BP-322E
THE LAW OF THE SEA
CONVENTION
Prepared by:
Eric LeGresley
Law and Government Division
February 1993
TABLE
OF CONTENTS
INTRODUCTION
A.
Importance
B.
History of the LOSC
C.
Relationship to Other International Law
D.
Fundamental Principles of the LOSC
E.
Structure of the Agreement
F.
Present Status of the Agreement
STATE
SOVEREIGNTY ON THE SEAS
A.
Territorial Division of the Sea, Sea-Bed and Subsea
1.
Internal Waters
2.
Territorial Sea
3.
Contiguous Zone
4.
Continental Shelf
5.
Exclusive Economic Zone
6. High Seas
7.
Special Cases of Interest to Canada
a.
Ice-Covered Areas
b.
International Straits
c. Archipelagos
d.
Land-Locked States
B.
Boundary Delimitation between Adjacent States
1.
Principles Involved
2.
Canadian Examples
a.
The Gulf of Maine Dispute
b.
The St. Pierre and Miquelon Dispute
c.
The Beaufort Sea Dispute
C.
State Jurisdiction aboard Ships at Sea
1.
Flag State Jurisdiction
2.
Coastal State Jurisdiction
EXPLOITATION
OF MARINE RESOURCES
A.
Fishing Rights and Obligations
1.
General Conservation and Sharing Obligations
a. Conservation
b. Sharing
2.
Rights within the TS and EEZ
B.
Non-Living Sea-Bed Resources
1.
Continental Shelf
a.
Petroleum Rights
b.
Mineral Rights
2.
Deep Sea-Bed Minerals
CONSERVATION
OF THE MARINE ENVIRONMENT
A.
General Obligation
B.
Maritime Pollution
1.
Setting Standards
2.
Monitoring Pollution and Risks
3.
Legislative Authority
4. Enforcement
5. Liability
NAVIGATION
A.
Nationality of Ships
B.
Transit and Navigation Routes
C.
Piracy
MILITARY
USE OF THE SEAS
A.
Warships
B.
Military Activities
DISPUTE
RESOLUTION
A.
Obligations regarding Resolution
B.
Conciliation and Binding Arbitration
1.
International Tribunal for the LOS
2.
Sea-Bed Disputes Chamber
THE LAW OF THE
SEA CONVENTION
The 1982 Law of the Sea
Convention (LOSC) is an enormously complex international treaty which
deals with many of the major issues of our time - State sovereignty, resource
development, international commerce, environmental protection and military
activities. This treaty, which is likely to come into force soon, will
be the principal governing body of law over an area three times as large
as all the continents put together.
Canada is an important maritime
nation. It has the world's longest coastline, one of the largest claims
to territorial jurisdiction on the seas, and several regional economies
intimately tied to the ocean. Thus, the LOSC is vitally important for
the economic, political and environmental well-being of this country.
This paper provides a general
overview of the LOSC, particularly in the Canadian context. A single paper
cannot hope to discuss all the areas touched upon in the Agreement, so
the emphasis has been on those areas of particular importance to Canada:
Canadian territorial and shipping jurisdiction on the seas, past and future
Canadian maritime territorial disputes, fishing rights and petroleum exploitation,
and State responsibility for environmental protection.
INTRODUCTION
A.
Importance
Three-quarters of the earth's
surface is ocean. These vast waters have been a means of international
travel and a major communal source of food for millennia. As a consequence,
societies developed norms for international behaviour on the ocean long
before norms for international behaviour on land.(1)
Recent technological changes and growing populations have created new
uses and exerted new pressures on the world's ocean resources. The law
of the sea, therefore, is an old body of law in a period of rapid evolution.
The United Nations Convention
on the Law of the Sea (LOSC or the "Agreement")(2)
bridges the gap between centuries-old rights and obligations and the new
awareness that the seas are not an inexhaustible resource for those whose
geography or economic development facilitates maritime exploitation. The
LOSC represents an exceptionally important contribution to international
relations, especially for Canada, which has the world's longest coastline
and borders on three of the world's oceans. This paper reviews many important
aspects of the LOSC, including those elements that also belong to the
more general law of the sea.
B.
History of the LOSC
United Nations conferences
were held in 1958 (UNCLOS I) and 1960 (UNCLOS II) in order to codify various
aspects of the law of the sea. The 1958 Geneva conference led to separate
international treaties pertaining to the Territorial Sea, the Contiguous
Zone, the High Seas, the Continental Shelf and the conservation of living
resources in the sea.(3) As
the titles indicate, the primary concern at that time was the territorial
division of the seas in response to some very broad and disparate claims
to sovereignty by many countries in the post-World War II years. UNCLOS
II failed to resolve any outstanding concerns.
During the late 1960s through
the early 1980s, there were negotiations toward further development of
the law of the sea. At first, discussions were limited to the deep sea-bed,
but eventually the newly-emergent States reached agreement on a wide array
of substantive issues raised by historical and modern use of the sea.
In December 1982, a third U.N. conference (UNCLOS III) was convened and
the LOSC was signed by 119 States, although many European nations abstained.
This wide acceptance signifies the importance of the subject matter and
the success of the negotiations in finding the common ground. Although
the LOSC contains an almost verbatim restatement of many of the 1958 Geneva
Conventions, it is much more wide-ranging, and includes provisions covering
developments not yet technologically feasible, but anticipated within
the next few decades. The wide support for the LOSC was achieved without
having to water the Agreement down so that it said nothing of substance.
The LOSC, simply put, is
the most comprehensive international treaty ever signed. It ranks along
with the Charter of the United Nations (the Charter) and
the Universal Declaration of Human Rights (the Universal Declaration)
as one of this century's great accomplishments in international cooperation.
It is, perhaps, even more remarkable than those basic U.N. documents.
The Charter and the Universal Declaration were initially
agreed to by just a few dozen western, developed nations who shared common
values and concerns; they were agreed to by the newly emerging countries
only following decolonization. The LOSC, however, was an agreement of
great import and complexity negotiated by an enormous number of States
of greatly varying economic status, political outlook and interests.
C.
Relationship to Other International Law
Although the LOSC is a very
comprehensive treaty, and one which codifies much of the accepted international
law on the subject as it existed in 1982, it is not the only source of
the international law of the sea. Customary international law,(4)
developed by State practice rather than treaties, remains an important
source. Consistently applied customs may be important in local areas where
practices have historically deviated from international norms as defined
by treaties. As well, a significant body of customary and treaty law outside
the LOSC pertains to the law of warfare, pollution control, and general
security matters and may become applicable in a marine setting. With respect
to boundary delimitation, there is substantial caselaw, which, although
not binding on any later tribunal, is persuasive; some basic elements
of this must be considered customary law. Finally, the law pertaining
to the resource-rich waters below 60 degrees South surrounding Antarctica
is influenced by the recently reaffirmed Antarctic Treaty.(5)
D.
Fundamental Principles of the LOSC
Three fundamental principles
pervade the LOSC. The first principle is that States have some sovereign
rights to some portion of the sea adjacent to their sea coastline. The
second principle limits the first; it says that some portion of the sea,
the seafloor and the sea-bed are shared as part of the "common heritage
of mankind." The final principle is that concomitant with States'
rights are States' obligations to preserve the seas and accommodate the
needs of other States.
E.
Structure of the Agreement
The LOSC Agreement is divided
into numerous Parts and Annexes which approach the issues of international
relations on the oceans from several perspectives. The Agreement divides
roughly in half. The first eleven Parts deal with spatial issues, and
tend to reiterate long-standing concerns with respect to the seas. The
latter Parts deal with functional issues of use and cooperation and more
directly address recent concerns.
Parts II through VI define
the extent and nature of coastal States'(6)
proprietary interest in the seas. Parts VII and XI deal with the commonly
held areas of the sea and the seafloor, including the economic rights
of all States within these areas.
Part XII, on the other hand,
outlines States' responsibility for protecting the marine environment.
Parts XIII and XIV relate to scientific research on the seas, including
transfer of technologies to the developing world. Part XV presents mechanisms
for resolving disputes. Other Parts and the Annexes deal with specific
problems, institutional structures, details of dispute resolution and
the operation of the Agreement itself.
F.
Present Status of the Agreement
The LOSC provides that it
will not enter into force until 12 months after the 60th ratification.
States that have ratified the Agreement are known as "State Parties."
