A presentation by H.E. Mr. Gudmundur Eiriksson Ambassador of Iceland

1

INTRODUCTION •  Introduction

After 1982 Convention, history not as relevant Interpretation of treaties (travaux préparatoires) Negotiating methods International Criminal Court

•  Framework

1958 Conference / 1960 Conference 1958 Geneva Conventions on the Law of the Sea Convention on the Territorial Sea and the

Contiguous Zone Convention on the High Seas Convention on Fishing and Conservation of the

Living Resources of the High Seas Convention on the Continental Shelf

2

INTRODUCTION No agreement on the breadth of the territorial sea ‘Loose’ definition of the continental shelf - exploitability - Adjacency New pressures Navigation through straits (US/USSR) Fisheries (Iceland since 1948) North Sea Continental Shelf cases: natural prolongation Continental shelf ‘exploitability’ criterion no longer a limitation ‘Common Heritage of Mankind’ Arvind Pardo New International Economic Order Expropriations following breakup of colonial and neo colonial Regimes Moratorium Binding nature of UN resolutions?

3

INTRODUCTION •  Stage

Growth in UN Membership 1958 from 51 original Members to 82 1973 from 82 to 144 (all but FRG and GDR (1973)

developing Suspicion vis a vis international law, but new players

No other major negotiations Coming of age of (idealistic) ‘Charter generation’ Legal experts but with political savvy e.g. comprehensive compulsory dispute settlement

mechanism

Not the International Law Commission Too political? Too technical? ILC too slow? But International Criminal Court (ICC)??

4

INTRODUCTION �  Introductory negotiating process

Raised age old question: when to proceed past the preparatory stage Same in ICC

�  Conference convened

Consensus Procedure Large numbers But also automatic majority of developing (Group of 77) “Gentlemen’s Agreement” built into Rules of Procedures ‘All efforts to reach a consensus have been exhausted’ In fact, no substantive votes until very end (venue and site of ITLOS and ISBA)

5

INTRODUCTION Conference Structure Three Committees First Seabed Second “traditional” Third environment, scientific research, transfer

of technology President on settlement of disputes ‘Package deal’

6

INTRODUCTION

�  First attempts Traditional procedure Tabled proposals, introduced, discussed Subjects and Issues 1000 proposals Agreement to pass to Chairman’s texts ICC followed this model Role of Secretariat Special Office of the Law of the Sea General ‘speak for no one or for every one’

7

INTRODUCTION

�  Single negotiating texts Second Committee (and partly Third Committee) progression First Committee: flip flop

�  Group structures Interest Subject matter Non Conference Evensen Group

8

EGALITARIAN •  Amendment Procedure

First round: written amendments allowed Psychology Clean up later Working groups set up Outstanding Issue Groups (Negotiating Groups) Open ended membership Core membership Various permutations

•  Closure procedure No further amendments allowed

•  US reconsideration •  Adoption of 1982 Convention by vote •  Renegotiation of Part XI

Agreement relating to the Implementation of Part XI of the United Nations Convention on The Law of the Sea of 10 December 1982, 28 July 1994

9

INTERNAL WATERS •  Definition

8(1): landwards of baselines •  Legal status

2(1) Full territorial sovereignty No right of innocent passage Exception, 8(2)

•  Access to ports

No right under customary law Exception in distress Many treaties

•  Jurisdiction

Laws can be enforced General restraint except when interests affected

•  “Port State jurisdiction” in pollution prevention

10

BASELINES •  Functions

1958 Territorial Sea Convention - rules of customary international law UNCLOS, Articles 4-14 and 16 - mostly repetition, a few additions “Normal baseline” - Article 5 - low-water line along the coast Special rules for special geographical circumstances - straight baselines - bays - river mouths - harbour works - low-tide elevations - islands - reefs Combination of methods

11

A.Indentation is larger than semi-circle whose diameter is two closing lines, and is therefore a bay. Thus bay closing lines (which total less than 24 miles) are baselines B.Straight baseline on indented coast fringed with islands C.Indentation is smaller than area of semi-circle drawn on closing line. Therefore this is not a bay. D.An island generating its own territorial sea E.Baseline is a line drawn across the mouth of the river that flows directly into the sea. F.Harbor works forming part of the baseline G.Low tide elevations. One is less than 12 miles from the coast and therefore forms the baseline. The other is more than 12 miles and therefore does not affect the construction of the baseline. On the rest of the coast the baseline is the low – water mark.

