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Lieutenant Commander Glenn Kerr RAN[1]
Prompted by the desire to settle, in a spirit of mutual understanding and cooperation, all issues relating to the law of the sea and aware of the historic significance of this Convention as an important contribution to the maintenance of peace, justice and progress for all peoples of the world...
Opening to the Preamble of the 1982 Law of the Sea Convention
The 1982 United Nations Convention on the Law of the Sea (LOSC) represented an ambitious attempt to create a comprehensive global oceans regulatory system and dispute resolution framework to prevent interstate conflict. At the heart of LOSC is an attempt to achieve an equitable balance between coastal State rights and foreign State freedoms within defined oceanic zones. The achievement of this ambition is debated in academic and legal circles, with the some commentators stating LOSC has led to increased interstate conflict, others that LOSC merely crystallised pre-existing disputes providing, with the new third party dispute resolution mechanisms, a useful tool for resolving interstate conflict. Thematically, maritime conflicts fall into five categories: maritime sovereignty, living resources, non-living resources, environmental, and foreign state rights. Notwithstanding the significant changes to the pre-existing law of the sea as a result of LOSC, the actual quantity of interstate conflict, armed or otherwise, does not appear to have increased markedly since 1982. What does appear to have changed is the expanded potential for conflict inherent in the new regime and also the increased complexity of pre-existing conflicts. As such, while LOSC has not been the source of more conflicts between States, it has the potential to precipitate more complex conflicts that will be far less amenable to simple resolution and could conceivably escalate from a mutually intolerant belief into actual armed conflict. The next iteration of LOSC will need to look at more robust dispute resolution mechanisms and close loopholes if the aim of achieving ‘peace, justice and progress for all peoples of the world’ is to be achieved.
Covering over two-thirds of the surface of the Earth, the oceans provide both an essential transport modality and a source of valued living and non-living resources. Historically the use of the sea has led to conflict over two opposing State philosophies, traditionally expressed in the legalistic concepts of mare liberum, the freedom of the seas from State sovereignty, and mare clausum, the dictum that States possess sovereignty over adjacent maritime areas.[2] Despite a seeming customary law[3] compromise, based on a sovereign territorial sea and unconstrained high seas,[4] continued interstate conflict has flowed from creeping jurisdictional claims to wider territorial seas and disagreements over the inherent rights of foreign states within these areas. Oxman (1996) notes that since the United Nations was founded armed conflict has erupted more than once over basic law of the sea issues such as passage rights, freedom of navigation and fishing.[5]
As cited above, the 1982 United Nations Convention on the Law of the Sea (LOSC) was introduced with the high ambition of regulating sea usage and thereby reducing interstate conflict. At the heart of LOSC are the concepts of zonation, the division of the oceans into discreet zones within which coastal and foreign states have legislated rights and duties, and balance between the dictates of mare liberum and mare clausum. LOSC represents an ambitious attempt to create a comprehensive global oceans regulatory system and dispute resolution framework. In essence, LOSC built on the 1958 conventions,[6] clarifying those areas insufficiently transparent or robust to prevent dispute in the existing oceanic zones of the territorial sea, contiguous zone and continental shelf. Additionally, to meet the perceived needs of developing countries for equitable resource access a new zone, the exclusive economic zone (EEZ),[7] was introduced.
The achievement of LOSC’s vaunting ambition is debated in academic and legal circles. By definition, conflict is either an encounter with arms or a discordant situation of mutually intolerant interests incapable of existing together,[8] arising when two or more persons or parties manifest the belief that they have incompatible objectives.[9] Despite the pacific intent of the framework, some commentators, such as Catley & Keliat (1997),[10] believe that LOSC has led to increased interstate conflict by enhancing state rights without providing appropriate counterbalancing interstate regulation. Other commentators, such as Moore (1998), consider that LOSC merely crystallised pre-existing disputes, providing, with the new third party dispute resolution mechanisms,[11] a useful tool for resolving interstate conflict.[12] Thematically, maritime conflicts fall into five categories: maritime sovereignty, living resources, non-living resources, environmental, and foreign state transit rights. By briefly examining these conflicts thematically in light of the relevant LOSC articles in conjunction with the new dispute resolution framework, the validity of the opposing views may be tested.
