A Korean perspective

The adoption of the EEZ in the 1982 UNCLOS represents the culmination of an effort by some parts of the international community to separate “jurisdiction” over the natural resources in offshore waters from the “sovereignty” manifest in the territorial sea. It is clear that the EEZ is a zone that is neither territorial waters nor wholly high-seas. It is also a zone in which competencies are balanced between the need of coastal States to have sufficient authority to exploit and manage their economic resources and the need of all other States to retain high-seas navigation and communications freedoms and uses related to such freedoms. From South Korea's perspective, the EEZ is a sui generic zone in which military and intelligence activities are limited or not allowed without the consent of the coastal State. This is equally applicable in peace and war. Although several States stress that Article 58 of the 1982 UNCLOS permits such activities, increasing EW and IW capabilities may result in reinterpretation of certain provisions of the 1982 UNCLOS.     

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.     

Quantitative analysis for maritime delimitation: Reassessing the Bay of Bengal delimitation between Bangladesh and Myanmar

This article examines technical aspects of the maritime boundary dispute between Bangladesh and Myanmar (the ‘Bay of Bengal case’). This dispute was the first maritime delimitation determined by the International Tribunal for the Law of the Sea (ITLOS). The 2012 decision was also the first time that a maritime boundary for the seabed and subsoil of the Exclusive Economic Zone (EEZ) and the extended continental shelf (ECS) was determined by international adjudication. This was also therefore the first time that detailed technical quantification of seabed areas within the EEZ and ECS was needed for achieving an equitable division of these maritime zones in an international forum. Following review of the principles of maritime delimitation on which the ITLOS reached its determination, this article analyzes the legal status and delimitation effect of St. Martin's Island. Concerning the question of whether the legal regimes of the EEZ and continental shelf should be treated differently in a single delimitation line, although the ITLOS determined that the legal regimes should not be distinguished in the present case, a different approach is proposed for future cases. The article identifies how quantitative modelling can be used to achieve an equitable boundary and proposes a model to adjust provisional equidistance lines in accordance with the complex geophysical rules prescribed for the outer limits of the ECS in Article 76 of the United Nations Law of the Sea Convention (LOSC).     

孟加拉湾海洋划界案初步研究

孟加拉湾划界案是国际海洋法法庭审理的第一起海洋划界案。法庭对盂加拉国与缅甸的领海、专属经济区及大陆架的划界纠纷进行了裁决。分析研究了该案中法庭对这种大陆架案件的管辖权、当事国双方对这一区域的权利主张以及法庭划界采用的法律与划界的方法(等距离/相关情况方法)。     

国际海洋边界划定与目前状况

本文简要描述了国际海洋边界划定与目前状况，其内容包括海洋边界划定，边界划定与海洋法，世界海洋区域及美国、俄罗斯划界概况和专属经济区与大陆架等问题。文章呼呈我国应加速海洋立法过程，尽快划出专属经济区与大陆架边界。     

Innocent passage —past and present

The regime of innocent passage was developed to accommodate conflicting State interests in the territorial sea. Security and, more recently, environmental interests of coastal States, are opposed to the interests of maritime States in minimizing interference with navigation. This article discusses the regime of innocent passage in international law through the analysis of relevant treaty rules, including recent developments at IMO, and state practice. Specific attention is given to passage by warships and to coastal state jurisdiction over pollution by vessels in general and over ships carrying hazardous cargoes in particular.     

Ocean governance and maritime security in a placeful environment: The case of the European Union

Adopting a critical geopolitics approach that accounts for the mutually reinforcing link between geo-informed narratives and projection practices, this article proposes that ocean governance and maritime security have translated into states' and regional organisations' increasing control over maritime spaces. This leads to a certain territorialisation of the sea, not so much from a sovereignty and jurisdictional perspective but from a functional and normative perspective. The article starts by discussing the ways oceans have been represented and shows that they are far from a placeless void, both in practice and in discourse. The article then frames the analysis of ocean governance and maritime security within critical geopolitics, and elaborates on the case of the European Union's narrative and practice. It concludes on the mutually reinforcing link between discourse and practice in the field of ocean governance and maritime security in general, and on the consequences for the EU in particular. Scholars working on ocean governance and maritime security are encouraged to challenge the traditional view that oceans are placeless.     

