An Indian perspective

The 1982 UNCLOS does not curb military activities in foreign EEZs. By specifically prohibiting certain activities in the territorial sea, it follows that such activities are permissible outside of it. Thus, the “peaceful purposes” clause is only a policy goal. However, due to new threats and technological advances, the authority, capability and jurisdiction of coastal States is being enhanced. Thus guidelines are needed to avoid certain contradictions.     

Report of the Tokyo meeting and progress to date

Military and intelligence gathering activities will likely become more intensive, intrusive, controversial and dangerous. Regarding the regime covering these activities, there is general agreement that the exercise of the freedom of navigation and overflight in and above Exclusive Economic Zones (EEZs) should not interfere with the rights of the coastal State in the EEZ. But there is disagreement regarding interpretations of relevant 1982 UNCLOS provisions, the means to resolve the disagreements, or if there is even a need to do so. Increased dialogue between maritime powers and coastal States is necessary to reach a mutual understanding of key terms with a goal of developing some agreed voluntary guidelines for such activities and the means and manner of implementing them.     

Conclusions,regime building and the way forward

Military intelligence gathering activities in the EEZs are becoming more controversial and more dangerous due to increasing and changing demands for technical intelligence; robust weapons and electronic warfare; and widespread development of information warfare capabilities. There is agreement that freedom of navigation and overflight should not interfere with the coastal state's right to protect and manage its EEZ resources and environment. But there is considerable disagreement on the meaning of some key 1982 UNCLOS language, the means of resolving these disagreements, or whether there is a need to do so. Each alternative approach to resolving these disagreements has its advantages and disadvantages. Needed now is a common understanding of terminology and guidelines for military and intelligence gathering activities in the EEZ. What is being proposed is regime building, a process which has its own conditions for, and constraints to, success. Foremost among the conditions for success is the recognition of the necessity of co-operation, and agreement on its form such as the SUA Convention, or ocean management, which may have a spillover effect to enhanced multilateral security. Given the constraints, a loose blueprint for the way forward can be constructed in which the continuity of this informal dialogue plays a major role. Specific next steps include fact finding regarding previous incidents; production of a glossary of definitions of critical terms; categorization of activities in the EEZ as to which are allowed and not allowed; the manner of implementation of coastal states’ rights; the means and manner of enforcement of any agreed rules; and specific suggestions for policy.     

Sovereign rights and responsibilities: Applying public trust principles to the management of EEZ space and resources

Since the United States proclaimed its 200 nautical mile Exclusive Economic Zone in 1983, US agencies have given little attention to the need to develop effective management principles and strategies for the resources of this vast ocean area. Instead, they have relied upon existing programs and authorities to oversee the development of ocean energy and fisheries. This approach has been criticized by marine policy analysts because it perpetuates the existing, fragmented single-sector ocean regime characterized by inconsistent policies and endemic use conflicts.This paper proposes the adoption of certain principles deriving from the common law public trust doctrine in the management of EEZ resources and space. Historically, the public trust doctrine protected the public's rights and interests in nearshore resources and uses (commerce, navigation, and fishing). These traditional public rights were held by the crown or the government in trust for the people and could not be readily destroyed even though shorelands and coastal waters subject to the public trust might be conveyed into private ownership. In modern times the doctrine has been expanded in the United States to protect public rights in other uses and activities (e.g. conservation, scenic and ecological values, and preservation of open space and habitat) and extended geographically to apply to inland rivers, streams, and lakes.The public trust doctrine already applies in many states to the space, resources, and uses of the territorial sea. Because of the overlap of EEZ and territorial sea resources and uses, this paper considers the advantages of applying public trust principles and concepts to managing the EEZ. These principles include the need to preserve trust lands, waters, and resources for public use and benefit. The doctrine also provides a basis for distinguishing between, and ranking, public uses of trust resources, and imposes both substantive and procedural standards against which the conduct of the govermental trustees of trust, resources may be measured.The authors contrast the public trust doctrine with the ‘public trust’ deriving from the property clause of the US Constitution, and conclude that the broad discretion afforded federal officals under the latter is inconsistent with effective environmental management. Finally, the authors recommend a set of ‘presumptions’ derived from public trust principles that federal courts might follow to resolve serious EEZ space and resource-use conflicts.     

