Towards a new legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

By: Christian Prip

PDF Version: Towards a new legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction

Meetings commented on:  Meetings towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction in March/April and August/September, 2016.

In a JCLOS blog post of 17 August 2015, Anna-Maria Hubert provided an overview of the UN General Assembly resolution (A/RES/69/292) to begin a process towards an internationally legally binding instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (ABNJ). This post examines how the process has progressed since then.

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Posted in Areas beyond national jurisdiction (ABNJ), Implementing agreements, Law of the Sea Convention, Marine biological diversity | 2 Comments

The due diligence obligations of the flag state with respect to its fishing vessels and the environment

By: Eva Romée van der Marel 

PDF Version: The due diligence obligations of the flag state with respect to its fishing vessels and the environment

Decision commented on: The Matter of the South China Sea Arbitration, Between the Republic of Philippines and The People’s Republic of China, Award on the Merits (SCSA) of 12 July 2016 (Registry, the Permanent Court of Arbitration).

Pursuant to Articles 286, 287 and Article 1 of Annex VII of the Convention on the Law of the Sea (LOSC), the Republic of Philippines instituted arbitral proceedings on 22 January 2013 concerning the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographical features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea.

The Philippines made fifteen submissions to the Tribunal, some of which are discussed in earlier posts on this Award. This post focuses on submission no. 9, and submissions no. 11 and no. 12B, in so far as they concern the due diligence obligations of the flag state with respect to its fishing vessels in relation to environmental obligations. The post first examines submission no. 9. In this part of the Award, the Tribunal confirms the obligation of China, as the flag state, to exercise due diligence with respect to Chinese vessels fishing in the Philippines’ exclusive economic zone (EEZ). This consolidates some of the ITLOS’ recent observations in its Advisory Opinion to the SRFC (SRFC) on the standard of responsibility expected from the flag state. It does not shed any light on what can constitute due diligence. The Tribunal considered the standard of due diligence in some more detail as part of submissions no. 11 and no. 12B, dealing specifically with the standard of due diligence required from China, as the flag state, with respect to Chinese vessels carrying out harmful fishing practices. This constitutes the second part of this post. The post concludes with some observations.

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Posted in Arbitration, China, Due Diligence, Due Regard, Environment, Exclusive ecnomic zone, Fisheries, Flag state responsibility, Law of the Sea Convention, Marine living resources, Philippines, South China Sea | Leave a comment

The South China Sea Award and the duty of “due regard” under the United Nations Law of the Sea Convention

By: Julia Gaunce

PDF Version: The South China Sea Award and the duty of “due regard” under the LOSC

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016

As recited in an earlier post by Nigel Bankes, the Annex VII Tribunal in the South China Sea Arbitration (SCSA) handed down its Award on the Merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China (many within the context of the so-called nine dash line), claims in relation to fishing activities by Chinese flagged vessels, as well as claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.

This post examines the Tribunal’s interpretation of the duty of “due regard” under the United Nations Law of the Sea Convention (LOSC) Article 58(3) in the course of its consideration of Submission No. 9 by the Philippines. That submission requested that the Tribunal declare that “China has unlawfully failed to prevent its nationals and vessels from exploiting the living resources in the exclusive economic zone of the Philippines” (at para 717). The obligation of “due regard” is one of the key mechanisms adopted in the LOSC to balance the potentially competing interests of coastal states and other uses of the new maritime zone, the exclusive economic zone, recognized by LOSC.

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The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: A Disquieting First

By: Alex G. Oude Elferink

PDF Version: The South China Sea Arbitration’s Interpretation of Article 121(3) of the LOSC: a Disquieting First

Decision commented on: The Matter of the South China Sea Arbitration, Between the Republic of Philippines and The People’s Republic of China, Award on the Merits (Award) of 12 July 2016 (Registry, the Permanent Court of Arbitration).