Territorial conflict, which arises as the result of attempts to seize or hold land areas through the use of military force, has been a primary historical cause of international conflict.[13] While this at first glance may appear irrelevant to the regulation of oceanic zones, as noted in the 1951 Anglo-Norwegian Fisheries Case, ‘the land confers upon a coastal State a right to waters off its coast.’[14] The control of maritime areas can have political and military implications such as control over sea lines of communication (SLOC) and resource access. LOSC Article 2 provides for sovereignty of the coastal state over adjacent waters and airspace for 12nm, predicated on baselines drawn from State-held islands, rocks and other coastal areas.[15] LOSC does not itself regulate maritime sovereignty disputes, assuming coastal State sovereignty ab initio over the baseline areas used to determine usage zones. Smith & Thomas (1998) state that LOSC is not to blame for island disputes, because almost all predate LOSC.[16] Annex A lists the maritime territorial disputes pre-dating LOSC which, almost without exception, are still extant.[17]
A major area of international concern is sovereignty disputation in the South China Sea, one of the most strategic waterways in the world, due to major international navigation routes in the area. Japan, South Korea, China[18] and the United States have strong interests in the area because it is the shortest route from the Pacific to the Indian Ocean and the Arabian Gulf. In order to sustain its high economic growth rate and meet its spiralling energy consumption China requires new sources of oil and gas, reserves of which are anticipated in the Spratlys. Moreover, China is keen to exploit the living resources of the area to further its economic growth. In these cases China seeks to utilise the LOSC EEZ and Continental Shelf regimes, but to do so must gain sovereignty over the island groups to accede to the adjacent maritime zones.
China denies the claims of other nations to the various disputed islands,[19] invoking the principles of occupatio terra nullius[20] and postliminium.[21] LOSC Article 301 requires States to refrain from ‘any threat or use of force against the territorial integrity or political independence of any State’ in exercising rights and duties of the Convention. Since 1988 several armed incidents have occurred in the Spratlys.[22] Having completed the forceful occupation of the Paracels in 1971 ultra vires[23] in defiance of the United Nations Charter, China now operates in the Spratlys and Paracel disputes in terrorem uis major,[24] a principle it may extend to the East China Sea dispute with Japan, potentially resulting in armed conflict.[25]
In short, while LOSC makes no provision to resolve sovereignty disputes, the outcome of such disputes is critical to determining maritime zones of control, an aspect of LOSC intended to reduce conflict. LOSC has not prevented China from seizing islands in the South China Sea by force. At the same time, LOSC has not contributed to any significant growth in territorial conflict, as the current maritime conflicts almost without exception pre-dated the Convention. The expanded zonal regimes of LOSC may, however, have contributed to a hardening of State positions on such conflicts, or the accession of additional territorial claimants to complicate matters.
There is a growing global imperative, through recognition that the environment is a single biosphere whose degradation by one State impacts on others, for coastal States to ensure stewardship of their territories for future generations. An implied element of this imperative, under the legal principle of sic utere tuo ut alienum non laedas,[26] is to ensure that the activities of other States do not prejudice a coastal State’s efforts to realise this aim. Supranational or regional environmental impacts may create local or wider conflict when affected States take unilateral action to control offenders. LOSC invokes many environmental imperatives for coastal and foreign States, being described in 1994 by the US Secretary of State as ‘the strongest comprehensive environmental treaty now in existence or likely to emerge for some time.’[27]
Article 61 requires states to conserve the living resources of the EEZ while Part VII (Articles 116-120) requires states to conserve and manage the living resources of the High Seas. Part XII (Articles 192-237) details the general obligation of states to protect and preserve the marine environment and to ‘prevent, reduce and control pollution of the marine environment from any source’[28] in cooperation with ‘competent international organizations.’[29] Conflict may arise from coastal State disputes over land- or sea-based maritime pollution or, as Valencia (1990) notes, environmental protection used as a rationale for siting or resiting sea lanes.[30] Such conflict is likely to arise in terms of coastal State enforcement of LOSC obligations via domestic legislation under Articles 213-221. Article 221 provides for States to take and enforce measures beyond the territorial sea ‘proportionate to the actual or threatened damage to protect their coastline or related interest, including fishing, from pollution or threat of pollution’ from a maritime casualty. Environmental conflict may easily arise as a result of coastal State interpretations of the degree of jurisdiction they may claim within and beyond their EEZ and foreign State counterclaims related to the competence of the coastal State or associated international organisations.