To accede or not to accede: An analysis of the current US position related to the United Nations law of the sea

The 1982 United Nations Convention on the Law of the Sea (hereafter “UNCLOS”) is one of the most significant legal instruments of modern times, though the United States (US) has yet to join the 167 nations that have signed the document. Until the twentieth century, freedom of the seas led to inequity among nations, violence, and environmental disasters. UNCLOS provides a peaceful legal structure to resolve border disputes and enforce anti-pollution regulations while maintaining freedom of navigation, safety at sea, and marine scientific research efforts. However, the legitimacy of UNCLOS continues to deteriorate as China acts unilaterally while its global economic reach expands. Additionally, the US cannot participate in international agreements to access ocean resources in the deep seabed or claim portions of the Arctic due to non-accession to UNCLOS. Such accession would protect global security as the balance of power otherwise becomes increasingly unstable. The US must also accede to ensure economic development for itself as well as the preservation of coastal resources upon which many nations rely. In conclusion, US non-accession will risk global security, economic development, and the US position of strength.     

A Chinese Perspective

Regarding the regime of military and intelligence gathering activities in the EEZ, China argues that the freedoms of navigation and overflight in the EEZ have certain restrictions including that the activity must be peaceful and not threaten to use force against the coastal State. This includes military surveys, military maneuvers, and military reconnaissance which are a form of battlefield preparation. These activities are also subject to due regard for the rights of the coastal State. China also argues that there are serious shortcomings regarding the regime of marine scientific research (MSR) in the EEZ and that marine surveys or military surveys carried out by MSR platforms require the consent of the coastal State.     

The contribution of fisheries access agreements to flag State responsibility

On 2 April 2015, the International Tribunal for the Law of the Sea (ITLOS) rendered an advisory opinion in which it held that Articles 58(3), 62(4), 94(2), 192 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) laid down a responsibility of flag States for fishing activities undertaken by private actors in the Exclusive Economic Zones (EEZs) of coastal States. In interpreting these provisions of UNCLOS, the ITLOS made reference to specific clauses in fisheries access agreements (FAAs) concluded by coastal States and flag States. This article examines in more detail the contribution of FAAs to the concept of flag State responsibility. It will first offer a brief discussion of the framework for fisheries access under national jurisdiction provided by UNCLOS and will then take a closer look at how certain provisions contained in FAAs have contributed –and could contribute in the future– to the concept of flag State responsibility in international fisheries law. The article concludes that FAAs have contributed significantly to the development of the concept of flag State responsibility for fishing activities in the past and may do so to a more limited extent in the future.     

Bio-logging as marine scientific research under the law of the sea: A commentary responding to James Kraska,Guillermo Ortuño Crespo,David W. Johnston,bio-logging of marine migratory species in the law of the sea,Marine Policy 51 (2015) 394–400

Rapid advances in attaching miniaturized electronic devices to marine animals for the purpose of learning more about their behavior and interaction with the marine environment, known as bio-logging, raise important and unsettled questions under the international law of the sea. Part XIII of the United Nations Convention on the Law of the Sea (UNCLOS) provides coastal states with the right to regulate and authorize marine scientific research in offshore areas under their sovereignty and jurisdiction. In their recent article published in this journal, James Kraska, Guillermo Ortuño, and David W. Johnston, assert that although bio-logging is a form of marine scientific research, Part XIII of UNCLOS does not apply to tagged animals that collect scientific information within a coastal state’s 200 mile exclusive economic zone, territorial sea, or internal waters. This commentary rejects Kraska et al.'s interpretation and provides evidence to support the claim that coastal state consent under Part XIII of UNCLOS may, under some circumstances, apply to bio-logging. In light of the immense scientific contributions that bio-logging research provide to global marine conservation efforts and the possible burdens that may be imposed on researchers if coastal states begin to assert their rights under UNCLOS, it is important that the international community engage in a robust and candid discussion of the issue and develop a consensus-based approach on how best to move forward.     

