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A presentation by

H.E. Mr. Gudmundur Eiriksson Ambassador of Iceland



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

Framework
1958 Conference / 1960 Conference
1958 Geneva Conventions on the Law of the Sea
Convention on the Territorial Sea and the
Contiguous Zone
Convention on the High Seas
Convention on Fishing and Conservation of the
Living Resources of the High Seas
Convention on the Continental Shelf

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INTRODUCTION

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

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INTRODUCTION
Stage
Growth in UN Membership
1958 from 51 original Members to 82
1973 from 82 to 144 (all but FRG and GDR (1973)
developing
Suspicion vis a vis international law, but new players

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

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

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INTRODUCTION
! Introductory negotiating process
Raised age old question: when to proceed past the preparatory stage
Same in ICC

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

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INTRODUCTION

Conference Structure
Three Committees
First Seabed
Second traditional
Third environment, scientific research, transfer
of technology
President on settlement of disputes

Package deal

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



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

! Group structures
Interest
Subject matter
Non Conference
Evensen Group


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EGALITARIAN
Amendment Procedure
First round: written amendments allowed
Psychology
Clean up later
Working groups set up
Outstanding Issue Groups (Negotiating Groups)
Open ended membership
Core membership
Various permutations
Closure procedure
No further amendments allowed

US reconsideration

Adoption of 1982 Convention by vote

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

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INTERNAL WATERS
Definition
8(1): landwards of baselines

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

Access to ports
No right under customary law
Exception in distress
Many treaties

Jurisdiction
Laws can be enforced
General restraint except when interests affected

Port State jurisdiction in pollution prevention


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


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A.Indentation is larger than semi-circle
whose diameter is two closing lines,
and is therefore a bay. Thus bay
closing lines (which total less than 24
miles) are baselines

B.Straight baseline on indented coast
fringed with islands

C.Indentation is smaller than area of
semi-circle drawn on closing line.
Therefore this is not a bay.

D.An island generating its own
territorial sea

E.Baseline is a line drawn across the
mouth of the river that flows directly
into the sea.

F.Harbor works forming part of the
baseline

G.Low tide elevations. One is less than
12 miles from the coast and therefore
forms the baseline. The other is more
than 12 miles and therefore does not
affect the construction of the baseline.

On the rest of the coast the baseline is
the low water mark.


CONSTRUCTION OF BASELINES
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TERRITORIAL SEA
! Development
High seas (rfreedoms) versus territorial sea (sovereignty)
Legal status
Sovereignty subject to the Convntion (innocent
passage), 2(3), 17
! Superjacent air space
No right of passage
! Breadth
cannonshot rule
3 miles, 4 miles, 6 miles, 12 miles 200 miles


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TERRITORIAL SEA
! Innocent passage
passage, article 18
continuous and expedition
distress
Innocent, article 19
not prejudicial to the peace, good order or security of the
coastal State
Detailed listin, but any other activity not having a direct
bearing on passage
Submarines on the surface
Suspension
Temporarily
Specified areas
Essential for the protection of its security
Without discrimination
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TERRITORIAL SEA

Criminal jurisdiction
Complete but should not except
Consequences extend to coastal State
Disturbs peace or good order of coastal State
Assistance requested
Drugs
Civil jurisdiction
should not exercise civil jurisdiction
Warships
Authorization?
Prior notification?


















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CONTIGUOUS ZONE

Concept
Hovering

Customs, fiscal, immigration or sanitary laws and regulations
within the territorial sea
Prevent infringement
Punish infringement

Archaeological and historical objects found at sea (article 303)
presumed to be an infringement

24 nautical miles


















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STRAITS
Definition: used for international navigation

The regime under customary law and the Territorial Sea Convention
Corfu Channel case
Non-suspendable innocent passage

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

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

















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ARCHIPELAGOS


Development of a special regime for archipelagos
- coastal archipelagos
- mid-ocean archipelagos

Definition of an archipelago and an archipelagic state
- archipelago
- archipelagic state

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

















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ARCHIPELAGOS

Archipelagic waters
- sovereignty by the archipelagic state
- rights of third states
- rights under existing agreements
- traditional fishing rights and other legitimate activities of the
immediately adjacent neighbouring states
- existing submarine cables
- navigational rights
- right of innocent passage
- archipelagic sea lanes passage
- essentially the same as transit passage
through straits


















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THE EXCLUSIVE ECONOMIC ZONE I

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

















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THE EXCLUSIVE ECONOMIC ZONE I

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














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FISHERIES
Situation:

Over-exploitation / Overcapacity

Difficulties:

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

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














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FISHERIES
History

Narrow zones
Regional or sub-regional fisheries organizations

EEZ regime under UNCLOS
Conservation and management of living resources
Duty to prevent over-exploitation
Maximum sustainable yield, as qualified by relevant environmental
and economic factors
Promotion of the objective of optimum utilization
Determination of TAC
Determination of own capacity
Allocation of surplus to other Status
Settlement of disputes: compulsory conciliation

Shared stocks
Most stocks are shared













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

Agreement by direct negotiations, through bilateral commissions or through
Regional or subregional organizations

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












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FISHERIES

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













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CONTINENTAL SHELF
1. Introduction
1.1. What is the continental shelf?

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

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










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CONTINENTAL SHELF

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

4. The legal status of the continental shelf
4.1. Rights of coastal States over the continental shelf
4.2. Resources of the continental shelf
4.3. Legal status of the superjacent waters and the rights of other States
4.4. Payments and contributions with respect to the exploitation of the continental shelf
beyond 200 M

Case study:

Determination of the outer limits of the Icelandic continental shelf beyond 200 M

Bay of Bengal Case (Bangladesh/Myanmar)










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CONTINENTAL SHELF MAP
ISLANDS

Definition, article 121
Naturally formed
Above water at high tide

Entitled to all zones except 121(3)
Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or
continental shelf.










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HIGHSEAS
! Introduction

! Definition

! Legal status

! Freedom of the high seas

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







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HIGHSEAS

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






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MARINE SCIENTIFIC RESEARCH

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

! Resource Allocation / (Espionage)
Pure Research
In normal circumstances, exclusively for peaceful
purposes and in order to increase scientific knowledge
for the benefit of all mankind




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MARINE SCIENTIFIC RESEARCH

Applied Research
Withhold consent if direct significance for resources
Implied Consent after 6 months,
May not withhold consent on continental shelf beyond 200
nautical miles, except in areas set aside

! Conditions:
Notice
Participation
Results, including interpretation




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THE INTERNATIONAL SEABED AREA

! Introduction

! Law of the Sea Convention, Part XI
Unsuccessful, very few developing States

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






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SETTLEMENT OF DISPUTES

! Settlement of disputes under general international law

! Settlement of disputes under the Law of the Sea Convention
- consensual settlement (Section 1 of Part XV)
! conciliation, compulsory conciliation
- the scope of compulsory settlement obligations (Section 2 of Part XV)
- forums for compulsory dispute settlement
- the International Tribunal for the Law of the Sea
- the International Court of Justice
- Annex VII arbitral tribunal
- Annex VIII special arbitral tribunal
- Arbitration if not same choice or no choice






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

! General principles applicable in dispute settlement
-locus standi
-treaty interpretation






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

2. Configuration of the coast

3. Islands 1/2 , no effect, enclaves

4. Length of coasts Proportionality

5. Security

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




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DELIMITATION
! Special/Relevant circumstances
Islands, navigable channels

! Single line!

! Single rule, not rule with exceptions

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




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THANK YOU
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