Canada has signed but has not ratified the LOSC. As of January 1993, there
had been 54 ratifications, few of which were by major industrialized nations
or major maritime powers, many of which oppose the deep sea-bed regime.
Despite this, there are
four arguments for applying the principles in the LOSC, if not the convention
itself, to international relations on the seas. First, many States are
already bound by the various Geneva Conventions, described earlier, which
constitute a significant portion of the first section of the LOSC. Second,
the LOSC is a codification of a substantial amount of binding(7)
customary international law of the sea as it existed in 1982. Third, the
International Court of Justice (ICJ) has held that extensive State practice
indicates that the LOSC's major new concept of the Exclusive Economic
Zone (EEZ), if not the specific details, has become customary international
law. Finally, the Vienna Convention on the Law of Treaties, which
is itself customary international law, says that States that have signed
but not yet ratified a treaty must refrain from acts that would defeat
the object and purpose of the treaty.
STATE
SOVEREIGNTY ON THE SEAS
A.
Territorial Division of the Sea, Sea-Bed and Subsea
The most basic question
in the law of the sea is: what constitutes a sea? The international legal
definition is not the same as that of an oceanographer. Under the LOSC,
the sea is defined as being seaward of a "baseline."
The rules for drawing baselines
are necessarily complex, since they deal with infinitely variable geography;
essentially, however, the baseline is the low-tide line. Special rules
for bays, river deltas, estuaries, fjords, reefs, fringing islands, small
rocks, etc. project a straight baseline across an open area of water.(8)
Straight baselines must follow the general trend of the coast, but there
is no steadfast limit as to their permissible length.(9)
The longer the baseline, however, the greater the maritime area that is
removed from effective use by all nations and, as a result, long straight
baseline projections are vigorously opposed by many States. All outward
measurements of distance that delineate territorial subdivisions of the
sea start from the baseline,(10)
as do many measurements used in defining a contested boundary between
adjacent States. A coastal State's rights in territorial zones in the
sea are progressively attenuated as one moves further away from the shoreline.
1.
Internal Waters
Internal Waters (IW) are
all waters on the landward side of a baseline. They are the legal equivalent
of the State's land in international law, except that in very limited
instances foreign nations may retain a historical right of passage. Domestic
laws will usually apply through a State's IW. Shipping ports are within
IW but the LOSC does not provide for a general right to enter for ships
in distress, although such a right may exist in customary international
law.
FIGURE 1
THE CONSTRUCTION OF BASELINES
Source: Churchill
and Lowe, The Law of the Sea, 2nd ed., Manchester University Press,
Manchester U.K., 1988.
FIGURE 2
TERRITORIAL DIVISION OF THE SEA, SEA-BED AND SUBSEA STRATA
Source: Modified from
Churchill and Lowe, The Law of the Sea, 2nd ed., Manchester University
Press, Manchester, U.K., 1988.
Depending upon the straight
baselines drawn, very large portions of the waters around Canada, particularly
within the Arctic, may become part of the IW of Canada. For instance,
the government of Canada draws a straight baseline from Resolution Island
(just south-east of Baffin Island) 38 nautical miles(11)
(herein referred to simply as "miles") south to Cape Chidley,
the northernmost tip of Labrador. This straight baseline, if it receives
international acceptance, will enclose an enormous body of water, including
all of Ungava Bay, Hudson Strait, the Foxe Basin and Hudson Bay.
2.
Territorial Sea
The Territorial Sea (TS)
is a band of sea immediately adjacent to the baseline. In the absence
of any impinging State, a coastal State may claim a TS of width up to
12 miles. There is no minimum TS that a State must claim. Most States,
including Canada, have claimed the maximum permissible. Islands, islets
and rocks which are naturally occurring but not capable of sustaining
life all generate a TS, provided they protrude above sea level at high
tide.
Within the TS, the coastal
State has the same sovereign rights as on land, except that the ships
of all States have the right of innocent passage through the TS.(12)
Innocent passage encompasses transit only and the coastal State may set
up sealanes in which ships in innocent passage must remain. Activities
such as fishing, research, weapons use, loading or unloading of commodities
or any threat to the stability of the coastal State are a breach of the
right of innocent passage. If such activities take place, the coastal
State is entitled to move to prevent further passage or presence within
the TS. Warships, although not specifically provided for in the LOSC,
probably have a right of innocent passage, for the LOSC allows innocent
passage by nuclear ships and submarines. The coastal State also has the
duty to publicize navigational dangers within its TS; this may entail
an obligation to maintain lighthouses or other warning devices.
3.
Contiguous Zone
The Contiguous Zone (CZ)
is a band of sea up to 12 miles wide, immediately seaward of the outer
margin of the TS; it may be claimed by the coastal State for the purpose
of enforcing its domestic laws relating to customs, immigration, fishing
and sanitation. Although the coastal State cannot regulate within the
CZ, within that zone it can enforce breaches of its laws that occurred
on its territory or within the TS. This transitional zone prevents ships
from breaking the law and then hovering offshore just out of reach. With
the creation of the Exclusive Economic Zone (discussed below), most States
have abandoned their former reliance on the concept of a CZ.
4.
Continental Shelf
Although the geologic continental
shelf is simply the extension of the continent out under the adjacent
sea, the legal Continental Shelf (CS) is more complicated. Formerly, international
law set the outer margin of the CS as the 200-metre isobath (a contour
at 200 metres water depth) or to such depth as technology would admit
exploitation of resources. The LOSC has replaced this with very complicated
formulas relating to slope of the floor or thickness of the rocks on the
seafloor. The LOSC also set a minimum and maximum CS width of 200 and
350 miles, respectively. As an approximation, however, where the geologic
continental shelf extends beyond 200 miles, one can still consider the
200-metre isobath as the CS margin, for this is where a rapid change in
slope of the seafloor typically occurs. Rocks incapable of sustaining
human habitation do not generate a CS.
A State's rights on the
CS exist even without any express claim being made. Rights to the CS pertain
to the sea-bed and the subsea strata, not to the superadjacent water column,
although rights within the Exclusive Economic Zone may cover the water
column. A coastal State may not exercise full sovereignty over the CS,
but it does have the exclusive right to explore and exploit its living
and non-living resources, including minerals, oil, and lifeforms like
clams that live fixed to the seafloor. Other nations may lay submarine
cables and pipelines across a coastal State's CS.
In rare cases, such as at
Canada's Nose and Tail of the Grand Banks, the CS extends beyond the Exclusive
Economic Zone. This gives the coastal State exclusive right to the seafloor
resources of the CS, while resources in the superadjacent water column
belong to all nations.
5.
Exclusive Economic Zone
The Exclusive Economic Zone
(EEZ) is perhaps the greatest immediate advance in international law stemming
from the LOSC. An EEZ is an up to 200-mile-wide band that extends seaward
from the baseline and may be claimed by the adjacent coastal State. Most
States have claimed the maximum permissible. In almost all cases, the
TS and the CZ are within the EEZ. Most CSs are less than 200 miles in
width, so the waters above them (which include the vast majority of all
economically exploitable fish stocks) are also within the EEZ. Rocks incapable
of sustaining life do not create an EEZ about them, although they do create
a TS.
Within the EEZ, the coastal
State has two basic rights: one economic, one jurisdictional. Economically,
the coastal State has sovereign rights(13)
for the purpose of exploring, exploiting, conserving and managing
the living and non-living resources of the water column, sea-bed and subsea
strata and other activities of economic exploitation. Jurisdictionally,
the coastal State has jurisdiction over artificial structures, marine
research and marine environmental protection. One could also read this
environmental protection right as a duty, as this would be consistent
with the title in the relevant provision of the LOSC. In total, these
rights are very far from outright sovereignty.
Contrary to general opinion,
Canada has not claimed an EEZ, but rather a 200-mile Exclusive Fishing
Zone (EFZ), although the terms are loosely used almost interchangeably.
EFZs have their origin prior to the LOSC, which Canada's EFZ claim predates,
but now many States have claimed an EFZ as wide as the permissible EEZ.
A claim to an EFZ, when
combined with rights to the CS, gives the coastal State all the economic
rights to the area (except "other activities," such as energy
generation from waves), without taking on any duties beyond those imposed
on all States. In return for claiming the lesser right of an EFZ rather
than an EEZ, the coastal State gives up jurisdiction over artificial structures
and marine research that may be built or undertaken within the area.