Article 2 of the 1958 High Seas Convention confirmed in conventional international law the traditional high seas freedoms of navigation, fishing, overflight, and laying of cables and pipelines. These freedoms carried across into LOSC, albeit greatly reduced in terms of area coverage due to the reduction of the high seas. Notwithstanding this, Ulfstein (1988) notes that the importance of navigation has not been reduced in the area now covered by the new EEZ regime.[31] After centuries of dispute, LOSC provided a standardised territorial sea of 12nm for all coastal States, within which the state exercises full sovereignty.[32] In balancing coastal and foreign State rights, Article 17 provided ships of all states with the right of innocent passage through the territorial sea. LOSC also introduced a new archipelagic regime under Articles 46-54 allowing archipelagic states to draw baselines around islands that, ordinarily under international law, would create internal waters accruing full sovereignty within the baselines. However, since this would bound large tracts of former high seas and place unacceptable constraints on many international shipping straits, ships of other states were provided an inherent right of passage under Articles 46-54. Likewise, straits in internal waters used for international navigation have non-suspendable rights of transit passage vide Articles 34-45.
LOSC resolved a long-standing point of disputation not satisfied by the 1946 Corfu Channel Case (Merits) case[33] or the 1958 Territorial Sea and Contiguous Zone Convention.[34] Because warships were not constrained by special provision, conventional international law prevents coastal states from placing caveats on innocent passage, such as the requirement for prior notification. However, to ensure coastal State security is preserved, Article 19 clearly delineates the meaning of innocent passage and prohibited activities during passage and Article 25 provides for action to prevent non-innocent passage. The right of innocent passage for all vessels, including warships, without prior authorisation or notification, was recently reconfirmed in the 2001 Quatar v Bahrain (Merits) Judgement.[35] Disregarding LOSC, some states, such as Iran under its 1993 Marine Areas Act, or the Philippines under its 1987 constitution,[36] have incorporated domestic law caveats to restrict or suspend the right of innocent or archipelagic passage.[37] Such caveats are disputed by a number of countries, most vehemently by the USA. Unfortunately, the USA has neither signed nor ratified LOSC which, under the 1969 Vienna Convention on the Law of Treaties, means it cannot be bound by LOSC or expect to bind others, the concept of pacta sunt servanda[38] only applying to parties to a treaty.[39]
Kawamura (1999) suggests that unilateral restrictions on waterways and intentional obstruction of sea-lanes, based on anomalous interpretations at odds with other States wishing to exercise their rights, remain impossible to resolve without a military response.[40] Valencia (1997) suggests that increased frequency of violence in the Spratlys could endanger the freedom of navigation along strategic sea routes in the South China Sea.[41] Japan relies almost entirely on imports for the majority of its energy needs and manufacturing raw materials, and hence free passage of shipping through the South China Sea is critical to that country.[42] Chinese interdiction or interference with the shipping routes as a result of territorial issues in the Spratlys could provoke a military or economic response from Japan potentially leading to armed conflict.[43] The USA might also take military action to protect this vital SLOC between its bases in the North Pacific and the Indian Ocean thereby escalating a conflict.
Bethlehem (2001) notes that economic interest is an important factor in applying or revoking maritime freedom regimes.[44] For some commentators the EEZ regime, introduced to provide a more equitable access of developing nations to maritime living resources, is the most fundamental and contentious aspect of LOSC. A coastal State may, under Article 57, claim an EEZ of up to 200nm within which the State has sovereign rights over all natural resources, together with obligations for the management of stocks and pollution. While the new EEZ regime did indeed provide developing states with control over living resources, one collateral effect was to significantly reduce the high seas, bringing some 80 per cent of this zone and 95 per cent of world fisheries catch[45] under coastal State control and regulation. Homer-Dixon (1999) suggests that scarcity of fish resources could increase the likelihood of many kinds of national and international conflict, including violent conflict.[46] Conflict arises when coastal State rights clash with previous freedoms enjoyed and with interpretation of residual rights accruing to foreign states. While there is no doubt that the EEZ impacted significantly on the extent of the high seas, many current and past fisheries disputes predate LOSC. The ‘Cod Wars’ between Britain and Iceland which occurred sporadically from 1958 to 1976, bringing the two nations to the brink of war,[47] all predated LOSC, although the third war flowed from Iceland’s unilateral pre-emptive enforcement of a 200nm EEZ that would become international law.
