THE LAW OF THE SEA

Grotius in his work Marem Liberum: states were to enjoy a full sovereignty over
those waters proximate to their coasts, whereas in those waters beyond, where
trade and navigation issues assumed a greater significance than issues of
security and control, the principle of the freedom of the sea

A. DEVELOPMENT OF THE MODERN LAW OF THE SEA

Large extent codified by UNCLOS 1 at Geneva in 1958 which drew up 4
Conventions
o Convention on the Territorial Sea and the Contiguous Zone
(46 states ratified)
o The Convention on the High Seas (57)
o Convention on Fishing and Conservation of the Living
Resources of the High Seas (36)
o Convention on the Continental shelf (54)
Most of the provisions of the first 2 conventions and some of
the provisions of the 4th one codified customary law.
therefore, although the conventions are only binding on
states which are parties to them, many of their provisions can
be used as evidence of customary law even against states
which are not parties.
Failed to reach agreement on: the width of the territorial
sea failed in UNCLOS 2 too.
Technological advances in seabed exploitation, concerns for
management of coastal fisheries, marine pollution and fresh
ideas- created a need for new rules.
UNCLOS 3 in 1973
o Met intermittently for 9 years (with 144 states and 8 specialized
agencies)
o Adopted the text of the United Nations Convention on the Law
of the Sea 1982.
o Why it took so long: package deal of rights and obligations to
which no reservations may be made
tried to take decisions by consensus rather by majority votes.
Thats why while ratification signifies acceptance of its
provisions, this may mask a lack of consensus and
inconsistent state practice on specific issues
o UNCLOS adopted in 1982 by 130 votes to 4, with 17 abstentions
o Article 308(1) enter into force 12 months after the date of deposit of
the 60th instrument of ratification/accession
Many western states refused to sign/ratify: dissatisfied with
provisions concerning exploitation of the deep sea bed.
UN Secretary General initiated consultations among these
statesresult= Agreement Relating to the
Implementation of Part XI of the Convention which
modified the deep seabed mining regime found
acceptance.

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 o 1982 Convention
Some provisions codify customary int law
But many represent a departure fr the pre-existing customary
in law.
UNCLOS has been effective over the past 30 years of drafting,
ratification and implementation in stimulating normative
state practice on the law of the sea and int tribunals have
frequently recognised the customary law status of certain
UNCLOS provisions.
Hence, even where states are not parties to UNCLOS, the
convention articulates many of the customary rules
applicable to maritime areas. UNCLOS-either a source of
rights for parties or evidence of them for non-parties
Article 311(1): among the states parties to it, the
Convention will prevail over the four 1958 Conventions.
Almost all of the provisions of these older Conventions
are either repeated, modified or replaced by the 1982
one.

B. MARITIME ZONES
1) Baselines
UNCLOS, Art 5: Except where otherwise provided in this Convention,
the normal baseline for measuring the breadth of the territorial sea is the
low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State.
Cf: Anglo-Norwegian Fisheries Case [1951] ICJ
o Norways claim to territorial sea was drawn not from the low water
line but from a series of artificial lines linking the outermost points
of the fringe of rocks and islands that lay off the Norwegian coast.
o ICJ: accepted the inconvenience of using low water mark as the
baseline in such geographically complicated circs and accepted the
straight baseline method under such circs
UNCLOS, Art 7 Straight baselines- reflects findings in Fisheries
case-customary law
(1) 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, the
method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the
territorial sea is measured.
(3) The drawing of straight baselines must not depart to any appreciable
extent from the general direction of the coast, and the sea areas lying
within the lines must be sufficiently closely linked to the land domain to
be subject to the regime of internal waters.
(5) Where the method of straight baselines is applicable under paragraph
1, account may be taken, in determining particular baselines, of
economic interests peculiar to the region concerned, the reality and the
importance of which are clearly evidenced by long usage.
Cf Qatar v Bahrain (ICJ, 2001)

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 o Straight baseline method can only be used if these conditions are
met: either the coast line is deeply indented and cut into, or that
there is a fringe of islands along the coast in its immediate vicinity.
o The fact that a State considers itself a multiple island State or a de
facto archipelagic State does not allow it to deviate from the normal
rules for the determination of baselines unless the relevant
conditions are met.

2) Internal waters
UNCLOS, Art 8:
(1) Except as provided in Part IV, waters on the landward side of the
baseline of the territorial sea form part of the internal waters of the
State.
(2) Where the establishment of a straight baseline in accordance with the
method set forth in Article 7 has the effect of enclosing as internal
waters areas which had not previously been considered as such, a right
of innocent passage as provided in this Convention shall exist in those
waters.
No right of innocent passage through internal waters
Coastal State has the right to regulate access to its ports: UNCLOS, Arts
25(2), 211(3), 255.
o (Cf. Saudi Arabia v Aramco ((1963) 27 ILR): the ports of every
state must open to foreign vessels and can only be closed when the
vital interests of the state so require
o In support, see OConnell: unsure if Aramco meant that ports must
open to trades or that int law forbids discrimination among foreign
ships using ports- If a country chooses to close its ports altogether
that would seem to be an act of sovereignty, but if it opens them, it
must open them arguably to all-comers, on a non-
discriminatory basis: OConnell, The International Law of the Sea
(1984) vol II, p 848);
o Nicaragua [1986]: by virtue of its sovereignty, a coastal state may
regulate access to its ports- may make entry to their ports/internal
waters subject to compliance with requirements for the control of
pollution of the marine environment
Coastal State has unlimited prescriptive and enforcement jurisdiction in
the internal waters
But they usually leave jurisdiction over criminal acts taking place on
foreign ships in internal waters to the flag State of the ship concerned,
unless the act disturbs the public peace of the coastal State
o R v Anderson (1868) Facts: D= US national- found guilty of
manslaughter on board a British ship. The offence was committed in
Frances territorial waters. D argued that the British Court had no
jurisdiction to try him.
D was subject to the American jurisprudence as an American
citizen, and to the law of France for committing the crime
within its territory and also to jurisdiction of British law, which
extends to the protection of British vessels.

