Designation oI Areas) Order 1964, S.I. 1964/697.
462 Chapter 26
ways with respect to the continental shelI. Thus, the UK has enacted a good deal oI
legislation relating to operations on the UKCS to seek and to recover oil and gas and
to carry the products to the coast in pipelines; has designated many Iurther areas oI
UKCS;
41
has negotiated and agreed a Iull set oI boundaries relating to the UKCS;
and has acceded to the LOS Convention (thereby accepting Part VI concerning the
continental shelI). The limits oI the UKCS are shown on the map at Annex III.
With regard to legislation, the Continental ShelI Act 1964 vested in the Crown all
rights under international law in respect oI the seabed and subsoil oI the continental
shelI, together with their resources. The total extent oI the continental shelI was not
defned and no provision was made Ior boundaries with neighbours. Instead, section
1(7) provided that areas in which the rights were exercisable could be designated by
Order in Council Irom time to time. Initially, regulations drawn up Ior land territory
were applied to the search Ior and exploitation oI petroleum in the UKCS.
42
As the
years went by, more and more legislation was enacted that related specifcally to the
designated areas oI the UKCS. In addition to fscal legislation, it was necessary to ap-
ply health, saIety and employment laws as a large workIorce was recruited to work in
the hazardous conditions on, beneath and around oil and gas installations in the North
Sea.
43
Legislation relating to the laying and operation oI pipelines on the UKCS was
also enacted.
44
Licences to exploit aggregates (sand, gravel and crushed rock) in the
territorial sea and continental shelI are issued by the Crown Estate Commissioners:
about one third oI all aggregates used by the construction industry in southeast Eng-
land come Irom the seabed.
The practice regarding designation had two principal Ieatures: frst, to stand back
a short distance Irom areas where it was considered a Iuture boundary would run, so
that iI neighbours did the same there arose an undesignated corridor or 'white area;
and, secondly, to designate all the way up to the agreed line, once agreement on a
boundary had been reached.
45
In a small area to the west oI Scotland, designations by
Ireland and the UK overlapped Ior a time: the overlaps were resolved in negotiations
and removed in subsequent implementing legislation.
46
Turning to boundary talks concerning the UKCS, in very brieI terms the frst ne-
gotiations were held successIully with Norway, Iollowed by Denmark and The Neth-
erlands. Subsequent negotiations generally Iollowed a clockwise progression around
the British coasts, until fnally the series oI agreements Iorming the 'picture Irame
41 Areas designated between 1964 and 2000 were consolidated by the Continental ShelI
(Designation oI Areas) (Consolidation) Order 2000 (S.I. 2000/3062).
42 Petroleum (Production) Act 1934.
43 Continental ShelI Act 1964; Oil and Gas (Enterprise) Act 1982; Petroleum Act 1987;
Health and SaIety at Work etc. Act 1974 (Application outside Great Britain) Order 1989
(S.I.1989/840); Petroleum Act 1998.
44 Petroleum and Submarine Pipelines Act 1975.
45 The Designation oI Areas Orders were consolidated by the Continental ShelI (Designa-
tion oI Areas)(Consolidation) Order 2000 (S.I. 2000/3062).
46 Petroleum Royalties (RelieI) and Continental ShelI Act 1989, as amended by the Conti-
nental ShelI Act 1989.
was completed by an agreement with Denmark in respect oI the Faroe Islands. All the
agreements have been reported upon in International Maritime Boundaries.
47
In March 1965, agreement was reached with Norway on a partial boundary. In the
light oI the negotiations at the First UN ConIerence on the Law oI the Sea in Geneva
in 1958, the UK accepted that the Norwegian Trough did not interrupt the Norwegian
continental shelI and a partial, simplifed equidistant boundary was agreed.
48
In Oc-
tober 1965, agreement was reached with the Netherlands
49
on an exact equidistance
line; and similarly agreement was reached in March 1966 with Denmark in respect oI
Jutland.
50
Two sets oI inconclusive negotiations between Denmark and the Federal
Republic oI German (FRG) and between The Netherlands and the FRG led to the
North Sea Continental ShelI cases beIore the International Court oI Justice.
51
There
Iollowed negotiations in the 1970s between the UK and Belgium that were inconclu-
sive and broken oII: talks were resumed successIully in the 1990s aIter the success-
Iul conclusion oI talks between France and Belgium on their lateral boundary. The
boundary was pragmatic and roughly based on equidistance but discounting a low
tide elevation in the Thames estuary against the Belgian mainland in order to produce
an equitable result. Belgium did not accept the southern end point oI the boundary
between the Netherlands and the UK. Following the Agreement between Belgium
and the Netherlands oI 15 December 1996,
52
the southern end point oI the UK-Neth-
erlands boundary was modifed by an Exchange oI Notes in 2004.
53
Negotiations between the UK and France during the 1970s produced mixed results.
AIter lengthy boundary talks, agreement was reached in 1975 to have recourse to an
ad hoc Court oI Arbitration in respect oI two disputed sectors: the Channel Islands
and the Western Approaches.
54
The Award was given in 1977 and the proceedings
ended the Iollowing year. In respect oI Guernsey, the UK was awarded a 12 nm en-
clave within the French continental shelI, whilst in the Western Approaches the Isles
oI Scilly were accorded halI eIIect in drawing the line out to the 1000 metre isobath
(about 180 nm oIIshore). In the boundary talks, there had been agreement in principle
47 Five volumes edited by Charney and Alexander, Charney and Smith, Colson and Smith.
48 For Iurther details see Report No 9-15 by the present writer in IMB, Vol. II (1992) p.
1879. The partial boundary was extended northwards to a tripoint with the Faroe Islands
in 1978 by means oI a Protocol.
49 Ibid., p. 1859. The southern end point was modifed and, in eIIect, moved northwards by
agreement in the Iorm oI an Exchange oI Notes in 2004 in order to coincide with the end
point agreed between the Netherlands and Belgium.
50 Ibid., p. 1825.
51 Ibid., p. 1901. As a consequence oI the Court`s decision and the subsequent negotiations,
the UK has a boundary with Germany: see ibid., p. 1851. The boundary is made up oI
a short stretch oI the boundary initially agreed with Denmark and another short stretch
initially agreed with the Netherlands.
52 Report No. 9-21 by the present writer in Charney and Smith (eds.), International Mari-
time Boundaries, Vol. IV, p. 2921.
53 UK Treaty Series No. 2 (2006).
464 Chapter 26
on the use oI equidistance in the remaining areas, namely the southern North Sea, the
Eastern Channel and mid-Channel and this was converted into a frm Agreement in
1982. Part oI the continental shelI boundary in the Straits oI Dover was converted
into a territorial sea boundary in 1988 aIter the extension oI the UK territorial sea to
12 nm in 1987.
55
The boundary with Ireland in the Southwest Approaches, the Irish Sea and to the
west oI Scotland was agreed in 1988 aIter lengthy negotiations that almost resulted in
1982 in arbitration. The geographical setting was a very complex one, on account oI
the presence oI numerous islands. Pragmatic solutions were reached. The Agreement
oI 1988 established over 1200 miles oI boundaries, extending beyond the 200 nm in
accordance with article 76 oI the LOS Convention in both the Southwest Approaches
and to the west oI Scotland.
56
The initial boundary in the northern part oI the Irish
Sea, between the Isle oI Man and the mouth oI CarlingIord Lough, has been extended
by two subsequent agreements in order to speciIy the ownership oI the seabed Ior the
purposes oI regulating the laying and operation oI gas pipelines running across the
areas in question.
57
Another very complicated geographical setting had to be addressed in the fnal
negotiation in the long-lasting process oI encircling the UK with continental shelI
boundaries or completing the 'picture Irame. The boundary between Scotland and
the Faroe Islands was agreed aIter considering the weight to be accorded to numerous
small islands on both sides, as well as the Faroe Islanders` dependence upon fsher-
ies.
58
The practice was to include in each boundary agreement a provision to the eIIect
that iI a discovery oI oil or gas were to be made that appeared to straddle the agreed
boundary the parties would consult with a view to concluding a unitisation agreement
Ior its exploitation. Several cross-border felds were discovered with Norway
59
and
one with The Netherlands (the Markham feld). In 2005, the UK and Norway con-
cluded a Framework Agreement concerning Cross-Boundary Petroleum Cooperation
with the aims oI deepening Iurther existing cooperation and to seek optimal exploita-
tion oI the petroleum resources oI the two continental shelves.
60
55 Report 9 3, in IMB, p. 1735.
56 Ibid., p. 1767.
57 Protocol oI 1992 and Exchange oI Letters oI 31 October 2001.
58 Agreement between Denmark, together with the Faroe Islands, and the UK oI 18 May
1999: Report No. 9-23 by the present writer in J.I. Charney and R. Smith (eds.), Interna-
tional Maritime Boundaries, vol. IV, p. 2955.
59 The Frigg, StatIjord and Murchison felds were reported on by D.C. Smith in D. Colson
and R. Smith (eds.), International Maritime Boundaries, vol. V, p. 3944. A pragmatic
agreement was concluded in 2004 about the small PlayIair and Boa felds, both straddling
the boundary (UK Treaty Series No. 48 (2004), Cm 6412).
60 Agreement oI 4 April 2005. For comment, see P.D. Cameron, 'The Rules oI Engage-
ment: Developing Cross-Border Petroleum Deposits in the North Sea and the Carib-
bean, 55 ICLQ (2006) 559.
The designated areas oI the UKCS extend beyond 200 nm oI the baselines to the
west oI Scotland. In addition, the UK claims an extended continental shelI in the
South-western Approaches. On 19 May 2006, the UK joined France, Ireland and
Spain in making a joint submission to the Commission on the Limits oI the Conti-
nental ShelI in accordance with article 76(8) oI the LOS Convention. The submission
related to an area in the Celtic Sea and the Bay oI Biscay. The submission indicated
that it was an interim submission Ior all Iour States, including thereIore the UK which
will have to make a Iurther submission in regard to the area to the west oI Scotland.
Parts oI this latter area have also been claimed by Iceland and the Faroe Islands in the
past, but no agreements have been reached.
VI Pollution Zone/Jurisdiction
The Merchant Shipping (Prevention oI Pollution) (Law oI the Sea Convention) Order
1996 provided Ior the exercise oI jurisdiction over pollution Irom merchant vessels
'in accordance with Part XII oI the UN Convention on the Law oI the Sea.
61
Under
those powers, the Merchant Shipping (Prevention oI Pollution) (Limits) Regulations
1996 were made.
62
For the most part, these limits Iollow the agreed maritime bounda-
ries Ior the continental shelI with Norway, Denmark, Germany, The Netherlands,
Belgium, France and Ireland, although these agreements were not expressed to apply
to pollution jurisdiction. To the west oI Scotland, the outer limit Iollows the 200 arc
measured Irom basepoints on St Kilda. To the north oI Scotland, the limits stand back
Irom the limits oI the continental shelI towards the Faroe Islands: in this sector, the
limits oI pollution jurisdiction have not (yet) been amended so as to bring them into
conIormity with the Agreement oI 1999 with Denmark (Faroe Islands).
The UK`s pollution limits are shown on the map at Annex IV. There are no agreed
boundaries Ior the purposes oI pollution jurisdiction and this gap may be leading to
uncertainty internationally. The desirability oI establishing a boundary Ior the pur-
poses oI the EEZ and pollution jurisdiction is shown vividly by the recent case oI the
tank vessel Santa Maria which came beIore three diIIerent French courts in 2005.
63
The German captain and operator oI this vessel was accused oI causing pollution,
contrary to the legislation implementing MARPOL, in the French EEZ at 50 degrees
26.83 minutes N, 0 degrees 34.98 minutes E, a point 30 nm oII the French coast in
the English Channel and about 7 nm on the English side oI the continental shelI
boundary established by the Agreement oI 24 June 1982. As well as denying the
Iacts alleged against them, the jurisdiction oI the French courts was put in issue by
the deIendants on the grounds that the absence oI a boundary agreement between the
British and French EEZs meant that French jurisdiction was limited to the territorial
sea. The Criminal Court in Paris upheld French jurisdiction on the basis oI the Man-
61 S.I.1996/282. For a case study oI UK pollution jurisdiction by the present writer, see E.
Franckx (ed.) Vessel-source Pollution and Coastal State Jurisdiction (2001), p. 345.
62 S.I. 1996/2128, as amended by S.I. 1997/506.
63 Le Droit Maritime Franais No. 670, May 2006, p. 419, including a law report and two
commentaries.
466 Chapter 26
cheplan (concerning practical cooperation under the Bonn Convention to counter
marine pollution by positioning booms, skimmers, etc. at vulnerable points on the
coast) and a fnding that the vessel was on the French side oI the line mentioned in
the Mancheplan Ior the practicalities oI cooperation. The deIendants appealed: the
Criminal Court`s reasoning was not accepted by the Court oI Appeal which instead
took the position that the decision oI the Anglo-French Court oI Arbitration oI 1977
applied not only to the continental shelI but also to the water column and that this was
an agreement Ior the purposes oI article 74(1) oI the LOS Convention concerning the
delimitation oI the EEZ. ReIerence was also made to the special area provisions in
MARPOL. The deIendant then had Iurther recourse, this time to the Court oI Cassa-
tion, which recalled (correctly) that, when spotted, the vessel was on the English side
oI the boundary defned in the Agreement oI 24 June 1982. However, the Court went
on to fnd that pollution jurisdiction was not linked to article 56 (1) (a) oI the LOS
Convention (sovereign rights over resources) but rather to article 56 (1)(b) concern-
ing the general interest in the preservation of the marine environment and that the
French Decree No. 77-130 oI 11 February 1977 had created a zone extending 188 nm
beyond the territorial sea in the North Sea, the Channel and the Atlantic subject to
delimitation agreements with neighbouring States (about which nothing Iurther was
stated). On this reasoning, the Court held that the vessel when spotted was subject
to the French EEZ legislation. This fnding appears to suggest that, in the absence oI
a UK EEZ and an Anglo-French EEZ boundary agreement, French courts will treat
their pollution jurisdiction as extending across the Channel to the outer limit oI the
UK territorial sea,. Without commenting any Iurther upon any oI the three decisions
by diIIerent French courts, the case shows the desirability oI establishing boundaries
with all the UK`s neighbours in respect oI pollution and EEZ jurisdiction. Agreed
boundaries avoid uncertainty with neighbours.
As regards environmental protection generally, several types of special areas have
been prescribed in UK and EC legislation. The areas lie within other jurisdictional
zones such as the fshery zone and the continental shelI. These special areas include
the Iollowing examples:
(1) Marine Environmental High Risk Areas (MEHRAs).
The creation oI such areas was recommended by Lord Donaldson in the Re-
port entitled 'SaIer Ships, Cleaner Seas drawn up Iollowing the Braer disaster.
There are 32 MEHRAs, usually extending Irom the coast outwards in to the
territorial sea and covering about 9 oI the UK`s coasts.
64
The areas are marked
on Admiralty charts: mariners are recommended to exercise special care when
navigating in the vicinity oI a MEHRA. These are not jurisdictional areas.
(2) Particularly Sensitive Sea Areas
These areas are designated by the IMO pursuant to the MARPOL Convention.
There exists a large area Ior Western European waters (2004) that includes wa-
ters near the UK coasts.
(3) Marine Sites oI Special Scientifc Interest
64 InIormation taken Irom www.dIt.gov.uk/stellent/groups/dItshipping/documents/page/
dIt-shipping-611.
These areas include coastlands and inter-tidal marine habitats.
(4) Special Areas oI Conservation
Such areas are designated pursuant to the EC Habitats Directive.
(5) Specially Protected Areas
These areas, designated under the European Directive on the Conservation oI
Wild Birds (79/409/EEC), include maritime areas such as the waters around
Lundy Island.
(6) Marine Nature Reserves
These areas, created under the WildliIe and Countryside Act 1981, include the
territorial sea and seabed around Lundy, Skomer Island and StrangIord Lough.
VII Renewable Energy Zone
Under the Energy Act 2004, provision was made Ior the regulation oI the production
oI energy outside the territorial sea. Wind Iarms are now part oI the scene in many
coastal areas. An area has been designated by the Renewable Energy Zone (Desig-
nation oI Area) Order 2004.
65
This area has the same extent as the Pollution Zone.
A Scottish area was created by the Renewable Energy Zone (Designation oI Area)
(Scottish Ministers) Order 2005. The boundary with England in the vicinity oI the
Solway Firth is a simplifed median line, as are the limits towards the Isle oI Man
and Northern Ireland. In the North Sea, the boundary coincides with the boundary,
a median line, between England and Scotland that was established by the Scottish
Adjacent Waters Boundaries Order 1999.
66
The UK`s Renewable Energy Zone is shown on the map at Annex V.
VIII Pirate Broadcasting Jurisdiction
The Marine, & c, Broadcasting (OIIences) Act 1967 was amended by the Broadcast-
ing Act 1990, Schedule 16, in several ways in reliance upon article 109, subpara-
graphs (d) and (e) oI the LOS Convention. These provisions provide Ior the suppres-
sion by 'victim States oI unauthorized broadcasting Irom ships on the high seas
that can be received in another State and cause interIerence with its authorized radio
communications. A new section 2A in the principal Act empowered a Secretary oI
State to prescribe by order areas oI high seas in which broadcasting Irom ships was to
be regulated insoIar as the unauthorized broadcasts interIered with authorized radio
communications in the UK. Pursuant to this power, two areas were prescribed by
the Marine & c, Broadcasting (OIIences) (Prescribed Areas oI the High Seas) Order
1990.
67
The frst area lies to the south and west oI Great Britain, whilst the second lies
to the west, north and east oI Scotland and east oI England. The prescribed areas do
not create a kind oI zonal jurisdiction such as that exercisable in an EEZ: indeed, they
65 S.I.2004/2668.
66 S.I. 1999/1126.
67 S.I. 1990/2503.
468 Chapter 26
include areas situated within the EEZs oI neighbouring States who are, oI course,
equally entitled to exercise their own broadcasting jurisdiction in respect oI areas
that overlap UK zones such as the fshery zone. The jurisdiction is based on the two
elements in article 109 (d) and (e): frst, the 'victim element and secondly the high
seas element, in the sense that the source oI the interIerence is a ship on the high seas,
including in this context the waters oI EEZs/fshery zones.
IX Concluding Observations
This survey oI the delimitation oI British maritime jurisdiction has described the
major extensions oI limits over the 40 years since 1964 when the Geneva Conven-
tions of 1958 were implemented. From having only a territorial sea of 3 nm, meas-
ured Irom baselines laid down by common law, the UK now has a 12 nm territorial
sea, measured Irom statutory baselines, an extensive continental shelI composed oI
designated areas lying behind a virtually complete set oI agreed boundaries, a 200
nm fshery zone subject to interim median lies or specifed adjustments, and similar
zones (or 'controlled waters) Ior the purposes oI preventing pollution and regulating
renewable energy. All this is very positive.
68
It underlines the shiIt in national inter-
ests Irom those oI a fag State with some coastal concerns to those oI a coastal State
with important maritime preoccupations.
Despite all these changes, there remain some unresolved issues. Several oI the leg-
islative and jurisdictional defciencies were noted at the time oI the UK`s accession
in 1997.
69
The passage oI time and the modernization oI their legislation by most oI
the UK`s near neighbours have made to need Ior remedial action more urgent. Many
oI these questions could be regulated in a comprehensive piece oI legislation such as
a Maritime Jurisdiction Bill, analogous to those enacted by many other States Par-
ties, including notably Ireland in 2006.
70
At present, the Government is consulting
about the proposed Marine Bill which will apply to waters Ior which the UK 'has
responsibility.
71
However, it appears Irom the consultation document that the Bill
will not defne this area and will, instead, rely upon the existing legislation, even
though it is something oI a patchwork. II so, this may be a missed opportunity. There
would be merit in enacting a modern piece oI legislation IaithIully implementing the
LOS Convention and containing provisions about baselines, the territorial sea and
maritime zones/areas.
68 Charts and lists oI coordinates have not yet been deposited with the Secretary General oI
the UN in accordance with articles 16, 75 and 84 oI the UN Convention on the Law oI
the Sea.
69 See Chapter 4.
70 Sea Fisheries and Maritime Jurisdiction Act 2006 (Ireland). As regards boundaries oI the
Irish EEZ, s. 87 (3) provides that 'Where because oI the proximity oI a similar maritime
zone oI another state the outer limit oI the exclusive economic zone cannot be applied.
In the case oI the UK, there are several diIIerent maritime zones, plus a continental
shelf.
71 Consultation Document oI 29 March 2006, available on www.deIra.gov.uk.
Looking more closely at the legislative shortcomings, the existing legislation on
baselines has been shown by the Courts to contain some ambiguity, Ior example in
the provisions concerning bays. The Order oI 1964 was drawn up on the basis oI the
situation existing at that time, notably the Convention on the Territorial Sea oI 1958,
the tidal datum then in use by the Admiralty and a three nm limit. Today the situation
has changed in material respects: the applicable Convention is that oI 1982, a new
tidal datum has been introduced and there is a 12 nm limit. Although the diIIerences
between the two Conventions are not great, they do exist. The change in datum pro-
duces eIIects in that certain additional Ieatures qualiIy as basepoints on the datum oI
LAT. The question whether some new straight baselines could be drawn, e.g. in the
Orkneys and Shetlands, could be considered. Above all, there is a case Ior providing
that the low-water line is no longer completely ambulatory but rather is that shown
on the current, largest-scale chart produced by the UK Hydrographic OIfce. There
may be a case, in short, Ior reviewing the Order in the light oI subsequent develop-
ments and Ior recognizing Admiralty charts as having oIfcial status, in line with the
LOS Convention.
Turning now to examine the jurisdictional gaps, it is noticeable that the UK does
not have a contiguous zone. In a time when the threat Irom drug smuggling is ever-
present, it is not clear why steps have not been taken to enact legislation creating a
contiguous zone oI 12 nm beyond the territorial sea. Such a zone creates opportunities
but without imposing onerous obligations on the coastal State. As well as smuggling,
the zone is relevant to other aspects oI law-enIorcement and the protection oI historic
wrecks on the seabed between 12 and 24 nm oIIshore. France, Norway, Denmark and
Belgium have created contiguous zones in waters towards the British coasts.
A second jurisdictional gap relates to the territorial sea. Although the right oI over-
fight was expressly provided Ior when the Territorial Sea Act 1987 was enacted, the
rights of innocent passage and the right of transit passage were not incorporated into
UK law, even though the UK is one oI the strongest supporters oI these rights: indeed,
it was the British delegation that submitted the key proposals concerning them at
the outset oI the Third UN ConIerence on the Law oI the Sea in 1974.
72
Suggestions
voiced in Parliament during debates on the Territorial Sea Bill to incorporate the
rights were not Iollowed up at the time. France, again, has legislation on this topic.
A third jurisdictional gap is the absence oI an EEZ, which is now a generally ac-
cepted concept in the modern law oI the sea. True, the UK has a fsheries zone, a
pollution zone and a renewable energy zone, all oI which touch upon elements in the
concept oI the EEZ. However, there are Iurther elements that could be regulated by
the creation oI an EEZ. The existing zones could be incorporated into the new EEZ,
which would then embrace the Iull possibilities recognized by international law. In
recent years, Belgium, Denmark, France, Germany, Ireland, The Netherlands and
Norway have all created EEZs in waters extending towards the British coasts. The
absence oI a UK EEZ may give the impression oI a vacuum and create uncertainty
on the part oI others (as happened in 2005 in the case oI the Santa Maria beIore the
72 A/CONF. 62/C.2/L.3.
470 Chapter 26
French courts). The question oI creating an EEZ was stated to be under review in
1996, but since then all that has happened has been the creation oI ad hoc zones.
It should be noted that the terms 'Renewable Energy Zone and 'Pollution Zone
are unique. The regulations in these zones can be justifed as partial applications
oI the wider concept oI the EEZ, but the proliIeration oI zones may be considered
to be undesirable in the global context. The UN Secretary General`s Report on the
Law oI the Sea Ior 2004 alluded to the use oI 'new denominations Ior the EEZ as
a 'disturbing element that may 'create conIusion and uncertainty.
73
This point is
well taken and, moreover, zones with exotic names may be imitated by others who
could be rather less careIul about the extent oI the substantive jurisdiction they may
claim in them.
As regards the missing boundaries, apart Irom the waters towards the Faroe Islands
and around the Channel Islands, there are no agreed boundaries Ior the fsheries zone.
The boundaries shown on the map at Annex II are derived Irom legislation, not trea-
ties with neighbours. The fshery limits towards Norway, Denmark, Germany, The
Netherlands and Belgium correspond Iairly closely, but not precisely, with the agree-
ments establishing boundaries Ior the continental shelI. However, the fshery limits
towards France and Ireland diIIer markedly Irom the agreed continental shelI bound-
aries. The 'grey areas oI overlap on the map at Annex IIA are extensive. Indeed, the
limits in the English Channel and Western Approaches are based on propositions that
were rejected by the Court oI Arbitration in 1977 in the continental shelI arbitration.
In the modern law, the tendency is to assimilate the rules applicable to the delimita-
tion oI the EEZ and the continental shelI and to produce single, all-purpose maritime
boundaries. In the way in which British limits were modifed in order to implement
the Agreement in respect oI the boundary between Scotland and the Faroe Islands by
means oI a Statutory Instrument, so could the remaining unilateral limits be reviewed
with neighbouring States and modifed appropriately so as to bring them into har-
mony with other agreed boundaries. It is true that the practical need Ior boundaries
is reduced but not totally removed by the Common Fisheries Policy where it applies.
The need Ior agreed boundaries is more apparent in the case oI pollution jurisdiction
and in this regard the UK is lacking.
Over the past halI-century, the UK has gradually changed its profle Irom that oI an
out-and-out maritime state to that oI a coastal state with extensive maritime interests
worldwide. However, the UK appears not yet to have embraced Iully the modern law
oI the sea; in this respect, it appears to have Iallen behind its neighbours. There is
scope Ior Iurther evolution in its maritime policies and legislation.
73 A/59/62, para. 42. The same report, in reviewing the implementation oI the Convention
10 years aIter its entry into Iorce, also calls Ior IaithIul implementation oI the LOS Con-
vention in national law.
Annex I
472 Chapter 26
Annex II
Annex IIA
'Grey Areas oI overlapping jurisdiction between the UK and neighbouring States
Reproduced with kind permission oI UKHO.
474 Chapter 26
Annex III
Annex IV
476 Chapter 26
Annex V
Chapter 27
Grisbadarna Revisited*
In the frst decade oI this century, the entrance to the Baltic Sea was the setting Ior the
Grisbadarna Case
1
concerning the maritime boundary between Norway and Sweden.
The case is oIten remembered as an example oI a court visiting the scene oI a dispute.
Since that time, the Baltic Sea has been the object oI numerous boundary treaties
which have enriched the worldwide body oI state practice.
2
However, no subsequent
Baltic Sea boundary has been settled by an international tribunal, whereas in the past
25 years disputes in neighbouring seas such as the North Sea and the English Chan-
nel have helped to generate a rich jurisprudence. In this fnal decade oI the present
century, it may be timely to 'revisit Grisbadarna, in other words to re-examine the
* First published in Platzder and Verlaan (eds.), The Baltic Sea: New Developments in
National Policies and International Cooperation (1996), Chapter 6.
1 Reported in J.B. Scott, Hague Courts Reports (1916), p. 121; G.G. Wilson, The Hague
Arbitration Cases (1915), p. 102. RIAA vol. XI, p. 147. For a general account, see Ency-
clopedia of Public International Law (North-Holland, 1981) vol. 2, p. 124 (by J.H. Kai-
ser). A translation oI the Treaty oI 1661 appears in D. Freestone and T. IJlstra (eds.), The
North Sea: Basic Legal Documents on Regional Environmental Co-operation, Graham
& Trotman/Martinus NijhoII (1990).
2 E. Franckx, 'Regional Report on the Baltic Sea, in Charney and Alexander (eds.), Inter-
national Maritime Boundaries (1992), Volume I, p. 345.
478 Chapter 27
decision in the light oI subsequent developments in the law and with the beneft oI
two modern charts.
3
I Grisbadarna Recalled
The salient Iacts may be briefy noted. In the late nineteenth century a dispute arose
between Norway and Sweden about access to fshing banks in the area oI their mari-
time boundary oII the two mainlands to the south oI the Oslo Fjord. The relevant
coasts are deeply indented; indeed, the boundary winds its way along the IdeIjord
beIore reaching the open sea. There are very many islands, large and small, as well
as rocks and banks lying in Iront oI the mainland (Charts No. 1 and 2). In an eIIort
to resolve the dispute, a Joint Commission was charged with the task oI determining
the precise course oI the boundary, which had been established by the terms oI the
Treaty oI Copenhagen oI 1661 and the chart attached to it (the product oI rudimentary
cartography). The Treaty described the boundary as running in the west 'Irom the
islands oI Koster between Tisler and between Kattenholm and the Islands oI Hval and
down through Svynsound Ijord and into Ide Ijord. The Joint Commission reached
a measure oI agreement over the landward part oI the line, but Iailed to agree on the
course oI the boundary in the territorial sea in the vicinity oI the disputed fshery.
Norway contended Ior a line running south oI the Grisbadarna Bank and Sweden Ior
a line running to the north. Indeed, Sweden claimed most oI a second bank called the
Skjottegrunde. In view oI these remaining diIIerences, Norway and Sweden agreed
in a Compromis signed on 14 March 1908,
4
to submit to an ad hoc arbitral Tribunal
the question oI the maritime boundary between the two countries in so Iar as it had
not been established by the Joint Commission. The Tribunal was called upon to de-
cide whether the boundary was determined either in whole or in part by the Treaty oI
1661 and, iI not, to fx the boundary in accordance with the principles oI international
law.
The Case was decided by a three-man arbitral tribunal composed oI one Norwe-
gian national, one Swedish national and a neutral chairman Irom the Netherlands.
All three were distinguished, experienced jurists and statesmen. Only the Swedish
Judge disclosed a background specifcally in international law, as a member oI the
Permanent Court oI Arbitration. The Tribunal gave a unanimous decision, based on
the rules oI international law. Unanimity strengthens a decision, especially when the
tribunal contains two national judges.
In its decision oI 23 October 1909, the Tribunal Iound that the boundary had not
been fxed by the Treaty oI 1661 beyond a certain point which was numbered XIX.
The Tribunal thereIore determined the seaward parts oI the boundary according to
the principles oI international law. The boundary extended to the outer limit oI the
territorial sea, which was Iour nautical miles Ior both countries in 1909. In very brieI
terms, the Tribunal divided the disputed area into two sectors and applied diIIerent
3 Prepared by Lt. Cdr. C.M. Carleton, Royal Navy, Territorial Waters OIfcer, Hydrograph-
ic Department, Ministry oI DeIence, London.
4 Hague Court Reports, p. 130.
479 Grisbadarna Revisited
methods to them. In the short inner sector, the Tribunal applied a method oI equidis-
tance: in the longer outer sector, an adjusted perpendicular to the general direction
of the coasts.
II Grisbadarna Compared with More Modern Cases
In the frst halI oI the twentieth century the question oI maritime boundaries was not
one which regularly attracted the interest oI statesmen and international lawyers.
The limits oI national jurisdiction were narrow with the result that the only maritime
boundaries were those in internal waters and the territorial sea between neighbour-
ing, usually adjacent, coastal states. In such circumstances, it is hardly surprising that
Iew other maritime boundary cases were decided by international tribunals in the
years aIter 1909. Perhaps it was Ior this reason, too, that the Case came to be cited
not so much as a precedent on maritime boundary law, but instead as the authority Ior
the proposition that 'it is a settled principle oI the law oI nations that a state oI things
which actually exists and has existed Ior a long time should be changed as little as
possible.
5
Many students oI international law must have learned about the Case Irom
this dictum and not as part oI the jurisprudence oI maritime boundaries.
Against that background, some comparison between the Case and the more mod-
ern decisions, Irom the North Sea Continental ShelI Cases onwards, may not be out
oI place, beginning with some Iormal and procedural aspects. The rules oI procedure
were those oI the Permanent Court oI Arbitration: these rules were used as a model in
drawing up the rules Ior the Anglo-French Tribunal oI 1977. The duration oI the case,
was relatively short. The Compromis was signed on 14 March 1908 and the parties
proceeded immediately to exchange three rounds oI written pleadings: memorials,
counter-memorials and replies. From 14 to 20 July 1909, the members oI the Tribu-
nal paid a visit to the region and made an extensive tour, the records oI which were
published. The hearings began on 28 August 1909 and concluded by 18 October that
year, producing 350 pages oI summary records.
6
The decision was given only fve
days later on 23 October 1909, that is to say, less than 20 months aIter the signature oI
the Compromis. The decision, which Iollowed the pattern oI paragraphs starting with
'Whereas, runs to just over 11 printed pages. By modern standards, the judgment
is short and the whole Case was decided Iairly quickly. At the same time, the issues
were most thoroughly examined, in writing, orally and by the visit. Modern cases
have usually taken longer Irom start to fnish, whether the case has been decided
by an ad hoc tribunal or a standing court such as the International Court oI Justice.
7
5 Ibid., p. 133.
6 A statistic noted by Franois in his review oI the work oI the Permanent Court oI Arbitra-
tion in the Hague Recueil (1955), vol. 87, p. 500.
7 From signature oI the Compromis (or submission oI the Case to the ICJ) to judgment, the
periods have been as Iollows: North Sea Continental ShelI Cases: 24 months (2 February
1967; 20 February 1969).
English Channel Case: 24 months (10 July 1975; 30 June 1977). Guinea/Guinea-Bissau
Case: 24 months (18 February 1983; 14 February 1985).
480 Chapter 27
Written and oral pleadings have become more elaborate with consequent delays. The
same may be said oI judgments, in some instances.
The visit to the scene or descente sur les lieux is worthy oI special note. In modern
times, courts and tribunals when Iaced with boundary disputes have only on rare oc-
casions been invited to visitand on even rarer occasions have actually visitedthe
area to be delimited. Examples oI visits are provided by the Beagle Channel
8
and
Taba
9
Cases. However, in the case concerning the Land, Island and Frontier Dispute
between El Salvador and Honduras,
10
a Chamber oI the International Court oI Justice
decided it was not necessary to exercise its Iunctions with regard to the obtaining
oI evidence in the disputed areas, as had been suggested by El Salvador. Each case
depends on its own geographical facts and a visit to the scene is often not needed or
practicalas, Ior example, in the Libya/Tunisia and Libya/Malta Cases. However, in
the experience oI the author, seeing the geographical setting, even Irom the air, can
sometimes give a truer perspective than the atlas, the charts or the maps drawn by
the parties Ior the purposes oI a negotiation. The same may be true in litigation. The
visit to the disputed area certainly enhanced the moral authority oI the decision in the
Grisbadarna Case.
According to the Compromis, the task oI the Tribunal was to determine the actual
course oI the boundary in the waters seaward oI a point specifed by the parties us-
ing a particular chart, as Iar as the outer limit oI the territorial sea. In requiring the
Tribunal to draw a boundary, rather than to rule on principles to be applied in negotia-
tions, the Compromis stands alongside subsequent arbitrations such as those between
France and the United Kingdom
11
regarding the boundary in the English Channel
and between Guinea and Guinea-Bissau.
12
The geographical setting in the latter case,
between two adjacent states, had several parallels with the case between Norway and
Sweden. In particular, there were islands and rocks in Iront oI the mainland in both
cases.
Turning to the substantive aspects, the frst point which may be noted was the
Tribunal`s dictum that 'the maritime territory is an essential appurtenance oI land
territory. The judgment goes on to state that when a certain parcel oI land was ceded
to Sweden the 'radius oI maritime territory constituting an inseparable appurtenance
oI this land territory must have automatically Iormed a part oI this cession.
13
These
passages are echoed in the decision oI the ICJ in the Aegean Sea Continental ShelI
Other cases have been prolonged by extraneous Iactors beyond the control oI the Court,
such as applications by third states to intervene or diIfculties in securing ratifcation oI
the Compromis.
8 52 ILR 93.
9 80 ILR 224.
10 ICJ Reports 1992, para. 22.
11 UK White Paper Cm. 7438; 54 ILR 6; RIAA vol. XVIII, p. 1.
12 Award oI 14 February 1985, 25 ILM (1986) 251.
Case. There the ICJ stated that 'continental shelI rights are legally both an emanation
Irom and an automatic adjunct oI the territorial sovereignty oI the coastal state.
14
A second substantive point concerned the question oI the intertemporal law. Part
oI the Tribunal`s task was to interpret and apply the Treaty oI 1661, which involved
determining what principles oI law were in Iorce at that time. In regard to the outer-
most sector, Norway contended that the law in those days provided that the boundary
should Iollow the median line between the islands, islets and reeIs on both sides.
However, the Tribunal Iound that 'the rule oI drawing a median line between the
inhabited lands Iound insuIfcient support in the law oI nations as it was in Iorce in
the 17th century. The Tribunal`s decision is worded in a way which suggests that the
Tribunal also considered that the law was the same in 1909. The fnding that 'the rule
oI drawing a median line was not a rule oI law in the 17th Century
15
bears a remark-
able similarity to the decision oI the ICJ in the North Sea Continental ShelI Cases to
the eIIect that the median line was not a rule oI law in the mid-20th Century.
16
The Tribunal also Iound that in the seventeenth century the law did not impose the
rule oI the thalweg, or the most important navigable channel, because the evidence
did not demonstrate that this rule had been Iollowed in the present case in the Treaty
oI 1661. The main shipping route Ior traIfc towards the coast runs south oI, and
roughly parallel to, the boundary (see Chart No. 1) and the coastal shipping route
runs slightly to the north oI the boundary. In other inshore situations, navigational
considerations have been decisive, but in the present case economic considerations
were all important. Economic Iactors have been more infuential in delimiting fshery
or economic zones than the territorial sea.
Rather than the rule oI equidistance, the Tribunal Iound the applicable law at the
relevant time in regard to the outermost sector oI the boundary between points XX
and XXI was that the 'division oI the territory in question must have taken place
according to the general direction of the land territory of which the maritime ter-
ritory constituted an appurtenance. The Tribunal thereIore adopted in this sector
the method oI drawing a line 'perpendicularly to the general direction oI the coast,
while taking into account the necessity oI indicating the boundary in a clear and
unmistakable manner, thus Iacilitating its observation by interested parties as Iar as
possible.
17
(The 'interested parties clearly included fshermen.) The signifcance oI
the general direction oI the coast has been noted by the modern cases, notably in the
14 ICJ Reports (1978), pp. 3 and 36.
16 ICJ Reports (1969), pp. 3 and 53 (DispositiI A).
482 Chapter 27
ICJ`s decisions in the North Sea Continental ShelI Cases,
18
the Tunisia/Libya Case,
19
the GulI oI Maine Case
20
and the Malta/Libya Case.
21
The Tribunal decided that the perpendicular to the general direction oI the coast
should be applied in 1909 'in order to arrive at a just and lawIul determination oI the
boundary, or in the original French version 'a une dtermination lgitime et justife
de la Irontiere.
22
The concept oI the 'just and lawIul determination is similar to that
oI reaching a just and equitable determination in accordance with international law
or 'an equitable solution, as required by articles 74 and 83 oI the UN Convention on
the Law oI the Sea in delimiting the economic zone and the continental shelI.
Having rejected in this outer sector the approach oI equidistance and having adopt-
ed instead the approach oI fnding a just and lawIul determination, the Tribunal ascer-
tained 'the general direction oI the coast situated on both sides oI the boundary. The
general direction 'according to the expert and conscientious survey oI the Tribunal
was Iound to the 20 to the west oI north. It would appear that the coasts oI the many
islands were used in determining the general direction. The tribunal did not, however,
speciIy the relevant parts oI the respective coasts which were used in order to trace
the general direction. Nor did the Tribunal have the beneft oI a cartographic expert
as is usual in modern cases.
The general direction ran on a bearing oI 340/160. The relevant part oI the coast
must have extended Irom about Latitude 50 10`N to the north oI Point XX to Lati-
tude 5845`N to the south oI Point XX. This line is approximately tangential to the
Hvaler group oI islands to the north and the Kosteroarra group oI islands to the south.
The perpendicular, drawn Irom this coastal Iront, has been depicted as a pecked line
on Chart No. 1 and as a solid line on Chart No. 2.
The general direction having been ascertained, the perpendicular was traced 20
to the south oI west. This line, however, was Iound to cross the northern edge oI the
Grisbadarna Bank. The Tribunal recalled the agreement oI both parties on the unsuit-
ability oI tracing the boundary across banks and decided to avoid 'this inconven-
ience by adjusting the line northwards by one degree in order to avoid the boundary
crossing any banks used by fshermen. The Tribunal then went on to observe that
such an adjusted perpendicular would assign the Grisbadarna Banks to Sweden, a re-
sult which was supported by several Iactual considerations. These included the Iacts
that Swedish fshermen used the Banks, that Sweden had perIormed various acts oI
sovereignty in the region and that it was a principle oI law that an actual state oI aI-
Iairs which had existed Ior a long time should be changed as little as possible. In this
passage oI the decision, the Tribunal established a line in accordance with the law and
18 ICJ Reports 1969, pp. 3 and 54 (DispositiI D I).
19 ICJ Reports 1982, pp. 18 and 93; para. 133 B(4) oI the judgment reIers to 'a line sea-
wards Irom Ras Ajdir at an angle oI approximately 26 east oI the meridian, which line
corresponds to the line perpendicular to the coast at the Irontier point which had in the
past been observed as a de facto maritime limit.
20 ICJ Reports 1984, p. 246.
21 ICJ Reports 1985, pp. 13, 50 (para. 68) and 57.
then had regard to economic and Iactual circumstances in order to check that the line
was appropriate. This approach oI verifcation oI the equitable nature oI the overall
result has been Iollowed in recent cases, notably the GulI oI Maine Case (although in
that case the Chamber not only decided in the event that no adjustment was justifed
but also drew the boundary across the Georges Bank used by fshermen).
23
The Tribunal`s line also leIt the Skjottegrunde to Norway. This Bank on modern
charts appears as a northern extension oI the Grisbadarna Banks. The shiIt in the
angle oI one degree is a very small one and the distance between the two lines is not
very great, even at its western extremity. Nonetheless, the adjustment must have been
an inIormed one, made in the light oI the visit by the Tribunal to the scene.
In regard to a more landward or inner sector oI the boundary between points XIX
and XX, the Tribunal noted that Sweden and Norway had adopted in practice the rule
oI making the division along the median line drawn between the islands and similar
Ieatures which were not completely submerged at all times (in modern parlance,
'low-tide elevations). However, the parties were in dispute as to the appropriate
basepoint on the Norwegian side. The Tribunal applied the rule oI equidistance in in-
terpreting the Treaty oI 1661 by reIerence to the physical Ieatures as they were Iound
to have existed at that time. In particular, some reeIs known as the Heiefuer which
the evidence showed had not emerged Irom the water in 1661 were not used by the
Tribunal because they could not have served as basepoints at that time in defning a
boundary. In other words, the Tribunal ascertained the physical state oI aIIairs at the
time oI conclusion oI the Treaty and did not take account oI physical changes which
may have happened subsequently. This approach is Iully consistent with modern law
and practice.
24
These various comparisons between the Award oI 1909 and the modern case law,
whether on procedure or on substantive issues, serve to show that the similarities are
Iar greater than the diIIerences. The Grisbadarna Case should be viewed as a part oI
the overall jurisprudence on maritime delimitation.
III Grisbadarna Received
The decision oI the Tribunal was welcomed in an editorial in the American Journal
oI International Law in 1910.
25
The editors saw the decision as demonstrating the
useIulness oI the Permanent Court oI Arbitration in The Hague. They drew particular
attention to the Iact that the arbiters had actually visited the area in dispute in order
the better to understand and appreciate arguments relating to the geography and to-
pography oI the region. In 1914, ProIessor Strupp published a study oI the Case in a
collection oI articles reviewing the decisions oI the Permanent Court oI Arbitration.
He argued that the method used by the Tribunal was consistent with the modern
23 ICJ Reports 1984, p. 246, paras. 230 et seq.
24 In regard to Recent Boundary Agreements in the Southern North Sea, see 41 ICLQ 414
p. 421.
25 4 AJIL 186 (1910).
484 Chapter 27
law of nations.
26
The same approach was adopted by ProIessor Gidel
27
in his classic
work on the law oI the sea, published in 1934. ProIessor O`Connell, another leading
authority, described the perpendicular as 'the obvious and logical thing to do when
determining the boundary in territorial waters between two adjacent states.
28
In
her comprehensive review oI judicial decisions in territorial and boundary disputes,
A.L.W. Munkman noted that the perpendicular did have certain advantages:
it permitted the boundary to Iollow a course oI compromise and divide the disputed ter-
ritory. The median line claimed by Norway would have enclosed the Grisbadarna fshing
banks within Norwegian territorial waters, and thereby deprived Sweden oI a rich fshing
ground which had been consistently exploited by Swedish fshermen Ior longer, and to a
greater extent, than by Norwegians. Furthermore, the court rejected the thalweg, or most
important channel, as the line oI boundary.
29
The Harvard Research Project in 1929 mentioned that case in the context oI agreed
divisions oI bays. The commentary notes that 'the principle oI division oI adjacent
waters by lines perpendicular to the general trend oI the coast in practice makes an
equitable division oI the territorial waters, though oI course historical, vested and
other rights and conditions may be considered.
30
It may be concluded that the deci-
sion was well received by learned opinion.
IV Grisbadarna Rejected
The question oI delimitation was not addressed at The Hague ConIerence oI 1930;
but when codifcation oI the law oI territorial waters was next attempted, the ap-
proach taken in the Grisbadarna case was rejected. In 1952, the Special Rapporteur
oI the International Law Commission, ProIessor Franois, put Iorward a proposal
to the eIIect that between adjacent states the boundary oI the territorial sea should
be drawn according to the principle oI equidistance. Criticism oI the proposal was
voiced by two members oI the Commission, Messrs. Manley O. Hudson and Yepes,
both oI whom cited the Grisbadarna Case in Iavour oI the principle oI the perpen-
dicular to the coastline or its general direction. AIter debate, the Commission decided
to consult experts as well as governments on the issue.
31
In its written comments
oI 13 February 1953, the government oI Norway drew attention to the decision in
26 In Das Werk vom Haag. Die Gerichtlichen Entscheidungen I/II, p. 140.
27 G. Gidel, Le Droit International public de la Mer (19324), vol. III, p. 769. A modern
supporter oI ProIessor Gidel on this point is ProIessor L. Cafisch, in A Handbook on the
New Law of the Sea (1991), p. 439 (eds. R.-J. Dupuy and D. Vignes).
28 International Law, Vol. 1 (2nd ed), 1970, p. 476.
29 'Adjudications and AdjustmentInternational Judicial Decision and the Settlement oI
Territorial and Boundary Disputes, 44 BYBIL (19721973), p. 60.
30 23 AJIL (1929) 275.
31 The Report appears in the Year Book of the ILC (1952) vol. II, p. 25 at 38. The record oI
the discussions is in vol. I, pp. 180 et seq.
the Grisbadarna Case and cited the Tribunal`s fndings that the legally appropriate
method was to trace a line perpendicular to the general direction oI the coast between
two adjacent states.
32
The Government oI Sweden commented in similar terms in
a letter dated 7 May 1953.
33
The Swedish Government expressed the view that the
use oI the perpendicular to the general direction oI the coast was preIerable to the
method oI equidistance, particularly where the coast was deeply indented or iI there
were islands in the vicinity. The International Law Commission convened a group oI
technical experts, composed oI eminent cartographers and hydrographers. The tech-
nical experts Iavoured the method oI equidistance. The fnal draIt articles adopted by
the International Law Commission in 1956 set out Iour alternative methods, oI which
the last was that oI the perpendicular to the general direction oI the coastline. The
Group oI Experts, it was noted by the Commission, took the view that it was 'oIten
impracticable to establish any general direction oI the coast. The experts considered
that the result would depend upon 'the scale oI the charts used Ior the purpose and
upon how much coast was used in attempting to determine the general direction.
The experts Ielt that this method was 'too vague Ior the purposes oI law and that
the best solution was the median line. The Commission agreed with the Group oI Ex-
perts.
34
The discussions appear to have proceeded on the basis that a single principle
or method oI delimitation was required.
The criticisms levelled by the Group oI Experts at the method oI the perpendicular
have not stood the test oI time. In the way in which the Tribunal in the Grisbadarna
Case was able to establish the general direction oI the coast by visiting the scene
and using a map oI an appropriate scale, so the Tribunal in the arbitration between
Guinea and Guinea-Bissau was able to ascertain the general direction oI the coast
and to lay down the major part oI the boundary as a perpendicular.
35
The Iact that it
may be impracticable in one or other place to establish a general direction does not
invalidate the method completely. It may well be both practical and helpIul in another
place to fnd the general direction oI the coast. Where a coast is naturally straight, a
perpendicular to the general direction is the same as a median line. Where a coast is
generally straight but there are minor Ieatures, such as headlands, islets, concavity or
other coastal Ieatures, which would produce a distorting eIIect, a perpendicular to the
general direction is similar to an equidistance line drawn aIter discounting the distor-
tions. The criticism that the method oI the perpendicular 'is too vague Ior purposes oI
law can be levelled also against the rule oI the median line combined with 'special
circumstances, contained in the ILC`s proposals on delimitation. As the law has de-
veloped, it has become clear that no single rule can be laid down Ior all situations and
that a method which is appropriate to all the relevant geographical and other factors
32 Year Book of the ILC (1953) vol. II, p. 83.
33 Ibid., p. 87. A study by the US State Department concluded that the perpendicular to the
general direction oI the coast was 'the Rule with probably the second most backing (4
Whitemans Digest of International Law, p. 326).
34 Year Book of the ILC (1956), vol. II, p. 272, Commentary on draIt article 14.
35 Decision oI 14 February 1985, 25 ILM (1986) 251.
486 Chapter 27
has to be adopted on each occasion.
36
Indeed, as in the Grisbadarna Case, diIIerent
sectors may call for different methods.
However, as is well known, the Geneva ConIerence oI 1958 Iollowed the proposal
oI the International Law Commission and no mention oI the method oI the perpendic-
ular appears in the Convention on the Territorial Sea oI 1958.
37
Article 12 follows the
ILC`s proposal in reIerring to the equidistance method, tempered by 'special circum-
stances or historic title. The Third UN ConIerence on the Law oI the Sea Iollowed
the outcome oI the Geneva ConIerence in adopting Article 15 oI the Convention oI
1982. It did so with very little discussion or controversy, especially when compared
with the long time spent on the question oI the delimitation oI the exclusive economic
zone and continental shelI beIore articles 74 and 83 emerged.
V Grisbadarnas Effects
The subsequent eIIects oI the decision on international boundaries were both direct
and indirect. Directly, the Award settled the diIIerences between the parties and so
represented a success Ior recourse to arbitration as a means oI settling disputes. Com-
ing two years aIter The Hague Convention oI 1907, the award served to strengthen
the new arrangements Ior arbitration, including the Permanent Court oI Arbitration.