CONSTRUCTION OF BASELINES

12

TERRITORIAL SEA �  Development

High seas (rfreedoms) versus territorial sea (sovereignty) Legal status Sovereignty subject to the Convntion (innocent passage), 2(3), 17

�  Superjacent air space No right of passage

�  Breadth cannonshot” rule 3 miles, 4 miles, 6 miles, 12 miles 200 miles

13

TERRITORIAL SEA �  Innocent passage

passage”, article 18 continuous and expedition distress Innocent, article 19 “not prejudicial to the peace, good order or security of the

coastal State” Detailed listin, but “any other activity not having a direct

bearing on passage” Submarines on the surface Suspension Temporarily Specified areas Essential for the protection of its security Without discrimination

14

TERRITORIAL SEA

•  Criminal jurisdiction Complete but “should” not except Consequences extend to coastal State Disturbs peace or good order of coastal State Assistance requested Drugs

•  Civil jurisdiction “should” not exercise civil jurisdiction

•  Warships Authorization? Prior notification?

15

CONTIGUOUS ZONE

•  Concept “Hovering”

•  Customs, fiscal, immigration or sanitary laws and regulations

within the territorial sea Prevent infringement Punish infringement

•  Archaeological and historical objects found at sea (article 303)

“presumed” to be an infringement •  24 nautical miles

16

STRAITS

•  Definition: “used for international navigation” •  The regime under customary law and the Territorial Sea Convention

Corfu Channel case Non-suspendable innocent passage

•  The regime under the Law of the Sea Convention - international straits - three exceptions - right of transit passage - comparison with right of innocent passage Overflight Non-suspendable Submarines Limited legislation

•  Special regimes Long-standing treaties Connecting high seas to territorial sea

17

ARCHIPELAGOS

•  Development of a special regime for archipelagos

- coastal archipelagos - mid-ocean archipelagos

•  Definition of an archipelago and an archipelagic state

- “archipelago” - “archipelagic state”

•  Archipelagic baselines

- ratio of land to water - length of lines - main islands included - other conditions

18

ARCHIPELAGOS

•  Archipelagic waters - sovereignty by the archipelagic state - rights of third states - rights under existing agreements - traditional fishing rights and other legitimate activities of the

immediately adjacent neighbouring states - existing submarine cables - navigational rights - right of innocent passage - “archipelagic sea lanes passage”

- essentially the same as transit passage through straits

19

THE EXCLUSIVE ECONOMIC ZONE I

•  From fishery zones to an exclusive economic zone - a recent development - reasons - the 1945 Truman Proclamation on the continental self Icelandic legislation 1948 - the South American initiative: 200-mile territorial sea - the 1958 Fishing on the High Seas Convention - failure of UNCLOS II in 1960 - 12-mile fishery zones - Iceland’s 50 miles exclusive fishery zone in 1972 - Fisheries Jurisdiction Case, 1974 - UNCLOS III, 1973-1982

20

THE EXCLUSIVE ECONOMIC ZONE I

- the Law of the Sea Convention 1982 Legal status sui generis High seas freedoms Fisheries Other economic resources Construction of artificial islands and installations Marine scientific research Pollution control General duty The rights and duties of other states - navigation - overflight - laying of submarine cables and pipelines - “other internationally lawful uses of the sea

related to those freedoms” - general duty

21

FISHERIES

•  Situation:

Over-exploitation / Overcapacity •  Difficulties:

Open resource Complicated biology Free-swimming (unlike land mammals) Over-fishing Over-capacity Multi-species management Maximum sustainable yield Optimum sustainable yield

Regulation measures:

Total allowable catch (TAC) Quotas (status, vessels) multi-species approach

22

FISHERIES

•  History Narrow zones Regional or sub-regional fisheries organizations

•  EEZ regime under UNCLOS •  Conservation and management of living resources

Duty to prevent over-exploitation Maximum sustainable yield, as qualified by relevant environmental

and economic factors Promotion of the objective of optimum utilization Determination of TAC Determination of own capacity Allocation of surplus to other Status Settlement of disputes: compulsory conciliation

•  Shared stocks

Most stocks are shared

23

FISHERIES

•  Factors: Historic catch Geographical extent Harvestable stage Investment in spawning grounds

Agreement by direct negotiations, through bilateral commissions or through Regional or subregional organizations •  High seas:

Paucity of regulations Canada, UNCED in Rio (stress environmental elements) Compliance Agreement Code of conduct of responsible fisheries Regional organizations ineffective Straddling Fish Stocks Agreement Take account of measures within All under some arrangement No new entrants except as allowed by the arrangements

24

FISHERIES

•  High seas: Straddling stocks Highly migratory species (Annex 1) Marine mammals Anadromous stocks Catadromous species Sedentary species Land-locked and geographically disadvantaged States “Iceland clause” Penalties for infringement of fisheries provisions

