Encyclopedia of public international law 11: LAW OF THE SEA· AIR AND SPACE

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW

11 LAW OF THE SEA AIR AND SPACE

EDITORIAL COMMIITEE

Rudolf Dolzer, Dr. iur., S.J.D. (Harvard) Robert E. Hollweg, J.D. (Univ. of Michigan) Steven Less, J.D. (Seton Hall Univ.), Dr. iur. (Heidelberg) Peter Macalister-Smith, B.A. (Kent), Ph.D. (Birmingham)

The articles in this Encyclopedia should be cited (until publication of the final edition) according to the following example: H.-J. Schlochauer, Arbitration, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 1 (1981), p. 13.

r

ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW PUBLISHED UNDER THE AUSPICES OF THE MAX PLANCK INSTITUTE FOR COMPARATIVE PUBLIC LAW AND INTERNATIONAL LAW UNDER THE DIRECTION OF RUDOLF BERNHARDT

ADVISORY BOARD RUDOLF L. BINDSCHEDLER . THOMAS BUERGENTHAL . KARL DOEHRING JOCHEN ABR. FROWEIN . GUNTHER JAENICKE, HERBERT MIEHSLER HERMANN MOSLER· FRITZ MUNCH· DANIEL P. O'CONNELL KARL JOSEF PARTSCH· PIERRE PESCATORE· HENRY G. SCHERMERS ULRICH SCHEUNER . HANS-JURGEN SCHLOCHAUER . MAX SORENSEN HELMUT STREBEL

11 LAW OF THE SEA· AIR AND SPACE

I

1989

NORTH-HOLLAND AMSTERDAM . NEW YORK . OXFORD . TOKYO

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Library of Congress Cataloglnll in Publication Data

Main entry under title: Encyclopedia of public international law. Issued in parts. Includes index. 1. International law - Dictionaries. I. Bernhardt, Rudolf, 1925II. Max-Planck-Institut fur auslandisches offentliches Recht und Volkerrecht (Heidelberg, Germany) JX1226.E5 341' .03 81-939 AACR2

ISBN: 0444 86242 0

© ELSEVIER SCIENCE

PUBLISHERS B.Y. -1989

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. Elsevier Science Publishers B.Y /Social Sciences and Humanities Section, P.O. Box 1991, 1000 BZ Amsterdam, The Netherlands. Special regulations for readers in the USA -- This publication has been registered with the Copyright Clearance Center Inc. (CCC), Salem, Massachusetts. Information can be obtained from the CCC about conditions under which photocopies of parts of this publication may be made in the USA. All other copyright questions, including photocopying outside of the USA, should be referred to the puhlisher. No responsibility is assumed by the Publisher for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions or ideas contained in the material herein. PRINTED IN THE NETHERLANDS

INTRODUCTORY NOTE The eleventh instalment of the Encyclopedia of Public International Law comprises 97 articles devoted to the law of the sea, air and space. Articles which might have been included in this volume but which relate to more than one subject area can be found in another appropriate instalment of the Encyclopedia. Thus, for example, the various articles concerned with air and marine warfare were included in Instalments 3 and 4 together with the other entries on the use of force. As a further example, decisions of international courts and tribunals relating to the law of the sea can be found in Instalment 2, but several recent cases decided since the publication of that instalment are included in the present volume. To facilitate the use of the Encyclopedia, two kinds of cross-references are used. Arrow-marked cross-references in the articles -themselves refer to other entries, and are generally inserted at the first relevant point in an article (e.g. The case was submitted to the ~ International Court of Justice). For other topics for which a separate entry might be expected but which are discussed elsewhere or under a heading which does not immediately suggest itself, the title of the topic appears in the alphabetical sequence of articles with a cross-reference to the article where it is discussed (e.g. INQUIRY see Fact-Finding and Inquiry). At the end of each instalment there is an updated list of articles for the entire set of instalments of the Encyclopedia. All articles which have already appeared have a number in brackets identifying the instalment in which they may be found. The manuscripts for this instalment were finalized in mid-1988.

----------------------------------

CONTENTS List of Entries for this Instalment (with Names of Authors) List of Abbreviations

.....

Articles in Alphabetical Order List of Articles for the Entire Encyclopedia

lX

Xlll

1 343

LIST OF ENTRIES Admiralty Law (Geoffrey Marston)

1

,

Air Law (Bin Cheng)

.....

5

Air Pollution (Alexandre Kiss)

12

Air Transport Agreements (Ludwig Weber)

15

Air Transport, Regulation of Liability (Michael Milde)

18

Aircraft (Michael Milde)

22

Airports (Peter Badura)

24

Airspace over Maritime Areas (Kay Hailbronner)

27

Amoco Cadiz Incident (Lothar Gundling)

31

Archipelagos (L.F.E. Goldie) . . . . . . .

33

Artificial Islands and Installations (Fritz Munch)

38

Astronauts (Bin Cheng)

40

Baselines (P.B. Beazley)

43

Bays and Gulfs (Leo J. Bouchez)

45

Cables, Submarine (Rainer Lagoni) .

48

Celestial Bodies (Sylvia Maureen Williams) .

51

Chicago Convention (Ludwig Weber) . . . .

54

Civil Aviation, Unlawful Interference with (Kay Hailbronner) .

57

Coastal Fisheries (Rudiger Wolfrum)

61

Collisions at Sea (LA. Shearer) . . .

63

Common Heritage of Mankind (Rudiger Wolfrum)

65

Conferences on the Law of the Sea (Renate Platzoder)

69

Conservation of Living Resources of the High Seas (Barbara Kwiatkowska)

76

Contiguous Zone (Frank Wooldridge) . .

78

Continental Shelf (Christos L. Rozakis) .

82

Continental Shelf Case (Libyan Arab Jamahiriya/Malta) (Karin Oellers-Frahm)

91

Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya) (Karin Oellers-Frahm)

94

Continental Shelf, Outer Limits (Ulf-Dieter Klemm) . . . . . . . . . . . . . .

99

Exclusive Economic Zone (Shigeru Oda) . . . . . . . .

102

Fisheries, International Regulation (Rudiger Wolfrum)

109

Fisheries, Sedentary (Bernd Riister)

113

. Fishery Commissions (Rudiger Wolfrum)

117

x

LIST OF ENTRIES

Fishery Zones and Limits (Jean Carroz)

121

Fishing Boats (Gerhard Hafner) . . . . .

124

Flags of Convenience (Jonathan S. Ignarski)

125

Flags of Vessels (David D. Caron)

.

127

Free Ports (Wolfgang Graf Vitzthum)

128

Geneva Convention and Statute on the International Regime of Maritime Ports (Stefan Oeter). . . . . . . . . . . . . . . .

130

Gulf of Maine Case (Karin Oellers-Frahm)

131

Heleanna Incident (Stefan Oeter)

135

High Seas (Tullio Treves) . . .

136

Hospital Ships (Michael Bothe)

141

Hot Pursuit (Frank Wooldridge) .

145

Hovering Acts (Geoffrey Marston)

148

Innocent Passage, Transit Passage (D.H.N. Johnson)

150

Internal Waters (Rainer Lagoni)

.

153

Internal Waters, Seagoing Vessels in (Rainer Lagoni)

155

International Sea-Bed Area (Wolfgang Graf Vitzthum)

160

Islands (D.W. Bowett)

.

165

Korean Air Lines Incident (1983) (Joseph H.H. Weiler) .

167

Land-Locked and Geographically Disadvantaged States (Lucius Caftisch)

169

Law of the Sea (Giinther Jaenicke) ..

174

Law of the Sea, History (E.D. Brown)

191

Lighthouses and Lightships (Matthias Hartwig) .

196

Liner Conferences (Stefan Oeter)

197

.

Marine Environment, Protection and Preservation (Jean J .A. Salmon)

200

Marine Research (Tullio Treves)

207

.

Maritime Archaeology (Lyndel V. Prott and P.J. O'Keefe)

210

Maritime Boundaries, Delimitation (Lucius Caftisch) . . . .

212

Maritime Boundary between Guinea and Guinea-Bissau Arbitration (A. Pillepich)

219

Maritime Jurisdiction (Geoffrey Marston) . . . .

221

Maritime Safety Regulations (Gerhard Breuer) .

224

Merchant Ships (Rainer Lagoni)

.....

228

Navigation, Freedom of (D.H.N. Johnson)

233

Navigation on Rivers and Canals (Bela Vitanyi)

235

LIST OF ENTRIES

xi

Nuclear Ships (Werner Bischof) . .

240

Oil Pollution Conventions (Michael Bothe)

245

...

249

Onassis Incident (Matthias Hartwig)

Outer Space Treaty (Nicolas Mateesco Matte)

251

Overflight (Ludwig Weber)

253

.

Pearl Fisheries (Peter Macalister-Smith)

256

Piracy (Alfred P. Rubin)

259

Ports (Peter Badura) . .

262

Postal Ships (Michael J. Hahn)

266

Pueblo Incident (Juliane Kokott)

268

Red Crusader Incident (Jorg Polakiewicz)

271

Salvage of Ships (Hans-Heinrich Noll) ..

272

Satellite Broadcasting (Jochen Abr. Frowein) .

273

Sea Lanes (Gerhard Breuer)

276

.

Sea-Bed and Subsoil (Wolfgang Graf Vitzthum)

277

Seal Fisheries (Clemens Lerche) . . . . . . .

284

Ships in Distress (Alfred-Maurice de Zayas)

287

Ships, Nationality and Status (David D. Caron)

289

Sovereignty over Airspace (Michael Milde) . . .

297

Space Activities, Responsibility and Liability for (Bin Cheng) .

299

Space Law (Nicolas Mateesco Matte) . . . . . . . . .

303

Spacecraft, Satellites and Space Objects (Bin Cheng)

309

State Aircraft (Kay Hailbronner) . . . . .

317

State Ships (Gil Carlos Rodriguez Iglesias)

320

Straits (D.H.N. Johnson)

323

Submarines (LA. Shearer)

326

Territorial Sea (Surya P. Sharma)

328

Torrey Canyon, The (Robert H. Stansfield)

333

United States v. California (Monterey Bay Case) (Markus Georg Schmidt)

335

Warning Zones at Sea (Gerhard Breuer)

336

Weather Modification (Ray J. Davis)

339

Whaling Regime (P. Birnie) . . . . .

340

LIST OF ABBREVIATIONS ACHR AFDI AJCL AJIL AnnIDI Annual Digest Australian YIL AVR BFSP BILC BYIL CahDroitEur CanYIL CJEC Clunet CMLR CMLRev ColJTransL Comecon CTS DeptStateBull DirInt EC ECHR ECOSOC ECR ECSC EEC EFTA ESA ETS EuR Euratom Eurocontrol FAO Fontes GAOR GATT GYIL Harvard ILJ IAEA lATA IBRD ICAO ICJ ICLQ

American Convention on Human Rights Annuaire Francais de Droit International American Journal of Comparative Law American Journal of International law Annuaire de l'Institut de Droit International Annual Digest and Reports of Public International Law Cases Australian Yearbook of International Law Archiv des Volkerrechts British and Foreign State Papers British International Law Cases (c. Parry, ed.) British Year Book of International Law Cahiers de Droit Europeen Canadian Yearbook of International Law Court of Justice of the European Communities Journal du Droit International Common Market Law Reports Common Market Law Review Columbia Journal of Transnational Law Council for Mutual Economic Aid Consolidated Treaty Series (c. Parry, ed.) Department of State Bulletin Diritto Internazionale European Community or European Communities European Convention on Human Rights Economic and Social Council of the United Nations Reports of the Court of Justice of the European Communities (European Court Reports) European Coal and Steel Community European Economic Community European Free Trade Association European Space Agency European Treaty Series Europa-Recht European Atomic Energy Community European Organization for the Safety of Air Navigation Food and Agriculture Organization of the United Nations Fontes Iuris Gentium General Assembly Official Records General Agreement on Tariffs and Trade German Yearbook of International Law Harvard International Law Journal International Atomic Energy Agency International Air Transport Association International Bank for Reconstruction and Development International Civil Aviation Organization International Court of Justice International and Comparative Law Quarterly ~

XIV

ICRC ICSID IDA IDI IFC ILA ILC ILM ILO ILR IMCO IMF IMO Indian JIL IntLawyer IntRel ItalYIL JIR LNTS LoN Martens R Martens SR Martens R2 Martens NR Martens NS Martens NRG Martens NRG2 Martens NRG3 NATO NedTIR NILR NordTIR OAS OAU OECD PCU PolishYIL ProcASIL RdC Res. RevBelge Rev Egypt RevHellen RGDIP RIAA RivDirInt SAYIL SchweizJIR SCOR SEATO

LIST OF ABBREVIAnONS

International Committee of the Red Cross International Centre for Settlement of Investment Disputes International Development Association Institut de Droit International International Finance Corporation International Law Association International Law Commission International Legal Materials International Labour Organisation International Law Reports Inter-Governmental Maritime Consultative Organization International Monetary Fund International Maritime Organization Indian Journal of International Law International Lawyer International Relations Italian Yearbook of International Law Jahrbuch fiir Internationales Recht League of Nations Treaty Series League of Nations Martens Recueil de Traites Martens Supplement au Recueil des principaux traites Martens Recueil de Traites, 2me ed. Martens Nouveau Recueil de Traites Martens Nouveau Supplement au Recueil de Traites Martens Nouveau Recueil General de Traites Martens Nouveau Recueil General de Traites, 2me Serie Martens Nouveau Recueil General de Traites, 3me Serie North Atlantic Treaty Organization Nedcrlands Tijdschrift voor Internationaal Recht Netherlands International Law Review Nordisk Tidsskrift for International Ret Organization of American States Organization of African Unity Organisation for Economic Co-operation and Development Permanent Court of International Justice Polish Yearbook of International Law Proceedings of the American Society of International Law Academic de Droit International, Recueil des Cours Resolution Revue BeIge de Droit International Revue Egyptienne de Droit International Revue Hellenique de Droit International Revue Generale de Droit International Public Reports of International Arbitral Awards Rivista di Diritto Internazionalc South African Yearbook of International Law Schweizerisches Jahrbuch fiir intemationales Recht Security Council Official Records South-East Asia Treaty Organization

LIST OF ABBREVIAnONS

xv

Strupp-Schlochauer, Strupp-Schlochauer, Worterbuch des Volkerrechts (2nd ed., 1960/62) Worterbuch

Supp. Texas ILJ UN UN Doc. UNCTAD UNEP UNESCO UNIDO UNITAR UNTS UPU UST WEU WHO WMO YILC ZaoRV

Supplement Texas International Law Journal United Nations United Nations Document United Nations Conference on Trade and Development United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations Industrial Development Organization United Nations Institute for Training and Research United Nations Treaty Series Universal Postal Union United States Treaties and Other International Agreements Western European Union World Health Organization World Meteorological Organization Yearbook of the International Law Commission Zeitschrift fiir auslandisches offentliches Recht und Volkerrecht

ADMIRALTY LAW

particular case between the King of Portugal and an Englishman in respe ct of goods taken by the

1. Notion. - 2. Historical Evolution in England and

Scotland. - 3. Historical Evolution in the United States . - 4 . Historical Evo lution in O ther Co untries . 5. The Content o f Admir alty Law . - 6. Particular

Features of Admiralty Law: (a) Types of actions. (b) Ge ne ral ave rage . (c) Salvage . (d) Prerogative rights.

(e) Prize. (f) Collision. - 7. The Relationship ofAdmiralty Law to International Law.

1. No/ion In its narrowest and historical se nse , ad miralty law is the body of law applied, and the procedure used, by the tribunals exercising the jurisdictio n of the High Co urt of Admiralty in England and by the tribunals exercising the equivalent jurisdiction in coun tries to which English law in this respect was ta ken . It sho uld be distingui shed both from genera l maritime law _with which it is ofte n co nfused , and from the .... law of the sea applicable amo ng sove rei g n States

(~

Maritime Juris-

dicti on) . 2. Historical E volution in England and Scotlan d Because o f its international flavour. maritime

law in the countries of Western Europe has evolved on different lines from o the r laws . Rom an maritime law , for example , drew for its content o n the mari time law of R hodes , In the Digest of Justinian it was sta ted in respe ct of the plunder of a shipwreck: "This mail er must be decided by the maritime law of the Rhodians . provided no law of o urs is opposed to it" ( Digest, 14.2.1 ). Th e Euro pea n trading citie s formulated their o wn co dificatio ns of maritime laws anti cus to ms. the

best know n of which arc t he Rules of O lero n , the laws of Wisby, the Tables of Amalfi and the Co nsolato del I\IMe ( .... Histor y of the Law of Nation s). Althou gh rOe term " Ad miral" had been introduced a t ~Pll

.urher time to describe the pe rson,

or person s. in charge of the fleets around the English coasts . the orig in of the Admiralty Court ca n be trac ed " w ith tolerable certainty " according to Marsde n to the period between lJ40 and 1357.

Up to that time maritime disputes . civil and criminal. were heard by the o rdina ry co urts in England . o r hy the C hancellor or the King's Co uncil. In 1357 appeared the first re ferenc e to the Admi ral act ing as an ad judicator, in the

latter from a Fre nch ship which had previously seized them . In 1360 the King of England granted to the Admiral of the fleets a power to hear and det erm ine pleas secundum legem maritimam and to appoint a de puty, probably to act as a judge. From this time the Admiral o r his deputy heard criminal cases, mostly .... piracy, and civil cases arising out of maritime contracts and torts and charter-parties. It was the " law merchant" or lex m ercatoria as this had evolved through the various maritime codes, and not the English common law, which the court of the Admiral applied. In the words of Gilmore and Black : "[Tjhe administering of maritime custo mar y law by maritime tribu nals was at the most a special aspect of th at concession fro m local territorial jurisdiction which allowed to trading people the competency 10 iron ou t their own troubles am ong themselves." The judicial activity of the Ad mir al led 10 a conflict with the courts administering the English common law . By two statutes in 1389 and 1391 (13 Ric. II , c. 5 and 15 Ric. II , c.3 ), the are as of competence of the conflicting tribunals were demarcated, the Admiral being excluded from hcaring causes arising "within the realm", though with a concurrent jurisdiction with the common law courts in respect of certain serious crim inal matters taking place on board ships in river mouths and estuaries within the realm . In recent times the demarcati on set out in the above statutes has been interpreted, rightly o r wrongly, as proof that the realm of England (and by analogy British territories o ther than E ngland) does not extend at common law to any part of wha t is now kn own as the .... territorial sea and .... continental shelf ( R . v. Keyn (the Franconia) (1876 ) 2 Ex .D . 63, as appli ed by the Supreme Co urt of the Uni ted States in .... United States v. California (Monterey Bay Case) 332 U.S . 19 (1947), the Supreme Court of Can ad a in Reference re Offshore Mineral Rights of Briti sh Columbia (1967) 65 D.L.R. (2d .) 353 an d Reference re Continental Shelf Offshore Newfoundland ( 1984) 5 D.L.R. (4th)385, and the High Court of Au stralia in New South Wale s v . The Commonwealth of Australia (1975 ) 137 C. L. R. 337). A further dispute arose ill England between the

2

ADMIRALTY LAW

Admiral's court and the comrron law courts, this time in respect of the procedural law applicable in criminal trials which in the case of the Admiral's court was the civil law and not the common law of England. By a statute of 1536 (28 H. 8, c.15) the trial of major crimes cornrr.itted at sea was transferred from the Admira 's court to Commissioners who were to try the cases as if they had been committed on land. A later statute of 1799 (39 Geo. 3, c. 37) extended this procedure to all crimes, and later still in 1834 (4 & 5 Will. 4, c. 36) and 1844 (7 & 8 Vic., c. 2) the trial of crimes committed on board British ships at sea was transferred from the Commissioners to the regular courts of common law. The effect of the above statutory intervention was to deprive the criminal law of the international influence which marked uther areas of maritime law. An exception to this was piracy which retains its ancient links with international practice although triable in the common law courts (see Re Piracy Jure Gentium (1934) A.c. 586). Yet a further conflict developed in England between the Admiral's court and the common law courts. In the early 17\.h century Chief Justice Coke, in particular, denied that the Admiral's court had any jurisdiction over contracts made on land, in England or abroad, even if they were to be . performed at sea. Thus by the fiction that such contracts were deemed to have been made and performed in Cheapside (a district of London) the common law courts assumed jurisdiction over them. By the late 17th century ~ he jurisdiction of the Admiral's court had narrow ed rnd was confined to torts committed on the -+ high seas, contracts made at sea and to be performed there, proceedings in rem on bottomry bonds made in foreign ~ ports, salvage suits for seamen's wages and suits over the droits of wre ck at sea. pirate goods and royal fishes. The inconvenience caused to litigants by this limited jurisdiction led belatedly to a statutory countermovement. By a number of statutes beginning in 1840 (3 & 4 Vic., c. (5) some of the jurisdiction lost was restored to the Admiral's court, including title to or ownership of ships, damage to cargo and damage caused by ships. The existence of the High Cour t of Admiralty as a separate tribunal ended following the Supreme Court of !udicature Acts of 1873 (36 & 37 Vic., c.

66) and 1875 (38 & 39 Vic., c. 77) whereby its jurisdiction was transferred to the Probate, Divorce and Admiralty Division of the newly-formed High Court of Justice. The Admiralty court had already lost, in 1859, the distinction of having its own practitioners, called advocates and proctors, who also practised in the ecclesiastical courts and were distinct from the practitioners in the common law courts. By the Administration of Justice Act 1970 (1970, c. 31) the High Court's Admiralty and prize jurisdiction were transferred to a tribunal called the Admiralty Court, part of the Queen's Bench Division of the High Court. In Scotland there was from, at the latest, the 15th century the office of Lord High Admiral of Scotland with a jurisdiction covering civil and criminal maritime causes and applying the law merchant. The court survived the Treaty of Union with England in 1707 but its functions were later transferred by statute to other Scottish tribunals and it ceased to exist in 1830.

3. Historical Evolution in the United States In the British North American colonies, as in British colonies elsewhere, Vice-Admiralty courts were established by the Crown. These tribunals, which were separate from the regular courts of the colonies, administered the civil jurisdiction of the High Court of Admiralty in England and some criminal jurisdiction, in particular statutory offences under revenue legislation. They used the procedure of the civil law and not the common law and in particular did not employ juries in criminal cases. Their power, particularly in revenue prosecutions. became a source of local protest. Art. III, para. 2 of the Constitution of the independent United States provided that the judicial power of the United States, i.e. the federal authority, extended "to all cases of admiralty and maritime jurisdiction". An Act of Congress of 1789 interpreted this broad power by providing that the federal courts "shall also have inclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it". This formulation has led to much judicial debate over the respective domains of federal and state laws in maritime matters (~ Federal States). A further question was whether the words "admiral-

3

ADMIRALTY LAW ty and maritime jurisdiction " meant the jurisdiction exercised by the High Court of Admiralty in England at the time of the independence of the United States, a jurisdiction which, as mentioned above, had been curtailed by the action of the common law courts. In practice , however, the United States courts have given the words a wide meaning as encompassing all maritime torts and injuries and all maritime contracts which relate to the navigation, business or commerce of the sea (De Lovio v. Boit, 7 Fed . Ca s. 418 ( 18 15 ) and Insurance Company v. Dunham , 78 U. S. 90 (1871» At the date of the Constitution it was doubtless '. assumed that there existed a body of ma ritime law to provide the substantive law to he a pplied by th e federal tribunals under the admiralty power. References to the lex m ercatoria are to be found in the early United States court decision s, but. as in the United Kingdom, this maritime law has been supplemented and replaced by statutory provisions .

4. Historical Evolution in Other Countries In countries which derive their legal system from England, such as Canada , Australia and New Zealand, and in some other former British possessions, such as South Africa, the jurisdiction of the Admiral was conferred on th e local courts by United Kingdom statute, in criminal matters by the Admiralty Offences (Colonial) Act 1849 ( 12 & 13 Vic., c. 96) and in civil matters by the Colonial Courts of Admiralty Act 1890 (53 & 54 Vic. , c. 27) . As these countries are no w ind ependent o f the United Kingdom it is inevitable that the jurisdiction will be increasingly affected by local legislation , e.g. the Admiralty A ct 1973 ( New Zealand) , the Crimes at Sea Act 1979' (A ustralia) and the Admiralty Jurisdiction Regulation Act 1983 (South Africa) .

in respect o f the possessi on or owne rship of a ship , a mortg age or charge on a ship, damage rec eived

by a ship o r done by a ship, loss of life or personal injury in conseq uence o f any defect in a ship, or of any wro ngful act , neglect o r default of the master , own ers, ch arterers or crew , loss o f o r da mage to any goods ca rr ied in a ship, salvage , towage, pilotage , goods o r materials supplied to a ship , general average , bottomry, and droits of Admiralty . Th e Act also preserves an y other Admiralty jurisdiction which th e High Co urt had , which would include, for example, priz e. One traditional head of Admira lty jur isd ictio n, wreck at sea , still falls under th e pro visio ns of th e Merchant Shipping Act 1894 (57 8: 58 Vict . , C. 60 ) ( ...... Collis ions at Sea). Gilmore and Black descri be the corresponding position in the Unite« Slates as follows: " T he resultant conception of our admiralty jurisdiction has been one of fairly complete coverage o f the primary operation al and service concerns o f th e shipping ind ust ry , with a few anomalous exceptions. " Issues still arise with regard to the extent of th e Admiralty jurisdiction conferred on the fed eral co urts . Thus in Foremost Insuran ce Co mpany v. Richardso n, 457 U .S. 668 ( 1982) , the Su preme Court held th at a collis ion be tween two pleasure boats o n a river was within the federal court's jurisdiction and not th at of the sta te court . It hJS long been clear that the Ad miralty jur isdicti on in the United States is not confined to tidal waters but exte nds to nav iga ble non-tidal waters (T he G enesee Chiefv. Fitzhu gh , 53 U .S. 443 ( ! 8~ 1 » ; in the Richardso n case It was decided t~a t it was uot con fined to com mercial maritime act ivity .

6. Panicutar

F£ al W~S

of Admiralty L a "

Certain feature s of .vdrniralty law nV d k it as distinct from o uter a"eas O f the law in the co unt ries in which it applies .

5. The Content of Admiralty Law

(a) Types o] ,c··,' ··..'5

The Admiralty jurisdiction of the High Court in England and the equivalent co urts in Scotland has been consolidated an d set out in a number of statutes since 1875, namely the Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo . 5, c. 49), the Administration of Justice Act 1956 (4 & 5 Eliz . 2, c. 46) and the Supreme Court Act 1981 ( ' 'l81, c. 54) . It now includes an y claim

ill p ersonc oj : against a particular pp.r",.or.. c r in rem against a part icular object, usua uy a ve, ,<e1. The action in rem is the distinctive. (iS ~)l~ri of admiralty procedure and is dc.Igned to secure the interest of the plain tiff ir- the :ur.gihle thing 1,".<) "/hich gave rise to his cause of act «.n. lh is tr.rerest is r ailed a mariti me lien and it is secured by arre sting the res A dmiralty

3 C1!0 fl S

arc of

H\" ,

tl ! lds:

4

ADMIRALTY LA\\-

and making it, or its sale value, available to satisfy the plaintiff's claim. In England, by the Administration of Justice Act 1956 (4 & 5 Eliz. 2, c. 46) an action in rem may be brought against a sister-ship to the one which gave rise to the cause of action. This innovation in the law was used following the stranding of the Liberian tanker -» Torrey Canyon off the English coast in H67 when the British Government arrested her siste r-ship by an Admiralty action in nom four months later in Singapore (~ Merchant Ships).

of the Admiral's jurisdiction. It evolved separately from the other powers of the Admiral and by 1781 Lord Mansfield could say that "the whole system of litigation and jurisprudence in the Prize Court is peculiar to itself: it is no more like the court of Admiralty than it is to any court in Westminster Hall". Prize jurisdiction in England was put on a statutory basis by the Naval Prize Act 1864 (27 & 28 Viet, c. 25) and is presently governed by the provisions of the Supreme Court Act 1981 like the rest of the Admiralty jurisdiction (~ Prize Law).

( b) General average

(f) Collision

General average is a concept of great antiquity in admiralty law, and was included in most of the early codes. When one part of a maritime venture is sacrificed voluntarily and reasonably in order to save the other parts, the owners of the property thus saved must bear proportionate shares of the loss sustained by the owner of the cargo sacrificed. The application of general average is usually governed by the York-Antwerp Rules, a voluntary international code first drawn lp in 1864 and 1877 and incorporated into bills of lading and charterparties.

A provision for aistributing the loss caused to ships and cargoes in the case of collisions was included in most of the maritime codes from the time 01 the Rules of Oleron. In the United Kingdom the Maritime Conventions Act 1911 (1 & 2 Gco. c:; c. 57), enacted to implement the Brussels Collision Convention of 1910 (CfS, Vol. 212 (1910) p. 178) abolished the earlier existing rule of equal division of loss and established a new rule whereby loss should be allocated according to the degree of fault of each vessel; only if different degrees of fault cannot be established is liability to be apportioned equally. In some countries which have not adopted the collision conventions, such as the United States, the total damages are equally divided if both vessels are to blame, regardless of their respective degrees of fault. In some other countries, if both vessels are to blame each bears his own loss.

(c) Salvage

The law of salvage applies when a stranger to the maritime venture voluntarily saves property from loss or damage from perils of the sea. He becomes thereupon entitled to a reward for his exertions and has a maritime lien on the salvaged property for such reward (~ Salvage of Ships).

(d) Prerogative rights In ancient times the Kings of England claimed under their prerogative certain property found upon the sea or stranded Or) the shore. This comprised royal fish, i.e. wh lies and sturgeon, unclaimed flotsam, jetsam and lagan, and derelict found at sea, ships and goods (If the enemy found in English ports and goods retaken from pirates. By royal grant these rights wer: transferred to the Lord High Admiral as droits of admiralty .ind disputes over them were hear j in the Admiral's court.

(e) Prize The adjudication of the nropcrty of a belligerent taken at sea, i.e. pnze, \Va~ one of the oldest heads

7. The Relationship of Admiralty Law to International Law As seen above, Admiralty law is not international law in the sense of law applicable between ~ subjects of international law , mostly States. In the United Kingdom the absorption of the old High Court of Admiralty into the regular court systems of England and Scotland has resulted in Admiralty law losing to a large extent the distinct international flavour it may once have had. Lord Diplock. sitting in the ultimate appeal tribunal of the United Kingdom, the House of Lords, has stated: "Outside the special field of 'prize' in times of hostilities there is no 'maritime law of the world', as distinct from the internal municipal laws of its constituent sovereign states, that is capable of giving rise to rights or liabilities enforceable in

5

AIR LAW

English Courts" (The Tojo Maru (1972) A.C. 242, 290). Prize law, however, retains its special international law basis. In one case Lord Parker stated that "the law which the Prize Court is to administer is not the national or, as it is sometimes called, the municipal law, but the law of nations in other words, international law" (The Zamora (1916) 2 A.c. 77, 91). A similar movement has taken place in the United States, where, as in the United Kingdom. statute has replaced many of the older traditional admiralty doctrines. The historical significance of the old Admiralty law is still appreciated, however, and in one case, for example, the Supreme Court stated: "Courts of this and other commercial nations have generally deferred to a nonnational or international maritime law of impressive maturity and universality. It has the force of law, not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations" (Lauritzen v. Larsen, 345 U.S. 571, 581-582 (1953)). Admiralty law today has a relationship with public international law through the incorporation into municipal law of international maritime conventions, particularly those arising from the deliberations of the Cornite Maritime International (CMI). This body, composed of the maritime law associations of over 30 States, formulates draft rules which the Belgian Government then makes the subject of a diplomatic conference out of which an international convention may emerge. Among the conventions thus concluded are the International Convention for the Unification of Certain Rules relating to the Limitation of the Liability of Owners of Seagoing Ships of October 10, 1957 (UKTS 52 (1968» and its amending Protocol of December 21, 1979 (not yet in force), the Convention on Limitation of Liability for Maritime Claims of November 19, 1976 (ILM, Vol. 16 (1977) p. 606), the International Convention for the Unification of Certain Rules of Law relating to Maritime Liens and Mortgages of April 10, 1926 (LNTS, Vol. 120 (1931) p. 187) and its Protocol of May 27, 1967 (not yet in force), the Conventions for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea of

September 23, 1910 (CTS, Vol. 212 (1910) p. 187 and May 27,1967 (UKTS 22 (1972)), the International Convention for the Unification of Certain Rules relating to the Arrest of Seagoing Ships of May 10, 1952 (UNTS, Vol. 439 (1952) p. 193) and the International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision of May 10, 1952 (UNTS, Vol. 439 (1952) p.217). In addition to its work in elaborating these and other texts, the CMI has also been active in making regular amendments to the YorkAntwerp Rules (~ Unification and Harmonization of Laws). The Black Book of the Admiralty, 4 vols. (1871-1876). R.G. MARSDEN, Select Pleas In the Court of Admiralty, 2 vols. (1892-1897). E.S. ROSCOE, The High Court of Admiralty (1927). E. SANDBORN, Origins of the Early English Maritime and Commercial Law (1930). E.S.ROSCOE, Studies in the History of Admiralty and the Prize Courts (2nd ed. 1932). U UBflELOHDE, The Vice-Admiralty Courts and the American Revolution (1960). G GILMORE and C.LBLACK, The Law of Admiralty (2nd ed. 1975). T. TWISS.

GEOFFREY MARSTON

AERIAL INTRUSION see Sovereignty over Airspace

Overflight;

AERIAL PIRACY see Civil Aviation, Unlawful Interference with

AIR LAW 1. Notion. - 2. History. - 3. The Legal and Institutional Framework: (a) International Civil Aviation Organization. (b) Legal framework: (i) Airspace sovereignty. (ii) Nationality of aircraft. (iii) Conditions to be fulfilled with respect to aircraft and facilitation ',f navigation. (iv) International standardization. (v) Pacific settlement of disputes. (c) The right to fly. - 4. The Legal Regime of Airspace. - 5. The Right to Operate COl tmercial Flights. - 6. The Legal Status of Aircraft. - ./ Aviation-Related Crimes and Offences. - 8. Internatioual Carriage by Air. - 9. Surface Damage and Other Sources of Liability. - 10. Current Issues and Prospective.

1. Notion

The term air law or international air law, in its current usage, refers essentially to that part of

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AIR LAW

international law which relates to civil aviation, including international institutions concerned with air law. Aviation in the present context refers to the operation and use of ~ aircraft, in all their aspects. Internationally, a ho vercraft is not considered to be an aircraft. Air law at present does not deal, therefore, with such issues as ~ air pollution, ~ telecommunications, military aviation (which falls under the laws of ~ war), or sometimes even ~ State aircraft as such (defined in the 1944 ~ Chicago Convention on International Civil Aviation (UNTS, Vol. 15, p. 295) a, "aircraft used in military, customs and police services" (Art. 3(b except to the extent to which these topics relate to civil aviation. The terms aviation law, aeronautical law, civil aviation law or civil aeronautics law may well all be used, and are sometimes used, but air law is the generally accepted term. The expressions aeronautics or aeronautical regulations often connote the technical aspects of aerial navigation, whilst the term air transport is mostly related to air services, and carriage by air denotes the complex of the air carrier's activities. Normatively, international air law includes rules of general or ~ customary international law, as well as ~ treaties, whether oilateral or multilateral (~ Treaties, Multilateral), dealing with civil aviation, together with their underlying premises and the standards and patterns resulting from their provisions. International air law, especially through treaties and institutions created by them, often reaches out into areas of domestic civil aviation and addresses problems of domestic air laws. In fact, except for' countries of continental dimensions, because of the essentially international character of civil aviation, there is great need for, and much has been done to achieve, international coordination and standardization of domestic air laws. This applies especially to technical rules and regulations, but extends also to rules on liabilities and, increasingly, to many other fields.

The current overall legal framework for international civil aviation is provided by the 1944 Chicago Convention on International Civil Aviation and by general international law. This Convention. moreover, furnishes international civil aviation with its paramount institutional superstructure. The Convention may be divided into several parts.

2. History

(a) International Civil A viation Organization

Since its very beginning, aviation has been subject to the general law, whether domestic or international. The first piece of legislation directed specifically at aviation, inasmuch as balloons are also aircraft, is a decree issued by the Paris Prefecture of Police in 1784, the year after the

The Convention is first of all the constitution of the International Civil Aviation Organization, a ~ United Nations Specialized Agency, designed above all to foster the safe and orderly development of international civil aviation, membership in which is now practically universal. Its functions

»,

Montgolfier brothers successfully demonstrated their invention of the air balloon. This decree forbade the release of balloons without a special permit. The first multilateral treaty, albeit in the field of military aviation, is Hague Declaration I (1899) on the use of balloons and similar devices as weapons of war (BFSP, Vol. 91, p. 1011; ~ Hague Peace Conferences of 1899 and 1907). The first heavier-than-air aircraft flew in 1903. In 1910, an international conference on aerial navigation was held, but no agreement was reached. 1913 saw the first bilateral agreement on international air services, i.e. that between France and Germany (Martens NRG3, Vol. 7, p.643). The first major step toward international collaboration in this area was the 1919 Paris Convention on the Regulation of Aerial Navigation (LNTS, Vol. 11, p. 174), which set up the International Commission on Aerial Navigation, the prototype for the present ~ International Civil Aviation Organization (ICAO). A number of multilateral as well as bilateral treaties were concluded during the inter-war period, including the 1929 Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air (LNTS, Vol. 137, p. 11), which remains in force today. The Warsaw Convention is the most important and enduring legacy of the inter-war Cornite international technique d'experts juridiques aeriens (CITElA - International Technical Committee of Experts in Air Law) (see Wilberforce (1947». 3. The Legal and Institutional Framework

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AIR LAW

embrace all aspects of international civil aviation. The main organs are the plenary Assembly (with powers primarily to pass the budget, elect the Council, create subsidiary organs and adopt amendments to the Chicago Convention for adoption by member States) and the permanently represented 33-State Council which discharges most functions of the organization with the assistance of various subsidiary organs, including the Secretariat and the plenary Legal Committee, which has taken over the work of CITEJA. Mention may be made in this context of the fact that there are numerous other institutions concerned or connected with international civil aviation, both intergovernmental, such as the international organization for a maritime satellite system (~Inmarsat), and non-intergovernmental (~ Non-Governmental Organizations), such as the ~ International Air Transport Association (lATA). There are also regional international institutions, some related to ICAO, like the ~ European Civil Aviation Conference (see Cheng (1962), pp. 56-61), and some not, such as the - ? European Organization for the Safety of Air Navigation (Eurocontrol).

(b) Legal framework The Chicago Convention, either by reaffirming existing principles of general international law or by laying down new ones, provides a legal framework for international civil aviation. Five main principles may be mentioned.

(i) Airspace sovereignty Art. 1 reaffirms the rule of general international law that "every State has complete and exclusive sovereignty over the airspace above its territory". The principle of ~ sovereignty over airspace is the point of departure for regulating most problems of international air law, for example, entry and departure of aircraft, crew, passengers and cargo, and jurisdiction over them for regulatory purposes or for the application and enforcement of both general criminal law and special rules for the protection of international civil aviation.

(ii) Nationality of aircraft The Chicago Convention basically requires every aircraft that wishes to benefit from the terms of the Convention to be registered with a contract-

ing State, and not more than one State, the nationality of which it will then have (Arts. 17 and 18). The ICAO Council is, however, prepared, under Art. 77 of the Convention, to authorize, subject to safeguards to be approved by it in each individual case, joint registration with several States and, more controversially, international registration with an intergovernmental organization. The possession of a nationality by civil aircraft enables benefits and duties under international law to be transmitted, through the respective national State, to the aircraft, to all persons and objects on board, and to their operators and owners, as well as to others concerned.

~

(iii) Conditions to be fulfilled with respect to aircraft and facilitation of navigation In addition, the Convention in Chap. V prescribes various other conditions which must be fulfilled by aircraft of the contracting States wishing to engage in international navigation. At the same time, the Convention lays down rules designed to facilitate and expedite navigation by aircraft between the territories of the contracting States (Chap. IV). These rules are further developed by ICAO, particularly in Annex 9 to the Chicago Convention, entitled Facilitation.

(iv) International standardization The Chicago Convention, furthermore, provides ICAO with rules and procedures designed to promote international standardization of regulatory and other measures affecting international civil aviation, especially air navigation. The primary, though by no means the sole, mechanism to this end is the adoption by the Council of "international standards and recommended practices" in various fields, each set forth in a document designated for convenience as an Annex to the Chicago Convention (Chaps. VI and X:iq. There are currently 18 Annexes, which are continuously being up-dated, covering subjects ra 19ing from personnel licensing and rules of the air to security and transport of dangerous goods by air. This power of ICAO merits being described as quasi-legislative, inasmuch as every member State has a duty to notify the organization immediately whenever it is not going to comply with any of the provisions designated as "standards", as opposed to mere "recommended practices" (Art. 38;

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AIR LAW

- International Legislation; Harmonization of Laws).

Unification and

(v) Pacific settlement of disputes Finally, the Chicago Convention firmly establishes in Chap. XVIII the principle of - peaceful settlement of disputes, and confers on the ICAO Council compulsory jurisdiction in disputes between member States relating to the interpretation or application of the Convention (Art. 84), with the possibility of an appeal, in principle, to the International Court of Justice (lCJ) (Art. 85; - Jurisdiction of the ICAO Council Case). Since the ICAO Council is composed of States rather than individuals who have to be qualified jurists, doubt has sometimes been cast on the judicial character of its proceedings under Art. 84. Nevertheless, since decisions of the Council are appealable to the ICJ, which can only act in a judicial capacity, this doubt does not appear justified.

(c) The right to fly The 1944 Chicago Conference had intended to provide rights for aircraft of the contracting States of the Convention, whether engaged in scheduled air services or in non-scheduled flights, to fly into one another's territories. Some compromise was reached for non-scheduled flights in Art. 5, which in practice, however, has beer honoured more in its breach than its observance. Art. 6 manifests failure to reach agreement on a multilateral exchange of rights for scheduled international air services by providing that they can be operated into a contracting State's territory only with the latter's authorization. The privilege covered by such authoriiation is often divided, in the jargon of the industry, into a number of so-called "freedoms of the air". The first two such "freedoms" consist of "transit right;", namely the right of transit without landing, and that of transit with stops only for technical purposes. The remaining "freedoms" (originally three, r ow more) consist in rights finely split into an ever-increasing number of strands to carry international' raffic (i.e., passengers, baggage or cargo) to or from, and in some instances (known as - caborage) also domestic traffic between points within, the territory of the State granting these rights (-. Transit of Goods over Foreign Territory). The Chicago Conference, having failed to reach agreement on a multilateral

exchange, except in a separate International Air Transport Agreement (UNTS, Vol. 171, p. 387) that had little chance of wide acceptance, left the exchange of traffic rights to bilateral agreements, which essentially represent barters of rights of equivalent commercial value.

4. The Legal Regime of Airspace In general, airspace shares the same legal status as the subjacent surface of the earth. The upper limit of airspace is, however, in law uncertain. Many powerful States prefer to adopt a wait-andsee policy in the matter of delimiting airspace from outer space (- Space Law). Laterally, national airspace extends to the outer limit of the - territorial sea (- Airspace over Maritime Areas). There is, however, no right of innocent passage for aircraft over or on the surface of foreign territorial seas. The right of transit passage inaugurated by the UN Convention on the Law of the Sea (1982) inures to aircraft (- Innocent Passage, Transit Passage). The legal status of the airspace above the - exclusive economic zone is unclear, but the general view is that it is identical to that above the - high seas, where aircraft of all States enjoy the "freedom of overflight" (1982 Convention, Art. 87(1)(b».-Art. .~bis of the Chicago Convention (lCAO Doc. 9436), adopted in 1984 and not yet in force, recognizes "that every State, in the exercise of its sovereignty, is entitled to require the landing at some designated airport of a civil aircraft flying above its territory without authority" (- Overflight). The international standards on respect of human lives, enunciated by the Mexican-United States General Claims Commission (1923) in the Garcia and Garza Case (1926) (RIAA, Vol. 4, p. 119, at pp. 120-122), is doubtless applicable to the interception of unauthorized entries. Art. 3bis, an aftermath of the - Korean Air Lines incident (1983), appears to impose a more absolute duty by implying that, even under general international law, "every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered" Literally interpreted, this applies even to national aircraft and also when such aircraft may be engaged in criminal activities.

9

AIR LAW

5. The Right to Operate Commercial Flights The operation of international commercial flights, whether scheduled or non-scheduled, in practice requires the authorization or permission of all the States concerned. It is now normally the national State of aircraft operators, rather than the State of registry, that authorizes the operation and obtains from the foreign States concerned the international right for its operators to operate such flights through or into their territory. For scheduled services, States parties to the multilateral International Air Services Transit Agreement of 1944 (UNTS, Vol. 84, p. 389; ICAO Doc. 7500) mutually exchange transit rights for their airlines, but otherwise subject services operated between and through their territories to fairly closely regulated conditions contained in bilateral agreements, with added memoranda of understanding and commercial agreements which are mostly confidential and restrictive. Agreements governing non-scheduled flights, under which various forms of charter flights are normally subsumed, although some can be quite regular, are usually more summary and can be fairly informal. Regional multilateral agreements on commercial rights for non-scheduled air services exist, notably in Europe (see UNTS, Vol. 310, p. 229) and among members of the ~ Association of South-East Asian Nations (see UNTS, Vol. 894, p. 3). The ICAO Council in 1952 adopted a non-binding definition of a scheduled international air service (Doc. 7278; 2nd ed. with revised Notes (1985), ICAO Doc. 7278/2), but States may, and sometimes do, depart, for convenience, from the definition, depending seemingly on whether they wish a given service to be closely regulated (~ Air Transport Agreements). 6. The Legal Status of Aircraft Aircraft have the nationality of their State of registry and are subject at all times to the latter's quasi-territorial jurisdiction to prescribe ("jurisfaction"). In case of concurrence, the State of registry's quasi-territorial jurisdiction to enforce ("jurisaction") must give way to the territorial jurisaction of the State in which the aircraft is found, but takes precedence over the personal jurisaction of any State whose nationals may be on board (see Cheng (1959), pp. 181-186; (1965),

pp. 135-142). Rules and regulations relating to the safety and operation of aircraft established by ICAO are normally enforced through the State of registration, but when aircraft are leased or chartered for any length of time to an operator in a foreign country ("interchange of aircraft"), Art. 83bis of the Chicago Convention adopted in 1980 (ICAO Doc. 9318) allows the State of registry, by agreement, to transfer its functions under the Convention to the State of the operator. On the private law side, the 1948 Geneva Convention on the International Recognition of Rights in Aircraft (UNTS, Vol. 310, p. 151; ICAO Doc. 7620) is designed to facilitate aircraft financing (see Wilberforce (1950». 7. Aviation-Related Crimes and Offences Whilst States, out of necessity, invariably take care to make their aeronautical rules and regulations applicable to aircraft of their nationality even when they are abroad, some fail to extend the applicability of their general criminal law or the jurisdiction of their criminal courts in like manner with the result that there may be no general criminal law or jurisdiction applicable on board an aircraft flying outside the territorial jurisdiction of any State, such as over the high seas. Parties to the 1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft (UNTS, Vol. 704, p. 219; ICAO Doc. 8364) oblige themselves to remedy this gap in their domestic law and make, in addition, provision for the contingency of crimes and offences committed on board aircraft in flight. The increasing tide of unlawful interference with international civil aviation from the late 1960s onwards prompted the ICAO Council through ICAO's Legal Committee to initiate the conclusion of a number of treaties dealing with the situation: the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft (UNTS, Vol. 860, p. 105; ICAO Doc. 8920) deals with hijacking; the 1971 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (ICAO Doc. 8966) with sabotage; and the 1988 Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, supplementary to the 1971 Montreal Convention (ICAO Doc. 9518) with the subject-matter clearly

- - - - - - - - - - - - - - - - .__.__._-_._----_

-

__ ._-----_.

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AIR LAW

indicated in its title (~ Civil Aviation, Unlawful Interference with; ~ Terrorism). The aim of these treaties is to deprive the culprit of the offences in question of a safe haven by making the offences, wherever they may have been committed, punishable by severe penalties in all the contracting States. All contracting States further undertake that, if an alleged offender is found within their territory, they will, if they do not extradite him, without exception whatsoever, and whether or not the offence was committed in their territory, submit the case to their competent authorities for the purpose of prosecution (~ Criminal Law, International; see Cheng (1988». Hijacking of aircraft is, however, to be distinguished from ~ piracy, the definition of which in Art. 101 of the 1982 Law of the Sea Convention is declaratory of general international law. 8. International Carriage by Air

The 1929 Warsaw Convention for the Unification of Certain Rules Relatmg to International Carriage by Air (LNTS, Vol. 137, p. 11) inaugurated one of the most successful systems of international uniform law by unifying the substantive laws of the contracting parties on carriers' liability in international carriage by air, and determining the fora where actions may be brought. This international code is made highly effective by being mandatory and, moreover, exclusive of all other possible actions which may arise from the carriage. ICAO through its Legal Committee has sponsored a number of treaties to supplement and up-date the original Convention. Among them, the 1955 Hague Amendment Protocol (UNTS, Vol. 478, p. 371; ICAO Doc. 7632) came into force in 1963, but five subsequent amendments dating from the 19708 are still waiting for sufficient ratifications to bring them into force (~ Air Transport, Regulation of Liability). 9. Surface Damage and other Sources of

Liability A number of States are parties to the 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (UNTS, Vol. 310, p. 181; ICAO Doc. 7364) designed to limit the aircraft operator's liability and, at the same time, to ensure that victims suffering such damage shall be, within the limits laid down in the

Convention, appropriately compensated. An amendment was adopted in 1978 primarily to increase these limits (lCAD Doc. 9257). Air law is also concerned with various other forms of liability, including product liability, liability for aerial collision, and liability of air traffic control agencies. Some of these topics have heen under study by the ICAO Legal Committee for a number of years. 10. Current Issues and Prospective Air law is now a well-established, extensive and functionally autonomous branch of international law, distinguished above all by its constant need to attune itself to ever-advancing technology and rapidly changing circumstances. Among the problems awaiting resolution, a few may be mentioned: the delimitation of airspace from outer space, the operation of what are basically ~ spacecraft in airspace and of, in perhaps the not too distant future, hypersonic transport; the legal uncertainties brought about by the changing law of the sea; the grave end continuing threat to the safety of international civil aviation resulting from its being repeatedly used as a favourite hostage in political struggles and a vulnerable target of criminal and terrorist activities; the inordinate delays experienced in bringing into force treaties amending the existing regime of international carriage by air, which have been designed to remedy recognized or at least perceived shortcomings but which threaten themselves to be overtaken by events; and the difficulties in framing an integral solution to various liability regimes such as carriage or air traffic control, in the face of the reluctance of many governments to waive ~ State immunity in liability suits (~ Waiver); as well as other obstacles. In air transport as reflected in air agreements, the tug-of-war continues between advocates of freedom in the air and champions of order in the air, with the protagonists not hesitating to change colours whenever self-interest beckons, whilst the halting emergence of some kind of an air transport policy within the ~ European Communities adds a further dimension to the scene, both internally and externally. Meanwhile, ICAD remains the principal forum for the development of international air law, and through it, domestic air laws. Where there is the will, it can also act as its guardian. ICAO has

AIR LAW

achieved much, especially in the technical field, and will no doubt continue to do so. Resolution of some of the thornier problems will depend, however, here as in so many other international arenas, on how successfully its members learn to live and work together, both within and outside ICAO, to achieve the common objective stated in the Chicago Convention (Art. 44(a» of ensuring "the safe and orderly growth of international civil aviation throughout the world". In the end, in matters international, whether big or small, it is the political will that counts. United States, Senate Committee on Commerce, Air Laws ar.d Treaties of the World, 3 vols. (1965). S.H. LAY Air and Aviation Treaties of the World (1984) [loo:-,e-Ienf] .

Air Laws [agreements] of Bulgaria [and other Socialist States], 6 vols. (1985). ICAO, Digest of Bilateral Air Transport Agreements, Doc. 9511 (1988).

JL. KNf.If'EL,

International Technical Committee of Experts in Air Law, International Law Quarterly, Vol. 1 (1947) 498-513. R.O. WILBERFORCE, Recognition of Rights in Aircraft, in: International Law Association, Report of the 44th Conference, Copenhagen (1950) 233-248. H. DRION, Limitations of Liabilities in International Air Law (1954). B. CHENG, Crimes on Board Aircraft, Current Legal Problems, Vol. 12 (1959) 177-207. R. SCHLEICHER and F. REYMANN (ed. H.J. Abraham), Das Recht der Luftfahrt, 2 vols. (1960, 1966). B. CHENG, The Law of International Air Transport (1962). B. CHENG, The Extra-Terrestrial Application of International Law, Current Legal Problems, Vol. 18 (1965) 132-152. J.e. COOPER (ed. LA. Vlassic), Explorations in Aerospace Law (1968). w. GULDIMANN, Aerial Collisions Liability, in: International Law Association, Report of the 53rd Conference, Buenos Aires (1968) 122-132. T. BUERGENTHAL, Law-Making in the International Civil Aviation Organization (1969). F.N. VIDELA ESCALADA, Derecho aeronautico, 4 vols. (1969-1976); Aeronautical Law (1979). WOP. HEERE, International Bibliography of Air Law" 1900-1971 (1972); 1972-1976 (1976); 1977-1980 (1980); 1981-1984 (1985). A. ABRAMOVSKY, Multilateral Conventions for the Suppression of Unlawful Seizure and Interference with Aircraft, CoIJTransL, Vol. 13 (1974) 381-405; Vol. 14 (1975) 268-300, 451-484. M.G. FOLLIOT, Le transport aerien international (1977). R.O. WILBERFORCE,

11

Liability in International Air Transport (1977). Shawcross and Beaumont on Air Law (2 vols., 4th ed., 1977, by P. Martin and others, loose-leaf). K.-H. BOCKS11EGEL (ed.), Die Produkthaftung in der Luftund Raumfahrt: Dokumentation eines Internationalen Kolloquic '0. in Koln (1978). d. CHE!':(}, Fifr Years of the Warsaw Convention: Where D0 We Go From Here", Zeitschrift fur Luft- und Weltraum-echt, Vol. 28 (:979) 373-383. J. NAVEAU, Droit du transport aerien international (1980). A.F. LOWENFFJD, Aviation Law: Cases and Materials (1981) [loose-leaf]. RH. MANKTEWICZ, The Liability Regime of the International Air Carrier (1981). N.M. MATTE, Treatise on Air-Aeronauucal Law (1981). w. SCHWENK, Handbuch des Luftverkehrsrechts (1981). H.A. WA':SENBERGII ;:C; H.P. VAN FANEMA (eds.), Interna'ional Air Transport in the Eighties (1981). L WEBER, Die Zivilluftfahrt im Europaischen Gemeinschaftsrecht (1981). K. HAILBRONNER, Freedom of the Air and the Convention on the Law of the Sea, AJIL, Vol. 77 (1983) 490-520. M MILDE, United Nations Convention on the Law of the Sea - Possible Implications for International Air Law, Annals of Air and Space Law, Vol. 8 (1983) 167-201. J. NAVEAU, L'Europe et le transport aerien (1983). P.P.C. HAANAPPEL, Pricing and Capacity Determination in International Air Transport (1984). S.B. ROSENFIELD, The Regulation of International Commercial Aviation: The International Regulatory Structure (1984, loose-leaf). I. AWFORD, Developments in Aviation Products Liability (1985). B. CHENG, The Destruction of KAL Flight KEOO7, and Article 3bis of the Chicago Convention, in: J.W.E.S. van's Gravesande and A. van del' Veen Vonk (eds.), Air Worthy, Liber Amicorum Honouring Prof. Dr. LH.Ph. Diederiks-Verschoor (1985) 47-74. I.H.P. DIEDERlKS·VERSCHOOR, An Introduction to Air Law (2nd ed., 1985). E. GIEMULLA et al., Warschauer Abkommen (1986) [loose-leaf] . E. McWHINNEY, The Illegal Diversion of Aircraft and International Law (1987). E.E. TEGELBERG-ABERSON, Freedom in European Air Transport: The Best of Both Worlds? Air Law, Vol. 12 (1987) 282-295. B. CHENG, Aviation, Criminal Jurisdiction and Terrorism: The Hague Extradition/Prosecution Formula and Attacks at Airports, in: B. Cheng and E.D. Brown (eds.), Contemporary Problems of International Law: Essays in Honour of Georg Schwarzenberger on his Eightieth Birthday (1988) 25-52. G. MILLER,

BIN CHENG

12

AIR POLLUTION

AIR POLLUTION 1. Definition Air pollution is a complex notion. It has been defined as "the introduction by man, directly or indirectly, of substances or energy into the air resulting in deleterious effects of such a nature as to endanger humans, harm living resources and ecosystems and material property and impair or interfere with amenities and other legitimate uses of the environment" (C onvention on LongRange Transboundary Air Pollution, November 13, 1979 (ILM, Vol. 18 (1979) p. 1442), Art. l(a». This also would include nuclear fall-out or radiation (-'J> Nuclear Tests) and noise. However, in international and national practice these latter are as a rule dealt with separately. The effects of air pollution are mainly observed on other elements of the environment: soil and vegetation, lakes, the seas and the ozone layer. Like Art. 212 of the 1982 United Nations Convention on the Law of the Sea (liN Doc. A/CONF. 62/122 with Corr.) most regional treaty systems concerning marine pollution include an obligation of the contracting parties to prevent airborne pollution of the sea (e.g. Convention on the Protection of the Maritime Environment of the Baltic-Sea Area, March 22, 1974, ILM, Vol. 13 (1974) p.544, Art. 6(8); Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, April 24, 1978, ILM, Vol. 17 (1978) p.511, Art. VI; -'J> Marine Environment, Protection and Preservation). The atmosphere is also the milieu in which pollution can be transported over the longest distances. One of the major environmental problems of present times, acid rain, is considered to be the result of pollution originating from sources which may be at a distance of many hundreds and even thousands of kilometers from the site where the damage is produced. Long-range -'J> transfrontier pollution of the air has been defined as "air pollution whose physical origin is situated wholly or in part within the area under national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of

another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources" (Convention on Long-Range Transboundary Air Pollution, Art. l(b».

2. Historical Evolution Awareness of the complexity of air pollution is the result of recent scientific developments. What may be called an "ordinary" transfrontier air pollution was dealt with as early as 1928 by an international body, the International Joint Commission of the United States and Canada, in the first step towards the settlement of the well-known Trail Smelter case, later decided in the -'J> Trail Smelter Arbitration. The award given by the Arbitral Tribunal on March 11, 1941 declared that no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. However, compensation for damages caused by transfrontier air pollution has in fact mainly been paid directly by private polluters to the victims (see Oberlandesgericht of Saarbriicken, decision of October 22, 1957, Porro v. Houilleres du Bassin de Lorraine, Neue Juristische Wochenschrift, 1958, p. 752). In any event, the harm suffered by forests as a consequence of acid rain shows that compensation is not always possible in this field and even when possible, does not solve the problem. Thus, as the Council of the -'J> European Communities has stressed in its programmes of action on the environment: "The best environmental policy consists in preventing the creation of pollution or _.nuisances at source, rather than subsequently trying to counteract their effects" (Official Journal No. C 112, December 20,1973, p. 1). International action against air pollution has taken this direction by adopting international rules and by establishing continuous cooperation within international bodies.

3. Current Legal Situation International regulation as well as cooperation in the field of air pollution control are to be considered in the general framework of the international protection of the environment

AIR POLLUTION (~ Environment, International Protection). In particular, the principles of the 1972 Stockholm Declaration and of the World Charter for Nature (UN GA Res. 37/7 of October 29, 1982) are to be borne in mind. As far as more specific international regulation is concerned, the rules relating to transfrontier pollution, such as the duties to cooperate, to assess the impact of planned activities on the environment, to inform concerned States of such activities and to consult with them, as well as the principles of equality of access and non-discrimination, are applicable to air pollution which causes harm to the environment outside the limits of the jurisdiction of the State (~ International Law of Cooperation; ~ Notification; ~ Consultation; ~ States, Equal Treatment and Non-Discrimination). General rules concerning only air pollution at an international level were rather exceptional until recently. At a world-wide level Art. 212 of the UN Law of the Sea Convention is the first mandatory provision concerning air pollution. It provides that States are to adopt laws and regulations to prevent, reduce and control pollution of the marine environment from or through the atmosphere, applicable to the air space under their sovereignty and to vessels flying their flag or of their registry. Regulations have mainly been drafted in the framework of regional arrangements (Protocol of March 26, 1986 amending the Convention of Paris of June 4, 1974 on land-based pollution of the sea, British Command Papers, Cm 87 Mise 3 (1987». The Vienna Convention for the Protection of the Ozone Layer of March 22, 1985 (ILM, Vol. 26 (1987) p. 1529) is the first convention with a world-wide scope which is entirely devoted to air pollution but it only concerns one of its aspects. It is mainly a framework treaty providing for cooperation in the legal, scientific and technical fields. In order to implement these general rules a protocol on chlorofluorocarbons controlling the use of tnis substance was adopted on September 16, 1987 (ILM, Vol. 26 (1987) p. 1550). At a regional level the Committee of Ministers of the Council of Europe approved as early as in 1968 a Declaration of Principles on Air Pollution Control which chiefly provides guidelines for national legislation (Res. (68) 4 of March 8, 1968,

13

reproduced in Doc. 2388 of the Consultation Assembly of the Council of Europe of May 8, 1968, p.23). The most important international instrument in this regard is the Convention on Long-Range Transboundary Air Pollution, signed at Geneva on November 13, 1979, by 35 States, including practically all European States as well as Canada and the United States. This is another framework treaty providing mainly for cooperation among the contracting Parties, in particular, through exchange of information regarding measures aimed at combating the discharge of air pollutants which may have adverse effects (Art. 4), consultation upon the request of a signatory State concerned (Art. 5), establishment of cooperation in research, the exchange of scientific information and the implementation of a cooperative programme for the monitoring and the evaluation of the long-range transmission of air pollutants in Europe. A protocol which imposes upon the Contracting Parties the obligation to reduce their emissions of sulphur dioxide by 30% as soon as possible and at the latest by 1993 using the 1980 emissions as a base was adopted in Helsinki on July 8, 1985 (German Bundesgesetzblatt, 1986 II, p. 1117). Most of the international rules concerning air pollution control have been adopted in regional frameworks and follow various approaches. As a rule they do not only concern transfrontier pollution. Release of pollutants into the atmosphere may be limited when resulting from stationary sources (~ Organisation for Economic Co-operation and Development, Guidelines for Action to Reduce Emissions of Sulphur Oxides and Particulate Matter from Fuel Combustion, Recommendation C (74) 16 of June 18, 1974, Recommendation C (85) 101 of June 20, 1985 on the Control of Air Pollution from Fossil Fuel Combustion; EEC Council Directive on the combating of air pollution from industrial plants, June 28, 1984, Official Journal, No. L 188, July 16, 1984) or from vehicles (e.g. Economic Commission for Europe, Regulation No. 15 concerning the emission of gaseous pollutants by certain vehicles, March 20, 1958; EEC Council Directive on the same subject, March 20, 1970, Official Journal No. L 76, April 6, 1970). The use of certain products may be prohibited or limited (~ United Nations En-

14

AIR POLLUTION

vironment Programme, Governing Council, Decision 817B on the chlorofluoro-carbons, Environmental Policy and Law, Vol. 6, p. 101), or their composition may be subjected to standards (EEC Council Directive relating to the sulphur content of certain liquid fuels, November 24, 1975, Official Journal No. L 307, November 27, 1975, p. 22 and EEC Council Directive concerning the lead content in petrol, of June 29, 1978, Official Journal No. L 197, July 22, 1'.:'78, p. 19). Finally, air quality standards may also be set (EEC Council Directive on air quality limit values and guide values for sulphur dioxide and suspended particulates, July 15, 1980, Official Journal No. L 229, August 30, 1980, p. 30; Council Directive on a limit value for lead in the air, December 31, 1982, Official Journal No. L 378, December 31, 1982, p. 15; Council Directive on air quality standards for nitrogen dioxide, March 7, 1985, as amended, Official Journal No. L 372, Dec. 31, 1985). Continuous international cooperation is a constant requirement for air pollution control. Its terms of reference may be fixed in a technical way (EEC Council Decision establishing a reciprocal exchange of information and data from networks and individual stations measuring air pollution within the member States, June 24, 1982, Official Journal No. L 210, July 19, 1982, p. 1). International agreements may also simply provide guiding principles and an institutional framework for such cooperation. The most important examples are the Geneva Convention on Long-Range Transboundary Air Pollution and the Vienna Convention on the Protection of the Ozone Layer (supra). Such arrangements can also be operative at a bilateral level (Memorandum of Intent between the US and Canada concerning Transboundary Air Pollution, Washington, August 8, 1980, ILM, Vol. 20 (1981) p.69O). Whatever character a national or international regulation aimed at controlling air pollution may take, the two major accidents involving air pollution at Seveso in Italy (1976) and Bhopal in India (1984) show that this aspect of environmental legislation cannot be separated from others, especially the problems raised by the production, transport and disposal of chemicals. Thus, air pollution may be considered as a link in a chain between such pollutants on one hand and the

damage caused to soil, vegetation, lakes, seas and the ozone layer on the other. This interrelationship explains the legal difficulties which the control of air pollution poses. Convention on Long-Range Transboundary Air Pollution, November 13, 1979, ILM, Vol. 18 (1979) 1442-1455. United Nations Convention on the Law of the Sea, December to, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (l9R4) 151-221; PM, Vol. 21 (1982) 1261-1354). ILA, Report of the Sixty-First Conference Held at Paris, August 26th to September 1st, 1984 (1985), Committee on Legal Aspects of Long-Distance Air Pollution, First Report, 377 412. Convention for the Protection of the Ozone Layer, March 22, 1985, ILM, Vol. 26 (1987) 1519-1540. Problernes juridiques de la pollution de l'air, The Protection of the Environment and International Law, Hague Academy of International Law, Colloquium (1973) 145-237. A. KISS, La cooperation pan-europeenne dans Ie domaine de la protection de l'environnement, AFDI, Vol. 25 (1979) 719-725. I.H. VAN LIER, Acid Rain and International Law (1980). D.M. JOHNSTON and P. FINKLE, Acid Precipitation in North America: The Case for Transboundary Cooperation (1983). G.S. WETSTONE and A. ROSENCRANC, Acid Rain in Europe and North America: National Responses to an International Problem (1983). s. ELSWORTH, Acid Rain (1984). v. PRITTWITZ, UmweltauBenpolitik, Grenziiberschreitende Luftverschmutzung in Europa (1984). L. GUNDLING, Volkerrechtliche und europarechtliche Aspekte der Luftreinhaltung, Umwelt- und Planungsrecht, Zeitschrift fur Wissenschaft und Praxis, Vol. 5 (1985) 403-411. A. KISS, Du nouveau dans l'air: des "pluies acides" Ii la couche d'ozone, AFDI, Vol. 31 (1985) 812-827. J. SCHMANDT and H. RODERICK (eds.), Acid Rain and Friendly Neighbors, The Policy Dispute between Canada and the United States (1985). e. FLINTERMAN, B. KWIATKOWSKA and J.G. LAMMERS (eds.), Transboundary Air Pollution, International Legal Aspects of the Co-operation of States (1986). w. LANG, Luft und Ozon - Schutzobjekte des Volkerrechts, ZaoRV, Vol. 46 (1986) 261-285. P.e. MAYER·TASCH (ed.), Die Luft hat keine Grenzen (1986). A. KISS,

ALEXANDR~

KISS

AIR, SOVEREIGNTY OVER THE see Sovereignty over Airspace

AIR TRANSPORT AGREEMENTS

AIR TRANSPORT AGREEMENTS 1. Notion The term "air transport agreement" refers to agreements between States governing tne operation of international air services between their territories. The term "air services agreement" is also used. Under Art. 6 of the ~ Chicago Convention, scheduled international air service to a foreign State may only be operated with the prior permission of the State concerned. As a result, numerous bilateral air transport agreements have been coneluded between States, granting such prior permission in the form of "traffic rights" and regulating the terms and conditions for international scheduled air services between the respective countries. More than 1700 bilateral air transport agreements have to date been registered with the ~ International Civil Aviation Organization (ICAO) under Arts. ~1 and 83 of the Chicago Convention, and their total number has been estimated at more than 25UO. Besides these, a few multilateral agreements relating to international non-scheduled air services and to technical questions on international air services have also been concluded.

2. Historical Evolution of Legal Rules As early as 1913, France and Germany made an agreement concerning civil and military ~ aircraft by an exchange of letters (Martens NRG3, Vol. 7, p. 643). This agreement provided inter alia that each party had the power to delimit zones open or closed to ~ overflight, that pilots of civil aircraft should carry certain documents (some of which had to be certified by the other party for each specific flight), and finally that military aircraft could not fly into or overfly the other party's territory without prior permission. The principle of sovereignty over national airspace (~ Sovereignty over Air Space) was firmly established in the multilateral Paris Convention of 1919 (Convention on the Regulation of Air Navigation, October 13, 1919, LNTS, Vol. 11, p. 173). During the following two decades a number of scheduled international air services were established on the basis of concession agreements made between States and air carriers (e.g. between the USSR and Deruluft; between France

__

...

_-_..---_._----

15

and CIDNA). However, in most cases bilateral air services agreements between States were coneluded, e.g. the Agreement between France and the Netherlands of 1938 (LNTS, Vol. 192, p. 151). At the Chicago Conference, November 1 to December 7, 1944, several States attempted to exchange commercial rights for international air services multilaterally. The International Air Transport Agreement, signed on December 7, 1944 (UNTS, Vol. 171, p. 387), provided for such multilateral grant of rights, but was never applied and remained a dead letter. However, the Chicago Convention in Art. 6 provided an appropriate basis for the bilateral regulation of international air transport. The United States and the United Kingdom signed on February 11, 1946 the so-called "Bermuda Agreement" (Agreement relating to Air Services, UNTS, Vol. 3, p.253). It became the worldwide model for numerous other bilateral air transport agreements concluded during the postwar period. The "Bermuda Agreement" was superseded in 1977 by the so-called "Bermuda II Agreement" between the United States and the United Kingdom (Agreement concerning Air Services, June 22, 1977, British Command Papers, Cmnd. 7016, Treaty Series No. 76 (1977)). Bermuda II adapted the regulatory framework to the mass tourism over the North Atlantic and to the resultant demand for low-fare, high-capacity scheduled air transport.

3. Current Legal Situation (a) The Bermuda Agreement Most bilateral air transport agreements follow the pattern first established by the 1946 Bermuda Agreement. Typically, the following questions are regulated in the text of a bilateral agreement: (i) Exchange of traffic rights. The extent of these rights, the conditions attached to them, and the routes on which they may be exercised are usually spelled out in detail in an annex or schedule to the main agreement. Rights of overflight and transit rights (technical stop-over) may also be specified. (ii) Designation of air carriers. Under the dual designation concept, each State party may designate one air carrier to operate the route or routes specified in the agreement. The multiple designa-

16

AIR TRANSPORT AGREE\1ENTS

tion concept allows each State party to designate several air carriers, subject l.owever to the prior agreement of both parties for each new designation. (iii) Substantial ownership and effective control. The air carriers designated under the agreement must comply with the requirement that substantial ownership and effective control of the carrier must be in the hands of nationals of the designating State. This requirement effectively prevents -+ "flags of convenience" in international air transport. (iv) Compliance with national aviation regulations. Each State party undertakes to ensure that its designated air carriers will fully comply with the aviation laws and regulations of the other State party. (v) Mutual recognition of airworthiness certificates. This provision ensures the mutual recognition of airworthiness certificates and certificates of competency for crew, notwithstanding the standards referred to in Art. 33 of the Chicago Convention. (vi) Exemption from customs and duties. This exempts, on the basis of reciprocity and within certain limits, from customs, taxes and other duties, which would be otherwise payable each time an aircraft crosses national borders. (vii) Principles governing regulation of capacity. These principles govern the question how many seats and how much cargo space each party may offer on a given route within a given time. This is of great commercial importance for the operation of each designated air carrier. Three main types of clauses can be distinguished: - the Bermuda clause, which provides for "fair and equal opportunity" for each designated carrier to compete, subject to a periodic "ex post facto" review by both States parties; - the predetermination clause, which provides for a predetermined partition of capacity between the designated carriers of both parties, normally resulting in a 50/50 split for each side; - the liberal clause, which leaves the capacity of both sides essentially to market forces, subject however to periodic review by both States parties. (viii) Principles governing the establishment of tariffs. These principles provide for the procedure to be used for setting air fares and rates to be

charged on the routes covered by the agreement. Normally, it is stipulated that designated carriers shall coordinate fare and rate proposals and submit such proposals for approval to both governments concerned, making use whenever possible of the Conference system of the -+ International Air Transport Association (lATA). (ix) Consultation and information. Regular government contacts are provided to review the operation of the agreement. (x) Settlement of disputes. The usual method is -+ arbitration (France-United States Air Transport Arbitration (1963); France-United States Air Transport Arbitration (1978); Italy-United States Air Transport Arbitration (1965». In some cases, a special - consultation procedure is also used as a compulsory method for settling fare and rate disputes. (xi) Registration of the agreement in conformity with Art. 83 of the Chicago Convention. (b) Other bilateral agreements

Besides the "Bermuda-Agreement", other model clauses have also been developed. In 1959, the - European Civil Aviation Conference (ECAC) developed the so-called "Strasbourg Standard Clauses" (ECAC, Third Session, Records, Report, Vol. 1, pp. 35 et seq.), which have served as a model for many European bilateral air transport agreements. The ICAO has also elaborated and recommended several specific model clauses for use by States, e.g. concerning taxation, security and other matters. (c) Multilateral agreements

While the exchange of traffic rights is de facto arranged through bilateral agreements only, a number of multilateral agreements relating to other aspects of air transport have also been concluded. The most important one is the International Agreement Relating to the Procedure for the Establishment of Tariffs for International Scheduled Air Services, signed on July 10, 1967 in Paris (UNTS, Vol. 696, p. 31). The main purpose of the Agreement was to achieve uniforrruty and improve the consultation procedures in f..1re disputes between governments. The greatest pos, le uniformity has been achieved by the automatic replacement of all tariff clauses in bilateral air t

17

AIR TRANSPORT AGREEM ENTS

trans port

agr eements . concluded be twee n the

1967 Paris Agreement signat ories. with the te rms and provisions of the Pari s Agreement. Most ECAC member States have become parties to this agreement , which was superseded by a new agreement opened for signature in Paris on June

15. 1987 (Doc. ECAC /INT.S Il 6) embodying the same principles. but introducing a new " tariff zone" regime (see be low). On the same da y, a multilateral agreement on the sharing of capaci ty on intra-European scheduled air services ( ; 987, Doc. ECAC/INT.S/16) was also opened for signature. A Multilateral Agreement o ro Co mmercial Rights of Non-Scheduled Air Services in Europe was signed on April 30, 1956 in Paris (UNTS, Vol. 310, p, 229) . Its main object is to ensure a liberal legal framework for certain specific types of non -scheduled air services, e.g, air-taxi flights, humanitarian flights . own- use charter flights, freig ht-o nly flights and certain o ther charter flights. Scheduled air services are not covered by the agreement. 11 has served as a model for subsequent agreements signed o n March 13, 197J in Manila between States members of the ..... Association of South-East Asian Nations (UNTS, Vol. 894, p. 3) and in December 1978 between States members of the Arab Civil A viation Council (ACAC). Since 1982, the air tariff framework for No rth Atlantic air services has been governed by the "Memorandum of Understanding hetw een the U nited States and the Member States of the European Civil Aviation Conference o n North Atlantic Pricing", signed on Ma y 2, 1982 in Washington , D.C. , and renewed in October 1984 and April 1987. This memorandum of understanding build s upon the bilateral agreements existing between the U.S. and ECAC mem ber States. 11 int roduced for the first time a system of " tariff zo nes". Governments have agreed tha t for any tariff filings submitted by airlines individually or collectively a nd falling within the " tariff zones", government approval by all parties shall be automatic . This innovative regime has been int roduced also for intra-European scheduled air transport thro ugh the new 1987 Paris Agreement superseding the ea rlier Paris Agreement of 1967, and in the European Co mmunities through Council Directive 87/601 /87 of December 14. 1987

(Official Journal o f the E .C. , No. L 374/1 2) , relat ing to fares for scheduled air services between member States. 4. Ev aluation Given the worldwide ne two rk of international scheduled air services. it may at first sight appear surprising th at the exchange of traffic rights for such services is excl usively a matter of bilateral arrange ments, instead of bein g exchanged o r regulated multilaterally. Howe ver . the system of bilateral air transport agreements has historically grown as a result of strong aviatio n nation s separately bringing their stro ng positio n to bes.. in bilateral negot iations. Th e bilat eral framework has the adv an tage of being flexible and eas ily adaptab le to changing circumstances while allowing the ope ration of a coherent air I n '''''' 'r! system. In the field of air tariffs, State" nave demonstrated in the Multilateral Paris Agr ,, ·::It of 1967, and its 1986 successor agreement , a~ well as in the United States-ECAC Memornnc urn of Understanding of 1982, as revised, their continued support for a rnvttilateral approach. Agreement on Air Services ("Bermuda Agreement"), February 11 , 1946, UNTS , Vol. 3 (1947) 253-291. Agreement concerning Air Services ("Bermuda II Ag reement"}, June 22, 1977. British Command Papers,

Cmnd 7016. Treaty Series No. 76 (1977). Q uestions of Public Internation al Air Law. RdC, Vol. 81 (1952 11) 205- 307. AW. STOFFEL. American Bilateral Air Transport Agreements on the Threshold of the Jet Transpon Age, Journal of Air Law and Commerce. Vol. 26 (1959) 119-136. B. CHENG, The Law of Internatio nal A ir Transport ( 1962). D . GOEDHUIS.

H.A . WASSENBERGH ,

Po st War Internation al Civil A via-

tion Policy and the Law of the Air (1962). I .C. COO PER. The Bermuda Plan: World Pattern for Air Transport, in: LA . Vlasic '{ed. ), Explorations in

Aerospace Law, Selected Essays by John Cobb Cooper 1946- 1966 (1968) 381-394. F. DEAK. The Balance -She et of Bilaterali sm . in: E .

McWhinney and M.A. Bradley (eds.), The Freedom of the Air (1968) 159-1 73. W. GILllLLAND. Bilateral Agreements, in: E. McWhinney and M.A. Bradley (eds.), The Freedom of the Air (1968) 140-158. F.E. lOY,

Bilateral Air Transport Agreements: Some

Problems of Finding a Fair Route Exchange, in: E. McWhinney and M.A. Bradley (eds.), The Freecor.r of the Air (1968) 174-189.

18

AIR TRANSPORT AGREEMENTS

Bilateral Agreements as Regulatory Instruments in International Commercial Aviation, in: N.M. Matte (ed.), International Air Transport: Law, Organization and Policies for the Future (1976) 113-126. B.A. WASSENBERGH, Public Intern, tional Air Transportation Law in a New Era: Economic Regulation of International Air Carrier Operations (1976). J. NAVEAU, Droit du transport aerien international (1980). N.M. MATIE, Treaties on Air-Aeronautical Law (1981). w. SCHWENK, Handbuch des Luftverkehrsrechts (1981). L. WEBER, Die Zivilluftfahn im Europaischen Gemeinschaftsrecht (1981). P.P.c. HAANAPPEL, Pricing and Capacity Determination in International Air Transport (1984). W. GULDIMANN,

LUDWiG WEBER

AIR TRANSPORT, REGULATION OF LIABILITY 1. Introduction The international transportof passengers, cargo and mail by -+ aircraft involves many foreign elements. The contract of transport and the liability arising therefrom em create complex problems of conflicts of laws (-+ Private International Law) and conflicts of -~ jurisdiction. A certain degree of unification with regard to the regulation of these pronle ms was achieved by the so-called "Warsaw System" consisting of the original Warsaw Convention of 1929 and complemented by a series of protocols for its amendment. Furthermore, one convention supplementary to the Warsaw System has been adopted. In its practical application the Warsaw Convention was in 1966 de facto amended by a private agreement between the air ce rriers operating to, from or via the territory of the United States of America. Some component instruments of the Warsaw System are in force and belong to the most widely accepted unification efforts in the field of private law; others have not yet entered into force.

2. The Warsaw .tysten. The components of the Wa.: aw System include the following:

(a) Convention for the Unification of Certain Rules Relating to International Carriage by Air The main characteristics of the Convention

signed at Warsaw on October 12, 1929 (LNTS, Vol. 137, p. 11) are as follows. The definition of "international carriage" determines the scope of applicability of the Convention (Art. 1(2)). Under the Convention this expression means any carriage in which, according to the contract of carriage, the place of departure and the place of destination are situated either within the territories of two parties to the Convention or within the territory of a single Convention party, if there is an agreed stopping place within another territory, even though that territory is not subject to the -+ sovereignty of any Convention party. There is a unification of the rules concerning the documents of carriage (passenger ticket, baggage check and air waybill) including the particulars to be embodied in each of these documents and penalties for any irregularities in respect of such documents (Arts. 3 to 16). The rules concerning the liability of the air carrier are unified. The liability is based on the fault of the carrier. The fault of the carrier is presumed, i.e. the carrier bears the burden of proof (Arts. 17 to 21). The amount of liability is limited by a "gold clause" to 125000 French francs for each passenger, 250 francs per kilogramm of luggage and of goods and 5 000 francs for objects of which the passenger takes charge himself. These sums are deemed to refer to French (Poincare) francs consisting of 65 ~ milligrammes of gold of millesimal fineness 900. These sums may be converted into any national currency in round figures (Art. 22). In case of "wilful misconduct" of the carrier (vdol ou une faute qui, d'apres la loi du tribuna; saisi, est consideree comme equivalente au dol"), the limit of liability does not apply (Art. 25). The rules concerning jurisdiction, which determine before which courts an action for damages may be brought, stipulate the place of ordinary residence of the carrier, the place of the carrier's principal place of business, the place at which the contract has been made or the place of destination (Art. 2H). The Convention contains a specific provision on combined carriage performed partly by air and partly by any other mode of carriage. The Warsaw Convention applies only to the carriage by air (Art. 31). The provisions of the Convention are of impera-

AIR TRANSPORT. REGUL \TION OF LIABILITY

tive nature and the contract between the parties cannot infringe the rules thereof under the penalty of nullity (Art. 32).

(b) The Hague Protocol of 1955 The Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on October 12, 1929 was done at The Hague on September 28, 1955 (UNTS, Vol. 478, p. 371). This first amendment of the Warsaw Convention was prepared by the Legal Committee of the ~ International Civil Aviation Organization (lCAO) and adopted at the, Diplomatic Conference held under the auspices of ICAO. The main features of the amendments introduced by the Protocol are the following. The rules relating to the documents of carriage were substantially redrafted, modernized and simplified. While a deficiency in these documents under the original Convention deprived the carrier of the right to invoke the provisions excluding or limiting liability, the carrier is only deprived under the Protocol of the right to invoke the limits of liability. The limit of kit .lity in respect of "persons" was doubled to 250000 francs. The compl.c.ned and equivocal provision concerning "wilful misco: Juct" was redrafted. The carrier cannot invoke the limit of liability with respect to acts or omissions "done with intent to cause damage or recklessly with knowledge that damage would probably result" (Art. XIII of the Protocol). The limits of liability apply also to servants of agents of the carrier acting within the scope of their employment (Art. XIV of the Protocol).

(c) The Guadalajara Convention of 1961 The Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person Other than the Contracting Carrier was signed at Guadalajara on September 18, 1961 (UNTS, Vol. 500, p. 31). The purpose of the Guadalajara Convention was to extend the applicability of the provisions of the Warsaw Convention, or that Convention as amended, also to the "actual carrier", regardless of who entered into the contract with the pas-

19

senger or shipper of goods as the "contracting carrier". This extension was necessary because the original Warsaw Convention of 1929 governed relations based on the contract of carriage. However, in the modern modalities of air transport operations it frequently happens that one party enters into a contract of carnage with passengers of shippers as a charterer or freight forwarder, etc., while another party in fact pe rforms the actual carriage without being in direct contractual relationship with the passenger or shipper.

(d) The Guatemala City Protocol of 1971 The Protocol to Amend the Conver.tion for the Unification of Certain Rules Relating t _l International Carriage by Air Signed at 'varsaw on October 12, 1929 as Amended by .ie Protocol Done at The Hague on September 28, 1955 was signed at Guatemala City on March 8, 1971 (ILM, Vol. 10 (1971) p. (13). This amendment of the Warsaw System was introduced in the form of a "protocol-toprotocol", and between the parties the resulting instrument is to be read and interpreted together as a single instrument to be known as the "Warsaw Convention as Amended at The Hague, 1955, and Guatemala City, 1971". This amendment refers exclusively to provisions relating to the carriage of passengers and their baggage and does not cover the carriage of cargo. The main characteristics of this amendment are the following. The documents of carriage for passenger: and checked baggage have been considerably sim-· plified and allow the substitution of electronic data processing for the issuance of a passenger document of carriage or of baggage check. Noncompliance with the provisions does not affect the validity of the contract of carriage which will continue to be subject to the rules of the Convention, including those relating to limitation of liability. With respect to personal injury and dam..ge sustained in the case of damage, destruction or loss of baggage, the earner is subject to strict liability regardless of fault. Only in case of contributory negligence of the person claiming compensation can the carrier be partly or wholly exonerated (Art. VII of the Protocol). With respect to delay in the carriage of passengers or baggage, liability continues to be based on a rebuttable presumption of fault of the carrier

20

AIR TRANSPORT. REGULATION OF LIABILITY

with a reversed burden of proof (An. VI of the Protocol). The limit of liability in the carriage of persons is the sum of 1500 000 francs in respect of damage suffered as a result of the death or personal injury of each passenger. In the case of delay in the camage of persons, the liability of the carrier for each passenger is limited to 62 500 francs. With respect to baggage, the liability of the carfier in the case of destruction, loss, damage or delay is limited to 15000 francs for each passenger. These sums are deemed to refer to a hypothetical currency unit consisting of 65; milligammes of gold of millesimal fineness 900. At the time of the drafting of the Guatemala City Protocol, these sums were equivalent to US $ 100 DOO in the case of death or personal injury of a passenger, US $ 4 500 in the case of delay of a passenger and US $ 1000 for destruction, loss damage or delay of baggage. The !imits mentioned in the preceding paragraph are inflexible and cannot be exceeded even in case of acts or omissions done with intent to cause damage or recklessly and with knowledge that damage would probably result. Any action for damages, whether based on provisions of the Convention or on theories of contract, tort or other law, can only be brought subject to the conditions and limits of liability set out in the Protocol (Art. IX). The rules concerning jurisdiction have been amended by adding one additional court, namely thz m!rt within the jurisdiction of which the 7;arrier has an establishment, if the passenger has bl:, domicile or permanent residence in the temtory 3f the same State (Art. XII). The Protocol includes a "settlement inducement zmise" (Art. VIII, para. 3(b)) according to which the cost of the action, including the lawyers' fees, ?::Abe awai.kd if the claimant presents a written notice of the amount claimed and the carrier does not make :I. --fitten offer of settlement within six months I . .A- amount at least equal to the compemii..i!b; rvhich may be awarded within the applicah!. :is it. Unu::; 'IIC"roturol (Art. XIV) States are free to eas -0iik11 ar,d operate in their territories a sysmrit ;I ''iiruestic supplement" to the comp'ru~,sa!ivn payable to claimants in respect of death *PI penunal injury of passengers. Such a system atmld no;. impose on the carricr, its servants or

agents any additional liability or any financial or administrative burden other than collecting contributions from passengers if required to do so by the State in question. This provision foresees the possibility of a system of supplementary and compulsory domestic insurance which should not lead to any discrimination between carriers. The Protocol provides for a periodical adjustment of the limits of liability during the fifth and tenth years after the date of entry into force of the Protocol. During those years, a diplomatic conference may, by a two-thirds majority vote of the parties present and voting, increase the limits by no more than 187 500 francs (about US $12 500 at the time of the drafting of the Protocol) on each occasion. If such diplomatic conferences do not agree otherwise, the limits shall be automatically increased by the above-mentioned amount on December, 31, of the fifth and tenth years after the date of entry into force of the Protocol (Art. XV). The Protocol shall enter into force when ratified by 30 States, including 5 States whose total international scheduled air traffic expressed in passenger-kilometres, according to the statistics for the year 1970 published by ICAO, represents at least 40 per cent of the total international scheduled traffic of the airlines of the member States of the organization. The practical impact of this provision is that the Protocol will not enter into force without ratification by the United States (Art. XX). (e) Additional Protocol No. 1, Montreal, 1975 Additional Protocol No. 1 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 was signed at Montreal on September 25, 1975 (British Command Papers, Cmnd 6480, Misc. 12 (1976)). Thesole purpose of this Protocol was to replace the limits of liability expressed by the "gold clause" in An. 22 of the original Warsaw Convention of 1929. The gold currency unit was replaced by Special Drawing Rights (SDR) as defined by the + International Monetary Fund because of the absence of an official price of gold and the fact that gold has ceased to be an objective, reliable and stable yardstick of values. The Protocol substituted 8 300 SDR for 125 000 Poincark francs, 17 SDR for 250 francs and 332 SDR for 5000 francs.

22

AIR TRANSPORT, REGULATION OF LIABILITY

the United States Civil Aeronautics Board on May 13, 1966 (Agreement of the CIvil Aviation Board No. 18900; 31 Fed. Reg. 7302 (1966». This document is not an international agreement but only a private arrangement among the air carriers operating passenger transport to, from or with an agreed stopping place in the territory of the United States. By this private arrangement the parties have de facto amended the application of the Warsaw Convention of 1929 as amended by The Hague Protocol of 1955 by agreeing to include in their tariffs, effective as of May ]6, 1966, a special contract permitted under Art. 22(1) of the Convention providing for a limit of liability in case of death or bodily injury of each passenger of US $ 75 ()()() inclusive of legal fees and costs and US $ 58 ()()() exclusive of legal fees and costs. Furthermore, the carriers must not avail themselves of any defence under Art. 20(1) of the Convention which provides that the carrier is not liable if it proves that the carrier and its agents have taken all necessary measures to avoid the damage or that it was impossible for them to take such measures. Thereby, the principle of strict liability regardless of fault has been introduced. This arrangement is not an international agreement or a formal revision of the Warsaw System, but it governs a significant segment of international carriage of passengers by air in the region with the heaviest traffic. Convention for the Unification of Certain Rules Relating to International Carriage by Air, October 12, 1929, LNTS, Vol. 137 (1933) 11-43. Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 ("Hague Protocol"), September 28, 1955, UNTS, Vol. 478 (1963) 371-406. Convention, Supplementary to the Warsaw Convention, for the Unification of Certain Rules Relating to International Carriage by Air Performed by a Person other than the Contracting Carrier ("Guadalajara Convention"), September 18, ]961, UNTS, Vol. 500 (1964) 31-48. Protocol to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 as Amended by the Protocol Done at The Hague on September 28, 1955 ("Guatemala City Protocol"), March 8, 1971, ICAO Doc. 8932/2, ILM, Vol. 10 (1971) 613-616.

Additional Protocol No.1 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12,1929 ("Montreal Protocol No. I"), September 25, 1975, British Command Papers, Cmnd 6480, Misc. 12 (1976) Additional Protocol N6. 2 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 19~9, as Amended by the Protocol Done at The Hague on September 28, 1955 ("Montreal Protocol No. 2"), September 25, 1975, ICAO Doc. 9146, British Command Papers, Cmnd 6481, Misc. 15 (1976) Additional Protocol No.3 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 as Amended by the Protocol Done at The Hague on September 28, 1955 and at Guatemala City on March 8, 1971 ("Montreal Protocol No.3"), September 25, 1975, ICAO Doc. 9147, British Command Papers, Cmnd 6482, Misc. 16 (1976). Montreal Protocol No.4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on October 12, 1929 as Amended by the Protocol Done at The Hague on September 28, 1955, September 25, 1975, British Command Papers, Cmnd 6483, Misc. 17 (1976) Agreement of the Civil Aviation Board No. 18900 of May 13, 1966, US Federal Register, Vol. 31 (1966) 7302. La Convention de Varsovie du 12 octobre 1929, Thesis Leiden (1933). H. DRION, Limitation of Liabilities in International Air Law, Thesis Leiden (1954). M. MILDE, Problems of Liabilities in International Carriage by Air, Acta Universitatis Carolinae, Prague (1962) w. GULDIMANN, Internationales Lufttransportrecht (1965). A.I. MENDELSOHN, The United States and the Warsaw Convention, Harvard Law Review, Vol. 80 (1966/ 1967) 497-602. A. TOBOLEWSKI, Monetary Limitations of Liability in Air Law (1986). D. GOEDHUIS,

MICHAEL MILDE

AIRCRAFT Aircraft are defined in the Standards adopted by the Council of the -+ International Civil Aviation Organization (lCAO) as "any machine[s] that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the earth's surface" (Operation of Air-

AIRCRAFT

craft, Annex 6, Third Edition of Part II, September, 1983, p.5); air cushion vehicles, such as hovercraft and ground effect machines, are not classified as aircraft. Aircraft may be lighter-thanair (balloon) and power-driven (airship) or heavier-than-air (glider). The most common aircraft is an aeroplane - a power-driven heavierthan-air aircraft, deriving its lift in flight chiefly from aerodynamic reactions on surfaces which remain fixed under given conditions of flight. Helicopters are heavier-than-air aircraft supported in flight chiefly by the reactions of the air on one or more power-driven rotors on substantially vertical axes. International ~ air law as codified in the Convention on International Civil Aviation of December 7, 1944 deals with civil aircraft and is not applicable to ~ State aircraft. The Convention does not define "civil aircraft" or "State aircraft" but in Art. 3(b) sets a presumption that "aircraft used in military, customs and police services shall be deemed to be state aircraft". Tp~ design, registration, ownership or markings of an aircraft do not in themselves determine whether it is State or civil; the determining element is the use to which the aircraft is put. Aircraft have the ~ nationality of the State in which they are registered and no .:ill'craft can oe validly registered in more thar.one State. However, registration may be changed from one State to another. The nationality and registration marks consist of a group of letters or numbers, or a combination of letters and numbers. The nationality mark is to be selected from the series of nationality symbols included in the radio call signs allocated to the State of registry by the ~ International Telecommunication Union and notice must be given to the International Civil Aviation Organization. A common mark may be assigned by the Council of the ICAO to a joint or international operating agency. Aircraft are subject to the ~ jurisdiction of the State of registry while in the airspace or on the ground in that State or above or on the territory of areas of undetermined ~ sovereignty (e.g. ~ high seas). In the sovereign airspace, or in the territory of another State, the aircraft is subject to the laws, regulations and jurisdiction of that State (~ Sovereignty over Airspace; ~ Airspace over Maritime Areas; ~ Territorial Sovereignty).

23

Investigation of accidents of aircraft is to be instituted by the State in which the accident occurs. The State of registry, the State of the operator and the State of manufacture of the aircraft are to be invited to appoint accredited representatives to participate in the investigation. Accidents outside the territory of any State are to be investigated by the State of registry. Each State is responsible to ensure that aircraft of its registry comply with the rules of the air, wherever the aircraft may be (~ Responsibility of States: General Principles). The State of registry is also responsible for the issuance of licenses to operate radio transmitting apparatus, certificates of airworthiness and certificates of competency and licenses for the pilot and other members of the operating crew. L.ternational Standards and Recommended Practices adopted by the Council of ICAO relating to aircraft and its operations in international navigation are contained in the following Annexes to the Convention on International Civil Aviation: Annex I - Personnel Licensing; Annex 2 - Rules of the Air; Annex 3 - Meteorological Service for International Air Navigation; Annex 4Aeronautical Charts; Annex 5 - Units of Measurement to be Used in Air and Ground Operations; Annex 6 - Operation of Aircraft, Part I - International Commercial Air TransportAeroplanes, Part II - International General Aviation - Aeroplanes, Part III - International Operations - Helicopter; Annex 7 - Aircraft Nationality and Registration Marks; Annex 8 - Airworthi-' ness of Aircraft; Annex 9 - Facilitation; Annex 10 - Aeronautical Telecommunications, Volume I: Part I - Equipment and Systems, Part II -Radio Frequencies, Volume II: Communication Procedures; Annex 11- Air Traffic Services; Annex 12 - Search and Rescue; Annex 13 Aircraft Accident Investigation; Annex 14 .Aerodromes; Annex 15 - Aeronautical Information Service; Annex 16 - Environmental Prote.tion, Volume I - Aircraft Noise, Volume 11Aircraft Engine Emissions; Annex 17 - SecuritySafeguarding International Civil Aviation Against Acts of Unlawful Interference; Annex 18 - The Safe Transport of Dangerous Goods by Air. Convention on International Civil Aviation, Chicago,

December 7, 1944, UNTS, Vol. 15 (1948) 295-375.

24

AIRCRAFT

Annexes to the Convention on International Civil Aviation [published since 1948 in loose-leaf by the International Civil Aviation Organization, Montreal, Quebec, Canada]. J.P. HONIG, The Legal Status of AIrcraft (1956). Z.J. GERTLER, Nationality of Airlines: A Hidden Force

in the International Air Regulation Equation, Journal of Air Law and Commerce, Vol. 48 (1982) 51-88. A.A. VAN WIJK, The Legal Status of the Aircraft Commander- Ups and Downs of .l Controversial Personality in International Law, Essays in Air Law (1982) 311-349.

Rights in Aircraft, A Nordic Lawyer Looks at Security in Aircraft, Annuals of Air and Space Law, Vol. 8 (1983) 233-262. K. EL-HUSSAINY, Registration and Nationality of Aircraft Operated by International Agencies in Law and Practice, Air Law, Vol. 10 (1985) 15-27. W. SCHWENK, Internationale Betriehsstellen nach Artikel 77 des ICAO-Abkommens und internationaler Luftverkehr- Das Ende der Staatszugehorigkeit vonLuftfahrzeugen?, Zeitschrift fiir Luft- und Weltraumrecht, Vol. 35 (1986) 294-308.

J.w.F. SUNDBERG,

MICHAEL MILDE

AIRPORTS 1. General Remarks An airport is an aerodrome which accommodates facilities for public air transport services. The carriers of national or international civil aviation provide scheduled air services or nonscheduled flight of -+ aircraft. They use the airports for taking on or discharging passengers, cargo and mail. The legal relations between the airport company or authority and the carrier are determined by the domestic -+ air law; these relations can be governed by private law or by public law. There is substantial variety in the legal subjects authorized to manage and operate an airport. The airport operator may be either a limited liability company under private law, having only public shareholders (public utility company) or a mixed private and public corporation. There may also be an airport authority, be it a government agency or an autonomous entity under public law, controlled by a ministry or by another government agency, as well as, finally, a local government municipal authority. The International Civil Airports As-

sociation is a -+ non-governmental organization with head office and secretariat in Orly Aerogare Cedex, France, and with regional sections. The airport is a part of the national traffic system and infrastructure. It is constructed and operated under the -+ territorial ~ove~·~:f.r,~;; anti -+ jurisdiction of the State on the I err: tG! y of which it is situated, notwithstanding :l1'\1 soecial agreements which may exist with -+ neighbour States. In so far as airports are a necessary element of international air traffic, their existence, facilities. operation and use are a matter of international air law. Besides the bilateral -+ air transport agreements, the Convention on International Civil Aviation (-+ Chicago Convention) is the main source of relevant obligations. To encourage the development of airways, airports and air navigation facilities for international civil aviation is among the objectives of the -+ International Civil Aviation Organization (ICAO). Under Art. 37 of the Chicago Convention ICAO may adopt inter alia international standards and recommended practices and procedures dealing with characteristics of airports and landing areas and matters concerned with the safety, regularity and efficiency of air navigation in general. By virtue of this provision ICAO has adopted the Annex 14 entitled Aerodromes. On a more technical level ICAO has issued several manuals on aerodrome design, airport planning and airport services.

2. Airport Construction and Operation (a) Domestic legislation The construction, extension, and operation of airports is a matter of domestic regulation. The main difference in airport legislation depends on whether the planning, constructing and managing of single airports is left to sepalate and autonomous entities or is reserved to a ministry or other State agency. In any case, the authorization of an airport will include a decision on the plan for the airport facilities, the number, situation and size of runways, etc. The procedure preceding authorization might give third parties, especially the affected owners of landed property, a formal opportunity to defend their legal position. A separate entrepreneur for the airport project, a private

25

AIRPORTS

corporation or a public entity may 5c an applicant for a concession to construct and operate :he airport. As a rule, there will be a nation-wide concept or p!an of the airport system.

( 6 ) Internationc: obligations The Chicago Convention creates no strict obligation ..i the cor~tractingStates to pr.-vide for airpr..rs or other air navigation facilities. Each contractin.. Stat: ~tndertakes,so far as it may find practicable, to pravicie, in its territory. airports, radio services, meteorological senices and other air navigation facilities to facilitate international air navigatir.n, in accordant- with the standards and prac:lcer: recommended or established from time to time pursuant to the Convention (Art. 38(a)). The ICAO Council has certain powers of consultation and mav make recommendations, if it is of the opinion that the airports or other air navigation facilities of a contracting State are not reasonably adequate for the safe, regular, efficient and cconomical operation of internatirnal air set-;
Nevertheless, air transport is subject to the general provisions of the EEC Treaty (4 Court of Justice of the European Communities, Case 1671-' .4pril 4, 1974, Recueil 1974, p. 359). (c) Customs airport

International air traffic must cross the + customs frontier by way of the airport facilities. overflight of Except in a case of a permitred the territory, every aircraft which enters or leaves the territory of a State has to use a designated airport for the purpose of customs and other examination, if the regulations of the State so require (Chicago Convention, Art. 10).

-

(d) Airport near the border of an adjacenr State The rr.wtruction, managing and operation of an airport near a r international border may be the subject of cooperation andagreement between the neighbour States concerned, with regard to the conditions of administering, financing, and using it by both sides as well as in respect of any encroachments upon the surroundings (-, Environment, International Protection; + Boundaries) or upon rights and interests situated in the adjacent State's territory. An example of such cooperation is the Abroport de B2le-Mulhouse, operated on the basis of an agreement between France and Switzerland of July 4, 1949 (J.O. 1953, p. 4971). This airport is managed by a public utility company with a bi-national status controlled by the French Ministry of Transport and the Swiss Federal Department of Transport and Communication. Another example is the Airoport de Genkve-Cointrin, also operated on the basis of an agreement between France and Switzerland. Austria and the Federal Republic of Germany have concluded a treaty concerning the effects of the installation and operating of the airport of Salzburg upon the territory of the Federal Republic of Germany. dated December 19, 1967 (BGBI. 1974 11, 13). This treaty does not touch the principle of territorial sovereignty which bars German administrative action regulating the operations of the Salzburg airport to protect G m a n legal rights

26

AIRPORTS

and interests (Bayerischer Verwaltungsgerichtshof, August 8, 1983, Zeitschrift fur Luft- und Weltraumrecht, Vol. 32 (1983) p. 382). The treaty provides for compensation, to be paid by the Federal Republic and to be refunded by Austria. Regulations of this Treaty in connection with the German Act of assent which oblige German owners of real property to endure the operation and air noise of the Salzburg airport are not an unconstitutional infringement of property rights (German Federal Constitutional Court, March 12, 1986, BVerfGE 72, 66). 3. Access and Regulation of Use (a) Traffic and landing privileges The contracting States of the Chicago Convention recognize that every State has complete and exclusive sovereignty over the airspace above its territory (Art. 1; -- Sovereignty over Airspace). The right to fly over the territory of a State and to land on its territory derives, therefore, from the grant of permission or from a contractual obligation by this State. The Chicago Convention accords only the privilege of transit night and of landing in case of non-scheduled air traffic (Art. 5). The privileges of commercial discharge from the country of the aircraft and of commercial embarcation to the country of the aircraft and the privilege of conveying passengers, mail and cargo between any two States must be granted by permission or in a bilateral air transport agreement, as a rule on terms of -- reciprocity (cf. W. Schwenk, Handbuch des Luftverkehrsrechts, 1981, p. 358 et seq.). For instance, the agreement of the Federal Republic of Germany with Poland of May 22, 1975 is the 71st German air transport agreement after World War II (BGBI. 1985 II, 642). Aircraft operations in the air are regulated by the law of the territorial State. Each contracting State of the Chicago Convention may, subject to the provisions of the Convention, designate the route to be followed within its territory by any international air service as well as the airports which any such service may use (Art. 68). (b) Air navigation facilities The safety, regularity and efficiency of air navigation depends on a set of facilities which

airports must provide. Those facilities are secured by domestic regulations. according to the international standards and procedures adopted by ICAO (Chicago Convention, Art. 37). Those international standards and recommended practices embrace inter alia communications systems and air navigation aids, including ground marking and rules of the air as well as air traffic control practices. (c) Non-discriminatory use of an airport The operator of an airport which is open to public use by the national aircraft of a contracting State of the Chicago Convention shall likewise be open under uniform conditions, subject to the designation of routes and airports under Art. 68, to the aircraft of all the other contracting States. Accordingly, any airport charges and similar charges imposed for the use of the airport and air navigation facilities by the aircraft of any other contracting State may not be rl':-:riminatory (Art. :nust secure the observance 15). The domestic of this international obligation by the airport company or authority, e.g. by a legally prescribed necessity for the airport operator to obtain an authorization for use and charge regulations. A different charging of domestic and international traffic, however, is justified in accordance with Art. 1" of the Chicago Convention by a reasonable difference in airport expenditure or in the competitive situation of the charged traffic (Bundesgerichtshof, October 27, 1972, Zeitschrift fiir Luft- und Weltraumrecht, Vol. 23 (1974) p. 74).

L,.

Convention on International Civil Avf~ti'6h, : Chicago, December 7, 1944, UNTS, Vol. 15.~(1948)2.95~375. L:..: ~1t ~'~i; _ Internationale Luftfahrtabkoinri1~n, 6 vols. (1953-1972). R. SCHLEICHER. F. REYMANN and H.J. ABRAHAM. Das Recht der Luftfahrt, Vol. 1: AIIgemeine Einleitung und Internationales Luftrecht (3rd ed. 1960). BIN CHENG, The Law of International Air Transport (1962). s. MlLATCHITCH, L'etablissernent des aerodromes, Revue Generale de l'Air, Vol. 25 (1962) 356-373. J. LAGOS, Los diferentes sistemas de gestion de los aeroportos civiles (1966). G. LODlGlANI, II regime giuridico degli aeroporti e il diritto intemazionale, Diritto intemazionale, Vol. 20 (1966) 326-347. G. LODlGlANI, I trasporti aerei nell'ordinamento deIla A. MEYER,

AIRSPACE OVER MARITIME AREAS

comunita economica europea, II Diritto Aereo, Vol. 6 (1967) 1-27. G. LADET, Statut juridique , organisation et fonctionnement de l'aeroport international de Bale-Mulhouse, Revue du Secretariat General aI'Aviation Civile, Vol. 140 (1970) 37-44. T. SUWARDI, The Status and Functions of a State Corporation as an Airport Authority (1971). G. CAMARDA, II regime giuridica delle infrastrutture aeronautiche (1972). D.H. SISKIND, Air Rights (1974). I. SEIDL·HOHENVELDERN, Die Regelung internationaler Umweltschutzprobleme im Faile des Salzburger F1ughafens, in: Festschrift fur Alex Meyer (1975) 205-216. G. RINALDI BACELLI, La collaboration internationale en matiere d'aeroport (1976). G. PUCCI, Aviation Law (3rd ed. 1977). K. KOPPERS, Die Stellung auslandischer Nachbarn bei Genehmigung gefahrlicher Anlagen im Inland, Deutsches Verwaltungsblatt, Vol. 93 (1978) 686-689. w. SCHWENK, Problems of Airports in the Vicinity of Foreign States, Annals of Air and Space Law, Vol. 3 (1978) 225-235. R.S. GREENBAUM and J.A. BOSCO, Study of Developments in Airport Law, The Urban Lawyer, Vol. 11 (1979) 363-376; Vol. 12 (1980) 429-444. c. RHYNE, Airports and the Law (1979). W. TEUCHERT et al., Luftrecht (1979). W. BERGMANN, Sowjetisches Luftrecht (1980). J.F. BENTZIEN, Der europaische Luftverkehr und der EWG-Vertrag, Zeitschrift fur Luftrecht und Weltraumrechtsfragen, Vol. 30 (1981) 258-277. W. SCHWENK, Handbuch des Luftverkehrsrechts (1981). L. WEBER, Die Zivilluftfahrt im Europaischen Gemeinschaftsrecht (1981). J. NAVEAU, L'Europe et Ie transport aerien (1983). K.·H. BOCKSTIEGEL (ed.), International Colloquium on Construction and Extension of Airports (1984). P. BADURA, Rechtsfragen der F1ughafenplanung, in: Festschrift fur die Bitburger Gesprache (1985) 27-53. PETER BADURA

AIRSPACE OVER MARITIME AREAS 1. Historical Evolution The need for coherent legal concepts governing the airspace was occasioned by the development of air navigation at the beginning of the 20th century. The first commercial air services were established in 1910. Charles Lindberg crossed the North Atlantic in 1927 and scheduled flights across the world's oceans were organized for the first time during the 1930s. Customary and written princi-

27

pies dealing with the airspace are, therefore, relative newcomers in public international law. Following some doctrinal controversy among jurists, two basic theories evolved: that of the total freedom of the air and the theory of sovereignty. As regards the air above a State's territory and ~ territorial sea, the theory of sovereignty prevailed and emerged as a principle of customary international law ( ~ Sovereignty over Airspace). As regards the airspace over the open sea, however, the concept of freedom of the air was never successfully challenged. It is only recently that coastal States have started to encroach on this concept by endeavouring to extend national jurisdictional claims beyond the air over their territorial seas into the air above the open sea.

2. Current Legal Situation Under ~ customary international law each State's sovereignty extends to the airspace above its territory and territorial waters. The airspace above the ~ high seas, on the other hand, is recognized as an area open to all nations and not subject to the sovereignty of any State. This freedom has been enshrined in Art. 2 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82), which states that freedom of the high seas comprises, inter alia, freedom to fly over the high seas, and it is now acknowledged to the same extent in Art. 87 of the United Nations Convention on the Law of the Sea of December to, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8). While the opinio communis on the two principles has never seriously been challenged, the views as to the nature, contents and geographical limits of a State's sovereignty over the air have always been divided. Although the third ~ Conference on the Law of the Sea did not purport to settle disputes specifically related to the airspace above maritime areas, the impact of the 1982 Law of the Sea Convention in attaining a more accurate definition of the principle of freedom of the air over maritime areas cannot be underestimated. The Convention distinguishes several zones in the sea which include, inter alia, the territorial sea and the ~ contiguous zone, ~ straits used for international navigation, archipelagic waters

28

AIRSPACE OVER MARITIMI: AREAS

(- Archipelagos), the - exclusive economic zone (EEZ) and the high seas.

(a) Airspace over the territorial sea and the contiguous zone Art. 3 of the 1982 Convention grants every State the right to extend the territorial sea up to 12 nautical miles into the ocean, thus bringing the airspace over this area under its complete and exclusive sovereignty. In addition, under customary international law ~ coastal State may exercise in a zone contiguous to its territorial sea such control as is necessary to prevent and punish violations of its customs, fiscal, immigration or sanitary laws and regulations. Art. 33 of the Convention takes up the concept of the contiguous zone with the modification that it may not extend beyond 24 nautical miles. Rights of the coastal State with respect to the maritime area within its contiguous zone also extend to the airspace above the contiguous zone. The freedom to use the airspace over the contiguous zone is, however, in general subject to the regime applicable to the EEZ.

(b) Airspace above international straits The right of innocent passage through the territorial sea does not include the passage of - aircraft through the air above the territorial sea. Art. 38 of the 1982 Convention stipulates, however, that in straits used for international navigation between one part of the high seas or an EEZ and another part of the high seas or an EEZ, all aircraft enjoy the right of transit passage which shall not be impeded (- Innocent Passage, Transit Passage). Obviously, the introduction of the right of transit passage as a new concept in - air law is designed to eliminate possible detrimental consequences to international aviation deriving from the extension of the territorial sea to 12 nautical miles. Various questions arise as to the power of States bordering straits to restrict the right of transit passage and to impose obligations on aircraft in transit. The concept of transit passage clearly excludes any activity by aircraft in transit that is not a constituent part of the transit flight. It remains, however, an open question whether or not bordering States have prescriptive authority

and/or unilateral enforcement powers relating to the transit passage of aircraft. It is suggested that there is no such prescriptive authority for aircraft in transit. However, since the .;; xercise or sovereignty or jurisdiction not restricting normal transit passage is not affected b"i the Com -ention . aircraIt in transit remain subject to the coastal 3~ate's general municipal law. Tht crucial test to this respect will be whether or not the application of municipal law implies restrictions on the right of - overflight of the straits. As to enforcement powers. a breach of duties under the Convention or the municipal law by an aircraft in transit does not give the bordering State the right to take unilateral action to prevent the passage except where such action is designed for the protection of vital security interests against imminent and evident dangers resulting from activities of aircraft in transit (e.g. right of - self-defence; - Vital Interests) .

(c) Airspace above archipelagic waters and the adjacent territorial sea The special geographic situation of archipelagic States has led to the adoption, under the 1982 Convention, of a regime of passage for aircraft similar to that used in international straits. According to the concept of archipelagic States, vast water areas may be subject to the sovereignty of an archipelagic State which may considerably impair international aviation. In order to guarantee an unhampered and free international air service, the Convention - recognizing larger security interests of archipelagic States with respect to transiting ships - has established the right of archipelagic - sea lanes passage in air routes (Art. 53). Such passage means "the exercise in accordance with [the] Convention" of the right of "overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone". Unlike States bordering international straits, however, the archipelagic State has the right to designate, in accordance with Art. 53 of the Convention, special air routes suitable for the continuous and expeditious passage of foreign aircraft over its archipelagic waters and the

AIRSPACE OVER MARITIME AREAS

adjacent territorial sea. Beyond this right, there is presumably no prescriptive authority or enforcement power with regard to aircraft in transit unless the archipelagic State takes exceptional, immediate action against imminent and evident dangers to its security interests. (d) Airspace above the exclusive economic zone Under Art. 56 of the Convention, the coastal State has jurisdiction within the limits of the EEZ "with regard to (i) the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the protection and preservation of the marine environment" (~Artificial Islands and Installations; ~ Marine Research; ~ Marine Environment, Protection and Preservation). The air law implications of the establishment of the EEZ were not dealt with by the Convention. The establishment of an EEZ does not justify any restrictions of the traditional freedom of overflight of the area now recognized as the EEZ and "other internationally lawful uses of the sea related to [this] freedom" as granted by Art. 58(1) of the Convention. A third State, therefore, is not precluded from civil or peaceful military uses of the airspace above the EEZ. In the exercise of these rights, States must, however, have due regard to the economic rights and duties of the coastal State and must comply with the laws and regulations adopted by the coastal State in accordance with the Convention and other rules of international law. It follows that activities of foreign aircraft relating to the economic exploration and exploitation of the zone are subject to the sovereignty of the coastal State. As to the prescriptive authority of the coastal State, it is questionable whether the coastal State has jurisdiction to extend its laws and regulations pertaining to aircraft movements into the EEZ. It is suggested that in the airspace above the EEZ, the rules of the air set by the ~ International Civil Aviation Organization (ICAO) should be mandatory and that in any event the coastal State's jurisdiction over the EEZ does not extend to the power to prescribe operational rules with regard to foreign aircraft. An exception is to be made with regard to aircraft movements to and from the coastal State's artificial islands and installations within the EEZ. Since landings and take-offs inevitably affect the coastal State's rights of

29

control over these structures, it seems reasonable to grant the coastal State aviation jurisdiction over these structures. The exercise of such jurisdiction, however, does not justify general restrictions on the freedom of flight over artificial islands and installations, but is limited to national traffic regulations designed to avoid navigational hazards. The jurisdiction of the coastal State over the protection and preservation of marine environment under Art. 56(1) of the Conven tion does not in general correspond to the right of the coastal State to prescribe or enforce pollution standards for aircraft. It is basically up to each State to define, regulate and enforce pollution standards for its own national aircraft flving in the EEZ (see Arts. 212 and 222 of the Convention). Under international agreements on tile protection of the environment, however, States may agree to prosecute such violations (Convention for the Prevention of Maritime Pollution by Dumping from Ships and Aircrafts, February 15,1972, UNTS, Vol. 932, p. 3). Nevertheless, under special circumstances a coastal State's environmental interests may be seriously affected by activities of aircraft above the EEZ (e.g. deposit of radioactive materials, ~ nuclear tests). The Convention does not delineate the coastal State's rights in these instances. Due to the novelty of the concept of the EEZ, neither does customary international law. Marine scientific research is also an area in which the coastal State is granted jurisdiction under Arts. 56(1)(b) and 245 of the Convention. Thus, while general jurisdiction over research aircraft lies with the State of registry, the coastal State may regulate, authorize and conduct marine scientific research by aircraft in the EEZ and on the ~ continental shelf. In contrast to its exclusive rights over marine scientific research within the territorial sea, the coaszal State is according to Art. 246(2) under a Ci"illified duty to consent to marine scientific research projects by other States in its EEZ or on its continental shelf. However, the exceptions provided for in Art. 246(5) blur this duty considerably, leaving it basicnllv to the discretion of the coastal State to allow research by foreign aircraft. (e) Airspace above the high seas According to customary international law the

30

AIRSPACE OVER MARITIME AREAS

airspace above the high seas is open to all nations whether coastal or land-locked (~ Land-Locked and Geographically Disadvantaged States). It follows that foreign aircraft in the airspace above the high seas are not subject to the jurisdiction of coastal States. Art. 87 of the 1982 Convention incorporates this traditional principle, comprising amongst other lawful uses all activities of aircraft unless prohibited as harmful. Overflight as explicitly mentioned in Art. £7(1)(b) is therefore just one example of the lawful uses of the airspace above the high seas. The principle of freedom over the air includes also the freedom to use the ocean airspace for military exercises, ~ military reconnaissance and all other activities of civil and ~ State aircraft. Naturally the principle requires that States which avail themselves of any freedoms must pay due regard to rights and interests of other States in their exercise of the freedom of the air (see Art. 87(2». In addition, customary international law recognizes in very specific circumstances exceptional and limited jurisdictional and enforcement rights with regard to foreign aircraft above the high seas. Thus a State has the right to "seize a pirate .., aircraft, or . . . aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board" (Art. 105 of the 1982 Convention; ~ Civil Aviation, Unlawful Interference with), and the right of self-defence. Neither State practice nor the opinion of legal writers recognizes a right to - hot pursuit of aircraft into the airspace above the high seas, if hot pursuit is understood as the right to intercept foreign aircraft. Accordingly, the 1982Convention in Art. 111 confines the right of hot pursuit to ships, although it has been argued to embrace the hot pursuit of aircraft as well. A further claim to limited jurisdiction over the airspace above the high seas relates to the establishment of air defence identification zones. While the requirement of identification itself without interference with aircraft movements can hardly be considered as an unlawful restriction on the freedom of overflight, enforcement measures and unilateral imposition of regulations that provide for flight rules and the possible prosecution of pilots amount to an extension of the coastal State's jurisdiction which is irreconcilable with the principle of the freedom of the air above the high seas.

The principle in Art. 89 of the Convention that no State may validly purport to subject any part of the high seas to its sovereignty is prima facie opposed to any claim of control over foreign aircraft above the high seas. 3. Evaluation While there is an opinio communis on the two principles that States have sovereignty over their territorial airspace and that the airspace above the high seas is free. the exact nature, contents and geographical limits of these principles are still very much in dispute. In further discussions on the subject, the new UN Convention will serve as a major vehicle to define and mark of the scope of the two recognized principles. With the extension by the Convention of sovereign or "quasisovereign" powers to coastal States, the traditional rule of freedom of the air above the oceans may be jeopardized. New concepts under the Convention, such as the right of transit passage for aircraft in international straits and archipelagic air routes and the right of freedom of navigation in the EEZ, serve to guarantee an unhampered and free international air traffic. There are questions, however, as to the exact scope of the right of transit passage, the legal regime of the airspace above the EEZ and the rights and duties of coastal States concerning aircraft in transit that are yet to be answered. Convention on International Civil Aviation, December 7, 1944, UNTS, Vol. 15 (1948) 295-375. Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.S; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Hying Over the Exclusive Economic Zone, Zeitschrift fur Luft- und Weltraumrecht, Vol. 27 (1978) 15-17. J.K. GAMBLE (ed.), Law of the Sea: Neglected Issues, Proceedings, Law of the Sea Institute, Twelfth Annual Conference, Co-sponsored by the Institute of International Law of the University of Utrecht, October 23-26, 1978, The Hague, Part III: Air Space and the Law of the Sea (1979) 119-162. J.F. BENTZIEN, Der unerlaubte Einflug von Luftfahrzeugen in fremdes Staatsgebiet in Friedenszeiten und P. HELLER,

AMOCO CADIZ INCIDENT

seine Rechtsfolgen, Schriften zum Volkerrecht, Vol. 75 (1982) 11--:25. K. HAILBRONNER, Freedom of the Air and the Convention on the Law of the Sea, AJIL, Vol. 77 (1983) 490-520. K. HAILBRONNER, The Legal Regime of the Airspace above the Exclusive Economic Zone, Air Law, Vol. 8 (1983) 30-44. M. MILDE, United Nations Convention on the Law of the Sea - Possible Implications for International Air Law, Annals of Air and Space Law, Vol. 8 (1983) 167-201. H.A. WASSENBERGH, Parallels and Differences in the Development of Air, Sea and Space Law in the Light of Grotius' Heritage, Annals of Air and Space Law, Vol. 9 (1984) 163-176. J.-L. MAGDALENAT, Les implications de la nouvelle convention sur Ie droit de la mer en droit aerien, Annuaire de Droit Maritime et Aerien, Vol. 8 (1985) 323-338. Y. OSADA, The Significance of Freedom of the Air in the New Regime of the Law of the Sea (1985) (in Japanese). KAY HAILBRONNER

AMOCO CADIZ INCIDENT 1. The Incident

On March 16, 1978 the Amoco Cadiz, a Liberian-registered tanker operated by a United States oil company, ran aground off the coast of Brittany after its steering gear failed in a storm. More than 200 000 tons of crude oil spilled into the sea causing pollution of intensively used fishing grounds and of several hundred kilometers of beaches (~ Marine Environment, Protection and Preservation). The damage to fisheries, the loss suffered by the tourist industry, and the costs of the clean-up operations were estimated to have been as high as several hundred million US dollars. Thus, the Amoco Cadiz incident was the most disastrous in the history of tanker transportation (see also -+ Torrey Canyon, The). 2. Legal Issues

France did not make a claim of State responsibility against Liberia or the United States (~ Responsibility of States: General Principles). Compensation for her own costs and the damage suffered by her nationals, thus, had to be sought by way of private transboundary litigation applying principles of civil liability. France as well as Liberia were parties to the

31

International Convention on Civil Liability for Oil Pollution Damage, November 29, 1969 (UNTS, Vol. 973, p. 3; ~ Oil Pollution Conventions). This international instrument could have served as a basis for the settlement of the claims. The Convention provides for strict liability of the owner of the ship causing oil pollution, but liability is limited to a fixed amount. Under the Convention, the owner of the Amoco Cadiz, the Amoco Transport Company of Monrovia, would have been held liable. However, the liability limit at the time of the incident was about $ 14 million. This sum would have covered only a very small part of the damage suffered by the State of France, the various French local authorities, the private parties (fishermen, hoteliers, etc.) and also by Petroleum Insurance Limited, the insurer of the cargo who had to pay for its loss. The question, therefore, arose whether, under the Convention or any other law to be applied, claims might also be made against other parties involved. Such parties included, for example, the following: the Amoco International Oil Company with headquarters in Chicago, the operator of the tanker; the Standard Oil Company of Indiana with principal office and place of business in Chicago, the parent company of both the owner and the operator companies; Astilleros Espafioles, a Spanish corporation which built the tanker; the American Bureau of Shipping, which had been responsible for classification of the tanker; and the German Bugsier Reederei und Bergungs-AG, whose vessel Pacific was involved in the salvage operations. Multiple suits were brought in the United States against different groupings of potentially liable parties. Whereas the French local authorities and the groups of private parties (fishermen, hoteliers, etc.) made their claims against all who could conceivably be held liable, the State of France claimed against Standard Oil Company of Indiana and Amoco International Oil Company. Petroleum Insurance Limited brought its suit against all oil companies and the German company Bugsier. In 1983 all suits were consolidated in the United States District Court for the Northern District of Illinois. On April 18, 1984 the District court gave its judgment on liability (Lloyd's Law Report, Vol. 2, p. 304). On January 12, 1988 the Court decided on determination of damages.

32

AMOCO CADIZ INCIDENT

In its judgment of April 18, 1984, the Court found that Amoco Transport Company of Monrovia, Amoco International Oil Company, and Standard Oil Company of Indiana were jointly and severally liable for the damage caused by the incident. The Court decided that the applicable law was United States law, rejecting application of French law and the 1969 International Convention on Civil Liability for Oil Pollution Damage. United States law was found applicable since, in the opinion of the court, it was not different from French law and the law of the Convention. In this context, the court gave an interesting and much-critized interpretation of the Convention. It reasoned that the channelling by-the Convention of strict liability to the owner of a ship did not exclude liability of other parties involved in an accident, and that only "agents or servants" of the owner might be exempt from liability. Neither Amoco International Oil Company nor Standard Oil Company of Indiana, however, could be regarded as "agents or servants" of Amoco Transport Company of Monrovia. By this construction the Court found that the Convention corresponded to United States law and that, consequently, the rules of liability and compensation contained in United States law for ship-caused pollution could also be applied. Under the rules which provide for liability on the basis of negligence, the three defendants were held jointly and severally liable because they had failed to take the necessary measures to prevent the accident. On the other hand, the Court denied liability of the American Bureau of Shipping and also the German tug company Bugsier. The Court also rejected the counter-claims against the French plaintiffs for negligence on their part. The Court, however, granted the third-party claim for indemnity anJ contribution against Astilleros Espaiioles, the St-anish ship-building company, and found the Spanish company liable in an amount to be determmed in separate proceedings. These proceedings are still pending. In its judgment of January ',2, 1988 the Court ordered the three oil companies to pay about $ 85 million in damages and prejudgment interest to the State of France and the various other French plaintiffs. The plaintiffs, thus, were granted considerably less than they had claimed. This was expressly recognized by the Court, which main-

tained that the amount of damage "was exaggerated particularly on the part of the communes" Both defendants and plaintiffs announced their intention to appeal the damages award. In addition, the defendants announced their intention to appeal the Court's decision on liability of April 18, 1984. Therefore, at the time of writing in late 1988, the proceedings are far from being completed. 3. Evaluation

Although the 1969 Convention up to now played only an indirect role in the legal proceedings concerning the Amoco Cadiz incident, the incident had a significant impact on the discussions concerning the further development of this international instrument. The incident was only the most disastrous iu a series of tanker accidents, but it provided aduiuc.ial evidence that the existing system 01 Is;]·· .'. _j' r.nd compensation for marine oil poliurioi, .', -. .age was insufficient. The incident showed in P' rticular, that the liability ceilings set by the J ;](h Convention were inadequate to cover the damage which may occur in a serious accident, that channelling liability to the owner of a ship was problematic, and also that the definition of damage contained in the 1969 Convention was too narrow since it made no reference at all to ecological damage, which may also be caused in addition to economic damage. At least some of these deficiencies were taken into account when, in 1984, a protocol was adopted which amended the 1969 Convention. In Re Oil Spill by the "Amoco Cadiz" off the Coast of France on March 16, 1978, United States District Court (N.D.III. 1984), Lloyd's Law Report, Vol. 2 (1984) 304 et seq. In Re Oil Spill by the "Amoco Cadiz" off the Coast of France on March 16, 1~78, Decision of United States District Court, MOL Docket No. 376 (N.D.Ill., January 11, 1988). Chronique des faits intemationaux: France et Liberia, RGDIP, Vol. 82 (1978) 1125-1157. M. REMOND-GOUILLOUD, Lecons d'un naufrage (it propos de l'indemnisation des victimes de I' Amoco-Cadiz), Recueil Dalloz Sirey (1979) 133-138. R. KBAIER and v. SEllE/(, New Trends in Corr-p-r.sation for Oil Pollution Damage. Amort) Cadiz Legai ~"."' ..' ings and the 1984 Diplomatic Cc.iference on Liabi, and Compensation, Marine Policy, Vol. 9 (1985) 269-279.

C. ROUSSEAU,

ARCHIPELAGOS

Le proces de l'Amoco Cadiz: present et voies du futur, AFDI, Vol. 31 (1985) 762-782. ROSENTHAL and c. RAPER, Amoco Cadiz and Limitation of Liability for Oil Spill Pollution: Domestic and International Solutions, Virginia Journal of Natural Resources Law, Vol. 5 (1985) 259-295.

L LUCCHINI, L

LOTHAR G(JNDLING

33

Nations Conference on the Law of the Sea (UNCLOS III) not only contains a section entitled "Archipelagic States", but also reflects the archipelagic theory in other articles, such as those on the right of transit passage (~ Innocent Passage, Transit Passage). Archipelagic claims have now become an established special category in the international ~ law of the sea.

ARCHIPELAGOS 1. Background States in many parts of the world are increasingly enacting laws permitting them to exercise , jurisdiction over parts of the earth's surface not long ago considered outside their ~ sovereignty (~Jurisdiction of States). The advocates of particular and exclusive interests, especially those of the coastal States, have gained a greatly enhanced ideological and political influence. The criteria of proximity and special circumstances are invoked to underpin definitions of extensive sea areas as appertaining, by virtue of geography, to the territories of their neighbouring coastal States. One special relationship deriving from proximity and geophysical circumstances is the archipelago doctrine. Many of the States constituted by ~ island groups or archipelagos are to be found among the voting bloc of ~ developing States in the ~ United Nations General Assembly identified as the "Group of 77" (although the actual membership greatly exceeds 77). Within the Group of 77, the archipelagic States have constituted an influential component of those pressing for legal change away from the doctrine of the freedom of the ~ high seas. At the United Nations ~ conferences on the law of the sea this new interest group found additional allies among continental States with similar defence and security, police, economic, resources conservation and customs enforcement interests. The effectiveness of the archipelagic State diplomacy can be seen in the final version of the 1982 Law of the Sea Convention. The Draft Articles on the Law of the Sea presented to the First United Nations Conference on the Law of the Sea (UNCLOS I), held in 1958 in Geneva, contained no archipelago provisions, nor did any of the treaties emanating from the Conference. The final version adopted at the Third United

2. Emergence and Evolution of the Archipelagic Doctrine From a purely geographical perspective many groups of islands which form a political unity fall into the category of "Archipelago". D.P. O'Connell formulated a list of such States under the following headings: (i) coastal archipelagos. including Australia, Cuba, Denmark, Egypt, Finland, Iceland, Norway, Saudi Arabia, Sweden, the United Kingdom, the United States and Yugoslavia; (ii) outlying archipelagos, encompassing Bermuda, the Cook Islands, the ~ Faroe Islands, the Fiji Islands, Galapagos, Hawaii, Iceland and ~ Spitzbergen; and (iii) special outlying archipelagos, including only the Philippines and Indonesia. To this last category we may add the claims of Micronesia. Writing in 1970, O'Connell noted that the problems faced by nations comprised chiefly of groups of islands generated increasing pressure for the recognition of the archipelago doctrine. He expressed the view that the contemporary threefold conceptual structuring of the law of the sea into the law of the high seas, the ~ territorial seas and the ~ internal waters was too rigid to take into account the diversity of geographical and political problems in many contexts, including those of archipelagos. The archipelago doctrine was also presaged in the works of other publicists long before it was acknowledged by States. F. Munch was one of the first to focus scholarly attention on the idea that archipelagic States could gain greater political identity and unity by enclosing their island groups into one extensive area. In the 1930s, he had proposed a mathematical formula to test the viability of treating island groups as a single unit (see D.P. O'Connell, p. 11), but this did not receive widespread support from international organizations and States. Most archipelago States were then ~ colonies at a time when most major colonial powers were also major

---------------------------------_

•..

_-----

36

~

ARCHIPELAGOS

straits transit passage as defined in Arts. 38 to 44. When sea lanes are established, ship navigation and --+ overflight are restricted to them and the archipelagic State may also establish traffic separation schemes. In addition, when sea lanes are not established, the right of innocent passage prevails outside such internal waters which the archipelagic State may establish under Art 50 and "in accordance with Arts. 9, 10 and 11" of the Convention, which are limiting articles. It should, furthermore, be noted that Art. 50 does not incorporate by reference the more extensive and permissive provisions relating to internal waters to be found in Arts. 6 and 7. Because Art. 53 vests in archipelagic States an ability to restrict, at least to some extent, the right of innocent passage, the new concept of archipelagic sea lanes passage reflects a considerable concession by the maritime Stites, but one which they clearly feel their shipping and aircraft can reasonably accommodate without too great a consumption of time and fue., Art. 52 provides that an archipelagic State may temporarily suspend the innocent passage of foreign ships, but only if such a suspension is "essential for the protection of its security". Art. 53 goes on to expound upon the regulation of passage through States' archipelagic waters. Because it is discretionary for the State to decide its own form of regulation of passage and the operational meaning of its security, a considerable liberty of action may well be provided for these States. Thus, innocent passage in respect of archipelagic States may be rendered more restrictive than normal innocent passage through a coastal State's territorial sea. Interestingly, this also applies 10 --+ airspace over maritime areas, an important element in the law of the sea. It should be noted that the whole issue of historic bays and historic internal waters (--+ Historic Rights) was bypassed hy UNCLOS III, as it had been by the two previous Conferences. Nevertheless, the Phillipines, Tonga, and Micronesia claim as historic waters extensive rectangular areas of ocean around their archipelagic formations. Such claims exte nd great distances beyond the archipelagic water; recognized under the 1982 Convention. Juridically, the quality of rights of historic waters is generally accepted as

being that defined as falling under the broader category of "internal waters". Hence, such claims leave to foreign States's maritime traffic and aircraft no right of archipelagic sea lanes transit passage let alone innocent passage. But the geographical and juridical extent of the Tongan and Phillipines claims put them in opposition to the provisions of Part IV of the Convention. Their geographical extent, furthermore, places them in opposition to juridical concepts of historic waters as generally and traditionally accepted in State practice and by reputable publicists. (b) Baselines

At UNCLOS III, one of the most controversial debates centered around how baselines were to be drawn. The results of these debates crystallized into Art. 47, which provides for straight baselines joining the outermost points of the outermost islands and "drying reefs", so long as the domain included within those baselines constituted by the main islands and the water area is not greater than a 9:1 ratio of water to land. It also prescribes that the length of the baselines shall not exceed 100 nautical miles, "except that up to 3 per cent of the total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of 125 nautical miles" (Art. 47(2». Art. 47(3) also formulates the requirement that the "baselines shall not depart to any appreciable extent from the general configuration of the archipelago". This, clearly, is an adaptation of the Norwegian Fisheries Case formula requiring baselines to follow "the general direction of the coast" . In dehmiting its baselines the archipelagic State may not "cut off from the high seas or the exclusive economic zone the territorial sea of another State" (Art. 47(5». Nor may such baselines cut off "existing rights and all other legitimate interests which the latter State has traditionally exercised in such waters and all rights stipulated by agreement between those States shall continue and be respected" (Art. 47(6». Art. 49 (1) stresses again the special powers of the archipelagic State over conduct in its archipelagic waters. Reiterating Art. 2(1) of the Convention, it provides that the rights of the archipelagic State over the waters enclosed in the

. _ - _ . __ ._-----~--

ARCHIPELAGOS

baselines are those of "sovereignty" subject only to the rights of archipelagic sea lanes passage or the innocent passage envisaged in Art. 52. This sovereignty extends also to the airspace above the archipelagic waters, "as well as to their bed and subsoil, and the resources contained therein" (Art. 49(2)). Thus, once baselines are drawn, there exists an imaginary shield from below the sea-bed extending to the space above the earth, enclosing a country in a nest of unilaterally exercisable discretions. Obviously, the further out these baselines extend, the more the old doctrine of "freedom of the high seas", and the emerging slogan ~ "common heritage of mankind" become increasingly restricted.

5. Conclusion It is clear that under the 1982 Convention on the Law of the Sea, as well as under contemporary ~ customary international law, the traditional major maritime powers no longer can maintain the privileges and immunities they have enjoyed in recent centuries under the rubric of the freedom of the seas. The exclusive claims of coastal and insular States are now thrusting forward. Among them are the claims of archipelagic States. Hence, it has come to be widely agreed that the archipelago doctrine has crystallized into customary international law as a result, not only of the practice of a number of archipelagic States in asserting claims over waters within their island groups, but also the respect which, in fact, shipping and air navigation in archipelagic waters generally accords to the special claims which insular States assert, as well as the doctrine's recognition by UNCLOS III, culminating in its embodiment in Part IV (Arts. 46 to 54) ofthe 1982 Convention. Although, in principle, the doctrine has become accepted as falling, generally speaking, within the norms of customary international law, many specific issues remain unresolved. In addition, it should be stressed that the status of some claims and theoretical expositions remain outside the international law of the sea as it stands. While the trend toward increasing widely extended exclusive offshore rights has not yet run out, the archipelagic States with some exceptions have recognized the equities on the side not only of the

37

traditional rnannme States, but talso of the land-locked and geographically disadvantaged States. For the latter, the present-day jurisdictional enclosure of wide stretches of the high seas creates problems of survival of possibly greater magnitude and threat than such enclosure does regarding the major maritime powers. The fact that the archipelago doctrine appears not to have created major dislocations in maritime commerce and navigation, or come to constitute a threat to the survival of some geographically disadvantaged States, vouches well for the doctrine's ability to take its place among the institutions and doctrines of generally accepted customary international law.

~

United Nations Convention on the Law of the Sea, December 10,1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354).

The Territorial Sea of Archipelagos, NedTIR, Vol. 6 (1959) Special Issue: Liber Amicorum J.P.A. Francois, 315-331. D.P. O'CONNELL, Mid-Ocean Archipelagos in International Law, BYIL, Vol. 45 (1971) 1-77. C.F. AMERASINGHE, The Problem of Archipelagos in the International Law of the Sea, ICLQ, Vol. 23 (1974) M. S0RENSEN,

539-575.

The Archipelagic Concept in the Law of the Sea: Problems and Perspectives, Philippine Law Journal, Vol. 49 (1974) 315-386. R. STURIES, Archipelgewasser, Zur Entwicklung eines neuen Rechtsbegriffs im Seerecht (1981). J.R. COQUIA, Development of the Archipelagic Doctrine as a Recognized Principle of International Law, Philippine Law Journal, Vol. 58 (1983) 13-41. B.A. HAMZAH, Indonesia's Archipelagic Regime, Implications for Malaysia, Marine Policy, Vol. 8 (1984) M.D. SANTIAGO,

30-43.

The Modern Concept of the Off-Lying Archipelago in International Law. CanYIL, Vol. 23

L.L. HERMAN,

(1985) 172-200.

The Legal Regime of Archipelagos, GYIL. Vol. 29 (1986) 137-153. D.L. LARSON, Innocent, Transit, and Archipelagic Se. Lanes Passage, Ocean Development and Internationa. Law, The Journal of Marine Affairs, Vol. 18 (1987)

HP. RAJAN,

411-444.

The Emerging Customary Law of Marine Zones: State Practice and the Convention on the Law of the Sea, Netherlands Yearbook of International Law, Vol. 18 (1987) 121-144.

R. WOLFRUM,

L.F.E. GOLDIE

38

ARTIFICIAL ISLANDS AND II'STALLA nONS

ARTIFICIAL ISLANDS AND INST ALLATIONS 1. Definitions Using the definition of -+ islands in Art. 10 of the Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205), and in Art. 121 of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) as a starting point, an artificial island can be described as a man-made, permanently or temporarily fixed surface, surrounded by water, which is above water at high tide. An artificial island rna y consist of natural materials heaped up by man. Nevertheless, alluvions, even if provoked or guided by man-made works, are natural islands. Floating platforms such as lightships which retain the faculty for manoeuvring fall within the category of moored ships. Lighthouses erected in deep water have been treated as artificial islands (---+ Lighthouses and Lightships). The terms "installations", "devices", "structures" and "equipment" are referred to but not defined in the above mentioned treaties (see 1982 Convention Arts. 60, 80, 87 (1) (d), 194 (3), 209 (2». An "installation" in the context of Art. 5 (2) of the Convention on the Cortinental Shelf of April 29, 1958 (UNTS, Vol. 499,.p. 311) and Arts. 147 and 258 et seq. of the 1.982 Law of the Sea Convention seems to comprise artificial islands. In a teleological interpretation it is irrelevant whether man-made works such as installations are above water or not. The problem is whether their presence conflicts with the lawful activities of other users of the sea. Even a mass of materials dumped into the sea and never arising above water might raise this problem. The terms "installation" and "structure" suggest fixed or moored objects, whereas "device" and "equipment" can also mean drifting gear.

2. Uses The various applications which have been made of artificial islands and installations may be categorized as follows: (a) Houses constructed in shallow water, huts resting on poles, tourist installations and dwellings for the crews of drilling

equipment. In the Netherlands and in Belgium plans for whole cities in the sea have been discussed to dislodge unwelcome industries from the land. Utopians have tried to establish States on artificial islands. (b) Lighthouses, breakwaters, distant quays, and deepwater ~ ports. Floating airports for transatlantic aviation were devised about 1930; platforms were towed to the Normandy shore and assembled to serve as ports for the invasion army in 1944. (c) Platforms for exploring, drilling, capturing solar energy and exploiting tidal currents: On the southwest African coast platforms have been built to collect guano from the sea-birds gathering on them. (d) Wireless stations, since even radio-pirates have used constructions resting on the ~ sea-bed (---+ Pirate Broadcasting). (e) Defence, such as anti-aircraft towers off the British east-coast. Equipment is also used for observing and signalling. (f) Research and weather observation. (g) Pillars for bridges across ---+ straits.

3. Traditional Law Artificial islands and installations were neither frequent nor important in former times. Construction of artificial islands seems to have been governed by the concept of freedom of the seas (~Law of the Sea, History). The 1958 Convention on the Continental Shelf of April 29, while affirming in Art. 3 the status of the superjacent waters as high seas, allows in Art. 5 (2) to (6) the construction of installations (including artificial islands, as practice shows) for the exploration and exploitation of the ---+ continental shelf. The use of fixed engines in the area of sedentary fisheries (---+ Fisheries, Sedentary), the laying of ~ cables and ---+ pipelines, as well as ---+ mines demonstrate recognition of the principle of the freedom to immerse installations of every kind in the high seas. Acceptance of the use of anchored and drifting fishing nets and gear is shown, moreover, by the negotiations at The Hague Conference of 1881, as well as by the Convention of May 6, 1882 for regulating the Police of the North Sea Fisheries (BFSP, Vol. 73, p. 39) and the Convention on the Conduct of Fishing Operations in the North Atlantic of June 1, 1967 (British Command Papers, Cmnd. 6799, Treaty Series No. 40 (1977», Art. 5, Annex,III, Rule 2, Annex IV; Rules 1 and 2.

39

ARTIFICIAL ISLANDS AND INSTALLATIONS

All activities at sea must respect the equal right of others to use the sea. The Convention on the Conduct of Fishing Operations, Art. 5 (4) to (7) of the Continental Shelf Convention, and the regulations on mine laying establish regimes which respect this principle. Doubts persist whether ~ safety zones apply to all kinds of installations and whether all installations must be removed after use, e.g. the United Kingdom has not removed the anti-aircraft towers off its east-coast. In its ~ internal waters and ~ territorial sea, the coastal State alone may establish artificial islands and installations. However, it may not obstruct ~ sea lanes nor create currents harmful to the waters or coasts of its neighbours. In the ~ contiguous zone artificial islands and installations may not be established which would hamper the exercise of the supervision to which the coastal State is entitled. Artificial islands fall under the jurisdiction of the State which has erected or authorized them. However, the United Kingdom has disclaimed jurisdiction over the abandoned anti-aircraft towers. The United States Deepwater Port Act of 1974 (Public Law 93-627, United States Statutes at Large, Vol. 88 (1974) p. 2126), on the other hand, assumes that artificial islands on the high seas serving as deepwater ports are under the jurisdiction of the federal government and the next situated member state. The United States has insisted that other States expressly give their consent that their ships visiting the Louisiana offshore oil port be treated as if in a United States coastal port. Artificial islands built by private persons have caused perplexity. Some ~ governments have intervened and occupied them, probably as terrae nullius. Artificial islands have no territorial waters or other maritime zones around them, but safety zones may be established in their connection. Artificial islands also have no influence on the tracing of the limits of maritime zones (~ Maritime Boundaries, Delimitation).

4. New Customary Law To the extent that the continental shelf regime can be considered as customary law (see in particular paras. 19, 39, 43 of the North Sea

Continental Shelf Judgment of February 20, 1969, IC] Reports 1969, p. 257; ~ North Sea Continental Shelf Case), the freedom of the waters above the shelf seems to be restricted inasmuch as non-coastal States may not plant artificial islands or installations which would hamper the exploration or exploitation of the riches of the shelf by the coastal State. If the ~ exclusive economic zone became customary law during the Third United Nations Conference on the Law of the Sea, the same argument would obtain for it. Some of the texts proclaiming such zones purport to forbid any artificial islands and installations, but it is doubtful whether this is general law.

5. The 1982 Law of the Sea Convention The 1982 Convention, not yet in force, seems to recognize, in principle, the freedom to construct artificial islands and installations on the high seas (Art. 87 (1) (dj). However, in the exclusive economic zone and on the continental shelf, the coastal State has the exclusive right to construct such works (Arts. 60 and 80). The obligation to remove disused artificial islands and installations is stressed. In the" Area" (Art. 1 (1) (1», the International Sea-Bed Authority regulates the establishment and status of installations (Art. 147). Scientific installations (~ Marine Research), apparently including artificial islands, are denied the status of islands in conformity with traditional law (Arts. 259 to 263). The rule that artificial islands and off-shore installations may not be considered as harbour works and, thus, do not form part of the coast for purposes of drawing a ~ baseline to determine maritime zones (Art. 11, sentence 2) is a new one and may raise a problem about retroactivity.

Convention on the Continental Shelf, April 29, 1058. UNTS, Vol. 499 (1964) 311-354. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205·· 282. ILA Report of the 57th Conference, Madrid, August 30 to September 4, 1976 (1976) 321-343, 396-443. JOI Session de Dijon (1981), AnnJOI, Vol. 59 I (1981) 1-77, Vol. 59 II (1982) 116-138. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records,

I

. _ - - - - - - - - - - - - - - - _ ...

-

_.. _...__ .......

40

ARTIFICIAL ISLANDS AND INSTALLA TIONS

Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Le droit international public de la mer, Vol. 1 (1932) 485-514. R. LAGONI, Kiinstliche Inseln und Anlagen im Meer, JIR, Vol. 18 (1975) 241-282. K.M. KEITH, Floating Cities - A New Challenge for Transnational Law, Marine Policy, Vol. 1 (1977) 190-204. N. PAPADAKIS, The International Legal Regime of Artificial Islands (1977). M.J. BLAKE, Nuclear Plants: A "Reasonable Use" of the High Seas?, California Western International Law Journal, Vol. 8 (1978) 191-227 F. MUNCH, Les iles artificielles et les installations en mer, Za6RV, Vol. 38 (1978) 933-95K D.W. BOWETI, The Legal Regime of Islands in International Law (1979). T. TREVES, Military Installations, Structures and Devices on the Seabed, AJIL, Vol. 74 (1980) 808-857.

G. GIDEL,

FRITZ MUNCH

ASTRONAUTS 1. Notion The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of January 27, 1967 (UNTS, Vol. 610, p. 206; -+ Outer Space Treaty) is the first multilateral" treaty to use the term "astronaut" (Art. V(l». Though used from time to time, the term has not been defined in any of the multilateral treaties on outer space sponsored by the - United Nations. It is descriptive rather than technical, and refers to any person who ventures into outer space or who travels on board a spacecraft (-+ Spacecraft and Satellites). Soviet practice favours the expression "cosmonaut" (see Piradov, p. 103).

2. General International Law Under general international law, there are scarcely any specific rules relating to astronauts. Such rules that exist are derived from the premise (i) that international law is inherently applicable to outer space (see Cheng (1965»; (ii) that outer space, including the moon and other - celestial bodies, comprises areas which in law are no longer subject to national appropriation; and (iii) that, therefore, the legal regime of outer space (-+

Space Law) is analogous to the basic status of the - high seas, shorn of any special rules appropriate only to the latter. On that basis, astronauts of whatever nationality are subject to the full - jurisdiction ("jurisfaction" as well as "jurisaction") of the territorial State, while they are within its territory, including its airspace, whether or not actually on board cheir spacecraft. In addition, they are subject to the quasi-territorial jurisdiction to prescribe (jurisfaction) of the State of registry or launching State of the space vehicle they are in, as well as the personal jurisfaction of their respective national States. As soon as a space vehicle leaves the airspace of the territorial State and reaches outer space, the astronauts on board come under the full jurisdiction of the State of registry, while remaining under the personal jurisfaction of their national States. Once they have definitely left the space vehicle without any intention of returning thereto, they would be subject solely to the jurisdiction of their respective national States (see Cheng (1965) pp. 135-142; (1981) pp. 94-95). On the same basis, astronauts in distress should also benefit from the rules of general international law founded on the - general principle of law on necessity (ct. - Ships in Distress; see Cheng (1953) pp. 69-77). Whether some of the rules concerning astronauts developed in multilateral treaties relating to outer space by the United Nations, to the extent to which they differ from the above rules, have or have not crystallized into general international law is open to question.

3. Treaty Rules (a) Jurisdictional issues The Outer Space Treaty lays down in Art. VIII: "A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body ...." This provision was taken over almost verbatim from paragraph 7 of the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration of Outer Space (UN GA Res. 1962 (XVIII»). Art. VIII, however, changed the word "thereon" in paragraph 7 to "thereof', in order to

41

ASTRONAUTS

show that the rule is applicable to personnel outside as well as inside the space object (see Cheng (1968) p. 570). The interpretation of Art. VIII is not straightforward. On the face of it, Art. VIII makes no provision for persons who do not form part of the personnel (equipage in the French text of the Astronauts Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched into Outer Space, April 22, 1968, UNTS, Vol. 672, p. 119, Arts. 1-4) of a space object, for instance passengers or visitors from another spacecraft. Art. VIII should, however, be regarded as merely confirmatory of general international law rather than establishing a special regime in derogation, and hence excluding the application, of general international law. What it confirms, when it refers to "jurisdiction and control over such object", is the quasi-territorial jurisdiction of the State of registry over the spacecraft and all persons thereof as well as thereon, irrespective of their nationality. Such jurisdiction clearly extends, therefore, to all passengers and visitors, invited or uninvited. When Art. VIII goes on to say, "and over any personnel thereof', this should be treated as exemplificative of the preceding statement rather than as qualifying it. Otherwise, when the personnel of one spacecraft visits another, Art. VIII would cause a conflict of jurisdictions derived from two parts of the same provision. In the light of this interpretation and of the change from "thereon" to "thereof' previously mentioned, it is possible to say that, under Art. VIII, as under general international law, the State of registry retains quasi-territorial jurisdiction over all persons belonging to the space object, both inside and outside the space object, for as long as they can be regarded as still belonging, or being attached, to the space object. This would cover not only those who go on space walks outside a spacecraft, but also those who move about on the moon or other celestial bodies, provided that they belong to an object launched into space. Art. 12(1) of the Moon Treaty (Agreement Governing the Activities of States on the Moon and other Celestial Bodies, December 5, 1979, ILM, Vol. 18 (1979) p. 1434) provides: "States Parties shall retain jurisdiction and

control over their personnel, vehicles, equipment, facilities, stations and installations on the moon ...." This poses no problem provided that the "personnel" in question belong to objects launched into space by the States parties, and further provided, in this context, that moon stations and installations, whatever their nature, are accepted as "objects launched into outer space". Otherwise, there is a problem; for unless such personnel either belong to a space object registered in a State party or are nationals of a State party, the State of registry or nationality has no jurisdiction (respectively quasi-territorial or personal) to "retain" over such personnel. The point is that there can be no third source of jurisdiction over such personnel other than territorial jurisdiction. Particularly on terra firma which is "not subject to national appropriation", such as the moon, the recognition .of any form of State jurisdiction over a piece of land with some kind of structure on it that does not strictly qualify as "an object launched into space", and the extension of that jurisdiction to any person either working there as "personnel" or, what would be even more the case, merely being within that piece of land would come close to creating some form of ~ territorial sovereignty .

(b) Humanitarian provisions In another borrowing from General Assembly Res. 1962 (XVIII), the 1967 Space Treaty, in Art. V(1), reproduces almost verbatim paragraph 9 of the Resolution. Art. V(1) provides that "States Parties to the Treaty shall regard astronauts as envoys of mankind in outer space ... ". Initially, some tentative attempt was made to infer jurisdictional immunities for astronauts by reason of their having been called "the envoys of mankind". But it was most probably the wistful question whether, in that case, mankind should perhaps have a say in the way they were launched into space which quickly brought the response that it was only a figure of speech. This phrase has not 'appeared in any of the subsequent multilateral treaties on space sponsored by the United Nations (see Cheng (1968) pp. 632-634; (1981) pp. 9596). The rest of Art. V, and the subsequent Astronauts Agreement, as well as Arts. 10 and 12(3)

42

ASTRONAUTS

of the 1979 Moon Treaty are all designed to provide for assistance to, the search for and the rescue of astronauts in the event of accident, distress or emergency landing outside their intended country, as well as for their safe return to the State of registry of their vehicle or to the launching authority. 4. Evaluation and Prospects

The legal status of astronauts is governed by general international law and specific treaty provisions, many of which are of a humanitarian character. Existing treaty provisions on the jurisdictional issues concerning astronauts are far from clear or adequate. Much further work requires to be done. The development of permanent or semi-permanent manned space stations makes this all the more urgent. This is especially so in the case of multinational manned stations, such as that planned between the United States, Western Europe, Japan and Canada, scheduled to come into operation in 1996. In the latter case, further coordination among the participating States is needed in order to settle the many problems of jurisdiction, including those with respect to applicable law and enforcement, on board a structure which will be comprised of objects launched into space by, or at least on behalf of, a number of States each registering its own element. Art. 11(2) of the 1975 Convention on Registration of Objects Launched into Outer Space (UNTS. Vol. 1023, p. 15) envisages such a situation, but leaves the method of dealing with it entirely to the States concerned. The jurisdictional problem regarding manned stations on the moon and other celestial bodies is probably even harder to resolve, in view of the difficulties of avoiding any semblance of "national appropriation" if exclusive jurisdiction is granted to any State over any piece of land on terrafirma. As space exploration and exploitation further develop, separate rules will need to be evolved for different categories of astronauts engaged in diverse activities, such as operating crew, other personnel, passengers, visiting missions, rescue missions, or salvage teams. Moreover, what would be their position when astronauts not only engage in commercial transportation into outer space, but also plan to make regular landings in the territory of other States?

As the experience in ~ air law has shown, and in view particularly of the principle of international responsibility for national space activities laid down in Art. VI of the 1967 Outer Space Treaty (~ Space Activities, Responsibility and Liability for), States involved in space urgently need to regulate the activities of their spacecraft and astronauts in outer space, and to extend the applicability of their domestic law, including their general criminal law, and the jurisdiction of their courts to outer space. States should give early attention to these problems unilaterally, bilaterally or multilaterally either without or within the United Nations Committee on the Peaceful Uses of Outer Space. United Nations, The United Nations Treaties on Outer Space (1984). General Principles of Law as Applied by International Courts and Tribunals (1953, reprint 1987). B. CHENG, The Extra-Terrestrial Application of International Law, Current Legal Problems, Vol. 18 (1965) 132-152. B. CHENG, The 1967Space Treaty, Clunet, Vol. 95 (1968) 532-645. United States, Congress, Senate Committee on Aeronautical and Space Sciences, 90th Congress, 2d Session, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Analysis and Background Data. Staff Report prepared by E. Galloway, Legislative Reference Service, Library of Congress (Comm. Print 1968). B. CHENG, The 1968 Astronauts Agreement or How Not to Make a Treaty, Yearbook of World Affairs, Vol. 23 (1969) 185-208. R.C. HALL, Rescue and Return of Astronauts on Earth and in Outer Space, AJIL, Vol. 63 (1969) 197-210. I.A. CSABAFI, The Concept of State Jurisdiction in International Space Law (1971). M. LACHS, The Law of Outer Space (1972). M.G. MARCOFF, Traite de droit international public de l'espace (1973). A.S. PlRADOV (ed.), International Space Law (1976). R.S. LEE, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, in: N. Jasentuliyana and R.S.K. Lee (eds.) , Manual on Space Law, Vol. 1 (1979) 53-81. B. CHENG, Outer Space: The International Legal Framework - The International Legal Status of Outer Space, Space Objects and Spacemen, in: Institute of Public International Law and International Relations of Thessaloniki, Thesaurus Acroasium, Vol. 10 (1981) 41-Hl6. B. CHE"'lG,

BASELINES

The Modem International Law of Outer Space (1982). G. LAFFERRANDERIE, Pour une charte de l'astronaute, Annales de droit aerien et spatial, Vol. 12 (1987) C.Q. CHRISTOL,

263-277. BIN CHENG

BASELINES 1. Notion A general acceptance of specific territorial claims has always carried the corollary that there must be a reasonable certainty of the geographical extent of those claims. There is a similar need to know the geographical areas within which differing legal regimes apply. One major division between different regimes is the line that divides land from sea: this line has in principle always been the beginning of any zone or zones of jurisdiction that States have claimed over or in the seas. It has been the baseline from which the extent of maritime jurisdictions have been measured. In practice this principle requires clarification. For instance Roman Law used the high-water mark, and the "cannon shot rule" developed in the 17th and 18th centuries could only be consistent with use of high-water mark or even of the sites of the coast defence batteries. Use of the low-water mark also has a long history, and with the development or adoption of a specific belt of territorial waters it became widely accepted as the norm. From very early times this baseline has also formed the division between -l> internal waters and the -l> territorial sea.