Much later, in 1967 and 1968, Norway and Sweden concluded two agreements about
the delimitation oI fshery limits and the continental shelI, lying beyond the terminus
oI the boundary in the territorial sea. The parties, on both occasions, took account
oI the Grisbadarna Award as a Iactual element, but adopted a diIIerent approach to
delimitation Irom that adopted by the Tribunal. Both agreements provided in prin-
ciple Ior a median line, but making divergences 'in order to reach a practical and
expedient delineation (article 2).
38
Between points 1 and 2 the boundary Iollows
the adjusted perpendicular established by the Tribunal in 1909. This section, in other
words, represents a divergence Irom the strict median line. The perpendicular was not
extended seawards, probably because the Norwegian coasts to the west oI the Oslo
Fjord became relevant as one moves westwards beyond the Grisbadarna Banks (see
Chart No. 2).
In 1967, Norway and Sweden issued a Declaration concerning the Territorial Sea
in the North-Eastern Skagerrak in which each Government agreed not to extend its
territorial sea beyond certain points in the immediate vicinity oI the end point estab-
lished by the arbitral award. The Declaration appears to have been intended to take
36 The ICJ has held expressly that there is no single method, e.g., North Sea Continental
ShelI Cases 1969, pp. 3 and 53.
37 The records oI First Committee contain no proposals about the method oI the perpen-
dicular.
38 UN Legislative Series ST/LEG/SER.B/15, p. 923 (fsheries) and ST/LEG/SER.B/16, p.
413 (continental shelI); see also International Maritime Boundaries (eds. Charney and
Alexander), Report 914.
account oI the extensions oI the territorial sea to 12 nautical miles, as well as the
drawing oI straight baselines by both States
39
(see Chart No. 2).
Turning to the indirect eIIects, the decision to use a perpendicular in the Grisba-
darna Case appears not to have served as a precedent in the many different delimita-
tions which have been agreed in the past 30 years in the Baltic and North Seas.
40
In
particular, the method oI the perpendicular to the general direction oI the coast has
not been used in northern Europe in delimiting the territorial sea, although it has been
used in other parts oI the world, e.g. the agreement oI 21 July 1972 between Brazil
and Uruguay.
Perhaps because the Grisbadarna Case concerned the delimitation oI internal and
territorial waters, it has not oIten been cited in argument in modern litigation about
maritime delimitation. The Iullest discussion oI the Case was contained in the US
Memorial in the GulI oI Maine Case.
41
The US Memorial stressed three aspects.
First, the perpendicular to the general direction oI the coast would ensure that each
adjacent state received the maritime areas and the associated fsheries lying in Iront
oI its coast. Secondly, the Tribunal had avoided dividing a fshing bank by adjusting
the direction oI the boundary. Thirdly, the Tribunal had noted the historical fshing
record oI the two sides in reviewing the eIIect oI the proposed boundary. The Cana-
dian Counter-Memorial
42
simply noted that the Grisbadarna Case concerned the ter-
ritorial sea, that the Case turned upon unique circumstances and that it was decided
on the basis oI the law in Iorce during the seventeenth century. The judgment oI the
Chamber oI the Court makes no mention oI the Grisbadarna Case,
43
but the method
oI the perpendicular was adopted in the outermost sector oI the boundary.
VI Grisbadarna Reassessed
Initially, the decision oI the Tribunal received a Iavourable reception Irom the par-
ties and learned commentators. It was only in the 1950s, during the work oI the
International Law Commission, that the principal ground oI the decision, i.e. the
perpendicular Irom the general direction oI the coast, became the subject oI criti-
cism. In eIIect, that rule was rejected in turn by the Group oI Experts, the ILC and
the Geneva ConIerence in Iavour oI the rule oI equidistance, subject to the qualifca-
tion where there were 'special circumstances. Subsequent decisions by international
tribunals in rejecting equidistance as a rule oI law or as a sole method, as well as
the outcome oI long debates at the Third UN ConIerence on the Law oI the Sea, are
adequate testimony oI its shortcomings in many geographical situations. As a result
oI its rejection by the ILC in 1956 and by the Geneva ConIerence in 1958, the rule oI
39 UN Legislative Series, ST/LEG/SER.B/15, p. 924.
40 E. Franckx, Maritime Boundaries and Regional Co-operation, in The North Sea, Per-
spectives on Regional Environmental Co-operation (1990), by Freestone and IJlstra
(eds.).
41 ICJ Pleadings, Vol. II, pp. 6570.
42 ICJ Pleadings, Vol. III, pp. 237238.
43 Apart Irom para. 146 concerning conduct: ICJ Reports, 1984, p. 246, at p. 309.
488 Chapter 27
the perpendicular to the general direction oI the coast has not been widely invoked in
subsequent litigation. Similarly, it does not Ieature oIten in the decisions. However,
the Tribunal`s approach oI fnding a just and lawIul determination employs, as Weil
44
has noted, 'almost the language oI today. In other respects, too, the decision has
stood the test of time.
In his study oI the Case published in 1914, Strupp concluded that the Tribunal
had chosen, among the diIIerent principles that the modern law recognised Ior fxing
the boundary oI the territorial sea, the one which was most in conIormity with the
real situation.
45
The Swedish Government argued that it was preIerable to equidis-
tance. This view was rejected by Franois and the International Law Commission in
1956. Subsequent decisions and analysis have shown that their reasoning was open
to challenge. In some coastal confgurations, the principle oI the perpendicular to the
general direction oI the coast is a sound basis Ior delimiting the territorial sea be-
tween two adjacent states. Moreover, the same can be true Ior other maritime spaces
beyond. In negotiations, it may happen that it is easier to reach agreement in some
instances upon a perpendicular to the general direction oI the relevant coast(s) than
upon characterising some minor distorting Ieatures which would otherwise represent
basepoints Ior constructing an equidistance line as 'special circumstances to be dis-
counted in whole or in part. Furthermore, a perpendicular can easily be adjusted in
order to take account oI particular practical considerations such as the need to avoid
dividing a small bank used by fshermen.
For these reasons, the perpendicular to the general direction oI the coast should be
retained as a permissible method oI delimiting the territorial sea and other maritime
areas between adjacent coastal states, Ior use in appropriate places such as Grisba-
darna.
44 P. Weil, The Law of Maritime Delimitation Reections (1989), p. 137.
45 Die Gerichtlichen Entscheidungen I/II, p. 140, cited by Franois in Hague Recueil (1955)
vol. 87, p. 499.
Chart No. 1
Chart No. 2
Chapter 28
Strategies for Dispute Resolution:
Negotiating Joint Agreements*
I Introduction
In the modern world the demand Ior energy has led the petroleum industry to look
oIIshore Ior hydrocarbon resources. This has led governments, in their turn, to make
claims to the continental shelI. The well-known question Whose is the bed oI the
sea?`
1
took on an important new signifcance in the middle oI this century. National
claims were made and many oI them overlapped with those oI neighbouring states,
producing disputes.
The petroleum industry requires legal certainty on issues over lengthy periods oI
time in order to invest in hydrocarbon exploitation with confdence, while the exist-
ence oI a dispute oIten inhibits industrial activities. Under the law oI the United
Nations Charter, a prime duty oI governments is to maintain international peace and
* This chapter is the text oI a paper read at a conIerence held at the International Bounda-
ries Research Unit, University oI Durham, July 1996, and frst published in Blake et al.
(eds.), Boundaries and Energy: Problems and Prospects (1998) 473-484. Some later
developments are noted in Chapter 23 above.
1 A question frst posed in 1926 by Sir Cecil Hurst (Hurst, 1926: 43) in the context oI pearl
fsheries and the like. Following the Truman Proclamation oI 1945 and similar claims by
other coastal states, the First UN ConIerence on the Law oI the Sea adopted the Conven-
tion on the Continental ShelI in 1958. The modern law is contained in Article 60 and
Articles 76 to 85 oI the 1982 UN Convention on the Law oI the Sea.
492 Chapter 28
security, both on land and at sea, by reIraining Irom the use or threat oI Iorce and
by resolving disputes exclusively by peaceIul means.
2
It is, thereIore, sometimes the
task oI lawyers and diplomats representing their governments to fnd ways oI resolv-
ing intractable disputes about overlapping claims to potential sources oI energy on
the continental shelI. Such ways are Iound by negotiating agreements, establishing a
maritime boundary or, in other cases, establishing a joint area.
This paper considers why treaties creating joint areas are negotiated and reviews
some oI the common issues arising in bilateral negotiations.
II The Choice between a Boundary or Joint Development
The negotiation oI maritime boundary agreements Ior energy-related purposes be-
gan with the Treaty between Venezuela and the UK regarding the GulI oI Paria in
1942.
3
It was interest in oIIshore work on the part oI an oil company which led to
the negotiation oI this important treaty. The Truman Proclamation
4
and the entire
development of the concept of the continental shelf
5
represent responses to the need
Ior energy in the second halI oI this century. The entry into Iorce oI the Convention
on the Continental ShelI in 1964 led directly to the negotiation oI several boundary
agreements in the North Sea.
6
As a study oI International Maritime Boundaries demonstrates, there are well over
100 maritime boundary treaties in the world, most oI them applying to the continen-
tal shelI or to the exclusive economic zone (EEZ), including the seabed (Charney &
Alexander, 1993). OI these treaties, approximately 10 per cent include provision Ior
some Iorm oI joint area,
7
several oI which are oI recent date. Examples oI joint areas
can be Iound in most parts oI the world: the Arctic (Iceland/Norway),
8
the Bay oI
Biscay (France/Spain),
9
the Caribbean (Jamaica/Colombia),
10
AIrica (Guinea-Bissau/
Senegal) and (most recently) the southwest Atlantic (Argentina/UK).
11
The largest
2 UN Charter Articles 2(3), 2(4) and 33. On the need Ior political stability in the oil indus-
try, see Onorato, 1986.
3 Treaty concerning the Delimitation oI the Submarine Areas oI the GulI oI Paria, United
Kingdom Treaty Series No. 10 (1942), Command Papers 6400. See also International
Maritime Boundaries, 1993, Vol. 1: 639, Report No. 213(1).
4 For the internal debates leading up to the Proclamation, see Whitemans Digest of Inter-
national Law, vol. 4, 1965.
5 Notably by the adoption and entry into Iorce oI the Convention on the Continental ShelI
of 1958.
6 International Maritime Boundaries, 1993, Vol. I: 334.
7 According to ProIessor Blake`s Introduction to The Peaceful Management of Trans-
boundary Resources (Blake, 1995), there are 145 boundaries and 15 joint areas.
8 International Maritime Boundaries, 1993, Vol. II: 1755, Report No. 94.
10 International Maritime Boundaries, 1998, Vol. III: 2179, Report 218.
11 Press release oI 27 September 1995 by the UK Mission to the UN, New York; IBRU
Boundary and Security Bulletin, 1995: 26.
493 Strategies for Dispute Resolution: Negotiating Joint Agreements
number in any UN region is perhaps in Asia; examples are Republic oI Japan/Ko-
rea,
12
Malaysia/Thailand,
13
Australia/Indonesia,
14
and Bahrain/Saudi Arabia.
15
The terms oI agreement Ior joint areas vary considerably. The seminal work by the
British Institute oI International and Comparative Law (BIICL) entitled The Joint
Development of Offshore Oil and Gas (BIICL, 1989) analyses state practice, dis-
cusses key issues and puts Iorward a Model Agreement. The work has had much
infuence on several governments.
In negotiations where there are competingusually overlappingclaims to mari-
time jurisdiction between two states, the best outcomeand the one almost invari-
ably sought by the negotiatorsis agreement upon a single boundary. Such a solution
allows both sides to exercise jurisdiction (whether over the continental shelI or the
EEZ) right up to the agreed line and to do so without delay. As the preamble to the
Agreement oI 1988 between the UK and Ireland put it, the governments wished to
open up Iurther opportunities` Ior the industry.
16
A treaty allows each side to set the
petroleum industry to work on the basis oI legal certainty, applying a national legal
system against the background oI agreed rights under international law. Even iI an oil
or gas feld is later discovered straddling the agreed line, it is normally straightIorward
to negotiate and agree upon the unitisation oI the feld by means oI a second treaty.
17
The conclusion oI a treaty which provides Ior a joint area usually comes about
when the negotiators have Iailed to reach agreement upon a single line but nonethe-
less preIer some agreement to none at all. II negotiators know about resources in
the area under negotiation, they may agree to divide the area or the resources or to
exploit the area jointly, preserving the unity oI a deposit`, Iollowing a dictum by the
International Court oI Justice (ICJ).
18
However, actual knowledge about resources is
rare in the case oI oil and gas; it is precisely the lack oI an agreed boundary which
has inhibited any drilling (and sometimes even seismic work) beIore the start oI talks,
resulting in a paucity oI Iacts (as compared with hopes and speculations).
Negotiators are always aware that the resort to litigation imposes demands upon
fnancial and human resources, takes time whether a dispute is submitted to ad-hoc
arbitration (as in the UK/France case)
19
or to the ICJ (as in the Jan Mayen case brought
by Denmark against Norway),
20
and leads to an uncertain result, sometimes one which
12 International Maritime Boundaries, 1993, Vol. I: 1057, Report No. 512.
13 International Maritime Boundaries, 1993, Vol. I: 1099, Report No. 513(2).
14 International Maritime Boundaries, 1993, Vol. II: 1245, Report 62(5).
17 On unitisation, see Onorato, 1968 and 1977; WoodliIIe, 1977. See also the Norway/UK
Agreements about the Frigg, StatIjord Murchison Fields (International Maritime Bound-
aries, 1993, Vol. II: 1879, Report No. 915): 10.
18 North Sea Continental ShelI Cases, ICJ Reports, 1969: 3 at 53.
19 Case concerning the Delimitation oI the Continental ShelI, France/UK: Decision oI the
Court oI Arbitration, Cmd. 7438: 54 International Law Reports 6.
20 ICJ Reports, 1993: 38.
494 Chapter 28
neither side likes but both have to accept. Faced with an impasse, the negotiators some-
times agree to draw a ring or a box` around the disputed area which has proved too
diIfcult to divide. OIten the box` is established Ior an interim period pending possible
Iurther attempts at agreement on a single line at some Iuture date. Drawing a box`
creates some Iorm oI joint area in which, typically, there is to be cooperation Ior joint
development oI hydrocarbon resources, as opposed to a moratorium on activities.
The solution oI a joint area may be second best to an agreed boundary; but a joint
area may well be better than seeing a dispute remain unresolved and possibly grow
more serious. The governments may preIer a compromise to a deIeat in litigation. An
eIIective treaty providing Ior joint development may allow the industry to work and
produce benefts Ior many years in an area which would otherwise have remained
blighted by dispute over jurisdiction. HalI a loaI is better than no bread`, as the say-
ing goes.
To sum up on the question oI choices, negotiators have a range oI available op-
tions. The two sides can agree on:
a maritime boundary (increasingly, these days, all-purpose boundaries)
a joint development area
a combination oI those options
recourse to a third party, such as a conciliation commission or a court.
In other words, at the outset oI negotiations, the outcome is open. Although interna-
tional law provides the Iramework Ior talks and the yardsticks Ior measuring possible
results, the law does not require any particular solution. The broad duties oI states to
cooperate with one another in accordance with the UN Charter and to settle disputes
by peaceIul means (as explained in Declaration on Friendly Relations and Coopera-
tion adopted in 1970) together fnd particular expression, in the present context, in
Article 83(3) oI the UN Convention on the Law oI the Sea, which encourages interim
arrangements and discourages actions which would hamper the reaching oI agree-
ment. The principle oI cooperation is also applicable whenever an oil feld is discov-
ered lying across an agreed boundary, whether or not the boundary treaty provides
expressly for that event.
21
However, governments in boundary negotiations are not
bound by a duty to reach agreement at any particular stage. They remain Iree to keep
talking Ior several years: they are not constrained, either by law or by deadlines, to
reach agreementeven iI the oil industry would like to drill in the disputed areaor
to reach any particular kind oI arrangement, whether a boundary or a joint area.
21 Onorato has argued that where resources are thought likely to exist in an area which re-
mains disputed, Both international law and economic common sense require consensual
joint development oI common petroleum reserves as a means oI Iostering and assuring
desired Ioreign investment and progressive development in the petroleum sector.` (Ono-
rato, 1996: 81).
III The Content of Joint Development Treaties
Once the negotiators fnd that they are going to reach agreement only by having
recourse to some Iorm oI sharing arrangement, several important issues arise. First,
there is the question oI how to ensure that the basic positions (usually the two sides`
competing claims to jurisdiction) are not disturbed. Secondly, there are the questions
oI where and when: how to defne the joint area and the timeIrame. Thirdly, there
arises the issue oI the system oI operations and the extent to which the management
oI the area`s resources is to be integrated. In addition, there are other questions, such
as what to do about fsheries and how to ensure that health, saIety, environmental
protection and similar matters are properly dealt with; it would go beyond the scope
oI this paper to try to review these last questions.
A Maintaining Basic Positions
It is a common Ieature oI joint areas that the two sides wish to maintain their respec-
tive legal positions. Without prejudice` clauses and the choice oI arrangements oI
limited duration which are sovereignty neutral` are essential elements in maintaining
the basic positions oI the parties regarding the underlying jurisdictional dispute.
1 'Without Prejudice Clauses and International Law
The modern law on the delimitation oI the continental shelI is set out in Article 83 oI
the UN Convention on the Law oI the Sea. The basic principle is contained in para-
graph 1. Boundaries are to be established by agreement on the basis oI international
law in order to achieve an equitable solution. Where agreement proves to be elusive,
paragraph 3 provides Ior the conclusion oI provisional arrangements oI a practical
nature`, pending agreement upon a boundary. A joint area is a clear example oI a
provisional arrangement oI a practical nature. According to the last sentence oI Ar-
ticle 83(3), such arrangements shall be without prejudice to the fnal delimitation`.
Without prejudice` clauses are a common Ieature oI agreements on joint areas. In the
process oI negotiations, the proposal and acceptance oI a without prejudice` clause
oIten goes a long way towards removing suspicion and building up mutual trust and
confdence in Iurther talks. Accordingly, it is oIten wise to propose the without prej-
udice` clause at the very outset oI the negotiations Ior a joint area.
State practice shows examples oI very simple without prejudice` clauses. The
Interim Agreement oI 1972
22
between the UK and Iceland is a simple example. There
are also examples oI exceedingly detailed clauses, modelled on Article IV oI the
Antarctic Treaty oI 1959
23
and Article IV oI the Convention on the Conservation oI
Antarctic Living Marine Resources.
24
An example oI a complex bilateral without
22 UKTS No. 122 (1973), Cmd. 5484.
23 UKTS No. 97 (1961); 402 United Nations Treaty Series 71.
24 UKTS No. 48 (1982); 19 International Legal Materials 19 (1980).
496 Chapter 28
prejudice` clause is provided by paragraph 1 oI the Joint Declaration signed by the
Argentine and British Ioreign ministers on 27 September 1995,
25
concerning coopera-
tion in oIIshore activities in the southwest Atlantic. This Joint Declaration included
arrangements Ior an Area oI Special Cooperation, a type oI joint area, to be devel-
oped by means oI joint ventures Irom the two sides.
This complex Iormula, based on one agreed at Madrid in 1989 when relations were
restored aIter the confict oI 1982, contains three elements which may be noted. First,
the Iormula applies both to the terms oI the Joint Declaration and to its results. Sec-
ondly, acts or activities by the two governments, as well as those by third parties, are
not to aIIect positions over sovereignty or maritime jurisdiction. Finally, the areas
subject to controversy` are not to be extended as a consequence oI the Joint Declara-
tion or its implementation. Clearly, the respective positions are afforded the most
complete and explicit protection Irom the risk oI prejudice.
In negotiations the question is sometimes posed as to whether a without prejudice`
clause, whether simple or detailed, can be relied upon to preserve the position oI
one side or the other in the Iace oI the actual proposals under discussion. The start-
ing point Ior answering this question lies in the judgment oI the ICJ in the Fisheries
Jurisdiction case (United Kingdom v. Iceland).
26
The Court considered in some detail
the eIIect on the dispute over fshery limits oI the Interim Agreement signed by Ice-
land and the UK aIter the institution oI proceedings. The Agreement was expressed
in its preamble to be without prejudice` to the legal position oI either government,
including thereIore the UK`s case beIore the Court. The Court noted that the Interim
Agreement was not a settlement oI the underlying dispute, being a temporary ar-
rangement Ior two years, and that it did not provide Ior the waiver oI claims by
either Party in respect oI the matters in dispute`. In an important passage, the Court
noted that interim arrangements had the object oI reducing Iriction and avoiding
risks to international peace and security, something encouraged by the law oI the UN
Charter. The Court went on:
Moreover, iI the Court were to come to the conclusion that the interim agreement prevent-
ed it Irom rendering judgment . the inevitable result would be to discourage the making
oI interim arrangements in Iuture disputes with the object oI reducing Iriction and avoid-
ing risk to peace and security. This would run contrary to the purpose enshrined in the
provisions oI the United Nations Charter relating to the pacifc settlement oI disputes.
The Court agreed to give a ruling upon the substantive issues which it concluded
were still in dispute, even though the Interim Agreement remained in Iorce at the
time oI the judgment.
27
In other words, the Court upheld the eIIect oI the without
prejudice` clause. The decision was Iully in line with the policy behind Article 83(3)
oI the Convention on the Law oI the Sea.
25 See note 11.
26 ICJ Reports, 1974: 3, at pp. 1920.
27 Ibid.: 20, para. 41. For a discussion oI the modus vivendi, see Satows, 1979.
This valuable precedent shows that without prejudice` clauses, even simple ones
contained in a preambular paragraph, are legally eIIective and will be upheld by the
ICJ as the principal legal organ oI the United Nations. Other international tribunals,
including the International Tribunal Ior the Law oI the Sea, can be expected, there-
Iore, to adopt the same approach to such clauses. The conclusion emerges that, as a
matter oI strict law and in litigation, such clauses can be relied upon, whether they
are simple or more complex in their terms.
2 The Need Ior Balanced Arrangements
Balance is usually achieved by equal sharing oI resources or revenues, although there
are exceptions (e.g. the Agreement oI 1993 between Guinea-Bissau and Senegal
where the split Ior non-living resources is 15/85). Even where there is to be 50/50
sharing, during negotiations politico-legal Iactors may also arise in the Iollowing
way. Whatever the position in strict law, in negotiations there is sometimes the Ieeling
that what is proposed in substance is so Iar removed Irom the position oI one or other
side in the underlying dispute that there would inevitably be adverse consequences
over time Irom accepting the proposal in question, even with the Iormal protection
oI a without prejudice` clause. OIten it has to be recognised by negotiators that there
are limits, usually imposed by political Iactors, to the substantive burdens which a
without prejudice` Iormula can bear. Accordingly, the actual, practical arrangements
have to be balanced between the two sides, so as to be neutral in terms oI the under-
lying dispute, not merely as regards the revenues but also as regards the substantive
issues. Who does what? and where? and under whose auspices? are important issues.
In practice, score draws` or no score draws` have to be Iound in negotiations, just
as in other human activities.
One sensitive issue in regard to a joint area is the question oI which side`s legislation,
civil and criminal, should be the applicable law Ior operations and Ior installations on
the seabed. The scope oI the problem can be reduced by non-jurisdictional` arrange-
ments; Ior example, requiring operators` risks to be covered by insurance or resorting
to alternative dispute resolution is less likely to produce conIrontation between the op-
posed jurisdictional positions than reIerring disputes to the courts. Non-jurisdictional`
arrangements are more likely to produce results with which both sides can live.
Another sensitive area is taxation. The Argentina/UK Joint Declaration states that
the Joint Commission will seek close coordination in regard to all aspects oI Iuture
operations, including the overall level oI Iees, royalties, charges and taxes` in the
Area oI Special Cooperation.
Finally, on the subject oI balance, the Timor Gap Treaty was, in the words oI the Tes-
timonium, Done over the Zone oI Cooperation` in an aircraIt by the two Ioreign minis-
ters, such was the need to maintain neutrality in the arrangements; this must be unique.
3 Neutral Terminology
A particular aspect oI this problem oI balancing arrangements, which oIten arises in
such negotiations, is the proposal oI terminology which may sound quite normal to
498 Chapter 28
one side but is anathema to the other. The problem is acute with regard to geographi-
cal names, including the names oI government authorities. In these cases, the solu-
tion is to fnd ways oI expressing a point oI agreement which avoids any one-sided`
language and which is acceptable to both sides. In practice, this probably means that
neither side is able to express its position in the terms it would normally use towards a
domestic audience. It may have to put its own gloss on the agreed wording when ad-
dressing that audience. Compromises, oIten in the Iorm oI neutral expressions, have
to be Iound Ior the agreed text. Occasionally, points have to be leIt unsaid or stated
obliquely, the implications emerging later. Very rarely, each side will make a sepa-
rate national declaration (oI which the other may have been made aware in advance)
clarifying the respective positions on a point of disagreement.
To sum up on the question oI maintaining basic positions, without prejudice` claus-
es, whether simple or detailed, are Irequently Iound in joint area agreements. Such
clauses are legally eIIective as a matter oI strict law. At the same time, they should
be accompanied by practical arrangements which, being cast in bland, non-conIron-
tational terms, do not represent the normal terminology oI either side. Moreover, the
actual arrangements should be balanced so as to be neutral in the underlying dispute
over jurisdiction. They may have to be set out in a package oI linked texts. The overall
result may be characterised as something oI an enduring modus vivendi. Such results
may be remarkable but they are achievable given the necessary will on both sides.
B Depning the Area and the Duration
The joint area must be very precisely defned, usually by geodesic lines joining co-
ordinates oI latitude and longitude on a specifed datum. The joint area should be as
small as possible, on the basis that a joint area is a second-best outcome. Usually, it
lies between the claim lines oI the two sides. In other words, both sides agree that
the boundary ought to run through the joint area but they have Iailed to agree on the
precise course oI a single line; they maintain their opposed positions but reach a prac-
tical accommodation Ior the duration oI the agreement. The latter may be a fxed pe-
riod chosen with the needs oI the industry in mind or it may be linked to the duration
oI the oIIshore activities. Given the timescale between the initial seismic work and,
iI discoveries are made, the completion oI production Irom a feld beIore the decom-
missioning and disposal of the installations, periods of 40 or 50 years are normal in
joint area agreements.
28
The Agreement oI 14 October 1993 between Guinea-Bissau
and Senegal provides Ior an initial period oI 20 years, renewable by tacit consent.
28 The 1978 Agreement between the Republic oI Korea and Japan provides in its Article
XXXI that it will remain in Iorce Ior 50 years as a minimum. A similar period is laid
down in the agreement between Malaysia and Thailand oI 1979, whereas 40 years was
the period in the Timor Gap Treaty between Australia and Indonesia.
C Degrees of Integration
State practice shows diIIerent degrees oI integration in joint areas. There are perhaps
three principal approaches. The frst approach is Ior one oI the two governments to
manage the development oI the joint area, to apply its law to oil and gas operations,
to apply its fscal regime and to share the net production or its tax revenue Irom the
production with the other party. Such an arrangement involves joint activity only in
the sense that the parties have to meet regularlysay annuallyin order to audit the
accounts and to settle the size oI the fnancial transIer. The only joint element is that
oI sharing the net revenue. There can be said to be little or no integration in the de-
velopment oI the joint area. The leading example oI such a system is the 1958 treaty
between Bahrain and Saudi Arabia.
29
A recent example is provided by Areas B and C
in the Australia/Indonesia Treaty oI 1989.
30
The second type oI arrangement can be said to involve partial integration. This can
be achieved by providing that all activities in the joint area have to be conducted by
means oI joint ventures between companies belonging to the two sides. The balance
oI the joint venture in matters such as the contribution oI capital, technology and
manpower may be equal or unequal; a state oil company may be anxious to beneft
Irom Ioreign know-how. Profts too need not be divided equally. According to such
a scheme, each side would apply its legislation to its companies which participate
as partners in joint ventures. In order to avoid uneven treatment, the two sides may
agree to harmonise their relevant legislation to the greatest extent possible, includ-
ing environmental, employment, saIety, health and even fscal laws and regulations.
Even so, such arrangements Iall short oI complete integration. Examples oI arrange-
ments based on joint ventures include Iceland/Norway,
31
France/Spain,
32
Republic oI
Korea/Japan,
33
and Argentina/UK.
34
The Agreement between Colombia and Jamaica
oI 12 November 1993 reIers simply to a joint basis agreed by both Parties`, which
could include joint ventures, production-sharing contracts or service contracts.
The third type oI arrangement involves joint development, administered by a Joint
Commission in accordance with an agreed legal regime. This approach involves com-
plex negotiation between the two sides in order to reach agreement upon a single legal
regime applicable to activities in the joint area. This regime applies to the exclusion oI
the national regimes. It can be said that here there is Iull integration. The regime may
well be diIIerent Irom the national regimes oI both sides. The leading examples oI Iull
integration are the Timor Gap Treaty between Indonesia and Australia
35
in respect of
29 International Maritime Boundaries, 1993, Vol. II: 1489, Report No. 73; BIICL, 1989,
Vol. 2: 128140.
30 International Maritime Boundaries, Vol. II: 1245, Report No 6-2(5); BIICL, 1989, Vol. 2.
33 International Maritime Boundaries, 1993, Vol. I: 1057, Report No. 512.
34 See note 11.
35 See note 14.
500 Chapter 28
Area A (the main part) and the treaty between Malaysia and Thailand.
36
A recent ex-
ample is the Agreement between Guinea-Bissau and Senegal oI 14 October 1993 by
which the parties put en commun lèxercise de leurs droits respectiIs` (Article 6) and
created an international agency Ior the exploitation oI a common zone`s resources.
To sum up on the degrees oI integration, several recent agreements Ior joint areas
have involved either partial or complete integration. Non-integrated arrangements
are comparatively Iew and many involve a considerable degree oI trust on the part oI
the state which plays a passive role and simply receives its share oI the net revenue.
Partial integration has the advantage oI removing the need Ior lengthy negotiation
beIore activities can get underway, plus the advantage oI using the legal inIrastruc-
ture oI the two sides to a considerable extent, possibly assisted by harmonisation. The
Joint Commission typically has the task oI monitoring developments, encouraging
the Iormation oI joint ventures and taking decisions in order to maintain coopera-
tive activities or to avoid disputes, in line with the terms oI the agreement. By the
same token, total integration can take a long time to achieve, particularly iI the two
underlying legal systems have diIIerent legal conceptsIor example, iI one operates
a licensing system and the other grants concessions.
IV Conclusions
An agreed boundary provides the best basis Ior setting the oil and gas industry to
work. It allows a national hydrocarbons regime to be applied right up to the agreed
line, eliminating the blight caused by previous uncertainty or even disputes. An
agreement Ior joint development is an alternative when it is clear that, Ior whatever
reason, agreement on a boundary is not going to prove possible. A joint development
agreement can be Iramed so as to preserve the diIIering legal positions while allow-
ing the industry to go ahead on a secure legal basis over an extended period oI time.
Both governments can beneft Irom cooperation. Certainly, joint development is preI-
erable to a continuing dispute which leads either to conIrontation or to the continued
blighting oI the disputed seabed.
Bibliography
BIICL (1989): British Institute oI International and Comparative Law, Joint Devel-
opment of Offshore Oil and Gas: A Model Agreement for States with Explanatory
Commentary, London: BIICL.
Blake, G. H. et al. (eds.) (1995) The Peaceful Management of Transboundary Re-
sources, International Environmental Law and Policy Series, London/Dordrecht/
Boston: Graham & Trotman/Martinus NijhoII.
Charney, J.I. & Alexander, L.M. (eds.) (1993) International Maritime Boundaries,
Vols. I and II, Dordrecht: Martinus NijhoII.
Hurst, C. (1926) British Yearbook of International Law.
36 See note 13.
IBRU Boundary and Security Bulletin (1995) Vol. 3, No. 3 (Autumn).
International Maritime Boundaries (1993 and 1998) 3 Vols.
Onorato, W.T. (1968 and 1977) Apportionment oI an International Common Petro-
leum Deposit`, 17 International and Comparative Law Quarterly 85 (1968) and 26
International and Comparative Law Quarterly 324 (1977).
Onorato, W.T. (1986) Promoting Foreign Investment Through International Petro-
leum Joint Development Regimes`, 1 ICSID ReviewForeign Investment Law
Journal 81.
Satows Guide to Diplomatic Practice (1979) (5th edn.), Longmans: 262.
Whitemans Digest of International Law (1965) Vol. 4: 752ff.
WoodliIIe, J.C. (1977) International Unitisation oI an OIIshore Gas Field`, 26 Inter-
national and Comparative Law Quarterly 338.
Part 6
The Settlement of Disputes and the Law of
the Sea
Chapter 29
The International Tribunal for the
Law of the Sea*
The United Nations Convention on the Law oI the Sea ('the Convention) consti-
tuted several new international institutions oI diIIerent kinds. Best known, perhaps, is
the International Seabed Authority with its headquarters in Jamaica. Less well known
is the Commission on the Limits oI the Continental ShelI, elected in March 1997, to
consider information from coastal states which have continental shelves extending,
as natural prolongations, beyond 200 nautical miles Irom the baselines oI the territo-
rial sea. Particularly relevant to the present study oI the institutional dilemma over
the settlement oI disputes is the International Tribunal Ior the Law oI the Sea, with its
seat in Hamburg. The Tribunal Iorms part oI some rather elaborate arrangements Ior
the peaceIul settlement oI disputes oI all kinds which may arise under the Conven-
tion.
I Establishment of the Tribunal
The Tribunal was constituted by the Convention as an autonomous international or-
ganisation within the wider United Nations system. The Tribunal`s Statute, contained
* This chapter, based on a paper read at the University oI Bristol in May 1997, was frst
published in M.D. Evans (ed.), Remedies in International Law: The Institutional Di-
lemma (1998) 71-83. It has not been updated: subsequent developments concerning the
Tribunal are reviewed in Chapters 30 to 35, and current inIormation about the Tribunal is
available on www.itlos.org.
506 Chapter 29
in Annex VI oI the Convention, requires that the judges enjoy 'the highest reputation
Ior Iairness and integrity and ... recognised competence in the feld oI the law oI the
sea. In other words, it is a special tribunal Ior the Convention, with specialists as
judges. The Tribunal as a whole has to represent the principal legal systems oI the
world. The composition also has to take account oI equitable geographical distribu-
tion. On this latter point, according to Article 3 oI the Statute, there have to be at
least three judges Irom each oI the fve geographical groupings used in the United
Nations Ior electoral purposes: AIrica, Asia, Eastern Europe, Latin America and the
Caribbean, and Western Europe and other States. The members oI the Tribunal were
elected by the States Parties on 1 August 1996. To secure election, successIul candi-
dates had to obtain a two- thirds majority oI the votes cast, or at least sixty-seven oI
the Iull electorate on the day oI exactly one hundred States Parties. In the event, the
States Parties had decided
1
on the eve oI the voting that there should be fve judges
Irom AIrica, fve Irom Asia, Iour Irom Latin America and the Caribbean, Iour Irom
Western Europe and other States, and three Irom Eastern Europe. This meant that the
United Nations Secretariat could prepare ballot papers divided according to region
and the President oI the Meeting could indicate when the 'quota Ior a particular
region had been flled. AIter as many as eight rounds oI voting lasting twelve hours,
twenty one candidates had achieved a two thirds majority oI the votes cast (a high
fgure in elections) and all the places had been declared by the President to have been
flled. On 2 August 1996, lots were drawn, again according to a scheme Ior each re-
gion, in order to decide who Irom amongst the successIul candidates should have the
terms of three, six or nine years in order to prepare for the three year electoral cycle.
2
The twenty one successIul candidates gathered in Hamburg on 1 October and were
sworn in during a public ceremony held in the Rathaus in the presence oI the United
Nations Secretary General, political fgures Irom Germany and many diplomatic rep-
resentatives on 18 October 1996.
Because it is new and autonomous, numerous administrative arrangements are re-
quired to make the Tribunal an eIIective body. The Tribunal may well be unique as an
autonomous judicial body. The Tribunal has its own budget and organs ones which
diIIer Irom those oI other international organisations. These organs may be said to
include (a) the Judiciary (composed oI the members oI the Iull Tribunal, as well as
the various chambers) and (b) the Registry, together possibly with (c) the Meeting oI
the states parties (convened in accordance with Article 319 oI the Convention) which
elects the members and Iunds the Tribunal as a whole.
3
It is endowed with legal per-
sonality, including the power to conclude treaties. Negotiations are well advanced
1 UN Doc. SPLOS/L.3/Rev.1.
2 For Iurther details oI the electoral processes, see UN Doc. SPLOS/14, paras. 13II.
3 The States Parties have held seven meetings, starting shortly aIter the entry into Iorce oI
the Convention on 16 November 1994, in order to discuss the establishment, status and
Iunding oI the Tribunal and the establishment oI the Commission on the Limits oI the
Continental ShelI.
507 The International Tribunal for the Law of the Sea
with the host country, Germany, Ior a Headquarters Agreement,
4
the terms of which
are likely to Iollow, broadly speaking, the provisions oI the Agreement between the
UK and the European Bank Ior Reconstruction and Development. The Tribunal has
been represented in its negotiations with the German Government by the President
and Vice President, together with the Registrar, acting in accordance with some broad
negotiating guidelines agreed by the Tribunal`s members during an administrative
meeting.
The Tribunal enjoys close links with the United Nations, links which were strength-
ened in December 1996 when the General Assembly adopted a Resolution conIerring
the status oI an observer on the Tribunal.
5
The General Assembly holds an annual de-
bate on the Secretary General`s report on developments in the law oI the sea, a report
which includes a section about the work oI the Tribunal.
6
The Tribunal may wish to
be represented during such debates.
A Iurther negotiation is well underway Ior an agreement between the United Na-
tions and the Tribunal, defning their Iuture relationship as two separate international
organisations. For instance, the two organisations could agree to exchange relevant
documentation and the Tribunal will wish to be part oI the UN 'common system Ior
conIerence services, staIfng matters, pensions and the like. The Secretary General
is the depositary oI the Convention and the Tribunal has a very obvious interest in
having Iull access to inIormation oI all kinds concerning the status oI the Convention,
declarations by parties, etc. These talks involve members oI the UN Secretariat and
the Registrar.
At their seventh meeting in May 1997, the States Parties to the Convention con-
cluded a multilateral agreement on the Privileges and Immunities oI the Tribunal.
7
In addition to conIerring privileges and immunities on the Tribunal itselI, the Agree-
ment extends certain privileges and immunities also to the Tribunal`s elected and ad
hoc members and its Registry, as well as to persons appearing beIore the Tribunal as
agents, counsel, witnesses and experts. The Agreement contains twenty fve Articles
(plus the usual Final Clauses) recognising the Tribunal`s juridical personality, the
inviolability oI its premises, its immunity Irom suit, its exemption Irom taxation and
related matters.
To sum up on the question oI the Tribunal`s status, it is apparent that the various
diIIerent arrangements, made recently or now in the course oI being made, Ior the
operation oI the Tribunal bear many similarities with the existing arrangements in
regard to courts such as the International Court oI Justice, the European Court oI
Human Rights and the European Court oI Justice. However, there is the striking diI-
Ierence in that the Tribunal is a completely separate entity created by the Convention,
4 The Meeting oI the States Parties recommended a draIt oI such an agreement to the Tri-
bunal as a basis Ior the negotiations with the host country: see UN Doc. SPLOS/14.
5 GA Resolution 51/204 oI 17 December 1996.
6 A / 51 / 645 oI December 1996.
7 Discussions were held during the fIth, sixth and seventh meetings oI the States Parties in
August 1996 and March 1997 (SPLOS / 22). The Agreement was adopted by the seventh
meeting oI the States Parties on 23 May 1997 and opened Ior signature on 1 July 1997.
508 Chapter 29
but not an organ oI a larger international organisation, such as the United Nations, the
Council oI Europe or the European Community. Such autonomy may bring the ad-
vantage oI genuine independence. At the same time, autonomy increases the numbers
oI arrangements which have to be put in place at present. Autonomy may also mean
that the Tribunal has only the periodical meetings oI the States Parties Irom which to
seek help should any unexpected problems arise.
II Jurisdiction of the Tribunal
The Tribunal is a standing body with a regular composition (subject to triennial elec-
tions Ior one third oI the judges). In contrast to the International Court oI Justice,
however, the Tribunal is not a court oI general jurisdiction. Instead, the Tribunal will
Iocus on the Convention (in much the same way as the European Court oI Human
Rights hears cases arising under its Convention), but with the possibility oI Iurther
jurisdiction being conIerred upon the Tribunal by international agreements.
The jurisdiction oI the Tribunal is provided Ior principally in Part XV oI the Con-
vention. One oI the most signifcant Articles in that part is Article 287 entitled 'Choice
oI Procedure. According to this provision, states upon signing, ratiIying or acceding
to the Convention, or at any time thereaIter, are Iree to choose one or more oI Iour
diIIerent means Ior the peaceIul settlement oI disputes concerning the interpreta-
tion or application oI its terms. The Tribunal is one oI these Iour means, alongside
the International Court oI Justice, arbitration and a system oI structured arbitration
known as 'special arbitration Ior certain categories oI disputes. In situations where
two disputing states have made diIIerent choices or no common choice among the
Iour means, arbitration is the indicated result, unless the parties agree otherwise. At
present, the majority oI states parties have not made choices under Article 287 and
there remains an 'institutionalised dilemma over the choice oI means oI dispute set-
tlement in most instances.
The potential jurisdiction oI the Tribunal ratione personae is extensive. The Tri-
bunal is open to all States Parties to the Convention, oI which there are one hundred
and twenty at the time oI writing (29 September 1997).
8
In addition, entities other
than States Parties have access to the Tribunal in accordance with Part XI dealing
with deep seabed mining, including disputes between a State Party and the Interna-
tional Seabed Authority and disputes between mining consortia and the Authority.
Moreover, the term 'States Parties is defned in Article 1(2) oI the Convention in
terms which are wide enough to include the European Community were it to decide,
as seems likely, to confrm Iormally its signature now that over halI oI the Member
States have become parties. In that event, the European Community could have ac-
cess to the Tribunal or arbitration in regard to matters within the competence oI the
Community, as specifed in a Declaration to be made under Annex IX oI the Conven-
tion upon Iormal confrmation oI its signature. The jurisdiction oI the Tribunal over
non- state entities, such as the International Seabed Authority, mining consortia or
8 The last two were the United Kingdom in July 1997 and Chile in August 1997.
the European Community fnds no parallel in the International Court oI Justice, the
contentious jurisdiction oI which is confned by its Statute to States.
The jurisdiction oI the Tribunal ratione materiae extends to the general law of the
sea, practically all oI which is regulated in greater or lesser detail in the Convention.
Cases could concern issues such as baselines, rights oI passage, maritime boundaries
and fsheries jurisdiction, all oI which have come beIore the International Court oI
Justice or ad hoc arbitral tribunals in recent years. As a body created by the Con-
vention, the Tribunal will in practice concentrate upon the true interpretation and
application oI its terms. However, Article 293 provides that courts and Tribunals
with jurisdiction under the Convention are to apply both its terms 'and other rules oI
international law not incompatible with the Convention. One example oI such other
rules is provided by Article 295 which imports into the procedures the well-known
'local remedies rule, according to which an available local remedy has to be sought
beIore recourse is had to an international body. Article 293 means, in practice, that
the Tribunal will have to consider not only the law oI the sea, including customary
law on certain matters, but also a wide range oI other legal issues. These include:
the law oI treaties (Ior instance, the interpretation or application oI the Convention
as a treaty subject to the Vienna Convention on the Law oI Treaties; or the eIIects
oI national declarations); the eIIects oI previous judicial decisions (as in the recent
case decided by a Chamber oI the International Court oI Justice about the GulI oI
Fonseca
9
); and the law on state responsibility, oI which the local remedies rule Iorms
part. Necessarily, the Tribunal will apply the law oI its own procedure. The Tribunal
will also have to consider certain private law issues to do with deep seabed mining,
including activity by consortia under plans oI work or contracts. It remains to be
seen whether or not the Tribunal will become seized oI questions oI international law
which are connected only indirectly with the law of the sea, e.g. sovereignty over an
island disputed between the parties to a general maritime boundary case. Such dis-
putes over islets infuencing a short stretch oI a lengthy maritime boundary between
two States are not uncommon. II the parties request the Tribunal to decide all aspects
oI a maritime dispute, i.e. both the boundary and the incidental sovereignty question,
there appears to be no reason in principle why the Tribunal should decline the invita-
tion. Consent is crucial, a point underlined in this context by the second proviso to
Article 298(1)(a)(i).
In addition to its general law oI the sea jurisdiction, the Tribunal, including its Sea-
bed Disputes Chamber oI eleven judges, has jurisdiction in matters concerning the
deep seabed and the realisation under the administration oI the International Seabed
Authority oI the concept oI the Common Heritage oI Mankind. In regard to disputes
about deep sea mining (principally oI polymetallic nodules), the Tribunal is the pre-
eminent judicial body and it enjoys exclusive jurisdiction. Article 187 oI the Conven-
tion conIers jurisdiction on the Tribunal`s Seabed Disputes Chamber over a wide
range oI disputes arising under Part XI, read with the Agreement on the Implementa-
tion oI Part XI oI 1994. This jurisdiction is exclusive to the Chamber in the sense that
its jurisdiction is not aIIected by choices made under Article 287 by States Parties.
9 Land, Island and Maritime Frontier Case, ICJ Reports, 1992, p. 351.
510 Chapter 29
The Tribunal will also have pre-eminent jurisdiction under Article 292 concerning
the prompt release oI vessels and crews, pursuant to the provisions oI the Convention
about the release under a system oI bonding oI fshing vessels and those suspected oI
having caused marine pollution.
In August 1995, the UN ConIerence on Straddling Fish Stocks adopted an Agree-
ment on that topic which applies the terms oI Part XV oI the Convention to Iuture
disputes about the meaning oI that Agreement. The Agreement also provides that
disputes about the interpretation or application oI regional fsheries agreements or ar-
rangements are also subject to the dispute settlement arrangements in Part XV. These
provisions, adopted in the light of Article 288 of the Convention, as well as Articles
21 and 22 oI Annex VI, refected a consensus at the ConIerence over the need to
strengthen regional arrangements and organisations. As a result oI this new Agree-
ment, the potential jurisdiction oI the Tribunal has been greatly expanded in regard to
fsheries.
10
The same is true oI the International Court oI Justice and arbitration since
they are both given jurisdiction by Part XV.
III The Montreux Formula and the Institutional Dilemma
As indicated above, much but not all oI the above jurisdiction oI the Tribunal deriv-
ing Irom the Law oI the Sea Convention is shared with the International Court oI Jus-
tice and also with various arbitral tribunals. Under the so- called 'Montreux Iormula
contained in Article 287 oI the Convention, States Parties may choose which dispute
settlement procedures to accept Ior general law oI the sea disputes and, subject to
some qualifcations, one procedure becomes compulsory Ior the parties to a dispute.
At the inIormal meeting in Montreux, held during a session oI the ConIerence in Ge-
neva in 1975, many delegates Ielt this compulsory approach would mark an advance
upon the Optional Protocol, such as that adopted at the First UN ConIerence on the
Law oI the Sea, on the basis oI their assessment that only the existing acceptors oI
the ICJ`s jurisdiction under the optional clause (Article 36(2) oI its Statute) would
be likely on past experience to accept its jurisdiction under another optional instru-
ment.
The general arrangements Ior dispute settlement contained in Part XV oI the Con-
vention, the terms oI Part XI oI the Convention on deep seabed mining disputes
and subsequently the provisions concerning dispute settlement in the Straddling Fish
Stocks Agreement may together lead to an overall increase in the amount oI inter-
national litigation to do with the law oI the sea. The Convention and that Agreement
together increase the jurisdictional possibilities (more bilateral connections between
pairs oI States Parties) Ior the submission oI disputes to compulsory, binding proce-
dures. Simply by ratiIying the Convention and the Agreement, additional states are
accepting some provisions Ior compulsory dispute settlement, whether by the ICJ
or the Tribunal or some Iorm oI arbitration (although Article 298 does permit some
opting out Irom compulsory adjudication). This jurisdictional increase may be seen
10 For an initial assessment oI the Agreement, see the note by the present writer in 45 ICLQ
(1996), at p. 463 (Chapter 21).
as an overall advance Ior the international rule oI law. This was the Ieeling oI many
oI the delegates present at Montreux in the Spring oI 1975 when the concept behind
Article 287 oI the Convention was shaped. Many delegates considered it better to
increase the range oI commitment to compulsory procedures, even at the cost oI
creating more 'institutional dilemmas. The Soviet and other East European delega-
tions had indicated at the frst substantive session oI the ConIerence held in 1974 at
Caracas that they had more open minds about arrangements Ior dispute settlement in
the context oI a generally accepted new Convention. They signalled that they would
not adopt their previous negative stance towards compulsory procedures, thereby go-
ing beyond the small advance marked in 1969 by the Vienna Convention on the Law
oI Treaties, which had provided Ior such procedures but only in relation to a single
issue, that oI jus cogens.
11
Six years later, there was perceived to be a chance at last,
and in a major instrument governing an important part oI international law, to secure
a greater acceptance oI compulsory procedures. However, several objections were
voiced to the proposition that the International Court oI Justice should be the sole
body to which diIIerences must be submitted. The price to be paid Ior acceptance oI
some Iorm oI binding settlement was the multiplicity oI Iora seen now in Article 287.
The consensus in Montreux was that, in principle, every state party would be bound
to accept some compulsory procedures in the context oI the Iuture Convention and
the wishes oI the deIendant would determine the precise Iorum. (This latter element
was, oI course, changed in later negotiations to what appears in Article 287, i.e. in the
event oI no choices or diIIerent choices having been made, arbitration is the deIault
procedure, not that chosen by the deIendant. Furthermore, exceptions to compulsory
jurisdiction were added later.)
IV The Rules of the Tribunal
At present, the members oI the Tribunal are completing work on the Rules oI the
Tribunal, taking as their basic document the draIt Rules prepared by the Preparatory
Commission. Those draIt Rules were, in turn, drawn largely Irom the Rules oI the
International Court oI Justice, as revised most recently in 1978.
It is axiomatic that the Rules must be compatible with the Convention and Statute.
The Rules will be divided into two parts: Organisation or structure, and the conduct
oI proceedings. As regards, frst, the structure oI the Tribunal, the Statute provides Ior
twenty one members and that is expected to be the body which will hear the normal
case. The Convention and Statute also provide Ior a Seabed Disputes Chamber oI
eleven members drawn Irom the twenty one; Ior a chamber oI fve members to hear
cases by Summary Procedure; and Ior the possibility oI setting up other standing or
ad hoc chambers. At the session held in April 1997, two Resolutions were adopted
setting out the terms oI reIerence oI two Chambers Ior Fisheries Disputes and Ior
11 Article 66(a) provides Ior the reIerence oI disputes involving questions oI jus cogens to
the International Court oI Justice upon the application oI any one party.
512 Chapter 29
Environmental Disputes, respectively.
12
Each chamber has seven members, a number
which gives a cross-section oI background and experience. It may be considered
that the overall structure is a complex one. In particular, the relationship between
the plenary Tribunal and the Seabed Disputes Chamber is unusual. Nonetheless, the
Tribunal aIIords the potential litigants plenty oI scope Ior choice.