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 France will not assert their police law unless invoked by the
master of the vessel or that the offence leads to the
disturbance of the peace of the port.
o Wildenhuss Case, 120 US 1 (1887) Facts: W=Belgian crew
member of a Belgian ship- guilty by US court for murder of another
Belgian crew on board when docked in the US port. Argued that US
lacked jurisdiction.
Principle: Disorders which disturb only the peace of the ship
are to be dealt with exclusively by the flag ship. But those
which disturb the public peace may be suppressed or
punished by authorities of the local jurisdiction.
Adopts the common law view as to a coastal states
enforcement jurisdiction over crimes committed by foreign
ships in int water, ie coastal state may in law exercise
jurisdiction in all criminal matters but that as a matter of
comity it should not do so unless the crime disturbs its peace
of tranquillity. The civil view is that this is a limitation of int
law, not of comity. It would appear that the coastal states
enforcement jurisdiction in civil matters is unrestricted
Archipelagos and archipelagic States are covered by Part IV of UNCLOS
o Art 8(1): Except as provided in Part IV, waters on the landward
side of the baseline of the territorial sea form part of the internal
waters of the State.
o Examples of archipelagic States include Indonesia and the
Philippines
UNCLOS, Art 47:
(1) An archipelagic State may draw straight archipelagic baselines joining
the outermost points of the outermost islands and drying reefs of the
archipelago provided that within such baselines are included the main
islands and an area in which the ratio of the area of the water to the
area of the land, including atolls, is between 1 to 1 and 9 to 1.
(2) The length of such 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.
(3) The drawing of such baselines shall not depart to any appreciable
extent from the general configuration of the archipelago.
UNCLOS, Art 48: The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47.
UNCLOS, Art 50: Within its archipelagic waters, the archipelagic State
may draw closing lines for the delimitation of internal waters, in
accordance with articles 9, 10 and 11.
Rivers UNCLOS, Art 9: If a river flows directly into the sea, the baseline
shall be a straight line across the mouth of the river between points on the
low-water line of its banks.
Bays UNCLOS, Art 10(2): A bay is a well-marked indentation whose
penetration is in such proportion to the width of its mouth as to contain

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 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.
UNCLOS, Art 10(4): i]f the distance between the low-water marks 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 thereby shall be considered as internal waters.
UNCLOS, Art 10(5): Where the distance exceeds 24 nautical miles, a
straight baseline of 24 nautical miles shall be drawn within the bay in such
a manner as to enclose the maximum area of water that is possible with a
line of that length.
Bays belonging to more than 1 State:
o Not covered by UNCLOS
o The territorial waters should simply follow the sinuosities of the
coast, subject to any special agreement. (author: Colombos)
o Eg: Gulf of Aqaba in the Red Sea which is bordered by Egypt, Israel,
Jordan and Saudi Arabia
Historic bays:
o Not covered by UNCLOS
o Tunisia/Libya (1982) ICJ: Historic bays must enjoy respect and be
preserved as they always have been by long usage:
International law does not provide a single regime for historic
bays but only for a particular regime for each of the
recognised cases of history bays.
Hence, for historic bays, there does not appear to be any
maximum length for a closing line; a line of any length may
be accepted by other states
o Study by the UN Secretariat in 1962: under customary int law,
a state may validly claim title to a bay on historic grounds if it can
show that it has for a considerable period of time claimed the bay
as internal waters and effectively exercised its authority therein,
and that during this time the claim has received the acquiescence
of other states.
o Gulf of Fonseca: ICJ held that it is a historic bay held in
sovereignty jointly by El Salvador, Honduras and Nicaragua, but
excluding the existing 3-mile belt held under the exclusive
sovereignty of each state. The Bay, including the 3-mile belt, was
found to continue to be subject to the right of innocent passage
o Gulf of Sirte: Libya claimed that it is a historic bay. The period
since 1973 does not constitute a considerable period of time and
Libyas claim was not recognised by other states. Therefore, the US
was entitled to treat the Gulf as high seas and to hold naval
manoeuvres
UNCLOS, Art 11: For the purpose of delimiting the territorial sea, the
outermost permanent harbour works which form an integral part of the
harbour system are regarded as forming part of the coast.

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3) Territorial Sea
For many years, no agreement on the breadth of the territorial sea (3
200 nautical miles)
UNCLOS, Art 3: Every State has the right to establish the breadth of its
territorial sea up to a limit not exceeding 12 nautical miles, measured from
baselines determined in accordance with this Convention.
Still quite diverse practice in 2002
If States are opposite or adjacent to each other: UNCLOS, Art 15:
o Where the coasts of 2 States are opposite or adjacent to each other,
neither of the 2 States is entitled, failing agreement between them
to the contrary, 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 seas of each of
the two States is measured.
o This does not apply where it is necessary by reason of historic title
or other special circumstances to delimit the territorial seas of the
two States in a way which is at variance therewith.
Right of innocent passage UNCLOS, Art 17: Subject to this Convention,
ships of all States, whether coastal or land-locked, enjoy the right of
innocent passage through the territorial sea.
What is innocent passage? UNCLOS, Art 19(1): Passage is innocent so
long as it is not prejudicial to the peace, good order or security of the
coastal State. Such passage shall take place in conformity with this
Convention and with other rules of international law
Art 19(2) Passage of a foreign ship shall be considered to be prejudicial to
the peace, good order or security of the coastal State if in the territorial
sea it engages in any of the following activities:
a) any threat or use of force
b) any exercise or practice with weapons of any kind;
c) any act aimed at collecting information to the prejudice of the security
of the coastal State;
d) any act of propaganda aimed at affecting the defence or security of the
coastal State;
e) the launching, landing or taking on board of any aircraft;
f) the launching, landing or taking on board of any military device;
g) the loading or unloading of [anything] contrary to the customs, fiscal,
immigration or sanitary laws and regulations of the coastal State;
h) any act of wilful and serious pollution contrary to this Convention;
i) any fishing activities;
j) the carrying out of research or survey activities;
k) any act aimed at interfering with any systems of communication or any
other facilities or installations of the coastal State;
l) any other activity not having a direct bearing on passage.
Does it cover warships, or merely merchant ships?
US-USSR Joint Declaration- yes, includes warships, regardless of
cargo, armament or means of propulsion
A coastal state which questions whether the ship is innocent
shall inform the ship of the reason why it questions the
innocence of the passage, and provide the ship an opportunity to