6. High Seas
Freedom of the High Seas
(HS) is a very old legal concept; recent changes in the law of the sea
amount to a redefinition of the boundaries of the HS without altering
State rights within the HS. The HS comprise all those areas of the sea
where no jurisdiction is exercised by a coastal State; usually this is
all waters seaward of the outer margin of the EEZ of the adjacent coastal
State.
The HS belong to all mankind.
They are characterized by the freedom of all States, land-locked or not,
to navigate through, fly over, fish upon, conduct scientific research
in, lay cables, build artificial islands, etc., provided these activities
are carried out with due regard to the rights of other States and for
peaceful purposes.
States may not claim jurisdiction
over the HS; however, in the limited circumstance of a "hot pursuit,"
a coastal State that chases into the HS a foreign ship that has transgressed
its laws within its EEZ or TS may enforce its laws on the HS. In "hot
pursuit," the chase must have begun while the foreign ship was within
the pursuing State's waters and continue until the ship is apprehended.
The use of necessary force to apprehend a ship is not considered to be
a violation of States' obligation to use the HS for peaceful purposes
only.
It has become popular for
many governments and opinion leaders to call for economic sanctions, including
enforced trade sanctions, against a State felt to be in violation of international
public order. Such actions were recently used against Iraq and Serbia.
However, a naval blockade is, prima facie, a violation of freedom
of the HS. Such efforts constitute a violation of international law if
not conducted with the authorization of the United Nations Security Council
pursuant to Chapter VII of the Charter.
7.
Special Cases of Interest to Canada
a.
Ice-Covered Areas
Pack-ice, in particular
permanent pack-ice, presents a problem in law for it takes on many of
the characteristics both of sea (for it permits navigation by submarine)
and land (especially for the local indigenous peoples at high latitudes).
In the absence of any provision to the contrary in the LOSC, permanent
ice-covered areas, at least those floating above ocean water,(14)
are likely to be considered seas for the purpose of the LOSC.
The LOSC grants the coastal
State in ice-covered areas a right to legislate throughout the EEZ for
the purpose of protecting the fragile environment from pollution damage.
Elsewhere in EEZs, States have an economic right but not a legislative
right. This brings the LOSC in line with the right asserted by Canada
in the Arctic Waters Pollution Prevention Act(15)
prior to the LOSC.
b.
International Straits
Straits are narrow channels
that connect two larger bodies of water. By their nature they are extremely
important to commercial shipping and naval forces. However, straits are
usually located in what, but for their status as an international strait,
would be the EEZ or the TS of the adjacent coastal State. As there is
no set rule of what constitutes a strait, many States will clash over
this issue. Canada considers this issue crucial for asserting Canadian
sovereignty throughout the Arctic islands, especially with respect to
the status of the so-called North-West Passage.
The LOSC defines the rights
of shipping States within international straits; these rights pertain
to transit only, in all other respects a strait retains the legal characteristics
of the area in which it resides.
c. Archipelagos
Archipelagos are collections
of islands in relatively close proximity to one another which have a geographic,
historic, economic or political association. The Canadian Arctic Islands
and the Greek Islands are examples. Archipelagic States, such as Indonesia,
are made up entirely of archipelagos. They receive special treatment under
the LOSC, which grants to them jurisdiction over "Archipelagic Waters."
Archipelagic Waters resemble a TS and, with some limitations, comprise
those waters contained within straight baselines drawn between the outermost
islands in the archipelago. The Canadian Arctic Islands, not being a State,
do not generate Archipelagic Waters.
d.
Land-Locked States
Although land-locked States
do not have a TS or EEZ of their own, the LOSC provided them with many
of the rights and privileges of coastal States, including freedom of the
HS, a right of innocent passage and the right to share in the wealth of
the deep sea-bed. These rights would be hollow if the land-locked State
could not gain access to the sea; the LOSC requires coastal States to
provide land-locked States with access to the sea by all means of transport.
In addition, land-locked
States have the right to share equitably in the exploitation of the surplus
fishing resources in the EEZs of States within their region. Although
the term "region" is not defined within the LOSC, the land-locked
States closest to Canada are in Europe and thus not likely to be within
many definitions of the Canadian region. Canadians should be aware, however,
that despite the name Exclusive Economic Zone, Canada does not,
in all instances, have an absolute right to all the fishing resources
within the 200-mile Canadian EEZ.
B.
Boundary Delimitation between Adjacent States
Boundary disputes have existed
since we began drawing boundaries. However, when the EEZ extended a coastal
State's rights out from 12 to 200 miles, it created many new opportunities
for dispute, either: (i) where two opposing coasts are more than
24 miles but less than 400 miles apart; or (ii) where adjacent States
had agreed to a boundary out for 12 miles, but cannot agree on the further
188 miles. Add to this the newfound petroleum resources of the subsea
strata, and one has conditions ripe for boundary disputes.
Although delineation of
an all-purpose boundary is desirable from the point of view of management,
each territorial division of the sea warrants its own uniquely decided
boundary. Boundaries close to shore, as between adjacent States or closely-opposing
States, tend not to be very contentious; in these cases there usually
is plenty of historical evidence to buttress a claim. Further offshore,
however, there is more latitude for disagreement. It is primarily in these
instances that international law must look to principles rather than history
to settle the dispute.
1.
Principles Involved
The LOSC makes no major
new contribution to the law of delimiting marine boundaries between opposing
and adjacent States. The Agreement sets out slightly different treatment
for TS boundary delimitation from that of the CS or the EEZ. In all cases
the LOSC calls on Parties to resolve their boundary disputes by agreement.
For the CS and the EEZ there is the additional provision that such an
agreement be on the basis of international law and achieve an equitable
solution. If no agreement is achieved on a CS or EEZ boundary, the Parties
are directed to the LOSC's general dispute resolution procedures.(16)
For the TS, the LOSC says only that, in the general case, without an agreement
neither State may assert a boundary that is beyond the equidistant point.(17)
Since EEZ and CS delimitations
are the basis of most boundary disputes, the LOSC simply adopts whatever
international law of boundary delimitation exists as its principle for
resolving disputes. That principle is exceedingly broad, but it consistently
runs through numerous cases on boundary disputes. It can most clearly
be stated as: the Parties shall use equitable principles, or equitable
criteria, taking into account all the relevant circumstances, in order
to come to an equitable result when settling their boundary disputes.(18)
Clearly, the result, rather than the means, is the dominant criterion
for assessing the suitability of the boundary.
Using equitable principles
to reach an equitable result does not place great constraints on the actual
method employed. This probably is desirable, for it allows for the solution
to be effectively tailored in each instance to the particular geography
before the tribunal. Equity, by its very definition, will be unique for
each new fact situation and, of course, geography is infinitely variable.
In situations of very simple geography where there are no "special
circumstances," international law seems to have de facto concluded
that equidistance should be the principle chosen for boundary delimitation
between opposing coasts.
The following principles
are among the many that have been put forward as equitable principles
which should be invoked: sovereign equality between States; political
status of the territory; "weight" varying between mainland and
islands; equidistance; relative lengths of coastline; non-encroachment(19)
of coastal fronts; natural prolongation of land territory; historic use
and economic interests; and degrees of frontal overlap.(20)
No one principle is equitable in all instances. At various times an equitable
result, it has been argued, is one that divides the relevant and disputed
marine waters: (i) equally; (ii) in proportion to the lengths of relevant
coastline; or (iii) in proportion to the relevant land areas.
In light of so many "equitable
principles," it is easy to see why these issues are so contentious
and why at times there appears to be no discernable trend in tribunal
decisions. How equitable principles play out is best seen within the context
of concrete examples, which indicate that there is no sure answer to maritime
boundary disputes.
2.
Canadian Examples
Everywhere(21)
Canada has a maritime boundary with another State, Canada has a boundary
dispute or has recently settled one. These boundaries are: in the Gulf
of Maine off the southern tip of Nova Scotia; around the French islands
of St. Pierre and Miquelon off Newfoundland; in the Beaufort Sea off the
north coast of Alaska and the Yukon Territory; in the Davis Strait and
associated waters separating the Eastern Arctic from Greenland; in the
Strait of Juan de Fuca south of Vancouver Island; and in the Dixon Entrance
between the southern tip of the Alaska panhandle and the Queen Charlotte
Islands.