2. Historical Development Most early legislation or jurisdiction over maritime areas was unspecific about baselines. Rather imprecise terms like "coast" were often used and were given different interpretations. But with the gradual adoption in the 18th and 19th centuries of a zone of jurisdiction of uniform width around the whole coastline of a State, it became more important to specify the baseline from which the breadth of that zone was to be measured. Early developments largely concerned fisheries jurisdiction, and the legal rules that evolved were not followed by all States when applying the wider

43

aspects of territorial waters jurisdiction. Generally in fact, the various conventions and agreements on fisheries tended to specify more complicated types of baselines than those used for other types of maritime jurisdiction (-l> Fishery Zones and Limits). Broad acceptance of a common baseline from which to measure all zones of maritime jurisdiction dependent on distance came only after World War II. Although from early times the coast, later to be more generally specified as the low-water line, was the normal baseline, other baselines were used from time to time. So it is that although various modifications of the low-water line came to be adopted in specific international legal rules during the 19th century none of them can be properly seen as a new concept. Closing lines across river mouths, inlets or bays (-l> Bays and Gulfs) were adopted as baselines from which to measure the breadth of the territorial sea early in the 19th century, and the AngloFrench Fisheries Convention of 1839 laid down a maximum length for such closing lines. Small islets or drying banks and rocks lying close offshoredependent islands or banks - were permitted for use as baselines in the North Sea Fisheries Convention of 1882. Another variation which was already in national use by Denmark in the 19th century was a baseline consisting of a series of straight lines linking headlands or small islands and rocks. A similar system of straight baselines was applied in limited areas by Norway early in the 20th century. In the last part of the 19th century increasing attention was paid to the question of codification, but it was not until 1930 that a formal attempt was made as one task of the Hague Codification Conference ( -l> Codification of International Law). The Conference unfortunately broke down without agreement, although considerable unanimity was reached over the baseline provisions. In 1935 Norway extended her systems of straight baselines to a single system over the whole extent of her north and northwest coasts. Challenged by Great Britain, the matter was taken to the -l> International Court of Justice (10) after World War II. The judgment in 1951 upheld Norway's claim and established the legality of such baselines in appropriate circumstances (-l> Fisheries Case (U.K. v. Norway».

44

BASELINES

During the 19508 the -+ International Law Commission prepared draft articles on, inter alia, baseline provisions in preparation for the First United Nations Conference on the Law of the Sea of 1958 (-+ Conferences on the Law of the Sea). Section II of the subsequent Convention on the Territorial Sea and Contiguous Zone owed much to the 1930Hague Conference and constituted the first international codification of baselines and the first formal affirmation that they constituted the boundary between internal waters and territorial sea. It was also agreed that they would fO{1I1 the basis for the construction of boundaries determined by equidistance (--. Maritime Boundaries, Delimitation). One major problem was left unresolved by the Convention. Although an article modelled closely on the ICJ judgment in the U.K. - Norway fisheries case was adopted permitting the use of straight baseline systems, it did not satisfy the case of ocean -+ archipelagos. No form of words could be agreed that would allay fears that such a course would inevitably lead to the enclosure of large areas of sea in a way that would seriously hamper freedom of navigation (-+ Navigation, Freedom of). Subsequently both Indonesia and the Philippines unilaterally adopted straight baseline systems around the whole of their archipelagos and claimed the enclosed waters as internal whilst continuing to allow a right of -. innocent passage through them. In 1971 Ecuador decreed the use of straight baselines to enclose the dependent Galapagos Islands. Denmark uses a similar system around the -+ Faeroe Islands. During the discussions on baselines at the Third United Nations Conference on the Law of the Sea it was apparent that the work of the 1958 Conference had stood the test of time, and very few amendments of substance were proposed. The question of ocean archipelagos was addressed, however, resulting in the adoption of a new concept of archipelagic baselines enclosing "archipelagic waters". Although these baselines are used for measuring the breadth of the territorial sea, the -+ contiguous zone and the -+ exclusive economic zone, they do not define the limits of internal waters. These may be separately delineated by reference to the provisions for bays, rivers or -+ ports. A further change was also made that disallows the use of certain -+ islands

which are classified as "rocks which cannot sustain human habitation or economic life of their own", as baselines for an exclusive economic zone. 3. Current Legal Situation

Although the Convention on the Law of the Sea drafted by the Third UN Conference was signed by the majority of nations in 1982, it has not yet entered into force, and is unlikely to do so for some years yet. The only international convention in force that codifies the legal rules for baselines is that of 1958 to which many - new States have never acceded. Nevertheless, as evidenced both by State practice and by the unanimity shown on the subject during the Third UN Conference, it seems that the baseline provisions of 1958 may now be considered as expressing -+ customary international law. Those provisions are given here in outline. The low-water line of coasts of mainlands and islands is the normal baseline. Features that cover and uncover with the tide may also form the baseline if they lie within a certain distance of the normal baseline. Bays bordered by a single State may be closed by a straight baseline not more than 24 miles long provided they conform to certain geometrical and other criteria. Some bays which have long been accepted as internal waters in their entirety may, as "historic bays", have longer closing lines (-+ Historic Rights). Closing lines without limit as to length may be drawn across the mouths of rivers that flow directly into the sea. Where a coast is deeply indented or is fringed by islands, straight baselines linking specific points along the low-water lines may be used. Permanent harbour works may be used as forming part of the baseline. The 1982 UN Convention includes an article specifying the treatment to be accorded to atolls or islands with fringing reefs (Art. 6). It reflects normal practice. The new concept of an archipelagic State applies only to States comprised wholly of islands. Subject to certain other conditions they may employ archipelagic (straight) baselines joining the outermost points of the outermost islands and rocks provided that the ratio of water area to land area enclosed is between 1:1 and 9:1. The length of the lines may not exceed 100 nautical miles except that up to 3 per cent of the total number may be up to

45

BAYS AND GULFS

120 miles long. By contrast, the provisions for territorial sea straight baselines contain no length limit. Following the general consensus in favour of the Third UN Conference ten sovereign States have claimed archipelagic status in addition to the longstanding claims of Indonesia and the Philippines. It seems likely that such claims will be widely accepted provided they conform to the Convention.

4. Evaluation All the baseline claims of modern States derive from long-established principles; recent developments have consisted mainly of their codification and reduction to a set of more or less objective criteria, or in their adaptation to particular circumstances such as man-made structures or to new types of jurisdiction. Relatively few changes have been made from the first attempt at codification in 1930, the only addition of significance being the acceptance of the principle of straight baselines. It has never proved possible - or perhaps practicable - to reach agreement on more detailed technical matters. There is no agreed objective definition of low-tide, and no mention of situations in non-tidal areas where there is a discernible seasonal change in mean sea level. Nothing is said about the meaning of the term "straight" in cartographic terms. But because these are very much matters for technical discussion, they are unlikely to be resolved within the framework of general conventions on the ~ law of the sea. In the more general matters that have been considered there has been apparent international unanimity. State practice has shown a tendency to prefer the use of straight baseline systems rather than the normal baseline even when the topography would not generally be thought to conform to the agreed criteria. This could lead to a general disregard of all current baseline provisions or, more likely, to a gradual modification of customary law regarding the use of straight baselines. The international community is unlikely to accept excessive claims either as to the length of the lines or as to the areas of sea enclosed. Convention internationale ayant pour objet de regler la police de la peche dans la mer du Nord en dehors des eaux territoriales, La Haye Ie 6 mai 1882, Martens NRG2, Vol. 9 (1883) 556-563.

Convention on the Territorial Sea and ContiguousZone, UNTS, Vol. 516 (1958) 208-214. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). and L.M. ALEXANDER, Towards an Objective Analysis of Special Circumstances (1972). D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982). G. F. RANCALANCI, Aspetti e problemi tecnici del nuovo diritto del mare (2nd ed. 1984). P.B. BEAZLEY, Maritime Limits and Baselines (3rd. ed. 1988). R.D. HODGSON

P.B. BEAZLEY

BAYS AND GULFS The normal ~ baseline for measuring the breadth of the ~ territorial sea is the low-water line. However, under special circumstances a coastal State is entitled to measure the breadth of the territorial sea by reference to a system of straight baselines. The straight baselines system may be applied in the event of a special geographical configuration of the coast, such as the presence of coastal ~ archipelagos. This was explicitly recognized by the ~ International Court of Justice in the Anglo-Norwegian Fisheries Case in 1951, ICJ Reports 1951, p. 116). The application of a straight baselines system has a bearing on bays. Pursuant to Art. 7, para. 1 of the 1982 United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.), the system of straight baselines joining appropriate points may be employed in drawing the baselines from which the territorial sea is measured in localities where the coastline is deeply indented and cut into or there is a fringe of ~ islands in its immediate vicinity. In order to preclude an arbitrary application of the straight baselines method by coastal States, the following criteria have been set: (i) The drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast and the sea areas lying on the landward side of the straight baselines must be sufficiently linked to the land domain to be subject to the regime of ~ internal waters (Art. 7, para. 3).

46

BAYS AND GULFS

This means in practice that such sea areas are exclusively or mainly used by the coastal State. (ii) As regards the selection of the "appropriate points" connecting the straight baselines, low-tide elevations should be left aside, unless ~ lighthouses or similar instal:ations which are permanently above sea-level have been built on these elevations or the drawing of baselines to and from such elevations has received general international recognition (Art. 7, para. 4). (iii) In determining particular straight baselines, the coastal State may take into account the economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by long usage (Art. 7, para. 5). (iv) The system of straight baselines may not be applied by a coastal State in such a manner as to cut off the territorial sea of another State from the ~ high seas or an ~ exclusive economic zone (Art. 7, para. 6). The aforesaid rules on the application of the straight baselines system have been borrowed 'from Art. 4 of the Geneva Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958 (UNTS, Vol. 516, p. 205; ~ Contiguous Zone). As a result of the application of the straight baselines system referred to above, the sea areas on the landward side of the said baselines come under the regime of internal waters. A different situation arises with regard to archipelagic waters. However, for the purpose of protecting the navigation interests of other States, it is stated in Art. 8 of the 1982 Law of the Sea Convention that where the establishment of the straight baselines system has the effect of enclosing as internal waters areas which previously had not been considered as such, the right of ~ innocent passage shall continue to exist. The same provisions were laid down in Art 5 of the 1958 Convention on the Territorial Sea and the Contiguous Zone. In addition to the aforesaid rules covering application of the straight baselines system, a coastal State is entitled to apply a straight baseline for measuring the breadth of the territorial sea in the event of bays. The meaning of the words "bay" and "gulf' as used in geography is not always precise and strict. The term "bay" is often used in referring to a wide indentation in the coast, while the term "gulf" is used in connection with indentations of a relatively large size.

The legal concept of bays is defined in Art. 10 of the 1982 Law of the Sea Convention which is borrowed from. Art. 7 of the 1958 Convention on the Territorial Sea and the Contiguous Zone. This definition reads as follows: "a bay is a well-marked indentation whose penetration is in such proportion to the width of its mouth as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation" (Art. 10, para. 2). This definition is elaborated in respect to the following two questions: What is meant by the area of the indentation? What is the effect of the presence of islands in the indentation in so far as the aforesaid semi-circle test is concerned? The area of the indentation is the area lying between the low-water mark around the shore of the indentation and a line joining the low-water mark at its natural entrance points. Islands located within the indentation shall be included as if they were part of the water area of the indentation. Finally, it deserves consideration that where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Having defined the legal concept of bays as being in essence an indentation into the coast, the penetration of which is at least half the width of the entrance, the question arises as to whether all indentations which are bays in the legal sense fall within the regime governing the internal waters of the coastal State involved. The answer is in the negative, since an additional criterion exists with respect to the length of the line connecting the natural entrance points of the bay. Both in 1958 and in 1982, it was agreed that if the distance between the low-water mark of the natural entrance points of a bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-water marks and the waters enclosed therein shall be considered as internal waters. In addition it was agreed that, in the event the aforesaid closing line exceeds the 24-mile limit, the coastal State is entitled to draw a straight baseline of 24 nautical miles within the bay in such a manner as to enclose the maximum area of water

BAYS AND GULFS

that is possible with a line of that length. It deserves consideration that this provision is not clear in all respects. For example the question arises as to whether or not the closing line must run parallel to the closing line connecting the low-water marks of the natural entrance points. Furthermore, confusion may arise in particular with respect to the selection of the natural entrance points for the purpose of drawing the closing line on the basis of which the semi-circle test should be applied. Under the regime for bays, the status recognized for the water area on the landward side of the straight baseline is that of internal waters, i.e. part of the territory of the coastal State without any restrictions other than those flowing from general international law. Pursuant to the conventions of 1958 and 1982 referred to above, the regime for bays relates only to bays the coasts of which belong to a single State. Accordingly, in the event of bays the coasts of which belong to more than one State, the territorial sea must be measured from the low-water mark. This is also the opinion held by the majority of authors, who support their view by arguing that all coastal States bordering a bay must have free access to the high seas and their exclusive economic zones. However, neither the practice of States nor general rules of positive international law seem to justify the aforesaid approach. In the opinion of the present author, there are no reasons why the coastal States to which part of the coast of a bay belongs should jointly not have rights similar to those of a single coastal State. Direct and free access to the high seas for the coastal States located on a bay can be safeguarded either by fixing suitable boundaries or by the joint exercise of sovereignty over the bay in question (coimperium; see ~ Condominium). If, in consequence of the apportionment of the waters of the bay, one of the coastal States does not exercise sovereignty over part of the entrance thereof, this State's free access to the high seas can be guaranteed by maintaining the right of innocent passage in the internal waters (see Art. 8, para. 2, 1982 Law of the Sea Convention), by lending the status of territorial sea to the waters comprised by the bay, or by the establishment of a servitude-oftransit on behalf of the affected coastal State (~ Servitudes).

47

Finally, it is agreed in Art. 10, para. 7 of the 1982 Law of the Sea Convention (likewise in Art. 7, para. 6 of the 1958 Convention on the Territorial Sea and the Contiguous Zone) that the regime of bays shall not apply to so-called "historic bays" and in such cases the straight baselines system referred to above will be applied. However, neither in 1958 nor in 1982 was the concept of historic bays defined (~ Historic Rights). The meaning of historic bays and "historic waters" is that onthe basis of historic title a coastal State is entitled to claim water areas as internal waters or territorial sea if such a claim does not meet the general requirements for claims to bays, internal waters or territorial seas under international law. The basic elements for a title to "historic waters" as enumerated in a study of March 9, 1962 prepared by the ~ United Nations Secretary-General on the juridical regime of historic waters, including historic bays are: (i) The authority exercised over the area by the State claiming it as "historic waters", (ii) the continuity of such exercise of authority, and (iii) the attitude of foreign States (document A/CN.4/143, in YILC (1962 I) p. 25). Claims based on the concept of historic bays are only relevant to the extent that such claims may not be justified by merely referring to the regime applicable to bays in general; the concept of historic bays can be defined as bays over which the coastal State, contrary to the generally applicable rules of international law, clearly, effectively, continuously, and over a substantial period of time exercises sovereign rights with the ~ acquiescence of the community of States (see Bouchez, p. 281). Finally, it deserves consideration that the burden of proving the historic title rests on the State which alleges the existence of a historic bay. Le regime des baies et des golfes en droit international public (1938). M. BOURGUIN, Les baies historiques, in: Melanges Georges Sauser-Hall (1952) 37-51. E. SUY, Les golfes et les baies en droit international public, Friedenswarte, Vol. 54 (1957-1958) 101-116. M.P. STROHL, The International Law of Bays (1963). L.J. BOUCHEZ, The Regime of Bays in International Law (1964). YZ. BLUM, Historic Titles in International Law (1965). R. BERNHARDT, Rechtsfragen historischer Buchten, in: D. Blumenwitz and A. Randelzhofer (eds.), Festschrift fur Friedrich Berber (1973) 47-60. J. MOCHOT,

48

BAYS AND GULFS

The Doctrine of Historic Bays: Applying an Anachronism in the Alabama and Mississippi Boundary Case, San Diego Law Review, Vol. 23 (1986) 763-790.

J.M. ZIMMERMAN,

LEO J. BOUCHEZ

BOUNDARIES, MARITIME see Maritime Boundaries, Delimitation

CABLES, SUBl\IARINE 1. Notion

A submarine cable is a means of communication laid on the sea-bed between two terminal points. The first successful submari ne cable was laid across the English Channel in 1851, the first successful transatlantic cable followed in 1866, and the first transpacific cable in 1902. In 1983 there were 148 submarine cables with a maximum length of 6760 kilometres connecting the main telephone systems of the world. Unlike the old copper wire telegraph cables, modern submarine cables are normally multipurpose carriers used for telegraphy, telephony and for data transmission. The first transatlantic telephone cable was put into service in 1956. The first fibre optics cable was laid between the islands of Tenerife and Gran Canaria in 1985. New and more effective submarine cables are still being laid because they are more reliable and more confidential than radio and satellite communication (-+ Telecommunications, International Regulation). Since the 1950s high-voltage power cables have also been in use which transmit electric energy mainly to offshore installations on the continentel shelf. 2. The Laying of Submarine Cables (a) On the bed of the high seas

The freedom to lay submarine cables was presupposed by Art. 1 of the Convention for the Protection of Submarine Cables of 1884 (Martens NRG2, Vol. 11, p. 281; hereafter 1884 Convention). In 1927 the -+ Institut de Droit International recognized it as a freedom of the -+ high seas (AnnIDI, Vol. 3 (1927) p. 339). Finally it was codified in Art. 2(3) of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450,

p. 82) and in Art. 87(1)(c) of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3). This freedom entitles all States to lay privately or State-owned submarine cables on the -+ seabed of the high seas (Convention on the High Seas, Art. 26(1); 1982 Law of the Sea Convention, Art. 112(1». But it does not create any title to the sea-bed of the high seas nor does it include any right to establish a safety zone along the cable. When laying such cables, the State in question shall pay reasonable regard to the interests of other States in their exercise of the freedom of the high seas (Convention on the High Seas, Art. 2). This is also stipulated in the 1982 Law of the Sea Convention for "the rights under this Convention with respect to activities in the Area" (Art. 87(2»; thus the activities mentioned in Arts. 150 and 153 are given the same legal protection as the customary freedoms of the sea. The duty to pay due regard refers particularly to cables and -+ pipelines already in position on the sea-bed. Yet, this would not principally exclude the laying. of another cable across existing cables or pipelines, if, in particular, possibilities of repairing these are not prejudiced (Convention on the High Seas, Art. 26(3», because the exercise of one freedom does not exclude the exercise of others. Nevertheless, -+ general principles of law require the owner of the cable which is to be laid to inform the owners of those in position about his intention to cross their cables or pipelines. Where necessary, all parties concerned are required to enter into -+ negotiations with a view to preventing or limiting any possible damage. If an owner of a cable, in laying or repairing it, causes a break in or injury to another cable, he bears the cost of the repairs (1884 Convention, Art. 4). The Convention on the High Seas (Art. 28) and the 1982 Law of the Sea Convention (Art. 114) snjulate these obligations also for pipelines. Since these Conventions only regulate the cost of repairs, the question of further claims for damage is left to the applicable national law. (b) On the continental shelf and in the exclusive economic zone

As all States are entitled to lay submarine cables on the -+ continental shelf. the coastal Stare may not impede the laying or maintenance of such

CABLES, SUBMARINE

cables (Convention on the Continental Shelf, Art. 4, UNTS, Vol. 499, p. 312; see also Convention on the High Seas, Art. 26(2); 1982 Law of the Sea Convention, Art. 79(1) and (2». This right is, however, made subject to the coastal State's right to take "reasonable measures" for the exploration of the continental shelf and the exploitation of its natural resources (~ Marine Resources). Although the delineation of the cables course does not depend upon the consent of the coastal State (see 1982 Law of the Sea Convention, Art. 79(3», in the case of a conflict the coastal State's rights concerning its continental shelf have priority over the right to lay submarine cables. Therefore, the laying of a cable on a foreign continental shelf requires prior information and, where necessary, negotiations with respect to the position of the cable. In an area where an ~ exclusive economic zone is established by a State above its continental shelf, the legal regime of the latter prevails. Where under the 1982 Law of the Sea Convention an exclusive economic zone extends beyond the outer limits of the continental shelf, the freedom to lay submarine cables is in principle the same as on the high seas (Art. 58(1) and (2». The other States shall, however, "comply with the laws and regulations adopted by the coastal State in accordance with the Law of the Sea Convention" (Art. 58(3». The meaning of this provision is unclear, but it is subject to the compulsory dispute settlement of the 1982 Law of the Sea Convention (Art. 297(1)(a». The legal situation with regard to cables and pipelines already in position on the continental shelf or in the exclusive economic zone is the same as on the high seas (Arts. 79(5), 58(2), 112(2», subject to the coastal States right to take reasonable measures for the exploration of the continental shelf and the exploitation of its natural resources (Art. 79(2».

(c) In the territorial sea and the archipelagic waters Submarine cables may only be laid through the ~ territorial sea with the consent of the coastal State. It may therefore establish conditions for cables entering its territorial sea, as restated in the 1982 Law of the Sea Convention (Art. 79(4». The Parties to the 1884 Convention agreed to insist, as

49

far as possible, when authorizing the landing of a cable, upon suitable conditions of safety "both as regards the track of the cable and its dimensions" (Art. 3). Since a recognized archipelagic State has sovereignty over its archipelagic waters under the 1982 Law of the Sea Convention (Art. 49(1); ~ Archipelagos), its rights with regard to the laying of submarine cables into or through those waters are the same as in the case of the territorial sea. Nonetheless, the State is required to "respect" existing submarine cables passing through its archipelagic waters without making a landfall (Art. 51(2». Such cables, whether privately or State-owned, retain their legal status as foreign cables laid by another State exercising its freedom of the high seas. Upon receiving due notice of their location and the intention to repair or replace them, the archipelagic State shall permit the maintenance and replacement of such cables (Art. 51(2».

3. The Protection of Submarine Cables Only three years after the first transatlantic telegraph cable was put into service, an international agreement for the protection of submarine cables was proposed by the Government of the United States in 1869. After the proposal was reiterated in 1879 by the Institut de Droit International, the above-mentioned Convention for the Protection of Submarine Cables was finally drawn up by the Conference of Paris in 1882 and 1883 (protocols in Martens NRG2, Vol. 11, pp. 104280). Signed by 26 States on-March 14, 1884, it is still in force for 36 States (December 1987) and applies to "all legally established cables" outside a States territorial waters which are landed in the territories of one of the States Parties (Art. 1). Rights and obligations created by the 1884 Convention are not affected by the Convention on the High Seas of 1958 (Art. 30), nor will they be by the 1982 Law of the Sea Convention (Art. 311(2». The principal provisions of the 1884 Convention require the States Parties to make the breaking or injury of a cable, done wilfully or through culpable negligence, a punishable offence, except when the act has become unavoidable in order to save lives or vessels (Art. 2), or for the purpose of repairing a cable (see the Declaration of December 1, 1886, German Reichsgesetzblatt, 1888, p. 167). "Culp-

50

CABLES, SUBMARINE

able negligence" was defined by the signatories as the absence of elementary precautions of ordinary seamanship. The punishment does not bar a civil action for damages (Art. 2). The owner of a cable causing the breaking or injury of another cable shall be required to pay the cost of the repairs (Art. 4). Vessels laying and repairing cable must observe the rules concerning the prevention of - collisions at sea. Other ships have to keep at least one nautical mile away from such vessels; fishing gear and nets have to be kept at the same distance (Art. 5), and at least a quarter of a nautical mile away from cable buoys (Art. 6). Owners of ships who can prove that they have sacrificed an anchor or fishing gear in order to avoid injuring a cable are entitled to indemnity from the owner of the cable (Art. 7), a provision of hardly any practical relevance. The jurisdiction to take cognizance of violations of the 1884 Convention is principally vested in the courts of the State on board whose ship the infraction has been committed (Art. 8). Under the Convention, warships of the States Parties or vessels specially commissioned for that purpose by them may visit a ship other than a warship on the high seas, if there is reason to believe that the ship has violated a right or duty under the Convention (Art. 10). The Captain or Master of the ship may be required to exhibit the official documents furnishing the nationality of the ship, but this right of visit does not allow for the right of search or even for arrest on the high seas. An incident on point was the visitation of the Soviet trawler Novorossisk by a United States warship after 5 transatlantic cables were disrupted at 12 points off Newfoundland in 1959 (see Whiteman, Digest of International Law, Vol. 4, p. 728 et seq.). The Convention on the High Seas, considered as a - codification of then existing customary rules of in....rnational law (Preanble), adopted the obligations of the 1884 Convention with respect to necessary legislative measures for the protection of cables (Art. 27), as well as regarding the cost of the repairs (Art. 28), and the indemnification for lost anchors or fishing gear (Art. 29). The 1982 Law of the Sea Convention exends these obligations also to pipelines 'nd Ugh-voltage power cables (Arts. 113 to 115). As the legal requirement of "culpable negligence" has the same meaning as under the 1884 Convention, the breaking or injury

of a submarine cable may be regarded as an "incident of navigation" (see YILC (1956 II) pp. 253,281). Consequently the exclusive jurisdiction in penal or disciplinary matters with respect to cables is exclusively vested in the flag State or the State of which the person concerned is a national (Convention on the High Seas, Art. 11; 1982 Law of the Sea Convention, Art. 97). In contradistinction to Art. 10 of the 1884 Convention, however, the latter conventions do not give warships the right of visitation on the high seas (Convention on the High Seas, Art. 22; 1982 Law of the Sea Convention, Art. 110). As a coastal State has no jurisdiction with respect to foreign submarine cables laid across its continental shelf or through its exclusive economic zone, it may not take enforcement measures such as boarding, visitation and judicial proceedings against foreign ships violating these cables, except under the 1884 Convention, which is applicable "outside the territorial waters" (Art. 1).

4. Cables in Time of Armed Conflict During all naval wars since the SpanishAmerican war of 1898, submarine cables were interrupted by enemy forces. In World War II, Britain even took up German cables in order to use them elsewhere. As the 1884 Convention does not affect the "liberty of action of belligerents" (Art. 15), it does not apply in times of war. The rules of international law applicable to - sea warfare do not prohibit the cutting of cables between points in an enemy's territory or between the territories of two enemies. No indemnity has to be paid for this action after the war, even if the cable is owned by a neutral State or company. A cable connecting the territory of an enemy and a neutral territory may be cut outside the neutral territory, if the necessities of war so require. In 1923 the American-British Claims Arbitration Tribunal disallowed claims for compensation on behalf of a British cable company against the United States which had cut the British-owned Manila-Hong Kong Cable during the American Spanish War of 1898.(AJIL, Vol. 18 (1924) pp. 835-842). Under the Treaty of Versailles (- Versailles Peace Treaty (1919», however, the privately owned cables cut during the war formed part of the reparation for which Germany received credit, whereas the State-

CELESTIAL BODIES

51

at the non-governmental level (~ Non-Governmental Organizations). The work of the International Institute of Space Law (International Astronautical Federation), particularly at its Madrid meeting (1966), /and of the first Colloquium on the Progress in Cosmic Exploration and its Consequences upon Mankind (Buenos Aires, 1966) may be listed among the early attempts at reaching a generally accepted definition of celestial bodies before the landing of man on the moon. The International Institute of Space Law agreed that celestial bodies, in the sense of the United Nations General Assembly Res. 1962 (XVIII) of DeConvention for the Protection of Submarine Cables, cember 13, 1963, were natural objects in outer March 14, 1884, Martens NRG2, Vol. 11 (1887) space, including their eventual gaseous coronas, 281-307. which could not be artificially diverted from their Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. natural orbits. In an interdisciplinary meeting held Convention on the Continental Shelf, April 29, 1958, simultaneously with the adoption of the UN GA UNTS, Vol. 499 (1964) 311-354. Res. 2222 (XXI) on December 19, 1966 (which United Nations Convention on the Law of the Sea, contained the text of the Space Treaty opened for December 10, 1982 (UN Doc. A/CONF. 62/122 with signature shortly afterwards), the Colloquium of Corr. 3 and Corr. 8; UNCLOS Ill, Official Records, Buenos Aires considered that celestial bodies, in Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). the sense of that Treaty, were all natural objects in outer space and within the solar system, the R.J.R. GOFFIN, Submarine Cables in Time of War, The natural utilization of which by a State or group of Law Quarterly Review, Vol. 15 (1899) 145-154. States would not modify their natural orbits or A. PEARCE HIGGINS, Submarine Cables and International Law, BYIL, Vol. 2 (1921-1922) 27-36. consume them. w. HELLER, Das internationale Seekabelrecht in FrieIn the governmental field, the drafting history of denszeiten und seine Wandlungen durch die neue the 1967 Space Treaty reveals a number of volkerrechtliche Entwicklung, Thesis, University of contradictions as to the scope of the term "celesKiel (1965). tial bodies", especially because Art. IV of that RAINER LAGONI Treaty sometimes refers to "the Moon and Celestial Bodies" and sometimes to "Celestial Bodies" alone. Nowadays, however, most doubts have been clarified and the idea that the term "celestial CELESTIAL BODIES bodies" applies to all natural objects in outer space has gradually and consistently gained 1. Notion, Sources, Historical Development ground. The conditio sine qua non is that such Neither the 1967 Treaty on Principles Govern- objects should be natural and not launched by ing the Activities of States in the Exploration and man. The Moon Agreement was formulated with Use of Outer Space, Including the Moon and practically sole emphasis on the moon; reference Other Celestial Bodies (UNTS, Vol. 610 (1967) to celestial bodies was added with the idea that the p. 205; ~ Outer Space Treaty), nor the 1979 same provisions should apply to all such bodies. In Agreement Governing the Activities of States on stating in Art. 1(1) that the Agreement is applithe Moon and Other Celestial Bodies (ILM, Vol. cable to other celestial bodies of the solar system 18 (1979) p. 1434), included any definition or even besides the moon, the Agreement followed the a description of what should be understood by approach of the 1966 Buenos Aires Colloquium. "celestial bodies" from a legal standpoint Halley's Comet, for example, most recently visible (~ Space Law). from the earth during 1986, is undoubtedly inThe initial efforts in this field were undertaken cluded under the category of a celestial body.

owned cables were considered confiscated (Arts. 156, 244; Part VIII, Annex VII, RGBI. 1919, 687). A special rule, which, however, is limited to ~ land warfare, provides that submarine cables connecting an occupied with a neutral territory shall not be seized or destroyed except in the case of "absolute necessity". In addition, "they must likewise be restored and compensation fixed when peace is made" (1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Annex Art. 54; AJIL, Vol. 2 (1908) Supplement, pp. 90-117).

52

CELESTIAL BODIES

2. Development of Legal Rules When the opinion of legal experts was consulted for the first time within the ~ United Nations (1958), the then Chairman of the Ad Hoc Committee for the Peaceful Uses of Outer Space expressed the general view that no ~ territorial sovereignty may be justified in outer space. UN GA Res. 1721 (XVI) of December 20, 1961 laid down the principle that outer space and celestial bodies were free for exploration and use by all States in conformity with international law and were not subject to national appropriation. UN GA Res. 1962 (XVIII) of December 13, 1963 solemnly declared that outer space and celestial bodies were not subject to national appropriation by claim of ~ sovereignty, hy means of use or occupation, or by any other means. A general consensus was emerging to the effect that the interests of the international community would be better served if sovereign rights were fully ruled out with regard to outer space and celestial bodies, irrespective of who would be first to get to the moon, This guiding principle, which some authors have seen as a rule of ~ jas cogens, was the fundamental pillar upon which the legal regime for celestial bodies was built, as embodied in the Outer Space Treaty and the Moon Agreement. The first step, however, had been taken at the private level in 1954, on the occasion of the fifth Congress of the International Astronautical Federation (Innsbruck), where a theory was developed according to which outer space and celestial bodies should be considered an object of conquest by mankind for mankind. This thesis was embodied in the expression res communis humanitatis (~ Common Heritage of Mankind) and its implications were examined at length at later colloquia of the International Institute of Space Law. In 1962 another private institution, the David Davies Memorial Institute of London, began working on a Draft Treaty on Outer Space, the Moon and Other Celestial Bodies, which was concluded in 1966. Again, the underlying principle was that no claim of sovereignty was possible over those areas covered by the treaty on any zround whatsoever. The Instituto Hispano Luso Americano de Derecho Internacional adopted 1 resolution along similar lines at Bogot., '., 1962 (Jurisdiccion sobre los espacios interplanetarios, Anuario Hispano-

Luso-Americano de Derecho Internacional, Vol. 2 (1963) p. 448). The ~ Institut de Droit International also approved a resolution along these lines (The Legal Regime of Outer Space, September 11, 1963, AnnIDI, Vol. 50 II (1963) p. 369). The ~ International Law Association (ILA), in the course of its 51st Conference, urged that States engaging in activities in outer space should seek actively to conform their conduct to the principles contained in UN GA Res. 1962 (XVIII) of December 13, 1963 (ILA Reports, Vol. 51 (1964) p. 652). In this way, the efforts of private institutions have contributed in a large measure to the acceptance of the idea that celestial bodies are a res extra commercium and that appropriation by the traditional means recognized by international law should be banned (~ Territory, Acquisition).

3. Current Legal Situation The long-standing rules of general international law applicable to claims of sovereignty over celestial bodies were superseded after the coming into force of the Outer Space Treaty (October 10, 1967) and ofthe Moon Agreement (July 11,1984). Under ~ customary international law celestial bodies were res nullius; thus, claims of sovereignty based on effective occupation would have flourished under such law. This legal situation was altered by the entering into force of the two above-mentioned treaties. The former treaty included a rule providing that outer space, the moon and other celestial bodies are not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means (Art. II). In this way, the 1967 Treaty changed the legal nature of celestial bodies from res nullius to res extra commercium. Since both space powers ratified this treaty well before the first manned landing on the moon, the principle of non-appropriation was fully applicable at the time this event occurred. However, no provision was included within the Treaty's text concerning natural resources of celestial bodies. The doubts in this respect have, to a great extent, been clarified by the Moon Agreement. The 1979 Agreement on the Moon contains a provision, similar to Art. II of the 1967 Treaty, in para. 2 of Art. 11. However, the Moon Agreement goes somewhat further in that the previous paragraph of Art. 11 provides that the moon and

CELESTIAL BODIES

53

conventional law (---+ Treaties). There is hardly any customary international law applicable to this question. However, whereas the 1967 Treaty has gained wide support from the international community, the 1979 Agreement only painfully reached the fifth ratification necessary for its entry into force. A new modality was introduced in the Moon Agreement whereby certain substantial and often controversial provisions would be clarified by committee understandings serving as interpretative statements. The basic reason for this step was to avoid damaging the ---+ consensus leading to the adoption of the text of the Agreement after many years of patient ---+ negotiations within the Committee on Peaceful Uses of Outer Space. The so-called First Understanding states that the provisions of the Moon Agreement should equally be applicable to other celestial bodies within the solar system. The Second Understanding restricts the meaning of Art. 1.2 of the Agreement, establishing that any reference to the moon includes orbits around it or other trajectories to or around the moon, so as to exclude earth-orbiting ---+ spacecraft and trajectories from the earth to orbits around the earth. The Third Understanding refers to Art. 7 of the Agreement dealing with contamination and the establishment of international scientific preserves. It states that the disruptions which may be caused to the environment should be held to a minimum (Report of the Committee on the Peaceful Uses of Outer Space, UN Doc. A/34/20, June 18 to July 3, 1979; ---+ Environment, International Protection). The settlement of disputes arising from the activities of States on the moon and other celestial bodies is envisaged in Art. 2 of the Moon Agreement where reference is made to the application of international law, in particular the ---+ United Nations Charter, taking into account the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (---+ Friendly Relations Resolution; ---+ Peaceful Settlement of Disputes). In addition to this general principle, Art. 15 of the Agreement provides for a procedure of consultations within 4. Evaluation the framework of the United Nations and in Most of the provisions governing the legal accordance with the Charter in cases of disputes situation of celestial bodies, both in the 1967 relating to the observation of the Agreement by Treaty and in the 1979 Agreement, are rules of the States parties. To this end, a system of visits to

its natural resources are the common heritage of mankind. In addition, Art. 6(2) of the Agreement allows States to collect moon samples. Thus, a certain property right has been recognized on the part of the States concerned even though the word itself is not used in the Agreement. The term "natural resources" was not defined within this text although it is frequently considered in doctrine to mean mineral and other substances which may eventually be discovered on celestial bodies. The expression "common heritage of mankind" goes beyond that of res extra commercium or res communis omnium and comes closer to that of res communis humanitatis as employed in Innsbruck in 1954 and at subsequent meetings of the International Institute of Space Law. It is seen as a new category to be added to the classical tripartite division between national territory, res nullius, and res extra commercium. The notion of common heritage of mankind is applicable to areas which not only in themselves are not subject to national appropriation, but the fruits and resources of which are considered to belong to mankind. The legal situation of resources from the moon and other celestial bodies is dealt with in para. 7 (d) of Art. 11 of the Moon Agreement where the obligation of an equitable sharing is laid down. This is a somewhat controversial issue, particularly regarding the implication of the word "equitable" Who is to determine, for example, whether sharings are "equitable"? Doubts have equally been raised in connection with the previous paragraph of that article, providing for the establishment of an international regime once the exploitation of the natural resources is about to become feasible. This, in turn, has led to another delicate question concerning the existence of a de facto ---+ moratorium until the establishment of an international regime. The drafting history of the Moon Agreement, however, indicates that no moratorium on the exploitation of natural resources was intended prior to the setting up of the international regime. This has also been the prevailing idea at international meetings of experts on the subject.

54

CELESTIAL BODIES

all vehicles, equipment and installations on the moon and other celestial bodies is laid down. Consultations are also provided for when States parties have reasons to believe that other States parties are not complying with their obligations under the Agreement. As in other instances, particularly in connection with the interpretation of Art. IX of the 1967 Treaty in cases where irreversible damage is likely to be caused to the environment of the earth, the flexibility of the expression "have reasons to believe" - repeated in the Moon Agreement - is being seriously questioned. However, a step forward was taken within the 1979 Agreement in that, should ---+ consultations fail, any State party may resort to the ---+ United Nations Secretary-General even without the consent of the other parties to the dispute. The role of the Secretary-General in this case is to help the parties to reach a solution but, indeed, not to decide the issue. The lack of a system of compulsory procedures in this field has equally been open to criticism. UN GA, First Committee, 982nd Meeting, November 12, 1958, UN GA Official Records, 13th Session, Summary Records of Meeting. International Co-operation in the Peaceful Uses of Outer Space, UN GA Resolution 1721(XVI), December 20, 1961. Declarationof Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, . UN GA Resolution 1962(XVIII),December 13, 1963. Treaty on Principles Governingthe Activities of States in the Explorationand Use of Outer Space, Including the Moon and Other Celestial Bodies, January 27, 1967, UNTS, Vol. 610 (1967) 205-301. Agreement Governing the Activities of States on the Moon and Other CelestialBodies, December 5,1979, ILM, Vol. 18 (1979) 1434-1441. Proceedings of the International Colloquia on the Lawof Outer Space, International Institute of Space Law of the International AstronauticalFederation, Vols. 1-30 (1958-1987). The Legal Regime of Outer Space, September 11,1963, AnnIDI, Vol. 50 II (1963) 369-372. Reports of the Conferences of the International Law Association, Space Law Committee, Vol. 51 (1964) 652-739, Vol. 54 (1970) 422-441, Vol. 60 (1982) 479-530. . EI Universo y la Sociedad: Primer Coloquio sobre los Progresos en la Exploraci6n Cosmica y sus Consecuensias para la Humanidad, Buenos Aires (1966), Secretaria de Cultura y Acci6n Social de la Municipalidad de Buenos Aires.

Die rechtliche Natur des Weltraums, Proceedings of the Fifth International Astronautical Congress, Innsbruck, 1954 (1955). B. CHEI'G, Le Traite de 1967 sur l'espace, Clunet (1968) 532-645. B. CHENG, The Moon Treaty, Current Legal Problems, Vol. 33 (1980) 213-237. S.M. WILLIAMS, International Law before and after the Moon Agreement, IntRel, Vol. 7 (1981) 11~-1193. c.o, CHRISTOL, The Modem International Law of Outer Space (1982). c.o. CHRISTOL, The Moon Treaty enters into Force, AJIL, Vol. 79 (1985) 163-168. E. GALLOWAY, The Space Station: U.S. Proposals and Implementation, Proceedings of the 28th Colloquium on the Law of Outer Space, International Institute of Space Law of the International Astronautical Federation (1985) 268-280. A.A. COCCA,

SYLVIA MAUREEN WILLIAMS

CHICAGO CONVENTION The Convention on International Civil Aviation, signed on December 7, 1944 (Chicago Convention, UNTS, Vol. 15, p. 295) is the fundamental legal instrument governing rights and obligations of States with respect to international civil aviation. In Part II, the Convention contains the charter of the ---+ International Civil Aviation Organization (ICAO).

1. Historical Background The first multilateral Convention relating to civil aviation was concluded after World War I in the framework of the Versailles Peace Conference (Convention on the Regulation of Air Navigation of October 13, 1919, LNTS, Vol. 11, p.173; ---+ Versailles Peace Treaty (1919». Its main purpose was to ensure better control over international civil aviation through an international legal framework on the basis of the principle of air sovereignty. Moreover, the legal framework was to ensure that the post-war aviation relations between States could be developed peacefully. The United States was not present at the Paris Conference. While committed to the legal principle of air sovereignty and other Convention principles, it nevertheless took the view that the Paris Convention did not sufficiently allow for the economic concept of freedom of air commerce.

CHICAGO CONVENTION

Therefore, the United States never adhered to the Paris Convention. This position was taken up again in the -+ Atlantic Charter of 1941, where the Allied Powers subscribed to the freedom of international exchange based on the freedom of -+ traffic and transport. In 1944, when international civil aviation had largely collapsed due to hostilities, the United States took the initiative to convene a conference with the aim of extending the basic legal framework of the Paris Convention worldwide while achieving a system in which the economic principle of freedom of traffic and transport would be better realized. The Conference on International Civil Aviation met from November 1 to December 7, 1944 in Chicago; fifty-four States were represented. It ended with the signature of the main Convention, the International Air Services Transit Agreement (UNTS, Vol. 84, p. 389, "Two Freedoms Agreement"), the "International Air Transport Agreement" (UNTS, Vol. 171, p. 387, "Five Freedoms Agreement"), and the Interim Agreement on International Civil Aviation (UNTS, Vol. 171, p. 345). The "Two Freedoms Agreement" and the "Five Freedoms Agreement" were aimed at regulating on a multilateral basis transit rights and commercial rights, respectively, for international air services. The purpose of the provisional agreement was to bridge the period until the Chicago Convention would formally enter into force, which was on April 4, 1947. 2. Major Provisions of the Convention

Art. 1 of the Convention provides: "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory" (-+ Sovereignty over Airspace). The fundamental principle of the Paris Convention of 1919 was therefore reaffirmed with respect to all States, even non-contracting States. The principle of innocent passage through national airspace for -+ aircraft of other contracting States, as contained in the Paris Convention, was no longer recognized in the Chicago Convention. However, transit rights were multilaterally granted in the separate "Two Freedoms Agreement" among its signatory States (-+ Overflight). Art. 6 of the Chicago Convention provides that "no scheduled international air service may be

55

operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorizan..n". This provision was the result of the failure of the Chicago Conference to agree on the multilateral exchange of commercial rights for scheduled international air services. In 1946, the United States and the United Kingdom concluded the first post-war bilateral air services agreement which became to be known as the "Bermuda I Agreement" (U:-.lTS, Vol. 3, p.253). It served as a model for an extensive network of bilateral agreements on international scheduled air services. These bilateral agreements developed in most parts of the world, allowing for the precise terms of operation to be adapted to the needs of the respective two contracting States (-+ Air Transport Agreements). International non-scheduled air services (air charter, air taxi, non-commercial civil aviation) are governed by Art. 5 of the Convention. Under this provision, aircraft engaged in such services "have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission ...." The same applies also to commercial flights, including stops for taking on or discharging passengers or cargo, subject however to the right of any State in which such stops are made to impose regulations, conditions or limitations on such flights. On this basis, a number of States have issued national regulations governing the conditions of charter and other non-scheduled air services to and from their territory. The twenty-two member States of the -+ European Civil Aviation Conference (ECAC) have coordinated their regulations with respect to air charter services, in particular those on the North-Atlantic route. Art. 17 establishes the principle that aircraft have the -+ nationality of the State in which they are registered. Under Art. 19, such registration shall be made in accordance with the laws and regulations of the registering State. Section 5 of the International Air Services Transit Agreement as well as most bilateral air transport agreements prevent -+ "flags of convenience" in international civil aviation by requiring that substantial owner-

56

CHICAGO CONVENTION

ship and effective control of the air transport enterprise and/or of the operating aircraft be vested in nationals of the respective State of registration. Arts. 31 and 32 lay down the principle that no aircraft shall be operated without a valid certificate of airworthiness, and no pilot or other operating crew member shall operate aircraft without a valid license. These rules engage the international responsibility of the State of registry issuing or validating such certificates for the airworthiness of the aircraft and the fitness of the operating crew, wherever the aircraft may operate ( ~ Responsibility of States: General Principles). Arts. 37 to 42 of the Convention deal with the international standards and practices which ICAO shall issue. Under Art. 37, each contracting State undertakes to collaborate in securing the highest practicable degree of uniformity in such standards and practices. Under Art. 38, contracting States shall immediately notify ICAO of any differences in their own standards or regulations from those issued by ICAO. Although Art. 37 does not explicitly stipulate this, it can be concluded from a reading of Arts. 37 and 38 that contracting States not having filed differences are bound to the standards issued by ICAO. On the other hand, recommended practices are not mandatory and do not fall into this category. Arts. 80 to 83 deal with other aeronautical agreements and arrangements. Under Arts. 81 and 83, second sentence, all such aeronautical agreements and arrangements of contracting States shall be registered with the ICAO Council. Furthermore, under Art. 83, first sentence, any contracting State may make new arrangements (or agreements) not inconsistent with the provisions of the Convention. The war clause, Art. 89, provides that in case of war, the freedom of action of contracting States concerned shall not be affected by the provisions of this Convention (~ War, Effect on Treaties). The same applies also in the case of declared state of national emergency, provided it is notified to ICAO.

3. Special Legal Problems Certain increasingly important forms of cooperation between airlines, such as lease, charter and interchange of aircraft, involve the transfer of the

"home base" of the aircraft from one country to another. without change of ownership and registration. This creates the problem that the State of registration remains internationally responsible for compliance with Art. 12 (Rules of the air), Art. 29 (Documents carried in aircraft), Art. 30 (Aircraft radio equipment) and Art. 31 (Airworthiness). without being in a position to effectively supervise and ensure the application of these provisions. In addition, certain technical maintenance and overhaul arrangements (e.g in Europe the ATLAS and KSSU arrangements) involve a transfer of supervisory and control functions relating to certain maintenance and overhaul functions from the State of registration to the State where these functions are effectively discharged. This is permissible under Annex 6, Chapter 3 to the Convention, but because of Art. 31 of the Convention it is only effective inter se, i.e. between the parties to these arrangements. In order to avoid these difficulties, the ICAO Assembly decided in 1980, after lengthy discussion, to amend the Convention by inserting a new Art. 83bis (Lease, charter and interchange of aircraft). It provides that the transfer of functions and responsibilities from the State of registration to the State of the actual operator takes legal effect erga omnes under the Convention, provided that the transfer has been notified to ICAO and subsequently published, or that it has been notified directly to all contracting States. This amendment requires, under Art. 94, ratification by two-thirds of all contracting States and is therefore not yet in force (as of June 1988). The question of interception of civil aircraft, and more generally, the question whether and under which conditions the ~ use of force against civil aircraft may be employed, is also left open in the Convention. Annex 2 to the Convention merely contains interception procedures. Following the ~ Korean Airlines incident on September 1, 1983, when a B 747 aircraft of Korean Airlines was destroyed by Soviet fighter aircraft resulting in the death of 269 persons, the ICAO Assembly decided on May 19, 1984 to amend the Convention by inserting Art. 3bis. Under this provision, "the contracting States recognize that every State must refrain from resorting to the use of weapons against civil

57

CIVIL AVIATION, UNLAWFUL INTERFERENCE WITH

aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered". Among other obligations, contracting States must also publish their regulations in force regarding the interception of civil aircraft. However, the question whether and to what extent the Convention and its Annexes can be applied to -+ State aircraft (in particular military aircraft) is unresolved. Some States prefer a restrictive interpretation of Art. 3(a) and take the view that the Convention and its Annexes do not apply at all to State aircraft, in particular military aircraft. Other States agree to the view based on Art. 3(d) that it may apply to the extent this is imperative to ensure the safety of civil aircraft and their passengers.

LA. Vlasic (ed.), Explorations in Aerospace Law, Selected Essays by John Cobb Cooper 1946-1966 (1968) 356-380. T. BUERGENTHAL, Law-Making in the International Civil Aviation Organization (1969). G.F. FITZGERALD, Convention on International Civil Aviation: Lease, Charter and Interchange of Aircraft in International Operations, Air Law, Vol. 1 (1975) 20-24. R. RODIERE, Droit des transports terrestres et aeriens (2nd ed. 1977). c.x. SHAWCROSS and K.M. BEAUMONT, On Air Law, 2 vols. (4th ed. 1977). J. NAVEAU , Droit du transport aerien international (1980). N.M. MATTE, Treatise on Air-Aeronautical Law (1981). w. SCHWENK, Handbuch des Luftverkehrsrechts (1981). L. WEBER, Die Zivilluftfahrt im Europaischen Gemeinschaftsrecht (1981). M.G. FOLLIOT, Les relations aeriennes internationales (1985).

4. Evaluation The Chicago Convention has played a major role as the "magna charta" for the post-war development of international civil aviation. It has provided a legal framework which has not impeded but favoured the enormous growth of the international air transport system since 1944. The Annexes to the Convention and their constant updating by the ICAO Council have been a most important condition for the safety, reliability and economic viability of the entire air transport system. The fact that questions of economic regulation, often connected to political considerations, have been left to bilateral solution may have contributed to this successful role of the Convention. Convention on the Regulation of Air Navigation, October 13, 1919, LNTS, Vol. 11 (1922) 173-306. Proceedings of the International Civil Aviation Conference, Chicago, November 1 to December 7, 1944, 2 vols. (1948). Convention on International Civil Aviation, December 7, 1944, UNTS, Vol. 15 (1948) 295-375. Agreement Relating to Air Services, February 11, 1946, UNTS, Vol. 3 (1947) 253-291. Questions of Public International Air Law, RdC, Vol. 81 (1952 II) 205-295. B. CHENG, The Law of International Air Transport (1962). J.e. COOPER, Backgrounds of International Public Air Law, Yearbook of Air and Space Law, Vol. 1 (1965) 3-37. J.C. COOPER, Air Transport and World Organization, in: D. GOEDHUIS,

LUDWIG WEBER

CIVIL AVIATION, UNLAWFUL INTERFERENCE WITH 1. Notion Due to the manifold ways in which free intercourse through air traffic can be endangered or obstructed, unlawful interference with civil aviation encompasses a variety of criminal acts jeopardizing the maintenance of domestic and international civil air traffic. The most common offences committed against the safety of civil aviation are hijacking, sabotage of -+ aircraft on the ground or in the air, and forced flights as for the purpose of seeking asylum in another State (see also -+ Korean Air Lines Incident (1983». There is, however, no universally accepted notion of unlawful interference with civil aviation. Thus, the scope of application of every international instrument dealing with offences against the safety of civil aviation will depend on its own definition of unlawful interference. A distinction should furthermore be drawn under international law between unlawful interference with civil aviation and the traditional concept of -+ piracy. Offences relating to civil aviation as a rule will not be committed from one aircraft against another craft and are rarely committed in a place outside the jurisdiction of any State. Therefore the -+ customary international law of piracy,

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58

ClVIL AVIATION, UNLAWFUL INTERFERENCE WITH

including the principle of universal jurisdiction over pirates and their crafts, will in most cases not be applicable. States may, however, assert jurisdiction over persons interfering with civil aviation by having recourse to the principle of territoriality, e.g. where a seized aircraft has landed on their territory. In addition, according to the principle that aircraft have the nationality of the State in which they are registered, States may exercise jurisdiction over aerial offences committed outside their territorial boundaries (-+ Criminal Law, International). In the absence of such jurisdiction links, however, a lacuna remains where the offender escapes into a third State which has no factual connection with the act of unlawful interference. Frequently such States will not be willing to establish jurisdiction and institute proceedings related to offences which do not affect their particular interests. An -+ extradition may prove difficult due to legal impediments (e.g. the exception of political offences), or on account of politically motivated differences with the State requesting the extradition of the offender. Some States have even granted safe havens for offenders, thereby jeopardizing the safety of international civil aviation while claiming that such acts were committed in the course of a peoples' struggle against colonial domination and alien occupation and against racist regimes in the exercise of the right of -+ self-determination. Such struggles generally have been recognized as international -+ armed conflicts, in the sense of the Geneva Conventions of 1949, by Art. 1 (4) of the first Additional Protocol of 1977, but the field of application of this provision is very limited (-+ Geneva Red Cross Conventions and Protocols). Acts directed against the safety of international civil aviation as a rule are not covered by the international law of war (-+ War, Laws of). In addition, aerial hijacking and sabotage directed against civil aircraft generally do not qualify as acts of -+ war committed by an organized armed force under responsible command fighting against the armed forces of a party to an armed conflict. Therefore, claims for an application of the laws of war in such cases would seem to be ill-founded. Under the laws of war, moreover, civil aircraft must not be made the object of attacks or -+ reprisals. Acts interfering unlawfully with civil aviation, even if committed in the course of an

armed conflict, may therefore be subject to trial or extradition under the laws of war.

2. Historical Evolution Endeavours to combat unlawful interference with civil aviation by way of international legal instruments began in 1962 when the Convention on Offences and Certain Other Acts Committed on Board Aircraft (Tokyo Convention), September 14, 1963 (ILM, Vol. 2 (1963) p. 1042) was prepared and drawn up under the auspices of the -+ International Civil Aviation Organization. The Convention was primarily concerned with jurisdictional questions and the power of the aircraft commander and came into force after the 12th ratification only on December 4, 1969. In the face of a dramatic increase in aircraft hijackings in 1968, the ICAO initiated the drafting of another convention specifically concerned with unlawful seizure of aircraft. The Convention for the Suppression of Unlawful Seizure of Aircraft (Hague Convention), December 16, 1970 (ILM, Vol. 10 (1971) p. 133) was adopted in The Hague in 1970 and came into force on September 14, 1971. Meanwhile, the -+ United Nations General Assembly overwhelmingly adopted two resolutions: Res. 2551 (XXIV) of December 12, 1969 condemning the forcible diversion of civil aircraft in flight, and Res. 2645 (XXV) of November 25, 1970 condemning aerial hijacking or interference with civil air travel. In 1971 the Hague Convention was supplemented by the adoption of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (Montreal Convention), September 23, 1971 (ILM, Vol. 10 (1971) p. 1151) which attempts to give the principles of the Hague Convention a broader application by defining acts of sabotage and violence related to. offences interfering with the safety of civil aviation. However, subsequent efforts by the ICAO to develop international procedures and sanctions to ensure that States would observe their obligations under the three conventions failed.

3. Current Legal Situation (a) The Tokyo Convention The Tokyo Convention applies in general to all offences against penal law and other acts jeopardizing the safety of aircraft. Offences against penal

CIVIL AVIATION, UNLAWFUL INTERFERENCE WITH

laws of a political nature or those based on racial or religious discrimination are, however, excluded from the scope of the Convention. According to Chapter II, States parties are under an obligation to ensure that when an offence or other act has been committed on board a civil aircraft, at least the State of registration of the aircraft will be able to exercise jurisdiction over the alleged offender. However, the parties are not under a duty to prosecute or punish the alleged offender. With respect to aerial hijacking, Art. 11 provides that where "an act of interference, seizure, or other wrongful exercise of control of an aircraft in flight" has been committed or is about to be committed, the States parties are to take all appropriate measure to restore control of the aircraft to its lawful commander and to permit the continuation of the journey as soon as practicable. In addition, the detailed provisions of the Convention relating to the powers of the aircraft commander and others on board to impose reasonable measures of restraint upon alleged offenders on board are also applicable to the hijacker. The Convention does not establish a duty to grant extradition, but stipulates that offences committed on aircraft shall be treated for the purpose of extradition as if they had also been committed in the territory of the State of the aircraft's registration. (b) The Hague Convention This Convention is specifically concerned with the offence of hijacking; the parties undertake to make unlawful seizure of civil aircraft an offence punishable by severe penalties. As far as hijacking and violent acts related thereto are concerned, the obligation of the State of registration of the aircraft under the Tokyo Convention to establish --+ jurisdiction is extended to the State of landing and the State of the lessee of an aircraft leased without crew. Furthermore, a State party is required to establish jurisdiction in cases where the alleged offender is present in its territory and it does not extradite him to a State having jurisdiction. This State party, once the alleged offender is "found" in its territory and not extradited, is also obliged "without exception whatsoever .. , to submit the case to its competent authorities for the purpose of prosecution". There is, however, no duty to prosecute. Thus, unlawful seizure of aircraft may still be regarded as a political offence,

59

thereby possibly qualifying the alleged offender for asylum or leniency in prosecution. Although the Convention provides that unlawful seizure of aircraft is deemed to be included as an extraditable offence in any --+ extradition treaty existing between the State parties and that they undertake to include the offence of unlawful seizure of aircraft as an extraditable offence in every extradition treaty to be concluded between them, the Convention falls short of guaranteeing extradition of offenders in every case. Finally, the Convention reiterates with some minor differences the duty under the Tokyo Convention in a case of hijacking to take all appropriate measures to restore control of the aircraft to its lawful commander and to facilitate the continuation of the journey and the return of aircraft and cargo to the person lawfully entitled to possession. (c) The Montreal Convention This Convention covers various acts against the safety of civil aviation, such as the destruction of aircraft "in service" or the destruction of navigation facilities if such act is likely to endanger the safety of aircraft "in flight" (--+ Airports). The Convention does not extend to attacks on persons within airport facilities. The States parties are obliged to make the listed offences punishable by severe penalties. The provisions regarding jurisdiction, prosecution and extradition are similar to those contained in the Hague Convention, though the duty of a State party to establish jurisdiction where the alleged offender is present in its territory does not apply to all offences listed. (d) Other instruments Besides these three Conventions, there are several other international instruments dealing with unlawful acts against the safety of civil aviation. These include the United Nations Convention against the Taking of Hostages of December 18, 1979 (ILM, Vol. 18 (1979) p. 1457; --+ Hostages); the United Nations Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of December 14, 1973 (UNTS, Vol. 1035, p. 167); and Annex 17 of the --+ Chicago Convention, which provides for standards of aviation security. Other instruments of a regional character are the European Convention

60

CIVIL AVIATION . UNLAWFU L INTERF ER ENCE WITH

o n the Suppression of Terrorism of Januar y 27 , 1977 ( U NTS. Vol. 1137. p. 93; - Terrorism) and th e Organization o f American States' Convention to Pre vent a nd Puni sh Acts o f Terrorism Taking th e Form of C rimes against Persons a nd Related E xtortion th at a re of International Significance o f Fe brua ry 2, 1971 ( ILM, Vol. to ( 197 1) p. 255) . Nume rous bilat eral hijacking agree me nts hav e also been concluded and sometimes subsequently ren ounced , as for ex ample th e Agreement between the U nited States and Cuba on th e Hijacking of A ircraft and Vessels and Other Offences o f Februar y 15, 1973 (U NTS, Vol. 916 , p.85 ) (re no unced O ctober 15, 1976 ). Finally, in man y extr adition treaties aerial hijacking has expressly been made a n extraditable offence . The failure of the international community to create international machinery providing for enforce me nt measure against States led to th e Declaration o f Bonn in 197/!. During a summit meeting there , the heads of government o f Canada, Federal Republic of Germany, France . It aly, Japan , the United Kingdom and the United States declared that in cases where a country refuses extradition or prosecution of hijackers o r does not return the aircraft , the declaring States jo intl y resolved to ta ke immediate acti on to ce ase all flights to that co untry. At the sa me time , th e y pledged to initiate action to halt all incoming flight s from that country , or from any country by th e airlines o f the cou ntry concerned ( ILM, Vol. 17 ( 1978) p . 1285) . This threat to - boycott a country granting protection to hijackers or not returning a hijacked aircraft was re -emphasized by the seven governments in the Declaration of Montebello in 1981 (ILM , Vol. 20 (1981) p. 956 ) . The legal implications of the Bonn Declaration ar e not clear. It is not intended to create contractual obligations and therefore cannot easily be interpreted as overriding existing international agreements such as the Chicago Convention or bilateral - air transport agreements.

4. E valuation The Conventions of Tokyo, The Hague and Montreal constitute the essence of international law relating to unlawful inte rfe re nce with civil aviati on . The definition of acts of unlawful interference with civil aviation in the Hague and Montreal Conventions, the recognition of such

acts as offen ces to be punished by se vere penalti es . and the establishment of far-reaching jurisdiction for most o f the o ffe nces defin ed is a major co ntribution tow ards a n effecti ve restraint of unl awful interfer ence with civil aviati on . Though the Co nve ntio ns have been ratified by a lar ge ma jority o f States (as of March 1987, 125 Stat es had adhered to the Tokyo Convention , 131 St ate s to the Hague Convention and 131 States to th e Montreal Convention) , th e problem of - sa nctio ns again st States reluctant to cooperat e in th e suppression o f acts of ae rial piracy has not been fully solved . Various efforts to adopt a ge ne ra l convention against all acts o f international terrorism have failed. There is, however , a grow ing tendency to hold th at acts co nst ituting an unlawfu l interference with inte rna tiona l civil aviation affect the interests o f the world co mmunity and must be suppressed whatever the situ ation or th e motive of th e offender. This trend is reflected in the prac tice o f States relating to th e pol itical o ffe nce e xce ptio n in extradition treaties . In additu ut , a large number o f St ates have implemented It A I ) security provisions con cerning airports a nd ''' ,",'.ur in the ir national legal orders . Co nv

Ii i Io n

0"

on Offences and Ce rtain Other Acts ComBoard Aircraft (Tokyo Convention), Sep-

14. 1963. UNTS. Vol. 704 (1969) 219-254. ( \

1'1 11

for the Suppression of Unlawful Seizure of

( Hague Convention). December 16. 1970. I ' . Vnl. 860 (I 973) 105- 157. , if'

ColO .cntlll o fo r the Suppression of Unlawful Acts

the Safety o f Civil Aviati on (Montrea l Conuio n), September 23, 1971. UNTS. Vol. 974 (1975) 177 248.

A t ,lI 11st

K II AlI .BRO NNER ,

Luftpiraterie in rechtlicher Siehl. Von

Tokyo bis Montreal ( 1972). Multilateral Con ventions for the Suppression of Unlawful Seizure and Interference with Aircraft , Part I: The Hague Convention. ColJTransL,

A . ABR A MO VSKY ,

Vol. 13 ( 1974) 381 -405 , Part II: The Montreal Convention, ColJTransL. Vol. 14 ( 1975) 268-300. Part III: The Legality and Political Feasability of a Multilateral Air Security Enforcement Convention, ColJTransL. Vol. 14 (1975) 451 -484 . N .D . JO YNER , A Contemporary Concept of Piracy in International Law: The Status of Aerial Hijacking as an International Crime (1974). A .E . EVAN S and J.F. M URPHV (eds.), Legal Aspects of Internati onal Terrorism ( 1978). The Bonn Declarati on on International Terrorism - A Non -Binding Agreement on Aircraft

J.J. BUSlJITIL .

Hijacking. ICLQ. Vol. 31 (1982) 474-487.

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Unlawful Interference with Civil Aviation, in: A. Kean (ed.), Essays in Air Law (1982) 59-79. K. HAILBRONNER, International Terrorism and the Laws of War, GYIL, Vol. 25 (1982) 169-198. K. CHAMBERLAIN, Collective Suspension of Air Services with States which Harbour Hijackers, ICLQ, Vol. 32 (1983) 616-632. R.I.R. ABEYRATNE, Aerial Piracy and Extended Jurisdiction in Japan, ICLQ Vol. 33 (1984) 596-613. J.e. PIRIS, L'interdiction du recours it la force contre les aeronefs civils: l'amendement de 1984 it la Convention de Chicago, AFDI Vol. 30 (1984) 711-732. R.I.R. ABEYRATNE, Hijacking and the Teheran incidenta World in Crisis?, Air Law, Vol. 10 (1985) 120-128. N. MATEESCO MATIE, La Convention de Chicago quarante ans apres, Annuaire de Droit Maritime et Aerien, Vol. 8 (1985) 187-197. S. AKWEENDA, Prevention of unlawful Interfernce with Aircraft: a Study of Standards and recommended Practices, ICLQ Vol. 35 (1986) 436-446. J. ROTI, Zur Problematik der Luftsicherheit, Anderung des Annex 17 zum ICAO-Abkommen, Zeitschrift fiir Luft- und Weltraumrecht, Vol. 35 (1986) 198-201. G.F. FITZGERALD,

KAY HAILBRONNER

COASTAL FISHERIES 1. Introduction The desire to control fishery resources has in the past been one of the major inducements to the seaward extension of coastal State jurisdiction (-+ Jurisdiction of States). However, the historical development of the regime of the -+ territorial sea proves that the extension of national control over marine natural resources must not necessarily result in an extension of -+ territorial sovereignty (-+ Natural Resources, Sovereignty over). In the 18th century, for example, exclusive fishing rights were accepted without full territorial sovereignty being claimed by the coastal State. In the 19th century and at the beginning of the 20th century, however, when legal doctrine was unable to justify the exercise of a State's powers beyond the limits of its territory, coastal States undertook to enlarge their control over fishery resources by extending the seaward limits of their coastal waters. The Third United Nations Conference on the Law of the Sea (UNCLOS III) again separated jurisdiction over fishery resources from the regime of territorial waters by recognizing the regime of the -+ exclusive economic zone (-+ Conferences on the Law of the Sea).

.

2. Historical Evolution of Legal Rules The right to exclusive fisheries in the waters adjacent to the coast, up to varying distances, was effectively established before the debate on mare liberum occurred in the early 17th century. The parties to that debate were divided not only regarding the extent of -+ sovereignty over the -+ high seas but also on the question whether exclusive fishery rights could be legally upheld. Grotius, for example, advocated freedom in respect of fishing rights, whereas his adversaries, claiming fishery resources to be exhaustible, favoured fishing monopolies. The latter view prevailed in State practice, which was modified, however, by the notion of respect for traditional fishing interests. At the end of the 19th century the legislative practice of States led to a generalization of this system. Coastal States claimed exclusive fishery jurisdiction and at the same time monopolized its use for their own nationals within the territorial waters or within a three-mile limit adjacent to the coast. Outside this area, on the high seas, fishing was deemed to be free. The distribution of fishery resources was thus achieved through free competition of the users. This caused the emergence of the now undisputed rule of international law that the coastal State, enjoying sovereignty over its territorial waters, has an absolute right to regulate the exploration and exploitation of the fishery resources therein and to apply its domestic legislation fully to any person engaged in such activities. Similarly, the coastal State is free to prohibit fishing by foreigners in its territorial sea and thus to monopolize the fishery resources located there. Against this system, i.e. the traditional dualism, according to which different regimes govern fisheries on the high seas and in the coastal waters, the concern was voiced that limiting the jurisdiction of the coastal States to the fishery resources of the coastal waters would hinder adequate protection of world fishery resources against overexploitation. It was this concern among others which caused the United States since 1868 to undertake national regulation of the hunting of fur seals on the high seas. In the -+ Behring Sea Arbitration, however, the Arbitral Tribunal ruled that under the principle of the freedom of the seas no State had the competence to enact protective measures

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COASTAL FISHERIES

with respect to activities on the high seas which were binding upon third States or their nationals. Because legal concepts were not available for the exercise of competence over foreign ships on the high seas, proposals were made in the legal discussion to extend the limits of the territorial waters, their main purpose being the protection of the world's fishery resources (OConnell, pp. 524527). At the beginning of the 20th century the rationale for an extension of the territorial waters changed. Not the protection of the world's fishery resources, but rather the dependence of coastal populations on fisheries in adjacent waters became its moving force. This made apparent that there existed a clash between two divergent economic interests: those of the coastal States and those of the States with distant-water fishing fleets. For example, the declaration of Santiago in 1952 (Declaration on the Maritime Zone, UNTS, Vol. 1006, p. 326), justifying the extension of the territorial waters of some Latin American States, emphasized that it was the duty of their governments to ensure the conservation and protection of its natural resources (-+ Conservation of Living Resources of the High Seas). The preamble of the Declaration, moreover, conceived as a duty of the coastal States "the regulation of the development of these resources in order to secure the best possible advantages for their respective countries". At the 1958 Geneva Conference on the Law of the Sea (UNCLOS I), two principles were promoted with a view to reconciling the interests of coastal States with those of the distant-water fishing States: the principle of abstention and the principle of preference. According to the principle of abstention, States which have not fished a given area for a certain period of time should altogether abstain from fishing there. This principle was formulated for the first time in the International Convention for the High Seas Fisheries of the North Pacific Ocean between the United States, Japan and Canada, May 9, 1952 (UNTS, Vol. 205, p. 65; -+ Fishery Commissions). At UNCLOS I, the United States and Canada tned in vain to gain acceptance of the abstention principle. This principle is based on the approach which avoids overfishing and requires the establishment of priorities without monopolizing exploitation.

However, as it was found impossible to formulate legal criteria for the division of the resource among the States concerned, the proposals based upon the notion of preferential rights at UNCLOS I failed to command general support. The dilemma of how to allocate regulatory powers with respect to fishery resources led to three contradictory trends. One trend was to adopt the traditional approach and to seek a solution in the extension of the territorial sea. The second approach was to establish an adjacent fishing zone and thus to separate the fishery issue from the regime on coastal waters (-+ Fishery Zones and Limits). According to a third way of solving the allocation of fishery resources problem, the regulation of fisheries was to be entrusted to fishery commissions. The second approach assumed official status at UNCLOS I, when Canada unsuccessfully sought the addition of regulatory powers over fisheries to the category of the contiguous zone. At UNCLOS II (1960) two similar proposals were tabled, one from Canada and one from the United States. In spite of the failure of the 1960 Law of the Sea Conference, the first two policy alternatives gained increasing support in State practice in which, besides the notion of extending the territorial sea, the concept of establishing adjacent fishery zones was favoured. This was affirmed by the -+ International Court of Justice (ICJ) in its judgments of July 25, 1974 on the -+ Fisheries Jurisdiction Cases (U.K. v. Iceland; Federal Republic of Germany v. Iceland). The Court held that two trends had crystallized in customary law since the Geneva Conferences: the concept of fishery zones up to a twelve-mile limit and the concept of preferential rights for fishing in waters off the coastal State beyond the distance of twelve miles. As to the concept of preferential rights, the Court based its assertion that these had become part of -+ customary international law upon the widespread acceptance of the concept as evidenced by bilateral and multilateral agreements which had entered into force since 1960. The Court, however, modified its finding by emphasizing that existing fishing rights were to be respected (ICJ Reports 1974, pp. 1, 27). The separate opinion appended to the majority judgment, instead, put more weight on the claims to fishery zones already

63

COLLISIONS AT SEA

enforced. According to this view, the coastal State had a rather wide discretion in establishing its fishing zones and in dealing with traditional fishing rights. The decision of the ICJ finding that claims to twelve-mile fishery zones were consistent with customary international law, however, only marked a provisional standstill. It was swept over by the now established regime on exclusive economic zones.

3. Current Legal Situation Although neither the Geneva Convention on the Territorial Sea and Contiguous Zone of 1958 (UNTS, Vol. 516, p. 205) nor the United Nations Convention on the Law of the Sea of 1982 (UN Doc. A/CONF. 62/122 with Corr.) mention that the coastal State has an unrestricted right to regulate and control fisheries in its territorial waters, such a right is unquestioned in international law. This is a logical consequence of the sovereignty of the coastal State over the territorial sea.

4. Special Regime under EEC Law Based upon Art. 38 of the Treaty of Rome (Treaty Establishing the European Economic Community, March 25, 1957, UNTS, Vol. 295, p. 17), the ~ European Economic Community in 1970 implemented its policy on fisheries under Regulation No. 2141170, October 20, 1970, reenacted by Regulation 101176. This Regulation, among other things, stated that Community fishermen must have equality with regard to access to fishing grounds and to their exploitation in waters under the sovereignty or within the jurisdiction of member States. Transitional measures have been provided especially with respect to acceding States. This implies that only the Community can conclude international fisheries agreements, including multilateral agreements. So far the Community has joined four international fisheries organizations independently of its member States: the Northwest Atlantic Fisheries Organization, the Northeast Atlantic Fisheries Commission, the Northwest Atlantic Salmon Consultative Organization and the International Baltic Sea Fisheries Commission.

International Control of Sea Resources (1963). International Law of the Resources of the Sea, RdC, Vol. 127 (1969 II) 355-384. J.-Y. MORIN, The Quiet Revolution: Canadian Approaches to the Law of the Sea, in: R. Zacklin (ed.), The Changing Law of the Sea: Western Hemisphere Perspectives (1974) 11-31. M. SHYAM, Rights of Coastal States to Fishery Resources in the Economic Zone: An Empirical Analysis of State Preferences, Ocean Management, Vol. 3 (1976) 1-30. L GDNDLING, Die exklusive Wirtschaftszone, ZaoRV, Vol. 38 (1978) 616-658. S. MOHAN, Fisheries Jurisdiction, in: R.P. Anand (ed.), The Law of the Sea (1978) 223-252. S.P. BALASUBRAMANIAN, Fishery Provisions of the Informal Composite Negotiating Text, Marine Policy, Vol. 5 (1981) 313-321; Vol. 6 (1982) 27-42. P. COPES, The Impact of UNCLOS IlIon Management of the World Fisheries, Marine Policy, Vol. 5 (1981) 217-228. G. MOORE, National Legislation for the Management of Fisheries under Extended Coastal State Jurisdiction, Journal of Maritime Law and Commerce, Vol. 11 (1981) 153-177. R.P. ANAND, The Politics of a New Legal Order for Fisheries, Ocean Development and International Law, The Journal of Marine Affairs, Vols. 11-12 (1982) 265-295. D.P. O'CONNELL, The International Lawof the Sea (ed. by LA. Shearer), Vol. 1 (1982). R. PURl, Legal Regime on Marine Fisheries, Indian Journal of International Law, Vol. 22 (1982) 241-250. W.T. BURKE, Extended Fisheries Jurisdiction and the New Law of the Sea, in: B.J. Rothschold, Global Fisheries Perspectives for the 1980s (1983) 7-49. S. ODA, Fisheries under the United Nations Convention on the Law of the Sea, AJIL, Vol. 77 (1983) 739-755. AW. KOERS, The European Economic Community and International Fisheries Organisations, Legal Issues of European Integration (1984). G.R. MUNRO, Coastal States, Distant Water Fleets and Extended Fisheries Jurisdiction: Some Long-Run Considerations, Marine Policy, Vol. 9 (1985) 2-15.

S. ODA, s. ODA,

RUDIGER WOLFRUM

COLLISIONS AT SEA 1. Historical Development of Legal Rules There are three basic elements in the development of international law rules relating to collisions at sea: the rules of navigation and seamanship; jurisdiction (~ Jurisdiction of States); and choice of law. While none could claim true universality, the lex Rhodia of Roman times, the Consolato del Mare of the 14th century, and the national legislation of the 17th century, especially

64

COLLISIONS AT SEA

the French ordonnance de ta marine of 1681, displayed some common elements and thus constituted a body of accepted rules (~ History of the Law of Nations; ~ Law of the Sea, History). In England the courts of admiralty consulted the Trinity Masters on matters of maritime law and navigation (~ Admiralty Law). In 1840 a code was published by Trinity House, which was incorporated by legislation in 1846 and extended in 1862 to apply to actions in English courts involving foreign ships, on the assumption that the Trinity Rules represented the rules of the road common to all maritime nations. In fact the regulations made under the British Merchant Shipping Amendment Act, 1X62 (25 & 26 Vict. c.63) were adopted by almost all the maritime nations, and thus came to be accepted as, if not "general maritime law", at least as generally applicable by common ~ acquiescence. Private international bodies (~ Non-Governmental Organizations), such as the Comite Maritime International, the -~ Institut de Droit International, and the ~ International Law Association, worked for the codification and development of rules regarding collisions and other subjects of private and public maritime law during the 19th century (~ Codification of International Law). The first significant multilateral treaty on the subject was reached at the Brussels Conference of 1910 which adopted the International Convention for the Unification of Certain Rules with Respect to Collision between Vessels. Further Brussels Conventions were adopted in 1924 and 1957 respecting Limitation of Liability of Owners of Seagoing Vessels (Convention of August 25, 1924, LNTS, Vol. 120, p. 123; Convention of October 10, 1957, British Command Papers, Cmnd. 3678), and in 1952 on Penal Jurisdiction in Matters of Collision, and on Civil Jurisdiction in Matters of Collision. The Intergovernmental Maritime Consultative Organisation (since 1982 named the ~ International Maritime Organization) adopted the International Regulations on Preventing Collisions at Sea in 1960, and a revised set of regulations in 1972. These regulations will be given universal applicability by reason of the United Nations Convention on the Law of the Sea of December 10, 1982 (Arts. 21(4), 39(2)(a), 94(3)(c), 94(4)(c); UN Doc. A/CONF. 62/122 with Corr.).

The United States, Liberia, and Panama are not parties to the 1910 Brussels Collisions Convention, nor to the 1952 Civil Jurisdiction Convention. This represents a significant degree of abstention by major maritime nations. Attempts to find an accommodation with the United States position on personal injury and death claims, and to clarify other matters relating to jurisdiction, choice of law, and enforcement of judgments were made by the Comite Maritime International in its Draft Convention for the Unification of Certain Rules concerning Civil Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments in Matters of Collision, in 1977. These questions remain under study by that body, and by the International Law Association and the International Maritime Organization.

2. Current Legal Situation (a) Penal jurisdiction The proposition unsuccessfully advanced by France before the ~ Permanent Court of International Justice (PCIJ) in the 1927 case of the 5.5. Lotus (~ Lotus, The) that criminal jurisdiction in respect of acts on board a ship on the ~ high seas resides exclusively in the courts of the flag State of that ship was vindicated in the 1952 Brussels Penal Jurisdiction Convention (~Flags of Vessels; ~ Ships, Nationality and Status). The same proposition was adopted in Art. 11 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) which provides that no penal or disciplinary proceedings may be instituted except before the judicial or administrative authorities either of the flag State or the State of which such person is a national (~ Nationality). This provision is repeated in Art. 97 of the 1982 Law of the Sea Convention and thus now clearly represents ~ customary international law, contrary to the view of the PCIJ in 1927. Collisions in ~ ports or other ~ internal waters are within the territorial jurisdiction of the coastal State. States may choose whether or not to exercise jurisdiction with respect to collisions occurring within their ~ territorial sea (cf. Geneva Convention on the Territorial Sea and Contiguous Zone, April 29, 1958, Art. 19, UNTS, Vol. 516 (1964) p. 205).

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COMMON HERITAGE OF MANKIND

(b) Civil jurisdiction There are three widely recognized bases of civil jurisdiction in relation to collisions: territorial jurisdiction in respect of collisions occurring in ports, internal waters or territorial waters of the forum State; jurisdiction founded on the defendant's habitual residence or place of business; and the place where the delinquent vessel or a surrogate ship owned by the same party is arrested. More controversially, other grounds of jurisdiction are recognized by some States: the place where property owned by the defendant can be attached; the place where the defendant has established a limitation fund pursuant to the local law; and the flag State of the victim vessel. According to the Convention on the Immunity of State-Owned Vessels, April 10, 1926 (LNTS, Vol. 176, p. 199), State-owned vessels are immune from the jurisdiction of foreign authorities only if they are -7 warships or used exclusively in public non-commercial service (-7 State Ships). This also accords with the practice of most States, but is not recognized by the Soviet Union and some other socialist States. The flag States of ships which are immune from the jurisdiction of foreign States are responsible for the actions of such ships according to international law rules of State responsibility (-7 Responsibility of States: General Principles).

poses. The 1977 Draft Convention of the Comite Maritime International proposes an approach based on present United States law which applies the law of the forum in all cases except where the collision occurs in foreign territorial or internal waters or where all the ships involved fly the same flag. Brussels Convention on Collisions and Salvage at Sea, 1910, BFSP, Vol. 103 (1910) 434-455. Brussels Conventionon the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision and Other Incidents of Navigation, May 10, 1952. UNTS, Vol. 439 (1962) 233-248; Civil Jurisdiction in Matters of Collision, May 10, 1952, UNTS, Vol. 439 (1962) 217-231.

Convention on the International Regulations for Preventing Collisions at Sea, October 20, 1972, British Command Papers, Cmnd. 6962, Treaty Series (UK) No. 77 (1977). Comite Maritime International, Draft Convention for the Unification of Certain Rules concerning Civil Jurisdiction, Choice of Law, and Recognition and Enforcement of Judgments in Matters of Collision, September 30, 1977, ILA Reports, Vol. 58 (1978) 436-439. British Shipping Laws, Vol. 4" - The Law of Collisions at Sea (lith ed. by K.c. McGuffie, 1961 ). c.r. COLOMB as . The International Lawof the Sea (6th ed. 1967). R.H.B. STURT, The New Collision Regulations (1977). D.P O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 2 (1984). R.G. MARSDEN,

3. Evaluation There is need for greater harmonization in recognition of fora having jurisdiction in collision cases. Efforts to this end are impeded by differing national laws and policies, and by lack of a common approach to limitations on liability and the scope of suits for personal injuries. The approach of national courts to the choice of law applicable in collision cases is also diverse. Application of the lex loci delicti, where that is also the law of the forum, is normal practice. Almost as normal is the application of foreign law where the collision occurred in waters of a State other than the forum. There is a tendency in some jurisdictions to apply the law of the forum to collisions occurring on the high seas irrespective of the flags of the colliding vessels, but the courts of some countries discriminate according to the flags of the delinquent and victim vessels for different pur-

LA. SHEARER

COMMON HERITAGE OF MANKIND 1. Notion The term "common heritage of mankind" has been developed in connection with -7 codification activities concerning the progressive development of -7 international law within the framework of the -~ United Nations. The principle which this term represents forms an essential element of the United Nations Convention on the Law of the sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.)- from where it has found its way into national legislation relating to sea-bed activities (~ Sea-Bed and Subsoil). It has been further introduced into the outer space regime

66

COMMON HERITAGE OF MANKIND

and, to a lesser degree, into the legal framework for Antarctica. Although attempts have been made to invoke this principle with respect to ~ technology transfer and ~ cultural property, the common heritage principle has its main impact with respect to the establishment of an international administration for areas open to the use of all States (international commons).

2. International Legal Instruments (a) 1982 Law of the Sea Convention In the 1982 Law of the Sea Convention the common heritage principle is set forth under different provisions (~ Conferences on the Law of the Sea). The preamble refers to UN GA Res. 2749(XXV) of December 17, !970 in which the ~ United Nations General Assembly solemnly declared, inter alia, that the ana of the "sea-bed and the ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction ... , as well as the resources of the area, are the common heritage of mankind". This idea is accentuated in Art. 136 of the 1982 Convention according to which the Area and its resources are the common heritage of mankind. Art. 140 draws the following conclusion therefrom: Activities in the Area shall, as provided for by the regime on the deep sea-bed, "be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States" and "taking into particular consideration the interests and needs of deve, oping countries". The significance of this principle to the 1982 Law of the Sea Convention becomes evident through Art. 311, para. 6, which provides that there will be no amendments to the basic principle relating to the common heritage of mankind set forth in Art. 136.

(bJ Outer space The common heritage principle was extended to outer space for the first time in Art. 1 of the Declaration of Legal Principle s Governing the Activities of States in the Exploration and Use of Outer Space (UN GA Res. 1962 (XVIlI) of December 13, 1963). From there it found its way into the Treaty on Principle; Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other

Celestial Bodies (~ Outer Space Treaty, January 27, 1967, UNTS, Vol. 610, p. 205). Art. 1 of the Treaty states that the exploration and use of outer space shall be the common province of all mankind. In the discussion on the drafting of the Outer Space Treaty the two terms "province of all mankind" and "common heritage" Were repeatedly compared with each other. The formulation "province of all mankind" was looked upon as being more closely related to the principles of the freedom of outer space and the prohibition of appropriation. The reference to the common heritage concept is more explicit in Art. 11, para. 1 of the Agreement Governing the Activities of States on the Moon and other Celestial Bodies (Moon Treaty, December 5, 1979, ILM, Vol. 18 (1979) p. 1434;- Celestial Bodies). Art. 4, para. 1 of the Moon Treaty combines the two terms: "The exploration and use of the moon shall be the province of all mankind and shall be carried out for the benefit and in the interests of all countries irrespective of their degree of economic or scientific development." As used in the Moon Treaty both terms have a different emphasis although they have the same objective. Art. 4, para. 1 emphasizes the cooperation of the States parties in all their undertakings concerning the moon and other celestial bodies, whereas Art. 11, together with Art. 5, provides the common heritage principle with legal content.

(c) Antarctica As far as the legal regime of ~ Antarctica is concerned the common heritage principle has been invoked to a lesser degree. At the 11th Consultative Meeting to the Antarctic Treaty on December 1, 1959, the Antarctic Treaty Consultative Parties only emphasized in Recommendation Xl-I, para. 5(d) that "the Consultative Parties, in dealing with the question of mineral resources of Antarctica, should not prejudice the interests of all mankind in Antarctica". Apart from that, the common heritage principle has been used during the discussions in the United Nations on Antarctica to question the authority of the Antarctic Treaty Consultative Parties to negotiate and conclude a treaty concerning the exploration and development of Antarctic mineral resources.

67

COMMON HERITAGE OF MANKIND

3. Content of the Principle of the Common Heritage of Mankind (a) Introduction An analysis of the agreements mentioned above and the various related resolutions of the UN General Assembly reveals that the common heritage principle is not and is not intended to be fully defined in all its aspects. However, in some respects the common heritage principle provides clear rules.

mankind as a whole. The Moon Treaty does not

follow this approach; it allows for no peremptory consequence derived from the common herit age principle . Th e intr oduction of the term " mankind" combined with the word "heritage" indicates that the interests of future generations have to be respected in making use of the international commons. More specifically, it requires that deep sea-bed or outer space activities should avoid undue waste of resources and provides for the protection of the

-+

environment.

(b) Status of the area (c) Regime of utilization

According to Art. 137 of the 1982 Convention no State shall claim or exercise ----. sovereignty or sovereign rights over any part of the sea-bed and the ocean floor or its resources, nor shall any State or natural or juridical person appropriate any part thereof. The Moon Treaty as well as the Outer Space Treaty follow the same approach. The legal significance of the common heritage principle in the ..... law of the sea is minimal as Art. 2 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) already prohibits any occupation of the ..... high seas including the respective sea-bed. However . Art. 136 of the 1982 Convention goes one step turthe: It states that no such claim or exercise of

common heritage prin ciple was meant to embrace the peaceful usc of the international commons as well as the protection of the environment. The regime " ' utilization. furthermore, establishes the dut y of all State s to cooperate internationally in the exploratio n and use of the sea-bed and the ocean floor a, well as outer space and its cclcv i,,1 bodies . The institution through which such v" " p'cralinn is to be achieved with respect to the " I hu l " the Sea-Bed Authority. A corre, !,n" dil'e duty of States to cooperate in the

sovereignty or sovereign rights or such appropria-

p rinci p le immanent in space law . Such an obliga-

tion shall be recognized . Thus. the prohibition of occupation and appropriation has been given a legal status the effect of which is similar to that of ..... jus cogens . Moreover, Art . 137 is phrased as a n obligation of all States and not only the States parties to the Convention. In addition . one of the objectives of the common heritage principle is to preserve the present legal status of the international commons against all States and, as indicated by the term "appropriation", all private persons. Apart from its negative side as just described . the common heritage principle introduces a revolutionary new positive element into the law of the sea by indicating that the control of the sea-bed is vested in mankind as a whole. Mankind, in turn, is represented by the Sea-Bed Authority which is the organization through which States parties organ ize and control deep sea-bed activities (Art . 157, para. 9). Thus, the States parties are meant to act as a kind of trustee on behalf of

tum to cooperate surpasses that required by gencr al mtemational law (..... International Law of Coope ration ). Controversy over the utilization system concerning the deep sea-bed centered upon the question of how to make sure Ihat deep sea-bed mining benefits all mankind. According to Art . 140 of the 1982 Convention the activitie s in the sea-bed area should be carried out for the benefit of mankind as a whole , taking into particular consideration the interests and needs of ..... developing Slates. This Articl e merely de scribes a legal framework from which no specific legal rights and obligations can be drawn . The following more specific demands have been formulated in the 1982 Convention: equal participation of all States, sharing of revenues, transfer of technology (so as to provide for equal participation) , preferential treatment, protection against adverse effects and cooperation. The 1982 Con-

It was accepted from the outset that the

( J,,· i .... d

ul exploration and use of outer space

Inc!i1 dlllg celestial bodies has been formulated as a

68

COMMON HERITAGE OF MANKIND

vention attempts to reach the objective of equal participation by the following means: (i) restrictions imposed upon potential deep sea-bed miners; (ii) affitmative action benefitting non-mining States; and (iii) conferring of jurisdiction over deep sea-bed mining on the Sea-Bed Authority so that all States parties can equa Jy, though indirectly, participate therein (~ States, Equal Treatment and Non-Discrimination). This utilization system represents an attempt to provide for distributive justice The means to achieve an equal distribution of the resources of the sea-bed can be attributed to two different approaches, based either on the idea of preferences or the idea of compensation. The legal regime of outer space, especially that existing under the Moon Treaty, does not provide for such an elaborate system of utilization. Art. 11, para. 7(d) of the Moon Treaty only declares that one of the main purposes of the ~ international regime shall be the equitable sharing by all States parties in :he benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration. It can hardly be argued that the three specific means invoked by the 1982 Convention on the Law of the Sea are a mar catory conseqllence flowing from the common heritage principle in general. The "benefit" mentioned in both documents should be understood broadly What matters, on the one hand, is the immaterial benefit, i.e. the extension and deepening of mankind's knowledge concerning the international commons. On the other hand, the benefit thought of is the one which can be derived from the use of the resources of the sea-bed and ocean floor as well as of outer space and its celestial bodies.

up to each State to decide how to ensure that activities subject to the principle are carried out for the benefit of all mankind. It remains within each State's discretion whether to attempt to achieve this objective by refraining from unilateral in favour of joint activities, by seeking cooperation on a bilateral or multilateral basis, or by distributing revenues or information. State practice with respect to these methods is reflected in numerous statements made at UNCLOS III, in the UN General Assembly and in the ~ United Nations Conference on Trade and Development, as well as in the national legislation of States interested and involved in the use of areas beyond national jurisdiction. The Concept of Common Heritage of Mankind: A Political, Moral or Legal Innovation?, San Diego Law Review, Vol. 9 (1972) 390-403. E. FASAN, The Meaning of the Term Mankind in Space Legal Language, Journal of Space Law, Vol. 2 (1974) S. GOROVE,

125-131.

The Common Heritage: Selected Papers on Oceans and World Order 1967-1974 (1975). P.L. SAFFe>, The Common Heritage of Mankind: Has the General Assembly created a Law to Govern Sea-Bed Mining? Tulane Law Review, Vol. 53 (1979) 492-520. T. KRONMILLER, The Lawfulness of Deep Seabed Mining A. PARDO,

(1980).

Common Heritage of Mankind - politischer Slogan ader volkerrechtlicher Schliisselbegriff, in: Festschrift fur Hans-Jurgen Schlochauer (1981)

W.A. KEWENIG,

386-406. W.A. KEWENIG,

La notion de patrimoine commun de l'humanite, RdC, Vol. 17S (1982 II) 99-256. M.V. WHilE, The Common Heritage of Mankind: An Assessment, Case Western Reserve Journal of International Law, Vol. 14 (1982) 509-542. LYE. GOLDIE, A Note on Some Diverse Meanings of "The Common Heritage of Mankind", Syracuse Journal of International Law and Commerce, Vol. 10 A.C. KISS,

(1983) 69-112.

and c.o. CHRISTaL, The Common Interest: Tension Between the Whole and the Parts, in: R.S. Macdonald and D.M. Johnston (eds.), The Structure and Process of International Law (1983) 643-660. R. WOLFRUM, The Principle of the Common Heritage, ZaoRV, Vol. 43 (1983) 312-337. R.-J. DUPUY, La notion de patrimoine commun de l'humanite appliquee aux fonds marins, in: Etudes offertes it c.A. Colliard (1984) 197-205. G. HOVER, Solidaritat und Entwicklung: Die Bedeutung der Mcnschenrechte im Hinblick auf das "Gemein-: same Erbe der Menschheit", in: G. Hunold and F. A. PARDO

4. Customary International Law The common heritage principle is pan of -+ customary international law. Jt constitutes a distinct basic principle providing general but not specific legal obligations wii h respect to the utilization of areas beyond national ~ jurisdiction. It conflicts with the principle of sovereignty as it raises the ideas of international public utility and the obligation to cooperate. However, it still is

Menschheitscrbe, Konsens- und Vol-

kerrechtsordnung, Europa-Archiv, Vol. 36 (1981) 1-8.

CONFERENCES ON THE LAW OF THE SEA

Bockle (eds.), Die Welt fur morgen, Ethischc Herausforderungen im Anspruch der Zukunft (1985) 142154.

The Common Heritage of Mankind: Utopia or Reality?, International Journal, Vol. 40 (1985) 423-

A.C. KISS,

441.

The Common Heritage of Mankind: The Concept and its Application, Annales d'Etudes Internationales, Vol. 15 (1986) 45-63.

D. SHRAGA,

RUDIGER WOLFRUM

CONFERENCES ON THE LAW OF THE SEA 1. History Although the use of the sea has been governed by legal rules and principles since time immemorial, it was not until the late 18th century that nations began to negotiate international instruments in this respect. Such instruments, comprising ~ declarations, conventions and ~ treaties, many of them still in force, dealt with regional affairs or specific maritime problems arising in times of peace or ~ war. In 1923, the ~ League of Nations initiated an effort aimed at the progressive ~ codification of international law. Towards this end, the question of territorial waters, later referred to as the ~ territorial sea, was included in the agenda of the Conference for the Codification of International Law held at The Hague in 1930, at which 40 States were represented. Due to lack of time and a divergence of views on fundamental issues, notably the breadth of the territorial sea, the Conference failed to conclude a convention. Nevertheless, its documents provided a valuable source of reference for the further development of the ~ law of the sea. The Conference adopted a resolution recommending that the League of Nations convene a new conference, for the conclusion of either a general convention on all questions connected with the territorial sea or a convention limited to the legal status of the territorial sea. These results must be seen as a first step towards codification of a universal and comprehensive law of the sea. In 1949, the ~ International Law Commission (ILC) recommended codification of selected parts of the law of the sea, namely, the regime of the ~ high seas and the regime of the territorial sea.

69

After six years of work, the ILC's special rapporteur presented a report containing 73 draft articles on various aspects of the law of the sea (UN Doc. A/3159, September 1968). In the course of the deliberations in the ILC, the fact became apparent that the problems relating to the high seas and to the territorial sea were closely linked to other issues such as the question of ~ contiguous zones, the ~ continental shelf and its superjacent waters. The development and codification of the law of the sea also required examination of the technical, biological, economic and political aspects of these problems. In 1957, the ~ United Nations General Assembly decided to convene an international conference of plenipotentiaries for consideration of the ILC's work (UN GA Res. 1105 (XI), February 21, 1957).

2. The United Nations Conference on the Law of the Sea (U NCLOS I) UNCLOS I was held in Geneva from February 24 to April 27, 1958. At the Conference 86 States and 7 ~ United Nations Specialized Agencies were represented (~ Food and Agriculture Organization of the United Nations (FAO); ~ International Civil Aviation Organization (ICAO); ~ International Labour Organisation (ILO); ~ International Telecommunication Union (lTU); ~ United Nations Educational, Scientific and Cultural Organization (UNESCO); ~ World Health Organization (WHO); ~ World Meteorological Organization (WMO)). The Conference had before it the ILC Report, verbatim records of the relevant debates in the UN General Assembly, comments by governments on the ILC draft articles, a memorandum concerning the question of access to the sea by land-locked countries (~ Land-Locked and Geographically Disadvantaged States), and documentation prepared by the UN Secretariat, Specialized Agencies and experts. It was agreed to establish five main committees and to organize the discussion in 1\"0 stages starting with a general debate. The formulation of texts and consideration of particular problems were referred to sub-committees and to the drafting committee. The second stage was devoted to final decisions on the texts to be recommended to the plenary body. The rules of procedure adopted by UNCLOS I provided that decisions of the Conference on all matters of

70

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substance would be taken by two-thirds majority of the representatives present and voting. The decisions of the committees were taken either by simple majority or, in cast of no objection, by -+ consensus. UNCLOS I adopted four conventions, a protocol and nine resolutions. On April 29, 1958, the Final Act was signed and the Conventions as well as the Protocol were opened for signature. By Res. VIII, it was decided to request the UN General Assembly to convene a second conference for further consideration of the questions left unsettled.

3. The 1958 Geneva Conventions and Protocol The Convention on the 1 erritorial Sea and the Contiguous Zone was adopted by 61 votes to none, with two abstentions, and entered into force on September to, 1964 (UNTS, Vol. 516, p. 205). 46 States became parties; 17 declarations and reservations, and 12 objections were made. The Convention on the High Seas was adopted by 65 votes to one, with one abstention, and entered into force on September 30, 1962 (UNTS, Vol. 450, p. 82). 57 States became parties; 16 declarations and reservations, and 13 objections were made. The Convention on Fishing and Conservation of the Living Resources of the High Seas was adopted by 45 votes to one. with 18 abstentions, and entered into force on March 20, 1966 (UNTS, Vol. 559, p. 285). 36 States became parties and 4 declarations and reservations were made. The Convention on the Continental Shelf was adopted by 57 votes to 3, with 8 abstentions, and entered into force on March 20, 1966 (UNTS, Vol. 499, p. 311). 54 States became parties; to declarations and reservations, and 11 objections were made. The Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (February 24 - April 27, 1958) was ac opted by 52 votes to none, with 13 abstentions, and entered into force on September 30, 1962 (UNTS, Vol. 450, p. 169). 38 States became parties; one reservation and one declaration were made. These Conventions, especially the Convention on the High Seas, contain established principles of international law as well as mere treaty law. Disputes and controversies among States and scholars continue, concerning the question which of the Conventions' provisions represent rules of

customary international law. The International Court of Justice (ICJ) and the Third United Nations Conference on the Law of the Sea (UNCLOS III) have played an important role in this debate. Some disputes concerning the continental shelf, fisheries, the territorial sea and the delimitation of maritime zones between States with opposite and adjacent coasts have been brought before the ICJ. The records of UNCLOS III show to what extent States intended to preserve the results of UNCLOS I and which provisions of the 1958 Geneva Conventions received sufficient support to be included in the United Nations Convention on the Law of the Sea of December to, 1982 (UN Doc. A/CONF.62/ 122 with Corr.). Nevertheless, the Geneva Conventions were not formally revised by UNCLOS III. The 1982 Convention contains a provision specifically concerning the relation of this Convention to other conventions and international agreements which states that the Convention shall prevail, as between State parties, over the earlier Geneva Conventions (Art. 311, 1982 Convention). Even though a detailed analysis of which provisions withstood State practice and the test of time raises difficulties, it can be said that the results of UNCLOS I which were incorporated into the 1982 Convention are now closer to becoming generally accepted than ever before. -+ -+

4. The Second United Nations Conference on the Law of the Sea (UNCLOS II) In 1958, the UN General Assembly convened UNCLOS II (UN GA Res. 1307 (XIII), December to, 1958) noting that in UNCLOS I no proposal concerning the breadth of the territorial sea or fishing limits had received the required two-thirds majority. The Conference was held in Geneva from March 17 to April 26, 1960. 88 States were represented, together with 7 Specialized Agencies (FAO, ICAO, ILO, IMCO (-+ International Maritime Organization), lTV, WHO, WMO) and the -+ International Atomic Energy Agency (IAEA). UNCLOS II had before it a memorandum on method of work and procedure of the Conference prepared by the -+ United Nations Secretary-General. From among the various proposals on the breadth of the territorial sea and on contiguous fishing zones only a compromise proposal by

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Canada and the United States was adopted by the committee. It was suggested that the territorial sea has a maximum breadth of six nautical miles and that a contiguous fishing zone extend to a maximum limit of twelve nautical miles from the ~ baseline from which the breadth of the territorial sea is measured. Before the plenary body, this proposal was amended and failed to obtain the required two-thirds majority by one vote. A motion by the United States to reconsider the matter was not carried. Notwithstanding this third failure in 30 years to agree on a maximum limit of the territorial sea, it took only a short while for such ideas to resurface, which led to another conference.

5. The Third United Nations Conference on the Law of the Sea (UNCLOS III) As a consequence of the decision by UNCLOS I to embody the adopted rules of law in four instruments, each instrument was capable of separate legal development. On September 30, 1962, the first of the 1958 Geneva Conventions entered into force and a request for its revision could have been made at any time thereafter. However, it became evident that the Conventions were not only unacceptable to quite a number of States but also did not provide satisfactory solutions for many problems caused by new or more intensive uses of the sea, the ~ sea-bed and its resources. There was an increase in the number of States which claimed a territorial sea of twelve nautical miles or extended their jurisdiction up to 200 nautical miles. The question arose, how to deal with the resulting procedural, legal and political situation. Considerations by officials, scholars and interest groups with regard to the future of the law of the sea generated the ideas which paved the way for UNCLOS III. On August 17, 1967, the item entitled "Examination of the question of the reservation exclusively for peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind" was included in the agenda of the UN General Assembly (UN Doc. A/6695, August 18, 1967). This initiative, by Malta, led to the establishment of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor

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Beyond the Limits of National Jurisdiction (UN GA Res. 2467 A (XXIII), December 21, 1968) and finally to UNCLOS III. The UN General Assembly preferred to establish an ad hoc committee rather than to entrust the ILC once again with the progressive development and codification of the law of the sea (UN GA Res. 2340 (XXII), December 18, 1967). It was widely felt that the ILC would hardly be in a position to take a fresh look at the matter. The Ad Hoc Sea-Bed Committee, consisting of 35 bers of the United Nations. held three sessi~n 1968 and had two working groups of the whole, one to deal with the economic and technical aspects of the item and the other with the legal questions. The Committee studied the various aspects of the issue, identified the main problems, recognized the need for further study and made suggestions to this end (Report of the Ad Hoc Committee to Study the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction (UN Doc. An230. September 1968»). A draft declaration of general principles on the exploration and exploitation of the sea-bed beyond national jurisdiction was discussed, but an acceptable formulation which would command unanimous support was not achieved. The efforts by the Committee. however. were sufficient to keep the matter on the agenda of the UN General Assembly and resulted in two resolutions of eminent importance for the development of the law of the SIW: the resolution on a ~ moratorium concerning all activities of exploitation of the deep sea-bed (UN GA Res. 2574 A (XXIV), December 15, 1969) and the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, Beyond the Limits of National Jurisdiction (UN GA Res. 2749 (XXV), December 17, 1970). The UN General Assembly established the Sea-Bed Committee (1969 to 1973) which initially consisted of 42 members of the United Nation: and was enlarged by 44 States in 1970 and by ~, States in 1971. Representatives of FAO, IAEA, ILO, IMCO, the Inter-Governmental Oceanographic Commission (10C), UNESCO, WHO and WMO attended the sessions of the Committee. In 1969, the Committee established a main committee, a legal sub-committee and an economic and technical sub-committee. In 1970, the United

m.

a,

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States submitted as the first working paper on a deep sea-bed mining regime the Draft United Nations Convention on the International Sea-Bed Area. The Draft Statute for an International Sea-Bed Authority by Tanzania, the Draft Ocean Space Treaty by Malta, and a working paper on the regime for the deep sea-bed by a group of Latin American States followed in 1971. As early as 1970, widespread support arose for the holding of a comprehensive conference on the law of the sea and it became generally recognized that the problems of various ocean areas were closely interrelated and needed to be considered as a whole. The UN General Assembly decided to convene such a conference in 1973 and enlarged the mandate of the Committee for this purpose (UN GA Res. 2750 C (XXV), December 17, 1970). In 1971, the Committee was reorganized. The following three sub-committees of the whole were established: Sub-Committee I for deep sea-bed mining; Sub-Committee II fOI general aspects of the law of the sea; and Sub-Committee III for marine environment and scientific research. This basic structure and allocation (If subjects was later followed by UNCLOS III. Sub-Committee II commenced its work with the discussion of a comprehensive list of subjects and issues relating to the law of the sea. In 1972, a list containing 23 main subjects and some 100 issues was adopted. The list was designed to serve as a framework for discussion, for drafting articles and for the allocation of work to the sub-committees. The list, as amended, served UNCLOS III as an agenda and provided the structure for proposals 'and texts emerging from the negotiations. Because of differing views on virtually all subjects and issues and a prevailing reluctance to make political d ecisions during the preparatory stage of a forthcoming conference, the Committee was neither in a position to present a draft convention or draft arti cles nor to offer an assessment of its work to the UN General Assembly in 1973. The reports of the Committee contain a selection of documents submitted to and prepared by it, give a fairly complete picture of the interests of States and groups of States and record the efforts to cope with its mandate (Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of

National Jurisdiction: UN Doc. A/7622, October 1969; UN Doc. A/8021, September 1970; UN Doc. A/8421, November 1971; UN Doc. A/8721, October 1972; UN Doc. A/9021, November 1973). The Committee reported that the question of the adequacy of its work was considered without reaching agreement and that it could only suggest that the assessment of its report be left to the UN General Assembly. In spite of the disappointing result of the Committee's five years of work, the UN General Assembly decided to convene the first session of UNCLOS III in New York in 1973 for the sole purpose of dealing with organizational and procedural matters and to convene a second session for the purpose of dealing with the substantive work in Caracas, Venezuela, in 1974 (UN GA Res. 3067 (XXVIII), November 16, 1973). The Committee was dissolved and it was also decided that the mandate of UNCLOS III should include the adoption of a convention dealing with all matters relating to the law of the sea. UNCLOS III held 11 sessions and a number of inter-sessional meetings in New York, Caracas, Geneva and Montego Bay. 144 States participated and 8 Specialized Agencies (FAO, ICAO, ILO, IOC, IMCO, UNESCO, WHO, World Bank), the IAEA, the ~ European Communities and other intergovernmental organizations, as well as the International Ocean Institute, and other ~ nongovernmental organizations were represented. The Conference adopted its rules of procedure (UN Doc. A/CONF.62/30/Rev. 3, June 27, 1974) only at its second session because of controversy over the competences of the president, voting procedures and decision-making by consensus. This compromise, which formed the first package-deal of the Conference, contained the following three main elements: a ~ gentleman's agreement, certain requirements for voting and a special provision for the adoption of a convention. The gentleman's agreement approved by the UN General Assembly stated the desirability of a convention on the law of the sea which would secure the widest possible acceptance and requested that there should be no voting until all efforts to reach agreement on substantive matters by way of consensus had been exhausted. It was further agreed that before a matter of substance would be put to a vote, a determination

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that all efforts at reaching general agreement have been exhausted should be made by majority decision and, when such a matter comes up for voting for the first time, the president may defer the question of voting for specified periods of time. Decisions of the Conference on all matters of substance, including the adoption of the text of a convention as a whole, had to be taken by two-thirds majority of the representatives present and voting. The adoption of a convention required a majority which would include at least a majority of the States participating in that session of the Conference. The rules of procedure of UNCLOS III proved to be a reliable instrument at critical periods and finally prevented the failure of the Conference. Following the structure and allocation of work of the Sea-Bed Committee, UNCLOS III established three main committees. Numerous informal working groups and other subsidiary bodies assisted the committees and the UN Secretariat. Countless interest groups participated in the struggle over a new law of the sea. The 1982 Law of the Sea Convention which emerged from an informal multilateral negotiating process can be described as an overall packagedeal. At appropriate stages of the Conference, requests for informal texts were made. In 1975and 1976, the Informal Single Negotiating Text was prepared by the chairmen of the main committees and the president. In 1976, this text was revised by the president (UN Doc. A/CONF. 62/WP. 8WP. 9, May 6/7,1975; May 6,1976). In 1977, the first text covering the entire range of subjects and issues, known as the Informal Composite Negotiating Text, was prepared by the chairmen of the main committees under the leadership of the president (UN Doc. A/CONF. 62/WP. to, July 15, 1977). The chairman of the drafting committee and the rapporteur of the Conference were associated to this team, which was then called the "collegium". In 1978, the Conference agreed on a procedure to be followed in the revision of the Informal Composite Negotiating Text in order to limit, at least to some extent, the discretion of the collegium and the influence of individual States. Any modification or revision of this text had to emerge from the ~ negotiations themselves or had to be presented to the plenary body and required

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widespread and substantial support to offer an improved prospect of a consensus. The collegium assumed the responsibility of determining whether a proposal enjoyed sufficient support. Revisions of the text were prepared by the collegium in 1979 and 1980 according to this rule and on the basis of the reports of seven negotiating groups, each of which had been entrusted with outstanding core issues. The Draft Convention on the Law of the Sea (Informal Text) of 1980 (UN Doc. A/ CONF.62/WP. to/Rev. 3, August 27, 1980) and the official draft Convention of 1981 (UN Doc. A/CONF.62/L. 78, August 28, 1981) were also prepared by the collegium. On August 28, 1981, the Conference adopted a programme of work for its final session. On April 7, 1982, it was decided that amendments to the official Draft Convention should be submitted by 6 p.m. on April 13, 1982, and that all formal proposals which were previously presented were to be considered as having lapsed. On April 23, 1982, the Conference decided that all efforts at reaching general agreement had been exhausted. The amendments introduced between April 7 and 13, 1982 were either withdrawn or put to the vote. Throughout the preceding eight years the Conference had taken all decisions by consensus with the exception of procedural and organizational questions and the question concerning the seat of the International Sea-Bed Authority and the International Tribunal of the Law of the Sea. On April 30, 1982, at the request of the United States, a recorded vote was taken by the Conference on the amended draft Convention and related resolutions. The Convention and four resolutions which form an integral whole were adopted by 130 votes to 4, with 17 abstentions. The texts adopted were, however, still subject to drafting changes. The drafting committee initially commenced its work in 1978 with the informal examination of the texts prepared by the collegium for the purpose of refining these drafts, harmonizing recurring words and expressions and achieving through textual review concordance of the texts in the six languages of the Conference. The drafting committee also held five inter-sessional meetings and proposed thousands of changes. At least during the informal stages of the Conference, the work of the drafting committee was not confined to a technical and linguistic exercise. Where the six authentic

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texts of the Convention differ occasionally, the causes are related to political rather than to drafting problems. At its resumed eleventh session of September 22 to 24, 1982, the Conference adopted the last report of the drafting committee containing some 2800 proposed changes and the Final Act of the Third United Nations Conference on the Law of the Sea (UN Doc. A/CONF.621122, October 21, 1982). It was also decided that the official title of the Convention should be the United Nations Convention on the Law of the Sea. The Convention was opened for signature on December 10, 1982 at Montego Bay, Jamaica.

6. The 1982 United Nations Convention on the Law of the Sea The 1982 Convention was closed for signature on December 9, 1984, having received 159 signatures. The few States which did not sign the Convention include Ecuador, the Federal Republic of Germany, the Holy See, Israel, Peru, Turkey, the United Kingdom, the United States and Venezuela. The Convention will enter into force twelve months after the date of deposit of the sixtieth instrument of ratification or accession. By August 1988, the UN Secretary-General had received 35 instruments of ratification from the Bahamas, Bahrain, Belize, Cameroon, Cape Verde, Cote d'Ivoire, Cuba, Democratic Yemen, Egypt, Fiji, Gambia, Ghana, Guinea, GuineaBissau, Iceland, Indonesia, Iraq, Jamaica, Kuwait, Mali, Mexico, Nigeria, Paraguay, Philippines, Senegal, Saint Lucia, Sao Tome and Principe, Sudan, Togo, Trinidad and Tobago, Tunisia, United Republic of Tanzania, Yugoslavia, Zambia and the United Nations Council for Namibia. Upon signature and ratification, a number of States made declarations with respect to the choice of procedure for the settlement of disputes and the interpretation of specific provisions of the Convention. Belgium, France, Italy, Luxembourg and the -+ European Economic Community made declarations to the effect that the deep sea-bed mining regime contains considerable flaws and deficiencies which require rectification. Other industrial States expressed similar concerns in the UN General Assembly and before the Preparatory Commission for the International Sea-Bed Authority and the International Tribunal for the Law of the Sea.

Thus, the future of the Convention is linked to a large extent to the outcome of the continuing efforts to modify or develop the deep sea-bed mining regime. Without the success of these efforts, a universally or generally acceptable convention on the law of the sea would seem to be out of reach. Nevertheless, the Convention already serves as the model on which States have based their legislation with respect to maritime areas falling under their -+ sovereignty and jurisdiction. The number of States claiming a territorial sea of 12 nautical miles is now 103. Some 19 States claim a contiguous zone of 24 nautical miles. Antigua and Barbuda, Cape Verde, Comoros, Fiji, Indonesia, Kiribati, Maldives, Maumius , Philippines, Sao Tome and Principe, Solomon Islands, Trinidad and Tobago, Tuvalu and Vanuatu (- New Hebrides) have incorporated the concept of archipelagic States in their legislation (-+ Archipelagos). Some 72 States have established - exclusive economic zones and 19 States claim exclusive fisheries zones.

7. The Preparatory Commission for the International Sea-Bed Authority and the International Tribunal for the Law of the Sea In 1983, the Preparatory Commission was established according to Resolution I of the Final Act of UNCLOS III. The Commission's members consist of States which have signed the Convention or have acceded to it. States which have signed the Final Act only, such as the Federal Republic of Germany, United Kingdom, United States and a few others, may participate fully in the deliberations as -+ observers but are not entitled to participate in the taking of decisions. States which have not signed the Final Act, such as Turkey, the Specialized Agencies of the United Nations, the IAEA, the EEC, and entities and international organizations referred to in the rules of procedure of the Commission may also participate as observers. The Commission is entrusted with the preparations for the two major international institutions to be established under the Convention and the implementation of Resolution II governing preparatory investment in pioneer activities relating to polymetallic nodules. The Commission set up a general committee which acts as the executive organ for the implementation of Resolution II and four special commissions. Special Commission I

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deals with the problems of developing land-based producer States which are most likely to be affected by the production of minerals from the deep sea-bed (-+ Developing States). Special Commission II discusses measures necessary for the effective operation of the Enterprise, the operating arm of the International Sea-Bed Authority (-+ International Sea-Bed Area). Special Commission III discusses the rules, regulations and procedures for the exploration and exploitation of the deep sea-bed, i.e. the mining code. Special Commission IV has been entrusted to prepare recommendations regarding practical arrangements for the establishment of the International Tribunal for the Law of the Sea in Hamburg (-+ Law of the Sea, Settlement of Disputes). The Commission meets regularly in Jamaica, which is the host country for the International Sea-Bed Authority, but meetings have also been held in Geneva and New York. After five years of work, the Commission was in a position to allocate areas of the deep sea-bed to the first group of pioneer investors. The decision on the application of India was taken on August 17, 1987, the day of the 20th anniversary of the Malta Initiative. The decisions on the application of France, Japan and the Soviet Union were taken on December 17, 1987, the day of the 17th anniversary of the Declaration of Principles. India received an area of 75 000 square kilometres in the Central Indian Ocean. The areas allocated to France, Japan and the Soviet Union are located in the North Pacific Ocean. The Commission also designated and reserved areas for the International Sea-Bed Authority in the Indian and Pacific Ocean according to Resolution II. Upon the date of registration, a pioneer investor acquires the exclusive right to carry out activities of exploration as defined in Resolution II in the area allocated to it. Within six months of the entry into force of the Convention, the registered pioneer investor may apply to the International Sea-Bed Authority for approval of a plan of work to commence commercial production of polymetallic nodules. The registration of this first group of pioneer investors not only took time but also required political decisions and concessions on all sides. On September 2, 1982, the Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea-Bed (ILM, Vol.

21 (1982) p.950) was signed by the Federal Republic of Germany, France, the United Kingdom and the United States. This Agreement was followed by the Provisional Understanding Regarding Deep Sea-Bed Matters of August 3, 1984 (ILM, Vol. 23 (1984) p. 1354), signed by the same four States and Belgium, Italy, Japan and the Netherlands. These two agreements and the registration of mine sites under national laws by the United States and United Kingdom in 1984, and by the Federal Republic of Germany in 1986, raised concerns over the legality of such actions in the Commission and the UN General Assembly. In 1983, the Soviet Union submitted an application under Resolution II to the Commission, followed by France and Japan in 1984. The Commission was confronted with the unexpected situation of overlapping claims of States which had signed the Convention and had applied for a pioneer area, of States which had signed the Convention but had not applied for a pioneer area (Belgium, Canada, Italy, the Netherlands), of States which had not signed the Convention but had participated in the work of the Commission (the Federal Republic of Germany and United Kingdom), and of the United States, which had neither signed the Convention nor participated in its work. Certain practical measures concerning the implementation of Resolution II were agreed upon in the form of the 'l'Arusha Understanding" (LOSI PCN/L. 36, September 2, 1986), the "New York Understanding" (LOS/PCN/L. 41/Rev. 1, annex, September 11, 1986) and the "Kingston Understanding" (LOS/PCN/L. 43/Rev. 1, April 15, 1987), which served as the basis for the resolution of the overlapping claims in the Pacific Ocean. By modification of Resolution II, France, Japan and the Soviet Union were permitted to pre-select areas up to a limit of 52 300 square kilometres and to relinquish portions of their claimed areas in advance. Part of this arrangement included an agreement that the time limit for developing States to become pioneer investors was to be extended until the Convention enters into force and that a group of socialist States (Bulgaria, Byelorussian SSR, Czechoslovakia, German Democratic Republic, Hungary, Poland, Ukrainian SSR and 'the Soviet Union) shall have the right to apply as a pioneer investor. The relinquished areas are reserved for the potential I

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applicants until the entry into force of the Convention. On August 14, 1987, the Agreement on the Resolution of Practical Problems with Respect to Deep Sea-Bed Mining Areas (lLM, Vol. 26 (1987) p. 1505) was signed in New York by Belgium, Canada, Italy, the Netherlands, and the Soviet Union. At the same time, an exchange of diplomatic ~ notes between the Soviet Union, the Federal Republic of Germany, the United Kingdom and the United States took place in Moscow. These events must be seen as significant developments in the law of the sea. Nevertheless, the road towards a generally acceptable law of the sea is still hampered both by political struggles in the Commission over a mining code which would encourage exploration and exploitation of the deep sea-bed, and by the United States' Oceans Policy as proclaimed by President Reagan on March 10, 1983 (ILM, Vol. 22 (1983) p. 461).

United Nations, The Law of the Sea, Master File Containing References to Official Documents of the Third United Nations Conference on the Law of the Sea (1985). United Nations, The Law of the Sea: Multilateral Treaties Relevant to the United Nations Convention on the Law of the Sea (1985). Agreement on the Resolution of Practical Problems with Respect to Deep Sea-Bed Mining Areas between Belgium, Canada, Italy, the Netherlands and the Soviet Socialist Republics, and Exchange of Notes Between the United States and the Parties to the Agreement, August 14, 1987, ILM, Vol. 26 (1987) 1502-1515. Das intemationale offentliche Seerecht der Gegenwart (2nd ed. 1903). Co]. COLOMBOS, The Intemational Law of the Sea (5th ed. 1962). s. ROSENNE (ed.), League of Nations Conference for the Codification ofIntemational Law 1930, 4 vols. (1975). R. PLATZ()DER and w. GRAF VITZTHUM, Seerecht - Law of the Sea (1984). F_ PERELS,

RENATE PLA TZODER

Report of the Intemational Law Commission covering the Work of its 8th Session, Apnl23-July 4, 1956 (UN Doc. A/3159). United Nations Conference on the Law of the Sea, February 24-April 27, 1958, Official Records: Vol. 1, Preparatory Documents (UN Doc. A/CONF. 13/37); Vol. 2, Plenary Meetings (UN Doc. A/CONF. 13/ 38); Vol. 3, First Committee (UN Doc. A/CONF. 13/39); Vol. 4, Second Committee (UN Doc. A/ CONF. 13/40). Second United Nations Conference on the Law of the Sea, March 17-April 26, 1960, Official Records, Summary Records of Plenary Meeting and of Meeting of the Committee of the Whole, Annexes and Final Act (UN Doc. A/CONF.19/8). Report of the Ad Hoc Committee ro Study the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction (UN Doc. A 17230, September 1968). Report of the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor Beyond the Limits of National Jurisdiction (UN 00<:. A 17622, October 1969; UN Doc. A/8021, September 1970; UN Doc. A/8421, November 1971; UN Doc. A/87,21, October 1972; UN Doc. A/9021, November 1973). Third United Nations Conference on the Law of the Sea, Official Records, 17 vols. (1975--1984). R. PLATZODER, Third United Nations Conference on the Law of the Sea: Documents, 18 vols. (1982-1988). United Nations, The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea, with Annexes and Index, Final Act of the Third United Nations Conference on the Law of the Sea, Introductory Material on the Convention and the Conference (1983).

CONSERVATION OF LIVING RESOURCES OF THE HIGH SEAS 1. Notion Conservation of living resources of the ~ high seas is governed by the principle of the freedom of fishing, forming part of the freedom of the high seas and based on the open access to fisheries.

(a) Scope of application Under the traditional ~ law of the sea, as codified in the Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) and in the Convention on Fishing and Conservation of the Living Resources of the High Seas of April 29, 1958 (UNTS, Vol. 559, p. 285; hereafter Fisheries Convention), freedom of fishing applied to the areas extending beyond the ~ territorial sea. This freedom remained unchanged only with respect to those areas where no 2oo-mile ~ exclusive economic zones or fishery zones were established (e.g. the Mediterranean and Aegean Seas; ~ Fishery Zones and Limits). In the areas where such zones were proclaimed, the high' seas freedom of fishing applies beyond the 2oo-mile limit, under new ~ customary international law com-

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patible with the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF.62/122 with Corr.). Since on a world-wide basis the 200-mile zones include almost all living ----+ marine resources suitable for commercial exploitation, except for tuna and whales, the notion of high seas fisheries at present has lost much of its economic significance. Accordingly, freedom of fishing is now listed in Art. 87 of the 1982 Convention after the navigational and other communications freedoms as well as the freedom to construct ----+ artificial islands, and merely a few articles in the Convention are devoted to high seas fisheries (Arts. 116 to 120).

(b) General concept of conservation As to the objectives of conservation measures, Art. 2 of the 1958 Fisheries Convention restated the concept of conservation of living resources of the high seas as embodied in various fisheries agreements and the report of the United Nations International Technical Conference on the Conservation of the Living Resources of the Sea of April 18 to May 10, 1955 (UN Doc. A/CONF.I0/ 6). It regarded conservation as the aggregate of measures rendering possible the optimum sustainable yield from the living resources so as to secure a maximum supply of food and other marine products. This basic aim is also reflected by the 1982 Convention which, however, emphasized more clearly the complexity of factors involved in conservation. It specifies that conservation measures, both in 200-mile zones (Art. 61) and on the high seas (Art. 119), are designed to maintain living resources at or restore them to levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors. The detailed guidelines are enshrined in the report of the 1984 FAO World Conference on Fisheries Management and Development (UN GA Res. 39/225 of December 18, 1984). The biological factors of productivity of resources may be complementary to food production, generation of income and employment, and other economic factors. Conservation should also take into 'ICcount the need to protect living resources against environmental degradation (----+ Marine Environment, Protection and Preservation). Due to this complexity of factors, fishery conservation should

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form an integral part of economic development. Conservation is one means by which the realization of a just and equitable ----+ international economic order can be attained, which is a fundamental objective of the 1982 Convention. The two main categories of conservation measures applied in State practice involve ----+ marine research on living resources and control of fishing (----+ Fisheries, International Regulation). The former measures constitute a preliminary step towards the latter by providing an adequate body of knowledge upon which the effective control of fishing is based. The required information includes not only, although primarily, biological data, but also economic, technological, legal and social information. Measures involving control of fishing with a view to conservation may limit the allowable catch, fishing gear, fishing seasons, fishing areas and species to be caught. The 1982 Convention and other relevant instruments generally require that such measures take account of fishing patterns, the interdependence of stocks and international ----+ minimum standards. As conservation measures require a high level of expertise, the 1982 Convention requires States to base these measures on the best scientific evidence available to them. International cooperation is, under both conventional and customary law, essential for conservation and management of living resources of the high seas. With the establishment of 200-mile zones, the forms and modalities of this cooperation, whether directly between States or through international organizations, have been changed and are now adapted to the new realities. At the global level the principal responsibility for fisheries lies with the ----+ Food and Agriculture Organization of the United Nations. The 1984 FAO Conference was a major step towards subjecting global fisheries to the 1982 Convention.

2. Current Legal Situation (a) Basic duties Under existing international law, all States have a du ry to take and to cooperate with other States in taking measures necessary for the conservation of living resources of the high seas. If the nationals of two or more States are engaged in fishing for the same stock, these States are obliged to enter into

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--+ negouations with a view to arriving at an

agreeme nt on co nse rvation of that stoc k. These States are also o bliged to cooperate , where appro priate, to establish fisheries o rgan iza tions to this end ( --+ Fishery Commissions). Moreover, all States have a duty to contribute a nd exchange scientific data related to fishery conservation through competent international organizations. These basic duties , as embodied in the 1958 and 1982 Conventions and numerous fishery agreements, constitute an important qualification to the high seas freedom o f fishing . The report of the 1984 FAO Conference identifies detailed guidelines for States and international organization s with regard to imple me nta tion o f these duties.

(b) Slate jurisdiction It is an established principle that on the high seas the fishery conservation measures of any State can only apply to , and be enforced upon, the nationals (fishing vessels) of that State . This principle, restated in the 1982 Convention , derives from the exclusive --+ jurisdiction of States over ships flying their flag on the high seas (--+ Ships, Nationality a nd Status ; --+ Flags of Vessels) . States are also o bliged to ensure th at conservation measures and their implementation do not discriminate against the nationals o f other States e ngaged in fishin g (--+ States, Equal Treatment a nd Non-Discrimination) .

coastal stoc ks (Art. 63(2» , higbly migratory species such as tuna (Art. 64 and Annex I), marine mammals (A rts. 65 and 120 ; --+ Seal Fisheries ; --+ Whaling Regime) , anad ro mous species such as salmon (A rt. 66) and ca tadromous specie s such as eel (Art. 67) . In the case of anad ro mo us species, responsibility for conservation and utilization lies primarily with the States o f origin of tbese species and, in the case of catadromous species, with States in whose waters these species spe nd th e greater part of their lives. Fish ing with respect to both these kinds of species o n the high seas is prohibited, with some exce ptions. The abovementioned principles a nd rules rel ated to th e shared and migratory species have already entered the re alm o f customary int e rn ati onal law . The conservation of sedenta ry spe cies is governed by general principles and rules applicable to high seas fisheries (--+ Fisheries, Sedentary; --+ Pearl Fisheries) . Convention on Fishing and Conservation of the Living Resources of the High Seas. April 29, 1958, UNTS, Vol. 559 (1966) 285-342. United Nations Convention o n the Law of the Sea ,

December 10, 1982 (UN Doc. A /CONF. 62/122 with Carr . 3 and Corr . 8; UNCLOS Ill , Official Records, Vol. XVII (1984) 151 - 221; ILM, Vol. 21 (1982) 1261-1354). World Conference on Fisheries Management and Development (1984); UN GA Res. 39/225 of December 18, 1984. Fisheries under the United Nations Convention on the Law of the Sea. AJIL. Vol. 77 (1983) 739- 755. A .W. KO ERS . The European Economic Community and International Fisherie s Organizations. Legal Issues of European Integration (1984) 113-131. D.M . JOH NSTON. The International Law of Fisheries . A Framework for Policy Oriented Inquiries (1987) . M .C.W. PINTO . Economic . Scientific and Technic al Coop eration in the Indian Ocean. in: FAO (ed.) The Law and the Sea. Essays in Memory of Jean Carroz (1987) 189- 205.

S. ODA.

(c) Dispute settlem ent Under the 1982 Conventio n, disputes related to conservation of living resources of the high seas are subject to general provisions concerning settlement of disputes, including compulsory impartial procedures ( --+ Law of the Sea, Settlement of Disputes). However, it is unlikely that high seas fishery disputes will be se tt led by an y me ans other than negotiation a mo ng the States co nce rne d .

BARBA RA KWI-\TKOWSKA

3. Special Legal Problems Conse rva tion a nd management of living resources which are sha red o r migrate between the high seas and the a reas within national juri-d icrio n is subjec t to speci fic prin ciple" rnd ru.e-, ot th e.: 1982 Convent inn co ncer ning co )Pl' l d t ll 11l of SLate, an d internati onal o rgan iz.iu o n . . . l ~1 1 " coo pe rano n re lutcs II I pan l ( ula r II I the -ha rco high ...eas and

CONTIGUOUS ZONE J. Notion

T he co ntiguo us zo ne is an area contiguou s to a nd extend ing beyo nd the --+ te rrit orial sea, in which States have limited powers, especially of an ad ministra tive nature . lor th e purpo se of enforcing

CONTIGUOUS ZONE

customs, fiscal, sanitary and immigration laws. Although the concept is of comparatively recent origin, it would now appear to be firmly established in international law. It may be the case that the conventional regime governing the contiguous zone is more limited than the customary regime governing it. 2. Historical Evolution of Legal Rules Although the concept of the contiguous zone did not undergo elaboration until the years between 1920 and 1930, it has its origins in the ~ Hovering Acts enacted by Great Britain as a means of protection against foreign ships, engaged in smuggling activities, and hovering within distances up to eight leagues (i.e. 24 miles) from the shore. These Acts were in force from the early 1700s until their repeal by the Customs Consolidation Act of 1876 (39 & 40 Victoria, c. 36). However, the seizure of the French ship, the Petit Jules about 23 miles off the Isle of Wight in 1850 was the last occasion on which the Hovering Acts were enforced against a foreign vessel beyond the marine league. The Law Officer involved advised that international law did not permit this seizure, and the member of the crew who had been captured was granted his liberty (c. Parry, Law Officer's Opinions to the Foreign Ofnce 17931860, Vol. 33 (1970) p. 68). After that time, the United Kingdom applied the three-mile rule, subject to two exceptions for the doctrines of constructive presence and ~ hot pursuit. The former doctrine permitted the seizure of a ship outside the territorial limit which sent its own boats within the limit. The doctrine of hot pursuit permitted the pursuit and arrest on the ~ high seas of a ship found within the territorial sea of a State which was reasonably believed to have violated the law of that State. These two doctrines are still applicable at the present time. Different approaches to that taken by the United Kingdom were adopted by other States, some of which claimed a variety of jurisdictional zones (~ Jurisdiction of States). Thus, France maintained three-mile zones for fishery and general police purposes (~ Fishery Zones and Limits), but also had a six-mile neutrality zone and a 20-mile customs zone. Greece adopted a similar approach. Thus, for example, a Greek law of 1913 stipulated that the navigation or anchoring of

79

Greek or foreign merchant ships could be prohibited within a distance up to ten miles from the coast if this was in the interests of the country's national security. Greece enacted another law providing for a six-mile security zone in 1914. Certain States adopted a practice which was more analogous to the concept of the contiguous zone as it is recognized at present. These States, which included a number of Latin American ones, claimed a one-league belt as the property of the State, and beyond that a second zone extending a further three leagues, in which the State enjoyed police rights for customs and security purposes only. The most controversial of these claims consisted of those put forward by the United States in the Tariff Act of 1922 (United States Statutes at Large, Vol. 42 (1921-22) part 1, p. 858), which provided that foreign ships within 12 miles of the United States coasts were subject to its laws concerning the prohibition of alcohol. Thus, when the Hague Codification Conference met in 1930, there were three principal approaches to the exercise of jurisdiction beyond the threemile limit (~ Codification of International Law). Many States denied the existence of jurisdiction beyond this limit, except where provided for by treaty, or under the doctrines of constructive presence and hot pursuit. This group of States included the United Kingdom, Australia, Denmark, the Netherlands, Sweden and Japan, as shown by their replies to the Hague Schedule of Points (LoN Doc. C.74.M.39.1929.V., pp.l04 and 162). As already indicated, other States adopted different views; some claimed contiguous zones beyond the territorial sea, whilst others claimed a multiplicity of zones. The idea of a contiguous zone had been put forward by the French lawyer Renault at the Hamburg session of the ~ Institut de Droit International in 1891; it seems he was inspired by the great Russian jurist de Martens. The Institute's position influenced other learned societies, such as the American Society of International Law, which proposed in 1927 the recognition of the right of States to establish contiguous zones. However, although considerable interest in the notion appeared in the preparatory works and at the Hague Conference itself, this Conference failed to reach agreement on any provision for a contiguous zone.

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CONTIGUOUS ZONE

During the years between 1930 and 1958 (the year when the First United Nations Conference on the Law of the Sea, UNCLOS I, took place at Geneva), State practice continued to be divided between that of a diminishing number of States, such as the United Kingdom, which still refused to recognize the validity of claims to a contiguous zone, and that of an increasing number of States which made such claims. Many States claimed customs and security zones, -md sometimes sanitary zones, on the high seas contiguous to their territorial sea. Claims to fishery zones, sometimes of an extensive character, also became commonplace and there is no evidence to suggest that these zones were regarded as different in their juridical character from other zones. However, it is noteworthy that Gidel took a different approach, adopting the view that fishery zones could only be established by treaty whilst admitting the legality of unilateral claims to contiguous zones for customs, sanitary, navigational and security purposes. The requirements of fisheries management made it expedient to give fisheries separate treatment at the Geneva Conference on the Territorial Sea and the Contiguous Zone in 1958. The latter conference ultimately reached agreement upon the establishment of a contiguous zone within which the coastal State may exercise the control necessary to: (i) prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (ii) punish infringement of the above regulations committed within its territory or territorial sea (Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516, p. 205, Art. 24(1)). Although there is some division of opinion concerning the meaning of the above provision, Art. 33(1) of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF.62/122 with Corr.) is substantially identical with it. Neither of these provisions is applicable to security zones.

3. Current Legal Situation It has always been thought that the -+ baselines for the delimitation of the territorial sea and the contiguous zone are identical. This is confirmed both by State practice and by the provisions of

Art. 24(2) of the Convention on the Territorial Sea and of Art. 33(2) of the 1982 Law of the Sea Convention. The former provision stipulates that the territorial sea cannot extend for more than 12 miles from the baseline. Art. 24(3) of the Convention on the Territorial Sea provides that where two States are opposite or adjacent to one another, failing agreement to the contrary, the contiguous zone cannot extend beyond the median line equidistant from the nearest points of their coasts. This provision has no parallel under the 1982 Law of the Sea Convention. In such cases, the delimitation in question would normally constitute a delimitation of the -+ exclusive economic zone and be governed by the same principles as those in Art. 34 of the 1982 Convention. However, problems would arise where one or both of the States in question did not claim an exclusive economic zone (-+ Maritime Boundaries, Delimitation). It will be remembered that no agreement on the width of the territorial sea was reached at the 1958 and 1960 conferences (-+ Conferences on the Law of the Sea). This has given rise to considerable variations in State practice governing the contiguous zone. Thus, for example, some States have claimed a 12-mile territorial sea and no contiguous zone. A considerable measure of controversy exists "concerning the juridical status in the contiguous zone. The view is taken by many textwriters that, whilst a coastal State has dominion or at least legislative and enforcement jurisdiction in the territorial sea, it has control or enforcement jurisdiction in the contiguous zone only under the two treaty provisions mentioned above. It is, thus, contended that action may be taken only in respect of offences committed in the territory or territorial sea of a State, and not in respect of anything done within the contiguous zone. This interpretation appears acceptable, and perhaps preferable, as a matter of textual exegesis, but it has been contended that it does not correspond, with the intentions of the majority of States at: the 1958 Geneva Conference, as manifested by the travaux preparatoires. Furthermore, this restrictive view does not appear to conform with earlier developments in State practice and doctrine. It is unfortunate that, because of the diversity of post-convention practice, it is not possible to resolve the doubts concerning the meaning of Art.

81

CONTIGUOUS ZONE

24 of the 1958 Geneva Convention by reference to this practice. Some States, such as the United Kingdom, have claimed no contiguous zone, whilst others, such as Portugal (Law No. 2130 of 1966, Basis 3, ILM, Vol. .5 (1966) p. 1094), Brazil (Decree Law 44, 1966, Art. 2. RGDIP, Vol. 71 (1967) p.300) and Yugoslavia (Law of May 22, 1965, Art. 19, R.R. Churchill ct al. (eds.), New Directions in Law of the Sea, Vol. I, p. 35), have substantially copied the wording of Art. 24. The claims of certain other States, such as Denmark (Customs Act 1959 (UN Doc. St/Leg/Ser.BIl5, p. 220) and Customs Act 1972 (lJN Doc. StiLeg/ Ser.B/ 18, p. 47», have been compatible with Art. 24. However, a considerable number of other States have made claims which do not conform with this provision, particularly by extending its scope by adding security to the protected interests: this has been done, for example. by Saudi Arabia (Royal Decree of 1958, Art. 8, UN Doc. St/Leg/ Ser.BIl5, p. 114). Furthermore, a number of States have claimed enforcement and legislative jurisdiction for certain purposes in extended maritime zones. The questions which have been outlined above were not resolved by UNCLOS III (l973-1982). Art. 33 of the 1982 Law of the Sea Convention sets the outer limit of the contiguous zone at 24 miles from the baseline, but it defines the zone in almost the same way as does Art. 24 of the 1958 Geneva Convention. Despite the controversy which the latter provision gave rise to, no attempt was made to clarify the nature of the jurisdiction conferred by Art. 33. Certain of the national laws adopted as the result of the 1958 Geneva Conference remain in force, but a number of States, including Malta, have extended their claims to 24-mik contiguous zones. Other States, such as India (Territorial Waters, Continental Shelf, Exclusive Economic Law and Other Maritime Zones Act 19'7(" s. 5, UN Doc. St/Leg/Ser.B/ IX, p. 47), Pakistan (Territorial Waters and Maritime Zones Act 1976, s. 4, UN Doc. St/Leg/Ser.B/19. p. 85) and South Yemen (Act No. 45, 19"17, Arts. 11 and 12, UN Doc. St/Leg/Ser.B/19, p. 21), have claimed 24mile zones in which security jurisdiction is asserted in addition to jurisdiction over customs, fiscal, immigration and sanitary matters. Others, such as Madagascar (Ordinanace No. 85--·013 of September 16, 1985, Art. 3, K.R. Simmonds (ed.), New

Directions in the Law of the Sea, Release 87-1, Part CII) and Vanuatu (~New Hebrides) (Maritime Zones Act No. 23 of 1981, Art. 7, K.R. Simmonds (ed.), New Directions in the Law ofthe Sea, Release 87-1, Part C-l) have enacted legislation which, conforming with the tendency mentioned at the end of the preceding paragraph, would enable them to assert enforcement and legislative jurisdiction in the contiguous zone. Many would argue that, whatever the position taken under the two treaty provisions, customary law permits enforcement and iegislative jurisdiction to be claimed, together also perhaps with jurisdiction in security matters. There is support for this proposition in the decision of the United States District Court in the controversial case of The Taiyo Maru, 395 F. Supp. 413 (1974). This case concerned a Japanese vessel which was pursued from the nine-mile fishery zone contiguous to the three-mile American territorial sea. The District Court held that Art. 24 of the Convention on the Territorial Sea was merely permissive and not exhaustive, and that contiguous zone jurisdiction including, it would seem, both enforcement and legislative jurisdiction could be exercised for purposes additional to those set out in Art. 24. 4. Evaluation

The contiguous zone gives rise to a number of difficult problems. It has been suggested that because under the 1982 Law of the Sea Convention the contiguous zone no longer forms part of the high seas, but is within the exclusive economic zone, the presumption in case of doubt against coastal State jurisdiction is removed (Churchill and Lowe, p. 106). The writers point out that Art. 59 of the 1982 Convention provides that when a dispute arises concerning a claim by a coastal State to jurisdictional rights not expressly granted under the Convention, the question is to he resolved on the basis of equity, taking into account the respective importance of the interests of the parties concerned and the world at large (--~ Equity in International Law). There are some difficulties with this view because the 1982 Convention is not yet in force: One may concede that -'> customary international law permits States to proclaim an exclusive economic zone, and that this zone does not form part of the high seas. However, all States will not proclaim such a zone.

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CONTIGUOUS ZONE

Furthermore, it is not clear whether Art. 59 represents the rule regarding the settlement of disputes as to jurisdictional rights under customary international law. Despite the difficulties which have been outlined above, it is likely that the contiguous zone will prove to be of increased importance in the future. This is because of its extension to 24 miles; given the fact that under Art. 3 of the 1982 Convention (which would appear to represent the rule under customary international law), the maximum limit of territorial waters is now 12 miles, more States are likely to claim a contiguous zone than was the case previously. Furthermore, it is noteworthy that Art. 303(2) of the 1982 Convention gives coastal States exclusive jurisdiction in relation to archaeological and historical objects found within the contiguous zone (- Maritime Archaeology). This new provision may prove to be of considerable importance. It is interesting to note that the provision is capable of being interpreted a contrario so as to lead to the conclusion that jurisdiction over the contiguous zone is not granted in other circumstances.

CONTINENTAL SHELF 1. Notion

The continental shelf was a concept in geology long before it acquired its legal identity. In geology, the term continental shelf means that part of the - sea-bed which extends outwards as a prolongation of the continental land mass from the point at which the land meets the sea to a point at which a significant change in the angle of the sea-bed (ranging from 4 degrees to 45 degrees) occurs. This point usually lies between 67 and 75 kilometres from the coast at an average distance from the surface of 64 metres, and the average downward slope of the shelf at this point is 0.07 degrees. These data vary from area to area. In some places there is no geological continental shelf since the sea-bed plunges immediately to great depths. e.g. off the south coast of France, while in other places the width of the continental shelf is in excess of 500 kilometres. At the point at which the geological continental shelf ends (i.e. where the significant change in the angle of the sea-bed occurs), a new part of the sea-bed, which is defined by this angle, begins; it is Convention on the Territorial Sea and the Contiguous called the continental slope and usually extends Zone, April 29, 1958, UNTS. Vol. 516 (1964) 205for 20 to 100 kilometres and has a depth of 3000 to 282. 5000 metres. The final declivity of the sea-bed, United Nations Convention on the Law of the Sea, known as the continental rise, is angled downward December 10, 1982 (UN Doc. A/CONF.62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, less acutely than the continental slope, i.e. usually Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) between 1 and 40 degrees, and extends for a 1261-1354). distance between 50 and 5000 kilometres along the sea-bed. The depth of the continental rise varies, FAmCKsoN, Jurisdiction at t1€1 Maritime Frontier,. built is usually 'not much greater than 'that of the Harvard Law Review, Vol. 4(1 (1929) 1-29. continental slope. The end of the continental rise W.E. MASTERSON, Jurisdiction in Marginal Seas (1929). G. FITZMAURICE, La mer territoriale et la zone contigue , is the point at which the downward declivity of the RdC, Vol. 48 (1934) 241-273 sea-bed stops and the deep ocean floor begins. The M. BROWN, Protective Jurisdiction, AJIL, Vol. 34 (1940) ocean floor is a relatively flat area with geophysical 112-116. differences from the declivity, which is the natural S. ODA, The Concept of the Contiguous Zone, ICLQ, prolongation of the land mass. The three parts of Vol. 11 (1962) 131-153. i,c. FELL, Maritime Contiguous Zones, Michigan Law the sloping sea-bed together comprise an area Review, Vol. 69 (1964) 848-~64. known as the continental margin. R.R. CHURCHILL et al. (eds.), Ne\J Directions ill the Law The geological concept and definition of the of the Sea, Vols. 1-11 (1972-l981); New Series K.R. continental shelf were used as the basis on which Simmonds (ed.), Loose-leaf Releases. the legal notion was defined. One may distinguish A.V. LOWE, The Development of the Concent of the Contiguous Zone, BYIL, Vol. 52 (1981) 104-169. two fundamental legal definitions of the continenR.R. CHURCHILL and AV. LOWE. TI e Law of the Sea (1983) tal shelf, which mark the evolution of this notion 101-107. in the - law of the sea. The first is contained in D.P. O'CONNELL, The Internation: I Law of the Sea (ed. by the Geneva Convention on the Continental Shelf, LA. Shearer). Vol. 2 (1984) 1034-1061. April 28, 1958 (UNTS, Vol. 499, p. 311; hereafter FRANK WOOLDRIDGE 1958 Convention), where, for the purposes of the

83

CONTINENTAL SHELF

Convention, the continental shelf is defined as: "(a) the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres, or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) ... the sea-bed and subsoil of similar areas adjacent to the coasts of islands." (Art. 1). The United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) produced by the Third United Nations Conference on the Law of the Sea (UNCLOS III), modified this definition of the continental shelf as to its extent and outer limits. Art. 76 lays down that, for the purpose of the Convention: "1. The continental shelf of a coastal State comprises the sea-bed and sub-soil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the edge of the continental margin does not extend up to that distance." Where the outer edge of the continental margin extends beyond 200 nautical miles, Art. 76(5) of the 1982 Convention provides that "the line of the outer limits . . . either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2500 metres". Art. 121 of the 1982 Convention reiterates that - islands, with the exception of rocks which do not sustain human and economic life, have their own continental shelf, which is delimited in accordance with the provisions of the Convention. Regardless of which definition is accepted as corresponding to current positive law, it is clear that the legal notion of the continental shelf differs from its geological counterpart at least insofar as the extent is concerned. While the geological continental shelf commences at the point where the land meets the sea, the legal continental shelf begins at the point on the sea-bed where the territorial waters of a coastal State end; and while

the geological continental shelf ends on the continental slope, the legal continental shelf also covers areas which from the geophysical point of view require a different classification (- Continental Shelf, Outer Limits).

2. Historical Evolution The emergence of the regime of the continental shelf coincided with the increased interest of the international community after World War II in the sources of wealth of the sea-bed and sub-soil (- Marine Resources). The gradual exhaustion of land resources in minerals and hydrocarbons, together with the development of technology which made economically feasible the exploitation of deep-water areas, were the motives behind the creation of this interest. However, this growing interest encountered a legal stumbling-block: The sea-bed, outside the narrow limits of the - territorial sea, came under the system of the freedom of the seas, which conflicted with the concept of exclusive economic exploitation of the sea-Led by giving priority to the freedom of navigation and the free use of the - high seas (- Navigation, Freedom of). For exclusive exploitation to become possible, a new legal status for the high seas capable of legitimating the appropriation of the sea-bed by the coastal State was necessary. The first attempt to formulate a new status manifested itself in the Truman Proclamation of September 28, 1945 (DeptStateBull, Vol. 13, p. 484). The United States, as a pioneer in technology with growing needs in raw materials and hydrocarbons, was the first country to attempt to claim parts of the sea-bed beyond its territorial waters by unilateral - declaration (- Unilateral Acts in International Law). The Truman Proclamation adopted a functional zone, called the continental shelf, confining appropriation to the sea-bed and not affecting the superjacent waters: " . .. the United States regards the natural resources of the subsoil and the sea-bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in

_._---------_.------------------------------ - - -

86

CONTINENTAL SHE..F

were, in effect, the result of the President's initiative. These articles had not obtained the consent of all the interested parties, despite the repeated corrective interventions of the competent committees and the president and despite the addition of an annex devoted to the setting up of a Commission on the control of delimitation. Nonetheless, they constituted, almost word for word, the final articles of the Convention as it was eventually adopted. Finally, it should be noted that at the same time as the issue was being negotiated in the framework of UNCLOS III, the continental shelf was also undergoing judicial examination and the case-law related to it was growing, particularly insofar as the methods of delimitation were concerned. Between 1977 and 1982 the following decisions creating or solving problems of delimitation were taken: the ---+ Continental Shelf Arbitration (France/United Kingdom), decision of June 30, 1977 (ILM, Vol. 18 (1979) p. 397); die ---+ International Court of Justice (ICJ) decision of December 19, 1978 in the v-» Aegean Sea Continental Shelf Case (Greece/Turkey) (ICJ Reports 1978, p. 3); the report and recommendation of the Conciliation Commission on the Continental Shelf between Iceland and Jan Mayen Island (Iceland/Norway, June 1981) (---+ Jan Mayen; ILM, Vol. 20 (1981) p. 797); and the ICJ decision of February 24, 1982 in the ---+ Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya) (ICJ Reports 1982, p. 18). These decisions stood side-byside with the ICJ's first delimitation decision, in the ---+ North Sea Continental Shelf Case (1969) (ICJ Reports 1969, p. 3), while they preceded the Court's most recent decision, subsequent to UNCLOS III, in the 1985 ---+ Continental Shelf Case (Libyan Arab Jamahiriya/ Malta) (ICJ Reports 1985, p. 13). 3. Legal Status and Special Problems In order to give a clearer oicture of the status of the continental shelf, it is essential to provide answers to a number of questions which can be classed in the following categories: (a) the nature and extent of the coastal State's rights over the continental shelf; (b) the basis of reasoning for the existence of the coastal State's rights; and (c) the status of the superjacent waters and air and the rights of third States in these areas.

(a) Nature and extent of the coastal State's rights over the continental shelf Under ---+ customary international law as codified in the Conventions of 1958 and 1982, the coastal State exercises over the continental shelf sovereign rights for the purposes of exploration and exploitation of its natural resources. The term "sovereign rights" is a verbal compromise achieved during UNCLOS I between the States which wanted the term "sovereignty", as more suitable to express the nature of the coastal State's rights over the continental shelf, and the States which simply wanted a functional jurisdiction and control status. The meaning of the term "sovereign rights" appears to be evolving in the direction of similarity with ---+ territorial sovereignty rather than towards the simple and limited functional nature foreseen by the Truman Proclamation and the ILC drafts. Contributions to this development have been made by the case-law of the ICJ, particularly in its decision on the North Sea continental shelf, which speaks of extension of the State's sovereignty to the adjacent sea-bed, in the form of sovereign rights, and re-introduces the question of the natural prolongation of the land mass into the sea-bed and its subsoil, and by the wording of the relevant articles of the 1958 and 1982Conventions themselves, which lay down that sovereign rights are "over" the sea-bed and the subsoil. A different wording, which could, for instance, have referred directly to natural resources, would not have permitted wide interpretations which, in the end, would have provided ground for the rights of the coastal State. The sovereign rights of the coastal State are exclusive in the sense that: "if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State" (Art. 2, para. 2 of the 1958 Convention). Furthermore: "[tlhe rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express pronunciation" (ibid., para. 3). Thus, the delimitation of the continental shelf as a unilateral act on the part of the coastal State or

83

CONTINENTAL SHELF

Convention, the continental shelf is defined as: "(a) the sea-bed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres, or beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) ... the sea-bed and subsoil of similar areas adjacent to the coasts of islands." (Art. 1). The United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) produced by the Third United Nations Conference on the Law of the Sea (UNCLOS III), modified this definition of the continental shelf as to its extent and outer limits. Art. 76 lays down that, for the purpose of the Convention: "1. The continental shelf of a coastal State comprises the sea-bed and sub-soil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the edge of the continental margin does not extend up to that distance." Where the outer edge of the continental margin extends beyond 200 nautical miles, Art. 76(5) of the 1982 Convention provides that "the line of the outer limits . . . either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2500 metres". Art. 121 of the 1982 Convention reiterates that ~ islands, with the exception of rocks which do not sustain human and economic life, have their own continental shelf, which is delimited in accordance with the provisions of the Convention. Regardless of which definition is accepted as corresponding to current positive law, it is clear that the legal notion of the continental shelf differs from its geological counterpart at least insofar as the extent is concerned. While the geological continental shelf commences at the point where the land meets the sea, the legal continental shelf begins at the point on the sea-bed where the territorial waters of a coastal State end; and while

the geological continental shelf ends on the continental slope, the legal continental shelf also covers areas which from the geophysical point of view require a different classification (~ Continental Shelf, Outer Limits).

2. Historical Evolution The emergence of the regime of the continental shelf coincided with the increased interest of the international community after World War II in the sources of wealth of the sea-bed and sub-soil (~ Marine Resources). The gradual exhaustion of land resources in minerals and hydrocarbons, together with the development of technology which made economically feasible the exploitation of deep-water areas, were the motives behind the creation of this interest. However, this growing interest encountered a legal stumbling-block: The sea-bed, outside the narrow limits of the ~ territorial sea, came under the system of the freedom of the seas, which conflicted with the concept of exclusive economic exploitation of the sea-bed by giving priority to the freedom of navigation and the free use of the ~ high seas (~ Navigation, Freedom of). For exclusive exploitation to become possible, a new legal status for the high seas capable of legitimating the appropriation of the sea-bed by the coastal State was necessary. The first attempt to formulate a new status manifested itself in the Truman Proclamation of September 28, 1945 (DeptStateBull, Vol. 13, p. 484). The United States, as a pioneer in technology with growing needs in raw materials and hydrocarbons, was the first country to attempt to claim parts of the sea-bed beyond its territorial waters by unilateral ~ declaration (-- Unilateral Acts in International Law). The Truman Proclamation adopted a functional zone, called the continental shelf, confining appropriation to the sea-bed and not affecting the superjacent waters: " . .. the United States regards the natural resources of the subsoil and the sea-bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in

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CONTINENTAL SHELF

accordance with equitable principles. The character as high seas of ':he waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected" (ibid., p. 485). The Truman Proclamation also contained the reasoning on which the new jurisdiction of the United States over the bed beneath the high seas was based, stating that the continental shelf "may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward extension of a pool or deposit lying within the territory, and since self-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources .... " (ibid., at p. 485). This unilateral action on the part of the United States set off a chain reaction in the international community. A large number of States began unilaterally to adopt exploit ation zones beyond their territorial waters which were not necessarily in accordance with the specifications of the Truman Proclamation. These countries deviated from the Truman Proclamation in extending such zones not only to the mineral resources of the sea-bed but to the biological resources as well, while others also covered the superjacent waters. In addition, a number of States were not content with mere functional jurisdiction and control but adopted sovereign zones ( - Sovereignty). Among examples of proponents of this type of . arrangements are some Latin American States,' which extended their sovereignty to a line 200 nautical miles from the coast, and other States such as Pakistan, which annexed the sea-bed beyond its territorial waters, thus creating new sovereignty zones. The confusion whichruled in the late 1940s, and continued during the early 1950s, made two things plain. First, the vast majo-ity of States were prepared to agree to the creal i0" of a new zone of sea-bed exploitation, with all tnat implied for the freedom of the seas. Second, there was a need for clarification of the new status in the direction of a compromise which would gi\ e the coastal States exclusive exploitation rights hut would not affect the freedom of the seas more than was absolutely necessary for this exploitation, both ratione materiae and ratione loci.

The task of clarification was undertaken by the - International Law Commission (ILC) which in 1949 was charged by the - United Nations General Assembly with the work of codifying, lata sensu, the law of the sea ( - Codification of International Law). Initially the ILC adopted a set of draft articles on the continental shelf (1951), which drew a distinction between the sea-bed and the superjacent waters, and in 1953 it produced a final draft. In the end, after the UN General Assembly's refusal to examine only restricted arrangements for the law of the sea and its eventual decision to call an international conference on the subject (1957; - Conferences on the Law of the Sea), the ILC incorporated-iss draft article" on the continental shelf into a broader draft which it presented to the States for scrutiny. The first United Nations Conference on the Law of the Sea (UNCLOS I) examined the draft articles on the continental shelf as part of a more general set of arrangements. On the basis of more general political, economic, technical and biological considerations, the Conference adopted a special convention on the continental shelf together with three other conventions settling the principal questions of the law of the sea. The 1958 Geneva Convention consists of 15 articles. Its substantive provisions are those covering the definition of the continental shelf, the nature and extent of the rights of the coastal State, the status of the superjacent waters and air (- Airspace over Maritime Areas), the relationship between the rights of the coastal State and the traditional freedoms of the sea relating to navigation, scientific research, laying of - pipelines and - cables, and also the crucial question of delimitation III cases of opposite or adjacent States. The 1958 Convention entered into force on June 10, 1964 and reached its highest number ot signatories (54 States parties) in 1974 ( - Treaties, Conclusion and Entry into Force). No new ratifications have occurred since then. The adoption of the 1958 Convention coincided with a period of radical alterations in the international system which very soon made some of the arrangements of the Convention obsolete. The very rapid advance in technology during the 1960s resulted in the capacity to exploit the sea-bed at depths in excess of 1000 metres. This capacity and the reasonable prospect of further progress gave rise to the possibility of an extension of appropria-

CONTINENTAL SHELF

tion of the sea-bed by coastal States. Thanks to its looseness, the criterion of exploitability for defining outer boundaries provided opportunities for extension of this kind. If the international community were to accept developments in this direction, the greater part of the ocean bed could pass into the hands of the coastal States with possible consequences for the freedoms of the sea in the superjacent waters. Apart from the development of technology, however, a significant change on the political map of the world proved even more catalytic for the fate of the 1958 Convention. This change was the advancing process of ~ decolonization, which had begun after World War II and had led to the formation of a large number of new States. These States, the majority of which were located in Africa, Asia and the Pacific, displayed some common features, the most important of which was that they were in a period of development. Most such ~ developing States were poor, with weak socio-economic structures. Their joint presence in the international order, and mainly in the activities of international organizations and at international conferences, resulted in a change in the terms of operation of this order, since it functions, in general, according to the majority principle. This was particularly underscored by the widespread currency of the view that the new States were not always obliged to implement international regulations to whose content they had not given their consent and in whose formulation they had not participated (~ New States and International Law). The same applied to the expression of a new relationship between developed and developing countries (North-South) which was incorporated into the concept of a new international economic order. This new order called for the introduction of measures, and the creation of appropriate regulations to support them, capable of creating the conditions for the development of the new States, reducing the gap between them and the developed countries, and making a more just division of the world's wealth. In these circumstances, the law of the sea, as. codified by the conventions of 1958, was unable to stand the test of time. The economic significance of the sea acquired fresh dimensions and became involved in the competition between North and South and in the fabric of the new international economic order. A new series of compromises

85

became essential between conflicting interests, which would go beyond the outdated dichotomy, i.e. the interests of the freedom of the sea versus the exploitation interests of the coastal States. These new compromises were worked out in the framework of UNCLOS III, which lasted for nine years (1973 to 1982) and concluded with the adoption of the new Convention on the Law of the Sea of i982. The negotiations on the status of the continental shelf during UNCLOS III were complex. As with most other issues, the fundamental discussions took place formally and informally in special committees, or behind the scenes. One of the first questions which arose in the early stages of the conference was whether or not the institution of the continental shelf should be retained in view of the introduction of the new ~ exclusive economic zone, which was capable of covering the area and functions previously attributed to the continental shelf. However, this issue was soon overcome when it became clear that most States favoured the retention both of the continental shelf as an autonomous institution and of its basic legal features which, grosso modo, remained unchanged in the new system introduced by UNCLOS III. Debate very soon came to focus on the problem of delimitation, that is, on the determination of specific and fixed outer boundaries capable of terminating the state of uncertainty which the 1958 Convention had created with its test of exploitability and the practices which had followed its application in the international legal order. Another question which emerged was related to that of the continental shelf and was indicative of the trend towards "socialization" characteristic of UNCLOS III. This concerned the sharing of resources in areas of the continental shelf in excess of 200 nautical miles, that is, outside the conventionallimit for the distance from land at which tl ,~ exclusive economic zone ends, as does the co.itinental shelf if various geophysical factors prevent its extension beyond that point. The negotiating deadlocks over these issues could only be surmounted in the closing stages of UNCLOS III and on the initiative of the president of the Conference. The unofficial text of the draft Convention of August 27, 1980 (UN Doc. A/ CONF. 62/WP. lO/Rev. 3) contained the last draft of the articles on the continental shelf which

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CONTINENTAL SHELF

were, in effect, the result of the President's initiative. These articles held not obtained the consent of all the interested parties, despite the repeated corrective interventions of the competent committees and the president and despite the addition of an annex devoted to the setting up of a Commission on the control of delimitation. Nonetheless, they constituted, almost word for word, the final articles of the Convention as it was eventually adopted. Finally, it should be noted that at the same time as the issue was being negotiated in the framework of UNCLOS III, the continental shelf was also undergoing judicial examination and the case-law related to it was growing, particularly insofar as the methods of delimitation were concerned. Between 1977 and 1982 the following decisions creating or solving problems of delimitation were taken: the - Continental Shelf Arbitration (France/United Kingdom), decision of June 30, 1977 (ILM, Vol. 18 (1979) p. 397); the International Court of Justice (ICJ) decision of December 19, 1978 in the -~ Aegean Sea Continental Shelf Case (Greece/Turkey) (ICJ Reports 1978, p. 3); the report and recommendation of the Conciliation Commission on the Continental Shelf between Iceland and Jan Mayen Island (Iceland/Norway, June 1981) (- Jan Mayen; ILM, Vol. 20 (1981) p. 797); and the ICJ decision of February 24, 1982 in the ~ Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya) (ICJ Reports 1982, p. 18). These decisions stood side-byside with the ICJ's first delimitation decision, in the - North Sea Continental Shelf Case (1969) (ICJ Reports 1969, p. 3), while they preceded the Court's most recent decision, subsequent to UNCLOS III, in the 1985 - Continental Shelf Case (Libyan Arab Jamahiriya/Malta) (ICJ Reports 1985, p. 13). 3. Legal Status and Special Problems In order to give a clearer picture of the status of the continental shelf, it is essential to provide answers to a number of questions which can be classed in the following categories: (a) the nature and extent of the coastal Slate's rights over the continental shelf; (b) the basis of reasoning for the existence of the coastal State's rights; and (c) the status of the superjacent waters and air and the rights of third States in these areas.