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.     

Changing maritime scenarios. The geopolitical dimension of the EU Atlantic Strategy

The European Union׳s Integrated Maritime Policy (EU IMP) is being developed in the framework of a process that is reshaping maritime geographical scenarios and world geopolitics. This process is characterised by a change in States׳ territoriality resulting from their jurisdictional expansion. Over 60% of coastal States in the world possess territory with a more extensive maritime component than the terrestrial component which helps to reaffirm the fragmentation of maritime space and stresses the national vision of the oceans. Unlike the process of ocean space fragmentation that results from its nationalisation the EU Integrated Maritime Policy has a global and cooperative vision, which is particularly evident in the Atlantic Strategy. In this context, this article aims to: (i) provide a first estimate of the size and extent of the territorial changes resulting from jurisdictional claims available to date and their mapping; (ii) consider the case of the European Union as one of special significance with its express policy of maritime spatial projection. The conclusions point to a redefinition of the large territorial pieces of the global geopolitics puzzle and the emergence of a new Atlanticism associated with the EU׳s maritime 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.     

Ecological changes justifying termination or revision of EEZ and EFZ boundaries

Treaties, establishing boundaries to exclusive economic or exclusive fisheries zones, are generally based on environmental and economic circumstances. They delimit maritime entitlements, which are dependent upon coastal geography and they must, as a matter of law, represent equitable solutions. All perpetual treaties are based on the assumption that the circumstances leading to the conclusion of a treaty remain current as long as the treaty is enforceable. However, climate-related changes - such as sea level rise, coastal erosion, extreme weather events, ocean warming and ocean acidification - are altering the environmental circumstances that are essential to many maritime boundary agreements.An unforeseen fundamental change of circumstances can be invoked as grounds for terminating a treaty when the change relates to an essential basis of the treaty and radically transforms the obligations still to be performed. However, a fundamental change cannot justify termination of a treaty if it is caused by the party invoking it or if the treaty establishes a boundary. This rule is codified in Article 62 of the Vienna Convention on the Law of Treaties.Treaties delimiting sovereign rights to fisheries are not actual boundary treaties because the travaux préparatoires suggest that the boundary exclusion covers only boundaries delimiting territorial sovereignty. Furthermore, the reason for excluding boundary treaties - the need for permanence and stability - is less pertinent for maritime frontiers that fluctuate until settled through treaties or adjudication. Therefore, maritime boundaries can be subject to termination when their essential basis is affected by fundamental environmental changes.     

A decision-making system to maritime risk assessment

In this study, we propose a fuzzy approach in order to evaluate the maritime risk assessment applied to safety at sea and more particularly, the pollution prevention on the open sea. The work is based on the decision-making system, named MARISA, presented in Balmat et al. (2009). This system allowed defining a risk factor for each ship according to ship’s characteristics and weather conditions. In this novel paper, the proposed system takes into account the ship speed evolution and the ship position with respect to maritime shipping lanes is developed. To validate the method, we present an example of results with real data.     

自然延伸概念及相关地质要素在海域划界中的影响效力分析

The United Nations Convention on the Law of the Sea entitled the coastal States to naturally extend the continental shelf, which has caused more drastic disputes of maritime delimitation. This paper devotes to clarifying the significant concept of natural prolongation through an effect method combing the legal principles and technical analysis. Firstly, the classic samples with respect of the development of geological features are traced. Based on these samples, the classification with a model is proposed in order to affirm the concept''s significance under certain geomorphologic situations. Lastly, scientific analysis is used to present two potential prolongation situations and emphasize that all the technical analysis on maritime delimitation should be complied with international law and protect the common interest of all the mankind.     