In the latter half of the 20th century a rapidly expanding world population brought a concomitant demand for oceanic protein, resulting in a fishing fleet too large for ecologically sustainable development.[48] The introduction of the EEZ cut many developed nations off from traditional reliable supplies of cheap raw materials.[49] These restrictions, and subsequent impacts on fish stocks, caused flow-on consequences for economic staples such as cod and herring in Europe, tuna for Japan and Antarctic species for Russia. Article 116 provides all States with the right to fish on the high seas, subject to the remaining provisions of Section 2 of Part VII (Articles 117-120). These provisions require all States to take measures to conserve the living resources of the high seas, based on ‘best scientific evidence available to the State concerned’. At the same time, Article 62 requires coastal States to promote ‘optimum utilisation of living resources’ based on its own determination of capacity for harvest. This dichotomy sets the scene for interstate resource disputes.
More conflict is arising in the complex area associated with migratory and straddling stocks that are not isolated to a single national EEZ. Coastal States managing breeding stocks within their EEZ naturally object to foreign states overfishing these stocks once they move into another EEZ or the high seas. The recent Spanish-Canadian fisheries dispute was based on Canada extending its jurisdiction outside its EEZ.[50] Likewise, Argentina introduced Law 23.968 in 1991, extending jurisdiction over fish stocks outside the EEZ forming part of the food chain on the Patagonian shelf.[51] There is some basis for these actions, under LOSC Articles 117-120, to conserve and manage living resources of the high seas. Moreover, there is growing recognition that the overly simplistic single species zonal regime of the EEZ does not adequately reflect the macro level approaches being considered by commentators such as Juda (1999) in terms of fisheries management of utilising Large Marine Ecosystems (LMEs).[52] If fisheries resources are to be managed on an ecosystem basis, the current LOSC framework will need to evolve to prevent conflict.
The 1945 Truman Declaration established jurisdiction of the USA over natural resources in the deep sea-bed and continental shelf sub-soil. This unilateral proclamation, which cited ‘conservation and prudent utilization’ as goals, flowed from technological improvements that made sea-bed oil drilling feasible. Following a flow-on series of State proclamations, the 1958 Continental Shelf Convention legalised the jurisdiction of coastal states over seabed resources. Although substantially replicating the 1958 Convention, LOSC went further to increase the potential continental shelf claims of coastal states based on extension of the shelf beyond the 200nm limit under Article 76. This has led in some cases to conflict over sovereignty, such as in the Spratlys where Brunei claims sovereignty over a portion of the disputed archipelago through extension of the continental shelf. This has added to the confusion of that vexed dispute by adding another player, thereby potentially complicating the process of negotiation and consensus, should China choose to comply with international law on resolution of the matter. A similar issue arises in the East China Sea where China disputes the Senkaku Islands with Japan based on shelf extension.
Piotrowicz (2000) states the International Law of the Sea Tribunal found that LOSC ‘falls significantly short of establishing a truly comprehensive regime of compulsory jurisdiction entailing binding decisions.’[53] Law is a principle governing action or procedure that implies the existence of a sovereign authority and the obligation of obedience of all subject to that authority. Most international law, such as LOSC, is created by and for states.[54] The Treaty of Westphalia (1648) marked the formal inception of the modern state based on a framework of independent, sovereign territorial states, answering to no higher authority, and possessed of sovereign equality.[55] Therefore, disputes between sovereign states are not amenable to authoritative and compulsory resolution through law, but rather through negotiation, consensus and compromise. International law results from the collective will of states and any binding nature is attribution by those states of binding obligation[56] under the principle of pacta sunt servanda. Oxman (1996) notes that rule of law does not eliminate conflicting interests and disputes, but narrows their range, transforms their character, reduces escalation and facilitates negotiation.[57] Luard (1970) notes that where important economic resources are concerned, there is little readiness for pacific resolution of sovereignty issues.[58]
Schiffman (1998) notes that one innovation of LOSC is the provision for binding dispute settlement for the peaceful resolution of maritime disputes, under Section 2 of Part XV.[59] Article 286 provides that where a dispute cannot be settled through means of their own choice, any party may submit to a specified court or tribunal a request for compulsory procedure entailing binding decisions.[60] Article 296 makes any decision binding between parties in that dispute. Yet not all disputes were considered appropriate for binding settlement. Section 3 of Part XV defines limits and exceptions to Section 2, including Article 297(3)(a) that exempts fisheries disputes in the EEZ, preventing a coastal State from being required to either meet its obligations for proper conservation and prevention of over-exploitation or for optimum utilisation of EEZ resources. Likewise, Article 298 provides for a State at any time to exempt itself from LOSC procedures related to disputes on sea boundary delimitation, military activities, and where the Security Council exercises functions under the UN Charter.