Fishery provisions of the ICNT: Part 2

In the second of two articles analysing the fishery provisions of the ICNT/Rev 2, the author concentrates on unresolved legal problems of the world's marine fisheries. Difficulties associated with MSY and OSY, TAC, surplus, coastal state control over the EEZ, high-seas fishing, anadromous species, land-locked and geographically disadvantaged states, and sedentary species are discussed, and an assessment is made of the ICNT's attempt to ensure a more equitable distribution of world fishery resources.     

The disappearing right to navigational freedom in the exclusive economic zone

Navigational freedoms have been a central part of the law of the sea for hundreds of years, but significant restrictions have been imposed recently upon these freedoms. Fishing vessels are subject to the most restraints and, to protect their fish catch, must now give notice whenever they travel through the exclusive economic zone (EEZ) of another country. Oil tankers, especially those with single hulls are also subject to a variety of restraints, and any ship with a dangerous cargo must conform to international, regional, and national regulations. Ships carrying ultrahazardous nuclear cargoes have been told by many countries to avoid their EEZs, and these ships have in fact picked routes designed to avoid most EEZs. Security concerns have increased dramatically during the past 2 years, and it has become almost commonplace for the major maritime and military powers to assert the right to stop and board merchant vessels to look for suspect cargoes in all parts of the oceans. Even military vessels, which have immunity from seizure, must nonetheless respect the many rules that have been established to protect the marine environment and the security of coastal populations. A new norm of customary international law appears to have emerged that allows coastal states to regulate navigation through their EEZ based on the nature of the ship and its cargo.It appears that it is no longer accurate to say that the freedom of navigation exists in the exclusive economic zone of other countries to the same extent that it exists on the high seas. The balance between navigation and other national interests continues to develop, and navigational freedoms appear to be disappearing during this evolutionary process.     

Guidelines for navigation and overflight in the exclusive economic zone

Several significant international incidents in Asian exclusive economic zones (EEZs) have underscored the ambiguity and lack of agreement regarding the regime governing foreign military activities in coastal States’ EEZs. A group of senior officials and analysts participated in their personal capacities in a dialogue from 2002–2005 that discussed the issues with a view to improving mutual understanding of the regime and finding areas of agreement. The Tokyo meeting in September 2005 reached consensus on some voluntary, non-binding guidelines that are presented here. The guidelines are based selectively on the 1982 UNCLOS, State practice and emerging ‘soft’ law, and attempt to balance the interests of coastal States and user States. It is hoped that they may serve as the basis for discussion and eventual agreements between governments.     

The arrest of ships in maritime zones beyond internal waters in Belgian maritime law

Opportunities may arise to arrest a ship in maritime zones beyond internal waters, e.g. in the territorial sea and the exclusive economic zone (EEZ). This paper examines the possibilities for arrest in those areas on the basis of jurisdiction ratione loci and ratione materiae. Under Belgian law the territorial sea is not part of the State's territory; accordingly, the Belgian Judicial Code does not provide for an attachment judge nor a bailiff to have jurisdiction in this area and a fortiori in the EEZ. The law of April 22, 1999 solved the problem of territorial jurisdiction in this respect. As far as a ship's arrest in the EEZ is concerned, it is not clear whether the United Nations Law of the Sea Convention (articles 73 and 220) combined with the requirement of a maritime claim, allows for an arrest at all.     

