The relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

By: Nigel Bankes

PDF Version: The relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention

Case commented on: Maritime Delimitation in the Indian Ocean (Somalia v Kenya), Preliminary Objections, Judgment, 2 February 2017

Somalia instituted proceedings against Kenya in the International Court of Justice (ICJ or the Court) in August 2014 concerning a dispute in relation to “the establishment of the single maritime boundary between Somalia and Kenya in the Indian Ocean delimiting the territorial sea, exclusive economic zone . . . and continental shelf, including the continental shelf beyond 200 nautical miles” (Somalia’s Application). In so doing Somalia relied upon Optional Declarations made by both states pursuant to Article 36(2) of the Statute of the Court. Kenya raised a preliminary objection as to the jurisdiction of the Court and also argued that the Court should treat Somalia’s application as inadmissible. On 2 February 2017, the Court released its judgment in respect of these preliminary objections.

This post explains the basis of Kenya’s arguments in respect of the jurisdiction of the Court and the admissibility of Somalia’s claim. It reviews the Court’s Judgment and dissenting opinions and declarations and offers some concluding remarks focussing on the relationship between declarations under the optional clause of the Statute of the International Court of Justice and Part XV of the Law of the Sea Convention (LOSC).

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Posted in ICJ Optional Declaration, Law of the Sea Convention, Treaty Interpretation | Leave a comment

Sea-change in polar shipping: from Arctic to Antarctic Polar Code initiatives

By: Dorottya Bognar

PDF Version: Sea-change in polar shipping: from Arctic to Antarctic Polar Code initiatives

Meetings commented on: International Maritime Organisation, Maritime Safety Committee, 95th session, 3-12 June 2015; Maritime Safety Committee, 96th session, 11-20 May 2016; Maritime Safety Committee, 97th session, 21-25 November 2016; Sub-Committee on Ship Design and Construction, upcoming 4th session (submissions discussed here are filed under agenda item 13 “Biennial status report and provisional agenda for SDC 5”), 13-17 February 2017.

The International Maritime Organisation’s (IMO) mandatory Polar Code – or to use its official title: International Code for Ships Operating in Polar Waters (see Resolution MEPC.264(68), 15 May 2015) – has just entered into force with the turn of the New Year. However, this is not the end of the developments with regard to the regulation of shipping in Arctic and Antarctic waters. With experience gained from the operation of the Polar Code, it is expected that work will start to extend the coverage of the Code to additional vessel types and new issues. But who is going to take the leadership role in pushing this agenda? Is it going to be the Arctic states, who have been instrumental in the development and content of the Code? Or are we going to witness the emergence of new leaders? In this post, I argue that we should be looking to the Antarctic states for leadership in this new phase of the Polar Code.

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Posted in Antarctic, Arctic, International Maritime Organisation, Polar Code, Uncategorized | 1 Comment

Compulsory Conciliation under the Law of the Sea Convention: rich pickings in the Decision on Objections to Competence of the Timor-Leste\Australia Conciliation Commission

By: Nigel Bankes

PDF Version: Compulsory Conciliation under the Law of the Sea Convention: rich pickings in the Decision on Objections to Competence of the Timor-Leste\Australia Conciliation Commission

Decision commented on: Conciliation Commission, Between the Democratic Republic of Timor-Leste and the Commonwealth of Australia: Decision on Australia’s Objections to Competence, 19 September 2016 (Registry, the Permanent Court of Arbitration).

Background

Part XV of the Law of the Sea Convention (LOSC or Convention) provides, inter alia, for “compulsory conciliation” with respect to disputes concerning the interpretation or application of the Convention in a number of instances. This particular dispute concerns Articles 74, 83 and 298 of the Convention. Articles 74 and 83 are the well-known provisions dealing with the delimitation of the exclusive economic zone and the continental shelf where there are overlapping entitlements as between adjacent or opposite states. Timor-Leste and Australia are opposite states separated by the Timor Sea which is approximately 300 NM wide. On the same day that Timor-Leste regained its independence (20 May 2002) the two states concluded the Timor Sea Treaty which established a Joint Petroleum Development Area pending delimitation of the boundary. Further negotiations between the two states led to the adoption (2006) of the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). In separate arbitral proceedings Timor-Leste is contesting the validity of CMATS. The two states have yet to agree on a permanent maritime boundary.

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Posted in Conciliation, Continental shelf, Exclusive ecnomic zone | 3 Comments

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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