Introduction

The central issue in the arbitration instituted by the Philippines against China under the United Nations Convention on the Law of the Sea (LOSC) on 22 January 2013 no doubt concerned the question whether the Spratly Islands and Scarborough Reef have a continental shelf and an exclusive economic zone. If this were to be the case, and China’s sovereignty claim over the islands were to be vindicated, their potential continental shelf and exclusive economic zone entitlement would extend to most of the South China Sea. In this case, the continental shelf and the exclusive economic zone of the islands would have to be delimited with that of the other States surrounding the South China Sea and China would have undisputed water-column rights in the central part of the South China in accordance with Part V of the LOSC. This outcome would also have limited the availability of third party settlement under Part XV of the LOSC to resolve the law of the sea dimension of the South China Sea dispute. China has made a declaration excluding maritime boundary delimitation from compulsory dispute settlement mechanisms in accordance with article 298 of the Convention. On the other hand, if the Spratly Islands and Scarborough Reef do not have a continental shelf and exclusive economic zone, the area beyond their territorial sea would be part of the continental shelf and exclusive economic zones of the other States surrounding the South China Sea and the islands would only be entitled to a 12-nautical-mile territorial sea and a 24-nautical-mile contiguous zone.

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Posted in Arbitration, China, Continental shelf, Exclusive ecnomic zone, Islands, Philippines, Rocks, South China Sea, Spratly Islands | 2 Comments

The South China Sea Award and the Treatment of Traditional Fishing Rights within the Territorial Sea

By: Endalew Lijalem Enyew

PDF Version: The South China Sea Award and the Treatment of Traditional Fishing Rights within the Territorial Sea

Decision commented on: The Matter of the South China Sea Arbitration, Between the Republic of Philippines and The People’s Republic of China, Award on the Merits (SCSA) of 12 July 2016 (Registry, the Permanent Court of Arbitration).

Pursuant to Articles 286, 287 and Article 1 of Annex VII of the Convention on the Law of the Sea (LOSC), on 22 January 2013, the Republic of Philippines instituted arbitral proceedings concerning the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographical features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea. The Arbitral Tribunal (hereafter Tribunal) was fully constituted on 21 June 2013.

The Philippines made fifteen submissions to the Tribunal, of which submission No. 10 is the focus of this post. In this submission the Philippines requested the Tribunal to adjudge and declare that: “China has unlawfully prevented Philippine fishermen from pursuing their livelihoods by interfering with traditional fishing activities at Scarborough Shoal” (SCSA, para. 112(B)(10)). Since both parties claimed sovereignty over the Scarborough Shoal and the issue of sovereignty is not yet settled and could not be resolved by this arbitration, the Philippines submission No. 10 is based on the alternative premise that if China is sovereign over Scarborough Shoal, then China has failed to respect the traditional fishing rights of Philippine fishermen within the territorial sea of that Shoal. The Tribunal had earlier decided (at paras 554 – 556) that the Shoal was a rock within the meaning of Article 121 of LOSC and thus capable of generating a territorial sea but not an exclusive economic zone (EEZ) or a continental shelf. The Tribunal was careful to state (para. 793) that its conclusions were not predicated on the assumption that either Party had sovereignty over the Shoal. Hence, the Philippines’ submission No. 10 involves one important issue: the application of traditional fishing rights (TFRs) within the territorial sea of another State. The Tribunal unanimously decided that it had jurisdiction to rule on this submission “to the extent that the claimed rights and alleged interference occurred within the territorial sea of Scarborough Shoal” (Award on Jurisdiction and Admissibility, para. 407). This is because the submission related neither to sovereignty nor maritime delimitation; nor does it engage any limitation or exception under Articles 297 and 298 of the LOSC that may exclude the jurisdiction of the Tribunal (Award on Jurisdiction and Admissibility, paras. 407 & 413(g)).

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Posted in Archipelagic waters, Artisanal fishing, Exclusive ecnomic zone, Law of the Sea Convention, South China Sea, Territorial sea, Traditional Fishing Rights | Leave a comment

The South China Sea Award and the Vienna Convention on the Law of Treaties

JCLOS Blog Admin: This is the first of what we hope will be a series of different posts over the next few weeks on the Award on the Merits in the South China Sea Arbitration.

By: Nigel Bankes

PDF Version: The South China Sea Award and the Vienna Convention on the Law of Treaties

Decision Commented On: Award on the Merits of the Annex VII Tribunal, In the Matter of the South China Sea Arbitration, The Republic of the Philippines v The People’s Republic of China, 12 July 2016.