(a) Nature and extent of the coastal State's rights over the continental shelf Under - customary international law as codified in the Conventions of 1958 and 1982, the coastai State exercises over the continental shelf sovereign rights for the purposes of exploration and exploitation of its natural resources. The term "sovereign rights" is a verbal compromise achieved during UNCLOS I between the States which wanted the term "sovereignty", as more suitable to express the nature of the coastal State's rights over the continental shelf, and the States which simply wanted a functional jurisdiction and control status. The meaning of the term "sovereign rights" appears to be evolving in the direction of similarity with - territorial sovereignty rather than towards the simple and limited functional nature foreseen by the Truman Proclamation and the ILC drafts. Contributions to this development have been made by the case-law of the ICJ, particularly in its decision on the North Sea continental shelf, which speaks of extension of the State's sovereignty to the adjacent sea-bed, in the form of sovereign rights, and re-introduces the question of the natural prolongation of the land mass into the sea-bed and its subsoil, and by the wording of the relevant articles of the 1958 and 1982Conventions themselves, which lay down that sovereign rights are "over" the sea-bed and the subsoil. A different wording, which could, for instance, have referred directly to natural resources, would not have permitted wide interpretations which, in the end, would have provided ground for the rights of the coastal State. The sovereign rights of the coastal State are exclusive in the sense that: "if the coastal State does not explore the continental shelf or exploit its natural resources, no one may undertake these activities, or make a claim to the continental shelf, without the express consent of the coastal State" (Art. 2, para. 2 of the 1958 Convention). Furthermore: "[t]he rights of the coastal State over the continental shelf do not depend on occupation, effective or notional, or on any express pronunciation" (ibid., para. 3). Thus, the delimitation of the continental shelf as a unilateral act orr the part of the coastal State or

CONTINENTAL SHELF

as the result of an agreement in accordance with geographical conditions demonstrates the existence of the right; it does not constitute it. The rights of the coastal State, according to the Ie] in the North Sea Continental Shelf Case, exist ipso facto and ab initio. The natural resources which belong exclusively to the coastal State are as follows: "the mineral and other non-living resources of the sea-bed and subsoil together with living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil" (Art. 2(4) of the 1958 Convention). In the case of the "mineral and other non-living resources", the coastal State's rights concern exploration and exploitation of minerals on the sea-bed and in its subsoil, and the hydrocarbons of the subsoil, which would appear to be the continental shelf natural resource with the greatest importance. In the case of living organisms, however, there would seem to be some uncertainty over the exact extent of these rights, and not even UNCLOS III clarified this point. More specifically, while it is clear that the rights concerned are confined to sedentary species (~ Fisheries, Sedentary), certain States such as France have expressed their opposition to the inclusion of crustaceans in this category. However, the question is developing into a theoretical one, since the overlapping between the continental shelf and the new exclusive economic zone at the points where fishing is intensive reduces the importance of the exclusive right to exploit sedentary species on the continental shelf. The coastal State has now, with the introduction of the new zone, a more general fishing right up to 200 nautical miles from the coast, both in the superjacent waters and on the sea-bed. The exclusive right of the coastal State to explore and exploit the continental shelf also implies the acceptance of certain other rights as well as obligations which make possible the exercise of this primary right. The 1958 Convention, in Art. 5, paras. 2 to 7, acknowledges this requirement, laying down the following: "2. Subject to the provisions of paragraphs 1 and 6 of this article, the coastal State is entitled

87

to construct and maintain or operate on the continental shelf installations and other devices necessary for its exploration and the exploitation of its natural resources, and to establish safety zones around [them] '" and to take in those zones measures necessary for their protection. 3. The safety zones ... may extend to a distance of 500 metres around the installations and . . . devices .... Ships of all nationalities must respect these safety zones. 4. Such installations and devices, though under the jurisdiction of the coastal State, do not possess the status of islands .... 5. Due notice must be given of the construction of any such installations .... Any installations which are abandoned or disused must be entirely removed. 6. Neither the installations or devices, nor the safety zones around them, may be established where interference may be caused to the use of recognized sea lanes essential to international navigation. 7. The coastal State is obliged to undertake, in the safety zones, all appropriate measures for the protection of the living resources of the sea from harmful agents." The new 1982 Convention provides for more or less the same arrangements, which permits the assumption that these provisions have been accepted as customary law in the international legal order, after some twenty years of approval by the international community. Art. 80 of the 1982 Convention refers to Art. 60, which deals with the question of ~ artificial islands, installations and other devices in the exclusive economic zone, laying down that that article is to be implemented, mutatis mutandis, in the case of the continental shelf. There are no material differences in this regard between the 1958 arrangements and those of 1982. Further specification of the rights and obligations of the coastal State is provided by the new provisions. For instance, in the case of the ~ jurisdiction of the coastal State the exclusive nature of this right and some areas of jurisdiction are given indicatively, such as laws and other arrangements on issues of customs, taxation, health, security and immigration. It is also laid down that in cases where the coastal State is obliged to remove an artificial

88

CONTINENTAL SHELF

island or a device, that State must take into consideration when doing so the protection of fishing, the marine environment and the rights and obligations of third countries. Lastly, both the 1958 and 1S'82 Conventions lay down that the coastal State retains its right, unaffected by these instruments, to exploit the subsoil by means of tunnelling irrespective of the depth of water above the subsoil (Arts. 7 and 85, respectively) .

(b) Causal basis of the rights of the coastal State The attempt to appropriate the sea-bed beyond the depths of the territorial waters was clearly designed to give coastal States the exclusive ability to exploit their natural resources. However, this effort affected vested interests which had already been legitimated by the international community, raising the freedom of the seas to the status of a central principle in international law. The creation of the submarine zone meant the restriction of this freedom, both because the jurisdiction given to the coastal State strikes at the corresponding rights of all the other States in the same area, which are based on the general freedom of the seas, and because exercise of this jurisdiction would bring about changes in the functioning of other freedoms exercised above the continental shelf, such as navigation and fishing, in the process of satisfying the exclusive right to explore and exploit the sea-bed. Those who conceived the regime of the continental shelf saw it as essential that a counterbalance to the strongly established ideological nature of the freedom of the seas should be introduced. The principle of natural prolongation, which is connected ideologically with a natural right and with the sovereignty of the State, constituted that counter-balance and was called upon to provide causal justification for the blow struck at the freedom of the seas. However, while the Truman Proclamation used this method to justify the appropriation of the sea-bed, if only in .the form of jurisdiction and control, natural prolongation did not find many supporters during the process of preparation of UNCLOS I or at the Conference itself. The fear that a relationship with natural features would create inequalities in the treatment of States which could not demonstrate the natural conditions

necessary to establish a continental shelf led the ILC and the majority of the UNCLOS I States to dismiss the principle of natural prolongation and the ideological position it represented. The definition given in Art. 1 of the 1958 Convention shows this rejection with its determination of the outer limits not on the basis of geophysical or geological concepts but using the criteria of depth and exploitability. The question of natural prolongation, as the ideological reflection of the continental shelf. returned to the centre of attention with the IC] judgment in the North Sea Continental Shelf Cases (1969). In these cases the Court judged that the theoretical basis for appropriation of the continental shelf is, rather than the concept of proximity which the litigants had invoked, the principle of natural prolongation, or of the extension of the territory or territorial sovereignty of the coastal State over the submarine areas of the high seas. The reappearance of natural prolongation as the basis for appropriation was established by States in the context of UNCLOS III. Apart from the influence which the IC] exerted in formulating the views of the international community, the reasons for returning to this principle can be attributed to two developments which made it necessary. The first was the fact that acceptance of the exclusive economic zone forced the supporters of retention of the regime of the continental shelf to seek to consolidate the concept of a natural relationship between the land mass and the sea-bed in order to justify their claim and succeed in having the zone extended beyond 200 nautical miles on the basis of that relationship. The second development was recognition that invocation of the principle of natural prolongation would act as a break on the expansionism of coastal States by fixing the ultimate external limits on the basis of a constant feature, i.e. the geophysical relationship between the land mass and the sea-bed. The States which wished to place a final restriction on coastal appropriation either to protect the traditional freedoms of the sea or to allow scope for collective exploitation of the sea-bed found a tool in the principle of natural prolongation. In addition, there was almost no resistance to the return to the principle, since the States which had no natural continental shelf were no longer at risk of losing exclusive rights in the

CONTINENTAL SHELF

continental shelf, given that the adoption of the exclusive economic zone satisfied them on this point. The natural relationship between land territory and the sea-bed is reflected today in Art. 76 of the 1982 Convention, which lays down that the continental shelf of a coastal State extends "beyond its territorial sea, throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines .. . " (para. 1). The continental margin comprises, according to paragraph 3 of the same article, the submerged prolongation of the land mass of the coastal State. However, the idea of natural prolongation, which in the 1982 Convention covers the whole of the continental margin, is betrayed by certain other provisions of the same instrument. Art. 76 itself introduces the alternative criterion of 200 nautical miles from land, while Art. 83(1), provides for delimitation between States with opposite or adjacent coasts "by agreement on the basis of international law . . . in order to achieve an equitable solution" (~ Maritime Boundaries, Delimitation). The reference to an agreement and to equitable solutions leads away from a solution based on strictly geophysical terms, at least as far as the sea-bed is concerned, and introduces certain other criteria for delimitation. This, of course, was the inevitable result of the peculiarities of delimitation with regard to the continental shelf, which is in principle geophysically and geologically homogeneous, but at the same time it demonstrates the relativity of the principle of natural prolongation. It should be remembered, however, that the provisions of the 1982 Convention have not yet entered into force, and it is doubtful whether they have acquired the status of customary law, in their entirety at least.

(c) Regime for superjacent waters and airspace and the rights of third States in the continental shelf area The two fundamental Conventions of 1958 and 1982 governing the status of the continental shelf include the following rule which reflects customary law, the former Convention in Art. 3 and the latter in Art. ,78(1): "The rights of the coastal State over the continental shelf do not affect the legal status of

89

the superjacent waters as high seas, or that of the airspace above those waters" (Art. 3). This rule means that: (i) in the current state of development of international law, superjacent waters are exclusive economic zones, entailing rights and obligations with regard to the coastal State and third countries, or high seas when the coastal State has not established an exclusive economic zone, or high seas in all cases for that part of the sea which extends beyond 200 nautical miles; and (ii) the airspace over the same area is absolutely free. In the area governed by the high seas regime, the freedoms provided for by international law apply to third States. Nevertheless, there are certain differences which have arisen, directly or indirectly, from the need for coastal States to exercise their rights. More specifically, Art. 5( 1) of the 1958 Convention and Art. 78(2) of the 1982 Convention, mutatis mutandis, provide that: "The exploration of the continental shelf and the exploitation of its natural resources must not result in any unjustifiable interference with navigation, fishing or the conservation of the living resources of the sea, nor result in any interference with fundamental oceanographic or other scientific research carried out with the intention of open publication" (Art. 5( 1». By virtue of these provisions, the coastal State may intervene in the exercise of the freedoms of the high seas if its interference is justifiable. Interference is logically justifiable when it is essential to the coastal State's ability to exercise its rights. On the other hand, the coastal State must be extremely cautious in interfering with freedoms and it must avoid all action which is not absolutely essential for the exercise of its freedoms. Under all circumstances, no interference is conceivable in cases of fundamental oceanographic research, as expressly stated by the 1958 Convention. A typical example of justifiable interference is the construction and maintenance of installations and other devices. In the case of the laying and maintenance of submarine cables or pipelines, the freedom of the high seas is retained by third States, subject to the rights of the coastal State to take reasonable measures for the exploration and exploitation of its continental shelf (Art. 4 of the 1958 Convention). Art. 79 of the 1982 Conven-

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tion, which deals with the same issue, is stricter than Art. 4 of the 1958 Convention. While on the one hand expressly granting the right to third States to lay submarine cables or pipelines on the continental shelf, Art. 79 also widens the scope for regulatory intervention on the part of the coastal State. Paragraph 2 gives the coastal State the additional right to take reasonable measures, including prevention, in cases of pollution, while paragraph 3 lays down that the coastal State's approval is required for the route which the cables and pipelines will take on the the sea-bed. The coastal State's exclusive right to carry out exploration also covers cases of scientific research. In order for a third State or institution to be able to undertake research on the continental shelf, it must obtain the consent of the coastal State. However, Art. 5(8) of the 1958 Convention recommends that: "the coastal State shall not normally withhold its consent if the request is submitted by a qualified institution with a view to purely scientific research .,. subject to the proviso that the coastal State shall have the right to participate or to be represented in the research, and that in any event the results shall be published. " Beyond these restrictions, the freedom of the high seas is not affected. Indeed, the coastal State is under an obligation to ensure that the rights of third States are maintained and not affected and to reduce or eliminate those factors which could endanger the rights of the international community, such as environmental pollution, activities on the continental shelf with adverse effects on living marine organisms, etc. (paras. 5, 6 and 7; -+ Marine Environment, Protection and Preservation). Lastly, the 1982 Convention in Art. 82 lays down that the coastal State is obligated to make contributions in kind or in natura, to the International Sea-Bed Authority, which in tum will distribute such contributions to the States parties in an equitable way, for exploitation of the non-biological ~sources of the continental shelf beyond 200 nautical miles. These contributions, which are not imposed on developing countries which are net importers of the minerals extracted from their continental shelf, are compulsory for the whole of an area of exploitation and become

payable, on a scaled system, at the end of the first five years of exploitation. The implementation of this arrangement presupposes that the Convention and the relevant provisions will come into force. 4. Evaluation

The introduction of the regime of the continental shelf brought about a revolutionary change in the law of the sea. This law was formulated giving priority to the concept of freedom of navigation (-+ Navigation, Freedom of), with the rationale that the sea is first and foremost an avenue of communication for the international community. The regime of the continental shelf introduced the concept that the sea is also an area for the exploitation of resources, over and above fishing, and that these resources have acquired particular importance for humanity. This concept matured over a period of years and gave rise to two new zones of exploitation, the exclusive economic zone and the zone considered to be the -+ common heritage of mankind. Since the regime was introduced, the constant problem has been its assimilation into a system of law formulated on the basis of different priorities and the working out of a compromise between those priorities and the new interests represented by the continental shelf. This compromise was finalized with the statement of a new concept of maritime zones. These zones were transformed from areas of absolute or relatively generalized rights into purely functional areas. In other words, under the classical law of the sea which existed prior to World War II the familiar maritime zones (primarily the territorial waters and the high seas) allowed those States entitled to their use, grosso modo, overall rights. On the other hand, the law which was formulated in the post-war period specifically lists the functions of each zone. In this way it was possible both to preserve the vital uses of the high seas (the area in which the new zones have come into being) which arise from traditional law (particularly the freedom of navigation), and also to exploit the sea's resources. It is inevitable that conflict will arise, especially in the exercise of rights, under such a. complex system of compromise of priorities. In the particular case of the continental shelf, one can predict that such conflict is likely to arise between the exercise of the rights of coastal States and the exercise of the rights of third States claiming

CONTINENTAL SHELF CASE (LIBYAN ARAB JAMAHIRIYA/MALTA)

freedom of the seas. Conflict is also possible between exercise of rights in respect of the continental shelf and exercise of rights in respect of the exclusive economic zone, though here the conflict seems likely to be theoretical rather than practical, at least in so far as these rights converge on the legal person of the same coastal State. On the other hand, given the increased social nature of the law of the sea and the progress made in recent years on the development of the regime of the continental shelf, with regard to the acceptance of fixed outer limits, some of the tension the regime has encountered since its inception has been removed. Although there are still gaps in consensus concerning the issue of delimitation, as well as fundamental doubts as to what today constitutes positive law in this respect, the trend towards finalization of the outer limits is an indication of both the viability of the regime and of the relative clarity with which the functional zones are distributed under the current law of the sea. Proclamation 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Seabedof the Continental Shelf, September 28,1945, DeptStateBull, Vol. 13 (1945) 485. United Nations Conference on the Law of the Sea, February 24-April 27, 1958, Official Records, 7 vols, (1958). Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. North Sea Continental Shelf, Judgment, ICJ Reports 1969, 3-257. Third United Nations Conference on the Lawof the Sea, Official Records, 17 vols. (1975-1984). United Nations Convention on the Law of the Sea, December to, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354).

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(eds.), Traite du Nouveau Droit de la Mer (1985) 275-336. CHRISTOS L. ROZAKIS

CONTINENTAL SHELF CASE (LIBYAN ARAB JAMAHIRIYA/ MALTA) 1. Special Agreement By a special agreement Libya and Malta submitted to the -+ International Court of Justice (ICJ) in July 1982 a dispute concerning the delimitation of their respective -+ continental shelf areas. They requested the Court not only to indicate the rules and principles applicable to such a delimitation, but also to indicate the practical method of applying those principles and rules to the actual delimitation (see also -+ Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya); -+ Maritime Boundaries, Delimitation).

2. Application by Italy for Permission to Intervene

The judgment on the merits which the Court gave on June 3, 1985 can only be understood against the background of the decision it rendered on the request of Italy to intervene according to Art. 62 of the ICJ Statute. Italy introduced this application in October 1982 being of the opinion that some of the areas it claimed as Italian continental shelf were involved in the delimitation case between Libya and Malta. On March 21, 1984 the Court, by 11 votes to 5, refused permission to intervene (ICJ Reports 1984, p. 3). The main reason for tbis refusal was that in the opinion of the Court and despite the contrary argument of Italy the true object of the request was not the preservation but rather the HW. MOUTON, The Continental Shelf (1952). adjudication of Italy's rights, that is to say, the E.D. BROWN, The Legal Regime of Hydrospace (1971). D. VALEE, Le plateau continental dans Ie droit positif decision of a dispute existing between Italy and the actuel (1971). main parties concerning the extent of the Italian K.O. EMERY, Geological Limits of the Continental Shelf, continental shelf. Ocean Development and International Law, Vol. to The Court found that such an intervention was (1981) 1-11. not permitted under Art. 62 where, as in this case, CL. ROZAKIS, Compromises of States' Interestsand their Repercussions upon the Rules on the Delimitation of there existed no jurisdictional link between the the Continental Shelf: Fromthe TrumanProclamation intervenor and the main parties. The adjudication to the 1982 Convention on the Lawof the Sea, in: c.L. of rights without a jurisdictional link by means of Rozakis and C.A. Stephanou (eds.), The New Lawof an intervention procedure would constitute an the Sea (1983) 155-183. exception to the fundamental principles underlyJ.F. PULVENIS, Le plateau continental, definition et regime des ressources, in: R.-J. Dupuyand D. Vignes ing the Court's jurisdiction, i.e. consent,

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reciprocity, and equality of States (~ States, Sovereign Equality), and would not be accepted unless clearly expressed. According to the reasoning of the Court, even if in this case the jurisdictional link had existed, there would have been no room for an intervention under Art. 62, since Italy's claim represented the introduction of a new dispute which only could be brought before the Court by a direct reques t and not by an application to intervene. Although this statement in itself is undoubtedly correct i: is rather doubtful whether it really reflects the purpose of the Italian intervention application. Italy expressly sought only preservation of her rights, thus necessitating a definition of the terms "preservation" and "adjudication of rights" to make the reasoning of the Court understandable. The Court, however, did not give such a definition nor did it answer the question whether intervention only for the preservation of rights would be admissible in the absence of a jurisdictional link Once again the Court carefully avoided a statement concerning the problem of the jurisdictionallink in intervention procedures, thus missing another opportunity to eliminate the ambiguities of this institution (cf. the application of Malta for permission to intervene in the Tunisia/Libya Continental Shelf Case). The Court, instead, tried to provide its decision with another legal reasoning by referring to the limited binding character of its decisions according to Art. 59 of the Statute. As under this provision only the parties to a case are bound by a decision, Italy's rights could not be affected by the decision so that the refusal of the application to intervene could not result in an interference with Italian rights. However, the Court admitted that the participation of Italy in the proceedings would have helped the Court by providing it with all necessary information. But since there was no jurisdictional link and since the main parties had opposed the intervention, the only valid consequence could be a more restrained judgment on the merits than had been requested by the parties. Such a restriction in the outcome of the judgment was wholly imputable to the parties who could have helped the case by admitting the intervention. Thus, the Court shifted the responsibility for the consequences of its decision to the parties who probably regretted their refusal to admit the

intervention, given the fact that Italy fully obtained what it wanted, namely complete preservation of all its claims. 3. Judgment of the Court of June 3, 1985

In its judgment the Court carefully avoided any interference with the claims of Italy. That meant, in the first place, a precise circumscription of the continental shelf areas remaining for delimitation between the main parties. As the Court found that only those areas were to be delimited where no claims by a third State existed, the delimitation area was reduced to the part of the continental shelf lying between the meridian 13 degrees 50 E and 15 degrees 10 E, the only section where Italy had not advanced claims. Italy's position was, thus, perhaps even more protected than it would have been if the request to intervene had been granted. This fact, as the Court emphasized once more, gave no ground for complaints by the primary parties since they must have been aware of the limitation of the geographical scope of their claim after refusing to agree to the Italian intervention application. As to the actual delimitation, the Court first examined the applicable rules and principles in this case. As only Malta was a party to the 1958 Geneva Convention on the Continental Shelf, April 29, 1958 (UNTS, Vol. 499, p. 311), there was no room for applying this Convention. The Court then turned to the 1982 United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) , which both parties had signed but which was not yet in force. As in previous cases (Tunisia/Libya; ~ Gulf of Maine Case), the Court considered how far any of the provisions of that Convention were binding upon the parties as a rule of ~ customary international law. The Court once again confirmed the -applicability of Art. 83 concerning continental shelf delimitation, under which an "equitable solution" should be achieved, but without indicating any means for achieving this result. There was, however, agreement between the parties that the delimitation was to be effected according to equitable principles and taking into account all relevant circumstances (~ Equity in International Law). As to the entitlement to continental shelf rights, the views of the parties were irreconcilable. Libya

CONTINENTAL SHELF CASE (LIBYAN ARAB JAMAHIRIYA/MALTA)

relied on the natural prolongation characteristic while Malta invoked the distance concept requiring, at least between opposite coasts, the application of the equidistance method. On this point, too, the Court followed its previous findings, confirming that up to a distance of 200 miles the concept of natural prolongation has been superseded by the distance principle. There was, accordingly, no room for any geological or geophysical arguments on the part of Libya since the distance between the coasts of the parties was less than 400 miles. On the other hand, the Court also rejected the equidistance argument relied upon by Malta, repeating once more that equidistance is neither the only appropriate method of delimitation nor a preferable or obligatory one. Thus, the Court found that it had to effect the delimitation according to equitable principles respecting all relevant circumstances. The Court excluded as such a circumstance the landmass argument advanced by Libya as well as considerations of economy invoked by Malta. However, the Court did in principle consider questions of national security, the lengths of the coasts and the insular status of a politically independent State. As to proportionality, the Court confirmed its prior findings that this concept is only of use as a test of equity not as an independent principle of delimitation. In drawing the actual delimitation line the Court proceeded by stages. It first draw a provisional line based on equidistance, this method being particularly reasonable in cases involving opposite States. Then the Court examined the adjustments necessary in its opinion because of the great disparity between the lengths of the coasts of the parties. Another factor taken into consideration for adjustment was the geographical situation of Malta, which is located south of the coast of the European continent. The Court was of the opinion that those factors required adjustment in the sense that the delimitation line be located closer to the Maltese coast than to that of Libya. The degree of shifting northward of the median line was determined by hypothetical reasoning based on the supposition that the Maltese islands were part of Italian territory and that the delimitation had to be effected between Italy and Libya. The line delimiting the continental shelf areas of these States would lie somewhat south of the median line because of the account to be given to Malta.

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However, since Malta is not part of Italy, the situation of the former could not be worse than in that hypothesis, so that the line between Libya and Malta must be to the south of a fictional median line between Libya and Italy. The final delimitation line was then drawn by transposing the provisional median line 18' of latitude northwards, i.e. a shift of about two-thirds of the distance between the Malta-Libya median line and the line found to be equitable in the hypothesis considering Malta as part of Italy. As to the proportionality test usually applied by the Court for confirming the equitableness of its result, the Court had some difficulties in this case. As the delimitation only comprised a very small part of the disputed area due to claims of third States, the proportionality test could not be applied. However, with regard to the delimited portion of the whole area, the Court found that it did not show evident disproportion leading to the conclusion that proportionality as an aspect of equity was satisfied.

4. Analysis In the judgment of the Court there are two main points for discussion. The first, already mentioned, is related to the influence of the intervention decision on the judgment on the merits. The fact that the Court respected the claim of Italy to its full extent resulted in a judgment unlikely to be qualified as "settling the dispute" brought before the Court. The significance lies not so much in the fact that the geographical scope of the decision was limited in the above described manner, but rather in the unsatisfactory reasons which led to the decision on the intervention application. The fact that the Court did not resolve the true problem of the Italian application, namely the question of the requirement of a jurisdictional link, but circumvented this problem by basing its decision on unconvincing and inconsistent reasons as to the object of the Italian application, makes it particularly difficult to accept the way in which the Court proceeded. A decision on the crucial point of the intervention request, i.e. the jurisdictional link, would have brought the necessary clarity to approve the limitation of the geographical scope of the decision. Instead, there is a feeling that the true issue perhaps justifying such a proceeding has not been resolved. Another unsatisfactory out-

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come of this decision is that an intervention which was finally declined has had the same effect of informing the Court as would have been the case had the intervenor been admitted. That the position of the would-be intervenor is the same or even better than in the case in which an intervention is allowed is inconsistent with the object for which the intervention procedure was originally instituted. The second relevant point to be treated concerns the actual drawing of the delimitation line. Even with a view to the unpredictability of the judgments of the Court under the system of the 1982 Law of the Sea Convention and the wide discretion it gives to the Court, the outcome of the delimitation line in this case seems hardly capable of justification. As was underlined by some of the dissenting judges, the shifting northwards of the median line between Malta and Libya as well as the hypothetical incorporation of Malta into Italy required some legal justification. The Court did not explain why the portion of the continental shelf belonging to Malta could not be defined by the median line which already attributed to Malta a relatively small portion due to the fact that the lengths of the two coasts were so different that the upper half of the triangle formed by the coasts somehow constituted a natural adjustment of the delimitation based on the median line. The Court, which in 1969 in the ~ North Sea Continental Shelf Cases (North Sea Continental Shelf, Judgment, ICJ Reports 1969, p. 3) had declared th:lt delimitation is not synonymous with refashioning nature or exercising distributive justice, should have relied on those fundamental principles of delimitation. It seems that States have accepted that delimitation according to the new ~ law of the sea is more a task of finding an acceptable compromise than of deciding on the basis of law. In this stale of affairs the Court has the delicate task not to hamper the readiness of States 10 accept jurisdiction based largely on discretion, thus moving outside the sphere of legal adjudication. Perhaps the Court should abstain from defining more than the applicable rules and principles of international law in a given case and leave it to the parties to draw the final delimitation line by themselves finding the compromises which must be accepted in respect of the relevant circumstances of the given area.

Continental Shelf (Libyan Arab Jamahiriya/Malta), Application for Permission to Intervene, Judgment, ICJ Reports 1984, 3-163. Continental Shelf (Libyan Arab Jamahiriya/Malta) Judgment, ICJ Reports 1985, 13-187. Anmerkungen zur Intervention Italiens im Verfahren zur Abgrenzung des Festlandsockels zwischen Malta und Libyen, ZaoRV, Vol. 44 (1984) 840-855. G. SPERDUTI, In margine alia sentenza dcl21 marzo 1984 della Corte Internazionale di Giustizia, RivDirInt, Vol. 67 (1984) 506-512. G.P. McGINLEY, Intervention in the International Court: The Libya/Malta Continental Shelf Case, ICLQ, \'01. 34 (1985) 671-694. B. CONFORTI, L'arret de la Cour internationale de Justice dans l'affaire de la delimitation du plateau continental entre la Libye et Malte, RGDIP, Vol. 90 (1986) 313-343. K. OELLERS-FRAHM,

KARIN OELLERS-FRAHM

CONTINENTAL SHELF CASE (TUNISIA/LIBYAN ARAB JAMAHIRIYA) 1. Introduction By the Special Agreement for the Submission of the Question of the Continental Shelf between the two Countries to the International Court of Justice, June 10, 1977 (ILM, Vol. 18, p. 49), the Republic of Tunisia and the Socialist People's Libyan Arab Jamahiriya requested the - International Court of Justice (ICJ) to state "the principles and rules of international law which ru.ght be applied for the delimitation of the area of the continental shelf' appertaining to each of the two countries. The Court was specifically called upon to take account of the following three factors: (i) equitable principles; (ii) the relevant circumstances which characterize the area; and (iii) the new, accepted trends in the Third United Nations Conference on the Law of the Sea (UNCLOS III). In the second paragraph of the Special Agreement the Court was required to "clarify the practical method for the application of those principles and rules .., so as to enable the experts of the two states to delimit these areas without difficulties". Thus, the Court was not called upon to draw the actual delimitation line

CONTINENTAL SHELF CASE (TUNISIA/LIBYAN ARAB JAMAHIRIYA)

(~ Continental Shelf; Delimitation).

~

Maritime Boundaries,

2. Intervention of Malta, Judgment of April 14, 1981 On January 30, 1981 Malta filed an application requesting permission to intervene in the case under Art. 62 of the ICJ Statute and Art. 81, para. 2, of the Rules of Court. According to the latter provision an intervention application must set forth the following: (i) an interest of a legal nature which the applicant considers may be affected by the decision; (ii) the precise object of the intervention; and (iii) any basis of jurisdiction which is claimed to exist between the applicant and the parties to the case. On April 14, 1981 the Court rendered judgment on this application (ICJ Reports 1981, p. 3). The Court stated that if any of these prerequisites is missing the application must be dismissed. By this finding the Court rejected the argument of Malta according to which the only condition for the granting of an intervention request was that a legal interest of the intervenor be affected by the decision and that the conditions set out in Art. 81 of the Rules of Court, specifically the requirement of a jurisdictional link, were of negligible relevance because the Statute is the prevailing instrument. In addition, as Malta was not seeking any substantive or procedural decision against either party, there could not arise any question of jurisdiction in the strict sense according to Malta's argument. " " . After retracing the history of the institution of intervention, the Court considered whether any legal interest which Malta had invoked could be affected. Such an interest consisted essentially in a possible concern with any findings of the Court that identified and assessed the geographical or geomorphological factors relevant to the delimitation of the continental shelf between the main parties, as well as any pronouncements of the Court regarding, for example, the significance of special circumstances or the application of equitable principles in that delimitation (~ Equity in International Law). The Court found that in this sense there was only the potential for consequences to result from the reasoning of the Court and that the interests of Malta were only akin to those of other States within the region.

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Therefore, what Malta had to show in order to obtain permission to intervene was a legal interest that might be affected by a decision. However, Malta had expressly argued that its intervention was not to have the effect of putting in issue its own claims vis-a-vis Tunisia or Libya. Thus, the Court found that the mere decision upon the applicable principles and rules of law requested by the parties could not affect any Maltese interest of a legal nature within the meaning and scope of Art. 62 of the Statute. According to the Court's findings, the real object of the Maltese application was to secure the opportunity of arguing in favour of a decision in which the Court would refrain from adopting and applying particular criteria that it might otherwise consider applicable. To permit an intervention for this object would leave the parties in a position of uncertainty in the consideration of their own separate interests in relation to Malta, all the more so because the intervenor would not submit its own claims to a decision by the Court or expose itself to counterclaims. The Court underlined that although it understood the Maltese pre-occupations regarding possible implications of a decision for Maltese interests, intervention in the form sought by Malta could not be granted. As to the most controversial question whether there had to exist a jurisdictional link between the intervenor and the main parties, the Court found a decision unnecessary, since the application could be dismissed on other grounds.

3. Judgment of February 24, 1982 (a) Rules and principles of international law Prior to the present case there were only two judicial precedents in respect of continental shelf delimitation, i.e. the 1969 judgment of the ICJ in the ~ North Sea Continental Shelf Case (ICJ Reports 1969, p.3) and the 1977 Award of the Arbitral Tribunal in the ~ Continental Shelf Arbitration (France/United Kingdom) (ILM, Vol. 18 (1979) p. 397). The arguments of the parties in the present case were based on the findings of those earlier decisions. Accordingly, they relied primarily on the character of the continental shelf as a natural prolongation of the land under the sea, starting from geographical or geological facts. In its judgment of February 24, 1982 (ICJ

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Reports 1982, p. 18), the Court, however, rejected the applicability of the natural prolongation concept in this case because there was just one continental shelf common to both States. Thus, the IC] stated that the delimitation had to be governed by criteria of international law other than those based on physical features. This finding was also in accordance with the new trends in the law of the sea resulting from UNCLOS III and now sanctioned in Arts. 76(1~ and 83(1') ofthe UN Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.). According to these provisions. natural prolongation no longer necessarily defines the continental "shelf concept; rather apure distance principle may be applicable (Art. 76 (1)). In addition, the equitable result of delimitation alone is relevant (Art. 83(1)). To reach this result, according to the ~ compromis, the Court had to apply equitable principles. Since these principles are not generally defined, it was of the utmost importance for the Court to be as clear as possible on this point. The Court, nonetheless, experienced difficulties in indicating what those equitable principles were in this case, all the more since Art. 83 of the 1982 Convention does not prescribe any specific criterion as guidance in delimitation cases. As the Court found that geography was not a primary factor to take into account in this case and underlined that not the means of finding the result but the result itself was of importance, only the subjective appreciation of the Court coud determine what those equitable principles were. Thus, the Court blurred the line between a decision given ex aequo et bono and a decision based OTi the application of international law, by evaluating in its own total discretion the equitableness of the result. The Court began by defining with greater precision the area in dispute on the basis of the principle that the land dominates the sea and that it is, more specifically, the coast of each of the parties which has to constitute the starting line. Only those parts of the coast were considered relevant where one claim encroaches on the other; the Court found such an overlap only in respect of the sea-bed off the coasts between Ras Kapoudia on the Tunisian coast and Ras Tajoura on the Libyan coast. The area for delimitation, consequently, was only that comprised between re-

spectivety the meridian and the latitude passing through these points. The Court then identified several relevant circumstances including not only physical factors such as the change in the direction of the Tunisian coast in the Gulf of Gabes, the situation and size of the Kerkennah Islands and their low tide elevations as well as the isle of D jerba - which finally, however, was not taken into account - but also historic titles which ultimately were not affected by the delimitation adopted (~ Historic Rights). The Court ruled out economic consideration as not having any bearing on the delimitation but went so far as to attribute decisive relevance to the conduct of the parties concerning their own delimitation endeavours involving a line running nearly perpendicularly to the coast at an angle of some 26" east of north from Ras Ajdir. However, the Court underlined that this was not a limit accepted by ~ estoppel or ~ acquiescence but rather one constituting a sort of ~ modus vivendi.

(b) The practical method for delimitution The second part of the judgment concerned the practical method for the application of the rules and principles stated in the first part. The indication of the methods must in the view of the Court be of such a degree of precision that the only task remaining would be the technical one making possible the drafting of the treaty inc, rporating the result of the work of the experts entrusted with the drawing of the delimitation line. This clarification of the task of the Court became necessary because of the differences of opinion existing between the parties as to this part of the request. The Court, first, ruled out the method of equidistance as a mandatory legal principle or a method having some privileged status in relation to other methods. Not only is there no one obligatory method of delimitation in international law, but it is possible to apply more than one method in the same delimitation. Accordingly, the Court was of the opinion that the area close to the coasts of the parties calls for treatment different from that accorded to the areas further off shore. In the first sector the Court started by identifying the circumstance which it found to be highly relevant to the determination of the delimitation method. This circumstance was none other than

CONTINENTAL SHELF CASE (TUNISIA/LIBYAN ARAB JAMAHIRIYA)

the conduct of the parties relating to the 26" line which would, in the eyes of the Court, ensure an equitable result. The Court found in this context that it had to take into account "whatever indicia are available of the line or lines which the parties themselves may have considered equitable or acted upon as such ... " (para. 118). The Court further identified as relevant criteria the "factor of perpendicularity to the coast and the concept of prolongation of the general direction of the land boundary" to ensure an equitable solution (para. 120). Relying on the highly relevant conduct of the parties, in this first sector the Court found the equitable solution in a line running at some 26° east of the meridian at Ras Ajdir up to the intersection of this line with the parallel latitude of the most westerly point on the Tunisian coast in the Gulf of Gabes. In the second section of delimitation the Court took account of the Kerkennah Islands but considered, without further explanation, that it should not go so far as to attribute to these islands full effect, but only half-effect. The Court found the delimitation line, accordingly, by bisecting the angle between the line running from the most westerly point on the Tunisian coast to Ras Kapoudia and the line drawn from that point, too, along the seaward coast of the Kerkennah Islands - that is to say, at an angle of 52° to the meridian, the extension northeastwards of this line depending, however, on the delimitation ultimately agreed to with third States on the other side of the Pelagian Sea. The Court ended this part of the judgment by testing the result with reference to the ----;> proportionality rule, and concluded that the result met the requirements of the proportionality test as an aspect of equity.

(c) Analysis This second part of the judgment is unsatisfactory when compared to the request in the compromis. The Court, in paragraph 2 of the compromis , was requested to indicate the practical method of delimitation. While it may be possible to go so far as to accept that the Court itself drew the delimitation line with such precision as to leave nothing more to the experts than the technical application, it can only be noted with regret that the Court failed to point out a practical method of

97

applying the principles and rules of international law found in accordance with point 1 of the compromis . This failure is due to the fact that the only principle or rule of international law found applicable to delimitation by the Court was that delimitation must be effected according to equitable principles taking into account the relevant circumstances. The Court should have taken the opportunity to clarify and define these equitable principles. It should have given more consideration to the combined equidistance-special circumstances rule elaborated by the 1977 arbitral award and applied repeatedly in practice. This rule which relies on the physical features of the delimitation area provides a guideline for every delimitation process and, thus, minimizes the subjectivism inherent in the evaluation of the special circumstances of the region. Such a rule would have been all the more necessary and helpful since the new law of the sea gives up the natural prolongation concept in favour of a distance principle at least up to 200 miles, thus assimilating the continental shelf concept to that of the ----;> exclusive economic zone. By missing the chance to provide the vague notion of equitable principles with legal dimensions, the Court unnecessarily failed to set guidelines for future delimitation cases, leaving the settlement of the dispute to a subjective appreciation of factors of all kinds. The concern which is supported by this decision is that contrary to what had been emphasized since the J969 judgment, i.e. that continental shelf delimitation is not an exercise of distributive justice, it now seems in fact to be an operation of equitable sharing just as was claimed by a great number of States during UNCLOS III. That the Court has embarked in this direction is the most significant aspect of this decision. The caveat expressed at the end of the judgment, underlining that it is only the present dispute which has been judged and that "no attempt should be made here to overconceptualize the application of the principles and rules relating to the continental shelf" (para. 132), does not change this fact since general weight is inevitably attributed to judgments of the World Court, all the more so in such a significant field as the law of the sea, and especially with regard to continental shelf delimitation.

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CONTINEN:'AL SHELF CASE (TUNISIA/LIBYAN ARAB JAMAHIRIYA)

4. Revision and Interpretation of the Judgment, Judgment of December 10, 1985 By an application dated July 27, 1984, Tunisia seised the Court with several separate requests: a request for revision of the 1982 judgment according to Art. 61 of the Statute, a request for interpretation of the judgment according to Art. 60 of the Statute, and a request for correction of an error. To these requests another was later added requesting the Court 10 order an expert survey. The Court dealt with these requests in a single judgment (ICJ Reports 1985, p. 192). The request for revision referred to the first sector of delimitation and was based on the fact that the course of one of the concessions relied upon by the Court in defining the delimitation in this sector was different from that resulting from the various descriptions given by Libya before the Court. As the decision of the Court was based on the idea of alignment between the concession permits and as, indeed, according to the new finding the concessions insteac overlapped, there was, according to Tunisia, ground for revision of the judgment. Art. 61, paras. 1, 4 and 5 of the Statute set out the conditions for revision, providing that these conditions are met when a fact is newly discovered which "when the judgment was given, [was] unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence". The Court stated that in fact the real coordinates were not known when the judgment was given. This fact, however, could only be a ground for revision if the ignorance of it was not due to negligence. In this respect the Court found that the real coordinates of the concessions had been ob tainable by Tunisia and that it had been ill the interest of Tunisia to obtain them. Thus, the Court concluded that one of the essential conditions for granting revision .was lacking. Although there.fas no need to do so, the Court found it useful to CoI)'$ider also whether the newly discovered fact was "of such a nature as to be a decisive factor" for the decision as required by Art. 61(1). The Court, on this point, too, came to a negative conclusion in the sense that (i) the operative clause of the judgment contained only one precise criterion for the drawing of the delimitation line, namely that it should pass

through two specially defined points and that (ii) the final outcome of the decision would not have been different if the real course of the concession would have been known. Accordingly, the Court concluded that the application for revision was not supportable. Subsidiarily to a negative finding on the revision request, Tunisia had submitted a request for interpretation under Art. 60 of the Statute also regarding the first sector of the delimitation line. Libya objected that Art. 60 was not applicable to an interpretation request, but rather that such a request could only be grounded on Art. 3 of the Special Agreement, on the basis of which the Court was originally seised and which provided that the parties, for explanation or clarification, could only go back to the Court together. On this point, the Court found that Art. 3 of the Special Agreement could not pose an obstacle to a unilateral request for interpretation under Art. 60 of the Statute. As to the conditions of admissibility of the interpretation request under Art. 60, the Court stated that there indeed existed a dispute as to the meaning and scope of the judgment concerning the question whether the passing of the delimitation line through a certain point had been decided with binding force or not. However, as the Court had already stated the meaning and scope of its 1982 judgment in its reasoning on the request for revision, it found nothing to add thereto concerning the interpretation request, which was, thus, dismissed. As to the scope for correction of an error on the coordinates given by the Court in the first sector of the delimitation, the Court found that Tunisia misread the judgment, which only indicated a convenient point and not a point fulfilling other conditions as, for example, non-encroachment upon a certain Tunisian permit. Therefore, there was no room for correcting the judgment. By these findings the Court confirmed its decision on the merits as to the first sector of delimitation. As to the second sector of the delimitation line, Tunisia advanced another request for interpretation concerning the findings that the delimitation line in the first sector was to be drawn "to the point of intersection with the parallel passing through the most westerly point of the Tunisian

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coastline between Ras Kapoudia and Ras Ajdir, that is to say, the most westerly point on the shoreline (low-water mark) of the Gulf of Gabes". There was no indication of a coordinate as to the "most westerly point" given by the Court in the operative part of the judgment but only in the reasoning to it. Thus, there was a dispute between the parties, since Tunisia held that there was no binding decision on this point and Libya held the opposite view. The Court clarified its judgment by defining the most westerly point on the shoreline as the point which is further to the west than any other point on the same shoreline. As for the presence of a wadi, the Court stated that it was referring to the low-water mark and not to the baselines, as Tunisia saw it, so that it was not possible to exclude from its definition of the most westerly point a point located in a wadi. The last point of the judgment concerned the request for an expert survey advanced by Tunisia during the oral proceedings for determining the most westerly point of the Gulf of Gabes. According to Art. 50 of the Statute, the Court may order an expert survey for the purpose of helping the Court to render its decision. As the Court had already given its judgment, which was covered by the doctrine of res judicata, the parties could only obtain a Court-ordered expert survey by presenting a joint request. However, the parties would have to make such a request by means of an agreement. Consequently, there was, for the moment, no cause to order an expert survey. Finally, the Court reminded the parties of their obligation to conclude a treaty for the purpose of delimitation in order to implement the 1982 judgment, an obligation which resulted for the parties out of the Special Agreement by which the Court was seised with the case.

Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Application by Malta for Permission to Intervene, Judgment, April 14, 1981, ICJ Reports (1981) 3-40. Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, February 24, 1982, ICJ Reports (1982) 18-323. Application for Revision and Interpretation of the Judgment of February 24, 1980 in the Case Concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, December 10, 1985, ICJ Reports (1985) 192-252.

Note sur l'arret de la Cour lnternationale de Justice relatif a la delimitation du plateau continental entre la Tunisie et la Libye, AFDI, Vol. 27 (1981) 203-212. K. OELLERS-FRAHM, Die Entscheidung des IGH zur Abgrenzung des Festlandsockels zwischen Tunesien und Libyen: eine Abkehr von der bisherigen Rechtsprechung?, Za6RV, Vol. 42 (1982) 804-814. E. ZOLLER, Recherche sur les methodes de delimitation du plateau continental: a propos de l'affaire TunisieLibye (Arret du 24 fevrier 1982), RGDIP, Vol. 86 (1982) 645-678. Y. BEN ACHOUR, L'affaire du plateau continental tunisolibyen (analyse empirique), Clunet, Vol. 110 (1983) 247-292. E.O. BROWN, The Tunisia-Libya Continental Shelf Case, A Missed Opportunity, Marine Policy, The International Journal of Ocean Affairs, Vol. 7 (1983) 142-162. O.R. CHRISTIE, From the Shoals of Ras Kapoudia to the Shores of Tripoli: The Tunisia/Libya Continental Shelf Boundary Delimitation, The Georgia Journal of International and Comparative Law, Vol. 13 (1983) 1-30. M.B. FELDMAN, The Tunisia-Libya Continental Shelf Case: Geographic Justice or Judicial Compromise, AJIL, Vol. 77 (1983) 219-238. M.-F. LABOUZ, L'affaire du plateau continental tunisolibyen. L'arret de la Cour internationale de justice, Monde arabe, Maghreb Machrek, Vol. 101 (1983) 46-65. H. GHERARI, Un problerne d'actualite: La delimitation du plateau continental tuniso-libyen, Le Mois en Afrique, Vol. 19, No. 215-216 (1984) 39-58. L.L. HERMAN, The Court Giveth and the Court Taketh away: An Analysis of the Tunisia-Libya Continental Shelf Case, ICLQ, Vol. 33 (1984) 825-858. D.C. HODGSON, The Tuniso-Libyan Continental Shelf Case, Case Western Reserve Journal of International Law, Vol. 16 (1984) 1-37.

l.-P. QUENEUOEC,

KARIN OELLERS-FRAHM

CONTINENTAL SHELF, OUTER LIMITS 1. Notion The outer limits of the - continental shelf are its limits vis-a-vis the ocean or, in terms of the 1982 United Nations Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with Corr.), vis-a-vis the - international sea-bed area. They are not the dividing lines between States with adjacent or opposite coasts (- Maritime Boundaries, Delimitation). Whereas delimitation usually is an issue between two or only a few - neighbour States,

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CONTINENTAL SHELF, OUTER LIMITS

the question of the outer limits concerns the coastal State on the one hand and the international community on the other.

2. Historical Evolution of Legal Rules (a) Outer limits under the Convention on the Continental Shelf The question of the outer Iimits of the continental shelf dates back to the very first appearance of the doctrine on the continental shelf. The Truman Proclamation of September 28, 1945 (10 Federal Register 12303; AJIL, Vol. 40 (1946) Supp., pp. 45-46), leaves the issue open. An accompanying press note stated: "Generally, submerged land which is contiguous to the continent and which is covered by no more than 100 fathoms (600 feet) of water is considered as the ccntinental shelf" (13 DeptStateBull 484). The concept of the continental shelf is, at the outset, clearly a geographic one. The outer limits, therefore, were regarded as a fact of nature, as something inherent in the concept. However, geographic configurations all over the world do not correspond to the rather schematic average of 100 fathoms isobath (i.e. 183 metre). The same is true with respect to the 200 metre isobath, indicated on many sea charts. The shelf edge as the geographical end of the continental shelf may be found, if at all, at depths varying between 50 and 550 metres. In some regions of the world there is virtually no continental shelf extending beyond the - territorial sea. Starting in 1950 within the general discussion on - law of the sea matters,.he question of the outer limits was discussed by the - International Law Commission (ILC), which produced three drafts (in 1951, 1953 and 1956, on the subject. The ILC, although feeling the need for a precise definition of the continental shelf, tried to accommodate more far-reaching claims. Consequently, its final draft contains a combination of a rule based on the 200 metre isaban and an exploitability test. The 1958 Conference on the Law of the Sea (- Conferences on the Law of the Sea) was not able to agree on definite limits even beyond the 200 metre isobath (550 and 1000 metre isobaths were proposed but rejected). The 1956 proposal of the ILC subsequently appeared to offer a compromise: it gave an acceptable definition (200

metre isobath) for the then foreseeable future and left, by way of the open-ended exploitability clause, the final limits open. Thus, Art. 1 of the 1958 Convention on the Continental Shelf (UNTS, Vol. 499, p. 311) has the following wording: "For the purpose of these articles, the term 'continental shelf is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands."

(b) Outer limits in the law of the seareformulation process The above-cited definition soon turned out to be unsatisfactory. Much sooner than foreseen by most participants of the 1958 Conference, the deep sea-bed came into the reach of man, whereby its resources became a real object for exploration and exploitation (- Marine Resources; - SeaBed and Subsoil). In the mid-I96Os a discussion on the legal regime of the deep sea-bed started which was taken up by the - United Nations and eventually led to the Third UN Conference on the Law of the Sea. The issue, raised by Malta, of the reservation exclusively for peaceful purposes of the sea-bed and ocean floor and the subsoil thereof, underlying the - high seas, beyond the limits of national jurisdiction emphasized the need to know where the limits of national jurisdiction, i.e. the outer limits of the continental shelf, were or should be (- Jurisdiction of States; _ Maritime Jurisdiction). A broad consensus emerged that the exploitability test did not mean that the oceans should be partitioned by coastal States. However, there was no agreement as to where the outer limits are, whether the definition of the shelf should refer to its geographical equivalent, to the whole of the continental margin or to a distance criterion. In this context, the description of the continental shelf as the natural prolongation of the landmass of the coastal State played an important role. This concept, which was elaborated by the _ International Court of Justice in the - North

CONTINENTAL SHELF, OUTER LIMITS

Sea Continental Shelf Case was initially not meant to serve for defining the outer limits. Nevertheless, it fitted well into the argumentation of those at the Third UN Conference on the Law of the Sea who wished the legal continental shelf to encompass the whole of the continental margin. This view prevailed at the early stages of the Conference. However, the question of how to define the natural prolongation or the continental margin evolved into one of the key issues of the Conference. The principal trends, intensively studied by Negotiating Group 6, were the "Irish formula" defining the continental margin by mainly geomorphological criteria and attempts, especially by the Soviet Union and a group of Arab States, to restrict the limits to a maximum distance line. The final result is contained in Arts. 76, 82 and 84 of the 1982 Law of the Sea Convention. Art. 76, the central provision, is of surprising complexity, but reflects efforts made to harmonize the conflicting views. 3. Current Legal Situation

Art. 76 of the 1982 Convention is not yet in force (~ Treaties, Conclusion and Entry into Force); thus Art. 1 of the Convention on the Continental Shelf continues to be in force for a minority of coastal States. The lack of relevant State practice in recent years makes it difficult to venture any statement on the actual state of ~ customary international law on the subject. It cannot be said that Art. 76 already reflects customary law, but it can be foreseen that it will influence State practice. Concerning the outer limits, Art. 76 distinguishes two different factual situations: (a) Where the outer edge of the continental margin does not extend to a distance of 200 nautical miles from the ~ baselines, the outer limits are determined by the 200 nautical miles distance line. This corresponds with the maximum outer limit of the ~ exclusive economic zone. (b) Where the continental margin as the natural prolongation of the land territory extends beyond the 200 nautical miles distance line, the outer limits are at the outer edge of the continental margin. This definition is by no means self-evident. Thus, it is further stipulated that the deep ocean floor with its oceanic ridges and the subsoil thereof

101

is excluded, and the right of coastal States to establish the outer edge of the continental margin "for the purposes of this Convention" is recognized. To this end the coastal State must first establish the location of the foot of the continental slope. The method for determining this geographic feature is described in the following terms: "In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base." What would constitute evidence to the contrary is not spell out. Thereafter, the coastal State may draw straight lines not exceeding 60 nautical miles in length either connecting fixed points not more than 60 nautical miles from the foot of the slope or the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the slope. It may apply either alternative to different parts of its coasts. However, the resulting line may not exceed the maximum limit of either 350 nautical miles from the baseline or 100 nautical miles from the 2500 metre isobath. The latter alternative is not applicable to submarine ridges except submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs. An exception to this general rule relating to the Bay of Bengal is contained in Annex II of the Final Act of the Conference (~ Bays and Gulfs). With regard to the exploitation by the coastal State of the non-living resources of the continental shelf beyond 200 nautical miles, the coastal State is required to make certain payments or contributions in kind (Art. 82). Art. 76 further stipulates that the coastal State, within 10 years of the entry into force of the Convention for it, shall submit such information to the Commission on the Limits of the Continental Shelf which will be set up under Annex II of the Convention. This Commission shall consist of 21 members, experts in the field of geology, geophysics or hydrography, elected by State parties from among their nationals who shall serve in their personal capacities. The functions of the Commission shall be to consider the data and material submitted by coastal States and to make recommendations. In case of disagreement by the coastal State with these recommendations, this

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State shall, within a reasonable time, make a revised or new submission to the Commission. There is no indication as to what happens if disagreement between the coastal State and the Commission persists. The lines established by the coastal State are, in any case, not subject to the final approval of the Commission or to dispute settlement procedures entered into by it or by the International Sea-Bed Authority, which seems to be: directly affected. Although the definition of the outer limits is not subject to optional exception from dispute settlement by State parties, it is difficult to envisage how another State could legally challenge a definition made by a coastal State within the maximum limits described above. It is true that, in order to be considered "final and binding", the outer limits must be established "on the basis" of the Commission's recommendation. But this wording seems to leave the coastal State a rather large margin for interpretation. Finally, under Art. 84 of the 1982 Convention, the coastal State shall show the outer limits on charts or by lists of geographical coordinates, shall give due publicity to them and shall deposit a copy of each such chart or list with the SecretaryGeneral of the International Sea-Bed Authority.'

.

4. Conclusion

/

/'

~ ..

The question of the outer limits of the continental shelf is not just a technical detail of internationallaw but of great importance with respect to the allocation of sea-bed areas and, thus, sea-bed resources ( - Natural Resources, Sovereignty over). The effect of the gradual emancipation of the legal continental shelf from its geographical equivalent is one of the largest distributions of newly accessible areas in histor}. The introduction into Art. 76 of the 1982 Law of the Sea Convention of maximum distance lines has halted the gradual extension of coastal State claims, albeit at a very far point. The complex formula of Art. 76 and its inherent uncertainties suggest that the outer limits to be established by the coastal State will quite frequently coincide with those maximum lines. Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354 United Nations Convention on the Law of the Sea, December 10,1982 (UN Doc. A/CONF. 62/122 with

Corr.J and Corr.8; UNCLOS III, Official Records, Vel. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). The Legal Regime of Hydrospace (1971). The Preparation of Article 1 of the Convention on the Continental Shelf, Journal of Maritime Law and Commerce, Vol. 3 (1971-1972) 245-305, 445-472,683-723. w. GRAF VITZTHUM, Der Rechtsstatus des Meeresbodens (1972). U.-D. KLEMM, Die seewartige Grenze des Festlandsockels (1976) _ E.D. BROWN, Sea-Bed Energy and Mineral Resources and the Law of the Sea, Vol. 1, The Areas within National Jurisdiction (1984). E.D. BROWN, B. OXMAN,

ULF-DIETER KLEMM

EXCLUSIVE ECONOMIC ZONE 1. Notion: (a) Definition. (b) Authority of the coastal State. (c) A sui generis regime. - 2. Origins and Development of the Concept: (a) 12-mile fishery zone. (b) Preferential fishing rights beyond the territorial sea. (c) Kenyan initiative. (d) Compromise plan. (e) Concessions to land-locked and developing nations. - 3. Authority of the Coastal State: (a) In general. (b) Development of fishery resources: (i) 1982 United Nations Convention. (ii) Conservation and optimum utilization. (iii) Difficul.ties in implementation. (iv) Sanctions. (v) Anadromous, catadromous and sedentary species. (c) Exploitation of sea-bed resources: (i) Relationship to the continental shelf. (ii) Exclusiveness of rights over sea-bed resources. (d) Activities other than the exploitation of natural resources (i) Economic exploitation and exploration. (ii) Marine scientific research. (iii) Preservation of the marine environment. - 4. Delimitation: (a) Provisions of the 1982 Convention. (b) Single or separate maritime boundary. (c) Precedents. - 5. Settlement of Disputes: (a) General scheme. (b) Exemptions from compulsory referral to judicial settlement. - 6. Evaluation.

1. Notion (a) Definition The exclusive economic zone is an area beyond and adjacent to the - territorial sea, not extending beyond 200 nautical miles from the - baseline of the territorial sea, in which the coastal State enjoys. special authority principally for certain economicpurposes. This new institution is now defined in Part V (Arts. 55 to 75) of the United NationsConvention on the Law of the Sea, signed at Montego Bay,

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Jamaica, on December 10, 1982 (UN Doc. AI CONF. 62/122 with Corr.). Even though the Convention has still to come into force, the exclusive economic zone is now generally thought of as an established institution as spelt out in the Convention. Some States have formally claimed an exclusive economic zone as defined in the Convention. The United States made a presidential proclamation on its exclusive economic zone on March 10, 1983 (Proclamation No. 5030, Federal Register, Vol. 48 (1983) p. 10605), and the Soviet Union followed with its decree of February 28, 1984 (Vedomosti, Vol. 47 (1984) p. 174). Nevertheless, practice has been insufficient to speak of norms of ~ customary international law. Thus, the institution of the exclusive economic zone can as yet only be evaluated by looking at both the relevant provisions of the Convention and the discussions at the Third United Nations Conference on the Law of the Sea (UNCLOS III) which preceded them (~ Conferences on the Law of the Sea).

(b) Authority of the coastal State In contrast to that exercisable in the territorial sea, the authority to be exercised by the coastal State in the exclusive economic zone, as provided for in the Convention, is certainly limited; and no activities not mentioned in the Convention as falling within the rights or competence of the coastal State may be placed under its authority. All other States, whether coastal or land-locked, continue to enjoy in the zone the freedoms of ~ navigation and ~ overflight, together with the freedom to lay submarine ~ cables and ~ pipelines and engage in other internationally lawful uses of the sea which would be exercisable under the regime of the ~ high seas.

(c) A sui generis regime The exclusive economic zone is a sui generis regime, and the argument as to whether it still remains a part of the high seas appears to be purely academic, as the traditional presumption of the dualism of the high seas and the territorial sea has been rendered meaningless. Few other concepts have achieved such rapid acceptance in international law as the 200-mile exclusive economic zone, which was unknown in the 1960s but had become unchallengeable by the mid-

1970s. However, there is a question awaitmg future solution: that is, whether the exclusive economic zone will have to be claimed by the action of individual coastal States. or whether it exists ipso jure as an area that cannot be detached from the land territory, like the territorial sea. In this respect, no clear interpretation has yet been put forward.

2. Origins and Development of the Concept (a) 12-miie fishery zone The concept of the exclusive economic zone is not unrelated to the tendency. in the post-war period, of some coastal nations in Latin America to extend their maritime ~ sovereignty for fishing purposes over offshore zones, sometimes extending up to 200 miles (~ Fishery Zones and Limits). Also relevant is the fact that, at UNCLOS I in 1958 and UNCLOS II in 1960, the United States, sensitive to the question of the navigation of vessels, particularly ~ warships, in the offshore areas of coastal nations, was eager to restrict the territorial sea to limits as narrow as possible (if not three miles) and was prepared to forgo its fishery interests in the offshore areas of other nations in return for guarantees for the navigation of warships in offshore areas of other coastal States. Thus, a compromise was suggested by the United States, whereby the 12-mile fishery zone would be rraded for a narrower territorial sea. However, the United States' proposal of a package-deal involving a 12-mile fishery zone and a narrower territorial sea did not bear fruit in either 1958 or 1960.

(b) Preferential fishing rights beyond the territorial sea In 1970 the United States ushered in a new era, proclaiming its maritime policy in such terms as to ensure that the concept of preferential fishing rights beyond this limit of the territorial sea coud be offered as a compromise, in order again 0 secure free navigation for warships and military ~ aircraft in or above certain specific ~ straits which might otherwise have been included in proposals then being made for a 12-mile territorial sea for coastal nations (statement by President Nixon of May 23, 1970). In 1971 the United States attempted to embody this idea in the proposal it submitted to the UN

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Sea-Bed Committee, once again so as to ensure that preferential fishing rights would be recognized in areas beyond the 12-mile territorial sea of coastal States in return for a guarantee of freedom of passage for warships and military aircraft through certain straits which would otherwise have been part of the territorial sea (Draft Articles on the Breadth of the Territorial Sea, Straits, and Fisheries, July 1971, UN Doc. A/AC.138/SC.Il/ LA and Corr. 1). On the other hand, by that time the concept of fishing interests beyond their own 12-mile territorial sea was already perceived by the ~ developing States as an acquired right and not as something to be granted in return for concessions. These nations simply wished to institutionalize the regime of a fisheries zone which would extend as far from the coast as possible. They were confident that this ambition would eventually be realized and were not willing to wait for the somewhat ambiguous preferential fishing rights offered by the United States' proposal. (c) Kenyan initiative The phrase "exclusive economic zone" was introduced for the first time by the representative of Kenya at the annual meeting of the ~ AsianAfrican Legal Consultative Committee held in Lagos, Nigeria, in January 19n. A breadth of 200 miles was expressly mentioned in the Committee's report. It soon became apparent that the proposal might command wider support from many of the developing States of Africa and Asia, which had substantial economic interests based on the resources in their adjacent waters (~ Marine Resources). With overwhelming support from the developing nations, Kenya formally submitted its proposal for a 2oo-mile exclusive economic zone to the UN .Sea-Bed Committee in the surrmer of 1972 (Draft Articles on Exclusive Economic Zone Concept (UN Doc. A/AC.138/SC.Il/L 10), August 1972). While freedom of navigation was still to be guaranteed, the resources of the zone, whether living or mineral, and whether located in or under the ocean, would be placed under the jurisdiction of the coastal State. This proposal was considered by many of the developing nations of Africa and Asia to be a strategy for the realization of what they regarded as their legitimate special interests.

Latin American countries, which had claimed 200-mile maritime sovereignty during the previous 20 years, naturally gave their strong support. (d) Compromise plan Unable to remain indifferent to such a development, the United States seemed willing to make any concessions which might be needed to guarantee the freedom of transit through straits. It began to negotiate a compromise on the resource aspect, along the lines of the newly-suggested zone, and prepared to amend its original proposal of 1971 for preferential fishing rights. By the summer of 1973 a flood of proposals on the 2oo-mile zone had been introduced at the UN Sea-Bed Committee. While moves were made by the Latin American nations to introduce a much broader concept of the "patrimonial sea", the nations supporting the Kenyan concept of the 2oo-mile zone tended to contemplate some concessions, proposing that an obligation concerning the ~ conservation of living resources might be imposed upon the coastal State and that the coastal State might allow nationals of other States to fish in its exclusive economic zone subject to such terms, conditions and regulations as it might prescribe. Thus, the concept of a 2oo-mile exclusive economic zone emerged between 1973 and 1974 in the course of the deliberations in the UN Sea-Bed Committee and at UNCLOS III, in spite of the diversity of proposals concerning both the legal nature of the zone and the competence to be exercised by coastal States. No further criticism of this 2oo-mile concept was countenanced. By 1975, only a few years after the introduction by Kenya in 1972 of the idea of the exclusive economic zone, the basic concept was so well established that no challenge to it was forthcoming from any country. (e) Concessions to land-locked and developing nations It had become clear in 1977 that the interests of the ~ land-locked and geographically disadvantaged countries and, more particularly, the developing nations in this category, could not be overlooked. Following negotiations among delegations, a compromise solution was achieved on the regime of the zone by amalgamating the views

EXCLUSIVE ECONOMIC ZONE

of the group of coastal States and those of the group of maritime nations, thus recognizing access by the latter to fishing grounds in the zones of coastal States in a text which is now incorporated in the 1982 Law of the Sea Convention.

3. Authority of the Coastal State (a) In general The 1982 Convention provides that the coastal State has authority which may be classified according to its objects as follows: (1) sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources, whether living or non-living, of the superjacent waters and of the ~ sea-bed and its subsoil and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; (2) jurisdiction with regard to the establishment and use of ~ artificial islands, installations and structures, marine scientific research, and the protection and preservation of the ~ marine environment; and (3) other rights and duties provided for in the Convention (Art. 56). It is provided under the 1982 Convention that the coastal State will have jurisdiction over the above activities placed under its authority, whether carried out by nationals or by foreigners. It will apply and enforce rules and regulations covering these activities when undertaken by nationals of any country. Any person charged with the violation of these rules and regulations may be detained by the police of the coastal State and punished, if found guilty, by the courts of that State.

(b) Development of fishery resources (i) 1982 United Nations Convention Since the concept of the exclusive economic zone originated in claims to offshore fishery zones chiefly for the purpose of monopolizing coastal fisheries, problems regarding the jurisdiction of the coastal State over fisheries have been accorded much attention in the 1982 Convention. Thirteen of the twenty-one articles in Part V relating to the exclusive economic zone are devoted to fisheries regulations.

105

(ii) Conservation and optimum utilization Although the coastal State has sovereign rights in the zone for fishery purposes, it also has certain obligations regarding the conservation and the optimum utilization of fishery resources. Because of these new concepts, the zone differs from the territorial sea or the fishery zones familiar in past years. In the first place, the coastal State must now determine the size of the allowable catch of the fishery resources in its zone and must ensure, through proper conservation and management measures, that the maintenance of living resources is not endangered by over-exploitation. Secondly, the coastal State must determine its own capacity to harvest the fishery resources of the zone, and if it does not itself have the capacity to harvest the entire allowable catch, it must, through agreements or other arrangements, permit access to the surplus of the allowable catch to other States. When giving access to other States, the coastal State must take all relevant factors into account. In particular, access to the surplus is guaranteed to land-locked States and geographically disadvantaged States, the more so if they are developing nations. (iii) Difficulties in implementation There will be some difficulties to be overcome in implementing the scheme which requires the coastal State to determine both the allowable catch for the purpose of conservation and its capacity to harvest these fishery resources, and then to give access to the surplus of the allowable catch to other States. It may not be easy to perform the obligation of determining the annual allowable catch. Conservation measures may also place restrictions not only on the annual allowable catch, but also on the species which may be caught, on fishing seasons, fishing areas, and even fishing gear. It is also to be noted in this connection that the coastal State's capacity to harvest living resources may not always rely solely on the capital and technology of its own national economy. Thus, any less technologically developed country may in theory be considered to have the capacity to harvest the total allowable catch. Furthermore, it remains to be seen whether the idea of allocating the surplus of the resources

EXCLUSIVE ECONOMIC ZONE

to other States, including land-locked and geographically disadvantaged States, has been welldefined in the Convention. (iv) Sanctions

.

Though a violation of the fishery regulations in the zone is punishable pursuant to the law of the coastal State, there is a restriction in the Convention on the type of - sanction which may be applied. The coastal State is obliged, upon the . posting of a reasonable bond or other security, to proceed expeditiously to release any foreign vessels and crews which may have been detained for alleged violations of coastal fishery regulations. Penalties are restricted to the imposition of a fine. This concept of sanctions was introduced because it was feared that an unreasonably prolonged detention of fishing vessels might cause an enormous amount of damage to the fishing industry, but it will certainly give rise to some difficult problems in practice. For instance, although a coastal State faithful to the Convention is expected to proceed expeditiously to release an arrested vessel and its crew, the occurrence of disputes over the amount of bond or other security can be predicted; indeed, no rule exists in international law that suggests a universal standard for fines to be imposed for violations of coastal regulations by foreign vessels. (v) Anadromous, catadromous and sedentary species

Fishing of anadromous stocks and catadromous species is in principle restricted to the exclusive economic zone of the particular coastal States which have primary responsibility for their maintenance. On the other hand, the sedentary fisheries in the zone, which are defined in terms of continental shelf resources, are not subject to the obligations concerning the conservation and optimum utilization of resources of the exclusive economic zone (- Fisheries, Sedentary; - Pearl Fisheries). (c) Exploitation of sea-bed resources (i) Relationship to the continental shelf

The competence of the coastal State in respect of the exploitation of natural resources also extends to the resources of the sea-bed and its

subsoil. According to the Convention, however, the rights of the coastal State in this respect are to be exercised in accordance with Part VI, dealing with the regime of the - continental shelf, which has been in existence for the past few decades. Yet, in spite of the provision referred to, the provisions on the continental shelf, likewise, merely prescribe sovereign rights over the exploration of submarine areas and the exploitation of their resources, without specifying how these rights are to be exercised. At all events, the sovereign rights to be exercised by the coastal State for the purpose of exploring and exploiting the resources of submarine areas in the zone have been expressly subsumed under the regime of the continental shelf. (ii) Exclusiveness of rights over sea-bed resources

It is clear that the coastal State has exclusive rights over the resources of the sea-bed and its subsoil in the continental shelf, and is subject to none of the obligations regarding their conservation or optimum utilization which would otherwise have been imposed in the case of the ordinary living resources in the zone. It is particularly to be noted that sedentary species, together with mineral deposits, are treated as sea-bed resources. Unlike the case of fishing of swimming species, "there is no restriction on the type of sanction which may be imposed in the event of infringements by foreigners of sovereign rights over the sea-bed and subsoil of the exclusive economic zone, including even sedentary species located . there. (d) Activities other than the exploitation of natural resources (i) Economic exploitation and exploration

The 1982 Convention provides that in the exclusive economic zone the coastal State is entitled to exercise authority over certain activities other than the development of marine resources. In spite of the somewhat equivocal provisions of the Convention, there remains no doubt that the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds, and the construction,

EXCLUSIVE ECONOMIC ZONE

operation and use of artificial islands, installations and structures for economic purposes in the zone, fall within the exclusive competence of the coastal State.

(ii) Marine scientific research The coastal State has the right to regulate, authorize and conduct -+ marine research in the zone, which may only be pursued with its consent. Consent, however, shall be granted in normal circumstances for research exclusively for peaceful purposes and in order to increase scientific knowledge.

(iii) Preservation of the marine environment The coastal State has some responsibilities for the preservation of the marine environment in the exclusive economic zone (-+ Marine Environment, Protection and Preservation). Dumping within the zone is not to be carried out without the express prior approval of the coastal State, and the coastal State is entitled to enforce the rules and regulations with regard to dumping within the zone. The coastal State may adopt laws and regulations for the prevention, reduction and control of pollution from vessels in the zone, and it may also institute proceedings in respect of any violation of the rules and regulations with regard to pollution occurring within the zone. Where there are clear grounds for believing that a vessel has committed a violation within the zone of applicable international rules and standards concerning pollution, the coastal State may require the vessel to give relevant information and may also undertake physical inspection of the vessel if such information has been refused. Furthermore, where there is clear objective evidence that the vessel has committed a violation within the zone resulting in a discharge causing major damage to the coastal State, this State may institute proceedings, including detention of the vessel.

4. Delimitation (a) Provisions of the 1982 Convention No rule has been framed in the 1982Convention for the delimitation of the zone between States

107

with opposite or adjacent coasts, except for a somewhat equivocal provision which states that the delimitation "shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice in order to achieve an equitable solution" (Art. 74). The suggestion that the delimitation of the zone should be effected by agreement simply represents the procedural aspect of the problem and indicates that unilater.al attempts at delimitation would not be regarded as valid under international law. Its effect is merely to confirm that a general rule for the conduct of inter-State relations is applicable to the subject of delimitation. The reference to Art. 38 of the Statute of the -+ International Court of Justice (ICJ) is of little practical assistance in deciding, in the absence of any more specific designation, which of the principles and rules from the entire panoply of customary, general, positive and conventional law are in fact of particular significance. The heart of the provision is the idea of an equitable solution, but the Convention does not answer the question of how to define an equitable solution, and no method is specified for reaching one (-+ Equity in International Law).

(b) Single or separate maritime boundary A further question is raised by the fact that during UNCLOS III the delimitation of the exclusive economic zone and that of the continental shelf were dealt with together, despite separate discussions on the question of outer limits, and no doubts were expressed as to whether the same principles and rules should be applicable in either case. Although the principles applicable in each case may be the same, their practical application might vary depending on the context, owing to the fact that, while criteria of distance are intrinsic to the exclusive economic zone, the continental shelf is defined in more geological and geographical terms. No definite view has been put forward as to whether the delimitation of these two areas, the exclusive economic zone and the continental shelf, should be identical, and what factors and considerations would prevail to give one regime preeminence over the other (-+ Maritime Boundaries, Delimitation).

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(c) Precedents The concept of fishery zones is not necessarily the same as that of the exclusive economic zone, and has not been institutionalized in international law. A substantial number of agreements have been concluded between neighbouring States for the purposes of the delimitation of fishery zones. In the negotiations leading to these agreements, the diplomatic strategies of the parties have relied on various factors such as the 'configurations of coastlines, the existence of -. islands, etc., but the concept of equidistance has always been a guiding principle. There has scarcely been any precedent for the delimitation of the newly-institutionalized exclusive economic zone, and practices and precedents of bilateral negotiations may be required in order to define any principles and rules governing such delimitation. However, any principle other than equidistance may hardly be proposed for that purpose.

5. Settlement of Disputes (a) General scheme States parties to the 1982 Convention can seek settlement by a means of their own choice and may be bound to refer the disputes m a procedure that entails a binding decision through a general, regional or bilateral agreement. Alternatively, the use of a conciliation commission chosen from the list of conciliators is suggested (--+ Conciliation and Mediation). If no settlement is reached by recourse to any of these procedures, the dispute must be submitted to a judicial body, that is, to the International Tribunal for the Law of the Sea to be set up in Hamburg, the ICJ, an ad hoc arbitral tribunal consisting of arbitrators experienced in maritime affairs, or a special arbitral tribunal composed of experts on fisheries, marine environment or marine scientific research on an ad hoc basis (--+ Arbitration), depending on the choice made in advance by a State. If the same procedure has not been accepted by both sides, the dispute may be submitted only to an arbitral tribunal (--+ Law of the Sea, Settlement of Disputes).

(b) Exemptions from compulsory referral to judicial settlement It is important to note that some disputes relating to the exclusive economic zone are

exempted from any compulsory procedures entailing binding decisions of a court or tribunal. Only very limited types of dispute with regard to the exercise of the coastal State's sovereign rights or jurisdiction in the zone, arising, for example, from the alleged violation of the freedom and rights of navigation, overflight, the laying of submarine cables, etc., are subject to such procedure. In addition, the coastal State is not obliged to submit to such a procedure disputes relating to its sovereign rights with respect to the living resources in the zone, including discretionary powers to determine the allowable catch, its harvesting capacity, the allocation of surpluses to other States and the terms and conditions established in its conservation and management laws and regulations, and disputes arising from the exercise of its right or discretion in connection with marine scientific research in the zone or its order for suspension or cessation of a research project. Furthermore, with regard to a dispute relating to boundary delimitation of the exclusive economic zone, a State may declare that it does not accept the procedure for reference to the court or a tribunal. It may thus be concluded that various kinds of disputes relating to the exclusive economic zone may not compulsorily be subject to the procedures before a court or tribunal; some of these disputes may compulsorily be submitted only to an ad hoc conciliation commission. 6. Evaluation

The 200-mile exclusive economic zone is a new concept in international law. The policy of allotting to each of the coastal nations the ocean resources, living or mineral, within offshore areas extending up to 200 miles (which would cover half of the entire ocean) might originally have attracted criticism from the standpoint of its long-term implications for the future of the world. However, the concept is no longer challengeable today. Nevertheless, a great many difficulties will necessarily by encountered once the concept is put into practice, despite the detailed provisions in the 1982 Convention and the protracted discussions among the delegates of almost all the nations in the world during the preparation of the Convention. To become firmly established in international law, this new concept requires practices and precedents which have yet to be provided.

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The Exploitation and Conservation of the Resources of the Sea (2nd ed. 1959) 13-85, 201-210. S.ODA, International Control of Sea Resources (1963) 13-55, 97-111, 136-139. S. ODA, International Law of the Resources of the Sea, RdC, Vol. 127 (1969 II) 373-401; also as separate reprint with supplements (1979) 3-40. L.M. ALEXANDER and R.D. HODGSON, The Impact of the 200 Mile Economic Zone on the Law of the Sea, San Diego Law Review, Vol. 12 (1975) 569-579. J.-P. OUENEUDEC, La zone econornique, RGDIP, Vol. 79 (1975) 321-353. T. TREVES, La Communaute europeenne et la Zone economique exclusive, AFDI, Vol. 12 (1976) 653-677. T. CLINGEN, Emerging Law of the Sea: The Economic Zone Dilemma, San Diego Law Review, Vol. J4 (1977) 530-583. F. MIRVAHAVI, The Conservation and Management of Fisheries in the Exclusive Economic Zone, Journal of Maritime Law and Commerce, Vol. 9 (1977/1978) 225-250. J.e. PHILLIPS, The Exclusive Economic Zone as a Concept in International Law, ICLQ, Vol. 26 (1977) 585-618. L. GUNDLING, Die exklusive Wirtschaftszone, ZaoRV, Vol. 38 (1978) 616-658. A.O. ADEDE, Towards the Formulation of the Rule of Delimitation of Sea Boundaries between States with Adjacent or Opposite Coasts, Virginia Journal of International Law, Vol. 19 (1979) 207-255. R.-J. DUPUY, L'ocean partage (1979) 66-103. W.e. EXTAVOUR, The Exclusive Economic Zone: A Study of the Evolution and Progressive Development of the International Law of the Sea (1979). G. MOORE, National Legislation for the Management of Fisheries under Extended Coastal State Jurisdiction, Journal of Maritime Law and Commerce, Vol. 11 (1979/1980) 153-182. S. ROSENNE, Settlement of Fisheries Disputes in the Exclusive Economic Zone, AJIL, Vol. 73 (1979) 89-104. C.R. SYMMONS, The Maritime Zones of Islands in International Law (1979) 112-:129. J.A. VARGAS, The Legal Nature ofthe Patrimonial Sea: A First Step Towards the Definition of the Exclusive Economic Zone, GYIL, Vol. 22 (1979) 142-177. w. RIPHAGEN, La navigation dans Ie nouveau droit de la mer, RGDIP, Vol. 84 (1980) 144-177. W.T. BURKE, National Legislation on Ocean Authority Zones and the Contemporary Law of the Sea, Ocean Development and International Law, Vol. 9 (1981) 289-322. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982) 552-581. J. CARROZ, Les problemes de la peche dans la Convention sur Ie Droit de la mer et la pratique des Etats, in: D. Bardonnet and M. Virally (eds.), Le Nouveau Droit International de la Mer (1983) 177-229. J. EVENSEN, The Delimitation of Exclusive Economic Zones and Continental Shelves as Highlighted by the FY GARCIA AMADOR,

International Court of Justice, in: c.L. Rozakis and C.A. Stephanou (eds.), The New Law of the Sea (1983) 107-154. CA. FLEISCHER, The Exclusive Economic Zone under the Convention Regime and in State Practice, in: A.W. Koers and B.H. Oxman (eds.), The 1982 Convention on the Law of the Sea (1983) 241-285. L. GUNDLING, Die 200 Seemeilen-Wirtschaftszone (1983). s. ODA, Fisheries under the United Nations Convention on the Law of the Sea, AJIL, Vol. 77 (1983) 739-755. P.e. RAO, The New Law of Maritime Zones (1983) 174-292. H.B. ROBERTSON, Jr., Navigation in the Exclusive Economic Zone, Virginia Journal of International Law, Vol. 24 (1983/1984) 865-915. . L. CAFLISCH, La delimitation des espaces entre Etats dont les cotes se font face ou sont adjacentes, in: R.-J. Dupuy and D. Vignes (eds.), Traite du Nouveau Droit de la Mer (1985) 375-440. R.-J. DUPUY. La mer sous competence nationale, in: R.-J. Dupuy and D. Vignes (eds.), Traite du Nouveau Droit de la Mer (1985) 219-273. S.P. JAGOTA, Maritime Boundary (1985). RW. SMITH, Exclusive Economic Zone Claims. An Analysis and Primary Documents (1986). SHIGERU ODA

FISHERIES, Fisheries

COASTAL

see

Coastal

FISHERIES, INTERNATIONAL REGULATION 1. Notion It was Grotius who first advocated the freedom

of fishery as a principle of ~ international law based upon the premise of fishery resources being inexhaustible. Although it was soon recognized that the premise was incorrect, this principle has indeed governed international regulations concerning fishing. The concept of freedom of fishing has been enshrined in Art. 2 of the 1958 Geneva Convention on the High Seas (UNTS, Vol. 450 (1963) p. 82), in Art. 1 of the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (UNTS, Vol. 559 (1966) p. 285) as well as in Art. 87 of the 1982 Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with Corr.). This principle consists of two different though interrelated rules which have direct impact upon the allocation of fishery re-

110

FISHERIES, INTERNATIONAL REGULATION

sources: first, the rule of free and equal access of all States to the fishery resources of the ~ high seas; and second, the rule that only such States which actively participate in exploiting fishery resources may draw profit therefrom. In accordance with these rules, the principle of freedom of fishing precludes the regulation of this resource through the issuance of licenses. It has not always been recognized that the principle has a distributive effect. States having a technically advanced fishing fleet are favoured over States which undertake coastal fishing only. This is one reason why the coastal States, especially the ~ developing States among them, successfully advocated a redistribution of the fishery resources at the Third UN Conference on the Law of the Sea through the seaward extension of coastal State jurisdiction (~Fishery Zones and Limits; ~ Exclusive Economic Zone; ~ Coastal Fisheries). The redistributing of fishery resources was not the only motive for the extension of coastal State jurisdiction. Such an extension also had roots in the understanding that only coastal States were in the position to effectively protect fisheries against over-exploitation (~ Conservation of Living Resources -of the High Seas). The conservation measures which, under the principle of freedom of fishing, were meant to function through the self-restraint of the States engaged in fishing, as specified by the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, have failed to stop a sharp worldwide decline in the abundance of fish. To this extent, the ~ fishery commissions have also turned out not to be an effective mechanism for the protection of fish stocks against over-exploitation.

2. Historical Evolution of Legal Rules The idea of international conservation of high seas fish resources to prevent over-exploitation by limiting the freedom of fishing was first embodied -in the 1911 treaty providing for the preservation and protection of fur seals (.--. Seal Fisheries). This treaty was based upon the premise that the freedom of exploiting a renewable resource must not result in endangering the stock. This particular principle has been enshrined in a more general way in Art. 2 of the Geneva Convention on the High Seas, according to whi: h the freedom of fishing shall be exercised "witt i casonablc regard

to the interests of other States in their exercise of the freedom of the high seas". In the deliberations of the ~ International Law Commission (ILC) during preparation of the Geneva conventions on the ~ law of the sea, two different approaches to the conservation of fish stocks on the high seas were voiced: first, the establishment of international fishery commissions which exercise appropriate regulatory functions; and second, the extension of coastal State jurisdiction. The ILC tried to strike a compromise solution. In cases where fishing was untertaken by nationals of one State only, the conservation measures were to be issued by this State. If, however, the nationals of different States participated in fishing activities, conservation measures were to be enacted through negotiations among the States concerned. Coastal States had, according to the proposals of the ILC, the right to participate in these negotiations if they had a direct interest in sustaining fish stocks adjacent to their coastal waters. In exceptional cases, they even had the right to enact conservation regulations unilaterally (ILC Yearbook, Vol. 2 (1955) p. 19, at p.29). The ILC proposal is evidently based upon a national approach, according to which the protection of fish stocks is an objective to be achieved primarily by States, not by international organizations. However, it is primarily the flag State, rather than the coastal State, which was made responsible for the protection of fish stocks in the high seas. The question whether coastal or flag States should be held responsible for protecting the fish stocks of the high seas was discussed again at the 1958 Geneva Conference on the Law of the Sea (UNCLOS I; ~ Conferences on the Law of the Sea). The solution agreed upon follows the proposal made by the ILC, emphasizing slightly more that the coastal 'States had a special interest in the maintenance of the productivity of the living resources in any area of the high seas adjacent to their ~ territorial sea. Thus, in regard to such an area a coastal State was entitled to take part on an equal footing in any research and regulation pertaining to the conservation of the living resources of the high seas even though its nationals did not carryon fishing there (Art. 6 of the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas).

FISHERIES, INTERNATIONAL REGULATION

However, this rule fell short of meeting the demands of the coastal States. They were not only interested in having a possibility to participate in regulating fishing on the high seas, but requested preferential fishing rights as well. Although the Convention on Fishing was silent on the allocation of fishery resources, it nevertheless had a distributive effect. As the fishery resources of the high seas were apportioned through free competition between the various users, the Convention favoured the technically well-equipped fishing fleets of some industrialized States against traditional coast-bound fishing (for a detailed factual analysis see Balasubramanian). The Convention on Fishing andConservation of the Living Resources of the High Seas was only ratified by 34 States accounting for less than 25 per cent of the world catch. Since the Latin American coastal States were in favour of preferential fishing rights or an extension of coastal State jurisdiction, none became members. Likewise the major long-distance fishing States such as Japan, the Soviet Union and the Federal Republic of Germany refrained from acceding to the Convention. They saw no reason for accepting restrictions as long as the most important coastal States such as Canada, Peru and Ecuador were not willing to commit themselves to such rules. Thus, the legal significance of the Convention on Fishing was limited. The period following UNCLOS I (1958) and II (1960) was characterized by two antagonistic trends: the unilateral extension of coastal State jurisdiction and the regulation of fishing on the high seas by fishery commissions. Between 1958 and 1971, 91 coastal States claimed either extended coastal waters or special fishery zones. This development reached its peak from 1976 to 1979 when, ,following the first negotiating text of UNCLOS III, 187 such claims were made, 60 to the territorial sea and 59 to an exclusive economic zone. These figures' notwithstanding, only half of the currently independent coastal States gained independence after 1958, while 56 of the claims made during 1976 to 1979 originated from newly independent coastal States.

3. Deliberations Leading to the Convention on the Law of the Sea During the negotiations in the Committee on the Peaceful Uses of the Sea-Bed and the Ocean

111

Floor beyond the Limits of National Jurisdiction and UNCLOS III, four different approaches were proposed in order to deal with the conservation and allocation of fishery resources. Both Japan (UN Doc. A/AC.138/SC.II/L.12) and the Soviet Union (UN Doc. A/AC.138/SC.II/L.6) advocated the system established by the Convention on Fishing for the fish stocks off the 12 mile territorial waters, while at the same time strengthening the powers and functions of coastal States. According to these proposals, the coastaLStates had the right to inspect fishing vessels outside their coastal waters to ensure compliance with the regulations concerning fishing. Furthermore, these proposals incorporated the system of preferential rights for coastal States and especially for the developing countries among them concerning fishing in waters adjacent to their coastal waters. Another proposal by eight European States intended to establish a clearly defined zone in which the coastal States should have preferential rights of fishing and advocated, in addition, strengthening of the powers and functions of fishery commissions (UN Doc. A/CONF. 62/C.2/ LAO). Quite different was the approach suggested by the United States (UN Doc. A/AC.138rse.IIr L.9) and Canada (UN Doc. A/AC.138/SC.II/ L.8). They distinguished between coastal living stocks, anadromous species and highly migratory species, the two former to be administered by the coastal State, the latter by regional fishery commissions. The majority of coastal States at UNCLOS III, however, favoured the establishment of exclusive economic zones, thus assigning the management of about 95 per cent of the world fishery resources to the coastal States.

4. The Rules Concerning High Seas Fisheriesin the 1982 Convention on the Law of the Sea The rules concerning high seas fisheries are rudimentary at best. According to Art. 87 of the 1982 Law of the Sea Convention, all States enjoy freedom of fishing. Art. 116 reiterates this principle to a certain degree by stating that all States have the right for their nationals to engage in fishing, subject not only to their treaty obligations, but also to the rights, duties and interests of coastal States and the provisions of Arts. 117 to 119.

112

FISHERIES, INTERNATIONAL REGULATION

The rights and duties as well as the interests of coastal States mentioned in Art. 116 (b) embrace the rights of coastal States concerning "straddling stocks", i.e. the same stocks or stocks of associated species present both within the exclusive economic zone and in an area beyond and adjacent to the zone (Art. 63 (2)); highly migratory species (Art. 64); marine mammals (Art. 65); anadromous stocks (Art. 66); and catadromous species (Art. 67). Arts. 66 and 67 contain an explicit restriction on the freedom of fishing as provided by Art. 116, because anadromous stocks are managed by the coastal State of origin and catadromous species by the coastal States in whose waters these species spend the greater part of their life cycle. With respect to straddling stocks and highly migratory species, the coastal States have the right to participate in the formulation of regulations ensuring conservation and promoting the objective of optimum utilization of such species throughout the region, both within and beyond the exclusive economic zone. As to marine mammals, the coastal States have the right to regulate their conservation areas more strictly. Apart from these exceptions, the management of the living resources of the high seas is vested in the States whose nationals are engaged in the exploitation of the respective stocks (Art. 117). The relevant rules are to be elaborated through cooperation of the States concerned or through subregional or regional fisheries organizations. To this extent, the 1982 Law of the Sea Convention does not alter the regime established by the Convention on Fishing and Conservation of the Living Resources of the High Seas. By use of the word "management" instead of "conservation", Art. 118 indicates that States engaged in fishing on the high seas may agree on national quotes. The idea of allocation has, thus, heen introduced into the regime governing fishery on the high seas. Art. 119 describes the objective which should govern future conservation measures for the living resources of the high seas. Although it speaks of measures which are designed "to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield", "maximum sustainable yield" means the "optimum" sustainable yield. In determining the optimum yield, environmental and economic fac-

tors as well as the interdependence of associated or dependent stocks have to be taken into account (Art. 119 (1)(a) and (b)). This provision is only slightly more precise than the formula used in Art. 2 of the Convention on Fishing. However, one idea has been added to Art. 119 (1 )(a) which cannot be found in the Convention on Fishing. In determining what has been referred to as "maximum sustainable yield", the special requirements of the developing States have to be taken into account. This clause is exotic in the context of a principle designed to establish the exploitability of a renewable resource.

5. Evaluation The rules of the 1982 Law of the Sea Convention are not satisfactory from the point of view of conserving high sea fish stocks. Their principal deficiency is that they do not provide for adequate mechanisms in order both to establish the optimum sustainable yield, and to enact and control the implementation of appropriate conservation measures. The reason why no innovative regime for the management of high seas fish stocks was elaborated is that UNCLOS III concentrated upon the establishment of the exclusive economic zone. Convention on Fishing and Conservation of the Living Resources of the High Seas, April 29, 1958, UNTS, Vol. 559 (1966) 285-342. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol.21 (1982) 12611354). Die Fischerei auf Hoher See, Za6RV, Vol. 38 (1978) 659-709. S.J. HOLT, Marine Fisheries, Ocean Yearbook, Vol. 1 (1979) 38-83. P. BALASUBRAMANIAN, Fishery Provisions of the ICNTPart 1, Marine Policy, Vol. 5 (1981) 313-321; Part 2, Marine Policy, Vol. 6 (1982) 27-42. P. COPES, The Impact of UNCLOS III on Managementof the World's Fisheries, Marine Policy, Vol. 5 (1981) 217-228. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982) 510-569. E.A. KEEN, Common Property in Fisheries: Is Sole Ownership an Option?, Marine Policy, Vol. 7 (1983) 197-211. s. ODA, Fisheries under the United Nations Convention on the Law of the Sea, AJIL, Vol. 77 (1983) 739-755. W.T. BURKE, The Lawof the Sea Convention Provision on Conditions of Access to Fisheries Subject to National R. WOLFRUM,

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Jurisdiction, Oregon Law Review, Vol. 63 (1984) 73-119.

and E. MILES, The New Law of the Sea and the Access to Surplus Fish Resources: Bioeconomic Reality and Scientific Cooperation, Marine Policy, Vol. 10 (1986) 192-200. M. DAHMANI, The Fisheries Regime of the Exclusive Economic Zone (1987).

S. GARCIA, J.A.GULLAND

RUDIGER WOLFRUM

FISHERIES, SEDENTARY 1. Notion As distinguished from fishing in coastal waters or on the ~ high seas (~ Fisheries, International Regulation), sedentary fisheries do not relate to freely swimming marine species but to a particular variety thereof living in close physical contact with the ~ sea-bed and subsoil of the ~ continental shelf. While some of these species are immobile, others are characterized by their peculiar mode of locomotion or propulsion. They include, among others, chanks, oysters, mussels, clams, scallops, sponges, corals and crustacea such as lobsters, crabs and shrimps. It is only beyond the outer limit of the ~ territorial sea that sedentary species became a matter of international legal concern. Here, a number of coastal States claimed historical and exclusive rights to sedentary fisheries resources off their coasts on the basis of prescriptive title (~ Historical Rights; ~ Prescription). Later, sedentary fisheries were incorporated into the continental shelf regime. They became a natural resource of the shelf over which the coastal State exercised sovereign rights (~ Marine Resources). Consequently, sedentary fisheries were exempted from the regime of high seas fisheries. The first United Nations Conference on the Law of the Sea codified the legal regime of the continental shelf for the first time (~ Conferences on the Law of the Sea). Art. 2 (1) and (4) of the Convention on the Continental Shelf of April 29, 1958 (UNTS, Vol. 499, p. 311) provide: "The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources" (Art. 2 (1».

.

_.•..

"The natural resources referred to in these articles consist of the mineral and other nonliving resources of the seabed and sub-soil together with living organisms belonging to the sedentary species, that is to say, organisms which, at the harvestable stage, either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil" (Art. 2(4». These provisions were mere treaty law in 1958. After entering into force in 1964 they became binding only upon the parties to the Convention. They can now be considered as having gained the status of rules of ~ customary international law, even though a precise list of the marine species covered thereby does not exist. As a result of UNCLOS III, and without major discussion, a literally identical definition of sedentary species was incorporated into the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.; Art. 77(4». However, this definition has to be interpreted in connection with the new definition of the continental shelf (Art. 76) and the regime of the ~ exclusive economic zone (Art. 68). The latter is not applicable to sedentary species (cf. also Arts. 61, 62, and 297, para. III).

2. Historical Evolution of Legal Rules (a) Prescriptive title As early as 1758 sedentary fisheries became a subject of legal consideration. Vattel made his famous comment on the Bahrein and Ceylon ~ pearl fisheries, stating that these could legitimately be appropriated by the coastal State apparently even beyond territorial waters. His observations were later construed to imply that coastal States, through their effective occupation of these areas and ~ acquiescence by other States, could acquire both dominium (i.e. property rights) and imperium (i.e. sovereignty) over sea-bed areas beyond the three-mile limit. Since then sedentary fisheries have become a frequent subject of legal precedent and scholarly writing. In fact, sedentary fisheries strongly influenced the controversial discussion on the legal status of the sea-bed as a res communis omnium or a res nullius initiated by conflicts such as the 1893 ~ Behring Sea Arbitration (~ Seal Fisheries), the technically ambitious

_--_._--------_._---------

._-----_._-_._~._ ..

_._-_.-

-

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FISHERIES. SEDENTARY

English Channel tunnel project around the turn of the century and other contemporary events. Early instances of the recognition of sedentary fishe ries involve oyster beds in the Bay of Granville and sponge fisheries off the coast of Tunis. In the Co nvention be tween Great Britain and France for defining and regulating the Limits of the Exclusive Right of the O yster and othe r Fishery on the Coast of Great Brita in and o f France of A ugust 2. l R39 rBFSP, Vol. 27, p. 983) , Great Britain accepte d .n e exclusive right of France to exploit al. oy-rer beds in the Bay of Granville beyond three miles. British fishing was prohibited in this area. The spungt fish eries co ntro lled by the Bey of Tunis exten ded 17 miles offsho re into the Med iterranean Sea and were held as a security for the Bey 's debts to E uro pean powers in 1875. Foreign merc hants were advi sed by the British consul in T unis th at claims by o ther nationals to a right to fish for spon ges o r polypi in this area were rejected since the Bey 's exclusi ve property rights dated bac k to times immemorial. In continuation of an earlier o rd ina nce of IS I I , Ceylon issued a' Ch anks Ordinance of June 30. 1891 (amended in 1929) for the protection of its pe ar l !isheries. The sea-bed area concerned was fo r the first time not defined in terms of a specific distance crit eri on but by referring to a 100 fathom dep th formul a ( Legislative Enactments of Ceylon , Revised ed, 1938, Vol. 4. Chap . 168. p. 295). Later , the Ap pell ate Crimina l Co urt of Madras adj udicated upo n the theft of chanks in Palk's Bay (Annak uma ru Pillai v. Muthupayal (1904) 27 Ind .L.R. 551, Mad ras Series). T he court referred to the prescriptive right s invol ved and confirmed that this sea area o utside territorial waters had bee " ~f(ecl i,e l y occupied for ce ntur ies by the i.i,.<.tbitanb of the adjacent dis trict s o f India and

Cey lo n ..cspec tivc ly" and rejected that this area "can be .cgar de d as being in any sense the open sea ann tr-erefo re outside the territo rial jurisdictio n of Jj i, Majesty's D omin ion s" . Moreo ver , the court relied an the co nstitutive clem en t of acquiescence l'y o the r nation s. In this cc' l.,ect" ";' the U nited Sta tes Con sulGeneral in Lonuon repo rted to the Department of State on Septem ber 16, 1923 that Cey lon , Madras and certain Au st ralian sta tes claimed and exercised jurisdiction " at great distances from the coast , appa rently as much as fifty mile s" and , he

added the next day. that in the case of Queensland

seaward boundaries now extended " to the coast of Papua , a distance of over 100 miles from the Australian coast " (Hackwor th, Digest of International Law, Vol. 2, pp. 677, 678 and 679). Shortly before communication of these observations . the British Parliament had discussed the issue of pearl and chank fisheries in the Gulf of Manaar 25 miles off the coast of Ceylon. The British UnderSecr etary of State stated on May 2, 1923 that the justification for the prohibition of vessels of other nationals in the area " is based on rights over the fisheries enjoyed in uninterrupted and undisputed proprie tor ship by successive rulers . . . since a period prior to the development of the doctrine of the three mile limit" (ibid .). The Un ited States was among the first nations to regulate fishing for sponges in the Gulf of Mexico for its nati onals, in an act dated June 20, 1906 (Act to Regulate the Landing, Delivering, Cure and Sale of Sponge, United States Statutes at Large , Vol. 34 I (1905-1907) Ch . 3442, p. 313). Shortly thereafter the Supreme Court upheld the constitutionality of this act in The Abby Dodge Case of 1911 (223 U .S. 166). insofar as it was con s-rued to be applicable only to sponge fishing outside the territorial limits of the several states of the Union . Consequently . Con gress revised .his legislatior. on August 15. 1914 (Act to Regu late the Taking o r Catching of Sponges in the Water of the Gulf of Mexico and the Strai.s of Florida outside of State Jurisdiction , United States Statutes at Large. Vol. 38 I (1913-1915) Ch . 253, p.692) making it unlawful fo r United States citizens to take any commercial sponges of a particular size " o utside of State territorial limits". In Lambiris Skiriotes v . Stat e cf Florida (313 U .S. 69) the Supreme Court de cided in 194 1 that both the Union and the states could regulate particular acts of their citizens on the high seas. Skiriotes had been convicted under a Florida law for having unlawfully taken sponges six miles off the coast of Florida . The court did not refer to the con stitutional issue whether the states had power to legislate on issues of sedentary fisheries on high seas outside United States territorial waters. While these laws dealt with sedentary fisheries outside territorial waters, their enforcement was restricted to American citizens because the United States had no historically founded legal basis for

FISHERIES, SEDENTARY

claiming exclusive rights to sedentary fisheries. Such claims would have had to be based on a prescriptive title, i.e. extended duration and uninterrupted exploitation acquiesced in by other nations, while other legitimate uses of the high seas such as navigation and fishing had to be maintained. At the dawn of the emerging continental shelf doctrine, the high seas and their sea-bed were considered a res communis incapable of sustaining occupation except in instances where occupation for purposes of sedentary fisheries, mostly pearly fisheries, was historically founded. (b) Sedentary species - a natural resource of the continental shelf The Truman Proclamation on the Continental Shelf of September 28, 1945 (DeptStateBull, Vol. 13 (1945 II) p. 484), by which the United States asserted jurisdiction and control over the ~ natural resources of the sea-bed and subsoil of its continental shelf, beenne the turning point in the legal developmeir ....i sedentary fisheries. An impressive number of other nations followed the American example claiming similar or even more extensive continental shelf rights. These ~ unilateral acts initiated new discussions on the legal character of the sea-bed and also of sedentary fisheries. In 1,~ ..,( the ~ International Law Commission (ILC \:~~:ifged with "the progressive development una codification of international law" , selected the ~ law of the sea for ~ codification and started preparatory discussions for convening a law of the sea conference. In its draft articles of i951, the ILC still expressly exempted sedentary species from classification as "natural resources" of the continental shelf; instead, sedentary fisheries were ;.' be treated like bottom fisheries and to be restricted to high seas areas contiguous to territorial waters "where such fisheries have long been maintained and conducted by nationals of that State, provided that non-nationals are permitted to participate in the fishing activities on an equal footing with nationals" (Report of the International Law Commission to the General Assembly, Draft Articles on the Continental Shelf and Related Subjects, Part II. Related Subjects, YILC, Vol. 3 (1951 II) p. 141, at p. 143). In 1953, the ILC changed its position and included sedentary fisheries into the category of

115

"natural resources" of the continental shelf to be explored and exploited exclusively by the coastal State. In its commentary the ILC expressly maintained that "the products of sedentary fisheries, in particular to the extent that they were natural resources permanently attached to the bed of the sea, should not be outside the scope of the regime adopted .... It is clearly understood, however, that the rights in question do not cover so-called bottom-fish and other fish which, although living in the sea, occasionally have their habitat at the bottom of the sea or are bred there" (YILC, Vol. 5 (1953 II) p.212, at p.214). By adding the formula "permanently attached to", bottom fish were definitely excluded from the scope of the sedentary fisheries. Later, the 1954 draft Of the ~ International Law Association expressly supported this proposal of the ILC. In the same year, the pearl fisheries dispute between Australia and Japan reached its high point. Following a series of unsuccessful ~ negotiations in early 1953, a Japanese pearl fishing fleet approached the disputed sea area outside Australian territorial waters. Australia reacted on September 11, 1953 by issuing a continental shelf proclamation and announcing that her navy would enforce it. Japan, then, withdrew her fishing fleet from the c'·"'li.inental shelf area. The intention, originally announced by both parties, to bring the matter before the -,lo International Court of Justice did not materialize. Influenced by these events and by the continued scholarly debate over the continental shelf doctrine, the ILC in its third draft (1956) opened the way for expansive forces. Shortly before this, the Inter-American Council of Jurists in its "Principles of Mexico" had agreed that sedentary fisheries resources included "all marine, animal and vegetable species that live in a constant physical and biological relationship with the shelf, not excluding the berthonic species". After extensive discussions, the ILC in 1956 confirmed its 1953 draft, incorporating its text unchanged in Art. 68 of the final draft articles on the law of the sea which were to serve as a basis for discussion of UNCLOS 1. It was noted that "the term natural resources was expressly retained as distinct from mineral resources" (YILC, Vol. 8

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FISHERIES, SEDENTARY

(1956 II) p. 254, at p. 297). Moreover, the Food and Agriculture Organization of the United Nations had. prepared a conference memorandum listing all species associated with sedentary fisheries resources (UN Doc. A/CONF. 13/13 of November 6, 1957). In the course of the conference renewed efforts were undertaken to exclude crustacea and certain swimming species from continental shelf resources, However, the final voting resulted in the acceptance of the species found in sedentary fisheries including crustacea such as crab, lobster and shrimp as a natural resource of the continental shelf (Art. 2, para. 2). Bottom fish species, however, were not included because of their lack of "constant physical contact with the sea-bed or subsoil".

~

3. Current Legal Situation and Special Problems The results of UNCLOS I concerning sedentary fisheries corresponded with the practice of a majority of States which already had proclaimed similar rights without awaiting the conference's outcome. Still, substantial parts of the new Convention on the Continental Shelf could not be considered as having gained the status of rules of customary law in 1958, as a consequence of too many reservations about the encroachment upon the freedom of the high seas by the continental shelf concept in general and also about the particular sedentary fisheries solution. Subsequently, a number of conflicts arose over the exploitation of sedentary fisheries resources and over the interpretation of the definition laid down in the continental shelf convention. Among those conflicts were the 1963 "lobster war" between France and Brazil where France, a party to the continental shelf convent on , had insisted that certain lobster species had been illegally reserved by Brazil as her exclusive sedentary fisheries resource. Similar differencesemerged between the United States, Japan and the Soviet Union over king crab resources in the eastern Behring Sea. They were finally resolved by a number of agreements gradually reducing the permitted Japanese or Soviet share cf crab fishing in the United States continental shelf area from 180 000 cases of king crab to 12 .100 in 1974 (United States - Japan Agreement (If November 25, 1964 (UNTS, Vol. 533, p. 31) as amended and extended in subsequent years; United States - Soviet

Union Agreement of February 5, 1965 (UNTS, Vol. 541, p. 97) as amended and extended in subsequent years). The earliest sedentary fisheries conservation agreement was concluded in 1952 when Norway, Denmark and Sweden decided to jointly protect prawns, lobsters and crabs off their coasts (March 7, 1952 (UNTS, Vol. 175, p. 205) as amended on October 14, 1959 (UNTS, Vol. 427, p. 365». On August 15, 1958 the United States and Cuba agreed on the conservation of shrimp (UNTS, Vol. 358, p. 63). Similar agreements were concluded between several other States. These agreements have now become mostly irrelevant due to the new developments within UNCLOS III, where sedentary fisheries no longer attracted much political or legal interest. The respective provisions concerning sedentary fisheries were incorporated in Art. 77( 4) of the 1982 Law of the Sea Convention. This may be taken as an indication that by now the regime of sedentary fisheries has been accepted as customary international law. Examination of Living Resources Associated with the Sea-Bed of the Continental Shelf with Regard to the Nature and Degree of Their Physical and Biological Association with Such Sea-Bed, UN Doc. A/CONF. 13/13 of November 6, 1957. Whose is the Bed of the Sea, Sedentary Fishing Outside the Three-mile Limit, BYIL, Vol. 4 (1923/1924) 34-43. E. BORCHARD, Resources of the Continental Shelf, AJIL, Vol. 40 (1946) 53-70. N. M. MATfE, Vers un nouveau droit international de la mer (1950). w. HEIDELMEYER, Der australisch-japanische Perlenfischerei-Streit, AVR, Vol. 5 (1955/1956) 128-136. D.P. O'CONNELL, Sedentary Fisheries and the Australian Continental Shelf, AJIL, Vol. 49 (1955) 185-209. A. PAPANDREOU, La situation juridique des pecheries sedentaires en haute-mer, Re-Hellen, Vol. 11 (1958) 1-148. R. YOUNG, Sedentary Fisheries and the Convention on the Continental Shelf, AJIL, Vol. 55 (1961) 360-373. I. AZZAM, The Dispute between France and Brasil Over Lobster Fishing in the Atlantic, ICLQ, Vol. 13 (1964) 1453-1459. A.A. WOLKOW, International Legal Questions of Exploiting the Living Resources of the Continental Shelf, Soviet Yearbook of International Law (1964/1965) 213-229 [in Russian]. K. NAKAMURA, The Japan-United States Negotiations Concerning King Crab Fishery in the Eastern Bering

C.J.B. HlRST,

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FISHERY COMMISSIONS

Sea, Japanese Annual of International Law, Vol. 9 (1965) 36-45.

s. ODA, Proposals for Revising the Convention on the Continental Shelf, ColJTransL, Vol. 7 (1968) 10-31. E.F. GOLDIE, Sedentary Fisheries and Article 2 (4) of the Convention on the Continental Shelf, A Plea for a Separate Regime, AJIL, Vol. 63 (1969) 86-97. E.F. GOLDIE, Sedentary Fisheries and the North Sea Continental ShelfCases, A Paradox Revealed, AJIL, Vol. 63 (1969) 536-54l. P. MENGOZZI, II regime giuridico internazionale del fondo marino (1971). B.H. OXMAN, L'accord entre Ie Bresil et les Etats-Unis concernant la peche a la crevette, AFDI, Vol. 18

2. Structure of Fishery Commissions (a) Sources

(1972) 785-803. B. RUSTER,

The United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. AI CONF. 62/122 with Corr.) has not enhanced the status of fishery commissions, although they are mentioned (see Arts. 61(5), 64(1), 65, 72(2), and 119(2». This is due to the fact that the provisions of the Convention concerning fisheries are primarily based upon the nationally oriented approach.

Die Rechtsordnung des Festlandsockels

(1978). BERND RUSTER

FISHERY COMMISSIONS 1. Notion

The international fishery commissions are manifestations of the attempt to internationally regulate fisheries with a view to protect fish stocks against over-exploitation (- Conservation of Living Resources of the High Seas; - ' Fisheries, International Regulation). The techniques applied to this end may be categorized into two groups, according to the approach they are based upon: They are either of a national or of an international character. The former consist of - unilateral acts by a single State, such as an extension of its coastal waters (- Territorial Sea), the establishment of a national fishery zone (- Fishery Zones and Limits) or the proclamation of an - exclusive economic zone. The international techniques are largely the outcome of international agreements and the activities of international fishery commissions. These fishery commissions vary greatly in their terms of reference, composition and powers and functions. However, they have in common the fact that they are functional international organizations (- International Organizations, General Aspects). Moreover, as the majority of fishery commissions operate on a regional rather than a global level, they can be characterized as examples of functional international cooperation of regional scope.

Fishery commissions have been created by bilateral or multilateral agreements or by resolutions promulgated by an international organization. This latter approach is generally limited to fisheries bodies related to the Food and Agriculture Organization of the United Nations (FAO), such as the Indo-Pacific Fisheries Council and the General Fisheries Council for the Mediterranean, both of which were created under Art. 14 of the FAO Constitution. An agreement to establish a Latin-American Fisheries Council (1951), for instance, failed to obtain the required ratifications. In 1959, the FAO Conference authorized the establishment of organizational bodies under Art. 6(1) of the r'AO Constitution which could be either commissions open to all FAO members or regional commissions with a limited membership. The Regional Fisheries Advisory Commission for the South West Atlantic, the Indian Ocean Fishery Commission and the Fishery Committee for Eastern Central Atlantic have been created according to this system.

(b) Membership The legal provisions concerning membership in fishery commissions can be classified in three categories: (i) closed membership (membership limited to the States which ratified the founding agreement of the organization); (ii) condition.Jly open membership (other States may become members, provided they meet certain conditions); and (iii) unconditionally open membership (- International Organizations, Membership). There exists no fisheries organization whose constitution explicitly excludes the accession of States other than those which originally ratified the founding agreement. However, some organi-

118

FISHERY

COMMISSION~

zations were intended to have a limited membership. This is true with respec: to the following commissions: the International Pacific Halibut Commission (IPHC) (Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Behring Sea, May 9, 1930 (LNTS, Vol. 121, p. 46»; the International Pacific Salmon Fisheries Commission (IPSFC) (Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fishery of the Fraser River, in force since July 28, 1937 (LNTS, Vol. 184, p. 306»; the Japan-Soviet Fisheries Commission for the Northwest Pacific (JSFC) (Convention Concerning the High Seas Fisheries of the Northwest Pacific Ocean (AJIL, Vol. 53 (1959) p. 763»; the Japan-Republic of Korea Joint Fisheries Commission (JKFC) (Agreement or Fisheries between Japan and the Republic of Korea, June 22, 1965 (UNTS, Vol. 583, p. 53»; and the International North Pacific Fisheries Commission (INPFC) (International Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952 (UNTS, Vol. 205, p. 67». The IPHC and the IPSFC are devoted to restoring fish stocks previously depleted by fisheries of the member States. The JSFC and the INPFC seek to limit the fishery activities especially of Japan. The JKFC was established in order to overcome conflicts on fisheries between Japan and the Republic of Korea. Thus, the objectives of these organizations prohibit the accession of States besides its founding members. Several fishery commissions belong to the second category according to which other States may become members provided they meet certain conditions. The most common requirements are the following: the consent of the State parties; membership in FAO, the - United Nations or any other - United Nations Specialized Agency; a coastline in the area the commission is concerned with; and participation in the fisheries for which the organization is responsible. The first condition can be found in the International Convention for the Conservation of Atlantic Tunas of May 14, 1966 (UNTS, Vol. 673, p. 64) creating the International Commission for the Conservation of Atlantic Tunas (ICCAT), and also in the Convention on the Conservation of the Living Resources of the Southeast Atlantic of October 23, 1969 (UNTS, Vol. 801, p. 101) establishing the International

Commission for the Southeast Atlantic Fisheries (ICSEAF). The Convention for the Establishment of an Inter-American Tropical Tuna Commission (IATTC) of May 31, 1949 (UNTS, Vol. 80, p. 4) requires the consent of all the existing members and participation in the relevant fisheries. The third category of membership provisions, i.e. that category under which membership is oven without any condition, was or still is a feature of the most important multilateral conventions. Membership in the International Whaling Commission (IWC) is open to all interested States (- Whaling Regime). The same principle applied to the former North-East Atlantic Fisheries Commission (NEAFC) and tne International Commission for the Northwest Atlantic Fisheries (ICNAF). The question of membership represents one of the salient structural problems of fishery commissions. The solution chosen is an indicator of the premises upon which the respective organization is based. The objective of those organizations to which only such States belong which have a direct interest 10 the relevant fishstocks is primarily the conservation of the relevant stocks for the economic benefit of the States concerned. The IPHC, the IPSFC and the INPFC are rather typical organizations of this kind. For example, the Convention for the Protection, Preservation and Extension of the Sockeye Salmon Fisheries stresses in its preamble that the extension of the sockeye fisheries, which had been greatly depleted, was of common concern to the United States and to Canada. The preamble of the Convention for the High Seas Fisheries of the North Pacific Ocean contains a similar wording: "that it will best serve the common interest of mankind, as well as the interests of the Contracting Parties, to ensure the maximum sustained productivity of fishery resources of the North Pacific Ocean .... " Organizations having a system of open membership tend to approach the conservation of fish stocks from a more global perspective. This is illustrated by recent deliberations in the IWC. Those member States without concrete interests in whaling, for example the United States, advocated strict protectionary measures not taking into account the interests of the whaling industry and

119

FISHERY COMMISSIONS

have, over the years, succeeded in considerably curtailing whale hunting. Both types of fishery commissions differ if they are analysed under the principle of freedom of fishing. Whereas the regulations of organizations with a closed membership reflect self-imposed limitations on that freedom, the rules issued by organizations with an open membership may turn out to be externally imposed restrictions. There is, however, another problem concerning the issue of membership. Although fishery commissions undertake to protect fish stocks against over-exploitation, participation in international fisheries agreements is entirely a matter within each State's own discretion. No State is under an obligation to become a member of an international fisheries organization in orderto be entitled to the fisheries for which such organizations have responsibility. The 1958 Geneva Conference on the Law of the Sea attempted to make the participation in international conservation arrangements compulsory, but failed to achieve this objective. Moreover, no rule of ~ customary international law exists to that end and States are under no obligation to establish such an organization. Thus, existing international fisheries organizations are entirely dependent upon voluntary cooperation among States.

(c) Area and species No fishery commission is concerned with all fisheries in all parts of the sea. They deal with specific areas and specific species. This is due to the fact that fishery problems arise with respect to certain stocks and in certain areas. Only the IWC deals with whaling on a world-wide basis. A few international fishery agreements explicitly include the territorial sea of the contracting parties (such as the Convention for the Preservation of Halibut), whereas other agreements exclude territorial waters from the area to which they apply (International Convention for the High Seas Fisheries of the North Pacific Ocean). However, most of the agreements are silent on this issue.

(d) Internal Structure The internal structures of fisheries organizations are quite similar. They normally consist of a plenary group in which all members are represented. These include subsidiary bodies and have

their own staff. All major decisions are taken in the plenary group. As far as voting arrangements of the plenary group are concerned, several conventions provide for decisions to be taken by -~ consensus, e.g. INPFC, JSFC, and Mixed Commission for the Black Sea Fishery (Convention Concerning Fishing in the Black Sea, July 7, 1959 (UNTS, Vol. 377, p. 220)). Some conventions waive this requirement of unanimity for certain types of decisions or limit its applicability to those members directly affected by a certain decision. Other fishery commissions decide by simple majority, e.g. IWC, though for certain decisions a two-thirds majority or even unanimity is required, e.g. NEAFC. Finally, there are other organizations which decide as a general rule on the basis of a two-thirds majority, e.g. ICSEAF (~Voting Rules in International Conferences and Organizations). The regulation of voting and of membership may have a reinforcing effect. If an organization has an open membership system and the decisions are taken by simple majority, the policy of such an organization is likely to emphasize the aspect of conservation to the detriment of exploitation. This has been the case in the IWC.

3. Functions (a) Regulatory powers The functions assigned to fishery commissions vary widely. They range from merely advisory functions allowing for recommendations concerning conservation measures, the allocation of resources, and the economic efficiency of fisheries, to administrative functions concerning fish stocks. There is only one organization entrusted with administrative powers: the IPSFC. It was established for the purpose of rebuilding stocks and is, therefore, authorized to conduct operations on salmon fish cultures, to improve spawning grounds, to construct and maintain hatcheries or similar facilities, and to stock the waters to which the convention applies. Functions relating to the allocation of the resources between States or users are exercised for example by the IPSFC, the INPFC, the IPHC and the IATIC. Most fishery commissions, however, only have the right to recommend conservation measures such as open and closed seasons, open and closed

120

FISHERY COMMISSIONS

areas, and rules concerning the fishing gear as well as the size of fish and the quantity of the catch to be taken from each area, etc. Such recommendations are issued by the plenary group and normally enter into force a given period of time after their issuance, becoming binding on the States which do not file an objection (opting-out-procedure). To this extent, fishery commissions may be said to exercise quasi-legislative powers with respect to their members. It is, however, one of the significant shortcomings of fishery commissions that they lack the power to make their conservation measures binding upon non-members. Such an approach had been discussed in the - International Law Commission (ILC) during negotiations over the Convention on Fishing and Conservation of the Living Resources of the High Seas (ILC 65th meeting, July 11, 1950, Yearbook Vol. I, 201; 118th meeting, July 5, 1951, Yearbook Vol. 1,304; 206th meeting, July 1, 195.3, Yearbook Vol. I, 143). However, this proposal failed to receive considerable support.

.

(b) Enforcement Theoretically there are three methods available to enforce the conservation measures of fishery commissions: national enforcement, mutual enforcement and international enforcement. Enforcement in this context inel .ides inspection at sea or in - ports and the subsequent prosecution of offences. Under the national enforcement approach it is the flag State of the fishing vessel which is responsible for ensuring that its ships respect the applicable rules. Under the second approach, national fishery inspectors may not only board vessels sailing under their State's flag, but also ships flying the flag of another member State. This system has been or still is applied by the ICNAF, the JSFC, the NEAFC, the ICCAT and the ICSEAF. No fishery commissions have established a system according to which conservation measures are enforced by the commission itself.

4. Impact of the 1982 Convention on the Law of the Sea In the Third United Nations Conference on the Law of the Sea the view prevailed that fishery resources should be most appropriately managed by the coastal States. This resulted, long before the end of the Conference, in the establishment of

exclusive economic zones or fishery zones. In these areas the coastal State enacts conservation measures and manages the fishery resources; the basis for corresponding activities of fishery commissions in such areas has disappeared or at least changed considerably. For example. after the United States and Canada established national fisher} zones, ICNAF was terminated and the Northwest Atlantic Fisheries Organization (NAFO) was created. NAFO retained only with respect to the - high seas functions similar to those of ICNAF, whereas its powers with respect to the waters under national jurisdiction were reduced to research and information as requested by the coastal States concerned. New types of fisher} commissions of this kind are the NorthEast Atlantic Fisheries Commission and the International Baltic Sea Fisheries Commission. The extension of coastal State jurisdiction will ultimately result in the transformation of those fishery commissions not concerned with migratory species or whales into bodies concentrating merely upon fishery research, providing assistance to coastal States with respect to fisheries and possibly coordinating fishery activities among neighbouring States United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Carr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). w.

CHAPMAN, The Theory and Practice of International Fishery Development-Management, San Diego Law Review, Vol. 7 (1970) 408-454. J.E. CARROZ, Living Resource Management: Regional Fishery Bodies, in: Pacem in Maribus, Convocation 1, Vol. 2; Legal Foundations of the Ocean Regime, Proceedings of the Preparatory Conference on the Continental Shelf and Legal Framework, JanuaryFebruary 1970 (1971) 148-162. A.W. KOERS, International Regulation of Marine Fisheries (1973). S.B. SAILA and v.r. NORTON, Tuna: Status, Trends, and Alternative Management Arrangements (1974). E.L. MILES, Changes in the Law of the Sea: Impact on International Fisheries Organizations, Ocean Development and International Law, The Journal of Marine Affairs. Vol. 4 (1977) 409-444. J.E. SCARFF. The International Management of Whales, Dolphins, and Porpoises: An Interdisciplinary Assessment, Ecology Law Quarterly, Vol. 6 (1977) 323-427, 571-638.

FISHERY ZONES AND LIMITS

Jurisdictional and Administrative Limitations Affecting Management of the Halibut Fishery, Ocean Development and International Law, The Journal of Marine Affairs, Vol. 4 (1977) 121-142. J. JOSEPH, International Tuna Management Revisited, in: B.J. Rothschild (ed.), Global Fisheries, Perspectives for the 1980's (1983) 123-150. R. WOLFRUM, Die Internationalisierung staatsfreier Raume (1984) 211-236, 672-679. P. BIRNIE, The International Organization of Whales, Denver Journal of International Law and Policy, Vol. 15 (1986) 309-333. W.M. SUTHERLAND, Management, Conservation and Cooperation in EEZ Fishing: The Law of the Sea Convention and the South Pacific Forum Fisheries Agency, Ocean Development and International Law, The Journal of Marine Affairs, Vol. 18 (1987) 613-640. B.E. SKUD,

RUDIGER WOLFRUM

FISHERY ZONES AND LIMITS 1. Historical Background The development of seaborne trade and the emergence of powerful maritime nations led, in the 17th century, to a shift from the notion of closed seas claimed by a few countries to the concept of open seas. The two new basic principles of the ~ law of the sea were that a strip of offshore waters was under the exclusive sovereignty of the coastal State and that the ~ high seas beyond were free (~ Maritime Jurisdiction; ~ Navigation, Freedom of; ~ Territorial Sea). These principles were originally intended to satisfy and reconcile requirements of national security with freedom of trade and navigation, but they applied to all activities in both areas and accordingly defined the legal framework within which fishing activities were carried out. The sea area where coastal States had exclusive ~ jurisdiction over fisheries was in all cases co-extensive with the territorial sea. The area claimed by any coastal State as territorial sea, however, varied between individual States; claims of areas from 3 to 12 nautical miles were most common, though in exceptional cases they covered a much wider area. The breadth of the territorial sea was considered by the United Nations Conference on the Law of the Sea held at Geneva in 1958 (~ Conferences

121

on the Law of the Sea). Although the Conference adopted a Convention on the Territorial Sea, no agreement was reached on the width itself. A second Conference was held in 1960, also at Geneva; again no agreement was reached. One proposal which failed to be adopted by only one vote of the two-thirds majority required had a definite influence on subsequent national and international measures, including the 1964 European Fisheries Convention. The proposal envisaged allowing States to claim as territorial sea an area extending up to 6 miles from the coast and, subject to the recognition of traditional rights of other States, to claim exclusive fishing rights in a fishing zone immediately beyond the territorial sea extending up to 12 miles from the coast (~ Fisheries, International Regulation). The 1960s were marked by the rapid development, by a limited number of countries, of long-range fishing fleets operating throughout the world oceans. A number of developing countries, lacking the financial and technical means required to exploit the resources off their coasts and fearing that these would be depleted before they were in a position to exploit them, reacted by extending their territorial sea or establishing an exclusive fishing zone beyond the territorial sea, usually to 200 miles. They were also instrumental in ensuring that the Third United Nations Conference on the Law of the Sea would deal not only with deep sea-bed issues (~ Sea-Bed and Subsoil) and the few questions left unsettled by the 1958 and 1960 Conferences, but would in effect cover all subjects and issues of the law of the sea, including fisheries.

2. Current Legal Situation The question of fishery zones and limits is now dealt with in the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.). The Convention provides for a 12-mile territorial sea and a 200-mile ~ exclusive economic zone, in which fishing rights are defined in great detail. Although several years will elapse before the Convention comes into force, by March 1985 over 100 coastal States had enacted national legislation which extended jurisdiction over fisheries up to 200 miles. It should be noted in this regard that in its judgment of February 24, 1982 in the ~ Continental Shelf Case (Tunisia/Libyan Arab

122

FISHERY ZONES AND LIMITS

Jamahiriya), the - International Court of Justice stated that the concept of exclusive economic zone "may be regarded as part of modern international law" (ICJ Reports 1982, p. 18, at p. 74).

(a) Territorial sea The provisions of the 1982 Convention on the Law of the Sea relating to the territorial sea do not deal with fisheries, except to confirm the full sovereignty of the coastal State in this regard. Thus, in accordance with Art.19 (2), passage of a foreign ship is to be considered prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in specific activities, which include fishing. Similarly, Art. 21 (1) provides that the coastal State may adopt laws and innocent passage regulations relating to through the territorial sea and that such measures may concern the prevention of infringement of its fisheries laws and regulations.

(b) Exclusive economic zone Most of the provisions contained in Part V of the 1982 Convention on the new concept of an exclusive economic zone of 200 miles, measured from the coast, relate to living - marine resources and to fishing. In the zone, coastal States have sovereign rights for the purpose of exploring and exploiting, conserving and managing living resources (- Natural Resources, Sovereignty over). At the same time, however, coastal States are to promote the objective of optimum utilization of these resources. To this end, the coastal State has to determine the allowable catch of the living resources in its exclusive economic zone. It must then determine its own capacity to harvest those resources. Where the coastal State does not have the capacity to harvest the entire allowable catch, it has to give other States access to the surplus. Other States do not, however, have automatic access to the surplus. The Convention provides that the coastal State will give access through agreements or other arrangements. No indication is given on the types of agreement or arrangement which may be concluded, but there is a variety of possible solutions: for example the granting of licences directly to - fishing boats flying a foreign flag, the granting of licences to vessels flying the flag of a country with which a formal agreement has been concluded, the estab-

lishment of joint ventures with State-owned or private foreign companies (- Joint Undertakings). The Convention lists several categories of countries, the needs or interests of which shall be taken into account when deciding upon who should be given the right of access to the surplus: the - land-locked States and the States with special geographical characteristics in the same sub-region or region, the - developing States in the subregion or region, the States whose nationals have habitually fished in the exclusive economic zone concerned and the States which have made substantial efforts in - marine research and identification of the stocks in the zone. This list, however, is not exhaustive, nor is it intended to give a strict order of priorities. The Convention also gives numerous examples of terms and conditions which may be prescribed by the coastal State and with which foreign vessels must comply. Some constitute a direct compensation for the right of access, while others are aimed at providing technical cooperation to help increase gradually the harvesting capacity of the coastal State. It is apparent from the relevant provisions of the Convention that the coastal State enjoys a large degree of discretion regarding the conservation and exploitation of living resources in the exclusive economic zone. This is corroborated by the provisions on the peaceful settlement of disputes. Unless the parties to the dispute agree otherwise, there will be no compulsory and binding adjudication with regard to disputes relating to the management and use of living resources in exclusive economic zones. While granting wide discretionary powers to coastal States, the Convention does take into account the fact that the movements of fish can often render man-made limits somewhat artificial. Thus, it recognizes the need for intergovernmental cooperation and coordination in cases where stocks migrate along the shores of two or more coastal States or between exclusive economic zones and the high seas. This explains also the inclusion of provisions regarding the management of several species whose biological characteristics and migration patterns require special consideration: highly migratory species, anadromous stocks, catadromous species and marine mammals (Seal Fisheries; - Whaling Regime).

FISHERY ZONES AND LIMITS

(c) Continental shelf The natural resources of the continental shelf include not only mineral and other non-living resources, but also living organisms known as sedentary species. The latter are defined in the Convention as those organisms which, at the harvestable stage, are immobile on or under the sea-bed or are unable to move except in constant physical contact with the sea-bed or the subsoil ( - Fisheries, Sedentary). Coastal States have sovereign and exclusive rights for the purpose of exploring and exploiting these resources throughout the natural prolongation of their land territory to the outer edge of the continental margin, and at least to 200 miles from the coast ( - Continental Shelf, Outer Limits). Even if sedentary species occur within the exclusive economic zone, the provisions of the Convention concerning living resources in the zone do not apply to them.

3. Eveluation The escablishment of 200-mile zones of national jurisdiction has several implications for fisheries. In the first instance, even though 200-mile zones on a world-wide basis cover some 35 per cent of the oceans, they include within them nearly 99 per cent of the living resources presently under commercial exploitation. Because of the location of these resources, most fisheries are conducted well within 200 miles. The main exceptions are tunas, some 40 per cent of which are caught on the high seas, and whales. The extension of national jurisdiction provides an opportunity to transform radically the practice of fisheries management. Under the previous regime of the freedom of the seas, there was neither incentive nor effective means to conserve and rationally manage resources which belonged to anyone who could catch them ( - Conservation of Living Resources of the High Seas). Most commercial stacks lay both within and beyond a narrow territorial sea. Fishermen could , of course, leave part of a stock untouched so as to maintain its future yield, but anybody could come and deplete the stock and, indeed, move to another. The previous regime led not only to the depletion of renewable resources, but also to considerable economic waste through over-

123

capitalization of catching capacity and sometimes to international disputes (e.g. Fisheries Case (U.K. v. Norway)). In their exclusive economic zones. coastal States may have resources of varying importance and value, but they have acquired control and authority over all these. They are now empowered to manage and utilize them in accordance with national priorities and needs. Furthermore, it is now possible for coastal States to control exploitation costs and to adjust both the fishing methods and the fishing effort to the (;0j",ctives of their management policies. This should help reduce unnecessary social and economic waste and losses. It should be pointed out, however, that the 1982 United Nations Convention on the Law of the Sea does not only confer rights on coastal States, but also assigns responsibilities to them, particularly as regards the objective of optimum utilization of living resources Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. Fisheries Convention, March 9, 1964, UNTS, Vol. 581 (1966) 57-75. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Die Fischereifreiheit auf der Hohen See. Entwicklungbis zur 3. Seerechtskonferenz in Caracas, in: R. Bernhardt and W. Rudolf (eds.), Die Schifffahrtsfreiheit im gegenwartigen Volkerrecht, Berichte der Deutschen Gesellschaft fiir Volkerrecht, Vol. 15 (1975) 163-194. C.A. FLEISCHER, The Right to a 200 Mile Exclusive Economic Zone or a Special Fishery Zone, San Diego Law Review, Vol. 14 (1977) 548-583. L. CAFLISCH, Les zones maritimes sous juridiction nationale, leur limites et leur delimitation, RGDIP, Vol. 84 (1980) 68-119. J. CARROZ, Les problernes de la peche it la Conference sur le droit de la mer et dans la pratique des Etats, RGDlP, Vol. 84 (1980) 705-751. c. HUDSON, Fishery and Economic Zones as Customary International Law, San Diego Law Review, Vol. 17 (1980) 661-689. J. CARROZ, Les problemes de la peche dans la Convention sur le droit de la mer et la pratique des Etats, in: D. Bardonnet and M. Virally (eds.), Le nouveau droit international de la mer (1983) 177-229. L. GUNDLING, Die 200 Seemeilen-Wirtschaftszone (1983). G. JAENICKE,

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FISHERY ZONES AND LIMITS

s. aDA, Fisheries under the United Nations Convention on the Law of the Sea, AJIL, Vol. 77 (1983) 739-755. F. ORREGO VICUNA (ed.), The Exclusive Economic Zone, A Latin American Perspective (1984).

FISHING BOATS

4). No agreement could be reached on the ~ requisition of those boats. The Oxford Manual, a compilation of rules of sea warfare elaborated by the ~ Institut de Droit International in 1920, as well as most existing national regulations on sea warfare, contain provisions similar to Arts. 3 and 4 of Convention XI, demonstrating the recognition of that rule as a rule of general ~ customary international law, irrespective of the various violations during World Wars I and II.

1. Notion; Historical Evolution

2. Current Legal Situation

As defined in the law of -~ sea warfare, fishing boats are understood to be small boats, even equipped with engines, but used exclusively by ~ coastal fisheries for the purpose of producing the means of daily subsistence for the coastal population. The immunity of fishing boats from capture during ~ war has long been recognized: in the Paquete Habana and Lola Cases (175 U.S. 677 (1900)) the United States Supreme Court cited the earliest governmental acts to that effect, orders issued in 1403 and 1406 by King Henry IV of England ("De securitate pro piscatoribus"). This practice was followed over the centuries as is demonstrated by various French ordinances and treaties among European and other powers (e.g. the Treaty between Emperor Charles V and Francis I in 1521, the Treaty between the United States and Prussia in 1785). Although interruptions of that practice occurred during the French Revolution and the ~ Crimean War, the judgment in the Paquete Habana Case considered the immunity of fishing boats to be "an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent States", thus concurring with the view of the majority of the authors at that time. The Second ~ Hague Peace Conference (1907) converted that rule into a finally unanimously adopted conventional norm. The Conference also extended the scope of the rule to the cargoes, etc. of the boats as well as to other small boats serving different purposes such as local trade or religious, scientific or philantropic missions (Convention [XI] relative to Certain Restrictions with regard to the Exercise on the Right of Capture in Naval War, The Hague, October 18, 1907, Martens NRG3, Vol. 3, p. 663, Arts. 3 and

Art. 3 of Hague Convention XI is based on considerations of humanity, the innocent character of coastal fisheries, their insignificance to State power and the subsistence needs of poor coastal populations (see also Art. 54 - concerning protection of objects indispensable to the survival of the civilian population - of the 1977 Additional Protocol I to the ~ Geneva Red Cross Conventions). It exempts the vessels used exclusively for fishing along the coast as well as their appliances, rigging, tackle and cargoes from capture or seizure as prize during war (~ Booty in Sea Warfare; ~ Prize Law). Their mode of propulsion, size and manning are not determined. Their fishing area can be situated beyond the ~ territorial sea or off foreign coasts according to established habits, as long as only coastal fisheries on a non-commercial basis (i.e. the landing of fresh unprocessed fish) are involved. Such boats forfeit their immunity if they take part in hostilities in any way. States are prohibited from using these boats for military purposes under the disguise of their innocent character (~ War, Ruses). Under some national laws, this immunity is conditional upon ~ reciprocity and excepts those boats only from seizure or capture, but not from visit (~ Ships, Visit and Search). According to the idea that such boats should not hamper military activities, they are generally held to be required to obey the military orders given them. The capture of fishing boats during recent wars has been justified on the bases of their participation in hostilities and their possession of military equipment (e.g. the Imperao and Persitante during World war II, the Doron during the Israel-Egyptian conflict of 1957), their longdistance fishing activities ("deep-sea fishing"), their large size, or their commercial activities (the

JEAN CARROZ

FLAGS OF CONVENIENCE

Berlin during World War I, Fred Neumann, Herrlichkeit, Atun I and Atun II, Goulfar II and Joselle during World War II). During the war in -- Vietnam operational orders were issued permitting coastal fishing activity to continue, but allowing at the same time sufficient surveillance to distinguish those boats from "waterborne logistic craft" operating under cover of fishing (O'Connell, p. 35). Despite that practice, the technical progress in coastal fisheries in conjunction with the growing size of fishing vessels, the concentration of such fisheries in the hands of larger commercial companies and the decreasing contribution of small coastal fisheries to the nutrition of the coastal population will reduce the future value of fishing boats' traditional protection in wartime. As to the legal status of fishing boats outside the law of sea warfare, they are subject to certain special rules of the -- law of the sea applicable specifically to fishing vessels (e.g. exemption from the Convention on the Safety of Life at Sea, or the Load Line Convention of April 5, 1966, UNTS, Vol. 640, p. 133). Deuxieme Conference internationale de la paix, La

Haye, 15 juin-18octobre 1907, Actes et documents, 3 vols. (1907). Das Beuterecht im Land- und Seekrieg (1909). J.B. scorr (ed.), The Proceedings of the Hague Peace Conferences, 5 vols. (1920-1921). SW.D. ROWSON, Prize Law during the Second WorldWar, BYIL, Vol. 24 (1947) 160-215. A. GERVAIS, Le droit des prises maritimes dans la Seconde Guerre Mondiale, RDGIP, Vol. 52 (1948) 82-161. A. GERVAIS, La jurisprudence britanique des prises maritimesdans la Seconde Guerre Mondiale, RGDIP, Vol. 53 (1949) 201-274. A. GERVAIS, La jurisprudence italienne des prises maritimesdans la Seconde Guerre Mondiale, RDGIP, Vol. 54 (1950) 251-316. A. GERVAIS, La jurisprudence allemande des prises maritimesdans la SecondeGuerre Mondiale, RGDIP, Vol. 55 (1951) 481-546. H. HECKER and E. TOMSON (eds.), Volkerrecht und Prisenrecht (1956). c.r. COLOMBOS, International Law of the Sea (6th ed. 1967). D.P. O'CONNELL, International Law and Contemporary Naval Operations, BYIL, Vol. 44 (1970) 19-85. c. ROUSSEAU, Le droit des confiits annes (1983). H. WEHBERG,

GERHARD HAFNER

125

FLAG, ABUSE OF see Flags of Vessels FLAG, CHANGE OF see Flags of Vessels FLAG, RIGHT TO FLY see Flags of Vessels

FLAGS OF CONVENIENCE The term flags of convenience refers to the registration of -- merchant ships under the flags of a number of States (-- Flags of Vessels). Such ships are usually beneficially owned or controlled by non-nationals of the flag State, and the ships rarely if ever visit their port of registry. The flag of convenience States operate "open registers" which enable ship operators to leave their orthodox national registers by "flagging out", i.e. re-registering their ships under the flag of the State concerned (.~ Ships, Nationality and Status). Open registry countries, which have existed for at least 35 years (Panama, Liberia, Honduras, Cyprus), have been joined in the 1980s by a growing list of newcomers (e.g. Vanuatu, the Bahamas) and even traditional maritime States have been allowing "captive registers" to open which are accessible to nationals and non-nationals alike (Gibraltar, Isle of Man, Kerguelen). Liberian and Panamanian flags fly over a quarter of the world's ocean-going fleet. Since 1971, the tonnage of ships flying traditional national flags has fallen dramatically in the more advanced capitalist countries. Ship operators turn to flags of convenience for a variety of financial reasons. Flagging out may enable an operator to evade national taxation or to avoid the necessity of employing the mariners of the nations concerned. The international legal obligations which all States undertake by ratifying, for example, certain safety at sea conventions or labour regulations of the -- International Labour Organisation are not identical. This may help determine the choice of which of the approximately 24 open registers will suit any given ship operator. The resort to open registers has arisen in response to competitive pressures within the international shipping industry: Many of the costs of ship operators are fixed in the world economy. The price of ships and fuel will be the same for all buyers. However, one of the few variables in shipping costs are crew costs which can amount to

126

FLAGS OF CONY EN IE!'lCE

around 20 per cent of the overall cost of operating a ship. Ships operating with high-cost crews are at a competitive disadvantage to those with lowercost crews. Many traditional maritime States require the employment of national crews on their ships, thus fueling the flight away from such flags. The origins of flags of convenience lie in the period between the World Wars when multinational companies under United States control began using Central American flagged ships in preference to ships flying the flag of the United States. The use of such flags was greatly facilitated in the late 1930s by their adoption for United States' shipments of - war materials to Great Britain which enabled the operators of the ships to avoid the letter of the United States neutrality laws (see Carlisle; - Neutral Trading). The attraction of flags of convenience has grown throughout the post-World-War-Il period, to the extent that the true national identity of merchant shipping is becoming a thing of the past. The relatively abrupt move towards open registers has mainly taken place because of changes in the municipal law of States, many of which have enjoyed status as full subjects of international law for a relatively short period. It is, in the circumstances, hardly surprising that public international law has yet fully to reflect the changed realities of international merchant shipping. As ships have increasingly ceased flying the flags of their owners' nations, international law has sought to retain the requirement of a genuine link between the flag State and the ship. This requirement embodied in general in Art. 5( 1) of the 1958 Convention on the High Seas also enjoins States to effectively exercise jurisdiction and control in administrative, technical and social matters over ships flying their flags. The issue was left unchanged by Art. 91(1) of the L982 Law of the ~t..1 Convention. Higher hopes of achieving legal clarity were placed in the talks held under the auspices of the - United Nations Conference on Trade and Development (UNCTAD) which ultimately led to the as yet unratified 1986 United Nations Convention on conditions for registration of ships. It was hoped by many that these talks, which began a decade before the adoption of the convention, would lead to the phasing out of flags of convenience. In the event, the -~ consensus which

ultimately emerged abandoned the quixotic abolition of open registers in favour of regulating States of registration by requiring the existence of an adequate national maritime administration able to ensure that international conventions on safety (- Maritime Safety Regulations), seaworthiness and work conditions are ccmplied with and that ships carry valid registration documents (Art. 5). Moreover, States registering ships are called upon by An 6 to be able to identify and account for the operators of ships which are registered with them to persons having a legitimate interest in obtaining such information. This certainly represents an advance on present practice and may in future lead to better management in some open register countries. Also noteworthy in the list of requirements laid down are those in Art. 10(3) which call upon the State of registration to ensure that the manager or operators of ships registered with it are able to show that the ship can evidence it has adequate third party liability insurance which can be resorted to in the event the ships causes some form of culpable damage such as oil pollution (Marine Environment, Protection and Preservation). The 1986 Convention, which requires 40 signatures to enter into effect, seeks to introduce legislative order into an area of international commerce which is, from time to time, prone to abuse. For instance, the phenomenon of scuttling frauds. which rose to greater prominence with the slump in shipping from the late 19708, is usually encountered in connection with ageing ships, one-ship companies and flag of convenience registration. On the other hand, many of the world's best t un oil tanker fleets routinely flag out to benefit from low tax regimes. Contrary to the ,1Ope~ of its many supporters in the developing world, the Convention does not make mandatory the presence of national crews as a precondition of registration. The prolonged recession in international shipping effectively ruled out the chances for what would have been a return to the old order of maritime regulation. The conservatives in this respect are now the States of the Socialist world which continue to man their ships exclusively with their own nationals and to fly their own national flags. A final irony of recent times has been the resort of shipping companies from countries like Kuwait

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FLAGS OF VESSELS

to the register of the United States in order to gain military protection against attack in the Arabian Gulf (- Persian Gulf). Flags of refuge may yet become more commonplace in strife-torn areas of the world. Although no such agreements are published, it is thought that some of the new open register flag States have understandings with the traditional flag States about the disposition of their ships in times of -'> war (- Diplomacy, Secret). It is only to be expected that the needs of m.ritime commerce and those of States produce conceptual difficulties in international law. The rise of captive registers like the Isle of Man is an illustrative case in point. Erglish municipal constitutional law has always allowed that the Isle of Man has limited domestic but no foreign policy power (- Channel Islands and the Isle of Man). Thus far no difficulties have arisen in connection with the international recognition of ships flying the Isle of Man flag. This is because the proliferation of flags of convenience in modern times rests upon the - acquiescence of the international society of States.

of flying the flag of that State (- Muscat Dhows, The). Because each State fixes the conditions tor the use of its flag, the municipal right of a ship to fly a particular flag is determined with reference to the municipal law of the particular country involved. The international right of a ship to fly a particular flag, however, is determined with reference to international law. Thus, if a State by its municipal laws grants a ship the right to fly its flag when international law would not permit such a grant, although the ship may not be in violation of the laws of that country, it is not entitled to the flag on the international level. A State may authorize temporary use of its flag in order, for example, to facilitate delivery of a vessel constructed abroad. Use of a flag may also be authorized temporarily in exigent circumstances such as ~ war even though the vessel already has another flag. Whether the - United Nations and other international organizations can grant the right to fly their flags is discussed in the article on - Ships, Nationality and Status.

Flags of Convenience (1962). Sovereignty for Sale (1981). sw. TACHE, The Nationality of Ships: The Definitional Controversy and Enforcement of Genuine Link, The International Lawyer, Vol. 16 (1982) 301-312. Lloyd's of London, Which Register?, Which Flag?

3. Right to Change

B.A. BOCZEK,

R. CARLISLE,

(1987). JONATHAN S. IGNARSKI

FLAGS OF VESSELS 1. Legal Significances of the Flag The flag is by custom a prime indicator of the - nationality of a ship (see - Ships, Nationality and Status). It is not a condition of nationality. Although the flag flown by a vessel evidences the nationality of the ship, it is the documentation attesting to the grant of nationality that is determinative (see e.g., The Merritt, 84 U.S. 582, at p. 586 (1873».

2. Right to Fly Every State has the right under international law to grant nationality to ships sailing upon the - high seas and, as a consequence, the privilege

Municipal laws vary considerably on the rights of ships to change their nationality, but permission from a ministry is often required. Under international law a ship may not change its flag during a voyage or while in a port of call, save in the case of real transfer of ownership or change of registry (Art. 6 (1) of the Convention on the High Seas, April 28, 1958 (UNTS, Vol. 450, p. 82); Art. 92 (1) of the United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc.AI CONF.62/122 with Corr.); and Art. 4 (5) of the United Nations Convention on Conditions for Registration of Ships, February 7, 1986 (not in force; ILM, Vol. 26, p. 1229». Thus when there is a change of ownership or registration, the flag may be changed regardless of the location of the vessel. Otherwise, the flag may be changed only when the vessel is in its home - port or port of destination The rule reflects the importance attached to a clearly ascertainable symbol of nationality during a voyage. By implying that a flag could be changed for reasons other than change of ownership or registration, the rule implicitly also states that under international law a vessel may be registered in

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FLAGS OF VESSELS

more than one State at one time. This possibility does not conflict with the prohibition against multiple nationalities, however, because the private act of registration cannot empower a State to grant its nationality to a vessel which already possesses one.

4. Abuse of Flag Municipally, States often prohibit the misuse or unauthorized use of their flag, occasionally accepting such misuses when done as a ruse of war (see e.g., The British Merchant Shipping Act of August 25, 1894, 57 & 58 Victoria, c. 50, sec. 69). The display of a neutral flag as a ruse of war obviously also endangers the public order by eroding the protection of the neutral flag (~ War, Ruses). In 1915, the United States protested against the use of the American flag in war areas by the British vessel, the ~ Lusitania. Other countries made similar protests. The practice led to a loss of respect for the neutral flag and to the painting of the national colors on the sides of vessels. On the international level, abuse of flag may result in (i) loss of the nationality evidenced by the flag, i.e. statelessness, or (ii) loss of the right to demand that States other than the flag State not interfere with the vessel. Abuse of flag most often involves the fraudulent assertion of a nationality. A ship that sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities asserted and may become a ship without nationality (~ Flags of Convenience; see Art. 6 of the 1958 Convention on the High Seas; Art. 92 of the 1982 Law of the Sea Convention). A number of recent examples of a vessel falsely claiming a flag have arisen in the context of narcotics smuggling. In United States v. Domingues, 604 F.2d 304 (4th Cir. 1979), for example, the United States Coast Guard gained permission from the government of the Commonwealth of the Bahamas to board the Sea Crust, a ship on the high seas flying the Bahamian flag. Upon being ordered to heave to, the owner and captain stated that the ship was really British. The Court concluded that "the Sea Crust's deception enlarged the authority of the Coast Guard and created an additional justification for boarding" because as a result of its

"attempting to change its nationality on the high seas, the Sea Crust became a stateless ship". In the past, some commentators felt that an act of ~ piracy automatically led to a loss of nationality. Art. 18 of the 1958 Convention on the High Seas and Art. 104 of the 1982 Law of the Sea Convention provide, however, that as far as international law is concerned a "ship ... may retain its nationality although it has become a pirate ship". But, such treaties simultaneously also greatly reduce the exclusivity of the jurisdiction of the flag State over the pirate vessel on the high seas (see Art. 19 of the 1958 Convention on the High Seas and Arts. 105 and 109 of the 1982 Law of the Sea Convention). Das Flaggenrecht von Schiffen und Luftfahrzeugen nach Volkerrecht und Landesrecht, Zeitschrift fur Volkerrecht, Vol. 13 (1926) 233-273, 353-397. C.W. JENKS, Nationality, the Flag and Registration as Criteria for Demarcating the Scope of Maritime Conventions, Journal of Comparative Legislation and International Law, Vol. 19 (1937) 245-252. H.A. SMITH, The Law and Custom of the Sea (1948). G. DUMKE, Die Flagge des Heiligen Landes, Jahrbuch fur Internationales Recht, Vol. 8 (1959) 101-125. P.G. MENDER, Nationality of Ships: Politics and Law, Arkiv for Sjeret, Vol. 5 (1961) 265-369. N. SINGH, Maritime Flag and International Law (1978). N. SINGH, Maritime Flag and State Responsibility, in: Essays in International Law in Honour of Judge Manfred Lachs (1984) 657-669. See also the bibliography of the articles ~ Ships, Nationaiity and Status and ~ Flags of Convenience. R. MUELLER,

DAVID D. CARON

FREE PORTS 1. Definition; Background

A free port is a ~ port or part of a port situated outside the ~ customs frontier or deemed to be outside it in some respects. In a free port, goods may usually be delivered free of import duties or taxes; they are not normally subjected to customs control procedures and may be stored, packed or exhibited without any limitations. Under certain conditions, goods may be transshipped, offered, processed or further manufactured there. Historically the concept of free ports developed out of the privileged position of the cities of the Hanseatic League and Italian ports such as

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FREE PORTS

Leghorn in the late Middle Ages. However, since in those times customs duties served different economic purposes and the notion of the customs frontier had not yet emerged, the modern concept of free ports has only some aspects in common with the historic notion. Modern free ports developed primarily in the 19th century as an important device enabling States to improve their competitive positions in international maritime commerce. The economic advantage of free ports lies mainly in their attractiveness to foreign traders whose trading activities become cheaper and faster if pursued via a free port. Without lengthy customs formalities, a ship's time in port is shortened and the turnover of commercial capital is expedited. In general, free ports are designed to create favourable conditions for the export or transit transactions. In the United States, free ports are known as foreign trade zones (under the Foreign Trade Zone Act of 1934, as amended). This terminology is a little more precise as it makes clear that in such zones, there is only a limited exemption from particular customs control procedures and customs laws, whereas all other national laws (e.g. those concerning immigration and health control) remain applicable.

2. Free Zones

In modern international customs law free ports increasingly tend to be regarded as a special type (-- Customs Law, of maritime port International). The basic international instrument in this respect is the Kyoto Convention on the Simplification and Harmonization of Customs Procedures, a treaty drawn up under the auspices of the -- Customs Cooperation Council, Annex F. 1 of which relates to free zones. The concept of free zones is also used in the -- European Economic Community (EEC) with its established -- customs union; the basic relevant legal instrument is Council Directive 69175/EEC, as amended by Council Directive 76/634/EEC. A Council Regulation is in preparation. The wider concept of free zones covers not only the maritime free ports established in some member States (e.g. Freihiifen under para. 86 of the German Zollgesetz) but also the Free Zones of Upper Savoy and Gex in France

(-- Free Zones of Upper Savoy and Gex Case), the newly established free zones in the United Kingdom (under sections 100 A et seq. of the Customs and Excise Management Act 1979 and the Free Zone Regulations 1984), and the Free Airport of Shannon in the Irish Republic. Annex F. 1 of the Kyoto Convention concerning free zones suggests a distinction between commercial and industrial free zones, relating to the extent of the permissible handling of the goods in the free zone. Whereas in the commercial zone only such activities which are necessary for a proper preservation of the goods or an improvement of their packaging or marketable quality are permitted, in the industrial free zone even processing is allowed. In the .~ European Communities the free zones may be regarded as industrial free zone since processing is permitted in principle. Arts. 4 and 5 of Council Directive 69175/EEC, however, limit the scope of this freedom by declaring processing only permissible under those economic conditions which are to be found in the other parts of the respective member State. Apart from the "usual forms of handling" as defined in a special Council Directive (71/235/EEC) the working, processing, more complicated repairing of goods or, in certain cases, their use as agents in chemical reactions may only be carried out in accordance with the rules relating to the so-called inward processing scheme. This scheme allows goods which are finally to be exported out of the Community to be introduced in the Community free of duties but all the while remaining under customs supervision (Council Directive 69173/ EEC). The purpose of these restrictions (which for historical reasons do not apply to the area of the Old Free Port of Hamburg) is to make sure that the competition between industries located inside the industrial free zone and industries in the other parts of the Community is not distorted by the advantage the former enjoy in the free zone (~ Antitrust Law, International).

3. Customs Warehouses

Some countries such as - until recently - the United Kingdom have traditionally favoured a system of customs warehousing as opposed to the establishment of free ports or free zones (cf. Annex E. 3 to the Kyoto Convention concerning

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FREE PORTS

customs warehouses). In such cases imported goods may be stored under customs control in a designated place (e.g. a bonded warehouse) without payment of import duties and taxes. On the European Community level, customs warehousing procedures are regulated by Council Directive 69/74/EEC, as amended by Council Directive 76/634/EEC; in this respect, a Council Regulation is in preparation, too. This covers, amongst others, Zollgutlager and Zollaufschublager under paras. 42 to 46 of the German Zollgesetz as well as entrepots du douane under Arts. 140 to 162ter of the French Code des Douanes,

4. Evaluation Against the background of these alternative customs procedures, free pons have lost some of their traditional importance. In general, however, free ports or free zones remain a useful and effective instrument of national or supra-national foreign tr,ade pol~cy. EEC Council Directive (69!75/EEC) of March 4, 1969 on the Harmonization of Provisions laid down by Law, Regulation or Administrative Action relating to Free Zones, EEC Official Journal, 969, L 58111-13. EEC Council Directive (71/235/LEC) of June 21, 1971 on Harmonization of the Provisions laid down by Law, Regulation or Administrative Action relating to the Usual Forms of Handling which may be carried out in Customs Warehouses and in Free Zones, EEC Official Journal, 1971, L 143/28-30. Proposal for a Council Regulation on Free Zones and Free Warehouses. EEC Official Journal, 1985, C 283/9-14 (as amended by 0.1., 1986, C 154/3). International Convention on the Simplification and Harmonization of Customs Procedures. May 18. 1973. With Annexes E.3., EA., E.5., UNTS, Vol. 950 (1974) 269-341; Annex F.l Co icerning Free Zones, EEC Official Journal, 1978, L l60/21-24. Regime international de'; zone, franches dans les ports maritimes, RdC. Vol. 21 (!92R I) 375-42S. RS. THOMAN, Free Ports and Foreign-Trade Zones (1956). P.·M PAWLIK, Die rechtliche Struktur von Frerh.irer und Hafenfreizonen. Ihesis, University of \-hin;1t.:r (1974). A.M. MIATELLO~ Les zones fnlf"·hcs, :es in~,ututl(IIl~ ...imilaires et Ie droit comrr e , Rivista di Diritto Europeo, Vol. 22 ( JlJ F.F. OLBERTZ, Zollagcr ulk t-t eizonen, in. R. Rcgul (ed.), Gerneinschaitszollrecht (J982) l!J8'i-l no. R. HAAS,

WOLFGAJ\G GRAF VITZTHUM

FREEDOM OF NAVIGATION see Navigation, Freedom of

G}:NEVA CONVENTION AND STATUTE ON THE INTERNATIONAL REGIME OF MARITIME PORTS Article 379 of the - Versailles Peace Treaty (1919) and corresponding articles of the other - peace treaties after World War I envisaged the conclusion of a general convention on the - international regime of - ports. Negotiations within the framework of the - Barcelona Conference (1921) on Communications and Transit and the subsequent conferences at Genoa (1922) and Geneva (1923) led to the signature of the Geneva Convention and the annexed Statute on the International Regime of Maritime Ports of December 9, 1923 (LNTS, Vol. 58, p. 285). Having entered into force on July 26, 1926, the Convention and Statute have been ratified by some 30 States, including most European States, bur not by the United States, the Soviet Union, China and the Latin American States. Resulting from the efforts of the - League of Nations to liberalize international communications and transit, the Statute is an attempt to implement the principle of freedom of navigation in the sensitive field of usage of ports ( - Navigation, Freedom of). In ArL 2 the Statute lays down the principle of equality of treatment with regard to access to ports and all transactions related to the use of ports (- States, Equal Treatment and Non-DIscrimination). Transactions in this sense include all commercial operations connected with navigation and transport of cargo. To achieve equality, which is granted under a condition of - reciprocity, the Statute contains a combined "national treatment" and - "most-favourednation" clause. According to Art. 5 the principle of equality of treatment also applies to the levying of customs duties and charges and, according to Art. 6, to railway transportation of maritime cargo. Application of the Statute is restricted to maritime ports without reference to any special forms of ports, as for example - free ports. This excludes all ports not frequented by sea-going

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GULF OF MAINE CASE

vessels and also all ports not normally used for foreign trade (Art. 1). Thus, the Statute reserves for States the possibility to close ports to foreign trade. Outside its field of application are also -+ cabotage, -+ fisheries and vessels exercising any form of public authority (-+ State Ships). The Convention and Statute have succeeded in preventing forms of legal discrimination, but they have not liberalized maritime navigation in an economic sense. In particular, payment of subsidies distorting competition in the field of maritime transportation and also de facto reservation of maritime cargo to nationals are not covered by the Convention. The current practice of flag protectionism, especially in the context of -+ liner conferences, now regulated by the April 6, 1974 Code of Conduct for Liner Conferences of the -+ United Nations Conference on Trade and Development (ILM, Vol. 13, p. 917), has superseded the liberal concept of free trade in maritime transport and demonstrates a form of protectionism not consistent with the liberal spirit of the Geneva Convention and Statute.

part of the Georges Bank and disrupted existing arrangements regarding fishing rights in the area (-+ Fishery Zones and Limits; -+ Maritime Boundaries, Delimitation). The United States and Canada made an attempt to settle the dispute by signing two treaties on March 29, 1979. One established the process for resolving the boundary dispute (Treaty to Submit to Binding Dispute Settlement the Delimitation of the Maritime Boundary in the Gulf of Maine Area, March 29, 1979, ILM, Vol. 20 (1981) p. 1377); the other one allocated East Coast fishery resources (Agreement on East Coast Fishery Resources with Canada, March 29, 1979, S. Exec. Doc. V, 96th Cong., 1st Session (1979». The parties linked the treaties so that only after ratification of both treaties could they enter into force. However, after the amendment of the Dispute Settlement Treaty in 1981, they disjoined the treaties so that the Dispute Settlement Treaty could enter into force on November 19, 1981 without the prior ratification of the Fishery Resources Treaty.