Sustaining marine life beyond boundaries: Options for an implementing agreement for marine biodiversity beyond national jurisdiction under the United Nations Convention on the Law of the Sea

For nearly a decade, governments have been discussing the need to improve efforts to conserve and sustainably use marine biodiversity in areas beyond national jurisdiction (ABNJ). Support for a new international agreement under the United Nations Convention on the Law of the Sea (UNCLOS) – an Implementing Agreement – on the conservation and sustainable use of marine biodiversity in ABNJ has been growing. In June 2012, at the United Nations Conference on Sustainable Development held in Rio de Janeiro, Brazil, States agreed to take a decision on the development of an international instrument under UNCLOS before the end of the 69th session of the United Nations General Assembly (UNGA), which runs from September 2014 to August 2015. In follow-up to this commitment, it was agreed to consider the “scope, parameters and feasibility” of this instrument. To inform these international discussions, this article highlights some potential options for the content of a new UNCLOS Implementing Agreement. It first reviews the history of UN discussions, and then elaborates on options to address key elements identified as priorities for States in 2011: marine genetic resources, including the sharing of benefits, area-based management tools, including marine protected areas, environmental impact assessments, capacity-building and the transfer of marine technology. It addresses cross-cutting issues such as the governing principles, institutional structure as well as on other critical points such as High Seas fishing and flag State responsibilities. The article concludes with suggestions on possible next steps in order to succeed in the negotiations for an agreement.     

Bio-logging of marine migratory species in the law of the sea

The use of advanced and emerging remote data-collection technologies, and in particular bio-logging of marine migratory species, raises fundamental questions about the scope of authority of coastal states to regulate marine scientific research in the waters under their jurisdiction. Bio-logging involves the attachment of devices to marine animals that collect and transmit data about their movements and aspects of the local marine environment, and is now routinely used by marine scientists to support conservation programs and augment oceanographic data collection. Tagged marine life, including seabirds, marine mammals, sea turtles and pelagic fishes, may interact unpredictably with the territorial seas and exclusive economic zones (EEZs) of numerous coastal states. This article explores the legal implications of bio-logging within the legal regime of marine scientific research in the law of the sea. Although bio-logging is a form of marine scientific research, when it is initiated outside a coastal state׳s jurisdiction it does not later fall within it, even if the tagged animals subsequently enters a coastal state׳s territorial sea or EEZ.     

Hydrographic surveying in the EEZ: differences and overlaps with marine scientific research

This paper reviews differences and overlaps between hydrographic surveying and marine scientific research in the exclusive economic zone (EEZ), including the concept of military surveying. It concludes that recent trends with technology, the utility of hydrographic data and State practice suggest that hydrographic surveying in the EEZ should be under the jurisdiction of the coastal State. Paradoxically arguments for military surveys in the EEZ being outside coastal State jurisdiction appear stronger than those for hydrographic surveying. The paper offers some guidelines related to the conduct of hydrographic surveying in the EEZ.     

Fisheries development in Vietnam: A case study in the exclusive economic zone

Pursuant to statement issued by the Government of Vietnam on 12 May 1977, on the territorial sea, the contiguous zone, the exclusive economic zone (EEZ) and the continental shelf of Vietnam, and according to the provisions of the LOS Convention, the EEZ of Vietnam extends principally up to 200 NM from the baseline, and the area of EEZ amounts to about one million square km including the Hoang Sa (Paracel) and Truong Sa (Spratly) Islands [The declaration of the Government of Vietnam on the territorial sea, contiguous zone, exclusive economic zone and continental shelf, Hanoi, 1977]. The establishment of EEZ has significantly changed circumstances for the fisheries sector in Vietnam.Recently, even though the adaptation of new techniques and technologies to the fisheries sector has been somewhat successful and resulted in the limitation of effective exploitation opportunities, sea fishing is still very important to the economy of Vietnam. In fact, fisheries development in Vietnam has the following important objectives, whether pursued in marine or fresh water: foreign exchange earnings; protein for local diets and feeds for live stock; provision of employment. However, a matter of concern is that the outdate fishing methods and uncontrolled fishing are damaging the marine environment and living resources. These problems have been recognized and courses of action have been formulated. A prerequisite condition for resolving this issue is to have a mechanism for synchronized policies which are guaranteed by appropriate macro management. The main purposes of this paper are a review of some aspects of fisheries sector development and management in Vietnam in the light of the new regime of the EEZ, represented in the LOS Convention. An important objective of the paper is the emphasis on the problem of policy-relevant research for fisheries sector management in the future.     