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 clarify its intention/correct its conduct in a reasonably shot time.
If not, coastal state may require it to leave its territorial sea
according to Art 30.
Wording of UNCLOSjust refers to ships and all submarines to
navigate on the surface
Contrary State practice
Corfu Channel case (1948)- warships have a right of innocent
passage through international straits in the territorial sea but did
not consider their position beyond that
USSR position is not shared by over 40 coastal states which have
national legislation and declarations which presently claim a
right to control entry of warships into their territorial seas by
means of prior notification, or limitations on number of warships
present at any one time.
UNCLOS, Art 21 Coastal State may adopt laws and regulations re innocent
passage, e.g.:
the safety of navigation and the regulation of maritime traffic;
the protection of navigational aids and facilities and other facilities or
installations;
the protection of cables and pipelines; and
the conservation of the living resources of the sea, etc.
If the coastal State suspects non-innocent passage, UNCLOS, Art 25(1):
The coastal State may take the necessary steps in its territorial sea to
prevent passage which is not innocent.
And UNCLOS, Art 25(3): The coastal State may, without discrimination in
form or in fact among foreign ships, suspend temporarily in specified areas of
its territorial sea the innocent passage of foreign ships if such suspension is
essential for the protection of its security, including weapons exercises. Such
suspension shall take effect only after having been duly published.
UNCLOS, Art 27 (Criminal jurisdiction):
(1) The criminal jurisdiction of the coastal State should not be exercised on
board a foreign ship passing through the territorial sea to arrest any person or
to conduct any investigation in connection with any crime committed on
board the ship during its passage, save only in the following cases:
a) if the consequences of the crime extend to the coastal State;
b) if the crime is of a kind to disturb the peace of the country or the good
order of the territorial sea;
c) if the assistance of the local authorities has been requested by the master
of the ship or by a diplomatic agent or consular officer of the flag State; or
d) if such measures are necessary for the suppression of illicit traffic in
narcotic drugs or psychotropic substances.
UNCLOS, Art 28(1) Civil jurisdiction: The coastal State should not stop or
divert a foreign ship passing through the territorial sea for the purpose of
exercising civil jurisdiction in relation to a person on board the ship.
Common law view: since the territorial sea is a sovereign territory,
coastal states have a unlimited power to legislate on civil and criminal
law matters for all ships that venture therein, although as a matter of
comity they will exercise self-restraint

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 Civil law view: for jurisdictional purposes, a ship is the territory of the
flag state- coastal states have only such prescriptive jurisdiction as
states generally agree, and that agreement exists only in respect of
matters that are of their nature related to passage. Since it lists only
such matters, it might be inferred from the text of Art 21 that it favours
the civil law view so that, for eg, a coastal state may legislate to
prevent dangerous navigation by a ship in innocent passage, but not
the murder of crew members on board

Straits
Designation as an international strait does not affect legal status of the
waters (UNCLOS, Art 34)
UNCLOS, Art 37: international straits are used for international navigation
between one part of the high seas or an exclusive economic zone and another
part of the high seas or an exclusive economic zone.
UNCLOS, Art 38:
(1) In straits all ships and aircraft enjoy the right of transit passage,
which shall not be impeded
(2) Transit passage means the exercise of the 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 and another part of the high seas or an exclusive
economic zone.
But (Art 38(1)): if the strait is formed by an island of a State bordering
the strait and its mainland, transit passage shall not apply if there
exists seaward of the island a route through the high seas or through
an exclusive economic zone of similar convenience with respect to
navigational and hydrographical characteristics
Art 39: Duties on vessels when exercising right of transit:
(a) To proceed without delay through or over the strait;
(b) To refrain from any threat or use of force against the sovereignty,
territorial integrity or political independence of States bordering the
strait, or in any other manner in violation of the principles of
international law embodied in the Charter of the United Nations;
(c) To refrain from any activities other than those incident to their
normal modes of continuous and expeditious transit unless rendered
necessary by force majeure or by distress.
Art 45: the right of innocent passage also applies in international straits, and
this right cannot be suspended (e.g., Strait of Tiran in Red Sea)

4) Contiguous Zone
UNCLOS, Art 33 Coastal State may exercise control necessary to
prevent infringement of its customs, fiscal, immigration or sanitary laws,
and to punish infringements of the above laws committed within the
territorial sea
May not extend more than 24 nautical miles from the baseline
prevent- suggests that a state might stop a vessel fr entering its waters
when it has reason to believe that such an offence would be committed.

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5) Continental shelf
Article77: Rights of the coastal State over the continental shelf
(1) The coastal State exercises over the continental shelf sovereign rights
for the purpose of exploring it and exploiting its natural resources.
(2) The rights referred to in paragraph 1 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 without the
express consent of the coastal State.
(3) The rights of the coastal State over the continental shelf do not depend
on occupation, effective or notional, or on any express proclamation.
(4) The natural resources referred to in this Part consist of the mineral and
other non-living resources of the seabed and subsoil together with
living organisms belonging to 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 77 reflects position in North Sea Continental Shelf [1969] ICJ:
continental shelf= natural prolongation of its land territory into and under
the seainherent right of coastal state by virtue of its sovereignty over
the land, and as an extension of it in an exercise of sovereign rights for the
purpose of exploring the seabed and exploiting its natural resources.
Extent of the continental shelf: UNCLOS, Art 76(1):
o (1) the seabed and subsoil 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 baseline
o (3) the continental margin comprises the submerged
prolongation of the land mass of the coastal State, and consists of
the seabed and subsoil of the shelf, the slope and the rise. It does
not include the deep ocean floor with its oceanic ridges or the
subsoil thereof.
o (5) the maximum you can extend a continental shelf is 350 nautical
miles, or 100 miles seawards of the 2500m isobath.

6) Exclusive Economic Zone

UNCLOS, Art 55: an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which
the rights and jurisdiction of the coastal State and the rights and freedoms
of other States are governed by the relevant provisions of this Convention.
UNCLOS, Art 57: States can claim an EEZ of up to 200 nautical miles
UNCLOS, Art 56: In the EEZ, Coastal States have sovereign rights for
the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters superjacent
to the seabed and of the seabed and its subsoil ...