Geneva Convention and Statute on the International Regime of Maritime Ports, Geneva, December 9, 1923, LNTS, Vol. 58 (1926) 285-313.

2. Constitution of the Chamber

La convention generale des ports maritimes, Revue de Droit International et de Legislation Comparee, Vol. 51 (1924) 680-708; Vol. 52 (1925) 115-154. R. LAUN, Le regime international des ports, RdC Vol. 15 (1926 V) 5-143. E.·G. HOFMANN, Der Grundsatz der Freiheit der Seeschifffahrt im Volkerrecht unter besonderer Berucksichtigung des Prinzips der Gleichbehandlung (1956). AV. LOWE, The Right of Entry into Maritime Ports in International Law, San Diego Law Review, Vol. 14 (1977) 597-622.

J. HOS11E,

STEFAN OETER

GULF OF MAINE CASE 1. History of the Dispute In 1977 the long standing dispute over maritime boundaries in the Gulf of Maine became acute after the extension of the -+ exclusive economic zone to 200 miles by Canada and the United States. The concurrent extensions produced conflicting claims of jurisdiction over the northeastern

The Dispute Settlement Treaty (Art. I) required the parties to submit the delimitation to the -+ International Court of Justice (ICi); the terms of the Special Agreement annexed to the Treaty provided for a special chamber of the Court to be established according to Arts. 26(2) and 31 of the Statute of the Court. In the event the chamber was not constituted within six months after the Treaty became effective, Art. II provided that either party could terminate the Special Agreement and bring the dispute before a five-member -+ arbitration panel according to the annexed Arbitration Agreement. By an order of January 20. 1982 the ICJ constituted - for the first time in its history - a special chamber after consultation with the parties. The chamber was composed of Judge Ago (President}, Judges Gros, Mosler and Schwebel, and Judge ad hoc Cohen. The consultation process raised differences of opinion in the Court as to the participation of the parties in electing the judges to the chamber. The fact that the composition of the chamber was fully in accordance with the wishes of the parties was qualified by Judge Morozow as an "ultimatum" that stultified the Courts's sovereign

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right to elect the judges independently of the parties' wishes. Dissenting Judge EI'Khani expressed the fear that the selection of judges from only industrialized Western States was contrary to the universality of the Court. Although the arguments of the dissenters are to be taken seriously especially when the litigated issues may arise beyond the narrow Western context and thus may challenge the uniformity of Court decisions, it must be stressed that a chamber should be so constituted that the parties are convinced of its ability to settle the dispute in an acceptable way. Moreover, An. 26(2) recognizes that the control of the parties over the selection of the judges of a special chamber serves the objective of encouraging the use of the Court. Nevertheless, the Court should circumscribe the scope of this new procedure by balancing the benefits of an increased use of the Court against the possibility of undermining the precedential impact of the decisions on disputes between other nations. 3. The Special Agreement In the Special Agreement the Chamber was asked to decide, in accordance with the rules and principles of international law, "the course of the single maritime boundary that divides the continental shelf and fisheries zones" of the two States. Thus, for the first time. the Chamber not only had to actually draw the delimitation line, but had to draw a unique line for The - continental shelf and the fishery zone delimitation. The Special Agreement, however, identified the landward-most point of the boundary to be drawn as well as the seaward triangular area in which the boundary was to terminate, a provision which created some controversy but rinally was held to be acceptable because of the reason given for its specification and because of the fact that, under international law, mutual agree ment between the States concerned is the prefer red procedure for establishing a maritime delimitation. 4. The Decision of the Chamber of October 12, 1984 First of all, the Chamber found it necessary to define the delimitation area. It found that the Gulf of Maine was shaped as a rectangle with an imaginary closing line joining the two most promi-

nent seaward landpoints of the Parties, Nantucket Island (Massachusetts) and Cape Sable (Nova Scotia). The only coasts involved, according to the Chamber, were those directly surrounding the Gulf, while the area to be delimited comprised this "inner Gulf' and another expanse including the whole of the Georges Bank, the main focus of the dispute. As to the geological and geomorphological characteristics of the area, the Chamber noted in accordance with the Parties that there was no support for basing the boundary upon the natural prolongation of the coastal landmass and that the waters in the Gulf of Maine as well as the continental shelf formed a single, continuous ecosystem without an indication of any "natural boundaries" of differing ecological units. The Chamber next considered the different boundary lines proposed by the United States and Canada. However, it rejected them all because the two lines successively put forward by Canada centered primarily upon continental shelf aspects whereas the United States lines were both drawn with essentially the fishery regime in mind. Thus both sets of proposals were inadequate for the determination of one single line covering both aspects. As to the applicable law, the Special Agreement stipulated that the respective maritime zones of the Parties should be delimited according to the principles and rules of international law. Thus, the Chamber examined: (i) the 1958 Geneva Convention on the Continental Shelf (UNTS, Vol. 499, p. 311), (ii) the previous international delimitation cases, and (iii) the provisions of the 1982 Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with Corr.). These sources comprise, according to the Chamber, one general principle agreed upon also by the Parties. The Chamber reformulated this general principle in the following terms: "(1) r-io maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third

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party possessing the necessary competence" (~ Peaceful Settlement of Disputes). "(2) In either case, delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result" (~ Equity in International Law). As to the application of equitable criteria and special methods in the delimitation process, the Chamber first examined whether special international law, i.e. the 1958 Geneva Convention on the Continental Shelf, had to be applied. Since, however, it was not only the continental shelf which had to be delimited, but also and by the same line, the fishery zones, the Chamber found that Art. 6 of the Convention was neither applicable as treaty law nor had developed into a generally applicable rule of international law. Thus the Chamber had to select out of the whole range of applicable criteria and practical methods of delimitation the ones most applicable to the present case. The Chamber choose a criterion which had not been advanced by the Parties, i.e. the equal division of those areas where the maritime projections of the States coastal frontages overlap. This criterion which accorded primacy to geographical factors was seen as equitable not only because it was simple but also because it avoided undue emphasis on either the continental shelf or the superjacent water aspect. However, this method required corrections with regard to the difference in length of the respective coastlines of the parties and the effect to be given to tiny islands, rocks or low-tide elevations. In drawing the actual delimitation line, the Chamber observed that the particularities of the area did not allow for one single method to be applied for the whole delimitation li!1e. Thus the Chamber divided the line into three segments, two in the inner Gulf area, the third one in the outer area, all three defined for geographic reasons. The first segment referred to a region where the coastlines of the Parties were regarded as adjacent. The Chamber did not proceed here by drawing an equidistance line but by applying the method of constructing perpendiculars to the basic coastal lines. In the second part, the coastlines were characterized as lying opposite one another.

..

_ __

__

_._._._

,.

In this sector the Chamber had to take account of the length of the coastlines and the presence of two small islands. Accordingly it made the corrections necessitated by these circumstances on the median line drawn in this part. The third segment was situated entirely in the open ocean; as there were no geographical points of reference, the Chamber chose the method of perpendicularity of the delimitation line to the imaginary closing line of the Gulf. The remaining task of the Chamber was to test the equitableness of its delimitation line. In this evaluation the Chamber did not include political and economic aspects which were not "legal" considerations but only could have a bearing in a situation where the result would be "likely to entail catastrophic repercussions for the livelihood and economic well-being of the population of the countries concerned". As there would be no such result and as each country had been accorded the fishery resources argued to be most important to its economy, the Chamber found that the result of the delimitation was equitable.

5. Analysis of the Decision In this case the Chamber, whose decision is to be considered as a decision rendered by the Court itself (Art. 27 of the Statute), was confronted with two tasks: (a) the development of the law applicable to the delimitation of single-line maritime zones and (b) the settlement of a particular dispute between the Parties. As to the first task the Chamber was in a unique position since there existed neither international practice nor international rules as guidelines for its decision. According to its recent practice the Chamber in this case also followed the trend which accords predominance to the 1982 Law of the Sea Convention - although not yet in force - and disregards the 1958 Geneva Conventions. Thus i: preferred the vague rule of the 1982 Law of the Sea Convention, centering only upon the equit.. able ness of the result, to the more precise rules ot the 1958 Convention on the Continental Shelf in force between the Parties. Whether this choice was reasonable or whether it was legally correct solely because two purposes of delimitation had to be met by one line remains doubtful. Judge Gros criticized this point in his dissenting opinion

._--_._-------_._ .._-_.._ .. __._

-_ .. _--

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defining jurisdiction based on the application of the 1982 Convention as an "arbitrary one based on individual interpretation of equity". This case-bycase jurisdiction will be unavoidable under the 1982 Convention since there are no guidelines upon which an "equitable result" has to be based. Nevertheless, by this decision the Chamber has contributed to clarifying at least what is not relevant in delimitation cases, i.e, geological and geomorphological characteristics of the area. The Chamber however gave predominance to geographic factors which it found to be equitable because this method seemed to it a "neutral" one. This is a debatable position, as is shown by the arbitrary choices necessitated in defining the geometric rectangle and in heating the Bay of Fundy. In addition the Chamber made an attempt to clarify the process of considering and applying equitable criteria, relevant circumstances and equitable results. But this attempt only demonstrates that it is unlikely that rigid rules or very general principles and methods may be established in this area and that there exists a considerable margin of appreciation for the Court in delimitation cases. Thus, in such cases there will always be more than one possible and equitable solution, which means that future cases will be unpredictable and it will be difficult' to draw a clear line between decisions taken on the basis of law and decisions taken ex aequo et bono. As to the second aspect, the resolution of the dispute between the parties presented even more difficulties. Originating out of economic factors, that is to say not legal aspects, the dispute had to be settled in "accordance with principles and rules of international law". Thus the Chamber had no choice but to render a judgment in which the legal rationale differed from the real source of the dispute. But despite the fact that, until now, in the continental shelf delimitation cases spatial rather than functional factors had to be taken into account and despite the fact that international law does not provide rules for finding a single boundary line for several delimitation purposes, the Chamber ought to have given more weight to economic aspects than it did, at least somewhat more than simply taking "catastrophic" consequences into account. The decision does not mark the final point in the dispute but leaves it to

the Pal ties themselves to cooperate and to negotiate in order to reach a definitive solution of the dispute. This unsatisfactory situation is unavoidable where the solution of economic disputes - and that is the background of all delimitation disputes - is sought exclusively through the application of legal norms.

Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, 10 Reports (1984) 246-391).

La constitution au sein de la Cour internationale de Justice d'une chambre chargee de regler le differend de frontieres maritimes entre les Etats-llnis et Ie Canada, AFDI, Vol. 27 (1981) 213-221. D.M. McRAE, Proportionality and the Gulf of Maine Maritime Boundary Dispute, CanYIL, Vol. 19 (1981) 287-302. C.D. NIED, International Adjudication: Settlement of the United States-Canada Maritime Boundary Dispute, Harvard IU, Vol. 23 (1982) 138-143. E ZOLLER, La premiere constitution d'une chambre speciale par la Cour internationale de Justice: Observations sur l'ordonnance du 20 janvier 1982, RGDIP, Vol. 86 (1982) 305-324. K. OELLERS-FRAHM, Die Bildung einer ad hoc-Kammer des Internationalen Gerichtshofs gemiiB Art. 26 Abs. 2 des Statuts, AVR, Vol. 21 (1983) 316-325. L.E. CLAIN, Gulf of Maine - A Disappointing First in the Delimitation of a Single Maritime Boundary, Virginia Journal of International Law, Vol. 25 (1985) 521-620. L.H. LEGAULT and B. HANKEY, From Sea to Seabed: The Single Maritime Boundary in the Gulf of Maine Case, AJIL, Vol. 79 (1985) 961-991. T.L. McDORMAN et aI., The Gulf of Maine Boundary, Marine Policy, Vol. 9 (1985) 90-107. D.R. ROBINSON et a1., Some Perspectives on Adjudicating Before the World Court: The Gulf of Maine Case, AJIL, Vol. 79 (1985) 578-597. J. SCHNEIDER, The Gulf of Maine Case: the Nature of an Equitable Result, AJIL, Vol. 79 (1985) 539-577. A.F. SHELl Y, Law of the Sea: Delimitation of the Gulf of Maine, Harvard IU, Vol. 26 (1985) 646-654. N. TERRES, The United States/Canada Gulf of Maine Maritime Boundary Delimitation, Maryland Journal of International Law and Trade, Vol. 9 (1985) 135-180. G. GUYOMAR.

KARIN OELLERS-FRAHM

GULFS see Bays and Gulfs

HELEANNA INCIDENT

HELEANNA INCIDENT The shipwreck of the ferryboat He/canna was noticed by the European public but never received much attention in international law literature. However, the incident raised important questions not only of maritime law but also of international criminal law (~ Criminal Law, International) and ~ jurisdiction. The He/eanna was a ferryboat sailing under the Greek flag on a liner service in the Adriatic Sea (~ Flags of Vessels). On August 28, 1971, while sailing from Athens to Ancona, the ship caught fire and sunk. The incident occurred 25 nautical miles north of Brindisi and 3 nautical miles outside the Italian ~ territorial sea. An orderly evacuation of the ferryboat failed and in the panic 26 passengers perished, mainly Italian nationals. The master of the ship, a Greek naval officer Dimitros Antipas, was arrested by the public prosecutor of Brindisi on the charge of manslaughter. Greece, claiming that the incident had happened outside Italian territorial waters. protested this action and claimed sole competence for any criminal adjudication as the flag State of the He/eanna (~ Protest). The Italian Government contended, on the contrary, that it was entitled to pursue criminal proceedings even for an act committed outside territorial waters as some of the victims had died in Italian territorial waters and one of them in a hospital in Brindisi. It also invoked the jurisdictional principle of passive personality by referring to the Italian -~ nationality of some of the victims. In its judgment of June 4, 1976 the Tribunale of Brindisi convicted Captain Antipas to six years imprisonment. Concerning its jurisdictional basis, the Tribunale had come to the conclusion that the whole incident had occurred inside Italian territorial waters. Italy thus had criminal jurisdiction under Art. 19, para. 1, of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol. 516, p. 205). An appeal against the judgment had no success; by a decision of April 22, 1977 the Corte di Appello (Court of Appeal) of Leece confirmed the conviction by the court of first instance while increasing the sentence of imprisonment to eight years. The similarity to the ~ Lotus case is obvious,

135

although the Heleanna does not raise any problem of ~ collisions at sea involving ships of different nationality. The main legal question unresolved in the Lotus decision was whether, as a principle, penal jurisdiction lies with the flag State in cases of accidents on the ~ high seas. The ~ Permanent Court of International Justice (PCIJ) did not recognize such an absolute principle in the Lotus decision, although such a principle is now embodied in a series of multilateral conventions which are designed to resolve this question. The Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) provides in Art. 6(1): "Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in these articles, shall be subject to its exclusive jurisdiction on the high seas." In addition, Art. 11 (1) states: "In the event of a collision or of any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. " In 1971 this Convention had been ratified by Italy but not by Greece. On the other hand, Greece had ratified the International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation of May 10, 1952 (UNTS, Vol. 439, p. 233), which contains provisions on penal jurisdiction identical to those in the High Seas Convention. The fact that both governments had accepted the same legal rule in two different conventions is not sufficient to constitute a contractual relationship between both States Although both treaties can be categorized as lawmaking treaties which are directed at the tecognition of the same legal principle, this does not help to create a legal relationship between Greece and Italy based on the recognized principle of exclusive jurisdiction. Nevertheless, there is much evidence to the

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effect that the codification of the principle of exclusive jurisdiction in a series of multilateral conventions reflects an overall consensus of States, which qualifies this principle as a rule of -+ customary international law. Even the majority of the PCIJ in the Lotus 4€< ision acknowledged that the flag State generally has the sole competence of criminal adjudication over incidents of navigation on the high seas. An exception to the flag State's competence over the damaged ship was recognized for cases of collision where the offence has its origin on a foreign ship. The Italian reference to the lethal effects of the accident contends that there is such a link. However, this seems to misinterpret the Lotus reasoning which emphasized that the physical effects of the offence occurred on a ship under Turkish flag thus establishing a jurisdictional link to Turkey. In the Heleanna case the scene of action was the Greek ferryboat, a situation which excludes Italian jurisdiction. Whether the remaining link of passive personality jurisdiction (nationality of victims) would be enough to justify criminal adjudication is doubtful. The recognition of such a link of jurisdiction would undermine any exclusive regime of penal jurisdiction on the high seas and thus has never found much support in maritime law. The Italian position in the Heleanna incident seems to be the only case in the last decades where the legal force of the principle of exclusive penal jurisdiction of the flag State has been disputed. But since there is very little relevant practice in this field, it is debatable also whether it is a precedent preventing the formation of customary law in this respect. The ambiguity in the evaluation of the Heleanna incident reflects the existing uncertainties in international law concerning questions of penal jurisdiction in cases of collisions or other incidents. These uncertainties will remain as long as the relevant conventions have not succeeded in establishing an overall contractual regime. The Heleanna Case and International Lawmaking Treaties: A New Form of Concluding a Treaty?, AJIL, Vol. 69 (1975)624-628. D. CIOBANU, The Flag Law Revisited: The Heleanna Case, RevBelge, Vol. 12 (1976) 166-171.

D.C. DICKE,

STEFAN OETER

HIGH SEAS 1. Development of Rules

The notion of the high seas took shape when the claims to sovereignty over vast expanses of sea advanced by various powers from the end of the 15th to the 17th century succumbed to the general acceptance of the idea that a State's -+ sovereignty was limited to a narrow band of sea adjacent to the coast (the -+ territorial sea; -+ Jurisdiction of States). The century-old controversy between the ideas of mare clausum (Selden) and mare liberum (Grotius), as well as the cla sh between the interests of the States reached its conclusion during the 18th century with the triumph of the Grotian idea of the freedom of the high seas beyond territorial waters. The claim to freedom of innocent navigation which had been advanced during the era of mare clausum became restricted to the territorial sea and gave rise to the rule on -+ innocent passage. Beyond the limits of the territorial sea, in what came to be known as the high seas, a more general freedom prevailed, even though navigation was its most important component (-+ Navigation, Freedom of). This freedom was negative in nature as it was the reflection of the absence of -+ territorial sovereignty in the high seas. The notion of the high seas together with the prevailing freedoms and exceptions were codified in the rules of the Geneva Convention on the High Seas of April 29, 1958, which, by and large, still correspond to -+ customary international law. Two important developments have nonetheless occurred since 1958 which modify the relative importance of these rules. First, the spatial dimension of the high seas has shrunk because of the extension of State sovereignty over various areas of the seas and because of the creation of -+ exclusive economic zones: this is clearly reflected in the United Nations Law of the Sea Convention of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.). Second, the development as a consequence of technological advances of new activities at sea distinct from navigation and fishing has given a new importance not only to the rules on the preservation of the marine environment, but also to those provisions intended to accommodate different activities on

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HIGH SEAS

the high seas (--'; Marine Environment, Protection and Preservation; --'; Marine Resources).

2. Spatial Limits According to Art. 1 of the 1958 High Seas Convention, "the term 'high seas' means all parts of the sea that are not included in the territorial sea or in the internal waters of a State". The situation in current international law is reflected in the 1982 Law of the Sea Convention. Under Art. 86, the high seas provisions "apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the archipelagic waters of an archipelagic State". As archipelagic waters are waters upon which the State that has drawn archipelagic --'; baselines can extend its sovereignty, the restriction relating thereto corresponds to the same principle as that governing the territorial sea (--'; Archipelagos). As regards the economic zone, coastal States have only those sovereign rights and jurisdiction which are specifically directed to economic exploitation, protection of the environment and --'; marine research. The waters corresponding to the exclusive economic zone should thus maintain their character as high seas. The 1982 Convention sets a different rule, however. Under this rule the exclusive economic zone has a specific legal regime that includes the application to it of a well-defined group of the rules concerning the high seas, but admits no presumption of a residual rule of freedom (Arts. 55, 58 and 59). The spatial limits of the high seas are variable in time. They depend on State action concerning the limits of the territorial seas and the institution of archipelagic waters and of exclusive economic zones. As regards the waters adjacent to --'; Antarctica, the States parties to the Antarctic Treaty of December 1, 1959 have agreed not to assert new claims of territorial sovereignty nor to enlarge existing ones. This certainly precludes the institution of exclusive economic zones. Since the old claims which may extend to sea areas are suspended in their effect by the Treaty, as long as the Treaty is in force all waters adjacent to the Antarctic are either high seas or should be assimilated to the high seas. The exercise by the coastal State of sovereign rights on the --'; continental shelf is without

prejudice to the nature of the superjacent waters as high seas. However, this concerns only the waters above the part of the continental shelf outside the 200 mile limit, when an exclusive economic zone has been proclaimed. Similarly, unless an exclusive economic zone has been created, the institution of a --'; contiguous zone on waters beyond the limits of the territorial sea does not influence the nature of these waters as high seas. The fact that the sea-bed beyond national jurisdiction has been proclaimed the --'; common heritage of mankind, and that under the 1982 Convention it will be under the regime of the --'; International Sea-Bed Area, also will not influence the status of the superjacent waters as high seas (Art. 135). It may be questioned whether the notion of high seas includes the --'; sea-bed and subsoil. That the high seas are defined by the absence of territorial sovereignty or jurisdiction yields an answer in the affirmative, which is not changed by the existence of sovereign rights on the continental shelf or by the regime of the International Sea-Bed Area. These rights and the regime are specifically aimed at the exploration and exploitation of resources and consequently do not impinge on the residuary freedom of all States as regards other activities on the sea-bed. 3. Freedom of the High Seas Art. 87 of the 1982 Convention sets forth a list of freedoms of the high seas. It comprises freedom of navigation, --'; overflight, laying submarine -+ cables and --'; pipelines, constructing --'; artificial islands and other installations, fishing and scientific research. This listing is, as the similar one in the Geneva High Seas Convention (Art. 2), non-exhaustive. The exercise of the freedoms of the high seas presupposes that States engage in activities on the high seas through objects linked to them by a particular connection. These objects are "ships", and the connection is the flying of the States' flag (--'; Flags of Vessels). The international legal rule drawing the consequences from the high seas being a space in which no sovereignty extends and in which States engage in activities through ships flying their flag provides that States have the right

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to claim non-interference with their ships by other States on the high seas. This is the essence of the freedom of the high seas. This rule is reinforced by two corollaries. The first is that "no State may validly purport to subject any part of the high seas to its sovereignty" (1982 Convention, Art. 89). The second is that the rule on high seas freedom makes no distinction between coastal and - land-locked States. This aspect is linked to the right of land-locked States to have ships flying their flag, a right clearly recognized since the Barcelona Declaration of April 20, 1921 (- Barcelona Conference (1921». The basic rule on the freedom of the high seas is subject to a complex system of exceptions, which may be divided in two groups. The first includes rules permitting various forms of interference with the activities of a State on the high seas. The second includes rules for the reciprocal accommodation of activities conducted by different States on the high seas (- Reciprocity). 4. Rules on Interference (a) Means, forms, subjects According to customary international law, interference with the exercise of high seas freedoms is reserved to - warships and to - State aircraft and also, under the 1982 Convention to "other ships or aircraft clearly marked and identifiable as being on Government service and authorized to that effect". Moreover, warships, as well as "ships owned or operated by States and used only on government non commercial service" (- State Ships) have complete immunity from the jurisdiction of any State other than the flag State (1982 Convention, Arts. 96 and 97; - State Immunity). Thus, the exercise of the freedom of the high seas through those ships cannot be interfered with by other States. Some forms of interference are specified and regulated in international law. Such is the right of visit, which consists in the right to board a ship for the purpose of verifying its right to fly its flag and which may include examinations on board beyond the checking of documents (1982 Convention, Art. 110; - Ships, Visit and Search). The rules on other forms of interference such 1ls seizure or arrest are less detailed and open the way for a

variety of interpretations which may depend on maritime practice and domestic legal systems. Other forms of interference are even less specific and left to the interplay of the coastal State's discretion and other principles of international law: the "control" coastal States may exercise in the contiguous zone is an example. The States entitled to interfere with the exercise of high seas freedoms by other States range from all States, when the rules permitting interference protect fundamental interests of the international community, to a specific State, when the interest protected although fundamental enough to allow for an exception to the exercise of high seas freedoms, is restricted to a single State. (b) Cases of interference According to general international law, all States are entitled to exercise the right of visit on the high seas regarding ships engaged in - piracy or in the slave trade (- Slavery). The Geneva High Seas Convention adds to these the case of the ship that, though flying a foreign flag or refusing to show its flag, is in fact of the same nationality as that of the warship (Art. 22). The 1982 Law of the Sea Convention adds further the case of the ship without nationality (Art. 1l0(1)(d». In the latter two cases interference is not an exception in the same sense as in the former two cases: it depends on the fact that there is no State that can claim the right of non-interference against other States. Only in the case of piracy is a stronger measure of interference, seizure, permitted to all States (1982 Convention, Art. 105). With regard to ships engaged in the slave trade enforcement rights beyond that of visit are limited to the flag State under the relevant international conventions of September 25, 1926 (High Seas Slavery-Convention, UNTS, Vol. 60, p.253) and September 7, 1956 (Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, UNTS, Vol. 266, p.4O).

The 1982 UN Convention on the Law of the Sea adds the case of ships engaged in illicit traffic in narcotic drugs (Art. 108; - Drug Control, International) and of ships engaged in unauthorized broadcasts from the high seas (Art. 109; - Pirate Broadcasting). In the latter case not only is the right of visit permitted on the high seas but also

HIGH SEAS

•

that of arresting ships and individuals and of seizing apparatus. These rights are nonetheless restricted to the States directly affected. It is uncertain whether these rules already fully correspond to customary law. The need of the coastal State to protect its coastline from imminent danger of pollution has given rise to the right of taking and enforcing measures "beyond the territorial sea" in case of threatened or actual damage to the coastline caused by a maritime casualty. This rule cristallized with the Torrey Canyon incident in 1967 and was codified in the Brussels Convention of November 29, 1969 (International Convention Relating to Intervention of the High Seas in Cases of Oil-Pollution Casualties, UNTS, Vol. 970, p. 212) and in Art. 221 of the 1982 Law of the Sea Convention. It may be argued whether this is an independent rule or consequence of principles such as - self-defence or necessity. In other cases, the coastal State may interfere with the exercise of high seas freedoms by other States to protecting its interest in the observance of its laws and regulations. These are the cases of the control exercised in the contiguous zone and the right of - hot pursuit. Various treaties provide for further cases' of interference. These include treaties concluded by the United States with other States to combat liquor smuggling during the prohibition era and to fight the smuggling of narcotic drugs. Some bilateral and multilateral agreements on fisheries also contain similar provisions. They may be seen as implementing the general obligation of cooperation among States in repressing illicit traffic of narcotics and in rationally exploiting the living resources of the high seas (- Fisheries, International Regulation).

5. Accommodation of Activities (a) General aspects Various rules set out criteria for accommodating the freedoms of the high seas or the exercise of these freedoms with activities on the continental shelf as well as in the International Sea-Bed Area under the 1982 Law of the Sea Convention. Some of these rules have a general purport; they do not seek to give priority to one activity over another, but rather to ensure as far as possible the

139

coexistence of different activities. Other rules indicate a preference for one activity over another, while at the same time setting out specific conditions to be met for the preference to be applicable. The general rules apply not only when the specific ones are inapplicable; they may be used for interpreting the specific rules on the basis of their general purpose of ensuring coexistence. Conversely, from the specific rules a general principle can be drawn: the need to safeguard human life at sea. Also the principle according to which "the high seas shall be reserved for peaceful purposes" (1982 Convention, Art. 88) can be seen as a general rule on accommodation of activities, even though it would seem to add little to Art. 2(4) of the - United Nations Charter.

(b) Accommodation of high seas freedoms The general rule is contained in Art. 2 of the Geneva High Seas Convention and in Art. 89(2) of the 1982 Convention. According to the latter, the freedoms of the high seas "shall be exercised with due regard to the interests of other States in their exercise of the freedom of the high seas". The principle underlying this rule is that the exercise of one freedom is the limit to the exercise of the others. No preferences are given and the coexistence of the various activities has to be sought through the necessary accommodations. The solution that best ensures the respect of all competing interests has to be preferred, taking into account the principle of safeguarding life at sea. This rule has been invoked, inter alia, to justify claims to protracted or permanent uses of portions of the high seas, for example, for the purpose of conducting weapons and missile launching exercises or - nuclear tests, or constructing and operating - port facilities beyond the limit of the territorial sea (the "super-ports", now included in the coastal States' rights in the exclusive economic zone). Many specific rules concern accommodation of the exercise of the freedom of navigation by various States. In general they set forth flag State obligations which are contained in both the 1958 and 1982general conventions on the law of the sea and in instruments adopted within the framework of the - International Maritime Organization

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and the ~ International Labour Organisation. They concern safety of navigation, especially as regards construction, equipment, seaworthiness and manning of ships, labour conditions on board, the use of signals, maintenance of communications and avoidance of collisions. Under the Geneva High Seas Convention and the 1982 Convention ;: States, in taking measures on these matters, must conform to "generally accepted international regulations, procedures and standards". Thus the Conventions make at least the main principles contained in the most widely ratified conventions applicable also to non-parties. Moreover, Art. 94 of the 1982 Convention sets a group of substantive minimum requirements with which all States must comply as regards safety of navigation. Accommodation of the exercise of the freedom of fishing by various States is sought through the rules of the 1982 Convention providing for the ~ conservation of living resources in the high seas directly by States and through their cooperation. As regards accommodation of the exercise of various freedoms of the high seas by different States, the specific rules are few. Art. 261 seems to give preference to the exercise of freedom of navigation over the freedom of scientific research, though only as regards deployment of scientific installations and equipment in established shipping routes. Also rule 18 of the 1972 Regulations for avoiding collisions at sea, though aiming mostly at establishing priorities among various forms of navigation, indirectly sets priorities between various other freedoms of the high seas (Convention on the International Regulations for Preventing Collisions at Sea, October 20, 1972, British Command Papers, Cmnd. 6962, Treaty Series (UK) No. 77 (1977».

(c) Accommodation in relation to the continental shelf According to Art. 78(2) of the 1982 Convention, "[t]he exercise of the rights of the coastal States over the continental shelf must not infringe or result in any unjustifiable interference with navigation and other rights and freedoms of other States ...." This general rule aims at ensuring coexistence of the various uses. However, it seems to include a slight preference for the freedoms of the high seas. The most interesting specific rules concern

installations on the continental shelf and their accommodation with the exercise of high seas freedoms. Art. 60 of the 1982 Convention, applicable to the continental shelf through Art. 80, gives priority to navigation by prohibiting the establishment on the continental shelf of installations which may interfere with the use of recognized ~ sea lanes essential to international navigation, while other provisions of the same article, especially those on removal of abandoned installations, seek to ensure coexistence of the exercise of the high seas freedoms and of the coastal States' sovereign rights.

(d) Accommodation in the International SeaBed Area The 1982 Law of the Sea Convention contains a general rule on compatibility between exploration and exploitation "activities in the Area" and "other activities in the marine environment" (Arts. 87(2) and 147(1) and (3», corresponding by and large to the general rule of compatibility considered above. Though the rule is similar, under the 1982 Convention "activities in the Area" are not high seas freedoms and it might be argued that because they are conducted on behalf of mankind, they should be given preference over high seas freedoms at least in some cases. Under general international law this point is, however, widely disputed. The laws on sea-bed mining beyond the limits of national jurisdiction enacted by some industrialized countries between 1980and 1985 contain rules on accommodation close to those on the accommodation of the high seas freedoms in the Geneva Convention on the High Seas. The 1982 Law of the Sea Convention also contains some specific rules aiming at obtaining compatibility of installations used for deep sea-bed mining and the high seas freedoms such as navigation and fishing (Art. 147(2».

6. Jurisdiction over Collisions Under Art. 11 of the Geneva High Seas Convention and Art. 97 of the Law of the Sea Convention, only the authorities of the flag State or of the State of the person whose responsibility is involved have criminal and disciplinary jurisdiction over collisions or navigation incidents on the high seas. These provisions confirm those of the Brussels Convention of May 10, 1952 (UNTS, Vol. 439, p. 233). They run counter to the judgment in

HOSPITAL SHIPS

the ~ Lotus Case, according to which international law provides no limit to the criminal jurisdiction of States deriving from the place of the offence or from the nationality of the persons involved. As regards arrest and detention of ships involved in collisions, jurisdiction belongs to the flag State only (1982 Convention, Art. 97(3)). [First] United Nations Conference on the Law of the Sea, Official Records, Vols. 4-5 (1958). Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Third United NationsConference on the Lawof the Sea, Official Records, Vols. 1-17, (1975-1984). United Nations Convention on the Law of the Sea, December 10, 1982, UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Le droit international public de la mer, 3 vols. (1932-1934). E. MARGOLIS, The Hydrogen Bomb Experiments and International Law, Yale Law Journal, Vol. 61 (1955) 629-647. M.S. McDOUGAL and N.A. SCHLEI, The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security, Yale Law Journal, Vol. 64 (1958) 648-710. M.R. SIMONNET, La convention sur la haute mer (1966). B. CONFORTI, Does Freedom of Navigation still exist?, ItaIYIL, Vol. 1 (1975) 3-15. R. LAPIDOTH, Freedom of Navigation in the New Law of the Sea, Israel Law Review, 1975, 456-502. y. VAN DER MEENSBRUGGE, Le pouvoirde policedes Etats en haute mer, RevBelge, Vol. 11 (1975) 56-102. WE. BUTLER, The Freedom of Navigation under International Law, Georgia Journal of International and Comparative Law, Vol. 6 (1976) 107-118. M.S. McDOUGAL, The Law of the High Seas in Time of Peace, in: R. Lillich and J.N. Moore (eds.), Readings in International Law from the Naval War College Review 1947-1977 (1980) 175-187. T. TREVES, La navigation, in: R.J. Dupuy and D. Vignes, Traite du nouveau droit de la mer (1985) 687-808.

G. GIDEL,

TULLIO TREVES

HUACKING see Civil Aviation, Unlawful Interference with

HOSPITAL SHIPS 1. History After the protection of the wounded and sick on land had found a legal basis in the Geneva Convention of 1864, the need was soon felt for

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similar protection of the ~ wounded, sick and shipwrecked soldiers in naval warfare (~ Geneva Red Cross Conventions and Protocols). Following an unsuccessful attempt by a diplomatic conference in 1868, the Hague Conference of 1899 adopted a Convention (III) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864 (July 29, 1899, Martens NRG2, Vol. 26, p. 979). After the latter Convention had been replaced by the new Geneva Convention of 1906 (Martens NRG3, Vol. 2, p. 620), the Hague Conference of 1907 replaced the 1899 Convention (III) with the Convention (X) for the Adaptation of the Principles of the Geneva Convention to Maritime War of October 18,1907 (LNTS, Vol. 15, p. 340; ~ Hague Peace Conferences of 1899 and 1907). Convention X provided the basis for the protection of the wounded, sick and shipwrecked at sea during the two World Wars. The centrepiece of this protection is the immunity and the facilities of a floating ~lOspital, i.e. the hospital ship. Hospital ships were widely used in both World Wars. There were some violations in World War I, but Hague Convention X stood the test of World War II quite well. When this Convention was replaced by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (the second of the 1949 Geneva Red Cross Conventions; hereinafter Convention II), the major elements of the earlier regime of protection were retained. A few elements were added by Protocol I of 1977 additional to the Geneva Conventions of August 12, 1949 and relating to the protection of victims of international ~ armed conflicts (UNTS, Vol. 1125, p.3), the most important ones being those on modern means of identification. After World War II, floating hospitals were used in some conflicts, but there were few cases of naval combat until the Falklands/Malvinas conflict of 1982 (~ Falkland Islands). In this conflict, five hospital ships were in service and a sixth was notified. They proved their usefulness for the victims of that conflict. Like Hague Conventions III and X, the 1949 Geneva Convention II applies to warfare "at sea". Medical activities on other waters (e.g. rivers, lakes) are not covered by it, but by the rules on ~ land warfare. Art. 23 of Additional Protocol I,

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however, now makes specific provisions for medi-

(b) Conditions of protected status and duties

blem consisting of a red cross (or red crescent in the case of countries using that emblem) must be displayed on each side and on a horizontal surface (- Emblems, Internationally Protected). In addition to the national flag, a flagwith a red cross on white ground must be shown as high as possible (- Flags of Vessels). While such marking is obligatory, it is not sufficient under the conditions of modern naval warfare. Hospital ships often cannot be recognized as such early enough and from a far enough distance, especially when visibility is poor. Thus, technical means of identification, although legally optional, are essential from a practical point of view. This was largely demonstrated during the Falklands/Malvinas conflict. Such means of identification are the following: (a) A flashing blue light (Art. 6, para. 3 of Annex I to Protocol I). For practical purposes, its use as a distinctive sign depends on an agreement between the parties to a conflict; (b) use of specific radio signals and codes (Arts. 7,9, 10 of Annex I to Protocol I), in connection with technical regulations which have been adopted by the - International Maritime Organization and the - International Telecommunication Union; (c) radar and secondary surveillance radar (Art. 8, para. 2 of Annex I to Protocol I), depending on a special agreement between the parties to a conflict; and (d) underwater acoustic signals (not yet expressly mentioned by international regulations).

(i) Notification

(iii) Permanence

The protection of hospital ships requires a - notification to be made ten days before the ship is actually employed, containing the name and the essential characteristics of the ship, including at least the registered gross tonnage, length and number of masts and funnels. This notification is essential for practical purposes. Since naval warfare involves long-distance weapons, early and distant recognition of the character of a ship must be assured. The condition of notification is now somewhat eased for small coastal rescue craft (Art. 22, para. 3 of Additional Protocol I).

No hospital ship or assimilated rescue craft may be converted to other uses during an armed conflict (Arts. 30, para. 2, and 33 of Convention II). Thus, the status of a hospital ship is permanent.

cal transports on such "other waters".

2. The Protection of Hospital Ships (a) Types of protected ships Convention II distinguishes among the following three types of hospital ships and an assimilated category: military hospital ships (Art. 22); hospital ships of the national Red Cross Society or of recognized relief societies of a party to the conflict (Art. 24); and hospital ships made available to a party to the conflict by third parties, i.e. a neutral State (Art. 22, para. 2 of Protocol I), the national Red Cross Society or a recognized relief society of such a State (Art. 25 of Convention II), or an impartial international humanitarian organization (Art. 22, para. 2 of Protocol I). Small coastal rescue craft employed by the State or by officially recognized lifeboat institutions enjoy a protected status similar to that of hospital ships. Hospital ships must either belong to a party to a conflict, therefore being military ships, or be commissioned by such a party, or be placed under the control of, and authorized by, such a party. Thus, the status of a hospital ship is not really neutral and independent, as it was under Hague Convention III of 1899, but rather is closely related to a party to a conflict.

(ii) Identification and marking

Hospital ships and small rescue craft must be distinctively marked. The whole exterior surface must be painted white while the protective em-

(iv) Discontinuance of protection The protection of hospital ships ceases when such ships are used to commit "acts harmful to the enemy". These are acts incompatible with their humanitarian mission. Art. 35 of Convention II describes some situations which, otherwise doubtful, do not constitute such acts. An element of a positive definition is, however, given in Art. 34, para. 2 of Convention II: Hospital ships may neither possess nor use secret codes for their communications (- Coded Communications).

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The rationale of this provision is that, in order to avoid abuses, the communications of a hospital ship must be open to control by the other party. However, this has humanitarian drawbacks because it prevents communications between ~ warships and hospital ships for such purposes as announcing to the hospital ship the arrival of transports of wounded or directing the ship to a place where its services are needed. For a warship, by communicating in clear, would reveal its position to the enemy.

(v) Other duties When fulfilling its function to receive or collect wounded, sick and shipwrecked, the hospital ship might well cruise in areas where warships direct attacks or otherwise operate. Convention II contains two provisions designed to prevent this situation. Hospital ships may not hamper the movement of combatants (Art. 30, para. 3). Military authorities of a party to the conflict may also order them off, require them to take a certain course, or even detain them for a certain period (Art. 31, para. 1).

(vi) Control The parties to a conflict have a right of control in order to verify compliance with the conditions described. This includes a right to stop and search the ship and to put a commission aboard. Verification by neutral observers is also possible (Art. 31, para. 4 of Convention II). During the Falklands/Malvinas conflict, these functions were performed by the International Committee of the Red Cross (see UN Doc. S/15146; ~ Red Cross).

(c) Protection (i) Protection accorded to the ship

A hospital ship must be "respected and protected". That means, first, that it may not be knowingly fired upon. Secondly, the parties may not prevent it from performing its function, subject to the qualifications just described. There exists, however, a certain contradiction between this right and the duties just described. In the performance of its functions, a hospital ship must operate in areas where battleships engage in combat. This is recognized by Art. 30, para. 4 of

Convention II. During and after an engagement, hospital ships operate "at their own risk". There is no absolute immunity against the effects of hostilities. Although there were charges during the Falklands/Malvinas conflict that hospital ships had violated their duty not to hamper the movements of the combatants (see UN Docs. S/15139, S/ 15144), a laudable solution to this problem was found: The parties instituted a neutralized sea area, called the "Red Cross Box", where the hospital ships of both sides were situated, the wounded being mainly brought to the ships by helicopters. In contradistinction to medical equipment and transports on land, a hospital ship is not subject to capture (Art. 22 of Convention II). If a hospital ship is in a ~ port which falls into the hands of the enemy, it is entitled to leave, whereas a warship would be captured. A hospital ship may also stay in a neutral port (Art. 32 of Convention II), whereas a warship's stay is limited to 24 hours according to Art. 12 of the Hague Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War of October 18, 1907 (Martens NRG3, Vol. 3, p. 713).

(ii) Helicopters Under the conditions of modern naval warfare, the effectiveness of hospital ships is greatly enhanced by, or even impossible without, the use of helicopters. During the Falklands/Malvinas conflict, all hospital ships had helicopters permanently attached to them. They were painted white and marked with the red cross. While airborn, such helicopters constitute medical air transports; thus, the relevant rules of Protocol I apply to them (Arts. 24 to 31 and Annex I). They may thus use a flashing blue light and secondary surveillance radar as a means of identification without prior special agreement (Art. 6, paras. 1 and 2, Art. 8, para. 1 of Annex I). In the Falklands/Malvinas conflict this method was not used, since neither Argentina nor the United Kingdom were parties to Protocol I at that time. Instead, the medical helicopters were made better visible by flying with all lights on. This practice, once established, is not without legal consequences. It creates a situation of confidence. If such a technique were used to camouflage an

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airborne attack by combat helicopters, it would constitute an illegal act of - perfidy. While medical aircraft, as a rule, are subject to capture and seizure by the enemy (Art. 35 of the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (the first of the 1949 Geneva Red Cross Conventions; hereinafter Convention I), Art. 30, para. 4 of Protocol I), helicopters attached to hospital ships, being necessary for the adequate operation of the latter, must enjoy the same immunity from capture as these ships and their lifeboats.

(iii) Protection accorded to personnel The religious, medical and hospital personnel of hospital ships and their crews shall be respected and protected (Art. 36 of Convention II). Such protection applies to all kinds of personnel needed for the functioning of a hospital ship. Like the ship itself, they may not be captured. Neither may they be retained, in distinction to other medical personnel (Art. 36, para. 2 of Convention II; Art. 28 of Convention I). The immunity from capture accorded to the ship would indeed be useless if its personnel did not enjoy a corresponding right.

(iv) Protection accorded to the persons aboard The wounded, sick and shipwrecked aboard a hospital ship also enjoy respect and protection. According to Art. 13 of Convention II, this protection covers only military and assimilated personnel, but Art. 22, para. 1 of Protocol I adds wounded, sick and shipwrecked civilians to the categories of persons protected under Art. 12 of Convention II. However, the status of military persons and civilians aboard is different. While the former must be surrendered to the warship of a party to the conflict if their State so permits (Art. 14 of Convention II), the latter may not be surrendered to a party which is not their own. Civilians are also protected while at sea by the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War (the fourth of the 1949 Geneva Red Cross Conventions) and the relevant provisions of Protocol I if they are in the hands of a party which is not their own (Art. 22, para. 1 of Protocol I).

3. Other Ships and Craft Hospital ships enjoy a very high degree of protection, but on stringent conditions, and only at sea. However, the need for protected medical transportation may also exist in other waters, especially big lakes. There may also be a need to use non-permanent medical transports at sea, or to rapidly convert ships to exclusive use for medical purposes, or there may be situations where a communications breakdown does not permit prior notification. This is the reason why Art. 23 of Protocol I creates the category of "other medical ships and craft". They are respected and protected, not only at sea, but on any body of water, provided that they are assigned exclusively to the task of medical transportation. There is no notification or permanence requirement, but notification is strongly recommended. In distinction to hospital ships, these ships and craft are not immune from capture or seizure, and their personnel may be retained under certain conditions (Art. 37 of Convention II, Art. 23, para. 5 of Protocol I).

Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12,1949, UNTS, Vol. 75 (1950) 85-133. Protocol [ additional to the Geneva Conventions of 12 August 1949, June 10, 1977, UNTS, Vol. 1125 (1979) 3-608. D. SCHINDLER and J. TOMAN, The Laws of Armed Conflict. A Collection of Conventions, Resolutions and Other Documents (2nd ed. 1981). Les secours aux blesses, malades et naufrages dans les guerres maritimes, RGDIP, Vol. 6 (1899) 291-302. J. GALLO'r, L'inviolabilite des navires-hopitaux et l'experience de la guerre 1914-1918 ~ 1931). H. MOSLER, Die Revision des Haager Abkommens uber die Anwendung des Genfer Abkommens auf den Seekrieg, ZaoRV, Vol. 8 (1938) 282-291. J.e. MOSSOP, Hospital Ships in the Second World War, BYIL, Vol. 24 (1947) 398-406. E. CASTREN, The Present Law of War and Neutrality (1954) 256-263. J.S. PICTET, Commentary II, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1959). A. SCHLOEGEL, Volkerrechtliche Aspekte des Einsatzes des Hospitalschiffes "Helgoland", JIR, Vol. 16 (1973) 92-112. P. FAUCHILLE,

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J.H. PLUMRIDGE,

Hospital Ships and Ambulance Trains

( 1975). and WA. SOLF, New Rules for Victims of Armed Conflicts. Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982). P EBERLIN, Identification of Hospital Ships and Ships Protected by the Geneva Conventions of August 12, 1949, International Review of the Red Cross, Vol. 22 (1982) 315-328. P EBERLIN, La modernisation de la signalisation protectrice et les communications des unites et moyens de transport sanitaires. in: Etudes et essais sur Ie droit international humanitaire et sur !es principes de la Croix-Rouge, En l'honneur de Jean Pictet (1984) 47-75. 5-S JUNOD, Protection of the Victims of Armed Conflict, Falkland-Malvinas Islands 1982 (1984). J DE PREUX, Protection du sauvetage maritime cotier, in: Etudes et essais sur Ie droit international humanitaire et sur les principes de la Croix-Rouge, En l'honneur de Jean Pictet (1984) 103--111. P. EBERLIN. Kennzeichnung und Erkcnnung von Lazarettschiffen und sonstigen durch die Genfer Abkommen vom 12. August 1949 geschutzten Wasserfahrzeugen, Revue de droit penal militaire et de droit de la guerre, Vol. 24 (1985) 217-239. Consultation by the International Committee of the Red Cross on the Methods of Identification and Signalling for Means of Transport Protected by the Second Geneva Convention, Meeting of Governmental Technical Naval Experts, Geneva, 13-17 January 1986 (1986). Y. SANDOZ. C SWINARSKI and B. ZIMMERMANN (eds.), Commentaire des Protocoles additionnels du 8 juin 1977 aux Conventions de Geneve du 12 aofit 1949 (1986) 225-236, 1161-1174. N. RONZITTI (ed.), The Law of Naval Warfare. A Collection of Agreements and Documents with Commentaries (1988).

M. BOTHE. K.J. PARTSCH

MICHAEL BOTHE

HOT PURSUIT 1. Notion Although the notion of hot pursuit may find expression with respect to measures taken on land as well as in the air, it is clear that only marit.m, hot pursuit has developed into a right which Las been codified. For this reason. the present article will be principally concerned with hot plu"!.;i: on the ~ high seas. This has been detiih.:d as the legitimate chase of a foreign vessel 011 the high seas following a violation of the law of the

pursuing State committed by the vessel within the pursuing State's jurisdiction (~ Jurisdiction of States), provided that the chase commences immediately, and provided the chase is carried on without interruption on the high seas (see D.P. O'Connell, pp. 1075-1076). This definition deliberately avoids the question whether the place of the offence and the place where the pursuit begins are within the ~ territorial sea, the -~ contiguous zone, or the ~ exclusive economic zone, which is a matter discussed below. The questions whether the right of hot pursuit may be exercised on land or in the air, and if so, under what circumstances, are also discussed below in outline form.

2. Historical Evolution of Legal Rules The right of maritime hot pursuit became firmly established during the 19th century, although the derivation of this right remains somewhat obscure. It has been explained as an emanation of the right of ~ self-defence, a projection of a rule of common law, a continuation of an act of jurisdiction already begun, and as a delegation of jurisdiction in the interests of international legal order. It may be that the right can be based simply on the ground that the pursued vessel has been the instrumentality by means of which an offence has been committed. The doctrine of hot pursuit in maritime law is, to a considerable extent, a product of Anglo-Saxon practice. Juristic doctrine favouring the right of hot pursuit developed only after the middle of the 19th century, and a few publicists have been opposed "to the right or have given it qualified approval only. Reference to the right was made in a number of proposals prepared by learned societies, but it was not until the Hague Conference of 1930 that adequate evidence existed of its general recognition by States. A number of issues relating to the maritime right of hot pursuit were raised in the ..• Fm Alone Case (RIAA. Vol. 3 (1949) p. )609)

Art. I] of the regulations adopted by the second committee of the Hague Conference formed the basis for the draft article adopted by the International Law Commission which, after undergoing some amendments, became Art. 23 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82, at p. 94). This ••-'j>

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HOT PURSUIT

provision introduced a number of qualifications to the right of hot pursuit, which had not been clearly formulated in State practice. The provisions of Art. 111 of the 1982 United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.), are very similar to those of Art. 23 of the Convention on the High Seas. However, it should be noted that Art. 111(1) of the 1982 Convention extends the right to include pursuit from archipelagic waters (~ Archipelagos), whilst Art. 111(2) extends it to pursuit from the exclusive economic zone or the waters above the ~ continental shelf. Although the right of hot pursuit has sometimes been invoked to justify measures taken on land, it would seem that no such right is recognized under --+ customary international law. Hot pursuit has f:\nly been permitted following the express consent of the States involved as embodied in an international agreement (see N.M. Poulantzas, pp. 1516). It has been contended that a customary rule is in the process of evolution permitting hot pursuit in the air- space of the high seas (N.M. Poulantzas, p. 347; ~ Airspace over Maritime Areas). There t~oes not seem adequate evidence, however, that any such rule has crystallized yet. It seems to follow from Art. 3bis of the Convention on International Civil Aviation (ILM, Vol. 23 (1984) p. 705), which seems to be declaratory of customary international law , that the exercise of such a right would not justify the resort to the use of weapons against civil ~ aircraft in flight (~ Use of Force). The existence of a .ight of aerial hot pursuit was often claimed by the United States during the Vietnam War.

3. Current Legal Situation A ~ warship, customs or police vessel and a military or other authorized aircraft may exercise the maritime right of hot pursuit against a foreign ship which has violated that State's laws within its internal waters, territorial sea, or (it would seem) contiguous zone, and may arrest it on the high seas. The doubt expressed abc ut the contiguous zone proceeds from a cross-reference made by Art. 23(1) of the Convention 01 the High Seas to Art. 24 of the Convention on the Territorial Sea r .id Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205), and from a similar cross-

reference made by Art. 111(1) of the 1982 Law of the Sea Convention to Art. 33 of that Convention. Although Arts. 23(1) and 111(1) authorize hot pursuit to commence from the contiguous zone, the limited manner of formulation of Arts. 24 and 33 have given rise to the contention that neither Art. 23( 1) nor Art. 111(1) authorizes such pursuit in respect of a breach of the law of the coastal State occurring in the contiguous zone. It is thus argued that they only authorize such pursuit in respect of a breach of the law occurring in the territorial sea or internal waters. It is not thought that this view is correct, but it has had a considerable influence. It is not clear whether the right of pursuit can be exercised when the offence in question is trivial. Pursuit must start when the ship or any of its boats is within internal waters, the territorial sea or the contiguous zone, after a visual or military signal to stop has been given within range of the ship. The latter requirement may be somewhat unrealistic, and its consistence with previous practice is doubtful. It should be noted that the signalling ship is not required to be in the territorial sea or the contiguous zone when the signal is received (Convention on the High Seas, Art. 23(1) and (3); 1982 Law of the Sea Convention, Art. 111(2) and (4». Pursuit must be continuous, and the right of pursuit ceases as soon as the ship pursued enters the territorial sea of its own or another State (Convention on the High Seas, Art. 23(2); Law of the Sea Convention, Art. 111(3». Although a ship or aircraft may take over the pursuit from an aircraft which began it (Convention on the High Seas, Art. 23(5)(b); Law of the Sea Convention, Art. 111(6)(b», there is some doubt whether pursuit by one vessel may be followed by pursuit by another. Reasonable and necessary force may be exercised by the pursuing vessels, even where this results in the sinking of the ship pursued. The force used was held to be unreasonable in the case of the I'm Alone, and in that of the ~ Red Crusader. The question whether a right of hot pursuit from the super-adjacent waters of the continental shelf exists under the Geneva Convention is not easy to answer. However, it would seem that the difficulties have been largely overcome by Art. 111(2) of the Convention on the Law of the Sea, which grants a right of hot pursuit in respect of a

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violation in the continental shelf, including safety zones around continental shelf installations. Similar problems arise under the Geneva Convention regime with respect to hot pursuit from the exclusive economic zone. Once again, an attempt is made to overcome these problems under the provisions of Art. 111(2) of the Convention on the Law of the Sea, which applies the doctrine of hot pursuit to violations in the exclusive economic zone of laws applicable to it in accordance with the Convention. It would not seem that the rights of hot pursuit mentioned in this paragraph terminate when the ship pursued enters the superadjacent waters of the continental shelf, or the exclusive economic zone, of its own or another State, It should be noted that in order to satisfy the requirement of hot pursuit that the vessel pursued must have committed an offence within and be pursued from a specific jurisdictional zone, the doctrine of constructive presence has been developed for circumstances where the vessel pursued may not itself have been in a jurisdictional zone, but had its boats there. This doctrine of constructive presence is recognized by Art. 13(3) of the Convention on the High Seas, and by Art. 111(4) of the Law of the Sea Convention. It is based upon the idea that an act performed outside a State occurs within its jurisdiction if its effects take place therein (The Araunah (1888), J.B. Moore, History and Digest of the International Arbitrations to which the United States have been a Party, 5 vols. (1898), Vol. 1, p.824). The doctrine of constructive presence is applied in a rather restrictive way under the two treaty provisions already mentioned, both of which make pursuit conditional upon team-work and the use of the ship pursued as a mother ship. Hot pursuit on land has been defined as the uninterrupted pursuit into a no man's land or into the territory of another State (following an agreement with the State in question explicitly permitting the exercise of the right of hot pursuit in its own territory) of the offender or a group of offenders immediately after the commission of an offence (N.M. Poulantzas, p. 11). As already pointed out, such hot pursuit has not acquired the status of a right under customary international law, and its legitimate exercise is dependent on conformity with the provisions of an agreement. Poulantzas has defined aerial hot pursuit as the

right of any sovereign State to continue the pursuit of a foreign aircraft (which started within the air space above its territory, territorial waters or contiguous zone in reaction to infringement of the laws or regulations of this State) over the high seas, provided, however, that the pursuit started immediately after the violation, and continued uninterrupted beyond the territorial or contiguous air space of the coastal State. That textwriter also .'" contends that the immediate commencement of the pursuit and the uninterrupted continuation beyond land frontiers should be regarded as necessary prerequisites for the legality of the pursuit (N.M. Poulantzas, p. 281). That author cites a good deal of national legislation and State practice in support of the contention that aerial hot pursuit is an international custom in statu nascendi. Although there appears to be considerable force in that writer's arguments, they do not appear entirely convincing.

4. Evaluation Although the treaty provisions governing the right of maritime hot pursuit are very detailed and contain some infelicities of expression and, as already pointed out, sometimes give rise to considerable interpretative difficulties, it seems certain that this right will continue to be of importance in the future. The provisions of Art. 111(2) of the Law of the Sea Convention, which extend it, may well generate customary law, especially by reason of the manifest needs of States and the uncertainties which arise in connection with the relevant provisions of the Geneva Conventions on the High Seas and the Continental Shelf. It has been suggested that it would be advantageous if a multilateral treaty governing relations between neighbouring countries were concluded, which would cover all situations giving rise to border incidents, and also cover entirely the right of hot pursuit on land (N.M. Poulantzas, pp. 351352). It is thought that this is unlikely to happen given the complexity and diversity of the situations in question, and that these matters will usually be regulated, if at all, by bilateral treaties. Poulantzas also suggests that a multilateral treaty should be concluded providing for standard rules in connection with the interception and treatment of foreign aircraft, and stating the precise limits of the right

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of aerial hot pursuit (p. 350). Emphasis on State sovereignty and the sheer diversity of State laws and regulations governing the interception of aircraft would seem to make the conclusion of such a treaty unlikely. Howeve-, a customary right of aerial hot pursuit may well crystallize in the fairly near future.

~

The Juridical Basis of Hot Pursuit, BYIL, Vol. 20 (1939) 83-97. J.A. MARTIAL, State Control of the Air Space over the Territorial Sea and the Contiguous Zone, Canadian Bar Review, Vol. 30 (1952) 244-263. C.H.M. WALDOCK, The Regulation of the Use of Force by Individual States in International Law, RdC, Vol. 81 (1952) 455-514. G. FITZMAURICE, Some Results of the Geneva Conference on the Law of the Sea, ICLQ, Vol. 8 (1959) 73-121. N.M. POULANTZAS, The Right to Hot Pursuit in International Law (1969). G.F. FITZGERALD, The Use of Force Against Civil Aircraft: The Aftermath of the KAL Flight 007' Incident, CanYIL, Vol. 22 (1984) 291-311. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 2 (1984) 1075-1092. O. SCHACHTER, The Right of States 10 Use Armed Force, Michigan Law Review, Vol. 82 (1984) 1620-1646. G.L. WILLIAMS,

FR \NK WOOLDRIDGE

HOVERING ACTS 1. Definition Hovering acts are legislative enactments applying a coastal State's criminal jurisdiction to ships, including foreign ships, and persons thereon, including foreigners, when the ships are outside the State's territory or the ~ territorial sea (~ Jurisdiction of States; ~ Nationality). Historically, the earliest such acts were for customs (~Customs Law, International; control ~ Customs Frontier) although other matters such as narcotic suppression (~ Drug Control. International), fishery conservation (~ Fishery Zones and Limits), quarantine, security and ~ immigration are covered by 1 hese enactments. Provisions in hovering acts mav be classified into three types: those which create substantive crimes, i.e. extraterritorial application of prescriptive legislative power (-~ Extraterritorial Effects of Administrative, Judicial and Legislative Acts);

those which seek to prevent future breaches of the coastal State's laws within its territory or territorial waters, for example the inchoate crimes of attempt or conspiracy; and those which punish crimes already committed within the coastal State's territory or territorial waters, i.e. enforcement jurisdiction such as the use of search and seizure (- Maritime Jurisdiction; ~ Ships, Visit and Search). A further distinction may be made between provisions which apply to the ship itself or its cargo, for example boarding and search, seizure and forfeiture, and those which apply to persons on board the ship, for example fines and imprisonment. 2. Historical Evolution The notion of hovering acts evolved long before that of a belt of uniform width in the form of territorial waters (- Law of the Sea, History). Great Britain's first anti-smuggling legislation to operate at a stated distance seawards was in 1719 (6 Geo. 1, c. 21), applying to the master of any ship "found at anchor or hovering within two leagues from the shore". Later enactments extended this limit to three, then four, then eight leagues. A statute of 1794 (34 Geo. 3, c. 50) gave power to seize and confiscate customable goods in vessels "found at anchor, or hovering" inside specific straight lines drawn between lines on the British coasts, thus resembling the "King's Chambers" of the Stuart era. In 1805 (45 Geo. 3, c. 121) the British Parliament extended the seizure limit to 100 leagues (300 miles) from the coasts of Great Britain and Ireland in respect of vessels "belonging wholly or in part to His Majesty's subjects, or whereof one-half of the persons on board shall be subjects of His Majesty". Foreign-flag vessels could have fallen within this category. In the case of Le Louis (1817) 165 E.R. 1464, the British Admiralty judge, Lord Stowell, described these statutes as being permitted by "the common courtesy of nations for their convenience" (- Comity; - Admiralty Law). A codification of customs statutes took place in 1826 (6 Geo. 4, c. 108) which changed the law with the effect that ships wholly owned by foreigners with no British subjects on board could be forfeited only if found within one league of the coast. The development of the use of one league as a general limit of maritime jurisdiction was re-

HOVERING ACTS

149

fleeted in the repeal of most of the former limits by Corr.; - Conferences on the Law of the Sea; the Customs Consolidation Act, 1876 (39 & 40 - Law of the Sea). Vict., c. 36) and the opposition of Great Britain to 3. Current Legal Situation the hovering acts of other States purporting to At first sight the doctrines of the freedom of the apply beyond that limit. Hovering acts were in force in North America -~ high seas and the exclusive nature of flag-State both in colonial times and following the American jurisdiction on the high seas seem to render Revolution. In 1790 and 1799 the Congress of the unlawful the application of hovering acts to ships United States legislated to require vessels belong- other than those of the coastal State located ing in whole or in part to citizens of the United beyond the territorial waters, unless justified by States to produce a manifest upon arrival within agreement with the flag-State. Furthermore, Art. four leagues of the coast and empowered boarding 22 of the 1958 Convention on the High Seas and search within this limit. Jurisdiction of this (UNTS, Vol. 450, p. 82), as extended in scope by type was held to be consistent with international Art. 110 of the 1982 Convention, stipulates for a law in Church v. Hubbart (6 U.S. 187 (1804)) limited range of matters permitting the boarding where Chief Justice Marshall declared that a of a foreign ship on the high seas: reasonable State's power "to secure itself from injury may suspicion of - piracy, slave-trading certainly be exercised beyond the limits of its (--+ Slavery), - pirate broadcasting, statelessterritory". The anti-liquor laws enacted in the ness of vessel and abuse of flag (- Flags of United States from 1919 onwards contained hover- Vessels). Other possible grounds of application ing provisions to a distance of four leagues and, may be found, however, in the concepts of the following protests by some States, treaties were exclusive economic zone, which has supplanted concluded which permitted boarding and search of the high seas concept to the distance of 200 miles, foreign vessels within one hour's sailing distance of and the exclusive fishery zone, as well as in the the United States' coasts (e.g. LNTS, Vol. 27 doctrines of - hot pursuit and - self-defence. (1924) p. 182). The contiguous zone provisions of the 1958 and The Hague Codification Conference in 1930 had 1982 Conventions, which refer expressly only to before it a Basis of Discussion which stated that four subject-matters, seem to contemplate only "on the high seas, adjacent to its territorial waters, enforcement jurisdiction. Some writers, for examthe coastal State may exercise the control neces- ple Fitzmaurice, would thus deny to coastal States sary to prevent, within its territory or territorial any prescriptive jurisdiction under the contiguous waters, the infringement of its customs or sanitary zone provisions. Other writers, for example Oda, regulations or interference with its security by consider that some prescriptive jurisdiction exists foreign ships". The maximum distance stipulated for the four matters mentioned. Furthermore, it is was 12 miles. Although the Conference reached still debatable whether the four matters are no conclusion on the matter, many States con- exclusive in - customary international law (see tinued to establish hovering jurisdictions beyond e.g. United States v. The Taiyo Maru, 395 F. three miles for such purposes as customs, fishing Supp. 413 (1975)). and defence, and during and after World War II The controversial legality of the application of this practice increased in volume and scope. hovering acts to foreign vessels beyond the conThe conformity with international law of zones tiguous zone has been commented upon by United for customs, fiscal, immigration and sanitary States courts (e.g. United States v. Cadeny, 585 I. control was acknowledged in Art. 24 of the 1958 2d 1252 (1978), United States v. Portal, 589 F. 2d Convention on the Territorial Sea and the Con- 862 (1979), United States v. Hensel, 699 F. 2d 18 tiguous Zone (UNTS. Vol. 516, p. 205) with the (1983)). A more secure means of obtaining concept of a - contiguous zone to a distance of jurisdiction in such circumstances is through ag12 miles from the - baseline of the territorial reement with the flag-State, for example the sea, a distance since increased to 24 miles by Art. United States - United Kingdom agreement of 33 of the 1982 United Nations Convention on the 1981 for the boarding, search and arrest of Law of the Sea (UN Doc. A/CONF. 62/122 with British-flag vessels in a substantial part of the

.•.....•

_._-_. __.. _-_.__._ _ - - - - - - - - - - - - _ . _ - -

150

HOVERING ACrS

western Atlantic and Carihbean for suspected violation of United States narcotics laws (British Command Papers, Cmnd. 8470, Treaty Series (UK) No. 8 (1982».

probably survive the demise of the 1958 Convention and the failure of the 1982 Convention to enter into force. The present and future status of the right of transit passage is less certain.

Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 621122 with Corr.S and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). United States Legislative Series, Vols. B1, B6, B8, B15, B16, B19.

1. Innocent Passage

The Law of Territorial Waters and Maritime Jurisdiction (1927). W.E. MASTERSON, Jurisdiction in Marginal Seas with Special Reference to Smuggling (1929). G.C. GIDEL, Le droit international public de la mer, Vol. 3 (1934). G. FITZMAURICE, Some Results of the Geneva Conference on the Law of the Sea: Part 1 - The Territorial Sea and Contiguous Zone and Related Topics, ICLQ, Vol. 8 (1959) 73-121. S. ODA, The Concept of the Contiguous Zone, ICLQ, ------\101. II 11962) 131-153. A.M. FROMMER, The British Hovering Acts: A Contribution to the Study of the Contiguous Zone, RevBelge, Vol. 16 (1981) 434-458. A.V. LOWE, The Development of the Concept of the Contiguous Zone, BYIL, Vol. 52 (1981) 109-169. P.e. JESSUP,

GEOFFREY MARSTON

INNOCENT PASSAGE, TRANSIT PASSAGE The right of innocent passage is one of the longest established and best known rights in international law. For a long time it was a right that existed under ...... customary international law only. However, it was codified in the Geneva Convention on the Territoria I Sea and the Contiguous Zone of 1958 (UNTS, Vol. 516, p. 205), which entered into force in 1964. It has again been codified in the United Nations Convention on the Law of the Sea of 1982 (UN Doc. A/CONF. 62/122 with Corr., not yet in force; ...... Conferences on the Law of the Sea; ...... Law of the Sea). The right of innocent passage would

{a) Notion The right of innocent passage came about when a compromise, albeit an uneasy one, was reached between those interests which sought a maximum degree of freedom of navigation (...... Navigation, Freedom of) and those which sought to extend territorial ~ sovereignty as far as possible out to sea. Between the beginning of the 19th century and the middle of the 20th century, although some States claimed wider limits, there was fairly general acceptance that the breadth of the ~ territorial sea should not exceed three nautical miles. Such was the importance attached to freedom of navigation that even within that narrow belt foreign shipping was considered to have the right of innocent passage. Indeed, as Oppenheim puts it, innocent passage is "a consequence of the freedom of the open sea, for without this right navigation on the open sea by vessels of aU nations would in fact be an impossibility", and, as further consequence, "no State can levy toUs for the mere passage of foreign vessels through its maritime belt" (L. Oppenheim, International Law, Vol. 1: Peace (8th ed. by H. Lauterpacht, 1955) pp. 493-494). Although well established in principle, the right of innocent passage is not free of controversy. "Passage" was defined in paragraphs 1 and 2 of Art. 14 of the 1958 Convention as meaning "navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters" and as "including stopping and anchoring, but only in so far as the same are incidental to ordinary navigation or are rendered necessary by force majeure or by distress" (~ Internal Waters; High Seas). The definition contained in Art. 18 of the 1982 Convention is slightly less precise but is not substantially different. Much more difficulty surrounds the notion of "innocent". The 1958 Convention contented itself

INNOCENT PASSAGE, TRANSIT PASSAGE

in the main with saying that: "Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State" (Art. 14(4». However, it did clarify one point of controversy by specifying that "[p]assage of foreign fishing vessels shall not be considered innocent if they do not observe such laws and regulations as the coastal State may make and publish in order to prevent these vessels from fishing in the territorial sea" (Art. 14(5». In practice this has been understood to mean that the passage of a fishing vessel will not be considered innocent unless its gear is stowed away and not left in the water or even lying on the deck. While taking over the 1958 definition of "innocent", Art. 19 of the 1982 Convention attempts to set out the circumstances in which the passage of a foreign ship "shall be considered to be prejudicial to the peace, good order or security of the coastal State". No fewer than twelve such circumstances are indicated. Fishing activities are one of these, as are threats of force; weapons practice; collection of information; acts of ~ propaganda; launching or landing of ~ aircraft; breaches of customs, fiscal, immigration or sanitary laws; acts of wilful pollution; research and survey activities; interference with communications; and military activities. (b) Rights and duties of coastal States

While obliged to grant innocent passage, the coastal State is entitled to regulate it, particularly in the interest of safety. It is now recognized that, where a necessity exists, coastal States may require foreign ships to use such ~ sea lanes or traffic separation schemes as they may prescribe, and also that coastal States may require exceptional precautionary measures to be taken by foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances (1982 Convention, Arts. 21, 22 and 23; ~ Nuclear Ships). While entitled to take steps to prevent passage by foreign ships which is not innocent, coastal States are also under certain duties. For example, they must not frame their laws and regulations in a manner which would have the practical effect of denying or impairing the right of innocent passage; they must not discriminate in form or in fact against the ships of any State or against ships carrying cargoes to, from or on behalf of any State

151

(~

States, Equal Treatment and Norr-Discrimination); and they must give due publicity to all their laws and regulations, and to any sea lanes and traffic schemes they may have designated. Coastal States are also required to give appropriate publicity to any danger to navigation in their territorial waters of which they have knowledge (1982 Convention, Art. 24). Knowledge in this sense almost certainly includes constructive knowledge (i.e. dangers of which a reasonably diligent coastal State ought to have been aware), but the duty to give publicity is not an absolute one; i.e. a ~ developing State with a long coastline and a limited coastguard service would probably not be liable if a foreign ship were to collide with a wreck or a submerged reef, the existence of which the coastal State could not reasonably have been expected to know about. Apart from the general right which a coastal State has to prevent passage by foreign ships which is not innocent, it also has the special right to suspend such passage temporarily in specified areas of its territorial sea if such suspension is essential for the protection of its security. As with all measures which might impede the right of passage, the suspension can only take effect after it has been duly published and it must be without discrimination in form or in fact as between foreign ships (1982 Convention, Art. 25). (c) Passage of warships

An area of particular difficulty concerns the passage of ~ warships, even in time of peace. It is argued in some quarters that a warship is inherently not innocent, and that the mere passage of even a lightly armed warship constitutes a threat. Against this it is argued that a warship, when engaged on peacetime duties, which can include duties of a police character such as surveillance of fishing grounds in order to prevent conflicts between fishermen, is just as much entitled to the right of innocent passage as a ~ merchant ship. In the ~ Corfu Channel Case the ~ International Court of Justice did not clarify this point because the passage of the warships which the Court held to be justifiable in that case was found to be through a -+ strait, even though the area did also constitute Albanian territorial waters. The 1958 Convention did not explicitly uphold a

152

INNOCENT PASSAGE, TRANSI r PASSAGE

right of innocent passage for warships through the territorial sea but it did so implicitly in a number of ways. Art. 14(1), which provides that "ships of all States ... shall enjoy the right of innocent passage through the territcrial sea", is in a sub-section which is headed "Rules applicable to all ships". Also Art. 14«(,) lays down that - submarines are required to navigate on the surface, when in the territorial sea, and to show their flag. In the absence of submarines known to be in commercial service, this provision can only refer to naval submarines. Finally Art. 23 provides that if a warship fails to comply with the regulations of the coastal State::oncerning passage through the territorial sea, the coastal State may require the warship to leave the territorial sea. This provision seems to imply that, subject to certain conditions, warships are entitled to pass through the territorial s~a. Similarly the 1982 Convention guarantees this right to warships implicitly. Considerable controversy surrounds the question whether warships claiming to enjoy the right of innocent passage are obliged to give prior notification to the coastal State or even to seek its authorization. In principle, the answer should be in the negative since what is concerned is the exercise of a right. It is understood, however, that some navies have been in the habit of giving prior - notification, and sometimes even of seeking authorization. This could lead the coastal States concerned to claim that they are entitled to prevent passage by warships which has not been notified or authorized as the case may be. The answer to this question may therefore depend not so much upon a general rule as upon State practice in the area concerned. It is hardly surprising that the right of innocent passage gives rise to controversies in time of war, especially in relation to neutrality (- Neutrality in Sea Warfare). In two - prize law cases in 1800 and 1801, Sir William Scott he.d that, while it was a breach of neutrality for a warship to effect the capture of a vessel on the high seas while based herself in territorial waters, it was not a breach of neutrality for a warship to pass through territorial waters animo capiendi in order to effect a capture on the high seas (The twee Gebroeders, 3 C. Rob. 162 and 3 C. Rob. 336). It is doubtful if a prize court would give a decision so favourable to

warships today, even though Art. 10 of Hague Convention XIII of 1907 concerning the Rights and Duties of Neutral Powers in Naval War provides that "La neutralite d'une Puissance n'est pas compromise par Ie simple passage dans ses eaux tcrritoriales des navires de guerre et des prises des belligerants" (- Hague Peace Conferences of 1899 and 1907). As with "innocent passage" in time of peace, the question is what is meant by Ie simple passage in the original French text, usually rendered in English as "mere passage". Acts such as using neutral waters as a base for naval operations or for purposes of communications extensive repairs, replenishment of war material, increasing armaments or completing crews, are forbidden by Convention XIII (see Arts. 4, 6,17 and 18). Also, as a general rule, Art. 12 of the Convention provides that "il est interdit aux navires de guerre des belligerants de demeurer dans les ports et rades ou dans les eaux territoriales" of a neutral power for more than 24 hours, although the effect of this prohibition is qualified by allowing a longer stay where the legislation of the neutral power permits it, or in certain cases covered by the Convention itself. 2. Transit Passage

The right of transit passage is, as has already been stated, a new right contained in the 1982 Law of the Sea Convention. It owes its existence therein largely as a move to compensate the principal naval powers for the fact that, owing to the widespread adoption of the twelve mile limit for the breadth of the territorial sea instead of the previous three mile limit, many important straits will cease to have any area of high seas and will come to exist entirely of the territorial seas of the littoral States involved. Unless some provision were inserted to counteract this, the freedom of navigation previously enjoyed by warships would be reduced to the questionable right of innocent passage; submarines would have to navigate on the surface; and, as an even more drastic consequence, the right of - overflight would disappear altogether. Arts. 37 to 42 of the Convention delineate the scope of the new right, the essence of which is "the exercise .., of the freedom of navigation and overflight solely for the purpose of continuous and expeditious transit between one part of the high seas or an exclusive

INTERNAL WATERS

economic zone and another part of the high seas or an exclusive economic zone". As with innocent passage the Convention describes in considerable detail the duties of ships and aircraft exercising the right and the rights and duties of States bordering straits who are obliged to permit transit passage. The right of transit passage is not yet a firmly established institution of customary international law, and if the 1982 Convention fails to enter into force its future is uncertain. Hague Convention No. XIII concerning the Rights and Duties of Neutral Powers in Naval war, October 18, 1907, Martens NRG3, Vol. 3 (1910) 713-744. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Das internationale offentliche Seerecht der Gegenwart, 2 vols. (1903). G. GIDEL, Le droit international publicde la mer, 3 vols. (1932-1934). c. BALDONI, Les navires de guerre dans les eaux territoriales etrangeres, RdC, Vol. 65 (1938 III) 185-302. C.H.M. WALDOCK, The Release of the Altmark's Prisoners, BYIL, Vol. 24 (1947) 216-238. M.S. McDOUGAL and W.T. BURKE, The Public Order of the Oceans, A Contemporary International Law of the Sea (1962). c.r. COLOMBOS, The InternationalLawof the Sea (6th ed. 1967). D.P. O'CONNELL, The InternationalLawof the Sea (ed, by LA. Shearer), Vol. 1 (1982), Vol. 2 (1984). F. PERELS,

D.H.N. JOHNSON

INTERNAL WATERS 1. Notion "Waters on the landward side of the baseline of the territorial sea form part of the internal waters of a State" (Geneva Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958 (UNTS, Vol. 516, p. 205), Art. 5, para. 1; ~ Contiguous Zone). This definition is repeated in Art. 8(1) of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN

153

Doc. A/CONF.62/122 with Corr.). Replacing similar notions, such as "national waters" or "inland waters", it distinguishes the internal waters of a State from its ~ territorial sea on the seaward or outer side of the ~ baseline. Foreign ships enjoy the right of ~ innocent passage, which limits the territorial jurisdiction of the coastal State, only through the coastal State's territorial sea, but, except for special situations (see section 3 infra), not through its internal waters (Geneva Convention on the Territorial Sea and the Contiguous Zone, Art. 14, para. 1; 1982 Law of the Sea Convention, Art. 17). The generic term "internal waters" refers to different kinds of natural waters or artificial waterways of a State, such as ~ bays and gulfs, mouths of rivers (~ River Deltas) and creeks, ~ ports and harbours at the seashore as well as rivers (~ International Rivers), lakes with or without an outlet to the sea or the ocean, and ~ canals. Roadsteads for the loading, unloading and anchoring of ships may be situated inside the internal waters or outside them in the territorial sea of a State (see Geneva Convention on the Territorial Sea and the Contiguous Zone, Art. 9; 1982 Law of the Sea Convention, Art. 12).

2. Status of Internal Waters in International Law The territory of a State is formed by its land territory as well as its internal waters and its territorial sea. The internal waters are so closely linked to the land domain that both are subject to the same legal regime (see the ~ Fisheries Case (U.K. v. Norway), IC] Reports 1951, p. 116 at p. 133). This close relationship is determined by the ~ vital interests of the territorial sovereign concerning the conditions of national and -territorial integrity, of defence, of commerce and of industry (see the ~ North Atlantic Coast Fisheries Arbitration of 1910, RIAA, Vol. 11, p. 167, at p. 196). The ~ territorial sovereignty of a State extends beyond its land territory to the mentioned waters as well as to the airspace over them (~ Airspace over Maritime Areas), and to the -+ sea-bed and subsoil below (Geneva Convention on the Territorial Sea and the Contiguous Zone, Art. 1, para. 1, and Art. 2; 1982 Law of the Sea Convention, Art. 2, and Art. 49(1)(2». An -+ island can also have internal waters. An archipelagic State may draw "closing lines" ac-

154

INTERNAL WATERS

4 Delimitation and Seaward Extension cording to the general rules concerning straight baselines separating its internal waters from its archipelagic waters, which form also a part of its Delimitation means the establishment of a territory (-+ Archipelagos; 1982 Law of the Sea boundary line between two or more States (-+ Convention, Art. 50). Boundaries; -+ Maritime Boundaries, DelimitaTerritorial sovereignty implies sovereign rights tion). As the internal waters of a State form a part and exclusive jurisdiction (-+ Jurisdiction of of its territory, only the territorial States conStates). It is exercised subject to the binding rules cerned may undertake their delimitation. In order of international law. A State can, for example, to be'valid in international law, the delimitation of reserve the rights to fish or to conduct commercial the internal waters always presupposes that the dredging, -+ salvage, towage, pilotage or -+ State has a valid territorial title to the claimed cabotage in its internal waters for its subjects. waters. which in practice is often an historic title Similarly, there is no right to lay submarine (-+ Territory, Acquisition; -+ Historic Rights). -+ cables or -+ pipelines through these waters The delimitation can be effected either by agreewithout prior permission. As to the question of ment, which nowadays is the principal way of access to and jurisdiction in the internal waters of establishing a boundary line, or otherwise as, for a foreign State, see the separate entry on this topic example, by corresponding -+ unilateral acts of (-+ Internal Waters, Seagoing Vessels in). On tlie---+ neighbour States or by a single act that has other hand, it is "every State's obligation not to:" become effective by way of -+ recognition or allow knowingly its territory to be used for acts . -+ acquiescence. Other ways of delimitation used contrary to the rights of other States", JlS --,~n earlier centuries do not affect the validity of an -+ International Court of Justia;Jfelir i'; the established boundary line. Under the -+ Vienna -+ Corfu Channel Case (ICJ Reports 1949, p. 4-,--COnvention on the Law of Treaties (ILM, Vol. 8, at p. 2 2 ) . _ p , 678), boundary agreements concluded after the Convention entered into force are not subject to termination or withdrawal by reason of a fun3. Innocent Passage through Certain Internal damental change of circumstances (Art. 62, para. Waters 2(a». In a dispute, the States concerned may agree As an important exception to the general rule to vest the competence either to determine the that the right of innocent passage exists only. principles of the delimitation or even to draw the through the territorial sea, there exists a right of boundary line in an international court of arbitral innocent passage through those internal waters tribunal (-+ International Courts and Tribunals; which previously had been considered as part of see, e.g. the Award of 1909 in the -+ Grisbadarna the territorial sea or of the -+ high seas, before Case, RIAA, Vol. 11, p. 147). Unlike a delimitation of the -+ continental the coastal State enclosed these as internal waters by establishing a straight baseline (Geneva Con- shelf or the, -+ exclusive economic zone, the vention on the Territorial Sea and the Contiguous delimitation of internal waters does not need to Zone, Art. 5, para. 2; 1982 Law of the Sea achieve an equitable solution. There is no general Convention, Art. 8 (2». This right protects the rule concerning the delimitation of the various interests of all States in the freedom of maritime kinds of internal waters in international law. communication against a tendency of coastal Nevertheless, State practice has developed parStates to extend their internal waters by adopting ticular methods for the delimitation of certain the method of straight baselines. It does not internal waters, which are, however, always subrequire that the enclosed area had actually been ject . to modification by agreement. For nonused for international navigation. Art. 35(a) of the navigable rivers the boundary line normally fol1982 Law of the Sea Convention applies this right lows the median line every point of which is of innocent passage also to areas of a -+ strait equidistant to the nearest point on the banks from used for international navigation, which has been which the breadth of the water is measured. For enclosed as internal waters by the establishment of many navigable rivers, however, State practice a straight baseline. since the early 19th century preferred drawing the

155

INTERNAL WATERS, SEAGOING VESSELS IN

boundary line in the middle of the navigable river or thalweg. Verzijl considered the thalweg rule already as a rule of ~ customary international law for the delimitation of navigable rivers (Vol. 3, p. 563). With regard to coasts, the thalweg principle may also be applied to bays into which a river flows or to narrow straits or inlets. In the Grisbadarna Award, however, the tribunal refused to apply the thalweg rule to a navigable channel off the coast between Norway and Sweden, because the 17th century principles of delimitation applicable in that case did not include this rule. There exists no uniform method of delimitation for other bays the coasts of which belong to more than one State, because the geographical and other circumstances of these bays differ too much from each other. Depending upon the circumstances of any given case, however, one can consider the application of a median line where the coasts of two States are opposite or adjacent to each other. This approach would form an analogy to the delimitation rule for the territorial sea (Geneva Convention on the Territorial Sea and the Contiguous Zone, Art. 12, para 1; 1982 Law of the Sea Convention, Art. 15). The seaward extension of internal waters is determined by the baselines. Although only the coastal State is competent to draw its baselines, this issue always has an international aspect, as the ICJ rightly pointed out in the Fisheries Case (ICJ Reports 1951, p. 113, at p. 132). In contradistinction to delimitation, there exist clear rules in international law with regard to the seaward extension of internal waters. According to these rules, for example, the mouth of a river flowing directly into the sea, bays other than historic bays with a mouth not exceeding 24 nautical miles which belong to a single State, as well as ports shall be considered as internal waters (Geneva Convention on the Territorial Sea and the Contiguous Zone, Arts. 13, 7 and 8; 1982 Law of the Sea Convention, Arts. 9, 10 and 11). Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354).

M.P. STROHL,

The International Law of Bays (1963). The Regime of Bays in International Law

L.J. BOUCHEZ,

(1964). Digest of International Law, Vol. 4 (1965) 1-343. J.e. COLOMBOS, The International Law of the Sea(6th ed. 1967) 175-196. J.H.W. VERZIJL, International Law in Historical Perspective, Vol. 3, State Territory (1970) 16-29, 293-296, 537-621. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982) 338-388. R.R. CHURCHILL and AV. LOWE, The Law of the Sea(1983) 45-52. R.-J. DUPUY, La mer souscompetence nationale, in: R.-J. Dupuy and D. Vignes (eds.), Traite du Nouveau Droit de la Mer (19g5) 219-273. M.M. WHITEMAN,

RAINER LAGON I

INTERNAL WATERS, SEAGOING VESSELS IN 1. Merchant Ships and State-Owned Ships Operated for Commercial Purposes (a) Access to internal waters

Access to the ~ internal waters of a State means access to its territory. In time of peace, foreign ~ merchant ships and ~ State-owned ships operated for commercial purposes have almost everywhere access to internal waters, except for closed areas. The coastal States normally open their maritime ports and waterways to foreign ships unilaterally on the basis of their domestic laws. Apart from that, questions of access to open maritime ports have been regulated in several international agreements: Art. 2 of the Statute of the ~ Geneva Convention and Statute on the International Regime of Maritime Ports of December 9, 1923 (LNTS, Vol. 58, p. 285) stipulates the equality of treatment for all seagoing vessels as regards freedom of access to maritime ports and the use of port facilities for the 34 contracting States. This stipulation applies to such internal waters which normally serve as a waterway to an open maritime port and to the port itself (Art. 1 of the Statute). In case of an emergency affecting the safety of the State or the vital interests of the country, the State may close its maritime ports temporarily (Art. 16 of the Statute). Besides that, many bilateral agreements

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on shipping and commerce provide for equal treatment concerning the access to ports, whereas some create even a right of access. The United Nations Convention on the Law of the Sea of December 10, 1982 (UN Do,;;. A/CONF. 62/122 with Corr.) stipulates that States shall endeavour to facilitate access to their harbours in particular for foreign' scientific - marine research vessels (Art. 255). Access includes loading and unloading cargo, embarking or disembarking passengers, as well as taking supplies and fuel on board. Unlike the right of transit of land-locked States, access includes also the possibility of conducting trade. Whether or not there exists a general and abstract right of access in the absence of any agreement to this effect is answered variously by scholars of international law. The - Institut de Droit International regarded free access in 1928 as a "general rule" (AnnIDI, Vol. 34 (1928) p. 736), whereas it considered this right in 1957 merely as a desideratum (AnnIDI, Vol. 47 (1957) p. 473). Others point to the dictum of the Arbitrator in the - Aramco Arbitration that "(a)ccording to a great principle of public international law, the ports of every State must he open to foreign merchant vessels and can only be closed when the vital interests of the State so require" (ILR, Vol. 27 (1963) p. 117, at p.212). However, in the context of the award this dictum may well be reduced to the conventional obligation of the coastal, State not to discriminate among foreign ships which call at its ports {O'Connell, p. 848; Lowe, at p. 600). The - International Court of Justice stated-in the Nicaragua Case that it is "by virtue of its sovereignty that the coastal State may regulate access to its ports" (ICJ Reports 1986, p. 14, at p. 111, para. 213). The Court added that "where the vessels of one State enjoy a right of access to ports of another State" the hindering of this right by the laying of mines "constitutes an infringement of the freedom of communication and of maritime commerce" (ibid., p. 128 et seq., para. 253); however, in so stating, the Court did not pass upon the circumstances under which any such right of access may come into existence. The practice of States to close their ports, even in situations where their vital interests are apparently not concerned, seems to indicate that, except

for the situation of distress (section 3 infra), there does not exist a general right of access to internal waters in general or to ports in particular in _ customary international law. But if a State grants access to its maritime ports, it must not discriminate against foreign ships or foreign flags (for an exception see Art. 8 of the Geneva Statute on Maritime Ports). Even in cases where a right of access exists, the coastal State may impose conditions for entry to its ports. Certain international maritime safety standards and environmental protection requirements are in effect conditions for entry to the ports of the States parties to these agreements. The coastal State has the right to take necessary steps to prevent any breach of these conditions before a ship enters its internal waters (Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958 (UNTS, Vol. 516, p. 205), Art. 16, para. 2; 1982 Law of the Sea Convention, Art. 25(2». (b) Jurisdiction over foreign merchant ships

Foreign merchant ships and government ships operated for commercial purposes are subject to the territorial jurisdiction of the coastal State while they are present in its internal waters. Accordingly, the laws of this State apply in principle to these ships in its internal waters, as well as to their crews, passengers and cargoes; and they are subject to the jurisdiction of its courts as well as its executive and enforcement jurisdiction. Nevertheless, in the interest of unimpeded shipping, there are a number of exceptions from and limitations to this principle. In the field of civil procedure, the International Convention relating to the Arrest of Seagoing Ships of May 10, 1952 (UNTS, Vol. 439, p. 193) limits the grounds for arresting a ship flying the flag of one of the 28 contracting States to "maritime claims" without affecting, however, the right to arrest a foreign ship an the basis of a public claim (Art. 2). A number of consular agreements exclude the jurisdiction of the territorial State over certain labour disputes, criminal offences and other matters on board a ship in internal waters (see e.g., Art. 32 of the Consular Convention between the Federal Republic of Germany and the United Kingdom of Great Britain and Northern Ireland of July 30, 1956 (UNTS, Vol. 330, p. 233». These exceptions do not apply to criminal offences by or against a

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national of the territorial State or if the tranquility or safety of the port or the laws of the territory regarding public health, immigration, the safety of life at sea, customs or any similar matter is involved, or if certain grave offences are committed. The member States of the ~ Council for Mutual Economic Assistance and certain developing countries claim immunity from the jurisdiction of the port State even for government ships operated for commercial purposes (~ State Immunity). This immunity is stipulated in a number of their shipping agreements and granted by them on the basis of reciprocity. But on the basis of the conception that States may not claim sovereign immunity for acta jure gestionis , the majority of coastal States refuses to grant immunity for such ships. On the basis of reciprocity many States also grant by courtesy similar exceptions from their jurisdiction over the "internal affairs" of foreign merchant ships in their ports, unless the "peace of the port" is affected. Exemptions from the tax laws and customs duties of the port State are stipulated by ~ double taxation agreements, or they are unilaterally granted by the establishment of a ~ free port. The mentioned exceptions from territorial jurisdiction over foreign ships within internal waters diminish conflicts with the flag State jurisdiction without preventing them completely. (c) Treatment in ports and facilitation of shipping

Foreign merchant ships in ports are to be granted equality of treatment with the ships flying the flag of the port State. This is stipulated in multilateral agreements (see Art. 2 of the Geneva Statute on Maritime Ports; or the British Commonwealth Merchant Shipping Agreement, December 10, 1931 (LNTS, Vol. 129, p.l77, at p. 184», as well as by bilateral shipping agreements. It follows also from Art. I of the mostfavoured-nation treatment of the General Agreement on Tariffs and Trade of October 30, 1947 (UNTS, Vol. 55, p. 194). For example, a boycott of a trade union against a foreign ship or flag can amount to a violation of the obligation not tv discriminate. thus giving rise to international responsibilirv and a claim for compensation (see

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the Mary Poppins Case, GYIL, Vol. 19 (1976) p. 139).

In order to facilitate maritime traffic by simplifying and reducing formalities with respect to ships in ports, the ~ International Maritime Organization prepared the Convention on Facilitation of International Maritime Traffic of April 9, 1965 (UNTS, Vol. 591, p. 265). The International Sanitary Regulations of May 25, 1951 (WHO Regulations No.2, UNTS, Vol. 175, p. 215) contain particular procedural provisions concerning the protection of ports against quarantinable diseases (Art. 23 et seq.). (d) Application of international standards and port State control

Since the early 1970s a growing number of multilateral agreements in the fields of labour law, maritime safety and marine environmental protection stipulate that the States parties shall apply and enforce the standards determined by these agreements not only to ships flying their own flag or the flag of another State party, but also to ships flying the flag of a third State in order to ensure that no more favourable treatment is given to such ships. For example, the Convention Concerning Minimum Standards in Merchant Ships of October 29, 1976 (ILO Convention 147, ILM, Vol. 15 (1976) p. 1288) provides that a member State may inter alia "take measures necessary to rectify any conditions" which are "clearly hazardous to safety or health" on board a ship calling at one of its ports (Art. 4, para. 1). Similarly, the States parties to the Protocol of 1978 Relating to the International Convention for the Safety of Life at Sea of February 17, 1978 (ILM, Vol. 17 (1978) p. 579), shall also apply the safety standards of the International Convention for the Safety of Life at Sea (SOLAS Convention) of November 1, 1974 (UNTS, Vol. 1184, p. 2) to ships flying the flag of non-parties (Art. II, para. 3). The first stipulation of this kind was included in Art. 5, para. 5 ot the International Convention for the Prevention of Pollution from Ships (MARPOL Convention of November 2, 1973. IL~L Vol. 12 (1973) p. 1319). Even without any international obligation to this effect, coastal States have applied through their domestic law international maritime safety standards to foreign merchant ships. Under the German maritime safety ordinance of 1980. for

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example, the competent authorities of the Federal Republic must enforce the requirements of the International Convention on Load Lines of April 5, 1966 (UNTS, Vol. 640, p. 1]3), although this Convention is not applicable to ships flying the flag of third States (see Schiffssicherheitsverordnung, §§l4, 16; German Bundesgesetzblatt, 1980 I, p.1833). In order to harmonize their practices concerning port State control, the maritime authorities of 14 European States concluded the Memorandum of Understanding on Port State Control in implementing Agreements on Maritime Safety and Protection of the Marine Environment of January 26, 1982 (ILM, Vol. 21 (1982) '1'. 1). This agreement deals with uniform inspection procedures, rectification and detention of ships, and establishes a centralized information system. The inspection constitutes, as usual, primarily an onboard control of those certificates and documents which are required by seven international agreements including the MARPOL and the SOLAS Conventions. During the exercise of port State control, the maritime authorities apply the international standards of those agreements to all ships, including those not flying the flag of a party to the respective agreement, in order to ensure that no more favourable treatment is given to such ships (Art. 2.4). Since the Memorandum entered into force on July 1, 1982,20 - 23 per cent of all foreign ships entering a port in western Europe have been made subject to inspection, and 2.74.5 per cent of these have been detained or delayed. In contradistinction to this comprehensive control under the regional Memorandum, port State enforcement (Art. 218(1» and coastal State enforcement (Art. 220(1» ofthe 1982Law ofthe Sea Convention are confined to the investigation of any discharge from vessels on the high seas or within any zone of jurisdiction of the coastal State, which is in violation of applicable international rules and standards for the prevention, reduction and control of pollution from vessels (- Marine Environment, Protection and Preservation). Although this is not expressly provided for in the Convention, control is also extended to ships flying the flag of a third State. The Convention also contains a number of safeguards for the controlled ships (Art. 223 et seq.), including the

rule of non-discrimination (Art. 227). Of considerable practical importance is the rule that the coastal State may apply only those laws and regulations concerning the design, construction, equipment or manning to foreign ships in its waters, which give effect to "generally accepted international rules or standards" (1982 Law of the Sea Convention, Arts. 21(2), 211(6». (e) Time of war or armed conflict

In time of - war or - armed conflict, belligerent coastal States frequently close their internal waters and make any access of foreign ships to their ports subject to prior permission. Nevertheless, the Geneva Statute on Maritime Ports shall continue in force in time of war (Art. 18). Under the Hague Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War of October 18, 1907 (AJIL, Vol. 2 (1908) Suppl. 202), which is largely declaratory of customary international law, ships of any flag are protected in the internal waters or ports of a neutral power against belligerent warships (Arts. 2 and 5; - Neutrality in Sea Warfare). However, such ships may be seized on the basis of the right of - angary A merchant ship belonging to one of the belligerent States has under Hague Convention VI Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities of October 18, 1907(Martens NRG3, Vol. 3, p. 533) a number of - days of grace to leave the enemy port (Art. 1), but this right is not generally recognized in customary international law. 2. Warships and Government Ships Operated for Non-commercial Purposes Government ships operated for non-commercial purposes and - warships may not enter the internal waters of a State without its prior permission, except in cases of distress (section 3 infra). The question of access of foreign naval units to internal waters is regulated by several defence treaties or by other regional or bilateral agreements, such as individual naval visits agreements. On the basis of reciprocity, several States require only notice in advance of the intended visit and period of stay, if the number of vessels does not exceed three. Several naval powers have issued regulations concerning the visits of foreign warships to their ports (see Colombos, p. 263 et

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seq.). These regulations normally contain exemptions from the requirement of the permission, if the ship is carrying a head of State or the head of a diplomatic mission on board (~Diplomatic Agents and Missions). The access of other government vessels operated for non-commercial purposes is similarly regulated by a number of special agreements. Under a firmly established rule of general international law, warships enjoy immunity in the ports and waters of a foreign State which permitted them to enter its internal waters (see The Schooner Exchange v. M'Faddon, U.S. S. Ct.. 7 Cranch 116 (1812)). This rule also applies to government ships operated for non-commercial purposes (The Parlement Beige decided by the British Court of Appeal in 1878,5 P.O. 197). It has also been recognized in the International Convention for the Unification of Certain Rules concerning the Immunity of State-owned Ships of April 10, 1926 (LNTS, Vol. 176, p. 199). Immunity exempts such a ship from seizure, arrest or detention by any legal means whatsoever, and precludes a legal suit from being brought against it in the courts of the port State. Similar to diplomatic missions, these ships are exempt from the police powers and other executive powers of the port State, no official of which may board such a ship without the consent of the commanding officer. Whether the usual privilege of exemption from all direct public dues and taxes of warships and government ships operated for non-commercial purposes rests merely upon courtesy, as some legal scholars assume, is questionable. Widespread practice appears to indicate that this is a customary rule of international law. Finally, the obligation of the port State to protect the visiting ship within its waters against any intrusion or. damage and to prevent any disturbance of its peace or dignity forms a part of general internationallaw. Immunity is also enjoyed by the officers and crew while they are ashore on official business. Apart from that, they may be subject to an agreement regarding the status of foreign forces during their visit (~ Military Forces Abroad). As a warship or a government ship operated for non-commercial purposes does not represent a kind of "floating territory" or "floating island" of the State, its immunity within foreign waters does

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not rest upon the principle of territoriality (~ Territorial Sovereignty). Instead, such ships must be considered as organs of the flag State which enjoy functional immunity. There are several consequences to this approach. The flag State can waive the immunity of its ships. Ships may not grant ~ asylum. Yet, ship commanders have, for humanitarian reasons, in several cases allowed nationals taking refuge on board and persons in imminent danger to remain on board their ships, from where they cannot be forcibly taken off, whereas in other cases such persons have been returned to the authorities of the port State. Criminal offences committed on board by crew members are under the exclusive jurisdiction of the commando: an.: the g:'f State authorities, and even foreign visitors cor.rnitnng an offence on board may be taken to the home country of the ship to be punished. However, if the offender is handed over to the port State authorities, they may impose punishment for the offence, because it is committed in the territory of the coastal State. Except in cases of distress, a warship entering the internal waters of a foreign State without its consent does not enjoy immunity. In time of war or armed conflict, immunity is normally suspended between the belligerent States (see Art. 7 of the International Convention for the Unification of Certain Rules concerning the Immunity of Stateowned Ships). Ships enjoying immunity in internal waters must comply with the rules of international law applicable to all ships in the internal waters, such as the Convention on International Regulations for Preventing Collisions at Sea of October 20, 1972 (British Command Papers, Cmnd. 6962, Treaty Series No. 77 (1977), see Rule l(a)), or certain particular rules of conduct for foreign warships in territorial waters which also apply, mutatis mutandis, in internal waters (see 1958 Convention on the Territorial Sea, Art. 14, para. 6; 1982 Law of the Sea Convention, Art. 20). However, even where warships and government ships operated for non-commercial purposes are exempt from the application of an agreement, certain agreements stipulate that each party shall ensure "that such ships act in a manner consistent, so far as is reasonable and practicable, with the present Convention" (see MARPOL Convention, Art. 3, para. 3).

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Ships enjoying immunity shall comply also with the special rules of the coastal State for its internal waters connected with the high seas and navigable by sea-going vessels (see the 1972 International Regulations for Preventing Collisions at Sea, Rule 1(b». Non-compliance by such a ship with the relevant laws and regulations of the coastal State or rules of international law may give rise to international responsibility (see also 1982 Law of the Sea Convention, Art. 11). In addition, the member States have waived the immunity of their ships in regard to certain maritime claims under Art. 3 of the 1926 International Convention for the Unification of Certain Rules concerning the Immunity of State-owned Ships. However, with respect to a ship enjoying immunity which does not comply with the laws and regulations of the coastal State and which disregards any request for compliance therewith, the coastal State may only require it to leave its waters immediately (see 1958 Convention on the Territorial Sea, Art. 23~ 1982 Law of the Sea Convention, Art. 30).

3. Ships in Distress Since Lord Stowell's famous statement in 1809 that "[r]eal and irresistible distress must be at all times a sufficient passport for human beings under any such application of human laws" (The Eleanor, English Reports, Vol. 165, p. 1058, Edw. 135), a great number of cases have restated the customary principles of international law that vessels of any kind have a right of access to foreign ports and harbours if they are compelled to take refuge because of stress of weather or other circumstances of force majeur; and, moreover, that vessels in such distress are immune from the laws and regulations of the coastal State with respect to any duties, prohibitions, penalties, dues or taxes. As goods brought into the country under such circumstances are deemed not to be imported, they are not subject to attachment or forfeiture. For the same reason, several international maritime agreements stipulate exemptions for ships in distress (see, e.g., the Convention on the Dumping of Wastes at Sea, November 13, 1972, ILM, Vol. 11 (1972) p. 1291, Art. 5). The mentioned customary exemptions from the coastal State's jurisdiction do not change, however, the rights of belligerents in time of war.

The Law of Territorial Waters and Maritime Jurisdiction (1927) 115-208. H.A. SMITH, The Law and Custom of the Sea (3rd ed. 1959) 33-44. E. MENZEL, Die Immunitat der Staatsschiffe, Schriften des Deutschen Vereins fur internationales Seerecht, Series -\, Berichte und Vortrage, Vol. 7 (1961). T. KOCHU THOMMEN, Legal Status of Government Merchant Ships in International Law (1962). J.e. COLOMBOS, The International Law of the Sea (6th ed. 1967) 264-284; 315-331. AV. LOWE, The Right of Entry into Maritime Ports in International Law, San Diego Law Review. Vol. 14 (1977) 597-622. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 2 (1984) 733-746; 831-858. P.e. JESSUP,

RAINER LAGONI

INTERNATIONAL SEA-BED AREA 1. Concept and History The "international sea-bed area" is an international law concept which has only recently emerged in the course of developments which led to the Third United Nations Conference on the Law of the Sea (UNCLOS III) and the United Nations Convention on the Law of the Sea (December 10, 1982, UN Doc. A/CONF.62/122 with Corr.; - Conferences on the Law of the Sea). Art. 1 (1) of the 1982 Law of the Sea Convention defines the Area as the sea-bed and ocean floor and subsoil thereof beyond the limits of national jurisdiction (- Sea-Bed and Subsoil; - Jurisdiction of States). Within the framework of the 1982 Law of the Sea Convention, the Area is put under the supervision and control of an "international seabed authority" (Art. 156 et seq.; unless otherwise stated, subsequent references are to the 1982 Law of the Sea Convention). This international organization shall act on behalf of "mankind as a whole" (Art. 137 (2» in which all rights in the resources of the Area are vested as a consequence of the Area and its resources being the - common heritage of mankind (Art. 136). The idea of internationalizing parts of the sea-bed and its subsoil has historic roots iu various examples of international, albeit much more limited, control of rivers and waterways dating

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back to the 19th century (-- Internationalization). At that time the common interest of the riparian and user States in the administration of shipping led to the establishment of organizations like the European Commission of the Danube (-- Danube River). In the context of the -- law of the sea, analogies can be found in international fishing and whaling commissions (-- Fishery Commissions; -- Whaling Regime). The idea of an "office international aquatique" or a "bureau international de la mer" had already emerged in the 1920s. In 1950 Shishu Hsu supported it in the -- International Law Commission and, again unsuccessfully, the delegation of the Federal Republic of Germany to the 1958 Geneva Conference on the Law of the Sea (UNCLOS I) endorsed the concept of some kind of international control of the exploitation of the continental shelf. In the late 1960s the idea of establishing an international regime, including international machinery, for the ocean floor gained support. After some initiatives in 1966 (ECOSOC Res. 112 (XL» and 1967, the Maltese delegate in the -- United Nations General Assembly proposed a legal regime for the sea-bed and subsoil beyond the limits of the narrowly defined continental shelf, based on the perception of this area as the common heritage of mankind. This initiative led to the first General Assembly resolution on the peaceful uses of the sea-bed and the ocean floor beyond the limits of national jurisdiction (UN GA Res. 2340(XXII) of December 18, 1967). According to the resolution, militarization and national appropriation of the area should be prohibited and the use of the resources should be put under the trusteeship of an international institution. In the Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction (UN GA Res. 2749(XXV) of December 17, 1970) it was declared that no "State or person ... shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established". Apart from the military aspects of the use of the sea-bed, the question of how exploration and exploitation in the interest of mankind may be brought about has since dominated most law of the sea negotiations.

During UNCLOS III a complex scheme to "organize and control activities in the Area, particularly with a view to administering the resources of the Area" (Art. 157 (1», was drawn up. It failed, however, to gain universal acceptance because of objections by industrialized countries against aspects of the deep sea-bed regime in Part XI of the 1982 Convention. De lege lata, therefore, an international sea-bed area does not exist.

2. Territorial Scope of the Area A clear definition of what constitutes the Area under the 1982 Law of the Sea Convention IS difficult to give. As far as the -- exclusive economic zone is concerned, the extent of the Area depends not only on the 200 nautical miles maximum breadth (Art. 57) of that maritime zone as such, but also on whether a particular coastal State has actually established such a zone. In respect of the continental shelf, States ipso jure enjoy sovereign rights for the purpose of exploring it and exploiting its natural resources. The outer limit of the -- continental shelf can be determined by the State concerned in accordance with Art. 76 (1) and (4) to (6). Because of the second alternative in Art. 76 (5), this may be a line even further distant from the -- baseline than the 350 nautical miles otherwise permissible under certain conditions. The actual determination of the limits of each continental shelf is left in the 1982 Convention to an advisory procedure involving a Commission on the Limits of the Continental Shelf to be established under Art. 76 (8) and Annex II. The international status of the Area as governed by the regime established by Part XI of the 1982 Law of the Sea Convention is not binding on non-signatory States.

3. Deep-Sea Mining During the ]960s deep-sea mining emerged as one of the central issues in the debates on the development of the law of the sea. The discovery of huge quantities of polymetallic manganese nodules on parts of the ocean floor prompted optimistic forecasts as to the future economic and strategic benefits to be derived from ocean mining.

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Today other marine mineral resources like "hot brines" and cobalt-rich crusts seem to be of greater interest. Various economic and political considerations played a significant part in the UNCLOS III negotiations on the International Sea-Bed Area. The following are just a few such considerations. Deep-sea mining requires security of investment, which in turn necessitated new rules, since the law of the sea in the late 1960s d-d not provide for sufficiently precise rules. Industrialized countries saw advantages in the exploitation of "free for all" resources, as this seemed to ensure less dependence upon "radical" exporting countries. The developing States were determined to prevent the industrialized countries from se curing for themselves the wealth of the ocean floor on a "first come first served" basis, and they advocated the concept of the use of the resources of the deep-sea for the benefit of all mankind in the sense that developing countries should get a fair share in the benefits derived from such mining opel ations and in their management and control. Land-based producers tried to secure their competitive position by making certain restrictive production policies compulsory for the machinery to he established.

4. The Area under the 1982 Law of the Sea Convention (a) General [ramework Once the 1982 Law of the Sea Convention enters into force (see Art. 316 :1», all activities in the International Sea-Bed Area shall be controlled by and organized through the International SeaBed Authority (Art. 157 (1 )1. Its seat shall be Jamaica (Art. 156 (4». Arts. 136 to 153 contain a se of pnnciples which shall form the basis of the substantive law relating to the Area. Apart from It," affirmation of the principle of the common :.,.ritage of mankind (Arts. 136 and 140), the 198: Convention establishes policies relating to activities in the Area which the Authority has to irrplement. Particular emphasis is given to the e stablishmenr of an international machinery whici: (i) avoids monopolization of activities by in Iividual persons or States (Art. 150 (g l): (ii) prevents mining on the deep sea-bed from having adverse effects on the stability of world market price> of the commodities

in question (Arts. 150 (f), 151 (1»; and (iii) provides tor a transfer of technology and scientific knowledge relating to activities in the Area to developing States (Art. 144; ~ Technology Transfer). Arts. 156 to 185 (Part XI, Sec. 4) contain the proposed statute of the International Sea-Bed Authority. The basic conditions for prospecting, exploration, and exploitation of the mineral resources, i.e. the substantive rules on deep sea-bed mining, are regulated in Annex III (see Arts. 2 and 3 of that Annex).

(b) Organs Apart from the principal organs of the Authority (the Assembly, the Council and the Secretariat) the 1982 Convention will establish the Enterprise as an organ of the Authority which carries out commercial and economic activities directly (Art. 158). The Assembly of the International Sea-Bed Authority (Arts. 159 to 160) shall consist of the members of the Authority, i.e. the State parties (Arts. 156 (2) and 159 (1). It is the supreme organ of the Authority and is empowered, inter alia, to establish general policies (Art. 160 (1» and subsidiary organs (Art. 160 (2) (dj), The Assembly shall elect the members of the Council, the Secretary-General, and the Governing Board and the Director-General of the Enterprise. The Council, the executive organ of the Authority (Art. 162 (1», shall consist of 36 States members. Certain individual States or groups of States, such as the largest consumer State of minerals derived from the Area or one State from the Eastern European (Socialist) region, have guaranteed seats (Art. 161 (1) (a) and (bj). The Council is empowered to establish specific policies to be pursued by the Authority (Art. 162 (1». It must also approve "plans of work for mining projects" (see Art. 162 (2)(j) and Art. 6 of Annex III. as well as Art. 162 (2)(k) and Art. 12 of Annex III concerning plans submitted by the Enterprise) . The Secretariat (Arts. 166 to 169), comprising a Secretary-General and staff (Art. 166 (1 shall fulfil the administrative functions of the Authority (Arts. 166 (3) and 167 (1». The Enterprise shall be the organ of the Authority which shall carry out activities in the

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Area directly (see Arts. 170 (1) and 153 (2)(a)) as well as the transporting, processing, and marketing of minerals derived from the Area (Art. 13 of Annex IV). Annex IV to the 1982 Convention contains the Statute of the Enterprise regulating, inter alia, its relationship with the Authority and its structure, as well as determining the powers and functions of its Governing Board and the Director-General. The Enterprise may operate in deep-sea mining either directly or through ~ joint undertakings with private or State companies. Though not without precedent, the establishment of such an international suborganization as a direct participant in important commercial activities is quite novel in the law of international organizations (~ International Organizations, General Aspects). (c) Finances, rule-making, review conference The activities of the Authority shall be financed initially from assessed contributions by State members (see Arts. 171 (a) and 160 (2)(d)) until the Authority has sufficient income from other sources, such as revenue from commercial activities of the Enterprise or fees, production charges, and other contributions made by operators (Art. 153 (2)(b) in accordance with Art. 13 of Annex III). Apart from its decision-making functions, primarily in respect of licensing deep-sea mining operations, the Authority is empowered to make secondary law, i.e. to establish rules, regulations and procedures in respect of individual subjectmatters which are specifically mentioned in the 1992 Convention and its Annexes. The Authority does not only have rule-making power in respect of the system of production charges (Art. 13 (6)(a) of Annex III); it may also regulate the administrative procedure relating to prospecting, exploration, and exploitation in the Area (Art. 17 (1)(a) of Annex III) as well as particularities of operations in the Area, including procedures for the transfer of technology (Art. 17 (1)(b) (xi) of Annex III and Art. 144). The secondary law so established is directly effective. However, unlike in supranational organizations which are based on a greater homogeneity and cooperation among their member States (e.g. the ~ European Communities), securing the compliance of the secondary law is

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left to the organization itself (Art. 153 (4)), not to the State members. Art. 155 provides for a Review Conference to be convened 15 years after the earliest commercial production commenced under an approved plan of work. This Conference may ultimately lead to amendments to Part XI of the 1982 Convention on the basis of ratification by three-quarters of the State parties. Such an amendment will have effect also vis-a-vis those State parties which do not ratify the amendments. States so affected by an amendment duly adopted and ratified can only avoid being bound by the new provisions by denouncing the Convention in toto in accordance with the procedure in Art. 317 (1). 5. Interim Arrangements In two resolutions, UNCLOS III dealt with the problem of how to regulate activities in the Area until the 1982 Convention enters into force. In Resolution I of September 24, 1982 (Docs. A/CONF.62/L.94, L.132/Add.1, and L.137) the Conference established a Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea. This Commission shall take all steps necessary to secure an efficient start of operations once the Convention comes into force. Resolution II of September 24, 1982 ("Governing Preparatory Investments in Pioneer Activities Relating to Polymetallic Nodules", Docs. AI CONF.62/L. 132/Add. 1, Add. lICorr. , and L.141/Add.l) guarantees exclusive rights for exploratory activities to eight specified pioneer investors (Res. II (1) (a) and (b)), provided their respective national States sign the Convention. After entry into force of the Convention, pioneer investors will have priority rights in respect of contracts to be made with the Authority. In the meantime the Preparatory Commission has reached an "Understanding ... for Proceeding with Deep Sea-Bed Mining Applications and Resolving Disputes of Overlapping Claims of Mine Sites" (Meeting of August 11 to September 5, 1996, relating mainly to French, Indian, Japanese, and Soviet applications; ILM, Vol. 25 (1986) p. 1326). The final stages of UNCLOS III were dominated by a growing dissatisfaction with the provisions on the international sea-bed area. In 1980 a

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new United States administration decided that it could no longer accept the Draft Convention on the Law of the Sea as it stood. Two years later the United States declared the 1982 Convention unacceptable in respect of its deep sea-bed provisions. The United States and some other Western industrialized countries are particularly concerned about, inter alia, the following matters: (i) Provisions that would actually deter future development of deep sea-bed mineral resources, when such development should serve the interests of all countries; (ii) a decision-making process that would not give the United States or others a role that fairly reflects and protects their interests; (iii) provisions that would allow s.mendments to enter into force for the United States without its approval, this being clearly incompatible with the United States approach to such treaties; (iv) stipulations relating to mandatory transfer of private technology and the possibility of national liberation movements sharing in benefits; and (v) the absence of assured access for future qualified deep sea-bed miners to promote the development of these resources (see Statement by the President of the United States on United States Actions Concerning the Conference on the Law of the Sea of July 9, 1982, Public Papers of the Presidents, Ronald Reagan (1982 II) p. 911). In their view Part XI of:he 1982 Convention establishes a too bureaucratic and dirigiste system which would run counter to liberal concepts of world trade relations. In the late 1970s and ear y 1980s some industrialized countries (the Federal Republic of Germany, France, Japan, the Soviet Union, the United Kingdom) enacted national legislation which provided for a domestic legal framework for deep sea-bed operations by companies under their respective jurisdiction. These acts were not meant to regulate the issue instead of the Convention. After announcing opposi :ion to the deep-sea mining regime contained in the final 1982 Law of the Sea Convention, the I. nited States entered into agreements with other deep-sea mining States to ensure that no competing claims to deep-sea sites would be pursued ar.d mining licences granted by one State would be recognized by other States on a reciprocal basis (see Agreement concerning Interim Arran gements relating to

Polymetallic Nodules of the Deep Sea Bed of September 2, 1982, ILM, Vol. 21 (1982) p. 950 and the Provisional Understanding regarding Deep Sea-Bed Mining of August 3, 1984, ILM, Vol. 23 (1984) p. 1354). The legality of these arrangements and interim acts has been challenged by the Group of 77 (~ Non-Aligned States) which regards any unilateral deep-sea mining action outside the scope of the 1982 Convention as illegal. Yet, according to the lex lata, activities of exploration and exploitation OD the sea-bed and subsoil thereof beyond the limits of national jurisdiction remain legal as long as the new law which the Convention tries to establi..h is not generally accepted. The principle of the "common heritage of mankind" does not in itself contain a ~ moratorium on activities of that kind (see in detail ~ Sea-Bed and Subsoil).

6. Evaluation It is unlikely that Part XI of the 1982 Convention will ever become the universally accepted law of the deep sea-bed. A dual regime of deep sea-bed operations is more likely to emerge, one under the control and management of the Authority once the Convention comes into force and the other under the reciprocal arrangements referred to above. Competing claims and further uncertainty about the legal regime of the "nonnational" sea-bed might be the consequence. Much will depend on how the economic perspectives for deep-sea mining operations develop. Even if one of the original objectives pursued by UNClOS HI. i.e the establishment of a universally accepted legal framework for the deep sea, is not achieved. the experience gained at the Conference and the institutional models created will have an impact on future similar attempts, for example in respect of the review of the Antarctica Treaty (~ Antarctica). United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). American Law Institute, Restatement of the Law, Foreign Relations Law of the United States (Revised), Tentative Draft No.6, Vol. 2 (1985) § 523. Die Bemiihungen urn ein Regime des Tiefseebodens. Das Schicksal einer Idee, ZaoRV, Vol. 38 (1978) 745-800.

W GRAFVITZTHUM,

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The Lawfulness of Deep Seabed Mining, Vols. 1 and 2 (1980), Vol. 3 (1981). w. HAUSER, Die rechtliche Gestaltung des Tiefseebergbaus nach der Seerechtskonvention (1982). R.R. CHURCHILL and AV LOWE, The Lawof the Sea (1983)

T.G. KRONMILLER,

155-177.

The Legal Status of the International Seabed, in: Volkerrecht als Rechtsordnung - Internationale Gerichtsbarkeit- Menschenrechte, Festschrift fur Hermann Mosler (1983) 429-451. R.C. OGLEY, Internationalizing the Seabed (1984). F.H. PAOLILLO, The Institutional Arrangements for the International Sea-Bed and Their Impact on the Evolution of International Organisations, RdC, Vol. G. JAENICKE,

188 (1984 V) 135-338.

"Observers Signatory of the Final Act" in the International Seabed Authority's Preparatory Commission, GYIL, Vol. 27 (1984) 303-314. I.M. VAN DYKE and D.L. TEICHMANN, Transfer of Seabed Mining Technology: A Stumbling Block to U.S. Ratification of the Lawof the Sea Convention? Ocean Management and International Law, Vol. 13 (1984)

T. TREVES,

427-455.

v.

GAME DE FONTBRUNE, L'exploitation des ressources minerales des fonds marins: Legislation nationale et droit international (1985).

WOLFGANG GRAF VITZTHUM

ISLANDS 1. Notion The need to define an island arose historically in relation to the question whether a particular geographic formation generates a ~ territorial sea. Currently, the question is broader: it is whether a formation generates a territorial sea, a ~ contiguous zone, an ~ exclusive economic zone and a ~ continental shelf. The answer given by Art. 121(2) of the Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) is that an island generates all these zones, provided it meets the following definition: "An island is a naturally formed area of land, surrounded by water, which is above water at high tide" (Art. 121(1». This definition thus excludes artificial structures (~ Artificial Islands and Installations) and lowtide elevations or drying-rocks. There is one important proviso. Although falling within this definition, a rock will generate only a territorial sea and contiguous zone; Art. 121(3) expressly provides: "Rocks which cannot sustain human

habitation or economic life of their own have no exclusive economic zone or continental shelf."

2. Historical Evolution of Legal Rules Historically, international law did not find it necessary to formulate special legal rules for islands. In so far as acquisition of -~ sovereignty over islands was involved, the normal rules governing the case of any land territory applied. The only special feature of islands was that with small islands, and in particular with those that were uninhabited, ~ effectiveness of occupation was satisfied by rather minimal acts of State authority (see, e.g. the ~ Palmas Island Arbitration (RIAA, Vol. 2 (1949) p. 829, at p. 845); the ~ Clipperton Island Arbitration (RIAA, Vol. 2 (1949) p. 1105, at p. 1108); or the ~ Minquiers and Ecrehos Case (ICJ Reports 1953, p.47, at p. 65; ~ Territory, Acquisition). However, new rules have had to be developed to deal with artificial islands. Art. 60(j)f the 1982 Law of the Sea Convention gives the coastal State the exclusive right to construct artificial islands within the exclusive economic zone; according to Art. 80, the same right applies throughout the continental shelf. Such islands come under the exclusive jurisdiction of the coastal State. Although a safety-zone may be established around them and due notice must be given of their construction, such islands generate neither a territorial sea nor any other kind of maritime zone (Art. 60(8».

3. The Special Problem of Baselines A recurring problem has been how to treat islands in the drawing of the ~ baselines from which the territorial sea is measured. In practice, different situations must be envisaged.

(a) Normal baselines Where a coastal State uses the normal baseline to measure the territorial sea, that is the low-water mark, each island off the coast will have its own baseline and territorial sea, although its territorial sea will coalesce with that of the mainland, or another island, where they are less than 24 miles apart. Fringing reefs or low-tide elevations may affect the baseline according to Arts. 6 and 13 of the 1982 Convention, but this is by virtue of

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special rules, not because these formations are assimilated to islands. (b) Straight baselines

Under the rules in Art. 7 of the 1982 Convention, where the method of drawing straight baselines is used, islands may be used as appropriate points for such baselines. In contrast, low-tide elevations may not be used unless lighthouses or similar installations are built upon them. (c) Bays

For the purpose of determining whether an indentation is a bay under Art. 10 of the 1982 Convention, islands within the indentation are treated as part of the water area (~ Bays and Gulfs). However, islands which lie in the mouth of the indentation may create a multi-mouthed bay. This means that the "semicircle test" under Art. 10(2) is applied by using as the diameter a line which is the sum of the water-distances across the mouth of the indentation, thereby excluding that part of the line which lies across islands (Art. 10(3». In some cases an island may be treated as an extension to the headland of a bay (see United States v. Louisiana, 394 U.S. 11 (1969». In others, an island may be treated as one side of a bay (see United States v. State of Maine et a1. (Rhode Island, New York), Report of Special Master, No. 35, Original, October Term 1983). (d) Archipelagic States

Such States consist of islands (see Art. 46 of the 1982 Convention; ~ Archipelagos). Subject to certain criteria relating to length, direction, ratio of water to land, etc. (Art. 47), baselines may be drawn around the outermost islands. The waters within such baselines have tl e special status of archipelagic waters and are suoject to the right of ~ innocent passage. 4. Effect of Islands on Maritime Boundaries

Islands have rightly been regarded as a typical form of "special circumstances" justifying a departure from the principle of strict equidistance, whether for purposes of establishing boundaries between the territorial waters of neighbouring States or between their continental shelves under Art. 6 of the 1958 Convention on the Continental

Shelf I. ~ Maritime Boundaries, Delimitation). Under the newer formulations of a rule on boundary delimitation for the continental shelf and the exclusive economic zone in Arts. 83 and 74 respectively of the 1982 Convention, the practice has been to regard islands as geographical features generally requiring special treatment in order to reach a result in accordance with equitable principles. Perhaps, three generalizations may be made in this context: (i) An island State is likely to attract a greater area of continental shelf or exclusive economic zone than an island dependency (see the Court of Arbitration's discussion of the ~ Channel Islands in the ~ Continental Shelf Arbitration (France/ United Kingdom), ILR, Vol. 54 (1977) p. 1; see also -~ Continental Shelf Case (Libyan Arab Jamahiriya/Malta), ICJ Reports 1985, para. 72). (ii) Islands in close proximity to a mainland State under whose sovereignty they lie may be given either no effect or less than full effect in determining a delimitation line (see ~ Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya), ICJ Reports 1982, p. 18, with regard to the treatment of Djerba and Kerkennahs; ~ Gulf of Maine Case, ICJ Reports 1984, p. 246, with regard to the treatment of Seal Island; Continental Shelf Case (Libyan Arab Jamahiriya/Malta), ICJ Reports] 985, p. 48, with regard to the ignoring of the island of Filfla). (iii) Islands remote from the State under whose sovereignty they lie may have a separate continental shelf or exclusive economic zone, but the extent of such shelf or zone will depend on all the relevant factors. The proximity of such islands to another State will tend to reduce the extent of their shelf or zone (Continental Shelf Arbitration (France/United Kingdom), with regard to the treatment of the Channel Islands). Islands: Normal and Special Circumstances, in: J.K. Gamble, Jr. and G. Pontecorvo (eds), Law of the Sea: The Emerging Regime of the Oceans, Proceedings of the Law of the Sea Institute, Eighth Annual Conference, June 18-21, 1973 (1974) 137-199. D.E. KARL, Islands and the Delimitation of the Continental Shell, AJIL, Vol. 71 (1977) 59-88. D. BOWETT, The Legal Regime of Islands in International Law (1979). C.R. SYMMONS, The Maritime Zones of Islands in International Law (1979). R. HODGSON,

KOREAN AIR LINES INCIDENT (1983)

167

Mid-Ocean Archipelagos and Internation- having examined the results of the investigation, al Law (1981). adopted on a secret ballot by 20 votes to 2 with 9 H. DIPLA, Le regime juridique des TIes dans le droit abstentions a resolution declaring the Soviet international de la mer (1984). action a violation of international law and conS.P. JAGOTA, Maritime Boundary (1985). demning the ~ use of force by the Soviet Union D.W. BOWE1T (~ International Organizations, Resolutions). Art. 1 of the 1944 Chicago Convention on International Civil Aviation states that "States JURISDICTION, MARITIME see Maritime recognize that every State has complete and Jurisdiction exclusive sovereignty over the air space above its territory" (~ Chicago Convention). This rule is reflective of ~ customary international law (see KOREAN AIR LINES INCIDENT ~ Sovereignty over Airspace; ~ Sovereignty). States may legitimately restrict air passage above (1983) their territory and subject violators to penalties On September 1, 1983 a Korean Air Lines prescribed by national law. An intrusion of a Boeing 747 (KAL 007) on a scheduled flight from non-private aircraft or one directed by another New York to Seoul was intercepted by Soviet State would constitute a direct international wrong military ~ aircraft in' the vicinity of Sakhalin (~ Internationally Wrongful Acts). Response to Island, Soviet Union. At 18:27 hours, on direc- an intrusion is not, however, without internationtions from ground control, one of the interceptor ally recognized limits (~ Reprisals). The general aircraft fired two missiles at KAL 007 which was principle of ~ proportionality and specific rules, thus destroyed and sank into the Sea of Japan. All promulgated by ICAO and by now accepted as 269 persons on board, including 240 passengers, customary international law governing intercepwere killed. The toll in life was greater than all tion of civilian airliners govern these responses. preceding incidents of similar character. At one extreme, it is clear that a State may use At the time of interception the airliner had force to intercept and shoot down an intruding deviated some 500 km off course. It had strayed military aircraft threatening its security. Internaover a military restricted zone with relatively tional reaction to the U2 and other incidents also dense security installations and over which Soviet confirm that a State may shoot down a military law prohibited civilian flight. This was indicated on aircraft on a spying mission (~ Espionage). At international charts available for use on KAL 007. the other extreme, it is equally clear that the The intruding airliner was intercepted twice, destruction of a straying civilian aircraft, not first over Kamchatka shortly after initial intrusion posing a very substantial threat to national securiand then near Sakhalin, which resulted in the ty, would in all cases be a disproportionate and destruction of the plane. There is no credible illegal response. evidence to suggest that KAL 007 was aware of The most difficult cases, of which the KAL 007 either interception until hit. incident is a classical example, are those in which The incident drew widespread international an apparently civilian airliner is suspected of being protest. A draft ~ United Nations Security on a military mission. International law does not Council resolution condemning the Soviet action give total immunity to an intruding airliner simi ,Iy (Doc.SIl5966/Rev. 1) was vetoed by the Soviet because it appears to be civilian. Union on September 12, 1983 (~Veto). The To deal with these twilight cases, the ICAO has incident was subject to an intensive investigation devised interception procedures for intruding by the ~ International Civil Aviation Organizacivilian airliners designed to secure identification, tion (ICAO), though this investigation was ham- alert the airliner and direct it to safe landing pered by the failure to discover the KAL 007 flight (Annex 2 to the Chicago Convention). The recorder (the "black box") and the refusal of the procedures include visual identification, contact Soviet Union to accept a visit of the investigation on a special emergency frequency and, in particuteam. On March 6, 1984 the Council of the ICAO, lar, taking up position by the interceptor within P.E. RODGERS,

168

KOREAN AIR LINES INCIDENT (1983\

view of the pilot of the intercepted aircraft to enable the pilot to see the visual signal given. Although these procedures are in the nature of recommendations, their substantial adoption with non-crucial modifications into municipal law by many States (including the Soviet Union), coupled with State practice and opinio juris and, in particular, reaction to the previous ~ aerial incident cases and to the Israeli shooting down of a Libyan civilian airliner in 1973 strongly suggest the reception of the basic principles encapsulated in the ICAO Annex 2 into customary international law. Much then turns on the disputed facts of this particular incident. Despite rumerous reports prepared by all States concerned, the official ICAO inquiry and an extensive secondary literature, several key issues remain shrouded in uncertainty. In particular, no definite explanation has been given as to the precise reason or cause of the serious deviation of KAL 007 so far from its course. Second, there is no conclusive evidence to confirm whether the Soviet interception procedures actually executed conformed with international norms, though the burden of evidence suggests they did not. As regards the first of these factual issues it is possible to group the many explanations advanced into three theories. The Soviet Union has alleged that the KAL 007 intrusion was a deliberate spying attempt, coordinated with the United States intelligence community, designed to test Soviet air defence procedures. In support of this position, the Soviet Union cites the proven presence of an American spy plane during that night in the region and .also alleges enhanced United States satellite activity. It is also difficult to explain otherwise the deviation from course of a modern aircraft equipped with high technology navigational instruments. The ICAO report, how ever, suggests that no evidence was found to indicate that the deviation was premeditated or hat the crew was at any time aware of it. An alternative theory claims that the deviation was totally accidental. This would assume a considerable degree of lack of alertness and attentiveness on the part of the entire flight crew, but not to a degree unknown ill international civil aviation. The third theory, falling mid-way between the others, suggests that although the

deviation was unintentional on the part of the aircraft. it was detected by United States intelligence authorities who, rather than alerting the flight, used it as a means for testing Soviet air defence. There is only circumstantial evidence to support this view, It is clear that the Soviets treated the intrusion as potentially non-benign and that the surrounding facts may objectively have justified this approach. However, their response fell short of accepted international rules. There are two extreme situations where current international law. now under revision, may permit the shooting down of an apparently civilian airliner. One would be the highly exceptional case whereby an unidentifiable aircraft strays abruptly and without leaving any moment for deliberation or execution of interception procedures over an extremely sensitive military target. This was certainly not the case here as evidenced by the double interception and by the long flight over Soviet airspace. The other case may be where an apparent civilian intruder fails to respond to all correctly executed interception procedures. Even in this case, it is submitted that destruction may be justified only if the aircraft was posing at the time of destruction a substantial security threat. The evidence adduced in the ICAO investigation strongly suggests that the Soviet interceptors, despite indications of the civilian character of the aircraft, including operation of its strobe light, did not attempt a positive identification nor did they execute all required interception procedures, and, in particular, establishment of visual contact with the pilot of KAL 007. Moreover, the destruction took place when the airliner was about to leave Soviet airspace with the alleged damage already suffered and no further security threat posed. It is this failure, absent persuasive factual evidence to the contrary, which constituted the Soviet wrong. As a result of this incident the ICAO Assembly adopted on May to, 1984 an amendment to the Chicago Convention (Art. 3bis) which provides, inter alia, that States must refrain from resorting to the use of weapons against civil aircraft and that in case of interception the lives of persons on board must not be endangered. The provision does not, however, modify any rights under the Charter

LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES

including the right to ~ self-defence. The provision will come into force upon ratification by 102 States members to the Convention (ILM, Vol. 23 (1984) p. 705). It is not clear whether it materially affects lex lata.

169

framework of the ~ exclusive economic zone; another, broader or narrower, definition may have to be applied in other areas of the ~ law of the sea.

(b) Origin of concepts Report of ICAD Fact Finding Investigation - Attachment B to ICAD Secretary General State Letter LE 4/19.4-83/130 (December 30, 1983); ILM, Vol. 23 (1984) 864-923.

Report by the President of the ICAD Air Navigation Commission - Attachment A toICAD Secretary General State Letter LE 4/19.4-84/27 (April 3, 1984); ILM, Vol. 23 (1984) 924-936. Resolution Adopted by the ICAD Council, March 6, 1984; ILM, Vol. 23 (1984) 937. A Legal Analysis of the Shooting of Korean Airlines Flight 007 by the Soviet Union,Journalof Air Law and Commerce, Vol. 49 (1984) 555-588. B. CHENG, The Destruction of KAL Flight KE 007, and Article 3bis of the Chicago Convention, in: I.W.E.S. van's Gravesande and A. van der Veen Vonk (eds.), Air Worthy, Liber Amicorum Honouring Professor Dr. I.H.Ph. Diederiks-Verschoor (1985) 47-74. S.M. HERSH, The Target Is Destroyed (1986). F. HASSAN,

JOSEPH H.H. WEILER

LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES 1. Definitions, Origin of Concepts and Common Interests

(a) Definitions According to Art. 124(1)(a) of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.), a "land-locked State" is "a State having no sea-coast". Under Art. 70(2), geographically disadvantaged States are "coastal States ... whose geographical situation makes them dependent upon the exploitation of the living resources of the exclusive economic zones of other States in the sub-region or region ... and coastal States which can claim no exclusive economic zones of their own". This definition, however, is valid only within the

The notion of land-locked States (LLS) is firmly rooted in ~ customary international law as well as in ~ treaties, including the Geneva Conventions on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205) and on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82), and in declarations and resolutions of international organizations (~ International Organizations, Resolutions). In contrast, the concept of geographically disadvantaged States (GDS) is of recent origin. It developed from the notion of shelf-locked States, i.e. countries, such as the Federal Republic of Germany, whose continental shelves are enclosed by those of other States (~ North Sea Continental Shelf Case). When the Sea-Bed Committee of the ~ United Nations (1968-1973) and the Third UN Conference on the Law of the Sea (UNCLOS III) (1973-1982) considered extending the outer limit of the ~ continental shelf to the outer edge of the continental margin (~ Continental Shelf, Outer Limits), the shelf-locked States objected as they could draw no benefit from the proposed extension. As the UN Sea-Bed Committee and UNCLOS III began to envisage the establishment of an exclusive economic zone with a maximum outer limit of 200 nautical miles measured from the relevant ~ baselines, the opposition spread to countries which, on account of their geographical location, could claim only a reduced economic zone or no such zone at all (Singapore; Iraq); to States with short coastlines (Zaire); and to countries whose economic zone, though extensive, would be poor in natural resources (Jamaica). These States united within the framework of the UNCLOS to form the category of the GDS.

(c) Common interests The GDS had little or nothing to gain from the establishment of a large economic zone and from extensions of the continental shelf; in fact, they had much to lose, as parts of what belonged to the

170

LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES

high seas and, as such, was open to their activities were to form the exclusive economic zones of other States. Accordingly, the GDS sought to curtail the jurisdiction of coastal States over marine areas adjacent to their coasts. They also claimed a right to participate in the exploitation of the natural resources of these areas and advocated the preservation of the existing freedoms of communication beyond the -+ territorial sea. These claims were obviously supported by the LLS which, by definition, have no sea-coast and, hence, are deprived of coastal jurisdiction altogether. This similarity of interests prompted the two categories of States to join forces and to form the Group of LLS and GDS in the context of UNCLOS III. At the end of that Conference, the Group numbered 55 members including 29 landlocked States (Afghanistan, Austria, Bhutan, Bolivia, Botswana, Burundi, Byelorussia, Central African Republic, Chad, Czechoslovakia, Hungary, Laos, Lesotho, Liechtenstein, Luxemburg, Malawi, Mali, Mongolia, Nepal, Niger, Paraguay, Rwanda, San Marino, Swaziland, Switzerland, Uganda, Upper Volta (Burkina Faso), Zambia, Zimbabwe) and 26 States considering themselves to be geographically disadvantaged (Algeria, Bahrain, Belgium, Bulgaria, Cameroun.Ethiopia, Finland, the Gambia, Federal Republic of Germany, German Democratic Republic, Greece, Iraq, Jamaica, Jordan, Kuwait, Netherlands, Poland, Qatar, Romania, Singapore, Sudan, Sweden, Syria, Turkey, United Arab Emirates, Zaire). The common interests of the LLS and GDS mainly related to the size and the regime of the continental shelf and the exclusive economic zone, and to the preservation of the existing rights and freedoms of communication (-+ Navigation, Freedom of; -+ Innocent Passage, Transit Passage; -+ Overflight; -+ Cables, Submarine; -+ Pipelines). Some common ground also existed regarding the -+ International Sea-Bed Area and -+ marine research (-+ Sea-Bed and Subsoil). One category of interests, however, was particular to the LLS: To exercise the rights and freedoms granted to them by the international law of the sea, these countries require free access to the sea.

-+

2. Specific Issues (a) Issues common to land-locked and geographically disadvantaged States Under the Geneva Convention on the Continental Shelf of April 29, 1958 (UNTS, Vol. 499, p. 311), which largely reflects customary international law (North Sea Continental Shelf Cases, IC] Reports 1969, p. 3, at pp. 38-40), the coastal State has the sovereign, i.e. exclusive right to explore its continental shelf and to exploit its living and non-living resources (--+ Marine Resources). At the option of the coastal State, the outer limit of the shelf is fixed at either the 200-metre isobath or the point where natural resources cease to be exploitable. The introduction of the continental shelf concept was detrimental to the LLS, since it deprived these States of some of their freedoms in areas that had previously belonged to the high seas, and to the shelf-locked States as well. As the exploitability test, owing to the rapid development of submarine technology, pushed the outer limit of the shelf seaward, thus progressively diminishing the sea-bed areas governed by the high seas regime, agreement was reached within the context of UNCLOS III to replace that test by stable criteria. The States endowed with a broad continental margin suggested that the new limit be set at the outer edge of that margin. Less favoured countries, including the Group of LLS and GDS, proposed: (i) the establishment of a limit to the continental shelf coinciding with the outer limit of the exclusive economic zone, i.e. the 200-mile mark; and (ii) a revenue-sharing system for the non-living resources of the shelf, to be operated by the International Sea-Bed Authority. Arts. 76 and 82 of the 1982 Law of the Sea Convention partly accommodate both views: (i) by fixing the outer limit of the continental shelf, pursuant to a set of complex criteria, landward of the geological edge of the continental margin; and (ii) by establishing a revenue-sharing system which, however, calls for little more than a token gesture on the part of the broad-margin States. This solution, which is purely conventional in character, is unsatisfactory for the LLS and GDS; it shows that the new law of the sea is largely coastal State-oriented. The freedom of fishing beyond the territorial sea, which characterized the 1958 regime, allowed

LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES

technologically advanced distant-water fishing States to exploit and even deplete the waters adjacent to the coasts of other countries, particularly ~ developing States (~ Fisheries, International Regulation; ~ Coastal Fisheries). However, the establishment of an exclusive economic zone, which was designed to remedy this situation had the drawback of depriving the LLS and GDS of their freedom of fishing in areas which had hitherto formed part of the high seas. To compensate for their loss, these countries claimed an equal or at least equitable right to participate in the fisheries of the exclusive economic zones of coastal States in their region or sub-region. This claim is partly taken into account by Arts. 69 to 72 of the 1982 Law of the Sea Convention which provide that the LLS and GDS have the right to participate, on an equitable basis, in the fisheries of the exclusive economic zones in their region or sub-region. The "terms and modalities" of this participation must, however, be established through special agreements between the countries concerned, taking into consideration factors such as the nutritional requirements of their populations, the need not to overburden certain coastal States, and the protection of local fishing communities. In addition, the Convention's regime of participation will not be imposed on coastal States, such as Iceland, whose economies are overwhelmingly dependent on the exploitation of the living resources of their exclusive economic zones. Special rules apply to developed LLS and GDS; Their participation is limited to possible surpluses, as declared by coastal States, and to the exclusive economic zones of developed coastal States. This right of participation, intended partly to compensate the LLS and GDS for the loss of their freedom to fish in areas of the high seas now embodied in exclusive economic zones, is highly uncertain for the following reasons; The concepts of region and sub-region which form its basis remain undefined; its exercise depends on the assent of the coastal State; and the latter may always attempt to plead overwhelming dependence on the fisheries in its exclusive economic zone. In addition, it remains uncertain whether and to what extent Arts. 69 to 72 of the 1982 Law of the Sea Convention have attained customary status. The situation is especially critical for

171

developed LLS and GDS, whose participation is further restricted to declared surpluses in exclusive economic zones of developed coastal States. Under the 1958 regime, all States, whether coastal or land-locked, enjoy the traditional rights and freedoms of maritime communication (Convention on the Territorial Sea and the Contiguous Zone, Art. 14; Convention on the High Seas, Arts. 2 and 4). This was of particular relevance for the LLS endowed with merchant fleets, i.e. SWitzerland, Czechoslovakia, Austria, Hungary and Paraguay, as it confirmed the right of these States to sail ships under their maritime flag (~ Merchant Ships). This right had already found expression in the Barcelona Declaration Recognizing the Right to a Flag of States Having no Sea-Coast of April 20, 1921 (LNTS, Vol. 7, p. 73; ~ Flags of Vessels). As is shown by Arts. 17,58, 87 and 90 of the 1982 Law of the Sea Convention, UNCLOS III found no difficulty in confirming and even extending the rights and freedoms in question. Activities in the international sea-bed area, which is or is to be the ~ common heritage of mankind (1982 Law of the Sea Convention, Art. 136), shall be conducted for the benefit of mankind as a whole, irrespective of the geographical location of States (Art. 140). If their purposes are peaceful, these activities may be carried out by all States, be they coastal or land-locked (Art. 141). The above rules of non-discrimination and free access are strengthened by Art. 125(1) which provides that the LLS enjoy a right of access to the sea, inter alia for the purpose of implementing the common heritage principle in their regard. A proposal tending to attribute to the LLS and GDS a fixed proportion of the benefits to be derived from activities in the international sea-bed area was rejected by UNCLOS III. The principle of non-discrimination is also reflected in the provisions governing the International Sea-Bed Authority. Art. 161 of the 1982 Law of the Sea Convention, which relates to the composition of the Council, the executive organ of the Authority, prescribes in para. 2(a) that "landlocked and geographically disadvantaged States are [to be] represented to a degree which is reasonably proportionate to their representation in the Assembly", the plenary organ of the

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LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES

Authority. A proposal to reserve two-fifths of the seats on the Council to the LLS and GDS was rejected. Following an increasingly restrictive trend in State practice, the regime of marine research, which was essentially one of freedom in 1958, has been converted into one of coastal State consent by the 1982 Law of the Sea Convention. Such consent is now required, in one form or another, for the conduct of any research in areas under coastal State jurisdiction (-~ Jurisdiction of States). While the Group of LLS and GDS had no uniform view on this basic issue, it attempted to secure for its members a right to be informed of, and even to participate in, research conducted in the exclusive economic zones and on the continental shelves of neighbouring coastal States. This claim is reflected in Art. 254 of the 1982 Law of the Sea Convention which, however, makes the right of the LLS and GDS dependent on conditions which rob it of much of its substance.

Convention confers an effective right on LLS as it dispenses with the requirement of a special agreement. In comparison with Art. 3 of the High Seas Convention, however, the standard of treatment applicable to the ships flying the flag of a LLS has been lowered significantly; these vessels merely "enjoy treatment equal to that accorded to other foreign ships in maritime ports". The expression "other foreign ships" must be taken to mean any other foreign ship not flying the flag of a landlocked State. Accordingly, Art. 131 may well refer to the standard applied to the least-favoured foreign vessel not flying the flag of a LLS and, hence, amounts to no more than a prohibition of discrimination against the ships of such States. It is uncertain whether the rules embodied in either Art. 3 of the 1958 High Seas Convention or Art. 131 of the 1982 Law of the Sea Convention reflect customary law. Save for treaty provisions (Barcelona Convention and Statute on Freedom of Transit of April 20, 1921 (LNTS, Vol. 7, p. 11); GAIT, Art. V), (b) Access to the sea of land-locked States there appears to be no general rule granting States To exercise effectively the rights and freedoms rights of transit over foreign territory. On account granted to them by the law of the sea, the LLS of the special geographical position of the LLS, require free access to the sea --'» ports of their and of their need for access to the sea to exercise coastal neighbours and freedom of transit across the rights and freedoms attributed to them by the the coastal or land-locked States (transit States) law of the sea, Art. 3 of the 1958 High Seas whose territory separates their own territory from Convention provides that these States "should" the sea (~ Transit of Goods over Foreign Terhave such access. To gain effective access to the sea, the LLS require rights of transit, however, ritory). Sea ports are located within -. internal waters and the latter can come into being only through and, hence, fall under the sovereignty of the the conclusion of special agreements with the coastal State. As a rule, their use is regulated by transit States concerned. The Convention on that State unless otherwise provided for by a treaty Transit Trade of Land-Locked States of July 8, such as the ~ Geneva Convention and Statute on 1965 (UNTS, Vol. 597, p.3) is one such inthe International Regime of Maritime Ports of strument. December 9, 1923 (LNTS, Vol. 58, p. 285). To In addition, Art. 3 calls for these special ensure the effectiveness of the rights and freedoms agreements to be concluded "on a basis of attributed to the LLS by the law of the sea, Art. 3 reciprocity". Prima facie this appears to be absurd of the 1958 Convention on the High Seas estab- for the LLS, which have no sea-coast and are in no lished a further exception, granting these States position to grant reciprocity, i.e. to extend transit access to transit ports by extending combined rights to others for the purpose of giving them national and most-favoured-nation treatment to access to the sea. If the condition of ~ reciprocity vessels flying their flag (~Most-Favoured­ is to have any sense, it must be taken to mean that, Nation Clause). But such access can be claimed as in exchange for rights of transit related to access to a matter of right only if a special agreement has the sea, the LLS must grant its partner the right to been concluded with the port State and, hence, is transit through its territory for any purpose whatever. Art. 3 of the 1958 High Seas Convendependent on the latter's consent. By contrast, Art. 131 of the 1982 Law of the Sea tion could thus be used by transit States to extract

LAND-LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES

from their land-locked counterparts concessions which are entirely unrelated to the objective of that provision, which is to enable the LLS effectively to exercise the rights and freedoms of the seas to which they are entitled. It is doubtful whether the provisions of Art. 3 reflect customary law. Arts. 124 to 130 and 132 of the 1982 Law of the Sea Convention substantially improve on the regime established in 1958. Art. 125 recognizes that the LLS have a right of access to the sea. This right is granted by a provision for freedom of transit extending to most means of transport except ~ aircraft, pipelines and gas lines (see Art. 124). Such freedom of transit exists independently of "reciprocity" or of any special agreement, although the conclusion of such an agreement remains necessary to fix the "terms and modalities" for the "exercise" of the freedom of , transit. As a result, the transit State is no longer in a position to paralyze freedom of transit simply by refusing to enter into a special agreement, nor can it make the conclusion of the latter dependent on elements unrelated to the terms and modalities of transit, such as political concessions or the condition of "reciprocity". It could be argued, it is true, that the position of the LLS is strengthened in appearance only because Art. 125(3) specifies that transit States, "in the exercise of their full sovereignty over their territory, shall have the right to take all measures necessary to ensure that the rights and facilities provided for ... for land-locked States shall in no way infringe their legitimate interests". The references to "necessary" measures and to "legitimate" interests, coupled with Art. 300 of the Convention, which imposes a duty on States parties to meet their obligations in ~ good faith and prohibits ~ abuse of rights, make it clear, however, that Art. 125(3) cannot be relied upon abusively by transit States. The transit regime established by the 1982 Convention, the customary status of which is doubtful, also contains provisions dealing with customs duties, charges and other taxes (Art. 127), free zones and other customs facilities (Art. 128), cooperation in the construction and maintenance of means of transport (Art. 129), measures to avoid or eliminate delays or technical difficulties in transit traffic (Art. 130), and the grant of

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greater transit facilities than those provided for in the Convention (Art. 132). A point of particular relevance is addressed in Art. 126: the rights and facilities granted to LLS by the 1982 Law of the Sea Convention or by special agreements concluded pursuant thereto are excluded from the operation of most-favoured-nation clauses inserted in treaties concluded by transit States with third countries. Convention and Statute on Freedom of Transit, April 20, 1921, LNTS, Vol. 7 (1921) 11-33. Declaration Recognising the Right to a Flag of States Having No Sea-Coast, April 20, 1921, LNTS, Vol. 7 (1921) 73-75. Convention and Statute on the International Regime of Maritime Ports, December 9, 1923, LNTS, Vol. 58 (1927) 285-313. Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. Convention on Transit Trade of Land-Locked States, July 8, 1965, UNTS, Vol. 597 (1967) 3-137. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Access to the Sea for Developing LandLocked States (1970). J.-F. PULVENIS, La notion d'Etat geographiquement disavantage et Ie nouveau droit de la mer, Annuaire francais de droit international, Vol. 22 (1976) 678719. S. JAYAKUMAR, The Issue of the Rights of Landlocked and Geographically Disadvantaged States in the Living Resourcesof the Economic Zone, Virginia Journal of International Law, Vol. 18 (1977) 69-119. L. CAFLISCH, Land-Locked States and Their Access to and from the Sea, BYIL, Vol. 49 (1978) 71-100. G. HAFNER, Die Gruppe der Binnen- und geographisch benachteiligten Staaten, ZaoRV, Vol. 38 (1978) 568615. I. WANI, An Evaluation of the Conventionon the Law of the Sea from the Perspective of the Landlocked States, Virginia Journal of International Law, Vol. 22 (1982) 627-665. L. CAFLISCH, The Fishing Rights of Land-Locked and Geographically Disadvantaged States in the Exclusive Economic Zone, in: B. Conforti (ed.), La zona economica esclusiva (1983) 24-48. A. MPAZI SINJELA, Land-Locked States and the UNCLOS Regime (1983). M. GLASSNER,

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Le droit d' acces a la mer et la liberte de transit terrestre, in: R.-J. Dupuy and D. Vignes, Traite du nouveau droit de la mer (1985) 441-462. H. TUERK and E. HAFNER, The Land-Locked Countries and the United Nations Conventionon the Lawof the Sea, in: B. Vukas (ed.), Essayson the New Law of the Sea (1985) 58-70. M.I. GLASSNER (ed.), Bibliography on Land-Locked States (2nd ed. 1986). L. CAFLISCH, What Is a Geographically Disadvantaged State? Ocean Development and International Law, Vol. 18 (1987) 641-663. G. HAFNER, Die seerechtliche Verteilung von Nutzungsrechten (1987). J. MONNIER,

LUCIUS CAFLISCH

LAW OF THE SEA A. Definition. - B. The Interests Which Have Formed the Existing Law of the Sea. - C. The Right of Navigation in the MaritimeZones of Coastal State Jurisdiction: 1. Innocent Passage of Foreign Ships Through the Territorial Sea. 2. Transit Passage Through Straits Used for International Navigation. 3. The Freedomof Navigation and Overflight in the Exclusive Economic Zone. 4. The International Maritime Organization. - D. The Right of Access to Marine Resources: 1. The Exclusive Right of the Coastal State to the Natural Resources of the Continental Shelf. 2. The Establishment of the Fishery Jurisdiction of the Coastal State and the Re-allocation of Global Fishery Resources. 3. The International Regime for the Exploration and Exploitation of the Resources of the International Sea-Bed Area. - E. The Delimitation of Maritime Zones of Coastal State Jurisdiction. - F. The Protection of the Marine Environment. A. Definition The international law of the sea comprises the principles and rules of treaty and customary law between States relating to the uses of the sea (including the -+ sea-bed and subsoil) and the exploitation of its resources, among them in particular the principles and rules relating to the exercise of jurisdiction over maritime spaces and over ships, installations and activities within the different maritime spaces (-+ Jurisdiction of States; -+ Maritime Jurisdiction). The law relating to the transport of persons and goods by sea (maritime contracts) and to the private law rights and obligations connected with ships (charter-parties, bills of lading, maritime

liens, average, salvage, etc.), which is often treated together with the public international law of the sea under the common heading of maritime law, is a part of national commercial law and is not dealt with here, although quite a number of international conventions have been adopted for establishing uniform rules in this field of law (-+ Unification and Harmonization of Laws; see also -+ Admiralty Law). The following survey deals only with the public international law of the sea, and it concentrates on the main lines of development which have formed the existing law of the sea (see also -+ Law of the Sea, History). B. The Interests Which Have Formed the Existing Law of the Sea The existing law of the sea has been formed by conflict and compromise between the general interests of the international community and the special interests of coastal States in the different uses of the sea. During recent decades, the balance between these interests has changed considerably under the impact of modern marine technology and the aspirations of the -+ developing States. To understand the new trends in the evolution of the law of the sea, it will be necessary to identify the various interests that have been instrumental in establishing the principles and rules of the existing law of the sea. The concept of the freedom of the -+ high seas is still the basic principle of the existing law of the sea. This concept means that the high seas are open to all States, without distinction, for the common use of the sea and its resources by -+ navigation, -+ overflight, fishing (-+ Fisheries), laying of -+ cables and -+ pipelines, or by any other activity which is compatible with the res communis character of the high seas and does not purport to subject any part of the high seas to the -+ sovereignty of an individual State. The principle of the freedom of the high seas was established by consistent maritime practice during the last two centuries after the major naval powers had abandoned the policy of closed seas and successfully secured free navigation to all parts of the world for the purposes of their trade, their fisheries and the protection of their nationals. The freedom of the

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LAW OF THE SEA

high seas and the rights of States flowing therefrom with respect to the free use of the sea and its resources have since been universally recognized as part of ~ customary international law and codified in the Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p.82) and in Arts. 86 to 115 of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.). The freedom of the high seas, however, is no longer without limits. The risks connected with modern uses of the sea (e.g. oil pollution, dumping of dangerous waste, ships with nuclear or other noxious cargo, off-shore mining activities) and the prospect of exhausting fishery resources by highly efficient fishing techniques have made the international community aware of the necessity to provide for the protection of the marine environment and the rational management of its resources (~ Marine Environment, Protection and Preservation). The practice of States demonstrates a reaction to this situation in the following different ways: (1) States began to realize that the high seas are a res communis, and they began to recognize an obligation to cooperate for the protection of the marine environment and the rational management of the marine resources. This resulted during recent decades in the conclusion of a number of important international conventions which provided for the control and prohibition of dangerous activities (e.g. oil pollution, dumping of waste, transport of dangerous goods), and for the restriction of fishing activities and the distribution of catch quotas in the case of endangered species (international fishery conventions and establishment of international ~ fishery commissions; see ~ Fisheries, International Regulation). In addition, regulations and recommendations have been issued by the ~ International Maritime Organization (IMO) concerning the safety of navigation (~ Maritime Safety Regulations). (2) The more far-reaching and revolutionary reaction, however, consisted in the practice of a growing number of coastal States to claim jurisdiction over the maritime areas adjacent to their coasts. This move started with the proclamation of exclusive jurisdiction over the oil and other mineral resources of the ~ continental shelf. It continued with the establishment of preferential

and later exclusive ~ fishing zones, and it culminated finally in the claim for a 12 mile ~ territorial sea and a 200 mile ~ exclusive economic zone wherein the coastal State was to have exclusive jurisdiction over the exploitation of the living and non-living resources of that zone. The claim for an extended jurisdiction was defended on various grounds, ranging from considerations of security to the assertion of exclusive rights based on contiguity. The most plausible argument, however, was the widespread dissatisfaction of coastal States with the ineffective measures taken by the international fishery commissions against over-fishing of fish stocks in the maritime areas before their coasts, and the realization that it had become necessary for the coastal State to assume jurisdictional powers over these maritime areas for the more effective enforcement of protective measures in this respect, partly by extending the breadth of their territorial sea and partly by establishing fishery jurisdiction zones. (3) The main pressure, however, for establishing the exclusive jurisdiction of the coastal State over the marine resources in the waters adjacent to its coast came from the side of the developing countries: They regarded such jurisdiction as the only means for securing an equitable share in the exploitation of these resources in view of the superior technical and navigational capability of the industrialized States to exploit them with their distant-water fishing fleets. The claims for an extended jurisdiction of the coastal States over vast areas which had previously been part of the high seas (the area of the high seas affected thereby accounts for about 25 per cent) inevitably ran into conflict with the interests of the naval powers and other shipping nations which sought to preserve the freedoms of the high seas which they had exercised in these areas I'o reconcile these conflicting interests was one 01 the primary objects of the Third United Nations Conference on the Law of the Sea ( 1973- 1982; UNCLOS III : ~ Conferences on the Law of the Sea) C. The Right of Navigation in the Maritime

Zones of Coastal State Jurisdiction The right of navigation in the maritime zones ul coastal State jurisdiction as ;; : -,.'111 which serves a common interest of all States was not disputed at

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LAW OF THE SEA

UNCLOS III, but rather was strengthened against interferences by the coastal State in the exercise of its jurisdiction. The major naval powers, in particular, had made strong efforts to preserve the freedom of navigation and overflight in the newly established maritime zones of coastal State jurisdiction in order to satisfy their strategic interest in the free movement of their naval and air forces (__ Airspace over Maritime Areas). The impact of the negotiations at the Conference on the development of the law is analyzed in the following sections. 1. Innocent Passage of Foreign Ships Through the Territorial Sea

The right of coastal States to exercise full -- territorial sovereignty over a belt of territorial waters before their coast for purposes of defence and security, subject only 10 the obligation of affording foreign ships -- "innocent passage" through these waters, has long been recognized as part of customary international law and this right was codified in the Convention on the Territorial Sea and Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p.205). However, no agreement, could be reached on the maximum admissible breadth of the territorial sea. The Law of the Sea Conferences of 1958 and 1960 failed to resolve this issue, and the Territorial Sea Convention remained silent on the matter. At that time most States claimed and recognized only a breadth of 3 nautical miles. It is true that even then some States already claimed a territorial sea with breadths of 4, 6 and even 12 nautical mile:" but there was no evidence that the principal shipping States were prepared to recognize a general extension to 12 nautical miles. During the last three decades, however, more and more States unuaierally extended the breadth, of their territorial waters to 12 nautical miles, partly for reasons of security and partly for the protection of their coastal fisheries, and this claim became one of the main issues that had to be resolved at the last Law of the Sea Conference. The general extension of the territorial sea to 12 nautical miles created proble ms for the shipping nations because their ships had to pass more often through waters where they might become subject to restrictive regulations of coastal States. The

interests of the shipping States in a most liberal regime of innocent passage were accommodated at UNCLOS III by limiting the power of the coastal State to determine the conditions for innocent passage: In contrast to the 1958Convention on the Territorial Sea which gave the coastal State a wide measure of discretion in restricting innocent passage of foreign ships on any ground of "peace, good order or security", the 1982 Convention on the Law of the Sea contains an exhaustive list of grounds on which the coastal State may deny passage to a foreign ship (Art. 19 (2» and an equally exhaustive list of matters in respect of which the coastal State may enact laws and regulations relating to innocent passage (Art. 21 (1»; in particular, such laws and regulations must not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards (Art. 21 (2», nor shall the coastal State impose requirements on foreign ships which have the practical effect of denying or impairing the right of innocent passage (Art. 24 (1). The coastal State may, however, where the safety of navigation so requires, prescribe the use of designated -- sea lanes or traffic separation schemes, in particular for tankers, nuclear-powered ships, and ships carrying dangerous substances (Art. 22). A further issue which had to be settled at the Conference involved the conditions for the passage of foreign -- warships through the territorial sea. The practice of States differed in respect of whether a special authorization must be obtained from the coastal State as a precondition for the exercise of the right of innocent passage. The 1958 Convention on the Territorial Sea was silent on the matter, and a number of States reserved for themselves the right to require a prior authorization. At UNCLOS III the issue remained controversial during the Conference until the major naval powers finally succeeded in having a set of rules adopted by -- consensus which did not distinguish between -- merchant ships and warships in respect of their right to innocent passage and did not establish special requirements for the innocent passage of warships, such as prior authorization by, or information of, the coastal State. Therefore, the 1982 Convention must be interpreted to the effect that the coastal State may not prescribe such requirements for the passage of

LAW OF THE SEA

177

warships. Although the Convention is not yet in cases where important ~ straits used for internaforce, the practice of the United States and of the tional navigation (e.g. Dover-Calais? Gibraltar, Soviet Union conforms to the consensus reached Hormuz, Bab-el-Mandeb, Malakka, Lombok, at the Conference. The United States claims and Tshushima) which hitherto allowed the free transit practices the right of innocent passage of her of ships and aircraft through a high seas channel, warships through the territorial waters of other would now in their whole breadth become part of States as a right under customary international law the territorial waters of the riparian States. This which does not require prior authorization or would have had the consequence that the restricinformation. The Soviet Union has recently tions for navigation and overflight under the changed .its earlier practice and has issued new regime of the territorial sea, in particular those for regulations relating to the passage of foreign foreign warships or ~ aircraft (e.g. use of desigwarships through its territorial waters which like- nated sea lanes, obligation of ~ submarines to wise do not require prior authorization any more; navigate on the surface, no right of overflight) these regulations, however, allow passage only would become applicable to the passage through along routes ordinarily used for international these straits. navigation or along designated sea lanes and traffic The naval powers which were particularly anxiseparation schemes unless another route is specifi- ous to preserve full freedom of movement for their cally agreed to. The legislation and practice of naval and air forces, and the shipping nations other States is still far from uniform, and it is not which feared restrictions for the passage of their yet clear to what extent the naval powers will be " tankers through these straits, insisted on maintainprepared to enforce the right of innocent passage ing the freedom of transit of ships and aircraft of their warships against States which still require through all straits which are used for international a prior authorization as long as the Convention is navigation, as a precondition for their acceptance not in force between the parties concerned. of a 12 mile territorial sea. At the Conference a In the meantime, already more than 100 coastal compromise solution was reached which allowed States have unilaterally established a 12 mile the extension of the territorial waters in these territorial sea in reliance on the consensus reached straits, but provided for the special regime of the at the Conference, although the 1982 Convention so-called "transit passage" through these straits had not yet entered into force. Only a few States for foreign ships and aircraft (Arts. 37 to 44 of the still adhere to a lesser distance. This situation 1982 Convention on the Law of. the Sea; poses the question whether those States which ~ Innocent Passage, Transit Passage). have extended their territorial sea to 12 nautical The essence of the transit passage regime miles have also to observe the more stringent consisted in a far-reaching assimilation of the right obligations in respect of the innocent passage of of transit passage to the freedoms of navigation foreign ships laid down in the 1982 Convention. and overflight which had hitherto applied to these There are good grounds to assume that a State straits: The freedom of navigation and overflight, which claims general recognition of the unilateral if exercised for the purpose of continuous and extension of its territorial sea to 12 nautical miles expeditious transit, will be guaranteed to all ships must accept the corresponding obligations because and aircraft, civil and military, and may not be the latter were an inseparable part of the legal suspended or otherwise hampered (Arts. 38, 42 regime covered by the c~nsensus on which the (2), and 44); submarines may navigate submerged coastal State relies, and constituted the quid pro (Art. 39 (I) (cj); sea lanes and traffic separation quo for the general recognition of the new limit of schemes may be prescribed only after they have the territorial sea. been submitted to and approved by the competent international organization (at present: IMO), and 2. Transit Passage Through Straits Used for anti-pollution measures must be confined to those International Navigation giving effect to applicable international regulaThe claim of the coastal States to extend the tions (Arts. 41 and 42 (1»; and no enforcement seaward limit of their territorial waters to 12 measures may be taken against foreign ships or nautical miles created a special problem in those aircraft in transit except where a foreign merchant

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LAW OF THE SEA

ship has caused or threatened to cause major damage to the marine environment of the strait (Art. 233). As long as the 1982 Convention has not been generally accepted, the legal situation in the straits which are affected by an extension of the territorial waters remains in doubt. Although the regime of transit passage as embodied in the Convention rests on a consensus of the Conference, it has not, for the time being, acquired the sta!tf of customary international law because it· is a new development of the law and has not yet found general acceptance by consi stent and uniform practice. On the other hand, an extension by the coastal State of its territorial jirisdiction over the waters of a strait used for international navigation which does not respect the freedom of navigation and overflight in such a strait, cannot be based on the consensus of the Conference and may not validly be asserted vis-a-vis a State which relies on the present high seas status of .he strait and is not prepared to recognize the extension of the territorial sea into the strait under these circumstances. The present practice of States takes account of this legal situation. Some States have limited the extension of their territorial waters in such a way as to leave a high seas channel in the midst of a strait (Denmark and Sweden in the Kattegat), while others have refrained altogether from extending their territorial water, into such straits (Japan). The United Kingdom, on the other hand, has recently adopted legislation which extends the limit of' its territorial sea to 12 nautical miles before all parts of the coast, including the straits used for international navigation; however, at the occasion of the adoption of this legislation the British Government made a statement to the effect that in those straits for which no alternative high seas route is available (the Strait of Dover, the North Channel between Scotland and Ireland, and the passage between Shetl and and Orkney), foreign ships and aircraft would be accorded the essential rights of passage, in particular the right of unimpeded passage for merchant ships and warships, the right of overflight. and the right of submarines to pass through tl straits submerged. It seems that this practi« ' cor.iurms to the present state of the law in. respect of straits used for international navigation.