25

CONTINENTAL SHELF

1. Introduction 1.1. What is the continental shelf? 2. Historical background

2.1. The Truman Proclamation, 1945 2.2. The Geneva Convention on the Continental Shelf, 1958 2.3. The North Sea Continental Shelf Cases, 1969 2.4. The Third United Nations Conference on the Law of the Sea

3. Determination of the outer limits of the continental shelf

3.1. General definition of the continental shelf 3.2. Determination of the foot of the slope 3.2.1. The general rule 3.2.2. Evidence to the contrary 3.3. Determination of the outer edge of the continental margin 3.4. Maximum limits of the continental shelf 3.5. Seafloor highs 3.5.1. The deep ocean floor with its oceanic ridges (76:3) 3.5.2. Submarine ridges (76:6) 3.5.3. Submarine elevations (76:6)

26

CONTINENTAL SHELF

3.6. Commission on the Limits of the Continental Shelf 3.6.1. Functions 3.6.2. Composition 3.6.3. Interpretation of article 76, paragraph 8 3.6.4. Submissions in cases of unresolved land or maritime disputes 3.7. Submissions and recommendations 3.8. Workload of the CLCS 3.9. Submission of charts and other information to the UN and publication thereof

4. The legal status of the continental shelf

4.1. Rights of coastal States over the continental shelf 4.2. Resources of the continental shelf

4.3. Legal status of the superjacent waters and the rights of other States 4.4. Payments and contributions with respect to the exploitation of the continental shelf

beyond 200 M Case study: • Determination of the outer limits of the Icelandic continental shelf beyond 200 M • Bay of Bengal Case (Bangladesh/Myanmar)

27

28

CONTINENTAL SHELF MAP

ISLANDS

•  Definition, article 121 Naturally formed Above water at high tide

•  Entitled to all zones except 121(3)

“Rocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”

29

HIGHSEAS �  Introduction �  Definition �  Legal status �  Freedom of the high seas

�  Examples:

- freedom of navigation - freedom of fishing - freedom of laying and maintenance of submarine cables and pipelines - freedom of overflight - freedom to construct artificial islands and other installations - freedom of scientific research

30

HIGHSEAS �  Jurisdiction on the high seas

- general principle of exclusive flag state jurisdiction - exceptions: - piracy - unauthorized broadcasting - slave trade - drug trafficking - ships of uncertain nationality - stateless ships - hot pursuit and constructive presence

31

MARINE SCIENTIFIC RESEARCH �  Introduction

Scope of the competence to conduct marine scientific research the Law of the Sea Convention high seas territorial sea the exclusive economic zone and the continental shelf (article 246)

�  Resource Allocation / (Espionage)

Pure Research In normal circumstances, exclusively for peaceful

purposes and in order to increase scientific knowledge for the benefit of all mankind

32

MARINE SCIENTIFIC RESEARCH

Applied Research Withhold consent if direct significance for resources Implied Consent after 6 months, May not withhold consent on continental shelf beyond 200

nautical miles, except in areas set aside �  Conditions:

Notice Participation Results, including interpretation

33

THE INTERNATIONAL SEABED AREA

�  Introduction �  Law of the Sea Convention, Part XI

Unsuccessful, very few developing States �  Agreement relating to the Implementation of Part XI of the United Nations

Convention on the Law of the Sea of 10 December 1982, 28 July 1994

34

SETTLEMENT OF DISPUTES �  Settlement of disputes under general international law �  Settlement of disputes under the Law of the Sea Convention

- consensual settlement (Section 1 of Part XV) �  conciliation, compulsory conciliation

- the scope of compulsory settlement obligations (Section 2 of Part XV) - forums for compulsory dispute settlement - the International Tribunal for the Law of the Sea - the International Court of Justice - Annex VII arbitral tribunal - Annex VIII special arbitral tribunal - Arbitration if not same choice or no choice

35

SETTLEMENT OF DISPUTES -provisional measures -prompt release -limitations article 297 marine scientific research fisheries compulsory conciliation -optional exceptions delimitation compulsory conciliation military activities United Nations Security Council

�  General principles applicable in dispute settlement

-locus standi -treaty interpretation

36

DELIMITATION �  Criteria

1.Historical / Prior Conduct Latitude Sector line Long standing Estoppel Acquiescence Agreement

2. Configuration of the coast

3. Islands – 1/2 , no effect, enclaves

4. Length of coasts – Proportionality

5. Security

6. “Geography”, not geomorphology (North Sea / Libya)

37

DELIMITATION

�  Special/Relevant circumstances Islands, navigable channels

�  Single line! �  Single rule, not rule with exceptions

�  Irrelevant?

Socio-economic factors Differences in land territory? Natural resources in area? (Jan Mayen?)

38

THANK YOU

39