The Gulf of Maine and St.
Pierre disputes have recently been resolved through litigation; these
will be described at greater length below. The Beaufort Sea dispute may
have enormous economic ramifications because of the oil potential beneath
the disputed waters; it too is discussed below. The Davis Strait and Juan
de Fuca Strait disputes are relatively minor readjustments to a line and
are unlikely to be highly contentious so are not further discussed here;
nor is the Dixon Entrance dispute, which has taken on a political impact
far exceeding its economic import owing to the nearby presence of a U.S.
submarine facility.
a.
The Gulf of Maine Dispute
In the Gulf of Maine, in
the area south of Nova Scotia and north of Cape Cod (see Figure 3), Canada
and the United States maintained a long-standing boundary dispute. Complex
coastal geography, complicated subsea geologic features, oil potential,
and very substantial fishing resources combined to make the dispute difficult
to resolve.
After agreeing on a short
boundary close to land, the countries sent their dispute to an ICJ Chamber(22)
asking for a single boundary for the CS and the superadjacent waters.(23)
Before the Court, Canada argued the equidistance principle. The Americans
initially argued natural prolongation of the land, but changed their claim
because of an ICJ decision that largely dismissed that principle. The
amended U.S. claim involved boundaries normal to the regional coastal
trend with discounting for peninsulas and islands. In sum, though, their
amended line, based upon new principles, was very close to the old line
they had been advancing.
FIGURE 3
THE GULF OF MAINE DISPUTE
Source: From Kapoor
and Kerr, A Guide to Maritime Boundary Delimitation, Carswell,
Toronto, 1986.
In rejecting both Parties'
claims, the Court showed great flexibility. It fashioned a boundary of
its own making, which consisted of three segments: an inner section perpendicular
to the coast, a middle section roughly equidistant between two opposing
coasts, and an outer section facing open ocean drawn perpendicular to
an imaginary line joining the two outermost points of land and thereby
enclosing the gulf. The decision highlighted the primacy of geographic
factors. It was considered equitable because it roughly divided the disputed
area into sections proportional to the lengths of relevant coastline.
b.
The St. Pierre and Miquelon Dispute
St. Pierre and Miquelon
are two very small French islands south of Newfoundland (see Figure 4).
They are 12 miles from Canadian soil but several thousand miles from metropolitan
France.
In the 1970s, Canada and
France agreed to an equidistant boundary on the inshore side between them,
but maintained a dispute on the boundary on the seaward side of the islands.
The seaward boundary was settled by an arbitration tribunal consisting
of eminent jurists from both countries and three neutral countries. Before
the tribunal, France argued the equidistance principle. Canada, following
a somewhat analogous arbitration decision on the waters around the Channel
Islands,(24) argued for
enclaving around the islands.(25)
In its 10 June 1992 decision,
the majority opinion(26)
of the tribunal rejected the arguments of both States; however, the decision
did contain significant elements of the Canadian enclaving argument even
though the tribunal concluded that the Channel Island case was not a relevant
precedent. The tribunal decision granted France two areas: an enclave
of 24 miles (12 mile TS, 12 mile EEZ) around most of the islands, plus
a thin "stem" projecting southward for
FIGURE 4
THE ST. PIERRE AND MIQUELON DISPUTE
Source: Department
of External Affairs press release.
200 miles. The stem projects
perpendicular to the general trend of the south coast of the island of
Newfoundland. The width of the stem is equal to the width of the islands
as measured parallel to the general trend of the south coast of the island
of Newfoundland; this minimizes cut off. The tribunal concluded that the
area granted to France was equitable, being roughly proportional to the
relevant lengths of coastline as determined by the tribunal.
Several conclusions which
may influence general application were drawn: (i) a territory's maritime
rights do not depend on its political status (integral part of the metropolitan
State or overseas possession) or geographic status (island or continent);
(ii) the Treaty of Versailles (which ceded St. Pierre to France)
does not limit France's present maritime rights; (iii) economic dependence
upon the fishery does not impact upon boundary delimitation; and (iv) the
division of the relevant area should be roughly proportional to the relative
coastal lengths. The tone of the decision emphasized equitable rather
than legal principles.
c.
The Beaufort Sea Dispute
The land boundary between
Alaska and the Yukon Territory is the 141st degree of longitude. How that
boundary extends northward on to the Beaufort Sea and the Arctic Ocean
is vitally important, for scientific information suggests that the strata
beneath the Beaufort Sea have great petroleum potential.(27)
There have already been major discoveries of oil and gas further east,
in Canadian portions of the Beaufort Sea not under dispute.
The respective positions
of the two governments are straightforward. Canada contends that the maritime
boundary should follow the land boundary along the 141st meridian out
200 miles. At various times, this has been supported by the following
arguments: (i) the intent of the 1825 treaty(28)
which set the 141st meridian as the land boundary was to include both
land and sea; (ii) a similar line divides Russian waters from Alaskan
waters; (iii) Canada
FIGURE 5
THE BEAUFORT SEA DISPUTE
Source: Modified from
Rothwell, Maritime Boundaries and Resource Development: Options for
the Beaufort Sea, Can. Inst. of Resources Law, 1988.
has historically used these
waters; (iv) both States have acquiesced in this delimitation; and (v) polar
areas are unique, thus the principles of boundary delimitation applied
in non-polar regions are not applicable. The United States argument has
relied exclusively on equidistance.(29)
The implications of an adverse
boundary decision in the Beaufort Sea are enormous. As well, petroleum
production from the disputed territory is not imminent. Together, these
two facts indicate that the two countries are unlikely to go to an adjudicative
tribunal for resolution of this dispute. A negotiated solution is likely
to be in both countries' best interests.
C.
State Jurisdiction aboard Ships at Sea
State jurisdiction can be
roughly divided into two species: legislation and enforcement. In many
shipping situations this becomes more complicated, for there are two States
involved: the State representing the ship's nationality (flag State) and
the State with jurisdiction over the waters in which the ship floats (coastal
State). Ships are nationals of the State in which they are registered;
or, in maritime jargon, ships are nationals of the nation whose flag they
fly.
1.
Flag State Jurisdiction
Flag States may exercise
legislative jurisdiction over their ships wherever they may be. Usually
this entails regulating social, employment, safety and technical matters
aboard the ship; the last of which, the LOSC says, must conform to international
standards. Concomitant with legislative authority is the flag State's
international responsibility for the actions of its ships.
Flag States, however, may
enforce their jurisdiction only when their ships are within their TS,
EEZ or on the HS. To attempt to enforce this jurisdiction within waters
belonging to another State would be an infringement of that State's right
of sovereignty.
2.
Coastal State Jurisdiction
Ships passing through waters
within the jurisdiction of coastal States provide opportunities for potential
conflicts of jurisdiction. For instance, the flag State may set pollution
control regulations for its ships, but these may simultaneously come within
the purview of the pollution control regulations of the coastal State,
when in that State's waters.
Although ships at sea have
a right of innocent passage within a TS, this passage must be undertaken
in accordance with any relevant laws of the coastal State. Coastal States
have the legislative jurisdiction to pass laws that apply to foreign ships
within their TS pertaining, inter alia, to: safety of navigation,
regulation of maritime traffic, sanitation, and protection of cables and
pipelines. Enforcement jurisdiction relates primarily to breaches of sanitary
laws and is discussed below in the enforcement chapter of the Maritime
Pollution section.
EXPLOITATION
OF MARINE RESOURCES
Two significant problems
underlie the exploitation of marine resources. First is the tendency to
overutilize the communal but finite resources of the HS. The second is
the transboundary migration of marine fish resources. The LOSC attempts
to regulate both problems.
A.
Fishing Rights and Obligations
1.
General Conservation and Sharing Obligations
a. Conservation
Prior to the LOSC, international
obligations were created to conserve fishing resources,(30)
at least for those areas in which there was communal ownership. The LOSC
extends these conservation obligations, setting out varying obligations
for the TS, EEZ and HS. The Agreement does not mandate conservation of
fish stocks within the TS; it says only that the coastal State may adopt
laws for fish conservation. However, as the coastal State has sole right
to exploit these fish, prudent practices should prevail. Within the EEZ,
the coastal State must set an allowable catch, based on scientific information,
which is designed to maintain or restore species to levels supporting
a maximum sustainable yield (MSY). An MSY need not be entirely scientific,
it can also take into account economic factors. For stocks that straddle
boundaries between two EEZs or an EEZ and the HS, States must cooperate
towards reaching an overall conservation plan. On the HS, States have
an obligation to cooperate, consult, negotiate and implement a management
plan designed to maintain or restore species to levels supporting a MSY.