7) High Seas
UNCLOS, Art 86: The provisions of this Part (the High Seas) apply to all
parts of the sea that are not included in the exclusive economic zone, in

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 the territorial sea or in the internal waters of a State, or in the archipelagic
waters of an archipelagic State. This article does not entail any
abridgement of the freedoms enjoyed by all States in the exclusive
economic zone in accordance with article 58

i) Freedom of the High Seas

UNCLOS, Art 87(1): The high seas are open to all States, whether coastal
or land-locked. Freedom of the high seas is exercised under the conditions
laid down by this Convention and by other rules of international law.
The freedom of the high seas comprises, inter alia:
o a) freedom of navigation
o b) freedom of overflight;
o c) freedom to lay submarine cables and pipelines, subject to Part VI
(the Continental Shelf);
o d) freedom to construct artificial islands and other installations
permitted under international law, subject to Part VI (the
Continental Shelf);
o e) freedom of fishing, subject to the conditions laid down in section
2;
o f) freedom of scientific research, subject to Parts VI (the Continental
Shelf) and XIII (Marine Scientific Research).
UNCLOS, Art 87 is not an exhaustive list
o E.g., weapons testing, exercises, naval manoeuvres, observing
other States naval manoeuvres
UNCLOS, Art 88: The high seas shall be reserved for peaceful purposes.
o What about nuclear weapons testing? Unclear but several regional
agreements such as the Treaty of Rarotonga establishing a South
Pacific Nuclear Free Zone and the Treaty on the Southeast Asia
Nuclear Weapon Free zone are evidence of a custom prohibiting
nuclear testing, at least within these regions.
UNCLOS, Art 89: No State may validly purport to subject any part of the
high seas to its sovereignty

ii) Nationality of ships

UNCLOS, Art 90: Every State, whether coastal or land-locked, has the
right to sail ships flying its flag on the high seas.
UNCLOS, Art 91:
o 1. Every State shall fix the conditions for the grant of its nationality
to ships, for the registration of ships in its territory, and for the right
to fly its flag. Ships have the nationality of the State whose flag they
are entitled to fly. There must exist a genuine link between the
State and the ship.
o 2. Every State shall issue to ships to which it has granted the right
to fly its flag documents to that effect
NB the genuine link requirement
There are several notorious open registry States, or flags of
convenience (e.g., Liberia, Panama)
o Concerns about this practice, abuse of concept of nationality, etc

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 UN Convention on Conditions for the Registration of Ships (1986):
States parties must have a competent and adequate national maritime
administration which has to ensure that ships flying its flag comply with
international rules concerning the safety of ships and marine pollution
(Art 1).
o States parties must include in their registry of shipping:
information identifying those owning and managing its ships
and hence accountable for them (Art 6);
ensure that its nationals participate to a required degree in
either the ownership or the manning of its ships (Arts 8 and
9); and
ensure that those responsible for the management of its
ships are able to meet operational financial obligations (Art
10).
M/V Saiga
o Facts: Owned by a Cypriot company, managed by a Scottish
company, chartered to a Swiss company- Master and crew of the
Saiga were all Ukrainian- Previously been registered as a Maltese
vessel- 6 month certificate of provisional registration as a St Vincent
and Grenadines registered ship expired on 12 September 1997; a
permanent certificate was not issued until 28 November 1997 -
arrested by the Guinean coast guard outside the Guinean EEZ What
was the nationality of the Saiga?
o Saint Vincent and the Grenadines argued that it was SVG:
inscription Kingstown as the port of registry on the stern of
the vessel;
documents on board;
ships seal which contained the words Saiga Kingstown; and
the then current charter-party which recorded the flag of the
vessel as SVG.
Also conduct of SVG
o Was there a genuine link for the purposes of Article 91(1)?
ITLOS: the purpose of the requirement was to secure more
effective implementation of the duties of the flag State and
not to establish criteria by reference to which the validity of
the registration of ships in a flag State may be challenged by
other States.

iii) Jurisdiction on the High Seas

UNCLOS, Art 92(1): Ships shall sail under the flag of one State only and,
save in exceptional cases expressly provided for in international treaties or
in this Convention, shall be subject to its exclusive jurisdiction on the high
seas. (Lotus case- customary law) A ship may not change its flag during a
voyage or while in a port of call, save in the case of a real transfer of
ownership or change of registry.
UNCLOS, Art 94(1): Every State shall effectively exercise its jurisdiction
and control in administrative, technical and social matters over ships
flying its flag.

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 but see UNCLOS, Art 110: 1. A warship which encounters on the high
seas a foreign ship (other than a ship entitled to immunity) is not justified
in boarding it unless there is reasonable ground for suspecting that:
o a) the ship is engaged in piracy;
o b) the ship is engaged in the slave trade;
o c) the ship is engaged in unauthorized broadcasting and the flag
State of the warship has jurisdiction under article 109;
o d) the ship is without nationality; or
o e) though flying a foreign flag or refusing to show its flag, the ship
is, in reality, of the same nationality as the warship.

iv) Jurisdiction over international crimes on the high seas

Art 99: Every State shall take effective measures to prevent + punish the
transport of slaves
Art 100 All States shall cooperate to the fullest possible extent in the
repression of piracy on the high seas (piracy defined in Article 101)
Art 105 On the high seas, or in any other place outside the jurisdiction
of any State, every State may seize a pirate ship or aircraft, or a ship or
aircraft taken by piracy and under the control of pirates, and arrest the
persons and seize the property on board.

v) Deep seabed
UNCLOS, Art 1(1): the Area is the sea bed and ocean floor and subsoil
thereof beyond the limits of national jurisdiction.
Art 136 the Area and its resources are the common heritage of
mankind
Art 137 No State shall claim or exercise sovereignty or sovereign rights
over any part of the Area or its resources, nor shall any State or natural or
juridical person appropriate any part thereof.

C. DELIMITATION OF MARITIME BOUNDARIES

Delimitation of the continental shelf and EEZ mixture of UNCLOS and
customary international law
Art 74 (re the EEZ):
o 1. The delimitation of the EEZ between States with opposite or
adjacent coasts 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.
o 2. If no agreement can be reached within a reasonable period of
time, the States concerned shall resort to the procedures provided
for in Part XV.
Art 83 (re the continental shelf):
o 1. The delimitation of the continental shelf between States with
opposite or adjacent coasts 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.