The Annex VII Tribunal in the South China Sea Arbitration handed down its decision on the merits in the dispute between the Philippines and China on 12 July 2016. The dispute between the parties involves China’s extensive maritime claims in the South China Sea (many within the context of China’s so-called nine dash line); claims in relation to fishing activities by Chinese flagged vessels; and claims in relation to China’s dredging and construction activities associated with reclamation activities on a series of maritime features in the South China Sea. The Tribunal ruled in favour of the Philippines on almost all issues in its 479 page unanimous and comprehensive decision.  There are already a number of posts on the Award; see, for example the useful first thoughts offered by Doug Guilfoyle on the blog of the European Journal of International Law.

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Posted in Arbitration, Good faith, Islands, Treaty Interpretation, Vienna Convention on the Law of Treaties | Leave a comment

The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

By: Nigel Bankes

PDF Version: The Annex VII Tribunal in The “Enrica Lexie” Incident Makes New Provisional Measures Order

Decision commented on: Annex VII Arbitral Tribunal, Order on Prescription of Provisional Measures in the “Enrica Lexie” Incident, Registry of the Permanent Court of Arbitration, 29 April 2016

The “Enrica Lexie” incident has already been the subject of an earlier post here in relation to the provisional measures order made by the International Tribunal for the Law of the Sea (ITLOS) pending the establishment of the Annex VII Tribunal in the matter. The facts of the matter and the unusual nature of ITLOS’s jurisdiction in cases of this sort are canvassed in that earlier post. The characterization of the dispute as summarized by the Annex Tribunal VII is as follows (at para 5):
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The December 2015 Washington Meeting on High Seas Fishing in the Central Arctic Ocean

By: Erik J. Molenaar

PDF Version: The December 2015 Washington Meeting on High Seas Fishing in the Central Arctic Ocean

Matter commented on: The first meeting of the so-called ‘Broader Process’ on  international regulation of high seas fishing in the central Arctic Ocean, held in Washington, D.C. between 1-3 December 2015.

Between 1-3 December 2015, delegations from the five Arctic Ocean coastal States – namely Canada, Denmark, Norway, the Russian Federation and the United States (the so-called ‘Arctic Five’) – as well as delegations from five other States and entities – namely China, the European Union (EU), Iceland, Japan and South Korea – met in Washington, D.C. for a meeting on high seas fishing in the central Arctic Ocean. The meeting was initiated, hosted and chaired by the United States. A Chairman’s Statement on the meeting (2015 Washington Chairman’s Statement) was released on 3 December. Continue reading

Posted in Arctic, Arctic Five, Central Arctic Ocean, Fisheries, International Fisheries Law | Leave a comment

ITLOS, the Enrica Lexie Incident and the prescription of provisional measures: saying that there is urgency does not make it so

By: Nigel Bankes

PDF Version: ITLOS, the Enrica Lexie Incident and the prescription of provisional measures, saying that there is urgency does not make it so

Decision commented on: ITLOS, The Enrica Lexie Incident: Order in respect of request for the prescription of provisional measures, Italy v India, 24 August 2015.

Article 290 of the Law of the Sea Convention of 1982 (LOSC) accords the International Tribunal of the Law of Sea (ITLOS) the authority to prescribe provisional measures in two different circumstances. Paragraph one authorizes ITLOS (along with the International Court of Justice, and any relevant international tribunal properly seized with an application) “to prescribe any provisional measures which it considers appropriate under the circumstances to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment, pending the final decision” provided that ITLOS, the Court or an arbitral tribunal (as the case may be) has prima facie jurisdiction, to consider the matter.

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UN General Assembly Resolution to develop a new legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

By: Anna-Maria Hubert

PDF Version: UN General Assembly Resolution to develop a new legally binding instrument on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction

Matter commented on: General Assembly Resolution – Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/RES/69/292  

A recent review article in Science predicts a major extinction event in the oceans if human impacts on the marine environment go unchecked because of the ‘profoundly deleterious impacts’ that our activities are having on marine life (Douglas J McCauley and others, ‘Marine defaunation: animal loss in the global ocean’ (2015) 347 Science 247). Pressures on marine ecosystems, including ecosystems beyond national jurisdiction, arise from pollution, overfishing, expanded shipping, marine mining, energy development, intensified aquaculture, as well as ocean warming and acidification. The authors of the article still hold out some hope: there remains a chance that we can reverse this trend if we engage in more effective management of the oceans and if we can slow climate change.

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Posted in Areas beyond national jurisdiction (ABNJ), Climate change, Implementing agreements, International Law Association, Marine biological diversity, UNICPOLOS | Leave a comment