The Portuguese maritime spatial plan

Numerous national governments and supranational organizations such as the OSPAR Commission, the European Union and the United Nations Educational, Scientific and Cultural Organization (UNESCO) have underlined the importance of maritime spatial planning (MSP) for balancing and solving conflicts between the needs of different sectors and conservation in the marine space. In the last decade, many maritime spatial plans have been developed around the world. The drivers to develop these plans and the approaches to find solutions for the particular problems differ significantly. The Portuguese national marine jurisdiction is one of the largest in Europe. For the continental part, a maritime spatial plan was initiated in 2009, and entered in 2010 in the final stage of approval. One of the driving forces for this MSP initiative was the claim to extend its continental shelf. The development process was led by a multidisciplinary team. Despite the challenges, the existing as well as potential future marine resources and activities were characterized, mapped and categorized. To overcome conflicts resulting from the many overlapping uses and to assure sustainable development of all sectors, a conflict analysis and evaluation of potential future uses were necessary. The applied zoning scheme represented an exercise of conflict solving and proved to be a powerful tool to promote discussion and participation among stakeholders. The successful implementation of Portuguese MSP will rely largely on its ability to provide efficient management, financial and legal mechanisms to achieve the integration of all strategies and spaces under the Portuguese maritime jurisdiction.     

Seafarers' access to jurisdictions over labour matters

The Maritime Labour Convention, 2006 outlines a framework for states to enforce jurisdiction over maritime labour matters, including the Flag State, Port State and Labour Supplying State. However, the Convention does not provide explicit guidance on jurisdiction determination. This article argues that seafarers should have the right to access the jurisdictions of member states, and that future amendment to the Convention should confirm this right. This paper first analyses current theories of maritime labour jurisdiction. Secondly, it conducts a comparative doctrinal analysis regarding adjudicative jurisdiction principles in common law and civil law systems. Thirdly, in three case studies involving concurrence jurisdictions of member states, this article finds that the authority of any single member state is not reliably accessible to seafarers, in particular when the state has no strong link with the seafarers. This article recommends that seafarers’ rights in the Convention to choose one jurisdiction from relevant member states should be confirmed in a future amendment.     

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.     

Ocean governance in a competitive world. The BRIC countries as emerging maritime powers—building new geopolitical scenarios

Owing to their style and economic impact, Brazil, Russia, India and China (the BRIC countries) are destined to become relevant actors in the new ocean governance. The following working hypothesis is sustained: the BRIC countries, due to the potential of their maritime territories, can be considered to be emerging maritime powers capable of displacing some of the historical maritime powers. This would also entail a shift of strategic maritime space towards the southern hemisphere. Other emerging maritime scenarios associated with the BRIC countries include the Russian Arctic, and the Indo-Pacific ocean belt, or “string of pearls”, as it is known. Factors such as competitiveness, maritime leadership and ocean governance are thus placed in a new economic and political context where they might be redefined and adapted to the circumstances of the BRIC block and other emerging countries, the majority of which are subject to demographic pressure and a high degree of poverty. The most relevant conclusions point to the emergence of a new type of neo-navalism, on the one hand—a BRIC version of traditional sea power and, on the other, a possible threat to the EU's Integrated Maritime Policy under pressure from strong competitiveness in a highly internationalised environment, forcing changes in its original approach with its distinct social profiles and commitment to latest generation rights.     

典型国际海洋划界案例相似性研究

简要研究了2012年国际法院最新判例——尼加拉瓜诉哥伦比亚领土和海洋划界案,总结了本案中国际法院关于海上争议岛屿主权判定把握的要点,国际法院受理该案件的理由和受理的内容。国际法院用三阶段方法确立尼加拉瓜和哥伦比亚海上边界。提出了维护我国海洋权益必须研究国际最新判例相似性的建议。     

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.     

Rights based fishing on the high seas: Is it possible?

The high seas fisheries are troubled by overcapacity and lax enforcement of management rules. The idea has emerged that these problems could be dealt with by property rights solutions such as ITQs. Such management tools only emerged after the 200-mile EEZ was established. This made it possible to apply the sovereign state's legislative, enforcement and judiciary apparatus to regulate fisheries. It is argued that without the EEZ such solutions would have been unlikely to emerge, and that a further extension of the EEZ is necessary to apply rights-based regulations to high seas fisheries. The current management regime of high seas fisheries lacks the necessary enforcement apparatus, which makes it necessary to apply trade sanctions, port measures and blacklisting to support regulations of high seas fisheries. It is argued that such measures are likely to be the second best, compared to further extending coastal state jurisdiction. Finally a bioeconomic model is applied to analyze potential gains from cooperation in high seas fisheries.