3. The Freedom of Navigation and Overflight in the Exclusive Economic Zone As long as States claimed maritime zones of jurisdiction which related solely to the mineral or fishery resources before their coast (continental shelf and fishery zones). the high seas' freedoms of navigation and overflight which other States continued to enjoy in these zones were not in dispute. The Convention on the Continental Shelf of April 29, 195.~ (UNTS. Vol. 499, p.311) expressly recognized that the legal rights of the coastal State over the continental shelf did not affect the legal status of the superjacent waters as high seas (Art. 3), and prohibited the construction of installations for the exploitation of the resources of the continental shelf which might interfere with the use of recognized sea lanes for international navigation (Art. 5 (6». At UNCLOS III, however, when the concept of the exclusive economic zone was successfully pushed forward, purporting to give the coastal State not only a mere resourcerelated jurisdiction but also a general jurisdiction over all economic activities in the zone (including jurisdiction with respect to the construction of installations, the protection of the marine environment, and the authorization of marine research), the legal position of the freedoms of navigation and overflight in relation to the jurisdictional rights of the coastal State had to be clarified. This provoked a long and unresolved controversy over the fundamental question whether the exclusive economic zone could still be qualified as part of the high seas where certain specified rights of jurisdiction had been conferred on the coastal State, or whether it must rather be qualified as a zone under the general jurisdiction of the coastal State where other States continue to have rights of free navigation and overflight. This legal controversy reflected the conflicting interests in determining whether the rights of navigation and overflight or the jurisdictional rights of the coastal State should have priority in case of conflict; or, in other words, whether the rights of the coastal State or the rights of the other States should be construed restrictively. UNCLOS III finally reached a consensus on a compromise which placed the rights of the coastal State and the rights of the other States on a basis of equality in relation to each other and

LAW OF THE SEA

strengthened the legal position of the freedoms which other States continue to enjoy in the exclusive economic zone (Arts. 55, 56 (2), and 58 (3) of the 1982 Convention). With respect to the freedoms of navigation and overflight in the zone, the 1982 Convention defines them as being the same freedoms as States enjoy on the high seas (Art. 58 (1»; this means that they encompass all activities which may be undertaken in the exercise of these freedoms on the high seas at present or in the future. The range of the rights and freedoms which may be exercised by other States in the exclusive economic zone has been broadened so as to include the freedoms "of navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions of this Convention" (ibid.). This definition makes clear that military activities, such as ~ naval manoeuvres, reconnaissance operations by naval vessels or aircraft, routine cruises of nuclear submarines, or installation of sonar devices, are covered by the freedoms of navigation and overflight in the exclusive economic zone. Where the 1982 Convention has not attributed rights or jurisdiction to the coastal State or to other States within the exclusive economic zoae, the attribution of such rights and jurisdiction shall in case of conflict be resolved on the basis of ~ equity and in the light of all relevant circumstances, taking into account the importance of the interests involved to the parties as well as to the international community as a whole (Art. 59). Since the closure of UNCLOS III, more than 70 coastal States have established an exclusive economic zone of 200 nautical miles in reliance on the acceptance of this concept at the Conference, although the Convention has not yet entered into force. About 30 coastal States still adhere to the earlier practice and have confined themselves to the establishment of fishery zones of 200 miles or less where the distance to an opposite State does not make the full 200 miles possible. The proclamations or legislation of the States which have established a full-fledged exclusive economic zone reproduce as a rule the text of those articles of the 1982 Convention which define the jurisdiction and

179

rights of the coastal State. Most of these States, however, fail to include in their proclamation or legislation the text of those articles of the Convention which relate to the rights and freedoms which other States continue to enjoy in the exclusive economic zone. The United States and the Soviet Union reproduce the substance of Art. 58 (1) in their legislation, but most other examples of similar legislation contain at best only a general reference to the rights of navigation and overflight that other States enjoy in the zone. This may create legal uncertainty and ground for conflict, should the enlarged jurisdictional powers under the exclusive economic zone concept be activated before the Convention becomes applicable between the parties concerned. For the time being, however, the lack of equivalent guarantees of the freedoms and rights of other States in the proclamations or legislative enactments of coastal States does not seem to have created problems for the continued exercise of these freedoms and rights in the newly-established exclusive economic zones because coastal States have proclaimed such zones primarily for the purpose of protecting their fisheries.

4. The International Maritime Organization The freedom of navigation in the exclusive economic zones and in the remaining parts of the high seas, though reasonably well protected against interference by coastal States, has not remained unlimited, but has increasingly been subjected to international regulation. In 1958 the International Maritime Consultative Organization (since renamed the International Maritime Organization) was established for the purpose of I promoting cooperation between the shipping States and adopting uniform rules and standards relating to navigation, construction and equipment of ships, prevention of collisions, handling of dangerous cargoes, and any other matter affecting maritime safety. One of the most important achievements of IMO has been the adoption of the International Convention tor the Safety of Life at Sea of November 1, 1974 (~~, VoL 1184, p. 2), amended by the Protocol relating to 'the International Convention for the Safety of Life at Sea of February 17, 1978 (British Command Papers, Cmnd. 8277, Treaty Series No. 40 (1981». The Convention, which has been ratified by States

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representing more than 90 per cent of world shipping tonnage, establishes in its Annexes an elaborate set of rules relating, inter alia, to the construction and equipment of ships, safety measures for the prevention of accidents (use of radar and radio signals), and the transport of dangerous goods, which may be amended by a simplified procedure. Of particular relevance, however, is the competence of IMO under the Convention to adopt traffic regulations (routing systems, recommended sea lanes, traffic separation schemes, signal systems) for navigation on the high seas and in the exclusive economic zones. Although these regulations are recommendatory only, they are de facto binding because the non-observance of such traffic rules in case of a collision amounts to a neglect of the obligation to observe the precautions required by good seamanship and results in liability for damages. Art. 94 of the 1982 Law of the Sea Convention obliges States to take such measures for ships flying their flags as are necessary to ensure, safety at sea and, in taking such measures, to conform to generally accepted international regulations, procedures and practices and secure their observance. This will amount to the obligation of applying the rules and standards established under the Convention on the Protection of Life at Sea once they have been adopted by consensus or ratified by such a high majority of States, including the main shipping States, that they may be considered as being "generally accepted" .

D. The Right of Access to Marine Resources The policy and practice of States with respect to the exploitation of the marine resources, which traditionally rested on the principle of the freedom o~ the "high seas, suffered a radical change after World War II under the impact of modern marine technology. The development ot sea-bed mining techniques has made it possible 10 exploit the oil and other mineral resources of the submarine areas before the coast which had previously not been accessible, and has put the coastal State in a position to assume jurisdiction and control over the exploration and exploitation of these resources. As to the fisheries resources, toe development ~,l I,,'J range fishing vessels and highly efficient

,;,.

fishing techniques has resulted in such an increase of fishing capacity and an over-exploitation of fish stocks that the regime of free and uncontrolled access to the fishing grounds of the high seas could no longer be maintained, but has had to be replaced by a regime of regulated and controlled access to the available fishery resources.

1. The Exclusive Right of the Coastal State to the Natural Resources of the Continental Shelf The claim of an exclusive right of the coastal State to the natural resources of the continental shelf adjacent to its coast was first advanced by the United States in the so-called Truman Proclamation of September 28, 1945 (Proclamation No. 2667, Policy of the United States with Respect .to the Natural Resources of the Subsoil and Sea-Bed of the Continental Shelf, DeptStateBull of September 30, 1945, p. 484). In the following years numerous other coastal States followed suit and claimed exclusive jurisdiction over the natural resources of their continental shelves without encountering substantial opposition. The arguments which had been put forward to justify this claim were threefold: First, the geological argument that the ,continental shelf is the natural prolongation of the coastal State's land territory . mto the sea; second, the geographical argument that adjacency to the coast confers a superior right to the resources of this part of the sea-bed and its subsoil; and, third, the environmental argument that the coastal State has a security interest to exercise effective control over mining activities in the waters before its coast. The Continental Shelf Convention of 1958 confirmed the "sovereign rights" of the coastal State over the submarine areas "adjacent to its coast" and as far into the sea as "the depth of the superjacent waters admits the exploitation of the natural resources of the said areas". In its Judgment of February 20, 1969 in the -+ North Sea Continental Shelf Cases (ICJ Reports (1969) p. 3) the -~ International Court of Justice (ICJ) held that the continental shelf rights of the coastal State have acquired the status of customary international law and that natural prolongation and adjacency provide the justification for claiming these rights. The exploitability criterion of the Continental Shelf Convention and the rapid progress of off-shore mining techniques had the effect ~-.

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of moving the seaward limit up to which a coastal State is entitled to continental shelf rights, further and further out into the sea. This might, in the final result, allow coastal States with wide continental shelves to extend their jurisdiction, at the expense of the ~ international sea-bed area, over submarine areas where the original arguments for the establishment of continental shelf jurisdiction, in particular the argument of "adjacency", lose their persuasive force (~ Continental Shelf, Outer Limits). Therefore, one of the core issues at UNCLOS III was whether it would be possible to agree on a definite outer limit of a coastal State's continental shelf. After protracted negotiations the group of States with wide continental shelves succeeded in having the geological basis of their jurisdiction over the continental shelf recognized, and the Conference adopted an article whereby a coastal State will be entitled to continental shelf rights "throughout the natural prolongation of its land territory to the outer edge of the continental margin", or at least to a distance of 200 nautical miles where the continental margin does not extend up to that distance (Art. 76 (1) of the 1982 Law of the Sea Convention). The concerns of those States which had pleaded for a definite outer limit of the national continental shelf at 200 nautical miles in the interest of preventing the progressive diminution of the remaining area of the international sea-bed, were to some extent accommodated by the proviso that the outer limit of the national continental shelf shall under no circumstances exceed 350 nautical miles from the ~ baseline at the coast, and that in case resources were recovered from an area beyond the 200 mile limit, compensatory payments shall be due to the other parties of the Convention (Arts. 86 (6) and 82 of the 1982 Convention). For the time being, however, it remains doubtful whether States can already rely on this new definition of the outer limit of the continental shelf before they have ratified the Convention, or whether it must rather be assumed that the legal situation is still governed by the rule embodied in the 1958 Continental Shelf Convention whereby the outer limit of the coastal State's continental shelf rights depends solely on the exploitability of the resources. Apart from the seaward limit, the exclusive rights of a coastal

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State to the mineral and other natural resources of the submarine area before its coast have not been disputed, irrespective of whether they are claimed under the customary continental shelf regime or under the exclusive economic zone regime which incorporates the continental shelf rights within the 200 nautical miles zone (Art. 56 (1)(a) and (3) of the 1982 Convention). A right of access of other States to the resources of the coastal State's continental shelf has never been recognized and consequently is expressly excluded in the 1982 Convention (Art. 77 (2)). 2. The Establishment of the Fishery Jurisdiction of the Coastal State and the Re-allocation of Global Fishery Resources

The point of departure of the claim of the coastal States for preferential or exclusive access to the fishery resources before their coasts differed fundamentally from the establishment of the exclusive jurisdiction of the coastal States over the resources of the continental shelf. The continental shelf rights claimed by the coastal States concerned "new" resources in the sense that until then they had been neither exploitable nor claimed by anyone, whereas the fishery resources claimed by the coastal States concerned a resource which had already been exploited by the coastal and other States to the full extent of their respective fishing capacity in accordance with the principle of freedom of fishing on the high seas. Therefore, the coastal States' claims for jurisdiction over the fishery resources before the coast were strongly opposed by those other States which had traditionally fished in these waters and defended vested interests in these fisheries, and it took much more time for the exclusive right of the coastal State to these resources to be effectively established. The increasing fishing capacity of the traditional fishing States and of developing States after World War II made it necessary to take measures again-t the over-exploitation of fish stocks and to set limits for the allowable catch of endangered species. This created the problem of the equitable apportionment of a reduced quantity of catch among the States whose fishing fleets were exploiting a particular fishing ground. At the 1958 and 1960 Conferences on the Law of the Sea the opinion gained ground that coastal States should be

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entitled to establish a fisher'! zone beyond the limits of their territorial sea up to a limit of 12 nautical miles from the coast for the benefit of their -- coastal fisheries. Within this zone, the coastal State would have the exclusive right of fishing, subject, however, to the right of other States which had habitually fished in these waters, to continue fishing on the same scale as previously. Due to the lack of agreement on the admissible breadth of the territorial sea it had not been possible to embody the concept of the 12 mile fishery zone in the 1958 Conventions, but in the course of the following years more and more States established 12 mile fishery zones before their coasts, either unilaterally (e.g. Canada 1964, United States 1966) or on the basis of a regional multilateral agreement (e.g. North Sea Fisheries Convention of 1964), allowing traditional fishing of other States to continue within the zone under conditions to be agreed with them. With respect to the protection of the fishery resources on the high seas oeyond 12 nautical miles, the practice of States in this period relied primarily on international fishery agreements. These agreements, which were administered by international fishery commissions, provided for the adoption of agreed fishery conservation measures (e.g. fishing seasons, closed areas, fishing gear restrictions, minimum limits of mesh and fish sizes), and, where necessary, the determination of the total allowable catch of a species and the apportionment of catch quotes (-- Conservation of Living Resources of the High Seas). Fishery agreements of this kind have been concluded for nearly all the main fishing regions (e.g. the International Convention for the Northwest Atlantic Fisheries of February 8, 1949 (UNTS, Vol. 157, p. 157), now replaced by the Convention on Future Multilateral Co-operation in the Northwest Atlantic Fisheries of October 24, 1978 (British Command Papers, Cmnd. 7569, Misc. 9 (1979»; the North-East Atlantic Fisheries Convention of January 24, 1959 (UNTS, Vol. 486, p. 157), now replaced by:he Convention on Future Multilateral Co-operation in North-East Atlantic Fisheries of November 18, 1980 (British Command Papers, Cmnd. 8474, Misc. 2 (1982»; the International Convention for the High Seas Fisheries of the North Pacific Ocean of May 8, 1952 (UNTS, Vol. 205, p. 65); the Convention on

the Conservation of the Living Resources Of the Southeast Atlantic of October 23, 1969 (UNTS, Vol. 801, p. 101); and others). Where it became necessary to establish and allocate catch quotas under the fishery agreements, coastal States used to claim preferential treatment in the apportionment of quotas in the maritime areas before their coasts, and usually they were accorded higher quotas, taking into account the needs of their coastal fisheries. Coastal States could rely in this respect on a resolution of the ]958 Conference on the Law of the Sea which had recommended that where, for the purpose of conservation, it would become necessary to limit the total catch of fish stocks in an area of the high seas adjacent to the coast of a State, the agreed allocations-should recognize any preferentia: requirements of that coastal State resulting from its dependence upon these fisheries. In the result, however, coastal States did no~rgard the existing international fishery agreements as a satisfactory regime for protecting their special interests in the fishery resources of the waters before their coasts; they complained about the difficulty in reaching agreement on effective conservation measures or equitable quota allocations, and referred to the lack of power for enforcing agreed conservation measures against foreign fishing vessels which remained in this respect under the jurisdiction of their respective flag States. It is questionable whether these criticisms were fully ju~ified in view of the efforts of the fishery commissions to accommodate the interests of the coastal State and to provide for joint enforcement schemes. But it was a fact that those coastal States whose waters were fished heavily by distant-water fishing fleets had lost confidence that the existing international fishery commissions as constituted would be able and willing to protect their interests. The initiative for the extension of the fishery jurisdiction of the coastal State beyond 12 nautical miles came from the South American States. Some of them (Chile, Ecuador, Peru) had since 1947 claimed a 200 mile zone before their coasts for the purpose of protecting the fishery resources against massive fishing activities of distant-water fishing fleets of other States, basing their claim to the fishery resources in these water on the predominance of their fishery interests within the 200 mile

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zone. This policy, which was followed by most South American States, culminated in two declarations of the Latin American States (Lima, August 8, 1970; Santo Domingo, June 7, 1972) wherein it was asserted that coastal States have "sovereign rights" over the resources in the waters, in the sea-bed and in the subsoil of an area adjacent to its territorial sea, which may be extended up to 200 nautical miles from the coast. These claims were opposed by the affected distantwater fishing States, but this opposition did not prevent some South American States from effectively enforcing their jurisdictional claim against foreign fishing vessels in the 200 mile zone (see e.g. ~ Onassis Incident). In other regions of the world, States started to claim exclusive fishing rights in a 50 mile zone for the development of their 'fishing capacity (Iceland and some African States). In this context reference must be made to the ICl's Judgment of July 25, 1974 in the ~ Fisheries Jurisdiction Cases JU.K. v. Iceland (ICJ Reports (1974) p.3); Federal Republic of Germany v. Iceland (ICJ Reports (1974) p. 175» where the Court had to deal with the 50 mile exclusive fishery zone which had been established by Iceland in 1972. The Court held that within her 50 mile fishery zone Iceland could validly claim preferential rights to the fishery resources within this zone to the extent of her special dependence on these resources; but Iceland was not entitled unilaterally to exclude the fishing vessels of the claimant States from the waters where they had habitually fished before. The ICl's decision, though favourable to the claimants, nevertheless amounted to an implicit recognition of the validity of Iceland's 50 mile fishery zone vis-a-vis all other States which had not fished in these waters. When the Law of the Sea Conference opened in 1973, the developing coastal States joined in supporting the concept of a 200 mile "exclusive economic zone" which in its essence combined the claim for exclusive rights to the fishery resources with the existing continental shelf rights within the zone. As this concept amounted to the total extinction of any fishing rights of other States in the waters of the 200 mile zone, it was at first opposed by the distant-water fishing States and by those States which for geographical reasons were not able to claim a 200 mile zone (the group of ~

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land-locked and geographically disadvantaged States). When, however, the two leading distantwater fishing States, the United States and the Soviet Union, showed their willingness to accept the concept of the exclusive economic zone as a quid pro quo for the preservation of the rights of navigation for merchant and naval vessels through the extended maritime zones of coastal State jurisdiction, the opposition against the concept of a 200 mile resource jurisdiction zone lost its force. The negotiations centred then rather on the issue whether and under what circumstances coastal States should be obliged to give other States access to the fishery resources of the zone, particularly in those cases where coastal States do not have the capacity to harvest the entire allowable catch of a species or where other States have habitually fished in the zone. In the result, however, the coastal States' group rejected any enforceable legal obligation in this respect. Although they accepted, in principle, the obligation to promote the optimum utilization of the fishery resources in the zone and the obligation to give other States access to these resources where they do not have the capacity to harvest the entire allowable catch, they succeeded in having a set of articles adopted by the Conference which in effect provided the coastal State with a wide and non-reviewable discretion in the choice of their fishery policy, in the determination of the total allowable catch, and in the allocation of any surplus beyond its own harvesting capacity to other States (Arts. 62, 63, 69, 70, and 297 (3». In reliance on this trend of the negotiations at the Conference the industrialized States of the northern hemisphere with important fisheries and valuable fishing grounds before their coasts (United States, Canada, the States of the ~ European Economic Community, Norway, Iceland, and the Soviet Union) decided nearly simultaneously, at a rather early stage of the Conference (1977 to 1978), to establish exclusive fishery zones of 200 nautical miles. Since then nearly 100 coastal States have established either exclusive fishery or exclusive economic zones of 200 miles. Other States which border narrow seas (e.g. ~ Baltic Sea, ~ Persian Gulf) claim at least an exclusive fishery zone to the middle line or other agreed boundary line in these waters. All these 200 mile fishery or exclusive economic zones

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which have since been established unilaterally by national legislation or proclamation, are exclusive in the sense both that the righ t to fish in the zone is primarily reserved to the fishing vessels of the coastal State and that it is left to the discretion of the coastal State to what extent and under what conditions fishing rights will he accorded to other States through special fishery agreements, either in exchange for reciprocal fishing rights or other commercial concessions. In view of this extensive and uniform practice it must be assumed that the exclusive right of the coastal State to the fishery resources within the 200 mile zone has already acquired the status of generally accepted or customary law, irrespective of whether a fishery zone or a full-fledged exclusive economic zone has been established by a coastal State. The seaward extension of the coastal States' fisheries jurisdiction has shown that the interests of the coastal States have prevailed over the distant-water fishery interests of other States. The 200 mile zones cover practically all valuable fishing grounds which, for biological reasons (abundance of plankton as the basis of the food-chain for fish), are geographically located in the shallower parts of the sea adjacent to the coast; and there have already been attempts on the part of coastal States to claim "special interests" .In the management and regulation of fishing activities in maritime areas where fishing grounds extend beyond the 200 mile limit. It is now generally recognized that coastal States may validly claim a predominant interest in the rational management and conservation of the fishery resources ih the fishing grounds before their coasts on which the development of their fisheries depepd, Ind that this interest justifies jurisdiction and' 'control over the utilization of these resources. On the basis of this jurisdiction, coastal, States gra dually displace the fishing activities-of other States by expanding their own fishing fleets so as even tc be able to harvest the entire .harvestable catch. This policy goal of self-reliance, although its contr bution to the most economic and efficient utilization of the world's fishery resources -'may ,'- be questioned, has been justified on grounds of meeting the nutritional needs of the population of the country concerned, developing the national fish-processing industry, or generating more national income and employment. The 1984 World Fisheries Conference of the \

~ Food and Agriculture Organization (FAO) endorsed a strategy for fisheries management and development which, inter alia, was conceived to enable coastal Stat~~ in particular developing countries, to take greater advantage of the fishery resources in their exclusive economic zones and thereby increase their contribution for the attainment of national economic, social and nutritional objectives. The FAO Fisheries Commission and its regional Fishery Committees make efforts to coordinate the fishery management plans of coastal States and to promote the cooperation of States in this field.

3. The International Regime for the Exploration and Exploitation of the Resources of the International Sea-Bed Area The discovery of rich deposits of manganese nodules on the deep sea-bed, and the rapid development of an advanced deep sea mining technology which made the recovery of these marine resources technically feasible, posed the question as to the principles and rules which should govern the exploration and exploitation of the mineral resources of the international sea-bed and its subsoil beyond the limits of national continental shelf jurisdiction. When this question was taken up in the ~ United Nations General Assembly in 1967, divergent positions were taken by the industrialized States, which had the technical and financial means to recover these resources, and by the developing countries, which wanted a share in the technological and financial benefits expected from deep sea mining for their own development. The deep sea mining States maintained that they had the freedom to undertake mining activities on the international sea-bed under the regime of the high seas, while the developing States maintained that the regime of the high seas did not apply to the: mineral resources of the international sea-bed and its subsoil, but that their exploitation had to be authorized by an international authority acting on behalf of the international community. The controversy culminated in the adoption of the socalled Moratorium Resolution of December 15, 1969 (UN GA Res. 2574 (XXIV), Question of the Reservation Exclusively for Peaceful Purposes of the Sea-Bed and the Ocean Floor and the Subsoil thereof underlying the High Seas beyond the

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Limits of Present National Jurisdiction and the Use of the Resources in the Interests of Mankind). This Resolution asserted that, pending the establishment of an international sea-bed regime, States and their nationals were bound to refrain from all activities of exploration of the resources of the international sea-bed area. The Resolution, however, did not make law; as it was passed at the instance of the developing countries against the votes of nearly all industrialized States (including the Soviet Union), whose interests were specifically affected by the terms ofthe Resolution, this fact foreclosed any argument to the effect that the Resolution might have confirmed or created a rule of international law. Despite these fundamental differences on the legality of deep sea mining activities under present international law, it was agreed that the resources of the international sea-bed are the ~ "common heritage of mankind" and that an international regime governing the exploration and exploitation of these resources should be established by an international treaty of a universal character, generally agreed upon. The consensus on this approach and the principles which should guide the establishment of such an international regime were laid down in a Declaration of Principles governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction which was adopted by the General Assembly on December 17, 1970 without a negative vote (UN GA Res. 2749 (XXV». The Declaration constituted the agreed basis for the negotiations on an international sea-bed regime at UNCLOS III, and the principles contained therein were never questioned at the Conference. In the present context it is neither possible nor necessary to give a detailed account of the negotiations at the Conference; however, some issues which were particularly relevant in the development of the present legal situation will be referred to. The main controversy at the Conference related to the functions and powers of the International Sea-Bed Authority which was to be created for the administration 6f the international sea-bed regime. The developing countries held the view that the Authority should have comprehensive powers for regulating and controlling deep sea mining activities, and, after a transitory stage, should

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assume the sole competence for conducting such activities to the exclusion of national activities. The industrialized States, on the other hand, in particular those whose industries were actively engaged in planning deep sea mining activities (in the following referred to as the deep sea mining States), maintained that the Authority should have only well-defined regulatory powers, while States and their nationals should have direct, non-discriminatory, and assured access to the resources of the international sea-bed under a licensing or concession system. To reconcile these diametrically opposed approaches, the Conference agreed on an elaborate "parallel system": States and their nationals as well as an international enterprise, representing the interests of the international community with special regard to the developing countries, would have the right to apply to the International Sea-Bed Authority for authorizations to undertake mining activities on a geographically defined area (mine site) of the international sea-bed. The Authority would have specified regulatory powers for the allotment of mine sites and the control of mining activities. It was hoped that the compromise on the "parallel system" would pave the way to a consensus on a generally acceptable regime. However, there remained some elements of the international regime, as it had finally been drafted in the Convention, which were rejected or heavily criticized by the deep sea mining States. This prevented the Conference from reaching a consensus on that part of the Convention, with the effect that UNCLOS III adopted the Convention only by a majority vote. The main points of concern of the deep sea mining States related to those provisions of the Convention which imposed restrictions and financial burdens on deep sea mining (e.g. production limits in the interest of the land-based producers, discretionary procedures for allotting mining authorizations, preferences for the international enterprise, compulsory ~ technology transfer, financial contributions to the Authority). A further particular point of concern related to the provision which would allow a future review conference to re-examine and change the conventional regime by a three-quarters majority with binding effect for all parties to the Convention,

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and through this procedure to impair or abolish the "parallel system" and the right of direct access of States to the resources of the international sea-bed. Because of these concerns the United States, the United Kingdom, and the Federal Republic of Germany did not sign the Convention; the other industrialized States have signed but not yet ratified the Convention. For the time being, in 1988, the number of ratifications is still much below the 60 ratifications req uired for the entry into force of the Convention. In the forum of the Preparatory Commission which had been set up by the Conference for preparing the establishment of ~ the International Sea-Bed Authority, efforts are being made to accommodate the concerns of t he deep sea mining States (e.g. by adopting supplementary or interpretative regulations and understandings with respect to the disputed provisions of the Convention). It remains to be seen whether these efforts and possibly protocols of appropriate amendments to the Convention will eventually succeed in the elaboration of a generally acceptable international sea-bed regime. The slow progress of the negotiations at the Conference, and the already heavy investment by the industries of the leading deep sea mining States in exploratory activities on the deep seabed, led these States to enact national legislation relating to deep sea mining activities of their respective industries (1980: United States, Federal Republic-of Germany; 1981: United Kingdom, - France; 1982: Soviet Union, Japan; 1985: Italy). These ~~slative enactments provided for national exploration and exploitation licences on a designated mine site in the international sea-bed area and for the reciprocal recognition of comparable licenses issued by other States; they were expressly qualified as provisional or interim measures until an international sea-bed regime would enter into force. So far, only exploration activities have been licensed under their terms. Despite the limited purpose of this legislation, the group of developing countries repeatedly declared that they regarded such legislation as internationally illegal and that they would not recognize deep sea mining rights based thereon. They maintained that activities on the internation-

al sea-bed had to await authorization under the regime to be created under the Convention, and suspected that the United States which had most strongly objected to that regime, and other States which still have difficulties with it, were aiming at a separate sea-bed regime outside the Convention based on reciprocity agreements between each other. There is at present no evidence that the group of deep sea mining States intends to embark on such a course. The so-called "reciprocity agreement" which obliged the signatory States to respect each others' licenses and to coordinate their licencing requirements and operational standards, contains an express reservation to the effect that this agreement is without prejudice to any obligations assumed by any of the parties in respect of the Convention (Provisional Understanding on Deep Sea Matters, signed on August 3, 1984 by Belgium, France, Federal Republic of Germany, Italy, Japan, Netherlands, United Kingdom and United States, ILM, Vol. 23 (1984) p. 1354). It is generally agreed that only an international sea-bed regime of world-wide application will provide the necessary legal security of tenure for long-term and costly mining ventures on a mine site in the international sea-bed area. Such security cannot be provided to the same extent by reciprocity agreements between deep sea mining States as long as a major part of the international community remains hostile to mining activities outside the Convention, and refuses to recognize their legality. Should it tum out, however, that a generally acceptable international regime will not be attainable, there may be no other choice for the deep sea mining States than to continue the present reciprocity scheme. Although it is theoretically conceivable that the conventional and the reciprocity regime may exist side by side, in particular during the exploratory phase of deep sea mining, the prolonged existence of two separate regimes will in the long run create unequal conditions, result in conflicts over the allocation of mine sites, and hamper the rational and economic utilization of the available resources. Such prospects may probably put enough pressure on States to come to an agreement on a single regime acceptable to all sides. At present, there are hopeful signs of a more

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pragmatic attitude of States in dealing with the danger of moving into two separate regimes. It was possible to reach a consensus in the Preparatory Commission on the future treatment of so-called "pioneer investors" with respect to the mine sites they had already explored (Statement of Understanding made by the Chairman of the Preparatory Commission on April 10, 1987). Such pioneer investors are State or private enterprises or consortia which have already made substantial investments in the development of deep sea mining techniques and the exploration of a specific mine site. After all conflicts of overlap between these mine sites had been successfully settled, an agreement resulted, endorsed by the Preparatory Commission, whereby the deep sea mining States concerned assumed the obligation to abstain from interfering with the position of the pioneer investors with respect to their mines sites by granting conflicting licenses or otherwise (Agreement on the Resolution of Practical Problems with Respect to Deep Sea-bed Mining Areas, signed on August 14, 1987 by Belgium, Canada, Italy, Netherlands, Soviet Union, and adhered to by the Federal Republic of Germany, United Kingdom and United States through exchange of -+ notes, ILM, Vol. 26 (1987), p. 1502). This arrangement provides pioneer investors which are covered by its terms with a reasonably secure position of tenure in respect of their mine sites. It allows them to proceed with the further exploration of their mine sites, irrespective of the position of their governments with regard to the Convention, without prejudice, however, to the international regime which will eventually apply to the exploitation of these mine sites. As the commercial exploitation of the deep sea-bed is not within sight, at least for the near future, because of the situation on the metal markets and the high costs of deep sea mining ventures, the recognized position of the pioneer investors in respect of their mine sites provides better opportunity and more time for bringing the divided camps together in the search for a generally acceptable international sea-bed regime. For the time being, the divergent attitudes of States do not offer any guidance as to whether the regime of the Convention will eventually prevail, either in its present or in substantially modified form.

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E. The Delimitation of Maritime Zones of Coastal State Jurisdiction

The extension of coastal State jurisdiction over large maritime areas during recent decades has created the problem of delimitation of these zones where it results in overlapping claims of neighbour States whose coasts are adjacent or opposite to each other (-+ Maritime Boundaries, Delimitation). Delimitation problems played a rather minor role in the past in territorial sea boundary cases, where at most local navigational or fishery interests were at stake. The practice of States in territorial sea boundary cases had developed the equidistance method whereby the course of the boundary line is determined in such a way that it always runs at an equal distance from the nearest points of the coasts of both parties; however, historical usage and special navigational or fishery interests had in some cases produced another boundary line. In codifying this practice, the 1958 Convention on the Territorial Sea and the 1982 Convention on the Law of the Sea, using the same language as the 1958 Convention, established the equidistance method as the prevailing rule in territorial sea delimitation unless historic titles or special circumstances necessitate a deviation from the equidistance line (-+ Historic Rights). When States began to claim continental shelf rights over vast submarine areas before their coasts, it soon became apparent that the equidistance method, which for geometrical reasons was supposed to result in an equal division of areas of overlapping claims in simple geographical situations, produced inequitable results in complex geographical situations where changes in the direction of the coastline, protruding parts or other minor configurations of the coast, or offlying islands, exert a disproportionate influence on the course of the equidistance line and the consequential attribution of area to the States concerned. The practice of States in continental shelf boundary delimitation, and more recently in the delimitation of 200 mile fishery or exclusive economic zones, provides clear evidence that States were able to agree on boundary lines only in those cases where both parties to the delimitation were convinced that the equidistance method,

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sometimes with small modifications, produced an equitable division of the submarine areas where their claims overlapped. In all other cases where the application of the equid.stance method, for geographical or other reasons, was considered inequitable to one/of the States concerned, no agreement could be reached about the method for drawing an equitable boundary line, and, with a few exceptions where it had been possible to negotiate a political compromise, these disputes are either still pending or were resolved by ~ arbitration or ~ judicial settlement. The 1958 Continental Shelf Convention, by its Art. 6, had tried to establish the rule that, in the absence of agreement, the equidistance or median line method should be applied unless another boundary line is justified by special circumstances. However, the implicit presumption in favour of the equidistance method in this rule caused States which considered the application of the equidistance method inequitable in their geographical situation, either not to ratify the Convention or to attach a reservation to that article. In view of this practice, the 10, in its leading Judgment of February 20, 1969 in the North Sea Continental Shelf Cases, concluded that the rule contained in Art. 6 of the Convention had not acquired the legal status of customary international law, that the equidistance method is only one method among others for reaching an equitable result, and that the delimitation has to be effected by agreement in accordance with equitable principles taking into account all relevant circumstances of the case. At UNCLOS III the participating States were likewise unable to agree on a rule relating to the methods to be used for the delimitation of continental shelves or exclusive economic zones between neighbouring States. Consequently, the relevant articles of the Convention (Arts. 74 and 83) refrained from establishing any rule with respect to the methods of delimitation, but stated merely that the delimitation should be effected by agreement in order to reach an equitable result and that, failing agreement, States should resort to the procedures of dispute settlement provided for in the Convention. Thus far, the development of principles and rules governing the delimitation of the extended zones of coastal State jurisdiction has been left to

the jurisprudence of the IeJ and the arbitral tribunals which repeatedly had to deal with delimitation disputes. From this jurisprudence a number of principles and criteria have emerged which have been treated as the law governing the delimitation of continental shelves, fishery or exclusive economic zones. The primary principle is that the delimitation must be effected by the application of "equitable principles" taking into account all relevant circumstances in order to reach an equitable result. In the process of applying equitable principles in the evaluation of the factual situation of each case the jurisprudence has developed a number of criteria which are considered relevant for the selection of the appropriate delimitation method in the light of the circumstances of the individual case as well as for the evaluation of whether the selected method will produce an equitable result. Although other than geographical criteria (e.g. special dependence on the resources, vested interests in a resource) have, in principle, not been excluded and have played a role in the evaluation of the equitableness of the delimitation, the jurisprudence has practically relied only on geographical criteria. Among them the following criteria deserve particular attention: (a) The criterion of "natural prolongation" which means that those maritime areas which have to be considered the natural extension, geologicalIy or geographically, of the coastal front of one of the parties into the sea, appertain to that party; (b) The criterion of the "median line" which means that between opposite coasts of comparable length such a line results generally in an equal, and therefore equitable division of the maritime areas between the coasts of the parties; (c) the criterion of "proportionality" which means that a reasonable degree of ~ proportionality should be brought about by the delimitation between the extent of maritime area attributed to each of the parties and the length of their respective coastal fronts which extend into the area of delimitation. The concept of proportionality is firmly established as a relevant and important criterion in the delimitation process. It is, however, neither a legal rule nor a method of delimitation in its own right; but the fundamental rule of applying equitable principles creates a legal obligation to observe the

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requirement of proportionality wherever the geographical situation permits its application. All these criteria are not considered absolute in the sense that they have to be applied in all cases, but their relevance is to be weighed in the light of the geographical situation of each individual case. The jurisprudence recognizes the practicability of the construction of median or equidistance lines and examines, as a rule, whether such a line, with modifications where necessary for eliminating the disproportionate influence of irregularities of the coastline, conforms to the criterion of proportionality before embarking on other constructions of the boundary line; but, this approach does not mean that it entails a legal presumption in favour of the equidistance method. Although the singularity of the geographical situation of each case does not make it possible to apply these criteria with reasonable certainty to cases of delimitation which have still to be settled, the international jurisprudence has at least built up a conceptual framework of principles and criteria which provides sufficient guidance for the political or judicial settlement of delimitation disputes.

F. The Protection of the Marine Environment

The awareness of the international community of the increasing environmental risks connected with the modern uses of the sea and the conviction of the common responsibility for the protection of the marine environment has led to the imposition of more stringent operational standards on the navigation of ships, the off-shore mining industry, the dumping of wastes, and other uses of the sea. Such awareness has also led to the development of new concepts with respect to the enforcement of environmental standards which have been established by international conventions. The enforcement aspect deserves particular attention since the effectiveness of the traditional flag State system for ensuring compliance with the environmental standards established by international conventions is seriously questioned (-- Flags of Vessels; -Flags of Convenience). The Convention for the Prevention of Oil Pollution of 1954 with its later amendments of 1962,1969, and 1971 which prohibited the international discharge of oil and oily mixtures from

189

tankers in specified ocean areas, and the subsequent Convention for the Prevention of Pollution from Ships (MARPOL) of 1973 (amended 1978) which aimed at the complete inhibition of international discharges of oil and other harmful substances in the marine environment and at the minimization of accidental discharges of such substances by establishing detailed standards for all kinds of pollution from ships and provisions relating to the construction and equipment of ships, both still rely on flag State enforcement; that means that in accordance with the traditional principle of the flag State's exclusive jurisdiction over its ships (Art. 6 of the 1958 Convention on the High Seas) the flag State alone is entitled to undertake proceedings or other enforcement measures against a ship which has violated a provision of the Convention wherever this contravention may have occurred. The same is true with respect to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Material of 1972 which may be enforced by a contracting State against ships flying its flag and against foreign ships only if they have loaded the matter to be dumped in its territory or territorial sea. The MARPOL Convention of 1973, however, for the first time and rather restrictively introduced the concept of port State enforcement, inasmuch as it allowed the port State, either on its own initiative or upon request and evidence received from another State, to proceed to the inspection of a foreign ship which has voluntarily entered its port, in order to verify whether the ship has discharged harmful substances anywhere on the sea; however, further proceedings against the ship have then to be taken by the flag State to which the report of the inspection has to be sent. The -- Torrey Canyon disaster of 1967, where it became necessary to destroy an unsalvageable tanker in order to prevent greater damage to the coastline, occasioned the adoption by IMCO (now IMO) of two new conventions: the Convention on Civil Liability for Oil Pollution Damage of 1969 (amended 1982) which provided for strict liability of the shipowner, and the Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties of 1969 (amended 1973 to cover also pollution by substances other than oil) The second convention departed from the princi-

190

LAW OF THE SEA

pie of the flag State's exclusive jurisdiction and extended for the first time the enforcement jurisdiction of the coastal State for the protection of the marine environment beyond its territorial sea. This convention allowed a coastal State to take the necessary measuresagainst foreign ships outside its territorial sea if such ship, following a maritime casualty, threatens to cause harmful consequences to the coastline, subject, however, to the obligation of the co rstal State to compensate the shipowner where such measures have gone beyond what was reasonably necessary. Art. 221 of the 1982 Law of the Sea Convention refers to this right of intervention of the coastal State, leaving open whether this right is still conventional or already part of customary international law. In 1972 Canada, alarmed by the prospect of tankers passing through its arctic waters, established a pollution control zone of 100 nautical miles in the waters before its coast above the 60th parallel because of the particular vulnerability of these waters and the arctic coasts to oil pollution; within this zone Canada claimed the right to control all shipping, prescribe standards of vessel construction and operation, and to prohibit, where deemed necessary, the passage of foreign ships through these waters. Art. 234 of the 1982 Convention recognizes the right of coastal States to take such prescriptive and enforcement measures in ice-covered areas. One of the major issues at UNCLOS III was how to reconcile the interests of the shipping industry which wanted to preserve the flag State enforcement system as far as possible, and the interests of the coastal States with vulnerable coastlines which wanted to be in a position to take more stringent prescriptive and enforcement measures for the protection of their marine environment. The world-wide drive for effective measures to combat pollution of the seas contributed to the pressure for strengthening the coastal State's enforcement jurisdiction in their ports as well as in the waters beyond their territorial sea. After protracted negotiations, a consensus was finally reached at the Conference and was embodied in Part XII of the 1982 Convention (Arts. 192 to 237). It is widely held that this part of the Convention presents what is considered to be the generally accepted law in this field, binding on States irrespective of whether they ratify the

Convention; at any rate, this part of the Conven-' tion defines the limit as to how far a coastal State may lawfully use its enforcement powers for the preservation of its marine environment. The 1982Convention as adopted provides for an efficient enforcement machinery and, after the Convention enters into force, also for compulsory judicial settlement of disputes between the contracting parties relating to the interpretation of the Convention's environmental provisions (Arts. 286,288 and 297 (1)(c». The most innovative part is the new port-state jurisdiction to enforce "applicable international rules and standards" established by the competent international organization (e.g. by IMO) or by international conventions (Art. 219), allowing a State, when a foreign ship is voluntarily within its port, to undertake inspections and to institute proceedings against the crew and the ship in respect of any discharge of oil and other harmful substances in violation of applicable international rules and standards, even if the violation and the damage may have occurred somewhere else, without any effect on the waters or coastline under the jurisdiction of the port State. However, apart from the situation where the discharge or damage has occurred in its own territorial sea or exclusive economic zone, the port State may institute proceedings against a foreign ship in its port only at the request of the State in whose waters (including its exclusive economic zone) the violation or damage has occurred, or at the request of the flag State. The enforcement jurisdiction of the coastal State has also been broadened to quite an extent. The coastal State may institute proceedings against a foreign ship, when it has voluntarily entered its port, in respect of any violation of its environmental legislation in its exclusive economic zone provided this legislation does not go further than to give effect to "generally accepted" international rules and standards, which means that in such cases the coastal State may enforce "generally accepted" rules and standards established through IMO or international conventions against foreign ships even if the flag State, for its part, has not yet formally accepted these rules and standards. The authorities of the coastal State may further, if there are clear grounds for believing that a foreign ship, in passing through the coastal State's

LAW OF THE SEA, HISTORY

200 mile zone, has committed a violation of applicable international anti-pollution rules and standards, require that ship to give information regarding its identity and port of registry. Where that violation has resulted in a "substantial discharge" of oil or other harmful substances threatening a "significant" pollution of the marine environment, the same authorities may board and inspect the foreign ships, and, where there is "clear objective evidence" of a discharge threatening "major damage to the coastline or related interests" of the coastal State, institute proceedings against the crew and the ship, including detention of the vessel. In case of a detention, however, the coastal State has to release the foreign ship against an appropriate bond or other financial security (Art. 220). The coastal State will be liable for damages when its enforcement measures are unlawful or exceed those reasonably required in the light of information that was available to the coastal State (Art. 232). The most important feature of these provisions is the universal applicability of the generally accepted rules and standards and, in some instances, also of the recommended practices and procedures established by IMO. As stated expressly in Art. 211 (2) of the Convention, the coastal State's legislation shall have at least the same effect as that of the generally accepted rules and standards established by international conventions or competent international organizations. A State does not have to ratify every international agreement or approve formally rules, regulations or standards adopted by IMO before incorporating them into its national legislation and enforcing it also against States which, for their part, have also not yet formally accepted them. But once a rule or standard can be qualified as "generally accepted", States have the duty to enact the necessary laws and enforce them. This new legal approach will most certainly facilitate the development and application of more stringent rules and standards for the protection of the marine environment. Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. Convention on the Territorial Sea and the Contiguous

191

Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282.

Convention on Fishing and Conservation of the Living Resources of the High Seas, April 29, 1958, UNTS; Vol. 559 (1966) 285-342. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc:A/CONF. 62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). S.H. LAY and R. CHURCHILL (eds.), New Directions in the Law of the Sea (texts), Vols. 1-11 (1973-1981). United Nations, Office of the Special Representative of the Secretary-General for the Law of the Sea, Law of the Sea Bulletin, No. 1 et seq. (since 1983). and W.T. BURKE, The Public Order of the Oceans (1962). D.W. BOWETT, The Law of the Sea (1967). c.r. COLOMBOS, The International Law of the Sea (6th ed., 1967). E.D. BROWN, The Legal Regime of Hydrospace (1971). Beitrage zur Dritten Seerechtskonferenz der Vereinten Nationen, ZaoRV, Vol. 38 (1978) 435-982. A.L. HOLLICK, The United States Foreign Policy and the Law of the Sea (1981). D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982), Vol. 2 (1984). R.P. ANAND, Origin and Development of the Law of the Sea: History of International Law Revisited (1983). R.R. CHURCHILL and AV. LOWE, The Law of the Sea (1983). R. DUPUY and D. VIGNES, Traite du nouveau droit de la mer (1985). M.S. McDOUGAL

GUNTHER JAENICKE

LAW OF THE SEA, CONFERENCES, see Conferences on the Law of the Sea

LAW OF THE SEA, mSTORY 1. The Middle Ages and the Struggle for Order Throughout its history, the ~ law of the sea has reflected the predominant features of the contemporary international society. Thus, during the early Middle Ages in Europe, when a state of peace tended to be the exception rather than the rule and to be founded on precarious bilateral treaties of peace or truce, it is hardly surprising that at sea too the rule was bellum omnium contra

192

LAW OF THE SEA, HISTORY

omnes in the absence of conventional provision to the contrary. In such a context, there was no room for the presumption upon which the doctrine of the freedom of the -+ high seas was to be based in the 17th century and later - that, in the absence of exceptional, restrictive rules to the contrary, the freedom of the high seas prevailed (-+ History of the Law of Nations). Prior to the emergence of the modern European State system, anarchy was never far away in maritime affairs. Until the 14th century, the seas of western Europe were still heavily infested with substantial pirate forces. To the scourge of -+ piracy was added the ever-present threat that the security of trade and navigation would be disrupted by resort to -+ reprisals, authorized or unauthorized, as the only available remedy for alleged breaches of treaties of peace and truce by the parties or their subjects. No meaningful freedom of the seas could possibly be established until, through a network of bilateral treaties, steps had been taken to provide alternative remedies for alleged breaches of the law, to subject the issue of letters of reprisal to the prior satisfaction of specified conditions and to stamp out piracy. Typical of the latter was the Treaty of February 24, 1495 between King Henry VII of England and Archduke Philip of Austria, whereby pirates were linked with "others who, without authority from their princes, make war on sea". It was on the basis of a surprisingly extensive network of such bilateral treaties that the rights of the maritime powers in times of peace, status mixtus and war were gradually established.

2. Modern European History: Mare Liberum versus Mare Clausum

While it is true that the roots of much of the modern -+ customary international law of the sea can be traced deep into the Middle Ages, it is to the more recent period, from the 17th century, that the international lawyer must turn today for an aid to the understanding of current developments. The history of the modern international law of the sea can perhaps be best understood by perceiving it as a continual conflict between two opposing, yet complementary, fundamental principles, -+ territorial sovereignty and the freedom

of the high seas. Certainly at most times in the development of the modern system and in most parts of the oceans, there has been a geographical area at one extreme where the freedom of the high seas was the predominant principle and other areas at the other extreme, where the predominant principle was that of sovereignty. The boundary between the two areas has never been a stable one, however. Some historical periods are characterized by an aggressive, expansionary sovereignty, with more or less exclusive authority being claimed over vast areas of the oceans. At other times, the national interest is perceived as being best served by minimizing the outward reach of national sovereignty, thus maximizing the geographical scope of the freedom of the high seas. A study of the ebb and flow of these historical trends suggests that, at any time in history, the boundary between those sea areas in which the fundamental principle of sovereignty reigns supreme and the areas in which the fundamental principle of the freedom of the high seas predominates is dictated by, or is a reflection of, the selfish interests of the most powerful maritime States of the day. Illustrations of this theme may be drawn from many periods of modern European history and, indeed, from even earlier periods. It is frequently forgotten today by the major maritime powers which perceive the national interest to lie in the maintenance of narrow national limits and a correspondingly extensive area of high seas that, as C.l. Colombos has noted, "Up to the end of the eighteenth century there was no part of the seas surrounding Europe free from the claims of proprietary rights by individual Powers, nor were there any seas over which such rights were not exercised in varying degrees" (The International Law of the Sea (6th ed. 1967) p. 48). Few States have had a greater attachment to the freedom of the high seas, or have contributed so much to the promotion of this principle, as the United Kingdom. Yet, it will be recalled that the most powerful defence of the doctrine of mare clausum ever written came from the pen of an English writer, Selden, in support of claims to the possession of "British Seas" which had been made as early as the 10th century by Edgar the Peaceful, were strongly reasserted by the Stuart Kings in the 17th century and extended in 1674 from Cape

193

LAW OF THE SEA, HISTORY

Finisterre to Cape Staten in Norway (Mare Clausum (1635». The Mediterranean too has witnessed radical shifts in the boundary between sovereignty and freedom. Although from about the 11th to the 16th centuries, this strategically vital waterway was certainly shared to a greater extent than had been the Roman mare nostrum of antiquity, it was nonetheless the case that the freedom of the high seas was almost wholly absent as a result of the competing claims of the Italian States contending for a monopoly of trade with the Levant. Perhaps the most striking illustration of the theme, however, is provided by the work of Hugo Grotius, the author of Mare Liberum (1609). Grotius is seldom understood for what he was in this context, a manifestation of State practice. In making his powerful case for the freedom of the seas, he was in essence serving the interests of his client, the Dutch East India Company, and providing theoretical justification for the contemporary Dutch practice of challenging the monopolist pretensions of Spain and Portugal and their attempts to deny the United Provinces access to the East Indies. The existence of this State practice and the fact that it represented the interests of all the States which would gain by the breaking of the Iberian monopoly are more important for the explanation of the historical development of the principle of the freedom of the seas than the doctrinal justifications to which they gave rise. Selden too is better regarded as a writer whose erudition was similarly guided by a priori assumptions based on his country's economic and political interests. His doctrinal defence of a policy of mare clausum can be seen as reflecting the marked change in policy as between Queen Elizabeth of England and her successor King James. The Elizabethans, like the Dutch, sought a share in the East India trade and consequently had to defend the freedom of. the high seas against the Iberian threat, manifested in the Papal Bull of 1493 and the Treaty of Tordesillas in 1494, to partition the oceans between Portugal and Spain. King James, on the other hand, was more concerned to minimize the benefits to the Dutch of their powerful merchant and fishing fleets. Selden's Mare Clausum served his interests well. However, with changes in the national fortune,

the balance graduallyswung once more. From the beginning of the i 9th century, Britain, as the leading maritime power, pursued and consolidated a policy of freedom of the seas. In 1821, she helped the United States against Russia's attempt to debar foreign shipping from all waters up to 100 miles from Alaska but opposed the United States in 1886 when that power too attempted to extend its jurisdiction over the -~ seal fishery in the Behring Sea (~ Behring Sea Arbitration). In the present century, sharing the United Kingdom's established economic and security interest in freedom of the high seas, the United States, and in recent years, the Soviet Union, as the new leading maritime powers, have carried on the traditional British policies. 3. After World War II

Even this very brief resume of the history of broad trends in the law of the sea suffices to show that the notion of freedom is used as an ideological tool where the national interest so requires. With the benefit of hindsight, it is not difficult to identify trends in the law of the sea and recognize the policy interests of the powers which lie behind them. The task is made easier by the relatively small number of States involved, the relatively simple interests they had in the sea and the relatively straightforward political milieu in which they operated. In the era which commenced at the end of World War II the situation is much more complex. With ~ decolonizauon, there has been a considerable increase in the Humber of coastal States. There are considerably more complex interests in the sea. A multiplicity of types of rnantimc zones have emerged, over which a variety of degrees of jurisdiction are exercised. Moreover, the political milieu has been qui: e transformed. Between the beginning of the 19th century and the era of decolonization in the wake of World War Il , the freedom of the seas was firmly established as a fundamental principle of international law and, if State practice on the breadth of the territorial sea failed to exhibit uniformity, it was at least based on a generally shared understanding that it did not exceed twelve miles. The two most important freedoms were, of course, freedom of fishing and freedom of navigation (~ Fisheries, International Regulation;

194

LAW OF THE SEA, HISTORY

-+ Navigation, Freedom of). Given the technolo-

gy of the period, there was little significant conflict between the interests of coastal communities in the fish stocks adjacent to the coast and those of foreign, distant-water fishing States, and, in any event, even if there had been an awareness of such conflict, the number of independent coastal States so affected would have been so small and their power and lack of coordination such that no serious challenge to freedom of fishing could possibly have been mounted. Similarly, in relation to freedom of navigation, the conflict was not over the desirability of the prin ciple or even its geographical scope, but over which State should, by virtue of its maritime supremacy. enjoy the fruits of "freedom" in terms of overseas trade and naval security. Since 1945 there has been a radical change in the international political background against which the freedom of the seas has to be seen and reassessed. Over 90 States have achieved independence since 1945, of which a large proportion are coastal States. They have considerable voting strength when acting together in international conferences. In common with the older developing States, they have become conscious of their group solidarity and of the need to review traditional international legal doctrines to ensure their compatibility with their own interests. The freedom of the high seas and the delimitation of maritime zones have been high on the list of their priorities for reconsideration. The results of the re-thinking so prompted have been radical and far-reaching. They include the introduction of entirely new concepts such as those of the -+ continental shelf, exclusive -+ fishery zones and -+ exclusive economic zones, the notion that the mineral resources of the ocean bed are the -+ common heritage of mankind (-+ Sea-Bed and Subsoil) and the under'yn.g conviction among the -+ developing States pall icularly that the progressive development of the law of the sea should have regard for the need to '~ontribute to the establishment of a New International Economic Order (-+ International Economic Order). In retrospect, it can h~ seen that the post-war history of the law of the se 3. falls into two distinctive periods. The first period, from 1945 to 1960, was partly one of consolidation, clarification

and -+ codification and partly one of progressive development in response largely to technological change. Both elements are reflected in the four Geneva Conventions on the Law of the Sea produced by the First United Nations Conference on the Law of the Sea (UNCLOS I) in 1958. The Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol. 516. p. 205) in large part codified the pre-existing rules of international customary law but, in clarifying some of the more uncertain of them, introduced a degree of precision previously lacking and incorporated a measure of novel development (-+ Contiguous Zone; -+ Territorial Sea). Thus, while the rules governing delimitation of the territorial sea involved essentially a restatement of the law with a welcome added precision on, for example, the rules on - bays, the articles dealing with -+ innocent passage. especially passage through -+ straits. went well beyond codification. As its -+ preamble suggests, the Geneva Convention on the High Seas (UNTS, Vol. 450, p. 82) was "generally declaratory of established principles of international law" , though it did reflect to a minor degree the growing concern with the threat to the freedom of the seas posed by - oil pollution and the discharge of radioactive waste (-+ Waste Disposal). Principally, however, it was a timely and valuable consolidation and codification of the traditional law on such matters as the freedom of the high seas, nationality of ships (-+ Ships, Nationality and Status), safety rules at sea (-+ Maritime Safety Regulations), piracy and -+ hot pursuit. The third Geneva Convention, on Fishing and Conservation of the Living Resources of the High Seas (UNTS, Vol. 559, p.285), reflected the international community's awareness that developments in fishing technology posed a threat of over-exploitation of the living resources of the sea (-+ Conservation of Living Resources of the High Seas). However, the framework it established for concerted remedial action on an international cooperative basis has not proved to be a significant landmark in the history of the law. The Geneva Convention on the Continental Shelf (UNTS, Vol. 499, p. 311), on the other hand, reflecting technological advances in submarine oil exploration and exploitation, and responding to the need for a legal regime to

195

LAW OF THE SEA, HISTORY

govern such activities, is without doubt a major landmark in the history of the law of the sea. Developed over a relatively short period following the seminal Truman Proclamation of 1945, the new regime introduced a radical extension of the coastal States "sovereign rights" and pointed forward to an ever-more intensive exploitation of the seas. Although the Geneva Conventions and especially the Continental Shelf Convention reflected new trends in marine affairs, it is true nonetheless that the changes in the law which they incorporated presented no challenge to the fundamental political assumptions on the basis of which the law of the sea had previously developed. In this sense, UNCLOS I, and UNCLOS II held in 1960, in an abortive attempt to agree on the breadth of the territorial sea, were up-dating exercises. The second period of the post-war history of the law of the sea, which commenced in the ]960s and is still continuing, has already proved to be much more of a challenge to the existing order. Like the earlier period, this period too was shaped by developments in marine technology. Thus, the establishment of exclusive fishery zones in the 1960s and their gradual extension from twelve to two hundred miles in the 1960s and 1970s were in part a response to the threat to national fisheries presented by the new, highly efficient, factoryfishing fleets developed for distant-water fishing. Similarly, the growing awareness of the economic and technical feasibility of the deep-sea mining of polymetallic nodules would in any event have demanded the establishment of a new regime for the "Area" beyond the limits of national -) jurisdiction. In themselves, however, these new developments hardly necessitated a radical reconsideration of the existing public order of the oceans. It was the new ingredient, the dissatisfaction of the Third World with the old order, which forced this reconsideration upon the major maritime powers which were, by and large, quite satisfied with the old order. The catalyst was provided by Ambassador Pardo of Malta, who, in his celebrated speech at the ~ United Nations in 1967, called for the recognition of the area beyond the limits of national jurisdiction and its resources as the common heritage of mankind. 111.is initiative eventually led to the convocation in J 970 of

UNCLOS III, with an agenda which had expanded to embrace practically all aspects of the law of the sea. This article is not concerned with the substance of the 1982 United Nations Convention on the Law of the Sea which was the principal product of UNCLOS III but it is concerned with the historical trends reflected in UNCLOS III and in the Convention. The task of the negotiators was to prepare a new. comprehensive legal order for the oceans which would accommodate and reconcile the many and varied interests in the oceans. They included the interest of the major powers in unrestricted passage through the territorial sea, straits and archipelagic waters (~ Archipelagos), the interest of coastal States in the exclusive economic exploitation of a wide band of offshore waters and the interest of the Group of 77 developing States in creating a regime, to give reality to the new doctrine of the common heritage of mankind. Recognizing that these and other issues were closely interlinked, it was soon established in the Conference that the negotiations should be conducted and a convention drafted on the basis of a "package-deal" principle. Accordingly, no issue was to be considered in isolation but was rather to be one element of a comprehensive bargaining process. It followed, moreover, that the delicate balance of the negotiated package should be preserved by its incorporation in a single convention to which reservations would not be permitted (Art. 309; Treaties, Reservations). Viewed in historical perspective the UN Convention is a remarkable document. In sympathy with the demands of the Third World to develop a new international economic order, it seeks to ensure that the immense wealth of the sea-bed should be shared with the developing world; and yet it accepts, in the form of the new 200 mile exclusive economic zone, a new concept of national enclosure which builds upon and extends the concept of the legal continental shelf and is the very antithesis not only of the traditional freedom of the seas but also of the spirit of international cooperation and sharing reflected in the idea of the new international economic order and the notion of the common heritage of mankind. The Convention will clearly have a major, long-term impact upon the law of the sea. That, however, is a matter of prediction rather than history. --')0

196

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Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-35·L Convention on the Territorial Sell and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. Convention on Fishing and Conservation of the Living Resources of the High Seas, Axil 29, 1958, UNTS, Vol. 559 (1966) 285-342. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A /CONF. 62/122 with Corr.3 and Corr.8; UNCLOS ]II, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). The Sovereignty of the British Seas (1633). De dominio maris, dissertatio (2nd ed. 1744, reprint in "The Classics of International Law", ed. by J.B. Scott, Vol. 11 (1923). TW. FULTON, The Sovereignty of t ie Sea (1911). A.S.K. KENT, The Historical Origins of the Three-Mile Limit, AJIL, Vol. 48 (1954) 53"-553. G. SCHWARZENBERGER, The Frontiers of International Law (1962). F. DEPAUW, Grotius and the Law of the Sea (1965). C.R. BOXER, The Dutch Seaborne Empire, 1600-1800 (1966). R.P. ANAND, Origin and Development of the Law of the Sea (1983). J. BOROUGHS,

c.

VAN BYNKERSHOEK,

E.D. BROWN

LIBYAN ARAB JAMAHIRIYA/MALTA (CONTINENTAL SHELF CASE) see Continental Shelf Case (Libyan Arab Jamahiriya/Malta)

LIGHTHOUSES AND LIGHTSHIPS Lighthouses and lightships are installations intended to ensure the safety of navigation. Normally they fall under national rules. ~is'holds true for lightships even on the ~ high seas (~ Ships, Nationality and Status). In the 19th century several 1reaties concerning navigational aids were concluded. In a convention of March 14, 1857 between several European States and Denmark the latter was obliged to run and improve the lighthouse ad buoyage system in the Sound and the Belts without being entitled to levy charges upon vessels (BFSP, Vol. 47, p. 29). Denmark undertook the same obligation towards

the United States in a convention of April 11, 1857 (BFSP, Vol. 59, p. 243). By the treaty of Yeddo of June 25, 1866, (BFSP, Vol. 58, p. 317), today only of historical relevance, Japan was bound to establish lights and buoys necessary to render secure the navigation of the approaches to its open ports. At the First International Conference of American States in 1889 the erection of a Columbus Memorial Lighthouse in Ciudad di Trujilla was agreed upon. The German Reich and the Netherlands established cooperation in maintaining navigational aids in the estuary of the Ems River through a convention of October 16, 1896 (Martens NRG2, Vol. 25, p. 56; ~ EmsDollart) In the Convention regarding the Boundary between the Philippine Archipelago and the State of North Borneo of January 2, 1930 (LNTS, Vol. 137, p. 297), Great Britain and the United States stipulated that the latter should maintain a lighthouse on the island of Taganak. The Philippines subsequently assumed the obligations of the United States. The most famous treaty in this field concerned the lighthouse of Cape Spartel near Tangier which the Sultan of Morocco undertook to erect because of the great number of ship losses in this area (Spanish-Moroccan Treaty of Commerce, November 20, 1861, BFSP, Vol. 53, 1089). The evident importance of this installation in times of peace and war induced the Sultan of Morocco, the United States and nine European States, among them France, Great Britain and Austria, to enter into a treaty on May 31, 1865 (Convention Relating to Cape Spartel Lighthouse, Martens NRG, Vol. 20, p. 350). This treaty to which the German Reich and Russia later adhered transferred the administration of the lighthouse to the contracting parties and bound them to respect the neutrality of its location, while leaving the property right to and sovereignty over the lighthouse with the Sultan (~ Neutrality, Concept and General Rules). The lighthouse administration was entrusted to an International Commission, composed of representatives of the signatory States. The treaty was extended until 1958, when the administration of the lighthouse was assigned to Morocco. In an exchange of notes in January 29, 1892 (BFSP, Vol. 84, p. 10) France and Great Britain, with the approval of the Sultan of Morocco and fourteen other nations, agreed to

197

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establish a semaphore near Cape Spartel, which lacked the special status accorded the lighthouse. After World War I international conferences tried to unify the provisions governing navigational aids. On October 23, 1930 one such conference concluded the Agreement on Manned Lightships not on their Stations and Regulations Relating thereto (LNTS, Vol. 112, p. 21); the same day the conference agreed on recommendations concerning the characteristics of lighthouses and radio lighthouses. However, a purposed agreement for a Uniform System of Maritime Buoyage of May 13, 1936 did not come into force (M.O. Hudson (ed.), International Legislation, Vol. 7: 1933-1937 (1941) p. 308). After World War II the - International Association of Lighthouse Authorities was founded, the activities of which are concentrated on a unification of regulations pertaining to navigational aids. Under present international law the obligation to establish and maintain navigational aids is laid down in the International Convention on Safety of Life at Sea of November 1, 1974 (UNTS, Vol. '1184, p.2; Annex, Chap. V, Regulation 14). In the Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF.62/122 with Corr.) , Art. 43 provides only that States bordering a - strait should agree to cooperate in taking measures necessary for the safety of shipping. Coastal States cannot charge ships using their navigational system unless a special service is rendered according to Art. 18 of the Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205) and An. 26 of the 1982 Law of the Sea Convention. However, an exception to this rule was provided for in the International Agreement regarding the Maintenance of Certain Lights in the Red Sea of February 20, 1962 and August 19, 1962 (UNTS, Vol. 597, p. 159), whereby the signatory States were obliged to share in the costs of the navigational system maintained by Great Britain in the - Red Sea. Lighthouses playa certain role in the delimitation of territorial waters. According to Art. 4, para. 3 of the Convention on the Territorial Sea and the Contiguous Zone and Art. 7, para. 4 of the 1982 Law of the Sea Convention, straight - baselines may be drawn to and from low tide elevations on which lighthouses have been built.

Lighthouses erected beyond the territorial waters fall under the - jurisdiction of the State which built and maintains them. Unlike .- islands, however, they do not have their own - territorial sea. The - Lighthouses Cases decided by the Permanent Court of International Justice and a Franco-Greek court of arbitration concerned the validity of licences to maintain a lighthouse system, which had been granted to French companies by the Ottoman Empire, and the succession of Greece to the latter's obligations. The International Lighthouse at Cape Spartel, AJIL, Vol. 24 (1930) 770-776. G. GIDEL, Le droit international public de la mer, Le temps de paix, Vol. 1, Introduction -La haute mer (1932). V.A. SANTOS and C.D.T. LENNHOFF, The Taganak Island Lighthouse Dispute, AJIL, Vol. 45 (1951) 680-688. c.r. COLOMBOS, The International Law of the Sea (6th ed. 1967). R.R. CHURCHILL and AV LOWE, The Law of the Sea (1983). G.H. STUART,

MATIHIAS HARTWIG

LINER CONFERENCES 1. Notion Liner conferences are coordinating bodies formed by shipowners who operate regular shipping services for the carriage of general cargo on particular routes with fixed schedules and tariffs, i.e. liner services (- Merchant Ships). These conferences harmonize their members' shipping activities by fixing uniform freight rates, distributing sailings and cargo and sometimes even pooling cargo and revenues. As a form of institutionalized shipping cooperation such organized bodies or quasi-cartels have been developed only in the field of liner services. As a private association or corporate body formed under the national law at the seat of its headquarters, liner conferences for a long time had a purely private law character and were not subject to international regulation (- NonGovernmental Organizations). Only when the - developing States through the forum of the - United Nations Conference on Trade and

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Development (UNCTAD) began to propagate a Order New International Economic (-. International Economic Order) was a regulation in the form of the Convention on a Code of Conduct for Liner Conferences of April 6, 1974 created, which imposed a set of standards on both the internal organization and operations of such conferences (-. Codes of Conduct).

2. Historical Evolution The first liner conference was formed in 1875 in connection with United Kingdom-Calcutta trade. Soon liner conferences for all major trade routes developed (now about 360), and the instrument of charging uniform rates was supplemented by loyalty agreements which tied shippers to the conference, thus restricting the possibility of outsider competition. British courts affirmed the legality of these restrictive practices, while the United States legislature through the Shipping Act of 1916 imposed the principles of anti-trust legislation on conferences dealing with trade between the United States and third countries. Criticism based on the effects of liner conference practices have been quite familiar since the establishment of such conferences, and when UNCTAD was created the field of shipping was chosen as one of its working priorities. The conferences were accused cf hindering Third World exports by allowing for excessive freight rates and frequent alterations of rates and services without adequate consultation with shippers. A major complaint was also the difficulty in joining conferences, which was seen as an obstacle to block the creation of national fleets in Third World Countries. In 1970 the Committee on Shipping of UNCTAD submitted a study on the liner conference system and began to draft a proposal on rules of conduct for liner conferences. At the same time, the associations of Western Et ropean and Japanese shipowners in connection with the European Shippers Councils prepared, on the initiative of their governments, a set of voluntary guidelines for liner conferences known as the "CENSA/ESC Code of Practice". But due 10 its form and its content this Code of Conduct did not have any chance to get the support of developing States. Thus, UNCTAD III at Santiago de Chile in 1972 requested the -. United Nations General Assem-

bly to convene a conference of plenipotentiaries. After two sessions in the winter of 1973 and the spring of 1974 the Convention on a Code of Conduct for Liner Conferences was adopted on April 6, 1974 against the votes of most of the important maritime nations. It took nearly ten years until the necessary ratifications had been made but, after ratification by the Netherlands and the Federal Republic of Germany in April 1983, the Code of Conduct entered into force on October 6, 1983.

3. Legal Regime The Code of Conduct which now gives an international legal framework for the regulation of liner conferences is drafted in extraordinarily flexible terms but, nevertheless, contains a number of highly disputed rules and principles. Art. 1 reassesses the rules on membership in liner conferences. Based on the concept of "cargo generating" by the countries at both ends of the routes, the "national lines" of these countries are given preference in access to membership as well as in membership rights (-. Ships, Nationality and Status). To third-flag carriers, consequently, the Code concedes only a subsidiary role. The concept of "national lines" - in connection with the extensive regulation on consultation with shippers - provides the governments of the "trade generating" States with the essential link to build up a strong influence on the conferences' decisionmaking process. The keystone in the debate on the Code of Conduct is the provision of Art. 2 on participation in trade. Paragraphs 3 and 4 of Art. 2 reserve to the national lines of the concerned State an overwhelming preference in cargo distribution. According to these provisions the national lines shall have "equal rights to participate in the freight and volume of traffic generated by their mutual foreign trade", whereas "third-country shipping lines, if any, shall have the right to acquire a significant part" ("such as 20 per cent") in the freight and volume of traffic. Although the special provision on pooling contains the only reference to the quantitative guideline of 20 per cent while in the other parts of Art. 2 only the terms "substantial portion" and "significant portion" are used, this clause has become known as the 40:40:20 formula.

LINER CONFERENCES

The Code also formulates a detailed regulation on the setting of freight rates (Arts. 12 to 17), including a provision on promotional freight rates for certain Third World exports. Considerable controversy has surrounded the principles set out in Art. 14 on freight rate increases, providing for an advance 150 days notice, with a 10 months' freezing period until the next increase. An extensive modification of the legal regime of the UNCTAD Code of Conduct was established by the standardized reservations of the ~ European Economic Community (EEC) member States as provided for in the so-called "Brussels package" of May 15, 1979 (Council Regulation (EEC) No. 954/79, Official Journal of the European Communities 1979, L 12111). The fervently disputed provision on cargo sharing (40:40:20 formula) was declared to be inapplicable as far as the relations between EEC member States inter se or between EEC members and other ~ Organisation for Economic Co-operation and Development (OECD) countries (condition of ~ reciprocity) are concerned, while for the relations with other contracting parties the concept of "national lines" was redefined as including any recognized line established on the territory of an EEC member State. Despite their ratification by most EEC countries the rules of conduct provided for in the UNCTAD Code are far from being universally accepted. Important maritime nations like the United States, Japan, Brazil and Argentina, but also Greece and Italy, have not ratified this Convention. The United States especially prefers a unilateral approach in regulating the organization and activities of liner conferences, which it supplements by bilateral agreements.

199

These protectionist policies (~ Traffic and Transport, International Regulation) illustrate the dangers conjured by the Code's critics. Flag protectionism tends to eliminate the possibilities of cross-trade, which is likely to cause underutilization of shipping capacities, artificially puffed up national fleets and, in the long run, considerably mcreased freight rates. Protectionist regulation of liner conferences also leads to an important increase in non-conference shipping, a tendency which could clearly be seen in recent years. A consequence of this tendency is a growing pressure to regulate also non-conference liner shipping after the same protectionist model, which would destroy competition in liner shipping markets completely. However, the major problems of liner conferences involve new technological and economic developments which are rapidly changing the entire shipping business. The growing trend to employ containerization in shipping as well as in land transportation, the need to build consortia strong enough to take advantage of the new technology and, in particular, the accelerating tendency to utilize multi modal transportation which integrates shipping as an intermediate part into an overall transport package with a single, unified tariff threatens to erode the economic basis of liner conferences. The perspective pointed out by some experts, that "conferences have outlived their usefulness" (Sturmey, p. 212) and that "the Code may be doomed to early redundancy" (ibid., p. 217), sounds perhaps a bit exaggerated, but if the UNCTAD Code is not used carefully and flexibly, the efforts to contribute to the formation of a New International Economic Order by modifying the traditional system of liner conferences may lead to counter-productive results.

4. Evaluation The UNCTAD Code of Conduct for liner conferences appeared to be one of the most promising legal efforts to change traditional structures of global economy in order to form a New International Economic Order. A steadily growing number of developing countries has used the provisions of the Code as a basis for preferential, i.e. protectionist, legislation aimed at controlling all the shipping business affecting their countries and reserving foreign transports to their own national lines.

Convention on a Code of Conduct for Liner Confer ences, April 6, 1974, ILM, Vol. 13 (1974) 917-94: The LinerConference System, Report bythe UNCfAt' Secretariat, 1970, UN Doc. TD/B/C.4/62/Rev.I. The Regulation of Liner Conferences, Report by the UNCfAD Secretariat, 1972, UN Doc. TD/I04/ Rev.I. International Shipping Cartels: A Study of Industrial Self-Regulation by Shipping Conferences

D. MARX,

(1953). B.M. DEAKIN,

Shipping Conferences: A Study of Their

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Origins, Development and Economic Practices (1973). N. SINGH, Maritime Flag and International Law (1978). S.M. CARBONE, La reglementation du transport et du trafic maritimes dans Ie developpement de la pratique internationale, RdC, Vol. 166 ,)980 I) 251-363. L. JUDA, World Shipping, UNCTAD, and the New International Economic Order, International Organization, Vol. 35 (1981) 493-516. M.J. SHAH, The "UN Liner Code of Conduct" (1974), Some Key Issues Regarding its Implementation, European Transport Law, Vol. 16 (1981) 491-554. A. HERMAN, Shipping Conferences (1983). ADEMUNI-ODEKE, Protectionism and the Future of International Shipping (1984). F. PARKINSON, The United Nations Convention on a Code of Conduct for Liner Conferences: Towards a New International Shipping Order?, Current Legal Problems, Vol. 37 (1984) 153-174. L. JUDA, The UNCTAD Liner Code: A Preliminary Examination of the Implementation of the Code of Conduct for Liner Conferences, Journal of Maritime Law and Commerce, Vol. 16 (1985) 181-217. S.G. STURMEY, The Code of Conduct for Liner Conferences: A 1985 View, Maritime Policy and Management, Vol. 13 (1986) 185-221. L. VERMOTE, Le code de conduite des conferences maritimes et Ie compromis de Bruxelles, European Transport Law, Vol. 21 (1986) 3-31. E.G. FRANKEL, The World Shipping Industry (1987). STEFAN OETER ,

.. : "

LIVING RESOURCES OF THE HIGH SEAS see Conservation of the Living Resources of the High Seas

MARINE ENVIRONMENT, PROTECTION AND PRESERVATION 1. Introduction In contrast to the situation existing in the field of international watercourse s pollution, the marine environment is governed less by ~ customary international law than by treaty law. The United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. AI CONF.62/122 with Corr.) contains approximately 60 articles on the subject. There are also various general multilateral treaties as well as regional and bilateral agreements dealing with protection and preservation of the marine environment. ~

2. Definition of Pollution According to Art. 1(4) of the 1982 Law of the Sea Convention: " 'pollution of the marine environment' means the introduction by man, directly or indirectly, of substances or energy into the marine environment (including estuaries) which results or is likely to result in such deleterious effects as harm to living resources and marine life, hazards to human health, hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities". The types of substances having such deleterious effects are inter alia the halogenated hydrocarbons and organochlorine pesticides, petroleum and its derivatives, other organic chemicals such as biotoxins or detergents, nutrient chemicals, inorganic chemicals, heavy metals such as mercury and lead, suspended solids, radio-active substances and thermal waste. Interests likely to be affected range from public health and ~ tourism to the protection of wildlife (~ Wildlife Protection). The main categories of sources of pollution are disposal of domestic sewage, industrial discharge of shipborne pollutants, interference arising from the exploration and exploitation of the marine subsoil, disposal of radio-active waste and thermic effects resulting from uses of nuclear energy ( ~ Nuclear Energy, Peaceful Uses). States have approached the problem from a rather practical angle, tackling the question according to the main sources of pollution, i.e. shipping, dumping, sea-bed, land-based and atmospheric. 3. General Principles Arts. 192 to 194 of the 1982 Law of the Sea Convention provide a general framework of States' obligations in the field of protection and preservation of the marine environment. States are bound "to protect and preserve the marine environment" (Art. 192). They have to take all measures necessary "to prevent, reduce and control pollution ... using for this parpose the best practical means at their disposal and in accordance with their capabilities" (Art. 194(1». They also have to take all measures necessary to ensure that activities under their jurisdiction or control (~ Maritime Jurisdiction)

MARINE ENVIRONMENT, PROTECfION AND PRESERVATION

"are conducted so as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights" (Art. 194(2».

4. Pollution from Shipping Pollution resulting from shipping is either deliberate, such as throwing garbage overboard, cleaning the tanks, discharging ballast, disposing residues, or accidental, resulting from collision (~ Collisions at Sea), stranding or explosion. Since World War II, numerous accidents have taken place in all of the oceans. The incidents involving the ~ Torrey Canyon in March 1967, the collision between the Pacific Glory and the Allegro in October 1970, the case of the Olympic Bravery in January 1976 and the ~ Amoco Cadiz incident in March 1978 attracted particular attention. Although some attempts were made before World War II, it has been mainly within the last 30 years that treaties have been concluded in this particular field: the International Convention for the Prevention of Pollution of the Sea by Oil (London, May 12, 1954, and amended April 11, 1962, October 21, 1969 and October 15, 1971), and the Convention for the Prevention of Pollution from Ships (London, November 2, 1973; ~ Oil Pollution Conventions; see also Art. 211 of the 1982 Law of the Sea Convention).

(a) Preventive measures First, discharge from ships of oil or oily mixtures or ballast was initially prohibited in some areas: at less than a certain distance (50 or 100 miles) from the coast or in certain critical areas such as the Mediterranean or the North Sea, then more generally everywhere except for minor forms duly quantified. Second, technical innovations were imposed on both ships and ~ ports. Ships other than tankers are to be fitted with oily-water separating or filtering equipment and adequate sludge tanks; tankers built after 1975 have to be equipped with segregated ballast tanks. In order to diminish the risk of spilling in case of accidents, tanks must also conform to specific measurements and internal design arrangements. Every ship must further-

201

more be fitted with a device for the continuous monitoring and control of hydrocarbons. Ports are required to be equipped with reception facilities for oily residues. Supervision of compliance with these requirements is ensured through the obligation for every ship to be provided with an oil record book, where all operations of loading, discharging, ballasting, cleaning, etc. must be reported, and with certificates concerning the ship's equipment. Preventive jurisdiction is divided between the flag State (~ Flags of Vessels), coastal State and port State. It is up to the flag State to adopt laws and regulations for the prevention, reduction and control of pollution applicable to ships flying its flag (1982 Law of the Sea Convention, Art. 211(2» and to provide for the effective enforcement of such laws and regulations (Art. 217). The coastal State may adopt laws and regulations in respect of the preservation of the environment in its territorial sea (Arts. 21(1)(f) and 211(4». Any act of wilful and serious pollution contrary to the Convention deprives a passage from its innocent character (Art. 19(2)(h); ~ Innocent Passage, Transit Passage). The coastal State may also adopt such laws in respect of the ~ straits it borders (Arts. 42(1)(6) and 43(b)} as well as in respect of its ~ exclusive economic zone (EEZ; Arts. 56 and 211(5». This applies particularly to icecovered areas (Art. 234). This last provision retroactively justifies the Canadian Arctic Waters Pollution Prevention Act of June 26, 1970 (ch. 47, 1969-1970 Can. Stat. 653), by which, after the experimental transit voyage through the Northwest Passage of the United States Supertanker 5.5. Manhattan in 1969, Canadian jurisdiction had been extended within 100 miles of Canada's Arctic coasts. As a corollary, the coastal State enjoys enforcement jurisdiction in respect of any violation of its laws and regulations occurring within its territorial sea or EEZ (1982 Law of the Sea Convention; Art. 220). Furthermore, port States enjoy rights to inspect the oil record books of any ship; they may undertake investigations and institute proceedings in respect of violations of their environment law (Arts. 218 and 220(1». They may detain vessels whose seaworthiness is wanting. The shift in international legislation from discharge standards to construction standards should increase the

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MARINE ENVIRONMENT, PROTECflON AND PRESERVATION

importance of the port State jurisdiction (see already in this regard the Hague Memorandum of Understanding of March 2, 1978 between the North Sea Coastal States on Norms to be abided by Commercial Ships, Tractatenblad (1978) No. 72, and the Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, Paris, January 26, 1982 (ILM, Vol. .21 (1982) p. 1».

(b) Intervention in case of casualties The Torrey Canyon incident prompted the United Kingdom authorities, in March 1967, to bomb the wreck in order to prevent or abate pollution threatening its coasts. Such an action was hardly compatible with the law of the -+ high seas as it then stood. Doctrine soon came to support it, however. The -+ Institut de Droit International in its resolution of September 12, 1969declared that: "Any State facing grave and imminent danger to its coastline or related interests from pollution or threat of pollution of the sea, following upon an accident on the high seas, or acts related to such an accident, which may be expected to result in major consequences, may take such measures as may be necessary to prevent, mitigate or eliminate such danger" (AnnIDI, Vol. 53 II, p. 383). Two m.onths later on November 29, 1969, the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties was adopted in Brussels. According to Art. 1(1) of that Convention, the parties: "may take such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline or related interests from pollution or threat of pollution of the sea by oil, following upon a maritime casualty or acts related to such a casualty, which may reasonably be expected to result in major harmful consequences." Proportionality to the actual or threatened damage ought to temper the intervention (Art. V). Obligations regarding various consultations are also imposed (Art. III). On November 2, 1973 a protocol was adopted extending the right of intervention in cases of pollution by substances other than oil. Art. 221 of the 1982 Law of the Sea

Convention in its turn legalizes such intervention, enlarging the protected interests to include fishing.

(c) Cooperation between States Inter-State cooperation in cases of pollution emergencies is one of the preoccupations of regional conventions. For example, under the Bonn agreement of 1969 the North Sea is divided into administrative zones where the contracting parties are given special responsibilities for action in case- of oil pollution casualties. See also the Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Areas (1974); the Barcelona Convention for the Protection of the Mediterranean Sea against Pollution and Protocols on Dumping and Cooperation in Combatting Pollution (1976; -+ Mediterranean Pollution Conventions); the Kuwait Regional Convention for Cooperation in the Protection of the Marine Environment from Pollution (1978); the Abidjan Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment in the West and Central African Region (1981); the Jeddah Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment (1982); and the Cartagena de Indias Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region (1983). (d) Liability in case of incidents States are responsible for the fulfilment of their international obligations. They do not, however, consider themselves responsible for the activities of private entities on the high seas (-+ Responsibility of States: General Principles; -+ Responsibility of States for Activities of Private Law Persons). Art. 235(2) of the 1982Law of the Sea Convention nonetheless provides that: "States shall ensure that recourse is available in accordance with their legal systems for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction." In this connection, para. 3 of the same article provides an obligation to cooperate in furthering existing international law. There are already several general international

MARINE ENVIRONMENT, PROTECfION AND PRESERVATION

conventions in this field concerning oil and radioactive matter. (i) Oil

The International Convention on Civil Liability for Oil Pollution Damage of November 29, 1969 (UNTS, Vol. 973, p. 3) provides that the owner of a ship is liable for any pollution damage caused by oil which has escaped from the ship as a result of the incident on the territory, including the ~ territorial sea of a contracting State. The owner is also liable for the costs of preventive measures incurred to prevent or minimize such damage (Arts. II and III). Such liability is strict, but limited to an aggregate amount of 2000 francs for each ton of the ship's tonnage with a maximum of 210 million Poincare francs (Art. V; ~ Responsibility of States: Fault and Strict Liability). By a protocol of 1976, Poincarre francs were replaced by Special Drawing Rights (see ~ International Monetary Fund). The shipowner is required to maintain liability insurance. A 19~4 protocol broadens the protection to the area in which, under international law, a contracting State may exercise sovereign rights over natural resources. On December 18, 1971, the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (British Command Papers, Cmnd. 7383, Treaty Series, Vol. 95 (1978) p. 146) provided that an international fund would pay compensation to the victims of a pollution damage to the extent that the protection afforded by the 1969 liability convention was inadequate, i.e. in cases of absence of liability or insolvency of the shipowner, or if the damage exceeded the limits of compensation provided for by the Convention, as amended. Contributions to the Fund are made by any person who, during the previous calendar year, has received shipments exceeding 150 000 tons in total. Parallel to this official scheme, the tanker owners and the oil companies reached two agreements to provide compensation of their own. The Tanker Owners' Voluntary Agreement concerning Liability for Oil Pollution (TOVALOP) signed at London on January 7, 1969 (ILM, Vol. 8 (1969) p. 497) provided coverage up to a maximum of 10 million US dollars in respect of any tanker involved in anyone incident vis-a-vis a govern-

203

ment whose coastlines are polluted. An agreement regarding an interim supplement to tanker liability for oil pollution (CRISTAL), signed on January 14, 1971 (ILM, Vol. 10 (1971) p. 137), increased damage coverage to 30 million US dollars.

(ii) Radioactive matter Two different hypotheses have to be distinguished: an accident to a ship carrying nuclear material and an accident to a ship equipped with a nuclear power plant. Regarding the first, under the Paris Convention on Third Party Liability in the Field of Nuclear Energy of July 29, 1960, as well as the Vienna Convention on Civil Liability for Nuclear Damage of May 21,1963, the operator of a nuclear installation is strictly and exclusively liable for any damage caused by a nuclear incident occurring in the course of the maritime carriage of nuclear material. That position is reaffirmed by the Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material of December 17, 1971. The Brussels Convention of May 25, 1962 concerning Liability of Operators of Nuclear Ships established the absolute and limited liability of the operator of ~ nuclear ships. That Convention, however, being applicable to ~ warships, was never ratified by the powers operating such ships and has not entered into force. The United States in respect of the Savannah and the Federal Republic of Germany with regard to the Otto Hahn have made agreements with States whose ports or territorial waters were visited by these nuclear ships. (iii) Noxious and hazardous substances

A Convention on liability and compensation in connection with the carriage of noxious and hazardous substances was adopted in May 1984 (see draft text ILM, Vo . 23 (1984) p. 150). 5. Pollution from Dumping

For many years the open sea has been considered as a convenient dustbin to get rid of undesirable materials or substances (~ Waste Disposal). To mention only a few examples: from May to September 1967 five European countries (Belgium, the Federal Republic of Germany, France, the Netherlands and the United Kingdom) dumped 11 000 tons of radioactive waste contain-

204

MARINE ENVIRONMENT, PROTECfION AND PRESERVATION

ers into the Atlantic Ocean; in August 1970 the United States Army disposed of 66 tons of obsolete asphyxiating gas in the Atlantic 280 miles off the Florida coasts; in 1972 to 1974 a controversy put France and Italy at loggerheads over "red mud" dumped by an Italian company in the international waters off Corsica; in Japan, about 150 people died and 900 were gravely affected after having eaten fish poisoned by mercury discharged into Minamata Bay by a local firm. Only slowly did people become conscious of these problems. The Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) merely mentioned the obligation of States to take measures to prevent manne pollution resulting from the dumping of radioactive waste (Art. 25(1». Art. 210 of the 1982 Law of the Sea Convention envisages the problem in a much broader way, encompassing any pollution of the marine environment by dumping. The first initiative in this regard was taken by 12 European countries with the Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft (1972), followed very closely by the London Convention on the Prevention of Marine Pollution by Dumping of Wastes at Sea, December 29,1972 (ILM, Vol. 11 (1972) p. 1294). Whereas the London Convention is a general one, the Oslo Convention is limited geographically to some parts of the Arctic and the Atlantic Oceans. Basically, both these Conventions tackle the problem along the same lines. Substances to be disposed of are divided into three lists. The dumping of the substances listed in Annex I is prohibited (black list), although the London list is more exhaustive. Both contain substances such as organohalogen compounds, mercury and mercury compounds, persistent plastic, etc. Dumping of substances listed in Annex II requires a specific permit from the appropriate national authorities (grey list). Again the lists are not identical though they both contain substances such as arsenic, lead, copper and their compounds. Annex III contains the other wastes which may be dumped provided certain conditions are fulfilled and a prior general permit is delivered. Radioactive wastes. are listed in the London Convention either in Annex I or in Annex II, following recommendations of the - Internation-

al Atomic Energy Agency. These wastes are not mentioned in the Oslo Convention. Both Conventions were amended to deal with the incineration of wastes at sea, the Oslo Convention by a protocol of March 2, 1983 (British Command Papers, Cmnd. 8942 Misc. 12 (1983». The 1976 Barcelona Convention contains a protocol for the prevention of pollution of the Mediterranean Sea by dumping from ships and aircraft, and is drafted along the same pattern. As for the 1974 Baltic Convention, in principle no dumping is allowed at all (Art. 9). By a decision of August 4, 1977 the - Organisation for Economic Co-operation and Development established a multilateral mechanism for consultation and supervision regarding sea dumping of radioactive waste (ILM, Vol. 17 (1978) p. 445). According to Art. 210(5) of the 1982 Law of the Sea Convention: "Dumping within the territorial sea and the exclusive economic zone or onto the continental shelf shall not be carried out without the express prior approval of the coastal State, which has the right to permit, regulate and control such dumping ...." Enforcement jurisdiction of dumping regulations is shared between the flag State, the coastal State and the port State (Art. 216). 6. Pollution from Sea-Bed Exploration and Exploitation Pollution resulting from exploration and exploitation of the sea-bed may arise under the territorial sea, on the - continental shelf or on the international sea-bed, now called "the Area" (- Sea-Bed and Subsoil; - International SeaBed Area). Here, as well, several dramatic incidents have made States conscious of the problem: for example, when an oil geyser blew out of a platform in a Norwegian oil field in April 1977, releasing 22 500 tons of crude oil into the sea, and when, after the eruption of the oil-well Ixtoc I, some 500 000 tons of oil spread into the Gulf of Mexico from June 1979 to March 1980. Until recently there existed very little general international law to deal with such incidents. The 1958 Geneva Law of the Sea Conventions allude to the problem in a rather superficial way. Art. 24 of the Convention on the High Seas provides that: "Every State shall draw up regula-

MARINE ENVIRONMENT, PROTECfION AND PRESERVATION

tions to prevent pollution of the seas resulting from the exploitation and exploration of the sea-bed and its subsoil .... " Art. 5(7) of the Convention on the Continental Shelf, April 29, 1958 (UNTS, Vol. 499, p. 311) states: "The coastal State is obliged to undertake, in the safety zones, all appropriate measures for the protection of the living resources of the sea from harmful agents." Since 1958 no general convention has encompassed the question, the matter having been expressly set aside by the London Convention of November 2, 1973 (Art. 2(3)(b)(ii)). The regional conventions contain a more specific article, according to which the contracting parties are to take all appropriate measures to prevent, abate, and combat pollution of the regional sea resulting from exploration and exploitation of the continental shelf and the sea-bed and its subsoil (Helsinki Convention, Art. 10; Barcelona Convention, Art. 7; Kuwait Convention, Art. 7; Jeddah Convention, Art. 7; West and Central African Region Convention, Ai i.. 8; Wider Caribbean Region Convention, Art. 8). Protocols to various regional conventions concern regional cooperation in combating pollution in case of emergencies. Regional emergency mutual aid centres have been set up. There are also a number of bilateral treaties on the subject. The 1982 Law of the Sea Convention now provides a general framework for all these initiatives. Arts. 208 and 209 invite coastal States to adopt laws and regulations to prevent, reduce and control pollution of the marine environment arising from sea-bed activities subject to their jurisdiction and in the Area. States are encouraged to establish global and regional rules, standards and recommended practices to this effect. Enforcement rights entailed by such responsibilities are given to the coastal State under Art. 214. The International Sea-Bed Authority enjoys similar rights in the Area to adopt rules (Arts. 145 and 209) and to ensure compliance with such rules (Arts. 153 and 215). A Convention on Civil Liability for Oil Pollution Damage resulting from Exploration for and Exploitation of Sea-Bed Mineral Resources was signed at London on May 1, 1977 (ILM, Vol. 16 (1977) p. 1450). The operator of an installation at the time of an incident is strictly liable for any pollution damage resulting from the incident (Art.

205

3) provided the damage was suffered in the territory of a State party or in the areas in which, in accordance with international law, it has sovereign rights over natural resources (Art. 2; ~ Natural Resources, Sovereignty over). The liability may be limited for each installation and each incident to 40 million Special Drawing Rights (SDRs). The operator must constitute a fund for this sum (Art. 6) and maintain insurance for not less than 35 million SDRs. Here again, operators of offshore facilities used in connection with exploration for or production of oil and gas have created their own compensation scheme by the offshore pollution liability agreement currently referred to as "OPaL", signed at London, September 4, 1974 (ILM, Vol. 13 (1974) p. 1409). 7. Pollution from Land-Based Sources

Pollution from land-based sources is considered to be the main form of pollution which affects the marine environment. It results from discharges from watercourses, coastal establishments or outfalls, underwater sources and ~ pipelines. No general convention regulates land-based pollution. Several regional conventions deal with the matter in a rather similar way, namely the Helsinki Convention (1974), the Paris Convention (1974) which deals with the North Atlantic, and the 1980 Protocol to the Barcelona Convention (1976). The parties to these Conventions undertake to eliminate pollution caused by substances listed in Annex I (black list) and to limit pollution caused by substances listed in Annex II (grey list), for which a special permit ought to be sought from the national authorities. In the Paris Convention the contracting parties undertake to adopt measures to forestall and eliminate pollution by the radioactive substances referred to in its Part III (Art. 5). In the Helsinki and Paris Conventions a permanent commission exercises overall supervision, reviews the condition of the seas, draws up programmes and measures, collects and distributes information, etc. In the Barcelona Convention the parties acting collectively are endowed with similar functions. The other regional conventions deal with the matter in a much briefer way by a single general article (Kuwait Convention, Art. 6; West and Central African Region Convention, Art. 7;

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MARINE ENVIRONMENT. PROTECTION <\ND PRESERVATION

Jeddah Convention, Art. 6; Wider Caribbean Region Convention, Art. 7, etc.). On May to, 1976 France, Italy and Monaco reached an agreement for the protection of Mediterranean shore waters, creating a Commission entrusted with various functions (RGDIP, Vol. 85 (1981) p. 647). The 1982 Law of the Sea Convention now provides the missing general framework. Art. 194 states the general obligation for States to ensure that activities under their jurisdiction or control do not spread beyond the areas where they exercise sovereign rights. They must minimize to the fullest possible extent the release of toxic, harmful or noxious substances, especially those which are persistent from land-based sources. To that end, Art. 207 imposes an obligation on States to adopt laws and regulations and to endeavour to harmonize their policies regionally. Finally, Art. 213 provides that States are to enforce their laws and regulations and take other measures necessary to implement applicable international rules and standards to prevent, reduce and control pollution of the marine environment from land-based sources.

8. Atmospheric Pollution Pollution from or through the atmosphere is dealt with generally by the 1979 Convention on Long Range Transboundary Air Pollution (- Air Pollution). The 1982 Law of the Sea Convention specifically deals with this form of pollution and states general obligations of States in terms similar to those used for land-based pollution in Arts. 212 and 222. Several regional conventions consider atmospheric pollution as part of land-based pollution (e.g, Helsinki Convention, Arts. 5 and 6; Kuwait Convention, Art. 6; Jeddah Convention, Art. 6). The other regional conventions deal with the matter in a single short article: the parties are to take all appropriate measures to prevent, reduce and control pollution of the convention area which results from discharges into the atmosphere from activities under their jurisdiction (West and Central African Region Convention, Art. 9; Wider Caribbean Region Convention, Art. 9). United Nations Environment Programme, Register of International Treaties and Other Agreements in the Field of the Environment (1985) Doc. UNEP/GCI INF /II I Rev. 1.

International Convention for the Prevention of Pollution of the Sea by Oil (as amended), London, May 12, 1954, UNTS, Vol. 327 (1959) 3-33. International Convention on Civil Liability for Oil Pollution Damage (as amended), Brussels, November 29, 1969, UNTS, Vol. 973 (1975) 3-55. International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, Brussels, November 29, 1969, UNTS, Vol. 970 (1975) 212-283. Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, asia. February 15, 1972, UNTS, Vol. 932 (1974) 3-19. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, December 29, 1972, ILM, Vol. 11 (1972) 1294-1313. Convention for the Prevention of Pollution from Ships, with Protocols, London, November 2,1973, ILM, Vol. 12 (19'73) 1319-1444. Convention for the Prevention of Marine Pollution from Land-Based Sources, Paris, June 4, 1974, ILM, Vol. 13 (1974) 352-376. Agreement for Co-operation in Dealing with Pollution of the North Sea by Oil, Bonn, June 9, 1969, UNTS, Vol. 704 (1969) 3-15. Nordic Convention on the Protection of the Environment, Stockholm, February 19, 1974, ILM, Vol. 13 (1974) 591-597. Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, March 22, 1974, ILM. Vol. 13 (1974) 544-590. Convention for the Protection of the Mediterranean Sea against Pollution with Protocols. 1976, ILM, Vol. 15 (1976) 290-306. Protocol for the Protection of the Mediterranean Sea against Pollution from Land-Based Sources, Athens, May 17, 1980, ILM, Vol. 19 (1980) 869-878. Protocol Concerning Mediterranean Specially Protected Areas, Geneva, April 3, 1982, Journal Officiel, Lois et Decrets, Vol. 118 (1986) 15783-15785. Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution with Protocol, Kuwait, April 24, 1978, ILM, Vol. 17 (1978) 511-536. Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, Jeddah, February 14,1982, UN Doc. UNEP/GC/INF/II/Rev. 1 (1985) 191-192. Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region with Protocol, Abidjan, March 23, 1981, ILM, Vol. 20 (1981) 746-761. Convention for the Protection of the Marine Environment and Coastal Areas of the South East Pacific and Agreement on Regional Cooperation in Combating Pollution of the South East Pacific by Hydrocarbons and other Harmful Substances in Case of Emergency, November 12, 1981, UN Doc. UNEP/CPPS/IG.32/4.

MARINE RESEARCH

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region with Protocol, Cartagena de Indias, March 23, 1983, ILM, Vol. 22 (1983) 227-245. La pollution du milieu marin, ZaoRV, Vol. 38 (1978) 902-932 R.M. M'GONIGLE and MW ZACHER, Pollution, Politics, and International Law (1979). G. TlMAGENIS, International Control of Marine Pollution (1980) 2 vols. D.M JOHNSTON (ed.), The Environmental Law of the Sea (1981). c. DOUAY, Le droit de la mer et la preservation du milieu marin, in: D. Bardonnet and M. Virally (eds.), Le nouveau droit international de la mer (1983) 231-267. P.·M. DUPUY and M. REMOND-GOUILLOUD, La preservation du milieu marin. in: R.-J. Dupuy and D. Vignes (eds.), Traite du nouveau droit de la mer (1985) 979-1045.

A.C KISS.

JEAN J.A. SALMON

MARINE RESEARCH 1. Definition Marine scientific research can be defined as any study or related experimental work designed to increase knowledge of the marine environment. Its main branches are physical oceanography, marine biology, marine geology and geophysics. Not comprised in this notion are ~ maritime archeology or activities such as prospecting or exploring for ~ marine resources, although the borderline may be difficult to draw in practice. The above definition is, moreover, further complicated by the fact that many activities conducted for military purposes use scientific methods and techniques and yield scientifically significant results. 2. Development of Rules The evolution of international law rules on marine scientific research has parallelled the development of scientific activities at sea during the last decades and the widening of coastal States' ~ sovereignty and jurisdiction over the sea and sea-bed areas adjacent to their coasts (---+ Jurisdiction of States). Thus the legal regime of marine research, as long as scientific activities at sea were limited in number and conducted only by a few technologically advanced States, was basically one of unrestricted freedom, although the

207

coastal States' power over research in the ---+ territorial sea and ---+ internal waters was recognized. Research activities expanded throughout the world after World War II. The concern of coastal States, and especially of ---+ developing States, grew over the possible negative effects of foreign research in the sea areas adjacent to their coasts on their sovereign rights to resources and on their military security. This brought about developments whose outcome was that coastal States now enjoy decisive powers over scientific research conducted on wide areas of the sea adjacent to their coasts. These powers are expressed in the rule that the coastal State's consent is required for foreign researchers to conduct their activities in these vast expanses of sea. This rule started to emerge when the first major extension of the coastal States' powers beyond the territorial sea, i.e. their sovereign right over the ---+ continental shelf, was recognized. Under Art. 5 of the Geneva Convention on the Continental Shelf of April 29, 1958 (UNTS, Vol. 499, p. 311), while activities for the exploration and exploitation of the shelf and its resources must not interfere with "fundamental oceanographic or other scientific research", the consent of the coastal State must be obtained in respect to any research on the shelf; such consent may not, however, "normally" be withheld as regards "purely scientific research". This provision was the starting point of the negotiations on marine scientific research at the Third United Nations Conference on the Law of the Sea, in which scientific research became one of the key aspects for the definition of the regime of the ---+ exclusive economic zone (---+ Conferences on the Law of the Sea). The rules finally incorporated in the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8) are an elaboration and an expansion, in contents and in scope, of the rule of the 1958 Continental Shelf Convention. They represent a consolidation of the trend towards affirming the coastal State's right to authorize research in sea areas over which it exercises sovereign rights or jurisdiction, although with some concessions in the interest of the freedom of research. To what extent the rules of the 1982 Convention correspond to customary law is a question that has

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to be approached with great caution. While the general principle requiring the coastal State's consent seems generally accepted as regards the territorial sea and the continental shelf, some doubts still remain concerning its full application to the exclusive economic zone, especially in respect of activities not related to resources. Moreover, though the principle of consent is by and large now a part of or in the process of becoming - customary international law, the detailed provisions spelled out in the 1982 Law of the Sea Convention certainly are not and, because of their precision, are unlikely to become so. They may, however, influence national legislation and regulations, as they already have started to do. '

3. Consent of the Coastal State (a) Scope of the principle The principle of consent applies, first of all, to research conducted in the internal waters and in the territorial sea. There is no exception in the 1982 Law of the Sea Convention for research conducted by ships engaged in innocent passage or transit passage through - straits used for international navigation (- Navigation, Freedom of). According to the Convention, the same holds true for research conducted by ships passing through archipelagic - sea lanes. As regards research in archipelagic waters in general, as soon as this concept set forth by the 1982 Convention cristallizes into customary law the need for the archipelagic State's consent will follow as a consequence of this State's sovereignty over its archipelagic waters (- Archipelagos). Further, under the Convention, the principle applies to research in the exclusive economic zone and on the continental shelf. There are, however, some limitations as to its scope of application and particular permutations and consequences. Under Art. 246 of the Convention the principle applies differently to three categories of research. First, there are research activities for which coastal States may always withhold their consent "at their discretion". These include, in particular, those "of direct significance" for natural resources and those involving drilling on the continental shelf, the use of explosives, the. construction or use of - artificial islands, installations and structures, and the introduction of toxic substances into the

sea (- Marine Environment, Protection and Preservation). Second, there are the research activities for which the coastal State shall "in normal circumstances" grant its consent. They include research activities carried out "exclusively for peaceful purposes and in order to increase scientific knowledge of the marine environment for (he benefit of mankind" (Art. 246(3)). Because of t'le vagueness of the expressions employed, this c"tegory can raise difficulties of interpretation. In particular, how far does the "peaceful purposes" clause go towards including military research? And what circumstances can be considered as "normal"? Third. there seems to be a category of research activities not covered by the first two. These activities are not envisaged in the articles of the 1982 Convention on marine research and they seem to include most military research. In this regard the general principles on the economic zone and the continental shelf seem to apply: Consent will be necessary, but it will have to be granted whenever research is directly linked with activities that may be freely undertaken by all States in the economic zone or on the continental shelf.

(b) Permutations The 1982 Convention contains a number of provisions that aim to protect the interest of scientific research by making the principle of consent less strict. The coastal State's consent is presumed if it does not reply to a request for consent within six months of receipt. This provision is, however, complemented by a number of exceptions. In addition, States must establish rules or procedures in order not to delay .or unreasonably deny the granting of consent. Coastal States cannot resort to the rule permitting discretionary withholding of consent as regards research ~f direct significance for resource exploration or exploitation on the continental shelf beyond the 2oo-mile line. There is, however, a major derogation from this exception as regards specific areas publicly designated as areas where exploitation or detailed exploratory operations are in progress or imminent.

(c) Consequences The researching State has the duty to provide detailed information on its project to the coastal

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MARINE RESEARCH

State. Once the project is in progress or has been completed, it must allow the coastal State to participate, especially through the presence of scientists on board scientific vessels, to provide reports and samples and to ensure publication of the results of the project. Under the 1982 Convention, however, the coastal State en joys in many cases full discretion as regards the granting of consent to publish. It also has the right to require suspension or cessation of the project in case of non-compliance by the researching State. Disputes concerning the exercise of the discretionary powers of the coastal State to withhold consent or its decision to order suspension or cessation of a research project are excluded from the "cope of the compulsory means for settlement provided for by the 1982 Convention, although some questions may be submitted to ~ conciliation at the request of one party (~ Law of the Sea, Settlement of Disputes).

4. Freedom of Research Freedom to conduct marine scientific research is listed by the 1982 Convention among the freedoms of the ~ high seas. This freedom fully applies in the waters beyond the external limit of the exclusive economic zone. It applies also as regards research on the sea-bed beyond the limits of national jurisdiction. As this part of the sea-bed is designated by the 1982 Convention as the ~ international sea-bed area, subject to a special regime that provides for particular competences of an International Sea-Bed Authority, research in it is free not only for States but for the Authority as well. Moreover, States have certain obligations to cooperate among themselves and with the Authority.

5. Installations and Equipment The deployment and use of any type of installation or equipment for marine research is subject to the same conditions set forth in general for the exercise of marine scientific research in the area where the deployment is to take place. Thus, for instance, the deployment of a scientific data acquisition buoy in the high seas may be made freely, while in the economic zone it requires the coastal State's consent. The regime of such installations and equipment is similar to that of installations in general: they

..

__._._

_

have no territorial sea of their own, they should not interfere with established shipping routes, and they should bear identifying markings indicating the State of registration or the international organization to which they belong. If they are artificial islands, installations or structures in the economic zone or on the continental shelf, they are subject to the coastal State's jurisdiction according to the principles relating in general to artificial islands, installations and structures in these areas.

6. International Cooperation Cooperation between States and with competent international organizations in marine scientific research is encouraged by the 1982 Convention. Moreover, according to the Convention, the coastal State's consent is presumed if this State has approved of the project within the organization that is to carry it out, unless it voices an objection within four months. Independently of the 1982 Convention marine research is often conducted within the framework of international cooperation (~ International Law of Cooperation). Such frameworks are sometimes found at the non-governmental level. They may also be provided by bilateral and multilateral treaties, as well as by various international organizations. The International Oceanographic Commission established by the ~ United Nations Educational, Scientific and Cultural Organization has generated various specific research groupings, and the -) Food and Agriculture Organization of the United Nations coordinates important research endeavours in the field of fisheries (~ Fisheries, International Regulation). Other organized efforrs are at the level of regional organizations such as the International Council for the Exploration of the Sea. In view of the restrictions that current trends of international law impose on marine research, as evidenced by the 1982 Convention, it seems likely that States will be induced to continue to increase their cooperation in this}letd. United Nations Conference on the Law of the Sea, Official Records, Vol. 6, Continental Shelf (1958). Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. United Nations Convention on the Law of the Sea, December to, 1982, UN Doc. A/CONF. 62/122 with

_----,---_._._----------

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Corr.3 and Corr.8; UNCLOS 1II, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354. Third United Nations Conference on the Law of the Sea, Official Records, Vols. 1-17 (1~'75-1984). W.S. WOOSTER

(ed.), Freedom of Oceanic Research

(1973). The International 1 aw of Scientific Research in the Oceans, Georgia Journal of International and Comparative Law, Vol. 6 (1976) 27-39. L. CAFLISCH and J. PICCARD, The Legal Regime of Marine Scientific Research and the T rird United Nations Conference on the Law of the Sea, Za6RV, Vol. 38 (1978) 848-901. O. FREYMOND, Le statut de la recherche scientifique marine en droit international (1978). T. TREVES (ed.), La ricerca scientifica nell'evoluzione del diritto del mare (1978). R. PISILLO MAZZESCHI, La ricerca scientifica nella zona economica e sulla piattaforma continentale, RivDirInt; Vol. 65 (1982) 819-850. A.H.A. SOONS, Marine Scientific Research and the Law of the Sea (1982). T. TREVES, Principe du consentement et nouveau regime juridique de la recherche scientifique marine, in: D. Bardonnet and M. Virally (eds.) Le nouveau droit de la mer (1983) 269-285. R.R. BAXTER,

TULLIO TREVES

MARINE RESOURCES see Conservation of Living Resources of the High Seas; Exclusive Economic Zone; Fisheries, International Regulation; Fisheries, Sedentary; Marine Research; Pearl Fisheries; Seal Fisheries; Whaling Regime

MARITIME ARCHAEOLOGY 1. Concept Maritime archaeology is the scientific excavation of sites concerned with r iaritime affairs. It thus includes sites which are not submerged but which contain evidence relating to maritime activity, for example drained sites, and excludes submerged land surfaces such as a sunken coastal city. However the same legal rules apply generally to all sites underwater: Hence the broader term "underwater cultural heritage" is n0W generally preferred. Sites are the location of items of ~ cultural property. Underwater archaeology is con-

cerned with shipwrecks but also with isolated objects that have fallen overboard as well as with the remains of buildings, harbourworks and prehistoric settlements that have become submerged as land has subsided or waters risen. Shipwrecks are of particular importance because they are "time capsules", containing things being used or carried all at the one point of time. This includes the ship itself and all its appurtenances. As a subdiscipline of archaeology, maritime archaeology developed relatively recently. Although items of cultural significance have been raised from the sea-bed for generations, this was haphazard and aimed at particular items such as statues without any systematic study of the site as a whole. The invention of the aqualung in 1943 permitted people to move freely about the sea-bed and therefore made possible the application underwater of scientific principles developed for excavation of land sites. This has led to a significant contribution to the store of knowledge concerning humanity's past, such as trade routes, foods carried and ship construction.

2. Historical Evolution In many instances the legal problems raised by archaeological finds underwater have been dealt with by extension of existing legal principles. Legislation controlling excavation on land was sometimes extended to cover those under the sea within the territorial ~ boundaries. In other cases, particularly in common law countries, general principles of salvage and wreck law were applied (~ Salvage of Ships). Certain jurisdic-.; tions passed specific legislation to protect sites and items within the jurisdiction. In most cases whatever was done followed a particular discovery which had led to damage of the site or threat of violence. Sites outside the ~ territorial sea were largely unprotected by legal provisions, although some States, for example Australia, extended their legislation to the - continental shelf and others, for example France, to any item subsequently brought within the jurisdiction.

3. Current Legal Situation Some 16 jurisdictions have specific, distinct legislation on aspects of the underwater cultural heritage. Other countries have a special section dealing with this in their general antiquities

MARITIME ARCHAEOLOGY

legislation or have extended that legislation to cover underwater items and sites. The thrust of this legislation is to protect known sites by forbidding certain activities in the area, such as the use of explosives or diving equipment, or the dumping of rubbish, and by allowing excavation only by authorized persons. Reporting of sites is often encouraged by a reward. Both Cyprus and the Seychelles interpret the phrase "non-living resources" in the 1958 Geneva Convention on the Continental Shelf (UNTS, Vol. 499, P: 311; ~ Law of the Sea) to include antiquities lying on the continental shelf and regard their legislation as controlling their excavation, Australian legislation extends to "historic shipwrecks" on the continental shelf, while that of Spain refers to "archaeological materials" on the continental shelf. Morocco requires that approval be obtained for every archaeological excavation in its ~ exclusive economic zone, and Norway requires reporting of finds on its continental shelf. Other control of maritime archaeology beyond the territorial sea depends on international law. Art. 149 of the 1982 United Nations Convention on the Law of the Sea (UN Doc. A!CONF. 62/122 with Corr.) states that archaeological and historical objects are to be preserved or disposed of for the benefit of mankind as a whole (~ Common Heritage of Mankind). Art. 303 imposes on States a duty to protect such objects found at sea. It allows a presumption of control of traffic in such objects to be made by the coastal State if those objects are removed from the sea-bed in the ~ contiguous zone (~ Sea-Bed and Subsoil). 4. Special Legal Problems Two major problem areas keep reappearing: State ~ jurisdiction and title to wrecks. In respect of the former, the Parliamentary Assembly of the ~ Council of Europe in 1978 recommended that there be a European Convention on the Underwater Cultural Heritage based on a 200-nautical-mile-wide cultural protection zone. State claims to control maritime archaeology thus are based on the territorial sea (12 miles); a zone equal to the contiguous zone (24 miles); a cultural heritage protection zone or the exclusive economic zone (200 miles) or the continental shelf (0 to 500 miles). There are important archaeological sites

211

beyond the territorial sea, lying on the continental shelf or the deep sea-bed. Some of these are exploitable now; others will be in the future. The scientific value of these sites can only be realized if they are properly excavated, which could mean leaving them until well into the future. They must thus be protected and this will depend largely on the extent to which State claims to jurisdiction are recognized. These claims are opposed by some as examples of "creeping jurisdiction" impinging on freedom of the ~ high seas. Even claims over a cultural protection zone or the continental shelf would not protect sites on the deep sea-bed. These need protection either under an international regime or the exercise of State jurisdiction on bases other than territoriality, such as active or passive nationality. Merely because a vessel is wrecked does not mean that the owner loses title. However, there is no general agreement a: to the circumstances of loss of title. Important maritime States assert that there must be both physical and intentional abandonment. The first is largely a question of fact. In respect of the second, SOLe States require the owner to remove the wreck within a period of time otherwise it is considered abandoned. Other States, particularly those whose law has been influenced by English law, consider there is no abandonment without very strong evidence of that intention. If the wreck is abandoned, under what is called the "English Rule", title goes to the State; under the "American Rule", title goes to the finder. Title of the owner may be subject to a: salvage reward. The commercial value of the materials recovered is the prime consideration in salvage operations, whereas every scrap of information is important to maritime archaeology. Salvage is aimed at the speedy removal of objects in danger from the sea as opposed to the meticulous operations of mapping, recovery and conservation or leaving in situ for later excavation as required by the accepted principles of maritime archaeology. Salvage and maritime archaeology are thus increasingly considered as incompatible. Laws regulating salvage should not apply to finds important to underwater archaeology. Some States now exclude salvage laws from applying to "historic" shipwrecks; others are considering doing so; while yet other States prohibit salvage activities on such wrecks.

_.-._-" .._._--_._---_._.------------- -------_._----------------_..

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5. Evaluatior,

MARITIME AREAS see Maritime Boun-

For underwater archaeology to provide significant evidence of humanity's past, the source of that evidence - the sites of wrecks, underwater objects and buildings - must he protected from unscientific excavation. The role of law is here very important. The extent of State jurisdiction to control excavation, whether on the continental shelf or the deep sea-bed, should be established on a rational basis. Art. 303 of the 1982 United Nations Convention on the Law of the Sea is widely seen as seriously deficie.rt both in content and approach. It must further be acknowledged that if States have the right to control excavation they also have duties to protect the sites against human interference, natural erosion and chemical deterioration. Even if State control extends over a 2oo-mile zone or the continental shelf, there is still a large area of sea where important sites can exist. The legal rules within which maritime archaeology is conducted need to be developed on a multilateral basis, whether world-wide or regionally. Ideally, the goal of such development would be protection of sites and objects which are the sources of maritime archaeology. These are essential for a fuller understanding of the past of the human race and, once destroyed, they can never be replaced.

daries, Delimitation; Airspace over Maritime Areas

Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. Council of Europe, Parliamentary Assembly, The Underwater Cultural Heritage, Report of the Committee on Culture and Education, Doc. 4200 (1978). United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.S: UNCLOS III, Official Records, Vol. XVII (1984) 151-221; IL\1, Vol. 21 (1982) 1261-1354).

and P.l. O'KEEFE, Techn cal Handbooks for Museums and Monuments Series, Vol. 4: Law and the Underwater Heritage in UNESO). Protection of the Underwater Heritage (1981) 165 -200. L.V. PROTI and P.l. OKEEFE, Law and the Cultural Heritage (5 vols.), Vol. 1, Discovery and Excavation (1984). L.Y. PROTI

LYNDEL V. PROTT P.l. O'KEEFE

MARITIME BOUNDARIES, DELIMITATION 1. Introduction (a) Definition The delimitation of maritime boundaries has become one of the major issues of the modern ~ law of the sea, in particular in view of the extension of coastal State ~ jurisdiction brought about by the United Nations 1982 Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with Corr.). The delimitation of maritime boundaries must be distinguished from the drawing of maritime limits. The former consists in establishing lines separating from each other the maritime areas in which coastal States exercise jurisdiction, i.e. ~ internal waters and ~ territorial seas, ~ contiguous and ~ exclusive economic zones, and the ~ continental shelf, while the latter relates to drawing the limits of maritime zones of a single coastal State, i.e. zones which are not in physical contact with those of another coastal State. (b) Geographical setting Maritime boundaries must be delimited wherever the maritime zones in which coastal States exercise jurisdiction are not separated by portions of the -,> high seas or of the ~ international sea-bed area. The two basic situations to be considered are those of two or more States whose continental or insular coasts face, or are adjacent to, each other (~ North Sea Continental Shelf Case, IC] Reports 1969,p. 3; see Art. 12 of the 1958 Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol. 516, p. 205) and Art. 6 of the 1958 Convention on the Continental Shelf (UNTS, Vol. 499, p. 311); Arts. 15, 74 and 83 of the 1982 Convention). Some configurations, however, may appear to fall into both or neither of these categories. While the situation of the United Kingdom and France inside the British Channel is unquestionable one of States whose coasts face each other, it changes gradually, when moving into the western approaches of the Channel, into

MARITIME BOUNDARIES, DELIMITATION

one of adjacency, save for the fact that the two coasts are separated by the Channel. Despite this feature, it was held, in the ~ Continental Shelf Arbitration (France/United Kingdom; RIAA, Vol. 18, p. 3), that the rule applicable to this delimitation area, Art. 6 of the 1958 Continental Shelf Convention, only envisages frontal and lateral delimitations; tertium non datur. The Court of Arbitration held that, geographically, the situation was one of adjacency rather than of coasts facing each other. In the ~ Gulf of Maine Case (ICJ Reports 1984, p. 246), an ad hoc Chamber of the ~ International Court of Justice (ICJ) found that, within the Gulf of Maine. the situation of adjacency existing at the terminal point of the land boundary between Canada and the United States becomes one of coasts facing each other when moving seaward.

(c) The equidistance method The most obvious and most practical method of delimitation would appear to be the drawing of lines each point of which is equidistant from the nearest points on the ~ baselines or shores of the States concerned. However, these equidistant lines, called median lines in the case of coasts facing each other and equidistance lines in that of adjacent coasts, will not invariably yield equitable results, either owing to the configuration of the coasts or the presence of ~ islands in the delimitation area. or because of other factors. As pointed out by the ICJ in the North Sea Continental Shelf Cases and in the ~ Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya); (ICJ Reports 1982, p. 18), the effect of distortions in an equidistant line brought about by an unusual configuration of the coast or by the presence of islands in the delimitation area increases as one moves seaward. Hence there is a need for delimitation rules and methods that are sufficiently flexible and varied to produce equitable solutions in all circumstances, especially after the extension of coastal State jurisdiction brought about by the 1982 Convention.

2. Substantive Rules (a) Territorial and internal waters Prior to the 1958 Geneva Conventions on the law of the sea, territorial and internal waters were

213

delimited either by following the thalweg, if there was one, or by applying the equidistance method, or by drawing a line perpendicular to the general direction of the coast (~ Grisbadarna Case). The ensuing uncertainty was removed by Art. 12(1) of the 1958 Territorial Sea Convention. According to this provision, now confirmed by Art. 15 of the 1982 Convention, frontal and lateral delimitations of territorial seas are to be effected, failing agreement to the contrary, by resorting to the equidistance method. save "where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas . . . in a way which is at variance therewith" (~ Historic Rights). This combined agreernent-equidisranee-special circumstances rule equally applies to the delimitation of territorial waters in --+ straits. The above combined rule calls for three comments: (i) The reference to delimitation by agreement is. strictly speaking, unnecessary since sovereign States, in the absence of rules of ~ jus cogens, freely determine the content of their agreements. (ii) Some argue that the equidistancespecial circumstances rule gives precedence to equidistance, derogations therefrom being permitted only if the existence of special circumstances is proved by the State invoking them. Others maintain that the elements "equidistance" and "special circumstances" apply to different (actual situajions and cannot, therefore, be viewed in any hierarchical relation. (iii) The concept of special circumstances has not been defined anywhere, except for the reference to historic title, although the preparatory work of the 1958 Territorial Sea Convention does mention circumstances such as the exceptional configuration of the coasts, and the presence of islands and navigable channels. It would seem, however, that the Convention mention of special circumstances was intended to avoid the inequities that might result from a mechanical application of the equidistance method, so as to ensure equitable delimitations in all situations (see Continental Shelf Arbitration (France/United Kingdom)). Despite the silence of the Conventions of 1958 and of the 1982 Convention on this point, the combined rule commented above appears to govern internal waters as well.

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MARITIME BOUNDARIES, DELIMITATION

(b) Contiguous zone According to Art. 24(3) of the 1958 Territorial Sea Convention, contiguous zones are to be delimited, failing contrary agreement, by resorting to the equidistance method the lack of any reference to special circumstances may be explained by the limited powers attributed to coastal States in their contiguous zones. Art. 33 of the 1982 Convention is altogether silent on this matter, probably because the contiguous zone forms part of the exclusive economic zone; hence the delimitation of the latter will automatically bring about that of the former. Problems could nonetheless arise for States which do not claim exclusive economic zones.

(c) Continental shelf The emergence of the continental shelf concept in the 1950s gave rise to new delimitation problems and disputes, some of which were settled by agreement while others were or are being sub mitted to adjudication (North Sea Continental Shelf Case; Continental Shelf Arbitration (France/United Kingdom); Dubai/Sharjah Border Arbitration, unpublished award of October 19, 1981; Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya); Gulf of Maine Case; ~ Continental Shelf Case (Libyan Arab Jamahiriya/Malta); ~ Maritime Boundary between Guinea and Guinea-Bissau Arbitration; Maritime Boundary between Guinea-Bissau and Senegal) or ~ conciliation (Iceland/Norway, Continental Shelf of ~ Jan Mayen, ILR, Vol. 62, p. 108). One major dispute submitted to adjudication, the ~ Aegean Sea Continental Shelf Case (ICJ Reports 1978, p. 3), has remained unsettled. The issue has been address ed by Art. 6 of the 1958 Continental Shelf Con. ention, whose content is similar to that of .' rt. 12 of the 1958 Territorial Sea Convention, the only significant difference being the lack of reference to historic title as a special circumstance. In the North Sea Continental Shelf Cases, the ICJ held that Art. 6 of the 1958 Convention, insofar as it relies on equidistance, does not reflect ~ customary international 'aw. It reached the conclusion that under custom ary law "delimitation is to 'be effected by agreement in accordance with equitable principles, and taking

into account all the relevant circumstances, in such a way as to leave as much as possible to each party all those parts of the continental shelf that constitute a natural prolongation of its land territory into and under the sea, without encroachment on the natural prolongation of the land territory of the other". According to the ICJ, the above-mentioned "equitable principles" form part of international law; their application does not, therefore, amount to deciding ex aequo et bono (~ Equity in International Law). If "the delimitation leaves to the parties areas that overlap, these are to be divided between them in agreed proportions or, failing agreement, equally, unless they decide on a regime of joint jurisdiction ... ". Among the factors to be taken into account in the delimitation, the Court listed: (i) the general configuration of the coasts and the presence of special or unusual features; (ii) the physical and geological structures, and natural resources, of the areas involved; and (iii) the element of a reasonable degree of proportionality between the respective coastlines and the extent of the continental shelf areas apperta.ning to each party. The Court's findings were largely confirmed in the France/United Kingdom Continental Shelf Arbitration. These: findings were expanded and refined by the IC} in the Tunisia/Libyan Arab Jamahiriya Continental Shelf Case and by a chamber of that Court in the Gulf of Maine Case. Both judgments show a clear tendency to eschew the concept of natural prolongation, which has proved to be of little help for delimitation purposes. In both judgments, emphasis was laid on equitable principles or "criteria", such as the equal division of overlapping areas, the proportionality test, and the need to avoid, as far as possible, cutting off the seaward projections of coastal features. These principles were implemented by resorting to methods such as equidistance, the drawing of lines perpendicular to the general direction of the coast, or the prolongation of a land or territorial sea boundary, with a view to achieving an equitable result in the light of the geographical configuration of the area and other relevant circumstances. In the Tunisia/Libyan Arab Jamahiriya Continental Shelf Case, the ICJ based its determination to divide the delimitation area into two segments on a sharp 'change of direction of the

MARITIME BOUNDARIES, DELIMITATION

Tunisian coastline. For the delimitation of the first segment adjacent to the Tunisian-Libyan land boundary, the Court placed great reliance on the geographical configuration and on the limits which the parties had in fact respected when granting off-shore ~ concessions. As regards the second, outer segment, the delimitation was effected by drawing a line running parallel to the general direction of the Tunisian coast. That direction was identified by a straight line connecting two salient points on the Tunisian coast, subsequently modified to give half-effect to an ~ archipelago located in the vicinity of that coast. The equitableness of the delimitation as a whole was then verified by applying the proportionality test. Geographical criteria were considered to be decisive in the Gulf of Maine Case. In a first segment of the delimitation area, nearest to the terminal point of the land boundary between Canada and the United States, the line selected was the bisector of the angle formed by two lines following the general direction of the coasts inside the Gulf. In a second segment, still located inside the Gulf, a median line was drawn and subsequently adjusted to take into account the length of the respective coasts. In a third segment, off the Gulf of Maine, the delimitation line chosen was perpendicular to the hypothetical closing line of the Gulf. That line, which happens to be roughly equidistant, was found not to be inequitable since it would not radically affect the economic activities of either party. By contrast, the physical and geological structure of the area involved, and its natural resources, were disregarded in both instances. In the Gulf of Maine Case, this was due to the fact that the ad hoc chamber of the IC] was called upon to trace a single delimitation line for both the continental shelf and the superjacent waters and, therefore, had to rely on "neutral" criteria, i.e. elements not specifically connected with the natural resources of either the former or the latter. In the Maritime Boundary between Guinea and Guinea-Bissau Arbitration, where the Arbitral Tribunal was called upon to establish a single line, the physical and geological structure and the natural resources of the area involved were again disregarded, whereas the geographical configuration and the length of the respective' coastlines' assumed major relevance. After having identified

215

the general trend of the West African coast, in the area by means of a straight line linking salient points on the coasts of Senegal and Sierra Leone, and after having found that the coastlines of the parties were roughly equal in length, the Arbitral Tribunal drew a maritime boundary which, except for its two initial segments, runs perpendicular to that line. The last item to be considered is the Continental Shelf Case (Libyan Arab Jamahiriya/Malta). Taking into account both the emergence in customary law of an exclusive economic zone reaching the 200-mile mark and the entitlement of coastal States to a continental shelf extending at least to that same mark, the IC.J considered that, wherever questions of delimitation arise within a continuous shelf area less than 400 miles wide, continental shelf rights are controlled by the concept of distance, geological and geomorphological characteristics being immaterial. Rejecting the idea of an intrinsic primacy of equidistance based on the distance concept, the Court recalled the necessity of applying equitable principles in order to achieve an equitable delimitation, taking into account relevant circumstances such as proportionality and the character of Malta as an independent State. The situation being one of the coasts of two States facing each other, and in the light of the distance concept referred to above, the IC.J began by drawing a median between the two coasts. However, the Court found that, owing to the disparity in length of the respective coastlines, to the considerable distance between the coasts, and to the fact that the Maltese islands are but a minor feature of the Mediterranean's main northern seaboard formed by Sicily, the initial line had to be shifted northwards, within the parameters constituted by that line and a median line drawn between Sicily and Libya. Three quarters of the difference between these two median lines were to benefit Libya, the Maltese islands thus being given a one-quarter effect. The precoding survey shows that, apart from the concept of natural prolongation, the conclusions reached by the ICJ in 1969 remain valid, although the weight attributed to each element has varied from case to case. The customary and treaty rules described above raise three questions which have been discussed already in connection with Art. 12 Of the 1958

216

MARITIME BOUNDARIES. DELIMITATION

Territorial Sea Convention: (i I What is the role of delimitation by agreement? (ii) What is the relationship between equidistance and special circumstances, the two other dements mentioned in Art. 6 of the 1958 Contine-ntal Shelf Convention? (iii) What is meant by "special circumstances" or, in a customary context, by "equitable principles"? (i) Under Art. 6 of the 1958 Continental Shelf Convention, the equidistance-special circumstances rule is to receive application unless there has been delimitation by agreement. By contrast, the ICl, in the 1969 North Sea Continental Shelf Cases, called for "delimitation ... to be effected by agreement in accordance with equitable principies". This formulation should not, however, be taken to mean that delimitation by agreement is the only possible solution, for otherwise no settlement could ever be reached in the event of a failure to agree. Nor should the content of the agreement be considered as being pre-determined by equitable principles. Such a conclusion would run counter to the freedom of States to enter or to decline to enter into treaties and freely to determine their content. If it were otherwise, the equitable principles referred to previously would have the quality of jus cogens , which is certainly not the case. (ii) As regards the relationship between equidistance and special circumstances, both of which are mentioned in Art. 6 of the 1958 Continental Shelf Convention as well as in Art. 12 of the 1958 Territorial Sea Convention, some argue that equidistance is the rule, special circumstances being the exception. Hence, the State alleging special circumstances must prove them. This hierarchical conception is based on the very notion of "special" circumstances which, moreover, according to the ICJ's 1969 judgment, forms an "exception". Others hold tl.at the elements "equidistance" and "special circumstances" cover different factual situations ano cannot, therefore, be in any hierarchical relation. The latter view is supported by the findings in the France/United Kingdom Continental Shelf Ca se, to the effect that the two elements combine to form a single rule, to be applied proprio motu by the tribunal having jurisdiction. Consequently, there can be neither hierarchy nor a reversal of the burden of proof. (iii) The concept of special circumstances would

appear ~o differ from that of equitable principles; otherwise there would have been no point, in the North Sea Continental Shelf Cases, to disprove at such length the customary nature of Art. 6 of the 1958 Continental Shelf Convention. The existence of such a difference may, nonetheless, be doubted since the reference to special circumstances contained in that provision, as well as in Art. 12 of .he 1958 Territorial Sea Convention, was meant to produce equitable delimitations in all situations, and since such delimitations can only result from the application of principles that are equitable. Thus, the view was expressed in the France/ United Kingdom Continental Shelf Case that "the combined 'equidistance-special circumstances rule', in effect, gives particular expression to a general norm that, failing agreement, the boundary between States abutting on the same continental shelf is to be determined on equitable principles". The convergence between the equidistance-special circumstances rule and equitable principles was confirmed in the Dubai/ Sharjah Border Arbitration where the Arbitral Tribunal 'considered Abu Musa, an island located in the delimitation area, to form a special circumstance, despite the fact that equitable principles, not Art. 6 of the 1958 Continental Shelf Convention, were to govern the case. The implementation of the principles discussed above has given rise to two specific problems: (i ) the effect to be attributed to islands situated in the delimitation area; and (ii) the type of charts to be used in delimitation operations (~ Maps). (i) In the France/United Kingdom Continental Shelf Case, the Court of Arbitration was requested to delimit the continental shelf in two areas, both of which are characterized by the presence of islands. The British Channel islands are located near the French coast, on the "wrong" side of a hypothetical median line drawn between the main land masses of the two countries (~ Channel Islands and the Isle of Man). The Court, applying equitable principles, delimited the shelf by tracing a median line between the two mainlands, but surrounded the islands with a 12-mile belt, thus enclosing their continental shelf in thatof France. In the other delimitation area, the western approaches to the Channel, the Scilly Isles, located off the Cornish Peninsula, were considered to form a special circumstance under

MARITIME BOUNDARIES, DELIMITATION

Art. 6 of the 1958 Continental Shelf Convention. Accordingly, the Court decided to draw a modified equidistance line giving half-effect to the Scillies. This was accomplished by bisecting the angle formed by two equidistance lines respectively attributing full effect and no effect to the islands. In the Dubai/Sharjah Border Arbitration, which involved a lateral delimitation, the island of Abu Musa, located in the vicinity of the equidistance line, was held to form a special circumstance and to be entitled only to a belt of territorial sea. This solution had also been adopted in several delimitation agreements. In the Tunisia/Libyan Arab Jamahiriya Continental Shelf Case, the island of Djerba seems to have been disregarded altogether, while the Kerkennah archipelago off the Tunisian coast was given half-effect. Halfeffect was also attributed to Seal Island in the Gulf of Maine Case. The Continental Shelf Case (Libyan Arab Jamahirya/Malta), finally, involved an insular State facing the extended coastline of a continental State located at a considerable distance. On account of these circumstances, a one-fourth effect was accorded to the Maltese islands. (ii) The question of the choice of charts in delimitation operations involves the following issue: If a straight delimitation line is traced on an ordinary Mercator chart, that line, if transposed onto a chart not reflecting the curvature of the Earth, will be slightly curved, especially over long distances, thus favouring one State at the expense of the other. As explained in a second award rendered in the France/United Kingdom Continental Shelf Case, there is not, however, any rule of international law prescribing the drawing of geodetic lines. But the parties may always agree that geodetic lines must be used, as they did in the Gulf of Maine Case. The evolution of customary and treaty law described above can be summarized in four points. First, the principles and methods identified by the ICJ in the North Sea Continental Shelf Cases have withstood the test of time, except as regards the concept of natural prolongation and, up to a point, the reliance on the structure and resources of the shelf; the idea of proportionality, in particular, has remained relevant. Second, the presence of islands in the delimitation area has resulted in various solutions, some of which were based on the idea of

217

giving partial effect to islands. Third, equitable principles and the combined equidistance-special circumstances rule embodied in Art. 6 of the 1958 Continental Shelf Convention are convergent as both aim at ensuring equitable delimitation. Finally, the existing rules on delimitation are silent regarding the types of charts to be used. The convergence of customary and treaty rules on delimitation, stressed in the France/United Kingdom Continental Shelf Case, largely deflates the controversy between the advocates of the equidistance-special circumstances rule and those of equitable principles. The authors of the 1982 Convention endeavoured to take this convergence into account, yet at the same time attempted to avoid taking sides. Art. 83( 1) reflects this attitude by providing that frontal or lateral delimitations are to be effected "by agreement on the basis of international law, as referred to in Art. 38 of the Statute of the ICJ, in order to achieve an equitable solution", i.e. on the basis of the provisions of Art. 6 of the 1958 Continental Shelf Convention or on the customary basis of equitable principles. That there is in fact little if any difference between the two sets of rules results from the stress laid by Art. 83( 1) of the 1982 Convention on the necessity of reaching an equitable solution, an objective which can only be met by applying principles that are equitable. The above formula, which makes no choice between the equidistance-special circumstances rule and equitable principles, and which in essence preserves the legal status quo, presents the additional advantage of reflecting the legal evolution since 1958 by emphasizing the need for equitable delimitation. It is also sufficiently flexible to allow for future jurisprudential and treaty developments. It is this very flexibility which, however, is equally one of the main drawbacks of Art. 83(1), for it perpetuates the unpredictability characterizing the existing law on maritime delimitation. Another weakness of the new formula could be seen in the fact that, unlike Art. 6 of the 1958 Continental Shelf Convention, it appears to make delimitation by agreement mandatory in all cases, thus excluding third-party dispute settlement methods altogether, and, moreover, appears to prescribe that the agreement shall embody an equitable solution. That this interpretation must be rejected results from Art. 83(2) of the 1982

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MARITIME BOUNDARIES, DELIMITATION

Convention, which calls upon the parties to use the dispute settlement mechanisms of the Convention if no agreement is reached within a reasonable period of time, and also from the right of sovereign States, in the absence of rules of jus cogens, freely to determine the content of their agreements.

necessary either to balance the equities involved in some way or, as the ICJ did, to identify "neutral" delimitation criteria, i.e. criteria not connected with specificfeatures of either the continental shelf or the exclusive economic zones.

(d) Exclusive economic zones

(a) Rules relating to the stability and publicity of maritime delimitations

Pursuant to Art. 74(1) of the 1982 Convention, exclusive economic zones shall be delimited "by agreement on the basis of international law, as referred to in Art. 38 of the Statute of the ICJ, in order to achieve an equitable solution". While this provision, being identical with Art. 83(1) on the continental shelf, carries the same advantages and drawbacks as the latter, an additional weakness is that the reference to existing rules originating from the sources enumerated in Art. 38 of the Statute of the ICJ is unhelpful: the exclusive economic zone being a novelt y, no law regarding its delimitation can yet be said to exist. Nonetheless, Art. 74(1) is not devoid of normative content since it calls for equitable delimitation, a solution that can be achieved only through the application of principles that are equitable. While delimitations of the continental shelf and of exclusive economic zones are thus basically governed by equitable principles, the equities involved may differ. What is equitable for the former may not be equitable for the latter. The distribution of mineral resources throughout the delimitation area may be roughly even, for instance, thus justifying the drawing of an equidistant line on the continental shelf, whereas a significant imbalance in the distribution of living resources may require a different delimitation of the exclusive economic zones. As a result, the exclusive economic zone of one State may impinge on the continental shelf of another, with all the ensuing complications. To avoid these complications, States may agree to draw a single line of delimitation for the continental shelf and the superjacent waters. In the Gulf of Maine and in the Maritime Boundary Cases, (Guinea/Guinea-Bissau; Guinea-Bissau/ Senegal) the parties requested., or are requesting, the ad hoc chamber 'of the ICJ or the Arbitral Tribunal, respectively, to trace such a line. The establishment of a single line may make it

3. Procedural Rules

The need to ensure the stability of maritime delimitations was already recognized in Art. 12(2) of the 1958 Territorial Sea Convention and Art. 6(3) of the 1958 Continental Shelf Convention: both provisions prescribe that such delimitations be drawn on charts. The ]982 Convention adds the requirement of publicity: Arts. 16, 75 and 84 call upon the States concerned "to give due publicity" to these charts, which may be replaced by lists of co-ordinates, and to file a copy of such charts or lists with the -+ United Nations Secretary-General.

(b) Settlement of disputes While a Protocol of Signature appended to the 1958 Conventions on the law of the sea merely provided for an optional system, sec. 2 of Part XV of the 1982 Convention establishes a compulsory mechanism for the adjudication of disputes relating to the interpretation or application of the provisions of that Convention (-+ Law of the Sea, Settlement of Disputes). The mechanism in question does not, however, extend to all disputes belonging to this category. Pursuant to Art. 298(1)(a), States may in particular exclude, by means of a written declaration, issues concerning . the interpretation or application of Arts. IS, 74 and 83, i.e, the delimitation of territorial seas, exclusive economic zones, and the continental shelf. If the disputes so excluded have arisen after the coming into force of the Convention, they may, however, be submitted to conciliation at the request of a single party (Annex V, sec. 2). The optional exclusion just described leaves a significant gap in the compulsory mechanism established by sec. 2 of Part XV of the Convention since delimitation disputes are among the most serious issues arising in the context of the modem law of the sea and since international-tribunals have displayed a particular aptitude in handling

MARITIME BOUNDARY BETWEEN GUINEA AND GUINEA-BISSAU ARBITRATION

them. But it should be noted that that mechanism remains applicable in the absence of a written declaration to the contrary and that its substitute, compulsory conciliation, is better than nothing.

(c) Interim measures Arts. 74(3) and 83(3) of the 1982 Convention require the States concerned, pending the conclusion of a delimitation agreement pertaining to their exclusive economic zones or to the continental shelf, "in a spirit of understanding and co-operation ... (to) make every effort to enter into provisional arrangements of a practical nature and, during this transitional period, not to jeopardise or hamper the reaching of the final agreement". Owing to its lack of normative content, this provision is unsatisfactory. However, if the States involved have not excluded delimitation disputes from the compulsory mechanism of adjudication set up by sec. 2 of Part XV of the Convention, Art. 290 of the latter will apply. This Article institutes a procedure leading to the prescription of binding provisional measures by a judicial or arbitral body. Geneva Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205-282. Geneva Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. Optional Protocol of Signature Concerning the Compulsory Settlement of Disputes, UNTS, Vol. 450 (1963) 170-200. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Normal and Special Circumstances, in: J.K. Gamble and G. Pontecorvo (eds.), Law of the Sea: The Emerging Regime of the Oceans (1974) 137-199. F. RIGALDIES, La delimitation du plateau continental entre Etats voisins, CanYIL, Vol. 14 (1976) 166-174. D.E. KARL, Islands and the Delimitationof the Continental Shelf: A Framework for Analysis, AJIL, Vol. 71 (1977) 642-673. B. ROSTER, Die Rechtsordnung des Festlandsockels (1977) 355-433. U.-D. KLEMM, Allgemeine Abgrenzungsprobleme verschiedener seerechtlich definierter Raume, ZaoRV, Vol. 38 (1978) 512-567. R. LAGONI, Oil and Gas Deposits Across National Frontiers, AJIL, Vol. 73 (1979) 215-243. R.D. HODGSON,

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Boundary Disputes: An Analysis of the Law of the Sea Negotiations, Ocean Development and International Law Journal, Vol. 8 (1980) 105-148. S.-M. RHEE, Sea Boundary Delimitation between States before World War II, AJIL, Vol. 76 (1982) 555-588. J. EVENSEN, The Delimitation of Exclusive Economic Zones and Continental Shelves as Highlighted by the International Court of Justice, in: C.L. Rozakis and C.A. Stephadou (eds.), The New Law of the Sea (1983) 107-154. P. REUTER, Une ligne de delimitation des espaces maritimes?, Melanges Georges Perrin (1984) 251267. L. CAFLlSCH, La delimitation des espaces marins entre Etats dont les cotes se font face ou sont adjacentes, in: R.-J. Dupuy and D. Vignes (eds.), Traite du nouveau droit de la mer (1985) 375-440. P.S. JAGOTA, Maritime Boundary (1985). l.R.V. PRESCOTT, The MaritimePolitical Boundariesof the World (1985) 81-107. B. VUKAS, The LoS Convention and Sea Boundary Delimitation, in: B. Vukas (ed.), Essays on the New Law of the Sea (1985) 147-185. M. VlRALLY, L' equite dans Ie droit, in: International Law at the Time of Its Codification, Essays in Honour of Roberto Ago (1987) 523-534. P. IRWIN,

LUCIUS CAFLISCH

MARITIME BOUNDARY BETWEEN GUINEA AND GUINEA-BISSAU ARBITRATION The neighbouring African countries of Guinea and Guinea-Bissau, before gaining independence, were colonies of France and Portugal respectively. The final paragraph of Art. I of a Convention of May 12, 1886 between France and Portugal for the delimitation of their respective possessions in West Africa stated that: "Portugal will possess all the islands included between the meridian of Cape Roxo, the coast and the southern limit formed by a line following the thalweg of the Cajet River, and afterwards turning towards the southwest across Pilots Passage, where it reaches tOO 40' north latitude, and follows it as far as the meridian of Cape Roxo." The implementation of this provision caused no difficulty until 1958, when Portugal granted an oil concession. Portugal also proceeded to issue laws and decrees defining its - territorial sea, as did Guinea and Guinea-Bissau after they became

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independent. The effect of these various definitions was that the maritime areas over which these countries claimed to exercise jurisdiction overlapped (~ Jurisdiction of States). During ~ negotiations which then took place, it transpired in January 1978 that a legal dispute existed between Guinea and Guinea-Bissau concerning the delimitation of their maritime territories (~ Maritime Boundaries, Delimitation). On February 18, 1983, the two States decided to seek a binding ~ arbitration through an arbitral tribunal which was established on October 14, 1983 and was composed of Judge Manfred Lachs, President, and Judges Keba Mbaye and Mohammed Bedjaoui, Members. The proceedings were not interrupted by the 1984 change of government in Guinea. An award was made on February 14, 1985 in The Hague, which is summarized below. By a Special Agreement (-~ Compromis), the parties submitted to the Tribunal three questions. The first was whether the above-mentioned Convention of 1886 established the maritime boundary between the French and Portuguese possessions in Guinea. Guinea-Bissau took the view that the only purpose of the "southern limit" was to define the islands belonging to Portugal, whereas Guinea held that this limit also represented a general maritime boundary. The Tribunal noted that the Convention had remained in force between France and Portugal until the end of the colonial period, and then became binding be tween Guinea and Guinea-Bissau by virtue of the principle of ~ uti possidetis. Applying the method of interpretation of the ~ Vienna Convention on the Law of Treaties of May 23, 1969 (ILM, Vol. 8 (1969) p.679), the Tribunal observed that, in the term "the southern limit formed by", the word "limit" might have signified "boundary", but that until the dispute arose neither France nor Portugal, nor Guinea, nor Guinea-Bissau interpreted the last paragraph of Art. I of the 1886 Convention as having established a maritime boundary. This led to the second question, which also concerned the interpretation of the 1886 Convention: what judicial effect could be attributed to its travauxpreparatoires ? The Tribunal recalled that, in the minutes of the negotiations of 1885 to 1886, there was no reference to the delimitation of territorial waters, except in a proposed draft text of the last paragraph of Art. I submitted suddenly

by France and immediately withdrawn at the request of Portugal. As no explanation was given in the minutes for the submission and withdrawal of this draft, which in fact went considerably beyond the conceptions then generally held in the matter. the Tribunal considered that the two States which were signatories to the 1886 Convention had no intention of establishing a general maritime boundary. By the third question, the two parties asked the Tribunal to determine the course of the single line delimiting their territorial waters, their ~ exclusive economic zones and their ~ continental shelves. Guinea-Bissau sought a delimitation according to an equidistance line, whereas Guinea argued in favour of applying the "southern limit" of the 1886 Convention, extending it as far as might be necessary. On this point, the parties took the view that ~ customary international law was enshrined in the recent United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.), although the latter was not in force. The Tribunal noted that, according to Arts. 74(1) and 83(1) of this Convention, the aim of any delimitation process was to achieve an equitable solution with regard to the relevant circumstances (~ Equity in International Law). In order to ensure that the delimitation rested on an equitable and objective basis, every effort had to be made to guarantee that each State controlled the maritime areas in front of its coasts and in proximity to them. The coastline in question was easy to define. since it comprised all the coasts of the two countries from Cape Roxo, which marked the boundary of Guinea-Bissau with Senegal, to Point Sallatouk, where Sierra Leone began. However, there was no maritime boundary which could be taken into account at either of these extreme points, since there was a current dispute in relation to the first, and as for the second, there was only a unilateral delimitation on the part of Guinea. In these circumstances, the most relevant factor was the general configuration and direction of the coastline, including the ~ islands. The Tribunal observed that the coastline so defined was concave, with the effect that an equidistance line would have cut off Guinea's maritime area in front of its coasts and would have tended to enclose it

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between the maritime areas belonging to GuineaBissau and Sierra Leone. Although the Tribunal concluded that the "southern limit" did not establish a maritime boundary, this limit could be used for practical purposes between the extremity of the land boundary and the Guinean island of Alcatraz. However, seaward of Alcatraz, such a limit would have produced a cut-off effect and led to an enclavement to the detriment of GuineaBissau. For these reasons the Tribunal, passing from the short coastline to the long coastline, focused upon the entire West African region. It found that an equitable delimitation in this case had to be carried out by following a direction which took overall account of the convex shape of the West African coastline and would be adaptable to the pattern of present or future delimitations in the region. After investigating various ways of taking into account the general configuration of the western coast of Africa, the Tribunal concluded that a coastal front proceeding in a straight line from Almadies Point in Senegal to Cape Shilling in Sierra Leone would most faithfully reflect this situation. The Tribunal considered that an examination of the other circumstances invoked by the parties (i.e. natural prolongation of the land territory, reasonable ~ proportionality between the extent of maritime areas and the length of the coastline, and economic factors) should not affect its decision. Thus, it unanimously decided that an equitable delimitation should be arrived at by first pursuing the "southern limit" (Pilots Passage and the parallel 10 degrees 40 minutes N) to 12 miles west of Alcatraz, and then, to the southwest, a straight line with a bearing of 236 degrees, broadly perpendicular to the Almadies-Shilling line. It is clear that the members of the Arbitral Tribunal did not seek to elucidate general points of ~ international law but to settle, in accordance with the law of ~ treaties and the current trends of the ~ law of the sea, and having in mind the latest judgments of the ~ International Court of Justice in similar matters, a specific dispute hampering the good relations between two developing countries. Without prejudging any future delimitation with other States, they made a simple and equitable compromise between the parties. Not only was their award unanimous and not only did they refrain from attaching any

.•..

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...._... ..

separate opinion to it, but they took great care to show that there was neither a winner nor a loser, as was stressed by the President of the Tribunal when he handed the award to the parties. A few days later, on March 6, 1985, the two heads of State recognized the acceptability of the delimitation line established by the Tribunal and they agreed to work for a rational exploitation of the natural resources of the region in the common interest of their peoples, thus ending the first dispute submitted to international arbitration by sub-Saharan African States. Convention between France and Portugal for the Delimitation of the French and Portuguese Possessions in West-Africa, May 12, 1886, BFSP, Vol. 77 (18~6) 517-500.

United Nations Convention on the Law of the Sea. December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Carr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354).

Tribunal Arbitral pour la Delimitation de la Frontiere Maritime Guinee/Guinee-Bissau, Award of February 14, 1985, RGDIP, Vol. 89 (1985) 484-537; Guineal Guinea-Bissau: Dispute Concerning Delimitation of the Maritime Boundary, Award of the Arbitration Tribunal, February 14, 1985, ILM, Vol. 25 (1986) 251-307. A. PILLEPICH

MARITIME JURISDICTION A. Definition The meaning of this term depends on the ambiguity of the word ~ jurisdiction in English legal usage. For present purposes its meaning may be defined as the exercise, in conformity with international law, of legislative, executive and judicial functions over the sea and over persons and things on or under the sea. An important distinction is to be drawn between prescriptive and enforcement jurisdiction. Prescriptive jurisdiction means a State's power, in conformity with international law, to apply its municipal laws to the sea and to persons and things thereon; enforcement jurisdiction, on the other hand, means a State's power, in conformity with international law, to enforce such laws, either by executive measures such as boarding, search or arrest (~ Ships, Visit and Search), or by judicial measures such as fines

.. _----_ ..

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__ _-_._._ ...

...

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and imprisonment imposed by its courts. A further important distinction is between exclusive jurisdiction, where only one State has power, and concurrent jurisdiction, where two or more States have power over the same activity at sea. Another distinction is that between::ivil and criminal jurisdiction. There is no uniform theory of maritime jurisdiction in international law, instead jurisdiction rests on a number of separate basei.