Turning to the conduct oI proceedings, the Convention and Statute were mod-
elled by the negotiators on the Statute oI the International Court oI Justice. The basic
concepts Ior the conduct oI cases are those oI The Hague, rather than Luxembourg
or Strasbourg. The Rules naturally refect this approach. However, the Convention
contains some novel provisions concerned with procedures or remedies which are
applicable to the various bodies mentioned in Article 287, including thereIore the
Tribunal. These provisions Iall to be considered in Iraming the Rules. Two examples
may be noted.
First, Article 294 introduces in respect oI a particular category oI disputes the con-
cept oI 'preliminary proceedings, separate Irom, logically even prior to or along-
side, the Iamiliar concept oI preliminary objections to jurisdiction or admissibility.
The main intention oI the negotiators was to protect coastal states Irom receiving too
many applications challenging the exercise of their sovereign rights or powers and
discretions in relation to the Exclusive Economic Zone. (Those are the typical dis-
putes 'reIerred to in Article 297, to which Article 294 itselI reIers.) The preliminary
proceedings are in the nature oI a strike out plea, or possibly oI the concept in French
administrative law of abus de droit. Article 294 links preliminary proceedings to
the Application, rather than the Memorial by the applicant, with the possible conse-
quence that unsuccessIul preliminary proceedings begun on the basis oI the Applica-
tion could be Iollowed by preliminary objections to jurisdiction or admissibility once
the respondent has received the Iull case oI the applicant. This result would have the
effect of lengthening the preliminary stages of a case, especially one in which there is
an application Ior the prescription oI interim measures oI protection.
Secondly, Article 292 makes provision Ior the consideration oI the question oI the
prompt release oI vessels and crews by a court or tribunal, including the Tribunal.
The provision contemplates time limits as short as ten days and the consideration oI
the issue oI release on suitable bail without prejudice to the merits oI a case beIore a
domestic court in the port state concerned. In other words, the nature oI the proceed-
ings is strictly limited and quite diIIerent Irom the normal proceedings, written and
oral, Ior the determination oI a dispute concerning the interpretation or application
of the Convention.
Those are two examples oI provisions in the Convention Ior new types oI pro-
ceedings beIore a court or tribunal with jurisdiction under Part XV. The Rules oI the
Tribunal need to take account oI these provisions. In the absence oI detailed rules,
reliance could be placed on the general rule according to which the President ascer-
tains the views oI the agents oI the parties and makes orders Ior the procedure to be
Iollowed in a particular case.
12 See Interim Report prepared by the Tribunal to the Meeting oI States Parties, UN Doc.
SPLOS/21 oI 9 May 1997.
V The Judicial Policy of the Tribunal
At its frst session, the Tribunal decided that its rules and its procedures should be
'user Iriendly, eIfcient and cost eIIective.
13
What do these concepts mean in regard
to judicial body? The idea oI 'user Iriendliness covers several matters, including:
adopting Rules couched in simple, clear language, avoiding repetition oI mate-
rial in the Convention and the Statute;
complementing the Rules with guidelines Ior parties to cases;
fexibility in the procedural decisions Ior the handling oI cases;
ascertaining the views oI the agents on such issues.
'EIfciency in the case oI a judicial body entails Iollowing procedures which are eI-
Iective in determining the disputed issues oI law and Iact, which are Iair to the parties
and which avoid unnecessary delays. The procedures must be thorough. Both parties
must Ieel that they have received a Iull and Iair hearing oI their arguments. The Tri-
bunal should avoid giving any impression oI having prejudged an issue during the
course oI the proceedings leading up to its fnal decision.
14
The idea oI 'cost eIIectiveness has been taken Irom the Agreement oI July 1994
on the Implementation oI Part XI oI the Convention.
15
Section 1 oI the Annex to this
Agreement requires all institutions constituted by the Convention to be cost eIIective.
This provision applies thereIore to the Tribunal. In practice, this provision means that
the Tribunal should adopt procedures which avoid unnecessary expense, both Ior the
litigants and the states parties which Iund the Tribunal.
It goes without saying that a tribunal must apply the appropriate rules oI law to the
cases coming beIore it. Combining all these elements produces a judicial policy in
the Iollowing terms: to administer justice diligently, thoroughly and Iairly, in accord-
ance with the applicable law, without any unnecessary expense or delay.
VI The Existing Experience of International Courts
The 1920s saw an important exercise: the drawing up oI the Rules oI the Permanent
Court oI International Justice, no doubt infuenced by experience with the Hague
Conventions oI 1899 and 1907. These Rules served in 1946 as the basis Ior the Rules
oI the present Court. The various revisions, most recently in 1978, have not expunged
Irom the content and phrasing (at least, oI the English version) oI the Rules certain
traces oI the atmosphere oI the early years oI this century. Nonetheless, those Rules
were used by the Preparatory Commission as a basic text in drawing up the frst draIt
oI the Rules Ior the Tribunal. In considering the draIt, the members oI the Tribunal
13 Ibid., n. 11, at para. 16
14 On these points, the comments oI ProIessor Brownlie on the Report oI the Study Group
oI the British Institute oI International and Comparative Law are apposite: see Bowett
and others (eds.), The International Court of Justice: Process, Practice and Procedure,
at p. 105.
15 Cm 2705.
514 Chapter 29
decided not to depart unnecessarily Irom those Rules, which represent the accumu-
lated experience oI the judges who have served in the Hague. However, in several
places attempts were made to modernise the wording and in others to bring the Eng-
lish more into line with the French (which reads like the original version, possibly
going back to the 1920s in some instances).
The members oI the Tribunal are also aware oI the current debates upon the work-
ing methods oI the Hague Court. Note was taken oI the suggestions made by eminent
fgures, including Iormer and current members oI the Court, by the Study Group
oI the British Institute oI International and Comparative Law
16
composed of expe-
rienced Counsel and, last but not least, by ProIessor Highet.
17
It was decided, in
principle, to adopt several oI the suggestions, advanced by Iormer members oI the
Court and Counsel who have appeared beIore it, to improve the working methods
and procedures oI the Court. In order to achieve transparency in the conduct oI cases
about the meaning and eIIect oI the Convention and in order to permit the eIIective
operation oI the rules on intervention, the Tribunal decided to make written plead-
ings available promptly, that is to say, with very little delay aIter their receipt in
the Registry. In an eIIort to reduce the bulk oI annexes to written pleadings, public
documents need not be annexed iI copies are readily available to the other side and
the Tribunal. The Tribunal adopted a six months rule oI thumb, according to which
each pleading should be delivered within a maximum oI six months and the hearing
would Iollow within the same time-scale. The Statute gives the Tribunal the power
to 'prescribe interim measures oI protection, rather than to 'indicate them: in this
perspective, it is proposed to require parties to report on steps taken to comply with
prescribed measures. The Tribunal decided to require preliminary objections to be
made sooner rather than later, and not at the last possible moment. The Rules will be
complemented by Guidelines on written and oral proceedings.
Article 289 encourages the use oI scientifc or technical experts who may sit with
the judges but without a vote. Many issues to do with shipping, fshing, the seabed or
pollution have a marked scientifc or technical content. Boundary disputes are best
tackled with the assistance oI expert hydrographers or geographers or geodesists.
There is a case Ior making use readily oI Article 289, as in the Palena arbitration.
18
Technological advances permit the simplifcation oI certain aspects oI litigation.
Whilst the President may summon the agents oI the parties to meet at the seat oI the
Tribunal, there exists also the possibility oI video conIerencing or conIerence tel-
ephone calling. These techniques could be used, Ior example, to make second or third
contacts Iollowing an initial Iace to Iace meeting, or they may be convenient iI the
16 See Bowett et al. (eds.), The International Court of Justice: Process, Practice and Pro-
cedure (1997), containing the Report as well as papers by several judges.
17 In a paper entitled 'Problems in the Preparation and Presentation oI a Case Irom the point
oI view oI Counsel and oI the Court, 16 April 1996, read at an ICJ/UNITAR Colloquium
in the Hague.
18 Argentina-Chile Frontier Case, 38 ILR 10, where the Court presided over by Lord Mc-
Nair included also a geographer and a land surveyor. On the general issue, see G.White,
The Use of Experts by International Tribunals (1965).
dispute concerns states Iar removed Irom Hamburg, such as small island developing
states in the Pacifc region who may decide to appoint agents resident in the respec-
tive capitals. Whilst the Registry will require a minimum number oI copies oI written
pleadings, the submission oI a diskette would permit the reproduction oI copies, eg to
satisIy requests Irom interested governments or members oI the public.
VII Internal Judicial Practice
The internal judicial practices oI international and European courts vary markedly,
especially as regards the conduct oI their deliberations, the disclosure oI individual
opinions and the Iorm oI decisions. In the International Court oI Justice, the practice
is Ior all fIteen or seventeen judges sitting to hear a particular case to prepare detailed
notes giving their considered opinions on the key issues identifed by the Court at
the end oI the oral hearings. These initial notes together total hundreds oI pages and
may become the Iocus oI debate in the deliberations. AIter private deliberation, the
President is able to Iorm a draIting committee to put together the draIt judgment. In
practice, this is oIten a majority rather than unanimous decision All judges take part
in the discussion oI the draIt judgment, including those who are about to dissent Irom
its terms or add a separate opinion. The votes oI judges are recorded and dissents and
separate opinions are accepted. Dissents and separate opinions may, on occasion, be
discursive.
19
The European Court oI Justice has a diIIerent system. The Court, Ior each case, is
composed oI both judges and an Advocate General: the latter puts Iorward his or her
view on the issues Iollowing the close oI the hearing, beIore the judges deliberate.
The Court appoints a juge rapporteur who has the task oI preparing a document Ior
the deliberations oI the Court. This document plays a major role in the discussions
and each juge rapporteur is no doubt especially infuential in the particular case. The
Court does not give a record oI the voting, nor does it allow separate or dissenting
opinions. There is a single judgment which, whilst it may bear the marks oI compro-
mise, does not openly admit to compromise. All judges take part in the discussion oI
the draIt judgment, even those opposed to the decision.
20
In the case oI the European Court oI Human Rights, the hearing oI cases has been
Iacilitated until now by the Report oI the European Commission oI Human Rights.
When a Report has come beIore the Court and aIter the closure oI the oral proceed-
ings, the President leads the deliberations and identifes where the weight oI opinion
lies. The Registrar may assist a draIting committee in producing a decision. The Court
produces relatively short judgments which, having stated the relevant Iacts, discuss
the issues under the relevant articles oI the European Convention on Human Rights.
The Court gives the voting fgures on each part oI its decision and permits separate
19 For a description oI the practice, see Report oI the Study Group, In. 11 above, p. 27.
20 Judge D. Edward, 'How the Court oI Justice Works, in 20 European Law Review, p. 539
(1995).
516 Chapter 29
and dissenting opinions. The latter are nearly always short and reIer directly to the
point or points in the judgment which the dissenting minority does not share.
21
The International Court oI Justice and the European Court oI Justice usually allow
two rounds oI written pleadings. The Iormer gives generous time limits and plead-
ings tend to be extensive. The two European Courts limit the time given to each side
in oral argument. The Hague Court, perhaps on account oI the diIIerent nature oI its
cases, generally does not. All three Courts tend to listen until the end beIore posing
(relatively Iew) questions. International (as opposed to European) courts tend not
direct the hearings, possibly on account oI their collegial nature and their understand-
able wish to avoid giving the impression oI prejudgment oI issues.
VIII Concluding Observations
Since 1 October 1996, the world has had another standing tribunal applying rules oI
international law. Leaving aside the recent Yugoslav and Rwanda tribunals, as well
as the panels set up by the World Trade Organisation, the Tribunal represents the
frst world-wide court set up specifcally to deal with a major part oI international
law since the establishment oI the ICJ fIty years ago. Some commentators have
questioned the wisdom oI creating such a new court in the United Nations Iamily
alongside the International Court oI Justice, which is (and which will remain) the
principal judicial organ oI the United Nations.
22
Fears have been expressed about the
possible 'Iragmentation oI the jurisprudence. However, there has long been ad hoc
arbitration alongside the Permanent Court oI International Justice and the present
World Court.
23
There is no evidence oI inconsistencies: decisions oI the Court are
sometimes the subject oI scholarly criticism, as are those oI arbitral tribunals. The
Iears oI inconsistent decisions may prove to be exaggerated. Certainly, the Tribunal
should be on its guard against departing unnecessarily Irom the corpus oI existing
case law, whether it be a decision by the Hague Court or one given by an arbitral
tribunal. At the same time, its primary task will be to apply the Convention oI 1982
which introduced many novelties into the law.
The Tribunal will no doubt establish its own pattern and working methods. It is
likely to be diIIerent Irom other standing international and European Courts and ad
hoc arbitral tribunals. This may be no bad thing: it should not live in the shadow oI
any existing institution. The Tribunal is adopting its own persona or style, based on a
modern, business-like approach. The Tribunal should be seen not so much as a rival
Ior the International Court oI Justice, but rather as an alternative or complementary
body. II States Parties have confdence in its membership and its working methods,
they may choose to use it in appropriate circumstances. In that perspective, the Tri-
bunal could strengthen the administration oI international justice and thereby the
international rule oI law. Although its appearance on the international stage may be
21 P. Mahoney, 'Developments in the Procedure oI the European Court oI Human Rights:
the Revised Rules oI Court, 3 Yearbook of European Law (1984), p. 127.
22 E. Lauterpacht, Aspects of the Administration of International Justice (1991) p. 21.
23 A point made by J. Charney, 90 AJIL (1996) p. 69.
seen by some commentators to have increased the scope oI the institutional dilemma,
others may see the Tribunal as having increased the range oI choice open to would-
be litigants. Freedom oI choice amongst a range oI options is widely regarded as a
good thing.
Chapter 30
The Early Practice of the International Tribunal for the
Law of the Sea*
I Some Formative Inuences upon the Tribunal
From the perspective oI 2003, that is to say with the Iull beneft oI hindsight, I would
identiIy Iour signifcant infuences, two Iormal and two circumstantial, which have
done much to shape the practice oI the Tribunal since its Iormation in 1996.
The principal Iormal infuence was, not surprisingly, the Convention. The terms oI
the Convention (including its Annex VI, the Statute oI the Tribunal) governed both
the Tribunal`s organization (where the model was the Statute oI the International
Court oI Justice
1
) and its jurisdiction. The Tribunal and its Seabed Disputes Chamber
were to exercise wide jurisdiction ratione personae over not only the States Parties
(which might include a body such as the European Community) and international
organizations such as the International Seabed Authority, but also mining consortia in
the private sector. Again, article 292 permitted an application for the prompt release
oI a vessel to be made 'on behalI oI a State Party to the Convention in practice,
by the private sector company owning the vessel. In other words, some litigants be-
Iore the Tribunal would be non-sovereign entities, possibly engaged in disputes with
States Parties or the Authority.
* First published in Frowein et al. (eds.), Verhandeln fr Frieden / Negotiating Ior Peace,
Liber Amicorum Tono Eitel (2003) 529-542. Some editorial changes have been made.
1 HereinaIter 'the Court.
520 Chapter 30
Furthermore, there was a perception that the terms oI Part XV contained the gen-
eral rule oI compulsory jurisdiction (article 286), albeit one which was subject to
some limitations contained in section 1 oI Part XV and to some exceptions in section
3. The members oI the Tribunal were aware, in many instances Irom direct personal
experience,
2
that the outcome oI the debates at the ConIerence had been an advance
over the solution reached at the Geneva ConIerence on the Law oI the Sea oI 1958.
3
Subject to some qualifcations, purely optional procedures had given way to compul-
sory ones, and this change represented part oI a negotiated solution at the global level
to many important issues oI substance. This element in the 'package deal marked
something oI a new start in legal relations between East and West, as well as North
and South. To adopt the well-known analogy, the starting point was a jurisdictional
glass which was to be seen as 'halI-Iull, rather than the perception oI a glass which
was 'halI-empty.
4
This positive perception was strengthened by the inclusion oI
provisions conIerring compulsory jurisdiction on the Tribunal in the matters oI provi-
sional measures (article 290) and the prompt release oI vessels (article 292) in certain
defned circumstances, as well as the compulsory jurisdiction oI the Seabed Disputes
Chamber in article 187. The terms oI the Convention, especially the jurisdictional
provisions, strengthened the confdence oI the Tribunal as it commenced its work.
The second Iormal infuence was, somewhat unexpectedly, a provision in the Im-
plementation Agreement oI 1994. Although this Agreement related almost exclusive-
ly to Part XI, one provision applied equally to the Tribunal: according to section 1 oI
the Annex to the Agreement,
In order to minimize costs to States Parties, all organs and subsidiary bodies to be estab-
lished under the Convention and this Agreement shall be cost-eIIective.
As I will attempt to show in reviewing some oI the practice, the Tribunal, as an organ
established under the Convention, has taken account oI this requirement in several
ways in its Rules and in its practice.
Turning to the circumstantial infuences, a signifcant one was the great sense oI
support extended to the Tribunal as a new institution by the States Parties to the
Convention, by the Host Country, by members oI the United Nations (UN) and by
its Secretary-General. A certain Ieeling oI relieI was Ielt around the world aIter the
successIul conclusion oI the Secretary-General`s consultations and the Convention`s
2 Another leading participant in the negotiations, ProIessor Oxman, has written in similar
terms: AJIL 95 (2001), 277, at 285 et seq.
3 And the limited advance in the Vienna Convention on the Law oI Treaties, 1969.
4 The majority in the Arbitration Tribunal in the Southern Bluefin Tuna case may have
adopted the latter approach in that, having reviewed the 'important limitations and quali-
fcations in articles 297 to 299, they concluded that the Convention Iell 'signifcantly
short oI establishing a truly comprehensive regime oI compulsory jurisdiction .: see
ILM 39 (2000), 1359 et seq., at 1390, para. 62.
521 The Early Practice in the International Tribunal for the Law of the Sea
entry into Iorce. In 1996, a completely new court was created Irom scratch,
5
follow-
ing a lengthy period oI uncertainty. Like the Disputes Settlement Procedures oI the
World Trade Organization and the European Court oI Human Rights, the Tribunal
was charged with the settlement oI disputes concerning a particular treaty regime.
The Tribunal was quickly graIted on to the wider UN 'Family through the grant oI
observer status at the UN General Assembly and the conclusion oI relationship agree-
ments with the UN and other relevant international organizations.
6
The Tribunal began liIe with a large Iund oI goodwill and its early years were
marked with Iurther material support. Germany generously provided the Tribunal
and its Iuture clients with temporary premises and then, aIter Iour years construction,
a new, purpose-built court house in Hamburg.
7
The Iacilities are extensive and up-
to-date. The judges and the members oI the Registry are well-housed. Litigants have
their own suites oI oIfces and, in court, they are able to display texts on screens and
show videos with little or no diIfculty. The States Parties, Ior their part, agreed in the
early annual budgets to equip the premises with the latest technology. As a result, the
Tribunal has been able to develop its own website,
8
whilst members oI the registry
and the judges share a computer network. The UN General Assembly has reIerred to
the Tribunal`s 'important role and authority concerning the interpretation and appli-
cation oI the Convention and the Agreement . and has established a Trust Fund to
assist States in the settlement oI disputes through the Tribunal.
9
Many contributions
in cash and in kind were made to the new Library by Governments, institutions
and individuals around the world, including both parties and non-parties to the Con-
vention. The members oI the Tribunal gained strength Irom all these tangible expres-
sions oI international support.
A second circumstantial infuence was the debate which was taking place, by pure
coincidence, in the mid-1990s about the working methods and procedures oI the
Court. In considering the draIt Rules oI the Tribunal, its members were aware oI
suggestions advanced at that juncture by some practitioners beIore the Court and
5 In a sense, this was the frst totally new world-wide court since the establishment oI the
Permanent Court oI International Justice in 1922: Ior an account oI the history oI the
latter Irom a British perspective, see L. Lloyd, Peace through Law-Britain and the Inter-
national Court in the 1920s (1997). The present Court was set up in 1946 as the successor
oI the Permanent Court. The Iunctional continuity is described in S. Rosenne, The Law
and Practice of the International Court, Vol. I (1997), Ch. 2.
6 Details are to be Iound in the recent Yearbooks oI the Tribunal.
7 From 1996 to 2000, the Tribunal occupied temporary premises in the Wexstrasse. For its
frst hearings, the Great Hall oI the Rathaus was used. Since 2000, the Tribunal has oc-
cupied two buildings, with grounds, situated on the Elbchaussee overlooking the River
Elbe, pursuant to a premises agreement with the host country.
8 The URLs are www.itlos.org and www.tidm.org.
9 GA Resolution 55/7 oI 30 October 2000, paras. 7 and 9 and Annex I (see Ch. 35 be-
low).
522 Chapter 30
designed to improve and speed up the handling oI cases.
10
Starting with something
oI a clean sheet, there was a natural tendency to Iollow the best procedures and
practices, together with soundly-based new ideas, and to avoid repeating less happy
experiences.
To sum up, the members oI the Tribunal responded to these Iour infuences by
seeking to adopt a modern, business-like approach to their work, drawing inspira-
tion Irom the best practice in existing international courts and tribunals, as well as
regional courts such as the European Court oI Human Rights and national jurisdic-
tions. They quickly developed a strong collegial spirit as they shouldered the great
responsibility conIerred on them by the States Parties when electing them. At the
same time, they were not over-awed by the sovereignty oI the States which might
appear beIore them: litigants were not encouraged to expect undue deIerence on ac-
count oI sovereignty. AIter all, the over-riding principle must be the equality oI the
parties to a case beIore the Tribunal, irrespective oI their status, whether sovereign
or non-sovereign.
11
The spirit oI the age was one oI seeking greater eIfciency, based
on new technology, in all aspects oI international relations. In the particular matter oI
the law of the sea, the entry into force of the Convention
12
had marked a watershed at
the end oI the Twentieth Century.
II The Early Practice of the Tribunal
13
The practice oI the Tribunal has been shaped by some early decisions contained in its
Rules, its Resolution on Internal Judicial Practice and its Guidelines.
14
10 For instance, the study entitled 'The International Court oI Justice: Process, Practice and
Procedure by the British Institute oI International and Comparative Law was published
in 1997, when the Tribunal was considering its Rules, Guidelines and Resolution on
Internal Judicial Practice.
11 The general principles oI law in judicial proceedings have been reviewed by Bin Cheng
in Part Four oI his General Principles of Law, as applied by International Courts and
Tribunals (1993).
12 Coupled with the two Implementation Agreements on Part XI and on Straddling and
Highly Migratory Fish Stocks.
13 Annual Surveys oI matters connected with the Tribunal have been written by S. Rosenne
and later by V. Lowe: see volume 14 (1999) oI the International Journal of Marine and
Coastal Law at 487 and later volumes. For a survey oI the frst six years, see P. Chan-
drasekhara Rao, in Max Planck Yearbook of United Nations Law 6 (2002) 183.
14 ITLOS: Basic Documents: Textes de Base 1998 (see now the expanded edition dated
2005). For comments on the Rules, the Resolution and the Guidelines, see papers by T.
Treves, D. Anderson and P. Chandrasekhara Rao, respectively, in P. Chandrasekhara Rao
and R. Khan (eds.), The International Tribunal for the Law of the Sea (2001), as well
as Judge G. Eiriksson`s monograph The International Tribunal for the Law of the Sea
(2000).
A good starting point Ior any survey oI the practice is to be Iound in article 49
oI the Rules which reads: 'The proceedings beIore the Tribunal shall be conducted
without unnecessary delay or expense.
15
In Rule 49, the Tribunal declared its general policy to administer justice in an
eIfcient manner so as to avoid unnecessary expense Ior the litigants and the States
Parties, as well as unnecessary delays. A judicial organ may pursue a general policy
oI this nature, but it must, oI course, remain ever-IaithIul to the over-riding duty to
conduct itselI as a judicial body a point to which I will return.
The general principle set out in article 49 fnds particular expression in several oth-
er rules. Thus, Rule 50 provides that the Tribunal may issue Guidelines concerning
the conduct oI proceedings, including the length oI pleadings and the use oI electron-
ic means oI communication. The Tribunal in Iact issued some detailed Guidelines
16
at the same time as it adopted the Rules. These Guidelines encourage the use oI Iax
and email Ior the submission oI written pleadings, together with the usual hard copies
submitted in slightly slower time. In practice, when addressing urgent applications,
great use is made oI email and to a lesser extent Iax not only by the parties but also by
the Registry and the judges. A Iurther example is Rule 45 which provides that, as an
alternative to summoning the agents to Hamburg, the President may use 'appropriate
means oI communication in order to ascertain the views oI the parties with regard to
questions oI procedure. When the Agents oI the parties are not present in Hamburg,
the President uses three-way telephone consultations. Video-conIerencing could be
used in the Iuture. Bearing in mind that most States Parties are situated outside Eu-
rope, a teleconIerence may save some long journeys, time and expense.
In the matter oI time limits, Rule 46 states the general principle that they 'shall be
as short as the character oI the case permits. In regard to a normal, non-urgent case,
the Tribunal adopted the standard oI a maximum oI six months Ior each stage in the
proceedings.
17
Thus, Rule 59 provides that The time limits Ior each pleading shall
not exceed six months. In the same vein, Rule 69 provides that the oral proceedings
are to start within six months oI the closure oI the written pleadings.
In the event, these Rules have been applied in their standard Iorm only in a minor-
ity oI the cases entered on the Tribunal`s List oI Cases. The great majority oI Applica-
tions have been ones oI an urgent nature, notably applications Ior the prompt release
oI a vessel and its crew under article 292 and applications Ior provisional measures
under article 290, to both oI which special provisions apply.
18
In regard to applica-
tions Ior prompt release, in particular, the Convention indicates a situation oI extreme
urgency in laying down a time-limit oI ten days in article 292(1). In that spirit, Rules
111 and 112 as originally adopted in 1997 provided that the Statement in Response
should be fled no later than 24 hours beIore the hearing, that the hearing should start
15 Ibid., 35.
16 Ibid., 78.
17 This suggestion was made by K. Highet in a paper, read at a seminar held in 1997 by the
Court and UNITAR, entitled 'Problems in the Preparation and Presentation oI a case.
18 Provisional Measures are dealt with in Rules 89 to 95 and applications Ior prompt release
in Rules 111 to 114.
524 Chapter 30
not later than ten days aIter receipt oI the Application, and that the decision should be
given not later than ten days aIter the end oI the hearing. In the Saiga Case (1997), the
Camouco Case (2000) and the Monte Confurco Case (2000), lengthy written plead-
ings together with extensive documentary annexes were submitted by both parties. In
accordance with Rule 43, the Tribunal works in two oIfcial languages English and
French with the result that the Registry was Iaced on each occasion with a major
task oI translation against a very tight deadline. In practice, there was scarcely time
between the receipt oI the Statement in Response and the start oI the oral proceedings
Ior the Respondent and the judges to do more than read through the Statement once,
usually overnight. Moreover, despite the narrowness oI the issue oI release, the ap-
plications gave rise, nonetheless, to complex questions concerning the interpretation
oI articles 73 and 292, as well as the Tribunal`s jurisdiction.
In 2001, the Tribunal reviewed the question oI procedure in prompt release cases
in the light oI experience and decided to adjust those three time-limits. The 24 hour
limit was increased to 96 hours in order to give both the Applicant and the judges
more time to peruse the Statement in Response, in its original and translated ver-
sions, beIore the hearing began. The hearing was to be held within 15 days oI receipt
oI the Application and, in order to give just a little more time Ior the deliberations
and the draIting oI the Judgment, the decision was to be given within 14 days aIter
the hearing.
19
In making these changes, the Tribunal acted to ensure procedural Iair-
ness between the parties and to saIeguard the integrity oI the judicial process in what
are still summary proceedings. As indicated above, while cases should be dealt with
without unnecessary delay, a certain minimum time is always required by a judicial
body in order to perIorm its tasks in a proper manner, especially in the case oI a col-
legial body as large as the Tribunal working always in two languages.
Another type oI time-limit is contained in Rule 97 dealing with the question oI
preliminary objections. Objections to the jurisdiction oI the Tribunal or the admis-
sibility oI an application must be made within 90 days Irom the institution oI the
proceedings. This rule was intended to ensure that proceedings were not drawn out
too much and, in particular, that the Respondent could not make a preliminary objec-
tion at a rather late stage which could hardly be regarded as 'preliminary in point
oI time. This is another example oI the infuence oI the requirement oI eIIectiveness
contained in the Implementation Agreement oI 1994.
When it was adopted in 1997, the time-limit in Rule 97 contrasted sharply with
the equivalent rule oI the Court, namely article 79 oI the Rules as adopted in 1978.
The latter rule allowed objections to be made as late as the date fxed Ior delivery oI
the Counter-Memorial, which could be well over a year even two years Irom the
institution oI the proceedings. Some Respondents did make objections only at the
latest possible stage, leading to the suspicion that advantage was being taken oI un-
demanding time-limits or even that 'delaying tactics were being used. Interestingly,
in December 2000, the Court amended article 79 oI its Rules and replaced the unde-
manding time-limit Ior the submission oI preliminary objections with a rather shorter
one, namely 'as soon as possible and not later than three months aIter the delivery
19 ITLOS Press Release No. 44, oI 21 March 2001.
oI the Memorial. Moreover, a new paragraph was added empowering the Court, on
the basis oI the Application and the outcome oI the President`s consultations with
the Agents oI the Parties, to decide to set aside even this new time-limit and to call
instead Ior the immediate submission oI pleadings on questions oI jurisdiction and
admissibility, separate Irom the merits.
20
As a result, the time-limits in the Court in
this regard are now as demanding as those in the Tribunal.
In an interesting survey oI the several ways in which the Court has reacted to the
twin phenomena oI globalization and the proliIeration oI international courts and tri-
bunals, Judge Higgins
21
has drawn attention to the tensions between the Court`s need
to respect the sovereign status oI each party, on the one hand, and to administer jus-
tice eIfciently, on the other. In this regard, she gave the example oI oral proceedings
where a balance has to be maintained between the litigants` wish to have all the time
in the world Ior advancing their arguments and the Court`s need to give a decision
in a reasonable time. In the case oI the Tribunal, its Resolution on Internal Judicial
Practice
22
provides that the deliberations commence during the period between the
closure oI the written proceedings and the opening oI the oral proceedings and that
a document be prepared listing points to be put to the parties on the basis oI their
written pleadings.
23
The judges in Hamburg deliberate in order to identiIy points on
which more inIormation or argument is required, points which are then passed to
the agents by the President beIore the start oI the hearings. Agents and counsel are
then Iree either to address these points in the course oI their argument or to submit
answers in writing to the Registrar. The Tribunal`s Guidelines require each party to
submit a skeleton outline oI its arguments prior to the opening oI the hearing and
to keep within the time allotted Ior the presentation oI oral statements.
24
As a result
oI these arrangements, coupled with the Iact that most hearings have been held on
urgent Applications, hearings beIore the Tribunal have been strictly controlled by the
President Irom the outset. For example, one party has been told it could not call a
particular witness on the grounds that his evidence was not suIfciently germane to
20 Rule 79 oI the Rules oI Court, as adopted on 14 April 1978 and amended on 5 Decem-
ber 2000, available on the Court`s excellent website. In addition, Practice Direction V
lays down a standard oI Iour months Ior the delivery oI the written observations oI the
Applicant upon the Respondent`s Preliminary Objections. For comment on the Practice
Directions, see A. Watts, The Law and Practice of International Courts and Tribunals 1
(2002), 247.
21 R. Higgins, 'Respecting Sovereignty oI States and Running a Tight Courtroom, ICLQ
50 (2001), 121.
22 ITLOS Basic Documents: Textes de Base 1998, 71.
23 Article 3 oI the Resolution. For comment on practice, see my note, Deliberations, Judg-
ments and Separate Opinions in the Practice oI the ITLOS, in: M.H. Nordquist and N.
Moore (eds.), Current Marine Environmental Issues and the International Tribunal for
the Law of the Sea (2001).
24 Paras. 14 to 16 oI the Guidelines.
526 Chapter 30
the issues,
25
and counsel, however eminent, on both sides have routinely been limited
in the length oI time available to them.
The requirement contained in the Implementation Agreement that the Tribunal
should be cost-eIIective has been taken, with other Iactors, to mean that the members
and staII oI the Tribunal should be prepared to work long hours on cases. According
to the Guidelines,
26
the normal hours Ior sittings are 9 am to 1 p.m. However, the
actual experience has been diIIerent. The Tribunal has normally held sittings in both
the morning and the aIternoon, and the Tribunal did so in one case Ior six days a
week over two consecutive weeks.
27
Whilst deliberating in urgent cases, the Tribunal
holds meetings seven days a week or, to put it another way, every day Ior a period oI
over two weeks. Deliberations oIten include night meetings. Such working patterns
are unusual in my experience, except perhaps in the case oI the UN Security Council
when faced with a crisis, and they can lead to stress.
Reverting to the Tribunal`s Rules, two other provisions are worthy oI note in the
general context oI the eIfcient administration oI justice. They concern, frst, access to
written pleadings in relation to intervention, and, secondly, reporting on steps taken
to ensure compliance with provisional measures.
First, article 67 provides that, unless it is otherwise decided in a particular case,
copies oI the written pleadings in cases beIore the Tribunal are to be made available
on request to other States Parties and entities entitled to appear beIore the Tribunal.
This Iacility helps to ensure transparency: in particular, it enables other States Parties
with a potential interest in a case to assess the precise nature and scope oI the issues
at stake and to decide whether or not to seek to intervene under article 31 or 32 oI
the Statute oI the Tribunal.
28
Every State Party has a general interest in the manner
in which the Convention is interpreted and applied by all courts and tribunals acting
under the terms oI the Convention.
29
(This thinking also underlies Rule 99(3) which
does not impose stringent jurisdictional conditions on a State Party applying to inter-
vene.) Rule 67 aims to ensure that the possibility oI intervening under article 32 is not
rendered illusory in practice by the unavailability oI precise inIormation on which to
take a decision. In other words, article 67 is directed towards ensuring the eIIective-
ness oI the right to intervene conIerred on States Parties by article 32 oI the Statute.
Secondly, article 95 requires each party to a case to report to the Tribunal upon its
compliance with any provisional measures prescribed under article 290 oI the Con-
vention. Provisional measures in this context are intended either to preserve the rights
25 President Mensah in the M/V Saiga (Prompt Release) case: ITLOS Pleadings, etc 1997,
103.
26 Para. 17.
27 The merits oI the Saiga (No 2) case: ITLOS Reports 1999, 10.
28 Annex VI to the Convention: Basic Documents, 2. For a survey, see the Chapter by R.
WolIrum in: Chandrasekhara Rao and Khan (eds.), n. 19, at 161.
29 Intervention is not unusual in proceedings beIore other courts and tribunals which hear
disputes about the interpretation oI particular treaty regimes, such as the European Court
oI Human Rights: see Winterwerp case (1979) and the subsequent revision oI the Rules
with eIIect Irom 1 January 1983 allowing Ior intervention.
oI the parties or to prevent serious harm to the marine environment, pending the fnal
decision on the dispute. Article 290 makes clear that, in principle, provisional meas-
ures prescribed by a court or tribunal under its terms can be cast in terms which are
binding and are to be complied with promptly by the parties concerned.
30
In article 95
oI its Rules, the Tribunal calls Ior initial reports to be submitted to the Registrar on
steps taken or proposed in order to ensure prompt compliance with prescribed meas-
ures. The Tribunal also signifes in paragraph 2 oI article 95 a continuing concern
with questions oI compliance. These elements should help to ensure that provisional
measures are complied with in the exceptional circumstances in which they may be
prescribed. Article 95, in other words, helps to ensure the eIIectiveness oI article 290
so Iar as the Tribunal is concerned. In two cases in which the Tribunal has prescribed
provisional measures in exercise oI its powers in paragraph 5 oI article 290, detailed
reports were submitted by the parties on the steps taken.
The closing years oI the Twentieth Century saw several positive developments in
international relations. These included, notably, the end oI the 'Cold War and the
reunifcation oI Germany. OI particular interest to diplomatists and international
lawyers was the signifcant growth or proliIeration in the number oI international
courts and tribunals charged with the settlement oI disputes on the basis oI law. Ar-
rangements Ior the protection oI human rights and international investments and Ior
the regulation oI international trade had already led to a similar proliIeration in the
types oI litigants as the reach and scope oI international law widened. The world no
longer had a single type oI litigant and a single permanent court. In my view, these
developments the expanded scope oI the written law and the creation oI specialized
courts and tribunals to apply it together strengthened the rule oI law in international
relations.
31
The entry into Iorce oI the Convention and the establishment oI the Tri-
bunal Iormed part oI these developments. This period also witnessed rapid advances
in technology and communication, such as the widespread use oI the Internet and
exchanges by frst Iacsimile and then email. The members oI the Tribunal tried to be
responsive to the new spirit of the times, whilst also accepting the experience of the
past and the imperatives oI the judicial process. The model oI the Court was Iollowed
30 The controversy surrounding the question oI the legal nature oI interim measures indi-
cated by the International Court oI Justice in accordance with the terms oI its Statute was
resolved by the decision oI the Court oI 27 June 2001 in the LeGrand Case (Germany v.
United States), ICJ Reports 2001.
31 As J. Charney demonstrated (notably in an editorial, 90 AJIL (1996), 69, and in lectures
at Hague Recueil 271 (1998), 101), Iears oI proliIeration were greatly exaggerated. Some
remedies advanced to tackle the perceived problem had their own severe drawbacks. The
main requirement is an appropriate degree oI respect on the part oI each international
court or tribunal Ior the decisions and fndings oI other similar bodies, an approach also
advocated by Judge Higgins, 'The ICJ, the ECJ and the Integrity oI International Law,
ICLQ 52 (2003), 1, 19.
528 Chapter 30
in many ways, especially on matters oI practice and procedure, but the need Ior some
procedural changes was indicated not only by the Convention and its Implementation
Agreement but also by the possibilities oIIered by new technologies and the percep-
tion that cases were taking too long to resolve in The Hague.
All these diIIerent Iactors have combined to shape the Tribunal as a cost-eIIective,
modern judicial body that is Iully equipped to meet the challenges oI the Twenty-
First Century.
Chapter 31
The Internal Judicial Practice of the International
Tribunal for the Law of the Sea*
The International Tribunal Ior the Law oI the Sea ('the Tribunal) was constituted
by the United Nations Convention on the Law oI the Sea ('the Convention): Annex
VI to the Convention sets out the Statute oI the Tribunal ('the Statute). The initial
members oI the Tribunal were elected on 1 August 1996 and took up their duties
two months later. As a new and autonomous institution, the Tribunal spent the frst
year oI its existence dealing with numerous organisational matters. In particular, the
members oI the Tribunal, assisted by the staII oI the Registry, elaborated three texts
governing the organisation oI the institution and the handling oI cases coming be-
Iore the Tribunal, namely, the Rules of the Tribunal, the Guidelines concerning the
Preparation and Presentation of Cases before the Tribunal and the Resolution on the
Internal Judicial Practice of the Tribunal, which were all adopted in October 1997.
These texts, which have been published in the compilation oI the Tribunal`s 'Ba-
sic Texts(1998),
1
expand upon the relevant provisions oI the Convention, including
the Statute, and together they represent essential tools Ior the work oI the Tribunal.
* This chapter was frst published in P. Chandrasekhara Rao and R. Khan (eds.), The Inter-
national Tribunal for the Law of the Sea Law and Practice (2001), pp. 197-214. Apart
Irom In. 1, it has not been updated apart Irom the number oI parties to the LOS Conven-
tion.
1 International Tribunal for the Law of the Sea, Basic Texts (1998) Kluwer Law Interna-
tional, 1999; see now Basic Texts (2005), Martinus NijhoII Publishers, 2005. As to the
Rules, see the chapter by Judge Treves in Chandrasekhara Rao and Khan (eds.), The
530 Chapter 31
There is much material oI interest to scholars, diplomats and legal practitioners in
all three oI the Tribunal`s basic texts. The aim oI the present chapter is confned to
describing the judicial deliberations oI the Tribunal by reIerence to the terms oI its
Statute and the Resolution on its Internal Judicial Practice. The early experience oI
the Tribunal in applying these provisions will also be noted. To date, the Tribunal has
deliberated in fve instances: two judgments have been delivered under article 292 oI
the Convention (Prompt release oI vessels and crews), two Orders have been made
Ior provisional measures under article 290 and one judgment on the merits has been
given. Apart Irom the deliberations on the merits oI the Saiga (No. 2) case, all the
deliberations have related to urgent matters.
2
I Some Relevant Factors concerning the Tribunal and its Working Methods
The Tribunal is charged with the task oI deciding disputes about the interpretation
and application oI the Convention and related texts. In other words, the Tribunal
provides a service which is available, primarily but not exclusively, to the States Par-
ties to the Convention. Governments which submit a dispute to an international court
or tribunal expect the case to receive the most careIul and thorough attention Irom
the judges. They expect the proceedings to be conducted with all due deliberation
and dignity. They expect all their arguments to be considered on their merits and ap-
propriate account to be taken oI their arguments in a Iully reasoned decision.
3
These
considerations aIIect most obviously the conduct oI the written and oral proceed-
ings, but they are relevant also in regard to the methods oI deliberating and draIting
judgments and orders. As has been well stated, 'the draIting oI a judgment is a very
delicate task, Ior it must, with great prudence, refect the consensus oI the majority
and it must do so clearly, simply and unambiguously.
4
The judgment should also be
couched in terms which indicate to the parties that all their contentions advanced in
both the written and the oral proceedings were considered by the judges beIore they
reached their decision in the case.
It may be recalled that the members oI the Tribunal are elected by the States Par-
ties to the Convention, a two-thirds majority being required to secure election. (The
International Tribunal for the Law of the Sea Law and Practice (2001); and as to the
Guidelines, see the chapter by Judge P. Chandrasekhara Rao in the same work.
2 The deliberations have preceded the Iollowing:
Judgment oI 4 December 1997 in the Saiga Case (Prompt release);
Order oI 11 March 1998 in the Saiga (No. 2) Case (Provisional Measures);
Judgment oI 1 July 1999 in the Saiga (No. 2) Case (Merits);
Order oI 27 August 1999 in the Southern Bluefn Tuna Cases (Provisional Meas-
ures); and
Judgment oI 7 February 2000 in the Camouco Case (Prompt release).
3 A point made by ProIessor Brownlie in commenting upon the Report on The Interna-
tional Court oI Justice, In. 14 below, at p. 106.
4 Per Judge Castro, 'Appeal relating to the Jurisdiction oI the ICAO Council, ICJ Reports
1972, p. 116.
531 The Internal Judicial Practice of the International Tribunal for the Law of the Sea
number oI States Parties at the time oI writing is 133.
5
) The regional pattern adopted
Ior the purposes oI the frst election ensured that there were fve judges Irom AIrica,
fve Irom Asia, Iour Irom Latin America and the Caribbean, Iour Irom the Group oI
Western European and other States and three Irom Eastern Europe. As a result, the
Tribunal is a judicial body which is representative oI the principal legal systems in
the world. Its membership also represents a broad cross-section oI experience and
opinion on legal matters pertaining to the seas and oceans. It is vitally important,
thereIore, that beIore any decision is reached in a case coming beIore the Tribunal the
views oI all members Iorming the Bench can be expressed Iully. This consideration
holds true Ior all the separate issues arising in the case. It should be remembered that
the decision upon every single issue in a case could be oI great signifcance not only
Ior the parties but also Ior other States Parties to the Convention. Indeed, a decision
may also be oI relevance to States which have not become parties to the Convention
iI it infuences the practice oI states. In this connection, it has to be borne in mind also
that there is no right oI appeal Irom a decision oI the Tribunal. At the same time, the
Tribunal is a collegiate body
6
and its decisions gain strength in a general sense when
they are adopted by unanimity or a large majority. Although decisions are taken by
voting, the ideal is to reach a unanimous judgment or, Iailing that, one which com-
mands broad support. Instead oI 21 separate opinions, the aim is to reach and Iormu-
late a decision which receives general approbation Irom the members oI the Bench.
At the present stage, the President is the only member oI the Tribunal who re-
sides in Hamburg, the seat oI the Tribunal. The remaining judges reside elsewhere
and travel to Hamburg when there is business to consider. Although all incompatible
activities have been given up, as required by article 7 oI the Statute oI the Tribunal,
members are permitted to pursue other occupations such as teaching, it being under-
stood that the work oI the Tribunal must be accorded priority. Judges have to be avail-
able throughout the year to travel to Hamburg in order to hear urgent applications,
such as those made under article 290 or article 292 oI the Convention. In practice,
when there is a need to travel to the seat oI the Tribunal, it is Ior a specifed period oI
time, during which the judges and the staII oI the Registry work intensively.
A Iurther Iactor to be kept in mind is language. The Tribunal has two working
languages, English and French. This Iacilitates the presentation oI cases by parties,
since they have a choice between two widely used languages. The eIIect upon the
workings oI the Tribunal is, perhaps, greater than the outside observer may realise.
Working all the time in English and French means that all documents produced in one
language have to be translated (and in good time) into the other. Similarly, because
advocates may address oral arguments in either or both oI the working languages,
hearings must be held in courtrooms where there exist Iacilities Ior simultaneous in-
terpretation. The verbatim records oI hearings are produced in the original language
5 InIormation taken Irom the UN Website www.un.org/Depts/los last visited on 19 May
2000. The total had reached 152 by 15 November 2006.
6 A topic explored in relation to the International Court oI Justice in Sir Robert Jennings,
'The Collegiate Responsibility and Authority oI the International Court oI Justice, in
International Law at a Time of Perplexity: Essays in honour of Shabtai Rosenne (1989).
532 Chapter 31
or languages used by agents and counsel. Deliberations are also conducted in the two
working languages, with simultaneous interpretation oI oral debates. Written notes
prepared by judges Ior their colleagues in one language are translated by the Registry
into the other working language. Judgments and Orders are draIted in both working
languages, one oI which is specifed on a case-by-case basis as the authoritative text.
Exceptionally, the Tribunal`s judgment in the Saiga (No. 2) case and its order in the
Camouco Case have been equally authoritative in both English and French.
Finally, it has to be remembered that the Tribunal is a large body, as compared
with other international courts and tribunals. With 21 members, the Tribunal is sig-
nifcantly larger than the International Court oI Justice, which has 15 members. In
consequence, there is a particular need to ensure that the Tribunal`s internal operating
procedures are eIfcient, lest justice be delayed or achieved only at disproportionate
cost, which might well be the result were overly bureaucratic procedures to be Iol-
lowed. At the outset oI its work, the Tribunal took the decision that it should attempt
to administer justice Iairly and eIfciently, without unnecessary delay or expense.
7
These aims were kept in mind in drawing up the Resolution on the Internal Judicial
Practice oI the Tribunal.
II Some Precedents for Methods of Deliberating
In approaching the question oI possible working methods, it was noted that the terms
oI the Convention and the Statute (Annex VI) represented, in this respect, no more
than a broad Iramework which still allowed much room Ior choice amongst diIIerent
methods oI deliberating, including enough fexibility to permit the use oI more than
a single method. In other words, the Tribunal remained Iree to adopt its own work-
ing methods provided, oI course, they were consistent with its judicial nature and its
basic constitutional instruments. Many precedents were available. The question was:
which were the best precedents Ior the Tribunal to Iollow? AIter a preliminary dis-
cussion, the Tribunal accepted its President`s proposal that the present writer should
prepare a survey oI the precedents and oIIer suggestions, Ior discussion in depth once
the Rules had been adopted.
An examination oI the working methods oI other large Courts, including national
appellate or constitutional Courts (such as the Supreme Court oI the United States oI
America
8
which has nine members), regional Courts (such as the European
9
and the
Inter-American Courts oI Human Rights, as well as the European Court oI Justice
10
and the EFTA Court) and international courts and tribunals (such as the International
Court oI Justice) indicated that their working methods were remarkable Ior their
7 Article 49 oI the Rules reads: 'The proceedings beIore the Tribunal shall be conducted
without unnecessary delay or expense.
8 D. Karlen, 'The Supreme Court oI the United States, 11 ICLQ (1962), p. 976.
9 P. Mahoney, 'Developments in the Procedure oI the European Court oI Human Rights,
3 Yearbook of European Law (1984), p. 127.
10 D. Edward, 'How the European Court oI Justice Works, 20 European Law Review
(1995), p. 539.
diversity. No two oI those bodies Iollow the same practices and procedures. These
variations spring Irom their diIIerent jurisdiction and roles within their respective
legal orders. In some instances, Ior example, cases are submitted to a court only aIter
the completion oI previous proceedings which have usually clarifed questions oI Iact
and law and resulted in a judgment or the production oI a Report. That is not the case
with the Tribunal since applications are submitted to it directly by the parties. In the
European Court oI Justice, which has a very heavy caseload, the Court appoints Ior
each case one oI its members to act as the juge rapporteur. This judge studies the case
in detail and presents views to the Iull Bench Ior the case in the Iorm oI a report on
the issues Ior decision. It may be recalled that the Permanent Court oI International
Justice appointed a juge rapporteur in one oI its very frst cases, but then quickly
changed to the system of appointing a drafting committee.
11
In its study oI the precedents, the Tribunal noted that the European Court oI Hu-
man Rights in Strasbourg had developed a system oI provisional lists oI questions
to be posed to the parties during oral proceedings, as well as lists oI issues to be de-
cided, all on the basis oI the written pleadings in each case. These lists are discussed
by the judges beIore the oral proceedings. A second Ieature oI interest in the internal
procedures oI that Court is the holding oI deliberations shortly aIter the closure oI
the oral proceedings, at the end oI which the President is normally able to identiIy
a provisional majority and establish a draIting committee. Unlike the judges in the
International Court oI Justice, who prepare written notes as an important part oI the
process oI deliberation, the judges in Strasbourg concentrate on oral debate without
the prior preparation of written notes.
The survey oI diIIerent methods employed in diIIerent parts oI the world led to a
clear conclusion, namely, that the nearest analogous judicial body to the Tribunal was
the International Court oI Justice. It is a worldwide body, one oI the principal organs
oI the United Nations, and it applies the rules oI international law. The main legal
systems oI the world are represented by diIIerent judges on the Court. Its working
methods have evolved over the decades. These procedures, initially inspired by those
adopted by the Permanent Court oI International Justice, have been refned in the
light oI experience. The current working methods, laid down in a Resolution adopted
by the Court in 1976,
12
have been described by several judges oI the Court in articles
in learned journals.
13
The principal Ieature in a complicated or non-urgent case (or
phase oI a case) is the preparation by each member oI the Bench oI a written note
11 See Hudson, The Permanent Court of International Justice (1934), p. 511.
12 Resolution adopted on 12 April 1976. Acts and Documents oI the ICJ, pp. 164/165.
13 See, Ior example, Jennings, 'The Internal Judicial Practice oI the International Court, 59
British Yearbook of International Law (1988), p. 43; Lachs, 'Le Juge International a vis-
age decouvert (Les Opinions et le Vote), in Estudios de Derecho Internacional (Essays
in honour of Professor Miaja de la Muela), Vol II, (1979), p. 951; Bedjaoui, 'La Fabri-
cation` des Arrets de la Cour Internationale de Justice, in Melanges pour Michel Virally
(1991), p. 87; Shahabuddeen, Precedent in the World Court (1996); Higgins, 'Remedies
and the International Court oI Justice, in Evans (ed.), Remedies in International Law:
The Institutional Dilemma (1998), p. 1.