Although Article 279 requires States to settle disputes related to the Convention by peaceful means, in accordance with Article 2(3) of the UN Charter, McDermott (2001) notes that State sovereignty in international disputes related to LOSC can be set aside,[61] potentially leading States to resort to conflict for resolution. Even were this not so, Luard (1970) notes that international law merely provides a framework to assist in resolving disputes, without preventing or determining settlement, due to legal ambiguity and State disobedience.[62]
LOSC represents an ambitious attempt to regulate usage of the sea and thereby reduce interstate conflict, by balancing coastal State control with foreign State freedoms. LOSC conflicts did not appear in vacuo, nor was international maritime law a tabula rasa. Far more exhaustive than the 1958 Geneva Conventions, and more widely ratified, LOSC is part of an iterative process of evolving international maritime law which still has room for improvement. Although LOSC confirmed a range of traditional freedoms and rights it also introduced new regimes or significantly altered existing ones that created an enhanced potential for conflict, even though it may not have led to significant increases in actual conflict.
Territorial disputes, despite being outside the scope of the Convention, have an important bearing on adjacent maritime zones, and as such may have a significant impact on oceans usage conflicts. More central to LOSC are disputes over living and non-living resources, precipitated by introduction of the EEZ concept and the extension of the continental shelf regime. Of particular concern is the potential for increasing conflict flowing from creeping jurisdiction of coastal states over high seas areas in order to control overfishing of straddling and highly migratory stocks. The Canadian example may impact on interstate relations and potentially lead to a new round of ‘Cod Wars’. A tendency for some coastal States, such as Iran and the Philippines, to apply caveats to innocent, international strait and archipelagic transit rights, in defiance of LOSC, may also lead to conflict with SLOC dependent states such as Japan and the USA.
Notwithstanding the significant changes to the pre-existing law of the sea as a result of LOSC, the actual quantity of interstate conflict, armed or otherwise, does not appear to have increased markedly. This may be attributable to the extensive range of conflicts already in progress that were simply modified to accord with the new provisions. While LOSC may not have significantly increased the number of interstate maritime territorial conflicts, neither has it been particularly instrumental in effecting resolution. Indeed, the expanded territorial sea, EEZ and continental shelf provisions have added inducement for the hardening of resolve of conflicting parties. What does appear to have changed since 1982 is the expanded potential for conflict inherent in the new regime and also the increased complexity of pre-existing conflicts due to the addition of new players or legal substantiation for previously unacceptable claims. As such, while LOSC has not been the source of more conflicts between States, it has the potential to precipitate more complex conflicts that will be far less amenable to simple resolution and could conceivably escalate from a mutually intolerant belief into actual armed conflict. This is particularly so where powerful States such as China may invoke the ability to exempt themselves from particular LOSC articles, a position then disputed by other powerful States such as the USA. The next iteration of LOSC will need to look at more robust dispute resolution mechanisms and close current loopholes if the United Nations’ high aim of achieving ‘peace, justice and progress for all peoples of the world’ is to be achieved.
Greece-Turkey. Dispute over Aegean Sea territorial sea and continental shelf flowing from the 1958 LOS Conventions.
Comoros-France. Dispute over sovereignty of Mayotte Island since 1975.
France-Madagascar. Dispute over sovereignty of Glorioso Islands, Juan de Nova, Bassas da India and Europa since 1973.
France – Mauritius. Dispute over sovereignty of Tromelin Island since 1976.
Mauritius-UK. Dispute over sovereignty of Diego Garcia since 1980.
Namibia-Sth Africa. Dispute over sovereignty of Penguin Islands.
Bahrain-Quatar. Dispute over sovereignty of Hawar Islands since 1967.
Iran-UAE. Dispute over sovereignty of Abu Musa, Greater Tunb and Lesser Tunb islands since early 1970s.
Iraq-Kuwait. Dispute over sovereignty of Warba and Bubiyan Islands since 1973.
Kuwait-Saudi Arabia. Dispute over sovereignty of Quaru & Umm el-Maradin islands since 1960s.
China-Japan-Taiwan. Dispute over sovereignty of the Senkaku (Diaoyu) Islands since the 1951 San Francisco Peace Treaty.
China-Vietnam. Gulf of Tonkin boundary delimitation issues since 1973, sovereignty over Paracel Islands (also Xisha or Hoang Sa) since 1951.
France-Vanuatu. Dispute over sovereignty of Matthew and Hunter Islands since 1982 because of impending LOS and 200nm EEZ issue.