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 o 2. If no agreement can be reached within a reasonable period of
time, the States concerned shall resort to the procedures provided
for in Part XV (settlement of disputes)
North Sea Continental Shelf cases [1969]
o the delimitation was to be effected: in accordance with equitable
principles, and taking account of 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 seas, without encroachment
on the natural prolongation of the land territory of each other.
o And negotiations on the delimitation should take into account the
following considerations:
1. the general configuration of the coasts of the Parties, as
well as the presence of any special or unusual features;
2. so far as known or readily ascertainable, the physical and
geological structure, and natural resources, of the continental
shelf areas involved;
3. the element of a reasonable degree of proportionality,
which a delimitation carried out in accordance with equitable
principles ought to bring about between the extent of the
continental shelf areas appertaining to the coastal State and
the length of its Coast measured in the general direction of
the coastline, account being taken for this purpose of the
effects, actual or prospective, of any other continental shelf
delimitations between adjacent States in the same region.
Achieving an equitable solution
o UNCLOS, Art 74(1), and Art 83(1) adopt the idea of an equitable
solution when delimiting the EEZ / continental shelf
What is an equitable solution?
o The formula avoids mentioning equidistance, equitable principles,
special or relevant circumstances and is virtually devoid of
content. (Malcolm Evans, The Law of the Sea, in Malcolm Evans
(ed), International Law (2nd ed, 2006))
o there has to be room for differences of opinion about the
interpretation of articles which, in a last minute endeavour at the
Third United Nations Conference on the Law of the Sea to get
agreement on a very controversial matter, were consciously
designed to decide as little as possible. It is clear, however, that
both Articles 74(1) and 83(1) envisage an equitable result.
(Eritrea/Yemen, Second Phase: Maritime Boundary, Award of 17
December 1999, para 116)
Others are equally sceptical:
o What is disturbing about the equitable principles to produce
equitable results formula is not that that there are choices being
made to achieve a result but that the result is nowhere articulated
other than the self-serving description of equitable. (Dame
Rosalyn Higgins, Problems and Process International Law and How
we Use it (1993) 227.)

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 o The doctrine of the equitable result if allowed its head, leads
straight into pure judicial discretion and a decision based upon
nothing more than the courts subjective appreciation of what
appears to be a fair compromise of the claims of either side. (Sir
Robert Jennings, Equity and Equidistance Principles (1986)
Annuare suisse de droit international 27, 31
o Relation to Art 38(2) of the ICJ Statute? (This provision shall not
prejudice the power of the Court to decide a case ex aequo et bono,
if the parties agree thereto.)
How international tribunals apply this rule:
o Maritime Delimitation in the Area between Greenland and
Jan Mayen [1993] ICJ:
Prima facie: a median line delimitation between opposite
coasts equitable solution
BUT there are situations - in which the relationship between
the length of the relevant coasts and the maritime areas
generated by them by application of the equidistance
method, is so disproportionate that it is necessary to take this
circumstance into account in order to ensure an equitable
solution
o Eritrea/Yemen, Maritime Delimitation: Second Phase, Award
of 17 December 1999: Equidistance line normally provides an
equitable boundary in accordance with the reqs of the Convention
and those of Articles 74 and 83
o Land and Maritime Boundary between Cameroon and
Nigeria [2002] ICJ= method is very similar to the equidistance
method applicable in delimitation of the limitation of the territorial
sea:
First: draw an equidistance line
Second: consider whether there are factors calling for the
adjustment or the shifting of the line in order to achieve an
equitable result.
What factors/relevant circs can be taken into account
o No limit-North Sea Continental Shelf [1969] ICJ. They may
include:
Configuration of the coast (North Sea Continental Shelf
cases);
Presence of islands capable of generating claims to a
continental shelf or EEZ (small islands may be given less
effect, e.g., Scilly Isles in the Anglo-French Continental Shelf
case);
Ensuring that areas appertaining to each State are not
disproportionate to the ratio between the lengths of their
relevant coasts adjoining the area;
Prior conduct of the parties;
Security considerations;
Geological factors are not considered relevant where the
distance between the coasts is less than 400nm;

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 Economic factors are generally not considered to be relevant
Maritime Delimitation in the Black Sea (Romania v Ukraine)
Facts:
Treaty between USSR and Romania of 1949 delimited a 12nm territorial
sea around Serpents Island
Treaty between Romania and Ukraine on the RomanianUkrainian State
Border Rgime, Collaboration and Mutual Assistance on Border Matters
(2003) delimited land boundary and the territorial sea
No agreement on the continental shelf or EEZ
ICJ considered:
The lengths of the respective coastlines of the two States: Romanias was
248km, and the Ukraines was 705 km
The size of the maritime area of each State (although it confirmed that the
purpose of delimitation is not to apportion equal shares of the area, and
the calculation of the relevant area does not purport to be precise and is
approximate)
ICJs methodology:
1. Draw an equidistance line;
2. consider whether there are factors calling for the adjustment or shifting of the
provisional equidistance line in order to achieve an equitable result;
3. verify that the line (a provisional equidistance line which may or may not have
been adjusted by taking into account the relevant circumstances) did not lead to
an inequitable result by reason of any marked disproportion between the ratio of
the respective coastal lengths, and the ratio between the relevant maritime area
of each State by reference to the delimitation line.
Applying ICJs methodology:
Phase 1: The provisional equidistance line was constructed from the most
appropriate points on the coasts, with particular attention being paid to
protuberant coastal points situated nearest area to be delimited
Phase 2: Lengths of coasts, enclosed nature of Black Sea, presence of
Serpents Island, conduct of the parties (concessions, fishing, naval
patrols), cutting off effect, security considerations none relevant in this
case
Phase 3: the continental shelf and exclusive economic zone allocations
are not to be assigned in proportion to length of respective coastlines.
Rather the Court will check, ex post facto, on the equitableness of the
delimitation line it has constructed. no need for alteration here (Length:
Romania : Ukraine = 1:2.8; Area: Romania : Ukraine: 1.2.1)

D) DISPUTE SETTLEMENT UNDER UNCLOS

Compulsory dispute settlement regime one of the major important achievements
of UNCLOS
UNCLOS, Art 309: No reservations or exceptions may be made to this
Convention unless expressly permitted by other articles of this
Convention.
But see Art 298: When signing, ratifying or acceding to this Convention or
at any time thereafter, a State may, without prejudice to the obligations