Military and intelligence gathering activities in the EEZ: definition of key terms

In the practice of States and in discussions relating to military and intelligence gathering activities in exclusive economic zones, there is a lack of common understanding with regard to some of the key terms in the 1982 UN Convention on the Law of the Sea. This chapter reviews the origin and use and interpretation of such terms as “peaceful uses,” “peaceful purpose,” “freedom of navigation and overflight,” “residual rights,” “other internationally lawful uses of the sea,” “installations and structures,” “due regard,” “normal mode,” hostile intent, and abuse of rights with a view to clarifying their agreed meaning and identifying any areas of disagreement.     

Human empowerment: Opportunities from ocean governance

Stimulus to reach the millennium goals of poverty abatement and empowerment, including education and employment, for the large part of the population in the coastal zone can be found in the resources and services of oceans and coasts; the required financial means, given political will and right priorities, can be provided through implementation of the related international conventions, in particular UNCLOS with the EEZ, the Common Heritage of Mankind and other provisions, Agenda 21 [1] of UNCED and the WSSD 2002 Ocean Targets; the motivation is the necessity to address over-exploitation, depletion and destruction of resources, habitats and coastal ecosystem services, global changes, as well as economic transformations and social conditions of poverty, employment and unequity. Achieving adequate management and protection of natural assets as ecosystems and their services, habitats, biodiversity requires that the socio-economic and human security needs of the coastal populations are met. One way to reach the goal is to enable them, representing about 50% of the global population and increasing, to fight poverty and cope with uncertainties and changing conditions of employment, environment and sustainability through proper governance of the coastal and ocean assets. This includes provision of education and knowledge as regards these assets and their proper uses. They include energy, water, food, transportation and trade, communication, coastal developments, tourism, recreation and ecosystem services, as well as the need to properly manage them.The present economic system cannot fully harmonize with the required governance, partly since the ecosystem resources and services are not internalised in the market-oriented system. This calls for a revised education and training system, more comprehensive than the present, taking into account the social, cultural and environmental requirements, and stressing the sustainable development paradigm. In order to achieve ocean governance and comprehensive human security an understanding of the system is needed. This is substantiated through the Decade of Education for Sustainable Development as well as the Millennium Ecosystem Assessment.The aim here is to discuss some of the issues in context of implementation of related ocean conventions and commitments, which include achieving ocean governance, and to elucidate opportunities given by oceans and coasts, also in generating employment and providing for basic human needs.     

The negotiations for a binding instrument on the conservation and sustainable use of marine biological diversity beyond national jurisdiction

The conservation of marine biological diversity has been identified as a crucial issue in need of legal regulation. The UNCLOS does not sufficiently address all issues relevant to viably conserve biological diversity. Legal developments concerning marine genetic resources, area-based management tools such as marine protected areas, environmental impact assessment and capacity building are being discussed as elements of a new implementing agreement. In particular, more precise legal rules concerning marine protected areas beyond national jurisdiction are needed to supplement the frame left by UNCLOS. As concerns the issue of access to genetic resources and the sharing of benefits the UNCLOS regime has gaps because the relevant activities had not been foreseen at the time of the convention's adoption. Divergent views exist as to whether the concept of the common heritage of mankind should be extended to genetic resources.     

Draft guidelines for military and intelligence gathering activities in the EEZ and their means and manner of implementation and enforcement

Specific voluntary guidelines are proposed for military and intelligence gathering activities in the EEZ. Views on the guidelines range from strong reservations regarding any restrictions on these activities to support for some restrictions. There is general support for the effort to promote mutual understanding and agreement on the rights and obligations of the maritime powers which do not want any rules and coastal States that want some predictability and protection against intimidation. The challenge is to find a practical way of handling these issues. Suggestions are provided regarding requisite specific assurances and the process for implementing and enforcing any such guidelines. State consent and State practice will play a significant role in this process.