Japan-South Korea. Dispute over the Tokdo/Takeshima Island since the 1951 San Francisco Peace Treaty.
Japan-Russian Federation. Dispute over the Southern Kuriles since 1945 – Habomai group (Suisho, Shibotsu, Yuri Akiyiri, Taraku), Shikotan, Kunashiri and Etorofu.
China-Vietnam-Philippines-Malaysia. Dispute over sovereignty of the Spratly Islands (also Nansha, Truong Sa or Kalayaan) since 1946 between China and Vietnam, Philippines entered in 1956, Malaysia entered in 1979, Brunei entered in 1984 (based on earlier British claim).
Argentina-Chile. Dispute over sovereignty of Picton, Lennox and Nueva Islands since 1870s.
Argentina-UK. Dispute over sovereignty of Falklands, South Georgia and South Sandwich Islands since 1833.
Columbia-Nicaragua. Dispute over sovereignty of San Andrés and Providencia archipelagos, Ronçador, Quitasueno and Serrana cays since 1980.
Haiti-USA. Dispute over Navassa Island since 1981.
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Convention on the conservation and management of highly migratory fish stocks in the Western and Central Pacific Oceans.
Valencia, M.J. (1990), ‘International conflict over marine resources in South-East Asia: Trends in politicization and militarization’, in L.T. Ghee & M.J. Valencia (eds), Conflict over natural resources in South-East Asia and the Pacific, Oxford University Press, New York.
Valencia, M.J. (1997), ‘Troubled Waters’, Bulletin of the Atomic Scientists, vol. 53, no. 1, Jan/Feb 1997.
Walzer, M. (1977), Just and unjust wars: A moral argument with historical illustrations, third edition, Basic Books, New York, 2000.
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Wells, S. & Shepherd, G. (1998), Threats and conflicts, on-line http://www.unesco.org/courier/1998_08/uk/ dossier/txt21.htm
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Zackrison, J.L. & Meason, J.E. (1997), ‘Chile, Mar Presencial, and the Law of the Sea’, Naval War College Review, Summer 1997, on-line, http://www.nwc.navy.mil/press/Review/1997/summer/art4su97.htm 5/09/01.
[1] Lieutenant Commander Glenn Kerr is currently serving as Staff Officer to the Vice Chief of the Defence Force at Defence Headquarters in Canberra. This paper was written during a staff course at the Australian Command and Staff College in 2001.
[2] Mare liberum arose from a thesis published by Hugo Grotius in 1610 which argued that fish were so abundant that they could not be overexploited and therefore there was no benefit in the oceans being owned by any State. Mare clausum arose from a counter thesis by John Selden published in 1631 which claimed that the fisheries resources of a coastal state could be overexploited by foreign state fishing, and therefore regulation was required based on coastal state sovereignty over a contiguous area of the sea.
[3] Customary law refers to practices that have been widely accepted as binding by states over time. The jurist and legal scholar Hugo Grotius (1583-1645) is attributed with the first articulation of the principles of customary law in his treatise On the Law of War and Peace.
[4] Bynkershoek elaborated on Grotius providing that a small part of the sea could be appropriated. Based on the ‘cannon shot’ rule the territorial sea was generally of three nautical miles in which the coastal State exercised full sovereignty and could constrain foreign state actions, and outside of which on the high seas states were free to exploit the bounty of the oceans.
[5] B.H. Oxman, ‘The rule of law and the United Nations Convention on the Law of the Sea’, European Journal of International Law, vol 7, no. 3, 1996, p. 353.
[6] High Seas Convention; Territorial Sea and Contiguous Zone Convention; Continental Shelf Convention; Fishing and Conservation of the Living Resources of the High Seas Convention.
[7] LOSC Part V, Articles 55-75.
[8] Shorter Oxford English Dictionary, Oxford University Press, Oxford, 1982, pp. 396-97
[9] L. Kriesberg, Constructive conflicts: From escalation to resolution, Rowman & Littlefield Publishers Inc., Maryland, 1998, p. 2.
[10] B. Catley, & M. Keliat, Spratlys: The dispute in the South China Sea, Ashgate Publishing Limited, Aldershot, England, 1997, p. 9. Catley & Keliat consider that LOS intensified competition for the Spratlys by failing to provide clear dispute resolution procedures over EEZ rights.
[11] LOSC Part XV, Section 2.