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 arising under section 1, declare in writing that it does not accept any one
or more of the procedures provided for in section 2 with respect to one or
more of the following categories of disputes:
(a) maritime boundary disputes under Arts 15 / 74 / 83 (but declarant
States must accept conciliation);
(b) military activities and law enforcement activities;
(c) disputes in respect of which the UNSC is exercising its functions
UNCLOS, Art 279: States Parties shall settle any dispute between them
concerning the interpretation or application of this Convention by peaceful
means in accordance with Article 2, paragraph 3, of the UN Charter and, to
this end, shall seek a solution by the means indicated in Article 33,
paragraph 1, of the Charter.
UNCLOS, Art 280: States may agree to settle a dispute by peaceful
means of their own choice
UNCLOS, Art 281(1): If the States Parties which are parties to a dispute
concerning the interpretation or application of this Convention have
agreed to seek settlement of the dispute by a peaceful means of their own
choice, the procedures provided for in this Part
apply only where no settlement has been reached by recourse to such
means and the agreement between the parties does not exclude any
further procedure.

Convention for the Conservation of Southern Bluefin Tuna, Art 16:

1. If any dispute arises between two or more of the Parties concerning the
interpretation or implementation of this Convention, those Parties shall consult
among themselves with a view to having the dispute resolved by negotiation,
inquiry, mediation, conciliation, arbitration, judicial settlement or other peaceful
means of their own choice.
2. Any dispute of this character not so resolved shall, with the consent in each
case of all parties to the dispute, be referred for settlement to the ICJ or to
arbitration; but failure to reach agreement on reference to the ICJ or to
arbitration shall not absolve parties to the dispute from the responsibility of
continuing to seek to resolve it by any of the various peaceful means referred to
in paragraph 1 above.
Japan argued (first argument): The dispute between it and Australia and
New Zealand fell solely within the SBT Convention, and not within the
scope of UNCLOS. The Southern Bluefin Tuna Convention was a lex
specialis that subsumed, discharged and eclipsed any provisions of
UNCLOS.
Australia/NZ argued:
o The SBT Convention did not "cover" the relevant obligations of the
Parties under UNCLOS.
o The SBT Convention was intended to be a means of implementing
UNCLOS obligations in respect of highly migratory species, not a
means of escaping those obligations.
Tribunal held: Agreed with Australia/NZ there is frequently a parallelism
of treaty obligations, such that disputes can arise under more than one

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 treaty. Here there was a dispute under the SBT Convention, as well as
under UNCLOS.
Japan argued (second argument): In any event, the conditions of Art 281
have not been met. Under Art 281, the procedures provided for in Part XV
of UNCLOS apply only:
a) where no settlement has been reached by recourse to such means and
b) the agreement between the parties does not exclude any further
procedure.
The Tribunal agreed with Japan: The first condition in Art 281 was satisfied,
but as for the second condition, the Tribunal found that Article 16 of the
SBT Convention excluded any further procedure, including UNCLOS
dispute settlement: the absence of an express exclusion of any procedure
in Article 16 is not decisive.
Cf Sir Kenneth Keiths separate opinion:
o The word any in article 281(1) is significant since it requires the
exclusion to be of any other procedure available between the
Parties such as those under the compulsory jurisdiction of the
International Court or other treaties for the peaceful settlement of
disputes.
o Given the presumption of the parallel and overlapping existence of
procedures for the peaceful settlement of disputes appearing in
international judicial practice and the general law of treaties, strong
and particular wording are required to exclude any other procedure.
o This is further supported by other particular provisions of Part XV
and by the pivotal role compulsory and binding peaceful settlement
procedures played and play in the preparation and scheme of
UNCLOS.
Art 283: parties to a dispute have an obligation to exchange views, or
consult, with a view to settling the dispute.
Art 284: parties can agree to refer the dispute to conciliation.
Art 287
1. When signing, ratifying or acceding to this Convention or at any time
thereafter, a State shall be free to choose, by means of a written declaration, 1
or more of the following means for the settlement of disputes concerning the
interpretation or application of this Convention
a) the International Tribunal for the Law of the Sea established in accordance
with Annex VI;
b) the International Court of Justice;
c) an arbitral tribunal constituted in accordance with Annex VII;
d) a special arbitral tribunal constituted in accordance with Annex VIII for one or
more of the categories of disputes specified therein.
3. A State Party, which is a party to a dispute not covered by a declaration in
force, shall be deemed
to have accepted arbitration in accordance with Annex VII.
4. If the parties to a dispute have accepted the same procedure for the
settlement of the dispute, it
may be submitted only to that procedure, unless the parties otherwise agree.

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5. If the parties to a dispute have not accepted the same procedure for the
settlement of the
dispute, it may be submitted only to arbitration in accordance with Annex VII,
unless the parties otherwise agree.

3) Provisional Measures
Art 290(1): If a dispute has been duly submitted to a court or tribunal
which considers that prima facie it has jurisdiction under this Part or Part
XI, section 5, the court or tribunal may prescribe any provisional measures
which it considers appropriate under the circumstances to preserve the
respective rights of the parties to the dispute or to prevent serious harm to
the marine environment, pending the final decision.
Art 290(5): Pending the constitution of an arbitral tribunal to which a
dispute is being submitted under this section, the ITLOS may prescribe,
modify or revoke provisional measures in accordance with this article if it
considers that prima facie the tribunal which is to be constituted would
have jurisdiction and that the urgency of the situation so requires.

4) Prompt Release
Art 73(2): Arrested vessels and their crews shall be promptly released
upon the posting of reasonable bond or other security.
Art 292(1): Where the authorities of a State Party have detained a vessel
flying the flag of another State Party and it is alleged that the detaining
State has not complied with the provisions of this Convention for the
prompt release of the vessel or its crew upon the posting of a reasonable
bond or other financial security, the question of release from detention
may be submitted to any court or tribunal agreed upon by the parties or,
failing such agreement within 10 days from the time of detention, to a
court or tribunal accepted by the detaining State under article 287 or to
the International Tribunal for the Law of the Sea, unless the parties
otherwise agree.
Art 292(3): The court or tribunal shall deal without delay with the
application for release and shall deal only with the question of release,
without prejudice to the merits of any case before the appropriate
domestic forum against the vessel, its owner or its crew.