~

warships (~ Corfu Channel Case). The 1982 Law of the Sea Convention, however, provides for a new regime of "transit passage" (Arts. 37 to 44) in respect of which it would appear that the coastal State's prescriptive jurisdiction is limited to certain specific matters while enforcement jurisdiction is limited to activities which threaten the marine environment of the straits (~ Environment, In-ternational Protection).

B. Bases of Jurisdiction

2. Coastal State Rights less than Territorial Sovereignty

1. The Territoral Sovereignty of the Coastal State ),

(a) Contiguous zone

(a) Internal waters By virtue of its ~ territorial sovereignty over internal waters, which include ~ bays and gulfs, estuaries and ~ ports, a coastal State is entitled, unless restricted by treaty, to exercise full prescriptive and enforcement jurisdiction over the waters, bed and subsoil on the landward side of the ~ baseline from which the territorial sea and other maritime zones are measured. ~

(b) Territorial sea As territorial waters are under the sovereignty of the coastal State, they also are subject to that State's complete prescriptive and enforcement jurisdiction (~ Territorial Sea). There remains some doubt whether the right of innocent passage for foreign ships, or at Ieast for foreign ~ merchant ships, provides an exception to this (~Innocent Passage, Transit Passage). The wording of both the 1958 Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol. 516 (1958) 205) and the 1982 United Nations Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with Corr.) indicates that the restrictions which are placed on coastal State jurisdiction in this respect are those of ~ comity and not of law.

(c) Straits Where the waters of ~ straits used for international navigation lie entirely within the internal waters or territorial seas of the riparian States, there is a right of non-suspendable innocent passage for both foreign merchant ships and

In a zone contiguous to its territorial sea, according to Art. 33 of the 1982 Convention not exceeding 24 nautical miles from the baseline, the coastal State may exercise the necessary jurisdiction to punish or prevent the infringement in its territory or territorial sea of its customs, fiscal, immigration or sanitary laws. There is some controversy over whether the coastal State has prescriptive jurisdiction in the zone in these respects; if it has not, then there would exist the unusual situation of enforcement jurisdiction without a corresponding prescriptive jurisdiction (~ Contiguous Zone).

(b) Continental shelf Implicit in the coastal State's exclusive sovereign rights for the exploration and exploitation of its ~ continental shelf is prescriptive jurisdiction to protect such rights. It is not certain whether this entails a corresponding executive enforcement jurisdiction in respect of a foreign vessel on the superjacent ~ high seas but to a large extent the more recent concept of the ~ exclusive economic zone has clarified this doubt in favour of the coastal State having such a power.

(c) Exclusive fishery zone and exclusive economic zone State practice, together with the broad consensus at the United Nations Conference on the Law of the Sea (~ Conferences on the Law of the Sea) has effectively established as a ruie of ~ customary international law the general concept of the exclusive economic zone (and the exclusive ~ fishery zone which is one aspect of it)

223

MARITIME JURISDICTION

to a distance of 200 nautical miles from the baseline. The 1982 Law of the Sea Convention provides a model under which the coastal State has sovereign rights therein for the exploration and exploitation, conservation and management of the living and non-living resources of the waters, ~ sea-bed and subsoil (~ Conservation of Living Resources of the High Seas; ~ Marine Resources) and in respect of other activities for the economic exploitation of the zone, together with jurisdiction with regard to the establishment and use of ~ artificial islands and installations, ~ marine research and the protection and preservation of the marine environment (~ Marine Environment. Protection and Preservation). Coastal States have prescriptive jurisdiction necessary to establish and protect the exclusive economic zone provided they have due regard to the rights and duties of other States; and whereas coastal States may adopt laws and regulations for the prevention, reduction and control of pollution from vessels, these must normally conform and give effect to generally accepted rules and standards established through the competent international organization or general diplomatic conference. The 1982 Convention goes on to provide that coastal States may take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with their prescriptive laws and regulations, and there is separate provision for enforcement action for violation of the coastal State's pollution legislation within the exclusive economic zone. 3. Flag State Jurisdiction Every State may apply its laws to ships entitled to fly its flag (~ Flags of Vessels), wherever such ships are located. There are a large number of multilateral treaties particularly those concluded through the ~ International Maritime Organization, which enjoin flag States to apply their prescriptive and judicial enforcement jurisdictions in matters such as pollution control (~ Oil Pollution Conventions) and labour conditions. Upon the high seas, it is stated in the 1958 Convention on the High Seas (UNTS, Vol. 450, p. 82) and in the 1982 Law of the Sea Convention that except in exceptional cases the flag State has "exclusive jurisdiction". This does not distinguish,

however, between prescnptive and enforcement jurisdiction. The circumstances in which there may be concurrent jurisdiction on the high seas will now be examined in this light.

(a) Prescriptive jurisdiction A State other than the flag State may validly enact laws for ships on the high seas on one of several bases: (i) Nationality. Every State may enact laws for its nationals wherever located, including those on board foreign ships on the high seas or in the maritime zones of foreign States. (ii) Universal jurisdiction. By a well-established rule of customary international law every State may prescribe ~ piracy on the high seas as criminal whatever the nationality of the offender and the flag of the vessel. (iii) Objective territoriality. A State may extend its prescriptive jurisdiction to acts taking place outside its territorial sovereignty, such as the high seas, which produce effects within its territory (~ Hovering Acts). This rule was followed by the ~ Permanent Court of International Justice in the ~ Lotus and although the particular application of it there to ~ collisions at sea has been changed by multilateral treaties, it remains a well-established rule of customary international law. Where the effects are direct, substantial and reasonably foreseeable, as with physical pollution of the coasts, this jurisdiction is relatively uncontroversial: where on the other hand the effects are less tangible, such as purely economic injury, there is considerable controversy. (iv) Protective jurisdiction. It is widely accepted that a State may enact laws with extraterritorial effects to protect its security which may be wider than those based on its right of national ~ selfdefence. In matters other than strategic security, such as ~ drug control and environmental protection, there is controversy over the extent of this jurisdiction and States in practice often ensure jurisdiction by entering into treaties with particular flag States. The 1982 Law of the Sea Convention provides that the State in which a foreign ship is located (the "port State") may exercise both prescriptive and enforcement jurisdiction thereover to control violations of accepted rules and standards by the ship while it was on the high seas.

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(b) Enforcement jurisdiction

If a State does not possess prescriptive jurisdiction, it cannot in principle exercise executive or judicial enforcement jurisdiction even when the ship comes voluntarily within its territorial sovereignty (~ Costa Rica Packet Arbitration). But even if a State possesses extraterritorial prescriptive jurisdiction and consequently judicial enforcement jurisdiction with In its territory, it does not necessarily possess a corresponding extraterritorial executive enforcement jurisdiction on the high seas (The Lotus). Apart from the wellestablished cases of piracy and -~ hot pursuit, and the ill-defined case of national self-defence (The Virginius incident of 1873; maritime exclusion zones around the ~ Falklano Islands in 1982), the only instances in which in peacetime a warship is justified in boarding and searching a foreign merchant ship on the high seas. apart from power conferred by treaties, are on reasonable suspicion of slave trading (~ Slavery) or on reasonable suspicion that the ship is either without nationality or is of the same nationality as the warship (~ Ships, Nationality and Status). Many treaties permit the exercise of executive enforcement jurisdiction on the high seas, both multilateral, e.g., the 1969 Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (UNTS, Vol. 970, p. 212) and bilateral, e.g. United States - United Kingdom agreement of 1981 for the boarding, search and arrest of British flag vessels in a substantial part of the western Atlantic and the Caribbean for suspected violation of United States narcotics laws (British Command Papers, Cmnd. 8470, Treaty Series (UK) No.8 (1982». Convention on the High Seas, Ap-il 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10,1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; IL'v1, Vol. 21 (1982) 1261-1354). Papers relating to the Arbitration in the Case of the Costa Rica Packet, February 13, 1897, Martens NRG2, Vol. 23 (1898) 715-813. Lotus, Judgment No.9, PCB, Series A, No. 10 (1927). Corfu Channel, Merits, Judgment, ICJ Reports (1949) 4-169.

The Law of Territorial Waters and Maritime Jurisdiction (1927). M.S. McDOUGAL and W.T. BURKE. The Public Order of the Oceans (1962). M.R. SIMO"lNET, La convention sur la haute mer (1966). J.H.W. VERZIJL, International Law in Historical Perspective, Pat 4. Stateless domain (l971). . G. APOLLl:;, L'emprise maritime de l'Etat cotier (1981). D.P. O'CON'IELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 2 (1984). P.c. JESSUP,

GEOFfREY MARSTON

MARITIME LAW see Admiralty Law; Law of the Sea

MARITIME SAFETY REGULATIONS 1. Notion Maritime safety regulations were born out of the following two necessities: 0) the need to minimize the risks emerging from the ever-increasing economic and other uses of the sea as well as from the thereby reduced freedom of movement at sea, and (ii) the need to meet the social demands made by those serving an enterprise which, solely because its field of activity is the sea, is exposed to certain risks. As far as the shipping industry and its related functions are concerned, there are rules and regulations governing such complex matters as the safety of vessels, the availability, at any time, of lines of communication with stations that are ready to respond to alerts, mutual assistance, the prevention of collisions at sea, rescue installations (both aboard and ashore) and the prevention of cargo-generated hazards. Corresponding rules and regulations exist for stationary installations at sea.

2. Historical Evolution of Legal Rules The earliest maritime safety rules served navigational requirements. In antiquity as well as in the Middle Ages the only such rules were those prescribing the display of certain lights when sailing in close proximity to other vessels. The regulations on giving way that followed some time later were mainly derived from road traffic practices, while anchoring regulations were made to

MARITIME SAFETY REGULATIONS

suit the requirements of passing ships. From the 16th century onwards the rule was universally recognized that a white light had to be exhibited at a ship's uppermost point. The appearance of the steamship and the consequent increase in the volume of overseas traffic as well as in the speed by which vessels could proceed brought about great changes. New risks emerged from the fact that steamships and sailing vessels were in competition with each other. The new generation of sailing vessels was faster than its predecessors but less easy to manoeuvre, and at night or in bad visibility these vessels continued to sail. After 1840. rules and regulations on giving way and on the lights to be exhibited by ships were issued for example by Great Britain, Hamburg, Lubeck, France, the Netherlands, and Prussia. These rules and regulations were not yet universally binding; nor were they codified or harmonized on an international level (-;. Codification of International Law), although Britain's practice came more and more to be followed (see e.g. the Code of Signals of 1857). In the general interest, Great Britain took the initiative and drafted. in cooperation with France. the first set of Regulations for Preventing Collisions at Sea (~ Collisions at Sea). These regulations were promulgated by both States in 1862 and came into force on June 1, 1863. In 1894, they were incorporated into the British Merchant Shipping Act (57&58 Viet. c.60). Subsequently, all European seafaring nations as well as the United States issued legislation with substantially the same content. A number of problems left unsettled later led to the International Marine Conference held in Washington in 1889, where new Collision Rules and an International Code of Signals were drafted (BFSP, Vol. 81. p. 705). With some amendments, the Rules and Code came into force on July 1, 1897 for all States involved, i.e. for all major seafaring nations. Thus, the foundation for the international uniformity of national regulations was laid. The new Collision Rules served as the basis for national legislation in several States, inter alia for the British Ordinance of 1910 which permitted application of the 1894 Merchant Shipping Act to third countries with their consent. The loss of the Titanic following her collision with an iceberg in 1912 shocked the world and

225

drew the attention of shipping circles around the globe to the necessity of creating, on an international level, uniform standards that would include such aspects as design and equipment of ships (initially, of passenger ships only). It became evident that the risks that threatened the shipping community would have to be countered by measures taken by public bodies. Thus, in London in 1914 an international conference was held, which concluded with the adoption of the Convention for the Safety of Life at Sea (June 20, 1914. BFSP, Vol. 108. p. 283). The outbreak of the First World War prevented that Convention from becoming effective, because too few States ratified it. Conferences dealing with the same subject were held in London in 1929 and 1948 at the invitation of the British Government and again in 1960 and 1974 at the invitation of the Inter-Governmental Maritime Consultative Organization (IMCO; ~ International Maritime Organization). Each of these conferences produced a new Convention for the Safety of Life at Sea - SOLAS (May 31, 1929, LNTS. Vol. 136, p. 81; June 10,1948, UNTS, Vol. 164, p. 113; November 1. 1974, UNTS, Vol. 1184, p.2). The provisions of these Conventions, the scope of which became ever more comprehensive, also extended to cargo ships. In 1930 and 1966 the Conventions were supplemented by separate International Load Line Conventions (July 5, 1930, LNTS, Vol. 135, p. 301; AprilS, 1966, UNTS, Vol. 640, p. 133). The SOLAS Conventions also included revised Rules for the Prevention of Collisions at Sea until these became the subject of the Convention on the International Regulations for Preventing Collisions at Sea of October 20, 1972 (British Command Papers, Cmnd. 6962, Treaty Series No. 77 (1977)). Efforts to improve maritime safety regulations were considerably strengthened by IMCO. The Organization assumed the administrative tasks of the above-mentioned international conventions. 1MCO (IMO since 1982) assures that necessary amendments enter into force, a task facilitated by the introduction in the conventions of the so-called "tacit acceptance procedure". Under this procedure an amendment proposed by a party is submitted to the Secretary-General. It is then circulated to the other parties concerned and referred to the Maritime Safety Committee (MSCl with the parties, whether or not members

226

MARITIME SAFETY REGULATIONS

of IMO, participating in the proceedings of the expanded MSC. If adopted by a qualified majority, .the amendment is communicated to the parties. After a certain period for declaring non-acceptance has elapsed, the amendment enters into force for all non-dissenting parties, following a further period provided for by the relevant convention. Numerous special safety matters are regulated by IMO resolutions which are to he put into force by member States through their national legislation. Some resolutions regulating important matters in detail are called "codes". They are expected to be included in national legislation without any formal change. The Code of Signals has been taken over from Great Britain; the other codes have been developed by the Organization.

3. Current Legal Situation At present, maritime safety regulations are the subject of several international conventions and IMO resolutions (Codes) which fall within the following categories.

(a) Prevention of collisions at sea The 1972 Convention on the International Regulations for Preventing Collisions at Sea, as amended by IMO Res. 464(XlI), November 19, 1981, contains steering and sailing rules (with sections on the conduct of vessels in any condition of visibility, in sight of one another, and in restricted visibility) in Part B, rules on lights and shapes (with Annexes I and II)n Part C, and rules on sound.and light signals (with Annexes III and IV) in Part D. The most important rules are as follows: - Rule 2 contains the fundamental difference between the rules of the Convention and those of road traffic: "In construing and complying with these Rules due regard shall be had :0 all dangers of navigation and collision arid to any special circumstances, including the limitations of the vessels involved, which make a departure from these Rules necessary to avoid immediate danger." - Rule 5 imposes the strict obligation to maintain at all times a proper 10Jk -out. - Rule 6 requires vessels to proceed at all times at a safe speed, taking into account, inter alia, the state of visibility, the traffic density, the man-

oeuvrability of the vessel, the state of wind, sea and current, and the limitations of the radar equipment. - Rules 7 and 8 require determination if risk of collision exists and action to avoid collision in ample time, always with due regard to the prevailing circumstances. - Rule 10 contains special directives applicable to traffic separation schemes adopted by IMO (see IMO Res. 377/378(X), 428(XI) and 527( 13» and listed in the IMO Publication "Ships' Routeing" (~ Sea Lanes). - Rule 37 regulates distress signals (described in Annex IV). The Code of Signals is not a convention. but an important official collection of all available signals to be used at sea, whether prescribed in conventions or derived from the general practice of seafarers. The Maritime Safety Committee of IMO, which was already asked by IMO Res. 80(IV) to amend the regulations on radio signals to have them conform with the provisions agreed to at ITlJ Conferences, is now responsible for all necessary amendments (IMO Res. 187(VI). During the period from 1968 to 1984 nine amendments were adopted.

(b) Safety of seagoing vessels The International Convention on Safety of Life at Sea (SOLAS 1974, November 11,1974, UNTS, Vol. 1184, p. 2) is divided into eight chapters. The Convention also includes the Additional Protocol of 1978 and two sets of Amendments of 1981 and 1983. - Chapter I (General Provisions) regulates the application of the Convention, definitions, surveys and certificates. Regulation 3 stipulates that the Regulations, unless expressly provided otherwise, do not apply to ~ warships, cargo ships of less than 500 tons gross tonnage, pleasure yachts, and fishing vessels. - Chapter II contains construction requirements, i.e. rules on subdivision and stability, including additional rules on load lines, machinery and electrical installations, and fire protection, detection and extinction. Separate sections apply to passenger ships, cargo ships, and tankers. - Chapter III regulates life-saving appliances, e.g. fire pumps, mains, hydrants, fire-extinguishing systems, automatic sprinklers, fire alarm and

MARITIME SAFETY REGULATIONS

detection systems, firemen's outfits and fire control plans. - Chapter IV regulates radio-telegraphy and radio-telephony matters and comprises sections on watches, technical requirements, and radio logs. - Chapter V (Safety of Navigation) contains carriage requirements intended to enhance the safety of individual ships as well as provisions on cooperation between. ships at sea and between coastal States with regard to danger messages, ice patrol service in the North Atlantic, and aids to navigation, search and rescue, in the interests of the safety of ships. - Chapter VI (Carriage of Grain) is intended to prevent casualties that might otherwise be caused when grain carried by a ship in bulk shifts causing the ship to list. The Code of Safe Practice for Solid Bulk Cargoes (Res. 434(XII» recognizes that the same can happen with other solid cargoes that are carried in bulk. - Chapter VII (Carriage of Dangerous Goods) divides dangerous goods into 9 classes and contains provisions on packing, marking and labelling, and on documents (a guarantee provided by the shipper and a special list or manifest provided by the carrier). This Chapter is not applicable to tankers. All dangerous goods with detailed provisions for their proper handling are the subject of the voluminous International Maritime Dangerous Goods (IMDG) Code (IMO Res. 81(IV». - Chapter VIII (Nuclear Ships) provides for the official approval of reactor installations, a safety assessment to be made available to the government of the country which the ship intends to visit, and the special control of - nuclear ships prior to their entering a - port of this country. Technical requirements are contained in the Code of Safety for Nuclear Merchant Ships (IMO Res. 491(XII». Additional codes exist for other special types of ships and installations at sea and deal with the following issues: the construction and equipment of ships carrying dangerous chemicals in bulk (IMO Res. 212(VII»; the construction and equipment of ships carrying liquefied gases in bulk (IMO Res. 328(IX»; the construction and equipment of mobile off-shore drilling units (IMO Res. 414(XI»; safety for special purpose ships (IMO Res. 534(13»; and safety for diving systems. The 1966 International Convention on Load Lines, with amendments of 1971, 1975, and 1979

227

(IMO Res. 231(VII), 319(IX), 411(XI), respectively), assures the stability of loaded ships. Load lines marked on the sides of a ship corresponding to the season of the year and the zone in which the ship navigates must not be submerged at any time when the ship puts to sea or during the voyage. The International Convention on Standards of Training, Certification and Watchkeeping for Seafarers of July 7, 1978 (British Command Papers, Cmnd. 9266, Treaty Series, No. 50 (1984», is, as far as efficiency of crew members is concerned, an important and internationally followed addition to the very general provision of SOLAS 1974, Chap. V, Regulation 13, that "all ships shall be sufficiently and efficiently manned". Rules on the requirements for watches on the bridge and technical services have a direct bearing on the safety of ships during their voyages. (c) Supporting services and installations of coastal States The governments of flag and harbour States support the safety of life at sea by maintaining many services and installations on their coasts, on national waterways, and in ports. International harmonization and regulation has been strengthened in the following fields: (i) The control of foreign-flag ships calling at ports (- Flags of Vessels) (see SOLAS 1974, Chap. I, Regulation 19; the Merchant Shipping (Minimum Standards) Convention, ILO Convention 147, October 29, 1976, ILM, Vol. 15, p. 1288, Art. 4; IMO Res. A.466(XII), Procedures for the Control of Ships, November 19, 1981; and the Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, January 26, 1982 (ILM, Vol. 21, p. 1), adopted in 1982 by 14 States of Western Europe); (ii) Buoyage (see - Lighthouses and Lightships); (iii) Coastal telecommunication stations; (iv) Notices to mariners, weather warnings; (v) Maritime pilotage (see IMO Res. 480, 485, and 486(XII»; (vi) Ice patrol and study and observation of ice conditions in the North Atlantic (see SOLAS 1974, Chap. V, Regulation 5); (vii) Search and rescue stations (see Internation-

228

MARITIME SAFETY REGULATIONS

al Convention on Maritime Search and Rescue, April 27, 1979, British Command Papers, Cmnd. 12, Treaty Series. No. 59 (1986)). Convention on the Internationa Regulations for Preventing Collisions at Sea, October 20, 1972. British Command Papers, Cmnd. 6962, Treaty Series. No. 77 (1977). International Convention for the Safety of Life at Sea, November 1, 1974. UNTS. V(li. 1184 (1980) 2-453. International Convention on LoaI Lines. April 5, 1966, UNTS, Vol. 640 (1968) 133-301. International Convention on SIandards of Training, Certification and Watchkeeping for Seafarers, July 7, 1978, British Command Papers, Cmnd. 9266, Treaty Series, No. 50 (1984). International Convention on Ma -itime Search and Rescue, April 27, 1979, British Co nrnand Papers. Cmnd. 12, Treaty Series. No. 59 (1986). c.r. COLOMBOS, The International ~aw of the Sea (6th cd. 1967) 332-355. S. MANKABADY, Collisions at Sea, A Guide to the Legal Consequences (1977) 105-293. GERHARD BREUER

MERCHANT SHIPS 1. Notion (a) Ships ,/

Neither ~ customary international law nor the four 1958 Geneva Conventior.s on the Law of the Sea or the Law of the Sea Convention of 1982 contain a legal definition of the term "ship" (see ~ Law of the Sea). Where the latter Convention refers to "sea, lake and river craft" (Art. 124 (1)(d)(i», it obviously means craft of any kind which can be a "means (If transport" (Art. 124(1)(d)), including rafts, small boats and other craft normally not considered a ship. This reference does not explain what a ship is. Neither does the fact that the term "ship" is used only in certain parts of the English text of tile 19S2 Convention (Parts II to VII, X), whereas in other parts the term "vessel" is preferred (Parts I, XII, XIII, XV). The latter term obviously has the same meaning as "ship", because t1' e French text of the Convention uniformly cmplcys the term navire and the Spanish tex: <, .erm buque. The mentioned Conv-o.tior-s do, however, dis-

tinguish between ships or vessels and other objects not considered to be crafts, around which ~ safety zones may be established. Such objects are installations and structures or other devices used for the exploration and the exploitation or natural resources in the ~ exclusive economic zone, on the ~ continental shelf, on the ~ high seas or in the deep sea-bed area, or for other purposes such as scientific ~ marine research (see Geneva Convention on the Continental Shelf, April 29, 1958 (UNTS, Vol. 499, p. 311), Art. 5, para. 2; 1982 Convention, Arts. 60, 80, 87, 147, 258). Being towed or pushed by a vessel, these objects form a part of the tow, which enjoys the rights of a ship under international law. Where customary international law or the mentioned Conventions refer generally to "ships", "all ships" or "ships of all States", as for example with respect to the right of ~ innocent passage and transit passage (Geneva Convention on the Territorial Sea and Contiguous Zone, April 29, 1958 (UNTS, Vol. 516, p. 205), Art. 14; 1982 Convention, Arts. 17,38,52), all kinds of ships are meant. In the absence of a more specific definition, a ship can be described as a vessel used or capable of being used as a means of transportation on water. This includes lightvessels (~ Lighthouses and Lightships), dredgers, floating cranes - whether self-propelled or not - as well as amphibious vessels. hydrofoils, air-cushioned vessels and submersibles. Boats propelled by oars or paddles, floating docks, floating islands and seaplanes are normally not regarded as ships. A ship under construction is considered a ship, when it is capable of floating, and a wrecked ship as long as it can be repaired. In order to determine their scope of application, many international maritime agreements provide their own definition of a vessel or ship. According to their particular purpose, some exclude vessels below a certain size or particular types of vessels, such as fishing boats, sailing boats, dhows or junks, whereas others include even "fixed or floating platforms" (e.g., the International Convention for the Prevention of Pollution from Ships, November 2, 1973, ILM, Vol. 12 (1973), p. 1319, Art. 2. No.4) or "non-displacement craft and seaplanes" (see the Convention on International Regulations for Preventing Collisions at Sea, October 20, 1972, British Command Papers,

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MERCHANT SHIPS

Cmnd. 6962, Treaty Series No. 77 (1977), Rule 3(a)). While international law refers to the --.. nationality of a ship, its registration and its right to fly the flag or to the flag State jurisdiction (~ Flags of Vessels), it is left to the individual State to determine what a ship is in accordance with that State's domestic law (Geneva Convention on the High Seas, April 29, 1958 (UNTS, Vol. 499, p. 311), Arts. 4 to 6; 1982 Convention, Arts. 90 to 92). Similarly, the distinction between sea-going vessels and vessels used for inland navigation is made by the domestic law of the flag State, except where an international agreement stipulates otherwise. The maritime laws of most shipping nations contain similar concepts recognizing a ship as being a vessel engaged in navigation. However, depending on the purpose of the different laws, there are differences in definition with respect to the size of the vessel, whether or not it is self-propelled, and the particular kind of craft (~ Ships, Nationality and Status).

are subject to the same rules as merchant ships, except where international agreements have established more particular rules (see Geneva Convention on the Territorial Sea, Art. 14, para. 5; 1982 Convention, Arts. 19(2)(1), 23, 42(1)(c), 62(4), 255). A ship owned by a government and operated for commercial purposes does not enjoy immunity in customary international law, nor does it under the Convention Concerning the Immunity of Stateowned Ships of April 10, 1926 (LNTS, Vol. 176, p. 199, Arts. 1, 2) or the Geneva Convention on the Territorial Sea (Art. 22). When the Geneva Convention on the Territorial Sea did not extend immunity to these ships, certain East-European and Socialist States made reservations to this effect to which, however, other States objected. Art. 32 of the 1982 Convention again reserves the immunity for ships in public service excluding government ships operated for commercial purposes. However, under this Convention no reservation to this provision is permitted (see Art. 309).

(b) Merchant ships As ~ warships and other government ships operated for non-commercial purposes enjoy immunity and certain particular rights in international law (~ State Ships), the law of the sea distinguishes them from merchant ships and other government ships operated for commercial purposes. Most international maritime agreements do not apply to warships and other government ships operated for non-commercial purposes. Yet, with the exception of warships (Geneva Convention 011 the High Seas, Art. 8, para. 2; 1982 Convention, Art. 29), international law does not define these different kinds of ships. Government ships operated for non-commercial purposes are ships employed, but not necessarily owned, by a State in its public service, such as police vessels, fisheries surveillance vessels or troop-ships and supply ships manned by a civilian crew. The State itself determines which ships are its public ships. In the absence of a more specific definition a merchant ship may be considered a vessel employed for commercial purposes, such as the transport of cargo and passengers. Fishing vessels (~ Fishing Boats), research vessels not registered as public ships, nuclear-powered ships (~ Nuclear Ships) and other specialized vessels

2. Legal Status As a ship is a chattel, a craft on board of which human activity occurs, and a means of navigation, the legal status of a ship depends upon the field of law or particular legal situation to which it is related in any given case.

(a) Chattel As movable property a merchant ship is subject to private rights and duties, as determined by the applicable maritime law (~ Admiralty Law) and the general private law of individual States. Maritime law differs in certain aspects from the other fields of private law in most shipping nations. The various national maritime laws are for historical reasons and as a result of international maritime agreements to a certain extent simila: or even uniform.

(b) Flag State jurisdiction As a craft on board of which human activity occurs and is capable of moving in the territorial waters of foreign States and on the high seas, a ship is a chattel of "a very special nature" (Lord Finlay, dissenting in the ~ Lotus Case, PCU Series A, No.9 (1927) p. 53). In order to keep the

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MERCHANT SHIPS

activities on board their ships on the high seas under their jurisdiction (- Maritime Jurisdiction; - Jurisdiction of States), States grant their nationality to ships. Ships have the nationality of the State whose flag they are entitled to fly (Geneva Convention on the High Seas, Art. 5, para. 1; 1982 Convention, Art. 91(1)). The right to fly the flag of a State presupposes registration in its territory. Every State may fix the conditions for registration in its national shipping register. However, the mentioned conventions also stipulate that there must exist a "genuine link" between the State and the ship flying its flag (- Flags of Convenience). As a considerable and still growing number of States disregard this requirement; the United Nations Convention on Conditions for Registration of Ships of 1986 restates the general rules concerning the nationality, registration and flag of a ship (UN Doc. TD/RS/CONF/23 of March 13, 1986, Art. 4). These rules provide inter alia that a ship shall sail under the flag of one State only, and, consequently, that the right 1:0 fly the flag of the State of registry is suspended when a ship is chartered bareboat in another State while flying the flag of the latter State (Art. 11, para. 4). As the high seas are free of territorial jurisdiction by any State, the flag State's jurisdiction over a ship on the high seas is an exclusive one (Geneva Convention on the High Seas, Art. 6, para. 1; 1982 Convention, Art. 92(1)). Such jurisdiction relates to all matters on board the ship, including criminal offences (but see - Collisions at Sea). Accordingly, the flag State may effectively exercise its jurisdiction in administrative. technical and social matters over ships flying its flag (1982 Convention, Art. 94(1); UN Registration Convention, Arts.·5, 6,8,9). The general purpose of the international law concerning flag State jurisdiction is to establish and maintain order in an area outside the territorial jurisdiction of States. Stipulations concerning flag certificates, the duty of a ship to show its flag, and the right of warships to visit a ship in order to verify its right to fly the flag, also serve this purpose. A ship without a flag is a ship without a nationality. It does not enjoy the protection of exclusive flag State jurisdiction (see The Asya, Whiteman, Digest of International Law, Vol. 9, p. 36). However, even on the high seas such a ship

is not without law and jurisdiction. As in the case of any other piece of movable property, the law of the State of which the ship's owner is a national applies (see The Alta, 136 Fed. 513 at 519 (1905)). A jurisdictional connection with the flag State is also maintained when the ship is in a foreign territorial sea or port (- Internal Waters, Seagoing Vessels in). As merchant ships, unlike State ships, do not enjoy immunity, flag State jurisdiction is not exclusive while the ship is in foreign territorial waters. (c) Freedom of navigation

The two essential features of the freedom of the high seas are that the high seas shall be free of territorial jurisdiction and the right of States to use this area for navigation and other purposes (Geneva Convention on the High Seas, Arts. 2,4; 1982Convention, Arts. 87,89,90; - Navigation, Freedom of). A State's right of navigation, which means the right to sail ships flying its flag on the high seas, is a right of the State. Merchant ships derive this right only from the domestic law of the State to which they belong. However, these ships enjoy indirectly the protection of international law providing for unimpeded navigation and, as a corollary of the jurisdictional side of the freedom of the high seas, exclusive flag State jurisdiction on the high seas. As domestic law can guarantee the freedom of navigation only within the limits of international law, a merchant ship on the high seas is subject to the right of - hot pursuit, provisions concerning pirate ships (- Piracy; Geneva Convention on the High Seas, Arts. 23, 19; 1982 Law of the Sea Convention, Arts. 111. 105) and. in time of - war or armed conflict. the right of search (see section 4 infra). (d) The "floating territory" doctrine

A merchant ship is neither as a chattel nor as a craft, on board of which human activity occurs, nor as a means of navigation a piece of "floating territory" or a "floating island". Although flag State jurisdiction over a ship on the high seas is exclusive, such jurisdiction is of a different nature than territorial jurisdiction, because its legal basis is the grant of nationality to a piece of movable property, whereas territorial jurisdiction is related to the territory itself. A ship is not territory, nor is its status assimi-

MERCHANT SHIPS

lated to that of State territory. Thus, Judge Huber's well-known remark in the Lotus Case, that "a corollary of the principle of the freedom of the seas is that a ship on the high seas is assimilated to the territory of the State, the flag of which it flies, for, just as in its own territory, that State exercises its authority upon it, and no other State may do so" (PCIJ, Series A, No. 10 (1927) p. 25), is a misleading reference to a metaphor which goes back to earlier times when the doctrine of jurisdiction was not well-developed. With Lord Finlay's dissenting opinion in the Lotus Case one can consider the doctrine of the floating territory as a "misconception" (ibid., p.53). As the reasons to reject the doctrine apply equally to warships and government ships (see the decision of the Privy Council in Chung Chi Cheung v. The King (1939) A.C. 160), one can agree with Colombos that that doctrine is obsolete (International Law of the Sea, p. 286).

3. Design, Construction, Equipment and Manning (a) Safety of life at sea Questions concerning the construction and equipment of ships were first regulated in the late 19th century under the domestic law of shipping nations, e.g., the British Merchant Shipping Acts of 1894 (57 & 58 Viet. c. 60) and 1897. After the Titanic disaster, the first Convention for the Safety of Life at Sea was concluded upon the invitation of the British government in London on January 20, 1914 (BFSP, Vol. 108, p. 283), followed by updating conventions on May 31, 1929 (LNTS, Vol. 136, p. 81) and June 10, 1948 (UNTS, Vol. 164, p. 113). On June 17, 1960 the International Convention on the Safety of Life at Sea was adopted at a conference convened by the InterGovernmental Consultative Maritime Organization, known since 1982 as the -- International Maritime Organization (IMO). As none of the six amendments to that Convention entered into force, another conference met under the auspices of the IMO at which in 1974 the International Convention on the Safety of Life at Sea (SOLAS) of November 1, 1974 (UNTS, Vol. 1184, p. 2) was concluded. The SOLAS Convention replaces the preceding one of 1960. By December 1987, the SOLAS Convention was in force for 96 States.

231

The 1974 SOLAS Convention applies to ships engaged in international voyages with the exception of warships, troop-ships, fishing vessels and other small vessels. It provides in its Annex detailed regulations concerning minimum standards for the construction, equipment and operation of merchant ships. The States parties must give effect to these international standards in their domestic laws in respect of ships flying their flag. These ships must carry certificates on board as proof that they have passed the periodical surveys concerning the standards set up by the Convention. The 1974 SOLAS Convention provides a tacit acceptance procedure for the amendment of technical provisions adopted by the Maritime Safety Committee of IMO (Art. VIII(b». Since 1975 the IMO has also adopted a number of recommendations concerning "codes" of safety standards for particular cargoes and types of vessel (see Singh, Vol. 2, pp. 1253-1339). The Protocol Relating to the 1974 International Convention for the Safety of Life at Sea of February 17, 1978 (British Command Papers, Cmnd. 8277 (1981); Treaty Series, No. 40) amends the 1974 SOLAS Convention mainly with respect to tanker safety. In December 1987 the SOLAS Protocol was in force for 62 States. The 1974 SOLAS Convention provides an exemption from its application for special trade passenger ships employed in carrying large numbers of passengers, such as ships which carry pilgrims in the Indian Ocean and south-east Asian waters. Safety standards for these ships are regulated in the Special Trade Passenger Ships Agreement of London of October 6, 1971 (UNTS, Vol. 510, p. 61), and in the Protocol on Space Requirements for Special Trade Passenger Ships of London of July 13, 1973 (British Command Papers, Cmnd. 7761, Treaty Series No.7 (1980)). The Convention and Protocol were also initiated by the IMO. As neither the 1974 SOLAS Convention nor its predecessor of 1960 apply to fishing vessels, the IMO sponsored the Torremolinos International Convention for the Safety of Fishing Vessels of April 2, 1977 (British Command Papers, Cmnd. 7252, Misc. 17 (1978», which applies to new vessels of 24 metres in length and over. The IMO adopted several recommendations concerning the

232

MERCHANT SHIPS

implementation and application of safety standards under the agreement (see Singh, Vol. 2, pp. 1600-1670). As the minimum freeboard for ships constitutes an important aspect of their safety, the International Convention Load Lim' of July 5, 1930 (LNTS, Vol. 135, p. 301) introduced international standards for load-lines of ships on international voyages. It was replaced by the International Convention on Load-Lines)f April 5, 1966 (UNTS, Vol. 640, p. 133). This Convention was again sponsored by the IMO, which adopted in amending resolutions 1971 (Amendments to the International Convention on Load Lines, Res. A 231(VII) of April 5, 1966, October 12, 1971, British Command Papers, Cmnd. 5093, Misc. 37 (1972», 1975 (Resolution to amend the International Convention on Load Lines of April 5, 1966, November 12, 1975, British Command Papers, Cmnd. 6543, Misc. 18 (1976» and 1979 (Resolution to amend the International Convention on Load Lines of April 5, 1966, November 15, 1979, British Command Papers, Cmnd. 7914, Misc. 3 (1970» in a tacit acceptance procedure (Art. 29, paras. 2, 3) as well as certain standard defining recommendations (see Singh, Vol. 2, pp. 10391052). (b) Prevention of pollution

International agreements for the protection of the ~. marine environment also contain rules and standards for the design, construction and equipment of ships. In particular, the International Convention for the Prevention of Pollution from Ships (1973 MARPOL Convention) of November 2, 1973 (ILM, Vol. 12, p. 1319), with the Protocol Relating to the International Convention for the Prevention of Pollution from S~ ips of February 17, 1978 (British Command Papers, Cmnd. 7347, Misc. 27 (1978», provide regulations for the construction and equipment of oil-tankers and product carriers over a certain size and built after 1979. In force since 1983, the 1973 MARPOL Convention and 1978 Protocol replace between the States parties the International Convention for the Prevention of Pollution of the Sea by Oil (1954 OILPOL Convention, May 12, 1954, UNTS, Vol. 327, p.3). The Marine Environment Protection Committee of the IMO amended the technical provisions of the 1973 MARPOL Convention in a

tacit acceptance procedure in 1984 and 1985 (Art. 16, para. 2 (rj). In addition to the 1973 MARPOL Convention, the IMO developed several recommendations and guidelines, such as the Codes for the Construction and Equipment of Liquefied Gas Carriers, Chemical Carriers, and Mobile Off-Shore Drilling Units. These codes do not entail legal obligations but form internationally accepted standards for the vessels to which they relate. Under the 1982 Law of the Sea Convention, a coastal State may apply only those laws and regulations concerning design, construction, equipment or manning to foreign ships during innocent passage through coastal State's territorial sea or in its internal waters, which give effect to "generally accepted international rules or standards", as represented, inter alia, by the abovementioned IMO codes (Arts. 21(2), 211(6)(c». (c) Safety standards of the fLO With regard to so-called sub-standard vessels, particularly those registered under flags of convenience, the ~ International Labour Organisation (ILO) adopted the Convention Concerning Minimum Standards in Merchant Ships of October 29, 1976 (ILM, Vol. 15, p. 1288). This "Convention No. 147 of 1976" is an umbrella agreement requiring the ILO members which have ratified it (19 States as of December 1987) to ensure the safety of life on board sea-going ships. For this purpose, the States shall lay down in their laws and regulations safety standards, including standards of competency, hours of work and manning, as these are determined in the 15 ILO Conventions mentioned in the appendix to the 1976 Convention. In addition, the States shall exercise effective jurisdiction or control over ships registered in their territory in respect of compliance with these standards. 4. Merchant Ships in Time of War In time of war or armed conflict (~ Sea Warfare), belligerent warships may visit and search all merchant ships on the high seas (~ Ships, Visit and Search). For this purpose and for purposes of seizure, warships may order merchant ships into a port (~ Ships, Diverting and Ordering into Port). Enemy merchant ships and their cargo may be captured as prize, whereas neutral

NAVIGATION, FREEDOM OF

merchant ships may only under certain conditions be seized under the -- prize law (-- Neutrality in Sea Warfare; -- Blockade; -- Contraband). However, neutral merchant ships are generally subject to the law of -- angary. While these ships retain their status. even if they are armed, armed enemy merchant ships have a particular status, however, without becoming warships (-- Merchant Ships, Armed). Le regime juridique des navires de commerce, RdC, Vol. 30 (1929 V) 5-60. G. GIDEL, Le droit international public de la mer, Le temps de paix, Vol. 1, Introduction-La haute mer (1932). J.e. COLOMBOS, The International Law of the Sea (6th ed. 1967). H. MEYERS, The Nationality of Ships (1967). M.N. WHITEMAN (ed.), Digest of International Law,Vol. 9 (1968). G. LAZARATOS, The Definition of Ships in National and International Law, RevHelk~n, Vol. 22 (1969) Nos. 3-4,57-99. Y. VAN DER MENSBRUGGHE, Reflexions sur la definition du navire dans Ie droit de la mer, in: Societe Francaise pour Ie Droit International (ed.), Colloque de Montpellier, 25, 26et 27mai 1972, Actualites du droit de la mer (1973) 62-75. T. KOCHU THOMMEN, Legal Status of Government Merchant Ships in International Law (1982). N. SINGH, International Maritime Law Convention, 4 vols. (3rd ed. 1983). D.P. O'CONNELL, The InternationalLawof the Sea (ed. by LA. Shearer), Vol. 2 (1984). T. TREVES, La navigation, in: R.-J. Dupuy and D. Vignes (eds.), Traite du Nouveau Droit de la Mer (1985) 692-695. A. PEARCE HIGGINS,

RAINER LAGONI

MONTEREY BAY CASE see United States v. California (Monterey Bay Case)

MOON see Celestial Bodies NATIONALITY OF SHIPS

see Ships,

Nationality and Status

NAVIGATION, FREEDOM OF 1. Law of the Sea "Freedom of navigation" is the first of the six "freedoms of the high seas", mentioned in Art. 87 of the 1982 United Nations Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with

233

Corr.). That Convention is not yet in force, but Art. 2 of the 1958 Geneva Convention on the High Seas (UNTS, Vol. 450, p. 82), which entered into force on September 30, 1982, similarly placed "freedom of navigation" at the head of the list of "freedoms of the sea" which were then considered to be four in number, the other three being "freedom of fishing", "freedom to lay submarine cables and pipelines" and "freedom to fly over the high seas" (-- Fisheries, International Regulation; -- Cables, Submarine; -- Pipelines; -Overflight). The two additional freedoms of the sea included in the 1982 Convention are the freedom to construct -- artificial islands and other installations and the freedom of scientific research (-- Marine Research). Since, according to the 1982 Convention, six freedoms of the -- high seas may be exercised in the same area, it is inevitable that the Convention should add, in Art. 87, the requirement that "these freedoms shall be exercised with due regard for the interests of other States in their exercise of the freedom of the high seas". International law has not worked out a hierarchical system of priorities. Much will depend on the circumstances of the case and on the past practice of States. Moreover, it is clear from both the 1958 and 1982 Conventions that, since the term inter alia is included, the list of freedoms which these Conventions contain is not exhaustive. A freedom claimed by some States, although not expressly mentioned in the Conventions, is that of conducting -- naval manoeuvres or testing weapons (-- Nuclear Tests). Also, in Part Xl, the 1982 Convention contains lengthy and detailed provisions concerning mining in the -- sea-bed and ocean floor and its subsoil "beyond the limits of national jurisdiction", which the Convention simply refers to as "the Area" (-- International Sea-Bed Area). Operations of this sort may well conflict with the exercise of other freedoms of the high seas, and accordingly Art. 87 provides that States exercising the other freedoms must do so "with due regard for the rights under this Convention with respect to activities in the Area". Freedom of navigation is fundamental, because without it none of the other freedoms of the sea can be exercised. Even "freedom of overflight" , as it is now called in the 1982 Convention, is dependent, like freedom of navigation, upon the

234

NAVIGATION, FREEDOM OF

high seas being "open to all States, whether coastal or landlocked", as the 1982 Convention sovereignty of any puts it, and not under the one State. In his famous work Mare Liberum, published in 1609, Grotius contended that "the sea is an element common to all, since it is so vast that no one could possibly take possession of it, since it is fitted for use by all". When Grotius expressed this view, freedom of navigation was far from being recognized as the right under international law which it is today. The principal purpose of the publication of Mare Liberum was to assert the right of the Dutch to trade with the Indies, despite opposition from the Portuguese, and possibly also to fish in the North Sea, despite opposition from King James VI of Scotland who had just become King James I of England as well. Gradually the claims of rulers of coastal States, which had been very extensive, gave way to the conception which prevailed toughly from the beginning of the 19th century to the middle of the 20th century. This was that the sea could be divided into two principal areas, namely the high seas where there was complete freedom of navigation, and territorial waters where foreign shipping enjoyed only the right of -+ innocent passage. There is now general agreement that a coastal State may not extend its -+ territorial sea more than 12 nautical miles from the coast (Art. 3 of the 1982 Convention). But the simple distinction which existed previously between territorial waters and high seas has been complicated by recent developments, in particular the emergence of "special zones". The existence of these zones may have a serious effect upon freedom of navigation. Art. 86 of the 1982 Convention states that the high seas are now restricted "to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an ar(-+ Internal Waters; chipelagic State" -+ Archipelagos). The most serious of these exclusions from the regime of the high seas is the -+ exclusive economic Lone. which may extend for as much as 200 nautical miles from the coast. Although in general Art. 58 of the 1982 Convention maintains high seas freedoms in the exclusive economic zone, States enjoying freedom of navigation in that zone are required to "comply with -CO

the laws and regulations adopted by the coastal State in accordance with the provisions of the Convention and other rules of international law". Moreover, under the 1958 Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol. 516, p.205), the -+ contiguous zone, in which the coastal State is entitled to exercise certain controls over foreign shipping, was not permitted to extend more than 12 miles from the coast and was described as "a zone of the high seas" contiguous to the territorial sea; now, that zone may extend 24 nautical miles from the coast and is no longer described as "a zone of the high seas" . Even in the high seas freedom of navigation is not unlimited. Both the 1958 Convention on the High Seas and the 1982 Convention stress that the freedoms of the sea shall be exercised with regard to "the interests of other States in their exercise of the freedom of the high seas". The implications of this are that ships must sail under a flag, which must be normally the flag of one State only (Art. 92; -+ Flags of Vessels) although without prejudice to the question of ships employed on the official service of the -+ United Nations, its Specialized Agencies or the -+ International Atomic Energy Organization, flying the flag of the organization (Art. 93). In addition, the flag State "shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag" (Art. 94); and all States shall require the masters of ships flying their flag, in so far as they can do so without serious danger to their own ships, crews and passengers, to render assistance to any person found at sea in danger of being lost (Art. 98). All flag States are required to take effective measures to prevent their ships being used for transport of slaves (Art. 99; -+ Slavery) and to cooperate in the repression of -+ piracy (Art. 1(0), and in the suppression of illicit traffic in narcotic drugs and psychotropic substances (Art. 108; -+ Drug Control, International) and of unauthorized broadcasting (Art. 109; -+ Pirate Broadcasting). Generally speaking. recent developments in the law of the sea. whether in the evolution of customary rules or in the provisions of the 1982 Convention, aim at securing law and order in the sea whilst securing the best possible compromise between the various interests involved.

235

NAVIGATION ON RIVERS AND CANALS

2. Rivers and Canals

dom of navigation" secured by them is greater than the freedom of navigation which exists on the

Freedom of navigation is much more restricted in rivers and in - canals because these fall within the - territorial sovereignty of one or more States. However, some waterways are considered to be of such importance that they have been opened to international navigation by treaty to a certain extent. For example, the - Vienna Congress proclaimed in Arts. 108 to 117 of its Final Act of 1815, the principle of free navigation on the - international rivers of Europe, although that principle has never been fully recognized in practice. The Convention of Constantinople of October 29, 1888 (Martens NRG2, Vol. 15 (1890) p. 557) asserted that the - Suez Canal should "always be free and open, in time of war as in time of peace to every vessel of commerce or of war without distinction of flag" , and similar though not identical provisions were inserted in the HayPauncefote Treaty of November 18, 1901 (32 Stat. 1903; T.S. No. 401) and in the Hay Varilla Treaty of November 18, 1903 (33 Stat. 2234; T.S. No. 431) relating to the - Panama Canal. In the Treaty concerning the Permanent Neutrality and Operation of the Panama Canal concluded between the United States and Panama of September 7, 1977 (ILM, Vol. 16 (1977) p. 1040), which is designed to establish the international status of the Panama Canal after Panama becomes fully responsible for the operation of the Canal on January 1, 2000, Panama has pledged to ensure that in time of peace and war the Canal shall remain open to peaceful transit by the vessels of all nations on terms of entire equality. In the case of - The Wimbledon which concerned the - Kiel Canal, the - Permanent Court of International Justice said of the Suez and Panama rules that, although they were "not the same in both cases", they were "of equal importance in that they demonstrate that the use of the great international waterways, whether by belligerent men-of-war, or by belligerent or neutral merchant ships carrying - contraband, is not regarded as incompatible with the neutrality of the riparian sovereign". The freedom of navigation that exists in international canals should not, however, be exaggerated. Whereas casual reading of the treaties relating to the Suez and Panama canals might give the impression that the "free-

high seas, in so far as it appears to be protected against any belligerent action even in time of war, that is far from being the case in practice. Although in theory both the Suez and Panama Canals are neutral, in fact they have been militarily occupied and defended in time of war in individual States' own interests (see Siegfried, pp. 5 and 60). Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Mare Liberum sive de iure quod Batavis competit ad indicana commercia dissertatio (1609). F. PERELS, Das internationale offentliche Seerecht der Gegenwart (2 vols. 1903). TW. FULTON, The Sovereignty of the Sea (1911). G. GIDEL, Le droit international public de la mer (3 vols. 1932-1934). A. SIEGFRIED, Les canaux internationaux et les grandes routes maritimes mondiales, RdC, Vol. 14 (1949 I) 5-72. M.S. McDOUGAL and W.T. BURKE, The Public Order of the Oceans, A Contemporary International Law of the Sea (1962). R.R. BAXTER, The Law of International Waterways (1964). c.r, COLOMBOS, International Law of the Sea (6th ed. 1967). D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982); Vol. 2 (1984). H. GROTIUS,

D.H.N. JOHNSON

NAVIGATION ON RIVERS AND CANALS 1. Notion

For the purpose of international regulations navigation has always been regarded as the exercise of the shipping trade. Therefore, the facilities stipulated in international treaties in

236

NAVIGATION ON RIVERS AND CANALS

respect of river navigation operate mainly in favour of merchant vessels (~ Merchant Ships). Vessels exercising any kind of public authority are excluded from the facilities even in the absence of express stipulations to that effect (~ State Ships). The same applies to fishing craft (~ Fishing Boats). A distinction must be made between freedom of transit and freedom of navigation. The former provides for the possibility of using the waterway, but excludes voluntary calls not motivated by the technical conditions of passage Freedom of navigation also extends to ~ ports and implies, in so far as the usual operations of the shipping companies are concerned, freedom of commerce. As regards the field of application of the regime of river navigation with respect to that of maritime navigation, calls at inland seaports, situated in the territory of the State which holds ~ sovereignty over the mouth of the river concerned, by vessels coming from or going to the ~ high seas have nothing in common with river navigation. The understanding of the term "inland seaports" is decisive for the delimitation of the respective fields of application of the regime of maritime navigation and that of river navigation. According to Art. 1 of the Statute of Geneva on the International Regime of Maritime Ports of December 9, 1923 (LNTS, Vol. 58, p.285): "All ports which are normally frequented by sea-going vessels and used for foreign trade shall be deemed to be maritime ports" (~ Geneva Convention and Statute on the International Regime of Maritime Ports).

2. Historical Evolution of Legal Rules In Roman law, watercourses of any importance did not lend themselves to private appropriation; they belonged to the category of public property (Dig., lib. I, tit. VII, para. IV, 1). Consequently, the use of riverbanks and even of a river itself, including navigation on it, could not be denied to anyone (Dig., lib. XLIII, tit. I, para. II, 1; tit. VIII, para. 1; tit. XIV, para. 1). The feudal conception was based on the idea that a river was the property of the lord, and later of the king, through whose land it flowed. Accordingly, territorial sovereigns regulated in any arbitrary way they wished the exercise of navigation on those waters (~ Territorial Sovereignty). Often the right of an upper riparian to access to the sea was

denied. On the other hand the right of staple, the accumulation of tolls and transit dues, collected solely on the basis of the simple fact of navigation, independently from customs duties, affected the profitability of the shipping trade, and even made it impossible from an economic point of view. Grotius deduced from ~ natural law that the sovereignty of riparians over their rivers was restricted by the right of ~ innocent passage for foreign merchant vessels (De iure belli ac pacis (1625), Book II, Chap. II, sec. XlII, para. 1). The conception of a law of nature superior to positive law, embraced by the philosophy of the Age of Enlightenment, greatly influenced the ideology of the French Revolution. By the Decree of November 16, 1792, the revolutionary government declared the abolition of all impediments to free navigation on the ~ ScheIdt River and the Meuse River without respect to treaty or acquired rights. The Final Act of the ~ Vienna Congress of June 9, 1815, adopted the idea of free navigation on rivers traversing or separating two or more States, the basic rules of which were incorporated in its Arts. 108 to 117 (Martens NR, Vol. 2, p. 379; ~ International Rivers).

3. Beneficiaries of the Right of Navigation The Act of Vienna granted the right of free navigation only to nationals of riparian States. The category of beneficiaries was gradually extended to the vessels of all nations. This point of view triumphed in Art. 16 of the ~ Paris Peace Treaty (1856), which stated that "the flags of all nations shall be treated on the footing of perfect equality" in all matters relating to the navigation of the ~ Danube River. In contrast, the Rhine Convention signed at Mannheim on October 17, 1868 (Martens NRG, Vol. 20, p. 296), although declaring the navigation of the ~ Rhine River free to ships of all nations, established two distinct regimes, one for vessels flying the flag of one of the riparian States and another for other vessels (~ Flags of Vessels). Arts. 332 to 337 and 340 to 362 of the 1919 ~ Versailles Peacy Treaty and the corresponding articles of the other ~ peace treaties after World War I abolished any discrimination between riparians and non-riparians in matters concerning merchant shipping on the waterways falling within their scope, i.e. the navigable river systems of the

237

NAVIGATION ON RIVERS AND CANALS

- Elbe, the Oder, the Danube, the Rhine, the Niemen and the - Moselle. Art. 3 of the Barcelona Statute on the Regime of Navigable Waterways of International Concern of April 20, 1921 provided free navigation for vessels of the contracting States only (LNTS, Vol. 7, p. 35; - Barcelona Conference (1921)). This provision did not affect the application of the 1919/1920 peace treaties. The disintegration of the political system of Versailles and World War II led to the cessation of the application of the navigation regime established by the peace treaties of 1919/1920 on the whole range of the river area subject to their jurisdiction. After World War II, the Danube Convention of Belgrade of August 18, 1948 (UNTS, Vol. 33, p. 183), in which riparian States are parties with the exception of the Federal Republic of Germany, makes provisions only for frontier-crossing navigation. According to Additional Protocol No. 2 to the Convention of Mannheim of October 17, 1979 (German Bundesgesetzblatt, 1980 II, p. 870), only vessels entitled to fly the flag of one of the contracting States (riparians as well as Belgium and the United Kingdom), to which are assimilated the other member States of the - European Economic Community, are authorized to carry out transport between two ports on waterways falling within the territorial scope of the Convention. These developments lead to the conclusion that freedom of navigation on European international rivers has acquired the value of a regional customary rule only in the relations between riparian States, while in relations with non-riparian States this freedom can result only from a contractual obligation. The territorial ambit of the rules on free navigation of pluriterritorial rivers, laid down in an act of a European congress, could only affect Europe (- Regional International Law). The first Pan-American Congress in Washington in 1889 considered it desirable to apply on the American continents the principle of free navigation of the riparians of the same watercourse. However, the participants intended to maintain the discretionary power of the riparians in respect of the application of this principle. Up to the present no right of navigation is known to have been exercised in a foreign territory on the American continents except by means of a treaty.

Similarly, in Africa and in Asia, States only open their rivers to foreign vessels on the basis of treaty provisions (see e.g. - Niger River Regime).

4. General Principles From the survey of the provisions of conventions on navigation of pluriterritorial rivers the following general principles can be inferred:

(a) Freedom of traffic Free movement of vessels in the directions, places, and at the moments required by their purpose, in the whole course and on all sections of the navigable waterway, is quite clearly a first condition of the regime of free navigation. Freedom of navigation also means freedom to transport goods and passengers (- Chinn Case; - Navigation, Freedom of). Vessels, passengers and goods in transit are exempt from all customs formalities during their passage on river sections forming frontiers, while on river sections within one State customs formalities imposed on goods are confined to placement under seal, under padlock, or under custody of customs officers placed on board. Freedom of navigation is not limited to the route, but also extends to ports (- Jurisdiction of the European Commission of the Danube (Advisory Opinion), PCIJ, Series B, No. 14, p. 64). Freedom of call comprises access to ports, mooring, the use of equipment and machinery required for the operations necessary to traffic, such as loading, unloading, storage in bond and trans-shipment. Riparian States must facilitate such operations.

(b) Freedom to operate regular transport services The navigation acts concerning European rivers did not conceive the transport of passengers and goods by river as occasional and irregular operations, but as a regular business. In the terms of Art. 1, para. l(b) of the 1921 Barcelona Statute: "By commercial navigation is to be understood navigation which, in view of the economic conditions of the riparian countries, is commercial and normally practicable." According to the - Permanent Court of International Justice (PCIJ) in the Chinn Case: "freedom of navigation implies, as far as the business side of maritime or fluvial transport is concerned, freedom of commerce

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238

NAVIGATION ON RIVERS AND CANALS

also. But it does not follow that in all other respects freedom of navigation entails and presupposes freedom of commerce" (peU, Series AlB, No. 63, p. 83). Obviously, the freedom of commerce comprised in freedom of navigation is not identical with freedom of commerce in the proper sense, as it is used and understood in - commercial treaties. But freedom of commerce in the former case, although narrower in scope, exists as an integral part of freedom of navigation on international waterways irrespective of commercial treaties. The free exercise of the river transport business includes the commercial activities of river shipping companies. According to present usage and long practice, shipping companies have been allowed to establish agencies and own warehouses in river ports•. However, on the basis of special provisions in navigation acts concerning international rivers, a riparian State has the right to reserve to vessels flying its own flag the transport of passengers and goods.. between two ports which are under its sovereignty. The reservation of local transport is the general rule in respect of American pluriterritorial rivers. Art. 5 of the 1921 Statute of Barcelona allows the reservation of local transport where there are no treaty or other obligations to the contrary ( Cabotage).

(e) Gratuitous use of waterways No tax or duty, whatever its name, may be levied on vessels or their cargoes solely because of their use of a pluriterritorial waterway. One or more riparian States may be allowed to levy dues, taxes or charges on the basis of express treaty provisions to that effect. A navigation act may impose such burdens to cover the costs of hydraulic engineering works intended to create or improve the navigability of the waterway, as well as supplementary costs of maintenance entailed by such works and the cost of operating the works in question, and to cover the expenses of port equipment and machinery. However, in no case may charges burdening the navigation of international waterways be used as public revenue; they must be a quid pro quo for services rendered.

(d) Equality of treatment Treatment on a footing of equality of the nationals, property and flags of riparians and other

beneficiaries of the right of navigation assimilated to them in the exercise of the shipping trade is a direct consequence of the application of the principle of freedom of navigation. All measures and practices which, when applied, are likely to result in different conditions appertaining to the exercise of shipping trade by various beneficiaries of the right of navigation are inconsistent with the notion of equality of treatment. The application of the principle of equality of treatment to inland navigation also requires equality as to advantages and facilities between transport on international waterway and transport involving other routes, to ensure that import, export and transit of goods shall be carried out under the same conditions. The artificial shifting of traffic by means of advantages granted to users of another mode of transport also constitutes a discrimination to the prejudice of transport by river.

(e) Freedom of affreightment In the liberal view and in the sense in which the 1868 Rhine navigation convention and the other navigation conventions of that age were applied from the outset, the freedom of affreightment means the following: Shippers have the freedom to choose the carrier to whom they wish to entrust the transport, while the carrier is equally free to accept or refuse commissions of transport. Both shipper and carrier have complete freedom to fix by mutual consent the freight rates as well as to stipulate other conditions of transport. The economic crisis of the 19308caused several States to intervene in river affreightment. State intervention usually manifested itself in equitable allocation of freight by rotation (proportional cargo sharing) either by trade organizations or by State organs, and in determination of the essential content of transport contracts, including freight rates. The excess carrying capacity in some Western European countries after World War II necessitated similar regulations. However, application of national laws to sections of international waterways should remain within the scope of an international regime. For example, the 1956 French Code of Navigable Waterways, therefore, explicitly states that the navigation of the Rhine is subject to the provisions of international conventions. In Belgium,Belgian and foreign inland craft can participate without restriction in frontier-crossing traffic from and to

NAVIGATION ON RIVERS AND CANALS

Belgian ports. At present the Rhine-carriers conclude on a voluntary basis agreements (conventions or pools) on allocation of freight and on fixation of freight rates. Since World War II, monopolist State enterprises belonging to collectivist systems have operated on the Danube. The freedom of affreightment, nevertheless, does not readily go hand in hand with planned economies. (f) Obligations imposed on riparians

Riparians of European international rivers are bound under international law, through the extent of their own territory and at their own expense, to carry out in the bed and on the banks of the watercourse such hydrotechnic works as are necessary to maintain good conditions of navigation (1815 Act of Vienna, Art. 113). Today, in its commonly accepted meaning, "maintenance of good conditions of navigability" includes: drawing up and keeping up-to-date the hydrographic chart of the river; works such as are made necessary by natural alteration of the river channel; constant dredging in order to maintain the required depth and width of the channel; delimitation of the channel by buoys and sufficient lighting at night; and removal of obstacles to navigation. Riparians of an international watercourse are not obliged, in the absence of a treaty provision or an agreement to this effect, to undertake works of improvement or rectification of the course or engineering works to ensure that the river shall meet the requirements of the increasing traffic more satisfactorily. Para. 3 of Art. 10 of the Statute of Barcelona established (l conditional obligation to this effect; nevertheless, each riparian State may refuse to carry out the necessary works of improvement on "legitimate grounds of opposition". In the event of agreement to such works, the principle of economic interest in the works overrules the principle of territoriality. This implies that riparian States regulate by common consent the modes of execution of such works of improvement as well as the sharing of costs in proportion to the advantages which the new constructions will offer to their economies. As a negative obligation, riparians of an international waterway must, in order to avoid obstructions to the existing navigability by new bridges, constructions, etc., refrain from the execution of works of improvement in the bed or on the banks of the waterway

239

and from other uses or measures which may be detrimental to navigability or which may reduce the navigation facilities (-+ Water, International Regulation of the Use of).

5. Navigation on National Rivers National or internal rivers are those whose navigable course traverses only one State. In the absence of a treaty any State is at liberty to grant or to refuse foreigners the right to exercise shipping trade on rivers exclusively under its sovereignty. The 1921 Barcelona Conference rejected the proposition to extend the freedom of navigation for internal waterways (-+ Internal Waters). Although the optional Additional Protocol to the Statute stipulates the equality of vessels flying the flags of the signatories on their internal waterways, it is of academic interest only since this Protocol has been signed by only a small number of States. Since the middle of the 19th century many States have agreed in bilateral commercial and navigation treaties to grant each other's nationals, on the basis of -+ reciprocity, facilities for the exercise of shipping trade on their internal waterways (-+ Treaties of Friendship, Commerce and Navigation). The use of bilateral agreements enables States to settle questions within the general context of their mutual relations, whereas the more rigid structure of multilateral treaties, in which identical obligations must be undertaken towards all contracting parties, leaves no room for individual assessment of the proportion between concession and compensation. In addition, bilateral agreements are always concluded for a limited time which seems to be more consistent with the principle of sovereignty than the permanent character of the obligations arising from multilateral navigation conventions. Opening internal waterways to foreign vessels does not, as a rule, entail any obligation on the territorial sovereign as to the upkeep of the navigable channel. Some recent bilateral treaties dissociate freedom of movement of vessels from freedom of transport of goods. Under their terms the vessels of one contracting party enjoy complete freedom of movement without cargo on internal navigable waterways of the other. On the other hand, their right to carry out transport is limited to certain fixed relations (see e.g. Convention between the

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Federal Republic of Germany and Poland of February 5, 1971, Bundesanzeiger 1971, No. 34). 6. Navigation on Artificial Waterways The idea of free river navigation was originally conceived only with regard to naturally navigable waterways. Treaty provisions on the navigation of certain artificial waterways were associated for a long time with territorial changes. Such provisions arose when the new frontier line cut across ~ canals which necessitated the regulation of their navigation (e.g. Art. 10 of the 1839 Treaty of Separation between Belgium and Holland, Martens NR, Vol. 16, part 2, p. 773). Later, many bilateral agreements which stipulate the opening on the basis of reciprocity of internal navigable waterways in general, or of some of them, to the vessels of the other contracting party, extended their field of application to artificial navigable waterways as well. Concerning canals which are situated exclusivelyon the territory of a single State, Art. 331, para. 1 of the Versailles Peace Treaty (1919) stipulates that the internationalized river systems include "lateral canals and channels constructed either to duplicate or to improve naturally navigable sections of the specified river systems, or to connect two naturally navigable sections of the same river". In accordance with this provision, and on the basis of Art. 358 of the Treaty, the Rhine navigation regime is applicable to the Great Canal of Alsace, situated on French territory. The 1921 Barcelona Conference retained the idea of assimilating lateral canals constructed to remedy imperfections in naturally navigable waterways to such waterways (Art. 3, para. l(d) of the Statute), but rejected the idea of extending the regime governing the navigation of an international river to lateral canals designed to connect two naturally navigable sections. It seems that the admission of a foreign flag to the navigation of artificial waterways, with the above-mentioned exception, always takes place on the basis of treaty provisions. League of Nations, Barcelona Conference, Verbatim Records and Texts to the Convention on the Regime

of Navigable Waterways of International Concern (1921). Reglement pour la navigation des fteuves internationaux, AnnlDI, Vol. 38 (1934) 713-719.

Du regime conventionnel des fleuves internationaux (1879). E. CAR ATHEODORY, Das Stromgebietsrecht und die internationale FluBschiffahrt, in: E. von Holtzendorff (ed.), Handbuch des Volkerrechts, Vol. 2 (1887) 277-406. A. LEDERLE, Das Recht der intcrnationalen Gewasser (19201. w. VAN EYSINGA, Les fleuves et canaux internationaux (19241. F. CORTHESY, Etude de la Convention de Barcelone sur Ie regime des voies navigables d'interet international (192TI. B. WINIARSKI, Principes generaux du droit fluvial international, RdC, Vol. 45 (1933) 79-217. G. GlDEl, Le regime des fleuves internationaux. Course of instruction at the Institute for Advanced International Studies, Paris, in the Academic Year 1947/1948, Manifolded. A. PATRY, Le regime des cours d'eau internationaux, CanYIL, Vol. 1 (1963) 172-212. R.R. BAXTER, The Law of International Waterways (1964). B. VITANYI, The International Regime of River Navigation (1979). E. ENGEL.HARDT,

BELA VITANYI

NUCLEAR SHIPS 1. Notion A "nuclear ship" (Reaktorschiff, Atomschiff; navire nucleairei is any ship (~ Ships, Nationality and Status) which is equipped with one or more nuclear power plants. It is not necessary that these plants be used for the propulsion of the ship; they may produce energy entirely or partially, continuously or temporarily for purposes other than the propulsion of the ship. "Nuclear power plant" means a power plant which contains a nuclear reactor, i.e. an installation containing nuclear fuel in such an arrangement that a self-sustaining chain-process of nuclear fission can occur in it without an additional source of neutrons. Nuclear fuel is any material which is capable of producing energy by such a self-sustaining chain-process, especially uranium and plutonium in the form of metal, an alloy or compound. A nuclear ship loses its character as such at the moment when the nuclear power plant is taken out (decommissioning); it does not lose that character if the reactor is temporarily not in operation. This definition means that a vessel is not a "nuclear ship" if it is

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NUCLEAR SHIPS

equipped only with other radiological apparatus, e.g. particle accelerators, X-ray installations or other radiation sources (sealed or unsealed radioactive substances) or if it transports radioactive substances, nuclear installations or parts thereof, or nuclear weapons (~ Nuclear Warfare and Weapons). A "nuclear ship" may be a civil (commercial) ship (~ Nuclear Energy, Peaceful Uses; ~ Merchant Ships) or a ship for official or military purpose (~ State Ships; ~ Warships); it may be operated by an individual or a partnership, a public or private body including a State and its constituent subdivisions, or by an international organization. Nuclear ships can be seagoing ships or ships designed for transport purposes in inland waterways.

2. Development of Nuclear Navigation Nuclear navigation began on September 30, 1954, when the United States put into service the nuclear propelled submarine Nautilus. Since then the United States, the Soviet Union, the United Kingdom and France have equipped parts of their warships with nuclear installations. Although precise information is not available, they total more than 300 nuclear warships. The United States operates nuclear propelled aircraft carriers, cruisers, destroyers and about 120 ~ submarines, the Soviet Navy about 180 nuclear submarines and one nuclear cruiser (Kirov). The United Kingdom possesses more than 10 submarines propelled by nuclear reactors, and France commissioned its sixth nuclear submarine on April 1, 1985. Whereas nuclear propulsion in connection with warships of the ~ Great Powers, and certainly for submarines, has become well established, this has not been the case so far with merchant ships. The first nuclear ship for non-military purposes but operated by the State was the ice-breaker Lenin, 'Which was commissioned by the Soviet Union in 1959. The Soviet Union possesses three other nuclear ice-breakers (Arktika, renamed: Leonid Brezhnev; Sibir, and Rossia, launched in 1983). Until now nuclear merchant ships have been operated as experimental vessels only by the United States (NS Savannah) and the Federal Republic of Germany (NS Otto Hahn). NS Savannah started in 1962 as a combined passenger/cargo-ship, NS Otto Hahn in 1968 as a research- and cargo-ship (especially for the trans-

port of ore and other bulk goods). Both nuclear merchant ships have been decommissioned after many successful international voyages without any serious technical difficulties or nuclear or radiological incidents (Savannah: 1970; Otto Hahn: 1979). Less successful was the start of the first Japanese nuclear merchant ship Mutsu. Its trialvoyage in August 1974 had to be stopped because of radioactive leakages. A nuclear-powered container-ship (the Sevmorpu) was launched in the Soviet Union in February 1986.

3. Nuclear Ships in International Law (a) Admission of nuclear navigation To nuclear ships generally all the rules of international law apply, and especially those of the ~ law of the sea and of ~ admiralty law, except as modified by special nuclear ship regulations. Such special rules were necessary because nuclear navigation involves specific risks compared with conventional navigation: the risk of criticality and the risk of radiation. These two risks pertaining to all nuclear installations are increased in the case of movable installations like nuclear ships, in particular by the risk of collision (~ Collisions at Sea). Nevertheless, nuclear navigation has not been considered as an infringement of international law, provided that the State which operates or authorizes the operation of a nuclear ship under its flag guarantees by its national law the execution of the international arrangements to avoid nuclear damage and to limit the nuclear and radiological risks as far as possible.

(b) International legal sources The following multilateral and bilateral agreements or recommendations of international organizations on nuclear ships have been agreed or published for the purpose of avoiding nuclear-risks or compensating potential nuclear damage. - International Convention for the Safety of Life at Sea, June 17, 1960 (SOLAS Convention, Chapter VIII and Annex C: Recommendations Applicable to Nuclear Ships; UNTS, Vol. 536, p.27). These regulations and recommendations have been replaced by the SOLAS Convention of November 1, 1974 (ILM, Vol. 14 (1975) p. 959). - Brussels Convention on the Liability of Operators of Nuclear Ships and Additional Pro-

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tocol of May 25, 1962 (IAEA Legal Series No.4 (1966) p. 36). - Recommendations of the ~ International Atomic Energy Agency and of the Inter-Governmental Maritime Consultative Organization (now ~ International Maritime Organization): Safety Considerations in the Use of Ports and Approaches by Nuclear Merchant Ships (IAEA Safety Series No. 27 (1968». - United Nations Convention on the Law of the Sea of December 10, 1<;82 (UN Doc. AI CONF.62/122 with Corr.). - International Conventions on the Protection of the Marine Environment, e.g. London Convention of December 29, 1972 (lLM, yol. 11 (1972) p. 1294) and MARPOL Convention of November 2, 1973 (ILM, Vol. 12 ([973) p. 1319) with Protocol of February 17, 1978 (British Command Papers, Cmnd. 7347 Misc. 27 (1978». - Bilateral Agreements oetween the United States and 14 other States I altogether 19 agreements, e.g. United States and Federal Republic of Germany, November 29, 1962, UNTS, Vol. 460, p. 169) and of the Federal Republic of Germany with 25 other States (e.g. Federal Republic of Germany and the Netherlands, October 28, 1968, UNTS, Vol. 781, p. 221) on HIe Use of the Foreign Internal Waters and the Visit of Foreign Ports by NS Savannah and NS Otto Hahn (all these treaties have become obsolete by the decommissioning of both nuclear ships).

(c) Reactor safety and rcdiation protection As an important requirement for a harmless nuclear navigation, it is necessary to warrant the safety of the nuclear installation, the protection of the crew, of passengers, and of the general public from the harmful effects cf ionizing radiation, including the protection of the marine environment (~ Marine Environment, Protection and Preservation). The SOLAS Conventions of 1960 and 1974 merely contain ~eneral principles on reactor safety and radiation protection for nuclear ships (excluding warships) without laying down detailed safety standards. Nuclear ships have to be licensed by the gove rnmer t d the country in which the ship is registered I, design, construction and standards of inspec tion and assembly of the reactor installation must satisfy the requirements of that State. The radiation protection

measures must ensure that there are no unreasonable radiation or other nuclear hazards at sea or in ports to the crew, passengers or public or to waterways, food or water resources. These measures must comply with the accepted international standards (of the International Commission on Radiological Protection and of the IAEA or the ~ European Atomic Energy Community). A safety assessment is prescribed to permit the evaluation of the nuclear power plant, the safety of the ship and the radiation protection conditions. Nuclear passenger ship safety certificates and nuclear cargo ship safety certificates must state that the nuclear ship complied with all requirements of the SOLAS Convention and conformed to the safety assessment approved for the ship. A licensing procedure for nuclear ships by an international agency has not been introduced so far. For the protection of the marine environment (~ Environment, International Protection), nuclear ships must observe the prohibition against the disposal of high-level radioactive waste and the regulations on the disposal of medium- and low-level waste (~ Waste Disposal). As nuclear ships are subject to the SOLAS Convention of 1974, the Memorandum of Understanding on Port State Control of January 26, 1982 (ILM, Vol. 21 (1982) p. 1) is applicable.

(d) Nuclear navigation on the high seas , There are no special rules applicable to nuclear navigation on the ~ high seas in the Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) and the 1982 Law of the Sea Convention. The general requirements of these Conventions, especially with respect to the freedom of navigation (~ Navigation, Freedom of), the immunity of warships and State ships (~ State Immunity) and the safety of sea traffic are applicable to nuclear ships. Art. 93 of the 1982 Law of the Sea Convention contains a reservation for potential nuclear ships of the IAEA and other international organizations.

(e) Innocent Passage Hitherto it was an open question whether the passage of nuclear ships through the ~ territorial sea had the character of an innocent passage (~ Innocent Passage, Transit Passage). Some States did not accept that right, for instance Art.

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NUCLEAR SHIPS

70 of the Spanish Nuclear Law of 1964: "The passage through territorial waters of nuclear ships and the flight over national territory of nuclear aircraft shall be considered exceptions to the right of innocent passage." Whereas Art. 14 of the Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205) did not mention the innocent passage of nuclear ships, Art. 23 of the 1982 Law of the Sea Convention now lays down that: "[fJoreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising the right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships by international agreements." These ships must moreover exercise their right of innocent passage by using those sea lanes prescribed by the coastal State (Art. 22(2». These particular rules of the 1982 Law of the Sea Convention also apply to the innocent passage of nuclear ships through ~ straits for international navigation and through archipelagic waters (Arts. 45, 52, 53; ~ Archipelagos). Nuclear propelled submarines are required like conventional submarines to navigate on the surface and to show their flag during passage through coastal waters (Art. 20). (f) Visit of foreign ports and internal waters

It is incontestable that the calling at foreign ports and the entry into ~ internal waters by nuclear ships is dependent on the approval of the coastal State. A general right of the State which operates a nuclear ship or has registered such a ship against the coastal State does not result from the ~ Geneva Convention and Statute on the International Regime of Maritime Ports of December 9, 1923 (LNTS, Vol. 58 (1927) p.286). Art. 2 of the Statute contains the principle of equality of treatment on the basis of ~ reciprocity, but would only be applicable where the coastal State and registration State both operated nuclear ships. The Geneva Convention of 1923 is not applicable to warships (Art. 13 ofthe Statute). It is the practice of international law that the flag State applies for special approval by the coastal State for each visit of the ports and internal waters by its nuclear ships. Concerning Savannah and Otto

~

Hahn such approvals were given on the basis of bilateral agreements and executive arrangements. Occasionally the approval was given by the coastal State without the conclusion of a formal agreement. Usually the bilateral agreements deal with questions of reactor safety, radiation protection and the civil liability of the operator for nuclear damage by way of incorporating the principles of the Brussels Nuclear Ship Liability Convention of 1962. To date, the right of a nuclear ship to enter a harbour of refuge in the case of distress (~ Ships in Distress) has not been regulated by special treaty provisions. Generally, nuclear ships have the same right as conventional ships in such cases of emergency. The coastal State may, however, refuse the entry of a nuclear ship in distress if, considering all circumstances, there exists an actual risk of criticality, radiation or radioactive contamination of the population of the coastal State, of the installations of the port and of the environment. (g) Liability for nuclear damage

On May 25, 1962, the 11th Session of the Diplomatic Conference on Maritime Law approved the text of a Convention on the Liability of the Operators of Nuclear Ships by a large majority; the United States, the Soviet Union and the East European countries, however, voted against it because the convention is also applicable to warships. The Brussels Convention has not as yet come into force; the Convention will come into force if one contracting State which operates or has licensed a nuclear ship and one other State ratifies it. Until now 15 States have signed the Convention, 6 States (without any licensing State) have ratified it. The Convention has as its objectives the facilitating of nuclear navigation and ensuring of financial compensation in the case of nuclear damage caused by the operation of nuclear ships. It contains, like the Vienna Convention and the Paris Convention on nuclear installations on land, the following principles: strict liability, channelling of the liability to the operator of the nuclear ship, limitation of liability for each nuclear incident (to 1500 million gold francs), financial security, the obligation of the contracting States that nuclear ships flying their flags must not operate without a

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NUCLEAR SHIPS

licence. The Brussels Convention on Civil Liability does not affect the international responsibility between States (~ Responsibility of States: General Principles; ~ Responsibility of States: Fault and Strict Liability). and P GREULICH, International Maritime Committee, XlVth Conference Rijeka (1959). Royaume de Belgique, Minis tere des Affaires Etrangeres et de Commerce E cterieur, Conference Diplomatique de Droit Maritime. Onzieme session Bruxelles (1961). Royaume de Belgique, Minis tere des Affaires Etrangeres et de Commerce E cterieur, Conference Diplomatique de Droit Maritime, Onzieme session (2e phase) Bruxellcs (1962). W. BISCHOF. J. GOLDSCHMIDT

and P. SIEVEKING, Rechtsprobleme im Zusammenhang mit dem Betriebe von Atomschiffen, Monatsschrift fur Deutsches Rt~cht, Vol. 15 (1961) 274-280. International Atomic Energy Agency (ed.), Nuclear Ship Propulsion, Proceedings Series (1961). J.M. BROWN, Nuclear Ship Savannah and the Law, Atomic Energy Law Journal, Vol. 4 (1962) 225-266. H. F1SCHERHOF, Rechtsfragen der Atomschiffahrt, Atomwirtschaft, Vol. 8 (1963) 156-1W. P. KONZ, The 1962 Brussels Convention on the Liability of Operators of Nuclear Ships, AJIL, Vol. 57 (1963) 100-111. R. KOVAR, Les accords conclus au sujet du "Savannah" et la responsabilite civile des exploitantes de navires nucleaires, AFDI, Vol. 11 (196: i ) 783-809. F. CARBONE, Navires nucleaires, lois nationales et droit europeen, Revue trimcstrielle de droit europeen, Vol. 4 (1968) 332-349. w. BOULANGER, International Conventions and Agreements on Nuclear Ships, in:. Jnternational Atomic Energy Agency (ed.), Nuclear Law for a Developing World, Legal Series No.5 (196}) 175-180. N. PELZER, Die friedliche Verwendung von Kernenergie und das See-Volkerrecht, JIR, Vol. 15 (1970) 484-513. w. BISCHOF, Statutory Provisions for Nuclear-Propelled Ships. A Comparative Review 0' National Legislation at Present in Force, in: International Atomic Energy Agency et al. (eds.), Proceedings of the Symposium on Nuclear Ships, Vol. 2 (1971) 987-1004. International Atomic Energy Agency et al. (eds.), Proceedings of the Symposium on Nuclear Ships, 2 vols. (1971). c. LEGENDRE, Les navires a reacieurs nucleaires et Ie droit maritime, Le Droit Maritime Francais, Vol. 23 (1971) 643-649. N. PELZER, Legal Problems of the Adoption of the Brussels Convention on the Liaoility of Operators of Nuclear Ships of 25th May J962 nto German Law, in: International Atomic Energy Agency et al. (eds.), Proceedings of the Symposium en Nuclear Ships, Vol. 2 (1971) 937-946. E. VON OEM HAGEN

and G. ZIEGER, Die volkerrechtliche Stellung von Reaktorschiffen in fremden Territorial- und Eigengewassern, in: International Atomic Energy Agency et al. (eds.), Proceedings of the Symposium on Nuclear Ships. Vol. 2 (1971) 971-9811. w. BOULANGER, Basic Features of Bilateral Agreements Regulating Visits of Nuclear Ships, in: International Atomic Energy Agency (ed.), Experience and Trends in Nuclear Law, Legal Series No.8 (1972) 125-132. w. BOULA'IGER, Legal Arrangements for Visits of Nuclear Ships, in: International Atomic Energy Agency (ed.), Experience and Trends in Nuclear Law, Legal Series No.8 (1972) 115-119. P. STROHL. Basic Features of National Legislation Applicable to Nuclear Ships, in: International Atomic Energy Agency (ed.), Experience and Trends in Nuclear Law, Legal Series No.8 (1972) 121-123. A. DE LOS SANTOS, Nuevos aspectos del derecho internacional maritimo la regulacion de la navegacion nuclear, .n: Association internationale du droit nucleaire/ International Nuclear Law Association (ed.), Nuclear Inter Jura '73, Dokumentation (1973) 279287. R.G. JEWLETT and F. DUNCAN, Nuclear Navy 1946-1962 (1974). N. PELZER, Aktuelle internationalrechtliche Probleme der friedlichen Reaktorschiffahrt, in: R. Bernhardt and \\. Rudolf (eds.), Die Schiffahrtsfreiheit im gegenwiirtigen Volkerrecht, Deutsche Gesellschaft fur Volkerrecht , Vol. 15 (1975) 321-338. D. RAUSCHNING, Die Reaktorschiffahrt im Lichte der Entwurfe der Dritten UN-Seerechtskonferenz zur Schiffahrtsfreiheit, JIR, Vol. 18 (1975) 283-299. H. BEEMELMANS, Internationalprivatrechtliche Fragen der Hartung fur Reaktorschiffe, Rabels Zeitschrift fur ausliindisches und internationales Privatrecht, Vol. 41 (1977) 1-38. A. BERNAERTS, Die Haftung der Inhaber deutscher Reaktorschiffe (1977). W. BOULANGER, Legal Aspects of Nuclear Ships. in: OECD Nuclear Energy Agency, International Atomic Energy Agency (ed.), Symposium on the Safety of Nuclear Ships. Proceedings (1977) 519-530. O. VON BUSEKIST, Third Party Liability Regimes for Nuclear Ships, in: OECD Nuclear Energy Agency, International Atomic Energy Agency (ed.), Symposium on the Safety of Nuclear Ships, Proceedings (1977) 533-541. OECD Nuclear Energy Agency, International Atomic Energy Agency (ed.), Symposium on the Safety of Nuclear Ships, Proceedings (1977). D. RAUSCrlNING, The Legal Position of Nuclear Ships According to the Drafts of the Third UN Conference on the Law of the Sea, in: OECD Nuclear Energy Agency, International Atomic Energy Agency (ed.). Symposium on the Safety of Nuclear Ships, Proceedings (1977) 505-515. N. PELZER, D. RAUSCHNING

WERNER BISCHOF

OIL POLLUTION CONVENTIONS

OFF-SHORE INSTALLATIONS see Artificial Islands and Installations

OIL POLLUTION CONVENTIONS A. Problems and Solutions The damage caused by oil pollution to the marine environment, to all forms of life at sea, and to coastal areas is well-known. Clean-up operations have caused tremendous costs and such pollution threatens irreversible damage. In the long run, the function of the oceans for the maintenance of the global ecosystem may be put into jeopardy by oil pollution. Oil pollution of the marine environment may result from the emissions of ships or fixed offshore drilling installations. Spills caused by accidents comprise one kind of oil pollution. In the case of ships, notably tankers, however, pollution may also arise from operational discharges. These become necessary because cargo residues must be removed from ships, at least from time to time, and because empty ships, in order to be seaworthy, must load ballast water which may be polluted by cargo residues and must be removed before the ship is reloaded. As to offshore drilling operations and transportation of oil from drilling installations through ~ pipelines, there is mainly the problem of accidental spills, but also that of the disposal of operational residues. These different kinds of pollution require different countermeasures. With regard to operational discharges, disposal on land may be an alternative to discharge at sea. There is not only an environmental, but also an economic interest to use methods of cargo residue removal which avoid discharge into the sea and allow recycling. As to spills, there are three main approaches to the problem: prevention, response and compensation. Spills may be prevented by appropriate construction of tankers or drilling equipment and other safety measures, in particular rules concerning handling and personnel qualifications. If a spill has occurred. measures must be taken to limit and repair the damage. Finally, the victims must be compensated for the losses sustained. B. Development of Legal Rules

The first specific legal rules addressing oil pollution questions were national laws or regula-

245

tions, adopted in the 1920s, restraining operational discharges under certain conditions. The tremendous growth of seaborne oil transportation has rendered international regulation indispensable. As ships on the ~ high seas are subject only to the jurisdiction of the flag State, although many other States are affected, there must be clear and stringent rules as to the duties of the flag State in order that other States and the global commons are protected (~ Flags of Vessels; ~ Jurisdiction of States; ~ Environment, International Protection). A harmonization of the measures to be taken is also necessary for the sake of undistorted competition in the shipping industry. The port States also have practical influence because they can impose certain requirements for ships calling at their ~ ports. International harmonization of these requirements is in the interest of the shipping industry. Despite this need for international regulation, treaty law on these questions has developed very slowly and to a great extent under the impact of disasters. Three levels concerning this development may be distinguished: (i) the relevant provisions of the general conventions on the ~ law of the sea, in particular the 1958 Geneva Conventions on the High Seas (April 29, 1958, UNTS, Vol. 450, p. 82) and the Continental Shelf (April 29, 1958, UNTS, Vol. 499, p. 311) and the 1982 United Nations Convention on the Law of the Sea (December 10, 1982, UN Doc. A/CONF. 62/122 with Corr.); (ii) specific universal conventions relating to marine pollution and oil pollution in particular, for which the Inter-Governmental Maritime Consultative Organization (IMCO), now the ~ International Maritime Organization (IMO), has served as a negotiating framework; and (iii) regional conventions on the protection of the marine environment and marine (oil) pollution in particular, the more recent treaty systems of this kind being developed under the Regional Seas Programme of the ~ United Nations Environment Programme (~ Marine Environment, Protection and Preservation), The latter two will be described in more detail below. After two abortive attempts in 1926 and 1934, the London Conference of 1954 was successful in adopting the International Convention for the Prevention of Pollution of the Sea by Oil on May 12,1954 (UNTS, Vol. 327, p. 3). This convention,

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concerned with operational discharges, was amended in 1962 (UNTS, Vol. 600, p. 332), 1969 (British Command Papers, Cmnd. 7094, Treaty Series, No. 21 (1978» and 1971 (British Command Papers, Cmnd:_~Q2Q,~MiscL 31.( 1972»). The - Torrey Canyon disaster prompted the adoption of two conventions in 1969, namely the International Convention Relating to the Intervention on the High Seas in.Cases of-Oil Pollution Casualties of N(}vember-Z9:T969 (tJNTS. Vol. 970, p. 212) and the International Convention on Civil Liability for Oil Pollution Damage of November 29, 1969 (UNTS, Vol. 973, p. 3). The latter convention was supplemented in 1971 by the International Convention on the Establishment cf an International Fund for Compensation for Oil Pollution Damage of December 18, 1971 (British Command Papers, Cmnd. 7383, Treaty Series, No. 95 (1978». The whole question of pollution caused by ships was dealt with more comprehensively by the International Convention for the Prevention of Pollution from Ships (MARPOL 1973), adopted in London on November 2, 1973 (ILM, Vol. 12, p. 1319) and amended by the Protocol of February 17, 1978 relating to this Convention (MARPOL 1978) (British Command Papers, Cmnd. 7347, Misc. 27 (1978». The Liability and Fund Convention were amended in 1976 (British Command Papers, Cmnd. 8238, Treaty Series, No. 26 (1981» and 1984 (Tractatenblad 1986, Nos. 69 and 70), Protocols also being added in 1984 (ILM, Vol. 23, p. 177, and ILM, Vol. 23, p. 195). It must be noted that it took some of these conventions an extremely long time to enter into force, e.g. ten years for MARPOL 1973. Of all the amendments to the Liability and Fund Conventions, only the 1976 Amendment to the Liability Convention was in force as of December 1987. The Liability and Fund Conventions are supplemented by two voluntary arrangements of the industry: the Tanker Owners Voluntary Agreement Concerning Liability for Oil Pollution of January 7,1969 (TOVALOP, ILM, Vol. 8, p. 497) and the Oil Companies Contract Regarding an Interim Supplement to Tanker Liability for Oil Pollution of January 1971 (CRISTAL, ILM, Vol. 19, p. 137). On the regional level, several international agreements deal with oil pollution. The earliest one, concerning oil spills, is the Agreement for

Cooperation in Dealing with Pollution of the North Sea by Oil of June 9,1969 (UNTS, Vol. 704, p. 3). ThIS agreement was followed by the Scandinavian Agreement concerning Co-Operation in Measures to deal with Pollution of the Sea by Oil of September 16, 1971 (UNTS, Vol. 822, p. 311) between Denmark, Finland, Norway and Sweden. The Convention on the Protection of the Environment of the Baltic Sea Area of March 22, 1974, in particular Annexes IV and VI (ILM, Vol. 13, p. 544, at pp. 572, 584), deals comprehensively with pollution from ships. The series of conventions adopted under the Regional Seas Programme follow essentially a uniform pattern. An umbrella or framework convention contains a general provision on cooperation relating to pollution from ships, pollution from exploration and exploitation of the - continental shelf and the - sea-bed, pollution emergencies, monitoring and liability (Mediterranean Sea, 1976 (ILM, Vol. 15, p. 285; _ Mediterranean Pollution Conventions); Kuwait, 1978 (ILM, Vol. 17, p. 5(1); West and Central Africa, 1981 (ILM, Vol. 20, p. 729, at p. 746); South East Pacific, 1981 (Burhenne, p. 981:84); Red Sea and Gulf of Aden, 1982 (Burhenne, p.982:13); Caribbean, 1983 (ILM, Vol. 22, p. 227 ) ; South Pacific, 1985 (ILM, Vol. 26, p.38». Details are left to additional protocols. For some of these conventions, a protocol relating to measures in case of pollution emergencies and accidents already exists (Mediterranean: Ruster and Simma, Vol. 19, p. 9506; Kuwait: Riister and Simma, Vol. 19, p. 9568; Burhenne, p. 978:32/1; West and Central Africa: Burhenne, p. 981:24/1; South East Pacific: Burhenne, p. 981:85/1; Red Sea: Burhenne, p.982:14/1; Caribbean: Burhenne, p. 983:24/1). As to offshore drilling installations, no treaty exists on the universal level; only a liability agreement has been concluded among major oil companies (Offshore Pollution Liability Agreement (OPOL), September 4, 1974 (Riister and Simma, Vol. 2, p. 772». Such installations are covered, however, by the regional conventions just described. In addition, there exists a regional Convention on Civil Liability for Oil Pollution Damage Resulting from Offshore Operations of December 13-17, 1976, between Belgium, Denmark, France, the Federal Republic of Germany,

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OIL POLLUTION CONVENTIONS

Ireland, the Netherlands, Norway, Sweden and the United Kingdom (Riister and Simma, Vol. 19, p. 9538; not yet in force as of December 1987). Some questions in respect of oil pollution are also solved bilaterally, in particular between the United States and Mexico.

C. Applicable Rules

1. Operational Discharges

The 1954 International Convention for the Prevention of Pollution of the Sea by Oil does not exclude operational discharges. It tries to keep them away from the coast by prohibiting discharges of crude and heavy oil in areas at a distance of less than 50 miles from land, with exceptions in both directions. These "prohibited zones" were extended by the amendments of 1962, 1969 and 1971 and further by MARPOL 1973, which provides for "Special A ' •• s with stricter protection and also covers more substances, The 1969 amendment contains for the first time a limitation of discharges per voyage, which was developed by MARPOL 1973. The 1954 Convention also imposes on States the duty to provide certain reception facilities for oily residues. This apparently was not effective. MARPOL 1973 contains more detailed provisions on reception facilities as does Annex IV to the 1974 Convention on the Baltic Sea, while further details are recommended in Resolution 2 adopted by the 1974 Helsinki Conference (Facilities for the Reception of Residues of Oil and Other Noxious Substances, Sewage and Garbage, Annex B to the Convention on the Protection of the Marine Environment of the Baltic Sea Area, March 22, 1974, ILM, Vol. 13, p. 544, at p. 586). There are a number of handling procedures and construction devices which reduce the need for operational discharges of oil: loading on top (LOT), whereby ballast water is separated from the oil and discharged in a relatively clean state, and the new cargo is the loaded "on top" of the remaining residues; clean ballast tanks (CBT), into which ballast water is put making sure that it does not mix with oil residues; segregated ballast tanks (SBT), to and from which ballast water is transferred by a separate pump system; crude oil washing (COW), whereby oil is used instead of

water to clean tanks, which has the advantage that solvent action of oil sprayed from high pressure jets is more effective and the whole residue more easy to recover and recycle. LOT, CBT and SBT address the problem of oil-polluted ballast water, COW that of polluted water used for tank cleaning purposes. MARPOL 1973 provides for LOT (Annex I, Regs. 15 and 9) and SBT for new tankers over 70 000 dwt. MARPOL 1978 goes further requiring CBT, SBT and COW in various combinations for various types of vessels, with certain exceptions. An important element to detect and deter unauthorized discharges are record-keeping provisions which already existed under the 1954 Convention and have since been extended (MARPOL 1973, Annex I, Reg. 16). 2. Oil Spills (a) Prevention through safc.'; requirements

Both under the International Convention for the Safety of Life at Sea of November 1, 1974 (UNTS, Vol. 1184, p. 2; ~ Maritime Safety Regulations) and MARPOL 1973, a number of measures have been adopted, to enhance tanker safety. These include measures relating to personnel (training, qualifications), equipment to avoid collisions and maintain steering capacity in emergency situations. protective location of segregated ballast tanks in order to avoid damage to oil tanks in case of collision or grounding and the so-called "Inert Gas System", whereby certain gases are infused into tanks in order to reduce their oxygen content and thus reduce the risk of explosion. (b) Response (i) Unilateral action

Traditionally, any enforcement action against a ship on the high seas is within the exclusive competence of the flag State. This legal situation was modified, in the wake of the Torrey Canyon disaster, by the 1969 Intervention Convention. Where serious oil pollution damage threatens the coast of a State, that State may take appropriate and proportionate action against a ship causing this pollution in order to prevent, mitigate or eliminate the danger to its coastline.

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(ii) Cooperative action Both the 1982 Law of the Sea Convention and regional conventions provide for cooperation in case of pollution emergencies. The relevant provisions include: monitoring; a duty to inform affected States and, where it exists, a competent international institution; a duty to take action, incumbant upon the State under whose jurisdiction the incident occurs; a duty to cooperate and to take joint action, including a duty to assist the victim.

(iii) Liability The 1969 Liability Convention provides for the classic elements of a regulation for hazardous activities: no-fault liability of the shipowner, but limited as to the amount, arid obligatory insurance. In addition, a fund financed through contributions by the oil industry is established under the 1971 Fund Convention which pays compensation in certain cases where no compensation can be obtained in accordance with the Liability Convention. There is also a ceiling for payments, but it is much higher than under the Liability Convention. The purpose of the 1984 amendments is to extend liability in various respects, in particular by raising the liability limits.

(c) Offshore installations The provision of the 1958 Convention on the Continental Shelf relating to t he protection of the marine environment against the dangers caused by oil drilling is very vague and general. Art. 208 of the 1982 Convention on the Law of the Sea is much more specific. MARPOL 1973 also covers drilling installations, but contains no specific rules for their safety equipment and the like. Some of the general provisions designed to prevent unauthorized discharges, in partie .ilar record-keeping requirements, are, however, applicable (Annex I, Reg. 21). Under the regional conventions, the 1974 Convention on the Baltic Sea also contains some general requirements with regard to record-keeping and prohibition of certain oil discharges (Annex IV, Reg. 4D) and discharge of certain types of garbage (Reg. 8C). Regional regulation in non-legal form has gone further: The 1984 Declaration of the First International Conference

on the Protection of the North Sea (Bulletin des Presse- und Informationsamtes der Bundesregierung 1984, p. 1171) provides that drilling platforms and pipelines must be operated using the best available technology in order to prevent oil pollution and pollution from drilling residues (drilling mud, drill cuttings), and for contingency plans for emergencies. notification procedures for incidents and strict national supervision.

(d) Enforcement Enforcement of the rules concerning oil pollution by ships is the primary responsibility of the flag Sta:e. It must repress violations by imposing appropriate sanctions (MARPOL 1973, Art. 4; 1982 Convention on the Law of the Sea, Art. 217). Then is, however, a right of inspection by the port State. This State, and other States as the case may be, shall inform the flag State of detected violations and furnish all evidence necessary to enable the flag State to institute proceedings against a violator (MARPOL 1973, Art. 6; 1982 Convention on the Law of the Sea, Arts. 218 and 219). Measures by the port State may, however, not cause undue delay of ships (MARPOL 1973, Art. 7). The role of the coastal State (i.e. the State in whose -+ territorial sea or -+ exclusive economic zone tankers are operating) is limited. As a rule, it is not entitled to stop a ship engaged in -+ innocent passage. It possesses, however, a limited right of inspection, investigation and action in case of violation of applicable international rules which occurred in the territorial waters or exclusive economic zone of that State (1982 Convention on the Law of the Sea, Art. 220). International Environmental Law, Multilateral Treaties (1974). B. RUSTER and B. SIMMA, International Protection of the Environment, Treaties and Related Documents, 30 vols. 11975-1982).

W.E. BURHENNE,

La pollution des mers au regard du droit international, in: A.C. Kiss (ed.), The Protection of the Environment and International Law, Colloque 1973, August 14-16, 1973 (1975) 239-352. L. GUNDLlNG, Olunfalle bei der Ausbeutung des Festlandsockels, ZaoRV, Vol. 37 (1977) 538-571. D. ABEC ....SSIS, The Law and Practice Relating to Oil Pollution from Ships (1978). O. OKIDI, Regional Control of Ocean Pollution: Legal Institutional Problems and Prospects (1978). A. DE MESTRAL, The Prevention of Pollution of the

J.-Y MORIN,

249

ONASSIS INCIDENT

Marine Environment Arising from Offshore Mining and Drilling, Harvard International Law Journal, Vol. 20 (1979) 469-518. P.S. DEMPSEY and L.L. HELLING, Oil Pollution by Ocean Vessels - An Environmental Tragedy: The Legal Regimes of Flags of Convenience, Multilateral Conventions, and Coastal States, Denver Journal of International Law and Policy, Vo!. 10 (1980) 37-87. W.N. HANCOCK and R.M. STONE, Liability for Transnational Pollution Caused by Offshore Oil Rig Blowouts, Hastings International and Comparative Law Review, Vol. 5 (1981/1982) 377-395. M.l. KEHDEN, Seeschiffahrt und MeeresumweltschutzBernuhungen zur Verhinderung schiffsverursachter Meeresverschmutzung, in: W. Graf Vitzthum (ed.), Die Pliinderung der Meere (1981) 247-266. W. VAN REENEN, Rules of References in the New Convention on the Law of the Sea, in Particular in Connection with the Pollution of the Sea by Oil from Tankers, Netherlands Yearbook of International Law, Vol. 12 (1981) 1-44. C.D. GARON, Liability for Transnational Pollution Arising from Offshore Oil Development: A Methodological Approach, Ecology Law Quarterly, Vol. 19 (1982/ 1983) 641-683. J. STUTZ, Olverschmutzungsschaden bei Tankerunfallen (auf See), Recht der Internationalen Wirtschaft, Vol. 28 (1982) 90-96. A.B. SIEHLEN and R.J. McMANUS, IMCO and the Politics of Ship Pollution, in: D.A. Kay and H.K. Jacobson (eds.), Environmental Protection, The International Dimension (1983) 140-183. H. SMETS, The Oil Spill Risk: Economic Assessment and Compensation Limit, Journal of Maritime Law and Commerce, Vol. 14 (1983) 23-43. G. BRUNN, Ergebnisse der Internationalen Konferenz uber die Haftung und Schadenersatz bei der Beforderung von 01 und gefahrlichen Stoffen auf See, Versicherungsrecht, Vol. 35 (1984) 904-911. D.A. JACOBSON and J.D. YELLEN, Oil Pollution: The 1984 London Protocols and the AMOCO CADIZ, Journal of Maritime Law and Commerce, Vol. 15 (1984) 467-488. R. KBAIER and v. SEBEK, New Trends in Compensation for Oil Pollution Damage. Amoco Cadiz Legal Proceedings and the 1984 Diplomatic Conference on Liability and Compensation, Marine Policy, Vol. 9 (1985) 269-279. A. KISS, L'affaire de l"'Amoco Cadiz": responsabilite pout. une catastrophe ecologique, Clunet, Vol. 112 (1985) 575-589. S.M. EVANS, Control of Marine Pollution Generated by Offshore Oil and Gas Exploration and Exploitation, Marine Policy, Vol. 10 (1986) 258-270. B. SHAW, B.J. WINSLETT and F.B. CROSS, The Global Environment: A Proposal to Eliminate Marine Oil Pollution, Natural Resources Journal, Vol. 27 (1987) 157-185. MICHAEL BOTHE

ONASSIS INCIDENT On August 1, 1947 Peru followed the example of Argentina, Panama and Chile by declaring in a supreme decree that the national jurisdiction would be extended to the -- continental shelf and the sea adjacent to the shores of national territory whatever its depth and in the extension necessary to reserve, protect, maintain and utilize natural resources and wealth of any kind which might be found below those waters (Decree No. 781, published in the official journal El Peruano, August 4, 1947; -- Marine Environment, Protection and Preservation). Peru fixed the outer limits of this zone at a distance of 200 nautical miles off shore. The right of free passage was not to be impaired by this measure. The United States and Great Britain delivered notes of -- protest against the unilateral declaration. At the Conference held at Santiago on August 18, 1952, Chile, Ecuador and Peru signed the Declaration on the Maritime Contiguous Zone, which reaffirmed previous declarations of those States (UNTS, Vol. 1006, p. 323). Concerning navigation in the zone claimed, the declaration referred to the right of innocent and inoffensive passage (-- Innocent Passage, Transit Passage). Again, protests were lodged by the United States and Great Britain. In the autumn of 1954, while the whaling fleet of Onassis under the flag of Panama was sailing for the sea over which Peru claimed jurisdiction, an extraordinary conference of the Permanent Commission, established in Santiago in 1952 by Chile, Ecuador and Peru, prepared a convention on fines for transgression of the rules established by the declaration of Santiago. In November 1954 five vessels of the Onassis fleet were seized by Peruvian navy ships and aircraft, two of them within 120 nautical miles and the others at 300 nautical miles from the shore. On November 26, the harbour captain of Paita imposed a fine of $ 3 million on the captains and the owner of the vessels for violation of provisions Which prescribed the obtaining of permission in advance for fishing and whale hunting in the maritime zone described in the Peruvian declarations of 1947 and 1952. The ships remained impounded as security for the payment of the fine. The ships being insured by British and United

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States companies, Great Britain and the United States protested against the Peruvian actions, as did Panama, whereas Argentina, WhICh was the State of nationality of Onassis supported Peru, which rejected all protests by pointing out that a question of sovereignty was at stake. In December 1954 the fine was paid under the reservation of further developments. A proposal by the United States to have the dispute over the territorial waters adjudicated by the ~ International Court of Justice (ICJ) was rejected by Chile, Ecuador and Peru. A friendly settlement failed at the Santiago Conference in autumn 1955 because the United States refused to recognize an extension of territorial waters. In the following years up to the l 970s more than 100 fishing incidents happened off the Pacific coast of the South American States. The Juridical qualification of the zone, over which Peru extended its jurisdiction and control, was controversial even within the Peruvian government. Foreign Minister Sayan interpreted the Peruvian action as an extension of sovereign rights vestricted to the protection of natural resources, whereas President Bustamente y Rivero declared this zone to be territorial waters, and this view is supported by the Santiago Declaration speaking of the right of innocent passage in this zone (~ Territorial Sea). It was highly disputed whether the extension of jurisdiction over a 200 nautical. mile zone was compatible with the rules of international law. Peru justified its declaration by reference to the preambles of the Truman Proclamations of September 28, 1945 (DeptStateBull, Vol. 13, p. 484) and to the right to take necessary measures in order to prevent an unreasonable exploitation of natural resources by foreign countries (~ Natural Resources, Soveteignty over). Peru claimed that States had the right to fill the gaps in international law in areas where national necessities were involved. By extension of its ~ sovereignty Peru tried to protect an important branch of its economy. The declaration was regarded by its authors as a legal measure of ~ self-defence. These arguments would not seem to justify the Peruvian position. The Truman proclamation claimed sovereignty only over the continental shelf; for the adjacent waters it provided for conservation zones, but only with the consent of other States concerned. The continental shelf

regime could not be transferred to the adjacent waters on the basis of an alleged inequity of nature suffered by a State without a continental shelf. The endangering of resources, exploitable by all countries. does not entitle a State to take unilateral measures for their protection (~ Conservation of Living Resources of the High Seas). The extension of the Peruvian jurisdiction cannot be justified by reference to self-defence, because the very question was whether fishery activities in the areas in dispute fell under national interests giving a right to self-defence. In 1954, a 200 nautical mile zone was not recognized by customary law, even if many Latin American States had unilaterally extended their sovereignty by then, since the important maritime powers, especially Great Britain and the United States had always protested against these measures. A right to extend the limits of the territorial seas by unilateral acts could not be based on the argument that there was no general consent in international law as to the size of this area; any extension of sovereignty impairs the freedom of the seas. Thus the International Court of Justice pointed out in the ~ Fisheries Case (U.K. v. Norway) (Judgment, ICJ Reports (1951), p. 116) that the delimitation of territorial waters "is not a matter depending merely upon the will of the coastal states", but that "the validity of delimitation with regard to other states depends upon international law" (~ Maritime Boundaries, Delimitation) . Therefore, the Peruvian actions in the Onassis incident must be qualified as a violation of international law. However, the concept of the ~ exclusive economic zone, inherent in the Peruvian declaration of 1947 is now part of internationallaw. Case of Sauger et aI., h:n' Port Officer of Paita, November 26, 1954, AJIL, Vol. 49 Supp. (1955) 575-577. Urteil des Hafenkapitans von Paita (Peru) in Sachen Onassis vom 26. November 1954, AVR, Vol. 6 (1956-1957) 105-106. Character and Scope of the Rights Declared and Practiced over the Continental Sea and Shelf, AJIL, Vol. 47 (1953) 120-123. SA BAYITCH, International Fishery Problems in the Western Hemisphere, Miami Law Quarterly, Vol. 10 (1955-1956) 499-506. A.A. ARAMBURU Y MENCHACA,

OUTER SPACE TREATY

E.G. SAYAN,

Notas sobre la Soberania Maritima del Peru

(1955). Plateau continental et droit international, RGDIP, Vol. 59 (1955) 1-62. J.M. YEPES, El Problema del Mar territorial 0 jurisdiccional y de la plataforma submarina ante el nuevo derecho internacional, Separata de la Rivista Universitas, Vol. 8 (1955). J.-L. DE AZCARRAGA, Onassis' Walfanger und der volkerrechtliche Begriff der Hoheitsgewasser, AVR, Vol. 6 (1956-1957) 41-50. J.-L. KUNZ, Continental Shelf and International Law, Confusion and Abuse, AJIL, Vol. 50 (1956) 828-853. P.G. DE LA PRADELLE, La question du plateau continental (1957). s. aDA, New Trends in the Regime of the Seas - A Consideration of the Problems of Conservation and Distribution of Maritime Resources, ZaoRV, Vol. 18 (1957-1958) 61-102, 261-286. J.L. BUSTAMENTE Y RIVERO, Derecho del Mar - La Doctrina Peruana de las 200 Millas (1972). O. ROJAHN, Die Anspriiche der lateinamerikanischen Staaten auf Fischereivorrechte jenseits der Zwolfmeilengrenze (1972). A.A. ARAMBURU Y MENCHACA, Historia de las 200 Millas de Mar Territorial (1973). J.-M. HOEFEL, La zone maritime peruvienne de souverainete et de juridiction nationales, RGDIP, Vol. 79 (1975) 422-446. G. FAHL, Kiistenmeer und Fischereizone aus rechtshistorischer Sicht - Ein Beitrag zum Wandel der Seerechtsordnung, in: Festschrift fiir A. Erler (1976) 555-587. B.M. CARL, Latin American Laws Affecting Coastal Zones, Lawyer of the Americas, Vol. 10 (1978) 51-86. L. GUNDLING, Die 200 Seemeilen-Wirtschaftszone (1983). G. SCELLA,

MA TIHIAS HARTWIG

251

Resolution 1348 (XIII) and was instructed to report on various space problems including "the nature of legal problems which may arise in the carrying out of programs to explore outer space". On December 12, 1959, the Ad Hoc Committee obtained permanent status, by General Assembly Resolution 1472 (XIV). The establishment of COPUOS represented the first important step in the characterization of space affairs as a set of issues distinct from other areas of concern to the - United Nations. On December 20,1961, Resolution 1721 (XIV), adopted unanimously, recognized that internationallaw, including the - United Nations Charter, applies to outer space and -+ celestial bodies and that outer space and celestial bodies are free for exploration and use by all States and are not subject to national appropriation. These principles were further elaborated upon by Resolution 1962 (XVIII) of December 13, 1963 entitled the Declaration of Legal Principles governing Activities of States in the Exploration and Use of Outer Space. The scientific and technological achievements of the United States and the Soviet Union in the 1960s strengthened the motivation to incorporate the non-binding guidelines contained in the UN resolution into treaty form, thus creating binding legal obligations upon States parties. In 1966, both the United States and the Soviet Union presented draft treaties to the COPUOS. These drafts and resolutions ultimately culminated in the Outer Space Treaty.

2. General Principles

OUTER SPACE TREATY 1. Historical Background The Treaty on Principles Governing The Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of January 27, 1967 (UNTS, Vol. 610, p. 205), commonly referred to as the Outer Space Treaty, entered into force on October 10, 1967. Several - United Nations General Assembly resolutions laid the foundation for provisions adopted in this treaty. In 1958, the Ad Hoc Committee on the Peaceful Uses of Outer Space (COPUOS) was established by General Assembly

In analysing the various provisions of the Outer Space Treaty, one must bear in mind that it is a treaty of principles. It is capable of broad interpretation, and is considered to form the basis upon which more specific agreements could be constructed (- Space Law). This approach has proved successful and can be distinguished from that followed by the -+ law of the sea negotiations for the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. AI CONF.62/122 with Corr.), where a composite text incorporated the details of a panoply of subjects.

(a) Freedom of exploration and use Art. I, para. 2 of the Outer Space Treaty provides that outer space shall be free for explora-

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OUTER SPACE TREATY

tion and use by all States. This right is limited by several provisions of the Treaty: the non-discrimination and equality clause (Art. I, para. 2); the common interest clause (Art. I, para. 1); the non-appropriation clause (Art. II); the international law clause (Art. III); the proscription of nuclear weapons clause (Art. IV, para. 1); the responsibility and liability clause (Arts. VI and VII); and the consultation, observation, and information clauses (Arts. V, IX and XI):

(b) Non-Appropriation Reflecting Art. 2 of the Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82), Art. II of the Outer Space Treaty provides that outer space is .not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. This principle is linked to that of the freedom of exploration and use and the common interest of mankind, as appropriation of outer space is incompatible with both these principles.

(c) Applicability of general international law Art. III obliges the parties to conduct their activities in outer space "in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding". The principle thrust of this provision is to establish the applicability of rules of law to activity in outer space and on celestial bodies, as distinct from each nation unto itself.

(d) Restrictions on military activities Art. IV contains the only provision of the Outer Space Treaty specifically addressed to military activities. Contracting parties "undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner" (Art. IV. para. 1). Paragraph 2 omits any mention of "outer space" and specifies the "Moon and other celestial bodies" as the areas of space which must be used "exclusively for peaceful purposes". Echoing Art. I, para. 1 of the Antarctic Treaty of December 1, 1959 (UNTS, Vol. 402, p. 71; .-+ Antarctica), the

same paragraph further states that the "establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden". The Outer Space Treaty thus only calls for partial --+ demilitarization. Although the term "weapons of mass destruction" is not defined and has received various interpretations, the generally accepted position is that it is not a typical non-nuclear device, and includes nuclear, chemical and biological weapons (--+ Biological Warfare; --+ Chemical Warfare; --+ Nuclear Warfare and Weapons). By specifying prohibited activities in outer space, Art. IV, particularly its second paragraph, has often been cited in support of the claim that whatever is not prohibited expressis verbis by the Outer Space Treaty is permissible and lawful. The lawfulness of military activities in space has also been aided by the failure of the Outer Space Treaty to define the term "peaceful uses". The interpretation of this term has given rise to fundamental controversies. Two different approaches can be discerned. First, a group of States led by the United States has consistently espoused the view that this term prohibits only "aggressive" uses of outer space while permitting "non-aggressive military activities". The contrary view, uniformly accepted in socialist jurisprudence but not followed in practice by the Soviet Union, equates "peaceful" with "non-military" use.

(e) The common interest of all mankind Art. I, para. 1 of the Outer Space Treaty proclaims that the exploration and use of outer space, the moon and other celestial bodies, shall be carried out "for the benefit and in the interest of all countries, . .. and shall be the province of all mankind". Consideration of what is meant by this phrase has formed the basis of substantial doctrinal discussion (--+ Common Heritage of Mankind). The divergency of views reflects positions ranging from a requirement for enterprises to share ali profits derived from space use with all mankind, to the opinion that the phrase merely represents a broad declaration of intent. (f) Other principles Other important principles contained m the Outer Space Treaty include, inter alia: assistance

253

OVERFLIGHT

to and return of -- astronauts and space vehicles (Art. V); State responsibility and liability for -- space activities (Arts. IV and VII); cooperation and mutual assistance, and the avoidance of harmful contamination of and undue interference in space activities (Art. IX).

3. Special Legal Problems The adverse effects on the terrestrial and space environment produced by rocket exhaust fumes are self-evident. Congestion of the near-earth surface, falling debris, damage to the atmosphere and ionosphere by rocket propellants and the danger of radioactive contamination are some of the most obvious risks posed by the growing utilization of outer space (-- Spacecraft and Satellites). Twenty-eight years since the advent of space activities, the legal protection of the earthspace environment against harmful uses still rests largely on a single article of the Outer Space Treaty (Art. IX). The consultations provided for in this article have been neither requested nor held. Similarly, no international authority has ever been established to give advance clearance. Thus, environmentally hazardous space activities continue to be governed by the 'rudimentary clauses of the Outer Space Treaty, even after the launching of some 15 000 satellites (-- Environment, International Protection).

that might arise from their exploration and use. It is not a perfect instrument. Some of its principles are obscurely stated and its terms lack precision and definition. Nevertheless, it represents the most important source of space treaty law. Treaty on Principles Governing the Activities of Statesin the Exploration and Use of Outer Space,Including the Moon and Other Celestial Bodies, January 27, 1967, UNTS, Vol. 610 (1967) 206-301. Question of the Peaceful Use of Outer Space, UN GA Resolution 1348 (XIII), December 13, 1958. International Co-operation in the Peaceful Uses of Outer Space, UN GA Resolution 1472 (XIV), December 12, 1959. International Co-operation in the Peaceful Uses of Outer Space, UN GA Resolution 1721 (XVI), December 20, 1961. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UN GA Resolution 1962 (XVIII), December 13, 1963.

Aerospace Law (1969) 261-319. The Modern International Law of Outer

N. MATEESCO MATIE, C.Q. CHRISTOL,

Space (1982) 12-59. (ed.), Space Activities and Emerging International Law (1984).

N. MATEESCO MATTE

NICOLAS MATEESCO MATTE

OVERFLIGHT

4. Evaluation

1. Notion

The assurance of the Outer Space Treaty's success was predicated on the willingness of the two major space powers to support the promulgation of some kind of space charter. The United States sought to avoid the inclusion of provisions which would overly fetter its use of space, thus allowing it to maintain its predominance in this area. The Soviet Union originally sought a more restrictive use of space, though gradually changed its position as its technology improved. The Outer Space Treaty is the seminal international instrument for the law of outer space. It represented at the time of its adoption the lowest common denominator of issues on which consensus existed in COPUOS. Containing general principles for the peaceful exploration and use of outer space, including the moon and other celestial bodies, it was not to deal with all contingencies

The term "overflight" refers to the passage of -- aircraft through the airspace above the territory of a foreign State. Rights of overflight, sometimes also called transit rights, refer to the rights granted by a State to foreign aircraft to fly over its territory, either non-stop or, if specifically provided for, with one or more transit stops for technical purposes (refuelling, maintenance).

2. Historical Evolution of Legal Rules At the Air Navigation Conference of 1910 in Paris, France and Germany took the view that the principle of freedom of air navigation should be recognized, subject to the rights of the subjacent State to restrict overflight for reasons of safety, security or public order. Similarly, the United Kingdom recognized rights of passage of foreign

254

OVERFLIGHT

aircraft and stated that they should only be limited by the need for security of the subjacent State or for the safety of its inhabitants or their property. After World War I, when the Convention on the Regulation of Air Navigation of October 13, 1919 (LNTS, Vol. 11, p. 173) was signed at Paris, it provided in Art. 2 that "every contracting State undertakes to grant in time of peace freedom of innocent passage over its territory to the aircraft of the other contracting States, provided the conditions contained in the present Convention are observed". This implied that a customary right of overflight or of innocent passage did not exist. Art. 1 of the Convention provided that "every power has full and exclusive sovereignty over the airspace above its territory" (-+ Sovereignty over Airspace). The -+ Chicago Convention of 1944, which superseded the Paris Convention of 1919, reaffirmed the principle of full and exclusive sovereignty, but omitted the provision on the right of innocent passage. It granted limited "rights of overflight specifically to non-scheduled air services" in Art. 5. During the Chicago Conference, a separate agreement, the International Air Services Transit Agreement, was developed and signed on December 7, 1944 (UNTS, Vol. 84, p. 389). The Agreement provides for the multilateral exchange of rights of overflight and transit for aircraft engaged in scheduled international air services. 101 States were parties to the Transit Agreement as of May 15, 1988. 3. Present Legal Situation

The Chicago Convention makes a basic distinction with respect to rights of overflight between -+ State aircraft, aircraft engaged in international scheduled air services and aircraft engaged in international non-scheduled air services (e.g. charter flights, air taxi flights, general aviation), (a) State aircraft

According to Art. 3(c) of the Chicago Convention, "no State aircraft of a contracting State shall fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof'. Authorization for overflight by State aircraft can only be obtained on a case-by-

case basis through the competent military or civil authorities. (b) Aircraft engaged in international scheduled air services

The Chicago Convention provides in Art. 6 that "no scheduled international air service may be operated over or into the territory of a contracting State, except with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization". However, rights of overflight (also known as the first two "freedoms of the air") for scheduled services have been multilaterally exchanged in the 1944 Intetnational Air Services Transit- Agreement. Under Art. 1 of the Transit Agreement, the contracting States grant each other "the following freedoms of the air in respect of scheduled international air services: (1) The privilege to fly across its territory without landing; (2) The privilege to land for non-traffic purposes". However, a number of restrictions apply. Under Art. 1, Sec. 2 of the Transit Agreement, the exercise of these "privileges" must be in accordance with the provisions of the Chicago Convention of 1944, including its Annexes. Consequently, the subjacent State may require: that prohibited areas not be entered (Chicago Convention, Art. 9); that aircraft authorized to land for non-traffic purposes do so at a designated customs airport for examination (Chicago Convention, Art. 10); that its laws and flight regulations be fully complied with (Chicago Convention, Art. 11); that prior to each flight, a flight plan be submitted to its air traffic control authorities for prior clearance (Chicago Convention, Annex 2, Sec. 3.3 and Art. 12). Furthermore, under Art. 4 of the Transit Agreement, the authorities of the subjacent State may designate the route to be followed within their territory, and the airports to be used. For the use of such airports and other facilities (such as meteorological services), the subjacent State may impose reasonable charges (Transit Agreement, Art. 4; Chicago Convention, Art. 15). The use of military airports is excluded. In areas of military occupation or active hostilities and in time of war along the supply routes leading to such

255

OVERFLIGHT

areas, overflight and landing for non-traffic purposes can be restricted or prohibited by the subjacent State (Transit Agreement, Art. 1, Sec. 1). It should be noted that not all aviation States

have acceded to the Transit Agreement. Therefore, in many cases the above privileges have been exchanged in bilateral ~ air transport agreements. (c) Aircraft engaged in non-scheduled international air services Rights of overflight of aircraft engaged in international non-scheduled air services (e.g., charter flightss air .taxi, general aviation) are governed by Art. 5 of the Chicago Convention. Under this provision, aircraft engaged in international non-scheduled air services "shall have the right, subject to the observance of the terms of this Convention, to make flights into or in transit non-stop across its territory and to make stops for non-traffic purposes without the necessity of obtaining prior permission". However, a number of restrictions apply as well. The subjacent State may require: that the aircraft makes a landing (Chicago Convention, Art. 5); that, for reasons of safety of flight, the aircraft follow prescribed routes over regions which are inaccessible or without adequate air navigation facilities, or that special permission be obtained for such flights (Chicago Convention, Art. 5); that the requirements of Arts. 9 to 12 of the Chicago Convention, including also Annex 2, as mentioned above, be complied with. (d) Special problems The unintentional intrusion into foreign airspace and consequently overflight of foreign territory (without having complied with the prior notification and filing requirements of Annex 2) has long been recognized as an important problem (~ Aerial Incident Cases; ~ Aerial Incident of 27 July 1955 Cases). Following the ~ Korean Air Lines Incident of September 1, 1983, States members of the ~ International Civil Aviation Organization (ICAO) adopted an amendment (Art. 3bis) to the Convention which provides that States must refrain from the use of weapons against civil aircraft in flight. In case of interception (Annex 2, Attachment A, to the Convention),

the lives of persons on board and the safety of aircraft must not be endangered. Under Art. 25 of the Chicago Convention, the subjacent State may have special obligations to grant assistance to foreign aircraft in distress while in the course of overflying the State's territory. Art. 25 provides that "each contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable ... ". Such obligations to assist may not only arise in case of technical defects, but also in cases of hijacking and other criminal offences where refusal of rights of overflight and/ or landing can in some circumstances put human lives at serious risk (~ Civil Aviation, Unlawful Interference with). 4. Evaluation Rights of overflight and of landing for nontraffic purposes are normally only of secondary importance for States and air carriers, when compared with traffic rights (rights to carry commercial traffic). Their grant is therefore usually not difficult to obtain, even if the commercial air services are operated to a third State. However, under certain circumstances, rights of overflight may become matters of primary importance: first of all, where the denial of rights of overflight resulting in the necessity of flying around the territory would make a commercial, scheduled service unprofitable due to the size of the subjacent territory (e.g. Soviet Union); secondly, where the denial of landing rights for technical purposes would render a commercial service impracticable due to the limited range of the aircraft; thirdly, where denial of overflight for special flights (e.g. emergency flights, military aircraft on mission) would entail time delays or proloo$ed routes which may render the operation of such-flights impossible. In certain cases, States tend therefore to attach a commercial value to such rights-of overflight in their bilateral negotiations. \ \

Convention on International Civil Aviation, December 7, 1944, UNTS, Vol. 15 (1948) 295-375. International Air Services Transit Agreement, December 7, 1944, UN'[S, Vol. 84 (1951) 389-409. Questions of Public International Air Law, RdC, Vol. 81 (1952 II) 205-305.

D. GOEDHUIS,

256 B. CHENG,

OVERFLIGHT

The Law of International Air Transport

(1962).

Backgrounds of International Public Air Law, Yearbook of Air and Space Law 1965 (1967)

J.e. COOPER,

3-37. c.x. SHAWCROSS and ed. 1977). N.M. MATTE, W. SCHWENK,

K.M. BEAUMONT,

On Air Law (4th

Treatise on Air-Aeronautical Law (1981). Handbuch des Luftverkehrsrechts (1981). LUDWIG WEBER

PASSAGE, RIGHT OF see Innocent Passage, Transit Passage

PEARL FISHERIES 1. Notion Pearl fishing involves the harvesting of the natural pearls and pearl-shell obtained from varieties of marine and freshwater molluscs, which are sedentary species found at relatively shallow depths in rivers, coastal waters and in the sea. In the past, due to their special economic and geographical characteristics, certain marine pearl fisheries were associated with a degree of international legal controversy in doctrine and practice, and a few pearl fisheries even figured in international disputes. However, under contemporary international law, the subject no longer has any particular legal significance. Owing largely to the invention of commercially successful artificial pearl farming techniques, by which cultured pearls are procuced, the importance of natural pearl fisheries has declined very considerably during the 20th century. Pearl farming, which now 'supplies virtually all pearls on the market, takes place either in ~ internal waters or in coastal waters forming part of the ~ territorial sea, and as such it raises no mternational legal problems. Likewise, freshwater pearl fisheries are not of any international legal concern because they fall within the national jurisdiction and ~ territorial sovereignty of the State where they are situated (~ Jurisdiction of States). Marine pearl fisheries, with which the remainder of this article is concerned, are located at widely varying distances from the coastline, but they also fall within the undisputed exclusive ~ sovereignty of the coastal

State under the presently valid international ~ law of the sea. In the days when the breadth of territorial waters was only three nautical miles, some pearl banks lay beyond this limit under the ~ high seas. A few of these pearl fisheries were in practice controlled by the coastal State or local powers who claimed rights of ownership over the pearl beds or the right to exploit them. If a coastal State enjoyed such rights, it was regarded as an exception to the principle of the freedom of the seas. However, under the relatively new regime of the ~ continental shelf, this exception has in turn become a general rule which is now applicable to all the natural resources of the shelf. The natural resources of the continental shelf include sedentary species, thereby implicitly including pearl fisheries (see ~ Fisheries, Sedentary). As legally defined, the continental shelf extends out to a line well beyond the maximum distance from the coast within which pearl beds are found, notwithstanding some uncertainties as to the precise seaward delimitation of the shelf (~ Continental Shelf, Outer Limits). Thus, in summary, the problem of regulating the exploitation of this once-valuable natural resource has now receded with the decline in pearling itself and with the emergence of the continental shelf regime which reserves such resources of the shelf exclusively to the coastal State.

2. Historical Background Pearl fishing is one of the most ancient maritime activities and was one of the earliest forms of exploitation of the ~ sea-bed. Jurisdiction over certain pearl fisheries extended by national practice and enactments to areas otherwise beyond the limit of territorial waters, which itself varied from time to time and from place to place. Claims to sueh-jurisdiction probably even pre-dated the doctrine of the freedom of the high seas. In some cases full territorial sovereignty over pearl fisheries was claimed, in others only certain property rights or jurisdiction to make regulations, for example for enforcing the exclusion of ~ aliens. Claims were not invariably made to maritime jurisdiction over the superjacent sea, and those that were appear to have been advanced mostly only insofar as was necessary to protect the pearl beds beneath. While States commonly re-

PEARL FISHERIES

served the exploitation of pearl fisheries to their own nationals, it seems that in the cast;; of pearl beds in the - Persian Gulf property rights under Islamic law were to some extent jointly vested and exercised (-,> International Law, Islamic). The famous pearl beds of former times, such as those in Ceylon and the Persian Gulf, not only provided rare objects of a unique and beautiful character but also constituted important national resources of great financial value. It is therefore hardly surprising that various claims over pearl fisheries were advanced at different times in history by coastal States. but it is unlikely that the existence of any generally accepted rule can be deduced from the recorded examples. It is well known that Vattel referred to this subject in his treatise on the law of nations, stating: "Who can doubt that the pearl fisheries of Bahrein and Ceylon may be lawful objects of ownership'!" (Lc Droit des Gens (1758) Book 1, Ch. 23, sec. 287). However, from the context, it appears that Vattel envisaged such fisheries as part of a territorial sea, albeit as a special case. Moreover, some pearl banks were situated in -,. archipelagos or in - bays and gulfs where it was difficult or even impossible to determine with certainty whether they lay under the high seas. This was the case for certain pearl beds of Ceylon, where early 19th century legislation enacted to protect the offshore pearl fisheries was modelled on the British - Hovering Acts. Although in practice several coastal States undeniably exercised jurisdiction over certain pearl fisheries which because of their location would normally have been considered to be in the high seas, such instances were few in number and apparently did not reflect the existence of a generally applicable principle of international law supporting this exceptional practice in all cases. Jurisdiction was sometimes held to be based on uninterrupted and largely undisputed practice, but with some justification doubts have been expressed concerning appropriation of rights to the sea-bed on the basis of the doctrine of acquisitive -;. prescription or by - acquiescence. In the cases where pearl fishing went back to remote times, any special legal position of the fisheries is perhaps best viewed not as an exception to the freedom of the seas but as a historical anomaly which survived until recently, founded simply on

257

immemorial usage. Even if regarded as an exception, it was not necessarily in derogation of - Effectiveness; international law (see -.,. Historic Rights). The first assertion of the principle on which the regime of the continental shelf is based is usually regarded as having been made in the Truman Proclamation of September 28, 1945 by which the United States claimed jurisdiction and control over all the natural resources of her continental shelf (DeptStateBull XIII, Nr. 327 (1945) p. 485). In fact, the proclamation had been closely foreshadowed by the enactment of various national laws including some designed to protect pearl fisheries situated outside territorial waters. The proclamation was followed by similar ._..,. declarations made, inter alia, by certain of the Persian Gulf Sheikhdoms which, however, were motivated by petroleum rather than pearls (d. -~ Abu Dhabi Oil Arbitration; ICLQ, Vol. 1 (1952) at p. 256). The special laws that were frequently enacted by the coastal States concerned, with the intention of protecting the pearl fisheries which they controlled. are now of purely historical interest (for a survey, see UN Doc. A/CN.4i42 (1951), YILC (1951 II) pp. 94-99). The same applies to the few recorded international disputes relating to pearl fisheries. The last such dispute arose in the early 1950s between A ustralia and Japan over access to pearl-shell fishing grounds in the Arafura Sea and -- Torres Strait area, situated off the coast of northern Australia. From the 19th century until 1952 pearl fisheries there had been regulated by Australian ads which applied outside territorial waters bu t not necessarily to foreigners. Thereafter, new legislation applicable to foreigners asserted jurisdiction over the pearl fisheries. The dispute culminated with a declaration of September II. 1\)53 in which Australia proclaimed her sovereign rights over the sea-bed and subsoil of the continental shelf. The Japanese Government proposed in a -'> note verbale of October 8, i953 to submit the matter to the - International Court of Justice (lCT), hut this action was never taken. Japan was at that time not a memher of the --, United Nations and not party to the ICJ Statute. Following prolonged -~ negotiations, the two countries eventuallv reached a -~ modus vivendi. A Draft International Convention for the

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PEARL FISHERIES

Conservati on of Pearl Oyster Resources prepared at that time was never adopted. On February 6. 1954 Australia made a declaration accepting the compulsory jurisdiction of the fCJ in conformity with Art. 36(2) of the ICJ Statute , but excluding cert ain categories of dispute s relating to pearl fisheries ( UNTS. Vol. 186, p. 77) . Subsequently, at the 1958 Geneva Diplomatic Con ference , Australia successfully moved to include sedent ary fisheries in the natural resources reserved to coasta l States under the regime of the conti nental shelf (UN Doc . A I CONF.13/C .4/ L. 36). Thereby, the matter was resolved.

3. Current Legal Situation Pearl fishing grounds situated within the territorial sea fall unde r the full sovereignty of the coastal State in accord ance with both ..... customary interna tional law and the relevant treaties in force. Th is proposition follows from the . inherent nature of the territorial sea, and it is confirmed in Arts. 1 and 2 of the Geneva Convention on the Territorial Sea and the Contiguous Zone of April 29. 1958 ( UNTS, Vol. 516, p.205 ). Likewise , the legal regime of the continental shelf is now firmly established in State practice and doctrine, ena bling all coastal States to legitimately exercise sovereign rights over the natural resources of their continental shelf. Pearl fisheries outside the territorial sea are implicitly included within this regime . The principle of de jure sovereignty over such resourc es was layed down in Art . 2 of the Geneva Convention on the Continental Shelf of April 29, 1958, which is in force for some 54 States includin g many of the major coastal powers (UNTS, Vol 499, p. 311) . The regime of the continental shelf as expressed in Art. 2 of the 1958 Convention is also regarded as forming pa rt of custo ma ry international law (..... North Sea Contine ntal She lf Case. 10 Reports 1969, pp. 39 and 53). Under Art. 2 of the 1958 Convention on the Continental Shelf , sovereign rights over the continental shel f for the purpose of exploring it and exploiting its natural resources are exclusive to the coastal State withou t whose consent no others may undertake activit ies there. The same article of the

Convention states that the natural resources of the

continental shelf include sedentary species. Pearl oysters and pearl shells fall within the definition of sedentary species given in this article, since the former are fully sessile benthos and the latter at most have only limited p'owers of locomotion. Thus , in the words of the 1958 Convention , they " either are immobile on or under the seabed or are unable to move except in constant physical contact with the seabed or the subsoil " (Art. 2(4)). Exactly the same terms were included in Art. 77 of the 1982 United Nations Law of the Sea Convention, which is not in force (UN Doc. A /CONF .621 122 with Corr.), Under the 1982 Law of the Sea Convention . sedentary fisheries are exempted by Art. 68 from the provisions which relate to the ..... exclusive economic zone. Such fisheries, including pearl fisheries , are thus excluded from the related provisions concerning conservation and optimum

utilization of fishery resources . Coastal States are therefore not placed under an obligation to take conservation or management measures affecting

pearl fisheries (..... Environment , International Protection). The relatively few pearl fisheries around the world are now mostly of only local significance . production and stocks often having declined due to pollution and general deterioratio n 01 the harvesting grounds . Nevertheless. pearl' ,'I"! pearl -shell are still taken from SO me " I rl>c traditional beds. Pearling also rc rn.un economic activity in the Sulu Seas . off the coa... t -, 1.1 Austr alia and Papua New Guinea . alon g th...

shores of Central America and in the Caribbean Sea , and around certain islands and atolls 01 Ill ,' South Pacific ocean . Memorandum . Pearling in Arafura Sea Area. 25 June

t952 10 19 November 1953, Ministry of Foreign Affairs. Japan (1954). Whose is the Sed of the Sea", Vol. 4 (1923-1924) 34-43.

Cl .B. H UR ST,

w.

HEIDELMEYER.

SYlL,

Der australisch-japanische Pcrlfi-

scberei-Srreir . AVR. Vol. 5 (1955-1956) 128-136. D .P. O'CONNEl l,

Sedentary Fisheries and the Au stralian

Continental Shelf. AJIL. Vol. 49 (1955) 185-209. PETER MACALISTER-SM ITH

259

PIRACY

PIRACY 1. History; Notion

Politically organized raids on sea-borne commerce and ports to seize property, without regard for pre-existing private rights to that property or the legal powers of foreign sovereigns to make rules governing the ships, shore and adjacent seas, were described as an ancient way of life by Thucydides (The Peloponnesian War, i, 5-7). Such acts constituted one of the five forms of political economy classified without condemnation by Aristotle (Politics, 1256b). Greek raiding communities surviving into Roman times were called pieraton by Diodorus Siculus about 60 B.C. (History, xxxvii, xi, 6-7) from peiran in Greek to "try" or "attempt". Plutarch writing about 100 A.D. used the same word for the same people (Lives (Pompey), xxiv-xxix). Cicero referred to pirata as the "enemy" of all societies (De oficiis, iii, 29), apparently using the word hostes (enemy) to imply a constant state of war. A similar concept appeared in Justinian's Digest, where it was stated that persons who had been captured by pirates (piratis) or robbers (latronibus) remained legally free (Corpus Juris Civilis, XLIX.15.19.2, attributed to Paulus, On Sabinus, xvi). While neither pirates nor robbers could legally get title to those they captured, the distinction between the two situations seemed to be that robbers had no basis for title, while pirates could not perfect their inchoate title by ~ postliminium since the war between Rome and the Greek pirates had never legally ended. The notion of piracy as the taking of property by organized societies not recognizing the victims' conception of the applicability of the laws of war or of property was adopted into European usage in connection with the raids of the Danes in the Viking period (~ War, Laws of). In the early 17th century Gentili took inconsistent positions regarding the Barbary communities of North Africa (Hispanicis Advocationis, book I, chaps. IV and XXIII C(61». In both cases Gentili presumed without legal argument that if the Barbary communities were considered pirata, the legal results of the Roman law relating to "robbers" and "brigands" (praedones and latrunculi) would follow. Grotius, .... ;ew years later, attemp-

ted to define pirata as all communities that were joined for the purpose of wrongdoing (De lure Belli ac Pacis, book III, chap. II, para. 1 (1646». In England, in the 16th century the word piracy was used in Admiralty tribunals to deny the property rights of foreign sovereigns' licenced privateers in captured English goods finding their way back to England (~ Privateering). During the course of that century the word piracy also became the legal word for robbery outside the jurisdiction of the English common law courts but within the jurisdiction of the Admiralty Tribunals specially commissioned to use common law procedures in enforcing maritime criminal law under a statute of 1536 (28 Hen. VIlle. 15). A similar evolution was taking place in the Netherlands, where sta.u.es of 1570 and later used the Dutch word zeerovery and the Latin piratae in a variety of contexts relating to crimes within the jurisdiction of the maritime law tribunals, such as insurance fraud, net-cutting, and un.icenced privateering (Bynkersnoek, Questionum Juris Publici, book I, chap. XVII (1737». 2. Piracy as a Municipal Law Crime

The English definitions vf crimes under maritime law which were to be denominated "piracy" in me absence of statute resolved themselves by the end of th·~ 17th century, into the single conception of common law "robbery", including its requirement of private motive (animo furandi).

The special str.tutory definitions of other "crimes" for which the pun: .hment due to "pirates" was felt appropriate had little impact on the overall evolution of the term. (a) Jurisdiction

Naturalist jurists tended to adopt the rationale given in England by Charles Molloy, basing the rights of property and personal security in universal natural law (Molloy, De Jure Maritimo, I, 6, xii (1677». Under this approach, all sovereigns had non-exclusive ~ jurisdictio.. mer all ships on the ~ high seas, and unlicenced individuals could defend themselves against "pirates" and hang them without formalities. Positivist jurists tended to adopt the reasoning offered by Sir Leoline Jenkins reaching the same result as a matter of the

260

PIRACY

implied licence of recognized sovereigns, each possessing jurisdiction over his country's vessels, and having jurisdiction over foreigners in those vessels or foreigners in foreign vessels whose acts impacted on the defending sovereign's vessels. In the United States, exaggerated assertions of "universal" jurisdiction were tempered by a courtimposed rule that the tribunal acked jurisdiction over foreigners outside the territory of the sovereign concerned unless the victims of the attack were persons within the allegiance of that sovereign or the accused were persons subject to no other jurisdiction at all (U.S v. Wiltburger, 18 U.S. (5 Wheaton) 76 (1820); U S. v. Klintock, 18 U.S. (5 Wheaton) 144 (1820)). !

(b) Licences In the great English trial 01 Captain William Kidd in 1701, action in excess of what was expressly authorized in his commission was regarded for that reason as action animo furandi: Kidd was hanged. Yet, in instances both before and after 1701, privateers exceeding their commissions had not been considered to be "pirates"; the commissions were considered merely as evidence to overcome a presumption (If animo furandi. That presumption could be overcome by other means, such as the immediate submission of captured property to the disposition of Admiralty tribunals (as commissions normally required anyhow). This position was adopted by the United States when Americans acting under the commissions of unrecognized South A merican republics fighting against Spain in the second decade of the 19th century were found tOJe lacking animo furandi and thus were not considered to be "pirates" under "international law" in the United States (U.S. v. Palmer et aI., 16 U.S. (3 Wheaton) 610 (1818)).

3. Piracy in Public International Law (a) Rebels Rebels, and even foreigners f.ghting under their own sovereign's commissions on behalf of rebels, were treated as "pirates" as early as 1580 in Europe (Gentili, De lure Belli .Jbri Tres, book I, chap. iv (1612)). In 1692 eight Irish privateers, some with French commissions, fighting for the deposed King James II of England were hanged

for "piracy" in England, although members of James's defeated army on land were treated as - prisorers of war. During the - American Civil War of 1861 to 1865, there were similar trials by the Federal authorities of privateers commissioned by the Confederate States, but in at least two cases convicted "pirates" were transferred to military control as prisoners of war (Moore, Digest of International Law, Vol. 2 (1906), 1079-1080. 1082-1083). English and Canadian courts, confronted with Confederate raiders, in two cases held them to be "pirates" jure gentium for the sole purpose of refusing extradition under a strained interpretation of the applicable extradition treaty, then released them (Moore. Digest of International Law, Vol. 2. 1080·-1081). By 1885, American courts were maintaining the classification of "piracy", but refusing to apply it in practice with regard to foreign commissioners of unrecognized rebels (The Ambrose Light, 24 F. 408, 18 Deak 112 (1885)). In England, military action against the Huascar, a vessel in rebellion against Peru in 1877, was sought to be justified by using the category "piracy". but diplomatic correspondence and parliamentary debates immediately after the incident cast doubt on the legal integrity of the British position.

(b) Commissioners of unrecognized governments Aside from situations in which governmental authority was in dispute, through most of the 19th century, European powers, particularly the British, treated as "piracy" the naval activities of some non-European governments with which there was otherwise regular commerce, as, for example, the Barbary States until conquered by France in 1830 (J.M. Moessner, Die Volkerrechtspersonlichkeit und die Volkerrechtspraxis der Barbareskenstaaten (1968)). Beginning in 1825 the British paid a monetary bounty to naval personnel engaging "pirates" on the same basis that such bounties had been paid to encourage naval action during the Napoleonic Wars (6 Geo. IV c. 49 (1825); ct. 43 Geo. III ::. 160 (1803)). Although the British legal tradition did not consider the acts of foreign commissioners as "piracy" regardless of possible violations of neutral commerce that might occur, in 1845 the Bounty Act was applied to a British raid on a Dyak village in Borneo. The Bounty Act

261

PIRACY

was repealed in 1850. Nonetheless, throughout the second half of the 19th century, suppression of "piracy", defined as the forcible interference by anybody with foreign shipping in the absence of a "war" recognized by Great Britain, was a major rationale for British military and naval action outside of Europe.

(c) Other situations In the 20th century, there have been attempts to apply the concept of "piracy" to ~ submarine warfare against ~ merchant ships, even in wartime, when the ships' companies are not given a chance to reach safety as th~' classical rules of naval warfare had required (Treaty Relating to the Use of Submarines and Noxious Gases in Warfare, Fehruary 6,1922 (LNTS, Vol. 25, p. 202), Arts. 1, 3 and 4; Treaty for the Limitation and Reduction of Naval Armaments, April 22, 1930 (LNTS, Vol. 112, p. 65), Part IV, Art. 22; Proces-Verbal of London, November 6, 1936 (LNTS, Vol. 173, p. 353); ~ Nyon Agreement of September 14, 1937). The Judgment of the International Military Tribunal at the -..... Nuremberg Trial of Admiral Doenitz, found him guilty of a -~ war crime for ordering unrestricted submarine warfare contrary to the terms of the 1936 Protocol, but did not consider it analogous to "piracy". Aerial hijacking has been considered analogous to "piracy" in United States municipal legislation, "Aircraft Piracy" being defined in the U.S. Code, Title 49 sec. 1472, as: "any seizure or exercise of control, by force or violence or threat of force or violence and with wrongful intent, of an aircraft in flight in air commerce". However, the treaties requiring international cooperation in suppressing unlawful interference with civil aviation do not use the term or draw any overt analogy to "piracy" (~ Civil Aviation, Unlawful Interference with).

4. Current Legal Status A ~ League of Nations Committee of Experts for the Progressive Codification of International Law in 1926 circulated a draft Report and Provisions for the Suppression of Piracy. The topic was dropped from the agenda of the Committee in 1927 on the ground that universal agreement seemed somewhat difficult, and the subject did not seem important enough to warrant further work. The Harvard Research in International Law

produced a Report and Draft Convention on Piracy (AJIL, Vol. 26 (1932) Supp., p. 729). This draft in turn became the basis for the provisions proposed by the ~ International Law Commission of the -~ United Nations for inclusion in a general convention on the law of the high seas (--'.> Law of the Sea). Those provisions, amended, appear as Arts. 14 to 21 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82). The definition of "piracy" is: "Any illegal acts of violence, detention or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed: (a) On the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (b) Against a ship, aircraft, persons or property in a place outside the jurisdiction of any State ... " (Art. 15). In Art. 19 it is provided that "every State may seize a pirate ship or aircraft, or a ship taken by piracy" and "the courts of the State which carried out the seizure may decide upon the penalties to be imposed" and the disposition of the property of the "pirate". These provisions are repeated verbatim in Arts. 100 to 107 of the United Nations' Convention on the Law of the Sea opened for signature at Montego Bay on December 10, 1982 (UN Doc. A/CONF.62/122 with Corr.).

5. Special Legal Problems The treaty regime and general international law of "piracy" do not directly regulate the municipal law of piracy. and much confusion exists in the literature from the use of the word piracy in both contexts without clear distinctions. As a matter of public international law, the British use of the word to attempt to justify municipal law bounty payments and imperial adventures has resulted in further confusion. Indeed, it is possible to assert with some support that there is no public intern ationallaw of piracy divorced from specific treat: . s; and that all the arguments about it relate ;0 conflicting municipal law usages and questions of jurisdiction (Harvard Research in International Law, AJIL, Vol. 26 (1932) Supp., pp. 756-757). The great jurisdictional question is whether "piracy" is a "crime" by individuals under international law, analogous to "war crimes", which every State has the requisite legal interest in

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PIRACY

prosecuting, making jurisdiction "universal". Arguments in favour of universa: jurisdiction rest on the terms of the 1958 and 1982 UN Law of the Sea Conventions, and on concepts of uniform municipal law reflecting natural law-based - general principles of law which all States have, by supposed ancient usage, the legal power to enforce. Arguments opposed to universal jurisdiction rest on concepts of - standing reflected in State practice, and on general conceptions of the need for a legal interest before a State has the legal power to interject itself into any matter involving international law (South West Africa Case, Second Phase, Judgment, ICJ Reports 1966, p.6). As to substance, the border between the "private end" of robbery and the "private end" of seizing the machinery of a State to satisfy mere ambition seems in particular cases to be a matter of judgment. In many cases it is impossible to determine to universal satisfaction whether some self-proclaimed rebels or - governments-in-exile are entitled to the benefits of the law applicable to belligerents in an - armed conflict of international character (- Recognition of Belligerency), or are merely criminals subject to the municipal criminal law of the State whose territory, vessels or nationals are victims of the "nirates".

Harvard Research in International Law, Part 4 Piracy, AJIL, Vol. 26 (1932) Supp., 739-1013. Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.3 and Corr.8; UNCLOS III, Official Records, Vol. XVlI (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Elements of International Law (1866). Der Tatbestand der Piraterie (1905). E.D. DICKINSON, Is the Crime of Piracy Obsolete?, Harvard Law Review, Vol. 38 (1924-1925) 334-360. J.J. LENOIR, Piracy Cases in the Supreme Court, Journal of Criminal Law and Criminology, Vol. 25 (1935) 532-553. G. SCHWARZENBERGER, The Problem of an International Criminal Law, Current Legal Problems, Vol. 3 (1950) 263-296. J.w.F. SUNDBERG, Piracy: Air and Sea, DePaul Law Review, Vol. 20 (1971) 337-419. N.D. JOYNER, A Contemporary Concept of Piracy in International Law: The Status of Aerial Hijacking as an International Crime (1974). A.P. RUBIN, Is Piracy Illegal?, AJIL, Vol. 70 (1974) 92-95. A.P. RUBIN, The Law of Piracy (1988). H. WHEATOfl" P. STIEL,

ALFRED P. RUBIN

PLANETS see Celestial Bodies

6. Evaluation

The International Law Commission expressly denied that its High Seas Convention formulation codified a clear general international law. On its own terms, the 1958 text has been criticized for resting on an undefined a priori concept of "illegality" (Rubin, p. 92), among other anomalies. The general international law of "piracy" itself appears to have changed content over time and to have been particularly subject to the overstatements of judges and statesmen seeking to expand the reach of municipa law and their personal sense of morality to areas beyond their grasp under the jurisdictional limitations on municipal courts fixed by the international legal order, and the processes by which moral conceptions become legal conceptions. It is possible that abandoning the notion that there is such a legal entity as piracy in public international law would simplify and clarify questions of jurisdiction and the applicability of the law of war to internal and even some international armed conflicts.

PORTS 1. Notion

A port is a sheltered place where ships may load or discharge cargo and embark or disembark passengers. which makes use of both natural conditions and artificial installations, and which offers facilities for the movement of passengers and goods by water and land, the maintenance and repair of ships and the handling and storage of goods, subject to a special administration to secure these traffic functions. Ports, including their water areas, are under the - territorial sovereignty and jurisdiction of the infra; coastal State (see section 2(a) - Jurisdiction of States). They are constructed according to and operated under domestic law. The facilitation of traffic is the basic purpose of ports. The - Geneva Convention and Statute on the International Regime of Maritime Ports of 1923

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PORTS

(LNTS, Vol. 58, p. 285) deems all ports which are normally frequented by sea-going vessels and used in foreign trade to be "maritime ports". This designation can be generally used to distinguish between those ports accessible to sea-going vessels on the coast or after passage through an inlet, river, or channel, and inland ports on a river or lake which are inaccessible to sea traffic. Apart from special regulations and rules concerning internal ports on ~ international rivers, the main interests of international law in this area are maritime ports and the sea traffic, rather than naval bases or coastal trade, which is generally restricted by the coastal State to vessels flying its flag (~ Flags of Vessels; ~ Cabotage). The rising importance of container transport has changed the face and operation of sea ports. Maritime ports link the national traffic system with international sea traffic. Furthermore, they are important features of the national infrastructure and economy and a favourable site for industry and commerce. Large maritime ports are centres of urban and industrial agglomeration which may play leading roles in the economic growth of a region or nation, and, on the other hand, owing to water and air pollution, complex objects of environmental policy (~ Environment, International Protection). In ~ federal States, the legislative and administrative powers concerning ports may be attributed, by constitutional provision, to the federation or to the member States. Under the law of the Federal Republic of Germany, for example, ports of traffic and trans-shipment, other than harbours of shelter and construction which constitute appurtenances of federal waterways (Grundgesetz, Art. 89), are under the legislation and administration of the states (Lander). Only insofar as a port includes areas of a federal waterway, do the competences in waterway matters belong to the federation (Bund); surveillance and control of port operation and traffic are always a state power (see section 3(a) infra). In regard to the ~ Elbe River inside the administrative boundaries of the Port of Hamburg, special agreements and regulations delegate administration and maintenance to the Free and Hanseatic City of Hamburg (§ 45, sec. 5, Bundeswasserstrafsengesetz, April 2, 1968, BGBl. II, p. 173). Technical assistance in matters of port installa-

tions and operations is one of the objectives of the International Maritime Organization (IMO), formerly the International Maritime Consultative Organization (IMCO). The IMCO adopted the Convention on Facilitation of International Maritime Traffic, April 9, 1965 (UNTS, Vol. 591, p. 265), which aims at promoting the cooperation of governments and at securing the highest practicable degree of uniformity in port procedures. The provisions of Title IV (transport) of the Second Part of the EEC Treaty do not apply to sea transport, including the managing and operation of ports (~ European Economic Community). However, the Council of the EEC may, acting unanimously, decide whether, to what extent, and by what procedure appropriate provisions may be laid down for sea transport (Art. 84, EEC Treaty). Nevertheless, sea transport is subject to the general provisions of the EEC Treaty (Commission of the European Community v. French Republic, Case 167/73, ECR (1974) p.359). Long-standing efforts and inquiries aimed at attaining a common traffic policy with special regard to maritime ports and reducing competition distortions between the ports, especially in the "Antwerp-Hamburg-Range", have not been successful as yet (see Resolutions of the European Parliament, April 17, 1972 and March 11, 1983). The different conditions in the hinterland traffic to and from the ports are mainly due to national traffic and tariff policy.