534 Chapter 31
giving an opinion upon every issue Ior decision in the case. The oral deliberations
take place once these notes, which may be extensive in complicated cases, have been
prepared, translated and perused by all judges. In recent months, certain aspects oI
the Court`s judicial practice have been the subject oI comment and suggestions Ior
changes, designed to reduce the total time taken by deliberations. These suggestions
have been made by some oI the leading practitioners beIore the Court, as well as by
some oI the judges themselves.
14
In particular, it has been suggested that the system
oI preparing written notes could be replaced by one based more upon well-prepared
oral debates around the table, similar to the practice used already in urgent cases such
as applications Ior interim measures oI protection. In April 1998, the Court revised
its working methods by dispensing with the written notes in suitable instances such
as preliminary objections.
15
In deciding upon its own internal judicial practice, the Tribunal was able to ben-
eft Irom the published accounts oI the procedures and practice oI the International
Court, including the various suggestions which have been advanced Ior improving
those procedures. In addition, some Ieatures oI the practice oI the European Court
oI Human Rights were instructive. The diIIerent procedures and practices oI other
multi-member courts and tribunals, mainly national or regional, were Iound upon
examination not to be oI great assistance.
III The Statute of the Tribunal and Its Rules
Whilst the Statute remains largely silent on the question oI judicial deliberations,
the Rules oI the Tribunal contain some basic principles which govern aspects oI the
internal judicial procedure. In the frst place, article 40 oI the Rules provides power
to make resolutions on the subject. Secondly, article 41 makes clear that the quorum
specifed in article 13 oI the Statute Ior meetings applies to all meetings, including
thereIore those meetings which amount to deliberations. Perhaps the most important
provision in the present context is that set out in article 42 oI the Rules, according to
which the deliberations oI the Tribunal take place in private and are to remain secret.
This guarantee oI confdentiality permits judges to speak Irankly and Iearlessly, even
if they may express opinions which differ from those they may have adopted in the
past or Irom well-known positions oI the states oI which they are nationals. Secrecy
extends also to any written notes prepared by judges Ior their colleagues, as well as
to draIts oI decisions. Secrecy serves to protect the integrity oI the judicial process
and the reputation oI the Tribunal. Judges have the opportunity to express their opin-
ions and reasoning in the context oI announcing their decisions. More specifcally,
their opinions may be incorporated in the judgments and orders oI the Tribunal or
their opinions may be set out in separate concurring or dissenting opinions appended
14 See, in particular, the Report oI a Study Group convened by the British Institute oI In-
ternational and Comparative Law, entitled The International Court of Justice: Process,
Practice and Procedure (1996).
15 ICJ Press Release No. 98/14 oI 6 April 1998. The Court is continuing to review its work-
ing methods.
to those judgments or orders. Each judge has the opportunity to state views on the
public record in the context oI the decision on a case. In writing articles and lecturing
about the law, restraint is the watchword. Finally in this brieI survey oI the relevant
Rules, it may be noted that article 68 provides Ior a private meeting oI the judges
between the closure oI the written pleadings and the opening oI the oral proceedings.
Clearly, article 68, which represents an innovation, had to be taken into account in
Iraming the Resolution.
IV The Resolution on the Internal Judicial Practice of the Tribunal
The Resolution was based on article 40 oI the Rules, which empowered the Tribunal
to adopt resolutions concerning its internal procedures. The Resolution consists oI a
very simple preamble Iollowed by 13 articles.
BeIore examining the various stages in the process oI deliberating, it may be help-
Iul to oIIer some general remarks about the nature and scope oI the procedures laid
down in the Resolution. First, it is clear that these arrangements are to a certain
degree provisional. They are intended to be applied in a cautious manner during the
initial years oI the Tribunal`s existence. Whilst the arrangements take account indi-
rectly oI the accumulated experience oI the International Court oI Justice, they depart
Irom that model in some signifcant ways. They also contain some novel provisions,
as will be described below. The Tribunal recognised that there could arise a need to
adjust the procedures in the Iuture, particularly as regards the new elements. Indeed,
this position is made clear in the Resolution`s fnal article which states expressly that
the arrangements may be reviewed at any time and revised in the light oI experience.
The Tribunal`s regular sessions provide good opportunities Ior such reviews.
Secondly, as regards the scope oI the arrangements, they are applicable in princi-
ple to all cases coming beIore the Tribunal, including cases submitted to its various
chambers. These are, at present, the Seabed Disputes Chamber, the Chamber oI Sum-
mary Procedure, the Chamber Ior Fisheries Disputes and the Chamber Ior Marine
Environment Disputes. Article 1(c) oI the Resolution has the eIIect oI applying its
terms to the Chambers, with the result that where the Resolution reIers, Ior example,
to 'the President this may mean the President oI the Tribunal or the President oI
one oI its Chambers, depending upon whether the case is beIore the Iull Tribunal or
a Chamber.
Thirdly, the standard procedures are to be applied with certain qualifcations in
particular types oI cases. These are urgent cases and summary cases. Thus, applica-
tions made under article 292 and applications Ior provisional measures oI protection
under article 290 oI the Convention are to be handled in such a way as to take ac-
count oI the urgency oI the case; and, in particular, the procedures may be varied in
such cases. So Iar, the majority oI the Tribunal`s deliberations have related to urgent
cases. The Tribunal has managed to act expeditiously and to give its decision in
good time by means oI working continuously Ior extended periods, notably in the
applications Ior prompt release brought in the Saiga and Camouco cases under article
292. Similarly, the procedures oI the Chamber oI Summary Procedure, including its
deliberations, are to take account both oI the summary nature oI the proceedings and
536 Chapter 31
the urgency oI the case. In addition to the possibility oI varying the procedures in the
cases mentioned above, the Tribunal has retained its general power to vary the nor-
mal procedures and arrangements in a particular case iI the circumstances indicate a
need. The relevant part oI the Resolution is article 11.
Fourthly, the standard arrangements are intended to be applicable not only to con-
tentious cases but also to any advisory opinions which may be requested Irom the
Seabed Disputes Chamber or the Tribunal in accordance with the Rules. This is the
eIIect oI article 12 oI the Resolution.
Finally, the role to be played in deliberations by an expert appointed under Article
289 oI the Convention is clarifed in article 10 oI the Resolution. An expert is to be
sent copies oI the written pleadings beIore the frst deliberations, in which experts
take part in accordance with article 42 oI the Rules. Article 10 oI the Resolution
makes clear that experts are to sit with the judges during the oral proceedings and
take part in the deliberations. They are to receive copies oI documents produced by
the President and the judges Ior the purposes oI the deliberations. Experts may also
assist the DraIting Committee upon request. The inclusion in the Resolution oI these
provisions (which fnd no parallel in the comparable Resolution oI the International
Court oI Justice) should help to clariIy the role and status oI experts, such as hydrog-
raphers in maritime boundary cases or marine biologists in fsheries cases, appointed
in accordance with article 289 oI the Convention. Although the Tribunal heard an
expert witness called by Australia and New Zealand in the Southern Bluefn Tuna
Cases, the Tribunal has not yet had occasion to appoint an expert under article 289.
V The Normal Procedures in Deliberations
What, then, are the standard procedures? Seven stages in the processes oI Iormal
deliberation in the Tribunal can be identifed, as Iollows:
Stage 1 The Preparation of Judges Notes on the Written Pleadings
Deliberations commence aIter the closure, in accordance with the Rules, oI the writ-
ten proceedings. In other words, deliberations commence beIore the opening oI the
oral proceedings. This is laid down in article 2(1) oI the Resolution, according to
which the judges have a period oI fve weeks in which to peruse the written pleadings
and to prepare a brieI written note confned to identiIying two points: the principal
issues Ior eventual decision and matters which should be clarifed during the oral
proceedings. There is no question, oI course, oI pre-judging the merits oI any issue
at this early stage.
In relation to other courts, the criticism has been advanced on more than one oc-
casion that the judges sitting in a particular case had not Iully considered the plead-
ings beIore the hearings. Judges have not always been in a good position to deIend
themselves against such charges. There have been cases where the volume oI written
material has been so great, e.g. 10,000 pages, that even the authors (oIten these days
a large team) may not be Iully acquainted with all the details. In an ideal world,
the parties should confne themselves to submitting written arguments which are no
longer than necessary in order to make their points and should, in particular, reIrain
Irom attaching lengthy annexes running to hundreds oI pages. It is enough to annex
the relevant article Irom a trade journal, Ior example, rather than the entire issue. The
temptation to use the copying machines which Iorm part oI modern communications
is a powerIul one, no doubt, but the parties should always satisIy themselves that the
annexes are necessary beIore attaching them to Memorials and other pleadings. For
their part, the judges are expected to have studied the whole oI the written pleadings
in good time Ior the oral debates in the courtroom. They may well have done so in
their home countries.
With these considerations in mind, the Tribunal introduced the idea oI preparing
and circulating brieI written notes on the written pleadings. The notes remain conf-
dential to the Tribunal, along with all other internal working documents.
Stage 2 The Presidents Working Paper
Paragraph 3 oI article 2 provides Ior the preparation by the President oI the Tribunal
(in practice, no doubt, with appropriate assistance Irom the Registry) oI a working
paper Ior the judges. The working paper frst summarises the Iacts oI the case and the
main contentions of the parties and then offers certain proposals for the way ahead.
The President`s paper identifes questions to be put to the parties (or to one oI them)
in accordance with article 76 oI the Rules, as well as evidence to be supplied by the
parties during the hearings, in accordance with article 77 oI the Rules. The paper
may also list the issues which, in the opinion oI the President, should be decided by
the Tribunal in that phase oI the case. In other words, the paper should be seen as a
means towards ensuring the eIIective implementation oI the Rules relating to oral
proceedings.
Stage 3 The Initial Deliberations prior to and during the Oral Proceedings
Article 3 oI the Resolution calls Ior an initial meeting oI the Tribunal beIore the date
fxed Ior the opening oI the hearing in order to allow an exchange oI views on the
written pleadings and the conduct oI the case. In this article, the Resolution is imple-
menting article 68 oI the Rules. At the initial meeting, the President`s working paper
serves to Iocus attention on the preparations Ior the hearing and, in particular, on the
questions to be posed to the parties and the topics on which Iurther explanations are
desirable. It may also be appropriate to consider the list oI witnesses submitted by a
party and to decide whether to hear all oI them. Article 4 oI the Resolution adds to
the Ioregoing the point that the Tribunal holds meetings during the oral proceedings,
Ior example, during any short break whilst the parties prepare Ior the second round oI
debates. The purpose oI such deliberations is precisely the same as that oI the initial
meeting, but with the addition oI any matters which have arisen during the frst part
of the oral proceedings.
As a result oI such deliberations, the President has been able to indicate to the
parties, both beIore and during hearings, certain questions and issues on which the
Tribunal wished to have answers or more inIormation. The Iollowing examples are
worthy oI note. In the Saiga Case (Prompt Release), paragraph 19 oI the Tribunal`s
judgment oI 4 December 1997 records that 'at a Meeting held on 28 November
1997, the President oI the Tribunal inIormed the Agents oI the parties oI the points or
538 Chapter 31
issues which the Tribunal would like the parties specially to address, in accordance
with article 76 oI the Rules oI the Tribunal and paragraph 20 records that during
the hearing held later the same day, the parties addressed the questions raised with
the Agents. Paragraph 10 oI the Tribunal`s Order Ior provisional measures in the
Saiga (No. 2) Case oI 11 March 1998 records that initial deliberations were held on
18 and 19 February 1998 in accordance with article 68 oI the Rules. Paragraph 19
oI the same Order reIers to answers given by the parties to questions posed by the
President during his meeting with the Agents beIore the frst round oI oral argument
on 23 February 1998. Paragraphs 26 and 27 oI the Order Ior provisional measures in
the Southern Bluefn Tuna Cases oI 27 August 1999 reIer to answers to questions put
to the parties beIore and during the hearing. These were agreed questions posed aIter
initial deliberations held in accordance with article 68 oI the Rules and article 3 oI
the Resolution, as well as deliberations held during the oral proceedings in accord-
ance with article 4. Most recently, in the Camouco Case, paragraphs 20 and 21 oI the
Tribunal`s judgment read as Iollows:
On 27 January 2000, a list oI issues which the Tribunal would like the parties specially to
address was communicated to the Agents.
On 28 January 2000, the Agent oI Panama submitted a written response to the questions
addressed by the Tribunal to the parties. During the hearing, on 28 January 2000, the
Agent oI France replied orally to those questions.
In all these instances, it is clear that the Tribunal`s questions emerged Iollowing de-
liberations. As such, the questions were based upon a collective examination oI the
written pleadings or a discussion oI what had been argued in oral pleadings. It is
surely much better practice to ask questions oI the parties at an early stage, iI pos-
sible, rather than to pose numerous questions at the end oI the oral hearings. Apart
Irom other considerations, questions posed at that stage, especially ones raising new
issues, could result in delays whilst the parties submit written replies. So Iar, all ques-
tions have been posed by the President in the name oI the Tribunal. The approach
adopted by the Tribunal to the posing oI questions refects Iully its collegiate nature,
as well as its practice oI applying article 76 oI its Rules in a positive manner. Each
judge retains the right to ask questions aIter inIorming the President.
To sum up, the normal pattern has been Ior detailed discussions to be held oI the
written pleadings beIore the opening oI the oral proceedings. ThereIore, the President
has been put in a position to give detailed indications to the Agents oI the parties,
whilst making it clear that none oI the issues had been pre-judged in any way. These
indications and questions have been the result oI thorough discussion oI suggested
questions Irom the President, as well as Irom individual judges. So Iar, a collegial
approach has been maintained, with the result that individual judges have not Iound it
necessary to avail themselves oI the right to put questions in accordance with article
76(3) oI the Rules.
It has been leIt to each party to decide which questions, iI any, it wishes to address.
The parties have not Iailed to provide the requested inIormation, with the result that
the Tribunal has been assisted in its tasks by the answers given. By these means, the
Tribunal exercises a reasonable degree oI control over the course and conduct oI the
proceedings. The parties are allowed to make their own cases and to present their
argumentation in their own ways. At the same time, the Tribunal steers the parties
towards points which it considers have not been suIfciently covered or elucidated on
paper, or away Irom points on which it is satisfed there has been enough evidence or
argument. Rather than allowing the parties to determine the length oI the hearings,
Ior example, the Tribunal seeks to ensure that the Agents, Counsel and advocates
put their points succinctly. Hearings are conducted according to a timetable given to
the parties in advance under which each side is allowed the same maximum amount
oI time. This approach is Iully compatible with articles 75 and 76 oI the Rules. By
adopting a moderately interventionist stance, the Tribunal seeks to ensure that justice
is done in an eIfcient manner.
Stage 4 The Initial Deliberations after the Oral Proceedings
AIter the closure oI the oral proceedings, the judges are allowed a Iew days, normally
Iour working days according to article 5(1) oI the Resolution, in which to study the
respective arguments oI the parties, as well as to peruse the latest documentation,
such as written answers to questions and the verbatim records. More importantly,
judges need time to collect their thoughts on the issues Ior decision in the case. There
should be no 'rush to judgment. During this period, they may prepare a written note
in the Iorm oI a speaking note Ior circulation to their colleagues. In his account oI the
workings oI the Permanent Court oI International Justice in its early days, Hudson
describes the written notes Ior deliberations as speaking notes.
16
This is a concept
well known to diplomats: a brieI summary oI points to be made orally at a meeting.
During this interval, the President considers whether there is a need to revise the Tri-
bunal`s provisional list oI issues Ior decision: iI so, a revised list is circulated.
When the deliberations aIter the end oI the oral proceedings commence, one oI
the initial tasks, according to article 5(3) oI the Resolution, is to settle an agreed list
oI issues and, next, to hear the tentative opinions oI the judges on each issue. Here,
it should be noted that the Tribunal`s Resolution does not contain the rules in article
5(i) oI the Resolution oI the International Court oI Justice, according to which 'all the
judges...must declare their views and any judge may comment on another`s views
and seek explanations.
17
It is clearly very highly desirable that these elements should
be applied also in the Tribunal, since they help to ensure that there is a Iull exami-
nation oI the thinking oI all the judges, so that the decisions are then more likely to
refect the Iull cross-section oI experience and opinion represented by the Tribunal.
In a typical deliberation, an early question to be taken will be that oI jurisdiction,
Iollowed perhaps by questions oI admissibility and fnally the 'merits oI the particu-
lar issues which are beIore the Tribunal at that phase oI a case, including its overall
disposal. During the initial deliberations, the debate is a general one in which judges
16 Hudson, op. cit., In. 11.
17 S. Rosenne, Law and Practice of the International Court of Justice 1920-1996, stresses
the active participation oI every judge in the collegiate process oI deliberating, at p.
1571.
540 Chapter 31
are called upon by the President in the order in which they signiIy their wish to speak.
The President is given the task oI seeking to establish a majority opinion as it appears
to exist in the initial round oI deliberations, as well as the main trend in the reasoning
to be given (article 5(6)).
According to the scheme oI the Resolution, the Tribunal holds substantive delib-
erations shortly aIter the end oI the oral proceedings. In other words, the debate opens
whilst the arguments are still Iresh in the minds oI the judges. There remains the pos-
sibility Ior each judge to circulate a tentative opinion on one or more oI the issues in
writing, in the Iorm oI a speaking note. Even so, the main Iocus oI the deliberations
is a discussion around the table, i.e. oral deliberations. This is the normal procedure
described in the Resolution. The scheme is similar in this respect to the procedures
Iollowed by the European Court oI Human Rights.
As an alternative or exception to this normal procedure, the Resolution takes ac-
count oI the possibility that the judges will fnd a particular case to be complex, Ior
example, because a large number oI issues have to be decided or because no clear
trend oI opinion has emerged during the initial round oI deliberations. In such a situ-
ation, article 5(7) provides that instead oI establishing majority opinions at this stage,
the Tribunal may decide to suspend the oral debate and to call upon each judge to
prepare a written note Ior colleagues expressing the judge`s tentative opinion upon
each issue and the overall disposal oI the case. Such notes need not be long, yet the
process oI writing them assists both the author and the recipients in the task oI reach-
ing reasoned conclusions on complex or controversial issues. The written notes are
translated and circulated beIore the resumption oI the oral debates. In the resumed
deliberations, the written notes represent the basis Ior the Iurther debates, but not dis-
placing the pleadings oI the parties, oI course. This alternative possibility can be seen
as being very similar to the practice oI the International Court oI Justice.
Stage 5 Establishment of a Drafting Committee
The objective oI the Tribunal in every case is to reach a collegiate decision, preIer-
ably unanimous or as near to unanimous as possible. It is not the intention to pro-
duce 21 separate opinions; and in a body as large as 21 members, it is not possible
to draIt eIfciently around a table. Accordingly, article 6 oI the Resolution provides
Ior the appointment in each case (or phase oI a case) oI a DraIting Committee oI
fve members. (Even fve may be considered a large number Ior draIting work, but
it permits the Chairman to suggest a division oI labour, assigning diIIerent topics to
diIIerent judges, who may then prepare the very frst draIt according to an agreed
Iormat Ior the overall text to be adopted. Indeed, in exercise oI the Tribunal`s power
to modiIy the procedure in particular cases, it could increase the number oI members
in certain instances having regard, Ior example, to the need to work and prepare draIt
judgments in both oIfcial languages oI the Tribunal.
18
) The DraIting Committee is
established as soon as possible in the deliberations. In practice, this means that in
18 The Tribunal`s judgment on the merits oI the Saiga Case oI 1 July 1999 was equally
authoritative in English and French. The same course was adopted in the Camouco Case
(Judgment oI 7 February 2000).
the deliberations the President identifes a provisional majority as it appears then
to exist, Ior example, by a tour de table or a show oI hands, on the principal issues
Ior decision and the disposal oI the case. From that provisional majority, the Presi-
dent proposes Ior membership oI the DraIting Committee judges whose reasoning
in the prior debates clearly supported the majority view. According to article 6(1) oI
the Resolution, the members are then chosen by an absolute majority oI the judges
present. In practice, the President`s inIormal soundings usually remove the need Ior
a vote. II part oI the majority, the President is a member oI the DraIting Committee
ex ofhcio. II the President is not part oI the majority, the Vice-President, iI part oI the
majority, serves instead. In cases where both the President and the Vice-President
are not part oI the majority (as happened in the Tribunal`s frst decision), all fve
members are selected by the Tribunal and normally the senior judge amongst the fve
acts as chairman. The Tribunal does not announce which judges are members oI the
draIting committee Ior any case, but the role oI the President or Vice-President oI the
Tribunal can be deduced Irom the terms oI article 6 oI the Resolution in cases where
they are with the majority.
19
Stage 6 Work of the Drafting Committee
The DraIting Committee meets, according to article 7(1) oI the Resolution, imme-
diately aIter its creation and with the aim oI completing a frst draIt oI the judgment
in three weeks. The task oI the Committee is to prepare a draIt judgment which 'not
only states the opinion oI the majority as it appears then to exist but which may also
attract wider support within the Tribunal. For example, iI a judge has not joined
the tentative majority on account oI a particular concern, it may be possible to draIt
a decision in terms which meet that concern, or which side-step the problem, with
the result that the judge is able to support the decision as a whole. This objective
takes account oI the nature oI the Tribunal by encouraging a collegiate spirit amongst
its members. The Resolution adopted by the International Court oI Justice does not
contain an explicit statement oI this objective which is not to say that it is not in
the minds oI members oI draIting committees generally without the need Ior it to be
spelled out.
The Committee`s draIt is circulated to all judges sitting in the case with a view to
receiving their comments and suggested amendments within three weeks. The Com-
mittee then prepares a revised draft for the next stage in the process.
In its diIfcult task, the Committee is assisted by the Registrar, who may, Ior exam-
ple, provide materials or put Iorward paragraphs Ior the opening part oI a judgment
or order. Typically, the introductory part sets out the details oI Iactual and procedural
matters such as the submission oI the case, the President`s consultations with the
Agents oI the parties, the adoption oI any preliminary Orders, the history oI the pro-
ceedings, etc. Any materials provided by the Registrar are reviewed by the DraIting
Committee and incorporated into the draIt as it considers appropriate. The DraIting
Committee may also be assisted by an ad hoc group oI judges to whom a particular
19 Rosenne, op. cit., In. 17, rightly states, in the context oI the International Court oI Justice,
that attempts to identiIy the members are to be deprecated.
542 Chapter 31
technical or detailed task may be assigned. Their report inIorms the work oI the
DraIting Committee, as well as the later deliberations oI the Tribunal as a whole.
Stage 7 Deliberations on the Draft Judgment
The Tribunal`s general aim, set out in article 8 oI the Resolution, is to begin the
deliberations on the draIt judgment in a case or phase oI a case as soon as possible
aIter its circulation and in principle within three months oI the closure oI the oral
proceedings. In dealing with the two urgent requests submitted under article 292
concerning the Saiga and the Camouco, the draIting oI the judgments and the de-
liberations on the frst and second draIts all took place within a matter oI days, not
months. It can be expected that more time, even up to three months, may be required
in order to produce a draIt judgment in a case which involves several distinct issues.
For example, at the merits stage oI the Saiga (No. 2) Case, which involved numerous
issues, slightly more than three months proved to be required between the end oI the
hearings on 20 March 1999 and the reading oI the judgment on 1 July 1999. This was
despite the Iact that the initial deliberations began Iour working days aIter the closure
of the oral proceedings.
Article 8 oI the Resolution sets out the procedures Ior considering the draIt judg-
ment prepared by the DraIting Committee. There are two 'readings oI the text, nor-
mally paragraph by paragraph, by the judges sitting in the case. Each reading may
extend over several meetings on diIIerent days. During the frst reading, judges may
make general comments, e.g. upon the approach to an issue, or they may propose
precise textual amendments. Article 8(3) oI the Resolution calls Ior amendments to
be submitted in writing, but in practice the President may allow simple changes to
be advanced orally, iI only to avoid delays. A judge who intends to deliver a separate
(concurring) or a dissenting opinion, in accordance with article 125(2) oI the Rules,
inIorms colleagues at this stage and puts Iorward the text or at least an outline oI this
opinion. Such a judge, even iI dissenting, continues to take part in the discussions
oI the draIt judgment. For their part, the other judges take cognisance oI the sepa-
rate opinion and may consider whether some account should be taken oI the views
contained in the separate opinion in Iurther deliberations. The arrangement takes Iull
account oI the collegiate nature oI the Tribunal.
The DraIting Committee next revises its draIt judgment in the light oI the frst
reading and circulates the new draIt in readiness Ior the next stage. During the second
reading, it is still possible to propose amendments to the draIt, whether in writing
or orally, in accordance with article 8(5) oI the Resolution. However, in the nature
of any collective process, completely new proposals and ones which are similar to
previous proposals, as well as complicated changes to the draIt, are all unlikely to
receive a positive reaction Irom the other judges. Moreover, attempting to draIt or
redraIt a text in two languages in a group as large as 21 seated around a table is a
Iormidable task in any circumstances and to make the attempt at a late stage in a proc-
ess may well be ill-advised. Nevertheless, the collective thinking oI the Tribunal can
be infuenced until the very last minute by persuasive arguments or Ielicitous Iorms
oI words which seek to broaden or strengthen an emerging consensus. The DraIting
Committee may well need to meet in between meetings oI the Tribunal in order to
present a clean text Ior the continuation oI the reading.
BeIore the conclusion oI the second reading, a time limit is agreed Ior the delivery
oI separate or dissenting opinions. Article 30(3) oI the Statute oI the Tribunal gives
each member oI the bench the right to deliver a separate opinion, whether concur-
ring or dissenting. This is an important right, similar to that enjoyed by judges oI the
International Court oI Justice and exercised to good eIIect on many occasions. Whilst
some national courts in Europe, as well as the European Court oI Justice, produce a
single judgment without separate opinions, this has not been the practice in common
law jurisdictions nor in international courts such as the Permanent Court oI Interna-
tional Justice and the International Court oI Justice. The possibility oI appending a
separate opinion takes account oI the international nature oI the Tribunal. Properly
exercised, it can make a positive contribution to the disposal oI a particular case, as
well as to the more general development oI the law. The existence oI such opinions
should not be regarded, in itselI, as a negative Iactor, or as a sign oI weakness in the
institution.
According to article 8(6) oI the Resolution, separate concurring or dissenting opin-
ions 'should concentrate on the remaining points oI diIIerence with the judgment.
This wording lays down some guidelines Ior judges intending to append separate
opinions to a judgment. Such opinions should Iocus primarily on the reasons which
have led the judge to decide to write an opinion, rather than taking the Iorm oI a com-
plete judgment. The wording oI article 8(6) takes account oI the possibility that the
judgment has been adjusted in some way by the majority in the light oI the presenta-
tion oI the outline oI the opinion at an earlier stage in the deliberations. For example,
the reasoning may be recast or even toned down in the knowledge that a dissenter
feels strongly on a certain point, in the hope that a dissenting opinion may similarly
be toned down or even dispensed with. Again, this Iormula in article 8(6) emphasises
the collegiate nature oI the Tribunal. For their part, separate or dissenting opinions
should be keyed to particular paragraphs or arguments in the judgment and should
be directed to explaining points on which the judge diIIers Irom others on the Bench.
Both Judge Lachs
20
and more recently the Study Group oI the British Institute oI
International and Comparative Law
21
have recommended that judges should exercise
selI-restraint in regard to the writing oI separate or dissenting opinions. This advice is
clearly sound. Restraint is needed out oI respect Ior the institution and other members
oI the bench, as well as Ior reasons oI economy.
Separate and dissenting opinions should avoid entering into issues which have not
been raised by the arguments oI the parties or by the decision in the case.
22
The same
is true oI issues which may have arisen on the frst draIt oI a judgment but which
have then been overtaken by changes, e.g. deletions, made to the draIt in response to
the debate. Separate or dissenting opinions, in other words, should not be written in a
20 Loc. cit., fn. 13.
21 Fn. 14, para. 66a, on p. 61.
22 Points made by Judge Lachs, loc. cit., In. 13.
544 Chapter 31
completely discursive style which, being divorced Irom the terms oI the judgment as
delivered, would be more suited to an article in a learned journal. As was pointed out
many years ago by ProIessor Sereni, the purpose oI such opinions is not to see them
published in a casebook.
23
At the same time, such opinions may oIten play a useIul
Iunction, Ior example, in casting light on the judgment
24
or possibly the unarticulated
thinking oI the majority, in alluding to matters touched upon in the pleadings but
passed over in the judgment, or in giving signposts to the Iuture trend oI develop-
ments.
25
Writing about the International Court, Judge Shahabuddeen has pointed out
that preparing separate or dissenting opinions Iorms part oI the collegiate process:
'Individual opinions are part oI the collective work oI the Court.
26
This point is
reinIorced by article 8 oI the Resolution oI the Tribunal.
Stage 8 Voting
Once the work oI reading the fnal version oI the draIt has been completed, article 9
provides Ior the President to take the vote in accordance with article 29 oI the Statute.
A separate vote is normally taken upon each operative paragraph in the decision. A
positive or a negative vote must be cast. Abstention is not permitted. Article 9(1) oI
the Resolution contains the rule that 'Any judge may request a separate vote on is-
sues which are separable This provision seeks to avoid the risk oI putting a judge in
a dilemma should a single vote be called on a compound proposition.
27
Votes are taken in person, in inverse order oI seniority, and are recorded in the text
oI the judgment. Provision is made in article 9 Ior a judge who is absent on account oI
illness or the like to be permitted to vote by appropriate methods oI communications.
Fortunately, the Tribunal has not had occasion, to date, to apply this rule.
VI Concluding Remarks
In several ways, the Resolution on the Internal Judicial Practice oI the Tribunal
stresses the collective nature oI the decision-making process and seeks to Ioster the
collegiate spirit already evident on the part oI its members. A second underlying
element oI legal policy is the wish to avoid unnecessary delays in the handling oI
23 'Les opinions individuelles et dissidentes des juges des tribunaux internationales, 68
Revue generale de droit internationale public (1964), p. 821.
24 In the case concerning the Application Ior Review oI Judgment No. 333 oI the United
Nations Administrative Tribunal, the International Court oI Justice made the point about
the clarifcation oI decisions and reIerred to 'the wise practice oI the Administrative
Tribunal in allowing and publishing separate opinions (ICJ Reports 1987, p. 45).
25 In domestic law, Lord Atkin`s dissent in Liversidge v. Anderson |1943| AC 206, at p.
232, is oIten cited in this connection. Sir G. Fitzmaurice made the point in The Law and
Practice of the International Court of Justice (1986).
26 Shahabuddeen, op. cit., In. 13, p. 195. The point was also made by Jennings, 'The Inter-
nal Judicial Practice oI the International Court, 59 BYBIL (1988), p. 43.
27 See para. 21 oI the dissenting opinion oI Judge Parra-Aranguren in the case concerning
the Gabcikovo-Nagymaros Project, ICJ Reports 1997, at p. 231.
cases coming beIore it. Whilst the pleadings and subsequent deliberations in a case
should be both thorough and proIessional, neither part oI the judicial process should
be overly elaborate or protracted. Advantage should be taken at all stages, including
deliberations, oI the possibilities oIIered by new inIormation technology.
During the initial stage oI its existence, the Tribunal has not had a backlog oI
cases. Apart Irom the President who resides at the seat oI the tribunal, the judges
have travelled to Hamburg in order to work on cases or Ior non-case-related sessions.
In practice, this has led to relatively short periods oI intensive activity on the part oI
the members oI the Tribunal whilst present together, especially Ior casework. For
example, oral proceedings have been held morning and aIternoon on six days a week,
and deliberations have been held on a similar basis sometimes with the additional
burden oI evening meetings. The Iactor oI non-residence at the seat has accentuated
the signifcance oI the timetable Ior the Tribunal`s work.
As regards the important question oI the actual method oI conducting delibera-
tions, the Resolution allows Ior two alternatives. In all cases where the issues are
straightIorward, the Resolution contemplates deliberations which are primarily oral
in character. Oral deliberations have the advantage that they can be held quite soon
aIter the closure oI the oral proceedings, whilst the pleadings are still Iresh in the
judges` minds. They allow Ior the Iull expression oI views and Ior the challenge oI
one opinion with a contrary one. Such genuine debates should lead to sound deci-
sions, provided certain conditions are Iulflled in all cases. Thus, there should be
clarity over the issues which need to be decided. Adequate time aIter the closure oI
the oral proceedings should be allowed Ior proper preparation. The possibility oI
circulating a brieI written note, in the Iorm oI a speaking note, on some or all oI the
issues remains open to the judges. Around the table, there should be a Iull expres-
sion oI views by all participants, including the conIrontation oI opposing views. The
latter helps to ensure that irrelevant Iactors or misunderstandings are not clouding
the reasoning oI any oI the judges, bearing in mind that there is no court oI appeal
or subsequent possibility oI judicial review. Such deliberations should assist eIIorts
to fnd a consensus or a large majority opinion. Justice should also be administered
without undue delay.
In the more complicated cases, possibly raising several separate issues, the Tribu-
nal may decide to depart Irom its normal procedure. Article 5(7) oI the Resolution
provides, with such complex cases in mind, Ior the preparation oI written notes by
all judges beIore a specifed date. Writing notes ensures that the issues are deeply
considered. The circulation oI written notes means that the views oI every judge
are made available to the others on the Bench beIore the decisions are reached. The
very process oI writing a note may help the judge to clariIy thoughts and reasoning
upon what may well be diIfcult issues oI great moment not only to the parties to the
case but also to the international community. The writing oI notes would then be Iol-
lowed by oral deliberations similar to those described above, but with the diIIerence
that they would be inIormed by the contents oI the notes. There may exist a risk in
adopting this procedure that opinions become entrenched by the process oI writing,
with the result that there is no true conIrontation oI opposing views in an oral debate
designed to tease out the true position under the applicable law. However, in chairing
the deliberations the President may be able to encourage genuine debate and discourage
the mere repetition of the written notes.
The Tribunal`s judgments have been no longer than has appeared necessary in order
to set out the actual decisions and the reasoning leading up to them. The need Ior a
broad consensus tends to reduce, not increase, the amount oI reasoning which can be
included. The main task is to decide the issues in the case, rather than to set out the law
in Iull. The Tribunal`s practice allows Ior the delivery oI separate concurring or dissent-
ing opinions, which, as experience elsewhere shows, serve several valuable Iunctions.
At the same time, the Resolution stresses even in this regard the collegiate nature oI the
Tribunal by seeking to integrate the draIting oI such opinions with the continuing work
on the 'highest common denominator which is the judgment or decision.
28
The Tribunal`s Resolution is suIfciently fexible to allow it to choose case by case
the procedure which is most appropriate, the main criterion being the number and com-
plexity oI the issues Ior decision. The Resolution allows Ior both the oral procedure,
as practised notably by the European Court oI Human Rights, and Ior the written pro-
cedure practised by the International Court oI Justice. The Tribunal, which is required
to do justice between the parties to cases beIore it in accordance with the law, has set
itselI the aim oI doing so in a manner which avoids unnecessary delay or expense.
The Resolution should Iacilitate both the perIormance oI this responsible task and the
achievement oI that laudable objective.
28 The term was used in the Observations oI the International Court on the Report oI the Joint
Inspection Unit oI the United Nations (UN Document A/41/591).
Chapter 32
The Role of ITLOS as a Means of
Dispute Settlement under UNCLOS*
The International Tribunal Ior the Law oI the Sea ('the Tribunal) is a permanent in-
ternational judicial body,
1
set up in 1996 in the Free and Hanseatic City oI Hamburg.
Since that time, it has adopted its Rules and established its internal judicial practice.
2
It has adopted the policy, included in its Rules, oI seeking to administer justice in
accordance with the applicable rules oI law and without any unnecessary expense
or delay.
3
In 2000, it moved into its permanent premises, overlooking the River Elbe
along which many sea-going ships pass every day. The excellent Iacilities, generous-
* This chapter, based on a paper read at a conIerence at the GAUSS Institute in Bremen in
April 2002, was frst published in A. Kirchner (ed.), International Marine Environmental
Law Institutions, Implementation and Innovations (2003). It has not been updated. Lat-
er inIormation about the Tribunal is included in Chapter 33. Current inIormation about
the status oI the LOS Convention is available on www.un.org/Depts/los/.
1 For a general survey, see G. Eiriksson, The International Tribunal for the Law of the
Sea, 2000. For a collection oI essays by judges, see P. Chandrasekhara Rao and R. Khan
(eds.), The International Tribunal for the Law of the Sea, 2001. For annual surveys oI
the work oI the Tribunal, see the Tribunal`s Annual Yearbooks, as well as articles by S.
Rosenne and Vaughan Lowe in the International Journal of Marine and Coastal Law.
Full inIormation about the Tribunal is available on its website, www.itlos.org.
2 International Tribunal for the Law of the Sea: Basic Texts 1998; see now Basic Texts
(2005).
3 This policy is analysed in M. Evans (ed.), Remedies in International Law, 1998, Chs. 4,
at p. 79 (now Ch. 29 above).
548 Chapter 32
ly provided by the German authorities, give a solid basis Ior the work oI the Tribunal.
I trust you will all have an early opportunity to visit its premises.
The role oI the Tribunal is to act as one oI the means oI dispute settlement under
the United Nations Convention on the Law oI the Sea ('the Convention). The Tri-
bunal is an autonomous international organisation which provides services to the
States Parties, now totalling 138 or 70 oI the international community. So Iar, the
Tribunal has registered ten cases and it has given eight reasoned judgments and Or-
ders. In many ways, the Tribunal complements the International Court oI Justice
('the Court) as Iar as the law oI the sea is concerned. The members oI the Tribunal
have high regard Ior the Court and have Iollowed its practice, procedures and juris-
prudence in large measure.
4
The role oI the Tribunal under the scheme oI the Convention is conditioned by two
main Iactors. First, the terms oI the Convention, which both shape the constitution
oI the Tribunal and determine the scope oI its jurisdiction. Secondly, the decisions oI
the States Parties to the Convention in submitting or not submitting disputes to the
Tribunal. I will examine these two Iactors in turn, giving some personal impressions
as a former negotiator and now interpreter of the Convention.
I The Tribunal and the Terms of the LOS Convention
The general scheme Ior the settlement oI disputes in Part XV oI the Convention
is both comprehensive and multi-Iaceted. It includes provisions Ior exchanges oI
views and conciliation, as well as Ior recourse to binding procedures such as judicial
settlement and arbitration. The overall scheme is soundly based and the procedures
not involving binding decisions are valuable. For example, recourse to conciliation,
through the good oIfces oI a neutral third party, may oIten produce worthwhile re-
sults Ior the parties.
5
With regard to binding procedures, Article 286 provides that:
Subject to section 3, any dispute concerning the interpretation and application oI this
Convention shall, where no settlement has been reached by recourse to section 1, be sub-
mitted at the request oI any party to the dispute to the court or tribunal having jurisdiction
under this section.
4 The Statute and Rules oI the Tribunal were based on those oI the Court, but with modi-
fcations. ProIessor Oxman has noted over 50 citations oI decisions oI the Court in the
work oI the Tribunal in his comments to the panel on the Horizontal Growth oI Inter-
national Courts and Tribunals at the 96th Annual Meeting oI the American Society oI
International Law, Washington DC, on 16 March 2002.
5 A good example is provided by the Conciliation Commission set up by the governments
oI Iceland and Norway to address the question oI delimitation oI the EEZs between Ice-
land and Jan Mayen. See Charney and Alexander (eds.), International Maritime Bounda-
ries, Vol. II, p. 1755.
549 The Role of ITLOS as a Means of Dispute Settlement under UNCLOS
The basic rule is one oI compulsory jurisdiction. True, there are qualifcations by
virtue oI the cross-reIerences to sections 3 and 1.
6
Part XV, like the rest oI the Con-
vention, bears the marks oI compromise. Dispute settlement was part oI a wider
'package deal, designed to lend stability to balances between opposed interests such
as those oI fag states and coastal states. Clear rules were not regarded as suIfcient by
themselves: some under-pinning or an overall structure involving binding, compul-
sory dispute settlement was also required.
7
In practice, the possibility oI compulsory,
binding litigation is likely to aIIect the course oI prior negotiations between the two
sides, ensuring that each side listens careIully to the words oI the other.
8
Whilst there was general acceptance oI the advantages oI having compulsory, bind-
ing procedures, there was less agreement over the Iorum. Some delegations preIerred
the Court, which had decided many important issues to do with the customary law oI
the sea. Others supported the creation oI a new permanent tribunal which would be
given an overview of the operation of the entire Convention and a central role in its
interpretation and application. This is one oI the benefts oI permanent courts over ad
hoc courts. The need Ior a special tribunal Ior deep seabed mining disputes, involv-
ing mining consortia, was widely recognised. A third group oI delegations considered
that pre-Iormed tribunals were less satisIactory than ad hoc tribunals whose members
were hand-picked by the parties Ior the particular dispute. The result was the Mon-
treux Iormula in article 287, allowing Ior the choice oI Iorum. This was another part
oI the price paid in order to secure consensus on binding, compulsory procedures Ior
the settlement oI disputes. The deIault rule, that is to say, the rule applicable where
diIIerent or no choices had been made by the parties to a dispute, kept changing. At
Montreux, Ambassador Riphagen`s proposal was that the choice oI the deIendant
should apply. Later, it was to be the new tribunal which was to have the deIault role.
Finally, it became arbitration. This latter was a signifcant change Ior the Tribunal.
From the standpoint oI upholding the rule oI law in international relations, the
overall arrangements in the Convention are Iar superior to the Optional Protocol at-
tached to the Geneva Conventions of 1958. However, the arrangements remain very
much a compromise, and one which may have pleased Iew delegations. The role
given to the Tribunal retained only small elements oI the central overview which
should have been one oI the benefts oI having a permanent body. In other words,
the role oI the Tribunal was shaped very much by the outcome oI the negotiations, as
contained in the text of article 287.
6 For example, article 297 sets out qualifcations and article 298 permits some optional
exceptions, all oI which were needed in order to reach a consensus in the negotiations.
7 Stevenson and Oxman, 69 AJIL (1975) 1; see also the Comments by ProIessor Oxman
to the panel on the Horizontal Growth oI International Courts and Tribunals at the 96th
Annual Meeting oI the American Society oI International Law, Washington DC, on 16
March 2002.
8 Governments are more likely to negotiate in a meaningIul way iI the alternative oI litiga-
tion is a real one, apparent to both oI them. This is one oI the main advantages oI dispute
settlement provisions. Actual litigation is oIten a last resort and carries obvious risks Ior
the parties.
550 Chapter 32
A The Organisation of the Tribunal
With 21 elected members, the Tribunal is a large judicial body. The judges enjoy a
positive collegial spirit. This Iacilitates their work. All the judges enjoy the challeng-
es presented by creating a new judicial organisation and tackling the cases submitted
to it by the parties. The last decision was unanimous and in those cases in which
there have been majority decisions the judges have never divided along East/ West or
North/South lines. There have been a good number oI separate opinions, but this is
normal in the case oI a permanent international tribunal.
9
The Tribunal has several types oI chamber, including one oI fve members Ior
Summary Jurisdiction. The Tribunal`s members also make up the 11 member Seabed
Disputes Chamber provided Ior in Part XI oI the Convention. This Chamber has ex-
clusive and compulsory jurisdiction over mining disputes arising in the international
seabed area. To date, no case has been submitted to the Chamber, probably on ac-
count oI the low level oI activity to do with deep seabed mining and the consequential
absence oI disputes. The Tribunal has exercised its power to create standing Cham-
bers by establishing two Chambers oI seven members each, one Ior fsheries disputes
and the other Ior environmental disputes. The Chamber on Environmental Disputes
is presided over by Judge Yankov, who was the Chairman oI the Third Committee
at the ConIerence which prepared Part XII oI the Convention. I am pleased to serve
under him in this Chamber. The Chambers give States the option oI a smaller and
perhaps quicker body Ior hearing urgent applications over such matters as fsh quotas
or oil-spills. The Chamber could hear cases brought under Part XII, including all the
diIIerent Iorms oI pollution: land-based sources, discharges Irom ships contrary to
MARPOL, the dumping oI wastes contrary to the standards contained in the London
Convention, pollution caused by oil and gas installations on the continental shelI, and
atmospheric pollution. So Iar, no litigant has submitted a dispute to either the fsher-
ies or the environmental chamber.
In addition to the two standing chambers, the Tribunal may also establish ad hoc
Chambers in consultation with the parties in order to hear a particular dispute. For
instance, the Tribunal made an Order constituting an ad hoc Chamber oI fve mem-
bers in the Swordfsh Stocks Case between Chile and the European Community. In
all other cases heard so Iar, the Iull Tribunal oI 21 has sat.
B Jurisdiction
The jurisdiction oI the Tribunal is laid down in the Convention, including Parts XI
and XV, plus Annex VI. The Tribunal has jurisdiction over disputes concerning the
interpretation and application oI the Convention which are submitted to it under the
terms oI Part XV and over disputes concerning international agreements related to
the Convention which are submitted in accordance with the terms oI those agree-
9 For a survey oI the voting patterns and separate opinions, see the present writer`s article
in M. Nordquist and J. Norton Moore (eds.), Current Marine Environmental Issues and
the International Tribunal for the Law of the Sea, 2001, p. 63.
ments. An example oI a related agreement is the Agreement on the Implementation
oI the provisions on Straddling Fish Stocks and Highly Migratory Fish Stocks, which
has entered into Iorce recently and which provides Ior the settlement oI disputes re-
lating to its provisions and those oI regional and sub-regional fsheries agreements.
10
Another possible example would be an agreement among a group oI States to submit
a question Ior an Advisory Opinion. The Rules oI the Tribunal make provision Ior
this possibility in Rule 138.
Potentially, the Tribunal, including the Seabed Disputes Chamber, has jurisdiction
ratione personae over disputes concerning the States Parties, other entities such as
mining consortia and the International Seabed Authority. The European Community
is counted as a State Party, in accordance with Annex IX oI the Convention. The EC,
to the exclusion oI the member states, is a party to the case with Chile concerning
Swordfsh Stocks in the SE Pacifc Ocean.
11
In Paragraph 10 oI Resolution 56/12 oI 2001, the UN General Assembly noted
with satisfaction the continued contribution of the International Tribunal for the
Law of the Sea to the peaceful settlement of disputes in accordance with Part XV of
the Convention. The General Assembly underlined the Tribunal`s important role
and authority concerning the interpretation and application of the Convention...
Probing a little deeper, however, some more specifc attitudes emerge. In making
choices under article 287 oI the Convention, only 16 States Parties have made the
Tribunal their frst choice and only 9 have named the Court. In contrast, the remain-
ing 113 States Parties, over 80 oI the total, have chosen, in eIIect, arbitration by
silence.
12
To date, no case has been submitted to the Tribunal or the Court under the
mechanism in article 287, whereas three compulsory arbitrations have commenced
under Annex VII.
13
Thus, the role oI the Tribunal is also being shaped by the actions
oI the States Parties in implementing article 287.
II Environmental and Shipping Aspects of the Tribunals Caselaw
So Iar, the Registrar has entered 10 cases on the Tribunal`s list. There were some
environmental aspects present in most oI the cases, whether directly or indirectly. In
addition, the Tribunal has had to consider some questions which will be oI general
interest to the shipping industry. My brieI survey will concentrate on some impres-
10 The Protocol to the London (Dumping) Convention oI 1996 and the recent UNESCO
Convention on the Protection oI the Underwater Cultural Heritage may also be men-
tioned in regard to article 288.
11 As required by Annex IX to the Convention, the EC made a declaration upon becoming a
party, speciIying the matters governed by the Convention in respect oI which it exercised
competence.
12 InIormation taken Irom the website www.un.org/ in March 2002.
13 These were the Saiga Case (later reIerred to the Tribunal by agreement between the
parties), the Southern Bluefn Tuna Case (the arbitral tribunal later Iound it was without
jurisdiction) and the MOX Plant Case (an arbitration is pending).
552 Chapter 32
sions oI the environmental and shipping aspects oI these cases, without attempting
Iull surveys.
A The Saiga (No 2) Case and the Question of Bunkering in the EEZ
The Saiga, a tanker, was seized 70 miles oIIshore, just beyond the southern limit oI
the EEZ claimed by Guinea in its legislation. The vessel was taken under arrest to
Conakry where the Master was charged with customs oIIences in that he had supplied
bunkers to three fshing vessels at places just beyond the outer limit oI the territo-
rial sea oI Guinea. When considering the merits oI the case, the Tribunal rejected
the Respondent`s argument that it was entitled to apply Guinean customs law in an
extensive customs surveillance area beyond the territorial sea.
14
Guinea did not as-
sert its fsheries or environmental jurisdiction. In a Iuture case, the Tribunal may
have to consider whether or not a coastal state is entitled to regulate bunkering and
other similar activities in support oI fshing vessels as part oI its regulatory jurisdic-
tion over fshing in the EEZ in accordance with article 62 oI the Convention. Many
coastal states have enacted legislation imposing a system of licences or permits for
bunkering and other operations in support oI authorised fshing vessels whilst they
are fshing in the EEZ.
B The Saiga (No 2) Case and Arrest at Sea
The Saiga was seized by the customs and naval oIfcers oI Guinea who opened fre
with machine guns on the vessel. On the basis oI written evidence, especially the
ship`s logbook, and oral testimony beIore the Tribunal oI the Master and the arrest-
ing oIfcers, the Tribunal decided that the respondent had stopped and arrested the
vessel in circumstances which did not justiIy the exercise oI the right oI hot pursuit
in accordance with article 111 oI the Convention. The procedures Ior exercising the
right oI visit and search, as defned in article 110, had not been Iollowed correctly.
Unnecessary Iorce had been used to arrest the vessel. Here, the Tribunal paid regard
to the 'I`m Alone and 'Red Crusader Cases, as well as to article 22(1) (I) oI the
Straddling Stocks Agreement. The Tribunal Iound that the arresting oIfcers had used
excessive Iorce and endangered human liIe, contrary to customary international law,
both beIore and aIter boarding the vessel.
15
Compensation was awarded to two per-
sons on board the ship injured by bullets and to the owners Ior damage to the vessel.
This was one oI the most important fndings in the case.
14 Saiga (No 2) Case, ITLOS Reports 1999, p. 10, at p. 54, para. 127. For comment, see L.
de La Fayette, 'ITLOS and the Saga oI the Saiga: PeaceIul Settlement oI a Law oI the
Sea Dispute, 15 IJMCL (2000) 355.