Note the obligation is to cooperate toward this end, not achieve this
end.
There are, however, significant
loopholes with respect to sedentary species, highly migratory species
and andromadous stocks (such as salmon). First, sedentary species,(31)
even those located within an EEZ, are exempt from the conservation obligations.
Second, though coastal States must conserve highly migratory and andromadous
species (which travel through the TS and EEZ on their way to other waters)
within its EEZ, there is no similar obligation within the TS.
b. Sharing
As mentioned previously,
the EEZ is a major expansion of coastal States' rights and most of the
world's offshore fisheries are located within EEZs. The coastal State,
however, has obligations with respect to sharing the excess living resources
of the EEZ. Within the EEZ, the coastal State must promote the optimum
utilization of fish resources. This term indicates the coastal State's
obligation to make available to other countries any surplus fish it lacks
the capacity to catch. This surplus must be made available on an equitable
basis to other countries, paying particular regard to separate obligations
to share the surplus with land-locked States and geographically-disadvantaged
States. The coastal State may still regulate the actual taking of the
surplus by foreign vessels. The LOSC neither requires nor prohibits a
demand of compensation for taking surplus fish.
2.
Rights within the TS and EEZ
Although fishing rights
within the TS and the EEZ are exclusive, in that no other State may fish
in these areas without approval of the coastal State, the right of the
coastal State to exploit the fishery is not unlimited. For instance, in
the TS, where the coastal State has sovereignty as well as an economic
right, sovereignty must be exercised subject to the provisions of the
LOSC and other international law.(32)
The LOSC is clear: although the right to fish may be exclusive, the fish
are not "owned" by the coastal State. Rather, the coastal State
has a right to fish but the fish remain unowned until caught. In other
words, one coastal State, absent a bilateral agreement,(33)
has no claim on fish which migrate from its waters into those of another
State.
B.
Non-Living Sea-Bed Resources
1.
Continental Shelf
a.
Petroleum Rights
Geologic structures containing
hydrocarbon resources are found both on the continents and under the CS.
The oil potential of the subsea strata of the CS is very great, much greater
than that of the continental slope and deep sea-bed. Hydrocarbons, whether
natural gas, oil or condensate, are all non-living natural resources,
which the coastal State has the exclusive right to explore and exploit
without the need for any express proclamation. The terminology of "right
to explore and exploit" is curious, for it arguably leaves possible
the contention that, absent exploitation of these resources, the coastal
State does not yet own them.
b.
Mineral Rights
Exploitable minerals on
the CS consist of three basic forms: (i) in situ minerals such
as coal found within the rock strata; (ii) placer deposits of heavy minerals
and elements, such as gold, which may accumulate with the seafloor sediments;
and (iii) the sand and gravel located on the sea floor. In situ
mines operating beneath the sea (as on Cape Breton Island) usually begin
on land and follow the resource out beneath the sea; rarely does the mine
extend out beyond the TS limit. Subsea placer deposits are not yet extensively
exploited. Sand and gravel probably hold out the greatest potential, for
the technology is simple, recovery costs are low and the need for building
materials is great. Coastal States have the exclusive right to explore
and exploit these subsea minerals on the CS.
The situation is slightly
different for those regions of the CS extending beyond 200 miles. There,
the coastal State exploiting the mineral resource must annually pay all
State Parties to the Agreement 1% of the annually produced resource during
years 6 through 12 of production and 7% annually, thereafter.
2.
Deep Sea-Bed Minerals
The deep sea-bed (DSB) is
that portion of the seafloor which resides seaward of the continental
shelf, usually many thousand of metres below sea level. Metallic accretions,
known as manganese nodules,(34)
have been discovered on the DSB and are potentially of enormous value.
Once this vast resource was found, efforts were undertaken to prevent
these nodules from being scooped-up by the few rich, technologically-advanced
nations that would soon be in the technological position to do so. Manganese
nodules, many felt, could be used to reduce some of the discrepancies
in wealth between the world's nations.
The LOSC addresses this
resource via the newly-formed DSB Regime. Part XI of the Agreement sets
up an International Sea-Bed Authority (the "Authority") to coordinate
and oversee the development of the mineral resources of the seafloor and
subsea strata beneath the HS.(35)
This portion of the seafloor is known in the LOSC as the "Area."
General policy decisions regarding the Area are made by a two-thirds vote
of the "Assembly," in which each state Party to the LOSC gets
one vote. The Assembly is the principal organ of the Authority. Executive
decisions implementing general policies are made by the Council, whose
membership is voted upon by the Assembly, but is designed to represent
Parties of all levels of economic development, social arrangement, major
land-based producers of the minerals, major consumers of the minerals
and all geographic regions.
The physical mining operations
of the Authority are to be undertaken by commercial operators and by an
international business entity known as the "Enterprise," which
would operate in the Area for the general benefit of mankind. Profits
from the Enterprise would be divided equitably between the State Parties.
The Enterprise is to be funded half by loan guarantees by State Parties
in accordance with their relative U.N. assessments and half by commercial
borrowing. It is anticipated that the operations of the Enterprise would
eventually make it self-financing. The details of allocation of mining
sites and production quotas are extremely complex and beyond the scope
of this paper.
The DSB is the element of
the LOSC likely to have the greatest economic impact on the world in the
long term. Though there are at present no operating DSB mining operations,
several nations, including the United States, have refused to ratify the
LOSC because of its DSB mining provisions. Without active participation
by the world's major economic powers, the viability of a DSB mining venture
as provided for in the LOSC is questionable.
CONSERVATION
OF THE MARINE ENVIRONMENT
A.
General Obligation
The international legal
obligation to preserve and protect the marine environment predates the
LOSC and has its genesis in the Trail Smelter Arbitration,(36)
which says that no State may permit the use of its territory in such a
manner as to cause injury to the territory of another. Principle 21 of
the Stockholm Declaration,(37)
commonly held to codify the (then) state of customary international law,
extended this by urging States to ensure that "areas within their
jurisdiction or control do not cause damage to the environment of other
States or areas beyond the limits of national jurisdiction." Clearly
this encompasses damage caused by ships and damage to the High Seas. The
LOSC reiterates this obligation, and makes the right to exploit natural
resources subject to an overriding obligation to protect and preserve
the marine environment.
B.
Maritime Pollution
The LOSC defines "pollution
of the marine environment" broadly, calling it
the introduction by
man, directly or indirectly, of substances or energy
into the marine environment ... which results or is likely to result
in such deleterious effects as harm to living resources and marine life,
hazards to human health, hindrance to marine activities ..., impairment
of quality for use of sea water and reduction of amenities.(38)
(emphasis added)
The Agreement contains provisions
specifically dealing with marine pollution resulting from land-based sources,
sea-bed activities within the TS or EEZ, vessels, and the atmosphere.
There is also an obligation to establish rules regarding pollution resulting
from deep sea-bed mining.
1.
Setting Standards
Under the LOSC, jurisdiction
to prescribe marine pollution standards is essentially the same as that
discussed above under the title "State Jurisdiction Aboard Ships
at Sea" and, with one important addition, is the same as that which
existed prior to the Agreement. Flag States may set minimum standards
to which their ships must adhere anywhere they travel. Coastal States
may set standards within their TS. Port States may set standards for their
harbours. However, all States with jurisdiction, whether flag, coastal
or port, must "adopt laws and regulations for the prevention, reduction
and control of pollution of the marine environment ... [which] shall at
least have the same effect as that of generally accepted international
rules and standards ..."(39)
Such standards probably imply the major multilateral treaties respecting
maritime pollution,(40)
in effect, bringing Parties to the LOSC into line with these treaties
that are not as widely accepted as the LOSC.
2.
Monitoring Pollution and Risks
The international obligation
to monitor marine pollution is relatively weak. States need only, as far
as practicable, monitor and scientifically evaluate the risks and effects
of marine pollution. In effect, poorer States are held less accountable
and the existence of an obligation to monitor outside of one's EEZ is
debatable. The monitoring obligation does, however, pertain to both pollution
and activities likely to pollute the marine environment. Although there
is an obligation to make monitoring reports available to other States,
many pollution risks will result from military operations, and these,
one can safely assume, will tend not to be reported, or reported inadequately.