~

2. Legal Status of Ports and their Water Areas (a) Jurisdiction of the coastal State A seagoing vessel visiting a foreign port on the seacoast or inside a ~ bay or the estuary of a river must cross the ~ territorial sea and the ~ internal waters of the coastal State (~ Internal Waters, Seagoing Vessels in). "For the purpose of delimiting the territorial sea, the outermost permanent harbour works which for", an integral part of the harbour system are regarded as forming part of the coast" (Art. 11, United Nations Convention on the Law of the Sea, December 10, 1982, UN Doc. A/CONF. 62/122 with Corr.). "Roadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea,

264

PORTS

are included in the territorial sea" (Art. 12, ibid.). These rules on ports and roadsteads are not applicable to deepwater ports, consisting of offshore installations unconnected with the coast or connected with it by means of causeways, conveyer belts or pipelines above or below water: they may be located in interna waters, territorial waters or the high seas (see D.P. O'Connell, The International Law of the Sea (ed. by LA. Shearer), Vol. 2 (1984) pp. 842-847). (b) Access to ports A general interestin free tr~de and navigation as well as the economic interest of the coastal State support the tendency towards open access to maritime ports ( ~ Navigation, Freedom of). Nevertheless, there is no general rule of free access. Belonging to the territory and the internal waters of the coastal State, the port is subject to this State's jurisdiction and domestic law. A right of free access to a port can arise by virtue of an international agreement or hy unilateral allowance. Customary international law only obliges the coastal State to grant entry to -- ships in distress or under force majeure. The coastal State must follow the principle of non-discrimination in giving access to its ports. This does not apply to - warships, which may be conceded access or not, in accordance with the political discretion, of the coastal State. Mutual obligations to give free access to maritime ports are laid down i n numerous bilateral and multilateral agreements. Under the central provision of the 1923 Geneva Convention (Art. 1 of the Statute) every contracting State undertakes - subject to he principle of - reciprocity - to grant the" essels of every other contracting State equality of treatment with its own vessels, or those of an ( other State whatsoever, in the maritime ports situated under its sovereignty or authority, as regards freedom of access to the port, the use of 1he port, and the full enjoyment of the benefits a: regards navigation and commercial operations which it affords to vessels, their cargoes and pa:;sengers. The coastal State has the nght, according to its domestic law, to exercise police powers and civil and criminal jurisdiction over foreign ships in the port, with the exception of men-of-war and other

-~

State ships which are under protection of State immunity. (c) Customs and free ports

In entering the internal waters of the coastal State. vessels must cross the - customs frontier. In port, passengers and cargo must be cleared by the customs authority. In about 400 ports around the world, - free ports have been established, where goods are not subject to customs and tax duties. The loading and discharging, storing and manufacturing or processing of goods is duty-free, in the interest of promoting trade, transit, and harbour industry. The establishing of free ports is a matter falling within the domestic customs regulations of the coastal State. 3. Operation of Ports (0) Port authority Organization and management of ports vary depending on how public functions and private enterprises are separated, and whether the port authority is established as a public agency, a public enterprise or an autonomous body. Maritime ports generally are operated by the State or a municipality or jointly by both. The operation of a port by the State or another public entity is in any case a function of public policy and administration, re gardless if there is a separate or autonomous port authority, or if some of the public functions concerning the management of the port (such as the operation of facilities) by the port authority make use of public or private law. The Port of Hamburg, for instance, is administrated by authorities of th~ state, the Free and Hanseatic City of Hamburg; there is no port authority with legal autonomy as a separate legal subject. The largest enterprise, operating the facilities of the port, is a public enterprise of the state of Hamburg in the legal form of a commerciallaw corporation. The use of the port and the traffic within it are regulated by a statute (Hafenverkehrs- und Schiffahrtsgesetz, July 3, 1979, Hamburg Gesetz- und Verordnungsblatt (1979) p. 177) and an ordinance (Hafenverkehrsordnung, July 12, 1979, Hamburg Gesetz- und Verordnungsblatt (1979) p. 227). In France, by the Act on the Autonomous Maritime Ports (Loi Nr. 65-491, June 29, 1965, Journal Officiel, June 30,

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PORTS

1965, p. 5436), the port authorities have received a larger share of autonomy in the administration of ports and, on the other hand, are subject to stronger State surveillance. The autonomous ports in France are public utilities of the State, with legal personality and financial autonomy. Besides regulating and promoting traffic and trade of the port, the port authority is empowered to maintain order and to avert dangers to port traffic and operation. Such regulations and measures belong to the field of public law. (b) Usage of ports and range of port facilities

The treatment of foreign ships in a port must follow the principle of non-discrimination. The coastal State, notwithstanding the rule of equal treatment, is entitled to regulate the traffic and operation of the port and to levy tolls for using the port and its services. This includes the control of navigation and of the conduct and course of the vessels calling at the port, quarantine and other health provisions, the prescription of tugging in narrow waters, and the organization of pilotage services, whether optional or compulsory (see Art. 11 of the 1923 Geneva Convention; Gesetz uber das Seelotswesen, October 13, 1954, BGBI. I, p. 613, published anew, September 13, 1984, BGBI. I, p. 1214). By the Memorandum of Understanding on Port State Control (January 26, 1982, ILM, Vol. 21, p. 1), the maritime authorities of the Western European States have agreed to maintain an effective system of port State control with a view to ensuring that, without discrimination as to flag, foreign ~ merchant ships comply with the standards on ports laid down in the International Convention on Load Lines, April 5, 1966 (UNTS, Vol. 640, p. 133), the International Convention for the Safety of Life at Sea, November 1, 1974 (UNTS, Vol. 1184, p. 2), the Convention on the International Regulations for Preventing Collisions at Sea, October 20, 1972 (British Command Papers, Cmnd. 6962, Treaty Series, No. 77 (1977)), and other relevant agreements. The IMCO Convention on Facilitation of International Maritime Traffic, April 9, 1965 (UNTS, Vol. 591, p. 265) provides a framework for cooperation between the contracting governments to facilitate maritime traffic by simplifying and reducing to a minimum the formalities, documentary requirements and procedures on the arrival, stay

and departure of ships engaged in international voyages. The measures for the promotion of international maritime traffic under this Convention attempt to achieve the highest practicable degree of uniformity in formalities, documentary requirements and procedures. The IMCO inter alia has issued Guidelines on the Provision of Adequate Reception Facilities in Ports (Part 1: Residues and mixtures containing noxious liquid substances, February 1980; Part 3: Sewage, and Part IV: Garbage, June 1978, etc.) and Safety Recommendations on the Use of Ports by Nuclear Merchant Ships (1980) (~ Nuclear Ships). With a view to property, management, financing and maintaining the areas and facilities of a port a common distinction sets apart the "infrastructure", comprising the areas and installations for entry, navigation and port traffic, and the "superstructure", concerning the handling of cargo and the necessary services for ship and cargo. Whereas the infrastructure is generally a public function, the superstructure is frequently operated by private enterprises. Under German antitrust law the general prohibition of agreements which restrict competition does not apply to port services and harbour enterprises (§§ 99, sec. 2, Nrs. 2 and 3, and 104,\ Gesetz gegen Wettbewerbsbeschrankungen) . Maritime ports not only offer the services of harbour enterprises, i.e. enterprises necessarily linked with traffic and navigation in a port, such as wharfs or facilities for ships' spare parts and equipment, but are also a location for harbourorientated industries which manufacture or process imported raw materials and bulk goods, such as mineral oil, ore, tobacco and fish. This function of the port as an industry location is of rising importance for the national economy of individual States and international sea traffic as a whole. (c) Land-locked States

The 1982 Law of the Sea Convention gives the ~ land-locked States a specific right of access to and from the sea and a corollary freedom of transit (Art. 124 et seq.). The Convention encourages cooperation between the land-locked State and coastal State in the construction and improvement of means of transport, including port installations and equipment (Art. 129), and demands that ships flying the flag of land-locked States shall enjoy

266

PORTS

treatment equal to that accorded to other foreign ships in maritime ports (Art. 131). For the convenience of traffic in transit, free zones or other customs facilities may be established at the ports of entry and exit in the transit State by agreement between those States and the landlocked States (Art. 128). Convention and Statute on the International Regime of Maritime Ports, December 9, 1923, LNTS, Vol. 58 (1927) 285-313. Convention on Facilitation of International Maritime Traffic, April 9, 1965, UNTS, Vol. 591 (1967) 265-325. Memorandum of Understanding on Port State Control, January 26, 1982, ILM, Vol. 21 (1982) 1-30. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF.62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM Vol. 21 (1982) 1261-1354). Le regime international des ports, RdC, Vol. 15 (1926 V) 1-143. A.C. HUGHEY, Freedom of Ports, Temple Law Quarterly, Vol. 28 (1954-1955) 230-241. R.S. mOMAN, Free Ports and Foreign Trade Zones (1956). L.T. LEE, Jurisdictionover Foreign Merchant Shipsin the Territorial Sea: An Analysis of the Geneva Convention on the Law of the Sea, AlII., Vol. 55 (1961) 77-96. G. ALEXANDERSSON and G. NORSTROM, World Shipping: An Economic Geography of Ports and Seaborne Trade (1963). B. KASPROWICZ, The Polish Seaports, Polish Western Affairs, Vol. 4 (1963) 51-90. H. SEGELKEN, Seelotsenrecht (1966). C.J. COLOMBOS, The International Law of the Sea (6th ed. 1967). H. BOLTE, Rechte des Uferstaates in Seehafen iiber ausliindische Handelsschiffe, Thesis, University of Bonn (1969). N. SINGH, The Legal Regime of Merchant Shipping (1969). H.J. ABRAHAM, Das Seerecht (4th ed. 1974). M.1. GLASSNER, Developing Land-Locked States and the Resources of the Seabed, San Diego Law Review, Vol. 11 (1974) 633-655. K.A. GRAHAM, The Regulation of Deepwater Ports, VirginiaJournal of International Law, Vol. 1-5 (19741975) 927-957. D. RAUSCHNING, Die Durchfahrt durch nationale Gewiisser vor den Kiisten, in: R. Bernhardt und W. Rudolf (eds.), Die Schiffahrtsfreiheit im gegenwiirtigen VOlkerrecht, Berichte der Deutschen Gesellschaft fur Volkerrecht, Vol. 15 (1975) 39-54. R. LAUN,

Freedom of Navigation and the Trade Unions, GYIL, Vol. 19 (1976) 128-142. A.V. LOWE, The Right of Entry into Maritime Ports in International Law, San Diego Law Review, Vol. 14 (1977) 597-622. F. MUNCH, Les TIes artificielles et les installations en mer, ZaoRV, Vol. 38 (1978) 933-958. N. PAPADAKIS, International Law of the Sea. A Bibliography (1980). D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982), Vol. 2 (1984). R. VON DER GROEBEN et aI., Kommentar zum EWGVertrag (3rd ed. 1983). I. VON MUNCH,

PETER BADURA

POSTAL SHIPS 1. Notion and Historical Background Postal ships in the strict sense are public or private vessels employed exclusively for the transportation of mail. As -- State ships, such postal ships played a certain role in the early 19th century, but they have largely disappeared today. They enjoyed a special status and had to fly a particular flag. The term "postal ship" also referred to other, more recent, methods for the maritime transportation of mail. In the 19th century, the political importance of maintaining regular maritime connections with colonies and overseas countries convinced the major maritime nations to establish mailship routes. These routes were operated by private shipping companies, yet were heavily subsidized by States in order to obtain regular and frequent overseas deliveries of mail, cargo and persons. The mail-carrying function of the vessels even found expression in their names, for example in the term Reichspostdampfer for the private mail ships subsidized by the German Reich. A further category of maritime transportation of mail involved post-offices installed on passenger ships, which not only were entrusted with the mail, but also prepared it for further distribution at the port of destination. The first such post offices at sea were put in service by Austria-Hungary and France in 1869. In the last decade of the 19th century several bilateral arrangements relating to such postal services were established. Among the most important was that between the United

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POSTAL SHIPS

States and Germany on the transatlantic route. This particular institution had its legal basis in an agreement between the postmasters-general of the two countries, concluded on December 24, 1890 and renewed on August 2, 1907 (Sautter, p. 297 et seq.). It provided, inter alia, that the postal staff on the vessels concerned was to consist of German and United States postal agents under the authority of a United States postmaster, when sailing on United States ship, and vice versa. World War I interrupted this service and it finally disappeared after World War II. Today, by and large, postal ships in the abovementioned senses have disappeared. As a rule, the maritime carriage of mail is provided by ordinary merchant or passenger vessels. 2. Emergence of International Legal Rules In the 19th century several bilateral agreements granted postal ships a special status, exempting them from ~ embargo and judicial seizure, and sometimes even granting them the rights and privileges enjoyed by ~ warships (e.g. between the United Kingdom and the United States, December 15, 1848 (BFSP, Vol. 36, p. 443); the United Kingdom and the Netherlands, October 14, 1843 (BFSP, Vol. 31, p.89); the United Kingdom and France, September 24, 1856 (BFSP, Vol. 46, p. 195) and August 30, 1890 (BFSP, Vol. 82); and France and Sardinia, September 4, 1860 (CTS, Vol. 122, p. 469». The British Mail Ships Act of July 21, 1891 (54 & 55 Viet. c. 31) granted foreign postal ships freedom from arrest and detention on the basis of ~ reciprocity. In the case of the Solunto, these privileges were upheld by a French court, although the ship had not been on her itinerary (see Guillibert, p. 515). More restrictively, a resolution of the ~ Institut de Droit International stated that public postal ships or postal ships of subsidized shipping companies should be free from seizure in the ports along their designated postal routes only (AnnIDI, Vol. 34, p. 747). However, a general rule of international law granting non-public postal vessels in times of peace a different status from ordinary merchant ships did not evolve. Nor did postal ships enjoy special protection in times of war under internationallaw. It must be noted, however, that several bilateral conventions provided freedom from cap-

ture for mail ships in a state of war between the contracting parties. Furthermore, several examples of State practice are reported, granting mail ships exemption from capture. The Hague Convention XI of October 18, 1907 did not change the pertinent law (~ Hague Peace Conferences of 1899 and 1907). Art. 1 of the Convention states that "the correspondence of neutrals or of belligerents ... found at sea on board a neutral or enemy ship is inviolable" (Convention relative au regime des navires de commerce ennemis au debut des hostilites, Martens NRG3, Vol. 3, p. 522). This inviolability is not extended to the ship. Art. 2 only requires that searches of neutral mail ships be carried out with "great consideration". Accordingly, in World Wars I and II postal ships did not receive any special protection. Furthermore, even mail found on neutral ships was censored. The protests of neutral countries were directed only against the treatment of the mail itself, not of the ships. The conclusion may be drawn that today, unless otherwise provided for by agreement, mail ships do not enjoy specific immunities in time of war (~ Neutrality in Sea Warfare). 3. Current Legal Situation Despite the ever-growing importance of airmail services, maritime transport still has an important role in postal communications. On the municipal level, the legal framework of maritime mail transport varies. Often, national postal administrations conclude standard contracts with a number of shipping companies. Under this system, the mail is then forwarded to practically any ship under contract en route to the port of destination. Although postal ships as such have disappeared by and large, some features from the past still survive: for example, a number of States still have a special postal flag, which is flown when mail is on board. These flags, however, do not reflect any special status of the vessel, nor does international ~ comity require preferential treatment for a ship flying such a flag. Since 1878 the ~ Universal Postal Union (UPU) has promoted close coordination between its member States. Several multilateral and bilateral treaties have provisions that deal with questions of maritime mail transport, in particular concerning transit and handling charges (see

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POSTAL SHIPS

- Postal Communications, International Regulation). \ Art. 109 of the Universal Postal Convention of July 27, 1984 (British Command Papers, Cmnd. 9629 (1985» sets forth the obligation of member States to inform the International Bureau of the UPU of the shipping lines employed for postal service, their distances and the: average duration-of the sea journey. Pursuant 1:0 Art. 111 of the Convention, the International Bureau publishes a list of the shipping lines brought to its knowledge under Art. 109. This list also provides a basis for calculating the transit and handling charges in accordance with Arts. 62 to 65 of the Convention. Arts. 29 and 137(6) of the Convention regulate the handling and forwarding of mail delivered on the high seas: a duly authorized officer or a postal agent, if present, may collect the postage. This procedure is a consequence of the notion of the nationality of ships (- Ships, Nationality and Status). Art. 89 of the Universal Postal Convention gives the national postal administration the competence to transport mail destined for maritime transport by plane, provided the receiving postal administration agrees. These and other technical matters are dealt with in a number of bilateral agreements. Les Actes de l'Union Postale Universelle, Revises et annotes par Ie Bureau International, Vol. 1 (1981), Vol. 2 (1980). Union Postale Universelle, Documents du Congres de Hamburg 1984, Vol. 3 (1985). De l'insaisissabihte, dans les rapports internationaux, des navires affectes au service postal, Journal de droit international prive et de la jurisprudence comparee, Vol. 12 (1885) 515-527. A.P. HIGGINS, The Treatment of Mails in Times of War, BYIL, Vol. 9 (1928) 31-41. Regime de navires dans les ports etrangers, in: Travaux preparatciresde la Session de Stockholm, Aoiit 1928, I'Institut de Droit International, Session of Stockholm, August 1928, AnnIDI, Vol. 34 (1928) 562-565. G. GIDEL, Le droit international public de la mer, Vol. 1 (1932) 96-102, Vol. 2 (1932) 328-336. K. SAUlTER, Geschichte der Deutschen Post, Vol. 3: Geschichte der Deutschen Reichspost (1871-1945) (1951). C.]. COLOMBOS, The International Law of the Sea (6thed. 1967) 293, 608-614. D:P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 2 (1984) 1123-1124.

H. GUILLIBERT,

MICHAEL J. HAHN

PUEBLO INCIDENT 1. Facts

The Pueblo was an intelligence ship armed with two machine guns. Despite its limited defence capability, the Pueblo was a - warship: It was listed as a commissioned vessel in the United States Naval Register, its crew wore United States Navy uniforms, and it was commanded by a United States Navy officer. On January 23, 1968 the vessel was seized by North Korean warships. It is unclear whether the seizure took place in international waters or not (- High Seas). North Korea contended that the vessel was captured 7.1 miles offshore. The United States argued that the Pueblo was under firm instructions to remain at least 13 miles from the North Korean coast, that is, outside the territorial waters claimed by North Korea (- Territorial Sea). According to official statements made by the United States, the vessel was captured in a IS-mile distance from the coast. An additional complication results from the fact that there was even more disagreement as to the legitimate extent of North Korean territorial waters in 1968 than there is today. North Korea claimed territorial waters extending to a 12-mile limit. The United States, on the contrary, insisted on a 3-mile territorial sea. The United States argued that even North Korea did not pretend that the Pueblo had entered this 3-mile zone, and that even if the North Korean factual allegations were true, the vessel would not have intruded into her territorial sea. North Korea held the crew members of the vessel as - hostages for almost eleven months. To free the crew the American negotiator had to sign a confession and an apology prepared by the North Koreans. According to this document the - espionage ship Pueblo had illegally intruded into North Korean territorial waters and had been seized there by naval vessels of the Korean People's Army undertaking - self-defence measures. However, there was another statement coupled with the signature of this document which the North Koreans accepted. This second statement clarified the United States standpoint. Moreover, it contained a declaration by the American negotiator that he had signed the document to free the crew and only to free the crew, and that his signature would not and could not alter the facts (ILM, Vol. 8 (1969) p. 198).

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PUEBLO INCIDENT

2. L egal Issu es T he Pueblo incid ent raise s several still unsolved p roble ms of in ternation al law. Besides th e question of th e le gitim ate bre adth of th e territorial sea , these problems main ly conce rn the right of ... innocenI passage for warshi ps a nd th e immunity of ... State ships including intelligence vessels (... State Immunity). Today there is a stro ng te nde ncy towards the re cogni tio n of a 12-mile territori al sea . Art . 3 o f the Uni te d Nat io ns Convention o n the Law of th e Sea, Decembe r 10, 1982 ( U N Doc. A / CONF. 62 /122 with Corr .) rec ognizes the right o f ev e ry State to est a blish th e breadth o f its territori al sea up to a limit o f twelv e nautical miles. Ev en th ough the Co nve ntion has not yet e nte red into for ce , it co nstitutes a n important argume nt for th e general acce p tance of th e twelve-mile limi t. Although so me States with maj or maritime inte rests. such as th e U nited St ates, only claim a 3-mile territorial sea , it is doubtful whether this fact can bar international recognition of th e 12-mile limit. In any case , there is no ro om for the assumptio n th at in 1908 t he re was ge ne ral ag ree me nt as to a territorial sea o f o nly thre e miles br eadth . Significa ntly. th e U nite d States, accordi ng to its own official stat emen ts , had instruc te d th e Pueblo to keep o ut of th e 12-m ile territorial waters cla imed by North Korea . T he Uni ted Sta tes' a tt itude to wards th e bre ad th of the North Korean te rritoria l wa te rs was , th us. ambivalent. T he foll owin g a rgume nta tion is, th ere fore . based upon the ass umptio n of a twe lve- mile North Korean territoria l sea . That me an s t hat th e vessel was in No rt h Kore an te rr ito rial waters in' the ev e nt it was capture d 7. 1 mi les off th e coast as the Nor th Korean s alleged . If the U nite d States was righ t in contending th at the se izure took place more th an IS mile s of fsho re, the Pueblo would then have been in inte rna tio na l wat ers . Although the Pueblo , as a n electro nic in telli gence vessel , was e ngaged in surve illa nce of North Korea, it is very doubtful wh ether this would constitute a n illeg al activity (... Milit ary Reconnaissance) . International law seems to proceed on a case-by-case basi s in thi s a rea , taking into account the way surveillance is ca rr ied out and the means employed . A possible sta y of th e Pueblo in North Kore an territori al wat ers was not illegal if it was co ve re d

by the right of innocent passage. The right of innocent passage must harmonize the security interests of coastal States with the interests of seafaring nations. Its importance increases a lo ng with the growing breadth of territorial waters, The right of innocent passag e of co mme rcia l ships is now generally acce pted, but it is controversial how fa r this right applies to warships. The ... International Court o f Justice in the ... Co rfu Ch annel Case affirmed the right of innoce nt passag e for British warships through Albanian territorial waters, However , this precedent is o f limited re levance for the Pueblo incident , since the Corfu C ha nne l is an international -> strait. The Convention on th e Territorial Sea an d the Contiguous Zone. April 29, 1958 ( UNTS. Vol. 516 , p . 205) does not regulate the right of innoce nt pa ssage explicitly for warships. However . the Convention does provide for th e right o f innocent passage in sub-section A: "Rules applicable to All Ships" , While the United States is a party to the Co nve ntion , North Kore a is not. Since there is insufficient agre em ent as to t he right of innocent passa ge o f warshi ps an d its shape. one also cannot ass ume th e existe nce o f such a customary righ t. It is parriru larlv inadrni« ibl e in this case to int cr ., I, ·,:d

'I,

flOll l

ii I>

practice o f several co as ta l ' l ; \1 I I t" h.: rah.: ,Il l " passage o f wa r- hip' . If a right of 1111111' "' -" l': .' ~ . w.u ... lup ... I " ne ve rtheless I -up qu r .' \ 11 arises whe the r 11 " I ' , -l in th e h :lI11 Cwork of suc h a n!!-h l rv.\ .rruuc d th a t t ill" vess e l was ho ve ring .n It,! tl ~ oa ~l. Th i-, activit) 1"0 no t cove red by t hl' l !I1.:.:p t 0 1 tr;l':e rsing I il l' te rrito ria l sea inh L f l' II' III A II. ! --l o t the I Y5X Co nve ntion a nd \ r t 0 1 th l IQ;...2 Con ven tion . A cco rding to bo i h Phl\I -, It )Il " lo ppi ng and a ncho ring arc pern" ..... . ih ll..' u nly I II 0 tar a'" th L: ~ .i rc in cident a l to ordu uu v na \'i,;!. a t iu ll o r a rt' rcnd cr vd necessar y by lorn ' mall'w ,' or di-arc-,« . Fiually. passage is inn ocvnt onl y . . " far a ~ it i.. . no t pre judicia l to the p~ acc. gootl o rder o r sc curitv of the coast al Stale IIlJ5S Conve ntio n. Art . 14 . para . 4; 1982 Co nve ntion. A rt. 19 , pa ra . I ) . T h is principle can le re ga rde d as a n e xpressio n o f -. cu stomar y uu crn ation a l la w and is root ed in State pr actice even be fore IlJ5X. All in all , there is goo d re ason to ass ume that in the event th e Pueblo e nte red North Ko rean terr itorial waters . it was t he re illega lly ,

270

PUEBLO INCIDENT

Assuming that the warship Pueblo intruded illegally into North Korean territorial waters for the purpose of espionage, the question finally arises, what kind of counter-measures North Korea could have taken. As a rule, warships of foreign States enjoy immunity. This immunity also applies to the crew. But the extent of the immunity is controversial. Both Art. 23 of the 1958 Convention and Art. 30 of the 1982 Convention only refer to "regulations of the coastal State concerning passage through the territorial sea", which must be respected by warships. These regulations govern primarily navigation, safety, health, water pollution and the like, as Art. 19 of the 1982 Convention indicates. However, this does not imply that the validity of other laws of the coastal State shall be generally inapplicable. That is particularly relevant with regard to legal norms which, as in the case of provisions on treason and espionage, aim at the protection of the coastal State through the maintenance of its security and good order. The implementation of such provisions, however, is a different problem Art. 23 of the 1958 Convention and Art. 30 of the 1982 Convention provide that the coastal State may require any warship not complying with its laws and regulations concerning passage through the territorial sea to leave the territorial sea. It is unclear, whether the coastal State is limited to requiring the vessel to leave only in Gases involving violations of safety, health and similar provisions, or whether this right applies in general to any kind of violation of the law bearing on innocent passage, including violations not concerned with "innocent" passage at all. Art. 32 of the 1982 Convention suggests an extensive understanding of immunity: "With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of warships and other government ships operated for non-commercial purposes." Official United States statements on the Pueblo incident are, likewise, based on a wide concept of immunity. They imply that warships might at best lose their immunity in case of an armed attack but certainly not where they engage in espionage. Consequently, North Korea would only have been entitled to require the Pueblo to leave her territorial sea.

3. Conclusion It is hard to judge abstractly the immunity of intelligence or espionage vessels. Rather, an evaluation of-the interests of the coastal State and the flag State on a case by case basis would seem to be more useful. Such an evaluation entails the problem of defining espionage. The mere surveillance of the coast from a warship for reconnaissance purposes certainly should not entail the loss of its immunity. For the sake of avoiding abuse, espionage by a warship should be clearly recognizable as such. There is no doubt about the reconnaissance activities undertaken by the Pueblo. Seizure of the vessel in territorial waters coupled with the capture of its crew, however, would at best have been justified under extraordinary circumstances entailing a particular threat to the security of North Korea.

Contemporary Practice of the United States Relating to International Law, Seizure of the USS Pueblo: Legal Issues in Pueblo Incident, Department of State Telegram of February 8, 1968, AJIL, Vol. 62 (1968) 756-757. Release of the Crew of the U.S.S. Pueblo, December 22, 1968, ILM, Vol. 8 (1969) 198-199. B.P. GOLDSMITH, International Law, The Pueblo Incident, POSSible Aspects under International Law, South Carolina Law Review, Vol. 20 (1968) 485-493. t.c. MEEKER, Legal Aspects of Contemporary World Problems, Seizure of the U .S.S. Pueblo, DeptStateBuli, Vol. 58 (1968 I) 468-469. c.c. MORRISSON, Jr., International Law and the Seizure of the Pueblo, Texas International Law Forum, Vol. 4 (1968) 186-193. G.H. ALDRICH, Questions of International Law Raised by the Seizure of the U.S.S. Pueblo, ProcASIL at its Sixty-Third Annual Meeting Held at Washington, D.C., April 24-26, 1969 (1969) 2-6. W.E. BUTLER, The Pueblo Crisis: Some Critical Reflections, ProcASIL at its Sixty-Third Annual Meeting Held at Washington, D.C., April 24-26, 1969 (1969) 7-13 [with Comments by O.J. Lissitzyn and J.A. Cohen]. F. FRANCIONI, II caso del "Pueblo" e le norme internazionali sullo spionaggio, Didnt, Vol. 23 (1969) 319-337. A. McCLAIN, The Pueblo Seizure in a Better Ordered World, University of Pittsburgh Law Review, Vol. 21 (1969-1970) 255-274. A.P. RUBIN, Some Legal Implications of the Pueblo Incident, ICLQ, Vol. 18 (1969) 961-970.

RED CRUSADER INCIDENT

A. BERG,

Das sowjetische V-Boot 137 in schwedischen

Hoheitsgewassern - Fragen der Imrnunitat fremder

Kriegsschiffe, ZaoRV, Vol. 42 (1982) 295-326. Foreign Warships and Immunity for Espionage, AJIL, Vol. 78 (1984) 53-75.

I. DELUPIS,

JULIANE KOKOTI

271

- high seas. Between the Faroes and the Orkneys the two ships met two British naval vessels (- Warships). One of them posed herself between the Red Crusader and the Niels Ebbesen, thereby, despite Danish protests, permitting the Red Crusader to escape. 2. Findings of the Commission of Enquiry

RED CRUSADER INCIDENT

Following a Danish proposal, a Commission of Enquiry was established by an Exchange of Notes 1. Background of November 15, 1961 (UNTS, Vol. 420, p. 67; This incident involved the British trawler Red - Fact-Finding and Inquiry). It consisted of Crusader and the Danish fishery protection frigate neutral members only and was headed by Charles Niels Ebbesen in a conflict over fishing rights in the De Visscher. The Commission rendered its report waters off the - Faroe Islands. These waters on March 23, 1962. constituted a traditional fishing area for British The report dealt extensively with the question trawlers. Originally, fishing limits around the how the position of the Red Crusader could be Faroes were based on a three-mile limit drawn accurately determined. The Commission preferred from straight - baselines (Exchange of Notes of the double-angle method of measurement using April 22, 1955, UNTS, Vol. 213, p. 318). In 1958 landmarks to radar fixes because "ship-borne the Faroes unilaterally proclaimed a twelve-mile navigational radar sets are not yet precision limit. In the face of British objections a six-plus- instruments" (p. 9). As a result of its investigation six-mile solution was finally agreed upon. Accord- the Commission found that the Red Crusader was ing to the Exchange of Notes Constituting Agree- inside the inner six-mile belt for about 14 minutes ment between Denmark and the United Kingdom with her gear not stowed although no proof of of April 27, 1959 (UNTS, Vol. 337, p. 416) an fishing could be established (p. 17). According to the Commission the firing of solid inner belt of six miles off the islands was reserved for local fishermen, while British trawlers were gun-shots "exceeded legitimate use of armed force allowed to fish in the outer six-mile belt except for on two counts: (a) firing without warning of solid certain areas in defined periods. gun-shot; (b) creating danger to human life on On May 29, 1961 the Danish'frigate approached board the Red Crusader without proved the Red Crusader that was suspected of fishing necessity". On the other hand, the escape of the inside the exclusive Danish fishery zone. The Red Red Crusader was considered to be "in flagrant Crusader ignored signals to lie to given by violation of the order received and obeyed" searchlight and siren until a blank 40 mm shell was (p.22). However, this and the seclusion of the fired across her bow. The Danish authorities put boarding party could not justify the violent Danish an officer and sailor on board the Red Crusader response. and ordered her to follow the Niels Ebbesen in Turning to the action of the British naval order to have the matter examined and tried by a vessels, the Commission considered that they "made every effort to avoid any recourse to Faroese court. While under way the Red Crusader suddenly violence .. . . Such an attitude and conduct were changed course and tried to escape. Meanwhile impeccable" (p. 24). In fact, Denmark withdrew the boarding party was secluded. The Niels part of its charges during the proceedings. Ebbesen took up pursuit (- Hot Pursuit). After Both governments accepted the findings of the firing several warning shots without result, the Commission as final and withdrew their respective frigate opened fire on the radar scanner, mast and claims. In the aftermath of the incident the Danish lights. Eventually a 40 mm shell hit the stern. All government saw no reason to change the existing shooting took place in Danish territorial waters. fishery protection instructions concerning the The Red Crusader continued and reached the - use of force against offending vessels.

272

RED CRUSADER INCIDEN~

3. Evaluation

The Commission of Enquiry went beyond its prescribed fact-finding mission and unequivocally passed a judgment on the behaviour of the parties involved, clearly determining the respective responsibilities. This did not seem to have harmed its authority. On the contrary the balanced findings were swiftly accepted by the parties. The main significance of the Red Crusader incident is to be seen in the Commission's appraisal of the use of force by the Danish frigate in hot pursuit (see also --* I'm Alone, The). It shows how difficult it is to obtain legal approval for the use of gun-fire against offending fishing vessels during peacetime. Unfortunately, the report did not spell out what other means could have been employed to stop the Red Crusader. Under the circumstances the Commission was quite strict with regard to the Danish position. International practice suggests that resort may be made to small calibre gun-fire if all other measures prove to be iwffective and if adequate warning and instruction ir given. Hureau international de la Cour Permanente d'Arbilragc. Report of the Commission of Enquiry estabI ~ h by d the Government of the United Kingdom of (ireat Britain and Northern Ireland and the Governmrnt of the Kingdom of Denmark on November 15, IW;i (1962). The Red Crusader, Commission of Enquiry (Denmark lL!nited Kingdom), March 7.3, 1962, ILR, Vol. 35 ( 19h7) ,485-500. I)ansk Folkcretlig Praksis 1961-1962, "Red Crusader" incidentet, NordTIR, Val. 33 (1%3) 57-67.

Le fonctionnement de la prkdure d'enquEte dans I'affaire du "Red Crusader", AFDI, Vol. 9

G. TIMSIT,

(1963) 460-472. N.M.POVLANTLAS,The

Right of Hot Pursuit in Interna-

tional Law (1%9).

REMOTE SENSING see Spacecraft and Satellites

SAFETY RULES AT SEA see Maritime Safety Regulations

SALVAGE OF SHIPS I . Definition and Historical Summary Salvage is defined as the rescue of a sea-going ship and its cargo from distress at sea. The rescue of human lives is not included in the legal definition of salvage. During the sailing-ship era, it was virtually impossible to rescue ships and lives at sea. Stranded ships were subject to an archaic right which allowed inhabitants along the coast and territorial rulers to appropriate goods and persons cast up on land. Deliberate, unlawful wrecking was common along some coastal areas. This right was abolished during the Enlightenment. However, deliberate wrecking was not brought under control until the 19th century. The development of steam-powered ships in the 19th century and their increasingly valuable cargos led to a growing demand for safety in shipping. In addition, the improved chances for rescues at sea required amendments to salvage law. Many countries, thus, guaranteed a statutory remuneration to successful salvors. Parallel to this guarantee, the insurers on hull and cargo designed in 1908 a standard contract for voluntary salvage based on the principle of "no m e - no pay" (if the salvage operation is unsuccessful, remuneration will not be paid). This principle was incorporated in Lloyd's Standard Form of Salvage Agreement (LOF). A revised version of this contract is still in use throughout the world today (LOF 80). 2. International Law of 3alvage

International regulations for salvage were drawn up relatively late. They consist of international treaties aimed at the unification of national laws of salvage. At present, the Convention for the Unification of Certain Rules relating to Assistance and Salvage at Sea from September 23, 1910 (Martens NRG3, Val. 7, p. 728), ratified by 49 States, is still valid. This convention applies to all participants in salvage operations if either the salvaging ship or the ship being salvaged has the nationality of one of the State parties (+ Ships, Nationality and Status). The convention covers not only the salvage of + merchant ships (also including * aircraft) carried out by any party, but also

SATELLITE BROADCASTING

273

risks posed by ships carrying dangerous cargos operations between sea-going and inland vessels, irrespective of whether the services are rendered (_ Marine Environment, Protection and Preon the - high seas, in the - territorial sea or in servation). These shortcomings became obvious in _ internal waters. Whereas the convention does the case of the - Amoco Cadiz in 1978, which caused the - International Maritime Organizanot apply to the salvage of - warships and tion (IMO) to undertake the revision of the - State ships in non-commercial service, it does cover instances in which these ships carry out convention. This revision, based on a draft convention passed in 1981, is intended to be comsalvage operations. In addition, the convention also recognizes pleted by an IMO Diplomatic Conference in 1989. The draft convention, the essential aspects of commercial salvage operations. The basic principles of the convention are contractual freedom which were already contained in LOF 80, upholds and "no cure - no pay". If no valid salvage the principle of commercial salvage operations. However, it modifies the principle of "no curecontract exists, independently operating salvors who conduct successful and worthwhile salvage no pay" in order to prevent environmental operations are entitled to a statutory remuneration damage. If a ship in distress is potentially dangerfrom the shipowner. In the absence of an agree- ous to the environment, the salvor of the ship is ment, the amount of the salvage reward is entitled to a remuneration based on his costs even dependent on the measure of success, the salvor's if the salvage operation was unsuccessful. If the time and costs, and the value of the recovered . operation is successful, the salvage remuneration property; however, it is not to exceed this yalue. is determined according to the risks undergone by The salvage reward is determined by the courts, the salvor, the promptness of the service rendered which also examine the equity of the salvage and the salvor's attempts to prevent environmencontracts. tal damage. The State parties agree to assist the The convention acknowledges'the obligation to salvor and, most important, to guarantee him rescue human lives from distress at sea without access to a safe - port. Craft or structures compensation ( - Ships in Distress). However, it capable of navigation are treated like sea-going does not create an internationally binding obliga- ships under the draft convention. tion for individuals, whose obligations are govVarious issues remain to be discussed by the erned solely by national law. According to the IMO, including coastal countries' rights in relation convention, whoever rescues human lives is enti- to salvors and the question of the division of tled to a fair share of the remuneration paid to the payment of salvage remunerations between ships salvor. and cargo, which is of special importance to insurers. 3. Current Legal Problems; Revision of the 1910 MJ. NORRIS, The Law of Salvage (1958). Convention H. ENGERT-SCHOLER, Volkerrechtliche Fragen des EigenAs the 1910 Convention only applies to seatums an Wracks auf dem Hohen Meer (1979). going ships, the legally important question of the D.P. O'CONNELL, The International Law of the Sea, Vol. 2 difference between sea-going ships and shipwrecks (1984). arises. Shipwrecks are subject to other regulations D.S. KENNEDY and F.R. KENNEDY, The Lawof Salvage (5th ed. 1985). concerned mainly with the power of disposition in connection with ownership and jurisdiction (e.g. HANS-HEINRICH NOLL in the cases of the - Torrey Canyon and the Edinburgh). Coastal countries and former flag States can contend for the right of possession. SATELLITE BROADCASTING Not only is the convention inadequate, but also outdated. Off-shore craft and an efficient salvage 1. The Technical Development industry are not taken into account by the agreement. Above all, it does not have adequate Satellites have become one of the most improvisions to counteract the great environmental portant means of international communication

274

SATELLITE BROADCASTING

since 1962, when the first telecommunications satellite Telstar was launched into orbit (-+ Telecommunications, Internatonal Regulation). For broadcasting services, satel lites were first used to transmit programmes to stations which then broadcast to individual receivers (-+ Broadcasting, International Regulation). This system is widely in operation and permits news and other programmes to be made available quickly around the globe. In -+ developing States with a limited number of terrestrial transmission stations the use of satellites makes it possible to connect distant parts of the country for purposes of radio and television broadcasting. Modern techniques of emission and reception have permitted since about 1975 direct hroadcasting from satellites to individual listeners. Although not yet widely in operation (1988), this system is expected to become rather important in the future.

However, it is clear today that with modern equipment radio signals may be received far beyond the area of "beams" on which the distribution in 1977 was based. The beams agreed in 1977 also overlap to a great extent, the one attributed to the Federal Republic of Germany, for instance, fully covering -+ Berlin and thereby the German Democratic Republic and vast parts of Czechoslovakia. It also seems that technical devices to adjust antennae to different emissions will soon be available. In 1985 the World Administrative Radio Conference on Use of Geostationary-Satellite Orbit came to an agreement on the frequencies for satellite broadcasting (lTV, Final Acts adopted by the First Session of the World Administrative Radio Conference on the Use of the Geostationary-Satellite Orbit and the Planning of Space Services Utilizing It, Geneva, 1985).

2. The lTV Regulations

3. The Dispute about Prior Consent

The -+ International Telecommunication Union (ITU) regulated, through the World Broadcasting Satellite Administrative Radio C0nference of 1977, the frequencies to be used by, as well as the geostationary orbit positions available for satellites of the different cou ntries in Regions 1 and 3 while for Region 2 (Americas) no distribution was agreed (lTU, Final Acts of the World Administrative Radio Conference for the Planning of the Broadcasting-Satellite Service in Frequency Bands 11.7 - 12.2 GHz (in Regions 2 and 3) and 11.7 -12.5 GHz (in Region 1), Geneva, 1977). For Europe, where the Easterr European States had a clear interest to limit the possibilities for their peoples to receive Weste rn broadcast programmes, it was decided to disribute orbit positions in a way which would make that reception difficult. The Eastern European States will broadcast from 1 degree West, the Western European from 19 degrees West. The 197'7 Conference also confirmed the rule already adc pted at the 1971 ITU Conference in Geneva: "In devising the characteristics of a space station in the broadcasting satellite sevice , all technical means available shall be used to reduce, to a maximum extent practicable, he radiation over the territory of other countrie ~ unless an agreement has been previously rcached with such countries. "

In 1972 the -+ United Nations General Assembly decided, unanimously against the United States, that the matter of direct satellite broadcasting should be regulated by -+ treaties and that a committee should elaborate principles to avoid international conflicts and protect the -+ sovereignty of States against "external interference" (UN GA Res. 2916(XXVII), November 9, 1972). The great majority of States was of the opinion, at that time, that such use of broadcasting could interfere with State sovereignty. The General Conference of the -+ United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted in 1972 a declaration concerning satellite broadcasting according to which programmes should be "essentially apolitical", the sovereignty of States should be respected and their prior consent should be obtained before directing broadcasts to their territory (ILM, Vol. 11, p. 1375). The issue whether or not there exists a principle of "free flow of information" also permitting broadcasting from satellites to whoever may have the possibility to receive, or whether States must be asked and give their prior consent, became the crucial matter in the discussions in the United Nations (-+ Information and Communication, Freedom of). On December 10, 1982 the General Assembly adopted Resolution 37/92 by 107 to 13 votes with 13 abstentions. All Western

275

SA TELLITE BROADCASTING

States either voted against, or abstained (France, Portugal and Sweden), except for Turkey and - Cyprus who voted with the majority. The main reason for this attitude were paragraphs 13 to 15 of the Resolution which read: "13. A State which intends to establish or authorize the establishment of an international direct television broadcasting satellite service shall without delay notify the proposed receiving State or States of such intention and shall promptly enter into consultation with any of those States which so requests. 14. An international direct television broadcasting satellite service shall only be established after the conditions set forth in paragraph 13 above have been met and on the basis of agreements and/or arrangements in conformity with the relevant instruments of the International Telecommunication Union and in accordance with these principles. 15. With respect to the unavoidable overspill of the radiation of the satellite signal, the relevant instruments of the International Telecommunication Union shall be exclusively applicable." This is a clear example of a situation where a fundamental dispute exists between States as to the legal rules applicable or appropriate. Especially such States as the United States, Great Britain, Belgium, Italy, Japan and the Federal Republic of Germany have continuously argued that the principle of free flow of information, recognized for radio broadcasting in general, must also be respected for direct satellite broadcasting and that, therefore, prior consent is not acceptable. Since it is recognized that normal broadcasting within the permitted frequencies may well be directed to foreign countries and is so directed by many important stations, it must be concluded that Resolution 37/92 could not change customary international law. Whether the States voting for the Resolution will respect it in practice remains to be seen.

4. The Relevance of Human Rights Instruments Freedom of expression and information is protected under the Universal Declaration of Human Rights of 1948 as well as under all human rights treaties ( - Human Rights, Universal Declaration (1948); - Human Rights Covenants). The formula "regardless of frontiers" is included in all

these instruments. At least where there exists a liberal approach to interpretation and judicial organs are set up to protect the system, as in the case of the - European Convention on Human Rights. it would seem to be clear that individuals have the right to receive all broadcasts technically available. States cannot interefere with this freedom. This freedom may also become important within a system such as the - European Economic ComWlUnity which will not permit restrictions on the freedom to offer services if these restrictions would violate the freedom of information.

5. Evaluation Direct satellite broadcasting may soon become an additional instrument to create a world society. It is open to question whether States will agree on additional legal rules. That - intervention by broadcasting is theoretically possible but very unlikely, because it would require very clear State involvement, does not mean that there is no need to respect the different cultural traditions in the world. The example of a bull fight broadcast to rural India is an indication of the need for restrictions even where the principle of free flow of information is fully recognized. It would also seem justified that rules concerning advertising. protection of children, etc., in the receiving country should be respected. The -') Council of Europe is presently preparing a European convention with the aim of finding common standards for these problems. THIEME. Rundfunksatelliten und internationales Recht (1973). s. COLJRTEIX, Televisions sans frontieres (1975). II. ENGELHARD. Satellitendirektfernsehen - neue Technologie fur cinen besseren internationalen Informationsfluf3? (1978). lA. FROWEIN, Das Problem des grenzuberschreitenden Informationsflusses und des "dornaine reserve" (Free Flow of Information Across Boundaries and the "dornaine reserve"), in: Berichte der Deutschen Gesellschaft fur Volkerrecht , Vol. 19 (1979) 1-38. P. MALANCZLJK, Das Satellitenfernsehen und die Vereinten Nationen, ZaoRV, Vol. 44 (1984) 257-286. CO. CHRISTOL. Prospects for an International Regime for Direct Televisions Broadcasting, ICLQ, Vol. 34 (1985) 142-15R. S. GOROVE, International Direct Television Broadcasting by Satellite: Prior Consent Revisited, Columbia Journal of Transnational Law, Vol. 24 (1985/1986) 1-11. LJ.

276

SATELLITE BROADCAS rING

Toward a European Agreement on Satellite Broadcasting, Annals of Air and Space Law, Vol. 10 (1985) 367-388. F. PRESUTTI, Diffusione diretta internazionale da satellite e consenso preventive degli sta.i destinari, RivDirInt, Vol. 70 (1987) 40-72. W. RUDOLF, Informationsfreiheit und Sate IIitenRundfunk im Volkerrecht, in: W. Furst, R. Herzog and D. Umbach (eds.), Fes:schrift fur Wolfgang Zeidler, Vol. 2 (1987) 1869-1~83. F.w. HONDIUS,

JOCHEN ABR. FROWEIN

SATELLITES see Spacecraft, Satellites and Space Objects

SEA LANES 1. Notion Ocean shipping traffic is not usually restricted to fixed routes, because of the vastness of the sea. In recent times, however, both Slips and navigation aids have so much improved that pre-determined courses can be maintained most accurately. As a result, fixed routes, characterized by a high traffic density, have developed in the major ocean routes. Of course, no ship is under any obligation to follow a specific route; there is a liberty of choice. However, where the density of traffic is great or where the freedom of movement of shipping is inhibited by restricted sea-room, the existence of obstructions to navigation, limited depths, or unfavourable meteorological conditions, sea lanes will be established - partly almost automatically as a consequence of natural features (such as rivers leading into harbours, ~ straits, or peninsulas) or of civil engineering requirements (such as dredged channels). Sea lanes also increasingly arise as a result of admiristrative measures. 2. Historical Evolution of Legal Rules The sea lanes planned and instituted by human agency comprise, in the chronological order of their establishment: (i) the fairways marked by coastal States with aids to navigation so as to saf ely guide incoming and outgoing ships past obstructions or shallow grounds inshore towards ~ ports and harbours or out towards the open sea as the case may be;

(ii) the fixed routes established by Art. 36 of the 1929 Convention on the Safety of Life at Sea (SaLAS), which is repeated in Chap. V, Rule 8 of SOLAS 1948 and 1960 (UNTS, Vol. 536, p. 27), to avoid passage through areas endangered by icebergs in the North Atlantic; (iii) the channels cleared through mine fields following the Second World War and the use of which was compulsory for all ships until the channels were dispensed with after the danger of mines was eliminated; (iv) the routeing systems which are currently being established in great numbers regularly with the concurrence of the ~ International Maritime Organization (IMO); these systems seek to reduce the risk of casualties and include traffic separation schemes (in the English Channel, the German Bight and many other areas), recommended tracks, areas to be avoided, precautionary areas, and deep-water routes (e.g. the Strait of Malacca); (v) the sea lanes and traffic separation schemes which States bordering straits used for international navigation and archipelagic States may designate after adoption by the IMO to promote safe passage through straits (United Nations Convention on the Law of the Sea, December to, 1982 (UN Doc. A/CONF.62/122 with Corr.), Art. 41) or archipelagic waters (1982 Law of the Sea Convention, Art. 53; ~ Archipelagos). 3. Current Legal.Situation The establishment of sea lanes for improving the safety of navigation in areas where ships converge and for facilitating traffic surveillance by coastal States bordering straits or archipelagic waters is governed by the General Provisions on Ships' Routeing (IMO Resolution 572 (14». The measures which may be adopted comprise, in the order of the degree to which they interfere with the freely chosen routes taken by ships in traffic: (i) Areas to be avoided (~ Warning Zones at Sea), i.e areas within defined limits, where either navigation is particularly hazardous or where it is exceptionally important to avoid casualties and which should be avoided by all ships or by certain classes of ships; (ii) recommended tracks, i.e. routes which have been specially examined to ensure, as far as possible, that they are free of dangers and along which ships are advised to navigate;

277

SEA-BED AND SUBSOIL

(iii) deep-water routes, i.e. routes within defined limits, which have been accurately surveyed for clearance of sea bottom and submerged obstacles as indicated on charts; (iv) two-way routes, i.e. lanes, in which courses may not be freely chosen but where there are two separate traffic lanes provided for the two directions of traffic flow, as in road traffic; (v) roundabouts, i.e. circular traffic lanes within defined limits, on which traffic is separated by moving in a counter-clockwise direction; (vi) inshore traffic zones, i.e. designated areas between the landward boundary of a traffic separation scheme and the adjacent coast, not normally to be used by through traffic, and where local special rules may apply; and (vii) traffic separation schemes, i.e. systems in which two traffic lanes are established for the separation of opposing traffic streams or for the separation of traffic of particular classes of ships proceeding in the same direction by the creation of special zones or, if that is not possible, by simple separation lines. IMO is recognized as the only international body responsible for establishing and adopting measures on an international level concerning the routeing of ships. The IMO procedure is as follows: IMO will not adopt or amend any routeing system without the agreement of a coastal State where such system may affect its interests, including the exploitation of living and mineral resources, the environment, navigational aids, or hydrographic surveys. Governments may propose a new routeing system or an amendment to an existing one but, for international purposes, adoption by IMO is the general requirement. The adopted system will not come into force before an effective date has been fixed in consultations between IMO and the government concerned. The date will be promulgated by the government. Governments are recommended to ensure that oil rigs, platforms, and other similar structures are not established within adopted routeing systems. These IMO "General Provisions on Ships Routeing" are at present the "generally accepted international regulations" to which sea lanes and traffic separation schemes in straits and in archipelagic waters and the adjacent ~ territorial sea are to conform (see 1982 Law of the Sea Convention, Art. 41(3) and (4) and Art. 53(8) and

(9); ~ Law of the Sea). For other routeing systems in territorial waters, which governments are not obliged to submit to IMO, the technical. provisions of the IMO resolutions are also to be used. An example for the latter procedure is the port entrance regulation for Tokyo. Shipping in traffic separation schemes adopted by IMO is bound by the special provisions of Rule 10 of the 1972 International Regulations for Preventing Collisions at Sea. The main rules are as follows: Vessels must join or leave the traffic lanes normally at their terminals but, if this is not possible, then deviations by small angles are permitted; anchoring is to be avoided; vessels engaged in fishing and sailing vessels are not to impede the passage of vessels proceeding in the general direction of the traffic flow (see also ~ Collisions at Sea). Ships' Routeing, IMO Publication (6th ed. 1986).

s. MANKABADY, Collisions at Sea (1978) 155-159. GERHARD BREUER

SEA LAW see Conferences on the Law of the Sea; Law of the Sea

SEA-BED AND SUBSOIL 1. Notion The "sea-bed and subsoil" is a geographical term freqently used in international conventions to refer to the floor of the seas and oceans and the submarine land mass (see Art. 2 of the Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516, p. 205, and Art. 1 of the Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499, p. 311; it is also used in the United Nations Convention on the Law of thr Sea, December 10, 1982, UN Doc.A/CONF.62· 122 with Corr. (Art. 2(2) on the ~ territorial sea, Art. 56(1) on the ~ exclusive economic zone; and Art. 76(1) on the ~ continental shelf». Art. 1(1) of the 1982 Law of the Sea Convention (hereinafter referred to as the 1982 Convention) defines those parts of the sea-bed and ocean floor and the subsoil thereof which are situated beyond the limits of national jurisdiction as the "Area"

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_.- -

.-

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( - International Sea-Bed Area). For legal purposes there is no substantial difference between the terms "sea-bed" and "ocean floor", although in the 1970s the former was more frequently used by some in the context of the bottom of marginal, enclosed or semi-enclosed seas. Another geographical distinction, however, has gained importance: the distinction between the "national" continental crust, i.e. the continental margin (including continental shelf. slope and rise), and the "non-national" oceanic crust, i.e. the deep-sea floor (including the mid-oceanic ridges, deep-sea trenches and basins as wei! as abyssal hills and plains). Shallow banks rising from the abyssal depth, aseismic ridges or seamounts also form a separate class of geological-geomorphological features; however, for legal purposes they have no special significance. . In some maritime zonessuch as the territorial sea, sea-bed and subsoil are subjected to the same legal regime as the superjacent water column and surface of the sea. In respect of other zones, especially the submarine areas beyond the limits of national jurisdiction, opinions and practice differ.

2. Use of the Sea-Bed and Subsoil The interest which nations have taken in the submarine areas and their natural resources has increased rapidly during this century due to technological progress. In earlier times, sea-bed related uses were confined 10 traditional forms of sedentary fisheries ( - Fisheries, Sedentary; see also - Pearl Fisheries). In the 1930s the exploitation of the continental shelf with its often valuable hydrocarbon resources became feasible. The prospecting for mineral resources on parts of the deep-sea floor and the potential economic and strategic consequences of their future exploitation led to the Third United Nations Conference on the Law ofthe Sea (UNCLOS HI; - Conferences on the Law of the Sea). The lawfulness of "free" deep-sea mining as opposed to activities under the supervision and control of an International Authority, as provided for in Part XI of the 1982 Convention, is one of the core issues of present law of the sea disputes. The adoption of the 1971 Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and the Subsoil

SUB~OIL

Thereof, February 11, 1971 (UNTS, Vol. 955, p. 115) was just one of the at best partially successful attempts to reduce the potential military use which naval powers contemplated and may to a certain extent still continue to contemplate in respect of the submarine areas beyond the territorial sea. Problems with the disposal of hazardou waste on land have led to an increasing use of the sea-bed as a dumping site (see Art. 210 of the 1982 Convention; - Waste Disposal). The use of the subsoil for tunnelling is also worth mentioning. Apart from mining operations from land-based mine shafts (see Art. 85 of the 1982 Convention), the long-lasting project of an Anglo-French Channel tunnel has attracted much legal thought.

3. Coastal States' Rights over Sea-Bed and Subsoil (a) Territorial sea The - sovereignty of the coastal State extends over the sea-bed of the territorial sea and its subsoil (Convention on the Territorial Sea and the Contiguous Zone, Art. 2; 1982 Convention, Art. 2(2». This notion was already accepted as - customary international law when attempts to codify the law of the sea were first made at the 1930 Hague Conference (- Codification of International Law). The 1982 Convention contains specific provisions on archipelagic States (Arts. 46 to 54) and acknowledges inter alia the sovereignty of the archipelagic State over the bed of the archipelagic waters, its subsoil and its resources (Art. 49(2); - Archipelagos). It is conceivable that the concept of archipelagic waters as such has already become accepted as general international law, but doubts remain because of the uncertain extent of permissible restrictions on passage rights through these waters ( - Innocent Passage, Transit Passage). A special legal regime for the sea-bed and subsoil under the - contiguous zone does not exist (Convention on the Territorial Sea and the Contiguous Zone, Art. 24; 1982 Convention, Art. 33).

(b) Continental shelf The continental shelf is that part of the sea-bed and its subsoil which is of greatest interest for the

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exploitation of natural resources, in particular hydrocarbons. In 1942 the United Kingdom (for Trinidad and Tobago) and Venezuela agreed on the partitioning of shallow "submarine areas" in the Gulf of ~ Paria in order to start oil-drilling in that area (Treaty relating to Submarine Areas of the Gulf of Paria, LNTS, Vol. 205 (1942) p. 121) and the United Kingdom subsequently annexed the sea-bed and subsoil to her territory in Trinidad and Tobago (see BFSP, Vol. 144 (1942) p. 970). In the Truman Proclamation of September 28, 1945 (DeptStateBull, Vol. 13, No. 327 (1945) p. 485), which was much more influential on the subsequent development of the law of the sea, the United States claimed "the natural resources of the sea bed and subsoil of the continental shelf beneath the high seas but contiguous to the coast of the United States as appertaining to the United States, subject to its jurisdiction and control". As this concept of monopolization of the exploration and exploitation of the natural resources of the subsoil of the sea by the "adjacent" States developed into customary law, the legal status of the ~ high seas as such remained. This is why the 1958 Geneva Convention on the Continental Shelf refers to rights which are "exclusive" and "sovereign" (Art. 2(1) and (2», this formula being a compromise between the limited scope of specified rights on the onc hand and "sovereignty" on the other. By 1969, when the ~ International Court of Justice (ICJ) decided the ~ North Sea Continental Shelf Case, it was accepted that rights with regard to the continental shelf, which was regarded as constituting "the natural prolongation . . . of the land territory . . . into and under the high seas", exist" ipso facto and ab initio" without any need for legal proclamation to that effect. Even if the extent of the sovereign rights of the coastal States concerned, with regard to exploration and exploitation of the natural resources of the (legal) continental shelf, can be regarded as settled lex lata, the outer limit of that submarine zone is far from clear. Some States tend to continue to rely on the expansionist exploitability clause (1958 Convention on the Continental Shelf, Art. 1 (a». It is generally agreed, however, that an unlimited seaward extension of the continental shelf cannot be regarded as lawful (~ Continental Shelf, Outer Limits).

The continental shelf as a legal concept has never been entirely identical with the geographical notion. Art. l(a) of the 1958 Convention on the Continental Shelf excluded the sea-bed and subsoil beneath the territorial sea from the scope of application. On the other hand, by virtue of the combined 200 metre isobath and exploitability rule in Art. 1(1), "non-exploitable" outer parts of the geological continental shelf were excluded from the legal regime. The 1982 Convention extends the legal continental shelf to parts of the ocean floor which do not actually form part of the geological continental shelf, provided the legal regime does not reach beyond 200 nautical miles measured from the ~ baseline from which the breadth of the territorial sea is measured (Art. 76( 1), second alternative). Art. 76 contains a complex system of alternative methods of delimitations for the continental shelf which might lead to continental shelves of more than 350 nautical miles width, including the territorial sea. These rules are generally rules de lege ferenda and will thus not be binding on States not party to the 1982 Convention. The least that can be said about the lex lata is that an existing continental margin can be regarded as a legal continental shelf up to a distance of 200 nautical miles from the baselines.

(c) Exclusive economic zone The concept of exclusive economic zones under Arts. 55 to 75 of the 1982 Convention overlaps to a considerable extent with the coastal States' sovereign rights with regard to the continental shelf. According to Art. 56(1 )(a) of the 1982 Convention, in the exclusive economic zone, the breadth of which may not exceed 200 nautical miles from the baseline (see Art. 57), a coastal State has sovereign rights for the purpose of exploring, exploiting, conserving and managing the natural resources not only of the water column but also of the sea-bed and its subsoil. This concept has emerged out of unilateral actions by coastal States which tried to secure preferential or exclusive fishing rights off their coasts vis-a-vis long-distance fishing fleets of other nations. The ~ Fisheries Jurisdiction Cases before the ICJ concerning such action by Iceland provide the most prominent example. What initially appeared to be just one element of a lex

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ferenda package deal at UNCLOS III rather instantaneously became, in part, hard law in the late 1970s when an increasing number of States proclaimed exclusive economic or exclusive fishery zones with breadths of up to 200 nautical miles. Through widespread State practice and - acquiescence the legality of establishing exclusive economic zones as such has been increasingly accepted as part of recently developed customary international law. The precise scope of coastal States' rights, however, remains uncertain. The incorporation of the sea-bed and subsoil into the concept of the exclusive economic zone is based inter alia on Latin American initiatives at UNCLOS III. It reflects, in part, the "patrimonial sea" notion which went further than mere protection of fishing rights (see the Santo Domingo Declaration of June 9, 1972 by Caribbean States). Apart from the fact that exclusive economic zones need to be proclaimed, their appearance in public international law makes the special legal regime for the continental shelf to some extent superfluous. However, Art. 56(3) of the 1982 Convention, which deals with rights in respect of the sea-bed and subsoil in an exclusive economic zone, simply refers to the provisions in Part VI of the Convention, which deals with the continental shelf (and see Arts. 80 and 60 vice versa). As far as the continental shelf extends beyond the 200 nautical miles limit of exclusive economic zones, a separate regime for the continental shelf applies de lege ferenda. The 1982 Convention acknowledges the sovereign lights of a coastal State to exploit the resources of this "outer continental shelf' only in sc far as the State concerned makes contributions through the International Authority to be established for "the Area" (Art. 82).

4. Sea-Bed and Subsoil Beyond the Limits of NationalJur~dktion

(a) Scope of the freedom of the high seas According to the predominant view taken in respect of the legal status of the submarine areas beyond the limits of national jurisdiction, this area does not fall under a regime separate from that of the water column above, i.e. activities on the sea-bed and in its subsoil are lawful as a legitimate exercise of the freedom of the high seas.

At the time when national jurisdiction of coastal States extended to no more than three or four nautical miles into the sea, the possible use which could be made of the sea-bed and its subsoil beyond these limits was mainly discussed in respect of particular activities such as sedentary fishery and pearl fisheries in shallow waters, or tunnelling for mining or communication purposes, On the one hand, some, like the British lawyer Sir Cecil Hurst in 1923, regarded the sea-bed and its subsoil as (res) terra nullius, i.e. open to acquisition by nations through occupation (- Territory, Acquisition). Gilbert Gidel, the French law of the sea specialist, on the other hand, in 1932 regarded coast-related activities such as sedentary fishery only as a particular exception to the general principle of the freedom of the high seas. Gidel maintained that the high seas had to be regarded as res communis, which implied the right of every nation to use the high seas as long as the interests of other nations in this freedom were not jeopardized. In particular in respect of tunnelling for communication purposes, some authors unsuccessfully distinguished between the high seas status of the sea-bed and the status of the subsoil, which could allegedly be occupied as long as maritime activities above were not impeded. The 1958 Geneva Conventions did not expressly deal with this problem. One reason for this was that, at the Conference and in the deliberations of the Law of the Sea Committee of the - International Law Commission (ILC) in the 19508 before, no practical need had been felt to address the question of the sea-bed and subsoil beyond the seemingly sufficient regulating in the 1958 Convention on the Continental Shelf (see YILC (1956 II) p. 9, No. 49). Certain ambiguities exist, however, in respect of the conceptual approach to what constitutes the high seas. Certainly, the sea-bed and subsoil of the high seas are mostly conceived as "a part of the high seas" within the meaning of Art. 1 of the 1958 Convention on the High Seas. The British approach at the time, however, seemed to differ slightly from this view; for example, Arts. 27 et seq., which deal with - cables and - pipelines on the sea-bed, regard cables as lying "beneath the high seas" (cf. the French version, "cable en haute mer"). Apart from this uncertainty, it appears doubtful if legal doctrine developed in the past to deal with coast-related activities such as mining by

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tunnelling into the subsoil underneath the water column of the high seas, or sedentary fishery, can still provide satisfactory answers for questions in respect of submarine areas far distant from any coasts. Despite these ambiguities, the wider approach in respect to the notion of the high seas is functionally justified, too, as all activities in respect of the sea-bed and subsoil in this area remain or will be operations on the sea and through its water column. Regarding submarine areas as part of the high seas in this space-related sense does not mean, however, that the regime for the utilization of such a special part of the high seas might not contain specific rules. The development of the continental shelf doctrine is evidence of a process of differentiation between a set of rules applicable to the uses of this high seas area and a different one governing the highseas status of this maritime space. --.

( b) Common heritage of mankind ---.;:-The idea of entirely incorporating the sea--bed and subsoil into the regime of the high seas is opposed by those who rely on the concept of the -'» common heritage of mankind as a -'» general principle of law which governs the legal status of the sea-bed and its subsoil beyond the limits of national jurisdiction. This notion was advanced primarily by -'» developing States. They were afraid lest the industrialized States took advantage of their superior know-how and technology by exploiting marine mineral resources outside areas of national jurisdiction. The "common interest of mankind" had already been a vague guiding principle in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of January 27, 1967 (UNTS, Vol. 610, p.205; -'» Outer Space Treaty; -'» Celestial Bodies). A similar approach was taken in the United Nations General Assembly Resolution on the Committee on the Peaceful Uses of the Sea-Bed and the Ocean Floor beyond the Limits of National Jurisdiction of December 21, 1968 (UN GA Res. 2467 A-D (XXIII)). The area concerned and its resources were regarded as a "common heritage" in the Declaration on Principles Governing the Sea-bed and the Ocean Floor, and the Subsoil thereof, Beyond the Limits of National Jurisdic-

tion of December 17, 1970 (UN GA Res. 2749 (XXV». The concept of a separate legal regime for the deep sea-bed and its subsoil, vaguely so characterized, was taken up by UNCLOS III and found its way into Art. 136 of the 1982 Convention. Under Part XI of the Convention all exploration and exploitation of natural resources of the area are placed under the organization and control of the International Sea-Bed Authority (-'» International Sea-Bed Area), an international organization to be established. Looking at the development of public internationallaw with regard to natural resources and the pressure by developing countries for the establishment of a new international economic order (-'» International Economic Order), this internationalization of the resources of the deep sea-bed is to some extent a parallel to the assertion of the permanent sovereignty over the natural resources within the limits of national jurisdiction as expressed in UN GA Resolution 1803 (XVII) of 1982 and the -'» Charter of Economic Rights and Duties of States of 1974 (UN GA Res. 3281 (XXIX); -'» Natural Resources, Sovereignty over). It has appeared attractive, however, not only to Third World States but also to most industrialized countries which sought security of ocean mining investment. In the late 1970s and early 1980s a number of industrialized States, frustrated by "radicalized" UNCLOS III negotiations on the deep-sea regime, enacted interim national legislation in order to. provide for a domestic legal framework with legal protection for potential deep-sea mining companies. This move was strongly objected to by the Group of 77 (-'» Non-Aligned States), which regarded such national legislation as incompatible with the status of the deep-sea floor as a common heritage of mankind. The lawfulness of deep-sea mining activities by those States which did not sign or ratify the 1982 Convention depends on whether, to what extent, and with which content the notion of the "common heritage of mankind" has already become part of international law.

(c) Present legal status The separate legal regime under the control and organization of an international authority which

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the 1982 Convention establishes is a matter of future treaty law. Elements of the principle of "common heritage of mankind", however, already form part of present international law. The 1970 Declaration on Principles (UN GA Res. 2749 (XXV)), which confirmed this notion in respect of the submarine areas beyond the limits of national jurisdiction and their natural resources, stated that these areas shall not be subject to appropriation by States or persons: "no State shall claim or exercise sovereignty or sovereign rights over any part thereof." This Declaration was carried in the ~ United Nations General Assembly without objection (14 abstentions), When the United States Government, under the Reagan administration, announced in 1980 that it could not support the regime for the deep sea-bed as developed so far by UNCLOS III, the validity of the principle of common heritage of mankind as such was not questioned. The United States rather objected to the deep-sea mining provisions being "contrary to the interests and principles of industrialized nations" and of no help "to attain the aspirations of developing countries" (see ILM, Vol. 22 (1983) pp. 464-465). The legal effect of unopposed resolutions of the UN General Assem~ly is a controversial matter (~International Organizations, Resolutions). The 1970 Declaration of Principles, for example, states that nobody "shall claim, exercise or acquire rights with respect to the area or its resources incompatible with the international regime to be established"; however, this does not mean that unilateral exploitation is unlawful if the establishment of an international regime fails to come about. When the Moratorium Resolution was passed (UN GA Res. 2574 D (XXIV) of December 15, 1969), this earlier attempt in the General Assembly to find support for the introduction of a temporary d~y to refrain from all activities of exploitation in the Area was met with objection by 28 States (28 States abstaining). Hence, the proposition that deep-sea mining outside the scope of the 1982 Convention is unlawful does not even find support in these prominent UN General Assembly resolutions as an expression of a universal opinio juris. The decisive question in respect of the common heritage of mankind does not seem to be whether

their principle is or is not, as such, part of the lex lata in international law, but rather what precise content it has. As far as the prohibition of appropriation of "the Area" by States or persons is concerned, one can easily accept the principle as general international law since it does not go further than Art. 2(1) of the 1958 Convention on the High Seas, and correctly reflects the status of the sea-bed and subsoil as res communis. Conceived as a prohibition of unilateral exploration and exploitation, it does not form part of international law. The principle of "common heritage of mankind" and even the Declaration of Principles, as far as these decisive points are concerned, are too unspecific to create a new legal regime for the deep sea-bed. In respect of the legal status of the submarine area in question, one is left with the application of traditional principles of public international law as long as new principles have not crystallized into "hard law". On that basis one has to look at particular activities affecting the sea-bed and its subsoil and ask whether there is any positive rule of customary international law which prohibits them. The "freedom of the high seas" provides, at least, for a rebuttable presumption of the lawfulness of operations on and underneath the sea-bed of the Area. Bearing in mind the largely conventional character of the new provisions on the Area in the 1982 Convention, the new regime cannot be imposed on States which, by persistent objection to and non-ratification of or non-accession to the 1982 Convention, continue to evidence the lack of a sufficient degree of unanimity which would be required for the emergence of new general international law. 5. Evaluation and Prospects While important industrialized States stay away from the preparatory steps initiated by UNCLOS III with a view to progress towards implementing the sea-bed regime of Part XI of the 1982 Convention and the 1982 Resolution of UNCLOS IlIon the Preparatory Commission for the International Sea-Bed Authority and for the International Tribunal for the Law of the Sea (UN GA Res. A/RES/37/66 of Dec. 3, 1982), and cooperate among themselves in deep-sea mining matters, others have indicated their willingness to cooper-

SEA-BED AND SUBSOIL

ate with those who try to bring the new regime about. Thus, it seems likely that a dual regime will emerge if ocean mining is carried out commercially one day: the one regime run by the International Sea-Bed Authority under the 1982 Convention (see the Preparatory Commission and Preparatory Investments Resolutions in UN Doc. A/Conf.62/ L.94, L.132/Add.l, Add.l/Corr., and L.141/ Add.l; UN Doc. LOS/PCN/L.41/Rev.l, Annex, September 11, 1986; ILM, Vol. 25 (1986) p. 1326) and the other independently by some industrialized nations (see Agreement Concerning Interim Arrangements Relating to Polymetallic Nodules of the Deep Sea-Bed of September 2, 1982, ILM, Vol. 21 (1982) p. 950). The future development of ocean mining will largely depend on where the commercially interesting ventures are made. Attention concentrated in the 1970s on manganese nodules on the deep-sea floor. Other mineral resources, like the cobalt-rich crusts which might be more profitable to exploit, are normally situated in exclusive economic zones of Pacific Ocean States. It may be that the Part XI regime for deep-sea mining will become a "ghost city" simply because the market conditions for the respective minerals change and manganese nodules continue to loose their economic importance. The sea-bed and the subsoil of the high seas were brought under coastal States jurisdiction to a considerable extent in the 1940s and 1950s (continental shelf) and in the 19705 and 19805 (continental slopes and rises). This historic process of gradual extension of sovereign rights into and under the sea has been described as "creeping jurisdiction" and "terranisation of the sea". Many coastal States have benefitted enormously from this development. They gained growth in wealth of natural resources and influence without the need to compensate other nations, whether landlocked, geographically disadvantaged or just interested in the preservation of the freedom of the high seas. As it turned out, parallel unilateral State practice largely sufficed to bring about this historic change. Despite the remaining uncertainties in Art. 76 of the 1982 Convention, in respect of the sea-bed and subsoil this process seems to have come to a relative halt due to the efforts to establish an international regime for the Area. An internation-

283

al regime was thought to be an appropriate device to stop the subjection of all sea-bed and subsoil to coastal States' jurisdiction, and to provide for a fair distribution of the wealth of the deep sea-bed among the international community, taking into account the particular needs of developing countries. However, as long as the common interest in the net result of deep-sea mining does not outweigh the ideological differences within the world community? the prospects for an international sea-bed regime remain bleak. Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. Convention on the Continental Shelf, April 29, 1958, UNTS, Vol. 499 (1964) 311-354. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF.62/122 with Carr. 3 and Carr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM Vol. 21 (1982) 1261-1354). Whose is the Bed of the Sea? BYIL, Vol. 4 (1923-1924) 34-43. G. GIDEL, Le droit international public de la mer, Vol. 1 (1932) 213-224, 488-514. H. LAUTERPACHT, Sovereignty over Submarine Areas, BYIL, Vol. 27 (1950) 376-433. L. HENKIN, Law for the Sea's Mineral Resources (1968). w. GRAF VITZTHUM, Der Rechtsstatus des Meeresbodens (1972). w. GRAF VITZTHUM, The Terranisation of the Sea, Law and State, Vol. 15 (1977) 124-136. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982) 109-113, 439-466, 467-509, 552-581. J. VAN DYKE and c. YUEN, "Common Heritage" v. "Freedom of the High Seas": Which Governs the Seabed?, San Diego Law Review, Vol. 19 (1982) 493-551. R.L. BROOKE, The Current Status of Deep Seabed Mining, Virginia Journal of International Law, Vol. 24 (1984) 361-417. P. MERCIAI, La demilitarisation des fonds marins, RGDIP, Vol. 88 (1984) 46-113. A. VERDROSS and B. SIMMA, Universelles Volkerrecht (3rd. ed. 1984) 692-742. R.·J. DUPUY and D. VIGNES, Traite du Nouveau Droit de la Mer (1985). (In addition, see literature on ~ International Sea-Bed Area). C.J.B. HURST,

WOLFGANG GRAF VITZTHUM

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SEAL FISHERIES

SEAL FISHERIES 1. Historical Background Juridical questions concerning seal fisheries were first raised in the second half of the 19th century. Due to intensified hunting methods, the seal stocks in Alaska had noticeably declined. As a result, the United States enacted national seal protection regulations, and sought to impose them also outside the ~ territorial sea. The United States argued that the seals, because of their habit of returning to Alaska every year, remained under US jurisdiction even when on the ~ high seas. . Certain British ships, having violated the US regulations, were seized on the high seas. In 1893, a court of arbitration decided that the principle of the freedom of the high seas had precedence over the interest of the United States in conserving the seal stocks (Award of the Tribunal of Arbitration constituted under the Treaty concluded at Washington on February 29, 1892, August 15, 1893, Martens NRG2, Vol. 21, p. 439; ~ Behring Sea Arbitration). In 1901 and 1902 this interpretation of the law was confirmed in a similar case, after the United States had contested the confiscation of American ships on the high seas by Russia because of their violation of Russian seal protection regulations (RGDIP, Vol. 10 (1903), Documents p. 1). On account of the fact that seals usually do not remain within the territorial waters of any State, these decisions made it necessary to solve thy problem of seal conservation by international. agreements. Important historical examples of such agreements included the Washington Agreement between Canada, Great Britain, Japan and the United States (Convention on the Preservation and Protection of Fur Seals, july 7, 1911, Martens NRG3, Vol. 5, p.720), replacing an earlier bilateral treaty between Great Britain and the United States dated February '7, 1911 (Martens NRG3, VoL'5, p. 717); and the Exchange of notes constituting an Agreement between Canada, Japan and the United States Relating to Scientific Investigations of the Fur Seals in the North Pacific Ocean, January 31 and February 8, 1952, and February 7 and March 1, 1952 (UNTS, Vol. 168, p. 9). Numerous treaties were concluded between the Soviet Union and Finland (see LNTS, Vol. 29,

p. 197; LNTS, Vol. 155, p. 207; UNTS, Vol. 338, p. 3; UNTS, Vol. 739, p. 77). 2. Seal Conventions At present, various seal protection treaties are in force 10 different regions of the world, but there is not yet an agreement having global applicability. Examples of the former are the following: the Interim Convention on Conservation of North Pacific Fur Seals, between Canada, Japan, the Soviet Union and the United States, February 9, 1957, as amended and extended (UNTS, Vol. 314, p. 105); the Agreement on Measures for Regulating the Catch and Conserving Stocks of Seals in the North-Eastern Part of the Atlantic Ocean, between Norway and the Soviet Union signed on November 22, 1957 (UNTS, Vol. 309, p. 269); the Agreement on Sealing and the Conservation of the Seal Stocks in the Northwest Atlantic, between Canada and Norway, signed on July 15, 1971 (UNTS, Vol. 870, p. 85) with an Amendment of 1975 (UNTS, Vol. 977, p. 442); and the Convention for the Conservation of Antarctic Seals, June 1, 1972 (ILM, Vol. 11 (1972) p. 251), which was concluded by parties to the 1959 Antarctic Treaty. Even if seals are not yet heavily exploited in ~ Antarctica, this convention is of particular importance because half of the world's seal resources are situated there. The seal protection treaties often reveal analogous features. Concerning membership, they tend to incorporate as many States concerned as possible. This is clearly evident in the case of the 1957 Interim Convention. Still more, the 1972 Convention for the Conservation of Antarctic Seals was left open, with prior consent of the contracting parties, to all interested States, including even those not party to the Antarctic Treaty. The Agreements of 1957 and 1971 mention the possibility of interested States acceding to the conventions. The treaties define the protected species, the permissible catch, and the conservation or hunting areas. Furthermore, the 1957 Interim Convention introduced the "abstention principle": Canada and Japan decided to abstain from catching and as compensation they receive a certain percentage of the skins taken by the other two States parties. The general aim of the convention is to preserve

SEAL FISHERIES

the stocks of those seals which are not excluded from any fishery activity at the optimum utilization level. Exceptions from the catch restrictions are made for local indigeneous inhabitants and for the purposes of scientific research. Besides the implementation of catch regulations, emphasis is laid upon scientific research on the condition of seal stocks and their habitats. Such research is primarily concerned with the effect of general fishery policy on the seal population. Another central point of scientific investigation, particularly in more recent times, is the effect of maritime pollution on seal stocks. Considerable attention is paid to the question of effective implementation and control of the treaty provisions. To this end, the 1957 Interim Convention allows the search and seizure of suspected vessels on the high seas by special officers of any of the contracting parties (Art. VI). Under the 1971 Agreement, inspection and control procedures are to be established on the suggestion of a commission created by the two States (Art. IV(B». The 1972 Convention relating to Antarctic seals provides for the installation of "an effective system of control, including inspection" by the time commercial sealing begins (Art. VI( 1)(a». The enforcement of sealing regulations and the coordination of research programmes are institutionalized. All the conventions provide for a permanent commission to manage and supervise the implementation of the treaty provisions. In the case of the 1972 Convention, the research and information exchange activities are carried out by the Scientific Committee on Antarctic Research of the International Council ofScientific Unions. The possibility of the future creation of another special commission is left open. On November 17, 1988 Denmark, the Federal Republic of Germany and the Netherlands concluded a Draft Agreement on the Conservation of Seals in the Wadden Sea. The draft agreement contains a prohibition of the taking of seals in the Wadden Sea as well as the obligation of the contracting parties to develop a conservation and management plan for the seal population. In addition, special attention is paid to the question of research and monitoring. The draft agreement also calls for the creation of a network of protected areas, which should be kept free from undue

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disturbances or changes resulting from human' activities. Finally, according to the draft, the Wadden Sea States are determined to reduce pollution of the North Sea.

3. General Agreements Affecting Seal Hunting A considerable number of agreements have direct or indirect implications on seal fisheries. The most important are the following. The United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) provides in Art. 65(2) with reference to the ~ exclusive economic zone that States shall cooperate with a view to the conservation of marine mammals. This provision is extended in Art. 120 to the high seas. The International Convention for the Northwest Atlantic Fisheries, February 8, 1949 (UNTS, Vol. 157, p. 157), together with the 1976 Protocol relating thereto (British Command Papers, Cmnd. 6844, Misc. 12 (1977», has as its main objectives both the optimum utilization of living marine resources by protecting them from over-exploitation and also the promotion of scientific research into the environmental and ecological factors affecting fisheries (~Fisheries, International Regulation). Under this convention, Canada had requested a special meeting on the subject of seals, but such a conference was postponed until new data become available. Several conventions for the protection of endangered animals list different kinds of pinnipeds, especially monk seals, as endangered species (~Wildlife Protection). The following instruments should be mentioned in this context: The Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973 (UNTS, Vol. 993, p. 243); the Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979 (ILM, Vol. 19 (1980) p. 11); and the African Convention on the Conservation of Nature and Natural Resources, September 15, 1968 (UNTS, Vol. 1001, p. 3). On February 15, 1988, the countries bordering the ~ Baltic Sea adopted the Helsinki Declaration on the Protection of the Maritime Environment of the Baltic Sea. The Declaration, which has no binding character, recommends various measures to reduce maritime pollution as well as a

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total ban on seal hunting in the Baltic Sea (---+ Marine Environment, Protection and Preservation).

4. Programmes of International Organizations to Protect Seals Increasing efforts to protect seals are being undertaken by international organizations. In 1984, the ---+ United Nations Environment Programme (UNEP) and the ---+ Food and Agriculture Organization of the United Nations (FAO) adopted a so-called Global Plan of Action for conservation, management and utilization of marine mammals in which seals are expressly referred to (UNEP Regional Seas Reports and Studies No. 55 (1985». This plan contains recommendations about future conservation and management of marine mammals. It recommended review of the question of conservation areas for pinnipeds (Recommendation '\1"0. 13) and the engagement of a consultant to review both the harvesting of marine mammals which are not at present under international control and any controls which are applied to them. Other recommendations were made relating to the conservation of marine mammals, thereby also including seals. The components of the plan are supposed to be implemented by 1990. On January 12, 1988, a Monk Seal Action Plan for the Mediterranean was drawn up by an expert meeting in Athens organized by UNEP and the International Union for the Conservation of Nature and Natural Resources. The plan seeks to protect the last monk seals in the Mediterranean, estimated at approximately 600 animals, by setting up a network of sanctuaries. The plan also calls for increased scientific research on monk seal biology and ecology.

5. National Legislation With the recognition of the exclusive economic zone, the importance of measures by individual States for the protection of seals has grown considerably. Under Art. 65(1) of the 1982Law of the Sea Convention, States an: permitted within their exclusive economic zone to prohibit, limit or regulate the exploitation of marine mammals more strictly than otherwise provided for in the Convention. A pertinent example of national legislation is the United States Marine Mammal Protection Act

(Public Law 92-522, October 21, 1972, United States Statutes at Large, Vol. 86 (1972) p. 1027). It establishes a moratorium on the hunting, harassing, capturing or killing of marine mammals in waters under United States jurisdiction or by United States citizens on the high seas. Furthermore, it forbids the importation of marine mammals or their products into the country. Also of particular importance in this context is the European Communities Council Directive of March 28, 1983 concerning the importation into member States of skins of certain seal pups and products derived therefrom (83/129/EEC, Official Journal of the European Communities 1983, L 91130), which bans the import of both harp and hooded seal skins into the Community area. The Directive has caused a marked decline in the number of seals harvested, especially in Canada, and has led to vigorous protests from Canadian Eskimos. (For legislation in other countries see UNEP/FAO (ed.), Compendium of Nation Legislation on the Conservation of Marine Mammals, No. 6502 -781 02 (1985».

6. Concluding Remarks In spite of the conservation measures already taken on the national and international levels, in many areas of the world, for example the North Pacific, Mediterranean, North Sea and Baltic Sea, the seal population is still decreasing, sometimes in a dramatic way. At present, the most endangered species are some fur seals and the several species of monk seals, whose habitat requirements make them particularly susceptible to coastal modification and disturbance. In certain areas, pollution of the sea has turned out to be a greater danger for the seals than any fishery activity has ever been. This fact demonstrates the need, apart from the implementation of seal hunting regulations, for scientific research and forceful international cooperation in the field of the protection of the marine environment. . Present Knowledge of Living Marine Resources in the Antarctic, Possibilities for their Exploitation and Scientific Perspectives, in: R. Wolfrum (ed.), Antarctic Challenge - Conflicting Interests, Cooperation, Environmental Protection, Economic Development (1984) 67-88. BIRNIE, The Role of Law in Protecting Marine

D. SAHRHAGE,

P.

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B.

Mammals, Ambio, A Journal of the Human Environment, Vol. 15 (1986) 137-143. NIELSEN, The Global Plan of Action for the Conservation, Management and Utilization of Marine Mam-

mals, Ambio, A Journal of the Human Environment, Vol. 15 (1986) 134-136. CLEMENS LERCHE

SEDENTARY FISHERIES see Fisheries, Sedentary

SHIPS IN DISTRESS In the interest of safe navigation and the rescue of endangered human life, the ~ law of the sea has always provided for special rights and obligations in cases of distress or force majeure. The rules applicable in cases of distress extend to every type of water craft, whether privately or publicly owned, such as ~ State ships, ~ merchant ships, ~ fishing boats, pleasure boats, hovercraft, sailing boats, and even vessels propelled by oars and windsurfers. Special rules apply to ~ warships and ~ nuclear ships. Distress rules find application not only on the ~ high seas, but also in ~ territorial seas, ~ straits, ~ internal waters, ~ international rivers, lakes, ~ canals and ~ ports.

1. Safety In order to prevent distress situations, all vessels engaged in navigation are to observe certain ~ maritime safety regulations. In case of ~ collisions at sea, there are additional rules of assistance and ~ salvage. Such rules evolved over centuries, partly as a matter of good seamanship and ~ comity. Besides being part of ~ customary international law, they have been incorporated into many bilateral and multilateral ~ treaties (~Codification of International Law). The Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82) provides in Art. 10 that every State shall take such measures for ships under its flag as are necessary to ensure safety at sea, with regard inter alia to the construction, equipment and seaworthiness of ships, the use of signals, the maintenance of

communications and the prevention of collisions. This provision corresponds to the more specific Art. 94 of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.; not yet in force), which also provides for the regular inspection of ships by qualified surveyors. The Inter-Governmental Maritime Consultative Organization (IMCO), now the ~ International Maritime Organization, adopted an International Convention for the Safety of Life at Sea of June 17, 1960 (UNTS, Vol. 536, p. 27; in force 1965), which was followed by a new convention of November 1, 1974 (UNTS, Vol. 1184, p.2; in force 1980) and by a Protocol of February 17, 1978 (British Command Paper, Cmnd. 8277, Treaty Series No. 40 (1981); in force 1981). These instruments establish standards of safety concerning inter alia electrical installations, fire protection, radiotelegraphy and radiotelephony. IMCO also adopted a Convention on the International Regulations for Preventing Collisions at Sea of October 20, 1972 (Cmnd. 6962, Treaty Series No. 77 (1977); in force 1977) which contains regulations concerning traffic separation schemes. A special Convention for the Safety of Fishing Vessels was adopted by 1MCO on April 2, 1977 (Cmnd. 7252, Misc. 17 (1978); not yet in force). More important is the International Convention on Maritime Search and Rescue adopted by IMCO on April 27, 1979 (Cm. 12, Treaty Series No. 59 (1986); in force 1985), which lays down international procedures for search and rescue operations and defines the role of ~ hospital ships.

2. Rescue The duty to render assistance to any person at sea in danger of being lost was defined in Art. 12 of the 1958 Geneva Convention on the High Seas. The 1982 Law of the Sea Convention contains a similar provision in Art. 98. Search and rescue missions are frequently undertaken to save sportsmen, including participants in international sailing competitions. Traditionally there has been much cooperation in this field among ~ neighbour States, even among States from hostile blocs. International rescue missions take place not only in the open sea but also in international lakes such as ~ Lake Constance,

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where sailing boats and windsurfers from the neighbour State are regularly assisted. Although the sailing board of a windsurfer is not registered in any country and does not fly any flag, windsurfers must observe traffic and safety rules and are considered as sailing boats by the Swiss Societe Internationale de Sauvetage du Leman at - Lake Geneva. 3. Distress Signals

Special distress signals have been fixed by custom and international agreement. Visual signals include the red flare, an orange smoke signal or a square flag displayed with a ball below. Sound signals include the firing of guns or rockets at regular intervals or the continuous sounding of a fog signal apparatus. Radio signals can be broadcast in morse code. The signal SOS ("Save our .Ship" or "Save our Souls") consists of three short, three long and three short signals internationally agreed on in 1912. More recently the spoken word "Mayday" (from French m'aider, help me) is broadcast over radio emergency frequencies ( Broadcasting, International Regulation). The misuse of distress signals is a criminal offence subject to prosecution under national jurisdiction, if the offence was committed in territorial waters. On the high seas offenders are subject to the jurisdiction of the State under whose flag they sail (- Flags of Vessels). 4. Immunities

Coastal States exercise -. sovereignty over their territorial sea, ports and internal waters. Whereas ships have a right of -~ innocent passage through territorial waters and of transit passage through straits, there is no general right of innocent passage through internal waters and no general right of access to ports. For security reasons States may also suspend passage through their territorial waters. An important exception concerns vessels in distress, which enjoy certain rights and immunities. With respect to the right of innocent passage, Art. 18 of the 1982 Law of the Sea Convention provides that ships may stop and anchor in cases of force majeure or distress. With respect to transit passage, Art. 39 similarly provides that transit shall be continuous and expeditious, except in cases of distress. While the 1982 Convention is silent on the right

of ships 10 distress to enter foreign ports, this customary right is universally accepted and arises from the humanitarian obligation to admit vessels seeking refuge in port by reason of weather, fire on board, engine trouble or other disaster endangering persons aboard. Such entry is generally considered te require the suspension of coastal laws prohibiting or severely penalizing entry into port without coastal consent. But a coastal State may still close its ports if its - vital interests so require or the entry of a vessel in distress would threaten the health and safety of the port and its population. In this connection it would appear that in the absence of consent or prior agreement by treaty, a nuclear ship in distress can be denied entry into a foreign port (ct. bilateral agreements in connection with the voyages of the United States nuclear ship Savannah in 1964, e.g. with the Federal Republic of Germany, UNTS, Vol. 460, p. 169). Bilateral - treaties of friendship, commerce and navigation sometimes prescribe that vessels in distress may enter "any port" or "any port whether or not open to foreign commerce" (see e.g. treaties between the United States and Japan, April 2, 1953, BFSP, Vol. 160, p. 716 and between the United States and Greece, August 3, 1951, BFSP, Vol. 162, p. 1013). The 1923 - Geneva Convention and Statute on the International Regime of Maritime Ports of December 9, 1923 (LNTS, Vol. 58, p. 285) is silent on this issue. A ship that has entered a foreign port because of distress is normally exempt from customs and other duties. Nevertheless, to prevent abuse, in cases of doubt the coastal State may require the ship to prove its - good faith. A test of what constitutes distress was laid down in England by Lord Stowell in the Eleanor «1809) Edw. 135 at 161. See also the New York, 3 Wheat 59 (1818); the Diana, 7 Wall 354 (1869); and the Aeolus, 3 Wheat 392 (1918». In 1929 the United States - Mexican Claims Commission held that the fact that a vessel had entered port under its own power was not conclusive evidence that it had not entered in distress (Kate A. Hoff (U.S.) v. United Mexican States, U.N. Rep., Vol. IV, p.444 (1929), also cited as the Rebecca, ILR (1929), Case No. 82, pp. 129-131). In the case of May v. The King, The Canadian Supreme Court affirmed the judgment of the

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lower court that a fishing vessel of American registry was forfeit because it had entered territorial waters in violation of the Canadian Customs and Fisheries Protection Act, without being in genuine distress, since the American fishing boat was found to be seaworthy (ILR (1931), Case No. 81, pp. 154-156). A case of distress exists when the ship is forced in by physical constraint (The Alliance, U.N. Rep. Vol. IX, p. 140 (1903», whether occasioned by threat from a warship or by mutiny on board (The Louise F., 293 Fed. 933 (1923». But even if a situation of distress objectively exists, the coastal State will not grant immunity to the vessel entering its port or its territorial waters if this vessel is engaged in illegal activities such as - piracy, traffic in arms (- Arms, Traffic in), drug traffic or smuggling. Such was the case when in February 1986 the arms-trafficker Silver Sea entered the French port of Brest under stress of weather. A coastal State that allows a ship in distress to enter its ports may, in the exercise of its - territorial sovereignty, prevent its departure if the ship is in an unseaworthy condition or otherwise unfit to proceed to sea. c.r, COLOMBOS, International Law of the Sea (6th ed.

1967). S.H. LAyet al. (eds.), New Directions in the Law of the Sea, Vols. 1-10 (1973-1980). M. McDOUGAL and w. BURKE, The Public Order of the Oceans (1975). A. LOWE, The Right of Entry into Maritime Ports in International Law, San Diego Law Review, Vol. 14 (1977) 597-622. R.P. ARNAUD, Origin and Development of the Law of the Sea (1982). D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982), Vol. 2 (1984). R. CHURCHILL and A. LOWE, The Law of the Sea (1983). ALFRED-MAURICE DE ZAYAS

SHIPS, NATIONALITY AND STATUS 1. Notion The international law status of ships is distinct from that accorded other property: A ship is said

to have the - nationality of the State under whose laws it is registered. Each State decides what ships may possess its nationality, although international law in recent times has come to place some limits on such discretion. Nationality is a prime, if not conclusive, factor in determining what State may exercise executive, legislative and judicial jurisdiction over a vessel (- Jurisdiction of States); what State may espouse a claim concerning a ship (- Diplomatic Protection); which State's law applies in the case of a private dispute regarding a vessel; and what State may come to the defence of a vessel.

2. Historical Evolution of Legal Rules The notion of attributing nationality to vessels originally developed as a response by States to the dangers posed by the immensity of the sea to their interests in commerce and exploration. Even before the general acceptance of the freedom of the - high seas, the size of oceans relative to the capabilities of States on those oceans rendered the seas, except for waters close to shore or in semi-enclosed areas such as - bays, wild and dangerous areas not susceptible to policing. The vessels of citizens of a particular State were constantly exposed to plunder and capture by vessels of other States or of pirates (- Piracy). By flying a flag, vessels declared to all others under whose protection they sailed (- Flags of Vessels). The emergence of the doctrine of freedom of the high seas strengthened the practice of cloaking vessels with the protection of a State. The denial to any particular State of authority over the high seas made the authority exercised by the flag State over its vessels the linchpin of public order on the high seas. Indeed, the nature of the high seas explains in part the special status accorded ships. Ordinarily, a State's authority over an object such as a ship stems from that State's authority over the area traversed. Denationalization of the route of travel leads authority to be rooted in the connection of the ship itself to some State. The idea that the flag State had exclusive jurisdiction over its vessels on the high seas often was explained by likening the vessel to a floating piece of that State's territory (- Lotus, The). This fiction ultimately was extended beyond its domain and yielded difficulties, for example, when it was claimed that such floating territory could

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displace a portion of foreign territorial waters and, thus preclude local jurisdiction ( - Territorial Sea; - Internal Waters). In a positivist sense, jurisdiction of a flag State is regarded as flowing not from the territorial character of the vessel but rather from a consensus of the international community (see e.g., Chung Chi Cheung v. The King, (1939) A.C. 160 (P.C); see also Cunard Steamship Co. v. Mellon, 262 U.S. 100, 123 (1923».

3. Current Legal Situation (a) Terminology Discussion of the international law status of ships is confused by terms which often are }lpt officially defined and are used in inconsistent ways. Chief among these terms are "nationality", "documentation", "registration" and "flag". The confusion as to the use of th ese terms is in part historical and in part a reflection of disparate State practice. In the view of the majority of scholars in this area, such confusion was compounded by the seemingly inconsistent use of such terms in the Convention on the High Sea, of April 29, 1958 (UNTS, Vol. 450, p. 82), the key provisions of which have been carried forth unchanged into the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF.62/ 122 with Corr.). The works of Meyers and Rienow suggest the following definitions: The "nationality" of a ship, rather than being determined by analogy to the nationality of an individual, is more properly viewed as the allocation to the State of a bundle of international rights and duties in relation to that vessel. "Registration" is an ad by which a State discloses to the international community its grant of nationality to a vessel. "Documentation" consists of papers issued by the flag State evidencing registration. The term "flag" is used very inconsistently but strictly speaking only means the bunting flown normally at the stern of the vessel. The act of a State granting its nationality, as opposed to that State's disclosure of such a grant (r.e., registration), cannot be described by a single word, although Meyers used the term "immatriculation" . The terms "ship" and "vessel" are generally regarded as equivalent, although "ship" is the

primary term used in treaties in this area. The term "ship" is defined in treaties and municipal laws in a variety of ways. The breadth of the definition often corresponds to the function served by the treaty or law (see, e.g., Art. 1 (1) of the International Convention for the Prevention of Pollution of the Sea by Oil, May 12, 1954 (UNTS, Vol. 327, p. 3), Art. 2 (4) of the International Convention for the Prevention of Pollution from Ships, November 2, 1973 (ILM, Vol. 12 (1973) p. 1319), Art. 2 (2) of the International Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, November 29, 1963 (UNTS. Vol. 970, p. 212) and Art. 2 of the Convention on Conditions for Registration of Ships, February 7, 1986 (not yet in force; ILM, Vol. 26 (1987) p. 1229». It is generally accepted that a .~ customary international law definition would be quite encompassing. It is also necessary to distinguish private and government vessels engaged in commerce ( Merchant Ships) from - warships and - State ships used for only non-commercial purposes. The latter public class of vessels enjoy virtually complete immunity (- State Immunity) and thus the following discussion is of primary significance for ships engaged in commerce.

(b) The right to gram nationality Every State has the right under international law to grant its nationality to ships sailing upon the high seas and, as a consequence, the privilege of flying the flag of that State. Before World War I, only maritime States granted flags and it was questioned whether a land-locked State had the right to grant a flag. For example, in 1864, 1874, 1889 and 1891 the Swiss Government refused to grant a flag to Swiss vessel owners. The argument against land-locked States having a flag rested on the belief that unless the ships could actually return to the territory of the flag State, that State could not fulfil in a real sense its international responsibilities for supervision of those vessels. The right of land-locked States to a maritime flag, however, was clearly recognized in Art. 273 of the - Versailles Peace Treaty (1919) and in the other post-World War I treaties (see - SaintGermain Peace Treaty (1919), Art. 225; - Trianon Peace Treaty (1920), Art. 209; and

SHIPS, NATIONALITY AND STATUS

the ~ Neuilly Peace Treaty (1919), Art. 153). These provisions were subsequently reiterated in the Declaration Recognizing the Right of a Flag of States Having No Sea-Coast, signed in Barcelona on April 20, 1921 (LNTS, Vol. 7, p. 73). All of these provisions required that vessels granted a flag by land-locked States be registered in a specified place in the territory of tha~~te and that such place would serve as the ~ "port" of registry for such vessels. Art. 4 of the 1958 Convention on the High Seas, Art. 90 of the 1982 Law of the Sea Convention and Art. 4 (1) of the 1986 Convention on Conditions for Registration of Ships carry forward this right of land-locked States (~ Land-Locked and Geographically Disadvantaged States).

(c) The attribution of nationality In general, each State decides for itself the basis upon which it will grant its nationality to vessels. As stated in the ~ Muscat Dhows Case: "Generally speaking it belongs to every sovereign to decide to whom he will accord the right to fly his flag and to prescribe the rules governing such grants" (AJIL, Vol. 2 (1908) p. 923, at p. 924). In Lauritzen v. Larsen (345 U.S. 571, 584, (1953», the United States Supreme Court held: "Each state under international law may determine for itself the conditions on which it will grant its nationality to a merchant ship." Most significantly, a large number of States will grant their nationality to vessels not owned by their nationals. As a consequence, there is an international market of sorts in flags. In peacetime, ~ "flags of convenience" are found desirable by vessels owners; in war time, "flags of refuge". However, international law places certain limitations on attribution of nationality by the flag State. First, a State may not grant its nationality to a ship which already possesses the nationality of another State. It has been argued that the bnguage of Art. 6 (1) of the 1958 Convention on High Seas and Art. 92 (1) of the 1982 Law of ,", S,'(j Convention does not prohibit the posses"HI of multiple nationalities but rather only '"Plliites the use of such nationalities. It has also neen argued that the granting of a second nationality nullifies all grants of nationality, thus, rendering the vessel stateless. These are minority

291

views, however. Rather, it is generally accepted that if a State grants its nationality to a vessel which already possesses the nationality of another State, the second State granting nationality has an international duty to the first State to cancel the grant. This view is supported by Arts. 4 (4) and 11 (4) of the not yet in force 1986 Convention on Conditions for Registration of Ships. A second possible limitation is the requirement of a "genuine link" between the flag State and the vessel. The push for a limitation based on a genuine link arose in response to States who liberally granted their nationality to ships. This push was in part inspired, and certainly strengthened, by the ~ International Court of Justice's recognition of such a limitation on the granting of nationality to individuals in the ~ Nottebohm Case. With regard to ships, it was argued that without a genuine link, "flags of convenience" would facilitate the use of unsafe and undermanned vessels. This limitation, considered by the ~ International Law Commission (ILC) in 1951 and adopted in Art. 5 (1) of the 1958 Convention on the High Seas, provided that there "must exist a genuine link between the State and the ship; in particular, the State must effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag". This limitation is elaborated upon by, inter alia, Arts. 10 and 12 of the 1958 Convention on the High Seas and Recommendation No. 108 of the International Labour Organisation concerning SOJ cial Conditions and Safety of Seafarers in Relation to Registration of Ships of 1958 (Conference Internationale du Travail, 41st session, Geneve 1958, Compte Rendu des Travaux, p. 285). The limitation is repeated in Art. 91 (1) of the 1982 Law of the Sea Convention and in International Labour Organisation Convention No. 147 concerning Minimum Standards in Merchant Ships of October 29, 1976 (ILM, Vo!. 15 (1976) p. 1288). The content of the genuine link requirement is also addressed by the not yet in force United Nations Convention on Conditions for Registration of Ships, although it is generally concluded that the compromises which yielded the 1986 Convention lead it to provide general guidance more than specific norms. Art. 5 of the 1986 Convention will require each flag State to have a

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national mantime administration adequate to implement applicable international rules and standards. Moreover, the flag State under the 1986 Convention will be obligated either to possess an ownership interest or to require the possession of such an interest by its nationals (Art. 8), or a level of manning by its nationals or persons in permanent residence in the flag State (Art. 9) sufficient to permit that State to exercise effectively its jurisdiction and control mer ships fly,ing its flag. What precisely constitutes a genuine link remains unclear, however. In this sense, the genuine link requirement is a classic ex ample of "soft law" . The normative content of the requirement is soft in that the terms involved are vague and subject to widely varying interpretation. The enforceability of the requirement is soft in that a State may not refuse to recognize the nationality of a vessel because of a dubious link between the ship and the flag State (see, e.g., The Virginius, J.B. Moore's Digest of International Law, Vol. 2 (1893) p. 895). In discussing the genuine link limitation, the ILC rejected a proposal that would have allowed a State not to recognize a ship's nationality if it believed a genuine link did not exist. A State which suspects the lack of 2 genuine link must instead "report the facts to the flag State" which must then investigate the allegation (see Art. 94 (6) of the 1982 Law of the Sea Convention). In contrast, a State engaged in ~ armed conflict may refuse to recognize the transfer of a belligerent merchant vessel to a neutral flag where such transfer is not accompani ed by a real transfer of ownership or control to neutral parties (~ Neutrality, Concept and General Rules; see, e.g., The Hamborn, (1918) Law Reports (Probate Division) 19). International law in addition prohibits changes of nationality at certain times. International law also places formal requirements on the manner in which a State grants a ship its nationality. Among other things, the State must maintain a registry of all ships with its nationality and issue to such vessels documentation attesn ng to the grant of nationality (see Art. 5 (2) of the 1958 Convention on the High Seas; Art. 91 (2) of the 1982 Law of the Sea Convention; Art. 11 of the 1986 Convention on Conditions for Registration of Ships).

(d) The proof of nationality At sea, the flag flown is prima facie evidence of nationality. Nonetheless, under certain limited circumstances, the representatives of a State may board a vessel to inspect its documentation and verify its right to the flag flown (Art. 110 of the 1982 Law of the Sea Convention). Inasmuch as documentation can be forged, the registration of the vessel in the flag State is the strongest proof of its nationality. A difficult question is whether registration is merely proof of a grant of nationality or whether it is a necessary part of the grant of nationality. In the beginning of this century, State practice supported the former interpretation, while conventional practice in this century suggests a tendency toward the latter. Formally, a distinction remains between the act of granting nationality and the act of publicizing the grant. Whether failure to publicize a grant of nationality would invalidate the alleged grant or merely give rise to an international claim for damages is unclear.

(e) The legal significance of nationality A State has the right to come to the defence of vessels flying its flag. This right has recently been asserted by the United States in the Persian Gulf in regard to Kuwaiti-owned vessels sailing under the United States flag. It is also the right of the flag State to espouse claims concerning its vessels. Although Judge Singh in a 1978work argues to the contrary, the reasoning of the ICJ in the ~ Barcelona Traction Case suggests that the State of which even a majority of the owners of the vessel are nationals generally would not possess standing to espouse a claim on their behalf if it were not also the flag State (as to supporting United States practice, see the Elena Valdez Claim (1924), discussed at G. Hackworth, Digest of International Law, Vol. 2 (1941) p. 755). A State has exclusive jurisdiction over vessels flying its flag while sailing upon the high seas (Art. 6 (1) of the 1958 Convention on the High Seas; Art. 92 (1) of the 1982 Law of the Sea Convention). The flag State's law regulates all aspects of life aboard a vessel and all operations of the vessel on the high seas. Indeed, a British court found the law of the flag State to so affect the status of the

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vessel that it was a breach of a charter-party to change the flag of the vessel during the charterparty (M. Issacs and Sons v. William McAllum and Co., (1921) 3 K.B. 377, 386). The flag State's exclusive jurisdiction over its vessels on the high seas is limited in small ways by treaty and by custom. For example, any State may exercise jurisdiction over a pirate vessel (Art. 19 ofthe 1958 Convention on the High Seas; Art. 105 of the 1982 Law of the Sea Convention). Jurisdictional exclusivity is likewise limited for vessels which broadcast from the high seas without authorization (see Art. 109 of the Convention; - Pirate Broadcasting). Concurrent assertions of jurisdiction by other States on the basis of the nationality of the owner or charterer are also possible. In particular, the State of which the master or other person in the service of a ship is a national, possesses concurrent penal jurisdiction over such persons in the event of collision (Art. 11 of the 1958 Convention on the High Seas; Art. 97 of the 1982 Law of the Sea Convention). It is on the basis of the nationality of th~ owners that States municipally have provided for -+ requisition or condemnation of a vessel during a national emergency or time of - war. Exceptions to the exclusivity of the flag State's jurisdiction are much greater with respect to the - contiguous zone and the exclusive economic zone, where the coastal State possesses a variety of functional jurisdictions. When a vessel is engaged in - innocent passage through territorial waters, the coastal State's jurisdiction is the rule with limited exception. When the vessel is otherwise in territorial waters or in internal waters, it is subject to the full civil and criminal jurisdiction of the coastal State. The flag State not only possesses jurisdiction over vessels flying its flag, it must also "effectively exercise its jurisdiction and control in administrative, technical and social matters ... " (Art. 5 (19) of the 1958 Convention on the High Seas). Art. 94 of the 1982 Law of the Sea Convention details these duties more fully with the objective of ensuring safe navigation by sound vessels with competent crews. These duties have often been spelled out in even greater detail in other widely accepted conventions (see, e.g. the International Convention for the Safety of Life at Sea of June

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._.

17, 1960, UNTS, Vol. 536, p. 27 and the International Convention for the Safety of Life at Sea of November 1, 1974, UNTS, Vol. 1184, p, 2; the Convention on Load Lines of April 5, 1966, UNTS, Vol. 640, p. 133; and the International Convention for Preventing Collisions at Sea of October 20, 1972, British Command Papers, Cmnd. 3708, Treaty Series No. 58 (1968)). Even where the courts of a State exercise jurisdiction over a private dispute involving a vessel having the nationality of another State, the vessel's nationality may be an important factor in choice of law questions (see Chartered Mercantile Bank of India' v. Netherlands Steam Navigation Co., (1883) 10 o.s. 521). 4. Special Legal Problems (a) Stateless vessels

A stateless ship is a ship without nationality. Statelessness is not an internationally unlawful condition; it is, however, regarded as undesirable because statelessness permits unsafe conditions. State registration is the key to public order on the high seas because of the effective regulation requirement. Statelessness has at least three possible origins. First, statelessness may result because of the absence of a genuine link between the flag State and the ship. But given the "softness" of the genuine link requirement, statelessness is unlikely to arise for this reason. Second, a ship, while flying a flag, may be likened ("assimilated") to one without nationality because of its abuse of its flag. Third, a ship will be deemed not to have a nationality if the attempt to grant nationality is made by an unrecognized State (- Recognition). For example, the Privy Council held that the vessel Asya claimed no protection by "hoistin a flag which was not the flag of any State in bein.." i.e. the flag of what was later recognized as .he State of Israel (see Nairn Nolvan v. AttorneyGeneral for Palestine, (1948) x.c. 351, 369-70). Statelessness, as a practical matter, makes it extremely difficult for a vessel to engage in legitimate trade or fisheries inasmuch as such a vessel would likely be deprived of important

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privileges, such as the right to enter or leave territorial waters and ports. It is generally accepted that any State may exercise jurisdiction over a st ateless vessel. This proposition flows from the natire of the high seas regime; the high seas are subject to the concurrent jurisdiction of all States, rather than the jurisdiction of no State. Thus, a State does not have exclusive jurisdiction over a ship simply because the vessel has its nationality; rather, but for such nationality, all other States would have jurisdiction as well. Yet, although any State may have jurisdiction over a stateless vessel, the exercise of such jurisdiction is not without limit; under international law. Stateless vessels often have been confiscated (see e.g., the Molvan Case), and such practice has been endorsed by a number of scholars who view such vessels as a threat to public order on the high seas. Although the vessel may be without, or may be regarded 1S being without, a nationality, the owners of the cargo, the master and the crew are likely to be nationals of some States and thereby derive some measure of protection from arbitrary treatment The lack of State practice expressly supporting a right to such protection may reflect merely the fact that statelessness of late arises almost exclusively in the context of narcotics traffiking.

(b) Vessels of international organizations Although international organizations may be expressly or implicitly empowered to own a vessel, their right to grant a flag has not been settled (~International Organizations, General Aspects).' Historically, there are a few instances of what could be described as precursors of modern international organizations grunting flags to vessels. For example, a branch of t'ie Roman Catholic Church registered vessels unt I the beginning of the twentieth century. Like vise, international entities such as the Hanseatic League and the American Confederation of States also granted nationality to vessels. Howeve r, there are significant differences between these entities and modern international organizations, In modern times, there have been a limited number of instances in which the flag of the ~ United Nations has been flown on vessels:

examples include ten newly constructed trawlers delivered to Korea by the United Nations Korean Reconstruction Agency (UNKRA) in 1955, certain ships used by the United Nations Emergency Force (UNEF) and the United Nations Suez Canal Clearance Operations (UNSCO) during the Suez crisis of 1956-1957 and the vessels that evacuated the -+ Palestine Liberation Organization (PlO) from Lebanon in December of 1983; see also the discussions and proposals of delegates to the Brussels Conferences of 1961 and 1962 relating to liability for damages arising from nuclear powered commercial vessels (~ Nuclear Ships). As regards the right- of an organization such as the United Nations to grant a flag, during its work in advance of the 1958 Conference on the Law of the Sea the ILC was divided on the question. One view, echoing the ~ Reparation for Injuries Suffered in Service of UN (Advisory Opinion) of the ICJ. argued that international organizations have the international capacity and potentially the implied power to grant a flag (~ International Organizations, Implied Powers). The opposing view contended that international organizations should not possess such a right because they lack the civil and criminal jurisdiction necessary to govern effectively life aboard ships or to ensure compliance with international construction and operating standards. Ultimately, although the 1958 Convention on the High Seas and the 1982 Convention on the Law of the Sea mention only the right of States to a maritime flag, Art. 7 of the 1958 Convention and Art. 93 of the 1982 Convention provide that such references do not prejudice the question of whether ships employed in the service of the United Nations or its Specialized Agencies may fly the flag of the organization (~ United Nations, Specialized Agencies). Although debatable, it would appear that, absent an express grant, international organizations very rarely should be found to have an implied power to grant a flag. The granting of flags to vessels by international organizations may be a threat to public order on the oceans because such organizations, at least at present, possess neither the legal order to regulate life aboard vessels nor the coercive force to protect vessels. As to the latter point, for example, although the flag of the Holy Land was granted to vessels by ecclesiastical

SHIPS, NATIONALITY AND STATUS

authorities in Jerusalem, France served as the protecting power for such vessels. More importantly, bearing the Reparations for Injuries advisory opinion in mind, it is not often functionally necessary for international organizations to register vessels. The special rapporteur to the ILC on this question concluded in 1956 that an international organization could simply arrange instead to add its flag to the flag of a State. The International Red Cross (~ Red Cross), an international ~ non-governmental organization, often added its flag to its vessels, but such vessels possessed Swiss nationality. Indeed, the vast majority of UNEF and UNSCO vessels which flew the UN flag displayed that flag merely to identify themselves as part of the UN operation and their entitlement to the privileges and immunities due subsidiary organs of the United Nations (~ International Organizations, Privileges and Immunities). Such vessels continued to possess the nationality of some State, but, for example, the Agreement between the United Nations and the Government of Egypt concerning the Status of UNEF in Egypt of February 8, 1957 provided that "other flags or pennants may be displayed only in exceptional cases" (UNTS, Vol. 260, p. 61, at p. 72). Likewise, the vessels which evacuated PLO forces from Lebanon in 1983 and a number of proposals in 1987 for a UN fleet to escort vessels sailing in the ~ Persian Gulf employed the notion of adding the UN flag to the existing one ~ Emblems, Internationally (see also Protected) . It does not appear that the few instances of true UN registration were functionally necessary. In the case of the UNKRA trawler, the statement by the UN legal counsel that "it was still open to us to register the vessels in one of the countries (for instance, Liberia) where no degree of national ownership is required for registration, but we thought this course inappropriate as the vessels had no real connection with any such country" does not suggest the necessity required for the creation of UN registry. The other reported use of UN registry involved a landing craft owned by the UNEF. The legal order applicable to life aboard the craft was addressed by the UNEF regulations which, as with regulations for most such UN operations, provide that the members of the UNEF shall be subject to the criminal jurisdiction

295

of the States of which they are nationals. In essence, corresponding to the earlier observation that denationalization of the areas traversed necessarily leads a State's authority over a ship to be rooted in the connection of the State to the ship, so too, denationalization of a ship leads a State's authority over it to be rooted in the connection of the State to the persons on board. The more" difficult situation will arise when an international organization takes on roles at sea such as regulatory inspection or peacekeeping, where the integrity of the effort requires that the organization's vessel not have the nationality of any particular State, even if such nationality is used merely to support a UN flag. Moreover, in the case of an international naval force, the flag of an organization will not pose the same public order problems. If the pattern of UN land forces is followed, a UN naval force would consist of national units integrated by a multinational command. This would be necessary in order to ensure that the crew operates as a team and is intimately familiar with the vessel. It would also be necessary linguistically both in communications between crew members and in the ability of the crew to deal with the vessel's physical markings. Furthermore, the member States probably would demand such an arrangement in order to protect their nationals and vessels and to minimize disclosure of the structure and capability of their vessels. Consequently, the UN in such an instance could provide that a vessel (and crew) contributed by, for example, Italy, would fly the UN flag but that by delegation, the Italian legal system would continue to govern life aboard the vessel. The scenarios of a naval force or regulatory vessels may not require special treatment, however, inasmuch as it would seem likely that often some State will be politically acceptable to all concerned to provide a flag supporting that of the international organization. The debate concerning the ability of interna tional organizations to grant flags reflects in large part differences of opinion concerning the nature of international organizations. If such organizations are viewed as entities progressing inexorably toward supranational government, then recognition of the right to grant a flag seems to further the progression towards this end. If, instead, international organizations are viewed as specialized

296

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institutions facilitating international cooperation, then it is very rare that the right to grant a flag will be found to be necessary for the organization's fulfillment of its functions.

5. Evaluation The nationality of a vessel remains an important concept, but one for which both theoretical significance and practical effect have greatly eroded. Theoretically, the significance.of the doctrine of nationality has been reduced in two ways. First, by increasing the jurisdictional competence of coastal States and port States, the international community has diminished the scope of the exclusive jurisdiction of flag States. Second, the international community has tempered the ability of States to grant nationality by strengthening the requirement of a genuine link between the vessel and the flag State. In a practical sense, by preparing numerous treaties regulating and harmonizing specialized aspects of ship operations, the international community has rendered less significant, except as to the important areas of taxation and labour costs, the choice of any particular nationality. United Nations Legislative Series, Laws Concerning the Nationality of Ships, UN Doc. ST/LEG/SER.B/5 (1955). United Nations Secretariat, Use of the United Nations Flag on Vessels, UN Doc. A/CONF.13/C.2./L.87 (1958), reprinted in Summary Records and Annexes, Second Comm., UN Conference on the Law of the Sea, UN Doc. A/CONF.13/40 (1958). United Nations Legislative Series Supplement to Laws and Regulations on the Regime of the High Seas and Laws Concerning the Nationality of Ships, UN Doc. ST/LEG/SER.B/8 (1959). Convention on the High Seas, April 29, 1958, UNTS, Vol. 450 (1963) 82-167. United Nations Legislative Series, National Legislation and Treaties Relating to the Law of the Sea, UN Doc. ST/LEG/SER.B/19 (1978). UNCTAD Secretariat, Conditions for Registration of Ships, UN Doc. TD/B/AC.34/2 (1982). United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF.62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM Vol. 21 (1982) 1261-1354). La condition juridique des navires de commerce, RdC, Vol. 10 (1925 V) 5-222. A.P. HIGGINS, Le regime juridique des navires de com-

P. FEDOZZI,

merce en haute mer en temps de paix, RdC, Vol. 30 (1929 V) 5-76. H. HEYCK, Die Staatszugehorigkeit der Schiffe und Luftfahrzeuge. Eine volkerrechtliche und staatsrechtliche Studie auf rechtsvergleichender Grundlage (1935). c.w. JENKS, Nationality, the Flag and Registration as Criteria for Demarcating the Scope of Maritime Conventions, Journal of Comparative Legislation and International Law, Vol. 19 (1937) 245-252. R. RIENOW, The Test of the Nationality of a Merchant Vessel (1937). W. BRIGGS, Non-Recognition in the Courts: The Ships of the Baltic Republics, AJIL, Vol. 37 (1943) 585-596. LORD McNAIR, Problems Connected with the Position of the Merchant Vessel in Private International Law, with Particular Reference to the Power of Requisition, Grotius Society Transactions for the Year 1945, Problems of Public and Private International Law, Vol. 31 (1946) 30-46. J.P.A. FRAN<;:OIS, Special Rapporteur on the Right of International Organizations to Sail Vessels under their Flag, Supplementary Report, YILC (1956 II) 102103. F. FLORIO Nazionalita della nave e legge della bandiera ( 1957). A.D. \vATIS, The Protection of Merchant Ships, BYIL, Vol. 33 (1957) 52-84. E. VAN BOGAERT, Le droit que possede I'Etat pour determiner les conditions d'apres lesquelles les navires ont Ie droit d'arborer son pavilion, Revue de Droit International et de Droit Compare, Vol. 35 (1958) 485-492. D.H.N. JOHNSON, The Nationality of Ships, The Indian Year Book of International Law, Vol.8 (1959) 3-15. c.i. COLOMBOS, A State's Jurisdiction over Foreign Merchant Vessels, in: E. Briiel et al. (eds.), Internationalrechtliche und staatsrechtliche Abhandlungen, Festschrift Walter Schatzel (1960) 35-39. M.S. McDOUGAL et al., The Maintenance of Public Order at Sea and the Nationality of Ships, AJIL, Vol. 54 (1960) 25-116. P.G. MENDER, Nationality of Ships: Politics and Law, Arkiv for Sjerett, Vol. 5 (1961) 265-369. B. SAMBRAILO, The Problem of the United Nations Flag on Vessels, Yearbook of the Association of Attendees and Alumni of the Hague Academy of International Law, \01. 31 (1961) 43-55.. '. A. VAN ZWANENBERG, Interference with Ships on the High Seas, ICLQ, Vol. 10 (1961) 785-817. T. KOCHU TOMMEN, Legal Status of Government Merchant Ships in International Law (1962). H. MEYERS, The Nationality of Ships (1967). N. SINGH, Maritime Flag and International Law (1978). R. CARUSLE, Sovereignty for Sale (1981). A.W. ANDERSON, Jurisdiction over Stateless Vessels on the High Seas, Journal of Maritime Law and Commerce, Vol. 13 (1982) 323-342. M. McCONNEL, " . . . Darkening Confusion Mounted

SOVEREIGNTY OVER AIRSPACE

upon Darkening Confusion": The Search for the Elusive Genuine Link, Journal of Maritime Law and Commerce, Vol. 16 (1985) 365-396. H. BETIINK, Open Registry, the Genuine Link and the 1986 Convention on Registration Conditions for Ships, Netherlands Yearbook of International Law, Vol. 18 (1987) 69-119.

rule of general international law, and it therefore applies also to the non-contracting States. For the purposes of the Convention on International Civil Aviation, the territory of a State is

deemed to be the land areas and territorial waters adjacent thereto (~ Territorial Sovereignty; Airspace over Maritime Areas). Unlike ships in the field of maritime law, there is no right of ~ innocent passage for aircraft over the territorial waters. Even ~ State aircraft have no right to fly over the territory of another State or land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof; similar limitations apply to aircraft capable of being flown without a pilot, including unmanned balloons. The term "air space" has not been defined in international law and there is no legal delimitation between the air space and the outer space (~ Space Law). The United Nations Committee on the Peaceful Uses of Outer Space has been studying the question of the definition and delimitation of outer space: Any spatial definition or delimitation would likely result also in the definition of the air space. Under the Convention on International Civil Aviation, States have agreed that aircraft of other contracting States not engaged in scheduled international air services shall have the right to make flights into or in transit non-stop across their territories and to make stops for non-traffic purposes without the necessity of obtaining prior permission, but subject to the right of the State flown over to require landing; this right may be further restricted by designation of particular routes to be followed and airports to be used (~ Overflight) . Any scheduled international air service performed by aircraft for the public transport of passengers, mail or cargo may be operated over or into the territory of a State only with the special permission or other authorization of that State, and in accordance with the terms of such permission or authorization. Such permission or authorization is in practice granted in bilateral agreements on air services by which the contracting States mutually grant the rights of overflight to their aircraft, as well as other commercial rights for designated airlines and designated points of origin and points of destina-

~

DAVID D. CARON

SOVEREIGNTY OVER AIRSPACE The ~ sovereignty of ~ States extends vertically above their territories into the air space. This principle is now recognized to be part of general international law. In the early years of the development of aviation (balloons, airships and the first heavier-than-air ~ aircraft), there were three basic competing theories in international law on the legal status of the air space: (a) the freedom of the air: it was argued that since the air cannot be appropriated and continuously occupied, it should be as free as the seas (Fauchille); (b) the theory of zones: by analogy with the ~ territorial sea and the ~ high seas, there would be a territorial air space in the lower zone, and above it to an unlimited height a zone of free air space (Merignhac); and (c) the theory of complete and exclusive sovereignty. In World War I, aircraft proved to be a formidable new weapon threatening the safety of the subjacent States. The first international Convention for the Regulation of Aerial Navigation of October 13,1919 (LNTS, Vol. 11, p. 173) resolved the controversy by stating, in Art. 1~ "The High Contracting Parties recognize that every Power has complete and exclusive sovereignty over the air space above its territory." The current Convention on International Civil Aviation of December 7, 1944 (UNTS, Vol. 15, p. 295; ~ Chicago Convention), to which there were 160 States parties in 1988, states in Art. 1: "The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory." This wording demonstrates that the principle of State sovereignty over airspace was not created by the Chicago Convention and does not apply only to the parties thereto, but was only recognized in the Convention as a

297

298

SOVEREIGNTY OVER AIRSPACE

tion; such agreemerits often deal with the frequency and capacity of flights, aviation security, taxation, settlement of differences, etc. (-+ Air Transport Agreements). The aim of reaching a multilateral or even global agreement on the right of air navigation and air transport has proved to be elusive. The International Civil Aviation Conference held at Chicago from November 1 to December 7, 1944 did not embody into the Convention on International Civil Aviation any positive provision on scheduled international air services; however, the Conference adopted and opened for signature two separate conventions dealing with that subject: the International Air Services Transit Agreement (UNTS, Vol. 84, p. 295) and the International Air Transport Agreement (UNTS, Vol. 171, p. 387), both signed on December 7, 1944. Under the International Air Services Transit Agreement each contracting State grants to the other contracting States two "freedoms of the air" in respect of scheduled international air services: (i) the privilege to fly across its territory without landing and (ii) the privilege to land for non-traffic purposes (e.g. refuelling or maintenance, but not commercial traffic purposes). By the end of 1988, this "two freedoms" agreement had been ratified by 101 States. The International Air. Transport Agreement, known as the "five freedoms" agreement, adds to the basic non-commercial freedoms the following: (iii) the privilege to put down passengers, mail and cargo taken on in the territory of the State whose nationality the aircraft possesses; (iv) the privilege to take on passengers, mail and cargo destined for the territory of the State whose nationality the aircraft possesses; and (v) the privilege to take on passengers, mail- and cargo destined for the territory of any other contracting State and the privilege to put down passengers, mail and cargo coming from any such territory. By the end of 1988, this Agreement was in force for only 11 States. However, its formulation of the "freedoms of the air" has been accepted in numerous bilateral agreements on air services. Aerial intrusions or violation of the sovereign airspace have frequently led to the interception of aircraft and to the -+ use of force against them. Several such incidents -were brought to the -+ \~nternationalCourt of Justice but objections to \

\

,

\

\

its jurisdiction have always prevented the Court from taking a substantive decision (see -+ Aerial Incident Cases (U.S. v. Hungary; U.S. v. U.S.S.R.; U.S. v. Czechoslovakia); -+ Aerial Incident of 27 July 1955 Cases (Israel v. Bulgaria; U.S. v. Bulgaria; U.K. v. Bulgaria». The most spectacular incidents of the interception of civil aircraft include the following: the shooting down of an Israeli aircraft in Bulgaria on July 27, }955 (with 58 fatalities); on February 21, 1973 the Israeli forces shot down a Libyan airliner over Sinai (108 fatalities); and on September 1, 1983 the Korean Airlines flight KAOO7 was shot down over Sakhalin (269 victims; -+ Korean Air Lines Incident (1983». The last incident prompted a response by the -+ International Civil Aviation Organization (ICAO) and on May 10, 1984 the 25th Session (Extraordinary) of the ICAO Assembly unanimously approved an amendment, in the form of a new Art. 3bis, to the Convention on International Civil Aviation. Art. 3bis states: ~----"The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. " The drafting of this provision indicates that the amendment did not create a new rule of law but recognized and confirmed a pre-existing rule of -+ customary international law; again, the rule does not apply only to the contracting States but to "every State" (Protocol Relating to an Amendment to the Convention on International Civil Aviation, December 7, 1944 (Art. 3bis), May 10, 1984, ILM, Vol. 12 (1984) p. 705, at p. 706). Convention on .International Civil Aviation, Chicago, December 7, 1944, UNTS, Vol. 15 (1948) 295-375. International Air Services Transit Agreement, Chicago, December 7, 1944, UNTS, Vol. 84 (1951) 389-409. International Air Transport Agreement, Chicago, December 7, 1944, UNTS, Vol. 171 (1953) 387-406. Protocol Relating to an Amendment to the Convention on International Civil Aviation, December 7, 1944 [Art. 3bis), May 10, 1984, ILM, Vol. 23 (1984) 705-7fY7. Regime des aerostats, AnnIDI, Vol. 19 (1902) 19-86. A. MERIGNHAC, Le domaine aerien prive et public et les droits de I'aviation en temps de paix et de guerre, RGDIP, Vol. 21 (1914) 205-235.

P. FAUCHILLE,

SPACE ACfIVITIES, RESPONSIBILITY AND LIABILITY FOR

The Treatment of Aerial Intruders in Recent Practice and International Law, AJIL, Vol. 47 (1953) 559-590. B. CHENG, The Law of International Air Transport, in: GW. Keeton and G. Schwarzenberger (eds.), The Library of World Affairs, No. 47 (1962). c.x, SHAWCROSS and K.M.BEAUMONT (eds.), Air Law, 2 vols. (4th ed. 1977). G.F. FITZGERALD, The Use of Force against Civil Aircraft: The Aftermath of the KAL Flight 007 Incident, CanYIL, Vol. 12 (1984) 291-311. J.e. PIRIS, De quelques controverses juridiques consecutives a la destruction du Boeing 747 de la KAL Ie 1er septembre 1983, RGDIP, Vol. 90 (1986) 815-847. O.J. LISSITZYN,

MICHAEL MILDE

SPACE ACTIVITIES, RESPONSIBILITY AND LIABILITY FOR 1. Notion

The term "responsibility", derived from the Latin repondere (to answer), means primarily answerability or accountability. On the premise that human beings are masters of their own will and hence of their own actions, responsibility is a notion commonly associated with all systems of norms of human behaviour, moral, religious or legal, in the sense that people are answerable for the conformity of their own actions with the applicable norm or norms. In the case of a breach of a legal rule causing damage to another, legal responsibility entails a legal obligation incumbent on the wrongdoer to make integral reparation to the victim for the damage so caused. The wrongdoer becomes "liable" for the damage. Whilst normally, in accordance with the principle of individual responsibility, people are liable only for damage caused by their own acts or omissions that are at the same time voluntary and unlawful (in other words, by their fault), responsibility may be, in addition, either voluntarily assumed or legally imposed. Such assumed or imposed responsibility may be not only for a person's involuntary or lawful acts and omissions, but also for the acts and omissions, whether lawful or unlawful, of others, and even for fortuitous events (-+ Internationally Wrongful Acts; -+ Responsibility of States: General Principles; -+ Responsibility of States: Fault

299

and Strict Liability; and see Cheng (1953) Part 3, pp. 161-253). Fault liability (often referred to in French as responsabilite subjective) means liability for damage caused by a person's fault. No-fault liability (or responsabilite objective), which is always either assumed or imposed, is divisible into strict liability (where the person liable remains entitled to invoke all the usual defences, such as contributory negligence or the lack of any causal connexion between the act and the damage, except the defence of absence of fault) and absolute liability (where liability arises whenever certain stipulated conditions are met and in which case the person liable is deprived of all the usual defences other than those provided for in the agreement assuming, or the specific law imposing, such liability) (see Cheng (1981». International -+ space law has made use of many of these notions (over which there is a great deal of confusion, especially in terminology) in connexion with two important issues, namely, answerability for activities in outer space and liability for damage caused by such activities, particularly by objects launched into outer space (generally referred to as space objects) (-+ Spacecraft, Satellites and Space Objects). These issues have understandably caused much concern because of the inherent difficulties, in the former case, in controlling such activities, especially activities of private persons, whether individual or corporate, and, in the latter case, in establishing such liability, by whomsoever incurred. Such concern has been heightened by reports of potentially harmful experiments in outer space, and of debris of space objects, sometimes radioactive, falling back to the earth. 2. Responsibility for Space Activities (a) General international law

States have almost from the very beginning of the space age agreed that outer space, including the moon and other -+ celestial bodies, shall not be subject to national appropriation. On that basis, outer space would, under intemationallaw, be territorium extra commercium from where the existence and exercise of -+ territorial sovereignty and territorial jurisdiction would be totally excluded. Whilst, under general intemationallaw,

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SPACE ACfIVITIES, RESPONSIBILITY AND LIABILITY FOR

every State will be responsible for its own activities in outer space, that is to say, acts and omissions of its officials and agents which are imputable to it (see Cheng (1953), pp. 180-207), the only form of control available over the activities of private entities would be the quasi-terntorial ~ jurisdiction of States over space objects of their registry, including all persons on board. and the personal jurisdiction. of States over ~ astronauts of their ~ nationality (see Cheng (1965». However, the history of the law of the sea has shown such control to be inadequate, thus giving rise to the development of, among others, the rules on visit and search (~ Ships, Visit and Search) and on ~ piracy which extend the jurisdiction of foreign States over private ships on the ~ high seas.

(b) Treaty rules Following the principle first envisaged in paragraph 5 of the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (UN GA Res. 1962 (XVIII), December 13, 1963), Art. VI of the ~ Outer Space Treaty (Tre aty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, January 27, 1967 (UNTS, Vol. 610, p. 206» provides: "States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization. " A similar provision is to be found in Art. 14 of the Moon Treaty (Agreement Governing the Ac-

tivities of States on the Moon and Other Celestial Bodies, December 5, 1979 (ILM, Vol. 18, p. 1434». Such a provision is highly innovatory in internationallaw. States parties to the treaty would seem to have thereby assumed direct responsibility for acts which in law would otherwise not be imputable to them, i.e., space activities of non-governmental entities (~ Responsibility of States for Activities of Private Law Persons). Such activities are to be treated as if they were activities of the respective States themselves, who, as a result, accept the legal consequences of such an assumption of responsibility. On this basis, it seems that the second sentence and the second part of the first sentence of Art. VI do not exhaust the scope of this responsibility as stated in the first part of the first sentence, and that they have simply singled out certain specific duties among all the consequences flowing from the contracting States' responsibility for express mention and emphasis. In other words, it does not appear possible to limit this responsibility merely to requiring authorization, instituting supervision and assuring conformity with the provisions of the 1967 Treaty.

.3. Liability for Space Activities (a) General international law With reference primarily to a State's liability for damage caused to foreign States, including damage to their territory, nationals, and property, by objects which it has launched into outer space or which have been launched from its territory, several rules of general international law may be applicable. First, consideration may be given to the rule quoted with approval by the arbitral tribunal in the ~ Trail Smelter Arbitration (1935, 1941): "A State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction" (RIAA, Vol. 3, p. 1905, at p. 1963). In the ~ Corfu Channel Case (1949), the ~ International Court of Justice (ICJ) also spoke of "every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States" (ICJ Reports 1949, p. 4, at p. 22). What applies to the acts of individuals within the territory of a State applies all the more

SPACE ACTIVITIES, RESPONSIBILITY AND LIABILITY FOR

to the acts of the State itself. Nevertheless the word "knowingly" in the Corfu Channel decision indicates that State responsibility in such cases remains based on fault (see Cheng (1953), p. 231, note 44). It remains doubtful whether there is yet in international law a general rule, as opposed to treaty provisions, imposing no-fault liability on States for damage caused by their ultra-hazardous activities (see Jenks), although it is arguable that in certain fields, including space activities, the underlying principles of certain widely accepted treaties may have already passed into the realm of general international law.

(b) Treaty rules Following essentially the principle first enunciated in paragraph 8 of General Assembly Res. 1962 (XVIII), Art. VII of the Outer Space Treaty provides: "Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the moon and other celestial bodies, and each State Party from whose territory or facility an object is launched is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the earth, in air or in outer space, including the moon and other celestial bodies." This article, in regard to the launch of any space object and in relation to other contracting parties to the Treaty, creates the possibility of four separate contracting States being simultaneously and, it would appear, jointly and severally liable for any damage which the space object may cause, namely, (i) the State that launches the space object, (ii) the State that procures its launching, (iii) the State from whose territo.ry the object is launched, and (iv) the State from whose facility it is launched. Doubt remains, however, as to the precise interpretation of the phrase "internationally liable", and in particular whether it means fault or no-fault liability. Concern exists also regarding the procedure of enforcing this liability. The Astronauts Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, April 22, 1968 (UNTS, Vol. 672, p. 119») provides in its Art. 5(4) that

301

"a Contracting Party which has reason to believe that a space object or its component parts discovered in territory under its jurisdiction, or recovered in territory under its jurisdiction, or recovered by it elsewhere, is of a hazardous or deleterious nature may so notify the launching authority" The launching authority is defined in Art. 6 as the State or appropriate international intergovernmental organization responsible for launching. In case of notification, the launching authority "shall immediately take effective steps. under the direction and control of the said Contracting Party, to eliminate possible danger of harm". The Agreement makes no reference to possible compensation or any other obligation on the part of the launching authority. The treaty that specifically tackles the problem of damage caused by space objects is the 1972 Liability Convention (Convention on International Liability for Damage Caused by Space Objects, March 29, 1972 (UNTS, Vol. 961, p. 187». The Convention first of all makes clear that '''damage' means loss of life, personal injury or other impairment of health; or loss of or damage to property .... ", "'launching' includes attempted launching", "launching State" refers to the same circle of States that the Outer Space Treaty has in mind, and the term "'space object' includes component parts of a space object as well as its launch vehicle and parts thereof' (Art. n. It follows from the definition of the launching State that the State from whose facility or territory a non-governmental space object is launched is automatically liable for any damage which the object may cause to other contracting States or their nationals, irrespective of the principle of national responsibility under Art. VI of the Outer Space Treaty. The position of international intergovernmental organizations conducting space activities is set out in Art. XXII. The Convention is not applicable to damage caused to nationals of the launching State or foreign nationals participating in the operation of the space object (Art. VII), but there is no exclusion of damage caused by either nuclear material or military space objects (see United States Senate, Report, p. 7), nor any ceiling to the launching State's liability. The Convention establishes the launching

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State's absolute liability for damage caused by its space objects on the surface of the earth or to aircraft in flight (Art. II), except to the extent to - -~ which such damage has been caused by the gross negligence or an act or omission on the part of the victim or of the claimant State done with intent to cause damage (Art. VI(I». Liability for damage done elsewhere rests on fault (Art. III). Art. IX of the Convention prescribes that the presentation of claims under the Convention by contracting States against one another shall be through- diplomatic channels (Art. IX) whether the claims be on their own behalf, or on behalf of their nationals (Art. VIII) (- Diplomatic Protec-tion). In an interesting innovation, the Convention permits a State, if the State of nationality has not presented .a claim, to present a claim to a launching State in respect of damage sustained in its territory by any natural orjuridical person, and in default of such a claim, a third State may present claims in respect of damage sustained by its permanent residents (Art. VIII). The most notable achievement of the Convention consists in establishing a system of compulsory third-party settlement of disputes (Arts. X to XIX). This system, albeit its decisions are not binding unless the parties have so agreed, is able, even when faced with a total lack of cooperation from one of Ithe parties, to lead, witnin a prescribed time sc~lf,~.to a final and r~mmenda­ tory award, based on -international law, on both the merits of the claim and the amount of compensation payable. The parties are under a duty to consider such an award in - good faith. There was considerable concern at one time over the question how to establish the identity of space objects and their debris and thereby the identity of their launching State or States. This task has been made easier by the adoption of the Convention on Registration of Objects Launched into Outer Space (January 14, 1975 (UNTS, Vol. 1023, p. 15», under which the contracting parties are under a duty among other things to provide the - United Nations Secretary-General for his register various data on space objects which they have launched into outer space.

4. Evaluation and Prospective The problem of liability for damage caused by space objects to foreign States or their nationals

appears to have been on the whole satisfactorily dealt with by the 1972 Convention. It was on the basis of the 1972 Convention that the Canadian claim against the Soviet Union in respect of the disintegration of the Soviet satellite "Cosmos 952" over Canada in January 1978 was made and eventually settled by a Protocol signed at Moscow on April 2, 1981, under which the Soviet Union paid Canada three million Canadian dollars (ILM, Vol. 20. p. 689). That incident would seem to indicate that, from this point of view, Art. 5 of the 1978 Astronauts Agreement does not affect the application of the 1972 Liability Convention. Furthermore, since Art. VII of the Outer Space Treaty has often been regarded as merely declaratory of general international law, and the Liability Convention as an elaboration of the principle enunciated by Art. VII especially as regards the basis of liability for damage caused by space objects, it may well be possible to maintain that at least the provisions of the latter on the basis of such liability are also only expressive of general international law. Insofar as damage on the moon and other celestial bodies is concerned, which can be caused by astronauts rather than by or from a space object, Art. 14(2) of the Moon Treaty recognizes "that detailed arrangements .,. may become necessary as a result of more extensive activities on the moon" and other celestial bodies, in addition to the 1967 Outer Space Treaty and the 1972 Liability Convention. The same article also provides that such arrangements should be made in accordance with the review procedure of the treaty as found in its Art. 18. The Liability Convention is silent as regards damage caused by persons or things carried on board a spacecraft. If the rules on surface damage by foreign aircraft in - air law is any guide, such damage would be deemed covered by the Convention, provided the spacecraft is in flight. Otherwise, the situation would seem to fall under the principle of international responsibility for national activities in space. How the novel principle of international responsibility for national space activities is going to operate in practice may in due course also require further arrangements. Already there is some doubt as to the meaning of "national" activities. Do they refer, in addition to a State's own

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governmental activities, solely to those of a State's par les objets lances dans l'espace atmospherique, AFDI, Vol. 14 (1968) 747-755. nationals, individual or corporate, within its territory, or do they include also those of non-nationals B. CHENG, Liability for Spacecraft, Current Legal Problems, Vol. 23 (1970) 216-239. within its territory? How about activities carried United States Senate, Report from the Committee on on by nationals or non-nationals on board a ship, Foreign Relations on the Convention on International an aircraft or a spacecraft of a State's nationality Liability for Damage Caused by Space Objects, 92d Congress, 2d Session, Executive Report No. 92-38 or registry who are, therefore, under its quasi(1972). territorial jurisdiction, or by a State's nationals in H. REIS, Some Reflections on the Liability Convention a foreign country under foreign territorial jurisdicfor Outer Space, Journal of Space Law, Vol. 6 (1978) tion, or on board a foreign ship, aircraft, or 125-128. spacecraft under foreign quasi-territorial jurisdic- B. CHENG, Convention on International Liability for Damage Caused by Space Objects, in: N. Jasention, or in territorium nullius under a State's own-tuliyana and R.S.K. Lee (eds.), Manual on Space personal jurisdiction? A not unreasonable solution Law, Vol. 1 (1979) 83-172. would be to consider all activities under the C.Q. CHRISTOl, International Liability for Damage effective jurisaction of a State to be "national" Caused by Space Objects, AJIL, Vol. 74 (1980) activities for which it becomes internationally 346-371. B. CHENG, A Reply to Charges of Having Inter Alia responsible. Misused the Term Absolute Liability in Relation to Then there is the interpretation of the phrase the 1966 Montreal Inter-Carrier Agreement in my "international responsibility". How far does such Appeal for an Integrated System of Aviation Liability, responsibility extend, in regard to non-governAnnals of Air and Space Law, Vol. 6 (1981) 3-13. mental activities, beyond authorization, supervi- A. BUECKLING, Volkerrechtliche Haftung fiir Raumfahrtschaden nach dem Weltraumhaftungsabkommen sion and assuring compliance with rules of internavom 29. Marz 1972 (1982). tional law and applicable treaties? Does the S. GOROVE, Liability in Space Law: An Overview, qualification "international" thereby limit reAnnals of Air and Space Law, Vol. 8 (1983) 373-380. sponsibility t-o international norms and exclude International Institute of Space Law of the International private law liabilities, such as salvage claims? And Astronautical Federation, Proceedings of the TwentySixth Colloquium on the Law of Outer Space (Octhe words "activities in outer space"? Does this tober 10-15, 1983, Budapest), Responsibility for expression cover, for instance, the content of Space Activities (various authors) (1984) 105-178. direct broadcasting by privately owned and oper- J.A. BOSCO, Liability of the United States Government ated satellites (~ Satellite Broadcasting), includfor Outer Space Activities which Result in Injuries, ing possible infringements of copyright, and not Damages or Death According to United States National Law, Journal of Air Law and Commerce, Vol. only the gathering of primary data with non51 (1985-1986) 809-895. governmental remote sensing satellites, but also M.S. FREESTONE, Problems in the Resolution of Disputes the processing of such data and their analysis, as concerning Damage Caused in Outer Space, Tulane well as the dissemination, use and possible misuse Law Review, Vol. 59 (1985) 747-780. of the analyzed information? These are some of BIN CHENG the questions answers to which will need in due course to be found. United Nations, The United Nations Treaties on Outer Space (1984). General Principles of Law as Applied by International Courts and Tribunals (1953, reprint 1987). B. CHENG, The Extra-Territorial Application of International Law, Current Legal Problems, Vol. 18 (1965) 132-152. CW. JENKS, Liability for Ultra-Hazardous Activities in International Law, RdC, Vol. 117 (1966 I) 99-200. C. DELEAU, La responsabilite pour les dommages causes B. CHENG,

SPACE LAW 1. Notion. - 2. Historical Evolution of Legal Rules.. 3. Current Legal Situation: (a) The Outer Space Treaty. (b) Rescue and Return Agreement. (c) The Liability Convention. (d) The Registration Convention. (e) The Moon Treaty. (f) The International Telecommunication Convention. - 4. Special Legal Problems: (a) The boundary between airspace and outer space. (b) Protection of the space environment. (c) Commercial space activities. (d) Militarization of outer space. - 5. Evaluation.

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1. Notion The evolution of space law has closely followed space exploration. Within days after the launch of the first artificial satellite, on October 4 1957 the ~ United Nations General Assembly, in Resolution 1148 (XII), called for the joint study of an .inspection system to ensure that the sending of objects through outer space be used exclusively for peaceful and scientific purpcses (~ Spacecraft and Satellites). In 1958, the l.JN General Assembly created an ad hoc Committee on Peaceful Uses of Outer Space (COPUOS) and entrusted to it the study of the "nature of legal problems which may arise in the carrying out of the programmes to explore outer space". These resolutions, supplemented by several other General Assembly resolutions, laid the foundation of law to govern outer space activities and determined its general nature and form. Basic principles of space law were initially conceived and proposed in legal doctrine by publicists. An analysis of early views of various authors on the regulation of outer space activities reveals a significant common feature, namely, that outer space and ~ celestial bodies should be free for exploration and use by all States in accordance with general principles of international law including the ~ United Nations Charter, and not subject to national appropriation. Thus, by allowing freedom of exploration and use as opposed to establishing new zones of ~ sovereignty (~ Sovereignty over Airspace), it was felt that outer space could serve the common interest of all humankind. Outer space is a unique and nove: field for human activities. The nature and physical characteristics of outer space are such that activities are primarily international. While ~ international relations are governed by international law, a set of special principles and rules to govern outer space, the moon and other celestial bodies has evolved. These principles and rules form a special branch of international law.

2. Historical Evolution of Legal Rules The ~ United Nations has played a primordial role in developing international space law, notably by the adoption of General Assembly resolutions (~International Organizations, Resolutions).

Whether these resolutions are obligatory in nature or represent mere recommendations is open to discussion. Prior to the first launching of a space object, the analogy most applicable to outer space was that of the ~ high seas, which constitute a res communis. Following the launching of the first Soviet and American satellites, the UN General Assembly, through COPUOS, studied the legal problems which could arise in carrying out space activities. In Resolution 1472(XIV) of December 12, 1959, the General Assembly recognized as the fundamental basis for space exploration the common interest of mankind and, significantly, made mention of the paramount aim to benefit all States "irrespective of their economic or scientific development" through space exploration. The promotion of international cooperation was also underlined. The next significant resolution, Resolution 1721 adopted unanimously in December 1961, would serve to guide the subsequent evolution of space law. In addition to reiterating the aforementioned principles, the General Assembly adopted the guiding principle that outer space and celestial bodies would be "free for exploration and use by all States in conformity with international law and would not be subject to national appropriation". These principles were further elaborated by Resolution 1962 unanimously adopted and entitled "Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space". The following guiding principles were propounded: (1) the exploration and use of outer space should be carried on for the benefit and in the interest of all mankind; (2) outer space and celestial bodies should be free for exploration and use by all States on a basis of equality and in accordance with international law; (3) outer space and celestial bodies should not be subject to national appropriation; (4) the activities of States in the exploration and use of outer space should be carried on in accordance with international law including the UN Charter; (5) States should bea; international responsibility for national activities in outer space (~ Responsibility of States: General Principles; ~ Responsibility of States: Fault and Strict Liability), this responsibility to be borne by the States alone or by the international organizations and by the States participating in

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them; it was also set forth that national activities should require continuing supervision by the State concerned; (6) in the exploration and use of outer space, States should be guided by certain principles of responsibility, and there should be ~ consultation between interested parties; (7) the State on whose registry an object is launched into outer space should retain jurisdiction and control over such object and its component parts (~ Jurisdiction of States); (8) each State which launches or procures the launching of all object into outer space should be internationally liable for damage to a foreign State by such object or its component parts on the earth, in air space or in outer space (~ Space Activities, Liability for); (9) States should regard -,. astronauts as envoys of mankind in outer space and should render to them all possible assistence; the principle of the return of astronauts and their space vehicles to the State of registry was also laid down. All subsequent space treaty law has reflected many principles embodied in this Declaration.

The Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space of April 22, 1968 (UNTS, Vol. 672, p. 119), as its title suggests, provides for the tendering of assistance and the I escue of astronauts in the event of accident, distress or any emergency landing. Most States concurred that astronauts in need of assistance were to be treated with special care and repatriated promptly. To this end States agreed to regard astronauts as envoys of mankind. This attitude towards astronauts reflects the spirit of international cooperation and mutual assistance applicable to space activities. Provision is also made for the recovery of the spacecraft and its component parts upon request from the launching authority.

3. Current Legal Situation

(c) The Liability Convention

COPUOS and its two Subcommittees, the Technical and SCientific Subcommittee and the Legal Subcommittee, have formulated five international treaties governing activities in outer space. All of them have been adopted by ~ consensus.

The Convention on International Liability for Damage Caused by Space Objects of March 29, 1972 (UNTS, Vol. 961, p. 187) developed from general principles in Arts. VI and VII of the Outer Space Treaty which deal respectively with the international responsibility of States for their national activities and the liability for damage to another State party to the Treaty or to its natural or juridical persons. Its purpose is the elaboration of effective international rules and procedures to use in obtaining equitable compensation to victims of damage caused by space objects. The liability of a launching State can be either absolute or on proof of fault. Absolute liability arises in the event of damage caused by a space object on the surface of the earth or to ---7 aircraft in flight. In the event of damage caused by a space object elsewhere, the fault of the launching State (Art. II) or of persons for whom it is responsible has to be proved.

(a) The Outer Space Treaty The Treaty on Principles Governing the Activities of States, including the Moon and Other Celestial Bodies (1967), commonly referred to as the ~ Outer Space Treaty, is regarded as the cornerstone of international space law. The Treaty propounds a number of fundamental principles which establish the basic framework for general space exploration and utilization. However, while looked upon as the basis for space activities, many notable space jurists have decried the lack of precision and definition in its use of terms. This absence of clearly defined legal rules of conduct was, in some cases, the result of intentional omission. Notwithstanding this criticism. the Outer Space Treaty is the most important source of space treaty law. All space exploration and utilization is subject to its broad parameters. One must also bear in mind that, as per its title, it is a

treaty of principles, and is considered to form the basis upon which more precise conventions could be drafted.

(b) Rescue and Return Agreement

(d) The Registration Convention The Convention on the Registration of Objects Launched into Outer Space of November 12, 1974 (UNTS, Vol. 1023, p. 15) establishes a mandatory system of registration of space objects launched into orbit and beyond. It is based on the voluntary

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system formulated in UN GA Resolution 1721 and elaborates on those provisions of the Outer Space/ Treaty which refer to national registries (Arts. V and VIII). The establishment of a central registry was to help ensure effective management of traffic, enforcement of safety standards, and imputation of liability for da nage. The Convention imposes an obligation on the launching State (Art. I) to establish a national registry (Art. II) and provides specific inforrration concerning a central public registry (Art. IV). This public registry is kept by the Outer Space Affairs Division of the Department of Political and Security Council Affairs of the UN Secretariat ( ~ United Nations Secretary-General). The Registration Convention has been criticized for the laxity of its wording. Crucial infoi mation such as the date and location of the launch, changes in orbital parameters after the launch, and the recovery date of the spacecraft must be reported "as soon as practicable" (Art. IV). This may take weeks or months. States are not obliged to reveal the true function of the satellite, bi t only its "general function" (Art. IV). At present, no space mission has ever been reported as serving military purposes. Finally, the marking of space objects, which can prove invaluable in de terrnining the State bearing international responsibility for injury or damage caused by a space object, is only voluntary (Art. V).

(e) The Moon Treaty The Agreement Governing the Activities of States on the Moon and Othe r Celestial Bodies of December 5, 1979 (UN GA Res. 34/68, Annex; ILM, Vol. 18 (1979) p. 1434) is the most recent general space law treaty, and entered into force on July 11, 1984. The Moon Treaty is a composite of general principles and specific provisions outlining permissible activity on the moon and other celestial bodies. It specifies that its provisions shall apply not only to the moon ht to celestial bodies other than the earth "except in so far as specific legal norms tu,':::- H'to force with respect to any of these celestial bOL ., 1"'-1. ~) The main provisions largely reaffirm the appucation orihc principles of the Outer Space Treaty, and expand its ~ notification provisions (Arts. 5 and 9) and environment provisions (Art. 10)

(~

Environment, International Protection). It provides that "the moon shall be used '" exclusively for peaceful purposes" (Art. 3(1 )), and "any threat or use of force or any other hostile act or threat on the moon is prohibited" (Art. 3(2); ~ Use of Force). The most significant provision is Art. 11 which designates the moon and its natural resources as the ~ common heritage of mankind. This article calls for the establishment of a regime for the exploitation of resources found on the moon and on other celestial bodies which will provide for rational management of the resources and equitable sharing by all States parties in the benefits derived from those resources. The direction of the treaty is clearly toward ~ internationalization of the moon and its natural resources and parallels the ~ negotiations on the ~ law of the sea. However, uncertainties surround the Moon Treaty and its future prospects. The scope of the common heritage of mankind provision is unclear. It is viewed by some as a mere statement of attitude, while others recognize it as a nascent principle of international law. The United States and the Soviet Union appear to have no plans to ratify the Moon Treaty.

(f) The International Telecommunication Convention The approach of the ~ International Telecommunication Union (ITU) to its essential function of regulating the use of the radio spectrum and the geostationary orbit reflects basic principles of international space law. One of its goals is to maintain and extend international cooperation for the improvement and rational use of telecommunications (Art. 4(1)(a)). Efficient use of the radio spectrum is achieved through harmonization and coordination of State actions. With respect to the use of the geostationary orbit, States are requested to undertake efficient and economical utilization to ensure equitable access for all members. Art. 33 recognizes the geostationary orbit as a limited natural resource and that its use must take into account the special needs of ~ developing States (Art. 33(2)). This provision clearly indicates the changing philosophy of the ITU in the regulation of these limiter' resources (~ Satellite Broadcasting).

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4. Special Legal Problems (a) The boundary between airspace and outer space

The Outer Space Treaty laid down for outer space an international legal status quite different from the status of air space, the latter being under the sovereignty of the underlying State. However no agreement exists as to where the regime of airspace ends and that of outer space begins. There are at least 35 theories on precisely where outer space begins. None of these theories has received general acceptance among jurists or among States. From a legal point of view two schools of thought emerged at an early stage: that of the functionalists, who consider the nature of the activity of a space vehicle rather than the physical location of its activities to be crucial, and the spatialists, who more traditionally pointed to the acknowledged ~ territorial sovereignty of States. In 1979, the Soviet Union submitted a working paper to COPUOS suggesting inter alia that the region above an altitude of 100 (110) km should be deemed to be outer space. Several countries, including the United States and the United Kingdom, opposed this proposal and argued that a demarcation line was unnecessary and could possibly interfere with current and future space activities. The question of the definition of outer space has become more controversial as a result of the position of several equatorial States that have declared the geostationary orbit, because of its dependence on the earth's gravity, to be under the sovereignty of the subjacent States. This position has been widely rejected. Had an international agreement on the definition of outer space existed, the equatorial States might not have advanced their claim. While the debate continues as to whether delimitation is possible or necessary, the issue has acquired a new dimension with the advent of the space shuttle which performs its mission as a spacecraft but returns to earth through airspace as a glider. The solution to the problem of delimitation remains elusive. (b) Protection of the space environment

More than five thousand space objects have been tracked in outer space. Congestion of the

near-earth space, space debris, damage to the atmosphere and ionosphere by rocket propellants and the danger of radioactive contamination are the most obvious risks involved in the growing utilization of outer space. The open nature of the space environment, as well as experience with pollution problems on the surface of the earth, are indicative of the need for effective legal protection of space (d. ~ Air Pollution; ~ International Watercourses Pollution; ~ Waste Disposal). Space environmental law will have to deal with both space debris and space pollution. Rules will be needed on the removal of inactive satellites and generally on the reduction of space debris. In the near future, a large assembly of orbital stations in outer space can be expected, further adding to the density of traffic. Future space activities will have to be subjected to limitations on pollution in an effective way, as they may affect the entire globe. Another area of concern involves the dangers connected with the use of nuclear power sources (NPS) in space (~ Nuclear Energy, Peaceful Uses). Attention was drawn to this issue following the disintegration in 1978 of a Soviet surveillance satellite, Cosmos 954, over Canada's Arctic territory. This incident drew attention to the longstanding practice of space powers of launching into outer space, without any international controls, vehicles carrying radioactive materials. It is estimated that between 25 to 100 satellites equipped with NPS have been placed by the united States and the Soviet Union in the earth's orbit. Guidelines to ensure that NPS be used in outer space as safely as possible are needed. These could cover radiation levels, protection standards, assistance to States, orbital prediction and notification requirements. (c) Commercial space activities

Man's activities in space have gone from scientific exploration to commercial utilization. At present, all national economies are cutting down on budgets. This situation, together with the high costs of future space activities, will necessitate financial help from States and governments. The commercialization of satellite services and the commercial availability of the Space Shuttle are indicative of this approach. Existing rules of space law must take into account the economic and

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technical background which char acterize the growing commercialization of space activities. The role of private enterprise in space activities can also be expected to develop considerably both in volume and in the relativ ~ share of space activities compared to those of States. The legal framework of such commercial activities of private enterprises will require clarifics.tion. (d) Militarization of 0 'iter space

The growing danger of militarization of outer space can hardly be overestimated. The Outer Space Treaty provides only tor the partial ~ demilitarization of outer space. The advent of new technologies such as anti-satelltes (ASATs), ballistic missile defense (BMO) and strategic defense initiative (SOl) systems will require not only clarification of existing rules, but also the elaboration of new legal instruments IS alternatives and possible compromises to limit and reduce such activities (see also ~ Strategic Arms Limitations Talks (SALT».

5. Evaluation Space law has had an astonishingly good start. The existing space law treaties and other instruments give space activities a clearer and safer legal framework than can be found for other activities dealt with in international law. As mentioned above, a number of challenges and obstacles are likely to make future international agreements in space law more difficult to reach and less comprehensive in scope. Techno.ogical, economical and political issues have and will influence the future development of space law. Certain specific areas of space law can be expected to become increasingly important and will require the clarification of existing and the creation of new legal rules. The legal vacuum relating to outer space is gradually being filled and the future development of the law of outer space is likely to be a challenging prospect. Regulation, Limitation and Balanced Reduction of all Armed Forces and all Armaments; Conclusion of an International Convention (Treaty] on the Reduction of Armaments and the Prohibition of Atomic. Hydrogen and Other Weapons of Ma: s Destruction, UN GA Res. 1148 (XII), November H, 1957. Question of the Peaceful U5e of Outer Space, UN GA Res. 1348 (XIII), December J3, 1958.

International Co-operation in the Peaceful Uses of Outer Space. UN GA Res. 1472 (XIV), December 12. 1959. International Co-operation in the Peaceful Uses of Outer Space, UN GA Res. 1721 (XVI), December 20. 1961. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, UN GA Res. 1962 (XVIIJ), December 13, 1963. Treaty on Principles Governing the Activities of States. Including the Moon and Other Celestial Bodies, January 27. 1967. UNTS, Vol. 610 (1967) 205-301. Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space, April 22, 1968, UNTS, Vol. 672 (1969) 119-18C;. Convention on International Liability for Damage Caused by Space Objects, March 29, 1972, UNTS, Vol. 96: (1975) 187-261. Convention on Registration of Objects Launched into Outer Space, November 12, 1974, UNTS, Vol. 1023 (1976) 15-73. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, December 5, 1979, UN GA Res. 34/68, Annex; ILM, Vol. 18 (1979) 1434-1441. International Telecommunication Union, International Telecommunication Convention, Final Protocol, Additional Protocols, Optional Additional Protocol, Resolutions. Recommendations and Opinions, Nairobi, 1982. International Institute of Space Law of the International Astronautical Federation, Proceedings of the Colloquium on the Law of Outer Space [yearly from 1959]. M. LACHS The International Law of Outer Space (1966). N. M. MATTE. Aerospace Law (1969). N. JASENTULIYANA and R.SK. lEE (eds.), Manual on Space Law, : vols. (1979). A. GORBlEL, Legal Definition of Outer Space (1980). s. GOROVE (ed.), The Space Shuttle and the Law (1980). G.C.M RE IJNEN. Utilization of Outer Space and International Law (1981). M. SEAR.'\. VAZQUEZ, Derecho y politica en espacio cosmico (1981). CQ. CHRiSTOl. The Modern International Law of Outer Space (1982). M.D. FORKOSc..H. Outer Space and Legal Liability (1982). R CAFAI{l PANICO, La cooperazione europea in campo spazialc (1983). J.£S. FAWCElT, Outer Space. New Challenges to Law and Policy (1984). A GORBIEL, International Organizations and Outer Space Activities (1984). N LaNGDON and D. GUYENNE (eds.), Twenty Years of European Cooperation in Space. A European Space Agency Report 1964-1984 (1984). N.M. MA'ITE (ed.), Centre for Research of Air and Space

SPACECRAFT, SATELLITES AND SPACE OBJECTS

Law, McGill University, Space Activities and Emerging International Law (1984). N.M. MAlTE, Le droit extra-atmospherique et la course aux armernents. Droit spatial ou droit aero-orbital? (1984),

The Orbit of Space Law (1984), and CM. RElJNEN, Space Law in the United Nations (1985), A. GORBIEL, International Lawof Outer Space (1985) [in Polish]. A.S. PI RADON (ed.), International Law of Outer Space, A Textbook (1985) [in Russian]. D. WADEGAONKAR,

G. BENKO.

w. DE

GRAAFF

NICOLAS MATEESCO MAlTE

SPACECRAFT, SATELLITES AND SPACE OBJECTS 1. Notion: (a) Spacecraft and space vehicles. (b) Satellites. (c) Space objects. - 2. Freedom of Exploration and Use. - 3. Prohibited Objects. - 4. Jurisdiction and Ownership. - 5. Registration and Legal Status: (a) National registration: (i) State register. (ii) Institutional register. (b) United Nations register. (c) Legal status. 6. Liability for Damage Caused. - 7. Return of Stray Objects. - 8. Evaluation and Prospective: (a) Definitional and classificatory problems. (b) Registration and jurisdictional problems. (c) Identification of space objects.

1. Notion (a) Spacecraft and space vehicles Spacecraft and space vehicles appear to have been treated as synonymous terms in treaties relating to outer space concluded under the auspices of the -'" United Nations. While the 1967 -'" Outer Space Treaty (UNTS, Vol. 610, p. 206) speaks in its Art. V of -'" astronauts and their "space vehicle", the 1968 Astronauts Agreement (Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, April 22, 1968 (UNTS, Vol. 672, p. 119» prefers in its various provisions to refer to the "personnel of a spacecraft" (Arts. 1(1), 2, 3, and 4). Art. 3(2) of the Moon Treaty (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, December 5, 1979 (ILM, Vol. 18, p. 1434» also refers to "spacecraft" and "the personnel of spacecraft". The 1967 Outer Space Treaty in its Art. XII distinguishes "space vehi-

309

des" on -'" celestial bodies from "stations, installations, [and] equipment", to which the Moon Treaty consistently adds "facilities" (Arts. 8(J)(b), 10(2), ]](3), 12(J) and (3), and 15). It would appear that the terms "space vehicle" and "spacecraft" have been used primarily to designate any device designed to move or to be stationed in space or on celestial bodies, whether manned or unmanned. However, the question can be asked whether the plain reference to "vehicles" without the qualification "space" in Arts. 9(2), 10(2), and J2(2) and (3) of the Moon Treaty indicates a differentiation between vehicles capable of space flight and those capable only of locomotion on celestial bodies. The formulation of, for instance, Art. 12(1) of the Moon Treaty, where the expressions "space vehicles" and "vehicles" are used in the same paragraph, would seem to suggest that no such distinction is intended, but rather that the qualifier "space" is sometimes dropped when reference is made to vehicles on celestial bodies on the apparent assumption that all such vehicles would ipso facto be space vehicles.