15 Saiga (No 2) Case, ITLOS Reports 1999, p. 10, at p. 68, para. 158.
C Prompt Release of Detained Fishing Vessels and Reefers
Three applications have been made under article 292 Ior the prompt release oI fsh-
ing vessels detained pending trial. In these cases, environmental Iactors have arisen
indirectly. In both the Camouco
16
and Monte ConIurco
17
Cases, the vessels had been
apprehended in the EEZs around the Isles Crozet and Kerguelen on suspicion oI fsh-
ing Ior Patagonian Toothfsh at times not contemplated by the coastal state or by the
conservation measures adopted by the Commission Ior the Conservation oI Antarctic
Marine Living Resources. In each case, the French fshery protection oIfcers escort-
ed the vessel to Reunion Ior trial beIore the competent court. Early release, pending
trial, against the deposit of cash as caution was available, but the cash was not paid
by the operators who applied instead Ior release under article 292. The Tribunal has
heard these applications without delay. The Tribunal took account oI the gravity oI
the alleged oIIences, the penalties imposable, the value oI the vessel and its contents
and the amount oI the security ordered by the detaining state. The Tribunal ordered
release and fxed an amount Ior each bond, in the Iorm oI a bank guarantee, that
was lower than the caution fxed by the court in Reunion Ior release. In dissenting,
I expressed the view that in considering whether the coastal state had breached its
duty to allow prompt release against a reasonable bond (as required by article 73(2))
greater regard should be paid to the wider duty oI the coastal state under Part V oI
the Convention to conserve the stocks in its EEZ. This duty means that a coastal state
needs to enIorce its laws eIIectively by maintaining patrols, by boarding vessels and
by prosecuting those suspected oI fsheries oIIences. Legislatures have laid down
high maximum penalties upon conviction. The courts may need the power to impose
deterrent penalties and, in my view, this may be a relevant Iactor in fxing the size oI
the 'reasonable bond.
In the third instance oI an application Ior the release oI a fshing vessel Irom deten-
tion in Reunion, the Grand Prince Case,
18
the Tribunal Iound that it lacked jurisdic-
tion. Had the Tribunal considered the merits oI the application Ior prompt release,
it would have had to consider the question whether the release oI a vessel could be
ordered under article 292 at a time when the vessel had been confscated by order oI
a court in the coastal state as a penalty imposed upon conviction Ior fsheries oIIences
in the EEZ.
In the case oI the Chaisiri ReeIer No 2, the parties reached agreement, settling their
diIIerences, just beIore the date set Ior the hearing. The detained vessel was allowed
to sail and the proceedings were discontinued. Had the Tribunal been called upon
to give a decision, one oI the issues would have been whether the provisions about
prompt release in articles 73(2) and 292 oI the Convention applied to a transport
vessel which, when detained, was engaged in transporting fsh that had been caught
554 Chapter 32
by other vessels in the EEZ oI the coastal state. Logistical support Ior fsh catching
vessels raises issues similar to bunkering, as in the Saiga case.
D 1he Southern Bluepn 1una Cases
These two cases, which were the subject oI a joined hearing and a single Order, had
clearer environmental dimensions. The two applicants, Australia and New Zealand,
began arbitrations under article 287 and Annex VII oI the Convention concerning
a Japanese experimental fshing programme Ior Southern Bluefn Tuna. They also
submitted applications to the Tribunal under article 290(5) oI the Convention Ior
provisional measures, pending the constitution oI the arbitral tribunal. Such meas-
ures are binding under the terms oI the Convention. The applicants sought an order
putting an end to the experimental fshing programme and the capping oI Japan`s to-
tal annual catch. In certain defned circumstances, the Tribunal has the power to order
provisional measures to preserve the respective rights of the parties to the dispute
or to prevent serious harm to the marine environment, penaing a hnal aecision` by
the arbitral tribunal.
AIter considering extensive written arguments and hearing the parties, the Tri-
bunal decided that it did have jurisdiction to prescribe provisional measures. In the
course oI its reasoning, the Tribunal stated that:
The conservation oI the living resources oI the sea is an element in the protection and
preservation of the marine environment.
19
In this fnding, the Tribunal made a link between conservation oI fsh stocks and the
protection oI the marine environment. In other words, the Tribunal made the link
between Parts V and VII oI the Convention, concerning fshing in the EEZ and on the
high seas, on the one hand, and Part XII concerning the protection and preservation
oI the marine environment, on the other. Here was a dispute about fshing to which
considerations to do with the protection of the environment were applied.
A second important question was that oI the precautionary principle or approach.
Australia and New Zealand requested the Tribunal to order the parties 'to act consist-
ently with the precautionary principle in fshing southern bluefn tuna. The Tribunal
did not accede to this request in the Iorm it was presented. However, the Tribunal did
state that:
the parties should. act with prudence and caution to ensure that eIIective conservation
measures are taken to prevent serious harm to the stock oI southern bluefn tuna.
20
It should be recalled that the Tribunal was considering an urgent request Ior provi-
sional measures, not the merits oI the dispute. Caution is inherent, in a sense, in the
19 ITLOS Reports 1999, p. 274, at p. 295, para. 70.
20 Ibid., at p. 296, para. 77.
entire notion of mesures conservatoires, to quote the French title oI article 290.
21
In the circumstances, it was not appropriate or necessary Ior the Tribunal to make any
fnding as to the status oI the precautionary principle in international law.
Environmental considerations, in particular the poor state oI the stock oI southern
bluefn tuna, were very much in mind in ordering the provisional measures. The par-
ties were in agreement that the stock was severely depleted and there were serious
grounds Ior biological concern. The picture painted oI the southern bluefn tuna was
that oI a most valuable species, very much reduced in total numbers, slow to reach
maturity, and widely dispersed across the southern Indian Ocean and the Tasman
Sea. The collective management oI this species, entrusted by the three parties to the
Commission Ior the Conservation oI Southern Bluefn Tuna, appeared to have broken
down. No decisions were being taken in the Commission, and this at a time when new
entrants were coming into the fshery, producing unpredictable results. Notwithstand-
ing the experimental catches by commercial fshing vessels in what would normally
have been a time oI little fshing, all three parties indicated in response to a question
Irom the Tribunal that they intended to open their respective fshing seasons on 1
September 1999, and to do so on the usual basis.
22
The prospect at that point was one
oI increasing annual catches oI a species which was agreed by everyone concerned
to be at its lowest ever levels. Faced with that prospect, the Tribunal decided to im-
pose provisional measures on all three parties, not just Japan. These measures were,
frst, capping their respective annual catches; second, calling Ior renewed and closer
cooperation amongst the three parties; and third calling for improved relations with
third states and entities entering the fshery to the end that the latter would join in
the collective eIIorts at conservation and management. In this context, I would note
that the issues were not seen primarily as ones between a distant water fshing state
and two coastal states. The state oI origin oI the stock was Indonesia, a coastal state
increasing its catch, and part oI the problem concerned third states and entities. The
issues were seen as being ones to do with a breakdown oI cooperation in a regional
fsheries arrangement involving a highly migratory species.
The parties reported to the Tribunal on the steps taken to implement the measures.
As with all other cases, the Tribunal`s measures were Iully complied with.
23
Subse-
quently, the dispute was settled by agreement among the parties. The Commission
has re-started its work and membership has increased. All concerned appear to have
benefted, including the bluefn tuna.
24
21 A point made by Judge Treves in para. 9 oI his separate opinion (ibid., at p. 318).
22 Ibid., at p. 296, para. 75.
23 Particularly noteworthy was the decision oI the Court oI Appeals in St. Denis, Reunion
that the decision oI the Tribunal in the Camouco case was binding upon French Courts
since France is a party to the Convention: Judgment No. 266/2000 oI 21 March 2000.
24 See the remarks oI W. Mansfeld (Counsel to New Zealand) to a SEAPOL ConIerence
on 21 March 2001, as well as in a letter to the Editor oI the American Journal of Interna-
tional Law: 95 AJIL (2001) 624.
556 Chapter 32
E Swordpsh Case
The case concerning the conservation and sustainable exploitation oI swordfsh
stocks in the south-eastern Pacifc Ocean was submitted to a chamber oI the Tribunal
by means oI an agreement between Chile and the European Community.
25
Both sides
have made claims against the other concerning the exploitation and management of
this stock. The proceedings have been suspended at the request oI the parties and it
would not be appropriate to go into the details oI the claims. The case shows the type
oI issues on which the Tribunal, or in this case an ad hoc Chamber, can play a role.
F MOX Plant Case
This case was initiated by Ireland against the United Kingdom. Ireland sought Irom
the Tribunal an order under article 290 oI the Convention, pending the constitution
of an ad hoc arbitral tribunal under annex VII oI the Convention. The measures re-
quested were that the UK should suspend the authorisation oI a new plant on the
Sellafeld site in Cumbria and should ensure that there were no associated move-
ments oI radioactive materials in waters under British sovereignty or jurisdiction.
Like Australia and New Zealand in the SBT Case, Ireland invoked the precautionary
principle, contending that the burden lay on the UK to show that no harm would
result Irom discharges into the Irish Sea and other consequences oI the operation oI
the MOX Plant. AIter placing on record some assurances by the UK, the Tribunal
decided that the urgency oI the situation was not such as to require the prescription
oI measures as requested in the short time beIore the constitution oI the ad hoc body.
In the circumstances, no fndings were made concerning the status or applicability oI
the precautionary principle. At the same time, the Tribunal did state that 'prudence
and caution require that Ireland and the United Kingdom cooperate in exchanging
inIormation concerning risks or eIIects oI the operation oI the MOX Plant. The
Order called Ior consultations to exchange inIormation on possible consequences, to
monitor risks or eIIects, and to devise measures, as appropriate, to prevent pollution
of the marine environment.
26
The parties reported to the Registrar oI the Tribunal that
such consultations had taken place. The arbitration under annex VII to the Conven-
tion is proceeding.
G Issues to Do with the Registration and Management of Ships
Several cases have concerned ships fying a fag diIIerent Irom the nationality oI the
Master and the operating company.
27
In other words, the fags fown were what are
oIten described as ones oI 'convenience.
25 The latter could not appear as a party to a case beIore the International Court oI Justice,
in view oI the terms oI its Statute.
27 This was the situation in the Saiga, Camouco, Monte ConIurco and Grand Prince Cases.
The Saiga was registered in St Vincent and the captain came Irom the Ukraine. The
In both the Saiga (No 2) and Grand Prince Cases, the Tribunal considered the ques-
tion oI whether or not it had been established that the vessel was registered in the ap-
plicant state at all material times. In the Iormer case, an objection to the admissibility
oI the claims based on an alleged absence oI valid registration was rejected only aIter
a lengthy analysis oI the law and practice oI St Vincent.
28
In the Grand Prince Case,
aIter a lengthy review oI the Iacts, including evidence oI Belizean law and adminis-
trative practice, the Tribunal was not satisfed that Belize was the fag state oI the ves-
sel when the application Ior prompt release was submitted. Accordingly, the Tribunal
decided it was without jurisdiction to entertain the application under article 292.
29
In the Saiga Case, the Tribunal had also to consider an argument that the claim was
inadmissible on the additional ground that there was no genuine link between the
ship and St Vincent within the meaning oI article 91 oI the Convention. The Tribunal
Iound that there was no legal basis Ior that argument. The genuine link test had to do
with ensuring the eIIective administration and management oI ships and not with the
recognition oI nationality by other states.
30
The Tribunal also Iound that, on the Iacts,
Guinea had not shown there was no genuine link. The Attorney General oI St Vincent
took part in the case and evidence oI management, surveys and Vincentian supervi-
sion was produced.
31
The fnding could have been diIIerent on diIIerent Iacts.
In all these cases, the Tribunal has stressed the importance oI fag states complying
with their obligations under articles 91 and 94 oI the Convention.
III Summing Up
To sum up, numerous international maritime disputes are mentioned in the press.
For example, Lloyd`s List oIten reIers to incidents, arrests and diIIerences between
governments which could potentially come beIore a court or tribunal under Part XV.
Very Iew oI them actually materialise as legal cases, which may simply show that
governments take care to negotiate settlements rather than to litigate. Clearly, courts
do not choose their own cases, nor would it be proper Ior them to solicit work. The
Tribunal can play a role only when asked to do so by State Parties.
32
As I have attempted to demonstrate, the role oI the Tribunal today has been con-
ditioned by two main Iactors: frst, what the negotiators wished to give it during the
ConIerence, as set out in the Convention; second, what the States Parties actually
give it by choosing the Tribunal under article 287 or by submitting cases to it.
Camouco was fying the fag oI Panama but the Master was Spanish. The Monte Con-
Iurco was fying the fag oI the Seychelles when its Spanish Master was detained. The
Grand Prince was fying the fag oI Belize when its Spanish Master was apprehended.
The operators appeared not to be based in the fag states.
28 ITLOS Reports 1999, p. 10, paras. 55 to 74.
31 Ibid., para. 87.
32 Or states parties to other related Conventions such as the Straddling Stocks Agreement.
558 Chapter 32
In the result, most oI Tribunal`s work so Iar has come Irom the two main areas oI
its compulsory jurisdiction, namely applications Ior the prompt release oI vessels un-
der article 292 and applications Ior interim measures oI protection under article 290
pending the constitution oI an arbitral tribunal under annex VII. OI the eight reasoned
decisions, seven have been given in urgent proceedings. In addition, two cases have
been submitted by agreement, namely the Saiga No. 2 (Merits) and the Swordfsh
Case. The ten cases have come Irom diIIerent seas and oceans and they have raised
issues under several parts oI the Convention.
Part XV may be leading to an increase in the sum total oI international litigation.
This may be explained by two Iactors. First, the number oI applications Ior prompt
release, a completely new procedure, based upon the novel provisions in article 292
and, secondly, the number oI arbitrations commenced under Annex VII. This second
Iactor may be more signifcant. A new phenomenon compulsory arbitration under
article 287 and Annex VII may be emerging.
A third shaping Iactor is the role which the judges play. What have the judges made
so Iar oI the hand dealt them? The rules and working methods are designed to ad-
minister justice in accordance with the Convention without unnecessary expense or
delay. The Tribunal has acquired a reputation Ior adopting new approaches, Ior hard
work, and Ior prompt decisions. The Members oI the Tribunal remain ready, willing
and able to play their role in the settlement oI disputes under the Convention and the
related instruments. They remain available 365 days a year. I am confdent that they
will continue to try to handle cases eIfciently, to deliberate intensively, and to reach
correct and Iully reasoned decisions.
33
I should like to think that the Tribunal will
come to be accorded the central, supervising role in the interpretation and application
oI the Convention. As the Convention`s preamble accurately notes, the problems oI
ocean space are inter-related and need to be considered as a whole. This Iactor led to
the adoption oI a single Convention. Perhaps it should also lead in time to the wider
acceptance oI the Tribunal as the principal 'guardian oI the Convention.
34
33 The judges are aware that the most common criticism advanced by commentators is the
paucity oI reasoning. This is oIten caused by the need to work quickly in urgent cases.
34 The role already played by the Seabed Disputes Chamber in regard to disputes arising
under Part XI.
Chapter 33
The Judicial Work of the International Tribunal
for the Law of the Sea*
The Statute oI the International Tribunal Ior the Law oI the Sea provides that its
members are elected by the States Parties Ior a standard term oI nine years. The frst
members took oIfce on 1 October 1996; those members who served a single Iull
term, thereIore, leIt oIfce on 30 September 2005. This Chapter reviews the judicial
work oI the Tribunal during this initial period.
1
During this frst nine year cycle, the Tribunal`s Registrar entered the Iollowing 13
cases on the Tribunal`s list:
* Edited and updated version oI a lecture at the Centre Ior European, Comparative and
International Law, SheIfeld University, in May 2005.
1 The work oI the Tribunal in adopting its Rules, Guidelines and Resolution on Internal
Judicial Practice are dealt with in Chs. 29, 30 and 31. Some oI the cases were reviewed
in Ch. 32 and the discussion will not be repeated here. Annual surveys oI the Tribunal by
S. Rosenne, V. Lowe and R. Churchill have been published in the International Journal
of Marine and Coastal Law. The work oI the Tribunal during its frst six years was exam-
ined by Judge Chandrasekhara Rao in an article entitled 'ITLOS: The First Six Years, 6
Max Planck Yearbook of United Nations Law (2002) 183. For a valuable general survey,
see R R Churchill, 'Some Refections on the Operation oI the Dispute Settlement System
oI the UN Convention on the Law oI the Sea During its First Decade, in Freestone et al.
(eds.), The Law of the Sea: Progress and Prospects (OUP, 2006), Ch. 20.
560 Chapter 33
Case No. 1 The M/V SAIGA Case (Saint Vincent and the Grenadines v.
Guinea), Prompt Release
Case No. 2 The M/V SAIGA (No. 2) Case (Saint Vincent and the Gren-
adines v. Guinea)
Cases Nos. 3 and 4 Southern Bluehn Tuna Cases (New Zealana v. Japan; Australia
v. Japan), Provisional Measures
Case No. 5 The Camouco Case (Panama v. France), Prompt Release
Case No. 6 The Monte Confurco Case (Seychelles v. France), Prompt
Release
Case No. 7 Case concerning the Conservation and Sustainable Exploita-
tion of Sworahsh Stocks in the South-Eastern Pacihc Ocean
(Chile/European Community)
Case No. 8 The Grand Prince Case (Belize v. France), Prompt Release
Case No. 9 The Chaisiri Reefer 2 Case (Panama v. Yemen), Prompt Re-
lease
Case No. 10 The MOX Plant Case (Ireland v. United Kingdom), Provisional
Measures
Case No. 11 The Volga Case (Russian Federation v. Australia), Prompt
Release
Case No. 12 Case concerning Land Reclamation by Singapore in and around
the Straits of Johor (Malaysia v. Singapore), Provisional Meas-
ures
Case No. 13 The Juno Trader Case (Saint Vincent and the Grenadines v.
Guinea-Bissau), Prompt Release
The cases can be best reviewed in three categories: prompt release cases; provisional
measures cases; and merits cases.
I The Prompt Release Cases
Article 292 oI the Convention provides Ior a special procedure Ior the prompt re-
lease oI vessels and their crews Irom arrest in the Exclusive Economic Zone (EEZ)
by coastal states.
2
The procedure is available where a vessel has been detained on
fsheries charges (article 73) or pollution charges (articles 218, 220 and 226 may be
relevant). Seven applications were submitted to the Tribunal between 1997 and 2004,
and they all arose under article 73 read with article 292. No application was made
during the initial nine-year period in regard to a vessel detained on charges to do with
marine pollution, even though the number oI arrests oI tankers and other merchant
ships in EEZs on suspicion oI causing pollution by irregular discharges increased
steadily over that period as more and more coastal States implemented Part XII oI the
Convention in their domestic law.
2 The procedure was described in Ch. 15 above. For an excellent analysis, see D.J. Devine,
'Relevant Factors in establishing a reasonable bond Ior prompt release oI a vessel, 27
SAYIL (2002) 140.
561 The Judicial Work of the International Tribunal for the Law of the Sea
One oI the special Ieatures oI article 292 is that applications Ior prompt release
may be submitted whether or not there is a wider 'dispute between the two States
Parties concerned. II there is a wider dispute, it may or may not be submitted to a
court or tribunal under article 287. Another special Ieature is that applications may
be submitted either 'by or on behalI oI the fag state oI an arrested vessel. Whilst
the normal rule under Part XV is that disputes have to be submitted by a State Party,
an application under article 292 may be submitted 'on behalI oI the fag State by, in
eIIect, the owners or operators oI the vessel. A senior representative oI the fag State,
such as the Foreign Minister or Attorney General, has to have given consent. The
popularity oI this possibility is shown by the statistic that, between 1997 and 2004,
all but one oI the seven applications submitted to the Tribunal were 'on behalI oI the
fag State. In the six cases, arguments were presented to the Tribunal by lawyers who
were associated with the owners or operators oI the vessels concerned. In a minority
oI instances, the authorities oI the fag state were directly represented: Ior example,
the Attorney General oI St Vincent took part in the hearings in the M/V Saiga case,
making an opening address. In the majority oI these cases, however, there appeared
to be no-one Irom the administration oI the fag state present beIore the Tribunal.
The remaining case, an application Ior the release oI the oI the Volga, was submitted
by the Russian Federation which appointed an Agent Irom the Foreign Ministry; but
even here much oI the argument was presented by lawyers Irom another country,
New Zealand, who appeared to be associated with the owners or operators oI the
arrested vessel.
3
OI these seven applications, Iour sought the release oI fshing vessels and their
crews (Camouco,
4
Monte Confurco,
5
Grand Prince
6
and Volga
7
) and three the re-
lease oI fsheries support vessels and their crews (Saiga,
8
Chaisiri Reefer
9
and Juno
Trader
10
).
A Fishing Vessels and Their Masters/Crews
The Iacts oI the Camouco, Monte Confurco and Grand Prince cases are reviewed in
chapter 32. In the Volga case, the fag state (Russia) brought an application against
Australia Ior the prompt release oI the vessel and its crew Iollowing the arrest oI the
vessel oII the Heard and McDonald Islands on suspicion oI poaching toothfsh in the
EEZ contrary to Australian law and CCAMLR conservation measures. (It may be
3 They acted in this capacity in related proceedings beIore the Australian courts, the vessel
being under arrest in Fremantle, WA.
562 Chapter 33
noted that the Russian Federation was a member oI CCAMLR at the material time,
as was the State oI which the Master was a national (Spain).) The Tribunal accepted
as reasonable the amount oI the bail bond fxed by Australia, but went on to hold that
certain conditions designed to prevent re-oIIending pending trial were not fnancial
and thus not permitted under articles 73(2) and 292 oI the Convention.
11
B Support Vessel Cases
The Iacts oI the Saiga and Chaisiri Reefer cases were also reviewed in chapter 32.
The third case involving a support vessel was that oI the Juno Trader, a 'reeIer or
fsh transport vessel, fagged in St Vincent and arrested in the EEZ oI Guinea Bissau
at a point used Ior trans-shipping locally-caught fsh and close to some Ioreign fsh-
ing vessels. The investigating authorities on shore Iound that the vessel had on board
Irozen fsh oI species Iound locally. The authorities in Guinea Bissau conducted an
administrative enquiry, to which the captain was not invited, and decided that the
fsh on board had been caught in the EEZ oI Guinea Bissau. Administrative penal-
ties were imposed. A recent study by the FAO shows that administrative proceedings
have become more common in fsheries cases.
12
However, where foreign vessels are
concerned great care needs to be taken by administrative authorities to ensure due
process and Iair treatment on what in other States, including possibly the fag State,
would amount to criminal charges to be tried on the available evidence in a court oI
law. As a minimum, the master oI the vessel should be inIormed oI the reasons Ior
the detention and be given an opportunity to present an account oI the circumstances
beIore any Iurther administrative decisions are taken. In this case, the owners oI the
Juno Trader applied to the Tribunal Ior release under article 292 on the grounds that
the Irozen fsh had been loaded Iurther up the coast in Mauritanian waters, that the
vessel was in transit through the EEZ oI Guinea Bissau on its way to Ghana, and that,
whilst the vessel was slow-moving and admittedly near the fshing vessels, it car-
ried no fsh-Ireezing equipment. The owners produced evidence corroborating these
points. The Tribunal ordered release against a modest bond in these circumstances.
13
In a Declaration with two colleagues, I expressed the view that 'the Tribunal is .
entitled, in assessing the reasonableness oI the amount oI a bond or other fnancial
security, to take into account the nature and strength oI the evidence supporting the
charges.
14
This does not mean that the Tribunal should look into the merits: it is
simply part oI the assessment oI the gravity oI the charges. II a coastal State were to
detain and charge a vessel in the absence oI any hard evidence oI possible wrong-do-
ing in the EEZ, the 'alleged oIIences are less likely to be Iound to be 'grave.
11 ITLOS Reports 2002, p. 10. My views on this last point were set out in a dissenting opin-
ion.
12 Administrative Sanctions in Fisheries Law, available on the website oI the FAO: www.
fao.org.
14 Ibid., at p. 50 (Joint Declaration by Judges Kolodkin, Anderson and Cot).
The Tribunal had no diIfculty in applying article 292 to a fsheries support ves-
sel (in this case, a 'reeIer): the coastal State had applied its fsheries legislation
to the vessel in respect oI suspected violations in its EEZ. Thus, the Tribunal has
ordered the release oI two types oI fsheries support vessel: a small tanker suspected
oI having supplied bunkers to fshing vessels in the EEZ, and a fsh transport vessel
suspected oI having trans-shipped in the EEZ without permission fsh that had been
caught in the same EEZ. The decisions are relevant not only in the context oI articles
73 and 292 but also to the issue oI the extent oI coastal State jurisdiction over the
EEZ. The decisions leave open the general question oI jurisdiction over bunkering
and oII-shore supplies, a question which is oIten linked not to fshing in the EEZ but
rather to navigation where different considerations apply.
15
In several oI the prompt release cases, there existed some wider questions to do
with the law oI the sea, such as the right oI hot pursuit. However, since article 292`s
procedure is expressly confned to the question oI release and is without prejudice
to the merits, the Tribunal has been unable to look at these questions without the
agreement oI the parties. Such agreement was Iorthcoming only in the Saiga (No 2)
case. In all oI the cases, the proceedings have probably accelerated the release oI the
detained crews, including the Masters.
II The Provisional Measures Cases under Article 290(5)
Article 290 oI the Convention empowers the Tribunal to order provisional measures
in cases beIore it, as happened in the Saiga (No 2) case.
16
Additionally, paragraph 5
oI article 290 empowers the Tribunal to prescribe provisional measures in circum-
stances where a dispute is being submitted to arbitration under Annex VII, where the
arbitrators have not been chosen, and where measures are urgently required to protect
the parties` rights or to prevent serious harm to the marine environment, pending the
establishment oI the arbitral tribunal and the resolution oI the dispute.
Three such requests have been made to the Tribunal: Southern Bluehn Tuna, MOX
Plant and Land Reclamation cases. Several aspects oI the SBT cases were reviewed
in chapter 32. As regards the MOX Plant Case, the proceedings beIore the Tribu-
nal are reviewed in chapter 32.Subsequently, the arbitration under annex VII to the
Convention was suspended
17
pending the decision by the European Court oI Justice
(ECJ) on a complaint by the Commission against Ireland Ior having submitted the
dispute to third party arbitration instead oI to the Community`s institutions such as
EURATOM or the ECJ.
18
The ECJ held that Ireland had Iailed to Iulfl its obligations
under EC law. For the Iuture, the ECJ`s decision appears to mean that several types
oI maritime issues potentially involving two or more oI the 25 Member States will
Iall within the exclusive jurisdiction oI the ECJ and, in such instances, article 282 oI
15 These questions are explored in Ch. 11.
17 In its Order No. 4, the Tribunal suspended Iurther proceedings in the case until the ECJ
had given judgment or the Tribunal otherwise determined.
18 Case C-459/03.
564 Chapter 33
the LOS Convention would be relevant. Although the European Commission has re-
cently demonstrated political support Ior the Tribunal as an institution and Ior its role
in determining disputes concerning the law oI the sea, this recent decision appears
to have the eIIect oI reducing the chances oI disputes reaching any oI the courts and
tribunals mentioned in article 287.
The most recent application under article 290 was the Land Reclamation case. In
July 2003, Malaysia commenced an arbitration under Annex VII oI the Convention,
challenging Singapore`s reclamation works at both ends oI the Johore Straits. Ma-
laysia was concerned about three issues: the environmental impact oI the proposed
reclamation, the eIIects on its fshermen in the east, and work in a disputed area in the
west. In September 2003, Malaysia applied to the Tribunal under article 290 Ior pro-
visional measures and, Iollowing written statements by both parties, a hearing was
held at the end oI that month. Expert evidence was introduced on the environmental
aspects. In prior diplomatic exchanges, Singapore had contended that the works were
being undertaken in areas under its sovereignty, but beIore the Tribunal Singapore
oIIered certain assurances Ior the Iuture. The Tribunal decided it was not necessary
to order Singapore to stop the works, but directed Singapore not to conduct its land
reclamation in ways that might prejudice the rights oI Malaysia. The Tribunal called
upon the parties to cooperate and, in particular, to establish a group oI independent
experts to conduct a joint environmental study to determine the eIIects oI Singapore`s
land reclamation and to propose measures to deal with any adverse eIIects. This study
was concluded and certain recommendations made. On that basis the parties recently
settled their dispute. On 26 April 2005, agreement was reached on certain modifca-
tions to the fnal design oI the shoreline, on maintenance dredging and on compensa-
tion Ior Malaysian fshermen, as well as on a mechanism Ior continuing cooperation
on the environment.
19
The case shows that the submission oI a dispute to arbitration
can lead to a Iriendly settlement without great delay.
To sum up, the provisional measures ordered by the Tribunal in the three cases have
led to settlements oI two oI the disputes and appear to have improved bilateral rela-
tions between the parties in the third. The prescribed measures have been complied
with in all instances, and the parties have reported Iully to the Tribunal upon their
implementation oI the measures. The Tribunal has called upon the disputing parties
to cooperate in each case and to do so in ways it has specifed. The duty to cooperate
in regard to matters affecting the marine environment forms an important element in
the modern law oI the sea. The absence oI cooperation, especially when it takes the
Iorm oI unilateral action that prejudices others, is something to be deprecated.
19 The Agreement and terms oI settlement are reproduced in the UN Secretariat`s Law oI
the Sea Bulletin No. 59 (2006), p. 30. They are also posted on the website oI the PCA,
www.pca-cpa.org.
III The Merits cases
A The Saiga (No 2) Case
Several aspects oI this case are reviewed in Chapters 11 and 32.
B The Swordsh Case
The Iull title is the case concerning the Conservation and Sustainable Exploitation oI
Swordfsh Stocks in the South-East Pacifc Ocean. The parties are, interestingly, the
European Community (EC) and Chile, and the case is beIore a Special Chamber oI
the Tribunal. In other words, this is the frst case involving the EC as such, as opposed
to one or more oI its member states, in a dispute concerning an aspect oI the interna-
tional law oI the sea; and it is also the frst case beIore a Special Chamber. Following
contacts between the parties, the proceedings have been suspended. The most recent
Order oI December 2005
20
contains three interesting recitals:
14. Whereas it is in the interests oI the proper administration oI international justice
that proceedings in the case be conducted without unnecessary delay;
15. Whereas the Special Chamber considers that it should Iacilitate so Iar as is compat-
ible with the United Nations Convention on the Law oI the Sea, the Statute and the
Rules, direct and Iriendly settlement oI the dispute between the Parties;
16. Whereas the Parties have to provide adequate justifcation Ior seeking an extension
oI any time-limit specifed in the Order oI the Tribunal oI 20 December 2000, as
amended by the Orders oI the President oI the Special Chamber reIerred to in para-
graphs 3 and 5.
On that basis, the Chamber suspended Iurther proceedings until 2008, unless either
party Iormally requested an earlier date. The reIerence to the avoidance oI unneces-
sary delay echoes article 49 oI the Tribunal`s Rules. The reIerence to the Iacilitation
oI a Iriendly settlement, subject always to the need to remain true to the judicial
character oI the Special Chamber and the applicable instruments, echoes the terms
oI paragraph 35 oI the Order made by the ICJ in the Great Belt case to the effect that
'any negotiation between the parties with a view to achieving a direct and Iriendly
settlement is to be welcomed.
21
IV Concluding Observations
A The Role of the Tribunal in a Wider International Context
International maritime disputes are mentioned regularly by the media. For example,
Lloyd`s List oIten reIers to incidents, arrests and diIIerences between governments
20 Available on the website oI the Tribunal www.itlos.org.
21 ICJ Reports 1991, p. 12.
566 Chapter 33
which could potentially come beIore a court or tribunal. Very Iew oI them actually
materialise as legal cases. This may simply show that governments take care to ne-
gotiate settlements rather than to litigate. It may also show that the existence oI per-
manent bodies such as the ICJ and the Tribunal concentrate the minds oI negotiators
and induce a will to fnd settlements lest litigation be instigated. However, it may also
show that the available jurisdictional possibilities are insuIfcient to permit States,
especially weak ones, to submit grievances to a court or tribunal. II so, that would
indicate weaknesses both in the Convention and more widely in the operation oI the
rule oI law in international relations.
During the past decade, the world has witnessed a sharp increase in the number oI
international courts and tribunals and the size oI the international judiciary. ReIer-
ence has been made to the dangers oI proliIeration and conficting decisions. The sug-
gestion has been advanced in the name oI the ICJ that other tribunals might request
the General Assembly to seek Irom the ICJ advisory opinions on general issues oI
international law. It may have been overlooked that this possibility was not provided
Ior in Part XV oI the Convention, or in the Tribunal`s Statute or Rules. This Statute
does not contain any mechanism Ior seeking Advisory Opinions, akin to reIerences
by English Courts to the ECJ. Instead, the Convention empowers Tribunal to decide
itselI disputes within its jurisdiction and to apply all types oI relevant international
law. Moreover, the parties to the case may have chosen the Tribunal under article 287
deliberately. They may have considered and rejected the idea oI having recourse to
the ICJ. It is unIortunate that this suggestion has been repeated by diIIerent Presi-
dents oI the ICJ. Judge Higgins, the new President, has rejected the suggestion on the
grounds that 'this seeks to re-establish the old order oI things and ignores the very
reasons that have occasioned the new decentralization.
22
I hope a quietus can be
given to this suggestion.
B The Role of the Tribunal in the Context of the Convention
Turning now to the Tribunal`s conventional role, this has been conditioned by two
main Iactors: frst, what the negotiators intended to give it, namely settling disputes
about the interpretation and application oI the Convention (or, in more colourIul
terms, policing the 'deals in the package), and secondly what the States Parties have
actually given it by choosing the Tribunal under article 287 or by submitting cases to
it under its compulsory jurisdiction. The result so Iar has been that most oI the Tribu-
nal`s work has come Irom the two main areas oI its compulsory jurisdiction, namely
applications Ior the prompt release oI vessels under article 292 and applications Ior
provisional measures under article 290. The mechanism in article 287 has not yet
operated so as to bring a case beIore the Tribunal. Most oI the States Parties have not
made a positive choice under article 287, with the result that the deIault procedure,
arbitration, has been selected as it were by silence. This state oI aIIairs has led to an
increase in the numbers oI arbitrations: seven ad hoc arbitrations have been started
22 R. Higgins, 'Respecting the Sovereignty oI States and Running a Tight Courtroom, 50
ICLQ (2001) 121, at p. 122.
under the deIault rule in article 287.
23
OI these seven, two (the Saiga and Sworahsh
cases) have been converted by agreement into cases beIore the Tribunal; two others
(the SBT and Land Reclamation cases) have progressed a certain way beIore being
settled by agreement between the parties; in one case (SBT), the arbitral tribunal held
it was without jurisdiction; Iurther proceedings in the MOX Plant case have been
suspended pending the outcome oI other, related litigation; a decision on the merits oI
the dispute has been given in the Barbados/Trinidad and Tobago arbitration; and the
fnal case (Guyana/Suriname) remains still pending at the time oI writing (September
2006). The composition oI arbitral tribunals tends to vary, and a particular tribunal
may not always have the same overview oI the general economy oI the LOS Conven-
tion and its related agreements as does a standing body.
My conclusion is that the Tribunal`s role so Iar has been largely confned to consid-
ering urgent applications, all rather narrow in their scope. The Tribunal has shown an
ability to act eIfciently and without unnecessary delay. In the prompt release cases,
the Tribunal has upheld the human rights oI crews; and its decisions have probably
aIIected Ior the better in more than one country the handling, by both the authorities
and the courts, oI prosecutions oI the masters and owners oI Ioreign fshing vessels.
In the provisional measures cases, the Tribunal has discouraged unilateral actions;
and its Orders appear to have Iacilitated settlements oI Annex VII arbitrations by
calling Ior Iull cooperation between disputing parties, especially where there were
environmental risks. In this way, the Tribunal has given meaning and content to the
general duty to cooperate contained in the Convention. However, dealing with urgent
matters, whilst valuable, was not the principal role that many oI the negotiators at
the ConIerence on the Law oI the Sea envisaged; moreover, it does not allow Ior Iull
consideration oI issues and careIul draIting oI judgments. I venture to express the
hope that the Tribunal will soon begin to receive more cases on the merits, such as
maritime delimitation disputes or cases arising Irom incidents at sea or cases turning
upon the interpretation and application oI the Convention. I am confdent that the
judges stand ready to serve the international community in deciding both urgent and
non-urgent cases.
23 These were the Saiga, Swordfsh, Southern Bluefn Tuna, MOX Plant, Land Reclama-
tion, Barbados/Trinidad and Tobago Boundary and Guyana/Suriname Boundary cases.
Chapter 34
Scientic Evidence in Cases concerning the
Law of the Sea*
I Scientic Tests in the Modern Law of the Sea
For at least a halI century, the law oI the sea has looked to science and applied sci-
entifc tests in several diIIerent contexts. The UN Convention on the Law oI the Sea
('the Convention) has continued this process oI applying science to the law. Indeed,
today`s law looks more and more to science as mankind`s use and knowledge oI the
sea increases and the need Ior regulation becomes ever more apparent. Important top-
ics to which scientifc tests are now applicable include the Iollowing:
(A) The conservation of hsh stocks, both in the Exclusive Economic Zone and on
the high seas. Article 61 oI the Convention imposes a duty on the coastal State to
ensure that stocks in the EEZ are not endangered 'taking into account the best scien-
tifc evidence available to it. Article 119 requires States whose nationals fsh on the
high seas also to take measures 'on the best scientifc evidence available. In the
Fisheries Jurisdiction case (Federal Republic oI Germany v. Iceland) beIore the In-
ternational Court oI Justice ('ICJ), the Court Iound that negotiations were required
to balance the interests oI the Parties, adding 'This necessitates detailed scientifc
knowledge oI the fshing grounds. During the oral proceedings, a fsheries biologist,
* An earlier version oI this paper, prepared Ior the 30th Virginia Law oI the Sea ConIer-
ence, held in Dublin in July 2006, is to be included in M.H. Nordquist et al. (eds.), Law,
Science and Ocean Management (Iorthcoming).
570 Chapter 34
Dr Meyer, gave expert evidence to demonstrate the applicant`s concern Ior conser-
vation and the respondent`s uneven record in that regard. The scientifc evidence
clearly made an impression on the judges.
1
Scientifc evidence was introduced in the
Southern Bluehn Tuna cases (Australia v. Japan and New Zealand v. Japan) beIore
the International Tribunal Ior the Law oI the Sea ('the Tribunal).
2
As we shall see
below, this evidence concerned the biology oI the tuna stock and its general status or
condition in 1999.
(B) The delimitation of the continental shelf within and beyond 200 nautical miles
(nm), as well as the defnition oI the outer limit beyond in accordance with article 76
oI the Convention. The test oI 'natural prolongation involves geology and geomor-
phology. Two key criteria in article 76, namely the Ioot oI the slope and the thickness
oI the sedimentary rocks, were advocated respectively by Dr Hollis Hedberg
3
and Dr
Piers Gardiner,
4
two Earth scientists.
In regard to delimitation oI the continental shelI between neighbouring States
within the 200 nm limit, in both the Tunisia/Libya case and the Libya/Malta case,
the ICJ considered extensive written and oral evidence and arguments Irom both
parties concerning the geological nature oI the seabed oI the continental shelI oI the
Mediterranean Sea. In the case with Tunisia, Libya called a ProIessor oI Geology as
an expert witness: he was examined and cross-examined.
5
In the case with Malta,
Libya called three scientifc witnesses and Malta two: they were examined and cross-
examined.
6
In this latter case, the Court held that, since customary international law
had developed the concept oI the Exclusive Economic Zone based on the distance
criterion oI 200 nm alongside oI that oI the continental shelI, 'there is no reason to
ascribe any role to geological or geophysical Iactors within that distance. At the
same time, the Court summarized the disagreement between the scientists called by
the two sides and concluded that it 'is unable to accept the position that in order to
decide this case, it must frst make a determination upon a disagreement between
scientists oI distinction as to the more plausibly correct interpretation oI apparently
incomplete scientifc data.
7
This case is oI general interest in regard to scientifc
evidence in that it demonstrates the problems Iaced by judges where the scientifc
1 ICJ Reports 1974, p. 175, at p. 201. The story is told in Gtz et al., (eds.), Liber ami-
corum Gnther Jaenicke zum 85. Geburtstag, at p. 449 (now Ch. 10). ReIerence to the
scientist`s evidence was made by Judge Dillard in his separate opinion in the parallel case
UK v. Iceland (ICJ Reports 1974, 3 at p. 53).
3 H.D. Hedberg, National-International Jurisdictional Boundary oI the Ocean Floor (Oc-
casional Paper No. 16, Law oI the Sea Institute, University oI Rhode Island, 1972.
4 P.R.R. Gardiner, Reasons and Methods Ior Fixing the Outer Limits oI the Legal Conti-
nental ShelI beyond 200 nautical miles, 11-12 Iranian Review oI International Relations
(1978) 145.
5 ICJ Reports 1982, p. 18, at p. 25.
6 ICJ Reports 1985, p. 13, at pp. 8-9.
7 ICJ Reports 1985, p. 13, at p. 36 (para. 41).
571 Scientihc Eviaence in Cases concerning the Law of the Sea
evidence is unclear, incomplete or disputed. Scientifc questions could still arise in
regard to delimitations beyond 200nm and, iI a dispute arises there, evidence may
have to be submitted to a court or tribunal.
Turning to the determination oI the outer limit oI the continental shelI, the coastal
State is required by article 76 oI the Convention to submit 'inIormation to the Com-
mission on the Limits oI the Continental ShelI. A recent report in the public media
indicated that New Zealand had spent several million Dollars in acquiring scientifc
data Ior its submission to the Commission, which will look at the scientifc evidence
in the frst instance. Other broad margin states are conducting data-gathering and
research programmes prior to making their submissions to the Commission. II a de-
limitation dispute were to arise, whether under article 83 or article 76, the same or
similar evidence may also have to be submitted to a court or tribunal.
(C) The preservation and protection of the marine environment. Science and the
marine environment are linked in several ways. Most importantly, the defnition in
article 1(1) (4) oI the term 'pollution, being based on wording developed by the
Group oI Experts on the Scientifc Aspects oI Marine Pollution, has a strongly scien-
tifc favour Irom its use oI terms such as 'the introduction by man . oI substances
or energy into the marine environment and Irom its listing oI fve examples oI 'del-
eterious eIIects. This defnition applies, oI course, to the numerous reIerences to
'pollution in Part XII and, indeed, throughout the Convention. More specifcally,
Article 123 calls Ior co-ordinated scientifc research in enclosed and semi-enclosed
seas and Section 4 oI Part XII imposes duties on States to monitor and assess envi-
ronmental eIIects oI activities. In this connection, it will be recalled that written and
oral scientifc evidence was introduced in the Land Reclamation case (Malaysia v.
Singapore) beIore the Tribunal concerning the narrow waters oI the Straits oI Johore.
8
With regard to the possible environmental eIIects oI deep seabed mining, it may be
noted that articles 162 and 165 in Part XI reIer to 'substantial evidence oI .serious
harm.
(D) The provisions concerning the conauct ana promotion of marine scientihc re-
search in Part XIII oI the Convention.
As those Iour examples show, the particular scientifc discipline varies Irom the bi-
ology oI species oI fsh, to geology and other Earth sciences, to oceanography and
other environmental sciences, and fnally to scientifc research itselI. Moreover, other
examples could be cited, including the ecosystem approach Irom the UN Fish Stocks
Agreement oI 1995. The impact oI science on the modern law continues to grow.
II The Need for Scientic Evidence when Scientic Tests Are Applicable
II a dispute over such a matter were to be submitted to a court or tribunal under Part
XV oI the Convention, it could Irequently be the case that scientifc questions Iormed
572 Chapter 34
an integral part oI the wider dispute between the parties. At the least, such questions
would Iorm part oI the background to the disputed questions Ior determination by the
court or tribunal. In either event, there may well be a need Ior scientifc evidence and
argument to be introduced into the proceedings. There are several possibilities. The
most obvious is to include science, in the Iorm oI both argument and expert evidence,
in the written and oral pleadings oI the parties. One or both oI the parties may also
see a need to call an expert witness to give evidence on the disputed scientifc issues.
9
The court or tribunal may seek its own independent advice or inIormation, as part oI
its task oI ascertaining the Iacts. Under the Convention, a court or tribunal may also
appoint its own expert(s) under article 289 Experts, which reads as Iollows:
In any dispute involving scientifc or technical matters, a court or tribunal exercising ju-
risdiction under |section 2 Compulsory Procedures entailing Binding Decisions| may,
at the request oI a party or proprio motu, select in consultation with the parties no Iewer
than two scientifc or technical experts chosen preIerably Irom the relevant list prepared
in accordance with Annex VIII, article 2, to sit with the court or tribunal but without the
right to vote.
In practice, there are signifcant diIIerences between the considerations aIIecting
technical experts and those concerning scientifc experts. The Iormer may be more
oI a servant oI the court or tribunal, charged with a specifc task. There are several
examples in maritime delimitation cases where the parties have agreed to the ap-
pointment oI a hydrographer or cartographer as a technical expert to assist the court
or tribunal when it has reached its tentative decision, at a late stage in the delibera-
tions, by drawing the boundary on a suitable chart. A good precedent was the GulI
oI Maine case beIore a chamber oI the ICJ. Indeed, the appointment oII a technical
expert today represents the best practice since normally judges are not qualifed to
draw maps. Scientifc experts are in a diIIerent situation since scientifc advice may
be crucial to the result. The parties to a dispute are less likely to agree, in practice, to
the appointment oI two scientifc experts to sit with the judges since the parties would
have no knowledge oI the scientifc advice given to the judges during their delibera-
tions.
10
Although article 289 has not yet been directly invoked, it has been discussed
9 For a general survey oI the use oI scientifc and technical experts, see G.M. White, The
Use oI Experts by International Tribunals, 1965.
10 This problem was considered by the English Court oI Appeal in the case Owners of
the Bow Spring v. Owners of the Manzanillo II arising from an incident of navigation
involving the two vessels whilst they were in the Suez Canal. The Admiralty Court had
included two Elder Brethren oI Trinity House sitting as nautical assessors to advise the
judge but their advice was not disclosed. The Court oI Appeal ruled that Iairness, in-
cluding the right to a Iair trial in accordance with the European Convention on Human
Rights, required that where a judge in an Admiralty claim sought advice Irom nautical
assessors, their advice should be disclosed to the parties` counsel so as to aIIord them the
opportunity oI making representations as to whether the judge should accept the advice:
Judgment oI 28 July 2004 (EWCA Civ 1007). The Court oI Appeal also sat with a nauti-
cal assessor).
by the Tribunal in drawing up its Rules: article 15 oI the Rules implements article 289
by providing that experts must be independent and enjoy the highest reputation Ior
Iairness, competence and integrity. The Tribunal has dealt with more than one case in
which scientifc (e.g. biological and hydrological) and technical (e.g. cartographical)
issues were raised.
III International 1udges and Scientic Questions
International judges tend to have a diplomatic or legal background: their experience
does not oIten extend to questions oI science. In-depth experience oI the subject-mat-
ter oI cases, such as that gained by the English judge Lord Stowell in the early 19
th
century, is rare. Any scientifc knowledge judges may have acquired is no more than
general knowledge. Courts or tribunals have jurisdiction to determine disputes about
questions oI law, based also on their fndings on the Iacts. Judges are Iamiliar with
questions that have to do with the interpretation and application oI treaties or with
the terms oI customary international law. As the ICJ stated in the Libya/Malta case, a
court or tribunal cannot decide disputed questions oI science. Judges have to decide
legal questions on the basis oI the arguments and evidence submitted to them by the
parties to the case. Scientifc evidence, especially where the parties are in disagree-
ment about scientifc issues, may create diIfcult problems Ior a court or tribunal. In
these circumstances, the parties should consider most careIully how best to present
their argument and evidence on scientifc issues, always bearing in mind the amount
oI time available.
IV The case-law of the Tribunal
The Southern Bluehn Tuna Cases concerned applications by Australia and New Zea-
land under article 290 (5) oI the Convention Ior the prescription oI provisional meas-
ures in their dispute with Japan over the latter`s experimental fshing programme Ior
bluefn tuna in the Indian Ocean. The three States were members oI the Commission
Ior the Conservation oI Southern Bluefn Tuna (CCSBT), but cooperation had largely
broken down. The contention oI Australia and New Zealand (A&NZ) was that the
stock was endangered by the experimental fshing program since it involved catching
fsh in what would otherwise have been a closed season and in areas oI the high seas
in the Indian Ocean that had not previously been fshed. The respondent contended
that the dispute was scientifc, not legal, and that the question was one Ior the CCSBT.
Both sides submitted evidence about the state oI the stock oI bluefn tuna.
11
A&NZ
appended to their written pleadings statements by scientifc experts, some oI whom
were members oI the teams Ior the hearings in the case. Japan did the same and their
scientifc experts, including non-Japanese experts, were also present in Hamburg Ior
the hearings. In addition, Japan`s written Statement in Response included as Annex 1
11 ITLOS Pleadings, Minutes oI Public Sittings and Documents, Vol. 4, Southern Bluefn
Tuna, Provisional Measures. The Pleadings are also posted on the Website oI the Tribu-
nal.
574 Chapter 34
a Panel Statement by Iour independent scientifc experts who had been appointed by
the CCSBT. During the hearing, A&NZ called an expert witness Irom the UK. Fol-
lowing consultations between the parties and the President, the expert was examined
on the voir dire
12
by counsel Ior Japan (questions such as when and how the witness
had been approached by Australia), then examined-in-chieI by Counsel Ior Australia
and then cross-examined by counsel Ior Japan. In practice, it proved diIfcult to sepa-
rate the question oI the independence oI the witness Irom the question oI his compe-
tence/expertise in regard to the bluefn tuna stock. Since applications Ior provisional
measures are urgent proceedings, the parties were given specifc periods oI time Ior
the presentation oI their evidence and arguments, including time spent questioning
the expert witness whether on substance or voir dire. In other words, a diIfcult sci-
entifc issue had to be considered by non-expert judges under time pressure. I recall
that at the time I was interested in hearing what the expert witness had to say on the
scientifc aspects oI the case, in particular the state oI the stock oI bluefn tuna, in
both examination-in-chieI and under cross-examination. I would have been equally
interested in hearing similarly Irom any expert witness called by Japan, had that
course been chosen. An expert witness can give the gist oI the situation or assessment
and can be challenged by counsel Ior the other side almost immediately. An expert
can also be questioned by the judges. The opinion oI an expert who is independent
oI the parties is likely to carry special weight. This applies to both written and oral
statements by independent witnesses. An independent expert who is present in court
may also be in a position to comment on the written scientifc evidence submitted by
the parties.
In substance, A&NZ argued that Japan`s actions 'resulted in a threat to the stock
(para. 72 oI the Tribunal`s Order), but Japan countered that 'the scientifc evidence
available shows that the implementation oI the experimental fshing programme will
cause no Iurther threat to it (para. 73). In response to a question Irom the Tribunal,
the parties indicated that 'commercial fshing. is expected to continue throughout
the remainder oI 1999 and beyond (para. 75), seemingly in the normal way. The
Tribunal Iound that, although it could not 'assess the scientifc evidence presented
by the parties, it fnds that measures should be taken. to avert Iurther deterioration
oI the southern bluefn tuna stock (para. 80). Accordingly, the Tribunal prescribed
catch limits Ior all three parties, as well as other measures. This may have been
thought by some to have been too proactive. However, in prescribing catch limits, the
Tribunal Iollowed the precedent oI the ICJ`s Order indicating provisional measures
in the Fisheries Jurisdiction case (UK v. Iceland),
13
where catch limits were imposed
on the applicant.