3.
Legislative Authority
The LOSC's general obligation
is that, in preventing pollution, (i) States must take all necessary measures
that are consistent with the LOSC; (ii) the appropriateness of measures
taken may be limited by what is practical and the State's capacity; and
(iii) States should endeavour to harmonize their policies. Arguably, the
"all necessary measures" obligation includes an obligation to
create rules designed to protect the marine environment prior to the occurrence
of a polluting event. This would bring the LOSC in line with obligations
pursuant to the HS Convention.(41)
Section 5 of Part XII of the LOSC says "States shall adopt laws and
regulations to prevent [marine pollution from several different sources]."
Whether, based on the text of Section 5 alone, the term "shall"
is mandatory or permissive, is not clear. Section 5 read in conjunction
with the obligation to harmonize policies, however, strengthens the argument
that "shall" is mandatory. States also have an obligation to
cooperate regionally and globally for the establishment of international
standards.
Two major groups of States
have the right and/or the obligation to legislate safeguards: coastal
States and flag States. The right of the coastal State varies with the
body of water (TS, EEZ, international strait, etc.) in question. In general,
however, the regulations must be made public, and must not apply in a
discriminatory manner or in areas beyond national jurisdiction,(42)
or exceed generally accepted international standards. For instance, regulations
purporting to stipulate ship design for ships travelling through the EEZ
would probably exceed the coastal State's jurisdiction; ship design is
more appropriately regulated by the flag State. Coastal State legislative
jurisdiction within the EEZ and on the continental shelf is limited to
laws pertaining to ocean dumping.
Ice-covered areas within
the limit of the EEZ receive special consideration under the LOSC's pollution
control provisions. Within these areas, coastal States may legislate for
the protection of the environment in a non-discriminatory fashion. This
could be viewed as ex post facto approval of Canada's 1970 actions
in proclaiming the Arctic Waters Pollution Protection Act,(43)
which regulated shipping within 100 miles of Canada's Arctic coasts in
an attempt to preserve the fragile environment.
4. Enforcement
Prior to the LOSC, only
flag States had jurisdiction to enforce breaches of marine pollution laws
that occurred outside the TS. Since most transit, many accidents and virtually
all intentional ocean dumping occurs outside TSs, however, a great deal
of pollution took place without penalties being enforced. As well, countries
offering flags of convenience had little incentive to prosecute pollution
infractions by their ships; indeed, some of these countries attract registrations
by systematically not prosecuting such action. Under the LOSC, however,
flag States have an obligation to enforce their pollution laws.
Although coastal States
may set regulations regarding dumping within the EEZ and on the continental
shelf, enforcement jurisdiction is limited. Often the coastal State must
wait until the ship enters port. While the offending ship is in the EEZ,
the coastal State may request information regarding the ship's identity,
registration and next port of call. If there is significant pollution
discharge or a substantial threat, the coastal State may inspect the vessel.
Upon "clear objective evidence" of discharge threatening or
causing major damage, the coastal State may detain the ship and institute
legal proceedings. Such actions must be pursued cautiously, however, for
States seeking to enforce pollution control laws may be responsible for
losses resulting from the enforcement if the measures taken exceed those
reasonably required in light of the available information.
Coastal States have no enforcement
jurisdiction on the HS, nor is there enforcement jurisdiction against
warships; however, when commercial ships are in their ports, they may
take action for breaches of international pollution standards that occurred
outside the EEZ, including on the HS.
5. Liability
The parties to the LOSC
are States, so only States can be responsible under the Agreement for
damage to the marine environment. The LOSC says that States are responsible
"in accordance with international law." Succinctly, the law
of State responsibility is that States are responsible for most(44)
actions of their nationals (including corporations) exercising elements
of governmental authority and State agencies. In a breach of an international
obligation, such as provisions of the LOSC, the State is responsible for
making reparations.(45)
NAVIGATION
A.
Nationality of Ships
International law has long
required that ships fly the flag of one State or, more recently and in
limited circumstances, the flag of the United Nations or one of its constituent
agencies. The LOSC retains this requirement. As discussed above, ships
assume the nationality of the State whose flag they fly. Ships that fly
the flag of more than one State are considered ships without nationality.
Ships sometimes fly "flags
of convenience"(46)
rather than the flag of some State to which the ship, shipowners or crew
have a long standing connection. The LOSC effectively permits flags of
convenience by requiring only that there be a "genuine link"
between the State and the ship. The genuine link standard is a reiteration
of the law that existed prior to the LOSC, when flags of convenience abounded.
B.
Transit and Navigation Routes
Rights of navigation were
necessarily touched upon earlier, in the discussion of the territorial
subdivision of the sea. As one moves landward from the HS, the navigational
rights of the non-coastal State generally diminish.
On the HS there is freedom
of navigation. Within an EEZ, freedom of navigation is limited by the
coastal State's safety zones (of up to a 500-metre radius around artificial
structures) and pollution control legislation impacting upon navigation.
Within a TS, foreign States have only a right of innocent passage, which
may be limited if the coastal State stipulates sea-lanes that must be
used while navigating or temporarily closes portions of the TS for reasons
of security. As discussed earlier, international straits (for instance,
Gibraltar) are subject to a right of transit, which, unlike innocent passage,
need not be "innocent."
C.
Piracy
Piracy laws, distinct from
robbery laws, have existed for almost 2,500 years, making piracy the world's
oldest international crime. Historically, piracy laws were justified by
sovereigns claiming universal jurisdiction over their ships and a right
to defend these ships wherever they might be. Hanging at sea was the penalty,
which was usually quickly meted out. Pirates have historically been distinguished
from privateers, who held a letter of marque from their sovereign, permitting
them to plunder the enemies' commerce during times of war. Privateers
who exceeded their commission from the sovereign, for example by attacking
neutral commerce, were not considered pirates. Although international
law has since abolished all distinction between privateers and pirates,
tribunals in this century held that U-boat attacks on Allied merchant
shipping during the World War I were not acts of piracy.
The LOSC reiterates the
law of piracy as set out in the HS Convention. Piracy now requires
six specific elements. The act must: (i) be illegal; (ii) be committed
by a private ship or aircraft (or a public craft if the crew has mutinied);
(iii) be against another ship or aircraft; (iv) be in an area outside
the jurisdiction of any State (usually, the HS); (v) be for private ends;
and (vi) result in the detention of the craft or violence or depredation
directed at the craft, its passengers or crew, or their property. The
limiting requirement that there be an "illegal act" seems to
permit acts of a piratical nature to take place with colour of right,
as during a war. Interestingly, the LOSC leaves the nationality of pirate
ships to domestic laws on ship nationality. Presumably, some States' laws
may decree that an act of piracy strips the ship of its nationality and
thus eliminates that State's international responsibility for the acts
of the pirate ship.
Warships that have reasonable
grounds for suspecting that a ship (other than another warship) is engaging
in piracy, have a right to board the suspected ship if it is on the HS.
A similar right of boarding exists against the so-called "pirate
broadcasters," which undertake unauthorized broadcasting based from
positions on the HS. This broadcasting, which is not piracy per se,
is of a class of prohibited activities akin to piracy.
Canadian law adopts the
international legal definition of piracy and punishes it as an indictable
offence with possible life imprisonment.(47)
MILITARY
USE OF THE SEAS
Despite general statements
in the LOSC that the HS shall be reserved for peaceful purposes, this
provision is not adhered to by many (if any) States. The very existence
of a navy may constitute a threat and therefore be a breach of the peaceful
use provision. The LOSC also says that
[t]he States Parties ...
[b]eliev[e] ... this Convention will contribute to the strengthening
of peace ... in accordance with the ... [Charter of the] United
Nations.(48)
Article 2(4) of the Charter,
however, prohibits the use or threat of force by a State against any other
State. This has led some to postulate that there may not be any legal
military use of the seas.(49)
The intermediate conclusion would be that marine military activities are
regulated by the LOSC during peacetime, shifting to the law of warfare
once hostilities have commenced.
A.
Warships
Warships(50)
are exempt from many requirements of the LOSC pertaining to waters beyond
the jurisdiction of any State. For instance, warships on duty for their
States are exempt from the marine protection provisions of the Agreement.