5) Hot Pursuit
(1) The coastal State must have good reason to believe that the ship has
violated the laws and regulations of that State (Art 111(1));
(2) The hot pursuit must be commenced when the foreign ship or one of its
boats is within the internal waters, the archipelagic waters, the territorial
sea or the contiguous zone of the pursuing State, or the EEZ/continental
shelf if the violation of the coastal States applicable laws is suspected
(Art 111(1) and (2));
(3) The hot pursuit may only be continued outside the territorial sea or the
contiguous zone (or EEZ/continental shelf) if the pursuit has not been
interrupted (Art 111(1) and (2)).

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 (4) The ship giving the order to stop does not need to be likewise within the
territorial sea or the contiguous zone or EEZ/continental shelf (Art 111(1)
and (2)).
111(3): right ceases as soon as foreign ship enters territorial sea of
another State
111(4): must first give visual or auditory signal to the vessel to stop
(which it can see or hear)
111(5): right can only be exercised by naval vessel or military aircraft (or
other vessels/planes in public service)

E. CONTEMPORARY ISSUES
1) Piracy
Background:
Civil war in Somalia 1990
Due to lack of effective government, pirates have had free reign in
attacking shipping off the Somali coast
Attacks have been made in the territorial sea and beyond, up to 750 nm
from the coast
Targets include cruise liners, tankers, ships carrying international aid,
fishing and recreational vessels
From 20052007, attacks/attempted attacks off Somali coast exceeded
incidents for the Malacca Straits and the South China Sea combined
From 19922000, Somalia had no representation at the UN
Transitional Federal Government (TFG) in power since 2000, but lacks
control over most of Somalias territory
Pirates operate from command centres on the Somali coast
Pirates use mother ships from which they launch their smaller vessels to
attack ships in the EEZ and the high seas
After the attack, the ships retreat into the Somali territorial sea
In 2003, 23 hostages taken; by 2008, this rose to 815; in 2010, 1,181
hostages were taken (with 760 still in captivity)
In 2005, there were 35 attacks; in 2010, there were 219 attacks
In 2011, there were 151 attacks
Capture of M/V Rozen (World Food Programme vessel) in February 2007;
vessel and crew of 12 held hostage for 40 days
M/V Victoria (WFP) also attacked in May 2007, one crew member was killed
Le Ponant (April 2008) attacked French military responded (with
Somalias consent)
Worldwide ship hijackings (Jan Sept 2009):
o 34 hijackings
o 559 hostages
o 294 total attacks
Gulf of Aden (Jan April 2009):
o 10 hijackings (of 38 attempts)
o 26 interventions, 10 arrests
In 2011:
o 25 successful hijackings (of 151 attacks on vessels)
As at February 2012: 10 vessels and 159 hostages being held

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 Average ransom: USD 5.8 million
Average length of hijacking 6070 days (but see Win Far 161, held for 10
months)

Legal framework for combatting piracy

UNCLOS, Art 100 (duty to cooperate): All States shall cooperate to the
fullest possible extent in the repression of piracy on the high seas or in
any other place outside the jurisdiction of any State.
UNCLOS, Art 101 (definition): Piracy consists of any of the following
acts:
(a) any illegal acts of violence or 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:
i. on the high seas, against another ship or aircraft, or against
persons or property on board such ship or aircraft;
(b) any act of voluntary participation in the operation of a ship or of an
aircraft with knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating (a) or (b).
UNCLOS, Art 103 (pirate ship): A ship or aircraft is considered a pirate
ship or aircraft if it is intended by the persons in dominant control to be
used for the purpose of committing one of the acts referred to in Article
101.
UNCLOS, Art 105 (jurisdiction):
o On the high seas, or in any other place outside the jurisdiction of
any State, every State may seize a pirate ship or aircraft, or a ship
or aircraft taken by piracy and under the control of pirates, and
arrest the persons and seize the property on board.
o The courts of the State which carried out the seizure may decide
upon the penalties to be imposed
UNCLOS, Art 110 (right of approach): [A] warship which encounters on
the high seas a foreign ship, other than a ship entitled to complete
immunity is not justified in boarding it unless there is reasonable ground
for suspecting that: (a) the ship is engaged in piracy
Where should pirates be prosecuted?
o Under UNCLOS and customary international law, all States have
universal jurisdiction to capture and prosecute pirates but there is
no obligation to do so
o So States might not have adequate national laws
o States might be reluctant to prosecute if there are no links
o States might have impediments under their constitution or national
law from being involved in efforts to combat piracy

Legal Framework SUA Convention

Convention on the Suppression of Unlawful Acts Against the Safety of
Maritime Navigation (1988)
Art 3: it is an offence to seize or exercise control over a ship by force or
threat thereof

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 Art 4: not an offence where the offence took place within one States
territorial sea, and the vessel was not scheduled to navigate beyond that
territorial sea
Art 5: States parties have an obligation to legislate and criminalise acts
committed against Article 3 of SUA:
a) against or on board their flag vessels;
b) within their territory, including their territorial sea; and
c) by one of their nationals.
Arts 8 and 10: If a vessel detains a vessel or suspect under the SUA
Convention, any port State which is a State party must accept delivery of
the suspect and extradite or prosecute if there are reasonable grounds for
suspecting they have committed an offence
Summary of UNCLOS and SUA:
UNCLOS:
no obligation on States to create national offences
need two vessels,
piracy must be for private ends- all acts lacking State sanction= private
ends
no provision for States capturing pirates to transfer them to other States
automatic right to board on the high seas
SUA:
obligation on States to create national offences
obligation to accept delivery of pirates, and to extradite or prosecute
no automatic right to board on the high seas
haphazard implementation by different States