12 This is a motion to cross-examine an expert witness during opposing counsel`s direct
examination to establish the credibility oI the witness beIore the witness gives evidence.
In modern practice, it is used mainly in US jurisdictions (Japan`s legal team included
lawyers Irom Washington D.C. who conducted the voir dire).
13 ICJ Reports 1972, p. 12. The measures were respected by the applicant; they were con-
tinued by a second Order in 1973: ICJ Reports 1973, p. 302.
The Land Reclamation case arose from a long-term programme of land reclama-
tion undertaken by Singapore in and around the Straits oI Johore. Malaysia was con-
cerned about certain planned and actual reclamation works on inter alia environmen-
tal grounds, Iearing that the works would adversely aIIect its own coasts and fshing
interests in the area. Malaysia applied to the Tribunal Ior provisional measures under
article 290(5). During the oral proceedings, Malaysia introduced evidence about the
hydrology oI the Straits oI Johore.
14
Two expert witnesses were called, one a ProIes-
sor oI Geomorphology at a University in Malaysia and the other a ProIessor oI Water
Management at a British University. The latter was examined, cross-examined and
re-examined in the usual way. The Iormer, on the other hand, began by addressing the
Tribunal as a member oI the Malaysian team and then made the solemn declaration
as a technical expert in accordance with the Tribunal`s Rule 79(b). She was not ex-
amined by Counsel Ior Malaysia but was cross-examined by Counsel Ior Singapore.
This rather unusual procedure was agreed in advance during consultations between
the President oI the Tribunal and the Agents and Counsel oI the parties. Singapore
presented its position on the scientifc and technical issues by means oI a presenta-
tion made as an advocate by a member oI the Ministry oI National Development that
included many visual images displayed on large screens in the courtroom.
15
I recall
fnding the presentations oI the expert witnesses illuminating, as were the images
displayed on the screens. However, the change in role from acting as an advocate to
giving evidence as a technical expert during the same sitting leIt me with something
oI a blurred impression overall.
In its Order, the Tribunal called upon both parties to cooperate and directed Sin-
gapore not to conduct its works in a way that would cause serious harm to the en-
vironment. Furthermore, the Tribunal responded to suggestions made by the par-
ties by ordering them to establish a group oI independent experts with a mandate to
conduct a joint study oI the eIIects oI the proposed reclamation work and to propose
measures to deal with any adverse eIIects. The group was duly established and its
report, including recommendations Ior modifcations in the proposed works, Iormed
the basis Ior an agreed settlement oI the dispute between the parties. The Settlement
Agreement signed by the parties recites the Tribunal`s Order, notes the establishment
oI the Group oI Experts and its decision to appoint an independent frm oI experts to
conduct detailed studies, and sets out the agreement based on the implementation oI
the recommendations oI the Group oI Experts.
16
This experience shows the value oI
bringing experts Irom the two sides together and oI appointing a single joint expert to
produce a joint report on technical or scientifc questions.
In this latter connection, some approaches to expert scientifc evidence recently
adopted by a common law jurisdiction may contain elements that are relevant also
in regard to international courts and tribunals. The Civil Justice Council Ior Eng-
land and Wales has recently adopted a Protocol Ior the Instruction oI Experts to give
14 PV 03/01 oI 25 September 2003 (morning), available on the Website oI the Tribunal.
15 PV 03/03 oI 26 September 2003 (morning), available on the Website oI the Tribunal.
16 Agreement oI 26 April 2005 between Malaysia and Singapore: available on www.pca-
cpa.org.
576 Chapter 34
Evidence in Civil Claims,
17
supplementing the Civil Procedure Rules. Among many
other points, the Protocol encourages the two sides to a case involving scientifc or
technical questions to appoint a single joint expert mandated to produce a single re-
port. Failing that, the courts encourage the two sides` experts to conIer with a view to
preparing a joint report: such a report should speciIy any agreed points, those where
diIIerent views are held and those where Iurther enquiry is needed. The general ap-
proach is that an expert should not act as an advocate in the case, but rather should
be prepared to give broadly the same evidence whichever party calls the expert. In
simple terms, experts owe a duty to the court to assist it in deciding the case: they
should give independent, proIessional opinions, explaining any qualifcations result-
ing Irom lack oI Iacts, etc., and they should resist the temptation to give opinions on
questions that lie outside their area oI expertise.
V Conclusions
1 In any proceedings, especially ones on the merits, where scientifc or technical
questions are involved, it may well be a good idea to supplement the written evi-
dence by calling an expert witness. Long written documents may not be entirely
clear to the lay reader, including judges. An expert can bring a subject to liIe, as
Dr Meyer did in Icelandic Fisheries case. An expert`s opinion can be tested by
cross-examination or by questions Irom the bench.
2 Where one side calls an expert witness, the other side should consider whether
to call a witness oI its own, or whether to present its side oI the story by other
means such as written statements by experts or presentations by counsel with
visual aids.
3 Courts and tribunals may preIer to have a single joint expert or to hear Irom at
least two experts, whether as experts sitting with the judges without the right to
vote in accordance with article 289 or (the more usual case) as witnesses called
by the two sides. The terms oI settlement oI the Land Reclamation case demon-
strate the eIIectiveness oI making joint expert studies oI technical questions.
4 In the interests oI clarity, it may be preIerable to maintain the distinction be-
tween the expert and the advocate.
5 The more independent oI the State concerned the expert is seen to be and the
higher the worldwide reputation oI the expert, the more likely is the expert to
impress the judges.
17 Protocol Ior the Instruction oI Experts to give Evidence in Civil Claims. Available on
www.civiljusticecouncil.gov.uk. Section 18 oI the Protocol concerns joint reports.
Chapter 35
Trust Funds in International Litigation*
I Introduction
The costs incurred by the parties in international litigation can be high, even though
the expenses oI the principal permanent courts and tribunals are met not Irom Iees
paid by parties to cases, but rather Irom a regular budget to which the Member States
contribute. The normal rule beIore international courts and tribunals is that each party
bears its own costs, irrespective oI the outcome.
1
These two Iactors may combine to
discourage a State with limited resources Irom seeking to settle a legal dispute with
another State by submitting it to an international court or tribunal Ior its decision.
These considerations may also inhibit a State Irom instituting proceedings in respect
oI an incident in which it has suIIered loss or damage. In the latter example, iI the
State does decide to proceed, the cost Iactor may reduce or even render Pyrrhic an
award oI compensation. To take a Iurther example, Iollowing recourse to a Iorm oI
judicial settlement which has proved to be eIfcacious, such as a decision resolving a
disputed boundary, the cost oI implementing the decision on the ground by erecting
* First published in N. Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda (2002) 793-
807.
1 Article 64 oI the Statute oI the International Court oI Justice reads: 'Unless otherwise de-
cided by the Court, each party shall bear its own costs. The same rule appears as Article
34 oI the Statute oI the International Tribunal Ior the Law oI the Sea. Exceptions are very
rare in interstate litigation beIore courts and tribunals oI many types.
578 Chapter 35
border markers in some diIfcult terrain may be fnancially prohibitive Ior one or both
oI the States concerned.
It was against this sort oI background that the Secretary-General oI the United
Nations
2
took the initiative in 1989 to create a Trust Fund Ior the International Court
oI Justice. On the occasion oI the consideration oI the Report oI the Court, the Sec-
retary-General announced the initiative to the General Assembly, reIerring to his re-
sponsibility to promote the settlement oI disputes by the Court. Initiatives by the
Secretary-General are rare. On this particular occasion, there was no proposal, de-
bate or decision in the General Assembly. Instead, the Secretary-General acted as the
ChieI Administrative OIfcer oI the Organisation, oI which the Court is the principal
judicial organ, and established by his own motion a permanent Trust Fund with its
own terms of reference.
3
The purpose oI the Trust Fund was (and is still today) to provide fnancial assist-
ance where this is needed in order to enable a State to have access to the Court Ior
resolving a dispute. Following this initiative, during the 1990s, Judge Oda and his
colleagues in The Hague have decided several cases in which one oI the parties was
in receipt oI assistance Irom the Trust Fund.
4
Sir Robert Jennings has described the
creation oI the Fund as an important development. He added the Iollowing:
The Iund is clearly an important step in enabling poorer countries to take advantage oI
the Court Ior the disposal oI disputes within its contentious jurisdiction, where the parties
are able to make a special agreement.
5
Arrangements Ior providing fnancial or other assistance to needy litigants, similar
to the Trust Fund, have been made in regard to several other international courts and
tribunals, and Ior similar reasons. Thus, Ior example, the Permanent Court oI Arbitra-
tion has established a Financial Assistance Fund Ior the Settlement oI International
Disputes. Assistance is available Irom the Fund to States named on the List oI Aid
2 At that time, the oIfce was held by Seor Javier Perez de Cuellar, a distinguished lawyer-
diplomat. His account oI his tenure, entitled Pilgrimage for Peace, 1997, reIers Irequent-
ly to international law and to the International Court oI Justice as a means oI resolving
disputes. His Legal Counsel in 1989 was Dr. Carl-August Fleischhauer, a most distin-
guished international lawyer and now a member oI the International Court oI Justice.
3 Annex to UN Doc. A/47/444 oI 7 October 1992. See also ILM 28 (1989), 1589 et seq.
4 InIormation about the working oI the Trust Fund may be Iound in several sources, includ-
ing P. Bekker, 'International Legal Aid in Practice: The ICJ Trust Fund, AJIL 87 (1993),
659 et seq., citing earlier sources; R.S. Lee, letter dated 30 November 1998, as part oI
the preparatory work Ior the Hague Centennial ConIerence, inIormation about which
is available at http://www.minbuza.nl/English; D. Vignes, 'Aide au Dveloppement et
assistance judiciaire pour le reglement des diIIrends devant la Cour internationale de
Justice, AFDI 35 (1989), 321 et seq.; and comments and contributions by H. Corell, A.
Pellet, K. Highet and R.S. Lee, in C. Peck and R.S. Lee (eds.), Increasing the Effective-
ness of the ICJ, 1997, at 8, 118, 134 and 360, respectively.
5 R.Y. Jennings, 'The International Court of Justice after Fifty Years, AJIL 89 (1995), 499
et seq.
579 Trust Funds in International Litigation
Recipients compiled by the Development Assistance Committee oI the Organisation
Ior Economic Cooperation and Development.
6
In the case oI the World Trade Organi-
sation, the Secretariat has been authorised to provide technical and legal assistance to
developing Member States, upon request, in regard to cases beIore the dispute settle-
ment mechanisms oI the Organisation. Assistance may take the Iorm oI providing the
services oI a legal expert Irom within the Secretariat.
7
The European Court oI Human
Rights has created a legal aid scheme. Applicants Ior legal aid must show fnancial
need in relation to an actual or a proposed case. Decisions are made by Chambers oI
the Court. The International Criminal Tribunals Ior Iormer Yugoslavia and Ior Rwan-
da have arrangements in place to assist accused persons who are indigent. The Iuture
International Criminal Court is to have the power to grant legal assistance where the
interests oI justice so require.
II The Establishment of the Trust Fund for the International Tribunal for
the Law of the Sea
In May 1999, in written comments submitted to the Netherlands Government in prep-
aration Ior the ConIerence to mark the Centennial oI the First International Peace
ConIerence, the Government oI the United Kingdom included a passage in positive
terms concerning the operation and eIIects oI the Secretary-General`s Trust Fund
Ior the Court. Three suggestions were made: consideration should be given, frst, to
broadening the base by encouraging donations Irom charitable Ioundations and, sec-
ondly, to 'the idea oI Counsel working on a reduced Iee (pro bono) basis in certain
cases. Thirdly, the Iollowing tentative suggestion was advanced:
Thought should also be given to whether similar Iunds should be considered Ior other
standing dispute resolution bodies (such as the International Tribunal Ior the Law oI the
Sea).
8
It is saIe to assume that this last suggestion did not pass unnoticed. Later that year, the
suggestion was considered briefy by the members oI the Tribunal, who Iormed a Ia-
vourable attitude towards the idea oI creating a Trust Fund Ior the Tribunal, provided
the Fund would be administered by an outside body such as the Secretary-General,
rather than by the Registry.
In May 2000, the delegation oI the United Kingdom to the Meeting oI the States
Parties to the United Nations Convention on the Law oI the Sea ('the Convention)
proposed that a Trust Fund Ior the Tribunal should be established and used 'princi-
6 Except as otherwise indicated, the inIormation in this paragraph has been taken Irom Ph.
Sands (ed.), Manual on International Courts and Tribunals, 1999.
7 E.-U. Petersmann (ed.), International Trade Law and the GATT/WTO Dispute Settlement
System, 1997, 78.
8 Para. 15 oI the Comments on the Centennial Themes, May 1999, Ior the Centennial oI
the First International Peace ConIerence, is available at http://www.minbuza.nl/English
(comment oI the United Kingdom).
580 Chapter 35
pally Ior proceedings on the merits oI a case and where the jurisdiction oI the Tri-
bunal was not an issue. The delegation suggested that the Fund should be available
'Ior expenses incurred in connection with any phase oI the proceedings in cases sub-
mitted, or to be submitted, to the Tribunal, including its Chambers.
9
The expenses
would include the preparation oI pleadings, counsel`s Iees, travel expenses, etc., but
not any award oI compensation. The proposal was welcomed by the President oI the
Tribunal, Judge P. Chandrasekhara Rao, who noted that the availability oI fnancial
assistance would help 'to overcome fnancial impediments to the peaceIul settlement
oI disputes.
10
He suggested that the Fund should not be restricted to providing as-
sistance only on the merits oI a case. Other delegations also welcomed the proposal
to create a trust Iund supported by voluntary contributions and administered by the
UN Secretary-General, with the advice oI a Panel oI Experts. With regard to the
procedure, the general conclusion oI the Meeting was that, having regard to the rela-
tionship
11
between the United Nations and the Tribunal, the General Assembly was
the most appropriate organ to create the Fund by means oI a resolution. AIter a Iull
discussion, it was decided to recommend to the General Assembly that it should give
consideration to the establishment oI a Trust Fund.
12
In October 2000, a draIt resolution under the item entitled Oceans and Law oI the
Sea on the agenda oI the General Assembly`s fIty-fIth session was submitted by a
large group oI co-sponsors. The proposals included a request to the Secretary-Gen-
eral 'to establish a voluntary trust Iund to assist States in the settlement oI disputes
through the tribunal..
13
Paragraph 10 oI the resolution invited 'States, intergovern-
mental organizations, non-governmental organizations, as well as natural and juridi-
cal persons, to make voluntary fnancial contributions to the Iund. The proposal was
accepted in GA Resolution 55/7.
14
The Iull terms oI reIerence oI the Trust Fund were
annexed to the resolution.
15
Its adoption was immediately welcomed by the President
oI the Tribunal.
16
III Similarities between the Funds for the Court and the Tribunal
A perusal oI the Annex to Resolution 55/7 shows that the scheme has many points in
common with the Trust Fund Ior the International Court oI Justice. For instance, both
9 UN Doc. SPLOS/60 oI 22 June 2000, para. 41.
10 Ibid., paras. 42 to 44.
11 The Agreement on Cooperation and Relationship between the United Nations and the In-
ternational Tribunal Ior the Law oI the Sea oI 18 December 1997 defnes the relationship.
For details, see G. Eiriksson, The International Tribunal for the Law of the Sea, 2000,
20.
12 UN Doc. SPLOS/60, paras. 45 to 47.
13 UN Doc. A/55/L. 10, para. 9.
14 The debates were recorded in UN DOC. A/55/PV 42 and 43, oI 26 and 27 October 2000,
respectively.
15 For ease oI reIerence, the Annex is reproduced at the end oI this article.
16 ITLOS/Press Release 39 oI 14 November 2000.
Funds are administered in accordance with the Financial Regulations oI the United
Nations
17
by the Secretary-General, who has to report to the appropriate political or-
gan on the status oI each Fund. In the case oI the Court, reports go to the General As-
sembly,
18
and in that oI the Tribunal, to the Meeting oI States Parties. In considering
requests Ior support Irom either Fund, the Secretary-General is assisted by a Panel oI
Experts, which plays an advisory role. Decisions are made by the Secretary-General.
It seems reasonable to expect some overlap in membership between the two Panels.
Assistance is available on request Irom States which need it Ior the purposes oI a case
beIore either the Court or the Tribunal. Potential contributors to the two Funds are
the same: they are listed as States, intergovernmental organisations, national institu-
tions, non-governmental organisations, as well as natural and juridical persons. These
lists are cast in terms which appear to be wide enough to embrace Ioundations, many
oI which have contributed generously in the past to projects designed to improve
arrangements Ior the peaceIul settlement oI international disputes.
19
Contributions
to both Funds are voluntary and usually in the Iorm oI cash. The moneys may be
disbursed in order to deIray the costs oI preparing the application and the written
pleadings, translations, counsel`s Iees, and the expenses oI hearings, including travel
expenses. In addition, the Funds are available to deIray the costs oI executing a judg-
ment, such as demarcating a boundary.
IV Some Differences between the Two Funds
At the same time, there are some important diIIerences between the terms oI reIer-
ence oI the two Funds. These diIIerences concern the respective reasons Ior estab-
lishing the two Funds, their objectives and purposes, the requirements to be met by
applicants for assistance, and the facility of offering to provide professional assist-
ance on a reduced Iee basis. There are several reasons Ior these diIIerences.
A The Respective Reasons for Establishing the Two Funds
The rationale Ior establishing the Court`s Trust Fund was explained by the Secretary-
General in paragraphs 1 to 5 oI the terms oI reIerence. Problems were identifed with
the inability oI States to proceed to submit a dispute to the Court, or to implement a
decision oI the Court (e.g., the demarcation oI a land boundary), because oI a lack oI
expertise or Iunds.
In the case oI the Tribunal, the reasons were basically the same as those Ior the
Court`s Trust Fund and require no Iurther elaboration. In addition, however, there
were some structural reasons having to do with Part XV oI the Convention on the
Law oI the Sea, as Iollows. Paragraph 1 oI the terms oI reIerence, aIter setting out the
17 Financial Regulations and Rules oI the United Nations, UN Doc. ST/SGB/188 (1985).
18 For an example oI such a Report, see UN Doc. A/47/444 oI 7 October 1992.
19 Indeed, an important landmark concerning the settlement oI disputes during the Third
United Nations ConIerence on the Law oI the Sea was the inIormal meeting held in
Montreux in 1975 under the sponsorship oI the RockeIeller Foundation.
582 Chapter 35
Iour means oI settlement listed in Article 287 oI the Convention, recalls that States
are Iree to choose one or more oI those means. The next paragraph oI the terms oI
reIerence notes that both the Court and the Permanent Court oI Arbitration have Trust
Funds which are available, in accordance with their terms, Ior those eligible States
Parties which choose either the Court or arbitration under Article 287. Thus, needy
litigants, whether appearing beIore the Court or the Permanent Court oI Arbitration,
may be provided with fnancial assistance. In order to enable indigent States to ex-
ercise properly their Ireedom oI choice under Article 287, the Tribunal should be
placed in a similar situation. This was the thinking behind paragraph 2 oI the terms
oI reIerence, reading:
The burden oI costs should not be a Iactor Ior States in making choices under Article 287,
in deciding whether a dispute should be submitted to the Tribunal, or in deciding upon
the response to an application made to the Tribunal by others.
In other words, the creation oI a Trust Fund Ior the Tribunal means that assistance is
potentially available whether an eligible State chooses the Court or opts Ior certain
types oI arbitration (where the Permanent Court oI Arbitration is clearly one possibil-
ity Ior both the Iorum and the venue) or preIers the Tribunal. In the new circumstances
resulting Irom the establishment oI the Fund Ior the Tribunal, cost should no longer
be a signifcant Iactor in the making oI choices by States eligible Ior assistance.
B Objects and Purposes of the Trust Funds
The object and purpose oI the Fund Ior the International Court oI Justice are to pro-
vide fnancial assistance to States Ior expenses incurred in connection with a dispute
submitted to it by means oI a special agreement, or Ior the purpose oI executing a
judgment resulting Irom such an agreement. It is apparent that the requirement oI a
special agreement limits the availability oI the Fund quite considerably. For instance,
the requirement means that the Fund is not available to the impecunious State which
has been made a respondent in a case in which the Court`s jurisdiction is Iounded
not upon a special agreement under Article 36(1) oI the Court`s Statute but instead
upon two matching declarations made under Article 36(2). Nor would the Fund ap-
pear to be available Ior a case where jurisdiction is based on the disputes article oI a
treaty, even when jurisdiction is not in issue.
20
No doubt, in establishing the Fund, the
Secretary-General wished to avoid all possible controversy over jurisdictional issues.
According to a member oI the Court`s Registry, Arthur Witteveen, 'That approach
was taken in order that the Fund not be used to fnance cases in which the Respond-
20 Although there may be some fexibility in certain circumstances. According to R.S. Lee,
the Fund provided assistance in the Senegal/Guinea-Bissau case where there was no
agreement but the Court`s jurisdiction was no longer contested: see his letter cited in note
2 supra. It is unclear whether or not the Fund would be available to an otherwise eligible
party to a case in which the Court`s jurisdiction was based on two choices oI the Court
made under Article 287 oI the LOS Convention.
ent State contested the jurisdiction oI the Court but at the same time, through its
participation in the Fund, was contributing to the fnancing oI that case.
21
The risk
oI such an unIortunate coincidence could, perhaps, have been averted by adminis-
trative means, and the restriction may have had unintended consequences. Shabtai
Rosenne has written: 'It is not clear why the purpose oI the Fund is limited to cases
submitted jointly by the parties, or why it cannot be used to contest the jurisdiction oI
the Court whether by way oI preliminary objection or in any other way. The Statute
(Article 40) does not give preIerence to any particular method oI conIerring jurisdic-
tion on the Court..
22
Conceivably, a State could be placed in the position oI being
unable, Ior fnancial reasons, to conduct its legal aIIairs in the manner oI its choice.
That situation would appear to be undesirable in principle. More generally, it would
be unIortunate were developing States to hesitate to make declarations under Article
36(2) Ior Iear oI being compelled to deIend, at considerable expense and without the
possibility oI having recourse to the Trust Fund, applications made against them by
wealthier States which also had made such declarations. These Iactors, coupled with
the normal rule that each party bears its own costs regardless oI the outcome, can
serve only as discouragements in practice.
In the case oI the Tribunal, there is no requirement Ior a special agreement. This
change seeks to avoid the problems just outlined above by opening up the Fund more
widely. The new approach also, and perhaps more signifcantly, refects the diIIerence
between the jurisdiction oI the Court when it is acting in a case under Article 36 oI its
Statute, where the jurisdiction is Iundamentally consensual,
23
and the jurisdiction oI
courts and tribunals when they are acting under Part XV, where the basic rule is that
contained in Article 286. By virtue oI Article 286, in establishing their consent to be
bound generally by the Convention, States also, at that stage, establish their particular
consent, subject to section 3 oI Part XV, to the jurisdiction oI courts and tribunals
'having jurisdiction under section 2 in those disputes concerning the interpretation
or application oI the Convention where no settlement has been reached by recourse
to section 1. (The term 'having jurisdiction is not circular or question-begging. In its
context, the term is apt simply to identiIy an appropriate Iorum listed in Article 287.)
It is perhaps a sad refection on the present state oI international relations that a State
Party to the Court`s Statute need never take the next step and consent to the jurisdic-
tion oI the Courtwhether generally under Article 36(2), or in a treaty or in relation
to a particular dispute. In contrast, States Parties to the Convention do consent to a
measure oI jurisdiction on the part oI an international court (including the Court) or
some other international tribunal (including the Tribunal and its Seabed Disputes
Chamber) which is acting in respect oI a dispute arising within the scope oI Part XV.
Accordingly, it was considered unnecessary to require a special agreement as a pre-
condition Ior access to the Tribunal`s Trust Fund, bearing in mind that the Tribunal`s
jurisdiction is Iounded on the Convention.
21 See A. EyIfnger, The International Court of Justice 19461996, 1996, 365.
22 S. Rosenne, The Law and Practice of the International Court 19201996, 1997, 515.
23 This point was stressed by Judge Oda in his article 'The Compulsory Jurisdiction oI the
International Court oI Justice: A Myth?, ICLQ 49 (2000), 251.
584 Chapter 35
The purpose oI the Fund is to provide fnancial assistance to States Parties to the
Convention Ior expenses incurred in connection with cases submitted, or to be sub-
mitted, to the Tribunal, including the Seabed Disputes Chamber and any other Cham-
ber. According to paragraph 5 oI the terms oI reIerence,
Assistance. should only be provided in appropriate cases, principally those proceeding
to the merits where jurisdiction is not an issue, but in exceptional circumstances may be
provided for any phase of the proceedings.
This is an important paragraph, on which some comments may be in order. Assist-
ance is to be provided, naturally, in accordance with the terms oI reIerence. It is
the Secretary-General who will have no doubt the recommendations oI a Panel oI
Experts. The reIerence to the 'merits would include the broad substantive ques-
tions arising Ior decision in a normal case, as well as the more limited 'merits oI
applications Ior the prompt release oI vessels and crews brought under Article 292.
The existence oI 'exceptional circumstances would again be determined by the UN
Secretary-General. Where such circumstances exist, assistance may be provided Ior
'any phase oI the proceedings in a case. These phases would include a preliminary
objection to the jurisdiction oI the Tribunal or to the admissibility oI an application,
an application Ior provisional measures oI protection, the presentation oI a counter-
claim and an application to intervene.
C Applications for Financial Assistance
The requirements Iacing an applicant Ior assistance are more onerous in regard to the
Court`s Fund than that oI the Tribunal. In the Iormer case, the State seeking assist-
ance must be in a position to produce a copy oI a special agreement submitting to the
Court a specifc dispute Ior its decision. In the latter case, the State seeking assistance
(being a State Party to the Convention) must simply describe the nature oI the case
which is to be, or has been, brought by or against the State concerned. In other words,
the applicant Ior assistance could be the applicant in the proceedings or the respond-
ent. There may or may not be a special agreement. The applicant may not have taken
any step in the case. For example, it may not have fled an application. Indeed, the
State may wish to consult Counsel at the outset as to whether or not there is a good
case to be made and, iI so, whether the Tribunal is an appropriate Iorum in which to
institute proceedings, in circumstances where there is more than one possibility.
D Offers of Professional Assistance
The terms oI reIerence oI the Trust Fund Ior the Court reIer only to fnancial assist-
ance, without mentioning the possibility oI making oIIers oI proIessional assistance.
In contrast, paragraph 13 oI the terms oI reIerence oI the Tribunal`s Trust Fund reads
as Iollows:
The implementing oIfce also maintains a list oI oIIers oI proIessional assistance which
may be made on a reduced Iee basis by suitably qualifed persons or bodies. II an ap-
plicant Ior assistance so requests, the implementing oIfce will make the list oI oIIers
available to it Ior its consideration and decision: both fnancial and other assistance may
be extended in respect oI the same case or phase thereoI.
This paragraph opens the door to individuals and law frms that have a particular
interest or experience in international litigation, the law oI the sea or the Tribunal
to make a standing oIIer oI their services on a reduced Iee basis Ior the purposes oI
the Trust Fund. It is made clear in paragraph 13 that, in every instance, the decision
whether or not to take up such an oIIer lies with the government that is seeking as-
sistance. It is Ior that government to decide whether to take up such an oIIer or not.
This is not a question upon which the Panel oI Experts advises the Secretary-General.
There may be many reasons why a government is unwilling to avail itselI oI such an
oIIer, without having to give reasons. On the other hand, a particular oIIer may prove
to be attractive and discussions about the scope and terms oI possible assistance
could be entered into. OIIers may be confned, Ior example, to the giving oI advice or
to the preparation oI studies. Equally, oIIers may extend also to appearing beIore the
Tribunal as counsel or as a member oI the team oI representatives.
Paragraph 13 concerns what has sometimes been described elsewhere as pro bono
work,
24
although that particular expression, oIten inappropriate in an international
context, was not used. Suitably qualifed persons or bodies include individuals and
law frms that have experience in appearing beIore international courts and tribunals,
as well as proIessors and experts in disciplines such as international law, in particular
the law oI the sea, as well as shipping, maritime, mining and environmental law. The
number oI such persons and frms with international experience is growing rapidly.
At one time, the pool oI advocates beIore the Court was composed oI a small number
oI law proIessors. Today, with the increase in international litigation, more and more
lawyers have had the experience oI appearing beIore an international court or tri-
bunal. Indeed, many governments now engage the services oI large law frms, usu-
ally based in Europe or North America, to assist with their representation beIore the
Court. The same is true oI other courts and tribunals. These individuals and frms may
also be willing to undertake some pro bono work in both the national and now the
international context.
25
In other words, they are now enabled, pursuant to paragraph
13, to bring their expertise to bear at the international level on a reduced Iee basis.
Suitably qualifed persons may also include technical experts, such as hydrogra-
phers, cartographers, historians, fsheries scientists, environmental scientists, mining
engineers and the like. In the past, such experts have oIten been attached to legal
teams in boundary or fsheries cases.
24 Suggestions were made to extend the Court`s Trust Fund in this direction by T. Franck,
in C. Peck and R.S. Lee (eds.), see note 4, 496, as well as in the comments oI the United
Kingdom, see note 8.
25 For a recent survey oI the evolution oI practice in this regard in England, see M. Zander,
Cases and Materials on the English Legal System, 8th ed., 1999, 542.
586 Chapter 35
V Some Concluding Remarks
In the case oI individuals, equality beIore the law and access to justice are both basic
human rights. Many States operate schemes oI legal aid and assistance in order to
avert the risk oI there being a denial oI justice to poor persons on account oI their in-
ability to meet the high costs oI litigation, whether civil or criminal.
26
With the recent expansion in the number oI international courts and tribunals and
the increase in the number oI cases coming beIore them, international litigation today
involves States Irom all parts oI the world. In some contexts, litigation is becoming
a routine element in the work oI governments. A major element in international re-
lations, world trade, is now subject to a system oI dispute settlement which is very
active. States in all stages oI development, rich and poor, participate as applicants,
respondents or interveners in cases beIore the Court and other international tribunals.
While States are in principle equal beIore the law,
27
some small developing States
possess only limited resources Ior the conduct oI international litigation. In practice,
they tend to be remote Irom the seats oI most international tribunals. Such a State,
when Iaced with a legal dispute with another State, may need advice and assistance
Irom experienced counsel Ior a variety oI reasons: Ior example, in order to assess the
strength oI its legal position, determine which are the legal procedures open to it, and,
iI it decides to have recourse to a court or tribunal, present its arguments in the most
eIIective manner. By using the administrative skills and good oIfces oI impartial
public servants, such as the UN Secretary-General and his legal staII, Trust Funds
have been structured, and are being managed, in ways which do not aIIect the impar-
tiality oI the courts or tribunals concerned. For their part, courts, both national and
international, beneft Irom the appearance beIore them oI expert advocates, versed
not only in the relevant rules oI law but Iamiliar also with the practice and procedure
oI the Iorum. Their presence helps to ensure that relevant points oI Iact and law, in-
cluding precedents Irom all international courts and tribunals (and especially those
oI the Court), are presented and argued beIore decisions are reached. In that sense,
Trust Funds assist not only litigants but also the courts beIore which assisted litigants
appear. Indeed, the administration oI justice generally is enhanced thereby.
It is a good development, thereIore, that each major international court and tri-
bunal, including most recently the Tribunal, has its own Iacility Ior providing ap-
propriate assistance upon request. Such Iacilities avoid the risk oI access to justice
being rendered illusory, or even denied in practice, Ior fnancial reasons. In short,
Trust Funds and other similar Iorms oI assistance help to advance the rule oI law in
international relations. It is to be hoped, thereIore, that both Trust Funds, as well as
26 In England, the legislation has recently been reIormed in the Access to Justice Act
1999.
27 This is an aspect oI the Charter Principle oI the sovereign quality oI States, reviewed by
C. Warbrick in C. Warbrick and V. Lowe (eds.), The United Nations and the Principles
of International Law, 1994, 209. In his survey, Warbrick alludes to equality in relation to
the Court and to the Trust Fund.
the other Iacilities, will receive Iull and continuing support Irom governments and
other contributors.
28
28 As stated by Sir Arthur Watts (United Kingdom) in the General Assembly, the best help
'is money (UN Doc. A/44/PV.43), quoted by P. Bekker, see note 2. Upon the adop-
tion oI GA Resolution 55/7, establishing the Trust Fund Ior the Tribunal, one delegation
announced a donation and others indicated that consideration would be given to mak-
ing one. Some Iurther contributions were made. The Fund was used in the Juno Trader
case.
588 Chapter 35
Annex I to General Assembly Resolution 55/7:
The Terms of Reference of the Trust Fund for the International Tribunal for
the Law of the Sea
Reasons for Establishing the Trust Fund
1. Part XV oI the United Nations Convention on the Law oI the Sea ('the Conven-
tion) provides Ior the settlement oI disputes. In particular, Article 287 specifes
that States are Iree to choose one or more oI the Iollowing means:
(a) The International Tribunal Ior the Law oI the Sea;
(b) The International Court oI Justice;
(c) An arbitral tribunal;
(d) A special arbitral tribunal.
2. The Secretary-General already operates a Trust Fund Ior the International Court
oI Justice (see A/47/444). The Permanent Court oI Arbitration has established a
Financial Assistance Fund. The burden oI costs should not be a Iactor Ior States,
in making the choices under Article 287, in deciding whether a dispute should
be submitted to the Tribunal, or in deciding upon the response to an application
made to the Tribunal by others. For these reasons, it was decided to create a
Trust Fund Ior the International Tribunal Ior the Law oI the Sea ('the Tribu-
nal).
Object and Purpose of the Trust Fund
3. This Trust Fund ('the Fund) is established by the Secretary-General in accord-
ance with General Assembly Resolution XXX and pursuant to the Agreement
on Cooperation and Relationship Between the United Nations and the Tribunal
oI 18 December 1997 (General Assembly Resolution 52/251, annex).
4. The purpose oI the Fund is to provide fnancial assistance to States parties to
the Convention Ior expenses incurred in connection with cases submitted, or to
be submitted, to the Tribunal, including its Seabed Disputes Chamber and any
other Chamber.
5. Assistance, which will be provided in accordance with the Iollowing terms and
conditions, should only be provided in appropriate cases, principally those pro-
ceeding to the merits where jurisdiction is not an issue, but in exceptional cir-
cumstances may be provided Ior any phase oI the proceedings.
Contributions to the Fund
6. The Secretary-General invites States, intergovernmental organizations, national
institutions, non-governmental organizations, as well as natural and juridical
persons, to make voluntary fnancial contributions to the Fund.
Application for Assistance
7. An application Ior assistance Irom the Fund may be submitted by any State
Member to the Convention. The application should describe the nature oI the
case which is to be, or has been, brought by or against the State concerned and
should provide an estimate oI the costs Ior which fnancial assistance is request-
ed. The application should contain a commitment to supply a fnal statement oI
account oI the expenditures made Irom approved amounts, to be certifed by an
auditor acceptable to the United Nations.
Panel of Experts
8. The Secretary-General will establish a panel oI experts, normally three persons
oI the highest proIessional standing, to make recommendations on each request.
The task oI each panel is to examine the application and to recommend to the
Secretary-General the amount oI the fnancial assistance to be given, the phase
or phases oI the proceedings in respect oI which assistance is to be given and the
types oI expenses Ior which the assistance may be used.
Granting of Assistance
9. The Secretary-General will provide fnancial assistance Irom the Fund on the
basis oI the recommendations oI the panel oI experts. Payments will be made
against receipts showing expenditures made in respect oI approved costs. The
latter may include:
(a) Preparing the application and the written pleadings;
(b) ProIessional Iees oI counsel and advocates Ior written and oral pleadings;
(c) Travel and expenses oI legal representation in Hamburg during the various
phases of a case;
(d) Execution oI an Order oI Judgment oI the Tribunal, such as marking a
boundary in the territorial sea.
Application of the Financial Regulations and Rules of the United Nations
10. The Financial Regulations and Rules oI the United Nations will apply to the
administration oI the Fund, including the procedures Ior audit.
Reporting
11. An annual report on the activities oI the Fund, including details oI the contribu-
tions to and disbursements Irom the Fund, will be made to the Meeting oI States
Parties to the Convention.
Implementing Ofce
12. The Division Ior Ocean AIIairs and the Law oI the Sea oI the OIfce oI Legal
AIIairs is the implementing oIfce Ior this Fund and provides the services Ior the
operation oI the Fund.
Offers of Professional Assistance
13. The implementing oIfce also maintains a list oI oIIers oI proIessional assist-
ance which may be made on a reduced Iee basis by suitably qualifed persons or
bodies. II an applicant Ior assistance so requests, the implementing oIfce will
make the list oI oIIers available to it Ior its consideration and decision; both
590 Chapter 35
fnancial and other assistance may be extended in respect oI the same case or
phase thereof.
Revision
14. The General Assembly may revise the above iI circumstances so require.
Chapter 36
Article 283 of the UN Convention on the
Law of the Sea*
Introduction
The International Tribunal Ior the Law oI the Sea, when presided over by Judge
Thomas Mensah, was the frst court or tribunal acting under Part XV oI the United
Nations Convention on the Law oI the Sea (Convention) to have occasion to consider
article 283. This was in the Southern Bluefn Tuna cases where the Tribunal stated its
view that 'a State Party is not obliged to pursue procedures under Part XV, section
1, oI the Convention when it concludes that the possibilities oI settlement have been
exhausted.
1
The Tribunal was slightly more specifc in its Order prescribing provi-
sional measures in the MOX Plant case in stating that 'a State Party is not obliged
to continue with an exchange oI views when it concludes that the possibilities oI
reaching agreement have been exhausted.
2
A more extensive review of article 283
by the Tribunal was made in the Land Reclamation case,
3
and this in turn was Iol-
lowed by a Iull consideration in the Barbados/Trinidad case by an arbitral tribunal
* A version oI this essay was included in T.M. Ndiaye and R. WolIrum (eds.), Liber Ami-
corum Judge Thomas A. Mensah, 847-866.
1 ITLOS Reports 1999, p. 280, at p. 295.
2 ITLOS Reports 2001, p. 95, at para. 60.
592 Chapter 36
constituted under Annex VII to the Convention.
4
It is timely, thereIore, to examine
this provision.
It will be recalled that Article 283 oI the Convention reads as Iollows:
Obligation to exchange views
1. When a dispute arises between States Parties concerning the interpretation or ap-
plication oI this Convention, the parties to the dispute shall proceed expeditiously
to an exchange oI views regarding its settlement by negotiation or other peaceIul
means.
2. The parties shall also proceed expeditiously to an exchange oI views where a pro-
cedure Ior the settlement oI such a dispute has been terminated without a settlement
or where a settlement has been reached and the circumstances require consultation
regarding the manner of implementing the settlement.
Several questions arise about this seemingly simple provision. Why was it included?
What is its eIIect? Does it amount to a precondition Ior the reIerence oI a dispute to a
court or tribunal (similar to the precondition oI diplomatic negotiations contained in
compromissory clauses in some bilateral and multilateral treaties)? How has it been
applied by tribunals? This paper will attempt to give some answers.
I Legislative History
The preparatory work on what became article 283 began in 1975 when the Working
Group on Dispute Settlement (WG), co-chaired by Ambassador Harry oI Australia
and Ambassador Galindo Pohl oI El Salvador, considered the question oI the set-
tlement oI disputes. The WG drew up Iour draIt articles oI a general nature: they
became articles 279, 280, 282 and 283. DraIt article 4 read as Iollows:
1. II a dispute arises between two or more Contracting Parties with respect to the
interpretation or application oI this Convention, those Parties shall proceed expedi-
tiously to exchange views regarding settlement oI the dispute.
2. Similarly, such an exchange oI views shall be held whenever a procedure under
this Convention, or another procedure chosen by the parties, has been terminated
without a settlement oI the dispute.
5
4 45 ILM (2006) 798. The decision is also available on www.pca-cpa.org.
5 DSG/2nd session/No.1/Rev.1 dated 1 May 1975; reproduced in R. Platzder (ed.) Third
UN Conference on the Law of the Sea: Documents, vol. XII, p. 108. Ambassador Galindo
Pohl expressed the view in 1976 that it would have been better to have used the term
'consultations rather than 'exchange oI views since consultations 'were more Ior-
mal and detailed and included consideration oI the settlement oI disputes (58th Plenary
Meeting, OIfcial Records, volume V, p. 8). The word 'consultation does now appear in
the fnal version oI article 283(2).
593 Article 283 of the UN Convention on the Law of the Sea
An unchanged draIt article 4 was included by the President in his InIormal Single
Negotiating Text oI 21 July 1975.
6
The text was similar to what became article 283,
but it should be noted that there is no express mention oI negotiation as a means oI
settlement. On 31 March 1976, President Amerasinghe submitted a Memorandum
7
introducing the part oI the ISNT concerning dispute settlement. Paragraph 10 oI the
Memorandum reIerred to the frst Iour articles concerning the general obligation to
settle disputes by peaceIul means. He included the Iollowing comments about the
obligation to exchange views:
While imposing the general obligation to exchange views and to settle disputes by peace-
Iul means, these articles give complete Ireedom to the parties to utilize the method oI
their own choosing, including direct negotiation, good oIfces, mediation, conciliation,
arbitration or judicial settlement.
The President went on, in paragraphs 14 and 15, to state:
14. An exchange oI views is also prescribed whenever any procedure Ior settlement has
Iailed to bring about a settlement.
15. The text, thereIore, whilst imposing the general obligation does not limit in any
way the method Ior dispute settlement that the parties may wish to utilize.
AIter a debate in Plenary, the President included an unchanged draIt article 4 in his
revised ISNT oI 6 May 1976.
8
In his Revised Single Negotiating Text oI 23 Novem-
ber 1976, the obligation to exchange views was set out in article 3. Paragraph 1 was
unchanged, but paragraph 2 had been expanded by the addition oI the fnal phrase
about consultations concerning the implementation oI a settlement. When the In-
Iormal Composite Negotiating Text in 1977 appeared, the equivalent oI the present
article 283 Iollowed immediately aIter article 280. Its paragraph 1 had been revised
as Iollows:
1. II a dispute arises between States Parties relating to the interpretation or applica-
tion oI the present Convention, the parties shall proceed expeditiously to exchange
views regarding settlement oI the dispute through negotiations in good Iaith or
other peaceIul means.
9
The reIerence to 'negotiations. or other peaceIul means was added to the end oI
the frst paragraph oI the draIt at this stage. In a sense, the phrase had been implicit
Irom the outset. The mention oI 'good Iaith was omitted aIter a review by the DraIt-
ing Committee since a general clause about good Iaith had been inserted into the
6 A/CONF.62/WP.9.
7 A/CONF.62/WP.9/Add.l, dated 31 March 1976.
8 A/CONF.62/WP.9/Rev.1.
9 A/CONF.62/WP.10, article 281.
594 Chapter 36
draIt Convention in 1980. DraIt article 281 moved to become article 283 in the DraIt
Convention of 1981.
The Iollowing account oI the discussions has been given by a participant, Mr Ad-
ede (Kenya):
One oI the Iundamental Ieatures oI the comprehensive system Ior the settlement oI dis-
putes, combining fexible choices oI non-compulsory and compulsory procedures was
the right oI the parties to agree on the appropriate procedure Ior a particular dispute.
There was accordingly the need to create an obligation Ior an expeditious exchange oI
views between the parties on the selection oI the appropriate mode oI settlement. DraIt
article 4, paragraph 1, was intended to create such an obligation.
10
Later in his account oI the discussions, Mr Adede stated:
As originally conceived by the Working Group, the article was aimed at encouraging
States to exchange views expeditiously Ior the purposes oI agreeing on a suitable settle-
ment procedure. Its application was intended to prevent an automatic transIer oI a dispute
Irom either the non-compulsory procedures to the compulsory procedures, or Irom one
Iorum oI compulsory procedures to another.
11
Still later, Mr Adede states the Iollowing:
The draIting history oI article 283.shows that its proper application was .aimed at
preventing automatic transIer oI a dispute Irom one mode oI settlement (non-compul-
sory) to another (compulsory) through manoeuvres oI one party to the dispute. The em-
phasis was also placed on expeditious manner in exchanging views so as to avoid turning
the procedure into a mechanism Ior delaying the process oI actual settlement.
12
Another participant in the discussions, Mr Ranjeva (Malagasy Republic) has stated
the Iollowing: 'Those who draIted the inIormal basic text intended to prompt parties
to enter into negotiations in order to defne by common agreement and as quickly
as possible the procedure Ior settling disputes. As Iar as the participants were con-
cerned, exchanging views was designed to make it easier to decide on a means oI
settlement acceptable to both parties rather than to resolve the dispute. He adds that
'the strongest objections were voiced against any idea oI placing a deadline on the
duration oI diplomatic negotiations.
13
The Virginia Commentary, written by two participants (Shabtai Rosenne (Israel)
and Louis Sohn (US)), includes the Iollowing:
10 A.O. Adede, The System for Settlement of Disputes under the United Nations Convention
on the Law of the Sea (1987), p. 47.
11 Ibid., p. 93.
12 Ibid., p. 247.
13 Dupuy-Vignes (eds.) Handbook on the New Law of the Sea, pp. 1344-5.
A text similar to article 283 had been inserted in the text prepared by the inIormal work-
ing group. as a result oI the insistence oI certain delegations that the primary obliga-
tion should be that the parties to a dispute should make every eIIort to settle the dispute
through negotiation. The text reIers to this obligation in an indirect Iashion, making it
the main objective oI the basic duty 'to exchange views regarding the peaceIul means
by which the dispute should be settled. . This mandatory exchange oI views is not re-
stricted to negotiations but also includes 'other peaceIul means, thus re-emphazing the
provision in article 280 that parties are free to agree at any time on the settlement of the
dispute 'by any peaceIul means oI their own choice.
14
My own recollections and materials about the discussions in the WG in 1974-1976,
as a member oI the British delegation, show that many states saw arrangements Ior
the settlement oI disputes as an essential part oI any Iuture convention. These states
wished to include provision Ior the settlement oI disputes about the interpretation
or application oI negotiated texts by recourse to courts and tribunals which would
give binding decisions; many delegations supported the idea that recourse to such
courts and tribunals should be compulsory, not optional. Other states, most notably
the Soviet Union and its supporters, were concerned about the whole idea oI judicial
settlement and especially about the possibility oI their being exposed to compul-
sory jurisdiction two things they had consistently opposed. At many ConIerences
convened during the 1950s and 1960s to consider and adopt law-making conven-
tions, these states had supported the settlement oI disputes by way oI negotiation
to the exclusion oI other means. Following the adoption oI the Optional Protocol
to the Geneva Conventions on the Law oI the Sea in 1958, successive conIerences
had adopted a series oI purely Optional Protocols to Vienna Conventions. All these
Protocols were widely regarded as ineIIectual since participation, being optional,
was limited in numbers. In the context oI the negotiations in the 1970s, the Soviet
and similarly-disposed delegations were prepared Ior the frst time to consider not
only negotiation but also some other possibilities mentioned in article 33 oI the UN
Charter. This shiIt in position, signalled in 1974 and 1975, was welcome. However,
these delegations required several reassurances. Negotiation would be given pride oI
place. There would be Ireedom oI choice oI means by the parties to a dispute, and
any existing bilateral or regional arrangements would be leIt intact. Furthermore, the
parties to a dispute could agree on their own arrangements. The role oI the Conven-
tion would be to fll any remaining gaps. Even here, there would be more than one
possibility: recourse could be had to both standing and ad hoc courts and tribunals.
Conciliation and mediation would be available. Exceptions and qualifcations could
be made. Finally, there was the reassurance that they would not be taken beIore a
court or tribunal by surprise or beIore they had been alerted to the risks Iacing them
by an exchange oI views about the possible means oI settlement.
It was in the context oI negotiating arrangements which included a measure oI
compulsory jurisdiction that the idea was advanced Ior an exchange oI views. Del-
egations which normally supported the inclusion in multilateral conventions oI pro-
14 M. Nordquist (ed.), UNCLOS 1982: A Commentary, vol. V (1989), p. 28.
596 Chapter 36
visions Ior compulsory dispute settlement did not see any great need Ior the require-
ment oI an exchange oI views on procedures; it was unusual and unnecessary; it could
lead to delays; it was especially questionable in regard to paragraph 2 concerning the
implementation of settlements; however, despite all their hesitations these delega-
tions considered that the requirement was probably harmless and worth including iI
it helped to secure wide acceptance oI Part XV as a whole. Article 283 was part oI the
'package on dispute settlement.
II Textual and Contextual Analysis
The term 'exchange oI views is descriptive: it is not a term oI art. Each party to a
dispute expresses to the other its view(s) on the same question, namely the settle-
ment oI the dispute by negotiation or other peaceIul means. The favour is 'consulta-
tion, a word used in paragraph 2. Views have to be exchanged 'expeditiously (in
French 'promptement) indicating the limited nature oI the obligation. Views may be
expressed in diplomatic communications or across the table. The exchange is com-
pleted when the second State expresses its view in response to the frst or chooses to
remain silent aIter a reasonable time Ior response has elapsed. An exchange oI views
could result in an agreement to negotiate, or the parties could agree to have recourse
to another peaceIul means oI settlement, such as conciliation. In both instances, there
would be two strands in the contacts: frst, the exchange oI views and secondly the
negotiations or the conciliation (or whatever had been agreed). In practice, the two
strands oIten become inter-twined, especially where negotiations or exchanges on
points oI substance take place. Equally, an exchange oI views may result in no agree-
ment on any point oI substance or procedure. Even so, by clariIying intentions or
removing uncertainty, it could still have diplomatic value in reducing the degree oI
Iriction in the bilateral relations. Uncertainty can exacerbate disputes, whereas con-
sultation is almost invariably useIul.
An exchange of views, within the meaning of article 283, is clearly something dis-
tinct Irom a 'negotiation within the meaning oI article 33 oI the UN Charter. While
the word 'negotiation appears in article 283, it does so as an example oI a means oI
settlement. Negotiation as a means oI settlement is subject to some doctrine: e.g. in
the judgment in the North Sea Continental ShelI case.
15
However, this doctrine does
not apply to exchanges oI view, even in the sense oI consultation: there is no require-
ment to seek to reach agreement.