( b) Satellites None of the treaties relating to outer space concluded under the auspices of the United Nations has occasion to refer to artificial earth satellites, although the Preamble of the Moon Treaty does mention the "moon, as a natural satellite of the earth". Thei e are also references in two of the treaties to objects placed "in orbit around the earth" or "in earth orbit" (Outer Space Treaty, Art. IV(1); the 1975 Registration Convention (Convention on Registration of Objects Launched into Outer Space, lanuary 14, 1975 (UNTS, Vol. 1023, p. 15», Art. V). It is, of course, also possible to have artificial satellites placed around celestial bodies other than the earth. In fact, Art. 3 of the Moon Treaty prohibits the placing of nuclear weapons (-", Nuclear Warfare and Weapons) or any other kinds of weapons of mass destruction "in orbit around" the moon. However, most other treaties, especially those establishing the International Telecommunications Satellite Organization (-'" Intelsat) and the International Maritime Satellite Organization (-", Inmarsat), where the term "satellite" is much used, take for granted that the

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SPACECRAFT, SATELLITES AND SPACE OBJECTS

description "satellite", if unqualified, refers to an artificial earth satellite. Neither treaty includes "satellite" among the terms defined in the agreement. (c) Space objects

From the legal standpoint, "space object" is, in current practice, the generic tum used to cover spacecraft, satellites and, in fact, anything that human beings launch or attempt to launch into space, including their components and launch vehicles, as well as parts thereof. This practice appears to have been well-established by the 1967 Outer Space Treaty (Arts. VU and VIII), the Liability Convention (Convention on International Liability for Damage Caused by Space Objects, March 29, 1972 (UNTS, Vol. 961, p. 187)) and the Registration Convention. In respect of State -+ jurisdiction, registration and liability, the rules operate by reference primarily to "space objects". The fact that Art. 3(2) of the Moon Treaty mentions spacecraft and man-made space objects separately when it refers to "the earth, the moon, spacecraft, [and] the personnel of spacecraft or man-made space objects" is intended no doubt to facilitate the reference to "personnel of spacecraft" and is not believed to imply thereby that spacecraft do not constitute "man-made space objects". The expression "space object" is, however, not specifically defined in any of the conventions relating to outer space established under the auspices of the United Nations, notwithstanding efforts to do so in the negotiations leading to the Liability Convention and the Registration Convention. As referred to in Arts. VII and VIII of the 1967 Outer Space Treat (, for example, it denotes simply "an object launched into outer space", which, in the terminology of the treaty, includes the moon and other celestial bodies. Under Art. I(b) of the Liability Convention, " 'launching' includes attempted launching". That definition appears to be generally applicable in the determination of what is a spa':e object. The 1967 Outer Space Treaty, in its Art. VIII, appears to subsume under the term "space objects" not only "their component parts", but also "objects landed or constructed on a celestial body". Whilst the Astronauts Agreement still refers separately and expressly to "component parts" of a space object

(Art. 5), both the Liability Convention (Art. l(d)) and the Registration Convention (Art. 1(b)) provide in identical fashion that "[t]he term 'space object' includes component parts of a space object as well as its launch vehicle and parts thereof." Without using exactly the same wording, Art. 12(1) of the Moon Treaty appears to do no more than to echo Art. VIII of the Outer Space 1. eaty in providing that "States Parties shall retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the moon. The ownership of space vehicles, equipment. facilities. stations and installations shall not be affected by their presence on the moon." These items all come no doubt under the description "man-made space objects" in Art. 3(2) of the same treaty. In sum, therefore, the term space object designates any object which humans launch, attempt to launch or have launched into outer space. It embraces satellites, spacecraft, space vehicles, equipment, facilities, stations, installations and other constructions, including their components, as well as 'heir launch vehicles and parts thereof.

2. Freedom of Exploration and Use Art. Il of the 1967 Outer Space Treaty, which declares outer space, including the moon and other celestial bodies, not subject to national appropriation, can probably be accepted now as merely declaratory of general international law. As a result, there is freedom in the exploration and use of outer space by means of satellites, spacecraft and other objects launched into outer space or constructed in outer space or on the moon and other celestial bodies, as well as "free access to all areas of celestial bodies" (Art. 1(2) and (3)). In the Moon Treaty, as set forth in Art. 1, reference to the moon applies also "to other celestial bodies within the solar system, other than the earth", except when otherwise stated. In relation to the Moon Treaty, this practice will also be followed here. As among the Treaty's contracting States, which declare the moon and its natural resources the -+ common heritage of mankind (Art. 11(1)), the freedom of their space objects to land on the moon, to be launched from it, to be placed on or below its surface, or to move and be moved over or below its surface is clearly pre-

SPACECRAFT, SATELLITES AND SPACE OBJECTS

served (Art. 8). Art. 9 specifically provides that States parties may establish manned and unmanned stations on the moon, although it lays down at the same time certain restrictions and regulations relating to them, including the need of preserving free access to all areas of the moon.

3. Prohibited Objects Under Art. IV of the 1967 Outer Space Treaty: "States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons '" on celestial bodies shall be forbidden .... The use of any [military?] equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall ... not be prohibited. " Controversy exists as to whether the adjective "peaceful" in the second paragraph, especially where it occurs in the first sentence of that paragraph, means "non-military" or merely "nonaggressive". There is also a very prevalent misconception that the first sentence of the second paragraph applies also to outer space as such, and not merely to the "Moon and other celestial bodies". This may well be one of the reasons why some States insist on interpreting the word "peaceful" to mean merely "non-aggressive" (see Cheng (1983) pp. 98-105). A very similar provision in relation to the moon and other celestial bodies within the solar system other than the earth exists in the Moon Treaty (Art. 3).

4. Jurisdiction and Ownership Art. VIII of the 1967 Outer Space Treaty provides the following: "Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer

311

space or on a celestial body or by their return to the Earth .... " As quoted above, Art. 12(1) of the Moon Treaty contains a very similar statement. Insofar as the ownership of space objects is concerned, these two provisions may be regarded as merely declaratory of general international law. However, they do not appear to preclude States from abandoning those of their space objects which have outlived their usefulness. In fact, debris in space is becoming a serious problem. Art. VIII of the 1967 Outer Space Treaty further provides that "[a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body .... " At first sight, Art. I2( 1) of the Moon Treaty, as quoted above, in saying that "States Parties shall retain jurisdiction and control over their personnel, space vehicles, equipment, facilities, stations and installations on the moon .., " , may appear to have slightly extended the scope of Art. VIII of the 1967 Outer Space Treaty. However, if regard is had to the latter's immediate reference thereafter to continued ownership of "objects landed or constructed on a celestial body", the inference must be that this statement in the Moon Treaty merely amplifies Art. VIII of the Space Treaty without modifying it. Insofar as space objects are concerned, and inasmuch as outer space and celestial bodies can now probably be considered res extra commercium under general international law, the above provisions can, with perhaps only some slight reservation relating to registration, also be taken to be declaratory of general international law , especially as both provisions use the expression "retain". Since there can now be no ~ territorial sovereignty in outer space or on celestial bodies . there can also be no exercise of territorial jurisdiction in regard to them. Consequently, the jurisdiction that States exercise over their space objects will be quasi-territorial in character, that is, of the same nature as jurisdiction over their own ships (~Ships, Nationality and Status) and ~ aircraft. Such jurisdiction applies not only to the object as such, but also to all things and

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persons on board. In case of concurrence or conflict, quasi-territorial jurisaction overrides personal jurisaction (see Cheng (1965) pp. 134142). Under general international law, ships and aircraft fall under the quasi-territorial jurisdiction of States on account of their -~ nationality, which they acquire through domestic law by reason either of their ownership by nationals of a State, as in the case of British ships, or of their being registered in a State. Although Art. VIII of the 1967 Outer Space Treaty appears to ~resuppose that all objects launched into outer space will have been placed on some State register, this assumption is not implied in either the Astronauts Agreement or the Liability Convention. The latter treaties studiously eschew any reference to the State of registry. They speak always of the "launching authority" or the "launching State". This terminology can mean altogether four separate States, for it refers to the State that launches or procures the launching of a space object, or a State from whose territory or facility a space object is launched. In fact, the problem of registration of space objects was not resolved until eight years after the 1967 Outer Space Treaty by the Registration Convention It would appear that where there is no registration, jurisdiction will probably follow ownership, as the Moon Treaty seems to envisage when, in its Art. 12(1), it speaks of States parties retaining jurisdiction over "their" vehicles, equipment and so forth on the moon. The 1967 Outer Space Treaty lays down certain limitations on the exercise of jurisdiction by the State of registry over its "stations, installations, equipment and space vehicles on the Moon and other celestial bodies" by providing in its Art. XII that these facilities "shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity. Such representatives sha l:ive reasonable advance notice of a projectec visit, in order that appropriate consultations II, ay be held and that maximum precautions m ay be taken to assure safety and to avoid interference with normal operations in the facility to be visited." As among contracting States to the Moon Treaty, a similar provision exists, albeit no longer subject to the condition of reciprocity, for the express purpose of enabling contracting parties to

assure themselves that the treaty is being complied with (Art. 15). In a slightly opposite direction, there is now increasingly talk of safety or "keep-out" zones around space objects. 5. Registration and Legal Status One of the concerns of States which fear that they or their nationals may be victims of damage caused by foreign space objects is how to establish the identity of such space objects and, therefrom, the identity of the launching State or States responsible. Initially by analogy with ships and aircraft, many were thinking in terms of requiring identification marks to be displayed on space objects. However, the special characteristics of space flight, together with the fact that space objects that return to earth to cause damage have most often already disintegrated into relatively small fragments, soon brought about the realization that perhaps it would be more helpful if details of individual space objects, including their planned and actual orbits and trajectories, were generally and readily accessible. For this purpose, as well as for the purpose of providing the scientific community and the public at large with the fruits of space exploration, and the other contracting States with some means of monitoring whether the treaty provisions are being observed or not, the 1967 Outer Space Treaty has been unable to persuade the States parties to undertake more than a vague promise to inform the ~ United Nations Secretary-General as well as the public and the international scientific community, "to the greatest extent feasible and practicable", of the nature, conduct, location and results of their exploration and use of outer space (Art. XI). Previously, the General Assembly in Resolution 1721(XVI) (December 20, 1961) called upon States launching objects into orbit or beyond promptly to inform the United Nations of such launchings, and asked the Secretary-General to establish a public registry to record them. However, such reporting, though it nominally still continues, is voluntary and incomplete. It was not until 1975 that a system of mandatory reporting was established by the Registration Convention. The Convention provides for two levels of registration: national or domestic registration and United Nations registration.

SPACECRAFT, SATELLITES AND SPACE OBJECTS National~g~uation

313

National or domestic registration may be further distinguished.

of its members to extend the latter's jurisdiction and control to the object registered (see Lafferranderie (1986) pp.231-232; cf. Cheng (1981) pp. 100-101).

(i) State register

(b) United Nations register

Art. 11(1) of the Registration Convention contains the following provision: "When a space object is launched into earth orbit or .beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain." The Convention has avoided joint registration. Instead, Art. 11(2) provides as follows: "Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof." Under Art. 11(3), the State of registry has complete discretion as to how the register is operated.

In addition to the domestic registers maintained by States or international organizations, entry on which will have the effect, directly or, at least it is to be hoped, as a concomitant thereof, of determining the State which exercises quasi-territorial jurisdiction over a space object, the Registration Convention requires the Secretary-General of the United Nations to maintain a United Nations Register (Art. III). States as well as international organizations maintaining domestic registers are obliged to furnish the Secretary-General "as soon as practicable" various items of information concerning space objects carried on their registers, including, where applicable, the designators or registration numbers borne by such objects, to supply him "from time to time" with additional information, and to notify him "to the greatest extent feasible and as soon as practicable" of previously reported artificial earth satellites "no longer ... in earth orbit" (Arts. IV, V).

(a)

(ii) Institutional register

As a result of Art. VII of the Registration Convention, which allows certain qualified international intergovernmental organizations conducting space activities that make a declaration accepting the rights and obligations of the Convention to become quasi-parties to the Convention (~ International Organizations, Treaty-Making Power), such quasi-parties are also entitled to have their own registers. In such instances, inasmuch as no international organizations conducting space activities have yet been endowed with the power or capability of exercising quasi-territorial jurisdiction, where an organization has registered a space object, the United Nations Legal Counsel has apparently ruled, in response to an inquiry from the ~ European Space Agency (ESA), that arrangements may be made by the organization with one

._...•_.-....

(c) Legal status

Are space objects, like ships and aircraft, endowed with nationality? In the drafting of the various treaties relating to outer space, there has been seemingly an almost deliberate and concerted attempt to avoid any reference to the conceet of nationality. Registration is deemed sufficient to provide the link between these objects of international law and the ~ subjects of international law, failing which the act of launching or even ownership would seem to be considered adequate. This approach represents an interesting experiment which may in time prove that the concept of nationality as applied even to ships and aircraft does no more, upon final analysis, than to serve as the denomination of the special relationship that exists between subjects of international law and certain categories of objects of international law. Such a result requires that the applicable substantive rules, including the rule conferring quasi-territorial jurisdiction on the owner's State or the State of registry as the case may be, remain clearly established and create no

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uncertainty in practice. If international civil aviation is any guide, nationality can sometimes prove an emotive insignia causing difficulties that are legally at times complicated to resolve.

Agreement. In such a case, the wider duty under the Astronauts Agreement prevails.

8. Evaluation and Prospective

Inasmuch as space objects are intended to operate in areas which are not subject to the States are liable for damage caused by their territorial sovereignty or jurisdiction of any State, space objects to other States and their nationals, it is only natural that - space law should wish to including, in certain circumstances, the latter's attach such objects to States and other internationspace objects. As among the respective contract- al persons so that, thereby, they become subject to ing parties, the subject is regulated inter alia by both the regulations and protection of internationArt. VII of the 1967 Outer Space Treaty, the ,allaw. It is also natural that space law should have Liability Convention, and Art. ]4(2) of the Moon followed the examples of the law of the sea and of Treaty (- Space Activities, Responsibility and air law in attributing to the State of registry Liability for). quasi-territorial jurisdiction. One of the first things that States sending 7. Return of Stray Objects objects into space, especially manned spacecraft Art. VIII of the 1967 Outer Space Treaty, after or space stations, must take care to do is to stating that the ownership ofspace objects is not exercise this jurisdiction and extend their domestic affected by their presence in outer space or on a laws, especially their general criminal law, and the celestial body or by their return to the earth, goes jurisdiction of their courts to such space objects. on to say the following: Otherwise, as demonstrated in many cases in civil "Such objects or component parts found beyond aviation, one may find in any given case that the limits of the State Party to the Treaty on actually no system of criminal law is applicable on whose registry they are carried shall be returned board, and that what generally would be considto that State Party, which shall, upon request, ered as criminal offences will as a result go furnish identifying data prior to their return." unpunished. In due course, the extension of other This article has been further elaborated by Art. 5 laws to space objects, such as those on intellectual of the Astronauts Agreement, which has in turn and industrial property, carriage, and a host of been extended by Art. 12(2) of the Moon Treaty other matters, will also be required. to "[v]ehicles, installations and equipment or their, However, the specific nature of space flights component parts [on the moon] found in places means that many problems cannot and should not be resolved merely by analogy. Furthermore, as other than their intended location ...." Under Art. 5(1) of the Astronauts Agreement, the exploration and use of outer space progress, many of the existing rules may require clarificacontracting States undertake to notify both the launching State (whether a contracting party or tion, adjustment or supplementation. not) and the UN Secretary-General if they receive (a) Definitional and classificatory problems information or discover that a space object or its There are several definitional and classificatory component parts has returned to earth in territories under their jurisdiction or on the - high problems with regard to space objects. What is a seas or in any other place not under the jurisdic- space object? Such an object is said to be an object tion of any State. Art. 13 of the Moon Treaty launched, or attempted to be launched, into "outer space, including the moon and other provides for a similar duty :in regard to forced landings of space objects on the moon, but celestial bodies". In view, however, of the current appears to impose such a duty only if the launching resistance of many States, including major space State is a contracting party. This limitation is powers, to any attempt even to discuss the inoperative, however, if a State is a party to both problem of defining and delimiting outer space, treaties, inasmuch as the moon must reconsidered does one know where.jn law, outer space begins? as a place not under the jurisdiction of any State, Are meteorological sounding rockets, for inwithin the meaning of Art. 5(1) of the Astronauts stance, space objects? If it were said that sounding

6. Liability for Damage Caused

SPACECRAFf, SATELLITES AND SPACE OBJECTS

315

and the State of registry of the shuttle. Here, the following question may well be asked: Which jurisdiction prevails? The same question applies to the projected multinational, permanently manned International Space Station, involving the United States, Canada, ESA as well as its nine member States, and Japan. If the various elements belonging to the so-called "Four partners" are to be separately registered in different States, as in fact has been decided, which country will have jurisaction when an astronaut from a module registered in one State visits a module registered in another State? Is the substitution of the personal jurisaction of the astronaut's national State for the quasi-territorial jurisaction of the State of registry of the element in which the astronaut is present likely to function smoothly? The problem becomes even more complicated when unmanned and, particularly, manned Stations are established on the moon, especially if these are constructed from materials brought to the moon by spacecraft registered in different States. Is a station on the moon entitled to be separately registered? In that event, how far will the jurisdiction exercised by the State of registry be different from territorial jurisdiction? Even if a State were a party to the Moon Treaty, would the safeguards under Art. 9, such as limited areas, reports to the UN Secretary-General, and free (b) Registration and jurisdictional problems access be adequate to distinguish sufficiently such Registration and jurisdictional problems are occupation from appropriation, however temporobviously linked closely together: In the case of ary? States which have not accepted the Moon shuttles, the question arises whether foreign- Treaty would not be subject even to such restricpayloads must be separately registered. The prac- tions. Art. 11(2) of the Registration Convention aptice of NASA (United States National Aeronautics and Space Administration) is to make pears to permit contracting States, when two or the answer dependent on whether the payload is more of them jointly launch a space object which intended to be "separated in Earth orbit from the is then registered with one of them, to conclude Shuttle". On this basis, it regarded ESA's "appropriate agreements" among them "on jurisSpacelab, which drew its supplies from and diction and control over the space object and over remained at all times within the shuttle, as merely any personnel thereof' . Whilst this provision a part of the latter and did not agree to its being seemingly has the merit of affording the States separately registered, causing Europe, thus, to concerned the maximum of flexibility in the lose jurisdiction and control (see Lafferranderie matter, it may well be open to question whether, (1988) p. 172, note 29). On the other hand, where in the light of Art. VIII of the 1967 Outer Space a separately registered space object is in due Treaty, once an object has been registered, States course to be separated from the shuttle, that have any discretion to alter the link between object and its personnel will, before separation, be registration and jurisdiction. If, in practice, Art. under the jurisdictions of both its State of registry VIII is to be so interpreted as to permit States rockets at least are aimed at the upper space, whether or not "outer space", would not attempts be made to deny that inter-continental ballistic missiles which are aimed at targets on earth and not intended to be launched into outer space are space objects, although they traverse what, even in the absence of any definition, most people would regard as outer space? If instead of outer space, one refers to earth orbit or beyond, the question then arises whether there need be at least an intention that the object complete an entire orbit. The projected British Aerospace Horizontal Take-off and Landing (HOTOL) aerospace plane and the United States planned National Aero-Space Plane (NASP), code-named the X-30, for instance, would travel only partially in earth orbit. In any event, even if such objects qualify as space objects, as do doubtless at present the United States and Soviet space shuttles and will in due course the shuttles of other States, they are really amphibious craft. It will fall on the ~ International Civil Aviation Organization (ICAO), in association with the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), to study the problems relating particularly to the status and regulation of such space vehicles after their re-entry into the earth's atmosphere, when they behave like and fall under existing definitions of aircraft.

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unfettered discretion to make alternative arrangements, uncertainty in any eoncrete case as to which State actually enjoys j urisdiction and control is bound to arise. This is underscored by the fact that the Registration Convention does not even require such arrangements to be reported to the United Nations and recorded in its register. The view of the United Nations Legal Counsel that similar arrangements may be made by international organizations for jurisdiction over space objects registered with them to be exercised by one of their members will inevitably lead to further erosion of the rule that jurisdiction and registration go hand in hand (c) Identification of space objects

The Registration Convention was concluded for the purpose, among other things, of assisting States in identifying space objects that threaten their rights or which may have already caused them damage, and of inducing a degree of openness in space activities so that their conformity with international law and treaty obligations may be monitored. What has just been said already throws doubt on the extent to which registration will fulfill these hopes. Furthermore, not only has the Convention failed to require advance registration of projected launches of space objects, but it also provides in Art. IV merely that contracting States must furnish the Secretary-General with the necessary information "as soon as practicable" after the event. In practice, the United Nations is informed often only after considerable delay. Some objects are registered more than once, others not at all, especially so-called non-functional objects. Moreover, under the heading "general function of the space object", the information provided, in the majority of cases, is singularly cryptic. In the controversy whether there is need, or even urgent need, to delimit outer space from national airspace, whilst the so-called spatialists maintain that there is such need, the so-called functionalists argue that there is not. The latter contend that outer space can be regulated by reference simply to the function of space objects and the nature of space acti vities. If the present system of registration of space objects is any guide, it is more than doubtful whether such regulations would prove very meaningful.

Matters are made worse by the fact that, as at present, the State of registry of a space object, which should exercise "jurisdiction and control" over such an object according to Art. VIII of the 1967 Outer Space Treaty, need not necessarily be the State actually exercising jurisdiction and control. Moreover, neither the State of registry nor the State actually exercising jurisdiction and control concerning a space object need necessarily be the State which, under Art. VI of the 1967 Outer Space Treaty, is internationally responsible for its activities. Perhaps, in due course, there may be a need for a return to the concept of nationality. United Nations, The United Nations Treaties on Outer Space (1984). UN Secretary-General, Report on Application of the Convention on Registration of Objects Launched into Outer Space, Doc. A/AC.105/382 (March 2, 1987). Crimes on Board Aircraft, Current Legal Problems, Vol. 12 (1959) 177-207. J.G. YERPLAETSE, On the Definition and the Legal Status of Spacecraft, Journal of Air Law and Commerce, Vol. 29 (1963) 131-140. B. CHENG, The Extra-Territorial Application of International Law, Current Legal Problems, Vol. 18 (1965) B. CHEI'-G,

132-~52.

The Concept of State Jurisdiction in International Law (1971). c.s SHELDON II and B.M. DEYOE, United Nations Registry of Space Vehicles, in: International Institute of Space Law of the International Astronautical Federation, Proceedings of the Thirteenth Colloquium on the Law of Outer Space (October 4-10, 1970, Constance) (1971) 127-141. M. MENTER, Jurisdiction Over Man-Made Orbital Satellites, Journal of Space Law, Vol. 2 (1974) 19-25. A.A. COCCA, Convention on Registration of Objects Launched in Outer Space, in: N. Jasentuliyana and R.S.K. Lee (eds.), Manual on Space Law, Vol. 1 (1979) 173-193. B. CHENG, The Legal Regime of Airspace and Outer Space: The Boundary Problem - Functionalism versus Spatialism: The Major Premises, Annals of Air and Space Law, Vol. 5 (1980) 323-361. s. GOROYE (ed.), The Space Shuttle and the Law (1980). International Institute of Space Law of the International Astronautical Federation, Proceedings of the TwentySecond Colloquium on the Law of Outer Space (September 16-22, 1979, Munich), Scientific and Legal Aspects of Large Systems in Space: Problems and Prospects (various authors) (1980) 263-289. B. CHEI'-G, Outer Space: The International Legal Framework - The International Legal Status of Outer Space, Space Objects and Spacemen. in: Institute of Public LA. CZABAFI,

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International Law and International Relations of Thessaloniki, Thesaurus Acroasium, Vol. 10 (1981) 41-106. S. GOROVE, The Space Shuttle: Some of its Features and Legal Implications, Annals of Air and Space Law, Vol. 6 (1981) 381-398. A. GORBIEL, Space Objects in International Law, II Diritto Aereo, Vol. 21 (1982) 75-89. International Institute of Space Law of the International Astronautical Federation, Proceedings of the TwentyFourth Colloquium on the Law of Outer Space (September 6-12, 1981, Rome), Legal Status of Artificial Space Objects (various authors) (1982) 89-115. B. CHENG, The Legal Status of Outer Space and Relevant Issues: Delimitation of Outer Space and Definition of Peaceful Use, Journal of Space Law, Vol. 11 (1983) 89-105. International Institute of Space Law of the International Astronautical Federation, Proceedings of the TwentyFifth Colloquium on the Law of Outer Space (September 27 - October 2, 1981, Paris), Determination of Applicable Law to Living and Working in Outer Space (various authors) (1983) 187-279. G.P. SLOUP, The "Aerospace Vehicle" as a Legal Concept - On Final Approach?, Annals of Air and Space Law, Vol. 8 (1983) 433-442. K.-H. BOCKSTIEGEL (ed.), Space Stations - Legal Aspects of Scientific and Commercial Use in a Framework of Transatlantic Cooperation (1985). International Institute of Space Law of the International Astronautical Federation, Proceedings of the TwentySeventh Colloquium on the Law of Outer Space (October 7-13, 1984, Lausanne), Legal Aspects of Large Space Structures (various authors) (1985) 225276. E. GALLOWAY, The Space Station: United States Proposal and Implementation, Journal of Space Law, Vol. 14 (1986) 14-39. International Institute of Space Law of the International Astronautical Federation, Proceedings of the TwentyEighth Colloquium on the Law of Outer Space (October 7-12, 1985, Stockholm), Legal Problems of Registration of Space Objects (various authors) (1986) 173-207. G. LAFFERRANDERIE, L'application, par l'Agence Spatiale Europeenne, de la Convention sur l'imrnatriculation des objets lances dans l'espace extraatmospherique, Annals of Air and Space Law, Vol. 11 (1986) 229-236. United States Congress, Office of Technology Assessment, Space Stations and the Law: Selected Legal Issues - Background Paper (1986). A.J. YOUNG, A Decennial Review of the Registration Convention, Annals of Air and Space Law, Vol. 9 (1986) 287-308. J.E. O'BRIEN, The US/International Space Station, Journal of Space Law, Vol. 15 (1987) 35-41. F.K. SCHWETJE, Protecting Space Assets: A Legal Analy-

sis of "Keep-out Zones", Journal of Space Law, Vol. 15 (1987) 131-146. G. LAFFERRANDERIE, La station spatiale, in: J _Dutheil de la Rochere (ed.), Droit de l'espace (1988) 147-196. BIN CHENG

STATE AIRCRAFT 1. Notion State aircraft have been defined as ~ aircraft used exclusively under State authority of command for whatever purposes. This definition ignores the purpose for which the aircraft is employed. It covers typical State aircraft such as military, customs and police aircraft as well as aircraft owned and operated by government authorities for the purpose of providing commercial services. Another definition, increasingly gaining acceptance, takes the use of the aircraft as the main distinguishing element between State and civil aircraft. If the aircraft is used to fulfil a sovereign task or service it is to be regarded as a State aircraft; on the other hand, if the aircraft is used for private purposes it is regarded as a civil aircraft. This definition comprises aircraft used for customs, police or military services, including ~ Red Cross aircraft used by the military; aircraft carrying heads of State or other high government officials on public mission; and any other aircraft employed for sovereign purposes, for example aircraft used by the State for exploration, scientific flights or emergency services. However, civil aviation services or any other commercial air services run by the State are excluded by this definition because they are not conducted for sovereign ends. A historical survey reveals the definition of State aircraft adopted in the Paris Convention of 1919 (LNTS, Vol. 11, p. 173). According to Art. 30 of the Convention the main criterion for a distinction between State and private aircraft was the exclusive use of the craft for State services "such as posts, customs and police". The Convention was applicable, however, to all State aircraft in addition to military, customs and police aircraft. The Chicago Convention of December 7, 1944

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(UNTS, Vol. 15, p. 295) distinguishes between civil and State aircraft, the latter being defined by Art. 3 (b) as "aircraft used in military, customs and police services". The underlying purpose of this definition, which relies on the sovereign use of the aircraft as the essential criterion, is to exclude State aircraft from the scope of the Convention except where such aircraft are used for commercial air services. Accordingly, Art. 79 of the Chicago Convention stipulates that a State may, subject to the provisions of the Convention, participate in joint operating organizations or in pooling arrangements. Aircraft "used in military, customs or police services" are also excluded from the scope of the Geneva Convention of 1948 on the International Recognition of Rights in Aircraft (UNTS, Vol. 310, p. 151; Art. 13), the Tokyo Convention of 1963 (UNTS, Vol. 704, p. 219; Art. 1), The Hague Convention of 1970 (UNTS, VOl. 860, p. 105; Art. 3) and the Montreal Convention of 1971 (UNTS, Vol. 974, p. 117; Art. 4; - Civil Aviation, Unlawful Interference with). Art. 26 of the Rome Convention of 1952 on Damage Caused by Foreign Aircraft to Third Parties on the Surface (UNTS, Vol. 310, p. 181) simply states that the Convention shall not apply to damage caused by "military, customs or police aircraft". Art. 26, however, has been amended recently by the Montreal Protocol of 1978 to exclude from the scope of the Convention "aircraft used in military, customs and police services". The Rome Convention of 1933 for the Unification of Certain Rules relating to the Precautionary Attachment of Aircraft (LNTS, Vol. 192, p.289) stipulates that "aircraft exclusively appropriated to a state service, including the postal service, but excluding commercial service" shall be exempt from precautionary arrest. Finally, another example of an international agreement containing a notion of State aircraft oriented to the use of the craft is found in Art. 236 of the 1982 United Nations Convention on the Law of the Sea (UN Doc. A/CONF. 62/122 with Corr.; not yet in force) which stipulates that the rules of the Convention regarding the protection and preservation of the marine environment do not apply to any "aircraft owned or operated by a State [and] used, for the time being, only on government non-commercial service".

2. Current Legal Situation Under - customary international law, aircraft, whether civil or State aircraft, do not enjoy a right of entry or transit regarding the airspace of another State (- Sovereignty over Airspace). The Chicago Convention, and other international agreements concluded within its framework, confer certain privileges of entry and transit to civil aircraft including State-owned or State-operated civil aircraft. However, State aircraft used in military, customs and police services may not, according to Art. 3 (c) of the Convention, fly over the territory of another State or land thereon without authorization by a special agreement or some other permission. The terms of any such permission given must be observed. The contracting States of the Chicago Convention also agreed that when issuing regulations for their State aircraft they will have due regard to the safety of navigation of civil aircraft (Art. 3(d». The 1982 Law of the Sea Convention purports to grant to civil and State aircraft certain rights of passage over international - straits (Art. 36 et seq.) and archipelagic - sea lanes (Arts. 53 and 54; - Airspace over Maritime Areas). In exercising these rights State aircraft will normally be required to comply with the safety measures established by the - International Civil Aviation Organization as they apply to civil aircraft (Arts. 39 and 54). The circumstances under which immunity can be invoked with respect to State aircraft are not easily ascertained under international law. An international agreement comparable to the Brussels Convention of 1926 concerning the Immunity of State-Owned Vessels (LNTS, Vol. 176, p. 199) does not exist for State aircraft (- State Ships). The Rome Convention of 1933 for the Unification of Certain Rules relating to the Precautionary Attachment of Aircraft allows the precautionary arrest of commercial State aircraft, but not of other aircraft appropriated to a State service, including the postal service. The Convention does not contain stipulations as to execution. Art. 22 of the - Vienna Convention on Diplomatic Relations of 1961 (UNTS, Vol. 500, p. 95) and Art. 25 of the Convention on Special Missions of 1969 (ILM, Vol. 9 (1970) p. 125; - Special Missions) grant immunity to the "means of transportation" of the mission from search, requisition, attach-

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ment or execution. A similar provision is contained in Art. 31 para. 4 of the ~ Vienna Convention on Consular Relations of 1963 (UNTS, Vol. 596, p. 261) which stipulates that the "means of transport" shall be immune from "any form of requisition for purposes of national defence or public utility". Under customary international law it seems safe to say that State aircraft which cross foreign airspace or land on foreign territory enjoy the same immunities as those granted to State ships in comparable circumstances provided they had the necessary permission to enter the airspace. Rights to immunity cannot be invoked when the State aircraft is an illegal intruder, that is, when it has entered the foreign airspace intentionally or carelessly without authorization. According to customary international law an illegal intruder may be ordered to depart or to land. The subjacent State may take reasonable measures of ---+ reprisal against an intruder. Aircraft used in military, customs and police services are in many instances expressly excluded from the application of international agreements dealing with aviation and related questions. Apart from the agreements already mentioned attention should be drawn to the Additional Protocol (LNTS, Vol. 137, p. 39) referring to Art. 2 of the Warsaw Convention of 1929 for the Unification of Certain Rules Relating to International Carriage by Air which allows contracting States to exclude the application of the Convention to international air transport effected "directly" by the State (---+ Air Transport, Regulation of Liability). However, a reservation regarding air transport effected "indirectly" through juridical persons of public law cannot be made. The 1955 Hague Protocol to the Warsaw Convention of 1929 (UNTS, Vol. 478, p. 371) allows reservations by contracting States to the effect that the Convention, as amended by the Protocol, "shall not apply to the carriage of persons, cargo and baggage for its military authorities on aircraft, registered in that State, the whole capacity of which has been reserved by or on behalf of such authorities" (Art. 26). A similar provision is contained in Art. XXIII (b) of the Guatemala Protocol of 1971 amending the Warsaw Convention of 1929 as amended by the Hague Protocol of 1955 (ILM, Vol. 10 (1971) p. 613); in Art. X of the Montreal Protocol No.2 of 1975

(British Command Papers, Cmnd. 6481 Misc. 15 (1976»; in Art. XI (b) of the Montreal Protocol No.3 of 1975 (British Command Papers, Cmnd. 6482 Misc. 16 (1976»; and in Art. XXI (a) of the Montreal Protocol No.4 of 1975 (British Command Papers, Cmnd. 6483 Misc. 17 (1976».

3. Special Legal Problems Special rules may be applicable to military and Red Cross aircraft. There is still some dispute as to the notion of military aircraft. Military aircraft are State aircraft used for military services. The main distinguishing criteria under this definition should be whether an aircraft is under the control of military, naval or air forces and whether it is used or intended to be used by such forces. The Paris Convention of 1919 contained special rules regarding military aircraft. Military aircraft were expressly designated as State aircraft (Art. 30 a) and defined as "tout aeronef comrnande par un militaire commissionne a cet effet est considere comme aeronef militaire". The Convention further stipulated that military aircraft of a contracting State were prohibited to fly over the territory of another State or land thereon without special permission, and that a military aircraft which was forced or ordered to land could by reason thereof acquire no privileges. In cases where permission to enter a foreign airspace was given, military aircraft were in principle entitled to the same privileges customarily accorded to foreign ---+ warships (Art. 32). The Chicago Convention expressly reaffirms the principle of sovereignty over the air with respect to military aircraft, although it contains no provision concerning the definition or the privileges of military aircraft or any other State aircraft. Since the Convention is an instrument designed to regulate civil aviation, the omission cannot be construed to imply a change in the law. In general, under customary international law the same rules of immunity apply to military aircraft as to other State aircraft. The treatment of military aircraft in times of ---+ war is governed by the laws of war (---+ War, Laws of). Red Cross aircraft may be viewed as either State or civil aircraft depending on whether they are used for military medical services or civil humanitarian purposes. Military Red Cross aircraft will be treated as military aircraft. In times of war the special rules of the ---+ Geneva Red Cross

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Conventions of 1949 apply to these aircraft. While military Red Cross aircraft shall not be attacked, flights over enemy or enemy occupied territory by such aircraft are prohibited unless agreed otherwise (Art. 36 of Convention 1 and Art. 39 of Convention II). Special rules apply as to flights over neutral territory (Art. 37 of Convention I and Art. 40 of Convention II; ~ Neutrality in Air Warfare). Civil Red Cross aircraft, including those belonging to international organizations, are subject to the rules of the Chicago Convention and hence must be registered in one of the contracting States in accordance with the nationality requirement (Arts. 17 and 18). Within the framework of the Multilateral Agreement on Commercial Rights of Non-Scheduled Air Services in Europe of April 30, 1956 (UNTS, Vol. 310, p. 229) the contracting States agreed to admit freely civil aircraft which are engaged in "flights for the purpose of meeting humanitarian or emergency needs" provided these aircraft meet the conditions laid down in Art. 1 of the Agreement.

4. Evaluation At present a universally accepted notion of State aircraft does not exist. However, State aircraft may best be defined as aircraft used for sovereign purposes. Such a definition would exclude commercial State aircraft. International instruments often contain their own particular definition of State aircraft. The definition most commonly resorted to in international instruments is that of "aircraft used in military, customs and police services". Rights of transit do not exist for State aircraft under customary international law and consequently can only be exercised when granted by agreement or special permission. Immunity of State aircraft if dealt with only sporadically in some international agreements. There is no clear concept of .mmunity of State aircraft under customary international law. Convention Relating to the Regulation of Aerial Navigation, October 13, 1919, LNTS, Vol. 11 (1922) 173306.

Convention on International Civil Aviation, December 7, 1944, UNTS, Vol. 15 (1948) 295-375. State Ships and State Aircraft, Current Legal Problems, Vol. 11 (1958) 225-257. A. MEYER, Zum Begriff "Militarluftfahrzeug", B. CHENG,

Zeitschrift fur Luft- und Weltraumrecht, Vol. 12 (1963) 133-147. K. HAILBRONNER,

Der Schutz der Luftgrenzen im

Frieden (1972). Der Schutz von Sanitiitsluftfahrzeugen im Krieg, in: Festschrift zu Ehren von Alex Meyer

K. HAILBRONNER,

(1975) 127-146,

Der unerlaubte Einflug von Luftfahrzeugen III fremdes Staatsgebiet und seine Rechtsfolgen, Schriften zum Volkerrecht, Vol. 75 (1982)

J.F. BENTZIEN,

30-46. I.H.P. D1EDERIKS-VERSCHOOR.

An Introduction to Air Law

(1983). KAY HAILBRONNER

STATE SHIPS 1. Definition There is no generally recognized precise definition of State ships in international law, but there seems to be a common understanding as to the basic elements of the notion. Normally all ships owned ur operated by a State are considered State ships. Except for the special category of ~ warships, two further forms of State ships have to be disunguished: (a) ships employed for public, non-commercial purposes (also called government ships or State ships in the strict sense), for example police, customs or other patrol vessels, pilot boats, cable vessels, researcn vessels, and in most cases also ~ postal ships and ~ hospital ships; and (b) ships employed for commercial purposes (i.e. State ~ merchant ships).

2. Rights of State Ships On the ~ high seas State ships, as well as State aircraft, may exercise certain functions vis-a-vis other ships even when these are sailing under another flag (~ Flags of Vessels; ~ Ships, Nationality and Status). Ships engaged in ~ piracy may be seized by a State ship "authorized to that effect" by its flag State. This is laid down in Art. 21 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82). Art. 107 of the United Nations Convention on the Law of the Sea of December 10,1932 (UN Doc. A 'CONF. 62/122 with Corr.) adds that these State ships have to be "clearly marked and identifiable as being on government service". The ~

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right of ~ hot pursuit of a foreign ship may be exercised by a State ship under the same conditions (Art. 23(4) of the 1958 Convention; Art. 111(5) of the 1982 Convention). Further rights granted to warships are not extended to other State ships. The right of ~ innocent passage through the ~ territorial sea applies fully to foreign State ships, except that warships are subject to certain restrictions. Foreign State ships do not enjoy any special rights within the territorial sea comparable to those on the high seas; in this respect the ~ territorial sovereignty of the coastal State is not limited. Under ~ customary international law State ships do not have a general right to enter the ~ internal waters of another State, including its ~ ports, except for cases of force majeure and distress (~ Ships in Distress). The ~ Geneva Convention and Statute on the International Regime of Maritime Ports of December 9, 1923 (LNTS, Vol. 58, p. 286) provides, subject to ~ reciprocity, for equality of treatment between a port State's own vessels and those of any other State concerning access of contracting States' vessels to maritime ports (~ Most-FavouredNation Clause). While this convention applies to State merchant ships, it explicitly excludes warships and vessels "exercising any kind of public authority" (Art. 13).

(The numerous cases of these two leading maritime powers of that period had great impact also in other countries.) In various decisions, however, distinctions between the public and commercial purposes of the vessel involved began to emerge, indicating that no immunity was to be granted to the latter (e.g. in Great Britain, The Charkieh, 1873 (28 L.T. 190); The Constitution, 1879 (4 P.D. 39); The Parlement Beige, 1880 (L.R. 5 P.D. 197». In general, nevertheless, immunity was recognized for all State ships irrespective of their purpose. Recent studies (such as Badr and Sucharitkul) indicate that, as far as merchant ships are concerned, this was often based on a misinterpretation of earlier decisions. The "absolute" theory of immunity of State ships clearly prevailed until World War I when States began to use their own ships for commercial purposes on a large scale. In these circumstances governments started to see State merchant ships as no longer exempt from their courts' jurisdiction, and courts generally developed and applied a "restrictive" theory according to which foreign State ships enjoy immunity only when employed for non-commercial purposes.

(b) Current legal situation

The current legal situation is determined by various national laws and international treaties. The International Convention for the Unification of Certain Rules Relating to the Immunity of 3. Immunity of State Ships State-Owned Vessels, adopted in Brussels on April 10, 1926 (LNTS, Vol. 176, p. 199), as (a) Historical evolution amended on May 24, 1934 (LNTS, Vol. 176, Due to the initial fiction that State ships form p. 215), equates the position of State merchant part of their flag State's territory, it is not vessels and their cargo to that of private commersurprising that the doctrine of ~ State immunity cial vessels, with regard to submission to local started to develop in cases involving one State's \ jurisdiction. It also puts the States as shipowners ship sailing into another State's territory, thereby and shippers on the same footing as private creating a conflict of two overlapping territorial persons. Immunity from local jurisdiction is exjurisdictions of potentially equal rights plicitly reserved only for ships "owned or operated (~ Sovereignty). by a State, and used at the time a cause of action The cornerstone of immunity of a foreign State's arises exclusively on governmental and nonvessel from the local State's jurisdiction is the case commercial service" (Art. 3, para. 1). Certain of The Schooner Exchange v. McFaddon (7 claims can be brought before the flag State's courts Cranch 116), decided by the United States Sup- even with regard to these ships without that State reme Court in 1812. This case, as well as most such being permitted to avail itself of its immunity (Art. cases in United States and British courts in the 3, para. 1; e.g. in respect of collision, assistance, 19th century, involved a public armed ship for repair, etc.; ~ Co!lisions at Sea). which immunity was granted without exception. The Brussels Convention has played an im-

. _ - - - - - - - - - - - - - - - -----------_..-_._--_

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portant role, although the number of States bound by it is relatively small (less than 30); it is significant that they include some Socialist and Third World countries. Moreover, the Convention has provided a model for other bilateral treaties and has been applied by courts of States not parties to it. In the United States, the State Department's "Tate Letter" of 1952 (Deptxtatelsull, Vol. 26 (1952 I) p. 784) had the effect of not exempting foreign State ships engaged in commercial activities from local jurisdiction. Section 1605(b) of the Foreign Sovereign Immunities Act of 1976 made this exception to State immunity a rule of written law. A similar provision is contained in Section 10 of the United Kingdom State Immunity Act 1978, but, according to the House of Lords in the I Congreso del Partido (198 ; All England Law Reports (1981 I) p. 1092), the rule was already part of common law before the entry into force of this Act and before British ratification of the Brussels Convention in 1980. The 1978 Act served as a model for various other national laws, such as the acts of Singapore (1979), Pakistan (1981), Canada (1982) and Australia 11985). The distinction between commercial and noncommercial State ships outside internal waters seems to be well established ir. the - law of the sea. The Geneva Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205) does not provide for any special immunity for State merchant ships but only refers to immunities enjoyed by "government ships operated for non-commercial purposes" (Art. 22). "Government ships operated for commercial purposes" are explicitly subjected to the same rules as merchant ships ill general (Art. 21). These rules include the coasal State's criminal jurisdiction in certain cases (Art. 19) and Its civil jurisdiction to levy execution against or to arrest foreign ships in certain cases when exercising their right of innecent passage and in all cases when lying in its territorial waters or . fter leaving internal waters (Art. 20 (2) and (3». The same provisions are contained in Ai ts. 27, 28 and 32 of the 1982 Law of the Sea Can vention. Art. 9 of the 1958 Geneva Convention on the High Seas und Art. 96 of the ]982 Law of the Sea Convention provide for "complete immunity from

the jurisdiction of any State other than the flag State" on the high seas only for "ships owned or operated by a State and used only on government non-commercial service". Art. 236 of the 1982 Law of the Sea Convention declares that the provisions of the Convention on the protection and preservation of the marine environment are inapplicable only to the category of ships first referred to, but not to State merchant ships, which, for example, remain subject to enforcement measures of the coastal State in this area (- Manne Environment, Protection and Preservation) . (c) Special legal problems

The precise limits of immunity are controversial. In general, immunity does not mean exemption from substantive rules of law (jurisdiction to prescribe) but only from investigative or coercive measures (jurisdiction to enforce). Therefore all State ships, including even those with immunity, in foreign territorial or internal waters are, in principle, subject to the internal law of the coastal State. In the territorial sea, this is particularly the case for rules concerning passage (cf. Arts. 17 and 22 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone and Art. 21 of the 1982 Convention on the Law of the Sea). In any case, whenever a ship enjoys immunity, all kinds of enforcement measures are prohibited against the ship Itself (seizure, detention, etc.) and against the crew (arrest, etc.). The extent of the coastal State's criminal jurisdiction concerning crimes committed on board an immune State ship is a matter of controversy; in no case can a coastal State's judgment be executed aboard. As a matter of practice, harbour and other fees are normally collected from non-commercial State ships only if they are a remuneration for services rendered, such as pilot fees. Whereas in some countries the essential criterion for a State ship as opposed to a private ship used to be ownership, it seems to be generally accepted nowadays that possession or control are decisive. The consequence is that an action in rem against a private vessel chartered by a government is possible as long as the public function for which the ship is used is not jeopardized.

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4. Evaluation The predominant problem concerning State ships remains the question of immunity of State merchant ships from local civil jurisdiction of the foreign port State. The parallel to the general discussion on a possible distinction between acta jure imperii and acta jure gestionis with regard to State immunity is obvious. Whereas there is common understanding on the immunity of State ships used for non-commercial purposes, a customary rule of international law stating that State merchant ships do not enjoy immunity is not yet established. Though they only form a minority in that respect, the insistence of some Socialist and Third World countries on absolute immunity of all State ships is not to be neglected, as shown by the recent discussions in the ~ International Law Commission on the topic entitled "Jurisdictional immunities of States and their property". On the other hand, a customary rule of international law requiring immunity for State merchant ships does not exist either. There are so many elements indicating a clear distinction between commercial and non-commercial purposes that one may even speak of an irreversible trend towards assimilation of State merchant ships with private commercial vessels, denying immunity in both cases equally (cf. Sucharitkul, Sixth report, YILC (1984 II». International Law Commission, Jurisdictional Immunities of States and Their Property, YILC (1979 to date). Die Imrnunitat der Staatsschiffe (1961). Legal Status of Government Merchant Ships in International Law (1962). B. VITANYI, L'irnmunite des navires d'Etat, NILR. Vol. E. MENZEL,

T. KOCHU THOMMEN,

10 (1963) 33-61, 156-177.

La doctrina de inmunidad soberana y las naves maritirnas, Revista cubana de derecho, Vol. 1 (1972) 115-140. c.P. BIERHUIZE, The Principle of Sovereign Immunity and International Contracts, Recent Developments in English Case-Law and American Legislation NILR Vol. 25 (1978) 345-353. " G. HOOG, Probleme der Immunitat von Staatsschiffen, AVR, Vol. 20 (1982) 314-327. A.N. YIANNOPOULOS, Foreign Sovereign Immunity and the Arrest of State-Owned Ships: The Need for an T.J. ALMODOVAR Y SALAS,

Admiralty Foreign Sovereign Immunity Act, Tulane Law Review, Vol. 57 (1983) 1274-1342. a.M. BADR, State Immunity: An Analytical and Prognostic View (1984). GIL CARLOS RODRIGUEZ IGLESIAS

STRAITS The Oxford English Dictionary defines a strait as "a comparatively narrow water-way or passage connecting two large bodies of water" and points out that, when used as a geographically proper name, the word "strait" is usually plural though with a singular sense, for example the Straits of Dover. However, this dictionary also says that a few writers, chiefly of gazetteers, use the singular consistently throughout. Some passages which are called straits are not particularly narrow; for example, the average width of Bass Strait, which separates the Australian mainland from Tasmania , is about 150 miles. During the 19th century controversy over the passage of ~ warships through the Bosphorus and the Dardanelles, the straits which connect the ~ Black Sea with the Mediterranean, was of such importance that it was known simply as the "Straits Question" (~ Dardanelles, Sea of Marmara, Bosphorus). The agreement signed in London on July 15, 1841 between the major European powers and the Ottoman Empire which forbade the passage of foreign warships through these straits, as long as the Ottoman Empire was at peace, was simply known as the "Straits Convention". This question is now regulated by the Montreux Convention of July 20, 1936 (Martens NRG3, Vol. 34 (1938) p. 649), which permits the passage of warships through the straits when Turkey is at peace, though it imposes certain restrictions, which are more onerous on non-Black Sea powers than they are on Black Sea powers. Historically, the other straits which have received special attention in international law have been the Danish Straits. These consist of the Little Belt, the Great Belt and the Sound, which are passages between the ~ Baltic Sea and the Kattegat and North Sea. It had long been the practice of Denmark not to allow foreign vessels to

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STRAITS

pass through these straits without paying a toll, known as the Sound Dues. However, by the Treaty of Copenhagen of March 14, 1857 (Martens NRG, Vol. 16 (1860) p. 345), Denmark agreed to abandon this practice in return for an indemnity paid to her by the other signatory States; and by the Convention of Washington of April 11, 1857 the United States entered into a similar arrangement with Dermark (Convention for the Discontinuance of the Sound Dues, April 11, 1857, reproduced in: CE. Bevins (ed.), Treaties and other International Agreements of the United States of America 1776-1949, Vol. 7, Denmark-France (1971) p. 11). Because of their economic and strategic importance, the Straits of - Gibraltar which provide passage between the Atlantic and the Mediterranean, and the Straits of Magellan, which provide passage between the Atlantic and the Pacific, have been the subject of much diplomatic bargaining between interested powers. However, no multilateral agreements relating to these straits have ever been entered into, and most disputes which might arise concerning passage through them would have to be settled in accordance with - customary international law. The same applies to the Straits of Dover between England and France which connect the North Sea to the English Channel. The status of straits in customary international Corfu Channel law came to the fore in the Case (ICJ Reports 11)49, p. 4). The - International Court of Justice laid down that it is "in accordance with international custom that .States in time of peace have a right to send their warships through straits used for international navigation between two paIts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent" ( - Innocent Passage, Transit Passage). In so saying, the Court must be deemed to have prescribed it as a general principle that, where for geographical reasons navigation from one part of the - high seas to another part of the high seas involves traversing a narrow waterway, it is a corollary of the principle of freedom of navigation that there is a right to traverse that waterway, even if it does fall within the territorial waters of a State ( - Navigation, Freedom of; - Territorial Sea). The next question which the Court had to decide was whether this right exists even if the waterway

concerned "is only of secondary importance and not even a necessary route between two parts of the high seas". The Court held that the right exists even in those circumstances, the decisive factor being that the waterway connects two parts of the high seas and is used for international navigation, rather than it being only an alternative passage and not of great importance for international navigation. From this it seems that, whereas from the point of geography, it is sufficient that a strait be a narrow passage connecting two large bodies of water, in international law a strait - usually referred tv as a "legal strait" - must connect one part of the high seas with another part of the high seas. If that be so, the Geneva Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205) must be deemed to have broken new ground when it provided in Art. 16(4) that: "There shall be no suspenSIon of the innocent passage of foreign ships through straits which are used for international navigation between one part of the high seas and another part of the high seas or the territorial sea of a foreign State" (emphasis added). This was the only provision in the Convention dealing with straits, and its inclusion aroused much controversy, it being widely believed that its principal purpose was to secure the safety of navigation to and from Elath, the Israeli port at the head of the Gulf of Aqaba ( - Aqaba, Gulf of). The 1982 United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.) deals more comprehensively with the question of straits, devoting the whole of Part III to the topic "Straits used for International Navigation". In Art. 34( 1) it specifies: "The regime of passage through straits used for international navigation established in this Part shall not in other respects affect the legal status of the waters forming such straits or the exercise by the States bordering the straits of their sovereignty or jurisdiction over such waters and their air space, bed and subsoil." The principal purpose of Part III of the 1982 Convention is to institute the right of transit passage, by which is meant "freedom of navigation and overflight solely for the purpose of continuous and expeditious transit of the strait between one part of the high seas or an exclusive economic zone

STRAITS

and another part of the high seas or an exclusive economic zone" (1982 Convention, Art. 38(2); -,> Exclusive Economic Zone; -,> Overflight). However, Part III "does not apply to a strait used for international navigation if there exists through the strait a route through the high seas or through an exclusive economic zone of similar convenience with respect to navigational and hydrographical characteristics" (Art. 36). Although badly drafted, the purpose of this provision seems to be to restrict the definition of "straits used for international navigation" contained in the Corfu Channel Case Judgment. Another change compared with the Court's 1949 statement has been the inclusion of the reference to the exclusive economic zone. Since that zone may extend for 200 nautical miles from the coast, but does not constitute part of the high seas (1982 Convention, Art. 86), it has obviously become necessary to refer to that zone as well as to the high seas. Because of the increasing economic, political and strategic significance of the Indian and Pacific Oceans, the status in international law of straits in that area has come to the fore as a most important question. Unless it is chosen to sail to the south of Tasmania, navigation between these oceans is impossible without going through at least one, and possibly more, straits, namely: the Straits of Malacca, between Indonesia and Malaysia; the Balabac Straits, between Malaysia and the Philippine Island of Palawan; the -,> Torres Strait, between Papua New Guinea and the Australian State of Queensland; the Sunda Strait, between Sumatra and Java; the Lombok Strait, between Bali and Lombok; the Macassar Strait, between Kalimantan and Sulawesi; the San Bernadino Strait, between Luzon and Samar; and the Surgao Strait, between Leyte and Mindanao, to name only a few. Of these straits, the first three separate territories of independent States, while the last five separate -,> islands within -,> archipelagos and come within the ambit of the regime for archipelagic States covered by Part IV of the 1982 Convention. Because of the exceptional importance of the Straits of Malacca, which is the most convenient route between the Indian and Pacific Oceans, the governments of Indonesia, Malaysia and Singapore have concluded various agreements in which they assert that these straits are not international

325

straits, and that the safety of navigation through these straits is entirely their responsibility. However, these governments accept that international shipping has a right of passage through the Straits of Malacca. (See the Joint Statement of the Governments of Indonesia, Malaysia and Singapore on Consultations with a View to Adopting a Common Position on Matters relating to the Straits of Malacca and Singapore, November 16, 1971, Singapore Government Press Statement MC:NOV/21 /71(F.A.), reproduced in: M. Leifer, Malacca, Singapore and Indonesia (1978); and the Agreement between Indonesia, Malaysia and Singapore on Safety and Navigation in the Straits of Malacca and Singapore, February 24, 1977). Convention concerning the Regime of the Straits, July 20, 1936, Martens NRG3, Vol. 34 (1938) 649--665. Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). Corfu Channel, Merits, ICJ Reports 1949, 4-169. Das internationale offentliche Seerecht der Gegenwart, 2 vols. (1903). G. GIDEL, Le droit international public de la mer, 3 vols. (1932-1934). C.E. HILL, Le regime international des detroits maritimes, RdC, Vol. 45 (1933 III) 475-556. E. BRUEL, Les detroits danois au point de vue du droit international, RdC, Vol. 55 (1936 I) 595-696. E. BRUEL, International Straits, 2 vols. (1947). C.B. SELAK, A Consideration of the Legal Status of the Gulf of Aqaba, AJlL, Vol. 52 (1958) 660-698. L. GROSS, The Geneva Conferenceon the Law of the Sea and the Right of Innocent Passagethrough the Gulf of Aqaba, AJlL, Vol. 53 (1959) 564-594. M.S. McDOUGAL and W.T. BURKE, The Public Order of the Oceans, A Contemporary International Law of the Sea (1962). R.R. BAXTER, The Law of International Waterways (1964). c.r. COLOMBOS, International Law of the Sea (6th ed. 1967). D.H.N. JOHNSON, Some Legal Problems of International Waterways, with particular Reference to the Straits of Tiran and the Suez Canal, Modern Law Review, Vol. 31 (1968) 153-164. K.E. SHAW, Juridical Status of the Malacca Straits in International Law, Japanese Annual of International Law, Vol. 14 (1970) 34-47. R.P. CUNDICK, International Straits: The Right of Access, F. PERELS,

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Georgia Journal of International and Comparative Law, Vol. 5 (1975) 107-140. M. LEIFER, Malacca, Singapore and Indonesia (1978). N. LOGARAJ, Navigational Safetv, Oil Pollution and Passage in the Straits of Malacca, Malaya Law Review, Vol. 20 (1978) 287 et seq. S.c. TRUVER, The Straits of Gibraltar and the Mediterranean (1980). G. ALEXANDERSSON, The Baltic Straits (1982). K.L. KOH, Straits in International Navigation, Contemporary Issues (1982). D.P. O'CONNELL, The Internationa Law of the Sea (LA. Shearer, ed.), Vol. 1 (1982), Vol. 2 (1984). D.H.N. JOHNSON

SUBMARINE CABLES see Cables, Submarine

SUBMARINES 1. Notion The term "submarine" is normally understood as referring only to a ~ war ship which is able to submerge for long periods and which operates both on and beneath the surface of the sea. Other vessels capable of operating beneath the surface for civilian purposes, such as exploration or exploitation of the sea-bed OJ recovery of wrecks, are usually termed "su bmei sibles" ./-&.b'marines may be nuclear powered (-~ Nuclear Ships) or conventionally powered. They may be nuclear or conventionally armed and may be designed either for strategic purposes, carryng ballistic missiles, or for anti-ship or anti-submarine roles. The first true submarine was Bushnell's Turtle of 1775. Experiments with submarine craft continued in the 19th century. Their use for military purposes did not become practicable until shortly before World War I with the deve. .pment of the diesel engine. The first nuclear-pox -ered submarine, the Nautilus (1954), revolutioniz -d the capacity of the submarine in terms of range, depth and speed. 2. Historical Evolution of Legal Rules Submarines were first considered in a legal context at the First Hague Peace Conference (~ Hague Peace Conferences of 1899 and 1907). Great Britain proposed a ban on their development for military purposes, but this was defeated on the ground that the submarine ("the small

man's weapon") provided a degree of protection in the hands of weaker States against the great naval powers. Attempts before World War II to reach agreement on special restrictive rules relating to submarines were unsuccessful; submarines were regarded as warships like any other, and bound by the same rules of naval warfare (~ Submarine Warfare). A limited special case was the Nyon Arrangement of 1937 (LNTS, Vol. 181, p. 135) whereby nine European States agreed to treat as acts of ~ piracy attacks on neutral vessels by unidentified submarines during the ~ Spanish Civil War. The Soviet Union criticized the failure of the First United Nations Conference on the Law of the Sea in 1958 to include the Nyon principle in the definition of piracy (~ Conferences on the Law of the Sea). The sale explicit reference to submarines in the law of the sea conventions was made in Art. 14(6) of the Geneva Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205; ~ Contiguous Zone), which provided that in the exercise of the right of ~ innocent passage "submarines are required to navigate on the surface and to show their flag". This provision was repeated in Art. 20 of the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.), and extended to "other underwater vehicles". There was discussion of submersibles in the negotiation of the Treaty on the Emplacement of Nuclear Weapons and other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof of February 11, 1971 (UNTS, Vol. 955, p. 115). Although not reflected in a specific provision of that treaty, which applies from an inner limit of 12 miles from the coasts of the parties, the United States has asserted that mobile weapons of mass destruction, such as creeping ~ mines ("creepy-crawlies") or underwater fireships would be prohibited by the Treaty so long as they are locomotive on the sea bottom only. Underwater detection and surveillance devices are not prohibited. 3. Current Legal Situation Submarines are treated as warships and are governed by the same legal rules. As mentioned above, the only special rule is contained in Art.

SUBMARINES

14(6) of the Geneva Convention on the Territorial Sea of 1958, which provides that they are required to navigate on the surface when exercising the right of innocent passage in the ~ territorial sea. No such explicit rule governs the operation of submarines when exercising the right of transit passage through ~ straits and ~ archipelagos. Art. 39(1 )(c) of the 1982 Law of the Sea Convention provides that ships exercising a right of transit passage shall "refrain from any activities other than those incident to their normal modes of continuous and expeditious transit". All the other stipulations of the law of the sea conventions of 1958 and 1982 applying to warships and to ships in general in relation to innocent passage and transit passage apply to submarines. 4. Special Legal Problems The very limited capacity of submarines to accommodate persons other than their regular crews places them in potential difficulty in cases of collision or when coming upon the scene of a shipwreck (~ Collisions at Sea). In ~ war, a submarine may not sink a ~ merchant ship without first having placed the crew and passengers in safety. A general duty is imposed by Art. 12 of the Geneva Convention on the High Seas of April 29, 1958 (UNTS, Vol. 450, p. 82), on the masters of all ships to render assistance at sea to all in distress, provided that this may be done without serious danger to the rescuer (~ Ships in Distress). This provision is restated in Art. 98 of the 1982 Law of the Sea Convention. The duty upon warships to render assistance, other than in times of war, was rendered doubtful by the express exclusion of warships from the scope of the Brussels International Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea of September 23, 1910 (Martens NRG3, Vol. 7, p.728). The Geneva Convention on the High Seas provides in Art. 30 that it "shall not affeet conventions or other international agreements already in force as between the States parties to them". Thus, when the United States nuclear submarine George Washington colIided with the Japanese freighter Nissho Maru in 1981 it seemed that there was no legal duty on the submarine to render assistance since Japan and the United States were both parties to the 1910 Brussels Convention. For the future it

327

seems likely that this vicious gap in the law will be closed after the 1982 Law of the Sea Convention enters into force and customary law crystallizes around Art. 98. Art. 311 of the 1982 Law of the Sea Convention preserves as between the parties the provisions only of prior "compatible" agreements. The passage of submarines through territorial seas is no longer strategically desirable in most circumstances, otherwise than through straits and archipelagic waters. Hence the requirement that they navigate on the surface and show their flag is not controversial. There is little doubt that this conventional stipulation also represents ~ customary international law. National legislation since the 1920s (Belgium, 1923; Sweden, 1923; Germany, 1925) has required submarines in the territorial sea to navigate on the surface for safety and security reasons. There is controversy whether submarines are under an obligation to navigate on the surface when transitting straits and archipelagos. The absence of an express prohibition against submerged passage, and the reference in Art. 39(1)(c) of the 1982 Law of the Sea Convention to "normal modes" of transit are argued to permit submerged transit, which for a submarine is a normal mode. This was the view of the major naval powers at the Third United Nations Conference on the Law of the Sea, 1973 tu 1982, which was necessarily muted in view of the susceptibilities of other States. On the other hand, it is argued that the essential nature of territorial waters constituting straits, as distinct from the passage regime, is not juridically different, and that security and safety considerations are no less important in straits than in other parts of the territorial sea. Another controversial question is whether submerged passage in the territorial sea renders such passage non-innocent, or whether it constitutes merely a breach of an obligation to remain on ,h" surface. If it is the latter, the coastal Stat, is empowered under Art. 23 of the Geneva Com-ention on the High Seas (Art. 30 of the 1982 Law of the Sea Convention) merely to "require the warship to leave the territorial sea". If it is the former, the coastal State may "take the necessary steps in its territorial sea to prevent passage which is not innocent" (Arts. 16 and 25. respectively). "Necessary steps" are not defined but are re-

328

SUBMARINES

garded as including necessary and proportionate - satisfaction is obtained. The latter instance is - use of force. Nevertheless it should not au- illustrated by the stranding of a Soviet submarine tomatically be assumed that force may lawfully be in Swedish internal waters in October 1981. used against unidentified suhmerged contacts; customary law principles regarding the use of force The Nyon Arrangement, September 14, 1937, LNTS,' Vol. 181 (1937) 135-148. are not excluded by the conventional provisions, Treaty 011 the Emplacement of Nuclear Weapons and notwithstanding the legislation of a few States, other Weapons of Mass Destruction on the Sea-Bed such as Bulgaria and Romani a, which provides and the Ocean Floor and in the Subsoil thereof, February 11, 1971, UNTS, Vol. 955 (1874) 115-193. that submerged submarines in the territorial sea The George Washington Incident, RGDIP, Vol. 85 may be attacked. (1981) 875-878. Increasingly exasperated by the presence of unidentified submarines within its territorial and J.P. CRA~N, Ocean Technology and Submarine Warfare (1968). even internal waters, Sweden legislated in 1982 to - authorize the use of force. The Ordinance Con- DJ. WHITE', The Right of Innocent Passage of Submarines, The Comparative and International Law taining Instructions for the Armed Forces in Times Journal of Southern Africa, Vol. 7 (1974) 127-136. of Peace and in State of Neutrality of 17 July, D.P. O'CONNELL, The Influence of Law on Sea Power 1982, Art. 15, directs that: (1975). "a foreign submarine which is found submerged W.T. BURKE, Submerged Passage through Straits, Washington Law Review, Vol. 52 (1977) 193-220. within Swedish internal waters shall be forced to A. BERG, Das sowjetische U-Boot 137 in schwedischen surface. It shall then be ordered to stop, be Hoheitsgewassern, Fragen der Immunitat fremder identified, and then taken to an anchorage for Kriegsschiffe, ZaoRV, Vol. 42 (1982) 295-326. further action. If necessary, force of arms may D.P. O'CONNELL, The International Law of the Sea (ed. by be used. A foreign submarine which is found LA. Shearer), Vol. 1 (1982), Vol. 2 (1984). R. SADURSKA; Foreign Submarines in Swedish Waters, submerged within the terntorial sea shall be The Yale Journal of International Law, Vol. 10 (1984) turned away from the territory. If necessary, 34-58. force of arms may be used. Should special circumstances so require, the Supreme ComLA. SHEARER mander may order recourse to force of arms without prior warning against a foreign submarine which is found submerged within SwedTERRITORIAL SEt\. ish waters." The Swedish legislation has been criticized as, 1. Notion potentially at least, authorizing the use of force in excess of customary law restraints. Hitherto, The territorial sea is that area of water adjacent warnings to unidentified submarines to surface to the coast over which the littoral State is have been given by way of small explosives permitted by international law to exercise dropped at short regular intervals above the sovereign competence for purposes of jurisdiction, contact as an auditory signal. This method, dating control and exploitation, subject only to a general from the Cold War era of the early 1950s, is right of innocent passage by foreign ships popularly termed "Uncle Joe procedures". A (- Innocent Passage, Transit Passage; Jurisdiction of more recent development is an incident depth - Maritime Jurisdiction; charge designed to cause scattered punctures in States). The legal limit on the breadth of the the submarine's hull, thus forcing it to surface but territorial sea has varied at different periods. without injury to the crew. Even when thus forced A wide variety of diverse opinion has been to surface in the territorial sea, a submarine, expressed in the traditional legal literature as to assuming it to be also a warship, is entitled to the juridical character of the territorial sea ranging sovereign immunity and may only be required to from the view, at one extreme, that the territorial leave. If found in internal waters, however, while sea is just an aggregation of jurisdictional rights, still entitled to sovereign immunity, it can be "~"bllt remains res communis and thus outside the prevented from leaving until diplomatic national domain (a view attributed to Carvo) ,

TERRITORIAL SEA

through the intermediate view that it is a bundle of ~ servitudes and the littoral State is neither its owner nor its sovereign (La Pradelle), to the conception, at the other extreme, that the territorial sea is the subject of both imperium and dominium with the exception of a right of way for the ships of all nations (Bynkershoek). The modern view appears to be based on a notion of accommodation of the coastal State's exclusive claim to authority over access and passage in the territorial sea to the right of other States to passage free of undue restriction by the coastal State. The Geneva Convention on the Territorial Sea and the Contiguous Zone of April 29, 1958 (UNTS, Vol. 516, p. 205) speaks of the ~ sovereignty of a State "extending to a belt of sea adjacent to its coast, described as the territorial sea" (Art. 1) and "the air space" over it "as well as to its bed and subsoil" (Art. 2), which is to be exercised "subject to the provisions of these articles and to other rules of international law" (Art. 1(2». The essence of the provision in Art. 2 of the 1982 Convention on the Law of the Sea is the same (UN Doc. A/CONF.62/122 with Corr.), Doctrinal controversy aside, it is certain that since international law allows States sovereignty over the territorial sea, a State may be entitled to treat these waters as part of its territory.

2. Historical Evolution of Legal Rules (a) Breadth of the territorial sea Historically, the oceans of the world were at one time claimed for the exclusive benefit of a handful of States. In the 16th and 17th centuries, States such as Spain, Portugal and England asserted broad claims to territorial sovereignty over vast areas of the oceans, mainly for the purpose of monopolizing fisheries, trade and communication (~ History of the Laws of Nations; ~ Law of the Sea, History). Grotius in his Mare Liberum (1609) enunciated the principle of the "freedom of the seas", which generally remained accepted for the next three centuries, as a reaction to the concept of territorial sovereignty. Thus, a competition started whereby some States claimed a wide maritime dominion while others opposed such claims. Even then, it was widely recognized that every coastal State had a right to authority over some

-

329

area in the adjacent sea for its protection. Thus, from the very inception of the ~ law of the sea, the world community recognized the necessity of protecting the reasonable interests of coastal States, customarily summed up under the heading "security", and, for that purpose, of allowing them to extend their ~ boundaries some distance seaward. Even Grotius conceded that his principle of the "freedom of the seas" did not apply to seas adjacent to the shore. The focal point of controversy, however, related to the breadth of this maritime belt, called the territorial sea, in which coastal States could exert their control. Since the principle of protection was the basis for this seaward extension, its limit was supposed to be measured by the range of a canon firing from the shore. The range of canons, when the canon shot rule was formulated by Bynkershoek, was one marine league or three nautical miles. As the three-mile rule mirrored the best possible accommodation between coastal States and the world community, it was accepted and adopted, by 1900, by the majority of States claiming a territorial sea. Some States and scholars even called it a rule of ~ customary international law. However, both in principle and practice this was not a uniformly accepted proposition. Publicists and States differed in their view as to the limits of the territorial sea. Wider claims to the territorial sea were increasingly common, especially after 1914. By 1930, the year of the Hague Codification Conference, a number of coastal States had made claims to more than three miles. The Conference, however, failed to adopt any provision on the breadth of the territorial sea. Between the conferences of 1930 and 1958 (~ Conferences on the Law of the Sear there was a strong pressure in favour of recognizing a much wider area of the territorial sea, as the emphasis had shifted from the sea as an avenue of transportation and communication to the sea as an area for the exploitation of economic resources. Indeed, by 1958 divergent State practice had already broken the universality of the three-mile rule on territorial seas. The ~ International Law Commission, in a commentary on its final draft on the "Breadth of the Territorial Sea", was obliged to record that State practice on the delimitation of the territorial sea was not uniform and that international law did

----'---'------------'----------------------------------------,

,,-,-

330

TERRITORIAL SEA

not permit the limit to be extended beyond 12 miles. The State practice just prior to the 1958 United Nations Conference on the Law of the Sea (UNCLOS I) revealed States claiming limits ranging from three to 200 mile s. As the measure of disagreement was very great, UNCLOS I and UNCLOS II (1960), as well as the resultant conventions, failed to resolve the question of the breadth of the territorial sea. It is important to note that at UNCLOS I numerous States unsuccessfully demanded recognition for the extension of the territorial sea to 12 miles. At UNCLOS II in 1960, a compromise proposal to extend the territorial sea to six miles with an exclusive ~ fishery zone of a further six miles could not be adopted. Thereafter, an increasing number of States extended their territorial seas to 12 miles and the consensus of the world community appeared moving in the direction of this limit. However, the problem remained largely unresolved at the start of UNCLOS III in 1973. In the preliminary discussions of the Sea-Bed Committee, which prepared the ground for the conference, it -became evident that States were willing to adopt the 12-mile limit subject to the satisfactory solution of the problems concerning passage of foreign ships through the territorial sea and ~ straits used for international navigation. As the conference progressed and compromises developed, the issue of the breadth of the territorial sea was resolved. The new 1982 Law of the Sea Convention, yet to be ratified, puts the maximum permissible breadth at twelve nautical miles.

(b) The technique of delimitation Once the breadth of the territorial sea has been laid down, the next question concerned what methods to employ for measuring its width (-+ Maritime Boundaries, Delimitation). Identification of the starting point of the width in respect of a coast in which the line of demarcation between sea and land can be clearly outlined constitutes an easy case. The ~ baseline, most simply, would be the line at the low-water mark following the sinuosities of the coast. However, the problem assumes complexity when the coast is surrounded or fringed by -. islands, shoals or rocks. Traditionally, the low-water mark was the starting point from which the territorial sea was

measured. This question came up for a detailed examination before the ~ International Court of Justice (ICJ) in the ~ Fisheries Case (U.K. v. Norway; ICJ Reports 1951, p. 116). A great deal of argument in this case turned on the question whether the method of delimitation by straight baselines, as applied by Norway to determine the outer limit of a portion of its territorial sea, was valid in international law. The Court endorsed the traditional technique of employing the low-water mark for measuring the breadth of the territorial sea, but had to decide whether the relevant low-water mark was that of the mainland or of the skjaergaard (a Norwegian term embracing numerous islands, islets, rocks and reefs). Since the skjaergaard were just an extension of the Norwegian mainland, the Court ruled that it was the outer line of the skjaergaard which should be taken into account in delimiting the belt of Norwegian territorial waters. The Court explained that this solution was "dictated by geographical realities" and was influenced, in addition, by "economic interests peculiar to a region, the reality and importance of which are clearly evidenced by a long usage". This case generated a considerable number of adverse comments. The results found expression in the 1958 Convention on the Territorial Sea. The normal baseline for measuring the breadth of the territorial sea is still the low-water line along the coast and this rule was incorporated in Art. 3 of the 1958 Convention. The rule may only be departed from "in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity" (Art. 4). In such cases, "the method of straight baselines joining appropriate points may be employed". The Convention in Art. 4(4) incorporated a new criterion, enunciated in the Fisheries Case, of taking account of "economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by a long usage". Art. 6 lays down the outer limit of the territorial sea as "the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea". These provisions have been restated in the 1982 Law of the Sea Convention (see Arts. 4 to 7). The 1958 and 1982 Conventions define an island as a naturally formed area of land, surrounded by

TERRITORIAL SEA

water, which is above water at high tide (Arts. 10 and 12, respectively). The territorial sea of an island is measured in accordance with the above provisions. The question of delimitation of the territorial sea of ----+ archipelagos ~uld not be resolved at the 1958 Conference. Under the 1982 Convention a separate legal regime for archipelagic States was established. Such States will be entitled to a territorial sea (Art. 48), which shall be measured in accordance with the requirements of Art. 47 which provides for straight archipelagic baselines, joining the outermost points of the outermost islands and drying reefs of the archipelago. Other provisions of this Convention deal with reefs (Art. 6), ----+ internal waters (Art. 8), mouths of rivers (Art. 9), bays (Art. 10; ----+ Bays and Gulfs), ----+ ports (Art. 11), roadsteads (Art. 12), and low-tide elevations (Art. 13). Regarding the delimitation of the territorial sea between adjacent and opposite States, both Conventions provide that in the absence of agreements between them, neither State is entitled to extend its territorial sea beyond the median line every point of which is equidistant from the nearest points on the baselines from. which the breadth of the territorial sea of each of the two States is measured. These provisions are not, however, applicable to cases where, by reason of historical titles or other special circumstances, it becomes necessary to fix the delimitation of the territorial sea in a different manner (Art. 12 of the 1958 Convention and Art. 15 of the 1982 Convention).

(e) Authority over the territorial sea Coastal State claims to authority over the territorial sea, generally characterized as sovereign, extend specifically to exclusion or regulation of passage by foreign ships, to prescription and application of law to practically all activities within the area and to exclusive exploitation of resources. The major opposing claim on behalf of all States is customarily expressed in terms of a right of innocent passage or a right to use an international waterway. The law must strike a reasonable balance between the proper interests of the coastal State and the needs of international navigation. A State's exercise of authority over foreign vessels is subject to their right of innocent passage.

331

This right which has had the approval of customary law and several international jurists remains equally valid in modern times. It was upheld by the ICJ in the ----+ Corfu Channel Case (ICJ Reports 1949, p. 4), where the Court enjoined the territorial State not to permit its waters to be used in such a way as to cause damage to the interests of other States and to give notice, for the benefit of shipping in general, of the existence of any dangers to navigation (----+ Navigation, Freedom of) of which it is aware. These rules were incorporated in the 1958 Convention on the Territorial Sea (Art. 14). However, the provisions of the Convention were too general and left a large area of discretion to the coastal State. It was left to UNCLOS III to clarify and articulate the existing law. With the extension of the limit of the territorial sea to 12 miles, there was a need for a clearer definition of the right of innocent passage and the sovereign authority of the coastal State to regulate such passage resulting from the accommodation of the needs of the coastal State with the interests of international navigation. The 1982 Convention provides a clearer definition of the conditions under which the coastal State may not refuse the right of innocent passage and establishes a list of matters which the coastal State may regulate with binding force for ships exercising a right of innocent passage, e.g. traffic control by means of shipping lanes (----+ Sea Lanes) and traffic separation' schemes, protection of signs, installations (----+ Artificial Islands and Installations) and so forth (Arts. 21(1), 22, 25). Particularly imC0rtant are the provisions dealing with the power of the coastal State to make and enforce laws for the prevention of marine pollution which are also applicable to foreign ships exercising a right of innocent passage (----+ Oil Pollution Conventions). However, this power is subject to two conditions: First, coastal State laws may not apply to the design, construction, manning or equipment of foreign ships unless they are giving effect to generally accepted international rules or standards (Art. 22(2». Second, the coastal State may not impose any requirement on foreign ships which would have the practical effect of denying or impairing the right of innocent passage or would lead to discrimination in form or in fact against particular States (Art. 24). Coastal

332

TERRITORIAL SEA

States are also vested with an exclusive right to regulate, authorize and conduct scientific marine research in their territorial seas. Other States can conduct research only with the express consent of and under the conditions fixed by the coastal State (Art. 245). Another problem discussed at UNCLOS III was the subjection of the right of innocent passage of - warships in the territorial sea to prior approval or at least prior notice of the coastal State. The 1982 Convention, in the same way as the 1958 Convention, omits this requirement and makes no distinction between warships and - merchant ships with regard to innocent passage. Customary law will continue to govern this matter, although there is a difference of opinion among States about its precise content; the majority appears to be in favour of the requirement of prior - notification or authorization. The extension of the territorial sea to 12 miles would place numerous important straits used for international navigation under the regime of the territorial sea of the adjoining States. Furthermore, the powers granted to coastal States under the new regime of straits, considerably impair the freedom of movement of the naval and air forces of the major maritime powers. These powers, unsatisfied with the traditional right of innocent passage, demanded the continuance of free and unhindered passage under the existing - high seas regime as a price for recognizing the extension of the territorial sea of 12 miles. A compromise was reached, as incorporated in the 1982 Convention (Part III), in the form of the concept of "transit passage", i.e. freedom of navigation, implying that - submarines need not pass on the surface unlike under the regime of innocent passage, and - overflight "solely for the purpose of continuous and expeditious transit of the strait" (Art. 38). The detailed provisions reflect a balance between the powers of coastal States bordering the straits to protect their national security and prevent pollution from shipping accidents and the needs of foreign shipping for free and unhindered passage. The 1982 Convention also outlines the rules concerning the exercise by the coastal State of criminal and civil jurisdiction within the territorial sea (Arts. 27 and 28). There is wide agreement that coastal compe-

tence over the territorial sea should include exclusive control over all resources therein, especially fisheries, which is currently of very great importance (- Fisheries, International Regulation). This consensus is further confirmed by numerous legal instruments including the aforesaid two conventions on the law of the sea.

3. Current Legal Situation In general, the legal situation regarding the regime of the territorial sea, as reflected in the 1982 Convention, is not fundamentally different from that in the 1958 Convention, except that some new components have been added. The maximum breadth. of the territorial sea is now fixed at 12 nautical miles. The provisions on baselines contain some new elements not found in the earlier Convention. Also, the meaning of innocent passage, the regulatory rights of the coastal State and the duties of the flag State in respect of innocent passage have been articulated and elaborated in greater detail. The legal regimes of straits as well as of archipelagic waters are given an independent position in the new Convention. There· is also a distmction made between the exercise of customs and fiscal jurisdiction over offshore installations and the rights associated with the traditional - contiguous zone.

4. Special Legal Problems The current law of the. territorial sea reflects a balanced accommodation of the interests of coastal States with those of other States regarding authority over the territorial sea. In spite of the in-built balances and safeguards, disputes might arise in the future, for example over the degree of discretion that can be permitted to coastal States in determining the innocent character of a particular passage. Some of the provisions of the 1932 Convention reflect an interplay of national and international rules and regulations (see Art. 21). The latter have not been identified, thus leaving room for future controversies. A good number of disputes might relate to boundary delimitation between neighbouring States, a subject that can be excepted from compulsory dispute settlement at the option of a particular party. A lingering doubt still persists in certain quarters whether warships must comply with the traditional requirement of prior notice or permission. Conflicts might also

TORREY CANYON, THE

arise about the operation of nuclear-powered ships and other ships carrying nuclear or other inherently dangerous or noxious substances (- Nuclear Ships; - Responsibility of States: Fault and Strict Liability). The problems concerning the limits of territorial waters in the frozen seas remain largely unresolved. The fact that some States have not signed the new Convention provides potential for future disputes, particularly in regard to the scope of customary law on navigation. United Nations Convention on the Territorial Sea and the Contiguous Zone, April 29, 1958, UNTS, Vol. 516 (1964) 205-282. United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF.62/122 with Corr. 3 and Corr. 8; UNCLOS III, Official Records, Vol. XVII (1984) 151-221; ILM, Vol. 21 (1982) 1261-1354). The Law of Territorial Waters and Maritime Jurisdiction (1927). c.r. COLOMBOS, International Law of the Sea (6th ed. 1967) Chap. 3. D.P. O'CONNELL, The International Law of the Sea (ed. by LA. Shearer), Vol. 1 (1982). M.S. McDOUGAL and W.T. BURKE, The Public Order of the Oceans (1987) Chaps. 3, 4, 5. P.e. JESSUP,

SURYA P. SHARMA

TERRITORIAL WATERS see Territorial Sea TOKYO CONVENTION see Civil Aviation,

Unlawful Interference with

TORREY CANYON, THE The Torrey Canyon was an American-owned and chartered - merchant ship, a super-tanker, registered under the Liberian flag, a - flag of convenience (- Flags of Vessels). While sailing from Mina Al Ahamadi in the - Persian Gulf to Milford Haven, Great Britain, the ship ran aground on March 18, 1967 on the Seven Stones. Reef between the Isles of Scilly and Lands End off the southwest coast of Britain in international waters. At the time of the incident, the ship was carrying 119328 tons of crude oil. Immediately, it was recognized that the Torrey Canyon presented

333

a major pollution threat to the British and French coasts and the ocean environment. The British and French governments took prompt action to prevent and mitigate the pollution caused by leaking oil (~ Marine Environment, Protection and Preservation). Because of rough seas salvage operations were hindered (- Salvage of Ships). A plan to pump the oil off the distressed vessel had to be abandoned because of the danger of explosion. Attempts to refloat the tanker were unsuccessful and ceased when the worsening weather and high seas broke the ship into three pieces. After exhausting all other possibilities, on March 27, 1967 the British Government decided to bum the oil slicks and destroy the remaining cargo by bombing the vessel. The government stated that its intention was not to destroy the ship, but only to open the cargo tanks and burn the oil therein. After informing the owners, British war planes bombed the wreck, setting her afire. Neither the owners nor Liberia made a ~ protest against the British Government's action. By March 30, 1967 all oil in the vicinity of the ship had been destroyed. However, 80000 tons of oil escaped into the ocean polluting the British and French coasts. A Liberian board of inquiry determined that the sole cause of the accident was the master's negligence. The board recommended that his sailing papers be revoked. Traditionally, flag States have almost absolute jurisdiction over their vessels on the - high seas, whereas coastal States have only limited authority over ships in adjacent international waters (- Maritime Jurisdiction). The British Government made it quite clear that its primary concern had been the prevention of oil pollution and that neither domestic legal, international legal nor financial constraints were considered. Members of the opposition in Parliament strongly attacked the government's failure to consider the legal ramifications, both domestic and international. Subsequent supporters of the British Government's action asserted that it was permissible under the doctrines either of ~ self-defence or necessity. However, the applicability of these doctrines is questionable as no unlawful act was performed to invoke self-defence, and the peace and security of Britain was not threatened to the degree needed to support a plea of necessity.

- - - - - - - - - - - - - - - - - - .._ ._--------.--_._-

334

TORREY CANYON, THE

Nevertheless, in 1980 the ~ lnternational Law Commission (ILC) concluded that Britain's actions against the Torrey Canyon were an expression of the doctrine of "necessity". The ILC's characterization of the Torrey Canyon incident reflects its elevation of environmental concerns and a liberalization of the grounds supporting the defence of necessity (see 2 YILC (1980»). Other advocates claimed that as the wreck occurred in Britain's ~ contiguous zone, :-\ritain was permitted to intervene under Art. 24 of the 1958 Geneva Convention on the Territorial Sea and the Contiguous Zone (UNTS, Vol. 516, p. 205). Art. 24 of the Convention allows coastal States to exercise the control necessary to prevent the infringement of sanitary regulations. However, at the time of the incident, Britain had not declared a contiguous zone. Other existing ~ oil pollution conventions were not applicable as they were not concerned with oil pollution arising from such maritime incidents. A host of other ~ admiralty law problems arose when France and Britain brought actions against the owners and charterers for ~ damages. Of particular concern was the limited liability of the owners and charterers. This question and others were left unresolved as the owners and charterers settled with the two governments. Each defendant paid each government 1.5 million pounds sterling. The two issues of coastal State intervention and civil liability were presented by Britain to the Inter-Governmental Maritime Consultative Organization (now the ~ International Maritime Organization) at an extraordinary meeting on May 4, 1967. The efforts of this organization culminated in the adoption of two conventions which addressed these issues. The Convention relating to Intervention on the High Seas in Cases of Oil Pollution Casualties of November 29, 1969 (UI--TS, Vol. 970, p. 212) authorizes States parties to take "such measures on the high seas as may be necessary to prevent, mitigate or eliminate grave and imminent danger to their coastline" from pollution by oil (Art. 1). The treaty requires consultation with all interested parties and provides for mandatory ~ conciliation and ~ arbitration for disputes arising out of such incidents. The Convention on Civil Liability for Oil Pollution Damage of November 29, 1969 (UNTS,

Vol. 973. p. 3) establishes a regime of limited liability for owners of ships registered in contracting States, whereby the owner of a vessel which causes oil pollution damage may limit his liability by establishing a fund for compensation. All judgments against the ship owner for oil pollution damage rendered by courts of contracting States are to be satisfied from this fund (ct. ~ Amoco Cadiz Incident). The significance of the Torrey Canyon affair is that it caused the community of nations to address the legal problems of massive accidental oil pollution at sea, thereby providing legal grounds for coastal State intervention and a cogent regime for limited liability. Secretary of State, The Torrey Canyon, British Command Papers, Cmnd. 3246 (1967). Report of the Board of Investigation in the Matter of the Standing of the SS Torrey Canyon on March 18, 1967, ILM, Vol. 6 (1967) 480. The Torrey Canyon Disaster: Some Legal Aspects, Denver Law Journal, Vol. 44 (1967) 400425. A. UTION. Protective Measures and the "Torrey Canyon", Boston College Industrial and Commercial Law Review, Vol. 9 (1967/1968) 613-632. E. BROWN, The Lessons of the Torrey Canyon: International Law Aspects, Current Legal Problems, Vol. 21 (1968) 113-136, G.W. KEETON, The Lessons of the Torrey Canyon: English Law Aspects, Current Legal Problems, Vol. 21 (1968) 94-112. J.e. SWEENEY, Oil Pollution of the Oceans, Fordham Law Review, Vol. 37 (1968/1969) 155-208, N. HEALY, The CMI & IMCO Draft Conventions on Civil Liability for Oil Pollution, Journal of Maritime Law and Commerce, Vol. 1 (1969/1970) 93-106. L.F.E. GOLDIE, International Principles of Responsibility for Pollution, Columbia Journal of Transnational Law, Vol. 9 (1970) 283-330. N. HEALY, The International Convention on Civil Liability for Oil Pollution Damage, Journal of Maritime Law and Commerce, Vol. 1 (1970) 317-323, B.P. SMITH, State Responsibility and the Marine Environment (1988). V.P. NANDA,

ROBERT H. STANSFIELD

TRANSIT PASSAGE Transit Passage

see Innocent Passage,

TUNISIA/LIBYAN ARAB JAMAHIRIYA (CONTINENTAL SHELF CASE) see Continental Shelf Case (Tunisia/Libyan Arab Jamahiriya)

UNITED STATES v. CALIFORNIA (MONTEREY BAY CASE)

UNITED STATES v, CALIFORNIA (MONTEREY BAY CASE) The search for and the extraction of large quantities of oil, gas and other energy sources from the world's oceans is a relatively new phenomenon. In Lake Maracaibo (Venezuela) and within the territorial waters of the states of California, Louisiana and Texas these activities date back to the 1940s. While corresponding to the traditional onshore undertakings of the petroleum industry, they raised important political, economic and legal questions regarding state and federal jurisdiction within the ~ territorial sea and in marine areas beyond the then acknowledged three-mile limit (~ Federal States). In 1947, the United States Supreme Court in United States v. California (332 US 19 (1947) decided for the first time a dispute between a coastal state and the federal government over their respective rights to explore and exploit oil and other natural resources of offshore submerged lands (~ Natural Resources, Sovereignty over). In this case, noted more for the constitutional than the international law issues it raised, the federal government argued that it possessed paramount rights over the lands, minerals and other resources of the ~ sea-bed lying seaward of the ordinary low-water mark on the coast of California and beyond its ~ internal waters, extending seaward three nautical miles and limited by the northern and southern boundaries of California. According to the federal government, California had acted under state law and without federal authority in negotiating leases with companies and individuals. These agreements purported to authorize the holders to extract fossil and mineral deposits from the ocean areas claimed by the federal government. The federal government sought a decree recognizing its exclusive rights and enjoining California from trespassing upon the area. California claimed that it owned the subsoil resources under the three-mile territorial sea as incident to the ~ sovereignty which it exercised in that area. It pointed to its Constitution of 1849, which included within the State's boundaries the waters extending three miles from shore. California contended further that its ownership followed from the rule originally laid down in Pollard's

335

Lessee v. Hagen (3 How. 212 (1845)). In that case it had been held that the thirteen original states owned in trust for their people the navigable tidewaters between the high and low watermark within each state's boundaries, and their subsoil, as an inseparable attribute of their sovereignty. In the Monterey Bay Case the Court held against California and decreed that the federal government rather than the state had paramount rights in and power over the three-mile marginal belt along California's coast. Incidental to these rights, according to the Court, was full dominion over the subsoil resources in that water area, including oil. The Court reached this decision on the ground that the acquisition of dominion and control over a three-mile territorial sea resulted from action taken by the federal government after the independence of the United States. The acquisition of the three-mile belt had not only been accomplished by the national government, but its protection and control had been and still remained, a function of national sovereignty. The Justices, furthermore, accepted the federal government's argument that the Pollard Rule should not be extended so as to apply to lands under the ocean, on the grounds that "national interests, responsibilities, and therefore national rights are paramount in waters lying to the seaward in the three-mile belt" (332 US, at p.36). If the rationale of the Pollard Case was an acceptable basis for the conclusion that paramount rights to inland waters belonged to the states, then the same rationale justified the opposite conclusion with regard to the three-mile belt. After this judgment, the debate between the states and the federal government as to who had the right to exploit the oil and other resources of offshore submerged lands switched gradually to offshore areas seaward of the territorial sea. As early as the late 1940s to early 1950s, the operation of "jack-up rigs" (i.e. facilities whose foundations rest on the sea-bed) extended beyond territorial waters into shallow sea areas on the ~ continental shelf, and thus raised problems of sovereignty. In 1950 the Supreme Court, following the principles enunciated in the Monterey Bay Case, made similar holdings with respect to submerged lands in the Gulf of Mexico lying off the coasts of Louisiana and Texas. The Court directed both

336

UNITED STATES v. CALIFORNIA (MONTEREY BAY CASE)

states to account for all sums derived from natural resources exploited in that area. In United States v. Louisiana (339 US 699, at p. 705 (1950» the Court implied a distinction between the territorial sea and the continental shelf by stating that if the former "is in the domain of the Nation rather than that of the separate States, it follows a fortiori that the ocean beyond that limit also is" (339 US, at p. 705). Nevertheless, this language did not mean that the Court accepted the idea of a fede ral proprietary or territorial interest in the continental shelf, as distinct from a federal functional interest in the exercise of power over the area. However, in United States v . Texas (339 US 707 (1950», the Court all but equated these interests. Texas had claimed that a distinction was necessary between imperium and dominium. It argued that the rights associated with the former belonged to the federal government as a matter of political competence, while those connected to the latter belonged to the state as a matter of vested interest. The Court held that property rights offshore are subordinated to political rights, broadening the reasoning laid down in the Monterey Bay Case. The weak points of United States v. California are perhaps best pointed out by the dissenting opinions of Justices Frankfurter and Reed. First, it is unclear why one may not conclude from the federal nature of the United States governmental system that the states have their own prerogatives with regard to offshore areas. As Justice Frankfurter reasoned, "[t]o declare that the [federal] Government has 'national dominion' is merely a way of saying that vis-a-vis all other nations the Government is the sovereign (332 US, at p. 45)". If the Court meant that, then it was unnecessary for the Court to confer or declare such sovereignty. If, however, the Court's decree meant more than that, it implies that the federal government has a proprietary interest. Yet, this result, as Justice Frankfurter indicates, "has not been remotely established except by sliding from absence of ownership by California to ownership by the United States". Second, it is questionable whether the Court was right in affirming that the 13 original colonies did not possess territorial waters in 1775. If, as Justice Reed argued,. they did, and the original states claimed ownership of and sovereignty over

the territorial sea, it is hard to see why California should not have had the same rights in the submerged lands adjacent to its coast. It is equally hard to see how the vesting of such ownership in California would interfere with the "national external sovereignty" of the United States. Such considerations may have prompted the United States Congress to pass the Submerged Lands Act (67 Stat. 29 (1953» by which the United States relinquished to the coastal states all of its rights in such lands up to the three-mile limit or the boundary of the state in the Gulf of Mexico if more than three miles. The Outer Continental Shelf Act (67 Stat. 462 (1953» declares that the United States has jurisdiction over the sea-bed and subsoil of the continental shelf outside the boundaries of the states and the three-mile limit. The Tidelands Oil Controversy: A Legal and Historical Analysis (1953). H.S. SCHLAFFER, The Eighty-Second and Eighty-Third Congresses and the Submerged Lands Controversy (1953) R.B. KRUEGER, Study of the Outer Continental Shelf Lands of the United States, Vol. 1 (1968). A. HOLLICK, U.S. Foreign Policy and the Law of the Sea (1981).

E.R. BAR1LEY,

MARKUS GEORG SCHMIDT

WARNING ZONES AT SEA 1. Notion

Warning zones are sea areas which ships are warned not to enter on account of dangers to navigation. A distinction should be made between such warning zones and restricted or prohibited areas, on the one hand, and -+ safety zones, on the other. Restricted or prohibited areas denote areas where a given coastal State temporarily or permanently suspends the passage of foreign ships through its waters. Within its -+ territorial sea a coastal State may temporarily suspend in specified areas the -+ innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises (United Nations Convention on the Law of the Sea, December 10, 1982 (UN Doc. A/CONF. 62/122

WARNING ZONES AT SEA

with Corr.), Art. 25(3». In times of ~ war, as recent history has shown, both defensive and offensive prohibited areas have also been established outside the limits of territorial waters. Safety zones may be established by a given coastal State for economic purposes around ~ artificial islands and installations in Its ~ exclusive economic zone and on its ~ continental shelf and also around scientific research installations (1982 Law of the Sea Convention, Arts. 60(4) to (7), 80, and 260).

2. Historical Evolution of Legal Rules In early times, warnings of a limited geographical nature were addressed by coastal States to ships flying either a domestic or a foreign flag and intending to navigate in their territorial waters (-- Flags of Vessels). The intention of these States was to make the approach to their -- ports safe and to protect themselves against claims for failure to safeguard traffic. The provision of aids to navigation and of pilotage services have always been regarded in some sense as a warning. Dangers caused by special events and usually limited to a foreseeable period of time used to be advertized in "notices to mariners", which first came into use in printed form and were later supplemented by radio warnings. As the -- high seas are not subject to any State's -- jurisdiction and ships are at liberty to take whichever routes they choose, there had hitherto been no need for coastal States to warn ships of local dangers in any particular area of the high seas contiguous to territorial seas of only narrow width (-- Navigation, Freedom of). However, three reasons brought about a change in this approach: torpedo tests at sea, mining of large sea areas and icebergs. Tests of torpedos at sea as well as of long-range land-based weapons directed seawards made the temporary use of warning areas on the high seas necessary. The basic rule governing such use was the provision in the last paragraph of Art. 2 of the 1958 Convention on the High Seas (UNTS. Vol. 450, pp. 82-83), which stipulates that all States are to exercise their rights arising from the freedom of the high seas with reasonable regard to the interests of other States. It is the general practice that tests of the above kind operate by the

337

so-called clear range system; this is to say that no shot is to be tired unless the target area has been verified as clear both visually and by electronic means of detection. However, this purely military precaution was not enough in the case of tests that either lasted for an extended period of time or were repeated at frequent intervals. The establishment of warning zones appeared necessary to raise the attention of civilian users of the sea or even induce them to avoid the sea areas in question voluntarily; besides which the geographical areas of surveillance by vessels and technical means used were thus clearly defined. Warning zones were thus established in near-coastal waters, where small vessels frequently operated in sizeable numbers, and in sea areas with a given permanent civilian use such as ferry traffic, fishery activities, or recreational use. National rules determined whether an authority generally responsible for the safety of navigation or the military commander responsible for the test had to decide on the proclamation of warning zones. In respect to the mining of large sea areas, in particular of the North Sea in 1914, the United Kingdom, with a view to obtaining control of shipping into and out of the North Sea, warned ships against using any approach to the North Sea other than the English Channel. Icebergs posed great danger during the season, in particular, to the heavy shipping traffic in the North Atlantic as demonstrated by the loss of the Titanic in 1912. This was the reason why Art. 36 of the 1929 Convention for the Safety of Life at Sea (LNTS, Vol. 136, p.81) imposed an obligation upon contracting States not only to patrol the area where such dangers might be expected but also to warn the shipping community in good time whenever necessary. The simultaneous rapid developments in radiotelegraphy fostered the general wish to provide warning messages to ocean-going mariners if such information might affect their navigational decisions. Many shipping nations introduced national warning systems. Some of these, particularly those of the United States (Hydrolants for ships east of the Atlantic Coast and Hydropacs for ships west of the Pacific coast) as well as of the Soviet Union, still exist apart from the world-wide navigational warning service which has developed in the intervening period.

338

WARNING ZONES AT SEA

3. Current Legal Situation At present the world-wide navigational warning service is regulated by the Resolution 419(XI) of the ~ International Maritime Organization (IMO) prepared 10 conjunction with the ~ International Hydrographic Organisation and the ~ International Telecommunication Union and adopted on November 15, 1979. The oceans, excluding the Arctic and ~ Antarctica, have been divided into 16 geographical areas for coordinating and promulgating radionavigational warnings, Area I comprising, for example, the North-East Atlantic including the North Sea and the ~ Baltic Sea and all waters around the United Kingdom. In each area an authority called the area-coordinator is charged with collating and issuing warnings and bulletins covering the whole area. Long-range broadcasts by powerful radio-stations for warning navigation, called NAVAREA Warnings, are used. They are transmitted in English and, if necessary, other official languages of the ~ United Nations. At least two daily transmissions at times specified in broadcast schedules are prescribed. The warnings are also to be available at port offices and collected in periodical bulletins. They remain valid until cancelled by the area-coordinator. Areas can be subdivided into regions and sub-areas. In regions, one country has accepted responsibility for the transmission of "coastal warnings" restricted to coastal waters and collated by a national coordinator. In sub-areas, a number of countries have established 2 coordinated system for the transmission of coastal warnings. All national and area-coordinators work closely together. Local warnings of harbour or port authorities complete the navigational warning service. Warnings rnuy be transmitted if information is required by mariners for the safe navigation of sea-going. ships. The long list of warning-subjects (IMO Res. 419, para. 7) is not exhaustive and is only to be regarded as a guideline. It includes failures of and changes to important aids to navigation as well as special operations which might affect the safety of shipping, sometimes over wide ~\:eas. Among such operations the list mentions ~ nuclear tests. But nuclear tests have

since been banned by multilateral convention. 108 nations have ratified the 1963 Treaty Banning Nuclear Tests in the Atmosphere, in Outer Space and under Water (UNTS, Vol. 480, p. 43). In addition, Art. 194(2) of the 1982 Law of the Sea Convention asks States to ensure that pollution arising from activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights (~ Environment, International Protection). France, whose nuclear tests in the South Pacific have given rise to severe political and legal controversy, has not ratified the 1963 Convention, but has signed the 1982 Law of the Sea Convention. IMO Resolution A.419(XI) World-Wide Navigational Warning Service, IMO Resolutions and Other Decisions, Assembly Eleventh Session (1979) 102-110. ICJ Nuclear Tests Case, Order of June 22, 1973, ICJ Reports 1973, 99-133. The Hydrogen Bomb Experiments and International Law, Yale Law Journal, Vol. 64 (1955) 629-647. M.S. McDOUGAL, The Hydrogen Bomb Tests and the International Law of the Sea, AJIL, Vol. 49 (1955) 356-378. M.S. McDOUGAL and N.A. SCHLEI, The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security, Yale Law Journal, Vol. 64 (1955) 648-710. A.A. D'AMATO, Legal Aspects of the French Nuclear Tests, AJIL, Vol. 61 (1967) 66-77. A.G. MERCER, International Law and the French Nuclear Weapons Tests, New Zealand Law Journal (1%8) 405-408, 418-421. u. JENtSCH, Das Recht zur Vornahme militarischer Ubungen und Versuche auf Hoher See in Friedenszeiten (1970). G. HOOG and H. SCHRODER-SCHULER, Die franzosischen Nuklearversuche im Siidpazifik (1973). Comment, French Nuclear Testing: A Crisis for International Law, Denver Journal of International Law and Policy, Vol. 4 (1974) 111-132. D. KHOSLA, Nuclear Test Cases: Judicial Valour v. Judicial Discretion, Indian JIL, Vol. 18 (1978) 322344. Exclusion of Ships from Nonterritorial Weapons Testing Zones, Harvard Law Review, Vol. 99 (1986) 10401058.

E. MARGOLIS,

GERHARD BREUER

WARSAW CONVENTION see Air Trans-

port, Regulation of Liability

339

WEATHER MODIFICAnON

WEATHER MODIFICATION

which have taken place at the time of or subsequent to cloud seeding activities.

1. Weather Resources Management

2. Legal Aspects

From the beginning of time mankind has modified the weather, sometimes intentionally and other times inadvertently. Fire, housing, cultivation of lands, deforestation and construction of cities have all had weather impacts. But it has not been until the 20th century that these impacts have been other than very localized. And it has not been until the second half of this century that there have been successful efforts to make intentional changes in the weather. Weather resources management is a new technology. Cloud seeding is the means whereby scientists and technologists have sought to alter weather phenomena. Clouds have been seeded by injection of various chemicals to trigger changes in their behaviour. Although much needs to be learnt about the amount and kinds of seeding materials required, the timing, means, and location of their placement in clouds, and the types of storms which can successfully be treated, there is increasing evidence that several types of weather phenomena can now be influenced by weather modification technologies. Supercooled fog and stratus clouds can be treated to improve visibility. Snowpack, and the resulting run off, can be augmented by modifying winter clouds rising over some mountain barriers. Rain can be increased from some kinds of summer cumulus clouds, and their potential for precipitation can be enhanced by increasing the size of douds. Hail suppression is attempted in many places, and although experiments are not conclusive, evaluations of some projects suggest that hail damage in some kinds of storms can be reduced. Successful wee, ther resources management obviously has environmental consequences (~ Environment, International Protection). Precipitation alteration itself changes the atmospheric environment. Consequential hydrologic changes 'affect flora and fauna as well as human beings and streamflows (~ Plant Protection, International; ~ Wildlife Protection). These environmental impacts mayor may not be significant, but they may be believed to be important, particularly by persons afflicted with adverse weather conditions

(a) Regulation

In view of the perception that cloud seeding either does have or sometimes can have impacts upon the human environment, management of atmospheric resources has been subjected to legal control by governmental institutions in several countries. There are administrative rules and regulations in some countries, while in others domestic legislation regulates cloud seeding activity, and there Have been a number of instances in which lawsuits have been filed in courts. In contrast to the development of national legal regimes respecting weather resources management, as yet there is little international law in this area. There is definite belief among persons and organizations through whom relevant international law could develop that cloud seeding and its consequences are not yet mature enough to become the basis for an international regulatory regime. (b) Liability

During the Vietnam War, cloud seeding was used as a hostile weapon (~ Warfare, Methods and Means). Although evaluation of the results from the seeding was not rigorous, disclosure of the project led to the adoption in 1977 of the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (UST, Vol. 31 I (1979) p. 333; ~ War and Environment). Parties to the Convention undertake "not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party". Weather modification is a "deliberate manipulation of natural processes", and hence fits within the Convention's definition of "environmental modification technique". But there are those who would argue that, as technology now permits, weather modification is not "widespread". The committee drafting the Convention understood the term "widespread" to "encompass ... an area on the scale of several hundred square kilometres". Cloud seeding im-

340

WEATHER MODIFICATION

pacts may not be that widely felt. "Longlasting" is defined as approximately one season. That would require recurring episodes of seeding. And "severe" was understood to mean "serious or significant disruption or harm to human life, natural and economic resources or other assets". Proof of that would be difficult to establish. Peaceful uses of weather a iteration techniques can also give rise to the application of existing international legal rules. These rules were discussed by delegates to a conference of experts designated by governments sponsored by the ~ World Meteorological Organization and the ~ United Nations Environment Programme, in 1979. Although the assemblies of neither organizanon adopted the recommendations of the delegates, those statements do reflect expert views about the international legal regime. According to their report and to international law, States should: (i) Notify concerned Statesof weather modification activities under their ~ jurisdiction or control which are likely to have an effect on areas within the national jurisdiction of such concerned States (~ Notification); (ii) At the request of such a concerned State, States under whose jurisdiction or control weather modification activities are taking place or planned, shall enter into timely ~ consultation concerning such activities; (iii) Weather modification activities should be conducted in a manner designed to ensure that they do not cause damage to the environment of other States; and (iv) In the event of environmental damage, there is national responsibility for the harm caused in another State (~N"eighbour States; ~ Responsibility of States: General Principles). Convention on the Prohibition 0' Military or any Other Hostile Use of Environmental Modification Techniques, UST, Vol. 31 I (1979) 333-379. Weather Mod fication and Control: Some International Legal Implications, California Law Review, Vol. 55 (1967) 493-506. M. NEIBURGER, Artificial Modification of Clouds and Precipitation, WMO Technica Note No. 105 (1969). R. DAVIS, Options for Public Control of Atmospheric Management, Denver Journa of International Law and Policy, Vol. 10 (1981) 52:1-535. H. TAUBENFELD,

RAY J. DAVIS

WHALING REGIME 1. Notion Whales are warm-blooded marine mammals. The twelve species of great whales have been exploited for centuries. They have always been legally regarded as common property fishery resources open to unrestricted access by all States under the doctrine of freedom of the ~ high seas (~Fisheries, International Regulation). This legal status of marine mammals was confirmed in the Behring Fur Seal Arbitration (J.B. Moore, History and Digest of the International Arbitrations to which the United States has been a Party, Vol. 1, p. 755; ~ Behring Sea Arbitration; see also ~ Seal Fisheries). It led to the overexploitation and decline of many species throughout the history of whale fisheries. Though some States introduced national legislation in the late 19th century and there were also inter-company agreements in the 1930sto limit whale oil production, these measures could not adequately address the problem. International regulation was required since States whaling in international areas could not be controlled without their consent ( ~ Conservation of Living Resources of the High Seas; -~ Marine Environment, Protection and Preservation). 2. HistoricaL EvoLution of LegaL RuLes

The first International Convention for Regulation of Whaling was concluded within the framework of the ~ League of Nations in 1931. It introduced some fishery conservation measures but was not successful in arresting stock decline as it neither set an overall catch quota nor established a regulatory commission. Not all whaling States became parties and it could be amended only by ad hoc protocols. In 1946, a new Convention for the International Regulation of Whaling (ICRW) was concluded by 15 whaling States in order to provide for the proper conservation of whale stocks and thus make possible the orderly development of the industry (UNTS, Vol. 161, p. 72). The Convention established the International Whaling Commission (IWC) consisting of one commissioner from each contracting government. A flexible schedule of regulations was an integral part of the Convention. It consists of measures for

341

WHALING REGIME

conservation and utilization of whale resources based on specified criteria, including conservation, utilization and development of whale stocks, scientific findings and consideration of the interests of consumers of whale products and the whaling industry. The numbers and nationality of factory ships cannot be restricted (~ Ships, Nationality and Status), nor can specific quotas be allocated to them or to land stations; only an overall quota can be set. The IWC meets annually and can amend the schedule by a three-quarters majority, but contracting governments can object to amendments such as quota limits and are not then bound by them. The ICRW applies globally to all factory ships, land stations, whale catchers and, under a 1956 Protocol, ~ aircraft under the ~ jurisdiction of States parties, as well as to all waters in which whaling is pursued, including the ~ territorial sea, ~ fishery zones and ~ exclusive economic zones. The Convention left enforcement to national means, but the 1956 Protocol (UNTS, Vol. 398, p. 366) provides for an International Observer Scheme. Whales are not defined in the ICRW, but species regulated or studied are identified in the Schedule ad hoc. The Convention, though an advance on other ~ fishery commissions of its time, did not arrest the decline in stocks. Some parties took advantage of the conflicting aims of conservation and industrial development. The Scientific Committee's advice was conflicting or overridden, and quotas were set too high. Lack of international inspection facilitated evasion of regulation. The doctrine of freedom of the high seas enabled use of ~ flags of convenience for "pirate" whaling. International public concern led to adoption by the UN Stockholm Conference on the Human Environment in 1972 of a resolution calling for a ten year moratorium on whaling (~ Environment, International Protection). 3. Current Legal Situation

Rather than adopting the moratorium, the IWC introduced reforms in the 1970s. It established a full-time secretariat headed by a cetologist (~ International Secretariat). It adopted new management procedures, dividing species into 20 different stocks, setting quotas on a stock-by-stock

basis following classification by the Scientific Committee as Initial Management, Sustained Management or Protection Stocks according to population levels in relation to their maximum sustainable yield. No whaling is allowed on the Protection Stocks. The new management procedures proved unworkable since the Scientific Committee often lacks the data for giving advice. In 1974 the International Observer Scheme was introduced but limited to appointment by the IWC of ~ observers nominated by the few members which concluded bilateral exchange agreements. More non-whaling States were encouraged to become parties. Current membership is 40 States, the majority non-whaling. Over 50 ~ non-governmental organizations have observer status (~ International Organizations, Observer Status). In 1982 it was thus possible to achieve the required majority to set zero catch limits on all commercially exploited stocks, commencing in 1986 for the coastal season and in 1985 to 1986 for the pelagic season. Three States, Japan, Norway and the Soviet Union, maintained objections to this. Aboriginal whaling and whaling under scientific permits are exempt from regulations (~ Marine Research). Some States are now issuing more such permits; others contemplate the possibility of securing exemptions for whaling by remote coastal communities. The approaching end of commercial whaling in respect of great whales has focused attention on "unregulated" whaling for small cetaceans. Some non-whaling States engage in the latter and resist attempts to extend the ICRW to them, arguing that the ICRW applies only to the major whales including in a 1946 List of Nomenclature and that the ICRW cannot apply to any other species in their 200-mile exclusive economic zones under the United Nations Convention on the Law of the Sea of December 10, 1982 (UN Doc. A/CONF. 62/122 with Corr.). Art. 65 of the 1982 Convention requires States to act through the appropriate international organizations to COLserve cetaceans but does not specify these bodies. Attempts to negotiate a new convention appli'cable to all cetaceans were abandoned due to major disagreements on these issues. 4. Evaluation

The Convention for the International Regulation of Whaling is potentially one of the most

342

WHALING REGIME

effective conventions of its period because its Schedule permits flexible development on a wide range of issues as evidenced in the IWC Reports. However, its failure to conserve stocks is leading conservationists to develop and apply other conventions to cetaceans, such as the Conventions on International Trade in Endangered Species of Wild Fauna and Flora of March 3, 1973 (UNTS, Vol. 993, p. 243) and on Conservation of Antarctic Marine Living Resources (with Annex and Final Act of the Conference of the Conservation of Antarctic Marine Living Resources, May 20, 1980, ILM, Vol. 19 (1980) p. 841) and various regional conventions (~ Antarctica). The United States has enacted national laws enabling it to reduce the fishery quotas in its exclusive economic zone and ban the fish imports of States that undermine the ICRW. These measures may secure withdrawal of current objections to the cessation of commercial whaling.

Convention for the Regulation of Whaling, September 24, 1931, LNTS, Vol. 155 (1934-1935) 349-365. International Convention for the Regulation of Whaling (with annexed schedules), December 2, 1946, UNTS, Vol. 161 (1953) 72-99. Protocol to the International Convention for the Regulation of Whaling, November 11, 1956, UNTS, Vol. 398 (1959) 366-371.

The International Management of Whales, Dolphins and Porpoises, Ecology, Vol. 6 (1977) 323-571. T. TONNESSEN, A History of Whaling (1980). P. BIRNIE, The International Regulation of Whaling, 2 vols. (1985). S. LYSTER, International Wildlife Law (1985). J. SCARFF,

P. BIRNIE

WRECKS see Salvage of Ships

LIST OF ARTICLES* FOR THE ENTIRE ENCYCLOPEDIA

Aaland Islands Abu Dhabi Oil Arbitration (2) Abuse of Rights (7) Academic de Droit International (9) Acquiescence (7) Acquisition of Polish Nationality (Advisory Opinion) (2) Acts of State (10) Administrative, Judicial and Legislative Activities on Foreign Territory (10) Administrative Law, International Aspects (9) Administrative Tribunals, Boards and Commissions in International Organizations (1) Admiralty Law (11) Admission of a State to Membership in United Nations (Advisory Opinions) (2) Advisory Opinions of International Courts (1) Aegean Sea Aegean Sea Continental Shelf Case (2) Aerial Incident Cases (U.S. v. Hungary; U.S. v. U.S.S.R.; U.S. v. Czechoslovakia) (2) Aerial Incident of 27 July 1955 Cases (Israel v. Bulgaria; U.S. v. Bulgaria; U.K. v. Bulgaria) (2) African Charter on Human and Peoples' Rights (8) Aggression (3) Aide-memoire (9) Air Law (11) Air Pollution (11) Air Transport Agreements (11) Air Transport, Regulation of Liability (11) Air Warfare (3) Aircraft (11) Airports (11) Airspace over Maritime Areas (11) Aix-la-Chapelle, Congress of (1818) (7) AKU Cases (8) Alabama, The (2) Algeciras Conference (1906) (7)

Aliens (8) Aliens, Admission (8) Aliens, Expulsion and Deportation (8) Aliens, Military Service (8) Aliens, Property (8) Alliance (3) Altmark, The (3) Ambatielos Case (2) American-Canadian Boundary Disputes and Cooperation (6) American Civil War (7) American Convention on Human Rights (8) A ' . Boun d ary merican-Mexican Disputes and Cooperation (6) Amnesty Clause (3)

Arctic Argentina-Chile Frontier Case (2) Armed Conflict (3) Armed Conflict, Fundamental Rules (3) Armistice (3) Arms Control (3) Arms, Traffic in (3) Artificial Islands and Installations (11) Asama Maru Incident (3) Asian-African Legal Consultative Committee (9) Association of South-East Asian Nations (6) Astronauts (11) Asylum, Diplomatic (8)

Amnesty International (8) Amoco Cadiz Incident (11) Andean Common Market (6) Andean Common Market, Court of Justice (6) Andorra Angary, Right of (3) Anglo-Iranian Oil Company Case (2) Annexation (3) Antarctica Antarctica Cases (U.K. v. Argentina; U.K. v. Chile) (2) . (8) Antitrust Law, International ANZUS Pact (1951) (3) Apartheid (8) Appeals from Judgments of the Hungaro-Czechoslovak Mixed Arbitral Tribunal (Cases) (2) Aqaba, Gulf of Arab States, League of (6) Aramco Arbitration (2) Arbitral Award of 1906 Case (Honduras v. Nicaragua) (2) Arbitral Commission on Property, Rights and Interests in Germany (1) Arbitration (1) Arbitration and Conciliation Treaties (1) Arbitration Clause in Treaties (1) Archipelagos (11)

Asylum, Territorial (8) Athenia, The (3) Atlantic Charter (1941) (9) Attilio Regolo, The (2) Austria Austrian State Treaty (1955) (3) Austro-German Arbitration Award under the Treaty of Finance and Compensation of 1961 (2) Austro-German Property Treaty (1957), Arbitral Tribunal (1) Autonomous Territories (10) Awards of Compensation Made by UN Administrative Tribunal (Advisory Opinion) (2) Balance of Power (7) Balkan Pact (1953/1954) (6) Balkan Wars (1912/1913) (7) Baltic Sea Baltic States Banco de Bilbao v. Sancha and Rey (10) Bancroft Conventions (8) Bandung Conference (1955) (9) Bank for International Settlements (5) Barcelona Conference (1921) (10) Barcelona Traction Case (2) Barents Sea Baselines (11) Bays and Gulfs (11)

"This list is subject to minor changes. A number in brackets following an article shows the instalment in which it has appeared.

344 Beagle Channel Beagle Channel Arbitration (2) Behring Sea Arbitration (2) Belgium-Luxembourg Economic Union (6) Belize Dispute (6) Benelux Economic Union (6) Benelux Economic Union, College of Arbitrators and Court of Justice (6) Berlin Berlin Clause Berlin Congress (1878) (7) Berlin West Africa Conference (1884/1885) (7) Bernstein v. Van Heyghen Frere. (10) Bhutan Bills of Exchange and Cheques, Uniform Laws (8) Biological Warfare (3) Black Sea Blockade (3) Blockade, Pacific (3) Bogota Pact (1948) (6) Bombardment (3) Bonn and Paris Agreements on Germany (1952 and 1954) (3) Booty in Land Warfare (3) Booty in Sea Warfare (3) Borchgrave Case (2) Border Controls (10) Boundaries (10) Boundaries in Latin America: uti possidetis Doctrine (6) Boundary Disputes between China and USSR (6) Boundary Disputes in Africa (6) Boundary Disputes in Latin America (6) Boundary Disputes in the Indian Subcontinent (6) Boundary Settlements between Germany and Her Western Neighbour States after World War II (3) Boundary Traffic (10) Boundary Waters (lO) Boycott (3) Brazilian Loans Case (2) Breda Fugitives Case (10) Brest-Litovsk, Peace of (1918) (3) Bretton Woods Conference (1944) (5) British Commonwealth (10) British Commonwealth, Subjects and Nationality Rules (8)

LIST OF ARTICLES

British Petroleum v. Libya Arbitration (2) Broadcasting, International Regulation (9) Bryan Treaties (1913/1914) (J) Buraimi Oasis Dispute (2) Burmah Oil Co. v. Lord Advocate (8) Cables, Submarine (11) Cabotage (8) Calvo Doctrine, Calvo Clause (8) Canals (10) Canevaro Claim Arbitration (2) Capital Movements, International Regulation (8) Caribbean Cooperation (6) Carnegie Endowment for International Peace (9) Caroline, The (3) Carthage, The, and The Manouba (2) Casablanca Arbitration (2) Cash and Carry Clause (8) Casus foederis (3) Celestial Bodies (11) Central American Common Market (6) Central American Common Market, Arbitration Tribuna: (6) Central American Court of Justice (1) Central Treaty Organization (6) Cerruti Arbitrations (2) Certain Expenses of the United Nations (Advisory Opinion) (2) Channel Islands and the Isle of Man Charter of Economic Rights and Duties of States (8) Chemical Warfare (3) Chevreau Claim Arbitration (2) Chicago Convention (11) Children, International Protection (9) Chilean Copper Nationalization, Review by Courts of Third States (8) Chinn Case (2) City of Flint, The (3) Civil Air Transport Inc. v. Central Air Transport Corp. (10) Civil Aviation, Unlawful Interference with (11) Civil Defence (3) Civil Service, European (6) Civil Service, International (5) Civil War (3) Civilian Objects (3)

Civilian Population, Protection (3) Clausula rebus sic stantibus (7) Clearing Agreements (8) Clipperton Island Arbitration (2) Coastal Fisheries (11) Coded Communications (9) Codes of Conduct (7) Codification of International I aw (7) Coexistence (9) Collective Measures (3) Collective Punishment (3) Collective Security (3) Collective Self-Defence (3) Collisions at Sea (11) Colombo Plan (6) Colonies and Colonial Regime (10) Colour Books (9) Columbia River Combatants (3) Comity (7) Commercial Arbitration (8) Commercial Treaties (8) Commodities, Common Fund (8) Commodities, International Regulation of Production and Trade (8) Common Heritage of Mankind (11) Comparative Law and European Law (10) Comparative Law and International Law (10) Comparative Law, Function and Methods (10) Competence of ILO concerning Methods of Agricultural Production (Advisory Opinion) (2) Competence of ILO concerning Personal Work of the Employer (Advisory Opinion) (2) Competence of ILO concerning Persons Employed in Agriculture (Advisory Opinion) (2) Compromis (1) Concessions (8) Conciliation and Mediation (1) Conciliation Commissions Established pursuant to Art. 83 of Peace Treaty with Italy of 1947 (1) Concordats (7) Condominium (10) Confederations and Other Unions of States (10) Conferences and Congresses, International (9) Conferences of Ambassadors (7)

LIST OF ARTICLES

Customary International Law (7) Conferences on the Law of the Sea (11) Customs Cooperation Council (5) Connally Reservation (1) Customs Frontier (8) Conquest (3) Customs Law, International (8) Consensus (7) Customs Regime between Germany and Austria (Advisory Conservation of Living Resources Opinion) (2) of the High Seas (11) Customs Union (8) Consular Jurisdiction (9) Cyprus Consular Relations (9) Czarnikov v. Rolimpex (8) Consular Treaties (9) Daimler Co. v. Continental Tyre Consuls (9) and Rubber Co. (3) Consultation (9) Damages (10) Contiguous Zone (11) Danube River Continental Shelf (11) Danzig Continental Shelf Arbitration Danzig and ILO (Advisory (France/United Kingdom) (2) Opinion) (2) Continental Shelf Case (Libyan Arab Jamahiriya / Malta) (11) Danzig Legislative Decrees (Advisory Opinion) (2) Continental Shelf Case (Tunisia/ Dardanelles, Sea of Marmara, Libyan Arab Jamahiriya) (11) Continental Shelf, Outer Limits(11) Bosphorus Dawes Plan (3) Continuity (10) Days of Grace (3) Contraband (3) De facto Regime (10) Contracts between International Organizations and Private Law De facto Subjects (9) Persons (7) Debellatio (3) Contracts between States and Declaration (7) Foreign Private Law Persons (7) Decolonization (10) Contributions (3) Decolonization: British TerConvoy (3) ritories (10) Co-operation Council of the Decolonization: Dutch TerArab Gulf States (6) ritories (10) Corfu Affair (1923) (3) Decolonization: French TerCorfu Channel Case (2) ritories (10) Costa Rica Packet Arbitration (2) Decolonization: Portuguese Territories (10) Costa Rica v. Nicaragua (2) Delagoa Bay Arbitration (2) Costa Rica v. ENEL (2) Delagoa Bay Railway Arbitration Council for Mutual Economic (2) Assistance (6) , Demarcation Line (3) Council of Europe (6) Demarche (9) Couriers (9) Demilitarization (3) Court of Justice of the European Communities (6) Denationalization and Forced Exile (8) Crimean War (7) Denial of Justice (10) Crimes against Humanity (8) Denunciation of Treaty of 1865 Crimes against Peace (3) between China and Belgium Crimes against the Law of (Orders) (2) Nations (8) Depositary (7) Criminal Law, International (9) Deserters (3) Cuban Quarantine (3) Designation of Workers' DeleCultural Agreements (9) gate at ILO Conference (AdCultural and Intellectual visory Opinion) (2) Cooperation (9) Developing States (9) Cultural Property (9) Diplomacy (9) Cultural Property, Protection in Diplomacy, Secret (9) Armed Conflict (9) Diplomatic Agents and Missions Curzon Line (9)

345 Diplomatic Agents and Missions, Privileges and Immunities (9) Diplomatic Protection (10) Diplomatic Protection of Foreign Nationals (10) Diplomatic Relations, Establishment and Severance (9) Disarmament (9) Disarming of Belligerents by Neutrals (3) Discrimination against Individuals and Groups (8) Dismemberment (10) Divided States (10) Dogger Bank Incident (10) Domestic Jurisdiction (10) Donauversinkung Case (10) Donckerwolcke Case (2) Double Taxation (8) Drago-Porter Convention (1907) (8) Drug Control, International (9) Due Diligence (10) Dumbarton Oaks Conference (1944) (5) East African Community (6) East Timor Eastern Carelia (Request for Advisory Opinion) (2) Eastern Greenland Case (2) Economic and Technical Aid (8) Economic Coercion (8) Economic Community of West African States (6) Economic Law, International (8) Economic Organizations and Groups, International (8) Economic Warfare (3) Effectiveness (7) Eisler Case (8) EI Triunfo Case (2) Elbe River Electricite de Beyrouth Company Case (2) Electricity Company of Sofia Case (2) Embargo (8) Emblems, Internationally Protected (9) Emigration (8) Ems-Dollart Enclaves (10) Enemies and Enemy Subjects (3) Enemy Property (3) Enemy States Clause in the United Nations Charter (10) Environment, International Protection (9)

346 Eperses Islands Equity in International Law (7) Eritrea Espionage (3) Estoppel (7) Etat russe v. La Ropit (8) Ethos, Ethics and Morality in International Relations (9) European Atomic Energy Community (6) European Atomic Energy Society (6) European Civil Aviation Conference (6) European Coal and Steel Community (6) European Commission of Human Rights (8) European Communities (6) European Communities: Community Law and Municipal Law (6) European Communities: External Relations (6) European Company for the Chemical Processing of Irradiated Fuels (Eurochemic) (6) European Company for the Financing of Railway Rolling Stock (Eurofima) (6) European Conference of Ministers of Transport (6) European Conference of Postal and Telecommunications Administrations (6) European Convention for the Peaceful Settlement of Disputes (1) European Convention on Human Rights (1950) (8) European Convention on State Immunity (10) European Court of Human Rights (8) European Defence Community (6) European Economic Community (6) European Economic Community, Association Agreements (6) European Free Trade Association (6) European Integration (6) European Investment Bank (6) European Law (6) European Molecular Biology Cooperation (6) European Monetary Cooperation (6) European Organization for Astronomical Research in the Southern Hemisphere (European Southern Observatory) (6)

LIST OF ARTICLES

European Organization for Nuclear Research (6) European Organization for the Safety of Air Navigation (Eurocontrol) (6) European Patent Organisation (6) European Political Community (6) European Political Cooperation (6) European Recovery Program (8) European Road Transport Agreement Case (2) European Schools (6) European Social Charter (8) European Space Agency (6) Evidence before International Courts and Tribunals (1) Exchange of Greek and Turkish Populations (Advisory Opinion) (2) Exclusive Economic Zone (11) Executive Agreements (7) Expropriated Religious Properties Arbitration (France, U.K., Spain v. Portugal) (2) Expropriation and Nationalization (8) Extradition (8) Extradition Treaties (8) Extraterritorial Effects of Administrative, Judicial and Legislative Acts (to) Fact-Finding and Inquiry (1) Faroe Islands Falkland Islands Fashoda Incident (7) Federal Clause, Colonial Clause (to) Federal States (to) Federalism in the International Community (to) Financial Institutions, InterGovernmental (5) Fisheries Case (U.K. v. Norway) (2) Fisheries, International Regulation (11) Fisheries Jurisdiction Cases (U.K. v. Iceland; Federal Republic of Germany v. Iceland) (2) Fisheries, Sedentary (11) Fishery Commissions (11) Fishery Zones and Limits (11) Fishing Boats (11) Flag of Truce (3) Flags and Uniforms in War (3) Flags of Convenience (11) Flags of Vessels (11) Flegenheimer Claim (2) Florida, The (2) Flying Trader, The (3)

Fonseca, Gulf of Food and Agriculture Organization of the United Nations (5) Forced Labour (8) Forced Resettlement (8) Foreign Aid Agreements (8) Foreign Debts (8) Foreign Investments (8) Foreign Legion (3) Foreign Policy, Influence of Legal Considerations upon (to) Foreign Relations Power (to) France: Overseas Territorial Entities France-United States Air Transport Arbitration (1963) (2) France-United States Air Transport Arbitration (1978) (2) Frankfurt Peace Treaty (1871) (7) Free Cities (to) Free Ports (11) Free Trade Areas (8) Free Zones of Upper Savoy and Gex Case (2) French-Peruvian Claims Arbitration (2) Friendly Relations Resolution (9) Frontier Dispute Case (Burkina Faso/Mali) Full Powers (9) Ganges River General Act for the Pacific Settlement of International Disputes (1928 and 1949) (1) General Agreement on Tariffs and Trade (1947) (5) General Participation Clause (3) General Principles of Law (7) Geneva Convention and Statute on the International Regime of Maritime Ports (11) Geneva Protocol for the Pacific Settlement of International Disputes (1924) (1) Geneva Red Cross Conventions and Protocols (3) Genocide (8) Genocide Convention (Advisory Opinion) (2) Gentlemen's Agreement (7) German External Debts Arbitration (Greece v. Federal Republic of Germany) (2) German Interests in Polish Upper Silesia Cases (2) German Minorities in Poland, Cases concerning the (2) German Minority Schools in Upper Silesia (Advisory Opinion) (2)

LIST OF ARTICLES

History of the Law of Nations A. Basic Questions and Principles (7) B. Ancient Times to World War I visory Opinion) (2) I. In General Germany, Federal Republic of, 1. Ancient Times to 1648 (7) Treaties with Socialist States 2. 1648 to 1815 (7) (1970-1974) (6) 3. 1815 to World War I (7) Germany, Legal Status after II. Regional Developments World War II (10) 1. Africa (7) 2. Far East (7) Germany-Lithuania Nationality 3. Islam (7) Arbitration (2) 4. Latin America (7) Germany, Occupation after 5. South and South-East World War II (3) Asia (7) Germany-United States Peace C. World War I to World War II (7) Treaty (1921) (3) D. Since World War II (7) Gibraltar Holy Alliance (7) Good Faith (7) Holy Places (10) Good Offices (1) Holy See (10) Government (10) Honduras-Nicaragua Boundary Government-in-Exile (10) Dispute (2) Graf-Spee, The (3) Hong Kong Gran Chaco Conflict (2) Hospital Ships (11) Great Lakes Hostages (8) Great Powers (9) Hot Pursuit (11) Greco-Bulgarian "Communities" Hovering Acts (11) (Advisory Opinion) (2) Human Rights (8) Greenland Human Rights, Activities of Grisbadarna Case (2) Universal Organizations (8) Guarantee (7) Human Rights, African Developments (8) Guarantee Treaties (7) Human Rights and Humanitarian Guardianship of Infants Convention Case (2) Law (8) Human Rights Commission of Guerilla Forces (3) Gugenheim v. Etat du Vietnam (10) the Arab States (8) Human Rights Covenants (8) Gulf of Maine Case (11) Human Rights, Universal Gut Dam Claims (2) Declaration (1948) (8) Guyana-Venezuela Boundary Humanitarian Intervention (3) Dispute (6) Humanitarian Law Ind Armed Hague Conventions on Civil Conflict (3) Procedure (9) Hungarian-Romanian Land Hague Conventions on Private Reform Dispute (2) International Law (9) I'm Alone, The (2) Hague Peace Conferences of IMCO Maritime Safety Commit1899 and 1907 (3) tee, Constitution of (Advisory Haile Selassie v. Cable & WireOpinion) (2) less Ltd. (10) Immigration (8) Havana Charter (8) Immunity Case (German Federal Haya de la Torre Cases (2) Constitutional Court, 1977) (10) Hegemony (9) Incognito (9) Heleanna Incident (11) Indigenous Populations, ProtecHeligoland tion (8) Helsinki Conference and Final Indigenous Populations, Treaties Act on Security and Cooperation with (8) in Europe (10) Indiscriminate Attack (3) High Seas (11) Individuals in International Law (8) Historic Rights (7) Indus Water Dispute (6) German Nationality (8) German Secular Property in Israel Case (2) German Settlers in Poland (Ad-

347 Industrial Property, International Protection (5) Information and Communication, Freedom of (9) Inmarsat (5) Innocent Passage, Transit Passage (11) Institut de Droit International (9) Intelsat (5) Inter se Doctrine (10) Inter-American Commission on Human Rights (8) Inter-American Court of Human Rights (8) Inter-American Treaty of Reciprocal Assistance of Rio de Janeiro (1947) (6) Interdependence (7) Intergovernmental Committee for Migration (5) Interhandel Case (2) Interim Measures of Protection (1) Internal Waters (11) Internal Waters, Seagoing Vessels in (11) International Administrative Unions (5) International Air Transport Association (5) International Association of Lighthouse Authorities (5) International Atomic Energy Agency (5) International Bank for Reconstruction and Development (5) International Bar Association (9) International Bureau of Education (5) International Bureau of Weights and Measures (5) International Chamber of Commerce (9) International Children's Centre (5) International Civil Aviation Organization (5) International Civil Defence Organization (5) International Commission for Food Industries (5) International Commission of Jurists (8) International Committee of Military Medicine and Pharmacy (5) International Controls (9) International Court of Justice (1) International Courts and Tribunals (1) International Covenant on Civil and Political Rights, Human Rights Committee (8)

348 International Crimes (8) International Criminal Court (1) International Development Association (5) International Economic Order (8) International Energy Agency (5) International Finance Corporation (5) International Fruit Co. Case (2) International Fund for Agricultural Development (5) International Hydrographic Organisation (5) International Labour Organisation (5) International Labour Organisation Administrative Tribunal (5) International Law (7) International Law, American (6) International Law and Municipal Law (10) International Law and Municipal Law: Conflicts and Their Review by Third States (10) International Law Association (9) International Law Commission (9) International Law, Doctrine and Schools of Thought in the Twentieth Century (7) International Law in Municipal Law: Law and Decisions of International Organizations and Courts (10) International Law, Intertemporal Problems (9) International Law, Islamic (6) International Law of Cooperation (9) International Law of Develop·'1Dent (9) Int~rnational Legal Community (7) . International Legislation (5) International Maritime Organization (5) International Military Force (3) International Monetary Fund (5) International Obligations, Means to Secure Performance (1) International Organizations, Financing and Budgeting (5) International Organizations, General Aspects (5) International Organizations, Headquarters (5) International Organizations, Implied Powers (7) International Organizations, Internal Law and Rules (5)

LIST OF ARTICLES

International Organizations, Legal Remedies against Acts of Organs (5) International Organizations, Membership (5) International Organizations, Observer Status (5) International Organizations, Privileges and Immunities (5) International Organizations, Resolutions (5) International Organizations, Responsibility (5) International Organizations, Succession (5) International Organizations, Treaty-Making Power (5) International Prize Court (1) International Public Order (7) International Refugee Organisation (5) International Regimes (9) International Relations (9) International Rivers (9) International Schools and Universities (9) International Sea-Bed Area (ll) International Secretariat (5) International Telecommunication Union (5) International Trade Centre

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinions) (2) Interpretation of Treaty of Lausanne (Advisory Opinion) (2) Intervention (3) Investment Codes (8) Investment Disputes, Convention and International Centre for the Settlement of (5) Irredentism (8) Island Disputes in the Far East (6) Islands (11) Islands in the Caribbean: Statehood in Association (6) Isolationism (9) Israel and the Arab States Israel: Status, Territory and Occupied Territories Italy-United States Air Transport Arbitration (1965) (2) Jan Mayen Japanese House Tax Arbitration (2) Jaworzina (Advisory Opinion) (2) Jay Treaty (1794) (1) Jerusalem Joint Undertakings (9) Joyce v. Director of Public Prosecutions (8) Judgment No. 158 of UN Administrative Tribunal, Application W'NCfAD/GATT (5) for Review of (Advisory Opinion) (2) international Union of Lawyers (9) Judgments of ILO Administrative International Watercourses Tribunal (Advisory Opinion) (2) Pollution (9) Judgments of International Internationale HandelsCourts and Tribunals (1) gesellschaft Case (2) Judicial and Arbitral Decisions: Internationalization (to) Validity and Nullity (1) Internationally Wrongful Acts (to) Judicial Settlement of InterInternment (3) national Disputes (1) Inter-Parliamentary Union (5) Jurisdiction of States (to) Interpol (5) Jurisdiction of the Courts of Danzig (Advisory Opinion) (2) Interpretation in International Law (7) Jurisdiction of the European Commission of the Danube Interpretation of Agreement of (Advisory Opinion) (2) 25 March 1951 between WHO and Egypt (Advisory Opinion) (2) Jurisdiction of the ICAO Council Case (2) Interpretation of Convention Jurisdiction of the International Concerning Employment of Commission of the Oder Case (2) Women during the Night (Advisory Opinion) (2) Jus cogens (7) Interpretation of Greco-BulKashmir garian Agreement of 1927 (AdKehler Hafen Case (to) visory Opinion) (2) Kellogg-Briand Pact (1928) (3) Interpretation of Greco-Turkish Kidnapping (8) Agreement of 1926 (Advisory Opinion) (2) Kiel Canal Interpretation of Memel TerKorea ritory Statute Case (2) Korean Air Lines Incident (1983) (11)

LIST OF ARTICLES

Kronprins Gustaf Adolf and Pacific Arbitration (2) Kurile Islands La Plata Basin (6) Labour Law, International Aspects

Macao Malta, Order of (9) Mandates (10) Maps (10)

349

Mixed Arbitral Tribunals (1) Mixed Claims Commissions (1) Mixed Commissions (1) Modus vivendi (9) Monaco Marine Environment, Protection (9) Monastery of Saint-Naoum (Adand Preservation (11) Lac Lanoux Arbitration (2) visory Opinion) (2) Marine Research (11) Lake Chad Monetary Gold Case (2) Maritime Archaeology (11) Lake Constance Monetary Law, International (8) Maritime Boundaries, DelimitaLake Geneva Monetary Unions and Monetary tion (11) Zones (8) Land Warfare (3) Maritime Boundary beMonroe Doctrine (7) Land-Locked and Geographically tween Guinea and Guinea-Bissau Disadvantaged States (11) Arbitration (11) Moratorium (8) Lateran Treaty (1929) (10) Moselle River Maritime Jurisdiction (11) Latin American Economic Most-Favoured-Nation Clause (8) Maritime Safety Regulations (11) Cooperation (6) Mundat Forest Marriages Performed by Latin American Integration Diplomatic and Consular Agents (9) Munich Agreement (1938) (3) Association (6) Martens' Clause (3) Muscat Dhows, The (2) Lausanne Peace Treaty (1923) (3) Namibia Martini Case (2) Law of the Sea (11) Mavrommatis Concessions Cases (2) National Legal Persons in InterLaw of the Sea, History (11) national Law (10) Mayaguez Incident (3) Law of the Sea, Settlement of Nationality (8) Disputes (1) Medical Transportation (9) Nationality Decrees in Tunis and League of Nations (5) Mediterranean Pollution ConMorocco (Advisory Opinion) (2) ventions (9) Legal Assistance between States Natural Law (7) in Administrative Matters (9) Mekong River Natural Resources, Sovereignty Legal Assistance between States Mercenaries (3) over (10) in Civil Matters (9) Merchant Ships (11) Naulilaa Arbitration (Portugal v. Legal Assistance between States Germany) (2) Merchant Ships, Armed (3) in Criminal Matters (9) Naval Demonstration (4) Merge Claim (2) LIAMCO-Libya, Petroleum Naval- Manoeuvres (4) Concessions Arbitration (1977) (8) Methodology of International Law (7) Navigation, Freedom of (11) Liberation Movements (3) Meuse, Diversion of Water Case Navigation on Rivers and Canals Libya-Oil Companies Arbitration (2) (Belgium v. Netherlands) (2) (11) Liechtenstein Micro-St~tes (10) . Negotiation (1) Lighthouses and Lightships (11) Migrant Workers (8) Neighbour States (10) Lighthouses Cases (2) Migration Movements (8) Neuilly Peace Treaty (1919) (4) Liner Conferences (11) Neuilly Peace Treaty Cases (2) Military Aid (8) Literary and Artistic Works, InNeutral Nationals (4) Military Bases on Foreign Terternational Protection (5) ritory (3) Neutral Trading (4) Loans, International (8) Military Forces Abroad (3) Neutrality, Concept and General Local Remedies, Exhaustion of Rules (4) Military Government (3) (1) Neutrality in Air Warfare (4) Military Necessity (3) Locarno Treaties (1925) (7) Neutrality in Land Warfare (4) Military Objectives (3) Lome Conventions (6) Neutrality in Sea Warfare (4) Military Reconnaissance (3) London Agreement on German Neutrality Laws (4) External Debts (1953) (8) Militias (3) Neutralization (4) London Agreement on German Mines (3) External Debts (1953), Arbitral New Hebrides Minimum Standard (8) Tribunal and Mixed Commission New States and International Law Minorities (8) (1) (7) Minorities in Upper Silesia Case London Naval Conference of Niger River Regime (Minority Schools) (2) 1908/1909 (3) Nile River Losinger Dispute (Orders) (2) Minority Schools in Albania Non-Aggression Pacts (4) (Advisory Opinion) (2) Lotus, The (2) Non-Aligned States (9) Minquiers and Ecrehos Case (2) Lubeck, Bay of Non-Binding Agreements (7) Missing and Dead Persons (9) Lump Sum Agreements (8) Non-Governmental Organizations Missionaries (8) Lusitania, The (2) (9)

350 Non-Intervention, Principle of (7) Non-Proliferation Treaty (9) Non-Recognition (10) Non-Self-Governing Territories (to) Nordic Cooperation (6) Nordic Council and Nordic Council of Ministers (6) North American Dredging Co. of Texas Arbitration (2) North Atlantic Coast Fisheries Arbitration (2) North Atlantic Treaty Organization (6) North Sea Continental Shelf Case (2) Northern Cameroons Case (2) Northern Ireland Norwegian Loans Case (2) Norwegian Shipowners' Claims Arbitration (2) Note (9) Note verbale (9) Notification (9) Nottebohm Case (2) Nuclear Energy, Peaceful Use (9) Nuclear-Free Zones (4) Nuclear Research (9) Nuclear Ships (11) Nuclear Tests (4) Nuclear Tests Cases (Australia v. France; New Zealand v. France) (2) Nuclear Warfare and Weapons (4) Nullity in International Law (7) Nuremberg Trials (4) Nyon Agreement (1937) (4) Observers (4) Occupation after Armistice (4) Occupation, Belligerent (4) Occupation, Pacific (4) Oder-Neisse Line Oil Pollution Conventions (11) Onassis Incident (11) OPEC Fund for International Development (5) Open Towns (4) Option of Nationality (8) Ordre public (Public Order) (10) Organisation for Economic C0operation and Development (5) Organisation for Economic Cooperation and Development, Nuclear Energy Agency (5) Organization of African Unity (6) Organization of American States (6) Organization of Arab Petroleum Exporting Countries (6)

LIST OF ARTICLES

Organization of Central American States (6) Organization of Petroleum Exporting Countries (5) Orinoco River Orinoco Steamship Co. Arbitration (2) Ottoman Debt Arbitration (2) Outer Space Treaty (11) Overflight (11) Pacific Islands Pacifism (4) Pacta sunt servanda (7) Pactum de contrahendo, pactum de negotiando (7) Pagani Case (10) Pajzs, Csaky, Esterhazy Case (2) Palestine Palestine Liberation Organization Palmas Island Arbitration (2) Panama Canal Panevezys-Saldutiskis Railway Case (2) Paracel Archipelago Paria, Gulf of Paris Peace Treaty (1856) (7) Parliamentary Assemblies, International (5) Passports (8) Paul Clerget v. Banque commerciale pour I'Europe du nord et Banque du commerce exterieur du Vietnam (10) Peace and War (4) Peace, Historical Movements Towards (4) Peace, Means to Safeguard (4) Peace, Proposals for the Preservation of (4) Peace Settlements after World War II (4) Peace, Threat to (4) Peace Treaties (4) Peace Treaties after World War I (4) Peace Treaties of 1947 (4) Peace Treaty with Japan (1951) (4) Peaceful Change (7) Peaceful Settlement of Disputes (1) Pearl Fisheries (11) Peleus, The (4) Perfidy (4) Permanent Court of Arbitration (1) Permanent Court of International Justice (1)

Permanent Neutrality and Economic Integration (8) Permanent Neutrality of States (4) Persian Gulf Phosphates in Morocco Case (2) Pillage (4) Pinson Claim Arbitration (France v. Mexico) (2) Pious Fund Arbitration (2) Pipelines (9) Piracy (11) Pirate Broadcasting (9) Plant Protectiun, International (9) Plebiscite (8) Pledge of State Territory and Property (10) Plurinational Administrative Institutions (5) Polish Agrarian Reform (Orders) (2) Polish Nationals in Danzig (Advisory Opinion) (2) Polish Postal Service in Danzig (Advisory Opinion) (2) Polish War Vessels in the Port of Danzig (Advisory Opinion) (2) Population, Expulsion and Transfer (8) Ports (11) Positivism (7) Postal Communications, International Regulation (5) Postal Ships (11) Postliminium (4) Potsdam Agreements on Germany (1945) (4) Power Politics (9) Preamble (7) Preferential Claims against Venezuela Arbitration (2) Preliminary Objections (1) Premiums for Reducing Dairy Production Case (E.C. Commission v. Italy) (2) Prescription (10) Prince von Pless Administration (Orders) (2) Prisoners of War (4) Private International Law (10) Privateering (4) Prize Law (4) Procedure of International Courts and Tribunals (1) Proces-verbal (7) Propaganda (9) Property Commissions Established pursuant to Art. 15 (a) of Peace Treaty with Japan of 1951 (1)

LIST OF ARTICLES

Proportionality (7) Protected Persons (8) Protecting Power (9) Protectorates (10) Protest (9) Public Health, International Cooperation (5) Pueblo Incident (11) Pyrenees, French-Spanish Cooperation Quirin, ex parte (4) R. v. Bottrill, ex parte Kiichenmeister (4) Racial and Religious Discrimination (8) Radio Corporation of America v. China Arbitration (2) Radio Orient Arbitration (2) Railway Stations on Foreign Territory (10) Railway Traffic between Lithuania and Poland (Advisory Opinion) (2) Railway Transport, International Regulation (5) Rann of Kutch Arbitration (IndoPakistan Western Boundary) (2) Rapallo Treaty (1922) (4) Rauter Case (4) Reciprocity (7) Recognition (10) Recognition and Execution of Foreign Judgments and Arbitral Awards (9) Recognition of Belligerency (4) Recognition of Foreign Legislative and Administrative Acts (10) Recognition of Insurgency (4) Red Cross (5) Red Crusader Incident (11) Red Sea Refugees (8) Refugees, League of Nations Offices (5) Refugees, United Nations High Commissioner (5) Regional Arrangements and the UN Charter (6) Regional Commissions of the United Nations (6) Regional Cooperation and Organization: African States (6) Regional Cooperation and Organization: American States (6) Regional Cooperation and Organization: Asian States (6) Regional Cooperation and Organization: Pacific Region (6) Regional Cooperation and Organization: Socialist States (6)

Regional Cooperation and Organization: Western Europe (6) Regional Development Banks (6) Regional International Law (7) Reinsurance Treaty between Germany and Russia (1887) (7) Relief Actions (4) Reparation for Injuries Suffered in Service of UN (Advisory Opinion) (2) Reparation for Internationally Wrongful Acts (10) Reparations (4) Reparations after World War II (4) Repatriation (8) Reporting Systems in International Relations (9) Representatives of States in International Relations (10) Reprisals (9) Requisitions (4) Resistance Movements (4) Responsibility of States: Fault and Strict Liability (10) Responsibility of States for Activities of Private Law Persons (10) Responsibility of States: General Principles (10) Restitution (10) Retorsion (9) Revere Copper Arbitral Award (8) Rhine River Rhine- Main- Danube Waterway Rhineland Occupation after World War I (4) Rhodesia / Zimbabwe Right of Passage over Indian Territory Case (2) River Bridges (10) River Deltas (10) Rockall Rose Mary, The (8) Russian Indemnity Arbitration (1912) (2) Rutili Case (2) Saar Territory Saavedra Lamas Treaty (1933) (1) Sabbatino Case (10) Safe-Conduct and Safe Passage (4) Safety Zones (4) Sahara Saint-Germain Peace Treaty (1919) (4) St. Lawrence Seaway Sale of Goods, Uniform Laws (8)

351 Salem Case (2) Salvage of Ships (11) San Marino Sanctions (9) Sapphire Arbitration (2) Satellite Broadcasting (11) Satisfaction (10) Savarkar Case (2) Scheidt River Schiffahrt-Treuhand v. Procurator General (4) Schtraks v. Government of Israel (8) Sea-Bed and Subsoil (11) Sea Fisheries Restrictions Case (E.C. Commission v. Ireland) (2) Sea Lanes (11) Sea Warfare (4) Seal Fisheries (11) Secession (10) Sei Fujii v. California (7) Self-Defence (4) Self-Determination (8) Self-Executing Treaty Provisions (7) Self-Help (4) Self-Preservation (4) Sequestration (4) Serbian Loans Case (2) Servitudes (10) Sex Discrimination (8) Ships, Diverting and Ordering into Port (4) Ships in Distress (11) Ships, Nationality and Status (11) Ships, Visit and Search (4) Shufeldt Claim (2) Sidra, Gulf of Siege (4) Sikkim Singapore Oil Stocks Case (4) Slavery (8) Social Security, International Aspects (9) Socialist Conceptions of International Law (7) Socialist Internationalism (9) Societe Commerciale de Belgique Case (2) Societe Levant Express Transport v. Chemins de fer du gouvernement iranien (10) Sociology of International Law (9) Sources of International Law (7) South African Bantustan Policy (10) South-East Asia Treatv Organization (6) . South Pacific Commission (6) South Tyrol

352

LIST OF ARTICLES Tehran Conference (1943) (4)

Trianon Peace Treaty (1920) (4)

(Advisory Opinions and Judgments) ( 2)

Telecommunications, International Regulation (9)

Trieste

Sover eignty (10)

Temple of Preah Vihear Case (2)

Sove reignty o ver Ai rspace ( 11)

Territorial Integrity and Political

Sovereignty over Ce rtain Frontier Land Case (Belgium / Nctherlands) (2) Soviet Republics in International Law ( 10) Space Activities, Responsibility and Liabilit y for ( 11) Space Law ( 11) Spacecraft . Satellites and Space Objects ( 11) Spain: Dependent Territories Spanish Civil War (7) Spanish Zone of Morocco Claims (2) Special Missions (9 ) Sphe res of Influence (9 ) Spitzbergen /Svalbard Sport , International Legal Aspects (9) Spratly Archipelago Standing before International Courts and Tribunals (1) State (10) Slate Aircraft (II) Slate Debts (8) State Deb ts. Int e rnat ional Ad-

Independence ( 10) Territorial Sea ( 11) Territorial Sovereignty ( 10) Territory. Abandonment (10) Territory, Acquisition ( 10) Territory , Discovery (10) Territory, Lea se ( 10) Terrorism (9) Tibet Timor Island Arbitration (2) Tinoco Concessions Arbitration (2) Tokyo Trial (4) Torres Strait Torrey Canyon , The (11 ) Torture (8) Tourism (9) Trading with the Enemy (4)

South West Africa /Namibia

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I unda ruc ntal R ights a nd

Dull.s ( lU ) States. Sovereign Eq ua lity ( to) Sta tu s q uo (7)

Stimso n Doctrin e (4) Stra its ( I I) Strate gic Are as (5) Strategic Arm s Limitation Talks (SA LT ) (9) Subjects of Interna tional Law (7) Submarine Warfare (4 ) Submarines ( 11) Suez Canal Supr anational Organizations (5) Surrender (4) Suspension of Hostilities (4) Taft Arbitration Treaties (1911) (I) T aiwan

Taxation, International (8) Technology Transfer (8)

Ultim atu m (4) Unequal Treaties (7) Unfriendly Act P) Un ificat ion and Harmon ization of Laws (10) Unilate ral Acts in International Law (7)

Un ited A rab E mi ra tes United Kingdo m of G reat Brit ain and Nort hern Ireland : Dependent Territories Unite d Nations (5) Unit ed Nations Administrative Tribunal (5) United Nation s Charter (5) United Nations Children's Fun d ( 5) United Nations Commission on Hum an Sett lements (5) United Nations Commission on International Tr ade Law (5) United Nations Conference on Trade and Development (5) Traffic and Transport, InterUnited Nations Development national Regulation (5) Programme (5) Traffic in Persons (8) United Nations Economic and Trail Smelter Arbitration (2) Social Council (5 ) Transfrontier Cooperation Uni ted Nations Educational , between Local or Regional Scientific and Cultural OrganizaAuthoriti es (6) tion (5) Tr a nsfro ntier Pollution (9 ) Unit ed Nations Educational . lra nsit of Goods over Foreign Scientific and Cultural OrganizeIt" 1110(\ ( 10) tion , Ar bitr al Award on the In-, ';1 n:..J l Enterprises (8) terpretation of the Co nstitution ',: ! of ( 2) t:~ uclusion and Entry United Nations Environment t ". .) Programme (5) I [ ,- ,t I IC". "cnff icts between (7) United Nation s Forces (4) 'I .ies, Effect of Territorial United Nations Gener al Ct. cnges (7) Assembl y (5) Treaties. Effect on Third States (7) United Nations Industrial Developm ent Organ izat ion (5) Treaties . Multilateral (7) United Nations Institute for Treaties of Friend ship . Co mTraining an,d Research (5) me rce and Navigat ion (7) United Nat ions Peacek eeping Treaties, Registration and PubSystem (4) lication (7) United Nation s Relief and Treaties. Reservations (7 ) Rehabilitation Activities (5) Treaties, Revision (7 ) United Nations Relief and Work s Treaties, Secret (7) Agen cy for Palestine Refu gees in Treaties. Termination (7) the Near East (8) Treaties, Territorial Application V'oited Nation s Secretary (7) General (5) Treaties. Validity (7) United Nati ons Security Council Treaty for Amazonian Coopera(5) tion (6) United Nations, Specialized Trendtex Trading Corp. v. CenAgencies (5) tral Bank of Nigeria (10) United Nations Trusteeship Trial of Pakistani Prisoners of System (5) War Case (2)

LIST OF ARTICLES

United Nations University (5) United States: Dependent Territories United States Diplomatic and Consular Staff in Tehran Case (2) United States-Iran Agreement of January 19, 1981 (Hostages and Financial Arrangements) (8) United States Nationals in Morocco Case (2) United States v. California (Monterey Bay Case) (11) Uniting for Peace Resolution (5) Universal Postal Union (5) University for Peace (5) Unjust Enrichment (9) Use of Force (4) Uti possidetis Doctrine (10) Van Gend en Loos Case (2) Verification of Facts (9) Versailles Peace Treaty (1919) (4) Veto (5) Vienna Congress (1815) (7) Vienna Convention on Consular Relations (1963) (9) Vienna Convention on Diplomatic Relations (1961) (9) Vienna Convention on Succession of States in Respect of State Property, Archives lind Debts (10) Vienna Convention on Succession of States in Respect of Treaties (10) Vienna Convention on the Law of Treaties (7)

Vienna Convention on the Representation of States in Their Relations with International Organizations of a Universal Character (5) Vietnam Vital Interests (10) Vitianu Case (9) Voting Rules in International Conferences and Organizations (5) Waiver (7) Wal Wal Arbitration (2) Walvis Bay War (4) War and Environment (4) War Correspondent (4) War Crimes (4) War Damages (4) War, Effect on Contracts (4) War, Effect on Treaties (4) War Graves (4) War, Laws of (4) War, Laws, of, Enforcement (4) War, Lei ,'!<; of, History (4) War Materials (4) War, Ruses (4) War, Theatre of (4) War, Use of Propaganda in (4) War Zones (4) Warfare, Methods and Means (4) Waming Zones at Sea (11) Wars of National Liberation (4) Warsaw Treaty Organization (6) Warships (4) Waste Disposal (9)

353 Water, Internationa. Regulation of the Use of (9) Weapons, Prohibited (4) Weather Modification (11) Weighted Voting (5) Western European Customs Union (6) Western European Union (6) Western Sahara (Advisory Opinion) (2) Westphalia, Peace of (1648) (7) Whaling Regime (11) Wildlife Protection (9) Wilson v. Girard (4) Wilson's Fourteen Points (7) Wimbledon, The (2) World Bank Administrative Tribunal (5) World Food Council (5) World Food Programme (UN/FAO) (5) World Health Organization (5) World Intellectual Property Organization (5) World Meteorological Organization (5) World Population (8) World Trade, Principles (8) Wounded, Sick and Shipwrecked (4) Yalta Conference (1945) (4) Young Plan (4) Young Plan Loans Arbitration (2) Zeiss Cases (10) Zollverein (German Customs Union) (7)