UN SECURITY RESOLUTIONS
UNSCR 1816: authorised interdiction operations in Somalias territorial
sea (cf UNCLOS EEZ and high seas only), and use all necessary means
to repress acts of piracy and armed robbery at seaovercomes the
problem where pirates are able to launch attacks in international waters
and then quickly return to Somali territorial waters when int ships pass
through a narrow corridor in the Gulf of Eden
o Limitations:
o Only for six months
o It did not make the international law of piracy directly applicable in
Somali territorial waters
o No solution re jurisdiction to try pirates
UNSCR 1838: exhorted States whose naval vessels operate on the high
seas off the coast of Somalia to use on the high seas the necessary
means, in accordance with international law, as reflected in UNCLOS, for
the repression of acts of piracy
UNSCR 1846:
o Extended UNSCR 1816 for 12 months
o Called on States and regional organisations with the capacity to do
so to take part actively in the fight against piracy and armed
robbery at sea off the coast of Somalia

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 o Noted provisions of SUA Convention
UNSCR 1851: States and regional organisations cooperating in the fight
against piracy and armed robbery at sea off the coast of Somalia may
undertake all necessary measures that are appropriate in Somalia, for the
purpose of suppressing acts of piracy and armed robbery at sea, pursuant
to the request of the TFG
UNSCR 1897: renewed authorisations in UNSCR 1846 and UNSCR 1851
UNSCR 2020: Renews authorisations of previous UNSCRs until November
2012
Current response:
o 24 naval vessels patrolling the area- Coalition Taskforce 150/151
Enduring Freedom, EU, NATObut then more to ward off pirates,
rather than to pursue or apprehend them- deployment of a naval
contingent is an expensive undertaking relative to the costs of
ransom
o For prosecution of pirates:- Prisoner transfer agreements have been
agreed (EU/UK/US/Denmark Kenya: sea robbers captured by the
Royal Navy to be tried in Kenyan Courts; EU/UK Seychelles; China
TFG; France Puntland
o Trials can take / have taken place in Kenya, US, Netherlands, France,
Seychelles, Tanzania
o Query validity of transferring captured pirates to 3 rd states having
regard to Art 105- drafting history clearly reveals that this provision
was intended to preclude transfers to 3 rd party states.
Problems:
o Different naval forces have different mandates
o States who capture pirates reluctant to detain them
o Practical difficulties with prosecutions (cf UNSCR 1918 (2010))-
called on countries to criminalise piracy within their national laws
o Legal difficulties e.g., application of ECHR? Refugee Convention?
captured pirates come under the protection guaranteed by the
Convention as soon as they are under the effective control of a
state naval vessel. Hence the states are obliged to secure for
everyone within their jurisdiction the rights and freedoms defined
under the Convention. The captured pirates , can thus assert human
rights protection/violations under Articles 2 (right to life); 3
prohibition of torture and other forms of inhumane and degrading
treatment); 5 (right to liberty and security relating to detention); 6
(right to a fair trial); and 7 (due judicial process before punishment).
o Workload of States carrying out prosecutions (see Kenyas decision
on 1 April 2010)
o So catch and release policy reimplemented?
o International Criminal Tribunal for pirates?
o Best hope: restoration of effective government in Somalia?

2) Whaling in the Southern Ocean

See Australias Application Instituting Proceedings against Japan before
the ICJ (31 May 2010)

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 There is a longrunning contest between whaling states and antiwhaling
states whether there should be (i) limited whaling, or (ii) no whaling
This has been a source of contention for the International Whaling
Commission (IWC)
IWCs moratorium on commercial whaling
International Convention on the Regulation of Whaling (1946) did
not originally contain such a ban, but the moratorium was adopted in 1982
Japan initially objected to the amendment (so was not bound by it), but it
withdrew its objection by the end of 1987
Japan launched a scientific whaling programme for minke whales
ICRW, Art VIII(1): Notwithstanding anything contained in this Convention
any Contracting Government may grant to any of its nationals a special
permit authorizing that national to kill, take and treat whales for purposes
of scientific research subject to such restrictions as to number and subject
to such other conditions as the Contracting Government thinks fit, and the
killing, taking, and treating of whales in accordance with the provisions of
this Article shall be exempt from the operation of this Convention. Each
Contracting Government shall report at once to the Commission all such
authorizations which it has granted. Each Contracting Government may at
any time revoke any such special permit which it has granted.
Japan is not the only country with active whaling programmes
Iceland and Norway continue to engage in commercial whaling
Another exception is aboriginal subsistence whaling, which is permitted
(Denmark, Russian Federation, St Vincent and the Grenadines, United
States)
Australia has long criticised Japan for increasing annual takes that amount
to over 1,000 minke whales
Election promise of Rudd Government (Federal Election in 2007)
Rudd Government continued to pursue diplomacy, but when this failed, ICJ
proceedings launched in May 2010
Australia argues that JARPA II is breach of Japans obligations under
ICRW, CITES, and CBD
JARPA I commenced in 198788. From 19872005, over 6,800 minke
whales were taken
JARPA II (2005 ) more than doubles the take of minke whales, to around
850 per year (cf the 20102011 season, which was abandoned early, with
less than 100 whales), and also includes humpback whales and fin whales
See Australias Application Instituting Proceedings

Obligations allegedly breached by Japan

International Convention on the Regulation of Whaling:
(i) failure to observe in good faith the moratorium on commercial
whaling;
(ii) failure to observe prohibition on whaling for humpback and fin
whales in Southern Ocean Whale Sanctuary

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Japans catch cannot be justified as scientific whaling under Art VIII(1) due
to: (i) scale of programme; (ii) lack of relevance for conservation of stocks;
(iii) risks presented to targeted species and stocks
This is essentially an abuse of rights argument
Convention on International Trade in Endangered Species: The taking of
humpback whales under JARPA II violates Arts II and III(5) of CITES
o Under Art II(1), trade in Appendix I species must be subject to
particularly strict regulation in order not to endanger further
their survival and must only be authorized in exceptional
circumstances.
o Under Art III(5), Appendix I species can only be introduced into a
State subject to a number of strict conditions certified by
relevant state authorities
Convention on Biological Diversity:
o Violation of Arts 3, 5, and 10(b)
Art 3 requires States to ensure that activities under their
jurisdiction and control do not cause harm to other states
or to areas beyond national jurisdiction.
Art 5 requires States, as far as possible and as
appropriate, to cooperate in the conservation and
sustainable use of biological diversity beyond national
jurisdiction.
Art 10(b) requires States, as far as possible and as
appropriate, to adopt measures that avoid or minimise
adverse impacts on biological diversity.

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