The immediate context oI article 283 is Section 1 oI Part XV: this section contains
seven articles, the frst fve oI which (articles 279 to 283) are inter-linked. In par-
ticular, Article 283 Iollows article 279 (recapitulating the general obligation to settle
disputes by peaceIul means) and article 280. There is a close link between article 280
concerning the choice oI means oI settlement by the parties and article 283 providing
Ior the obligation to exchange views: the subject-matter oI this exchange is precisely
the choice oI a peaceIul means oI settlement. Another link can be seen between arti-
cle 282 governing the situation where the parties to a dispute have agreed upon a pro-
15 ICJ Reports 1969, p. 3, at p. 47.
cedure that entails a binding decision and article 283 calling Ior an exchange oI views
since that exchange should result in the identifcation oI any procedure that has been
already agreed by the parties in a bilateral, regional or global treaty. In other words,
article 283 is concerned with the identifcation oI the appropriate means oI settlement
oI disputes. Pursuant to paragraph 1, the parties may choose negotiation or some
other peaceIul means such as conciliation. They may agree to submit the dispute as
a whole or some specifc aspect oI it to arbitration or adjudication. Very oIten a dis-
pute has more than one aspect to which diIIerent provisions in the Convention would
apply: Ior example, a boundary dispute may involve issues to do with access to fsh
stocks straddling the Iuture boundary. The parties can clariIy the scope oI the dispute
in preliminary exchanges and identiIy those questions that are best suited to litigation
and those that are best settled by later negotiations. They may have diIIerent views
on the question oI how best to proceed, in which case the exchange oI views may
end without agreement, or there may be a compromise, or one side may change its
position and accept the other`s views on the means oI settlement. Paragraph 2 is also
concerned with procedures: more specifcally, it has to do with what happens when
one procedure has terminated and a new situation has arisen in relations between the
parties which then has to be dealt with.
One possible beneft oI article 283 is that an exchange views on the means oI settle-
ment may clariIy the situation in relation to other provisions in section 1 oI Part XV
beIore litigation has begun. More specifcally, the exchange oI views could alert the
would-be applicant State to the existence oI other treaties in Iorce with the respond-
ent State which had been overlooked or given insuIfcient attention by the applicant
State and which were relevant in relation to article 282 or 281.
16
An early examina-
tion oI these other relevant treaties may serve the useIul purpose oI avoiding the risk
oI a State instituting legal proceedings that eventually Iail Ior lack oI jurisdiction.
III The Case Law
The case law has two aspects: frst the question whether negotiations or some ex-
changes are required beIore litigation can be started; and secondly the interpretation
of article 283.
A Prior Diplomatic Negotiations
As regards the Iormer question, in the Right oI Passage case, the International Court
oI Justice (ICJ) considered whether there had to be negotiations beIore a State could
have recourse to the Court. India had made a preliminary objection that Portugal
16 For example, a maritime dispute between two member states oI the European Union
may raise issues under the LOS Convention and also EC law. In that situation, it may not
be immediately apparent to the applicant that article 282 is applicable in the particular
dispute. In the MOX Plant litigation, the bringing oI Ireland`s case against the UK beIore
the Annex VII arbitral tribunal was eventually Iound by the European Court oI Justice to
have inIringed article 292 oI the EC Treaty: Case C 459/03, Commission v. Ireland.
598 Chapter 36
had not complied with the rule oI customary international law requiring diplomatic
negotiations to be started and continued to the point where it was no longer proftable
to pursue them. India argued that Article 36(2) oI the Statute, by reIerring to legal
disputes, required a defnition oI the dispute through negotiations. The Court held
that, assuming the Indian contention had substance, the requirement had been com-
plied with to the extent permitted by the circumstances oI the case. The legal issues
had been suIfciently disclosed by the diplomatic exchanges. The applicant state had
complied with the conditions Ior the exercise oI the Court`s jurisdiction.
17
A similar question arose in the case between Cameroon and Nigeria regarding the
maritime boundary issue. There the ICJ rejected a preliminary objection by Nigeria
to the eIIect that there had been no negotiations concerning the delimitation oI the
EEZ/continental shelI. Nigeria invoked articles 74 and 83 oI the LOS Convention,
although the Convention was not in Iorce at the time. The Court made no mention
oI article 283 and held that it had been seised oI the dispute under declarations made
under article 36(2) oI the Statute. Since those declarations did not 'contain any con-
dition relating to prior negotiations to be conducted within a reasonable period the
objection was rejected.
18
In paragraph 56 oI its judgment, the Court stated:
Neither in the Charter nor otherwise in international law is any general rule to be Iound
to the eIIect that the exhaustion oI diplomatic negotiations constitutes a precondition Ior
a matter to be reIerred to the Court. No such precondition was embodied in the Statute
oI the Permanent Court oI International Justice, contrary to a proposal by the Advisory
Committee oI Jurists in 1920 (Advisory Committee oI Jurists, Procs-verbaux of the
proceedings of the Committee (16 June-24 July 1920) with Annexes, pp. 679, 725-726).
Nor is it to be Iound in Article 36 oI the Statute oI this Court. A precondition oI this type
may be embodied and is oIten included in compromissory clauses oI treaties.
19
No such precondition was included in the Statute oI the International Tribunal Ior
the Law oI the Sea. Article 283 is one oI the compromissory clauses oI the LOS
Convention; however, the article does not go so far as to impose the precondition that
diplomatic negotiations must have been held, Iar less exhausted, beIore recourse may
be had to one oI the mechanisms in article 287 oI the Convention.
B The Application of Article 283
To date, there have been Iour cases in which issues have arisen under article 283: (1)
Southern Bluefn Tuna (SBT), (2) MOX Plant, (3) Land Reclamation and (4) Barba-
dos v. Trinidad. The Iour cases were arbitrations under Annex VII oI the LOS Con-
vention. In the frst three cases, the applicant State also requested the International
Tribunal Ior the Law oI the Sea to prescribe provisional measures under paragraph 5
17 ICJ Reports 1957 p. 125, at p. 149.
18 Para. 109 oI the judgment oI 11 June 1998: ICJ Reports 1998.
19 ICJ Reports 1988, Cameroon v. Nigeria, para. 56.
oI article 290 oI the Convention, pending the constitution oI the arbitration tribunal.
As a result, the question oI article 283 was considered by two separate tribunals in
both the SBT and MOX Plant cases, frst beIore the Tribunal in Hamburg (applying a
prima facie test) and secondly beIore the particular Annex VII tribunal.
1 Southern Bluefn Tuna (SBT) cases
(a) In the provisional measures phase oI the SBT cases, both applicants, Australia
and New Zealand, had expressed views to Japan in diplomatic Notes as to the most
appropriate means oI settling the disputes (i.e. the compulsory procedures under the
LOS Convention) beIore they had commenced arbitrations under Annex VII. BeIore
the Tribunal, both produced documentary evidence showing that there had been an
exchange oI views satisIying the requirements oI article 283. New Zealand`s Applica-
tion annexed a diplomatic Note to Japan in which New Zealand had rejected Japan`s
proposals oI mediation and arbitration under the SBT Convention oI 1993 and had
indicated its decision 'to commence compulsory dispute resolution procedures under
Part XV. The Note went on: 'New Zealand reiterates that there has been an ex-
change oI views Ior the purposes oI Article 283. Australia acted similarly.
20
BeIore
the Tribunal, Japan contended that the applicants had not exhausted the procedures
under section 1 oI Part XV through negotiations or other peaceIul means. Japan`s
emphasis was upon article 281: indeed, the practice oI Australia and New Zealand
appears to have been Iully consistent with article 283. The Tribunal`s Order, having
noted in paragraph 57 that 'negotiations and consultations had taken place between
the parties, implicitly accepted the applicants` contentions in paragraph 60: 'a State
Party is not obliged to pursue procedures under Part XV, section 1, oI the Conven-
tion when it concludes that the possibilities oI settlement have been exhausted.
21
The word 'exhausted was a clear echo oI Japan`s argument and the ICJ`s fnding
in Cameroon v. Nigeria rather than a refection oI any wording contained in article
283; similarly, the reIerence to 'agreement did not refect the words used in article
283. In essence, the Tribunal determined in paragraph 60 that the requirements oI this
article had been satisfed, but without so stating in terms.
(b) The Annex VII tribunal held it was without jurisdiction over the dispute Ior rea-
sons that were based on article 281, not article 283. As regards the latter, the tribunal
Iound that the negotiations, in which the LOS Convention had been invoked, 'may
also be regarded as Iulflling another condition oI UNCLOS, that oI article 283.
22
20 ITLOS Pleadings, etc. 1999, vol. 4, Southern Bluefn Tuna cases, pp. 15 and 25 (NZ) and
p. 83 (Australia).
22 Para. 55 oI the Award, 39 ILM (2000) p. 1359, at p. 1389.
600 Chapter 36
2 MOX Plant case
(a) During the provisional measures phase oI the proceedings, the question oI arti-
cle 283 arose in the Iollowing circumstances. In its Statement oI Claim, Ireland had
contended that
there has been a Iull exchange oI views on the dispute Ior the purposes oI Article 283(1).
Ireland has written to the United Kingdom on numerous occasions, and has received
either inadequate or no responses.
23
In its Written Response, the United Kingdom argued that
The letters to which Ireland appears to be reIerring are requests Ior the public disclosure
oI certain inIormation withheld Irom the public versions oI the reports Iollowing public
consultations on the economic case Ior the MOX plant. They did not invite the United
Kingdom to engage in any exchange views with the aim oI settling by negotiation or
other peaceIul means what Ireland now characterises as the dispute arising under UNC-
LOS. Indeed they did not mention UNCLOS at all.
24
The Tribunal`s Order includes the Iollowing:
54. Considering that the United Kingdom contends that the requirements oI article 283
oI the Convention have not been satisfed since, in its view, there has been no
exchange oI views regarding the settlement oI the dispute by negotiation or other
peaceIul means;
.
56. Considering that the United Kingdom maintains that the correspondence between
Ireland and the United Kingdom did not amount to an exchange oI views on the
dispute said to arise under the Convention;
57. Considering that the United Kingdom contends Iurther that its request Ior an ex-
change oI views under article 283 oI the Convention was not accepted by Ireland;
58. Considering that Ireland contends that, in its letter written as early as 30 July 1999,
it had drawn the attention oI the United Kingdom to the dispute under the Conven-
tion and that Iurther exchange oI correspondence on the matter took place up to the
submission oI the dispute to the Annex VII arbitral tribunal;
59. Considering that Ireland contends Iurther that it has submitted the dispute to the
Annex VII arbitral tribunal only aIter the United Kingdom Iailed to indicate its
willingness to consider the immediate suspension oI the authorization oI the MOX
plant and a halt to related international transports;
23 Statement of Claim, para. 36.
24 Written Response, para. 188.
60. Considering that, in the view oI the Tribunal, a State Party is not obliged to con-
tinue with an exchange oI views when it concludes that the possibilities oI reaching
agreement have been exhausted;
25
This latter Iormula, again echoing the ICJ`s fnding, leIt open the question oI the
scope oI the agreement, that is to say, whether the agreement in question was con-
fned to the procedures Ior settling a dispute or extended also to the substance oI the
dispute. The Iormula indicates that it is open to a party to draw its own conclusions
aIter an exchange oI views: a party may conclude that there is no agreement on the
choice oI a means oI settlement or on the substance oI the dispute. Michael Wood has
argued that 'II and to the extent that the Tribunal was suggesting an essentially sub-
jective test, this Iormulation seems to be open to criticism.
26
In a separate opinion,
I expressed doubts about the reasoning in paragraph 60 oI the Order on the basis oI
the facts presented.
27
Article 283 does not in terms require the parties to seek to reach
agreement, let alone to exhaust the possibilities. It simply obliges them to indicate
a view on the most appropriate means oI settlement in the circumstances existing at
the time, in the context oI consultations. This is not the same as announcing an inten-
tion to have recourse to litigation: beIore that step, there should have been exchanges
about the possible means oI settlement oI the particular dispute.
(b) The arbitral tribunal under Annex VII, presided over by Judge Mensah, included
the Iollowing in its Order No.3:
With regard to the international law issues raised by the United Kingdom, there has
clearly been an exchange oI views between the Parties, as required under article 283 oI
the Convention, and the United Kingdom does not now contest this.
3 Land Reclamation case
BeIore the LOS Tribunal, the parties advanced diIIerent arguments concerning their
exchanges oI views. In its turn, the Tribunal gave lengthy consideration to article
283. The Tribunal`s Order contains the Iollowing recitals:
33. Considering that Singapore contends that the requirements oI article 283 oI the
Convention have not been satisfed since, in its view, there has been no exchange
oI views regarding the settlement oI the dispute by negotiation or other peaceIul
means;
25 Para. 60 oI the Order in the MOX Plant case: ITLOS Reports 2001, p. 95.
26 In a paper entitled 'The International Tribunal Ior the Law oI the Sea and General Inter-
national Law read at a symposium at the Tribunal in September 2006, to be published
in 22 Intl Marine and Coastal L. (Iorthcoming 2007). (The author was the UK Agent in
the litigation.)
27 ITLOS Reports 2001, at p. 125.
602 Chapter 36
34. Considering that Singapore maintains Iurther that negotiations between the parties,
which article 283 oI the Convention makes a precondition to the activation oI Part
XV compulsory dispute settlement procedures, have not taken place;
36. Considering that article 283 oI the Convention applies 'when a dispute arises and
that there is no controversy between the parties that a dispute exists;
37. Considering that article 283 oI the Convention only requires an expeditious ex-
change oI views regarding the settlement oI the dispute 'by negotiation or other
peaceIul means;
38. Considering that the obligation to 'proceed expeditiously to an exchange oI views
applies equally to both parties to the dispute;
39. Considering that Malaysia states that, on several occasions prior to the institution
oI proceedings under Annex VII to the Convention by Malaysia on 4 July 2003, it
had in diplomatic notes inIormed Singapore oI its concerns about Singapore`s land
reclamation in the Straits oI Johor and had requested that a meeting oI senior oI-
fcials oI the two countries be held on an urgent basis to discuss these concerns with
a view to amicably resolving the dispute;
40. Considering that Malaysia maintains that Singapore had categorically rejected its
claims and had stated that a meeting oI senior oIfcials as requested by Malaysia
would only be useIul iI the Government oI Malaysia could provide new Iacts or
arguments to prove its contentions;
41. Considering that Singapore maintains that it had consistently inIormed Malaysia
that it was prepared to negotiate as soon as Malaysia`s concerns had been specifed
and that Malaysia had undertaken to supply reports and studies detailing its specifc
concerns but did not do so prior to 4 July 2003;
42. Considering that Singapore states that, aIter receiving the Notifcation and State-
ment oI Claim submitted by Malaysia on 4 July 2003 instituting arbitral proceed-
ings in accordance with Annex VII to the Convention, Malaysia and Singapore
agreed to meet in Singapore on 13 and 14 August 2003 to discuss the issues with a
view to resolving them amicably;
43. Considering that Singapore maintains that Malaysia abruptly broke oII the negotia-
tion process oI 13 and 14 August 2003 by insisting on the immediate suspension oI
the reclamation works as a precondition Ior Iurther talks;
44. Considering that Malaysia stated that a Iurther exchange oI views could not be
expected while the reclamation works were continuing;
45. Considering that Malaysia stated Iurther that a party is not obliged to continue with
an exchange oI views when it concludes that the possibilities oI reaching agreement
have been exhausted;
46. Considering that in Iact the parties were not able to settle the dispute or agree on a
means to settle it;
47. Considering that the Tribunal has held that 'a State Party is not obliged to pursue
procedures under Part XV, section 1, oI the Convention when it concludes that the
possibilities oI settlement have been exhausted (Southern Bluehn Tuna Cases, Or-
der oI 27 August 1999, paragraph 60), and that 'a State Party is not obliged to con-
tinue with an exchange oI views when it concludes that the possibilities oI reaching
agreement have been exhausted ' (The MOX Plant Case, Order oI 3 December
2001, paragraph 60);
48. Considering that, in the view oI the Tribunal, in the circumstances oI the present
case Malaysia was not obliged to continue with an exchange oI views when it con-
cluded that this exchange could not yield a positive result;
49. Considering that the discussions held between the parties on 13 and 14 August
2003 were conducted, by agreement oI the two parties, without prejudice to Malay-
sia`s right to proceed with the arbitration pursuant to Annex VII to the Convention
or to request the Tribunal to prescribe provisional measures in connection with the
dispute;
50. Considering that these discussions were held aIter Malaysia had instituted proceed-
ings beIore the Annex VII arbitral tribunal on 4 July 2003 and, accordingly, the
decision oI Malaysia to discontinue the discussions does not have a bearing on the
applicability oI article 283 oI the Convention;
51. Considering that, in the view oI the Tribunal, the requirement oI article 283 is satis-
fed;
Four comments on these recitals may not be out oI place. It is not entirely clear Irom
the recitals whether the parties had ever exchanged views about the specifc matter
oI the means oI settlement, as distinct Irom the dispute itselI. Paragraph 48, in stat-
ing the Tribunal`s conclusion, contrasts with the unilateral conclusions in the two
earlier cases recalled in paragraph 47. As Judge Chandrasekhara Rao put it in his
separate opinion, 'the obligation (in article 283) must be discharged in good Iaith,
and it is the duty oI the Tribunal to examine whether this is being done.
28
The Ior-
mula in paragraph 51 is a judicial fnding that complements the conclusion reached
in paragraph 48. Secondly, in paragraph 34, Singapore`s argument that article 283
makes negotiation a precondition seems to go too Iar: it is an exchange oI views that
is a precondition. Next, the Tribunal was clearly correct in pointing out in paragraph
38 that article 283 imposes an obligation on both parties to a dispute. However, the
article does not specify what happens if the respondent does not express any views
at all: aIter a reasonable time, the frst state should be Iree to proceed. Finally, Ma-
laysia`s argument recorded in paragraph 44 that an exchange oI views could not be
held while the disputed activity was continuing cannot be correct since the whole
purpose oI the exchange is to open the way towards fnding some means Ior settling
the on-going dispute.
The Annex VII tribunal was able to give an Award on Agreed Terms, Iollowing the
entry into Iorce oI the settlement agreement between the parties: accordingly, no
question oI article 283 arose at this stage.
604 Chapter 36
4 Barbados v. Trinidad
In the arbitration under Annex VII oI the LOS Convention between Barbados and
Trinidad, the parties again submitted lengthy arguments about article 283 and their
contacts. Trinidad`s Counter Memorial argued, with reIerence to article 283, that
'there was no exchange oI views oI any kind between the termination oI the proc-
esses under articles 74(1) and 83(1) and the notifcation instituting proceedings un-
der Annex VII, which 'came without warning.
29
Trinidad invoked both paragraphs
oI article 283, the second in the context oI a transIer oI the dispute Irom negotiations
to litigation. Barbados, in its Reply, argued that the lengthy negotiations had satisfed
article 283`s requirements; it characterized Trinidad`s argument as 'excessively Ior-
malistic and one that would Irustrate the object and purpose oI Part XV in that the
respondent state could make a declaration under article 298(1)(a)(i) with immediate
effect.
The arbitration tribunal made extensive fndings about article 283 which merit a
Iull citation, as Iollows:
201. Recourse to Part XV brings into play the obligation under Article 283(1) to 'pro-
ceed expeditiously to an exchange oI views regarding its settlement by negotiation
or other peaceIul means. The Tribunal must preIace its consideration oI Article
283 with the observation that that Article does not readily ft the circumstances
to which Articles 74 and 83 give rise, nor does it sit easily alongside the realities
oI what is involved in 'negotiations which habitually cover not only the specifc
matter under negotiation but also consequential associated matters. The Tribunal
notes that Article 283 is oI general application to all provisions oI UNCLOS and
is designed Ior the situation where 'a dispute arises, that is where the frst step in
the dispute settlement process is the bare Iact oI a dispute having arisen. Articles
74 and 83 involve a diIIerent process, in that they impose an obligation to agree
upon delimitation, which necessarily involves negotiations between the Parties, and
then takes the Parties to Part XV when those negotiations have Iailed to result in
an agreement. In this situation Part XV and thus Article 283 is thus not the
frst step in the process, but one which Iollows the Parties` having already spent a
'reasonable period oI time (in the present case several years) seeking to negotiate
a solution to their delimitation problems.
202. The Tribunal consequently concludes that Article 283(1) cannot reasonably be in-
terpreted to require that, when several years oI negotiations have already Iailed to
resolve a dispute, the Parties should embark upon Iurther and separate exchanges
oI views regarding its settlement by negotiation. The requirement oI Article 283(1)
Ior settlement by negotiation is, in relation to Articles 74 and 83, subsumed within
the negotiations which those Articles require to have already taken place.
203. Similarly, Article 283(1) cannot reasonably be interpreted to require that once ne-
gotiations have Iailed to result in an agreement, the Parties must then meet sepa-
rately to hold 'an exchange oI views about the settlement oI the dispute by 'other
29 Paragraph 117, available on www.pca-cpa.org.
peaceIul means. The required exchange oI views is also inherent in the (Iailed) ne-
gotiations. Moreover, Article 283 applies more appropriately to procedures which
require a joint discussion oI the mechanics Ior instituting them (such as setting up
a process oI mediation or conciliation) than to a situation in which Part XV itselI
gives a party to a dispute a unilateral right to invoke the procedure Ior arbitration
prescribed in Annex VII.
204. That unilateral right would be negated iI the States concerned had frst to discuss
the possibility oI having recourse to that procedure, especially since in the case oI
a delimitation dispute the other State involved could make a declaration oI the kind
envisaged in Article 298(1)(a)(i) so as to opt out oI the arbitration process. State
practice in relation to Annex VII acknowledges that the risk oI arbitration proceed-
ings being instituted unilaterally against a State is an inherent part oI the UNCLOS
dispute settlement regime (just as a sudden submission oI a declaration accepting
the compulsory jurisdiction oI the International Court oI Justice is a risk Ior other
States having already spent a 'reasonable period oI time (in the present case sev-
eral years) seeking to negotiate a solution to their delimitation problems.
205. The Tribunal reaches the same conclusion in respect oI the possibility that the re-
quirement to negotiate a settlement under Articles 74(1) and 83(1) could be regarded
as a 'procedure Ior settlement which had been 'terminated without a settlement
so as to bring paragraph 2 oI Article 283 into play, and by that route require the
Parties to 'proceed expeditiously to an exchange oI views aIter the unsuccessIul
termination oI their delimitation negotiations. To require such a Iurther exchange oI
views (the purpose oI which is not specifed in Article 283(2)) is unrealistic.
206. In practice the only relevant obligation upon the Parties under Section 1 oI Part XV
is to seek to settle their dispute by recourse to negotiations, an obligation which in
the case oI delimitation disputes overlaps with the obligation to reach agreement
upon delimitation imposed by Articles 74 and 83. Upon the Iailure oI the Parties to
settle their dispute by recourse to Section 1, i.e. to settle it by negotiations, Article
287 entitles one oI the Parties unilaterally to reIer the dispute to arbitration.
Once again, a Iew comments on some oI the interpretations and assessments set out
in these paragraphs may be appropriate. As regards paragraph 201, maritime bound-
ary negotiations vary considerably in scope and character: there are Iew 'habitual
or 'consequential associated matters. To my mind, article 283 is perIectly capable
oI ftting the circumstances oI boundary negotiations. For example, aIter the parties
have explored Iully the possibilities oI reaching agreement in accordance with arti-
cles 74 and 83 without success, they could turn (perhaps at a separate 'stock-taking
meeting) to an exchange oI views on the question oI fnding a settlement by Iurther
negotiations, or mediation or conciliation (as in the case oI Iceland and Norway over
Jan Mayen)
30
or other agreed means such as invoking the good oIfces oI the UN
Secretary General. Alternatively, they could Iollow the practice oI Australia and New
Zealand and address Notes Verbales to the other party to the dispute indicating with
30 Charney and Alexander (eds.), International Maritime Boundaries (1993), vol. II, Report
No. 9-4.
606 Chapter 36
reIerence to article 283 which method oI settlement was considered to be the most
appropriate in the prevailing circumstances. One party might wish to end negotiations
and proceed at once to arbitration or litigation: the other party could be oI a similar
mind, in which case they could exchange views about the scope oI the question(s) to
be posed, the best Iorum, the timing and other procedural arrangements. Equally, the
other party might disagree, in which case it could make a new oIIer in the negotia-
tions or call Ior conciliation or Ior a pause Ior internal refection. Recourse to litiga-
tion in inter-governmental relations can have wider implications, both in domestic
politics and bilateral relations. Seen in this light, article 283 could represent a useIul
saIety valve and could ft the circumstances oI a change Irom negotiation to litigation
rather well.
In paragraph 203, the arbitral tribunal argues that article 283(1) 'cannot reasonably
be interpreted to require that once negotiations have already Iailed to result in agree-
ment, the Parties must then meet separately to hold 'an exchange oI views about the
settlement oI the dispute 'by other peaceIul means. The tribunal considered that the
'required exchange oI views is also inherent in the (Iailed) negotiations. But is this
persuasive? In my experience, while some negotiations have extended to discussing
the possibility oI litigation iI agreement were to prove unattainable, most sets oI
boundary talks have been confned to the boundary issues and have not extended to
the question oI submitting the dispute to a court or tribunal, even in instances where
the parties were Iar apart. Boundary negotiations oIten last several years and involve
each side making small steps towards meeting the other somewhere around the mid-
dle oI the area under negotiation. II one party loses patience aIter a Iew months oI
talks and wishes to litigate whilst the other wishes to continue with the process oI
making small steps, article 283 still serves the useIul purpose oI protecting the latter
Irom being taken completely by surprise. The tribunal`s argument that article 283
'applies more appropriately to procedures which require a joint discussion oI the me-
chanics. than to a situation in which Part XV gives a party to a dispute a unilateral
right to invoke the procedure Ior arbitration is all very well, but this argument still
does not mean that article 283 has no application whatsoever in the latter situation.
Nor should the requirement oI an exchange oI views be dismissed as 'unrealistic,
as asserted in paragraph 205 in regard to article 283(2). The whole article may be
unusual, but it Iorms part oI the Convention and it was part oI the price oI securing
consensus on Part XV as a whole. Its requirement may be wholly appropriate on diI-
Ierent Iacts or in diIIerent circumstances.
In paragraph 204, the tribunal argues that this 'unilateral right would be negated iI
the States concerned had frst to discuss the possibility oI having recourse to that pro-
cedure, especially since.the other state could make the declaration oI the kind en-
visaged in article 298 (1)(a)(i). However, the right is not absolute: the Convention
conditions this particular unilateral right, frst in article 283 by requiring an exchange
oI views on means oI settlement and secondly in article 298 by allowing the opt-out
declaration. In order to avoid provoking the latter, the negotiating State intending
to go to arbitration may have to draIt its statement oI view with care, even fnesse;
article 283 requires nothing less. The allusion in paragraph 204 to the jurisdiction oI
the ICJ prompts the thought that many Governments that have accepted the Court`s
jurisdiction under the optional clause have added a reservation to guard against being
taken by surprise by an opportunistic acceptance oI the jurisdiction by another State
with which there is a dispute. Surprise is oIten a bad thing in diplomatic relations.
In paragraph 206, the tribunal states that 'In practice the only relevant obligation
upon the Parties under Section 1 oI Part XV is to seek to settle their dispute by re-
course to negotiations. and also that 'Upon the Iailure oI the Parties to settle their
dispute by recourse to Section 1, i.e. to settle it by negotiations, Article 287 entitles
one oI the Parties unilaterally to reIer the dispute to arbitration. These statements
do less than justice to the actual terms oI section 1 as a whole and article 283 in par-
ticular.
Without commenting on the merits oI the tribunal`s decision on this point in the
context oI the relations between the parties, the actual reasoning advanced in the
paragraphs 210 to 206 is not persuasive.
IV Conclusions
When a dispute arises, in practice what usually happens is that the two Governments
remain in diplomatic relations: accordingly, through Embassies and Ioreign minis-
tries, they exchange diplomatic messages, setting out their respective positions; iI
there is no progress, they hold talks about the dispute. The respective Ambassadors
and Foreign Ministries will be in regular contact. This applies to all types oI disputes,
including ones that involve the interpretation or application oI the Convention. The
Governments will characterize the dispute as a fsheries dispute or an environmental/
pollution dispute or a boundary dispute, according to the substance; the interpretation
oI the Convention will be at best a secondary Iactor. Foreign Ministries are Iamiliar
with handling incipient disputes; they are unlikely to look in a Convention Ior guid-
ance on the procedures to be Iollowed. Contrary to what article 283 (1) seems to
require, Governments do not usually begin by holding talks about how to handle the
dispute: instead, they Iocus on the substance oI the outstanding issues, looking to
clariIy positions, to reduce the scope oI diIIerences and to limit possible damage to
bilateral relations. In other words, article 283 is an unusual prescription.
At the same time, it may have a certain useIulness in some instances: the exchange
may cause one party or the other (or both) to re-examine its position on the substance
oI the dispute or the means oI settling it. When a maritime dispute frst arises, it is
not always apparent that a provision oI the LOS Convention is relevant, especially
where other treaties in Iorce between the parties have a bearing on the issues or
where the issue is on the agenda oI an international organization to which the dispu-
tants belong. Some time may be spent on establishing the Iacts through diplomatic
exchanges beIore the relevant provisions oI the LOS Convention can be identifed.
Even then, the legal aspect may be minor in relation to some very obvious economic
or political aspects. The strands oI negotiation, consultation, dispute-handling and
exchanging views about the means oI settlement may oIten become entangled. The
simple sequence oI events anticipated in article 283(1) may oIten not correspond
to the convoluted Iacts oI an actual dispute. Even so, exchanging views may bring
greater clarity to the overall situation Iacing the parties.
608 Chapter 36
Article 283 was intended to protect respondent States Irom being taken by sur-
prise. Thus, a state which has agreed to negotiate or which has entered into negotia-
tions over a maritime issue should not change Irom negotiation to litigation without
frst Iulflling its obligations towards its negotiating partner. The LOS Convention has
created new jurisdictional possibilities, including compulsory procedures leading to
binding decisions. However, there are some qualifcations, including the duty to ex-
change views on the available means oI peaceIul settlement prior to having recourse
to one oI them unilaterally. In actual litigation, the applicant`s Iailure to comply with
article 283 could be invoked as a preliminary objection concerning jurisdiction and
admissibility. It may be more eIIective iI invoked by the respondent and decided by
the court or tribunal as a preliminary objection separately Irom the merits, as in Cam-
eroon v. Nigeria beIore the International Court oI Justice.
The inclusion oI the reIerence to 'negotiation in article 283 may have been in-
tended to give negotiations a certain pre-eminence as a means of settlement. How-
ever, read in the context oI Section 1, article 283 appears to be confned to the choice
oI means oI settlement by the parties. It should not be taken to mean that negotiation
is a precondition to be Iulflled beIore recourse to compulsory procedures is permissi-
ble. In the words oI President Amerasinghe, article 283 is a general obligation which
does not limit the Ireedom oI choice oI the parties. In that perspective, an exchange
oI views appears to be something diIIerent Irom an obligation to negotiate. It is a
much lesser thing, even when understood in the sense oI consulting. Indeed, Article
283 may be satisfed by relatively little eIIort on the part oI the complaining state. It
may be suIfcient to draw attention to some Iacts, to invoke specifed provisions in the
LOS Convention, to point to the existence oI a defned legal dispute under the Con-
vention, and to express a preIerence Irom among the various means oI settlement.
The respondent state would then procrastinate at its peril.
The practice to date oI applying article 283 appears to show that there is oIten
conIusion between an obligation to negotiate and one to exchange views. This conIu-
sion has arisen Irom the Iacts oI particular disputes and their handling by the parties.
The clearest practice in applying article 283 has been that by Australia and New
Zealand, who separated the strands oI negotiations about questions oI substance Irom
exchanges oI views about means oI settlement.
Both the International Tribunal Ior the Law oI the Sea and arbitral tribunals have
shown a reluctance to fnd that article 283 has not been complied with. (In the case
oI the Tribunal when acting under article 290, the standard is simply that oI a prima
facie case on jurisdiction. Compliance with article 283 goes to admissibility more
than jurisdiction, but the prima facie standard is applicable there also.) The require-
ment imposed by article 283 is not to enter into a lengthy discussion or to make
genuine attempts to reach a compromise over the means oI settlement. The obligation
is simply to exchange views or to consult, and to do so expeditiously. So long as the
applicant can produce some evidence oI relevant exchanges, article 283 is unlikely
to act as a bar to proceedings. However, it Iorms part oI the Convention and should
be applied by all concerned, whether political leaders, diplomatists or judges, as indi-
cated by Judge Chandrasekhara Rao in the Land Reclamation case.
Index
A
Adede, A.: 594
Adjudication: 61, 510, 597
Aegean Sea case: 386, 480
Antunes, N.: 397, 408, 414, 454
Arbitration: 18, 59-62, 84, 181-183, 214,
337, 365, 374, 389, 391, 402, 405, 417,
444-446, 449, 461, 464, 470, 458, 486,
493, 508, 510, 511, 514, 516, 548, 549,
551, 554, 556, 558, 563, 564, 566, 567,
582, 593, 597-599, 603-607
Arechaga, Jimenez de: 24, 25, 196, 197,
206, 392
Advisory Board on the Law of the Sea (AB-
LOS): 381, 410
Agenda 21: 366, 376
Agreement on Compliance with Internation-
al Fisheries Conservation Measures on
the High Seas 1993: 16, 96, 97, 204, 210,
215, 236, 238, 278, 279, 281, 282, 372
Agreement on the Implementation of Part XI
of the LOS Convention (1994): 16, 17,
36, 49, 51-54, 56, 57, 61, 63, 64, 66, 81,
86-88, 91, 93, 94, 230, 246, 288, 301-323,
331-334, 341-360, 368, 520, 524, 526,
528.
Agreement on the Implementation of the
Provisions of the LOS Convention about
Straddling Fish Stocks and Highly Migra-
tory Fish Stocks (1995): 18, 35, 96, 97,
281, 282, 284, 363-377, 552, 575
Review Conference (2006): 18, 282, 283,
285, 376, 377
Aircraft: 14, 74, 102, 103, 106, 120, 127-129,
135, 138-145, 149, 152, 154, 155, 164,
166, 170, 180, 185, 212, 227, 245, 497
Aircraft, civil: 142, 144
Aircraft, military: 11, 139, 143, 144, 227
Amerasinghe, H.: 32, 289, 593, 608
American Society of International Law
(ASIL): 398, 548, 549
Amoco Cadiz: 109, 111, 176, 258, 274, 275
Anglo-French Safety of Navigation Group
(AFSONG): 186
Antarctic Treaty (1959): 336, 495
Antarctica: 337
Archaeological and historical objects: 85
Archipelagic baselines: 67, 385, 407, 435
Archipelagic claims: 56
Archipelagic regime: 144
Archipelagic sealanes (passage): 14, 41, 67,
73, 74, 92, 124, 127, 128, 140, 143, 146
Archipelagic state: 9, 14, 21, 22, 40, 41, 51,
56, 67, 75, 86, 89, 92, 101, 105, 123, 124,
127, 131, 304, 385, 407
Archipelagic straits: 124
Archipelagic waters: 67, 128, 130, 131,
146-148, 219
Arctic: 12, 101, 109, 253, 270, 410, 492
Argentina-Chile Frontier case: 514
Arrest (of vessels): 73, 77, 79, 96, 109, 111,
112, 151, 154, 171, 190, 205, 206, 212,
217, 221, 225, 226, 244, 246, 247, 262,
264, 265, 273, 287, 288-290, 292, 293,
296-298, 369, 418, 552, 557, 560-562, 565
Articial islands: 221, 222, 233, 383
610 Index
B
Barbados/Trinidad case: 18, 567, 591, 598,
604-607
Baselines, generally: 13, 56, 70, 85, 92, 125,
130-132, 148, 157, 164, 198, 206, 273,
383, 384, 390, 391, 394, 395, 407, 409,
421, 422, 426, 428, 429, 435, 438, 439,
443, 453, 455, 457, 505, 509
Baselines, straight: 9, 71, 92, 132, 164, 166,
178, 385, 390, 407, 452, 455-457, 459,
469, 487
Basepoint(s): 77, 92, 383, 390, 404, 406,
415, 422, 425, 426, 445, 446, 458-460,
465, 469, 483, 488, 392, 407, 416, 434,
453
Bay-closing line(s): 164-166, 178, 179, 456,
457, 459
Beagle Channel case: 480
Beazley, P.: 383, 414, 415, 429, 454
Bering Sea Arbitration (1894): 20
Boat Paper: 34, 316-318, 333, 345, 351
Birnie, P.: 13, 254, 260, 266, 275, 372
Boutros-Ghali, B.: 49, 311, 350
Boyle, A.: 215, 254, 260, 266, 267, 275
Braer: 99, 111, 114, 166, 168, 188, 256,
276, 466
British Institute of International and Com-
parative Law (BICCL): 49, 325, 411,
422, 432, 493, 500, 513, 514, 522, 534,
543
Broad-margin state(s): 58, 571
Bruel, E.: 119, 126.