[12] J.N. Moore, Defusing security flashpoints, in Security flashpoints: Oil, islands, sea access and military confrontation, M.H. Nordquist & J.N. Moore, eds, Kluwer Law International, The Hague, The Netherlands, 1998, pp. 470-71.
[13] K.J. Holsti, International politics: A framework for analysis. Prentice Hall, New Jersey, 1972, pp. 462-65. Cited in Catley, Keliat, op. cit., p. 1.
[14] 1951 Anglo-Norwegian Fisheries Case, UK v Norway, ICJ Reports 1951, p. 116. Cited in D.J. Harris, Cases and materials on international law, third edition. Sweet & Maxwell, London, 1983, p. 292.
[15] Vide LOSC Article 5. A normal baseline is the low-water line on the coast marked on official state charts.
[16] R.W. Smith, & B. Thomas, ‘Island disputes and the law of the sea: An examination of sovereignty and delimitation dispute, in Nordquist & Moore (eds), op. cit., 1998, p. 66.
[17] The Bahrain-Quatar dispute over sovereignty of the Hawar Islands and the Argentina-Chile dispute over sovereignty of the Picton, Lennox and Nueva Islands have since been settled by submission to an appropriate binding tribunal decision.
[18] Including Taiwan.
[19] Communist China laid claim to the Spratlys in 1947. The Nationalist government opposed the declaration and claim to the Spratlys was continued by Taiwan. Vietnam also laid claim to the Spratlys in 1951. The Philippines laid claim to a portion of the Spratlys in 1971. Malaysia laid claim to a portion in 1978. Since 1984, extending a 1954 claim by Britain, Brunei has laid claim to a portion of sea as EEZ and Continental Shelf, but no islands.
[20] Taking possessing of a land belonging to no one but capable of being owned.
[21] Principle that persons, property or territory revert to the former condition on withdrawal of an occupying power. France, which had taken the Spratlys from Annam (now Vietnam) did not relinquish the intention to exercise authority over the archipelago, despite Japanese occupation from 1939.
[22] China vs Vietnam naval battle in 1988; Malaysian arrest of Filipino fishermen in 1988, 1992 and 1994; Philippine arrest of Chinese fishermen; 1996 Chinese detention of Filipino fishermen.
[23] Acting beyond the authority confirmed by law – thus invalid.
[24] Force of arms intended to frighten or intimidate.
[25] Catley & Keliat, op. cit., pp. 48-53.
[26] Use your property so as not to injure your neighbour’s.
[27] US Senate Treaty Document 103-39 (1994), cited in Oxman, B.H. op. cit., p. 367.
[28] LOSC Article 194.
[29] LOSC Article 197.
[30] M.J. Valencia, ‘International conflict over marine resources in South-East Asia: Trends in politicization and militarization’, L.T. Ghee & M.J. Valencia, (eds), Conflict over natural resources in South-East Asia and the Pacific, Oxford University Press, New York, 1990, p. 198.
[31] G. Ulfstein, ‘The conflict between petroleum production, navigation and fisheries in international law’. Ocean Development and International Law, vol. 19, 1988, p. 229.
[32] LOSC Article 3. Every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.
[33] Albania claimed that the UK had violated its sovereignty when the Royal Navy cruisers Orion and Superb transited the North Corfu Channel on 15 May 1946, without prior notification to and permission of Albania. The UK claimed that the ships, which were fired upon by an Albanian shore battery, were exercising the right of innocent passage recognised by international law, and that Albania had no legal right to place caveats on that passage, or to fire upon the vessels. The International Court of Justice ruled that the UK had not violated Albanian sovereignty and that Albania had illegally denied the UK from exercising its right of innocent passage. This case provided a legal precedent confirming the right of warships to exercise innocent passage in the territorial seas of another state during time of peace and denying coastal states the right to place caveats on such passage.
[34] Geneva Convention on the Territorial Sea and the Contiguous Zone 1958, Article 14(1) – subject to the provisions of these articles, ships of all states, whether coastal or not, shall enjoy the right of innocent passage through the territorial sea.
[35] B. Kwiatkowsa, The law-of-the-sea related cases in the International Court of Justice during the presidency of Judge Stephen M. Schwebel (1997-2000), on-line http://www.law.uu.nl/english/isep/paper.asp, 08/09/01, p. 27.
[36] The 1987 Philippines constitution, pursuant to interpretation conforming to LOSC Article 310, created internal waters of those that would be classed as archipelagic waters. A number of states, including Australia, protested this action which would have impacted on archipelagic sea lanes passage.