On the HS, warships have complete immunity against the enforcement of
any State's jurisdiction. Within a coastal State's TS, warships have sovereign
immunity from prosecution by the coastal State, although the LOSC does
permit them to practise the marine equivalent of a declaration of persona
non grata, by ordering the warship out of their TS.
B.
Military Activities
Four military activities
take place on the seas: (i) aggressive warfare during hostilities; (ii)
transit; (iii) manoeuvres and weapons testing during peacetime; and
(iv) naval blockades, usually during tense periods prior to war. The first
is part of the law of warfare and beyond the scope of this paper. Warship
transit is regulated as for any other vessel: freedom of transit through
international straits, on the HS and, arguably, EEZs. As discussed earlier,
military vessels can likely meet the requirements of "innocent passage"
and thereby have passage through a TS.
Manoeuvres (including surveillance)
and weapons testings definitely do not constitute innocent passage. Some
military vessels, notably those carrying nuclear and chemical weapons,
are regulated pursuant to multilateral or bilateral agreements, which
many nations consider to be outside the purview of the LOSC. Apart from
restrictions arising from specific arms treaties, military manoeuvres,
including weapons use, constitute legitimate use of the sea under the
LOSC.
Naval blockades, such as
those during the Cuban missile crisis and the recent Persian Gulf war,
are popular military tools for bringing about political compliance. Blockades
are, however, prima facie breaches of the LOSC as they interfere
with freedom of navigation on the HS. The law of the sea does not, however,
exist in isolation from all other international law; naval blockades may
be legitimized if they are supported by a United Nations Security Council
resolution under Chapter VII of the Charter. The blockade of Iraq
had such authority;(51)
the blockade of Cuba did not.
DISPUTE
RESOLUTION
A.
Obligations regarding Resolution
The LOSC incorporates the
principles of the Charter of the United Nations in its approach
to maritime disputes. Under the Charter, States have the following
two obligations: to settle their differences, and to settle them by peaceful
means. Disputes can be considered settled when they no longer endanger
international peace, security and justice. Since every dispute is unique,
international law leaves open the means to be chosen, and these may involve
any peaceful measures accepted by the parties.(52)
This openness is important. Although portions of the LOSC may be considered
customary law, the detailed conciliation and arbitration provisions of
the Agreement (discussed below) are unlikely to be considered to be so.
Those provisions would not become effective until the Agreement came into
force.
B.
Conciliation and Binding Arbitration
Following a required exchange
of views, disputing parties may, by agreement, enter into formal conciliation
proceedings. Although the LOSC sets out how conciliators are to be chosen,
the form of the report and the responsibility for costs, it leaves the
actual conciliation process quite open. The parties are free to reject
the recommendation of the conciliators. If either of the parties chooses
not to go to conciliation or conciliation fails, either party may submit
the matter to binding arbitration.
When becoming a party to
the LOSC, a State may, by written declaration, elect to choose a procedure
for compulsory resolution of disputes pertaining to rights under the Agreement.
Disputes can be resolved either on a legal basis or in equity. Parties
are free to choose from among: the International Tribunal for the Law
of the Sea (discussed below); the International Court of Justice;(53)
an Annex VIII arbitration tribunal, where the subject of the dispute relates
to fisheries, protection and preservation of the marine environment, scientific
research or pollution;(54)
or an Annex VII arbitration tribunal, the default choice. If the disputing
parties have chosen different procedures, then, absent an agreement to
the contrary, the dispute will proceed to Annex VII arbitration. In such
arbitration, the disputing parties usually appear before a five-person
tribunal chosen from a standing list of qualified arbiters. Each party
may appoint one arbiter, the remainder are normally jointly chosen. The
tribunal hears evidence and gives a final decision with reasons. There
is no avenue for appeal.
At any time, the parties
may elect not to permit disputes involving any or all of the following
areas to go to arbitration: delimitation of maritime boundaries, provided
the parties accept the conciliation procedures; military activities; or
matters over which the Security Council is exercising its functions.(55)
1.
International Tribunal for the LOS
The International Tribunal
for the Law of the Sea (the "LOS Tribunal") is the standing
tribunal for adjudicating international maritime disputes. The tribunal
sits in Hamburg, Germany. The bench consists of twenty-one independent
members, with the status of diplomats, who are elected by the State Parties
by secret ballot. All are from different countries, and the bench must
be globally representative of geography and the world's major legal systems.
Members may not hear cases involving matters with which they have previously
been associated, but are not required to remove themselves solely because
the State of their nationality is a party to the dispute.
Major adjudications usually
entail the entire available bench, although the tribunal can sit in chambers
of five, either on agreement by the parties or to deal with matters summarily.
Disputes can be resolved either in accordance with international law including
the LOSC or, if the parties agree, in equity. A judgment consists of a
reasoned decision by a majority of the bench. There is no appeal process.
2.
Sea-Bed Disputes Chamber
The high cost and potential
returns of commercial mining on the sea-bed(56)
provide fertile ground for disputes. Parties to the mining venture may
first attempt to agree on a mechanism for resolving a particular dispute
regarding the interpretation of the LOSC as it pertains to the Area. If
they cannot agree, the dispute will be referred to the Sea-Bed Disputes
Chamber, which consists of eleven members of the LOS Tribunal, chosen
by the LOS Tribunal. It operates in a manner similar to the LOS Tribunal
but, in addition to international law, it also applies the rules, regulations
and procedures of the Authority in its deliberations. Contractual disputes
respecting mining in the Area are settled by arbitration in accordance
with the UNCITRAL(57) rules.
(1)
The first comprehensive work defining the law of the sea was the 1609
treatise Mare Liberum by Hugo Groitius.
(2)
Montego Bay, 10 December 1982, not yet in force, 21 I.L.M. 1245 (1982).
This document stems from the third United Nations Conference on the Law
of the Sea; sometimes referred to elsewhere as UNCLOS, in this paper the
Convention from the Third Conference is referred to exclusively as LOSC.
UNCLOS I, UNCLOS II and UNCLOS III refer to the three conferences, respectively.
(3)
Convention on the Territorial Sea and the Contiguous Zone, Geneva,
29 April 1958, in force 10 September 1964, 516 U.N.T.S. 205 (the
TS Convention); Convention on the High Seas, Geneva, 29 April
1958, in force 30 September 1962, 450 U.N.T.S. 82 (the HS Convention);
Convention on the Continental Shelf, Geneva, 29 April 1958, in
force 10 June 1964, 499 U.N.T.S. 311 (the CS Convention); and the Convention
on Fishing and Conservation of the Living Resources of the High Seas,
Geneva, 29 April 1958, in force 20 March 1966, 599 U.N.T.S. 285 (the HS
Fishing Convention).
(4)
In particular, see Article 38(1)(b) of the Statute of the International
Court of Justice.
(5)
402 U.N.T.S. 71.
(6)
The term "coastal State" in this paper refers to the State whose
coastline generates the sovereign or economic interest for the area of
water under consideration.
(7)
The reader should be aware that not all consistent practice creates binding
customary law for all States. Relevant States must not only consistently
undertake a course of action, but must also be of the opinion that international
law requires it. Even then, States that consistently object to this practice
may not be held to be bound by the emergent customary law.
(8)
For a pictorial representation of these, see Figure 1.
(9)
For archipelagos only, the LOSC sets an upper limit of 125 miles for the
length of any single straight baseline. It may be reasonable to conclude
that this may develop into the upper limit for straight baseline projections
in non-archipelagic situations as well.
(10)
For a pictorial representation of the territorial subdivisions discussed
in this section, see Figure 2.
(11)
A nautical mile is about 14% longer than a statute mile, which is the
linear measure used on land. Twelve nautical miles is slightly more than
22 kilometres.
(12)
Concomitant with this right of innocent passage is a restriction on the
right of the coastal State to regulate shipping, such as the design of
ships in their TS, or charging for passage so as effectively to preclude
foreign ships. The coastal State may, however, adopt domestic standards
comparable to internationally recognized standards.
(13)
Even this economic right is limited in two ways: (i) the coastal State
must exercise this right with due regard to the right of other States
(e.g., a right of passage); and (ii) access to excess fishing resources
must be offered equitably to land-locked States within the region.
(14)
Still open, however, would be the question of grounded ice; that is, whether
ice that extends down to the seafloor and is fixed to that seafloor should
be considered land or water.