Brundtland Report: 369
Bunkering: 111, 213, 214, 218-227, 552,
554, 563
Burke, W.: 20, 212, 215, 365, 368
C
CALDOVREP: 171, 188
Cameroon/Nigeria case: 402, 403, 405, 415,
422, 598, 599, 608
Camouco case: 112, 113, 214, 524, 530,
532, 535, 538, 540, 542, 553, 555-557,
560, 561
Carleton, C.: vii, 163, 182, 385, 401, 409,
414, 429, 451, 454, 478
Cartographers/cartography: 400, 414, 415,
422, 448, 449, 478, 482, 485, 572, 573,
585
Challenger Expedition: 11
Channel Arbitration/English Channel case:
181, 182, 387, 394, 405, 408, 415, 444,
479, 480
Channel/La Manche, legal regime: 175-193
Charney, J.: 12, 71, 76, 80, 90, 165, 169,
182, 312, 381, 389, 392, 398, 404, 414,
416, 418, 423, 429, 430, 458-460, 463,
464, 477, 486, 492, 500, 516, 527, 548,
605
Cha(i)siri Reefer case: 240, 553, 560-562
Clarion-Clipperton Ridge: 11, 81, 306, 321
Coastal state jurisdiction: 7, 15, 17, 20, 67,
69, 77, 83, 101, 109, 114, 178, 192, 193,
209, 210, 211, 213, 217, 219, 226, 230,
238, 265, 270, 272, 381, 465, 563
Cod Wars: 112, 336
Code of Conduct for Responsible Fisheries
(1995): 96, 210, 216, 282, 365, 375, 376
Codication: 44, 59, 92, 119, 128, 202, 230,
248, 254, 267, 304, 326, 338, 484
Committee of Experts of the League of Na-
tions: 26
Commission on the Limits of the Continen-
tal Shelf (CLCS): 17, 391, 410
Common Fisheries Policy (CFP): 11, 76,
177, 183, 219, 441, 458, 460, 470
Common heritage of mankind: 12, 14, 22,
28, 101, 230-232, 308, 311, 313, 316,
320, 323, 352, 353, 357, 360, 382, 410,
509
Commission for the Conservation of South-
ern Bluen Tuna/CCSBT: 555, 573, 574
Competent international organizations: 43,
57, 77, 92, 187, 146, 148, 295
Compromissory clauses: 207, 592, 598
Compulsory arbitration: 551, 558
Compulsory dispute settlement: 59, 376,
510, 549, 595, 596, 602
Compulsory jurisdiction: 69, 511, 520, 549,
550, 556, 595, 605
Compulsory procedures: 59, 69, 265, 288,
511, 549, 572, 594, 599, 608
Conciliation: 59, 61, 84, 374, 391, 494, 548,
593, 595-597, 605, 606
Conference of European States (1964): 10
Consensus: 9, 14, 16, 21, 31, 33-35, 41, 42,
44, 54, 58, 114, 123, 128, 129, 136, 203,
212, 236, 278, 305, 321, 356, 358, 367,
368, 376, 388, 421, 445, 510, 511, 530,
542, 545, 546, 549
611 Index
Conservation: 8-10, 16, 20, 35, 43, 72, 76,
96, 103, 104, 108, 150, 177, 184, 197,
203, 204, 212-216, 218, 220, 232, 235,
241, 246, 278-281, 283-285, 292-294,
337, 363-377, 448, 461, 467, 495, 553-
556, 560, 561, 565, 569, 570, 573
Contiguous zone: 7, 10, 14, 19, 70, 73, 95,
100, 118-120, 132, 165, 179, 180, 199,
270, 289, 398, 430, 446, 451, 452, 469
Continental shelf: 7-10, 12, 14, 26, 41, 50,
55, 67, 76-80, 82, 83, 131, 177, 179-183,
199, 206, 212, 213, 232, 246-248, 304,
369, 383, 384, 386, 388-391, 394, 398,
403-411, 413, 421, 422, 430, 434, 435,
437-443, 447, 448, 451, 460-466, 468,
470, 481, 482, 486, 491-493, 495, 550,
570, 571, 598
Convenience/convenient, meaning: 136,
140, 167, 138, 157, 170, 185, 482
Convention against Transnational Organised
Crime: 245
Convention for the Conservation of Anadro-
mous Stocks in the North Pacic Ocean
(1992): 216
Convention for the Conservation of Southern
Bluen Tuna (1993): 216, 599
Convention for the Establishment of an In-
ter-American Tropical Tuna Commission
(1949): 217
Convention for the Prohibition of Fishing
with Long Driftnets in the South Pacic
(1989): 216, 219, 278
International Convention for the Protection
of Submarine Telegraph Cables (1884):
230
Convention for the Protection of the North-
east Atlantic (OSPAR) (1992): 177, 185
Convention on Civil Liability for Oil Pollu-
tion Damage (1969): 101, 113, 295, 296
Convention on International Civil Aviation,
Chicago (1944): 139, 140, 142, 145
Convention on Load Lines (1930 & 1966):
88, 258, 268, 269, 274
Convention on Merchant Shipping (Mini-
mum Standards) (1976): 258, 273, 274,
276
Convention on Standards of Training, Certi-
cation and Watchkeeping for Seafarers
(1984/1996; STCW): 239, 249, 257, 258,
266, 274, 277, 276
Convention on the Conduct of Fishing Op-
erations in the North Atlantic (1967): 216
Convention on the Conservation and Man-
agement of Highly Migratory Fish Stocks
in the Western and Central Pacic Ocean:
216
Convention on the Conservation and
Management of Pollock Resources in the
Central Bering Sea (1994) (Bering Sea
Agreement): 372
Convention on the Conservation of Antarctic
Living Marine Resources (1980) and its
Commission (CCAMLR): 246, 293, 337,
372, 495, 553, 561, 562
Convention on the International Regulations
for Preventing Collisions at Sea (1972)
(COLREG): 88, 147, 144, 148, 171, 186-
191, 230, 263, 270, 274
Convention on the Non-Fortication and
Neutralization of the Aaland Islands
(1921): 135
Convention on the Prevention of Marine
Pollution 1973/1978 (MARPOL): 13, 43,
82, 83, 88, 101, 106, 108-111, 113, 144,
150,184, 219, 238, 258-263, 271, 272-
274, 276, 277, 296, 297, 311-313, 318,
332, 355, 465, 466, 550
Convention on the Protection of the Under-
water Cultural Heritage: 551
Convention on the Safety of Life at Sea
(1974) (SOLAS): 43, 57, 73, 88, 147,
148, 171, 186-188, 190, 192, 230, 254,
256-258, 268, 269, 271, 274, 276, 355
Convention on the Suppression of Unlaw-
ful Acts against the Safety of Maritime
Navigation: 245
Convention on the Tonnage of Ships (1966):
276
Convention on the Transit Trade of Land-
locked States (1965): 91
Convention relating to Intervention on the
High Seas in Cases of Oil Pollution
Casualties (1969): 83, 101
Convention relating to the Arrest of Seago-
ing Ships (1952): 290
Convention relating to Unication of Certain
Rules relating to Penal Jurisdiction in
Matters of Collision (1952): 78, 230, 268
Committee of Experts of the League of Na-
tions: 26
612 Index
Corfu Channel case: 9, 119, 125, 126, 128,
132, 140, 154, 205
Council of Europe: 79, 112, 200, 231, 244,
508
Council of Europe Agreement for the
Prevention of Broadcasts Transmitted
from Stations outside National Territories
(1964): 231, 244
Curzon, Lord: 418
Customary international law: 5, 23, 58, 93,
100, 198, 210, 268, 404, 408, 412, 445,
458, 552, 570, 573, 598
Customary law: 12, 15, 25, 36-38, 40, 45,
50, 56, 59, 119, 121, 128, 187, 202, 203,
205, 206, 210, 229, 230, 234, 235, 260,
268, 275, 281, 364, 373, 387-389, 398,
399, 403, 404, 406-409,412, 420, 421,
445, 509, 549
Creeping jurisdiction: 15, 69, 114, 226, 245
Criminal jurisdiction: 73, 78, 458
D
de Castro, Judge: 25, 198, 206
Declaration of Principles on the Seabed: 12,
27
Declarations: 13, 65-67, 69, 90, 92, 210,
401, 507, 509, 582, 583, 598
Default rule: 420, 549, 567
Depositary: 35, 51, 69, 95, 327, 334, 354,
355, 374, 507
Design, construction, manning and equip-
ment (DCEM) of ships: 108, 255, 263
Dillard, Judge: 197, 205, 206, 570
Diplomacy/diplomatic relations: 325, 326,
336, 339, 368, 419, 607
Diplomat(s): 24, 25, 86, 326, 330, 339, 340,
492, 530, 539
Dispute resolution: 204, 414, 429, 491-501,
579, 599
Dispute settlement/settlement of disputes:
9, 30, 31, 33, 36, 56, 59-61, 69, 84, 115,
256, 288, 289, 293, 374, 376, 391, 395,
410, 433, 419, 496, 505, 508, 510, 511,
521, 527, 547-559, 578-581, 586, 588,
592-596, 602, 604, 605
Distant water shing/vessel(s)/state(s): 15,
18, 28, 216, 220, 225, 246, 279, 365-367,
370, 374, 555
Distress, ships in: 72, 74, 80, 103, 112, 141-
143, 145, 190, 268
Donaldson, Lord: 72, 73, 111, 114, 166,
255-257, 261, 276, 466
Drake, Sir Francis: 5
Driftnets: 20, 216, 219, 278
Dudgeon, Mr.: 122, 124, 135, 139, 147, 155
Due regard: 129, 142, 170, 187, 203, 211,
233-235, 248, 249, 365, 376
Dumping: 20, 57, 82, 177, 253, 296, 298,
550, 551
Duty to cooperate: 43, 85, 115, 243, 244,
564, 567
E
Eastern European Group: 52, 321, 511
Ecosystem approach: 17, 21, 370, 571
Elizabeth I: 4, 5
Emergent customary law: 15, 398, 420
Enclosed or semi-enclosed seas: 5, 80, 184
Enforcement: 36, 76, 77, 82-84, 110, 113,
131, 149, 151, 171, 189, 190, 192, 193,
206, 212, 224, 246, 247, 249, 251-267,
271-283, 285, 287, 289, 293-296, 371,
372, 376, 377, 469
Enterprise (The): 307-311, 316, 320, 321,
342-344, 357, 358
Environment: 3, 4, 7, 12, 13, 16, 21, 25, 40,
57, 58, 61, 63, 64, 68, 72, 75, 80-82, 85,
104, 107-109, 113, 117, 129, 131, 153,
170, 176, 177, 184, 185, 187, 209, 215,
219, 220, 230, 238, 241, 248, 252, 254,
256, 259, 263-266, 275, 276, 287, 296,
297, 307, 309, 310, 316, 320, 337, 342,
354, 370, 376, 457, 466, 495, 499, 527,
550-554, 556, 563, 564, 567, 571, 575,
585, 607
Epicontinental sea: 8
Equidistance line(s): 125, 182, 183, 385,
388, 390, 391, 404-406, 440, 441, 444,
445, 449, 460, 463, 486, 488
Equidistance method/principle/rule: 181,
386-388, 394, 399, 405, 408, 420, 426,
427, 430, 431, 435, 438-440, 442-446,
448, 449, 459, 463, 464, 479, 481-488
Equitable geographical distribution/repre-
sentation: 16, 52, 358, 506
Equitable principle(s): 12, 181, 198, 199,
387-389, 392, 399, 405, 408, 420, 421,
430, 438, 444, 445, 448,449
Equitable result(s): 125, 387, 389, 393, 404,
405, 418, 426, 430, 445, 449, 463
613 Index
Equitable solution(s): 58, 234, 385, 392,
394, 405, 408, 416, 422, 432, 435, 438,
449, 482, 495
Equity: 12, 384, 387, 388, 391-393, 399,
449
Erika: 111, 189
Eritrea/Yemen case: 389, 390, 399, 402-404,
412, 415, 422
Error(s) (in treaties): 163, 434
European Community (EC): 11, 15, 16, 18,
41, 51, 59, 66, 67, 76, 79, 80, 82, 83, 85,
86, 88, 90, 96, 110, 113, 177, 185, 192,
211, 221, 244, 232, 260, 275, 277, 281,
293, 303, 316, 323, 330, 351, 356, 363,
366, 367, 369, 372-376, 383, 421, 461,
466, 467, 508, 509, 519, 550, 551, 556,
560, 563, 565, 597
European Convention on Human Rights:
515, 572
European Court of Human Rights (ECHR):
507, 515, 516, 521, 522, 526, 532-534,
540, 546, 579
European Court of Justice (ECJ): 113, 383,
458, 507, 515, 516, 527, 532, 533, 543,
563, 566, 597
European Fisheries Convention (London
Fisheries Agreement) (1964): 11, 71,
164, 180, 441, 452, 460
European Union (EU): 59, 70, 113, 323,
331, 355, 356, 460, 597
Evensen Group: 32, 273
Ex aequo et bono: 392
Exclusive Economic Zone (EEZ): 13-17,
22, 38, 41, 50, 67, 75-77, 80, 90-92, 101,
109-113, 122-124, 127, 131, 133, 135-
138, 140, 155-157, 165, 177, 179, 180,
183, 184, 187, 189, 198, 199, 203, 209-
227, 231, 242, 245, 247, 248, 260, 263,
275, 278, 287, 291, 292, 294, 295, 305,
364, 365, 367, 369, 370, 376, 388-391,
394, 399, 401, 403-406, 408, 409, 413,
421, 422, 424, 430, 435, 444, 446, 451,
460, 461, 465-470, 486, 492, 493, 512,
548, 552-554, 560-563, 569, 570, 598
Experts: 24, 26, 61, 101, 102, 272, 334,
394, 414, 415, 418, 419, 422, 434, 438,
439, 484, 485, 487, 507, 514, 536, 564,
572-576, 580, 581, 584, 585, 589
Extra-territorial jurisdiction: 260, 284
F
Fact-nding: 61
Fiji/UK Group on Straits: 32, 121, 122, 127,
130, 132, 134, 135, 137, 139, 141, 143,
144, 148, 150-154, 156
First International Peace Conference: 579
Fisheries: 4-6, 8, 10, 11, 13, 15, 20-22, 35,
39, 61, 76, 77, 85, 92, 96, 104, 108, 110-
114, 176, 177, 180, 182, 183, 197-198,
202, 203, 205, 207, 209-227, 246, 279,
281, 284, 291-293, 325, 337, 363-377,
383, 406, 407, 411, 413, 418, 433, 440,
441, 452, 459, 460, 464, 478, 481, 486,
487, 491, 495, 510, 536, 550, 551, 553,
555, 573, 560-563, 569, 585, 607
Fisheries case (UK v. Norway): 6, 9, 125,
452, 455
Fisheries, coastal: 202, 210
Fisheries, high seas: 9, 79, 96, 510, 216,
279, 281
Fisheries jurisdiction: 8, 10, 55, 130, 178,
180, 183, 203, 206, 209, 220, 279, 284,
413, 437, 458, 460, 509, 552
Fisheries Jurisdiction/Icelandic Fisheries
cases: 36, 39, 96, 187, 195-207, 234-236,
364, 373, 447, 448, 496, 569, 574, 576
Fisheries limits: 10, 11, 13, 15, 66, 75, 76,
80, 164, 165, 180, 183, 195, 196, 198,
199, 209, 213, 247, 389, 452, 459-461,
470, 486, 496
Fisheries management: 17, 18, 21, 225, 235,
246, 280, 283, 285, 369, 371, 375, 376
Fisheries zone(s): 10, 38, 75, 76, 165, 180,
202, 203, 209, 210, 219, 230, 292, 305,
403, 404, 406, 409, 430, 446, 451, 460,
466, 468, 470, 471
Fishermen: 113, 176, 191, 195, 246, 337,
383, 413, 418, 423, 433, 435, 456-458,
481-484, 488, 564
Fitzmaurice, G.: 10, 27, 100, 102, 114, 120,
262, 337, 338, 340, 388, 412, 429, 544
Flag(s) of convenience: 16, 114, 238, 240,
241, 255, 269, 270, 556, 366
Flag state implementation: 239, 249, 258,
265, 274
Flag state jurisdiction: 5, 178, 229, 230,
232, 235, 236, 238, 243, 254, 256, 258,
265, 266, 268, 269, 272, 276, 277, 284
Fleischhauer, C.: 25, 311, 312, 419, 578
614 Index
Food and Agriculture Organization (FAO):
9, 16, 57, 82, 89, 96, 204, 211, 215-217,
220, 225, 246, 278, 279, 282, 283, 366,
367, 371, 372, 375-377, 562
Force majeure: 72, 103, 141-143
Forum Fisheries Agency: 224, 278, 367
Franois, Prof.: 479, 484, 488
Freedom of communication(s): 117, 128, 140
Freedom of shing: 10, 20, 95, 203, 364,
365, 376
Freedom of navigation: 13, 14, 64, 67, 101,
105, 109, 111, 120-122, 133, 135, 136,
138-141, 166, 187, 212, 222, 223, 227,
231, 243-245
Freedom(s) of the high seas: 6, 140, 187,
202, 203, 222, 229-250, 364
Freedom of the seas: 4-7, 10, 19, 20, 99,
128, 229
Freestone, D.: 94, 210, 215, 229, 245, 249,
267, 281, 285, 368, 372, 477, 487, 559
French, G.: 317, 333
Frigate Bird Mining Site: 81
Frost, R.: 180, 418
Fur Seal Arbitration (1893): 233
G
Galindo Pohl, Amb.: 233, 592
Gardiner, P.: 570
General Agreement on Tariffs and Trade
(GATT): 54, 281, 310, 321, 346, 359,
373, 579
Generally accepted international rules and
standards: 108, 109, 129, 142, 144, 146,
148, 151, 238, 249, 238, 249, 253, 255
Geneva Conventions on the Law of the Sea
(1958): 11, 17, 26, 27, 40-42, 55, 59, 70,
87, 94-96, 102, 119, 166, 303, 304, 364,
391, 401, 419, 426, 447, 452, 468, 549, 595
Continental Shelf: 12, 26, 39, 40, 55, 76,
95, 120, 180, 181, 183, 199, 203, 215,
383, 387, 388, 398, 401, 403, 404, 406,
408, 409, 419, 420, 422, 440, 442, 444,
448, 461, 491, 492
Fishing and Conservation of Living Re-
sources on the High Seas: 95, 204, 230,
364, 365, 376
High Seas: 10, 41, 55, 78, 91, 95, 102,
202, 230-237, 244, 245, 248, 255, 256,
268, 290, 364
Territorial Sea and Contiguous Zone: 71,
72, 79, 55, 95, 100, 102, 119, 132, 133,
139, 156, 157, 164, 166, 184, 262, 263,
270, 275, 387, 391, 398, 401, 407, 408,
419, 422, 443, 446, 452, 454-456, 469,
486
Gentlemens Agreement: 31, 58, 328
Genuine link: 232, 235-238, 240-243, 249,
255, 557
Geodesic line(s): 394, 415, 460, 498
German Interests case (1926): 233
Gidel, G.: 19, 233, 484
Good faith: 114, 234, 241, 242, 248, 356,
374, 391, 416, 425, 593, 603
Grand Prince case: 240, 242, 553, 556, 557,
560, 561
Great Belt case: 565
Greenpeace: 177, 369, 461
Grisbadarna case: 392, 477-490
Gros, A.: 206, 337
Grotius, Hugo: 5, 229
Group of 77: 28, 31, 32, 307, 317, 323, 350,
357, 360
Group of Experts on the Scientic Aspects
of Marine Pollution (GESAMP): 571
Group of Five: 28, 90, 105, 170, 185
Guillaume, G.: 181, 185, 404, 405
Guinea/Guinea-Bissau case: 388, 431, 443,
479, 480, 485
Gulf of Maine case: 36, 38, 50, 58, 400,
406, 415, 426, 482, 483, 487, 572
Guyana/Suriname case: 567
H
Hague Codication Conference (1930): 6,
9, 15, 19, 118, 254, 267, 454, 484
Harry, R.: 592
Hedberg formula: 385
Hedberg, H.: 570
Higgins, R.: 525, 527, 533, 566
High seas: 5, 6, 8-11, 15, 16, 19, 20, 40,
41, 58, 79, 95, 96, 100-102, 110, 113,
118-120, 122, 127, 129-133, 135-141,
144, 145, 154-157, 165, 167, 168, 170,
183, 185-187, 202-204, 210, 211, 216,
217, 222, 229-235, 238, 239, 243-246,
248, 249, 254, 258, 260, 265, 268, 272,
278-281, 284, 289, 294, 304, 363-367,
369-376, 441, 457, 458, 467, 468, 554,
569, 573
615 Index
High seas freedoms: see Freedom(s) of the
high seas
High Seas Task Force: 243, 284
Highet, K.: 514, 523, 578
Highly migratory species: 15-17, 213, 364,
365, 369, 555
Historic bays: 124
Historic straits: 124
Historic title: 387, 486
Historic waters: 92
Honiara Agreement Concerning Cooperation
in the Management of Fisheries of Com-
mon Interest (1994): 216
Hot pursuit: 41, 79, 210, 231, 232, 245-248,
552, 563
Hudson, M.: 484, 533, 539
Human rights: 36, 113, 241, 527, 567, 586
Hurst, C: 60, 491, 500
Hydrographers/hydrography: 136, 137, 384,
394, 414, 415, 422, 438, 448, 485, 514,
536, 572, 573, 585
Hydrographic surveys: 103, 105, 108, 145,
146, 150, 414
I
Ievoli Sun: 176, 189, 192
Im Alone case: 205, 373, 552
IMCO Advisory Opinion: 236, 255
IMCO Convention: 236
Indian Ocean Tuna Commission (IOTC):
18, 246
Innocent passage: 7, 28, 50, 67, 70-73, 100,
102, 104, 108, 109, 111, 119-124, 127,
131, 132, 136, 137, 139, 140, 145, 146,
155-157, 164, 166-168, 170, 172, 179, 180,
186, 189, 262, 263, 338, 457, 459, 469
Installations: 21, 57, 67, 73, 75-78, 82, 83,
103, 104, 106, 107, 150, 153, 154, 177,
221, 222, 233, 246, 433, 462, 497, 498, 550
Institut de Droit International: 118
Integrated coastal zone management: 177
Intellectual property rights: 54, 358
Inter-American Courts of Human Rights:
532
Inter-American Tropical Tuna Commission:
216, 217, 246
Interim arrangements: 204, 313, 316, 411-
414, 432, 494, 496
Interim measures: 196, 411, 432, 512, 527,
534, 558
Internal waters: 130-132, 137, 163, 165,
166, 189, 219, 253, 270, 275, 451, 457,
459, 479
International Civil Aviation Organization
(ICAO): 51, 144, 145, 530
International Council for the Exploration of
the Sea (ICES): 76
International Court of Justice (ICJ/World
Court): 18, 25, 36, 39, 59, 60, 69, 196,
239, 265, 295, 322, 340, 374, 386, 394,
415, 433, 497, 447, 479, 507-516, 519,
522, 527, 530-536, 539-541, 543, 544,
546, 548, 556, 566, 577, 578, 580, 582,
583, 588, 605, 606
International Criminal Court: 339, 579
International Criminal Tribunals for the
former Yugoslavia and for Rwanda: 516,
579
International Hydrographic Organization
(IHO): 57, 381, 414
International Labour Organization (ILO):
258, 261, 265, 273, 274, 276, 277
International Law Association (ILA): 19,
58, 118, 238, 259, 271-273, 279, 365, 409
International Law Commission (ILC): 9,
12, 19, 23, 24, 26, 27, 29, 36, 43, 44, 100,
101, 103, 119, 126, 202, 212, 224, 233,
236-238, 241, 242, 247, 262, 327, 329,
386, 419, 420, 438-441, 454, 484-488
International Maritime Consultative Organi-
zation (IMO): 269
International Maritime Organization: 7, 13,
21, 43, 50, 57, 72, 78, 92, 101, 108-114,
140, 144, 148, 165, 167, 169-172, 184-
187, 189, 192, 239, 245, 249, 252, 256-
259, 261, 263-266, 269-271, 274, 276,
277, 295, 355, 457, 466
International navigation, meaning: 120-127,
138
International Oceanographic Commission:
50, 57
International Plan of Action to Prevent, De-
ter and Eliminate Illegal, Unreported and
Unregulated (IUU) Fishing (2001): 282
International Seabed Authority (ISA; the Au-
thority): 7, 15-18, 49-54, 56, 60, 61, 78,
81, 86, 94, 288, 305, 306, 308-310, 313,
316, 318-322, 331, 332, 340, 349, 352-
360, 401, 410, 505, 508, 509, 519, 551
International seas: 231, 232
616 Index
International Tribunal for the Law of the
Sea: 15, 17, 18, 25, 52, 53, 61, 56, 59,
60, 64-66, 69, 84, 86, 88, 93, 94, 97, 115,
235, 239-241, 249, 252, 265, 287-289,
305, 308, 322, 356, 360, 374, 394, 401,
414, 435, 497, 505-567, 577, 579, 580-
589, 591, 598, 601, 608
International tribunal(s): 36, 39, 59, 127,
230, 240, 329, 449, 477, 479, 487, 497,
550, 583, 586
Interpretation: 42, 43, 55, 59, 67, 69, 91,
124, 125, 138, 140, 207, 226, 236, 240,
241, 247-249, 287, 293, 294, 313, 316,
325, 330, 344, 347, 352, 368, 383, 385,
399, 410, 427, 433, 508-510, 512, 521,
524, 526, 530-532, 548-551, 558, 566,
567, 570, 573, 583, 592, 593, 595, 597,
607
Irish formula: 385
IUU/illegal shing: 224, 247, 244, 249, 282,
293, 298
J
Jackling, R.: 25, 272
Jaenicke, G.: 195-198, 201, 393, 410, 570
James I: 4
Jan Mayen case: 389, 402-406, 408, 421,
422, 493, 548, 605
Jennings, R.: 3, 12, 25, 31, 58, 231, 253,
272, 329, 388, 392, 399, 403, 404, 419,
429, 531, 533, 544, 578
Jesus, J: 312
Joint area(s): 411, 414, 415, 418, 432, 433,
448, 492-500
Joint development/exploitation: 411, 412,
432, 433, 492-495, 499-501
Joint development agreements/treaties: 495-
502, 411
Joint ventures: 53, 54, 213, 309, 310, 320,
321, 357, 358, 432, 496, 499, 500
Juno Trader case: 97, 111, 223, 560-562,
587
Jus cogens: 30, 36, 40, 511
Jus communicationis: 99, 178, 212, 262
K
Kapumpa, M.: 307, 350
Kasoulides, G.: 276
Kennedy, Cdr.: 438-440
Kirsch, P.: 305, 339
Koh, T.: 24, 29, 33, 58, 86, 93, 251, 339
L
La Bretagne case: 214, 215, 220, 224
Lachs, M.: 40, 206, 387, 388, 400, 420, 533,
543
Land-kenning: 4
Land-locked states: 6, 25, 28, 37, 50, 56, 58,
81, 86, 91, 92, 304, 367
Land, Island and (Maritime) Frontier case/
dispute: 480, 509
Land Reclamation case: 112, 560, 563, 564,
567, 571, 575, 576, 591, 598, 601-603,
608
Large marine ecosystems: 366, 370
Lauterpacht, H.: 26, 27, 60, 429, 516
Law of the Sea Institute (LSI): 312, 305,
385, 570
Law of treaties (see also Vienna Conven-
tion): 23-27, 326, 327, 329, 330, 335,
434, 443, 509
Law-making conventions/treaties: 24, 26,
38, 39, 41, 43, 44, 88, 327, 328, 595
League of Nations: 6, 19, 26, 27, 118, 119,
254, 268, 326, 454
LeGrand case: 527
Lex specialis: 145
Liability: 78, 101, 113, 114, 149, 150, 154,
295, 296
Litigation: 111, 201, 204, 239, 240, 337,
389, 391, 400, 410, 418, 420, 421, 424,
427, 435, 442, 480, 487, 488, 493, 494,
497, 510, 514, 549, 558, 566, 567, 577-
587, 597, 601, 604, 606, 608
Local remedies rule: 291, 299, 509
London (Dumping) Convention (1972): 57,
314, 550, 551
London (Dumping) Convention Protocol
(1996): 551
Lotus case: 78, 229, 265, 268, 590
Low-water line/mark: 453, 454
Low-tide elevation(s): 71, 81, 382, 383,
390, 405, 407, 446, 453, 458, 459, 483
Libya/Malta case: 125, 393, 404, 405, 409,
449, 480, 482, 570, 573
Living resources: 7-9, 19, 40, 72, 103, 104,
108, 150, 130, 184, 204, 210-213, 218,
224, 230, 281, 284, 287, 291, 293, 337,
360, 364, 365, 368, 371, 372, 375, 553,
554
617 Index
London Principles applicable to the Forma-
tion of General Customary International
Law: 93, 210, 225
M
Maastricht Treaty (1992): 332
MacGibbon, I.: 101
Madrid Formula: 337, 496
Main Trends document: 32, 105, 121, 232,
237, 338
MANCHEREP: 189
Manner, E: 401, 420, 444
Mare clausum: 3, 4, 6, 233
Mare liberum: 3, 4, 5, 6, 229
Marine scientic research: 30, 61, 75, 83,
145, 146, 179, 230, 233, 571
Maritime boundary agreements/treaties:
383, 401, 417-435, 449, 492
Maritime boundary, beyond 200 nm: 410,
411
Maritime boundary law: 397-416, 421, 479
Maritime boundary-making: 403-416, 417-
435
Maritime boundary negotiations: 417-435,
606
Maritime boundary, single/all-purpose: 390,
404, 406, 407, 412, 423, 430, 448, 470,
461, 494
Maritime boundary types: 391
Maritime boundaries: 7, 60, 86, 182, 337,
381, 391, 398, 401, 402, 407, 412, 414,
417, 418, 424, 429, 425, 437, 441, 451,
461, 465, 470, 479, 509
McNair, A.: 25, 243, 326
Median line: 55, 71, 118, 183, 387-391,
393, 403, 404, 420-423, 425, 428, 430,
438-441, 444, 445, 449, 458-460, 467,
468, 481, 483-486
Mediation: 593, 595, 599, 605
Memorandum of understanding: 328-330
Mendelson, M.: 392, 402
Mensah, T.: 113, 526, 591, 601
Meyer, Dr.: 197, 570, 576
Mineral resources: 8, 11, 18, 20, 21, 26, 54,
64, 81, 94, 130, 179, 306, 310, 321, 359,
411, 412, 433, 445
Mining: 12, 14-16, 26, 30, 33, 34, 51, 53,
54, 58, 60, 61, 64, 75, 81, 82, 84, 85,
164, 304, 306-310, 312, 313, 316, 317,
319-323, 332, 334, 341-345, 347, 355,
356-360, 398, 421, 508-510, 519, 549-
551, 571, 585
Mero, John: 11, 26, 306
Model Scheme on Port State Measures to
Control IUU Fishing (2005): 282, 283,
377
Modus vivendi: 204, 336, 496, 498
Monte Confurco case: 112, 524, 553, 556,
557, 560, 561
Montijo case: 242
Montreux formula: 33, 510, 511, 549, 581
Montreux Convention (1936): 134, 135
Moratorium Resolution (1969): 12
MOX Plant case: 112, 184, 551, 556, 560,
563, 567, 591, 597-601, 603
Munkman, A.: 484
Muscat Dhows case: 236, 242
N
Nandan, S.: 11, 18, 32-35, 74, 94, 96, 102,
105, 107, 117, 122, 164, 186, 252, 580,
282, 288, 305, 312, 316, 317, 322, 340,
350, 365
Narcotics/drugs (trafcking): 50, 57, 73, 79,
154, 179, 231, 232, 243, 244, 247, 249,
289, 290, 469
National jurisdiction, limits of: 3, 6, 7, 11,
12, 14, 18, 26, 27, 40-42, 64, 81, 92, 93,
120, 178, 230, 231, 252, 271, 287, 298,
305, 364, 372, 398, 399, 421, 479
National liberation movements: 13, 28
Nationality of ships: 78, 231, 235, 236, 239-
242, 245, 253, 255, 557
Natural prolongation: 12, 14, 77, 387, 389,
409, 411, 420, 447, 570
Nelson, D.: 13, 32, 92, 222, 233, 384, 410-
411
New International Economic Order: 28,
306, 309
Nicaragua case: 36, 50, 178, 212, 262
Nicholson, H.: 326, 339, 340
Nodules: 11, 26, 58, 60, 81, 306, 350, 509
Normal mode (navigation): 130, 142, 143,
170, 185
Non-discrimination: 122, 151
Non-governmental organization(s) (NGOs):
21, 35, 36, 371, 580, 581, 588
Non-innocent activities/passage: 102, 103,
105, 106, 107, 143, 262, 263
Non-jurisdictional arrangements: 497
618 Index
Non-papers: 32
North Atlantic Salmon Conservation Organi-
zation (NASCO): 367
North Atlantic Treaty Organization (NATO):
90, 195
North Sea Conferences: 80, 184, 209, 210
North Sea Continental Shelf cases: 12, 39,
55, 181, 198, 199, 203, 386-389, 398,
399, 403, 405, 412, 420, 425, 426, 431,
442-444, 448, 449, 463, 479, 481, 482,
486, 493, 596
Northwest Atlantic Fisheries Organization
(NAFO): 18, 96, 246, 283, 293, 367, 371,
372
Northwest European Waters Special Area:
184
Nottebohm case: 9, 235, 236, 241, 242
Nuclear submarines: 11
Nuclear substances, carriage of: 109, 156
Nuclear-powered vessels: 122, 140, 156
O
Ocean space: 40, 101, 287, 303, 558
OConnell, D.: 3, 26, 102, 119, 139, 262-
264, 484
Oda, S.: 26, 294, 298, 392, 402, 411, 577,
578, 583
Oil Pollution Act 1990, US: 110
Oil Pollution Convention, 1954: 100, 262,
269
Optional clause: 510, 607
Optional Protocol on the Settlement of
Disputes (1958, 1961, 1963): 31, 36, 59,
376, 510, 549, 595
Overight: 11, 57, 74, 120-122, 127, 129,
133, 135, 136, 138-141, 144, 145, 153,
154, 166, 168-172, 180, 185, 212, 233,
458, 459, 469
Overlapping claims: 15, 389, 390, 399, 418,
424, 492, 493
Oxman, B.: 41, 108, 220, 241, 243, 249,
253, 520, 548, 549
P
Package(s): 11, 14, 18, 19, 44, 92, 114, 164,
199, 327, 331-333, 340, 391, 399, 407,
418, 433, 498, 566, 596
Package deal: 31, 38, 58, 395, 520, 549
Pacta sunt servanda: 55, 434
Papal Bulls: 5
Pardo, Arvid: 11
Paris Memorandum of Understanding on
Port State Inspection and Control 1982
(Paris MOU): 80, 83, 185, 238, 258, 261,
262, 274-277
Particularly Sensitive Sea Area (PSSA):
111, 112, 466
Paris Declaration on the Coordinated Exten-
sion of Jurisdiction in the North Sea
(1992): 83, 209, 260
Patrimonial sea: 13, 14, 22
Peanut hole: 365, 371
Pellet, A.: 327, 578
Perentis: 176, 192
Perez de Cuellar, J.: 15, 65, 307, 311, 339,
350, 400, 578
Permanent Court of Arbitration (PCA): 236,
478, 479, 483, 486, 578, 582, 588, 564
Permanent Court of International Justice
(PCIJ): 78, 229, 233, 265, 290, 425, 513,
516, 521, 533, 539, 543, 598,
Perpendicular method: 393, 438, 441, 449,
479, 481, 482, 484, 485-488
Persistent dissenter/objector: 91, 58
Petren, Judge: 206
Pioneer investor(s): 52, 53, 305, 306, 310,
320-322, 343, 350, 351, 356
Pipelines: 32, 78, 79, 104, 107, 150, 222,
231, 233, 248, 430, 462, 464
Piracy, pirates: 5, 97, 289, 290, 298
Pirate broadcasting: 41, 79, 231, 244,
245, 289, 338, 467
Pollution: 12, 13, 21, 22, 56, 70, 75, 82, 92,
101, 104-110, 114, 165, 179, 180, 183,
209, 210, 238, 254, 259, 270, 296, 304,
407, 451, 466, 468-470, 514, 550, 556,
571, 607
Pollution, atmospheric: 550
Pollution, land-based: 82, 114, 550
Pollution, seabed mining: 82, 309, 571
Pollution, ship/vessel-source: 12, 13, 72, 73,
82, 83, 100, 101, 103, 105, 109-114, 129,
142, 144, 149-153, 167, 169-171, 176,
178, 180, 184-186, 188-192, 205, 206,
209, 210, 253, 255, 256, 259-272, 275-
279, 284, 291, 294-298, 451, 465, 466,
510, 550, 560
Port state control/inspection/enforcement:
83, 114, 185, 189, 193, 243, 254, 256-
619 Index
258, 260, 265-285, 293, 294, 296, 297,
377, 512
Port state jurisdiction: 83, 114, 238, 249,
253, 255, 257, 259-261, 264-285, 373
Ports of convenience: 283
Practice of international law: 326, 340
Precautionary approach/principle: 17, 21,
366, 370, 375, 554-556
Predictability: 394
Preparatory Commission (Prepcom): 15,
17, 51, 52, 59, 64, 65, 291, 305-307, 309,
313, 318, 323, 342-344, 347, 350, 353,
511, 514
Prestige: 111, 112
Principle of cooperation: 494
Private law: 114, 509
Privileges and immunities: 42, 61, 81, 84,
507
Prompt release (of vessels): 60, 77, 84, 112,
220, 221, 223, 227, 239, 240, 242, 263,
287-299, 510, 512, 519, 520, 523, 524,
526, 530, 535, 537, 553, 557, 558, 560,
561, 563, 566, 567, 584
Proportionality: 387, 389, 390, 393, 394,
404, 415, 449
Provisional measures: 112, 196, 240, 288,
290, 299, 371, 520, 524, 526, 527, 530,
535, 538, 554, 555, 560, 563, 564, 566,
567, 573-575, 584, 591, 598-600, 603
Q
Qatar v. Bahrain case: 181, 390, 391, 402-
408, 415, 421, 426
R
Railway Trafc case: 425
Ranjeva, R.: 594
Rao, P.C.: 522, 526, 529, 530, 547, 559,
580, 603, 608
Reasonable bond: 77, 235, 288, 292, 553,
560
Reasonable regard: 19, 145, 202, 203, 211,
234, 235, 364, 365
Rebus sic stantibus: 352
Reception facilities: 100, 101, 297
Red Crusader case: 205, 373, 552
Regional sheries management organiza-
tions (RFMOs): 17, 235, 246, 282, 283,
285, 293, 370-372, 375-377
Registration of ships: 57, 114, 236, 240-
243, 269, 556, 557
Res communis: 233
Res extra commercium: 233
Res nullius: 233
Reservations: 35, 38, 45, 67, 92, 180, 181,
183, 317, 327, 328, 342, 344, 434, 350,
420, 607
Reuter, P.: 23, 24, 31, 326
Right of Passage case: 597
Rio Conference see: UN Conference on
Environment and Development (1992)
Rio Declaration (1992): 16, 17, 57, 370
Riphagen, W.: 24, 44, 549
Rockall: 66, 77, 80, 92, 165, 446, 447, 453,
458, 460
Rockefeller Foundation: 581
Rosenberg, A.: 370
Rosenne, S.: 4, 24, 26, 107, 233, 275, 329,
365, 521, 522, 531, 539, 541, 547, 559,
583, 594
Routeing, of ships: 72, 73, 167, 170, 171,
186-188, 190, 192
Rules of international law: 152, 153, 170,
206, 233, 240, 262, 268, 289, 335, 363,
374, 384, 385, 427, 479, 509, 516, 533
Rules of Procedure: 9, 29, 31-33, 37, 44, 58,
367, 409, 479
S
Safety zones: 77
Saiga cases: 96, 111, 206, 220-227, 240,
243, 246, 247, 524, 526, 530, 532, 535,
537, 538, 540, 542, 551, 552, 554, 556-
558, 560-563, 565, 567
San Remo Manual on International Law Ap-
plicable to Armed Conicts at Sea: 226
Santiago Declaration on the Maritime Zone
(1952): 8
Santo Domingo Declaration on the Patrimo-
nial Sea: 13, 14
Scientic evidence: 370, 569-576
Scientic research: 25, 57, 202, 571
Scovazzi, T.: 4, 92, 95, 231, 238, 401, 413
Seabed (First) Committee of the 3
rd
UN LOS
Conference: 11-13, 27, 28, 30, 33, 34,
101, 102, 120, 121, 231-233, 259, 271,
289
620 Index
Seabed Disputes Chamber: 60, 84, 94, 509,
511, 512, 519, 520, 535, 536, 550, 551,
558, 583, 584, 588
Second Committee of the 3
rd
UN LOS Con-
ference: 30-33, 40, 58, 79, 102, 105, 106,
109, 121, 123, 124, 127, 130, 132-134,
136, 137, 139, 141, 143, 144, 149, 150,
152, 154, 156, 157, 186, 198, 232, 233,
237, 238, 244, 248, 338, 340, 388
Secretary-Generals Consultations on Part
IX: 15-17, 34, 35, 42, 45, 65, 303, 307-
311, 313, 315-323, 331-333, 341-345,
349-360, 400, 520, 521
Selden, John: 4, 233
Sereni, Prof.: 544
Shahabuddeen, Judge: 533, 544
Shakespeare, W.: 437
Sic utere tuo ut alienum non laedas: 233
Sinclair, I.: 23, 29, 44, 326, 329
Smuggling: 73, 79, 103, 104, 111, 150, 151,
206, 221, 222, 232, 244, 245, 249, 290,
298, 469
Sohn, L.: 4, 50, 312, 594
Soons, A.: 239
South West Africa cases: 328
Southeast Atlantic Fisheries Organization
(SEAFO): 18, 96, 246, 283
Southern Bluen Tuna/SBT case: 112, 196,
520, 530, 536, 538, 551, 554-556, 560,
563, 567, 570, 573, 574, 591, 598, 599,
602
Sovereign immunity: 149, 151, 152
Sovereignty: 4, 5, 7, 8, 19, 25, 29, 67, 68,
70, 76, 130, 131, 142, 143, 146, 154, 155,
219, 233, 259, 272, 278-281, 284, 373,
381, 386, 402, 412, 414, 418, 423, 431,
434, 481, 482, 495, 496, 509, 522, 556,
564
Special circumstances: 181, 385-388, 390,
392, 403, 405, 408, 420, 439, 440, 444,
448, 485-488
St. Pierre & Miquelon case: 402, 403, 410
Standard-setting conventions: 239, 249
State practice: 3, 6, 7, 9, 21, 25, 26, 34,
36-38, 40, 45, 55, 56, 69, 80, 89, 92, 93,
100, 110, 129, 134, 164, 167, 168, 198,
202, 209, 210, 211, 216, 217, 220, 224,
226, 235, 236, 283-285, 294, 303-305,
327, 376, 383, 386, 390-392, 394, 395,
400-402, 404, 406, 409, 412, 416, 432,
447,449, 477, 493, 495, 499, 531, 605
State responsibility: 44, 114, 149, 152, 509
State succession: 52, 352, 402, 427
Stockholm Declaration on the Human Envi-
ronment (1972): 13, 270
Stowell, Lord: 573
Straddling stocks: 210, 294, 364, 365, 371
Straits passage: 28, 58, 73, 74, 89, 102, 117-
161, 163-173
Straits states: 86, 89, 103, 117, 121-123,
128, 130, 131, 133, 140, 142, 143, 145-
153, 184, 262, 264, 163-173
Straits, types of: 123-124, 131, 138, 155-
157, 165
Straits used for international navigation:
11, 28, 67, 74, 117-161, 186, 185, 164,
167,169-170, 264, 338, 459
Strupp, Prof.: 483, 488
Submarine cables: 41, 79, 78, 104, 107,
150, 230-233, 248
Submarines: 11, 74, 121, 122, 127, 128,
143, 166, 168, 457
Submersibles: 143
Submerged passage: 11, 74, 121, 122, 128,
143, 168, 172
Summary procedures/proceedings: 511,
524, 535
Swordsh case: 550, 551, 556, 558, 560,
565, 567
T
Taba case: 480
Tacit consent: 43, 245, 313, 319, 346, 354,
355, 498
Tanker(s): 72, 100-102, 109-112, 148, 154,
156, 167-169, 176, 188, 190, 191, 215,
221, 223, 225-227, 237, 238, 277, 457,
552, 560
Temple case: 429
Temporary exclusion zone(s): 73
Territorial sea: 4, 5, 7-11, 14, 19, 25, 26, 41,
50, 55, 56, 70-74, 79, 80, 82, 85, 91, 92,
100-102, 104, 106-109, 112, 113, 117-
124, 128, 130-133, 136-138, 141, 147,
148, 150, 151, 155-157, 163-167, 169,
171, 178-180, 182, 183, 185, 186, 188,
190, 199, 202, 203, 206, 209, 219-221,
224, 232, 247, 253, 262-264, 268, 272,
275, 278, 289, 290, 296, 304, 305, 383,
621 Index
386-388, 390, 391, 394, 398, 403-409,
419, 421-423, 430, 439, 440, 442, 443,
445, 451-454, 457-460, 462, 464-469,
478-480, 484, 486-488, 505, 552, 589
Thamsborg, M.: 389, 411
Third party settlement: 59, 337, 408
Third states: 75, 140, 153, 215, 411, 413,
414, 431, 432, 449, 480, 555
Third Committee (Pollution, Research,
Technology) of the 3
rd
UN LOS Confer-
ence: 30, 109, 151, 238, 239, 258, 272,
273, 550
Timor Gap Treaty: 497-499
Titanic: 268
Tolls: 4, 153
Torrey Canyon: 99, 100, 167, 176, 270
Trafc schemes: 147-150, 156, 187, 189,
192, 263, 264, 101, 104, 165
Trafc separation schemes: 72-74, 104, 107,
129, 146, 147, 165, 167-171, 185-187,
192
Transfer of technology: 54, 84, 304, 307,
308, 310, 311, 316, 321, 342, 358
Transit passage: 7, 28, 67, 73, 74, 89, 121,
123, 124, 127-129, 131, 132, 135-142,
144-153, 155-157, 164, 168-172, 180,
185, 338, 459, 469
Transit state(s): 29, 58, 81, 91, 104
Travaux prparatoires: 30, 34
Treaty concerning the Delimitation of the
Submarine Areas of the Gulf of Paria
(1942): 8, 423, 438, 449, 492
Treaty of Copenhagen between Norway and
Sweden (1661): 478
Treaty of Copenhagen on the Danish Straits
(1857) 135, 137
Treaty on the Straits of Magellan (1881)
Tripoint(s): 431, 442, 443, 446, 463
Truman Proclamation(s): 8, 20, 21, 392,
438, 491
Trust fund(s): 97, 240, 521, 577, 590
Tunisia/Libya case: 392, 443, 480, 482, 570
U
Underwater vehicles: 143
Unilateral(ism)/act(s): 10, 12-14, 20, 21, 27,
66, 101, 109-111, 114, 164, 192, 199, 206,
238, 253, 264, 265, 327, 377, 386, 391,
416, 449, 458, 470, 564, 567, 603-608
UN Charter: 23, 24, 39, 59, 60, 86, 88, 102,
106, 133, 142, 143, 327, 329, 336, 391,
392, 401, 416, 435, 491, 492, 494, 496,
586, 595, 596, 598
UN Conference on Environment and Devel-
opment (1992) (UNCED): 366, 368, 370,
375, 376
UN Conference(s) on the Law of the Sea
First (1958): 9, 10, 14, 21, 22, 25, 29-31,
40, 41, 55, 100, 101, 105, 118-120, 126,
128, 164, 202, 236, 234, 255, 260, 262,
272, 338, 364, 368, 386, 387, 463, 486,
487, 491, 510, 520
Second (1960): 10, 14, 21, 22, 26, 29, 40,
55, 100, 105, 164, 203
Third (1973-1982): 12-15, 19, 21, 23-38,
40-42, 45, 49, 53, 64, 80, 86, 101, 102,
120, 123, 126, 127, 164, 170, 178, 179,
184, 185, 192, 198, 203, 230, 231, 235,
237, 255, 259, 270, 271, 272, 294, 303,
305, 320, 338, 339, 350, 351, 364, 368,
386, 388, 398, 399, 408, 417, 420, 443,
469, 444, 445, 448, 486, 487, 520, 581,
592
UN Convention on the Law of the Sea
(1982):
Article 2: 130, 131, 141
Article 5: 390, 453
Article 6: 407
Article 7: 32, 58, 71, 131, 132, 166, 369,
370, 374, 385, 407
Article 8: 132, 166
Article 16: 148, 407
Article 18: 72, 104, 141
Article 19: 107, 146, 262, 263
Article 21: 72, 108, 189, 255, 262, 263,
289
Article 22: 72, 109, 147, 148, 156, 170,
186, 262
Article 23: 72, 109, 262
Article 24: 151, 154
Article 25: 73, 157, 275, 278, 289
Article 26: 73
Article 27: 73, 289
Article 28: 289
Article 30: 151
Article 32: 73
Article 34: 130-131, 133, 142
Article 35: 131-135, 171
Article 36: 133, 135, 136, 140, 156, 165
622 Index
Article 37: 137, 138, 140
Article 38: 124-126, 137-142, 151, 154-
157, 167, 168, 171, 180
Article 39: 84, 129, 141-146, 148, 151,
152, 168, 171, 180
Article 40: 145, 146
Article 41: 73, 74, 144, 146-150, 156, 170,
171, 186, 262
Article 42: 144, 147, 149-152, 154, 171,
189, 262
Article 44: 140, 151, 153, 154
Article 45: 126, 137, 140, 155-157, 167
Article 49: 131
Article 54: 146
Article 55: 203
Article 56: 75, 211-215, 222, 224, 226,
466
Article 57: 75
Article 58: 75, 109, 111, 133, 187, 203,
211, 222, 223, 226, 248
Article 60: 57, 76, 77, 221, 491
Article 61: 76, 92, 226, 370, 569
Article 62: 76, 199, 202, 212-215, 223-
227, 292, 552
Article 63: 43, 76, 238, 364, 365, 369, 371
Article 64: 43, 76, 238, 364, 365, 369, 371
Article 65: 76, 213, 238
Article 66: 76, 213, 238, 369
Article 67: 76, 213, 238, 369
Article 70: 21, 37, 92
Article 73: 76, 77, 84, 112, 203, 205, 212,
226, 291, 292, 294, 296, 524, 553, 560,
562, 563
Article 76: 19, 42, 53, 77, 182, 384, 385,
391, 409-411, 464, 465, 491, 570, 571
Article 77: 77, 213
Article 82: 78
Article 86: 203
Article 87: 133, 140, 187, 203, 222, 231-
235, 365
Article 91: 78, 235, 237, 241, 243, 557
Article 92: 78, 236, 241, 242, 373
Article 94: 41, 78, 113, 114, 232, 235,
237-239, 243, 255-257, 338, 557
Article 97: 78, 230, 268, 290
Article 98: 78, 112
Article 99: 79, 289
Article 100: 289
Article 101: 79
Article 103: 79
Article 108: 79, 243, 289
Article 109: 41, 79, 232, 244, 245, 289,
338, 467, 468
Article 110: 96, 232, 245, 289, 373, 552
Article 111: 41, 79, 210, 226, 245-247,
552
Article 112: 79, 248
Article 113: 32, 41, 79, 248
Article 115: 79, 248
Article 116: 79, 238, 365, 369
Article 117: 43, 238, 364, 365, 369
Article 121: 76, 79, 80, 92, 165, 390, 407,
446, 460
Article 123: 184, 571
Article 153: 81
Article 155: 54, 308, 321, 344, 358
Article 162: 359, 571
Article 165: 571
Article 187: 509, 520
Article 192: 230
Article 207: 82
Article 208: 82
Article 210: 82, 296
Article 211: 82, 109, 144, 219, 238, 275,
277
Article 213: 82
Article 214: 82
Article 216: 82, 296
Article 217: 83, 109, 238, 256
Article 218: 82, 83, 193, 238, 259-261,
266, 273, 275, 277, 284, 296, 560
Article 219: 83, 297, 298
Article 220: 219, 238, 262, 263, 275, 277,
291, 295, 296, 560
Article 221: 83, 101
Article 223: 83, 277
Article 225: 171, 190, 263
Article 226: 84, 110, 112, 190, 263, 270,
291, 296-298, 560
Article 228: 110, 239, 256, 257, 263, 266
Article 230: 110, 112, 205, 263, 264, 296
Article 232: 83
Article 233: 83, 131, 147, 151, 264, 277
Article 281: 599
Article 283: 591-608
Article 287: 18, 33, 60, 69, 93, 97, 435,
508-512, 549, 551, 554, 557, 558, 561,
564, 566, 582, 583, 588, 598, 605, 607
Article 288: 510, 551
623 Index
Article 290: 288, 290, 299, 520, 523, 526,
527, 530, 531, 535, 554, 556, 558,563,
564, 566, 573, 575, 599, 608
Article 292: 60, 84, 111, 112, 223, 234,
235, 239, 242, 263, 287-291, 293-299,
510, 512, 519, 520, 523, 524, 530, 531,
535, 542, 553, 558, 560-563, 566, 584,
597
Article 298: 59, 69, 395, 401, 509, 510,
549, 604-606
Article 300: 114, 374
Article 303: 7, 85
Article 308: 50, 62, 66, 288, 349
Article 309: 67, 317, 344
Article 310: 67, 92
Article 311: 55, 94, 311, 312, 452
Article 314: 312, 321, 332, 342, 344, 345
Article 315: 54, 321
Article 316: 54, 321, 342, 345
Revised Single Negotiating Text (RSNT):
32, 33, 593
Informal Composite Negotiating Text
(ICNT): 33, 146, 593
Informal Single Negotiating Text (ISNT):
32, 38, 105-107, 123, 127, 130, 132-134,
136, 137, 150, 152, 153, 156, 186, 232,
273, 365, 593
Universal participation: 28, 44, 45, 57, 86,
97, 249, 303-323, 332, 334, 345, 346,
350, 352-354, 360
UN Convention on Conditions for the Regis-
tration of Ships (1986): 57, 243
UN Security Council: 29, 90, 204, 290, 325,
402, 526
V
Vallat, F.: 24, 438
Vessel reporting systems: 57
Vessel trafc services (VTS): 171, 172, 188,
189, 192
Vienna Conference on the Law of Treaties:
9, 23-30, 33, 35-37, 40, 101, 202, 231,
329
Vienna Convention on Consular Relations:
43, 44, 59, 88, 258, 304
Vienna Convention on Diplomatic Relations:
24, 42, 43, 59, 88, 304, 325
Vienna Convention for the Suppression of
Illicit Trafc in Narcotic and Psychotro-
pic Substances (1987): 50, 57, 79, 244,
245, 289
Vienna Convention on Succession of States
in Respect of Treaties (1978): 427
Vienna Convention on the Law of Treaties
(1969, 1986): 35-38, 43, 44, 51, 55, 56,
59, 124, 88, 202, 231, 241, 309, 322, 326,
327, 329, 334, 335, 346, 347, 353, 355,
356, 368, 385, 427, 428, 434, 509, 511,
520
Visit and search: 96, 231, 245, 249, 373,
552
Volga case: 112, 560, 561
Vukas, B.: 223, 225
W
Waldock, H.: 24, 27, 37, 206, 384
Warioba, J.: 25, 223
Warship(s): 28, 67, 73, 74, 118, 119, 121,
122, 129, 139, 143, 151, 152, 154, 245,
373, 156, 168, 170, 185, 220, 223, 226,
227, 243
Watts, A.: 3, 25, 58, 231, 253, 329, 388,
399, 419, 429, 525, 587
Weil, P.: 389, 399, 488
West Central Pacic Fisheries Commission:
18, 96, 246
Wilful(ness): 79, 105-107, 112, 262-264,
292, 296
Winterwerp case: 526
Without prejudice: 109, 121, 204, 263, 289,
335, 336, 410, 424, 432, 495,-498, 512,
563, 603
Witteveen, A.: 582
Wood, M.: 94, 401, 601
Woods Hole Laboratory: 370
World Trade Organization (WTO): 25, 321,
322, 359, 516, 521, 579
World Wildlife Fund for Nature: 371
Wrecks: 36, 58, 85, 469
Y
Yankov, A.: 275, 550
Yaounde Declaration on the EEZ (1972):
13, 14
Yepes, Mr.: 484
Z
Zhao, Judge: 223
62. Maria Gavouneli: Functional Jurisdiction in the Law of the Sea. 2007
ISBN 978-90-04-16345-4
61. Clive R. Symmons: Historic Waters in the Law of the Sea. A Modern Re-Appraisal.
2008 ISBN 978-90-04-16350-8
60. Howard Schiffmann: Marine Conservation Agreements. The Law and Policy of Reser-
vations and Vetoes. 2008 ISBN 978-90-04-16385-0
59. David Anderson: Modern Law of the Sea. Selected Essays. 2008
ISBN 978-90-04-15891-7
58. Veronica Frank: The European Community and Marine Environmental Protection in
the International Law of the Sea. Implementing Global Obligations at the Regional
Level. 2007 ISBN 978-90-04-15695-1
57. David D. Caron and Harry N. Scheiber (eds.): The Oceans and the Nuclear Age, Lega-
cies and Risks. 2007 ISBN 978-90-04-15675-3
56. David Kenneth Leary: International Law and the Genetic Resources of the Deep Sea.
2006 ISBN 978-90-04-15500-8
55. Sarah Dromgoole (ed.): The Protection of the Underwater Cultural Heritage. National
Perspectives in Light of the UNESCO Convention 2001. 2006
ISBN 978-90-04-15273-1
54. Anastasia Strati, Maria Gavouneli and Nikolaos Skourtos (eds.): Unresolved Issues
and New Challenges to the Law of the Sea. Time Before and Time After. 2006
ISBN 90-04-15191-5
53. Rainer Lagoni and Daniel Vignes (eds.): Maritime Delimitation. 2006
ISBN 90-04-15033-1
52. Tore Henriksen, Geir Hnneland and Are Sydnes: Law and Politics in Ocean Gover-
nance. The UN Fish Stocks Agreement and Regional Fisheries Management Regimes.
2006 ISBN 90-04-14968-6
51. Aldo Chircop and Olof Linden (eds.): Places of Refuge for Ships. Emerging Environ-
mental Concerns of a Maritime Custom. 2006 ISBN 90-04-14952-X
50. Guifang Xue: China and International Fisheries Law and Policy. 2005
ISBN 90-04-14814-0
49. Florian H.Th. Wegelein: Marine Scientific Research. The Operation and Status of
Research Vessels an Other Platforms in International Law. 2005
ISBN 90-04-14521-4
48. Zou Keyuan: Chinas Marine Legal System and the Law of the Sea. 2005
ISBN 90-04-14423-4
47. David. D. Caron and Harry N. Scheiber (eds.): Bringing New Law to Ocean Waters.
2004 ISBN 90-04-14088-3
46. Rosemary G. Rayfuse: Non-Flag State Enforcement in High Seas Fisheries. 2004
ISBN 90-04-13889-7
45. Budislav Vukas: The Law of the Sea. 2004 ISBN 90-04-13863-3
44. Alex G. Oude Elferink and Donald R. Rothwell (eds.): Oceans Management in the 21st
Century. 2004 ISBN 90-04-13852-8
43. Geir Hnneland: Russian Fisheries Management. The Precautionary Approach in The-
ory and Practice. 2004 ISBN 90-04-13618-5
42. Nuno Marques Antunes: Towards the Conceptualisation of Maritime Delimitation.
Legal and Technical Aspects of a Political Process. 2003 ISBN 90-04-13617-7
41. Roberta Garabello and Tullio Scovazzi (eds.): The Protection of the Underwater Cul-
tural Heritage. Before and After the 2001 UNESCO Convention. 2003
ISBN 90-411-2203-6
40. Sun Pyo Kim: Maritime Delimitation and Interim Arrangements in North East Asia.
2003 ISBN 90-04-13669-X
39. Simon Marr, The Precautionary Principle in the Law of the Sea: Modern Decision
Making in International Law. 2002 ISBN 90-411-2015-7
38. Robert Kolb, Case Law on Equitable Maritime Delimitation/Jurisprudence sur les
dlimitations maritimes selon lquit: Digest and Commentaries/Rpertoire et com-
mentaires. 2002 ISBN 90-411-1976-0
37. A.G. Oude Elferink and D.R. Rothwell (eds.): The Law of the Sea and Polar Maritime
Delimitation and Jurisdiction. 2001 ISBN 90-411-1648-6
36. M.J. Valencia (ed.): Maritime Regime Building. Lessons Learned and their Relevance
for Northeast Asia. 2001 ISBN 90-411-1580-3
35. D.R. Rothwell and S. Bateman (eds.): Navigational Rights and Freedoms and the New
Law of the Sea. 2000 ISBN 90-411-1499-8
34. H.N. Scheiber (ed.): Law of the Sea. The Common Heritage and Emerging Challenges.
2000 ISBN 90-411-1401-7
33. P.B. Payoyo: Cries of the Sea. World Inequality, Sustainable Development and the
Common Heritage of Humanity. 1997 ISBN 90-411-0504-2
32. E.C. Farrell: The Socialist Republic of Vietnam and the Law of the Sea. An Analysis of
Vietnamese Behavior within the Emerging International Oceans Regime. 1997
ISBN 90-411-0473-9
31. M.J. Valencia, J.M. Van Dyke and N.A. Ludwig: Sharing the Resources of the South
China Sea. 1997 ISBN 90-411-0411-9
30. J.A. de Yturriaga: The International Regime of Fisheries. From UNCLOS 1982 to the
Presential Sea. 1997 ISBN 90-411-0365-1
29. A. Razavi: Continental Shelf Delimitation and Related Maritime Issues in the Persian
Gulf. 1997 ISBN 90-411-0333-3
28. T. Treves (ed.): The Law of the Sea. The European Union and its Member States. 1997
ISBN 90-411-0326-0
27. J.A. Roach and R.W. Smith: United States Responses to Excessive Maritime Claims.
Second Edition. 1996 ISBN 90-411-0225-6
26. T.O. Akintoba: African States and Contemporary International Law. A Case Study of
the 1982 Law of the Sea Convention and the Exclusive Economic Zone. 1996.
ISBN 90-411-0144-6
25. Y. Li: Transfer of Technology for Deep Sea-Bed Mining. The 1982 Law of the Sea Con-
vention and Beyond. 1994 ISBN 0-7923-3212-1
24. A.G. Oude Elferink: The Law of Maritime Boundary Delimitation. A Case Study of the
Russian Federation. 1994 ISBN 0-7923-3082-X
23. A. Strati: The Protection of the Underwater Cultural Heritage: An Emerging Objec-
tive of the Contemporary Law of the Sea. 1995 ISBN 0-7923-3052-8
22. M. Munavvar: Ocean States. Archipelagic Regimes in the Law of the Sea. 1995
ISBN 0-7923-2882-5
21. J. Crawford and D.R. Rothwell (eds.): The Law of the Sea in the Asian Pacific Region.
1995 ISBN 0-7923-2742-X
20. F. Laursen: Small Powers at Sea. Scandinavia and the New International Marine Order.
1993 ISBN 0-7923-2341-6
19. D. Pharand and U. Leanza (eds.): The Continental Shelf and the Exclusive Economic
Zone: Delimitation and Legal Regime/Le Plateau continental et la Zone conomique
exclusive: Dlimitation et rgime juridique. 1993 ISBN 0-7923-2056-5
18. C.C. Joyner: Antarctica and the Law of the Sea. 1992 ISBN 0-7923-1823-4
17. J.A. de Yturriaga: Straits Used for International Navigation. A Spanish Perspective.
1991 ISBN 0-7923-1141-8
16. D.M. Johnston and M.J. Valencia: Pacific Ocean Boundary Problems. Status and Solu-
tions. 1990 ISBN 0-7923-0862-X
15. H.W. Jayewardene: The Regime of Islands in International Law. 1990
ISBN 0-7923-0130-7
14. B. Kwiatkowska: The 200 Mile Exclusive Economic Zone in the New Law of the Sea.
1989 ISBN 0-7923-0074-2
13. D.G. Dallmeyer and L. DeVorsey, Jr. (eds.): Rights to Oceanic Resources. Deciding
and Drawing Maritime Boundaries. 1989 ISBN 0-7923-0019-X
12. S. Oda: International Control of Sea Resources. Reprint with a New Introduction.
1989 ISBN 90-247-3800-8
11. M. Dahmani: The Fisheries Regime of the Exclusive Economic Zone. 1987
ISBN 90-247-3374-X
10. A.O. Adede: The System for Settlement of Disputes under the UN Convention on the
Law of the Sea. A Drafting History and a Commentary. 1987
ISBN 90-247-3324-3
9. S.P. Jagota: Maritime Boundary. 1985 ISBN 90-247-3133-X
8. A.M. Post: Deepsea Mining and the Law of the Sea. 1983
ISBN 90-247-3049-X
7. R.P. Anand: Origin and Development of the Law of the Sea. History of International
Law Revisited. 1983 ISBN 90-247-2617-4
6. N.S. Rembe: Africa and the International Law of the Sea. A Study of the Contribution
of the African States to the 3rd UN Conference on the Law of the Sea. 1980
ISBN 90-286-0639-4
5. C.O. Okidi: Regional Control of Ocean Pollution. Legal and Institutional Problems and
Prospects. 1978 ISBN 90-286-0367-0
4. S. Oda: The Law of the Sea in Our Time. Volume II: The UN Seabed Committee, 1968-
1973. 1977 ISBN 90-286-0287-9
3. S. Oda: The Law of the Sea in Our Time. Volume I: New Developments, 1966-1975.
1977 ISBN 90-286-0277-1
2. N. Papadakis: The International Legal Regime of Artificial Islands. 1977
ISBN 90-286-0127-9
1. R.P. Anand: Legal Regime of the Sea-Bed and the Developing Countries. 1976
ISBN 90-286-0616-5

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