[37] H.F. Lynch, ‘Freedom of navigation in the Persian Gulf and the Strait of Hormuz’, in Nordquist & Moore, op. cit., pp. 322-324.
[38] Treaties are to be observed – a premise of customary international law.
[39] Only where elements of LOSC are accepted as customary international law do non-parties such as the USA have any legal claim.
[40] S. Kawamura, Remarks for the international conference on system compliance: Maritime transit issues revisited, November 17-18, 1999, Manila, on-line http://www.glocomnet.or/jp/okazaki-inst/kawamura-inst/transit1199.html 12/08/01, p. 2.
[41] M.J. Valencia, ‘Troubled waters’, Bulletin of Atomic Scientists, vol. 53, no. 1, Jan/Feb 1997, p. 8.
[42] Catley& Keliat, op. cit., pp. 129-30.
[43] Article 9 of the Japanese constitution forbids war and war-making potential but appears likely to be revised as a result of changing Japanese opinion and pressure from the United States for Japan to take a more self reliant defence stance.
[44] H. Bethlehem, Fishery conflicts around the Falkland Islands, 2001, p. 9.
[45] Agenda 21, Chapter 17, article 17.70.
[46] T.F. Homer-Dixon, Environment, scarcity and violence. Princeton University Press, Princeton, New Jersey, 1999, p. 4.
[47] The first Cod War occurred in 1958 when Iceland extended its territorial sea from 4nm to 12nm. The second Cod War occurred in 1972-73 when the zone was extended to 50nm. The third Cod War, which occurred in 1975-76 when Iceland further extended the zone to 200nm, threatened the NATO ability to defend the Atlantic from Soviet hegemony. Iceland threatened to close the NATO base at Keflavik, a vital element in the SOSUS line and for the provision of maritime air coverage of the Atlantic theatre. In addition to apprehensions there were violent incidents when British fishing vessels rammed Icelandic patrol vessels and vice versa.
[48] Between 1955 and 1970 the total world catch increased from 30 to 70 million tons.
[49] T.J. Pitcher & P.J.B Hart, Fisheries ecology, Croom Helm Ltd, Beckenham, Kent, 1985, pp. 51-52.
[50] In 1995 Canada arrested the Spanish fishing vessel Estai on the High Seas outside the Canadian EEZ for ‘plundering’ turbot, a straddling stock subject to strict conservation within the Canadian EEZ.
[51] Argentina claimed a 200nm territorial sea prior to LOSC, predicated primarily on fisheries management concerns. This claim was converted to an EEZ after introduction of LOSC in 1994, thereby resolving the excessive territorial sea claim problem.
[52] This concept is based on regions in the order of hundreds of thousand square kilometres incorporating interdependent habitats and species.
[53] R. Piotrowicz, ‘The Australia/New Zealand-Japan fisheries dispute: Tuna back on the Menu’, The Australian Law Journal, vol. 74, 2000, p. 652.
[54] The United Nations Charter has attached to it the Statute of the International Court of Justice, Article 38 of which defines the sources of international law as: international conventions (treaties), whether general or particular, establishing rules expressly recognised by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognised by civilised nations; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rules of law.
[55] The basic principles of international relations in the Westphalian system, following Grotius, are generally regarded to be: sovereignty of the state; sovereign equality of states; the right of non-interference in domestic affairs of the sovereign state; territorial integrity of the state; the obligation to abide by international agreements; the principle of the peaceful settlement of disputes; and the obligation to engage in international cooperation consistent with national interests.
[56] A. Cassese, ‘Realism v. artificial theoretical constructs: Remarks on Anzilotti’s theory of war’, European Journal of International Law, vol. 3, no. 1, 1992, p. 152.
[57] B.H. Oxman, op. cit., p. 362.
[58] Luard, E. ‘Frontier disputes in modern international relations’, in E. Luard (ed.), The international regulation of frontier disputes, Thames and Hudson, London, 1970, p. 231.
[59] H. Schiffman, ‘The dispute settlement mechanism of UNCLOS: A potentially important apparatus for marine wildlife management’, Journal of International Wildlife Law & Policy, vol. 1, no. 2, 1998, p. 297.
[60] Vide Article 287, this may be the International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal or a special arbitral tribunal.
[61] S. McDermott, Fish depletion and trade, TED Analysis Cases: Fish Case study analysis research paper X1, 2001, p. 6.
[62] Luard, E., op. cit., p. 22.
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