(15)
R.S.C. 1985, c. A-12.
(16)
See discussion below, under the heading "Dispute Resolution."
(17)
The equidistant point is the point that is an equal distance from the
closest baseline of each of the disputing States. Although in the abstract
an equidistant line gives an equitable result, especially for opposing
coasts, it can be greatly affected by nearby but minor geographic features
(such as a promontory close to the boundary) which deviate from the general
coastal geography.
(18)
The Continental Shelf Case (Lybia v. Malta), 3 June 1985, 24 I.L.M.
1189 (1985), p. 1198.
(19)
Encroachment occurs when the seaward projection from one State's coast
overlaps on the seaward projection of another State's coast. The non-encroachment
principle contends that boundaries should be drawn so as to minimize overlap.
(20)
Higher "degrees of overlap" occur when the frontal projection
of more than one geographically separated coast overlaps with the frontal
projection of another State. For instance, projections from both Nova
Scotia and Newfoundland overlap with the single projection from the French
islands of St. Pierre and Miquelon.
(21)
Theoretically, should a sector theory meet with international acceptance,
Canada and Russia would have a point-sized maritime boundary at the North
Pole.
(22)
A Chamber of the Court is some portion (but not all) of the Court, chosen
by the Court, sitting to hear a particular case or a particular class
of cases. The full ICJ contains 15 judges. The Chamber in the Gulf of
Maine case consisted of five judges. For a review of the operations of
the ICJ, see E.M. LeGresley, The World Court, Library of Parliament,
BP-17E, July 1992.
(23)
The Gulf of Maine Case, (Canada v. U.S.A.) Order Constituting the
Chamber, 21 I.L.M. 69 (1982), par. 1.
(24)
English Channel Arbitration, 18 I.L.M. 397 (1979).
(25)
Enclaving consists of allocating to one State territorial rights to waters
which exist entirely within the waters of another State. It is most likely
to occur when a small island is located adjacent to the coast of a larger
State located on a continent. By definition, enclaving can only result
when the enclaved State receives less marine territory than the adjacent
State (such as a narrower EEZ).
(26)
The representatives of both Canada and France on the tribunal dissented
with the opinion of the majority.
(27)
The partially offshore oil field at Prudhoe Bay, Alaska, by far the largest
oil field in the United States, is very close to the disputed area in
the Beaufort. The Prudhoe Bay field is an order of magnitude larger than
the Hibernia field.
(28)
Convention between Great Britain and Russia concerning the Limits of their
Respective Possessions on the North-West Coast of America and the Navigation
of the Pacific Ocean, 16 February 1825, 75 C.T.S. 95. Russia
held Alaska until it was ceded to the United States in 1867.
(29)
See D.R. Rothwell, Maritime Boundaries and Resource Development: Options
for the Beaufort Sea, Canadian Inst. of Resources Law, 1988.
(30)
The HS Fishing Convention, note 3. International Convention for the
High Seas Fisheries of the North Pacific Ocean, Tokyo, 9 May 1952,
in force 12 June 1953, T.I.A.S. 9242 236.
(31)
Sedentary species are those life forms which, at harvestable stage, are
either immobile or unable to move except when in constant physical contact
with the sea-bed or subsoil. Clams and crabs are sedentary, fish are not.
The status of lobsters is unclear, for although they move almost exclusively
by being in contact with the sea-bed, they can, for brief periods, move
in the water column near the sea-bed.
(32)
Notably, Principle 21 of the Stockholm Declaration, see note 37,
and associated text.
(33)
For example, the Canada/U.S.A. Treaty Concerning Pacific Salmon,
Ottawa, 28 January 1985, in force 18 March 1985.
(34)
"Manganese nodules," actually contain substantial amounts of
nickel and copper. Canada, as the world's major producer of nickel and
a substantial producer of copper, is likely to see the economics of running
land-based operations for the mining of nickel and copper affected once
DSB mining is under way.
(35)
See the chapter entitled "Sea-Bed Disputes Chamber," for a discussion
of dispute resolution involving DSB mining operations.
(36)
U.S.A. v. Canada (1941) 3 R.I.A.A. 1905.
(37)
U.N. Doc. A/Conf. 48/14, (1972), 11 I.L.M. 1416, adopted 16 June 1974.
(38)
LOSC, Article 1.(4).
(39)
LOSC, Article 211(2).
(40)
Examples would likely include, inter alia, the HS Convention,
supra, note 3; the 1969 International Convention Relating to
Intervention on the High Seas in Cases of Oil Pollution Casualties
(the Intervention Convention), 9 I.L.M. 25 (1969), neither signed or ratified
by Canada, in force 1972; the 1969 Convention For Oil Pollution Damage
(the Civil Liability Convention), 9 I.L.M. 45 (1970), acceded to by Canada
24 April 1989, in force 1975; the 1972 London Convention for the Prevention
of Marine Pollution by Dumping of Wastes at Sea (the London Dumping
Convention) 11 I.L.M. 1291 (1972), in force for Canada 13 November 1975;
and the 1973 International Convention for the Prevention of Pollution
from Ships, (the MARPOL Convention), 12 I.L.M. 1319 (1973), in force
1983, Canadian accession to take effect 16 February 1993. Less likely
included would be any of the regional treaties dealing with pollution
in the Mediterranean Sea, the North Sea or the Baltic Sea, or any bilateral
agreements.
(41)
Article 24 of the HS Convention says, in part, "[e]very State
shall draw up regulations to prevent pollution of the seas ..."
(42)
The term "jurisdiction" is used broadly here to include those
areas in which States have some exclusive rights, including the EEZ.
(43)
See note 15.
(44)
In the famous Home Missionary Society Claim (U.S.A. v. Great Britain
(1920), 7 Moore's Int'l L. Dig. 956) the tribunal held that governments
are not responsible for rebellious acts in violation of authority where
the State is not in breach of good faith or negligent in its attempts
to suppress the rebellious acts. From this decision one could conclude
that Canada should not be responsible to the United Kingdom for the 1970
detention of a British diplomat by the F.L.Q., provided Canada was not
negligent in its duty to protect diplomats in Canada or suppress terrorism
within Canada. More recently, however, the International Law Commission
seems to argue that even this defence should be trimmed back in cases
of the acts of State organs. Article 10 of the Draft Articles on State
Responsibility (2 Y.B.I.L.C. 90 (1979)) says that acts of State organs
are acts of the State even if the organ disobeys instructions or exceeds
its authority.
(45)
Chorzow Factory Case (Indemnity) (Merits), Germany v. Poland (1928),
17 P.C.I.J. Rep. Series A 29.
(46)
Flags of convenience provide hard currency earnings to those States, such
as Liberia and Panama, which offer them. In exchange for the registration
fees, the State assumes international responsibility for the ship's actions.
Typically, only very poor States offer themselves as States of convenience.
Considering that damages from some spills could be very great, flags of
convenience are a means whereby shippers may effectively seek to avoid
some avenues of redress against them.
(47)
Criminal Code, R.S.C. 1985, c. C-46, section 74(1). Criminal Code
section 75 also sets out the more loosely-defined offence of a "piratical
act," with penalties of up to 14 years' imprisonment.
(48)
LOSC, seventh preambular paragraph.
(49)
R.R. Churchill and A.V. Lowe, The Law of the Sea, 2nd ed., Manchester
University Press, Manchester, U.K., 1988, p. 307.
(50)
The LOSC defines a "warship" as a ship belonging to the armed
forces of a State, bearing distinguishing external marks, under the command
of a duly commissioned officer of the State and manned by an armed forces
crew.
(51)
U.N.S.C. Res. 665 of 25 August 1990 and U.N.S.C. Res. 670 of 25 September
1990.
(52)
See Article 33(1) of the Charter of the United Nations.
(53)
See note 20.
(54)
Annex VIII arbitration tribunals operate like other arbitrations under
the LOSC, with the addition of technical experts in each of the relevant
disciplines. They may function primarily as fact-finding bodies.
(55)
See, in particular, Articles 33 to 38 of the Charter.
(56)
See discussion of deep sea-bed mining and the "Area" under the
chapter titled "Deep Sea-Bed Minerals", p. 28.
(57)
United Nations Commission on International Trade Law Arbitration Rules,
U.N.G.A. Resolution 31/98 of 15 December 1976.
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